Law & the Courts

Kurt Russell, Call Your Office

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I saw this video on Twitter of police responding to a shots-fired call in Harlem and hesitated to tweet about it because I wondered how it could be real. Frighteningly, it was:

Law & the Courts

Roberts vs. Burke

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Chief Justice John Roberts presides during the final votes in the Senate impeachment trial of President Trump in the Senate Chamber at the U.S. Capitol in Washington, D.C., February 5, 2020. (U.S. Senate TV/Handout via Reuters)

Chief Justice John Roberts concurred with the Supreme Court’s liberals today in June Medical Services v. Russo, overturning a Louisiana law that imposed on abortion providers the same modest requirement imposed on all ambulatory care clinics in the state—that they have admitting privileges at a local hospital. He did so, he said, because the case was very similar to the case of Whole Woman’s Health v. Hellerstedt, in which the Court overturned a similar Texas law four years ago. Roberts was actually a dissenter in that earlier case, and said today that he continues to believe that case was wrongly decided. But he still thought it should apply simply as a precedent.

“The question today,” Roberts wrote, “is not whether Whole Woman’s Health was right or wrong, but whether to adhere to it in deciding the present case.” The answer should be ‘yes,’ he insisted, on the basis of the principle of Stare Decisis, by which prior decisions of the Court are adhered to by default absent strong reasons to regard the underlying matters differently. To defend this particular application of Stare Decisis, Roberts pointed to several venerated voices, including Alexander Hamilton (in Federalist 78) and a number of prior decisions of the Court. But he began these references to sources with Edmund Burke, writing of Stare Decisis that:

This principle is grounded in a basic humility that recognizes today’s legal issues are often not so different from the questions of yesterday and that we are not the first ones to try to answer them. Because the “private stock of reason . . . in each man is small, . . . individuals would do better to avail themselves of the general bank and capital of nations and of ages.” 3 E. Burke, Reflections on the Revolution in France 110 (1790).

Justice Clarence Thomas, in his dissent, took proper umbrage at this abuse of Burke, writing:

THE CHIEF JUSTICE advocates for a Burkean approach to the law that favors adherence to “‘the general bank and capital of nations and of ages.’” Ante, at 3 (quoting 3 E. Burke, Reflections on the Revolution in France 110 (1790)). But such adherence to precedent was conspicuously absent when the Court broke new ground with its decisions in Griswold and Roe. And no one could seriously claim that these revolutionary decisions—or Whole Woman’s Health, decided just four Terms ago—are part of the “inheritance from our forefathers,” fidelity to which demonstrates “reverence to antiquity.” E. Burke, Reflections on the Revolution in France 27–28 (J. Pocock ed. 1987).

He’s right, of course. But there’s a more basic problem with the Chief Justice’s resort to Burke. In the passage Roberts cites (as well as the one that Justice Thomas cites), Burke is talking about judgments made by statesmen, not by judges. And it’s not as though he never expressed any views about how judges should think about precedent. That’s actually a subject Burke took up explicitly (as my friend Jeremy Rozansky points out in a forthcoming essay), especially during the years of the trial of Warren Hastings.

Burke described precedents as “one ground, though only one ground, of legal argument,” and said that before they could be treated as authoritative they needed to be tested against five crucial criteria:

They ought to be shewn; first, to be numerous and not scattered here and there;—secondly, concurrent and not contradictory and mutually destructive;—thirdly, to be made in good and constitutional times;—fourthly, not to be made to serve an occasion;—and fifthly, to be agreeable to the general tenor of legal principles, which over-ruled precedents, and were not to be over-ruled by them.

The Chief Justice did not refer to any such criteria in thinking through his defense of a decision he disagreed with just four years ago. And if he had, it isn’t likely that his concurrence today would have withstood scrutiny under them.

A sophistic abuse of a barely-relevant quotation is obviously the least of the problems with Roberts’s concurrence. But it is indicative of the broader sophistry of the whole. Precedent is very important, in the work of a judge as well as in the work of a political leader. But it can’t just be used as an excuse to avoid responsibility, in either case. Only when we see that can we expect to live in “good and constitutional times.”

Health Care

Employers Must Embrace Viral Testing, Not Temperature Screening

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A self-driving robot checks a body temperature during a demonstration at the headquarter of SK Telecom in Seoul, South Korea, May 26, 2020. (Kim Hong-Ji/Reuters)

Few trends better highlight our desperate need for reassurance than the nearly universal installation of temperature checks in ever more workplace environments. The approach is quick, easy, cheap, and occasionally high-tech, in some cases generating futuristic thermal images that resemble something from Predator.

There’s just one problem: The approach doesn’t really work.

