Law & the Courts

Why Trump Is Waiting (a Little) to Pick a Ginsburg Replacement

President Trump at a campaign event in Fayetteville, N.C., September 19, 2020 (Tom Brenner/Reuters)

President Trump has announced that he will unveil his nominee to replace Ruth Bader Ginsburg on the Supreme Court Friday or Saturday, after Justice Ginsburg’s casket has been publicly viewed at the Court and the Capitol on Wednesday and Thursday. This is partly a nod to not appearing to be in an indecent rush to preempt public memorials, but of course, this is election season, power politics, and Donald Trump, so we can safely assume that is not the only thing being calculated here.

There are several potential motives in play, and most likely all of them play a role. It may be that Trump, despite publishing a list of potential nominees, genuinely wants or needs a few additional days to hear arguments in favor of various candidates and interview them again. It may be that the nominee herself (it is all but certain to be a woman) will need some time to prepare for the inevitable onslaught of character assassination and attacks on the privacy of her family. The likeliest motive of all, however, is that Trump and Senate Republicans believe that a battle over the Supreme Court and the Constitution is better for them politically than most anything else that is likely to make new headlines over the next week, and so they have every reason to stretch out the suspense — up until next Tuesday’s Trump–Biden debate, which will cut to the front of the line. A nominee rolled out on Friday or Saturday will dominate the Sunday papers and Sunday shows (granted, few things are more of a Beltway obsession of little importance to the average voter than ‘winning’ the Sunday shows).

There are, however, two downsides. One is that it will likely be easier to keep wavering Republican Senators in line once a nominee is announced, and a face put to the nomination. The other is that the calendar for getting a nomination through the Senate is tight already, and every additional day makes that a harder corner to turn.

Law & the Courts

A Lame-Duck Confirmation Vote May Be a Chimera


It is entirely possible that a confirmation vote prior to the election doesn’t happen, either because the timing is simply too tight or vulnerable Republicans don’t want to be put in an awkward spot (Tillis, Gardner, et al.). But the odds of confirming a justice would drastically decrease in a lame duck if Republicans lose the Senate and the presidency, and at this juncture you’d say the Democrats winning is more likely than not. In that circumstance, the pressure from the media and the Democrats would be crushing, and it’s easy to see Republicans buckling. So it may be that a confirmation needs to happen before the election, or it’s not happening at all.


1619: Revisionism about Revisionism


Phillip Magness on the current stage of the New York Times’ project:

The history of the American Revolution isn’t the only thing the New York Times is revising through its 1619 Project. The “paper of record” has also taken to quietly altering the published text of the project itself after one of its claims came under intense criticism. . . .

Law & the Courts

Justice Ginsburg’s Failed Prediction


She thought that the Supreme Court’s decision in Hobby Lobby would cause “havoc.” Six years later, I write at Bloomberg Opinion, that confident prediction has not proven accurate.


There’s Still Time for Trump to Reverse His TikTok Mistake

President Donald Trump attends a news conference in the Rose Garden at the White House in Washington, D.C., July 14, 2020. (Jonathan Ernst/Reuters)

What’s the status of the TikTok negotiations? In short, President Trump appeared to approve a deal this past weekend, but that won’t be the end of this saga.

For all the twists and turns that have taken place in recent days, there might be a few yet to come.

Microsoft, once seen as the top contender to purchase the Chinese social-media company, saw its bid rejected by ByteDance, TikTok’s parent company. Oracle, whose leadership has cultivated close ties with Trump, then emerged as the app’s primary American suitor, striking a preliminary deal with ByteDance.

The catch: That proposed deal would fail to achieve Trump’s goal of forcing ByteDance to sell TikTok to U.S. investors. The arrangement only offers Oracle and Walmart a combined 20 percent stake in the app. And the TikTok algorithm — its “secret sauce” and a potential avenue of Chinese government meddling via ByteDance — would remain under ByteDance’s control (though Oracle would be able to view it). In short, this fails to resolve the national-security concerns raised by TikTok’s critics.

Meanwhile, as Trump evaluated that proposal, the Department of Commerce issued rules that would prohibit all downloads and updates of the app after September 20 and effectively kill it in the United States after November 12.

On Saturday, he announced his decision: “I have given the deal my blessing. I approve the deal in concept.” In addition to the terms already laid out, Trump said, under this arrangement ByteDance will make a $5 billion payment to the U.S. Treasury, to fund the administration’s proposed “Patriotic Education” commission. (ByteDance maintains that while it will end up paying that sum in taxes, it won’t actually go toward the education commission.)

Confused yet? The acute sense of whiplash familiar to those who have followed this saga only grew this morning.

Trump’s approval “in concept” could be just that. This morning, White House press secretary Kayleigh McEnany emphasized that Trump only “said we have the workings of a deal.”

And Hu Xijin, editor of the Global Times, a Chinese state-owned tabloid, said on Twitter that Beijing will reject the TikTok deal “because the agreement would endanger China’s national security, interests and dignity.”

All of this shows how Trump has unnecessarily complicated his handling of TikTok. His administration identified a series of concerns that could only be resolved by a sale to U.S. investors, and ByteDance now says that a total sale of the app, due to Chinese government export regulations, is off the table. By the president’s own standard, the right course of action is simple: Ban TikTok.

It’s entirely possible that Trump eventually rejects the Oracle deal, but the sweeteners written into it — such as the 25,000 U.S.-based jobs that TikTok says it would create — have persuaded him to seriously weigh, and approve “in concept,” a significantly flawed proposal.

The president was correct to identify TikTok as a problem, and his flirtation with the Oracle deal is a huge mistake. But there’s still time to correct it.

Politics & Policy

Mitch McConnell, ‘Apex Predator’!


Writing in the Washington Post, Howard Fineman declares, “Mitch McConnell is the apex predator of U.S. politics.” He does not mean it as a compliment, writing that “no one since the Southern segregationists of the 1940s and 1950s did more to cripple the proper functioning of all three branches of government, not to mention faith in the very idea of one America.”

“Apex predator” is the coolest nickname that was intended as an insult since, ironically, “Cocaine Mitch.”

It’s easy to imagine a campaign attack ad from Kentucky Democratic Senate candidate Amy McGrath warning that “Mitch McConnell is the apex predator of U.S. politics . . .”

. . . followed by a campaign ad for the Senate Majority Leader’s reelection bid boasting that “Mitch McConnell is the apex predator of U.S. politics!”

Law & the Courts

Joe Biden’s Supreme Court List


On Saturday morning, the president tweeted the following:

Later that day, he told a crowd of supporters in North Carolina that the pick would be in sometime this week. “It will be a woman — a very talented, very brilliant woman.”

President Trump’s selection process is made easier and more transparent by his unveiling of a list of potential Supreme Court nominees. The roster — originally released in May 2016 — has since been expanded upon three times, including earlier this month. The list continues to be a highly effective political tool for the president. During the previous general election, it consolidated support among Trump-skeptic conservatives for whom placing an originalist on the Court was a paramount goal.

Moreover, as John McGinnis observed in Law & Liberty, President Trump’s list advanced public understanding. Former presidential candidates have typically touted their potential nominees with ambiguity. Never quite explicitly naming names, they spoke of “strict constructionists” or “judges with empathy.” Not so with Trump. Available for public vetting and consumption, the list was “representative of the kind of constitutional principles I value,” he said at the time. Think what you will of his substantive understanding of judicial philosophy, but the list mattered — and he’s stuck to it. As CNN notes, far from being a contingent gimmick, this has been a feature of the Trump campaign for years.

The same cannot — and will not — be said of Joe Biden. Just yesterday, Biden said that he does not intend to release any names for fear of subjecting them to political attacks, and because, if named, they may start ruling differently as a result. In effect, Biden’s position is that voters should pick the president, and the president should pick the justice; but that, as a presidential candidate, he will not give any clues as to his preference. In other words: “We need to wait until after the election so that the people can ratify my choices. And no, I won’t tell the people what those choices are.”

C’mon, man.

