#ReleaseTheMemo: CLS, the Rule of Law, and the Nunes Memo

The Critical Legal Studies (CLS) movement was born in the American legal academy in the 70's and reached the pinnacle of its importance in the mid-to-late 80's when it turned the Harvard Law School (the de facto capital of the movement) into "the Beirut of legal education." (I actually benefited from the mess CLS made of Harvard because at least two of my best professors at Chicago were refugees from Harvard, at least temporarily seeking shelter from the CLS movement there.) Adherents of CLS (Crits) are hostile to the traditional western concept of the rule of law. In fact, they think there is no such thing. Law is mere politics, they say. Critical Legal Scholars seek to destroy (they say "deconstruct") law from the inside. This led the Dean of Duke Law School to question in 1984 how those who do not believe in law can teach it. Good question.

At the law school where I teach, we tell our students about CLS (even though the movement is much less prominent today than it was about thirty years ago), and I'm glad we do because it has had a profound effect on our country. One of the CLS writings we have our students read is a piece by Paul Butler on jury nullification. Butler argued that "the idea of 'the rule of law' is more mythological than real," and that his audience "should embrace the anti-democratic nature of jury nullification because it provides them with the power to determine justice in a way that majority rule does not," and that they should "serve a higher calling than law: justice." Butler learned this philosophy at Harvard Law School, where he graduated in 1986, near the apex of the CLS movement. 

What does all of this have to do with America today you ask? Guess who else graduated from Harvard just five years after Paul Butler? That's right, President Barack Obama, and I'll bet dollars to donuts that there's a 70% overlap between Butler's and Obama's course selection, surely dominated by Crits. (I would even guess that the real reason President Obama always refused to release his transcripts wasn't any of the reasons imagined by online conspiracy theorists. I'll bet he refused to release his transcripts because he would be embarrassed by his course selection at Harvard.) 

The main reason I would bet that President Obama studied at the feet of Crits is that the Obama administration was CLS philosophy implemented on a grand scale. (The proof of the pudding is in the eating, as they say.) We saw it over and over. President Obama refused to enforce laws that he did not like, and he acted in the absence of law when he thought it was desirable to do so. And why not? He was taught in law school that there is no such thing as law. What passes for law is merely politics. Law is what you can get away with politically, and that's how President Obama ran his administration, especially in his second term, when he had more flexibility.  

But President Obama is so 2016, you might say. What does that have to do with America today? I'll tell you. Parts of our federal government are supposed to be political. The Senate and the House of Representatives are prime examples. Politics is the rule there, and that is the way it is supposed to be. But other parts of our government are supposed to be legal, not political. The Justice Department, the IRS, and the Federal Courts are supposed to be such non-political examples. Those branches and limbs of the federal government are supposed to be bound by the laws created by the political parts of government, but their work is supposed to be free of politics. This is part of the reason that President George W. Bush's attorney general, Alberto Gonzales, was pressured to resign for allegedly improperly firing US Attorneys for political reasons. The Justice Department is not supposed to be political.

But what happens when the President himself, who appoints all the high-ranking officials in these non-political limbs of the federal government, has been taught and believes that there is no distinction between law and politics? Then you get the Obama administration. The Justice Department, IRS, FBI, and even the Federal Courts become law-free zones. Politics is everything. The attorney general does not enforce the law, she protects her preferred political party. The IRS persecutes political opponents. Lifetime appointees to the federal bench issue transparently political decisions with no basis in law. This is Obama's lasting legacy, the eroding of the rule of law within the institutions of our federal government.

Many of President Obama's legislative and executive legacies likely will be quickly dismantled by President Trump, but Obama's hundreds, maybe even thousands, of appointments and hires have revolutionized the Justice Department, the judiciary, and, apparently, the FBI. While many, maybe even most, of President Obama's appointees probably are not Crits, if there are even a couple hundred high-ranking Justice Department officials and/or lifetime federal judicial appointees who are not committed to the rule of law, we could be in for decades of lawlessness. We've never seen anything like this before. Not from Bush, not even from Clinton. A liberal employee of the federal government can still be fundamentally committed to the rule of law, but those who share President Obama's philosophy threaten law itself. That lasting influence of the Obama administration must be rooted out, not covered up. #ReleaseTheMemo

Reflections a Year After the Stolen Gorsuch Supreme Court Seat

I've heard many times that the seat occupied by Justice Neil Gorsuch is a "stolen" seat on the Supreme Court. Let's break that down. The Gorsuch seat is stolen only if someone else was entitled to it. Was anyone else entitled to it?

