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In a Washington Post op-ed last week, Harvard law professor and Democratic activist Lawrence Lessig maintained: The Constitution lets the electoral college choose the winner. They should choose Clinton. While this article might come across as a far-fetched provocation worthy of Steve Bannon or Breitbart News, presumably the author meant it to be taken seriously as did the Post by publishing it. In fact, liberal groups and their lawyers are engaged in several efforts to persuade electors in States won by Trump to vote instead for Clinton.

Before turning to Lessig’s specific arguments, it is useful to make a few basic points that should be self-evident but perhaps are not.

First, both Clinton and Trump went into the presidential campaign with the clear understanding that (1) the winner would be the candidate who won enough States to amass 270 electoral college votes and (2) the electors’ votes would be faithful to the popular vote results in their respective States. Given these understandings, both candidates’ campaign strategies were built around the single goal of winning an electoral college majority.

Second, these understandings reflect the fundamental rules, rooted in State law and universally accepted (up to now) by partisans on all sides, governing how presidents are elected under our Constitution. The same understandings are shared by the voters, the American public in general, the media, and everyone else. Indeed, Trump was widely and rightly condemned for refusing to say unequivocally before the election that he would accept the outcome flowing from the application of these rules.

Third, Trump won a clear electoral college majority based on these rules. Unlike the 2000 election, there appears to be little justification for challenging the result this year–shocking and unpalatable as it was to many people. The story that the Russians hacked election machinery has been largely debunked, and recounts requested on this basis seem very unlikely to change the result. Obama Administration officials have expressed confidence that the election results “accurately reflect the will of the American people.” (If recounts do somehow shift the electoral college majority to Clinton, she would win under the established rules; however, Lessig’s arguments are not based on this scenario.)

Professor Lessig’s position that Clinton should be the electoral college winner rests on two seemingly inconsistent but equally ludicrous arguments. On the one hand, he points to the fact that Clinton “won” the popular vote and asserts that the electoral college should therefore support her as the “people’s choice.” On the other hand, he argues that electoral college voters in States won by Trump can and should overrule the choice expressed by the people in those States.

Popular vote argument. Clinton’s popular vote lead, which now exceeds two million, may be a reasonable cause for debate over whether the electoral college system is anachronistic and should be changed for future presidential elections (unlikely as that is). However, it has no bearing whatever on the outcome this year since the 2016 election was not about the nationwide popular vote. Clinton’s popular vote advantage is not only legally irrelevant but also essentially meaningless. For one thing, the notion that it makes her the “people’s choice” is dubious given that she failed to win a majority of the presidential votes cast–i.e., more people voted against her than for her nationwide. Another 40 plus percent of the people eligible to vote chose not to vote at all. The more salient point, however, is that neither side campaigned to win the nationwide popular vote. If winning the popular vote had been the goal, their campaign strategies would have been quite different. It’s impossible to know which side would have emerged with the popular vote advantage campaigning under this different set of rules and strategies.

Touting Clinton’s popular vote “win” is analogous to a losing football team claiming victory because, although being outscored, it gained more total yards than its opponent. If the outcome of football games turned on yards gained rather than points scored, both teams’ strategies would be entirely different. There is no reason to assume that the same team would still wind up with more total yards in what would literally be a completely different ball game.

Likewise, a presidential election based on winning the nationwide popular vote rather than the electoral college majority would be a very different ball game. One major difference is that the campaigns would target the most populous States even if they were not competitive from an electoral college viewpoint. Another difference is that minority party voters in deep blue and deep red states would have greater incentive to go to the polls since their presidential vote now would be more likely to matter.

In short, if this year’s election actually had been a contest to win the popular vote would Clinton still have won it? The answer, of course, is there’s no way of knowing. There is certainly no reason to assume that she would have.

Electoral college discretion. Lessig’s other argument is that the framers of the Constitution intended electoral college members to be wise elders who would serve as a “safety valve” on the popular vote and either confirm or reject the people’s choice. According to him, it was originally envisioned that the electors could exercise a veto power much like that of judges who can sometimes overturn jury verdicts they consider to be unjustified. In a less than subtle reference to conspiracy theories about Trump and the Russians, Lessig says, for example, that the electors surely could intervene to block the voters’ choice if that choice was a “Manchurian candidate.” This year, he says, they should exercise their discretion to elect Clinton as the better choice as well as the people’s choice.

Even if Lessig’s assertions have some historical foundation, they are utterly foreign to our contemporary understanding of the electoral college’s role and quite inconsistent with how it actually has functioned for most of our history. Forty-eight of the 50 States plus the District of Columbia award all of their electoral college votes to the winner of the popular vote in their jurisdictions. Moreover, twenty-nine States and the District of Columbia have laws requiring that electors vote for the popular vote winner in their jurisdictions. (Lessig wholly ignores these laws, apparently believing that electing Clinton is a higher calling than abiding by the law.) Even absent an explicit legal requirement, electors have almost always been faithful to their obligation to vote for the popular vote winner in their States. Throughout the history of our country, over 99 percent of electors have complied with this obligation. 

Lessig’s description of the electors also is dead wrong. They clearly are not the elite overseers serving the lofty mission he seems to think was originally envisioned. Rather, they are typically functionaries of the political parties largely unknown to the general public. Surely no American citizen enters the voting booth with the slightest thought that their vote is subject to second-guessing and potential rejection by anonymous electoral college members. That’s why those electoral college members who on very rare occasions go against the popular vote outcome in their States are (appropriately) referred to as “faithless” electors. I have never heard them described as super wise men and women who, after all, know better than the voters and are simply correcting the voters’ mistake.

As a practical matter, I wonder if Lessig paused to consider the utter chaos that surely would result if electoral college voters actually behaved as he suggests and, by acting against the expressed will of the voters in their States as he proposes, reversed the outcome of a presidential election dictated by the established rules. No doubt this would create a crisis for our democracy far more serious than what occurred in the wake of the 2000 election.

Finally on a personal note, I am no fan of Trump. I didn’t vote for him, I was appalled by much of his campaign rhetoric, and I share the widespread concern over his fitness to serve as president (particularly in terms of personal temperament). However, I also value the Constitution, the rule of law, and the democratic process. Reading articles like Lessig’s reminds me of the lengths to which tendentious liberal legal thinkers sometimes go to twist the law and defy common sense in order to justify their preferred policy outcomes. The one silver lining to Trump’s election, in my view, is that it should keep those who embrace Lessig’s style of jurisprudence off the federal courts. While their creative arguments are often thought-provoking and worth considering as advocacy, it is far better to receive them in the form of op-eds from liberal media outlets than as binding legal opinions delivered from the federal bench.