As Dr. Rajaie Batniji, a Stanford physician and co-founder of Collective Health, which focuses on employer health benefits, recently wrote:

“Temperature screening provides false assurance to employees entering the workplace. One recent study showed that about 70% of patients sick enough to be hospitalized for Covid-19 did not have fevers. Coupled with the fact that most people infected with the coronavirus do not have symptoms, screening for temperatures will miss at least 86% of infected individuals, and likely miss an even higher percentage.

A ‘barrier’ that allows nearly 9 in 10 infected individuals to enter a workplace or business is not one that should be used to provide reassurance to employees.”

Yet temperature screening seems to be just what many employees are requesting, in order to feel more secure in their workplace. When a large health-care company recently surveyed its workers about what would make them comfortable to return to work, the No.1 item was the institution of daily temperature checks.

In other words, temperature checks seem to function essentially as placebos, helping the users feel better, but not actually doing much good, and potentially making things worse by conveying a false sense of security to workers.

The best approach, not surprisingly, is testing for the virus itself — basically what the White House seems to be doing on a daily basis.  This approach, Batniji estimates, has just a 2 percent chance of missing infected workers. The catch, of course, is the cost, especially when you think about how frequently one might need to test; ideally, as Batniji suggests, this would be “based on local epidemiology of COVID-19, personal and workplace risk factors.” By “tracking symptoms and contacts, employers can calibrate how often they need to test workers to greatly reduce the risk of workplace transmission.”

The use of “pooled testing” is another approach apparently under active consideration by the Administration, according to recent comments by Anthony Fauci; this scheme aims to balance the benefits of virus testing with the costs by testing samples in batches (say 20 or 25 at a time), and then only doing individual tests on those in a positive pool.

America is eager to return to work, to school, to life — but we remain concerned about the very real risk of the virus, as both opinion polls and recent case spikes have reminded us. Wishing the virus away has not proved a viable approach either.  Relying on temperature screening isn’t much better.  The enemy here isn’t the perception of a pandemic — it’s the reality of one.

If we’re to durably achieve an economic recovery, employers will need to embrace –and employees demand — authentic solutions, like viral testing, rather than deceptive, feel-good measures, like temperature checks.

National Review

NR News Desk Seeks Media Reporter

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National Review is seeking a media reporter to join our growing news desk. The ideal candidate will be a news junkie who keeps a constant eye on the headlines and has several years of reporting and writing experience. He or she will be adept at delivering clean copy on a tight timeline, as well as reporting out longer investigative stories.

In addition to delivering stories assigned by NRO’s editors, the media reporter will be expected to pitch and deliver original, compelling stories that expose bias or incompetence in the national political media through careful reporting. This is not a position for someone interested only in producing simple opinion-driven media criticism, although the reporter will have the opportunity to pitch NRO’s opinion side if they so choose.

While the reporter’s output will vary based on the news cycle, he or she will be expected to produce two to three stories per week. Some of these will involve significant reporting, while others may be based on a simple phone call or two.

Those interested should send a cover letter, a résumé, and some examples of their work to: news.applications@nationalreview.com.

Science & Tech

Was SARS-CoV-2 Floating around Barcelona in March 2019? Probably Not, But . . .

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This not-yet-peer-reviewed study, looking for the coronavirus in wastewater samples, is generating a lot of double-takes in surprise, with the surprising suggestion that SARS-CoV-2 virus might have been circulating in Barcelona, Spain as early as March 2019:

This possibility prompted us to analyze some archival WWTP samples from January 2018 to December 2019 (Figure 2). All samples came out to be negative for the presence of SARS-CoV-2 genomes with the exception of March 12, 2019, in which both IP2 and IP4 target assays were positive. This striking finding indicates circulation of the virus in Barcelona long before the report of any COVID-19 case worldwide. Barcelona is a business and commerce hub, as well as a popular venue for massive events, gathering visitors from many parts of the world. It is nevertheless likely that similar situations may have occurred in several other parts of the world, with circulation of unnoticed COVID-19 cases in the community.

(Yes, wastewater treatment plants keep frozen samples of the water going back quite some time. This pandemic teaches us new and often unsavory things every day.)

But some virologists aren’t quite convinced. The study declares, “Both IP2 and IP4 target assays were positive.” IP2 and IP4 refer to particular sequences within the virus gene, called RdRp targets. RdRp is short for “RNA-dependent RNA polymerase,” which is an enzyme that is necessary for the virus to reproduce. In the virus that causes COVID-19, the Institut Pasteur in Paris identified three separate sequences in IP2 and three sequences in IP4.

The samples in Barcelona might be evidence of SARS-CoV-2, or it may be evidence of a largely-but-not-entirely genetically similar but distinct virus floating around the city in March 2019.

