Author: Henry Wray

A series of recent federal court decisions contradict the plain meaning of the language in the statutes they address, at least as that language had been understood and applied for decades. The four decisions are summarized below.

Title IX of the Federal Civil Rights Act generally prohibits discrimination “on the basis of sex” in federally funded education programs.[1] Since its enactment in 1972, title IX has been understood to cover discrimination between males and females based on their biological sex. This is consistent with the virtually universal definition of “sex” as meaning the anatomical and chromosomal features that distinguish males from females. By contrast, “gender” refers to the attitudes, feelings, and behaviors that a given culture typically associates with a person’s biological sex. However, two recent federal appellate court decisions held that “sex” for purposes of title IX actually means preferred gender identity rather than biological sex where the two diverge in any individual: G.G. v. Gloucester County School Board, also known as the Gavin Grimm case, and Whitaker v. Kenosha Unified School District. [2] Both cases dealt with public school bathroom access for transgendered students.

The Americans with Disabilities Act (ADA), enacted in 1990, broadly defines disability discrimination subject to its prohibitions but lists a number of specific exclusions from its coverage. Among them, the act states that “the term ‘disability’ shall not include . . . gender identity disorders not resulting from physical impairments.” Transgendered people are often diagnosed with “gender dysphoria,” also known as “gender identity disorder.”[3] Notwithstanding the explicit exclusion of “gender identity disorders” from ADA coverage, a Pennsylvania federal district court judge held in Blatt v. Cabela’s Retail, Inc. that the plaintiff could claim disability discrimination under the ADA based on transgender status.

Title VII of the federal Civil Rights Act prohibits employment-related discrimination “because of  . . . sex.”  Like the education-related prohibition in title IX, discussed above, title VII has been understood since its enactment in 1964 to outlaw sex discrimination relating to biological males versus females, or as one court put it, discrimination “against women because they are women or against men because they are men.” Every federal appellate court to address the issue held that title VII does not extend to discrimination based on “sexual orientation.” Nevertheless, in Hivley v. Ivy Tech Community College of Indiana, an 8-3 majority of the full Seventh Circuit Court of Appeals concluded that title VII does indeed cover discrimination based on sexual orientation.

How to explain these decisions?

The first rule of statutory interpretation is to apply the law according to the plain meaning of its text when the statutory language is unambiguous. To determine plain meaning. non-technical words in a statute are given their ordinary meaning as understood when the law was enacted. Dictionary definitions are often used for this purpose. The statutory language in each of the above cases has a plain meaning. In three of the four cases, courts had followed that plain meaning for decades.  In the fourth case, the one involving the ADA, the statutory language is so clear in excluding transgender-based claims that the issue apparently had not been litigated before. (The Pennsylvania court cited no precedent either supporting or opposing its conclusion.)

What changed? Not the law. The opinions in the four cases employ various rationales to justify their conclusion that the laws in question actually mean, and have always meant, something quite different from what they had long been understood to mean. The necessary implication is that courts have been misinterpreting these laws for decades and that their pervasive and longstanding judicial errors have only now been discovered. The opinions are not convincing in this regard. Indeed, two of the cases, Grimm and Hivley, feature strong dissents accusing the judges in the majority of blatantly rewriting the law rather than applying the law as written.

The plain meaning of the law has not changed either. One can perhaps envision a situation where the contemporary understanding of words used in a statute has changed to such an extent that the law can no longer be applied in accordance with its original plain meaning. Such a situation would pose a challenge for judges and require a departure from the standard rules of statutory interpretation. However, that’s not the case with the laws involved here. The term “sex” is still defined by reference to the biological differences between males and females just as it was when these laws were first enacted (and, of course, long before then). Likewise, the terms “gender” and “sexual orientation” have not changed their meaning and remain distinct from “sex.”

What has changed quite dramatically since the original enactment of these laws is our cultural mores, specifically, in the context of these cases, attitudes toward LGBT issues. These changing attitudes must account for the outcomes in all four of the cases since there is no other plausible explanation. A remarkable concurring opinion in the Hivley case by Judge Richard Posner, widely regarded as one of the preeminent legal intellects of our time, is strikingly candid in acknowledging this.

Judge Posner’s theory of “judicial interpretive updating”

Judge Posner’s concurring opinion in Hivley begins by conceding that title VII was never meant to cover discrimination based on sexual orientation. He regards it as “well-nigh certain that homosexuality, male or female, did not figure in the minds of the legislators who enacted Title VII.” Nevertheless, he considers it appropriate for judges to “update” the original meaning of title VII based on evolving societal attitudes toward sex. In this regard, he insists that “statutory and constitutional provisions frequently are interpreted [by judges] on the basis of present need and understanding rather than original meaning.” He views this process, which he calls “judicial interpretive updating,” as appropriate when, due to shifts in the political and cultural environment, their original meaning no longer serves contemporary needs.

Judge Posner chides the majority opinion in Hivley for in effect engaging in the fiction that title VII covered sexual orientation discrimination when originally enacted in 1964. He argues that his approach is more “straightforward” than the majority’s:

“I would prefer to see us acknowledge openly that today we, who are judges rather than members of Congress, are imposing on a half-century-old statute a meaning of ‘sex discrimination’ that the Congress that enacted it would not have accepted. This is something courts do fairly frequently to avoid statutory obsolescence and concomitantly to avoid placing the entire burden of updating old statutes on the legislative branch.”

He added the caveat that judicial interpretive updating “presupposes a lengthy interval between enactment and (re)interpretation” of the statute’s original meaning. However, he offered no criteria for determining how long the interval must be.

Critique of judicial interpretive updating

Judge Posner certainly deserves high marks for honesty. He owns up to what is essentially legislating from the bench, something judges (particularly those regarded as “liberals”) are often accused of doing but rarely if ever admit. However, the substance of his position raises a host of issues.

First and foremost, by what constitutional authority can courts relieve Congress of its legislative “burden”? The role of the courts is to apply statutes (assuming their constitutionality) as Congress wrote them, not to effectively amend them by reinterpreting (i.e., changing) their stated meaning. Judge Posner’s concept of judicial interpretive updating thus represents a fundamental violation of the constitutional separation of powers between the legislative and judicial branches.

Second, even apart from the obvious constitutional problem, the notion of judicial interpretive updating is undemocratic and elitist. It is of course true that times change and laws need to change with them. But that’s what Congress is for. Why should judges consider themselves better positioned than the people’s elected representatives to decide when statutes have become obsolete and how they should be updated? Likewise, what makes judges think that Congress wants to share its legislative burden with them? The latter question is particularly relevant to the statutes discussed above; legislative efforts to amend them to cover gender identity and sexual orientation have frequently been attempted but never succeeded. It is noteworthy in this regard that each of the decisions featured here resulted from a test case sponsored by interest groups seeking to achieve through litigation policy outcomes that they had thus far been unable to obtain through legislative lobbying.

Third, decisions such as these are responsible for the increasing politicization of the federal judiciary in recent times, a development generally bemoaned by those of all ideological stripes. However,  politicization is an inevitable consequence when judges assume the inherently political role of deciding when and how statutes need to change. If judges are to do this, the politicians who appoint them will naturally favor nominees whom they believe will act in accordance with their (the politicians’) political preferences.

Finally, as Judge Posner’s opinion noted, his theory of judicial interpretive updating of statutes is similar to the “living Constitution” theory of constitutional interpretation.  Living constitutionalists view the Constitution as a malleable document whose meaning can be revised over time by judges in order to keep pace with evolving societal values and norms. (This theory and the competing “originalism” approach to constitutional interpretation are discussed in more detail here.) The living Constitution theory is subject to the same criticisms as Judge Posner’s judicial interpretive updating. Interestingly, a number of judges and other legal experts openly embrace “judicial interpretive updating” (in the form of living constitutionalism) when it comes to constitutional adjudication. However, Judge Posner is alone (as far as I know) in openly acknowledging and supporting this approach when it comes to interpreting statutes.

[1] Title IX and its implementing regulations allow educational institutions to maintain separate living facilities for the different sexes as well as separate toilet, locker room, and shower facilities on the basis of sex so long as the sex-segregated facilities are comparable. They permit sex-segregation in a number of other situations as well.

[2] The Supreme Court issued a stay to prevent enforcement of the Grimm decision. It later sent the case back to the lower courts without deciding the merits after the Trump administration rescinded guidance issued by the Obama administration on which the decision was largely based.

[3] The 2013 edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-5) defines “gender dysphoria” as “a medical condition characterized by clinically significant distress caused by incongruence between a person’s gender identity and the person’s birth-assigned sex.” Before 2013, the condition was known as “gender identity disorder” and that term is still sometimes used. However, the change in terminology was made in order to remove the stigma associated with the former term by getting away from the now disfavored view that transgenderism is a form of mental illness.