Law & the Courts

A Ginsburg Mystery


Many liberals were urging Justice Ruth Bader Ginsburg to retire in 2013 and 2014. In July 2014, she gave an interview to Joan Biskupic in which she pushed back. Biskupic, then at Reuters, wrote:

Referring to the political polarization in Washington and the unlikelihood that another liberal in her mold could be confirmed by the Senate, Ginsburg, the senior liberal on the nine-member bench, asked rhetorically, “So tell me who the president could have nominated this spring that you would rather see on the court than me?”

There were, at the time, 55 senators in the Democratic caucus. Justice Sonia Sotomayor, generally considered at least as liberal as Ginsburg, had been confirmed only five years previously. And even if Ginsburg had been replaced by someone a little more moderate than she was, it would have kept a conservative from filling the seat for many years. Maybe what her decision shows is that it’s always tempting for people to think they’re more indispensable than they are.

Law & the Courts

Whom Would Joe Biden Nominate? A Potential List

Democratic presidential candidate Joe Biden speaks about responses to the coronavirus pandemic at an event in Wilmington, Del., March 12, 2020. (Carlos Barria/Reuters)

On Sunday, Joe Biden said he would not emulate President Trump and release a list of potential Supreme Court nominees before he is elected.

Biden will not name the figures he is likely to nominate, but the Article III Project, an activist group that “promotes and defends President Trump’s judicial nominees and appointed judges,” has assembled a list of twelve figures likely to get strong consideration during a Biden presidency. The Article III Project was founded in 2019 by Mike Davis, who previously served as chief counsel for nominations for Senate Judiciary Committee chairman Chuck Grassley from 2017 to 2019.

“Unlike President Trump who has brought refreshing transparency to Supreme Court nominations by publicly releasing his list of candidates for consideration, former Vice President has refused to honor his pledge to release his own list,” said Davis. “The American public has a right to know what kinds of individuals former Vice President Biden would consider, especially now as another vacancy has opened up. If Vice President Biden will not release his list, then we will do it for him.”

Most of the twelve were mentioned as strong candidates by Demand Justice, a progressive activist group focused on judicial nominations:

Stacey Abrams — Former gubernatorial candidate and Fair Fight president (NBC News story, Biden statement about appointing a Black female)

Brigitte Amiri — ACLU lawyer (referred by Demand Justice)

Xavier Becerra — Democratic Attorney General of California, former House member (specifically referred by Demand Justice)

James Forman, Jr. — Yale Law School professor (specifically referred by Demand Justice)

Rochelle Garza — ACLU of Texas staff attorney (specifically referred by People’s Parity Project)

Deepak Gupta — Appellate lawyer, Gupta Wessler

Sherrilyn Ifill — NAACP Legal Defense and Educational Fund president

Pam Karlan — Stanford Law School professor, former Deputy Assistant Attorney General for Voting Rights

Leah Litman — University of Michigan Law School professor

Melissa Murray — NYU School of Law professor (specifically referred by Demand Justice)

Judge Cornelia “Nina” Pillard — D.C. Circuit Judge (specifically referred by Demand Justice)

Zephyr Teachout — Fordham Law School professor (specifically referred by Demand Justice)

The Article III Project lists more about those figures at


Why Biden Won’t Release a List of Potential Supreme Court Nominees


In light of the recent death of Supreme Court justice Ruth Bader Ginsburg, and as Republicans gear up for a confirmation battle, it’s become even more conspicuous that Joe Biden has thus far refused to release a list of potential Supreme Court nominees he’d consider as president.

Donald Trump’s choice to do so during the 2016 presidential campaign was a revolutionary campaign tactic, and there’s a great case to be made that it was an essential part of how he managed to win the election. For a candidate who had no political track record and a history of less than perfectly conservative comments, making some formal commitment to filling the Supreme Court with justices acceptable to conservatives made a huge difference, especially in light of the vacancy that had been left by Justice Scalia’s death and the GOP Senate’s choice to keep that seat open until after the 2016 election.

This time around, Trump has again released a list of potential nominees, more important now that an actual vacancy has presented itself. And still, the Biden camp remains mute. It isn’t necessary, of course, for Biden to offer to list the people from whom he might select a nominee, but Trump’s willingness to do so makes Biden look cagey by comparison.

But Biden’s reasons for remaining silent on the matter — even in light of the open seat that Democrats are demanding Republicans keep open until after a new president is sworn in — are fairly obvious.

If he were to release a list of center-Left moderate judicial possibilities, he would risk incensing the Democratic base, which is made up of progressives who see the Court as a super-legislature that must be filled with enough justices (perhaps more than nine, if needed) to ram every progressive priority down the throats of the entire country should Congress or the president fail to do so.

On the other hand, if he were to release a list of potential nominees left-wing and radical enough to pacify these power-hungry progressives whose support he must have, Biden would certainly risk alienating moderates and swing-state voters, the kinds of people he must win back from Trump in order to pick off enough of the swing states Trump won in 2016.

If you’re Biden, neither of those options is politically attractive. Though it is risky in a different sense, remaining silent on the subject seems safer.


British Woman Arrested for ‘Non-Political’ Protest


The U.K. government’s coronavirus response has unveiled a worryingly authoritarian streak in British politics. When George Floyd was killed in the United States — a foreign jurisdiction — Black Lives Matter protesters across the U.K. flouted social-distancing rules, conducted mass gatherings, and even destroyed public property, all while the police stood idly by. But yesterday, when the group Standing for Women met at Victoria Square in Leeds to protest reforms to the Gender Recognition Act (2004), the police intervened and arrested three women, including the event’s organizer’s Kellie-Jay Keen-Minshull (see below):

Josephine Bartosch at The Critic reports:

A police officer told Kelly-Jay Keen that Standing for Women “failed to meet the legal definition of a political organisation”, though he himself seemed unable to explain what the legal definition of a political organisation was. The socially distanced crowd then divided into smaller groups of six to comply with Covid-19 regulations, but nonetheless officers began to take the names and addresses of attendees and the planned speeches were left unspoken.

On the same day as women were arrested because their protest was not deemed political, Caroline Wheeler, Deputy Political Editor of The Times reported on the very issue that had brought most of them together; the proposed amendment to the GRA. Standing for Women’s campaign against the reform of the GRA has centred upon the definition of “woman” as meaning “adult human female.” The proposed legislative reform would have in effect changed “woman” to mean “any person who identifies as a woman” effectively making women-only refuges, changing rooms and hospital wards mixed sex.

Politics & Policy

Another Campus Outrage — or Much Ado about Nothing?


There are so many campus outrages these days that it’s easy to credit each and every report — but we shouldn’t.

A few weeks ago, there was a story circulating to the effect that a professor at Appalachian State University in North Carolina was suggesting to students that violence against conservatives was okay. It turned out, however, that there was a perfectly innocent explanation.

In today’s Martin Center article, political-science professor George Ehrhardt, who was at the center of the story, sets the record straight.

He writes, “Over the weekend, a student in my team-taught course had objected — actually, his friend’s mother had objected — to a survey he had taken for class that seemingly advocated killing Republicans, and she reported it to a writer. He produced this story about a survey conducted at Appalachian State, which briefly went viral. Several days after it was posted, a friend even forwarded it to me with an angry call to defund the UNC system, totally unaware that it had happened in my class. The controversy reached the UNC Board of Governors and our chancellor.”

There may be good reasons to defund the UNC system, but this isn’t one of them.

Ehrhardt (a conservative) and another poli-sci prof (a leftist) were team-teaching a course, and they wanted students to take a survey on political attitudes posted by Professor Jonathan Haidt, of Heterodox Academy fame. But one student took a different survey available on the same site, one that asked if the respondent felt that violence against Republicans was justified. Neither App State professor even wanted the students to take that survey, much less were advocating violence.

Ehrhardt rightly concludes, “While there are certainly many things those of us on the Right can and should critique about contemporary higher education, we need to keep our powder dry for those things which are really worth critiquing.”

Indeed so.