An excellent article by a liberal Columbia University professor that addresses what I think is one of the major reasons we now have a President-elect Trump:

http://www.nytimes.com/2016/11/20/opinion/sunday/the-end-of-identity-liberalism.html?emc=eta1&_r=0

I particularly like this statement:

“National politics in healthy periods is not about ‘difference,’ it is about commonality. And it will be dominated by whoever best captures Americans’ imaginations about our shared destiny.”

 

Those outraged by Trump’s election should take a few deep breaths and chill out.

By all accounts, the election went smoothly without complaints of voter intimidation or other irregularities. Clearly Trump won the election fair and square. The shock and deep disappointment many feel in response to Trump’s election is understandable, but protests (particularly violent ones) that deny the legitimacy of the result (e.g., “Trump is not my president”) are not. As one (very liberal) columnist astutely observed, “not my president” is equivalent to saying “not my Constitution” or “not my country.” There was near universal, and entirely legitimate, outrage over Trump’s pre-election refusal to commit unequivocally to accepting the result. Undoubtedly if Clinton had prevailed and the Trump supporters were now the ones protesting, hostile editorials and other condemnations would be raining down on them from all directions.

Both Hillary Clinton and President Obama were gracious in accepting the election result, wishing Trump success, and urging Americans to keep an open mind. Trump’s opponents, bitter as they may be, should follow this example. Political pundits as well as other Trump critics in the media and elsewhere likewise should indulge in at least a modicum of open-mindedness. Their dire predictions for his presidency may eventually come to pass but they are premature now.

The election was a big win for the democratic process and a setback for special interests.

Whether or not they agree with the result, good government advocates of all political stripes should applaud one remarkable feature of this year’s presidential election: special interests did not dominate. There has been  widespread public policy concern in recent years over the outsized role in elections played by fat cat donors, super PACs, corporations and labor unions, and the armies of political operatives they finance. These powerful forces were fully deployed by Trump’s primary opponents and by the Clinton campaign during the general election. However, Trump’s disorganized, underfunded, and essentially seat-of-the-pants operation somehow prevailed at each stage. Can other candidates make this perhaps chaotic but more democratic model work again in the future or will elections revert back to business as usual?

The media’s cluelessness over the election outcome results more from superficiality and groupthink than liberal bias.

There is plenty of political bias (liberal and conservative) in the media. However, liberal bias cannot explain the media’s election analysis and prediction meltdown; both those on the left and the right overwhelmingly predicted a Clinton win. I’d suggest that a more likely cause is the shallowness and downright laziness that seems to characterize most media coverage today. Media outlets do far too little original fact-gathering and analysis. They rely much too heavily on what is fed to them by partisan sources, thereby serving as uncritical echo chambers for partisan spinmeisters rather than subjecting their spin to scrutiny. This creates a media culture of insularity and groupthink. These shortcomings are actually more serious than political bias. One can find conservative media outlets to counter liberal bias and vice-versa. However, there is no alternative source to rely on for the original reporting and critical analysis that the media often neglect to provide.

Complaints about the electoral college are futile and misplaced.

Clinton’s lead over Trump in the popular vote has triggered complaints that the electoral college is undemocratic and renewed demands for its abolition. However, the nation’s founders were not overly concerned about popular election of federal officials. Until adoption of a constitutional amendment in 1913, U.S. senators were elected by state legislators rather than by popular vote. The electoral college itself was a compromise, with the main alternative being not popular election but election of the president by Congress. One reason for this is that the founders regarded state governments, not the federal government, as the primary sources of domestic policymaking, and therefore, the entities needing to be most responsive to the citizens at large.

This original model has been turned on its head in relatively recent times, with the federal government supplanting the states as the primary source of domestic policymaking. However, the federal government of today may be approaching the breaking point. It operates literally countless programs, many of dubious effectiveness, which are supported by a hopelessly complex tax system heavily influenced by myriad special interests as well as massive deficit spending. Much social policy is dictated from Washington through regulations and conditions attached to federal spending programs. There is a widespread perception that Washington works, if at all, only for the one-percenters. One reason for the polarized federal electorate and consequent stalemate in Congress is that citizens in different regions of the country have starkly different policy views. Given these considerations, shifting more political power from the federal government back to the states and closer to the people, as originally envisioned by the Constitution, may be a better approach than quixotic efforts to abolish the electoral college.

It’s possible that Washington gridlock may ease at least a little in the coming years (for better or worse).

Republicans will now hold the presidency and both house of Congress. Their control of Congress will likely continue for the next four years. A combination of demographics and gerrymandering gives them a firm grip on the House majority, and the math for the 2018 elections (25 Democratic seats at risk versus only eight for the GOP) heavily favors them to retain their Senate majority and probably add to it. Thus, Republicans are positioned to break through the gridlock that has defined Washington in recent years. Whether they actually do much and whether their accomplishments turn out to be good or bad remains to be seen. (Perhaps the public will be yearning for a return to gridlock four years from now.) What can be said for certain is that Republicans will now own the challenges facing the nation and will no longer be able to get by as the “party of no” using a strategy based on obstructionism.

The interpersonal dynamics should be particularly interesting. It’s unclear what policies Trump will pursue or how he will attempt to govern. He seems more likely to be a pragmatist than an ideologue. Certainly he doesn’t fit the conservative mold of his supposed congressional allies. A wild card in the congressional dynamics is Chuck Schumer, who will replace Harry Reid as Senate Democratic leader. Reid was (and continues to be) a hyper-partisan, bomb-throwing political hack with no apparent interest in public policy. While also highly partisan, Schumer is considerably more policy-oriented than Reid and much more likely to be a positive force for deal-making. In particular, the combination of Speaker Paul Ryan in the House and Minority Leader Schumer in the Senate offers at least a grain of hope for thoughtful, bipartisan approaches to policymaking.

The most predictable election result is its major impact on the federal judiciary.

Whatever its other consequences, Trump’s election avoided a dramatic and long-lasting shift to the left in the ideological balance of the Supreme Court. On the eve of the presidential election, Hillary Clinton was poised to use her “bunch of litmus tests” to give liberals a decisive fifth vote on the Supreme Court and solidify liberal control of the Court for years or decades to come if additional vacancies arose during her presidency. She also would have continued the sharp leftward trend of the federal courts of appeals after eight years of Obama appointments. Trump’s surprise win completely reversed this scenario. Through his election and their retention of the Senate majority, Republicans should have full control of judicial appointments for the coming four years. They should use this manna from heaven wisely and not overreach. For starters, Republicans should avoid:

• nominees whose main qualification is being a Trump crony (e.g., Giuliani, Christie);
• nominees who have strong partisan backgrounds (e.g., Senators Cruz, Lee, and Sessions);
• extremists who are outside the legal mainstream or overtly strident and divisive (e.g., most of those already mentioned); and
• litmus tests of any kind. Selecting judges on the basis of how they will rule in a specific case or on a specific issue is inimical to judicial independence regardless of whether the outcome sought is liberal or conservative.