That's not a hard question. We know what's required to be entitled to a Supreme Court seat -- nomination by the President and confirmation by the Senate. Was anyone else nominated and confirmed for the Scalia vacancy? No. So the seat didn't belong to anyone else and wasn't stolen by the republicans when Gorsuch took it.

Of course, I know what the democrats and their allies in the mainstream media mean when they say this is a stolen seat. They mean Garland should have been confirmed. But that's wrong, too. Is the Senate obligated to confirm every qualified nominee? Has the Senate always confirmed every qualified nominee? The answer to both questions is "no." The republican Senate was under no obligation to confirm Garland.

"But he didn't even get a hearing," you say. I tend to agree that the republicans should have given Garland a hearing. As I said at the time of his nomination, I thought the republicans should have given Garland the Bork treatment. Slow walk his confirmation and then reject it. For political reasons, they decided to skip all that and simply say "let's leave this seat up to the people in the election." Even though I think this was a less than ideal way to reject Garland, that doesn't change the fact that the republican Senators were perfectly entitled to reject him, which they did.

Here's the fundamental point that the democrats and their allies in the mainstream media seem to miss -- elections have consequences for the makeup of the Supreme Court. That principle applies to both elections for President and elections for the Senate. I say democrats "seem" to miss this point because they merely pretend to miss it. They actually understand it all too well. In fact, that was the very game they were playing with the Garland nomination.

You see, they know that the only sure way to move the Court either to the right or to the left is to control both the White House and the Senate. When control of the White House and Senate are split, then there might have to be compromise, and it's much harder to move the Court very far. The democrats learned this lesson very well during the Reagan administration. President Reagan appointed Robert Bork, who would have moved the Court to the right. The democrats controlled the Senate, so they rejected Bork, who was eminently qualified, on ideological grounds. Reagan was forced to nominate Kennedy, who turned out to be the quintessential moderate. Imagine how much different our Supreme Court precedent would look today if Reagan could have forced Bork instead of Kennedy on the democrats. That's the importance of controlling the Senate.

So when the late great Justice Scalia died unexpectedly late in President Obama's second term when the republicans controlled the Senate, all of the players had political decisions to make. President Obama had the first decision to make. He could either nominate a liberal or a true moderate (like Kennedy). If he nominated a liberal, the nomination almost surely would be rejected, one way or another, and the open seat would become an issue in the upcoming election, during which the democrats felt sure they would retain the White House and hoped to regain the Senate.

If Obama nominated another Kennedy, the republicans would have had a tough choice. They could either accept another Kennedy to replace Scalia, which would move the Court incrementally to the left, or they could reject the moderate nominee and roll the dice on the election. If Clinton were elected (as most expected) and the republicans retained the Senate, they'd be right back where they started when Scalia passed. But if the republicans lost the White House and the Senate, then a moderate would be off the table. They would get another Sotomayor. Replacing Scalia with a Sotomayor would be a drastic shift to the left.

President Obama made the key decision. He decided to appoint a liberal. I know a few of you will say "but Garland is a moderate." Please, don't even. I know the left says that, but he's a moderate like Roberts is a moderate, not like Kennedy is a moderate. Swapping out Scalia for Garland would have been a huge shift to the left. So Obama intentionally chose to nominate a jurist he knew the republicans would reject. And why shouldn't he? Clinton was sure to win, so, worst case scenario, the liberals would be, after the election, right back where they started from. Why should Obama agree to appoint a moderate as Reagan had been forced to do?

Of course, we know what happened. Scalia's open seat became, perhaps, the most important issue in the presidential election. I say that because it welded the right wing of the republican party, especially the religious right, to Trump in a way that perhaps nothing else could. Trump masterfully put out his list of potential conservative nominees and promised to nominate from that list. And he delivered.

I understand that this is the unimaginable worst case scenario for the democrats. They rolled the dice on the election and the dice came up craps. But this was the risk that Obama took when he decided to nominate a liberal. It looked like a good bet at the time, the odds were in his favor, but he lost his bet. 

So did republicans steal a Supreme Court seat? No, the democrats gambled it away.