‘Walking Forward with Brightness’

North Korean soldiers monitor the demilitarized zone at Panmunjom in 2013. (Lee Jae-Won / Reuters)

Joseph Kim and I have recorded a podcast, a Q&A, here. He works for the Human Freedom Initiative at the George W. Bush Institute. He’s an expert-in-residence. What’s he an expert in? North Korea, his native country. There is no harder-earned expertise.

He experienced the usual horrors, or many of them. He was twelve years old when his father starved to death. To his mother and sister, hellish things were happening. Joseph was out on the streets from age twelve to age fifteen — doing everything he could to stay alive.

He escaped to China by running across a frozen river. Eventually, he managed to get to the United States. He has written a memoir, Under the Same Sky: From Starvation in North Korea to Salvation in America.

In our podcast, we discuss a number of things, including current affairs: What does he make of the relationship between President Trump and Kim Jong-un? Joseph says, in essence, that democratic leaders sometimes have to deal with brutal, murderous dictators. They have to meet with evil. But they don’t have to “praise evil,” as he says.

I also ask him how he got involved with George W. Bush and the Bush Institute. Some years back, Joseph was studying business management, and had little interest in politics. But he was invited to participate in a meeting between Bush and North Korean refugees. Joseph figured he’d get a picture with the ex-president and post it on social media.

Usually, North Korean refugees are asked about life in North Korea, how they escaped, etc. These are very good questions, of course. But Bush surprised Joseph by asking him and the others, “How are you doing?” He wanted to know how the refugees were getting along in their current lives, and whether he and his people could do anything to help. Joseph found this quite moving.

Then, Bush said to him, “Joseph, what is your dream?” The young man was completely unprepared for this question. Before, his dream was to have three meals a day, but he had already achieved that. Now he was casting about for some purpose. So, he struggled to answer Bush’s question.

“I went on and on without making any point, and he was listening to me from the beginning to the end without a single interruption, and I was very touched by that.”

A photo was indeed taken of Joseph and the ex-president that day — but Joseph didn’t post it on social media. Later, Bush sent him a letter — handwritten — but Joseph didn’t post that, either. Why? In sum, because he did not want to cheapen those things. He says that Bush has treated him “like a human being” rather than as a political prop or (maybe worse) a victim.

Obviously, Joseph was not born with the name “Joseph.” His acquisition of it — in China — is a very interesting story, which he tells at the outset of our podcast (again, here). The name his father gave him is Kwang-jin, which means, “Walking forward with brightness.” That is exactly what Joseph Kim is doing, as far as I can tell. An exceptionally brave and thoughtful person.



Natan Sharansky in Jerusalem on May 31, 2019 (Jay Nordlinger)

Natan Sharansky, the Soviet “refusenik” and political prisoner who became an Israeli politician and a worldwide human-rights leader, has come out with a new memoir: Never Alone: Prison, Politics, and My People. Really? Another memoir from Sharansky, the author of one of the greatest memoirs ever written, anywhere, anytime?

I am speaking of Fear No Evil (1988). That is chiefly a prison memoir. A lot has happened since then, and even the prison years merit revisiting.

Earlier this month, I spoke with Sharansky, and I have a piece on the homepage today, here. (For my podcast with him, go here.) I would like to add a couple of things here on the Corner. First, a little quoting:

When Sharansky stepped off the plane in Israel, he was a hero, to one and all. But he entered politics, which entails taking positions and incurring the displeasure of roughly half the population. What does Sharansky have to say about this?

“You know, it’s very boring to be a hero, especially when you’re young and still have a life in front of you. You listen to all these compliments, enjoy them, and so what? Life is full of interesting challenges.”

Last summer — is summer over yet? — I had a post called “Stout Necks.” It had to do with the sacrifice of popularity for the sake of taking a stand. Often, sticking your neck out costs you something. I cited three individuals, in particular: Sharansky, J. K. Rowling, and Garry Kasparov.

Kasparov could have remained a chess hero to the end of time. He was the greatest who ever played, according to many experts. But he threw himself into human-rights advocacy — and the politics that goes with it — thereby ruffling feathers.

He commented, “Thank you, Jay. Retiring and becoming a statue did not interest me. And with what’s happening to statues these days, I’m even gladder!”

A further excerpt from my piece — “Still Sharansky” — today:

One last thing. I always ask Sharansky — I can’t help it — “Do you have your Psalm book on you?” He had it in the Gulag, and had to fight to keep it. His leading verse was, “Yea, though I walk through the valley of the shadow of death, I will fear no evil; for thou art with me.” So, where is it? Where is that little, historic book? “In the left pocket of my shirt,” as usual, says Sharansky. “It is always with me, it is always giving me strength.”

I first met Sharansky in 2005 and wrote about him here. I thought I would paste a paragraph from that piece, too:

Toward the very end of his ordeal, at the airport in Mos­cow — Sharansky had no idea what was happening to him — he refused to board the plane before they gave him back his Psalm book. In front of photographers, he dropped to the snow, yelling for it. They gave it back to him. Once aboard — when they told him he was being released — he recited the Psalm he had always designated for his liberation day, Psalm 30: “I will extol thee, O Lord; for thou hast lifted me up, and hast not made my foes to rejoice over me.”


Tweens, Teens, and Others

Detail of The Boy Mozart, 1763 (anonymous) (Public domain via Wikimedia)

In 1768, Mozart received a commission to write some church music. He wrote a mass for the consecration of a new orphanage church. That work is broadly known as the “Waisenhausmesse,” or “Orphanage Mass.” The composer himself conducted the premiere — which involved a choir of orphans. He was probably about the same age as many of them: twelve.

I include this mass — an excerpt from it — in the new episode of Music for a While.

Is the “Waisenhausmesse” the greatest juvenile work ever written? Well, maybe. But it depends on what you mean by “juvenile.” Is 16 too old? That was the age of Mendelssohn when he wrote the Octet in E flat. Bizet was a veteran of 17 when he wrote the Symphony in C.

How about Mitridate, re di Ponto? Mozart wrote that opera when he was 14. Not bad.

I discuss this issue in Music for a While, and also present some Chopin: the Largo of his B-minor piano sonata. I think it is one of the most astonishing things in Chopin, and in the piano literature at large.

Then there is Lise Davidsen. She is a Norwegian soprano who made her Metropolitan Opera debut last season. I was unprepared for it. I had not known about it. But I was sitting there, in the dark, watching and listening to Pique Dame (Tchaikovsky), when this woman opened her mouth. Holy . . .

Later, I smiled, on hearing a statement by Esa-Pekka Salonen, the conductor (and composer). He made a recording with Davidsen. “The moment Lise sang the first phrase, everybody’s jaw dropped in the orchestra. I have never seen this kind of thing before. I’ve seen lots of things, but this was completely unique. It was like, Can this sound come out of a human? Because it was so full, so rich, so perfect.”

I end this particular episode with some more Mozart — more mature, you might say (and also sacred): “Laudate Dominum omnes gentes,” from Vesperae solennes de confessore. If you aren’t careful, you might just float away.

Again, the episode is here.

Law & the Courts

There Is No ‘Dying Wish’ Clause


Isaac, one wonders what other dying wishes Ocasio-Cortez believes should take precedence over the plain text of the Constitution. If Antonin Scalia’s “dying wish” had been for all the cases in which he dissented to be vacated, would the surviving Court have had a responsibility to prioritize it? What if William Rehnquist had wished to be replaced by Miguel Estrada? Ocasio-Cortez is suggesting that we prioritize the personal preferences of a judge over the law as it is written, and that we do so under the cover of mawkish, indignant, superficial rhetoric. Which, given the circumstances, seems rather fitting.

Law & the Courts

‘Judicial Melee’


On this emergency Sunday evening Editors, Rich is joined by Charlie and Michael to discuss the passing of RBG, its massive impact on the presidential election, and the implications on long-term U.S. politics. Listen below, or subscribe to this podcast on iTunes, Google Podcasts, Stitcher, TuneIn, or Spotify.

Law & the Courts

Biden Says Too Much


Joe Biden is refusing to release a list of the judges he would consider nominating to the Supreme Court should he become president. In explaining why, Biden suggests that “putting a judge’s name on a list like that could influence that person’s decision making as a judge, and that would be wrong.”