Even a small percentage of difference in a genetic code can turn out to be significant. Chimpanzees and bonobos are about 98.7 percent genetically similar to human beings. Another virus found in horseshoe bats in China is 97.2 percent similar to SARS-CoV-2 — but scientists don’t think it is likely to infect human cells, which for humanity is a pretty key difference!

As for the notion of whether the virus was floating around residents Barcelona in January, well before the first announced case February 25, that seems pretty plausible, particularly in light of the confirmed report that a man in France caught the virus in December. It is believed he caught it from his wife, who worked at a supermarket near Charles de Gaulle airport and could have come into contact with people who had recently arrived from China. Travelers from China in December and early January could well have started the spread of SARS-CoV-2 well before doctors in Spain realized that it was a novel coronavirus.

Politics & Policy

Us ’n’ Them

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President Donald Trump speaks at a campaign rally in Charlotte, N.C., March 2, 2020. (Lucas Jackson / Reuters)

Today on the homepage, I have a brief essay called “The Curse of Identity Politics.” It was motivated by two events yesterday.

Early in the morning, President Trump circulated a video in which a supporter of his yelled “White power!” twice. Later, he took it down. Shortly after the original posting, I went for a walk in a New York City park and happened upon a fierce racial battle (verbal).

Let me relate a few memories, here on the Corner.

The first goes back only to last month — when Trump said, “‘MAGA’ is ‘Make America Great Again.’ By the way, they love African-American people. They love black people. MAGA loves the black people.”

That gave away rather a lot, I thought.

And during the 2016 campaign — at a rally in California — there was that remarkable moment when Trump pointed to a man in the crowd and said, “Look at my African American over here!”

I am a dinosaur, as critics tell me every day (critics on left and right). I believe in the old colorblind faith (although I am hardly naïve, and getting less so by the day). I believe in “We hold these truths to be self-evident, that all men are created equal.” I believe in E pluribus unum.

All that gooey, quaint stuff.

But it is obvious that people want their tribalism, or need it — or are driven to it by something primal. Something “baked in.” I should leave this discussion to the biologists.

Many years ago, I gave a talk at Yale, in which I criticized identity politics and made a pitch for the old ideals. Afterward, I was approached by a young woman: cheerful, bright, and heartbreakingly beautiful. She said she was a Hispanic — a Latina — and that was it. It was her identity, and she wanted it.

What can you do? People are “free to choose,” to borrow an old line.

But let me qualify this — and do so by quoting a paragraph from my piece today:

Some individuals and some groups have tribalism forced on them, at least to a degree, by the tribalism of others. That must be acknowledged. If Smiths are constantly running down Joneses, people named “Jones” are going to feel like Joneses — are going to “identify” that way.

What I know, more than ever, is that leadership matters. We like to think of ourselves as a bottom-up society, not a top-down one. We are a nation of individuals, and little platoons. I don’t know. It seems to me that people take their cues from leaders, for better or worse. Leaders can summon angels: better ones or worse ones.

“Donald Trump is the first president in my lifetime who does not try to unite the American people — does not even pretend to try,” said James Mattis earlier this month. (He is the retired Marine general who served as Trump’s first secretary of defense.) “Instead, he tries to divide us.”

I don’t know about “first president in my lifetime.” But it is certainly true that Trump plays us-and-them politics, as everyone does, to a degree. The question is: What is the degree? Way out there?

As I say in my essay, I know conservatives who refer to “our people.” They mean what some designate as “the white working class,” by and large: good people in the “red states,” unlike bad people in the “blue states,” who attend cocktail parties.

President Obama was no slouch as a divider. In 2012, he ran an ad against the Republican nominee that went, “Mitt Romney. Not one of us.” Can’t get starker than that, can you?

Today, Romney is a bête noire of the Right, not of the Left. Political alignments are in frequent motion. They can change faster than the New England weather.

On the subject of identity politics and tribalism, I’m resigned. People want what they want, whether their genes drive them to it or not. But I am not quite defeated. I believe that life can be breathed into E pluribus unum, by people willing to swim against tribalist currents.

I have titled this post “Us ’n’ Them.” I think back to a wonderful moment in the mid 1990s. William J. Bennett gave an interview to The New Yorker. He was criticizing Patrick J. Buchanan, saying that Buchanan was “flirting” with fascism. In the course of describing Buchanan’s worldview, Bennett said, “It’s a real us-and-them kind of thing.”

When the article came out, it had Bennett saying, “It’s a real S&M kind of thing.” The magazine had to run a correction.