 

Two prominent but sharply contrasting approaches to interpreting the Constitution are “originalism” and the “living Constitution.” Debate over these competing approaches is, to a large extent, the stuff of arcane legal theory. However, the choice between them can produce strikingly different outcomes. In turn, which approach prevails can determine whether some of the most controversial and politically-charged issues facing our Nation today are resolved through democratic processes or by judicial edict.

Basics of the controversy

Both originalism and living constitutionalism involve considerable nuance and can be variously defined. At the risk of oversimplifying, originalists seek to interpret and apply constitutional provisions in accordance with the generally understood meaning of their language at the time the provisions were adopted. They view the Constitution as a document whose provisions, as thus understood, are enduring law and can be changed only by formal amendment. By contrast, living constitutionalists tend to view the Constitution as a malleable document whose meaning can change over time, without amendment, in order to accommodate evolving societal values, norms and needs. Both approaches are within the “mainstream” of contemporary legal thought; each has its share of distinguished supporters and critics. For example, the late Justice Scalia was an outspoken originalist while Justice Breyer is a leading proponent of the living Constitution. The two justices frequently debated each other on this topic.[1]

A brief history

The originalism versus living Constitution controversy arose in the early 20th Century. Until then, judges and other legal experts took for granted that originalism was the only appropriate method of constitutional interpretation. The living Constitution movement took hold in the 1930’s to counter what were regarded as overly rigid originalist Supreme Court decisions that nullified New Deal legislation. The early living constitutionalists advocated greater judicial flexibility and deference to Congress when assessing the constitutionality of laws enacted during that era, which greatly expanded federal powers. Living constitutionalism thus started out as an effort to restrain judges from impeding the democratic process of legislating. Ironically, it has come to be used in the subsequent Warren Court era and more recently to justify the judicial recognition of new constitutional rights that frequently superseded legislative enactments. Originalism has staged a comeback largely in reaction to this more recent form of living constitutionalism.

Recent living Constitution applications: Creating new constitutional rights

The current approach to living constitutionalism is exemplified by a series of Supreme Court decisions in recent decades that established constitutional rights not specifically enumerated in the document itself and previously unrecognized by the courts. The first case in the series was Griswold v. Connecticut. This 1965 decision discovered a constitutional “right to privacy” that was violated by a state statute prohibiting the sale of contraceptives to married couples.  A 1972 decision, Eisenstadt v. Hodges, extended this privacy right to nullify prohibitions on selling contraceptives to unmarried couples. One year later came the Supreme Court’s landmark decision in Roe v. Wade establishing a constitutional right to abortion. A 2003 decision, Lawrence v. Texas, invalidated a statute that prohibited private sexual conduct between same-sex adults.  Most recently, in Obergefell v. Hodges the Court found a constitutional right to same-sex marriage.[2]

The above decisions have two things in common. First, whatever one thinks of their outcomes, their legal rationales are less than compelling. The most nebulous, Griswold, in effect created its constitutional right to privacy literally out of thin air, famously observing that such a right was implied in “penumbras, formed by emanations from” other provisions in the Constitution. The rationale of Roe v. Wade has been roundly criticized by legal experts on both sides of the abortion controversy, including such staunch pro-choice figures as Ruth Bader Ginsburg, and had to be reworked by the Court several decades later. Justice Kennedy’s majority opinion in Obergefell is an eloquent paean to the importance of marriage and human dignity but lacks a coherent legal rationale for revising the concept of marriage that had prevailed for thousands of years.

Second, most of these decisions short-circuited democratic processes that were actively addressing the issues they involved. Banning the sale of contraceptives was largely a non-issue by the time of the Supreme Court decisions on this subject; hardly any States still had such prohibitions. The dissent in Griswold described the statute involved there as “an uncommonly silly law.” Same-sex marriage was under active consideration across the Nation and had been legalized by 37 States at the time Obergefell ended the debate. Many aspects of abortion rights, including the validity of Roe v. Wade, remain subject to intense controversy today.

Which approach is better?

No single interpretive method can consistently produce definitive answers with mathematical precision, particularly in cases where the constitutional issues are debatable enough to reach the Supreme Court. Many such cases involve provisions that lack a readily ascertainable original meaning capable of producing a clear answer.[3] However, where there is a reasonable choice to be made between originalism and living constitutionalism, I’d submit that originalism is the sounder approach. There are a number of reasons for this as outlined below.

The Constitution’s meaning must be anchored in its text. If the words don’t change, how can their meaning? Like other sources of written law (e.g., statutes), the Constitution’s meaning must be based on its text. Obviously the Constitution is not a “living” document in the sense that its language “evolves” on its own. Unless amended, the words of the Constitution say today what they said at the time of their original adoption. This includes constitutional provisions that might be considered anachronistic or objectionable by contemporary standards. To cite two examples:

• The Constitution limits presidential eligibility to U.S. citizens at birth, a restriction that could be labeled “xenophobic” today.
• It provides for presidential election through the electoral college system rather than by nationwide popular vote, a system many view as undemocratic.

Yet no one would argue that these provisions no longer mean what they say or have ceased to apply according to their original terms.[4] It’s true that many other constitutional provisions are written in much broader terms whose meaning is not self-evident from the text, such as protections from “unreasonable” searches and seizures and guarantees of “due process” and “the equal protection of the laws.” But even these broad terms have ascertainable original meanings that can often (though not always) inform their application to particular situations. For example, the basic tenets underlying the constitutional protection against unreasonable searches and seizures are enduring and readily translatable to contemporary technologies and evidence-gathering techniques that were unknown to the framers.  When an original meaning can be ascertained, jettisoning that meaning without a change in the text necessarily amounts to a de facto constitutional amendment. (A similar problem has developed with regard to statutory interpretation as some courts “reinterpret” federal statutes to alter their original plain meaning. This issue is discussed in a separate post.)

Evolution of our law relies mainly on legislation, not constitutional interpretation. Opponents of originalism view it as too inflexible to keep up with contemporary needs, norms and values. It’s true that the process of amending the Constitution is very demanding; the framers did not want it to be easy. However, constitutional change is not the primary means by which our legal system evolves to keep up with the times. The Constitution is, of course, the “supreme law of the land” but it is not the primary source of our law. Federal and State statutes as well as local ordinances enacted by our elected representatives constitute the main body of American law. These legislative enactments evolve continually. New legal rights and obligations are added, modified or otherwise refined all the time. Indeed, federal statutes regularly flesh out constitutional rights. Section 5 of the Fourteenth Amendment explicitly authorizes Congress to enforce its guarantees of due process and equal protection. Congress has done just that through the enactment of many civil rights acts dealing with a variety of subjects. State and local laws often confer rights and protections that go well beyond established constitutional guarantees. In short, the development of our law rarely needs to rely on constitutional amendment.

An evolving Constitution can decrease as well as enhance existing rights. Living constitutionalists seem to regard the “evolution” of the Constitution’s meaning as a linear progression in which constitutional rights and protections only expand in response to societal changes. However, this not necessarily true. Constitutional rights can potentially come into competition with each other so that enlarging the rights of some individuals or groups diminishes the rights of others. This is not just an abstract possibility. Ominous trends in our society today demonstrate significant hostility toward what have long been considered fundamental constitutional rights. For example, many institutions of higher education are engaged in efforts to suppress free speech that some might find offensive or to limit due process protections for students accused of sexual misconduct. Thus, a living malleable Constitution whose meaning evolves to mirror societal trends can change constitutional rights for the better or for the worse.

The people’s representatives rather than unelected judges should decide when and how the Constitution needs to change to accommodate societal and cultural change. Obviously our legal system needs to evolve in response to changes in societal norms and values as well as countless other changed circumstances. In the final analysis, the key difference between originalists and living constitutionalists comes down to the question of who gets to decide when and how such changes should occur. Originalists favor leaving this decision-making to our democratic processes through the enactment and revision of legislation as well as occasional constitutional amendment if need be. Living constitutionalists seem comfortable assigning this role to judges through reinterpretation of the Constitution. But decisions about when and how shifts in societal and cultural mores justify changes to our law necessarily call for political and value judgments. Leaving this function to judges is undemocratic and tends to undermine public confidence in the courts. A good example is Obergefell, where a subject of intense national political debate was taken out of the hands of the people by the vote of a single jurist.

Of course judges are not expected (nor are they well equipped) to reflect popular opinion. Indeed, it is their responsibility to enforce constitutional rights and protections even where doing so is politically unpopular. This system works well when such rights and protections are firmly rooted in the Constitution. However, it breaks down when the asserted rights are based largely on multifaceted and controversial value judgments lacking a firm foundation in constitutional law that can be clearly articulated in judicial opinions.

