Author: Gerard Magliocca


Should President Clinton Nominate Merrick Garland for the Court?

With all due respect to Yogi Berra, I’m going to talk about one of the first major decisions that President Clinton will have to make. (I say “have to make” because I doubt that the Senate will confirm Judge Garland in the lame-duck session.  If they do, though, then never mind.)

One factor is whether Republicans or Democrats control the Senate next year.  If the GOP retains control, then the argument for nominating Garland again gets stronger, as he is easily confirmable in a non-election year.  If Democrats win the Senate, though, then the choice is more difficult.  The President could nominate a younger and more liberal judge, or perhaps go for younger and more diverse in some sense.  Why stick with Garland?

I suppose one answer is that Judge Garland is being treated badly and not nominating him next year would be, well, treating him even worse. Nevertheless, there is no vested right in a nomination of this sort from President to President (even of the same party). There is also the thought that even with a Democratic Senate the President may not want her first Supreme Court nomination to cause a fight.  She is almost certain (you would think) to get at least one more vacancy, and maybe that is the time for a different pick.

A contrary case could be made, though, that by making that different pick now the President would discourage Senators from repeating the Garland precedent. Picking Garland again basically says to the Senate that there is no real cost to imposing a presidential election year blockade. If someone else gets picked who is worse from the Senate’s point of view, future Senators might say “See, that strategy backfired. Don’t do that again.”

But is this true?  By the time another Justice dies in a presidential year when the Senate and White House are controlled by different parties, we might all be dead.  Will anyone really care about the Garland precedent except for some historians?  Seems doubtful.

Anyway, let’s revisit this after Election Day and see where the Senate stands.


Recess Appointments for Supreme Court Justices

Here’s a puzzle I was thinking about.  Suppose the President makes a recess appointment to the Supreme Court.  The appointment is challenged by someone with standing who cites Noel Canning.  During the pendency of the litigation, odds are that the challenged person would sit on the Court (you could conjure a scenario where there’s an adverse decision and no stay, but that seems doubtful).  Suppose at the end of that process, the remaining eight Justices rule that the recess appointment was invalid.  What would happen to the decisions made in which the recess Justice was the decisive vote?  Moreover, wouldn’t the recess appointment likely expire before the Supreme Court could even rule?  Would that make the case moot?

UPDATE: Here’s another problem. Wouldn’t all of the Justices have to recuse from deciding on the eligibility of someone that they had sat on cases with?


Presidential Electors Should Take A Vow of Silence

This campaign is strange for all sorts of reasons, but one aspect that I want to comment on is the chatter by certain presidential electors that they may not vote for the candidate that carries their state or district. Journalists have been doing a good job of finding some (mostly Republican, but also at least one Democratic) disgruntled electors who want to vote for Mike Pence or Joe Biden or someone else.

These people should keep quiet.  While they have the constitutional right to vote for anyone eligible to be President, they have no special qualifications to make that judgment.  Do you know who your presidential electors are?  Of course not.  Almost anyone that a party puts forward can be an elector, except for people who hold a federal office.  Many of them are complete dunderheads.  It’s just one of the many reasons why the Electoral College should be repealed, though there is every indication that that system will limp on for four more years.



Blackacre–The Poetry Collection

Though this a more eclectic post, I want to recommend a new book of poems by my law school classmate, Monica Youn, who has won many awards for her poetry. Her book is called Blackacre (appropriately enough) and has some vaguely legal themes, though it’s most certainly not a book of legal poems.


Felix Frankfurter’s Draft of the Constitution Day Address

I’m finished drafting my book on the Bill of Rights, and I’ll have more to say on that (you can be sure) over the next year.  I think that my next project will be on FDR’s Constitution Day Address of 1937.  During my research on the book, I was surprised by the fact that there is no law review article about this profound speech, which is the most detailed discussion on the Constitution ever given by a sitting President.

Here is a small example that I wanted to highlight.  Felix Frankfurter (then at Harvard) wrote an early draft of the speech. Some of what he put together made it into the final draft, but here is one passage that did not:

No true student of the agony of our Southern States in the period after the War between the States can overlook the fact that courts discredited by the victorious and callous majority were able to give the South the protection of only paper and sporadic enforcement of the Bill of Rights, while hundreds of injustices which the courts could not reach were daily being done to the Southern people.

This, of course, was the view of Jim Crow.  The real victims of Reconstruction were Southern whites; victims of a callous majority of Republicans. They were the ones who needed the Bill of Rights, not the freed slaves.  You can understand why FDR did not end up endorsing this canard.  But you can also see why Frankfurter suggested it.  Roosevelt needed the support of the South to push the New Deal forward, and presenting history in this light might help him do that.

Much more on the Constitution Day Address coming soon . . .


“Yes, Prime Minister” on Trump’s Vow to Put Hillary in Jail

Prime Minister Hacker: I want to trace the culprit.
Sir Humphrey Appleby: Yes, Prime Minister.
The PM: And I want a prosecution.
Sir Humphrey: Yes, Prime Minister.
The PM: And I want a conviction.
Sir Humphrey: (pause) We can try and trace the culprit, we can prosecute, but under the present political system, there are problems about the government actually guaranteeing a conviction.
The PM: A little drinkie with the judge?
Sir Humphrey: It’s unthinkable. There is no way any pressure can be placed on a British judge.
The PM: Well how does one secure a conviction?
Sir Humphrey: Well simple, you find a judge who won’t need any pressure put on him.
The PM: Oh.
Sir Humphrey: A quiet word with the Lord Chancellor, find a judge who’s hoping to be made a Lord of Appeal, and then leave justice to take her own impartial and majestic course.
The PM: And that does the trick?
Sir Humphrey: Well not always. Sometimes they’re so obviously trying for a conviction, that the jury acquits out of sheer bloody-mindedness.