Over time, the Republican Party — and the conservative movement along with it — was Buchananized. “The ideas made it,” Pat told Tim Alberta in early 2017, “but I didn’t.”

More Memory Lane? One final jaunt? On October 24, 1999, Tim Russert said to his guest on Meet the Press, “Tomorrow, Pat Buchanan is announcing that he will be a candidate for the presidency.” The guest said, “I just think it’s ridiculous.” Russert asked, “Why?”

“Because — look, he’s a Hitler-lover,” said the guest. “I guess he’s an anti-Semite. He doesn’t like the blacks, he doesn’t like the gays. It’s just incredible that anybody could embrace this guy. And maybe he’ll get 4 or 5 percent of the vote and it’ll be a really staunch, Right-wacko vote. I’m not even sure if it’s Right. It’s just a wacko vote. And I just can’t imagine that anybody can take him seriously.”

The guest, of course, was Donald J. Trump. Isn’t politics absolutely amazing?

Law & the Courts

June Medical Is Another Disappointment for Pro-Lifers

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In a 5–4 decision, the Supreme Court has ruled in favor of abortion providers in June Medical Services v. Russo, striking down a Louisiana law that required abortionists to maintain admitting privileges at a local hospital in order to perform abortions. In doing so, the majority has upheld flawed precedent and permitted abortionists to continue benefiting from an enormous loophole, ignoring the health and safety concerns at stake for women seeking a surgical abortion.

Louisiana’s law aimed to bring abortion clinics into compliance with all other ambulatory surgical centers in the state, where health-care providers already are required to maintain admitting privileges. According to the Supreme Court’s majority opinion, applying that same policy to abortion providers is an unacceptable infringement on a woman’s supposed constitutional right to an abortion — in short, they have widened the gaping loophole that already exists for any policy related abortion, what the late Justice Antonin Scalia called the judiciary’s “abortion distortion.”

The majority opinion was written by Justice Stephen Breyer, and Chief Justice John Roberts penned a concurrence in which he insisted on the importance of stare decisis, arguing that because the Court struck down a similar admitting-privileges law in Texas in the 2016 case Whole Woman’s Health v. Hellerstedt, it was bound by precedent to strike down the Louisiana law as well.

Though I don’t have the legal acumen of some of my colleagues, I think it’s quite obviously the case that the Court is empowered to overturn bad precedent, and that it’s easier to do so the more recently those bad precedents were decided. One reason I thought there was a chance Roberts would take June Medical as an opportunity to vote with a slim majority and overturn Hellerstedt was the simple fact that he himself dissented from it quite strongly at the time. But apparently, in his view, even a wrongly decided case must stand and must be applied to future cases simply for the sake of upholding precedent.

It is worth noting, too, that there were relevant distinctions between the Louisiana law and the Texas law struck down in Hellerstedt, the most important of which is that, as Louisiana officials ably illustrated, the enforcement of its policy would not result in the closure of any of the state’s abortion clinics, as had been the case in Texas. Pro-life advocates believed this might alleviate the Court’s concerns that the policy would impose an “undue burden” — in the vague language of Planned Parenthood v. Casey (1992) — on women seeking an abortion.

Finally, as Justice Clarence Thomas pointed out in his excellent dissent, the majority opinion almost entirely ignored a second key question at stake in June Medical. While the case primarily concerned the constitutionality of Louisiana’s admitting-privileges law, the Court also agreed to consider whether abortion providers have standing to challenge regulations on behalf of women. As Louisiana argued compellingly, the interests of abortionists and women actually don’t align perfectly, and are quite often at odds, especially because of the financial incentive to perform abortions, no matter the risk to women.

“The plurality and the chief justice ultimately cast aside this jurisdictional barrier to conclude that Louisiana’s law is unconstitutional under our precedents,” Thomas wrote. “But those decisions created the right to abortion out of whole cloth, without a shred of support from the Constitution’s text. Our abortion precedents are grievously wrong and should be overruled.”

Just so.

Politics & Policy

The Silent Majority Must Sing

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(Pixabay)

We’ve gone from protests, to riots, to autonomous zones, to attacks on police, to calls to abolish the police, to the destruction of statues, to the defacing of our most sacred memorials. Who knows; calls for the destruction, replacement, or renaming of the Washington Monument and the Jefferson and Lincoln Memorials may be next. It’s time to push back on what has morphed into a comprehensive assault not only on America itself, but on the very conditions of social peace.

Yet people are afraid to push back, chiefly because they are afraid of being called racist. The racism charge — wildly expanded to cover the entire American “system” — is the shield behind which an agenda of anarcho-socialist transformation now advances. No proposal is too outrageous to float, so long as opponents can be tarred as racists for rejecting it.