Conclusion

Originalism is no magic bullet for deciding issues of constitutional interpretation. Despite its limitations, however, originalism furthers our democratic principles and promotes public confidence in the rule of law. By contrast, living constitutionalism, as advocated today, serves essentially as a justification for unelected judges to override our democratic processes and impose their policy choices on the citizenry. As such, it is deeply flawed in concept. If the living Constitution approach has any legitimate application, it is in its initial formulation of according heightened judicial deference to the judgments of the people as expressed in legislation.[5] Thus, originalism, tempered by substantial deference to legislative judgements, should be followed whenever practical in constitutional adjudication. Also, judicial nominees should be pressed in their confirmation hearings on whether they favor the originalist or living Constitution approach. Those who express a preference for the latter should be regarded with great skepticism.

[1] An illustration of the split among the justices between originalists and living constitutionalists is the Court’s recent decision in NLRB v. Canning concerning the authority of the president to make recess appointments.

[2] The next front may be transgender rights, spearheaded by efforts to redefine traditional concepts of sex from biological fact to gender identity preference. The Supreme Court was poised to decide a major case on this subject this year but remanded the case to the lower courts without a decision on the merits. The case likely will reemerge as a constitutional issue.

[3] The Supreme Court’s 5-4 decision in District of Columbia v. Heller on whether the Second Amendment confers an individual right to own firearms is an example. The justices disagreed sharply both on how the constitutional language itself should be read and on its original meaning. Another example is Brown v. Board of Education. On the issue of whether the Fourteenth Amendment’s Equal Protection Clause was originally understood to outlaw all forms of racial segregation, the Court found the history “inconclusive.” It held on other grounds that allegedly “separate but equal” segregated public schools were unconstitutional. Legal experts are still debating whether an originalist approach to interpreting the Fourteenth Amendment would produce the result in Brown.

[4] Some efforts are underway through a proposed interstate compact to effectively nullify the State-based electoral college process and elect the president by nationwide popular vote. However, these efforts are unlikely to garner enough political support to be implemented and would pose major constitutional issues even if they did.

[5] Arizona State Legislature v. Arizona Independent Redistricting Commission is an example of a decision in which this initial form of living constitutionalism prevailed over a perhaps overly rigid originalist approach.

The latest “bombshell” news regarding President Trump and the Russia investigation is a report, based on leaks from anonymous officials, that special counsel Robert Mueller is now “investigating” Trump for possible obstruction of justice. This is hardly surprising. Allegations of obstruction by Trump are rampant and fall squarely within Mueller’s responsibility. He couldn’t very well simply ignore them. Moreover, there are some factual issues that need to be tied down.[1] But does the investigation pose real danger for Trump? That probably depends on him. Trump likely has nothing to fear from the underlying issues Mueller is investigating. On the other hand, Trump’s conduct as the investigation proceeds could very well bring him down.

Presumably, the two issues Mueller is looking at regarding Trump are possible collusion with the Russians over their election meddling and obstruction of justice. Based on an objective analysis of what’s publicly known so far, particularly former FBI director Comey’s testimony before the Senate Select Committee on Intelligence, there appears to be no basis for criminal charges on either issue, assuming Trump could be charged.[2] Nor are there any credible grounds for impeachment.

Evidently there is not now and never has been anything to the Trump-Russia collusion issue. The cascade of leaks concerning the broad Russia investigation hint that it now focuses on contacts between Trump associates and the Russians that have nothing to do with election-meddling. Even Trump’s opponents seem to have largely abandoned the election collusion issue, concentrating instead on the issue of possible obstruction of justice from Trump’s interactions with Comey.

With regard to the obstruction issue, Comey’s testimony before the Intelligence Committee confirms that Trump repeatedly violated norms of presidential behavior and then lied about it. However, what Comey presented falls well short of making a case for obstruction of justice either on the facts or the law. Mueller probably already recognizes this. Comey reportedly consulted with Mueller in advance of his testimony. It’s hard to believe that Mueller would permit Comey to testify about his interactions with Trump at a public congressional hearing if Mueller thought this subject would be a significant part of his investigation. Also, if Mueller anticipated that the Trump-Comey interactions would be important to the investigation, he might well have declined to serve as special counsel given his close friendship with Comey. While this friendship would not be legally disqualifying, it might present a serious appearance problem for a straight arrow like Mueller.

Mueller’s investigation likely will drag on for a long time and veer off into secondary issues, as special counsel investigations typically do. No doubt it will be a significant distraction for the Trump administration at the least, and it could even lead to charges of one kind or another against persons associated with Trump. However, barring the discovery of striking new evidence, Mueller’s investigation is unlikely to pose any legal or dire political threat to Trump himself—if Trump allows it to run its course and if he cooperates honestly with it.

The problem for Trump is that these are very big “ifs.” Trump has repeatedly proven himself to be a master practitioner of foolish and self-defeating behavior. He’s already started down this road with regard to the Mueller investigation, lashing out at Deputy Attorney General Rosenstein and Mueller. His surrogates are actively challenging Mueller’s objectivity. If Trump continues these tactics, and particularly if he escalates them by firing Mueller and other Justice Department officials left and right, he will likely encounter widespread public outrage and, consequently, existential political problems from both Democrats and Republicans. Clearly, the best strategy for Trump in terms of his own self-interest is to stay out of the way of the investigation as much as possible, say as little as possible about it, and cooperate forthrightly to the extent he must get involved. Given his temperament, all of these things probably represent major challenges for Trump.

The area of greatest legal risk for Trump is the specter of testifying under oath in a deposition before Mueller, or even more dangerously, before a grand jury. A face-off between Trump and Mueller’s forces in such a setting would be a potential disaster for Trump. Trump is an impulsive person whose default option seems to be lying his way out of adversarial situations. He apparently lacks the personal discipline to restrain himself or the sense to take advice from those who seek to restrain him.  If called upon to testify, Trump will need to act completely against all of his instincts and scrupulously adhere to the absolute truth (and in the process contradict many of his prior apparently false statements). This may be an insurmountable challenge for him. Trump has offered to provide sworn testimony in the investigation. He might want to reconsider and offer testimony only if specifically asked. If he is asked and complies, it’s hard to see how this would end well for him.

[1] For example, other reported leaks from unnamed officials allege that Trump requested Director of National Intelligence Daniel Coats and National Security Agency Director Mike Rogers to ask former FBI Director Comey to end the Michael Flynn false statements investigation. At a recent congressional hearing, the two officials declined to discuss their conversations with Trump but testified that they did not feel pressured by him.

[2] The Justice Department has long maintained that a sitting president cannot be subjected to criminal prosecution.

Former FBI Director Comey’s much ballyhooed written statement and oral testimony before the Senate Select Committee on Intelligence did little to shift the intensely partisan battle lines of the ongoing Trump wars. In its aftermath, Trump and his supporters claimed complete “vindication” while the anti-Trump forces asserted that Comey’s testimony bolstered their case that the president obstructed justice. Both sides cherry-picked his testimony and occasionally grasped at straws to re-enforce their preferred narratives. This post is an attempt to offer a more dispassionate assessment.

By way of summary, I’d suggest the following key takeaways:

• Comey’s version of the facts (as distinguished from some other aspects of his testimony) is entirely credible.
• Many of Trump’s interactions with Comey violated important norms of presidential behavior but they fell within his constitutional authority as president.
• The facts Comey presented do not show obstruction of justice by Trump either as to Michael Flynn or the broader Russia investigation.
• Comey’s testimony supports the conclusion that Trump was not complicit in Russian election meddling.

By way of an overall conclusion, I’d submit that the time has come to take a break from hyper-politicizing the Russia investigation. Special counsel Mueller should be trusted to do his job and the appropriate authorities should concentrate on pursuing the important counterintelligence aspects of the investigation free of political distractions.

Comey’s factual testimony is highly credible.

The narrative of Comey-Trump interactions comes down mainly to a “he said, he said” contest. On one side is Comey, a seasoned investigator of largely unquestioned integrity (albeit questionable judgment) who testified under oath based on contemporaneously recorded notes about his conversations with Trump. On the other side is Trump, a serial fabulist who regularly tells verifiable falsehoods. Given this, the credibility contest between Trump and Comey is not a close call. Tellingly, there was little push-back against Comey’s factual presentation during the hearing or in the post-hearing analyses. Trump and his attorney have challenged Comey’s veracity but they offered no specific rebuttal. While there is every reason to credit Comey’s version of the facts, some of his interpretations of the facts and other assertions are more debatable.

Trump’s interactions with Comey violated presidential norms but were consistent with his constitutional authority.

Trump’s dealings with Comey supply further evidence, if any was needed, that he is either ignorant of or indifferent to the norms of presidential behavior. Enforcement of the criminal law in our democracy is supposed to be above politics. For this reason, we expect the president to deal with the FBI director on more of an arm’s-length basis than he would with other executive branch officials. Based on these expectations, Trump critics and supporters generally agree that he acted inappropriately in demanding “loyalty” from Comey, asking Comey to drop his investigation of Michael Flynn’s misstatements, and pressuring Comey to publicly announce that Trump was not the target of a criminal investigation. Moreover, it is clear from Comey’s testimony that Trump has repeatedly lied about what transpired between them.