It would be wrong yes. And that Biden thinks that this is likely behavior from the people he has in mind tells us exactly why he is reluctant to name them.

Politics & Policy

Stop Using RBG’s Dying Wish as a Political Weapon

Supreme Court Justice Ruth Bader Ginsburg participates in a discussion hosted by the Georgetown University Law Center in Washington, D.C., September 12, 2019. (Sarah Silbiger/Reuters)

There are a lot of bad arguments to be made about why Republicans should not move forward with confirming a new Supreme Court justice. Just a few days after Ruth Bader Ginsburg’s death — may she rest in peace — we’ve heard a lot of them. We’re sure to hear plenty more in the coming weeks. Far and away the grossest and most craven though, is that it would violate Ginsburg’s “dying wish.” In a statement dictated to her granddaughter, Ginsburg announced that “My most fervent wish is that I will not be replaced until a new president is installed.”

It’s to be expected that Ginsburg would prefer not to have her replacement picked by Donald Trump. And I don’t know anyone that would begrudge an 87-year-old woman for expressing that preference on her deathbed. Unfortunately, though, many of those who share Ginsburg’s wish for her replacement have decided to disregard our constitutional order and dishonor her memory by arguing that it is only decent to respect it.

Justices have no authority with which to decide who will replace them, excepting their ability to retire while a president of their own party holds White House. There’s nothing disrespectful about Republicans filling her seat with an eminently qualified nominee such as the Seventh Circuit’s Amy Coney Barrett.

In fact, it is Democrats who do Ginsburg a disservice by repeating her deathbed utterance and asserting it as binding. Representative Alexandria Ocasio-Cortez ripped Majority Leader Mitch McConnell as “a man who does not care about a dying woman’s final wish.” This is attempted political and emotional hostage-taking. Again, I do not blame for Ginsburg issuing this statement as she faced her final days on earth, but it was not an entirely appropriate one for a justice to make, and I do blame Democrats for using it in the way they have.

While it makes for a seemingly strong emotional appeal on the surface to ask that Republicans respect “a dying woman’s final wish,” neither the president nor the Senate is under any moral or political obligation to fill the seat with a nominee in Ginsburg’s mold. Would Democrats, if they held the presidency and a majority in the Senate, feel obligated to hold off if a conservative justice passed away and expressed aloud his obvious preference that someone of similar ideological leanings replace him? The answer is obvious.

Politicos who use Ginsburg’s dying wish as a political weapon are apparently less concerned with honoring Ginsburg legacy than they are with not suffering a political setback. They have even proven willing to sacrifice the former to prevent the latter. More than Mitch McConnell, they cheapen Ginsburg’s loss.

Law & the Courts

What Mitch McConnell Actually Said in 2016

Senate Majority Leader Mitch McConnell (File photo: Mike Theiler/Reuters)

You can read his speech, given ten days after Antonin Scalia’s death, here in the Congressional Record. The point he was making is clear: The Senate is not expected to confirm Supreme Court nominees during an election year, especially when the president is of the opposing party. While he certainly used some “let the people decide” rhetoric — and also quoted statements from Joe Biden taking a broader stance against election-year nominations — at no point did McConnell announce a general principle that the Senate should never confirm nominees in these times, even when the majority party wants to.

Just a few paragraphs into the speech, McConnell started making references to the importance of divided government to the situation (all the boldings in this post are mine):

One might say this is an almost unprecedented moment in the history of our country. It has been more than 80 years since a Supreme Court vacancy arose and was filled in a Presidential election year, and that was when the Senate majority and the President were from the same political party. It has been 80 years.

Since we have divided government today, it means we have to look back almost 130 years to the last time a nominee was confirmed in similar circumstances.

McConnell repeated this particular point in a number of other appearances, as comments compiled by his staff show.

He then pointed out that Democrats wouldn’t hesitate to use the same tactics, again repeatedly noting the importance of divided government:

We already know the incoming Democratic leader’s view. The senior Senator from New York didn’t even wait until the final year of President George W. Bush’s term to declare that the Senate “should reverse the presumption of confirmation” and “not confirm a Supreme Court nominee except in extraordinary circumstances.”

We also know how the current Democratic leader feels about judicial nominees from a President of the other party. This is what he said:

“The Senate is not a rubberstamp for the executive branch,” he said. “Nowhere in [the Constitution] does it say the Senate has a duty to give presidential nominees a vote. It says appointments shall be made with the advice and consent of the Senate. That’s very different than saying every nominee receives a vote.”

What about the views of the top officer of this body, the President of the Senate? Joe Biden was a Senator for many decades. . . . Let’s consider what he said in circumstances similar to where we find ourselves today. It was an election year with campaigns already underway, a President and a Senate majority from different political parties, just as we have today. This is what appeared on page A25 of the Washington Post:

Sen. Joseph R. Biden Jr. (D-Del.), chairman of the Judiciary Committee, has urged President Bush not to fill any vacancy that might open up on the Supreme Court until after the November election. Warning that any election-year nominee “would become a victim” of a “power struggle” over control of the Supreme Court, Biden said he would also urge the Senate not to hold hearings on a nomination if Bush decided to name someone.

Now, you can debate whether the rules and norms governing Supreme Court confirmations are good. I tend to think that, ultimately, we’ll need serious reforms, such as fixed 18-year terms for justices.

But the constitutional rule is that the president has a right to nominate and the Senate has a right to confirm; the historical norm is something like “the Senate can hold a seat open in a presidential-election year, but it’s not expected to if it doesn’t want to”; and the principles McConnell laid out in 2016 do not require him to hold off on confirming a nominee to replace Ruth Bader Ginsburg.

Law & the Courts

Hypocrisy Hypocrisy


It is the case that during the Merrick Garland fight, a bunch of Republicans said we shouldn’t confirm a new Supreme Court justice before an election — and now say something else.

It’s also the case that a bunch of Democrats at that time said we should confirm a new Supreme Court justice before an election — and now say something else.

Why is only one of these developments considered hypocrisy?

Either we can have a confirmation vote before an election, or we can’t — in which case, “Garland’s seat” was not “stolen,” as Democrats insist. You cannot have it both ways.

It would be easier if we stopped pretending that this fight is about something other than straightforward power politics.

Politics & Policy

‘Shut Up, We’re Liberals’


One of my least favorite genre of stupid essays is, “We’ll tell you what sort of opinions you’re allowed to have, because we’re opposed to authoritarianism.” Wesleyan University president Michael Roth offers this specimen.

Law & the Courts

Revisiting the ‘Reverse Bartleby’


 Slate’s Dalia Lithwick hopes that Americans will fight an “almighty battle” to prevent Republicans from replacing RBG in the coming weeks. This being so, I am interested to know whether she still believes what she purported to believe in 2016: that, “in the absence of a Senate hearing on [a] nomination, one certainly might infer that the Senate has by now consented.”

This theory — that if a president nominates a justice and the Senate ignores the nomination, the nominee should be deemed to be seated — was described by Lithwick as “very plausible.” She even suggested that it was bolstered by “law review” research.

If Lithwick does still believe this, then it seems fairly obvious what President Trump and Mitch McConnell need to do to seat a replacement. If Lithwick doesn’t still believe it, one has to ask why she said it in the first place, and to what extent we should trust her legal analysis going forward.

Law & the Courts

The Constitutional Rule on Filling Supreme Court Vacancies in an Election Year

Justice Ruth Bader Ginsburg, Washington, D.C., January 12, 2016 (Joshua Roberts/Reuters)

Joe Biden and Lindsey Graham have both flip-flopped on the appropriateness of confirming a new Supreme Court justice during a presidential election year.

While pushing for the confirmation of 2016 Obama-appointee Merrick Garland, then-vice president Biden, who had served as chairman of the Senate Judiciary Committee during George H. W. Bush’s final year in office, said: “I made it absolutely clear that I would go forward with the confirmation process as chairman even a few months before a presidential election.” Biden now opposes moving forward with a Supreme Court confirmation in an election year. 

