Here is my letter to the editor in The Chronicle of Higher Education about social justice and intellectual pluralism at law schools. The letter responds to a published piece about the mission of the law school.
President Trump’s prolific and sometimes irresponsible use of Twitter has intersected with several significant free speech issues. Earlier this year, a federal district court ruled that President Trump cannot block Twitter users based on their viewpoints. Twitter itself is a private forum, not subject to First Amendment protections. However, @realDonaldTrump’s “interactive space” was deemed a designated public forum incompatible with viewpoint discrimination based on the expressive nature of the medium and President Trump’s use of the account to deliver official pronouncements.
President Trump’s tweets about Muslims who are foreign nationals entering the United States were scrutinized closely by litigants and appellate court judges. However, the tweets were ultimately not considered relevant to a majority of the Supreme Court in upholding President Trump’s third executive order, which placed entry restrictions on citizens of eight countries. (Justice Sotomayor’s dissent in Trump v. Hawaii did note his tweets about the entry ban.) According to Chief Justice Roberts’s majority opinion, the facially neutral executive order, which implicated national security concerns, passed rational basis review and was therefore constitutionally justified “quite apart from any religious hostility.”
Currently, Special Counsel Robert Mueller may be investigating President Trump’s tweets for obstruction of justice offenses. Specifically, President Trump may have tweeted threats to government officials, like Jeff Sessions, James Comey, and Roger Stone, to attempt to induce them not to offer evidence to Robert Mueller in his investigation of potential Russian interference in the Presidential election. The relevance of President Trump’s tweets depends upon their constitutional status and whether they provide evidence of the elements of obstruction of justice.
The battle over the revocation of CNN correspondent Jim Acosta’s “hard pass,” which permitted Acosta regular access to White House press briefings, has been resolved practically, but not legally. A federal district judge issued an order temporarily restoring Acosta’s pass during his lawsuit against Donald Trump and other members of the Trump Administration. The White House then essentially settled the case by promulgating new rules of decorum, requiring journalists to ask only one question. For now, the Acosta case appears resolved. The legal issues, however, remain significant, interesting, and relevant. Below is some preliminary analysis of Acosta’s lawsuit and the White House’s authority to issue and revoke hard passes and control its press briefings.
Here is a link to a recent opinion piece I wrote about restoring legitimacy to the Supreme Court.
Halloween is my second favorite holiday (after April Fools’ Day). In prior years, I have dressed as the standard of review “abuse of discretion” and the exception to but-for causation for “multiple sufficient causes.” Can you guess my costume this year?
Crim Pro Midterm
The Federal Bureau of Investigation (FBI) received an anonymous letter that a judge currently serving on the federal court of appeals in Cincinnati took a large bribe from the writer of the letter. According to the letter, the judge, Karl Kaspian, used to live in a small home and now lives in a mansion and wears fancy jewelry. FBI agents checked housing records and noticed that Judge Kaspian had recently moved from a modest neighborhood to a wealthy gated community. An undercover agent sat in the Judge’s courtroom and noticed his wearing a fancy watch and ring. After the day’s court proceedings were over, the FBI agent observed, and seized, a diamond ring that Judge Kaspian had dropped on the floor on his way out of the courthouse.
Four FBI agents then surrounded Judge Kaspian inside the parking garage of the federal courthouse in Cincinnati. The agents’ guns were visible in their holsters, but they kept enough distance so Judge Kaspian could get to his car. The agents asked Judge Kaspian if they could search his car, and the Judge said yes. Inside the car, the agents found records of many bribes Judge Kaspian had taken. At his trial for corruption, Judge Kaspian seeks to exclude (1) the diamond ring and (2) the evidence from his car. What is the likely result?
Three academics looking to emulate scholars in the fields they describe as “grievance studies” (gender studies, critical race studies, fat studies) pulled off a stunning hoax. These academics managed to publish several papers in serious academic journals even though the papers made absurd claims based on unsound methodologies. One published article, for example, was about rape culture in dog parks, and another – which was ultimately not published but received favorable reviews – suggested chaining up and silencing white students in order for the white students to “experience reparations.” What the papers had in common was that they confirmed the worldviews and aims of the journals – in particular, the papers sought to elevate the voices of those with less power in order to dismantle power structures.
Reasonable minds can differ on whether Judge Kavanaugh sexually assaulted Dr. Christine Blasey Ford. Perhaps Judge Kavanaugh is lying, or perhaps he does not remember the incident. Perhaps Dr. Ford is lying, or incorrectly remembers either the identity of the assailant or the severity of the interaction. These events happened over three decades ago, and there is little evidence besides the directly contradictory testimony of both parties, both of whom have significant inconsistencies in their accounts.
Reasonable minds can also differ on whether Judge Kavanaugh displayed such intemperate and partisan behavior that he forsook his duty to appear impartial. Personally, I am more concerned by what may be lies under oath than his understandable anger, but I appreciate those who believe his confirmation would further erode the legitimacy of the judiciary.
Where I think we reached unreasonable levels is in our projection of all of our perceived social ills onto Judge Kavanaugh. Many have assumed that if we confirm Judge Kavanaugh, their own stories of trauma and abuse will be erased. Perhaps this was so when the Senate refused to pause even for an FBI investigation of the allegations of Dr. Ford, but it is not true now. Judge Kavanaugh did not assault us all, and he is an individual who deserves individual consideration. Assuming his anger is entitlement because he is male, or promoting the idea that we should automatically believe all women who charge others with sexual misconduct, simply because so many women are telling the truth, is a recipe for abandonment of our most cherished principles.
I was reasonably satisfied with Judge Kavanaugh’s nomination to the Supreme Court. I thought he was a smart, fair jurist. Although I did not agree with all of his lower court decisions, I appreciate that evaluating a judge based on whether I agree with his ultimate outcomes, as opposed to the strength and coherence of his legal reasoning, is detrimental to rule of law principles.
The mixed reactions, on many aspects of the way we approach Dr. Blasey Ford’s allegations against Judge Brett Kavanaugh, track either politics or ideology in a way that should give every one of us pause.
At one end of the spectrum is Senator Mazie Hirono, who told men to “shut up and step up … do the right thing, for a change,” after Dr. Chrstine Blasey Ford’s allegations against Judge Brett Kavanaugh came to light. Blasey Ford released her story weeks after her allegations had been sent to Senator Dianne Feinstein, and days after the Senate finished its hearings on whether to confirm Judge Kavanaugh to the Supreme Court. Senator Hirono’s view is that, despite the impossibility of gathering meaningful statistics on how many reports of sexual assault are false, a woman is automatically to be believed regardless of evidence, and men, by virtue of their membership in a particular group, are all guilty by association and cannot contribute to meaningful dialog on this topic.
At the other end of the spectrum is Senator Mitch McConell, who wants to “plow through” with Judge Kavanaugh’s confirmation despite a credible accusation of sexual assault, who appears to categorize Dr. Blasey Ford’s coming forward as a partisan tactic to delay Judge Kavanaugh’s confirmation vote until after the midterm elections, who sees no need for further investigation on this topic. And, of course, there’s Donald Trump, who essentially called Dr. Blasey Ford a liar for failing to report her allegations 35 years ago, to either “her loving parents” or law enforcement.