The damning picture of Trump that emerges from Comey’s testimony hardly amounts to vindication, but was his conduct illegal? Trump violated important principles that reflect generally accepted notions of how our government should work. However, these principles are not legal mandates. As a matter of constitutional law, the president has just as much supervisory authority over the FBI director as any other executive branch subordinate. Comey acknowledged this in his testimony:

“I’m not a legal scholar. So smarter people answer this better, but I think as a legal matter, the president is the head of the executive branch and could direct, in theory, we have important norms against this, but direct that anybody be investigated or anybody not be investigated. I think he has the legal authority because all of us ultimately report in the executive branch up to the president.”

Alan Dershowitz, a retired Harvard law professor who is a legal scholar and certainly no Trump fan, confirms this point. Dershowitz notes that in the exercise of their constitutional authority, presidents can and occasionally have acted to stop, preempt, or otherwise impede potential or ongoing criminal investigations for policy reasons, equitable reasons, or other reasons. Among the many ways they can exercise this authority is by ordering an FBI director to end an investigation or, ultimately, by exercising their indisputable constitutional authority to pardon individuals who are targets or potential targets of an investigation. Dershowitz maintains that a president’s exercise of this broad constitutional authority can never constitute obstruction of justice.[1] This may be an overstatement, but there is no basis to conclude that Trump’s actions here are beyond any obvious boundaries to his constitutional authority.

The same constitutional authority gives the president essentially unfettered discretion to fire the FBI director. Comey recognized this as well in his testimony:

“When I was appointed FBI director in 2013, I understood that I served at the pleasure of the president. Even though I was appointed to a 10-year term, which Congress created in order to underscore the importance of the FBI being outside of politics and independent, I understood that I could be fired by a president for any reason, or for no reason at all.”[2]

The facts outlined in Comey’s testimony provide no reasonable basis to charge Trump with obstruction of justice.

Even apart from the foregoing constitutional considerations, it’s apparent from the facts Comey laid out that Trump’s actions would not amount to obstruction of justice. The Comey hearing focused on two potential areas of obstruction—one involving Michael Flynn and the other relating to the broader Russia investigation.

Michael Flynn.  On February 13, 2017, Trump reluctantly fired Flynn as his National Security Advisor for allegedly misrepresenting to Vice President Pence (and perhaps others) a telephone conversation he had with the Russian ambassador about sanctions the Obama administration had imposed on Russia. According to Comey’s written statement, Trump asked him to stay alone following an oval office meeting the very next day (February 14) to talk about Flynn. After Trump initially complained about leaks, Comey described the key part of their conversation as follows:

“The President then returned to the topic of Mike Flynn, saying ‘He is a good guy and has been through a lot.’ He repeated that Flynn hadn’t done anything wrong on his calls with the Russians, but had misled the Vice President. He then said, ‘I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go.’ . . .”

Comey went on to say that he understood Trump to be asking only that the FBI drop its investigation of Flynn regarding false statements; he did not interpret the request as encompassing the broader Russia investigation. Elaborating on this incident in his oral testimony, Comey said that he took Trump’s words as a direction rather than a request but he did not comply with it. Comey also testified that Trump never brought up the Flynn matter again with him and that he had no contact from other executive branch officials about dropping the Flynn investigation.

The myriad federal criminal prohibitions against obstruction of justice generally require proof that the accused acted with “corrupt” intent. It’s hard to see how an objective person could find any “corrupt” intent here, much less proof of it beyond reasonable doubt. Regardless of Comey’s impression, Trump’s words clearly fell short of a direction. The only fair reading of what Trump actually said is that he was appealing to Comey to exercise discretion to drop the Flynn investigation. Other factors support the conclusion that Trump meant nothing more than this. Trump never followed up with Comey although he surely knew that the Flynn investigation had not been dropped. Also, there is nothing in Trump’s variegated explanations for why he fired Comey several months later that has anything to do with Flynn. Finally, what Comey did (and, importantly, did not do) following the February 14 meeting contradicts the notion that he had received a presidential directive, much less an illegal one. Comey testified that he discussed the incident with his FBI leadership team,[3] documented it in a memo (as was his practice for all conversations with Trump), and moved on with the Flynn investigation. He did not report this incident to his superiors at the Justice Department, [4] threaten to resign, or notify Congress about it.

In sum, the most plausible interpretation of the facts Comey presented is that Trump simply thought Flynn had suffered enough by his firing and public disgrace and asked Comey to consider giving him a break, and that Comey simply declined the request.

Broader Russia investigation. Comey offered no facts whatever to suggest that Trump sought to obstruct the overall Russia investigation. He testified that the only thing Trump asked of him on this subject was to affirm publicly what Comey had repeatedly told Trump in private—that Trump was not a target of the investigation. According to Comey, Trump never tried to stop or impede the investigation. On the contrary, according to Comey’s written statement: “The President went on to say that if there were some ‘satellite’ associates of his who did something wrong, it would be good to find that out . . .”

In the opening remarks of his oral testimony, Comey did assert his belief that he was fired because of the Russia investigation. However, he formed this belief only after he was fired and attributed it entirely to press accounts rather than anything that transpired between the two men:

“[I]t confused me when I saw on television the president saying that he actually fired me because of the Russia investigation and learned, again, from the media that he was telling, privately, other parties that my firing had relieved great pressure on the Russia investigation.”

When asked by Senator Feinstein to elaborate on why he thought he was fired, Comey responded:

“Guess I don’t know for sure. I believe the — I take the president at his word, that I was fired because of the Russia investigation. Something about the way I was conducting it, the president felt, created pressure on him that he wanted to relieve.”

Putting this response together with the rest of his testimony, the only fair inference is that if something about Comey’s conduct of the Russia investigation did in fact lead to his firing, that something must have been his refusal to publicly acknowledge that Trump was not a target. Firing Comey for this reason might be inappropriate but it has nothing to do with obstructing the investigation. In any event, it’s not clear how Trump could have believed that firing Comey would stop the Russia investigation. Comey was the public face of the investigation. However, the investigation was being conducted by others within the FBI and Deputy Attorney General Rosenstein, not Comey, was ultimately in control of it.

Comey’s testimony reinforces the conclusion that Trump did not collude with the Russians in their election meddling.

The major takeaway from the testimony for Trump supporters was Comey’s public acknowledgement that Trump was not a target of the Russia investigation during his tenure as FBI director. Actually, it was becoming increasingly apparent even before Comey’s testimony that there was no evidence of election-related collusion between Trump and the Russians.[5] There may well be other interactions between Russians and persons associated in some way with Trump that are inappropriate or even illegal. However, nothing suggesting collusion by anyone over Russian election meddling has come to light. It’s reasonable to assume that if there was any specific indication of this, it would have leaked by now. As several senators wryly noted during the Comey hearing, the only information about the investigation that hadn’t leaked is that Trump was not a target.

The collusion narrative seems to have been from the outset largely a product of media hype based on innuendo from selective leaks by anonymous persons with literally hidden agendas. In his testimony, Comey warned against reliance on these leaks. He described one major New York Times story based on such leaks as “almost entirely wrong” and added more generally: “There have been many, many stories purportedly based on classified information about — well, about lots of stuff, but especially about Russia, that are just dead wrong.” In any event, the many leaks offer no specific evidence of election-related collusion even if accepted at face value.

It’s time to depoliticize the Russia investigation.

One certainly can make the case that Donald Trump is temperamentally and substantively unsuited to be president. Many of his detractors are still in a state of denial over his election. They have consistently questioned his legitimacy and “resisted” his presidency. Disdain for Trump extends beyond the strident left. Remarkably, a recent poll found that over 40 percent of voters want to see Trump impeached even if constitutional grounds for impeachment do not exist. The Russia investigation has served as the primary outlet for this “Trump derangement syndrome” in recent months. In his own deranged way, Trump consistently feeds the flames by his outrageous comments and ridiculous overreactions to anything he regards as a criticism or a threat.

Nevertheless, Trump is the duly elected president. Efforts to oust him based on fact-free accusations of collusion with the Russians or far-fetched theories of obstruction of justice do an injustice not only to Trump and the voters who elected him but also, in the long run, to our democracy. The obsession over this by Trump’s critics in the media and elsewhere further polarizes our already hyper-partisan politics. For Trump’s supporters, it adds credence to his claim that he is the victim of a “witch hunt” constructed from “fake news.” Obsession over Trump and the Russia investigation also has largely taken over our national political discourse, pushing into the background many important policy issues. With these results, the Russians have succeeded no doubt beyond their wildest dreams in harming our democracy. Unfortunately, both Trump and his opponents seem to be doing everything possible to aid the Russians in these efforts.

Finally, the extreme politicization of the Trump-related aspects of the Russia investigation threatens to divert attention from its vital counterintelligence aspects. These include learning how the Russians were able to do what they did in the 2016 election, what they still do and are capable of doing, and what countermeasures we can take to prevent them (or other malevolent actors) from interfering in future elections. (It’s even unclear who is now responsible for these aspects of the Russia investigation in light of Mueller’s appointment.)