The way to turn this around is to sing. Specifically, the way the push back is to sing the “Star-Spangled Banner.” Activists are now proposing to replace the “Star-Spangled Banner” with John Lennon’s “Imagine.” They say that if a tradition “hurts any part of society” we should “just throw it away.” It doesn’t seem to have occurred to them that an anti-national anthem that rejects the deeply held religious views of countless Americans, the rights of her property owners, the life’s work of her entrepreneurs, indeed the very existence of America itself, might “hurt some part of society.”

My book, The Lost History of Western Civilization, begins with a discussion of Lennon’s “Imagine.” Lennon’s song is more than a popular anthem now sung at the dropping of the ball on New Year’s Eve in New York City’s Times Square. It is also the veritable program of the academics who have for decades rejected not only America, but Western civilization itself. As I show in the final part of the book, the program of Lennon’s “Imagine” is behind the race-obsessed thought-policing that has so dangerously seeped out of the campus and into our culture. In effect, the struggle between “Imagine” and the “Star-Spangled Banner” has become the politics of our day.

We should start singing the “Star-Spangled Banner” to show that we reject the dangerous anti-American turn of the movement led by Black Lives Matter. Yes, black lives — like all lives — do matter. Unfortunately, the organization that goes by that name has been using the noble desire of Americans to condemn racism as a cover for its outrageous and destructive agenda.

If you happen to be strolling by alone while an angry crowd is defacing a statue, I suppose it would be prudent to think twice before breaking into the national anthem. A larger crowd of onlookers could do it, however. Crowds in our reopened restaurants could certainly start singing our national anthem. In Italy, people managed to sing together on lockdown. Zoom videos of groups singing the “Star-Spangled Banner” might make a nice reply to movie-stars singing “Imagine.” Trump voters will be all in on this, but Never Trumpers and moderate Democrats should join as well. Surely they don’t hold with the folks who are pulling down statues of George Washington, Abraham Lincoln, Andrew Jackson, and Ulysses S. Grant. Democrats traditionally celebrate the founding of their party with Jefferson-Jackson dinners, after all.

The bipartisan nature of this proposal notwithstanding, I suppose there’s a danger here of “politicizing” our national anthem. Unfortunately, that ship has sailed. And singing our national anthem is the best way to push back. It is powerful — as anyone who has watched Casablanca will know — yet it is also positive and peaceful.

No doubt there will be instances when a group singing the “Star-Spangled Banner” is drowned out by a larger (and likely much younger) group singing “Imagine.” Some of our citizens may already be that far gone, sad to say. But if that’s so, we need to know it.

In the end, and overall, I’m betting the “Star-Spangled Banner” will win. And why not try following the “Star-Spangled Banner” with “America the Beautiful,” “God Bless America,” “My Country ‘Tis of Thee,” and “God Bless the U.S.A.” There’s a generation or two out there that’s barely heard any of these songs. It is time they did.

Education

Research Universities Have a Duty to Reopen — but to Do It Smart

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So argues Buck Goldstein, who is “entrepreneur in residence” at UNC-Chapel Hill and also a professor in the economics department. The Martin Center’s Shannon Watkins recently interviewed Goldstein to get his thoughts.

He said:

We have a unique community, I would say it’s a somewhat closed community, and we have the ability to punch a bunch of different buttons in an attempt to learn more about how people can live in a community within the context of the virus. Here at Chapel Hill, we also have an extraordinary group of scientists, epidemiologists, and specialists in all of the issues connected with the virus — and so I think we all believe that we ought to try.

But how can UNC or any other university make sure that it isn’t putting anyone at risk? Goldstein admits that there are still plenty of unknowns. Referring to a seminar he teaches, Goldstein says,

What’s an appropriate room and setting for a seminar of 25 students if they’re going to be meeting in person? Do they need to be six feet apart? They certainly need to be wearing masks. Or could they be three feet apart? If they’re six feet apart, then how big does that room have to be? Should the seminar be meeting in person all the time or part of the time online through Zoom?

Goldstein also agrees with many who forecast that numerous colleges and universities won’t survive COVID-19, but thinks that the damage will be worse if schools try to continue as they have been since March when the crisis broke.

Markets

U.S. Deposits of Rare-Earth Elements Are . . . Not So Rare, after All

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This morning, the Wall Street Journal reports that the Chinese government perceives its “its dominance in strategic rare-earth minerals as leverage that can be used against the West — including in trade disputes with the U.S., according to a new report by U.S.-based researchers. Rare earths are metals used for a variety of advanced technologies, including computer screens, high-tech weapons and electric vehicles.” A new report contends Beijing is prepared to use its rare-earth industry “as a geopolitical weapon.”