In 2018, Lindsey Graham, the current chairman of the Judiciary Committee, promised to hold open a Supreme Court vacancy during the final year of President Trump’s first term, a pledge he abandoned in 2019. (Contrary to many reports in the press, Senate majority leader Mitch McConnell did not make the same promise or argument as Graham; McConnell said that when the presidency and the Senate were held by different parties, an election-year vacancy should be held open to let the voters settle the dispute.)

But the flip-floppery of Biden, Graham, and many others doesn’t change the fact that there is a real and clear constitutional standard: The president has the constitutional authority to appoint a nominee when vacancy arises, and the Senate has the constitutional authority to confirm or block that nominee (with or without an up-or-down vote).

That’s it. That’s the constitutional rule governing all Supreme Court vacancies.

Some congressional Democrats and their allies in the press are now threatening to pack the Supreme Court with additional justices if the president and a majority of the Senate now exercise authority explicitly granted to them by the Constitution and fill the current vacancy.

Filling a vacancy now is not the end of the Supreme Court, but packing the Court would be. At that point, there is only really a legislature and executive branch — control of the Court would change every time one party takes control of the House, Senate, and White House.

By packing the Supreme Court to prevent it from possibly chipping away at Roe v. Wade, congressional Democrats would guarantee that Republicans would pack the court at their next opportunity and certainly scrap Roe v. Wade. Is that something Democrats really want to do?

Law & the Courts

Barr Is Right About the Prosecution Power

Then-attorney general William Barr testifies on Capitol Hill, July 28, 2020. (Chip Somodevilla/Reuters)

Attorney General Bill Barr gave a speech at Hillsdale College on Wednesday that attracted a lot of attention. Much of that attention was for his ill-considered remark (in a question-and-answer session following the speech) that “Other than slavery, which was a different kind of restraint, [the pandemic lockdowns are] the greatest intrusion on civil liberties in American history.” The mere mention of slavery tends to overshadow all else (even though he was explicitly not making that comparison), and even accepting Barr’s own terms, the lockdowns are still not comparable to 75 years of Jim Crow or the internment of Japanese Americans, to pick two glaring examples.

The speech itself, however, deserves more careful thought, with renewed attention on the constitutional separation of powers, and it is worth reading in its entirety. Barr’s central argument draws heavily on the “unitary executive” theory laid out in Justice Scalia’s famous Morrison v. Olson dissent — a theory of executive power that was dominant from the American Founding through the Civil War. Specifically, Barr argues that the executive power over federal prosecutions properly and constitutionally rests with the president and with presidential subordinates who answer to the president, rather than with unelected, unaccountable, permanent civil servants:

The most basic check on prosecutorial power is politics. . . . But political accountability — politics — is what ultimately ensures our system does its work fairly and with proper recognition of the many interests and values at stake. Government power completely divorced from politics is tyranny . . . it has become fashionable to argue that prosecutorial decisions are legitimate only when they are made by the lowest-level line prosecutor handling any given case. Ironically, some of those same critics see no problem in campaigning for highly political, elected District Attorneys to remake state and local prosecutorial offices in their preferred progressive image, which often involves overriding the considered judgment of career prosecutors and police officers. But aside from hypocrisy, the notion that line prosecutors should make the final decisions within the Department of Justice is completely wrong and it is antithetical to the basic values underlying our system. The Justice Department is not a praetorian guard that watches over society impervious to the ebbs and flows of politics. It is an agency within the Executive Branch of a democratic republic — a form of government where the power of the state is ultimately reposed in the people acting through their elected president and elected representatives . . .

The same process that produces these officials also holds them accountable. The elected President can fire senior DOJ officials at will and the elected Congress can summon them to explain their decisions to the people’s representatives and to the public. And because these officials have the imprimatur of both the President and Congress, they also have the stature to resist these political pressures when necessary. They can take the heat for what the Justice Department does or doesn’t do. Line prosecutors, by contrast, are generally part of the permanent bureaucracy. They do not have the political legitimacy to be the public face of tough decisions and they lack the political buy-in necessary to publicly defend those decisions. Nor can the public and its representatives hold civil servants accountable in the same way as appointed officials. Indeed, the public’s only tool to hold the government accountable is an election — and the bureaucracy is neither elected nor easily replaced by those who are.

This is absolutely correct, and how the system is designed. Of course, where it gets much stickier is when federal prosecutors are on the trail of the president himself, his friends, or his enemies. Our system was not designed for that; at the Founding, there were few federal crimes and no Department of Justice (which was created in 1870). To the contrary, the most mischievous political crime on the books — treason — was explicitly limited in the Constitution. But every procedural tool created to remedy the problem has created problems of its own, which is why I have proposed both a modest method for protecting special-counsel investigations by triggering mandatory disclosures to Congress if the special counsel is fired, and, more structurally, the creation of a separate department for handling political-corruption cases, so that controversies of this nature do not unduly distract from the rest of the Justice Department’s work. In either case, however, the ultimate power remains with the president, and the ultimate remedy with the voters.

While Barr is right in theory, he has been subjected to a lot of criticism in practice for his handling of cases involving the president’s friends. I have defended the push to drop the Michael Flynn prosecution, which should not have been brought. Roger Stone was properly prosecuted and very improperly given clemency by the president (reportedly over Barr’s objections); Barr was involved in pressing for a less draconian but still substantial sentence, which was a more defensible stance given the absurd sentence originally proposed. He has been called, properly enough, to defend that role before Congress, and to answer for it to the DOJ Inspector General. But the IG can only deliver a report; what the House can do, if it genuinely believes that Barr has crossed a line, is impeach him or defund his department.

Barr makes two other cases, besides the constitutional design, for why the attorney general, unless recused from a case, must have the power to supervise all prosecutions. One is the nature of management and its relationship to accountability:

[D]evolving all authority down to the most junior officials does not even make sense as a matter of basic management. Name one successful organization where the lowest level employees’ decisions are deemed sacrosanct. There aren’t any. Letting the most junior members set the agenda might be a good philosophy for a Montessori preschool, but it’s no way to run a federal agency. Good leaders at the Justice Department — as at any organization — need to trust and support their subordinates. But that does not mean blindly deferring to whatever those subordinates want to do.This is what Presidents, the Congress, and the public expect. When something goes wrong at the Department of Justice, the buck stops at the top.

The other is the very principle against which Barr’s handling of Flynn and Stone must be judged: consistent application of the rule of law:

The essence of the rule of law is that whatever rule you apply in one case must be the same rule you would apply to similar cases. Treating each person equally before the law includes how the Department enforces the law. We should not prosecute someone for wire fraud in Manhattan using a legal theory we would not equally pursue in Madison or in Montgomery, or allow prosecutors in one division to bring charges using a theory that a group of prosecutors in the division down the hall would not deploy against someone who engaged in indistinguishable conduct.

Barr also made the case for a broader rethinking — the sort long pressed by the criminal defense bar — of how DOJ stretches the law:

One area in which I think the Department of Justice has some work to do is recalibrating how we interpret criminal statutes. In recent years, the Justice Department has sometimes acted more like a trade association for federal prosecutors than the administrator of a fair system of justice based on clear and sensible legal rules. In case after case, we have advanced and defended hyper-aggressive extensions of the criminal law. This is wrong and we must stop doing it. The rule of law requires that the law be clear, that it be communicated to the public, and that we respect its limits. We are the Department of Justice, not the Department of Prosecution. We should want a fair system with clear rules that the people can understand. It does not serve the ends of justice to advocate for fuzzy and manipulable criminal prohibitions that maximize our options as prosecutors. Preventing that sort of pro-prosecutor uncertainty is what the ancient rule of lenity is all about. That rule should likewise inform how we at the Justice Department think about the criminal law. Advocating for clear and defined prohibitions will sometimes mean we cannot bring charges against someone whom we believe engaged in questionable conduct. But that is what it means to have a government of laws and not of men. We cannot let our desire to prosecute “bad” people turn us into the functional equivalent of the mad Emperor Caligula, who inscribed criminal laws in tiny script atop a tall pillar where nobody could see them.