Trump’s critics demanded a special counsel to investigate the allegations against him and got an exceptionally well qualified one in Mueller. They should now let him do his job unencumbered by continuing political sideshows. If there turns out to be anything to the allegations against Trump, they can and should rely on Mueller find it. Likewise, Trump and his allies should stop their ridiculous and self-defeating attacks on Mueller. If Trump is innocent of wrongdoing, he should welcome the opportunity to obtain true “vindication” from Mueller’s investigation.

[1] A president cannot, of course, instruct subordinates to take actions that would in themselves be illegal—e.g., commit perjury, destroy evidence, bribe witnesses. Also, presidents may pay a political price for the legitimate exercise of their constitutional authority (e.g., President Ford’s pardon of Nixon).

[2] Comey is correct that the statutory 10-year term was enacted in part to give the FBI director some buffer from politics. However, its main purpose was to rein in the FBI director, specifically to prevent another J. Edgar Hoover. Hoover served as FBI director for almost 50 years before he died in office. He had become an essentially out-of-control and unaccountable law unto himself. Most Americans would have welcomed greater presidential supervision over Hoover.

[3] It would be useful to know the leadership team’s impressions from this discussion. Mueller will probably follow up on this.

[4] Comey’s stated reasons for not reporting this to his superiors if he actually regarded it as an illegal order are exceptionally weak. He testified that he was convinced Attorney General Sessions would soon recuse himself from the Russia investigation and the acting deputy attorney general was a short-timer. But these officials were still his superiors at the time and Comey surely had a duty to report an illegal order by the president to someone above him. Also, there is no indication that he reported this incident to his new superior at Justice, Deputy Attorney General Rosenstein, when he came on board or when he assumed responsibility for the Russia investigation.

[5] We recently learned that the FBI investigation into possible collusion between the Trump campaign and the Russians was initiated last June in response to a referral from former CIA Director John Brennan. Brennan testified at a May congressional hearing that he had become aware of many contacts between Trump associates and Russians and was concerned that the Russians might be attempting to enlist the former “wittingly or unwittingly” to assist in their election meddling. Brennan acknowledged that he had no specific reason to believe this was actually happening.

 

Senate Democrats, led by Chuck Schumer, are poised to filibuster Judge Neil Gorsuch’s nomination to the Supreme Court. If successful, the filibuster will likely prompt Republicans to “go nuclear” and change the rules to permit confirmation of Supreme Court nominees by a simple majority vote. (Technically, the rules do not actually change but are “reinterpreted” by a new precedent.) This ugly melodrama is expected to play out over the coming week.

The proposed filibuster has little to do with the merits of the nomination. Gorsuch is an outstanding nominee who would be easily confirmed in less hyper-partisan times. He is exceptionally well qualified by intellect, character, experience and judicial temperament. The consensus among objective observers is that he performed well at his highly adversarial confirmation hearing. While quite conservative, Gorsuch is easily within the legal mainstream. Democrats are concerned that he won’t support policy results they favor when deciding cases. In this regard, a remarkable op-ed by Senator Kamala Harris condemns Gorsuch as someone who “has consistently valued narrow legalisms over real lives.” But the fundamental duty of a judge is, of course, to decide legal issues based on the relevant “legalisms” rather than preferred policy results. In short, there is no principled reason to oppose Gorsuch’s confirmation much less filibuster it.

In addition to being unprincipled, the proposed filibuster seems to go against Democrats’ long-term strategic interests. If it forces a rules change, they will have no leverage left and thereby make themselves irrelevant in the quite likely event that another Supreme Court vacancy arises during the next four years.[1] While confirming Gorsuch would only restore the ideological balance on the Court that existed prior to Scalia’s death, a future vacancy could well tee up a profound shift in the Court’s ideological balance. While Schumer evidently has no regard for Senate traditions, he may be hoping that at least a few Republican institutionalists do. It would take only three Republican no votes to defeat the rules change. However, Republicans are surely correct in surmising that if a nominee as worthy as Gorsuch can’t get a fair shake from Democrats, no future Trump nominee could either.[2] Thus, leaving the filibuster in place would probably guarantee no Supreme Court appointments for years to come. This obviously is not a viable alternative for Republicans, nor would it serve the public interest.

Given the above, my guess is that most Democrats (Schumer included) don’t honestly believe a Gorsuch filibuster is the right thing to do. Nevertheless, they apparently can’t resist the pressure to indulge the extreme anger on the left directed at all things Trump combined with more specific outrage and thirst for revenge over Republicans’ refusal to consider former President Obama’s nomination of Merrick Garland to fill the current vacancy.[3]

With respect to Trump, Schumer and his Democratic colleagues have done everything possible to placate the “resistance” by impeding his presidency and casting doubt on its legitimacy. An example in the present context is Schumer’s ludicrous argument that the Gorsuch nomination should be put on hold as long as the “big gray cloud of an FBI investigation hangs over the presidency.” For sheer disingenuous nonsense, this rivals Mitch McConnell’s contention that the Senate should not consider Supreme Court nominations made in the last year of a president’s term.

Outrage over Republicans’ refusal to take up the Garland nomination is more understandable. It is widely claimed that the Supreme Court seat now destined for Gorsuch was “stolen” from Garland, who is the only rightful heir to it. True, McConnell’s stonewalling of Garland was outrageous and sank politicization of the judicial confirmation process to a new low. Taking Garland’s mistreatment out on Gorsuch might satisfy some primal urge, but it is unworthy of our elected leaders. Former First Lady Michelle Obama said just last year that the Democratic motto should be “when they go low we go high.” Apparently today’s Democratic mantra is “when they go low we go lower.” Anyway, the outrage over Garland is overplayed for several specific reasons.

For one thing, the argument before the election was that Garland deserved a hearing and a vote, not that he was entitled to confirmation. Thus, the Supreme Court seat itself was never “stolen” from him. For another thing, it’s clear from the Democrats’ own words that, had the situation been reversed, a Democratic-controlled Senate would have refused to confirm a Republican president’s nominee to the Court in the final year of his term. The Democrats probably would have acted with more subtlety than McConnell by staging a hearing consisting of the usual political theater and then voting the nominee down. But the end result would be the same.

The Democrats’ tactics at Gorsuch’s confirmation hearing showcase this approach. Clearly they did not approach the hearing with open minds. Their main line of attack was asking Gorsuch questions designed to probe how he would rule in future cases–questions they knew he could not ethically answer–and then accusing him of evasiveness for not answering them.[4] A second line of attack was sheer demagoguery. They   asserted that Gorsuch’s opinions in past cases demonstrated overwhelming favoritism for corporate interests over the “little guy” but completely disregarded the legal merits of the cases. Most notably, in one specific example they repeatedly highlighted, the so-called “frozen trucker” case, Gorsuch’s reading of the applicable law was clearly correct.

Proponents of the “stolen seat” argument largely ignore one other major problem: it’s doubtful that Garland’s nomination would have survived even if Hillary Clinton had won. If elected, Clinton probably would have made her own choice, one she could count on to satisfy her promised “bunch of [liberal] litmus tests” for Supreme Court nominees. During the campaign, she avoided any commitment to stick with Garland and even hinted that she would choose someone else.  Moreover, leftist activists were never enthusiastic about Garland; they wanted someone younger, more reliably liberal, and probably not a white male. Certainly many of the activists now bemoaning Garland’s mistreatment would have pressured Clinton to pick someone else. They may even have welcomed McConnell’s stonewalling of Garland, confident that Clinton would win and replace him. No doubt their only genuine regret over McConnell’s tactic is not what he did but that, much to everyone’s surprise, it actually worked.

In any event, both parties have engaged in so much chicanery and hypocrisy over judicial nominees of late that their claims of outrage have by now lost all credibility. Virtually nothing said by either side can be taken at face value. It’s hard to believe that not long ago the Senate was able to confirm by overwhelming bipartisan majorities justices as ideologically diverse as Scalia and Ginsburg.

These are sad times for our democracy. Democrats and Republicans share the blame for the current race to the bottom on judicial confirmations. Who knows where it will end. The only sure thing is that with each new political abuse by one party and response in kind by the other, the Senate comes a step closer to dragging down with it the last branch of the Federal Government that still remains largely functional.

[1] Based on the Senate math for the 2018 mid-term elections (25 Democratic seats on the line versus only nine for Republicans), it is all but certain that Republicans will retain their Senate majority through 2020.

[2] Indeed, Schumer suggested even before the Gorsuch nomination that he was unlikely to support any Trump nominee to the Court.

[3] Interestingly, it seems that the fight against Gorsuch is being orchestrated by relatively small (albeit powerful) factions on the left and does not reflect a large grass-roots movement. According to polls, the effort to defeat Gorsuch is not resonating much with the public at large, including Democrats.