Is the iPhone Defectively Designed?

This is a question raised by a fascinating NYT article on Sunday.  Here’s the argument: Apple has a patent on a technology that would prevent the iPhone from sending or receiving texts in a moving car.  This technology is not, though, part of the iPhone.  Since texting while driving is a significant cause of accidents, Apple could be liable on a design defect theory for any car accident where texting on an iPhone while driving causes the harm.

The missing information here is whether Apple’s patent actually works and at what cost.  I’m dubious that such a patent can tell the difference between a driver texting vs. a passenger texting, or someone texting in a car vs. someone doing that in a train or on a bus.

Suppose, though, that a patent could lock out only texting while driving.  Then I would think that, unless the technology was pretty expensive, the failure to include it as a standard feature would be a serious problem for Apple even if many customers would be angered by such a lockout.


The Time for a Presidential Veto

I just finished reading Samuel I Rosenman’s book Working With Roosevelt, which is the biography of FDR’s principal speechwriter during his years as Governor and for much of his presidency. In that book, I came across this interesting constitutional nugget.

Article One, Section Seven says: “If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.”

When the President was preparing to go to Tehran for his conference with Stalin and Churchill in 1943, the following question came up:  Suppose a bill was passed while he was away and it took more than ten days to send the legislation around the world, get his decision, and send the decision back.  (No phone connections could work, of course.) The President’s advisors concluded that the constitutional language “presented to him” could be read as “presented to him in person,” which would mean that the ten days would not start until the bill reached Iran.

It turned out that the President did not need to veto any bills that he could not return in ten days from the time of passage, so the problem never ripened. Still, a neat problem for discussion.


Donald Trump and the Politics of Disjunction

I posted the following discussion of Donald Trump’s candidacy on Balkanization in January.  I think it stands up pretty well while being neutral, so I thought I would reprint it here:


We’ve had an extended discussion on the blog about whether Barack Obama is a “reconstructive” President as described in the groundbreaking scholarship of Stephen Skowronek. Part of the answer turns on the outcome of 2016 presidential election. Will Obama’s successor build on what he did or repudiate his legacy? That remains to be seen.

There is another way, though, of looking at this question. Skowronek’s presidential typology says that political coalitions in decline tend to turn to outsiders who have, for lack of a better term, a reputation as a “Mr Fix-It” rather than deep connections to the party’s ideology or constituencies. Past examples include Herbert Hoover, a self-made millionaire who (though it’a hard to remember now) was widely thought of as a problem solver before he was elected. Jimmy Carter is another example–he was an engineer by training–who was a classic outsider in 1976. On the losing side, there was Wendell Wilkie (the GOP nominee in 1940) who had never been elected to anything and was touted for his business success. These are the “disjunctive” presidents or presidential candidates.

The Republican Party went with this sort of strategy in 2012. Mitt Romney was mainly known as a success in business and as a highly competent manager (of, for example, the Winter Olympics). As Governor of Massachusetts for one term, he certainly did not come from the heartland of the GOP coalition and did not have broad government experience. There was a plausible advantage in this, though, as he also did not carry much of the baggage that a party insider or crusader would.

Now we are getting disjunction on steroids with Donald Trump. He is also pitching himself as “Mr Fix-It” without any significant commitment to the traditional ideology of the party or, of course, any service in office. He is presenting this as a plus, and certain party elites are in the process of deciding that this he be better than someone closely identified with the party’s ideology–Ted Cruz. You can also contrast Trump’s success with the weakness of the obvious Establishment candidate–Jeb Bush–to see how far the traditional formula for success in the GOP primary is falling short this time.

Why does this matter? Because disjunctive candidates only do well at the end of a particular coalition, which implies that the other side represents the start of a new one. But has that already happened with Obama’s election, or will it happen after, say, President Trump has a disastrous term?


A Forthcoming Book to Recommend

I was at The University of the South (Sewanee) for a conference on the 150th anniversary of Tennessee’s ratification of the Fourteenth Amendment. There were many terrific presentations there, but I wanted to single out one by Dan Sharfstein about his upcoming book entitled Thunder in the Mountains: Chief Joseph, Oliver Otis Howard, and the Nez Perce War.  (It’s available for pre-order here.)  Here is the Abstract:

The epic clash of two American legends―their brutal war and a battle of ideas that defined America after Reconstruction.

In 1865 Union Army General Oliver Otis Howard took charge of the Freedmen’s Bureau, tasked with helping millions of former slaves become free and equal citizens. He was so committed to civil rights that Howard University was named for him. But when Reconstruction failed, General Howard was sent to the Pacific Northwest to force Native Americans onto reservations. His biggest adversary was Chief Joseph, a Nez Perce leader who doggedly pushed federal officials to save his ancestral territory and to give Native Americans equal rights. Although Joseph echoed Howard’s earlier views about liberty for freed slaves, in the summer of 1877 the general and his troops ruthlessly pursued Nez Perce families who refused to leave their homes. Thunder in the Mountains is the story of two remarkable Americans who fought vicious battles across 1,400 miles of the northern Rockies and waged a war of ideas about freedom, equality, and the role of government in American life.