This is, again, a standard that Barr can and should be held to. The white-collar business and political defense bar has drawn, properly, a lot of attention to the nebulous uses of criminal law, including the many process and regulatory crimes in the federal criminal code — a good many of which involve the violation of some regulation never written by Congress, and which do not require proof of criminal intent. But DOJ also has an obligation to apply these same principles in considering how it prosecutes drug cases, immigration-related crimes, and other areas where defendants tend to be poorer and less well-represented.

Barr’s other major warning was about the overcriminalization of politics — a longstanding complaint of conservatives, but an ironic one from the attorney general of a president who led “lock her up” chants on the campaign trail:

If criminal statutes are endlessly manipulable, then everything becomes a potential crime. Rather than watch policy experts debate the merits or demerits of a particular policy choice, we are nowadays treated to ad naseum speculation by legal pundits — often former prosecutors themselves — that some action by the President, a senior official, or a member of congress constitutes a federal felony under this or that vague federal criminal statute.  This criminalization of politics is not healthy.  The criminal law is supposed to be reserved for the most egregious misconduct — conduct so bad that our society has decided it requires serious punishment, up to and including being locked away in a cage. These tools are not built to resolve political disputes and it would be a decidedly bad development for us to go the way of third world nations where new administrations routinely prosecute their predecessors for various ill-defined crimes against the state. The political winners ritually prosecuting the political losers is not the stuff of a mature democracy.

The Justice Department abets this culture of criminalization when we are not disciplined about what charges we will bring and what legal theories we will bless. Rather than root out true crimes — while leaving ethically dubious conduct to the voters — our prosecutors have all too often inserted themselves into the political process based on the flimsiest of legal theories. We have seen this time and again, with prosecutors bringing ill-conceived charges against prominent political figures, or launching debilitating investigations that thrust the Justice Department into the middle of the political process and preempt the ability of the people to decide. This criminalization of politics will only worsen until we change the culture of concocting new legal theories to criminalize all manner of questionable conduct. Smart, ambitious lawyers have sought to amass glory by prosecuting prominent public figures since the Roman Republic. It is utterly unsurprising that prosecutors continue to do so today to the extent the Justice Department’s leaders will permit it.

The particular threat of overcriminalizing politics is that political investigations tend to be lengthy, leaving public officials under a cloud long before anybody has charged them with anything. And it can be abused in obvious ways. State prosecutors have brought some of the worst ones in recent years: the abusive prosecution of Rick Perry for trying to oust a DA who abused her office when arrested for DWI, the Wisconsin and California investigations targeting conservative donors, the California prosecution of David Daleiden for undercover journalism against Planned Parenthood.

The test of Barr’s commitment to this principle will come with the work of John Durham, who is investigating the Russiagate investigators. Durham has thus far brought only one case, and is reportedly under some fairly intense pressure to wrap up his investigation soon, perhaps in time for the election. Neither Durham nor Barr should be rushing things on a political calendar. The rule of law demands that Durham bring charges if they are well-founded, and doing so will promote respect for the idea that federal prosecutors and investigators are not themselves above the law. But if Durham brings charges that require creative or aggressive readings of the law, then both he and Barr should be criticized for violating Barr’s own standards.

In order to be held to standards, you must first have some. Barr’s speech lays out a strong case for how the Department of Justice should work. Where he can be charged with failing to follow those standards himself, it is up to political actors and voters to hold him to account.

Law & the Courts

The Nomination Process Is Straightforward

Justice Ruth Bader Ginsburg speaks at a conference in Long Beach, Calif., October 26, 2010. (Mario Anzuoni/Reuters)

With the passing of Ruth Bader Ginsburg, there is a vacancy on the Supreme Court. We will now watch a frenetic debate over whether it is “proper” for the Republican Senate to fill that vacant seat before the presidential election.

​​I must confess that, while I accept that the history is certainly on the side of filling it, I have never found this debate especially meaningful. As I wrote when Antonin Scalia died, this is an entirely straightforward question, the details of which are the same at all times within the cycle. In our system, the president gets to nominate a justice, and the Senate gets to decide whether to accept that nomination, to reject that nomination, or, if it likes, to completely ignore that nomination. This was true in 2016, and it is true now. The game requires both players. If they are both willing, the vacancy is filled. If one is not willing, the vacancy remains. And that, ultimately, is all there is to it.

Law & the Courts

What Will Trump Do?

President Donald Trump speaks at a campaign rally at Bemidji Regional Airport in Minnesota, September 18, 2020. (Tom Brenner/Reuters)

R.I.P. Ruth Bader Ginsburg.

As a matter of pure self-interested calculation, I would expect Donald Trump to try to get a new Supreme Court justice confirmed before the election. That will provide exactly the kind of galvanizing fight that he thrives on, and he has more to gain from giving Republicans something to fight for right now than he does from giving Democrats one more reason to want to beat him in November. Trump either wins reelection (less likely) or (more likely) sets himself up to go out in a blaze of glory — provided that Mitch McConnell can actually deliver the votes.

I can only imagine the conversations going on right now. After the Kavanaugh fiasco, there are many Republicans who would love to rub Democrats’ noses in it. And when Republicans say that the Kavanaugh fight was an open invitation from Democrats to fight dirty on Supreme Court nominations, they won’t be entirely wrong. What are the Democrats going to accuse the nominee of this time? Cannibalism? Inventing the coronavirus?

I find it hard to imagine Trump’s sitting on this one until after the election.

Law & the Courts

McConnell: Supreme Court Nominee Will Receive a Senate Vote

Sen. Mitch McConnell (R., Ky.) (Mary F. Calvert/Reuters)

In response to the news that Supreme Court Justice Ruth Bader Ginsburg died on Friday evening at the age of 87, Senate majority leader Mitch McConnell issued the following statement:

The Senate and the nation mourn the sudden passing of Justice Ruth Bader Ginsburg and the conclusion of her extraordinary American life.

Justice Ginsburg overcame one personal challenge and professional barrier after another. She climbed from a modest Brooklyn upbringing to a seat on our nation’s highest court and into the pages of American history. Justice Ginsburg was thoroughly dedicated to the legal profession and to her 27 years of service on the Supreme Court. Her intelligence and determination earned her respect and admiration throughout the legal world, and indeed throughout the entire nation, which now grieves alongside her family, friends, and colleagues.


In the last midterm election before Justice Scalia’s death in 2016, Americans elected a Republican Senate majority because we pledged to check and balance the last days of a lame-duck president’s second term. We kept our promise. Since the 1880s, no Senate has confirmed an opposite-party president’s Supreme Court nominee in a presidential election year.

By contrast, Americans reelected our majority in 2016 and expanded it in 2018 because we pledged to work with President Trump and support his agenda, particularly his outstanding appointments to the federal judiciary. Once again, we will keep our promise.

President Trump’s nominee will receive a vote on the floor of the United States Senate.

“Twenty-nine times in American history there has been an open Supreme Court vacancy in a presidential election year, or in a lame-duck session before the next presidential inauguration,” Dan McLaughlin noted in a recent article for National Review. “The president made a nomination in all twenty-nine cases.”

“In the absence of divided government, election-year nominees get confirmed,” McLaughlin wrote. “[A]n election year alone is not the historical rule [for holding a seat open]. It is not what Mitch McConnell said at the time [in 2016], and it is not what Grassley said at the time, either.”


Pancreatic Cancer: An Insidious Disease


Justice Ruth Bader Ginsburg left our world for a better one today. Ginsburg was the consummate American and patriot, and if there’s a comforting thought to be had this evening, it’s that she’s been reunited with her friend: the late, great Justice Antonin Scalia.

The Supreme Court announced that Ginsburg died of “complications of metastatic pancreas cancer.” There’s so much to say about this awful disease. It accounts for 3 percent of cancer cases in the U.S. but 7 percent of cancer deaths. That’s because it has the lowest five-year survival rate of all major cancers at about 9 percent. Even the less threatening, local disease — which is rare — has a survival rate of only 37 percent. It takes the third most lives of any cancer every year, behind only lung and colon/rectal cancer. In 2020, the American Cancer Society predicts that almost 58,000 Americans will be diagnosed with the disease and over 47,000 Americans will die.