[4] All previous Supreme Court nominees for decades have steadfastly refused to answer such questions under a well-established and eminently sound principle known as the Ginsburg rule.

The so-called “frozen trucker” case, Transam Trucking, Inc. v. Administrative Review Board, featured prominently in last week’s confirmation hearing on Neil Gorsuch’s nomination to the Supreme Court. Democrats cited it repeatedly as evidence that Judge Gorsuch is inhumane and his rulings reflexively favor corporations over “the little guy.” One liberal pundit (evidently off his meds) described Gorsuch’s opinion in the case as an exercise in “almost Gothic cruelty.” However, I’d submit that the case actually illustrates three quite different points:

(1) as the old adage goes, “hard cases make bad law”;

(2) Gorsuch is, as advertised, a “textualist” who applies statutes based on what they say rather than what one might wish them to say; and

(3) Gorsuch has good reason to be skeptical of excessive judicial deference to executive agency legal interpretations.

The case concerned the driver (Alphonso Maddin) of a tractor-trailer rig who discovered after parking his rig on the side of a highway that the brakes on the trailer had become frozen due to subzero temperatures. Maddin notified the company of this problem and was told that a mechanic would be dispatched to fix the brakes. Maddin waited with the rig and eventually fell asleep. He awoke several hours later to discover that the heater in his truck cab was not working and he was becoming numb. When he called in for further instructions, a company supervisor ordered him not to abandon the trailer. He was told either to drag the trailer with its frozen brakes or to continue to stay put until help arrived. Notwithstanding this order and fearing for his safety, Maddin disconnected the truck from the trailer and drove off, leaving the trailer behind. When the mechanic finally arrived shortly thereafter, Maddin returned to the trailer and the brakes were repaired. However, the company later fired him for abandoning the trailer.

Maddin filed a complaint over his firing with the Labor Department’s Occupational Safety and Health Administration (OSHA). OSHA initially investigated and dismissed his complaint (a fact Gorsuch’s critics tend to ignore) but appellate levels within Labor eventually sided with Maddin. In a 2-1 ruling with Gorsuch dissenting, a Tenth Circuit panel upheld Labor’s decision in favor of Maddin.

The legal issue came down to whether Maddin’s firing violated a federal statute (49 U.S.C. 31105) making it unlawful for an employer to discharge an employee who

“refuses to operate a vehicle because . . . the employee has a reasonable apprehension of serious injury to the employee or the public because of the vehicle’s hazardous safety or security condition.”

While both the Labor Department and court majority rationales are somewhat muddled,[1] their bottom line conclusion seems to be that the company ordered Maddin to “operate” a vehicle by telling him to remain with the trailer and that Maddin refused to “operate” a vehicle by unhitching the trailer and driving off.

Based on the facts presented, the company’s firing of Maddin certainly seems extreme and unreasonable.[2] However, the relevant question is not whether the company was wrong but whether its actions violated the statute. On this point, Gorsuch’s dissenting opinion is much more persuasive.  Maddin was fired for abandoning the trailer instead of waiting with it by the road side. While his actions were prompted by genuine concern for his safety due to the malfunctioning heater, he did not “refuse to operate” a vehicle based on safety concerns. Just the opposite, he operated a vehicle based on safety concerns.

The only aspect of the case that could have involved the refusal to operate a vehicle was his failure to act on the supervisor’s suggestion that he “drag” the trailer with its frozen brakes. Clearly, however, he was not fired for this. Indeed, the company maintained in the litigation that this suggested option was “ridiculous” and even physically impossible to carry out. In any event, the supervisor also gave Maddin the option of staying put. The only order was not to abandon the trailer. Likewise, Maddin’s act of detaching the trailer obviously had no bearing on his firing. The company would have had the same (perhaps more) reason to fire him if  he had left the entire rig, truck and all, and simply walked away or hitched a ride with a passing motorist.

In short, the company’s decision to fire Maddin may have been wrong-headed and unjust but it did not violate the statute by any reasonable construction of its terms. Maybe Congress could enact a blanket prohibition against firing employees who refuse any order that could jeopardize their safety, but that’s certainly not the law involved here.

As noted at the outset, this case demonstrates the contrast between a judge like Gorsuch who applies statutes based on their actual language and judges like the majority here who are willing to distort statutory language (or to condone statute-distorting by bureaucrats) in order to support what they regard as a more “just” outcome. Most adherents to our democratic principles would prefer to leave the lawmaking to legislators rather than judges and bureaucrats.

Unsurprisingly, the questioning of Gorsuch on this case at his confirmation hearing (to the extent actual questions were embedded in the senatorial grandstanding) focused heavily on the truck driver’s plight: How would Gorsuch feel had he been in Maddin’s shoes? What would he have done? Isn’t it “absurd” not to find a way for the law to favor him? There was hardly any discussion of the substantive legal merits. Senators can afford to engage in such demagoguery and ignore the legal niceties. Fortunately for us all, judges cannot.

 

[1] Labor’s decision apparently was based primarily on the theory that Maddin’s call to the company about the frozen trailer brakes constituted “protected activity” under a whistle-blower provision of the same statute, which prohibits firing an employee for filing a “complaint” or initiating a “proceeding” over a safety “violation.” Even the court majority did not buy this theory. The whistle-blower provision clearly applies to complaints directed to regulatory authorities not calls to employers and, in any event, the mere fact that the brakes were frozen was not a “violation” of anything. For its part, the court majority opinion explores several different and less than coherent theories about how Maddin’s actions might constitute the refusal to “operate” a vehicle.

[2] It may be that other factors, such as Maddin’s possible negligence, influenced the company’s decision to fire him. According to the court’s opinion, the truck was virtually out of fuel at the time he pulled off the road because he had missed his designated refueling station.

 

https://www.nytimes.com/2017/03/13/opinion/understanding-the-angry-mob-that-gave-me-a-concussion.html?emc=eta1

This is an interesting op-ed by Professor Allison Stanger, who along with Charles Murray, was assaulted by rioting students at Middlebury College when Murray attempted to give a lecture there. Dr. Murray, a resident scholar at the American Enterprise Institute, is a conservative/ libertarian as well as a serious and thoughtful academic by any objective measure. However, he also has been a political lightning rod since publication of his 1994 book, The Bell Curve, which expressed highly controversial theories about race and intelligence. (Actually, Murray’s attempted lecture at Middlebury was not about this subject but focused on his much more recent book, Coming Apart (2012), which presciently forecast the decline in White working class America that we are now witnessing.)

The closing paragraphs of Professor Stanger’s op-ed are worth emphasizing:

“[W]hat the events at Middlebury made clear is that, regardless of political persuasion, Americans today are deeply susceptible to a renunciation of reason and celebration of ignorance. They know what they know without reading, discussing or engaging those who might disagree with them. People from both sides of the aisle reject calm logic, eager to embrace the alternative news that supports their prejudices.

“More broadly, our constitutional democracy will depend on whether Americans can relearn how to engage civilly with one another, something that is admittedly hard to do with a bullying president as a role model. But any other way forward would be antithetical to the very ideals of the university and of liberal democracy.”

Stanger is justified in pinning some of the blame for the sorry state of our civil discourse on Trump. However, liberals have their share of responsibility as well. Her op-ed notes, for example, that the Middlebury mob was apparently incited at least in part by the Southern Poverty Law Center’s description of Murray as an “extremist” and “white nationalist” who practices “racist pseudoscience.” It’s particularly unfortunate that an organization whose vital role is to expose real bigots and hate groups squanders its credibility on over-the-top political demagoguery like this.

In any event, it’s heartening that the Middlebury incident has been thoroughly condemned by a number of pundits on both the left and the right who evidently share Professor Stanger’s concerns.

 

In what may be the first positive act of his presidency, Donald Trump recently nominated Judge Neil Gorsuch to the Supreme Court. As the nomination moves forward, two things can be said with virtual certainty. First, barring a shocking revelation during the confirmation process, Gorsuch will be confirmed. Second, the confirmation process itself will be a largely substance-free exercise in political demagoguery having little relevance to his qualifications for the Court.

Judge Gorsuch appears exceptionally well suited for the Supreme Court in terms of his background, intellect and character. The Senate confirmed his nomination to the Tenth Circuit Court of Appeals with no opposition. While quite conservative, Gorsuch is well within the legal “mainstream.” He is seen by many as the second coming of the Justice he would replace, Antonin Scalia. However, he differs from Scalia in at least two significant respects. First, he has a much better judicial temperament. In this regard, he is closer to Chief Justice Roberts than Scalia. Second, he is more skeptical of extreme judicial deference to executive branch legal interpretations. This quality should be reassuring in the Trump era, particularly to Democrats who have suddenly discovered following the heady Obama years that untrammeled presidential discretion may not be such a good thing after all.