On the positive side, Republicans should ensure that their judicial appointees meet the highest standards of integrity and intellectual ability. They should also select appointees who adhere to jurisprudential principles ensuring that they will interpret and apply the law as set forth in the Constitution and statutes rather than bending the law to reflect their policy preferences. For example, their nominees should

• reject the concept of the Constitution as a “living” malleable document whose meaning changes with the times to accommodate contemporary social and cultural mores;
• accept that creating new constitutional rights should be left to the amendment process rather than judicial fiat;
• commit to interpreting statutes according to their text, as best it can be determined by applying standard rules of statutory construction; and
• avoid giving undue deference to legal interpretations by the executive branch. They should follow Chief Justice Marshall’s admonition in Marbury v. Madison and reaffirmed in many decisions thereafter: “It is emphatically the province and duty of the judicial department to say what the law is.”

Perhaps most importantly, nominees should approach judging with modesty, recognizing that their goal should be to function as dispassionate legal experts rather than philosopher kings/queens who readily bring to bear their personal sense of fairness, morality and justice in deciding cases. While those who focus only on obtaining conservative legal outcomes might disagree, I’d submit that the gold standard in assessing nominees should be Chief Justice John Roberts.

Future voter coalitions probably will move beyond race.

Trump’s election is widely portrayed as the revenge of white working class, non-college educated voters. One pundit described it as a “whitelash” against the Obama presidency and the nation’s changing demographics. Obviously voters are motivated by any number of factors. However, I’d suggest that Trump’s election more likely represents primarily a largely race-neutral backlash against the “establishment” and its “elites” (both Democratic and Republican) who are widely seen as not serving the needs of ordinary citizens. Moreover, I strongly suspect that in the long run working class citizens without college degrees both white and those of color will come to realize that their common concerns and interests far outweigh their differences.

A coalition along these lines is now being held back by the fog of racial discord that obscures everything else. Racial disparities in many societal outcomes are real and in urgent need of attention. However, the article of faith among many that such disparities result exclusively or even primarily from pervasive racism in America diverts attention from the underlying problems. Unfortunately, a wide range of influential sources benefit from promoting racial discord. Their ranks include ideologically-driven pundits, writers, academics, and interest groups along with some cynical race-baiting demagogues. Democrats feed the flames of racial division by pushing identity politics. The media, who thrive on conflict and bad news, also contribute. For example, they tend to re-enforce the false narrative advanced by Black Lives Matter of systematic, deliberate police efforts to oppress and even murder African-Americans.

If this all-about-race mentality could be overcome, it would be apparent that the root problems affecting both white and minority working class Americans are fundamentally similar although often different in degree of severity. Such mutual problems include: not enough well-paying blue collar jobs; lack of education and skills needed to obtain the good jobs that our global, high-tech economy offers; a breakdown in traditional family structure; the scourge of drugs; and unsafe neighborhoods. Their outlooks are also similar and feature a sense that America is not working for them, and, ultimately, the kind of feeling of desperation that fueled Trump’s election.

Republican working class voters already recognize that the establishment forces of their party do not serve their interests. They see Trump, for all his faults, as someone who speaks to their concerns. (Whether he can deliver positive results is, of course, another matter.) The Democratic establishment and its elites also are under fire. Saunders supporters demonstrated similar disenchantment with them during the primaries. Working class minorities who still provide a reliable voting block for Democrats have yet to reach this point of dissatisfaction. However, I suspect it’s only a matter of time until they do. The Democratic establishment seemingly has little to offer them beyond (1) more of the same tired programs and policies that have yet to turn things around (and may even be counterproductive), (2) battles over cultural issues having little relevance to their daily lives, and (3) a lot of largely empty race-pandering rhetoric.

If working class whites and minorities do eventually unite, they would form a dominant voting block for whichever party embraces them and seriously attempts to address their issues This coalition would be even stronger if joined by younger Sanders-type voters who may be starting to see that they and their families will suffer the consequences of today’s financially unsustainable federal entitlement programs, which neither party’s establishment shows much interest in reforming.

FBI Director Comey acted appropriately (given his July pronouncement and follow-up testimony) in notifying Congress of the newly-discovered emails that may prove relevant to the investigation of Clinton’s email practices. The widespread criticisms that he violated Justice Department policy and even the Hatch Act by so doing cannot withstand scrutiny. However, the leaks coming out of the FBI concerning this and other Clinton-related investigations are outrageous. These leaks are grossly unfair to Clinton, and even worse, threaten to do long term damage to the FBI’s reputation as a nonpartisan, highly professional organization.

As the Washington Post editorialized today, Comey needs to get control of the Bureau. The leaks should be promptly and aggressively investigated; those responsible for them should be fired, and if warranted, prosecuted. These disgusting leaks reinforce the impression that the FBI as well as main Justice are at sea in attempting to handle the various Clinton-related investigations through their regular processes. This, in turn, further demonstrates the need to turn the Clinton email investigation, and perhaps all Clinton-related investigations, over to a special prosecutor ASAP. The need for this will be even more manifest if Clinton becomes president-elect next week.

The Clinton camp’s response to FBI Director Comey’s October 28 letter to Congress  concerning the newly-discovered trove of emails that may be pertinent to the Bureau’s investigation of Clinton’s email practices was to orchestrate an all-out war against Comey. This strategy features direct attacks on him by Clinton and her campaign accompanied by a flood of op-eds and similar pronouncements by others condemning his action. The efforts to discredit Comey have been widely embraced by pro-Clinton media outlets, although even the Washington Post has now apparently had enough of it.

One can certainly question Comey’s exercise of judgment at various stages of the Clinton email investigation, but there is no call to challenge his integrity. The serial accusations that he acted for political reasons and in violation of Justice Department policy or even federal law are baseless.  The most salient evidence of this–wholly ignored by the critics–is that top Justice officials, when consulted in advance, allowed Comey to submit his letter. Clearly they had the authority to prevent him from sending the letter, and indeed a duty to do so if they regarded this proposed action as the egregious violation of departmental policy and federal law that critics allege.

The attacks on Comey are not only spurious but strongly suggest a “kill the messenger” strategy designed to divert attention from the real issues that the belated discovery of these emails poses. One of these issues is why the new emails did not come to light during the original investigation. Another issue is whether the demonization of Comey by Clinton and her allies will make it impossible for him to continue to serve out his term as FBI director if she is elected president.

Finally, the unrelenting politicization of the Clinton email investigation by partisans on both sides has thoroughly undercut the ability of the FBI director and the attorney general to produce an investigative result that can inspire widespread public trust and confidence. At this point, the only way to achieve that goal is to turn the entire investigation over to an independent special prosecutor.