Right now, the only U.S. domestic source of rare-earth minerals is the Mountain Pass mine in California. As I noted back in December, the United States is sitting on a massive supply of rare-earth metals. We just haven’t worked out a way to access it in a way that environmentalists find acceptable: “According to mining experts, Bear Lodge is home to one of the richest and highest-grade rare-earth deposits in the U.S., with an estimated 18 million tons of rare earth inside.” A U.S. Geological Survey report completed last year detailed the potential of nine other deposits around the country.

Meanwhile, the Department of Energy has provided a grant for a $1.62 million, three-year project to extract rare-earth elements from the ash of Wyoming’s Powder River Basin coal.

The United States could counter China’s attempt to strong-arm us or the rest of the world through rare-earth elements. We just need the mining companies and environmentalists to work out the methods of extraction, and a political consensus that we don’t want our economy to be at the mercy of Beijing.

Law & the Courts

Legal Eagle

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Orin Kerr is a law prof, a writer, and an excellent talker — as you can hear in my latest Q&A, here. He pronounces his last name “cur,” though he is anything but. Deborah Kerr, the Scottish beauty who played Anna in The King and I, pronounced her name “car.” Orin Kerr shares a pronunciation with Steve Kerr, the coach of the Golden State Warriors.

They also work in the same town, just about: Orin teaches at the Berkeley Law School. Until earlier this year, that school was known as “Boalt Hall.” But John Henry Boalt, a 19th-century Oakland attorney, turned out to have been a pretty serious racist.

Orin Kerr is from Wilmington, Del., and went to Princeton. He majored in mechanical engineering. But he also took classes in the Woodrow Wilson School of Public and International Affairs. (The university is now removing Wilson’s name from that school.) He got another engineering degree at Stanford — a master’s. But then, in a pivot, he went to Harvard Law, and the rest is history.

He clerked for Justice Kennedy. He worked in the DOJ and in the Senate. Now he teaches and writes. In addition to articles and such, he is a virtuosic tweeter, findable here.

In our Q&A, we talk the Supreme Court, presidents, senators, pardons, “treason,” etc. We also talk law school: Do too many kids go? Is there a glut of lawyers? Is there easy intercourse — not that kind — including on controversial issues? Or does one have to walk on eggshells?

Anyway, meet this teacher, Orin Kerr, with no tuition required: again, here.

NRI Marketing

Before You Grill That Steak, Apply to Be an NR Institute Regional Fellow in Dallas, San Francisco, or Chicago

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National Review founder William F. Buckley Jr.

Granted, you don’t want to be thinking about the fall, the newly minted summer providing barbecue opportunities and other plentiful welcome distractions, but folks, you have to face facts like this: Now is the time to consider, and apply for, National Review Institute’s terrific “Regional Fellows” program.

Let’s restate that in officialese: National Review Institute is seeking applicants for its Fall 2020 Regional Fellowship Programs in Dallas, San Francisco, and Chicago, and we urge you to apply.

“You?” Who is this you who should apply? Glad you asked: The ideal applicant for the program — which helps participants develop a deeper understanding of the foundations of conservative thought — will be a mid-career professional (ages 35-50ish), with an interest, but not professional experience, in policy or journalism. Past fellows have represented diverse industries and professions ranging from oil and gas to finance, real estate, medicine, sporting industries, law enforcement, education, nonprofits, and the arts.

The program takes place over eight moderated dinner discussions. The 2020 class will run from September to November. Moderators include popular NR writers and leading academics at local universities. The rewards of participating are plentiful and will last a lifetime. The deadline to apply is July 15, but we encourage interested conservatives, libertarians, and the curious to apply as soon as possible.

Do that pronto. You’ll find more information about the Program here. What if you don’t live in one of the three program cities, but know folks who do and who might be NRI fellow material? Go ahead and please share with them this link. Good. Now I’d like mine well done! And where’s the bug spray?

U.S.

D.C. Statehood and the Death of Compromise Politics

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House Speaker Nancy Pelosi and Washington D.C. Mayor Muriel Bowser (left) attend a joint news conference in advance of a House vote on a District of Columbia statehood bill on Capitol Hill, June 25, 2020. (Yuri Gripas/Reuters)

The House Democrats’ D.C. statehood vote is, as NR’s editorial notes, just for show: D.C. statehood would require a constitutional amendment, and there is no possibility of one passing. The fact that D.C. statehood would only increase the political power of Democrats is one obvious reason it is a non-starter for Republicans, and both sides therefore play to the gallery, with no incentive for Democrats to moderate their request.