When my grandfather was diagnosed with pancreatic cancer in 2009, I was about to start the sixth grade, and my family was moving into my grandparents’ house because my dad had just quit his job to go back to school. We all were aware of the grim prognosis, and we were devastated. Nevertheless, my grandfather, a practicing psychologist, didn’t seem to slow down a bit. He kept participating in family wiffle ball games, he never made a peep about the pain, and he even would drop me off at school every day at seven in the morning on his way to work. It went on like this for around seven or eight months. We couldn’t believe it. It turned on a dime though, as pancreatic cancer is wont to do. Suddenly the man who was driving me to school in the morning was spending most of his time in a hospital bed they put in his room. Nine months after his diagnosis, he passed away.

I don’t know exactly how Ruth Bader Ginsburg’s cancer progressed. I do know that it’s remarkable that she did not succumb to this insidious ailment until eleven years after she first underwent surgery for it. It was characteristic of Justice Ginsburg to beat the odds. But I doubt that that makes tonight any easier for her family. No matter how well the patient seems to be doing or how long they’ve been fending it off, pancreatic cancer never seems to surrender. We should all strive to be equally relentless in our own pursuit of more awareness, better treatments, and — this evening in particular — treating each other with decency and respect. It’s what Justices Ginsburg and Scalia would want from us.


Thirty Things That Caught My Eye Today: Never Again, Love & Marriage, Happy New Year & More (September 18, 2020)



2.  There were 5 priests in Aleppo, Syria: 2 died of COVID-19

3. Summer wave of dementia deaths adds thousands to pandemic’s deadly toll

4. Some better news for these poor people locked in their rooms for months in nursing homes

5. Lebanon’s Maronite patriarch calls for all parties to adopt ‘active neutrality’


7. Why UAE’s landmark deal with Israel is bad for Turkey – Al-Monitor: the Pulse of the Middle East

8. Louis Brown in First Things: Black Lives Matter and the Christian

9. Andrew Sullivan:

This week, I watched videos of people literally burning Harry Potter books, like latter-day Nazis, in the cause of transgender liberation. It’s safe to say, I think, that many of these people have lost their minds — just by staying online. And they not only think they’re perfectly sane; they think they’re heroes.

10. Religious Liberty and this SCOTUS term, from the Becket Fund

11.  NPR: The Complicated Importance of Abortion To Trump Voters

12. Ramesh: The Biden Agenda: Let’s Talk About the Courts, Congress, and Abortion


14. Defend Religious Freedom in the US and Abroad

15. Samuel Gregg: The Perennial Problem of Executive Power

16. Wonderful Marlo Safi: Man Caught On Video Destroying Statue Of Virgin Of Guadalupe At New York Catholic Church

17. US bishops commend HUD plan to allow homeless shelters to serve on basis of sex

18. A martyr of charity? Pope remembers priest slain this week by homeless man he helped



21. George Weigel: A Man for Strengthening Others

22. Waiting for the “Spring”



25. The Virtuous Ruler: Hildegard of Bingen and the Question of Authority in Just War

26. The Unsung Russian Forerunner of the Death Penalty’s Demise in Catholic Teaching

27. Reason: Every Political Ad Ever

28. BLM Rioters Awarded Nobel Peace Prize | The Babylon Bee

29. I resemble this:



Authoritarian Scotland


When it’s not coming up with ways to erode freedom of speech, the Scottish government is introducing policies to undermine freedom of assembly. Not only are Scots — like their English counterparts — no longer allowed to assemble in their homes in groups larger than six, they are now being encouraged by the First Minister, Nicola Sturgeon, to report their neighbors to the police, should they suspect them of breaking this sacred social-distancing rule.

From the handshake to mandatory office attendance, COVID-19 may serve to permanently undermine many human customs and conventions. Let’s hope democracy isn’t one of them.


Anti-Exploitation Organizations Weigh in on Cuties


There is no context in which sexualizing children is acceptable. If you believe that, you will also consider the French movie Cuties to be unacceptable. This moral objection is obvious and straightforward and has nothing whatsoever to do with the filmmaker’s noble intentions or any other artistic merit the movie may possess. Yet there are some commentators (as Alexandra DeSanctis has pointed out) claiming that only wacky right-wing conspiracy theorists or those trying to undermine children of color, would hold this view. Two recent interventions suggest otherwise.

The National Center for Missing & Exploited Children (NCMEC) released an open letter on the movie, explaining:

On many occasions, the entertainment industry has played a valuable role by offering constructive social commentary and highlighting the many threats facing our children. However, regardless of intent, any portrayal of a child that objectifies them or depicts them in an indecent or exploitative way is cause for great concern. We encourage people to learn more about the true harm of child sexual exploitation from NCMEC and other organizations dedicated to the protection of children.

Lina Nealon of the National Center on Sexual Exploitation also offered clear-sighted analysis:

While we commend Maïmouna Doucouré for exposing the very real threats to young girls having unfettered access to social media and the internet, we cannot condone the hypersexualization and exploitation of the young actresses themselves in order to make her point.

The NCSE went further, arguing that there is merit to the Twitter movement, “#CancelNetflix.” Nealon suggested that to absolve itself, the streaming service “could and should insist that the particularly sexually-exploitative scenes are cut from the film, or stop hosting this film at all.” She’s right, of course. So why hasn’t Netflix done this?


How Trump Can Win


Sean Trende thinks through what will have to have happened for Trump to be reelected.


Eleven Foster-Care, Adoption, Child-Welfare Things That Caught My Eye Today (September 18, 2020)


1. More children wed, risk trafficking in Rohingya camps in pandemic

2. U.S. Marshals: 262 Arrested, 5 Missing Children Found in Oklahoma City

3. Okay, wait. To start with: Forming a relationship? How about, statutory rape? This is evil. Bot what happened, and the fact that we apparently can’t see how wrong it is.

Man, 35, facing sex charges including HIV exposure after forming relationship with 12-year-old on Snapchat 


5. You Can Adopt campaign launches in London

6. Adoptions out of foster care on the rise in Indiana

7. Texas: Little girl is now safe in foster care after mother lost custody, did not hand her over, DFPS says

8. West Virginia: Rotary learns about foster care


10. Surreal similarities: Connecticut woman adopted from China discovers a sister



A Contrarian Take on the Department of Education’s Princeton Investigation

Princeton University’s Woodrow Wilson School of Public and International Affairs in Princeton, N.J., November 20, 2015 (Dominick Reuter/Reuters)

On Thursday, it was reported that the Department of Education is launching an investigation into race-based discrimination at Princeton University. The investigation comes after Princeton president Christopher Eisgruber did his best Harvey Dent impression — “Take the racist into custody, I am the racist” — on September 2 in a letter addressed to the Princeton community. In the letter, Eisgruber makes claims that “racism and the damage it does to people of color nevertheless persist at Princeton” and, even more damning, that “racist assumptions from the past also remain embedded in structures of the University itself.”

In a letter of its own, this one addressed to President Eisgruber, the Department of Education points out that these claims stand in contravention with Princeton’s past declarations that it has been complying with Title VI of the 1964 Civil Rights Act, which states that federally funded institutions and programs may not discriminate “on the ground of race, color, or national origin.” The letter goes on to ask for Princeton’s cooperation in its investigation and to warn that, based on the results of that investigation, Secretary Betsy DeVos may take “action to recover funds” and initiate a “fine proceeding.”

The letter was met with enthusiastic acclaim on the right and outrage on the left. I find myself somewhere between joyful and scandalized over Princeton’s new headache.

If there’s one thing that’s clear, it’s that this is a mess entirely of Eisgruber’s making. No one forced Eisgruber to declare Princeton University — one of the country’s most progressive institutions — a place where pervasive systemic racism does damage to minorities with the misfortune of being there. The self-flagellation is worthy of criticism. Moreover, the Department of Education has a responsibility to ensure that its funds are not being sent to institutions in violation of Title VI. It also has an interest — if a federally funded institution is not guilty of discrimination — in that institution not declaring that it is.