Each of these points is discussed in more detail below.

Stop the bogus personal attacks on Comey

In assessing Comey’s conduct, it is important to focus on his actual words and actions rather than the partisan spin that surrounds them. In July, Comey announced the results of the FBI’s investigation into Clinton’s email practices and famously concluded that “no reasonable prosecutor” would indict her based on the investigation’s findings. In congressional testimony shortly thereafter, he stated under oath that the FBI’s investigation was complete. Comey has said that he was obligated to submit his October 28 letter because discovery of the new potentially relevant emails necessitated additional investigation. This, of course, rendered his previous testimony that the investigation was complete inaccurate.

Contrary to many criticisms, Comey’s letter is not vague or ambiguous; nor does it consist of innuendo. The letter states straightforwardly that new apparently pertinent additional emails have been discovered, that these emails may or may not prove to be significant to the Clinton investigation, and that they will be assessed in order to determine their significance if any. In this regard, the substance of his brief letter bears quoting:

“In connection with an unrelated case, the FBI has learned of the existence of emails that appear to be pertinent to the investigation. I am writing to inform you that the investigative team briefed me on this yesterday, and I agreed that the FBI should take investigative steps designed to allow investigators to review these emails to determine whether they contain classified information, as well as to assess their importance to our investigation.

“Although the FBI cannot yet assess whether or not this material may be significant and I cannot predict how long it will take us to complete this additional work, I believe it is important to update your Committees about our efforts in light of my previous testimony.”

An actual reading of the letter suggests that it has been both over-hyped by Clinton opponents and over-condemned by Clinton and her supporters. The media has echoed and amplified these partisan overreactions. Critics and media outlets complain that Comey should have said more and demand that he immediately release additional information about the emails. But what more could he reasonably say or do at this time? The key question of whether the emails are in fact significant to the Clinton investigation obviously cannot be answered until they are analyzed. It would be totally irresponsible for Comey to speculate about the outcome of the FBI’s analysis, disclose snippets of information, or release the emails (some of which may contain classified information) before they can be fully and carefully reviewed.

Most troubling of all are the widespread but false accusations that Comey’s actions violated federal policy or even federal law. As to the first, critics accuse him of violating Justice Department policy by sending his letter within 60 days before the election. Unfortunately, this accusation has not received the scrutiny (particularly by media fact-checkers) that it deserves. Consider the following:

• The Justice Department policy in question is contained in a March 2012 memo from former Attorney General Eric Holder to all Justice employees. However, this memo does not even literally apply to the Clinton email investigation; it is addressed to prosecutions of election-related crimes such as those involving campaign finance laws and corruption of election processes.

• In any event, the memo places no substantive restrictions on what investigative and prosecutorial actions can be taken or when they can occur in relation to elections. It simply recites the obvious admonition that employees should not time their actions (whatever and whenever they may be) for the purpose of influencing an election or favoring one candidate or party. Importantly, the memo deals only with the purpose underlying the timing of actions not their effects. Presumably this is because any and all actions in an election-related case, including a delay or refusal to act, could have an effect on the election.

• The memo says nothing about a moratorium on taking action or releasing information within 60 days (or any other time period) before an election. According to Politifact, the 60-day moratorium critics accuse Comey of violating is an “unwritten guideline” among U.S. attorneys. It is perhaps a somewhat dubious one at that, or at the very least not a hard and fast rule. Politifact’s lone source for the existence of this informal guideline is a statement by former Chicago U.S. Attorney Patrick Fitzgerald at a law school symposium that actually mocked it: “In Chicago, corruption can be a volume business, so why shut it down for 60 days? When you threaten a witness, we will charge and get the handcuffs on you as quickly as possible.”

• There is no credible basis to conclude that Comey sent his October 28 letter for the purpose of influencing the presidential election. On the contrary, there is every reason to believe that he was as chagrined as anyone when the new emails turned up, thereby undercutting his congressional testimony, and to accept his perfectly plausible explanation that he felt obliged at this point to correct his testimony, which was now inaccurate. Indeed, it has been reported that Justice Department rules required Comey to correct his testimony.

• One further point is perhaps the most significant of all. Critics note that top Justice officials whom Comey consulted in advance strongly advised against sending the letter; however, they ignore the more telling fact that these officials left the final decision to him. While the FBI director has an unusual degree of independence, he still reports to the attorney general, who is his boss, and is fully subject to her direction. If the attorney general believed that sending the letter would violate Justice policy, and particularly if she viewed it as the egregious violation critics assert, she had ample authority—indeed a clear duty—to order him not to send it. (If the attorney general felt conflicted from acting in this situation, the deputy attorney general could have given the order.) Had Comey sent his letter in defiance of an order from the attorney general or deputy not to do so, this would be an entirely different matter. However, the fact that these officials allowed Comey to send the letter necessarily indicates either that they did not consider this action a violation of Justice policy or makes them complicit in the violation and, given their positions of control, ultimately responsible for it.

The accusation that Comey violated the Hatch Act by sending the letter is similarly unfounded. The Hatch Act provides in relevant part that a federal employee may not “use his official authority or influence for the purpose of interfering with or affecting the result of an election” (5 U.S.C. 7323(a)(1)). As discussed above, there is no basis to attribute such a purpose to Comey. Moreover, if this was the purpose, the attorney general and/or her deputy would be complicit in the Hatch Act violation. It is also worth noting that those accusing Comey of a Hatch Act violation now made no claim that his July action effectively exonerating Clinton from criminal liability was done for purposes of influencing the election in violation of the Hatch Act, even though the July action was far more significant.

Finally, some critics speculate that Comey caved to pressure from congressional Republicans or dissidents within the FBI. This speculation seems laughable. Whatever one thinks of Comey, there is no questioning his fortitude. Had he feared political pressure or internal criticism, Comey surely would have taken the easy way out in July and simply reported his findings to Justice without making a public recommendation and thereby painting a huge target on his back. Moreover, he showed not the slightest sign of intimidation during the nasty and intensely partisan congressional hearings that followed his July statement.

In sum, Comey’s action in sending the October 28 letter, whether advisable or inadvisable, was a good faith judgment call rather than an effort to sway the presidential election. As such, it did not violate any policy or law.

Why did the newly-found emails just turn up now?

Press reports indicate that the new emails were found on Anthony Weiner’s laptop and number in the tens or even hundreds of thousands. How could such a massive trove of potentially relevant emails be completely overlooked in the original investigation? The answer to this question may turn out to be more interesting than the content of the emails. It’s obviously premature to speculate about this; perhaps a definitive explanation will never be found. However, one would hope that this question will be pursued. The lines of inquiry likely would focus on investigative shortcomings on the part of the FBI, disclosure shortcomings (intentional or otherwise) on the part of one or more witnesses or their representatives, or some combination of these factors. In any event, if this latest email fiasco turns into an “October surprise” that impacts the election, the blame should fall on whomever (if anyone) is found responsible for their belated appearance.