Partisan or regional politics has always been part of statehood admissions. It was part of the Alaska/Hawaii tandem in 1959, part of Benjamin Harrison and Congressional Republicans’ waving through six new Western states in 1889-90, and of course part of the many free/slave statehood fights between the Missouri Compromise in 1820 and the admission of Kansas in 1861 and secession of West Virginia from Virginia in 1863. Still, our politics has grown uniquely resistant to bipartisan deal-making, and all the more so when issues directly affecting the partisan balance of power are at issue.

But what if compromise were possible? Are there other ways to give D.C. residents more say without running into the same obstacles of policy or politics? There are, and some are better than others, but they each have their own drawbacks. Consider three possibilities.

Alternative 1: Partial Retrocession to Maryland

The District of Columbia was limited by Article I, Section 8 of the Constitution to a maximum size of “ten miles square,” but the Constitution specifies no minimum size. In theory, the district under federal control could be contracted, much as the Vatican was contracted in 1870 when it lost control of Rome, to the district immediately around the White House, Capitol, Supreme Court, etc. This would likely avoid the constitutional issue: D.C. consisted originally of land from Maryland and Virginia, and the Alexandria and Arlington sections of Virginia were returned (retroceded) in 1846-47. Giving land back could be done by Act of Congress and, possibly, the consent of Maryland to take the land back (less of a stumbling block today than a few decades ago when D.C. was much poorer and a fiscal basket case).

A retroceded Washington could adopt its own self-government without federal control (or subsidies) outside of the federal district. But retaining federal authority around the core governing district would ameliorate the problem of having the federal district’s physical security dependent on a hostile state government.

Politically, shifting D.C. residents into Maryland would likely give Maryland one or two more House seats and electoral votes, expanding a blue state’s power while making it harder for another Larry Hogan-style Republican to govern the state in the future. So, in that sense, it would be a win for Democrats for the foreseeable future, albeit one that gives them no added Senate representation and extinguishes the case for statehood. But without repeal of the 23rd Amendment, partial retrocession would leave D.C. with three electoral votes and nearly no voters, a bizarre anomaly that could lead to some mischief. If the district is small enough, it could give partisan Republican staffers a greater incentive to live there in order to make those electoral votes newly competitive.

Alternative 2: Expanded Statehood

Let’s say, for the sake of argument, that Democrats want D.C. statehood badly enough to offer Republicans a deal that is not completely one-sided: The new state (still possibly excluding a core federal district) could be expanded to include not only the current District of Columbia but also a contiguous area of Northern Virginia built around the parts of Virginia that were originally incorporated in the District (such as Alexandria and Arlington County) and potentially expanded to include all of Fairfax County and its constituent independent cities. This unquestionably would require both a constitutional amendment and the consent of Virginia, which (unlike in 1863) is not currently at war with the federal government and thus constitutionally can’t just have land stripped away from it without its consent.

For D.C. residents, adding Alexandria, Arlington, and Fairfax would give the new state real heft: It would bring the population over two million, larger than 15 states, and give it multiple House seats and electoral votes. Alexandria, Arlington, and Fairfax residents would be governed closer to home and brought within a political community with which they ought to have more in common than with the populations of southern and western Virginia. The political advantage for Republicans is that the remaining area of Virginia would instantly become much more competitive for the GOP.

Of course, Alexandria and Fairfax residents might prefer to avoid the likely higher taxes and demands of being part of D.C., while downstate Virginia Democrats would almost certainly rebel at losing the political advantage of their alliance with the D.C.-suburb parts of their state. With Virginia’s government almost totally blue now, it is difficult to see how that deal could be made.

Alternative 3: Dual Federal Citizenship

Another halfway solution, which again would require a constitutional amendment, is to leave D.C. as a federal district, but permit D.C. residents to join the Maryland (or, less promisingly, Virginia) electorate for presidential and congressional purposes. This would have some of the same political effects as partial retrocession, except that it would abolish D.C.’s three electoral votes and have no effect in the Senate, while still adding one or two House seats and electoral votes to Maryland. That tradeoff would make Republicans happy, maybe happy enough to strike the deal. Of the three alternatives, this is the one that is closest to real partisan compromise, but it leaves the specific question of federal control of D.C.’s local government unresolved. Then again, a grand bargain could also meet D.C. residents’ more local concerns with some additional concessions such as constitutionally guaranteeing D.C.’s current home rule (which is, for now, a creature of federal statute) and perhaps restricting some of Congress’s powers to legislate for the District.

As usual, creative thinking isn’t really on the table right now. But if the proponents of D.C. statehood are sincere about not just seeking a partisan power grab, there are other ways they could go to offer a deal and stop tilting at windmills.