Three Possible Roads to Confirmation

Republicans are united in support of this outstanding nominee and they control the confirmation process. Therefore, the question is not whether Gorsuch will be confirmed but how. The how part depends on the Democrats. They could return to the pre-2000 bipartisan high road, they could follow the lower road of more recent times, or they could descend even further into the depths of partisanship.

The high road. Confirmation of a nominee with Gorsuch’s credentials would have been a slam-dunk in the far less politically polarized world that existed not too long ago. Until fairly recently, Senate confirmations followed the bipartisan principle that presidents should be accorded reasonable deference with respect to their Supreme Court and other judicial nominations provided that the nominees were substantively well qualified, ethically fit, and not too extreme in their judicial philosophy. With the notable exception of the Bork and Thomas debacles, this principle generally held up through the Clinton Administration. In recent decades, large bipartisan majorities confirmed Justices as ideologically diverse as Scalia (98-0), Kennedy (97-0), Souter (90-9), Ginsburg (96-3), and Breyer (87-9).

The lower road. Broad bipartisan support for well qualified nominees eroded during the George W. Bush and Obama Administrations. A number of Senators now found it acceptable to vote against highly credentialed nominees of impeccable character based solely on politics—i.e., opposition to the outcomes the nominees were deemed likely to reach in controversial cases. Four Justices were confirmed during this period but with substantial partisan opposition: Chief Justice John Roberts (78-22) as well as Associate Justices Alito (58-42), Sotomayor (68-31), and Kagan (63-37). Alito was confirmed after a failed filibuster attempt by a group of Democratic Senators that included Barack Obama, Joe Biden, Hillary Clinton, and Chuck Schumer. (After the Scalia vacancy arose, then-President Obama said he had come to regret his effort to filibuster Alito.) Politicization of the judiciary also spread to nominees for the lower federal courts during the George W. Bush and Obama years.

The even lower road. The opportunity certainly exists to continue the downward spiral in politicizing the federal judiciary. Senate Majority Leader Mitch McConnell set a new low with his transparently partisan refusal to consider Obama’s nomination of Judge Merrick Garland to fill the Scalia vacancy. Some Democrats now are responding in kind, threatening to mount a filibuster against Gorsuch or any other Republican Supreme Court nominee for only the second time in modern history. In effect, such an effort would signal their willingness, as Minority Leader Schumer has hinted, to keep the Supreme Court seat open for at least four years.

Key Arguments to Expect in the Confirmation Process

Substantive merits. Given Judge Gorsuch’s outstanding qualifications and barring the (unlikely) discovery of some major ethical or character flaw, it will be very hard for Democrats to credibly attack Judge Gorsuch on his merits. Nevertheless, attack they will. Some will portray Gorsuch as an inhumane extremist who is hostile to women, minorities, the environment, and most everything else that Americans hold dear. The usually sensible Senator Wyden offered a preview of this line of attack with his breathtakingly hyperbolic and ridiculous description of the Gorsuch nomination as “a breathtaking retreat from the notion that Americans have a fundamental right to Constitutional liberties.” Hardly anyone will take such statements seriously, including the Senators who make them. They are just another way of saying that Gorsuch, as a conservative judge, can’t be counted on to reach political outcomes favored by liberals in cases where a straightforward application of the law does not support them.

Independence. Another line of attack on Gorsuch is now emerging, spearheaded by Schumer and outlined in his recent New York Times op-ed. Schumer attempts to tar Gorsuch with President Trump’s ludicrous criticisms of the judiciary. He asserts that Trump’s asinine comments have somehow raised the bar for Gorsuch’s confirmation and placed a high burden on him to “demonstrate” his independence. There is nothing in Gorsuch’s background to raise the slightest issue regarding his judicial independence or integrity. However, Schumer insists that Gorsuch can meet his burden only by answering a series of questions about specific issues involving past and potential future Supreme Court cases—e.g., has Trump abused his power, would a “Muslim ban” be constitutional, was Citizens United correctly decided, how does the Constitution’s “Emoluments Clause” apply? This line of attack is wholly disingenuous. As Schumer well knows, no responsible nominee would answer questions like these in a confirmation hearing and thereby prejudice his or her future consideration of them as a Justice. Indeed, to answer such questions for a body of politicians considering one’s nomination would clearly demonstrate a fundamental lack of judicial independence. Notably, Justice Ginsburg refused to respond to such questions at her confirmation hearing in 1993. Her stance became known as “the Ginsburg rule” and has been followed by every subsequent Supreme Court nominee.

The stolen seat. Given the weakness of the above lines of attack, the main assault against Gorsuch’s confirmation may come in the form of the “stolen seat” argument. The argument here is that the vacant seat created by Scalia’s death rightfully belongs to the Democrats, and specifically Judge Garland, but was “stolen” from them when McConnell refused to grant Garland a confirmation hearing. One early proponent of this argument, Senator Merkley, announced before Gorsuch was nominated that he would filibuster any Trump nominee who was not Garland. The stolen seat argument has two advantages. First, it sidesteps the problem of Gorsuch’s obvious qualifications since it applies as a matter of “principle” regardless of who the non-Garland nominee is. Second, McConnell’s refusal to allow Garland a hearing was indeed a travesty.

This argument, however, also has its downsides. For one thing, at most only a confirmation hearing, not the “seat” itself, was “stolen” from the Democrats. The contention before the election was that Garland was entitled at least to a hearing and maybe a floor vote, not that he had any right to be confirmed. For another thing, it is clear from the Democrats’ own words that, had the situation been reversed, a Democratic-controlled Senate would likewise have refused to confirm a Republican President’s nominee to the Supreme Court in the final year of his term—although they might have acted with more subtlety than McConnell. The Democrats’ only genuine chagrin over McConnell’s gambit is not what he did but that, to the surprise of almost everyone, it actually worked. More broadly, both parties have politicized the judicial appointment process to such an extent and engaged in so much hypocrisy that they have exhausted the outrage factor and forfeited any credibility in trying to play the hypocrite card against each other. Perhaps this is why Democratic efforts to make the Garland stall a major issue in the presidential campaign apparently did not resonate with the cynical electorate.

Which Road Will Democrats Take?

Based on what’s been said already, it is clear beyond a shadow of a doubt that Gorsuch’s confirmation will not take the high road of honest, substantive consideration and debate on his merits. Sadly, the Supreme Court confirmation process remains mired in a swamp of mutual demagoguery where virtually nothing said or done by either party has much substantive credence and everything depends instead on political calculus. However, the political calculus in this case remains uncertain. Surely Democrats will continue to insist, misleadingly, that there is a 60-vote “standard” for confirmation of Supreme Court nominees. But will they supply enough votes to get Gorsuch to 60 for confirmation (or at least to end a filibuster attempt) or will they go full-throttle to filibuster the nomination?

Some political factors support giving Gorsuch the eight Democratic votes he needs to reach 60. Democratic Senators facing challenging 2018 reelection bids in red States may be inclined to support him. (As of now, nine Democratic Senators reportedly are prepared at least to vote against a filibuster.) More fundamentally, if Democrats withhold the necessary votes and take the filibuster road Republicans will almost surely invoke the so-called “nuclear option”. This will enable them to confirm Gorsuch, and any future Supreme Court nominees, by a simple majority vote. The key consideration here is future nominees. Gorsuch’s confirmation, unappealing as it may be to Democratic partisans, will only restore the ideological balance that prevailed on the Court before Scalia’s death. However, the Court’s ideological balance could experience a potential seismic shift in the fairly likely event that Republicans get another vacancy to fill during the next four years. Democrats might be wise to save their maximum resistance for the next time when the stakes are much higher. On the other hand, the political pressure on Democratic Senators to go all-in now against Gorsuch may be too intense to resist. The Democratic base remains apoplectic over Trump and in full “resistance” mode.  Likewise, prominent leftist pundits such as E. J. Dionne, Kurt Eichenwald, and Eugene Robinson, are urging Democrats to oppose Gorsuch to the max, win or lose, as a form of revenge for Garland, as a means of playing to the Democratic base, or perhaps as a feel-good emotional outlet.

It remains to be seen how the politics will play out. As noted above, the only seemingly sure outcome is that Gorsuch will be confirmed at the end of the day. Ironically, the ugly political tactics on both sides that have come to define federal judicial appointments are now poised to produce a Justice who figures to be an outstanding addition to the Court by any objective measure. Harvard Law School professors across the ideological spectrum offer high praise for Gorsuch. Even liberal icon Lawrence Tribe describes him as “a brilliant, terrific guy who would do the court’s work with distinction.” Maybe this signals that there is still some hope for our democracy.

 

As if the 2016 presidential election and its aftermath were not already bizarre enough, we are now dealing with a widespread obsession over Russian efforts to interfere with the election. It’s been known for some time that the Russians were responsible for hacking Democratic sources and providing a trove of hacked emails to Wikileaks. The U.S. Government, through the Director of National Intelligence and the Department of Homeland Security, issued a public statement to this effect in October. What recently gave new life to this is the reported conclusion by unnamed CIA officials, expressed in post-election congressional briefings, that the intelligence community now considers it “quite clear” that Russia’s actions were intended not only to undermine confidence in the election but also to help elect Trump. According to the latest report, the FBI and Director of National Intelligence are now on board with this conclusion and these officials, as well as President Obama, assume that Putin directly approved the Russian actions.