Could Comey and Clinton coexist in a new administration?

Another potential consequence of this latest Clinton email fiasco has not yet received attention but looms large for the future. Comey’s statutory 10-year term of office extends through the term of the next president and well beyond. By choosing to demonize Comey, Clinton almost surely made it untenable for him to continue as FBI director if she is elected president. It is hard to imagine how Clinton could express confidence in Comey given her attacks on him and those of her supporters. It is equally hard to imagine how Comey could serve effectively without the confidence of the president. Further complicating the situation (to say the least) is the possibility that, with the discovery of the new emails, the Clinton investigation could carry over into the next president’s term. Even if the investigation is closed once and for all by the time of the inauguration, there seems little chance of forging a constructive working relationship between Clinton and Comey given all the baggage developed this year.

Time for a special prosecutor

Due to the relentless politicization of the Clinton email investigation by both the pro- and anti-Clinton forces, there is little hope that the matter can be resolved through the standard federal law enforcement processes in a way that will garner public trust. Unfortunately, first Republicans and now Democrats, along with much of the media, have turned Comey into a political piñata and thus severely undermined his credibility. The credibility of Attorney General Lynch also has been compromised. Her ill-considered airport meeting with Bill Clinton has, fairly or unfairly, limited her ability to contribute to and oversee the FBI investigation. Concerns also have been raised about whether Justice has fully cooperated with the FBI in the investigation. Most recently, there are concerns that Justice is now seeking to push review of the of new emails too quickly, risking a possibly premature resolution, in order to wrap it up before the election.

Given all of this, the only way to salvage an outcome from this mess that can achieve widespread bipartisan and public acceptance is to turn the investigation over to an independent special prosecutor. Special prosecutors do not have a great track record in recent decades and should be used only as a last resort. However, if ever there was a situation that cries out for one it is this fiasco. The Obama Administration should immediately take steps to have a special prosecutor appointed to review the newly discovered emails at a minimum and perhaps to take a fresh overall look at the investigation’s findings and recommendations. The goal should be to resolve the entire matter as soon as possible and, ideally, before the beginning of the next president’s term.

 

 

 

 

Giving credit where due, the Notorious RBG certainly got this one right on all counts. Our “oppressive” government stands behind the constitutional right of such obvious victims of oppression as Kaepernick to engage in phony protests: http://www.huffingtonpost.com/entry/ruth-bader-ginsburg-colin-kaepernick_us_57fbb68de4b068ecb5e0613f.

Very sad to see politics trump historical significance, as appears to have happened in this case. Whether you agree with his legal positions or not, Justice Thomas is unquestionably one of the most consequential African-Americans of our times. He has served honorably on the Supreme Court for 25 years, and his life story is truly inspiring. Yet liberals regularly subject Justice Thomas to scorn because he does not conform to their monolithic conception of how black people ought to think. It’s beyond ironic that the African-American History Museum would be a party to this shameful racial stereotyping.

http://thehill.com/blogs/congress-blog/judicial/299156-clarence-thomas-slight-does-african-american-history-museum-a

 

Public bathrooms are the latest front in our ongoing “culture wars.” The battle is over whether transgendered people should be allowed access to restrooms (and other sex-segregated facilities) on the basis of their gender identity rather than their “birth-assigned” (i.e., biological) sex where the two conflict. Not surprisingly, this issue has generated great controversy. This post is not about whether access based on gender identity is a good or a bad idea. Rather, the focus here is on how the Obama Administration is attempting to dictate the answer through bureaucratic fiat based on a legally unsupportable “reinterpretation” of current law and regulations. Its actions provide a classic example of the dangers posed by federal regulatory excess and the need for an objective, non-politicized judiciary to rein it in. This is particularly important where, as in this case, creating new rights for one group comes at the expense of the rights of many others.

A test case on the Administration’s actions is poised to be considered by the Supreme Court in its upcoming term. The pro-transgender position enjoys intense and widespread support among cultural activists, liberal interest groups and the media. However, the law is just as firmly on the other side. The outcome of the case will say much about the state of the federal judiciary. It also will determine whether the public and their elected representatives have the right to participate in resolving the complex and difficult issues presented.

Legal Background

The Obama Administration seeks to force educational institutions nationwide, from elementary schools through colleges, to allow transgender people access to bathrooms as well as other sex-segregated facilities and programs based on their gender identity rather than their biological sex. The legal vehicle the Administration invoked is Title IX of the federal Civil Rights Act, enacted in 1972, which prohibits discrimination “on the basis of sex” in education programs and activities that receive federal funding. 20 U.S.C. 1681(a).

The law is straightforward. Title IX’s prohibition against sex discrimination applies broadly but is subject to exceptions. Title IX itself states that the law does not prohibit educational institutions from “maintaining separate living facilities for the different sexes.” 20 U.S.C. 1686. Likewise, federal regulations implementing title IX, which date from 1975, permit “separate toilet, locker room, and shower facilities on the basis of sex” so long as the sex-segregated facilities are comparable. 34 C.F.R. 106.33.

The core legal issue is what does “sex” mean for purposes of title IX? The term “sex” is universally defined in dictionaries and other standard sources to mean biological sex—i.e., those anatomical, physiological and other features relating to reproduction that distinguish males from females. By contrast, “gender” refers to behavioral and cultural traits typically associated with biological males and females. Thus, the American Psychological Association states:

“Sex refers to a person’s biological status and is typically categorized as male, female or intersex (i.e., atypical combinations of features that usually distinguish male from female). . . . Gender refers to the attitudes, feelings, and behaviors that a given culture associates with a person’s biological sex.”

Consistent with this understanding, the federal government maintained for decades that title IX prohibits discrimination on the basis of biological sex, not gender identity, to the extent that the two diverged in any individual. The courts agreed. For example, a 2015 federal district court decision, held that denying a biologically female transgender student use of the men’s locker room did not violate title IX; nor did it violate the Constitution’s Equal Protection Clause.[1] However, the Obama Administration’s position recently “evolved” and essentially pivoted 180 degrees on this point. The Administration now asserts that “sex” in title IX and its regulations applies on the basis of gender identity rather than biology.

The Grimm Case

The Administration’s evolution became weaponized in the Grimm case. This case, formally known as G.G. v. Gloucester County School Board, involves a dispute over transgender restroom access in a small Virginia school district. Despite its seemingly humble origins, Grimm is a carefully orchestrated major test case; indeed, one of the court opinions takes four full pages just to list all the participating parties and their lawyers.