Nevertheless, I have reservations. I do not for one second believe that DeVos thinks that Princeton is in fact discriminating against students, faculty, and staff on the basis of race. The only evidence of “racist assumptions” that Eisgruber cites in his letter is that “nine departments and programs organized around European languages and culture, but only a single, relatively small program in African studies.” It is doubtful that the Trump Department of Education considers this to be evidence of discrimination. And if it does, will it be conducting investigations of all schools with similar disparities in the size of their European and African studies programs? Also, to acknowledge that racism persists in some form at Princeton does not mean that the University itself is discriminating against people of color.

This investigation, then, is being pursued not because the Department of Education suspects that Princeton is guilty of racial discrimination, but to make a political point about the absurd and overly broad definition of racism peddled on the left and championed by elite academic institutions such as Princeton. It’s an important point, but there’s something about an arm of the federal government threatening to pull funding to make it — under the pretense of investigating racial discrimination that it doesn’t believe exists — that I find troubling both inherently and as a precedent.

There has been concern about federal overreach in some quarters of the conservative movement about the Trump administration’s 1776 Commission and promotion of a patriotic-education alternative to the 1619 Project. Those strike me as far more effective and less suspect measures than its investigation into Princeton’s supposed bigotry.


Ezekiel Emanuel Urges In-Person Voting


Apparently the goal of winning the election by mail-in ballots isn’t going as well for Democrats as they had hoped. How else to explain Biden health-care adviser, the bioethicist Ezekiel Emanuel, coming out and urging people to vote in person? From the CNN story:

Recently, Dr. Ezekiel Emanuel, who served as an adviser in the Obama administration, analyzed the relative risk of contracting coronavirus while voting and came to a simple conclusion.

“There’s a lot of conversation about voting, but we looked at the data. It seems most like shopping at the grocery store. And that has some risk but it’s pretty low risk,” Emanuel said in an interview.

Emanuel said that conclusion is based on a better understanding of how the virus spreads, the widespread availability and use of face masks and other precautions, as well as evidence suggesting that voting, like grocery shopping, has not led to any widespread outbreaks since the beginning of the pandemic.

“There are ways and reasons to vote in person,” Emanuel said. “People should not fear for their lives by going out and voting. It’s a hell of a lot safer than going to a restaurant.”

How interesting. It is worth remembering that Emanuel was very recently the lead signatory of an open letter signed by “experts,” last updated September 1, calling for a second complete nationwide shutdown. From the letter:

Non-essential businesses should be closed. Restaurant service should be limited to take-out. People should stay home, going out only to get food and medicine or to exercise and get fresh air. Masks should be mandatory in all situations, indoors and outdoors, where we interact with others.

“You should bar non-essential interstate travel. . . . If you don’t take these actions, the consequences will be measured in widespread suffering and death.”

So, less than a month ago, Emanuel said people should stay home, but now says people can safely vote?

Such a radical shift doesn’t make sense unless the driving force behind both calls is more about politics than science.

White House

Trump’s Foolhardy Resistance to Masks

President Donald Trump wears a mask due to the coronavirus disease, Clyde, Ohio, August 6, 2020. (Joshua Roberts/Reuters)

Jim posted the other day on the differing messages, or at least tone, on masks from President Trump and the head of the CDC, Robert Redfield. Trump subsequently took public swipes at Redfield. 

Trump never quite comes out and says he hates masks, and his advisers downplay his opposition, but he’s obviously not an enthusiast. This is foolhardy for two reasons:

1) Masks are the best tool we have at the moment, and they are certainly preferable to lockdowns. Maybe we will eventually learn that masks aren’t as effective as we currently think, but the latest evidence on how the virus spreads — I found this piece really helpful — supports their importance. The president shouldn’t be out there fostering doubts about them.

2) One reason that Trump’s numbers are so poor on his handling of the coronavirus is the understandable sense that he has downplayed it throughout and has too cavalierly dismissed the advice of experts. Public spats with his CDC director play into these real vulnerabilities that could help make him a one-term president.

Politics & Policy

The Irreligious Vote


Daniel Cox (an AEI colleague of mine) and Amelia Thomson-DeVeaux are asking why Democrats aren’t doing more to court it.

More than one-third of the people who voted for Clinton in 2016 were religiously unaffiliated, making them just as electorally important for Democrats as white evangelical Protestants are for Republicans. Yet despite constantly hearing about the importance of white evangelical voters in an election cycle, Democratic politicians have been slow to embrace the growing number of nonreligious people who vote for them. Why?

One possibility that comes to my mind: Democrats are courting a large segment of these voters through their support for social liberalism and wokeness, which have come for that segment to function as a partial substitute for religion.

Politics & Policy

Michael Gerson on Pro-Lifers and the Presidential Election


The former George W. Bush speechwriter, now at the Washington Post, explains why he is voting for Joe Biden even while disagreeing with him about abortion.

I expect to make a fuller statement of my own views about how pro-lifers should think about the election in due course. Here, at the risk of being unfair to Gerson, who couldn’t reasonably be expected to address all of these issues in the space of a column, I’ll note four holes I find in his argument.

First: He assumes that making the case that a pro-lifer should not vote for President Trump amounts to making the case that he should vote for Biden. There are other options: third-party candidates, write-ins, abstention. Gerson may have good reasons for rejecting those options, but many points of his argument — the duty of voters to avoid “complicity in grave wrongs,” for example, which he invokes only in making the case against Trump — requires him at least to consider them.

Second: Gerson proceeds as though he need only establish that pro-lifers should not be single-issue voters to clinch his case. “If other matters are allowed to matter, the floodgates open,” he writes. There is, of course, an alternative to treating abortion as the only issue to determine one’s vote and ignoring it altogether, and that is giving it a great deal of weight. I imagine Gerson would agree with that point. But he doesn’t engage in that weighing. Having established that voters may take account of other considerations, he just moves on to listing ones that militate against Trump and then shares his conclusion that he’s going to vote for Biden.

Third: Gerson does not mention Biden’s support for taxpayer funding of abortion, or his party’s increased commitment to it. He notes that abortion rates dropped under President Obama. But we didn’t have Medicaid funding of abortions under Obama, and the Democratic Party of that era was much less united behind that goal. We have good reason to think that Medicaid funding would increase the death toll from abortion.

Fourth: A dimension of the injustice of abortion is entirely neglected in Gerson’s analysis. That injustice includes both the unjustified killing of unborn children and the law’s treatment of unborn children as non-persons who do not deserve protection. The pro-life slogan that unborn children should be “protected in law and welcomed in life” captures both of these dimensions. Gerson ignores one of them when he says that even if Trump’s reelection led to “a significant retreat from Roe,” Americans would mostly live under the same abortion laws as now. Maybe so. But a significant reduction in the abortion rate would be possible, and ought to matter even on Gerson’s own argument. And it would no longer be the official policy of the federal government that our Constitution makes unborn children non-persons with no rights, which ought to matter too.

Gerson says that his voting intention is “uncomfortable but inevitable.” I think it is less inevitable than he believes, and that he has made it more comfortable than it ought to be.


Sir Van Morrison Opposes Lockdown on New Songs


Van Morrison, the prickly 75-year-old Northern Irish folk-soul singer, has written three new songs that blast away at the government, pseudoscience, incursions on liberty, and coronavirus-based hysteria. One song, “No More Lockdown,” reports the BBC, contains such lyrics as “No more lockdown / No more government overreach/No more fascist bullies / Disturbing our peace/No more taking of our freedom / And our God given rights / Pretending it’s for our safety / When it’s really to enslave.

Morrison has declared a personal interest: He thinks socially distanced concerts are economically untenable for performers. He has sung at three such concerts this month and is evidently irritated by the restrictions on ticket sales necessitated by social distancing. “I call on my fellow singers, musicians, writers, producers, promoters and others in the industry to fight with me on this,” he has said. “Come forward, stand up, fight the pseudo-science and speak up.”

The health minister for Northern Ireland has denounced Morrison. Says Robin Swann, “I don’t know where he gets his facts. I know where the emotions are on this, but I will say that sort of messaging is dangerous.”