The conclusion that the Russians sought to elect Trump ignited a political firestorm. In keeping with the sad post-election pattern, it also brought out the worst in both sides. Democrats, still in denial over Trump’s win, used it to bolster their last-ditch efforts to nullify the election result by perverting the electoral college process. Consistent with his childish and fact-free overreaction to even the slightest provocation, Trump brushed off any conclusions about Russian involvement as “ridiculous” and proceeded to disparage the intelligence services he will need to rely on as president.

What to make of this latest sorry episode? Here are a few observations.

Even if Russia’s actions were intended to favor Trump (a fair assumption), this is no reason for Americans to help Putin undermine our electoral process.

Democrats used the “stunning new judgment”  about Russian favoritism toward Trump as another reason why electoral college members should “blow up the system” by overturning the election result and denying Trump the presidency. At the very least, they argued, the electoral college vote should be delayed until the electors received an intelligence briefing on the Russian actions. The Clinton campaign, through John Podesta, supported the call for an intelligence briefing of electors.

It’s now clear that there will be no such briefing. But what useful purpose could this briefing have served? It’s fair to assume from what’s already publicly known that the Russians were trying to help Trump and/or hurt Clinton. Such an intent can reasonably be inferred from the very nature of their actions. The flood of leaked emails from Russian hacking targeted only Clinton’s side and was relentlessly negative toward her and those associated with her. Presumably an intelligence briefing would simply provide more circumstantial evidence supporting this common sense and fairly obvious conclusion. (The one wild card is whether the Russians also tried to hack Republication sources; if so, whether they succeeded; and if they succeeded, why they didn’t leak information from Republican hacking. However, there is apparently no consensus among government agencies on these questions.)

Assuming, then, that the Russians were on Trump’s side, could that conclusion legitimately affect the electoral college vote? The mere fact that Russia wanted Trump to win (or Clinton to lose) obviously is not grounds to invalidate his election victory and award the election to her as the anti-Russian candidate. It might be a different story if Russia’s intervention determined the election outcome. However, it’s impossible to know what, if any, impact Russia’s actions had on the election result. There’s certainly no credible evidence on which an elector could conclude that Russia’s actions were decisive and change his or her vote on that basis. Indeed, the leaked emails do not loom large (at least up to now) among the numerous factors cited in most election postmortems. This is not surprising. While the emails were embarrassing and reflected negatively on Clinton, they contained no bombshell revelations. Rather, they generally reinforced perceptions about Clinton (and her associates) that were already widely held.

For the above reasons, demands for electors to vote against the will of the electorates in their States or to delay the electoral college vote based on the Russian actions had no objective merit and, appropriately, no chance of success. What these demands have accomplished, however, is to play into Putin’s hands by helping him undermine confidence in the election. Whether or not Russia was specifically playing favorites, virtually everyone (but Trump) agrees that one of its goals was to undercut faith in our democracy. In this regard, the Washington Post reports:

“CIA and FBI officials do not think Russia had a ‘single purpose’ by intervening during the presidential campaign, officials said. In addition to the goal of helping elect Trump, Putin aimed to undermine confidence in the U.S. electoral system, intelligence officials have told lawmakers.”

Ironically, the Democrats and their allies have used Russia’s interference as a justification (along with Clinton’s popular vote “win”) for their efforts to disrupt the electoral college process, nullify the election result, and generally undermine the legitimacy of Trump’s election. It’s likely that their efforts have enabled Putin to succeed beyond his wildest dreams. The longer anti-Trump forces persist in trying to delegitimize the election result, the more they will advance Putin’s cause.

Politicizing the Russian actions will seriously impede an effective investigation of these actions.

As discussed above, Russia’s apparent motive to help Trump is, in the final analysis, essentially a political red herring in terms of the 2016 election result itself. However, the far worse consequence is that this focus on motive distracts attention from the much more important issues of how the hacks succeeded and what can be done to prevent cyber attacks by the Russians or others on future elections. The more this subject is politicized by emphasizing Russia’s desire to help Trump, the more it will impede an objective investigation into the latter issues. Democrats likely will continue to stress Russia’s preference for Trump as a means to undermine his legitimacy as president. Trump and his allies likely will push back against this by resisting or even preventing a full and objective investigation.

A key aspect of this broader subject that also risks being lost to politics is the danger that that the Russians (or others) could do greater damage to future elections by hacking into our election machinery and related infrastructure. According to computer security experts, it is doubtful that the Russians hacked the election process itself this year. However, this apparently remains a real threat for the future—and one with more direct and serious potential consequences than hacking emails. The security experts advocate audits of election results as well as reviews and enhancements of security safeguards. Unfortunately, Jill Stein’s quixotic pursuit of recounts in three States politicized this aspect of the problem as well. Her frivilous efforts may end up obscuring the seriousness of this problem. Hopefully, investigations of Russian email hacking this year will overcome her distractions and include cyber threats to the security of our election infrastructure.

Finding the right source(s) to conduct a credible investigation of Russia’s actions this year and future cyber threats to our elections will be challenging.

There are now calls for congressional investigations into Russia’s interference this year. But congressional investigations usually are the worst way to get to the bottom of serious and complicated issues like these. One problem, of course, is partisanship. The calls for congressional investigations pay lip service to the need for bipartisanship and insist that the investigations should not “relitigate” the election result. As noted above, however, Russia’s actions already are being widely used for this purpose. It’s unlikely that this will change even after Trump is formally elected and takes office. The more Democrats push this theme, the more Trump and his supporters will push back. The more important issues of how this happened and how to prevent cyber threats to future elections could be lost in this political back and forth.

Even apart from partisanship, congressional investigations tend to be unwieldy with too many principals involved, too much grandstanding, internal strife between competing agendas and factions, and constant leaks. Moreover, it is questionable whether congressional committees could muster the expertise to address the many highly technical aspects of these issues.

Ideally, the best approach would be to leave the investigations to executive branch intelligence and cyber security experts. The downside here, of course, is Trump. His absurd stance of denial and defensiveness on this entire subject makes it highly questionable whether he and his underlings in the incoming administration would permit executive branch professionals to conduct a free-wheeling and credible investigation.

President Obama has ordered a full review of the Russian hacking by the intelligence agencies, which is to be completed before he leaves office on January 20. This review may be the best chance for an objective assessment of Russian actions this year. There is at least a remote chance that this assessment could close the books on the 2016 election and clear the way for a truly nonpartisan and objective investigation of future cyber threats perhaps by an independent commission.

Hillary Clinton’s “win” over Donald Trump in the (uncontested) popular vote this year has renewed the periodic debate over whether the electoral college system for electing our presidents should be changed to election based on the nationwide popular vote. A recent article by former White House Counsel Peter Wallison adds important context to this debate.

Clinton did not win an outright majority of the popular vote but she bested Trump by well over two million votes and counting. Of course, this year’s presidential election (like all others) was conducted under the state-by-state, winner-take-all electoral college process in which the nationwide popular vote is irrelevant except perhaps for “bragging rights.” If the election had instead been about the popular vote, there is no telling whether Clinton  would have come out on top. Under this fundamentally different approach, both presidential campaigns would have pursued very different strategies. The behavior of voters, particularly potential minority party voters in deep blue or deep red states, also probably would have been different.

Wallison’s article points out that an election based on the popular vote  would have had even far greater differences than these. Specifically, Clinton and Trump likely would have faced a host of third-party candidates instead of just two. This is because a popular vote election would balkanize our two-party system by attracting many outside candidates seeking merely to win a plurality of the vote. Wallison notes:

“If we abandoned the Electoral College, and adopted a system in which a person could win the presidency with only a plurality of the popular votes we would be swamped with candidates. Every group with an ideological or major policy interest would field a candidate, hoping that their candidate would win a plurality and become the president.

“There would candidates of the pro-life and pro-choice parties; free trade and anti-trade parties; pro-immigration and anti-immigration parties; and parties favoring or opposing gun control—just to use the hot issues of today as examples.

“We see this effect in parliamentary systems, where the party with the most votes after an election has to put together a coalition of many parties in order to create a governing majority in the Parliament. Unless we were to scrap the constitutional system we have today and adopt a parliamentary structure, we could easily end up with a president elected with only 20 percent-25 percent of the vote.

“Of course, we could graft a run-off system onto our Constitution; the two top candidates in, say, a 10-person race, would then run against one another for the presidency. But that could easily mean that the American people would have a choice between a candidate of the pro-choice party and a candidate of the pro-gun party. If you thought the choice was bad this year, it could be far worse.”

Food for thought as the debate proceeds under the caveat “be careful what you wish for.”