The plaintiff in the case is a high school student named Gavin Grimm [2] whose biological sex is female but who identifies as a male. Grimm was diagnosed with “gender dysphoria”[3] and, as part of his treatment for this condition, his psychologist recommended that he be treated as a boy in all respects. Before the beginning of his sophomore year, Grimm and his mother informed school officials that he was a transgender boy and requested that he be allowed to use the boys’ restroom. The school initially agreed. However, Grimm’s use of the boys’ room led to many complaints, which in turn resulted in the adoption of a school board policy requiring use of separate restroom and locker facilities for biological males and females. The school board policy also required that its schools provide alternative single-use restroom facilities for anyone wishing to use them.

Pursuant to this policy, Grimm’s school installed three single-use unisex restrooms to be available to all students, an accommodation recommended by the federal Department of Education. (See below.) However, Grimm refused to use a unisex restroom because it made him feel “stigmatized.” He then sued, claiming that title IX requires schools to provide transgender students access to restrooms matching their gender identity.[4]

Prior to filing suit, Grimm’s attorneys solicited a letter from the Education Department regarding transgendered students’ access to restrooms. The Department’s Office of Civil Rights (OCR) responded in a letter dated January 7, 2015. The letter said that OCR refrains from offering opinions about specific cases without first conducting an investigation but added:

“The Department’s Title IX regulations permit schools to provide sex-segregated restrooms, locker rooms, shower facilities, housing, athletic teams, and single-sex classes under certain circumstances. When a school elects to separate or treat students differently on the basis of sex in those situations, a school generally must treat transgender students consistent with their gender identity. OCR also encourages schools to offer the use of gender-neutral, individual-user facilities to any student who does not want to use shared sex-segregated facilities.” (Emphasis supplied)

Grimm’s lawyers argued that the courts must defer to the Education Department’s interpretation as set forth in this letter. Initially, the federal district court ruled against Grimm.[5] The district judge held that the title IX regulation unambiguously permitted the segregation of restrooms on the basis of biological sex. He rejected OCR’s contrary interpretation, observing that this “newfound interpretation” would “create de facto a new regulation.”

On appeal, a divided three-judge panel of the Federal Court of Appeals for the Fourth Circuit reversed.[6] The majority concluded that the title IX regulation was indeed ambiguous. In this regard, the majority observed that modern dictionary definitions of “sex,” while clearly encompassing biological features, “implicitly recognize the limitations of a nonmalleable, binary conception of sex.” Because of this ambiguity, the majority held that it must accept OCR’s interpretation even though the OCR interpretation was “novel” and “perhaps not the intuitive one.”

The dissenting judge accused OCR and the majority of effectively rewriting title IX by adding an entirely new protected class—transgender people—that had no basis in the language or history of the statute. He noted that the majority’s “unprecedented holding overrules custom, culture, and the very demands inherent in human nature for privacy and safety, which the separation of [restrooms and other] facilities is designed to protect.” Citing numerous dictionary definitions, the dissent concluded, as had the district judge, that the term “sex” in the law and regulation unambiguously means biological sex for the very purpose of protecting these privacy rights.

Aftermath of Grimm

The Obama Administration wasted no time using the Grimm decision to double down and expand on its position. On May 13, 2016, less than a month after the Fourth Circuit decision was issued, the Education and Justice Departments sent a joint “Dear Colleague” letter to schools nationwide on how to comply with title IX in the case of transgender students. The May 13 letter prescribed very specific “guidance” on a number of points. For example:

• When a student or the student’s parent or guardian asserts a gender identity, the school must accept it. There is no requirement for a medical diagnosis or treatment regime.
• Access to locker rooms as well as restrooms is to be based on gender identity. A school may not require the use of individual-user locker or restroom facilities as an alternative.
• Where single-sex classes and activities are permitted, access must be granted based on gender identity.
• The letter also seems to require gender identity-based participation on sex-segregated athletic teams. (While somewhat equivocal on this point, it is unclear how the Departments could do otherwise given their legal interpretation that sex means gender identity under title IX.)

The Obama Administration’s position has not fared well in two preliminary judicial encounters subsequent to the Grimm decision. On August 3, 2016, the Supreme Court took the unusual step of issuing a stay to prevent enforcement of the Fourth Circuit’s decision pending its own review of the case.[7] Then on August 21, 2016, a federal district court in Texas issued a nationwide injunction barring enforcement of the May 13 Obama Administration letter.[8] The court held that (1) issuance of the letter without going through a rulemaking process violated the Administrative Procedure Act and (2) the Obama Administration’s position on title IX was inconsistent with the plain meaning of the statute and implementing regulation.

Critique of the Obama Administration Position and the Grimm Decision

If one applies well-established legal principles, the Obama Administration position and Fourth Circuit decision in Grimm are clearly wrong.

Under Supreme Court precedent,[9] courts generally defer to an agency’s interpretation of a regulation it issues or a statute it administers when (1) the interpretation “reflects the agency’s fair and considered judgment,” (2) the regulation or statute is ambiguous on the point at issue, and (3) the agency interpretation is not plainly erroneous. The Fourth Circuit majority’s acceptance of the OCR letter as a “fair and considered judgment” is dubious given that the letter provides no legal precedent or any reasoning at all to support its interpretation that “sex” means gender identity. More fundamentally, the Administration’s interpretation as set forth in the letter contradicts the unambiguous language of the regulation (and the underlying statute) and is, therefore, plainly erroneous.

Agencies and courts are obliged to apply a statute’s (or regulation’s) plain meaning when its language unambiguously conveys that meaning. Basic rules of statutory construction dictate that words used in a law be given their ordinary meaning as defined in dictionaries and like sources of common understanding. As noted previously, the term “sex” as used in title IX and its implementing regulations does have a uniformly defined and commonly understood plain meaning: It means biological sex.

The Obama Administration offers no explanation why its title IX regulation which explicitly permits sex-segregated restrooms doesn’t allow separation of males and females based on their physiological differences. The Fourth Circuit majority opinion in Grimm employs tortured reasoning in its effort to find some hint of ambiguity to support the Administration’s interpretation. In a masterstroke of illogic, the opinion asserts that the regulation must be ambiguous as to transgender coverage since it says nothing about this subject:

“Although the regulation may refer unambiguously to males and females, it is silent as to how a school should determine whether a transgender individual is male or female for the purpose of access to sex-segregated restrooms.”

This is akin to arguing that a regulation dealing with apples is ambiguous as applied to oranges because it makes no mention of oranges. In any event, the dictionary supplies the clear basis for making this determination since it defines male and female in terms of reproductive function.