Culture

Twenty-Five Things that Caught My Eye Today: Religious Freedom Court Victory & More (June 26, 2020)

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Join us Wednesday at 3 New York time: What’s Next for America? – a Sheen Center for Thought and Culture/National Review Institute event with Gloria Purvis and Louis Brown

1. Federal judge blocks COVID-19 restrictions on New York religious services

Thank you, again, Becket Fund for Religious Liberty!

3.

 

4. ‘I honestly think racism is demonic’: Despite critics, EWTN’s Purvis not afraid to call out injustice

At some point, someone made a deliberate decision to enact policies that on their face may not have explicitly said, “We’re going to harm this community,” but their intention was to do so, and the way these laws and practices are followed has most definitely led to that.

5. Noah Rothman: Does Tim Scott’s Pain Matter?

6.

7. I am part of the system that killed Cornelius Frederick. Here’s how we change it.

8. Lela Gilbert: The Threat of Genocide Darkens the Future for Nigeria’s Christians

…there is mounting evidence that the present government of Nigeria is somehow complicit in the Islamist groups’ assaults. While tens of thousands of Nigeria’s Christians have been killed in recent decades, countless more have been mercilessly raped, maimed, disfigured, and disabled. And the displaced are innumerable.

9. Send special envoy to protect Nigerian Christians says former congressman Frank Wolf

10. Paul Marshall: Turkey Is Moving Toward A Neo-Ottoman Regime With Calls To Convert Hagia Sophia

11.

12. Churches in six states damaged by violent protests

13. Ayaan Hirsi Ali in the WSJ: America Doesn’t Need a New Revolution

Continue reading “Twenty-Five Things that Caught My Eye Today: Religious Freedom Court Victory & More (June 26, 2020)”

International

The Euro Zone’s TLTRO Theater

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New 50 Euro banknote during a presentation by the German Central Bank in Frankfurt in 2017. (Kai Pfaffenbach/Reuters)

If a dysfunctional currency union could be saved by ungainly groupings of letters the euro zone would be by now in rude health.

One of those groupings that has been around for a while now is the TLTRO. The European Central Bank (ECB) describes TLTROs as follows:

The targeted longer-term refinancing operations (TLTROs) are Eurosystem operations that provide financing to credit institutions. By offering banks long-term funding at attractive conditions they preserve favourable borrowing conditions for banks and stimulate bank lending to the real economy.

The TLTROs, therefore, reinforce the ECB’s current accommodative monetary policy stance and strengthen the transmission of monetary policy by further incentivising bank lending to the real economy.. .

The TLTROs are targeted operations, as the amount that banks can borrow is linked to their loans to non-financial corporations and households.

In TLTRO III, similarly to TLTRO II, the interest rate to be applied is linked to the participating banks’ lending patterns. The more loans participating banks issue to non-financial corporations and households (except loans to households for house purchases), the more attractive the interest rate on their TLTRO III borrowings becomes.

Sounds good? Well, as plans to keep a disastrous experiment in central planning (the euro zone) going go, it is not the worst — in theory. But over at Bloomberg, John Authers quotes this extract from a piece by Charles Gave of Gavekal Economics:

None of last week’s €1.31trn will go into corporate loans. Every cent will go into funny-money strategies with one goal and one goal only: to reduce the spreads between Italian and German debt, and so lower the cost of capital for Italy.

Put simply, the ECB is attempting to shore up the eurozone’s banks by subsidizing them to buy Italian bonds and sell German bonds. The objective, once again, is to save the euro.

But although the banks may rebuild a part of their capital base with strategies like the one I have just described, they will lose a lot more on all the bad loans which are going to emerge in Southern Europe, especially after a summer without tourists. That €1.31trn may spin around in the financial markets with colossal velocity, but the small hotel in Rome will see none of it, as usual.

And that will be a problem. Saving the banks while killing the economy will not go down well with European electorates, who for years now have had the distinct impression that, among the institutions of the European Union, banks are regarded as far more important than citizens. It’s as sure-fire a recipe as any I can think of for the resurgence of Euroskeptic populism.

There is a lot to this analysis, I suspect, but it should not be forgotten that what is really killing Italy’s economy, Italy’s banks, and Italy’s public finances are the consequences of Italy’s decision to cheat its way into the euro, a currency for which it — as at least some of those putting together the single currency knew — was never suited.

Italy wasn’t suited to the one-size-fits-all euro then, and Italy is not suited to the one-size-fits-all euro now. The least bad way out of this mess remains, as it always has been, the division of the single currency into ‘northern’ and ‘southern’ units.

But the chance of that happening is — again, as it always has been — close to zero, and the long euro-zone crisis — sometimes chronic, sometimes acute — will drag on and on and on.

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