Parsing the dictionary definitions of sex in its continuing effort to find ambiguity where none exists, the opinion cherry-picks references to gender or gender-type indicia in the definitions. It is true that there is a gender component to the concept of sex.[10] However, to conclude that sex means gender instead of biological sex in case of conflict between the two turns the dictionary definitions and common understanding on their head. As the dissent observes:

“Any new definition of sex that excludes reference to physiological differences, as the majority now attempts to introduce, is simply an unsupported reach to rationalize a desired outcome.”

The majority opinion also conjures up several far-fetched hypotheticals in an attempt to illustrate that the standard definition of biological sex may not work for all people.[11] But this approach cuts against the majority. Whatever uncertainty may arise in determining biological sex in very rare cases is nothing compared to the uncertainty of applying the law based on self-described gender identity. For example, there is a trend in contemporary culture that favors “gender-fluid” or “non-binary” gender identity. People in this camp “might wake up as a man or as a woman, sometimes as both and sometimes as neither.” How would the Obama Administration’s gender-based interpretation apply to them?

The Administration’s interpretation not only contradicts the plain meaning of the term “sex” but also disregards the obvious broader context here. There is a well-established right to bodily privacy arising from physiological differences between males and females that has been recognized in many judicial decisions and that forms the obvious rationale for the sex-segregation permitted by title IX and its regulations. As the dissent in Grimm stated:

“Title IX’s allowance for the separation, based on sex, of living facilities, restrooms, locker rooms, and shower facilities rests on the universally accepted concern for bodily privacy that is founded on biological differences between the sexes. This privacy concern is also linked to safety concerns that could arise from sexual responses prompted by students’ exposure to the private body parts of students of the other biological sex.”

The majority acknowledged that individuals have “a legitimate and important interest in bodily privacy” but dismissed this interest, observing that “the weighing of privacy interests or safety concerns—fundamentally questions of policy—is a task committed to the agency, not to the courts.” But the Obama Administration regulators simply ignored these privacy rights instead of weighing them.

In sum, one can debate whether title IX protections should apply on the basis of gender identity instead of biological sex to transgender people and thereby treat them as a distinct protected class. However, the current law and regulations clearly do not provide for this.

Beyond Bathrooms

Gender-based access to restrooms significantly impinges upon rights to personal bodily privacy. Such privacy and related concerns are even more severe when it comes to other title IX applications that the Administration’s interpretation reaches. These include access to locker room and shower facilities as well as assignment of dormitory rooms and roommates. Another highly problematic application is athletics. The Administration’s interpretation necessarily seems to make biological males who identify as female eligible to join women’s sports teams and to compete for women’s athletic scholarships. Since the Administration’s policy explicitly prohibits any medical diagnosis or other evidence, a male student need only assert transgender status to establish eligibility. This result is a particularly ironic perversion of title IX, which had as one of its key goals promoting parity between men and women in college sports.

Failure to require a medical diagnosis and treatment regime to support transgender status is problematic for other reasons as well. Dr. Paul McHugh, former psychiatrist-in-chief at Johns Hopkins Hospital and currently a professor of psychiatry and behavioral sciences there, cites studies finding that 70 to 80 percent of children who reported transgender feelings but did not undergo treatment lost those feelings later on. McHugh was once a supporter of gender-reassignment surgery but has come to view transgenderism as a mental disorder calling for remediation rather than re-enforcement. Pro-trans advocates excoriate McHugh as a tool of right-wing haters and challenge his views. However, if his statistics are even close to accurate, they should give pause to allowing mere assertions of transgender identity to govern restroom (and other) access even in the case of elementary school students. At the least, this issue merits objective, nonpolitical evaluation.

Outlook

The Supreme Court is almost sure to take up Grimm in its new term since it has already intervened in the case. Whether the Court can reach a definitive resolution is less certain given its current vacancy and ideological split. The Supreme Court’s action temporarily blocking the Fourth Circuit’s decision in Grimm came on a 5-3 vote. The four conservative-leaning justices voted for the stay while three of the four liberal justices opposed it. The remaining liberal justice, Stephen Breyer, provided the deciding vote for the stay but was tentative, somewhat enigmatically describing his vote as a “courtesy” to his fellow justices.

Whatever its final outcome, the Grimm case offers a striking illustration of the contrast between liberal and conservative worldviews. Proponents of transgender access assert their position as a moral imperative with no room for credible argument on the other side. They tend to dismiss those who oppose or even question their position as “non-inclusive” “transphobic” bigots. The stridency of this approach is reflected in the many boycotts instituted against North Carolina in retaliation for enactment of that state’s so-called “bathroom law” mandating sex-segregated restrooms.[12]  The media often serve as an echo chamber for this approach. Typical is a recent Washington Post article that portrays the Grimm case as an uncomplicated story of a boy “who just wanted to use the bathroom” but was stymied by ignorant, bible-thumping rubes. Proponents also seem focused entirely on the result without showing much interest in the legal details. Thus, liberal pundit Ruth Marcus praised the Fourth Circuit’s Grimm decision as “an intrusion of sanity” into the “bathroom wars” without addressing whether this intrusion was legal as well as sane. (Ms. Marcus did, however, express reservations about some of the decision’s consequences.)

Conservatives prefer to see such cultural issues resolved through the democratic process rather than by bureaucratic or judicial fiat. This leaves room for debate and possible compromise over competing interests. The Gloucester school board’s approach of offering Grimm access to a unisex restroom is a good example. Unisex restrooms are hardly “stigmatizing” since they already are widely available for many types of users. Had Grimm (and/or his legal team) accepted this common-sense accommodation, his bathroom needs could have been met without resort to a major federal lawsuit.

[1] Johnson v. University of Pittsburgh of the Commonwealth System of Higher Education, 97 F. Supp.3d 657 (W.D.Pa. 2015).

[2] While the court opinions refer to Grimm only by his initials, he has made various public appearances and his name has been widely reported.

[3] Until recently, the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM) classified this condition as “gender identity disorder.” The 2013 edition of the DSM (DSM-5) changed the name to “gender dysphoria” and describes it 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.”

[4] Grimm also asserted a discrimination claim under the Equal Protection Clause of the Fourteenth Amendment but this constitutional claim has not yet been addressed in his case. (Other courts have held that segregating restrooms and like facilities by biological sex is constitutional.)

[5] 132 F. Supp.3d 736 (E.D. Va. 2015).

[6] 822 F.3d 709 (4^th Cir. 2016).

[7]136 S. Ct. 2442 (2016).

[8] Texas v. United States, ___ F. Supp.3d ___, 2016 WL 4426495 (N.D. Texas 2016).

[9] The leading cases are Auer v. Robbins, 519 U.S. 452 (1997) (regulations), and Chevron, USA v. National Resources Defense Council, 467 U.S. 837 (1984) (statutes).

[10] In fact, gender stereotyping claims (e.g., discriminating against a woman who does not conform to female gender stereotypes) have been recognized as a form of sex discrimination in the context of employment under title VII of the Civil Rights Act. Court cases differ on whether or how gender stereotyping may apply to transgendered people. In any event, this approach has no relevance to restroom access under title IX at least on the facts in Grimm. Clearly Grimm was not a victim of gender stereotyping, nor did he claim to be. On the contrary, the school system accepted Grimm’s gender identity choice and treated Grimm like a male for most purposes. It drew the line at restroom use based on Grimm’s female physiological attributes not his male gender behaviors.

[11] The opinion asks what about someone born with X-X-Y chromosomes? (This extremely rare condition is known as “Klinefelter Syndrome” and those affected by it are clearly understood to be biological males.) Or what about someone who lost external genitalia in an accident? (No one would seriously argue that this changes the person’s biological sex.)

[12] While the North Carolina law deals with other issues as well, the bathroom aspect seems to be the main catalyst for of the boycotts. Notably, the state’s voters evidently intend to weigh in on these issues in the upcoming elections.

The subject of race and policing is as complex as it is important. Addressing the multi-faceted issues involved calls for objective, fact-based, contextual analysis. Unfortunately, that is not what we get from many activists and their media echo chamber. Two examples:

(1) One popular narrative advanced by activists, and seemingly accepted uncritically by many liberal media outlets, is that police target African-Americans for killing. The proof is that the percentage of fatal police shootings of blacks far exceeds their representation in the general population. Looking at statistical disparities in any outcome for any group in relation to their percentage of the population may be a useful starting point for inquiry. However, such disparities prove nothing in themselves. If they did, they would prove that police are wildly sexist and engaged in a massive war against males since roughly 95 percent of police killing victims are men. They would also prove significant disproportionate police targeting by age. What this “proof” leaves out, of course, is that men commit violent crimes at a much higher proportion than women, and that younger people are responsible for a disproportionately greater share of such crimes than seniors. Likewise, blacks, particularly young males, commit violent crimes at a much higher rate than their representation in the general population. When this violent crime disparity is factored in, it more than accounts for the racial disparity in police killings. The causes underlying racial disparities in violent crime rates are undoubtedly complicated and varied. Focusing on identifying and addressing these causes would be far better than simplistically pushing the false narrative of a police war on blacks.

(2) All fatal police shootings deserve scrutiny. When it comes to media coverage of these tragic events, however, black lives evidently matter a lot more than white lives. The recent police killings of two African-Americans–Terence Crutcher in Tulsa, Oklahoma and Keith Lamont Scott in Charlotte, North Carolina–have attracted intense nationwide media coverage and much instant analysis over whether their shootings were justified. Contrast the Crutcher and Scott cases with the two latest cases listed on the Washington Post’s database of 2016 fatal police shootings (as of 9/24/2016): In one case, an “unidentified person” was killed in Fair Oaks, California, by sheriff’s deputies who were investigating a burglary. The victim reportedly  pointed “an object” at the deputies. In the other case, Austin Baier, was fatally shot in Louisville, Nebraska. After being stopped for driving around in circles on someone’s lawn, Baier got out of his vehicle and a “confrontation” ensued. Baier was reportedly unarmed. Inexplicably, the Post lists the race of these two latest victims as “unknown.” A simple web site search reveals that both were white. (The “unidentified person” was Jesse Attaway.) Were the shootings of Baier and Attaway justified? Based on the minimal information reported, who knows. Sadly, the media’s answer seems to be who cares.

 

The 2016 election campaigns continue along their disastrous trajectory for Republicans. Trump is almost sure to lose the presidential contest to Clinton, the only real uncertainty being the margin of his defeat and its impact on down-ballot congressional elections. It is highly likely that Republicans will lose their Senate majority as things stand now. (It is even possible they could lose the House as well if the presidential election turns into a full-blown rout.) There remains, however, one critical action Senate Republicans can take to at least mitigate the damage before losing their majority: Confirm Merrick Garland’s nomination to the Supreme Court.

Republicans, and all those who favor judging on the basis of legal principles rather than policy preferences, are right to be extremely concerned about the ideological balance of the Supreme Court. The four Democratic appointees now on the Court have proven to be a virtually automatic voting block supporting the liberal outcome in politically-charged cases. Garland might turn out to be the fifth and decisive automatic liberal vote, but that is by no means a foregone conclusion. (Notably, leftist interest groups are far from enthusiastic about him.) On the other hand, it is a sure thing that liberals will get their fifth automatic vote if the vacancy remains for Clinton to fill. Indeed, she has announced “a bunch of [liberal] litmus tests” for her Supreme Court nominees.

While their underlying concern is valid, the Republican strategy to stall on Garland in the hope that Trump will win the presidency and nominate the second coming of Antonin Scalia seems increasing delusional as the GOP continues its suicide march toward November. When will the Republicans come to their senses and realize what a potential gift President Obama has given them with the Garland nomination? He is undoubtedly the best option (or least undesirable option) available at this point.

Some speculate that Clinton will stick with Garland once she is elected, but this is far from certain. Appointing Supreme Court justices is one of the most consequential actions a president takes and a key aspect of the president’s legacy. It is questionable for this reason alone that Clinton would simply defer to her predecessor’s choice. Moreover, Clinton is sure to face intense pressure from leftist interest groups to nominate an individual more reliably liberal and younger than Garland—and, quite possibly, someone less white.

Several other factors militate in favor of Clinton coming up with her own nominee—and one who pushes the envelope in a strong liberal direction. The Senate Republicans’ stated rationale for refusing to consider Garland—that the nomination must be left to the new president after the voters have spoken—pretty much boxes them into supporting whomever Clinton nominates. Even if Republicans resist, Democrats once in control of the Senate could invoke the so-called “nuclear option” and confirm her nominee by simple majority vote—particularly since Republican resistance would be viewed (correctly) as blatant hypocrisy given their stance on Garland. Furthermore, Senate Democrats and their liberal allies surely are aware of the math challenge facing them in the 2018 mid-term election cycle, which is even more pronounced than the numerical advantage that benefits them this year. In 2018, Senate Democrats will be defending 25 seats versus a mere 8 at risk for Republicans. Since the Democrats probably are looking at only a two-year window of Senate control, they will undoubtedly use that limited time to advance their agenda as aggressively as possible. Shaping the ideological makeup of the Supreme Court for years or decades to come would certainly be a very high priority.

If Republicans do finally wake up to the need to confirm Garland, they must act quickly. The opportunity to do so may not last until a lame-duck session following the November elections. It would not be at all surprising to see President Obama withdraw Garland’s nomination (at the latter’s “request”) immediately after the election as a “courtesy” to President-elect Clinton.