Desperately Smearing Amy Coney Barrett

Slate has started a new series, “Trump Bench,” in which Mark Joseph Stern profiles the records of prominent Trump judicial nominees. In his latest installment for this series, Stern examines the “appalling record” of Judge Amy Coney Barrett, and it’s a mess. To be clear, the mess is not Barrett’s record, but Stern’s treatment of it. Stern’s account is misleading and inaccuarate, and not remotely fair-minded.

I was going to detail some of the many problems with Stern’s piece, but Ed Whelan beat me to it. In two posts, here and here, Whelan catalogs the numerous instances in which Stern omits relevant context, mischaracterizes cases, and seeks to unjustly smear Barrett at every turn. Taken as a whole, the critique is fairly devastating.

If Stern responds to Whelan’s critique, I’ll post a link, but based upon my familiarity with several of the cases under discussion, and Barrett’s record more broadly, I doubt there’s much of a defense to make.

In the meantime, for those who want a fairer picture of Judge Barrett, I’d suggest going straight to the source, reading her opinions and law review articles, and perhaps watching this lecture that she gave at the Case Western Reserve University School of Law last year.

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Desperately Smearing Amy Coney Barrett

Slate has started a new series, “Trump Bench,” in which Mark Joseph Stern profiles the records of prominent Trump judicial nominees. In his latest installment for this series, Stern examines the “appalling record” of Judge Amy Coney Barrett, and it’s a mess. To be clear, the mess is not Barrett’s record, but Stern’s treatment of it. Stern’s account is misleading and inaccuarate, and not remotely fair-minded.

I was going to detail some of the many problems with Stern’s piece, but Ed Whelan beat me to it. In two posts, here and here, Whelan catalogs the numerous instances in which Stern omits relevant context, mischaracterizes cases, and seeks to unjustly smear Barrett at every turn. Taken as a whole, the critique is fairly devastating.

If Stern responds to Whelan’s critique, I’ll post a link, but based upon my familiarity with several of the cases under discussion, and Barrett’s record more broadly, I doubt there’s much of a defense to make.

In the meantime, for those who want a fairer picture of Judge Barrett, I’d suggest going straight to the source, reading her opinions and law review articles, and perhaps watching this lecture that she gave at the Case Western Reserve University School of Law last year.

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Unanimous 5-Judge Federal Circuit Court Opinion

From U.S. v. Alcantara (2d Cir. 2005):

Before: WALKER, Chief Judge, CARDAMONE, WINTER, STRAUB, and LAY,[*] Circuit Judges.

[*] The Honorable Donald P. Lay, Senior Circuit Judge, United States Court of Appeals for the Eighth Circuit, sitting by designation.

Five judges? How did that happen? Federal courts of appeal generally sit in three-judge panels; sometimes only two judges are listed, for instance if one of the judges couldn’t participate; some opinions are one-judge decisions on certain motions; and of course there are en bancs that generally include all the judges in the circuit (except in the Ninth Circuit, where those generally have only 11 of the judges), but this isn’t an en banc.

Post your answer in the comments, without peeking at the opinion. Or, if you just want to learn the answer for yourself, see here and here. I imagine this must have happened before, but it’s the first time I’ve seen it.

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Unanimous 5-Judge Federal Circuit Court Opinion

From U.S. v. Alcantara (2d Cir. 2005):

Before: WALKER, Chief Judge, CARDAMONE, WINTER, STRAUB, and LAY,[*] Circuit Judges.

[*] The Honorable Donald P. Lay, Senior Circuit Judge, United States Court of Appeals for the Eighth Circuit, sitting by designation.

Five judges? How did that happen? Federal courts of appeal generally sit in three-judge panels; sometimes only two judges are listed, for instance if one of the judges couldn’t participate; some opinions are one-judge decisions on certain motions; and of course there are en bancs that generally include all the judges in the circuit (except in the Ninth Circuit, where those generally have only 11 of the judges), but this isn’t an en banc.

Post your answer in the comments, without peeking at the opinion. Or, if you just want to learn the answer for yourself, see here and here. I imagine this must have happened before, but it’s the first time I’ve seen it.

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The Return of the “Faithless Elector”

As I predicted here, on Friday the Supreme Court granted certiorari in two consolidated cases (Chiafalo v. Washington (10th Cir.) and Colorado v. Baca (CO Supreme Court)) raising a significant question of constitutional law that the Court has never squarely addressed before: whether the Constitution, which expressly grants plenary power to the individual States to appoint presidential electors (Art. II sec. 1), permits those States to direct presidential electors to vote for a specific presidential candidate and to enforce those directions via ex post punishment, or whether, conversely, electors have a constitutionally-guaranteed right to use their discretion in deciding who to vote for.

Historian Michael Rosin and I, ably assisted by Michael Donofrio and Bridget Asay of the Stris & Maher law firm in Montpelier VT, submitted an amicus brief urging the Court to grant cert [available here], as well as amicus briefs on the merits in both of the cases at the appellate stage [available here].

So I’m naturally delighted that the Court agreed to take on the two cases.  With the presidential election of 2020 looming just over the horizon, and given all of the attention, good and bad, that the Electoral College scheme has gotten over the past few years, it is, clearly, a question of some importance.

Our briefs have focused on a single, narrow point: that while we all have come to regard presidential electors as performing a purely formal, ministerial function—a “kabuki democracy”-style ceremonial ratification of the results of the presidential election—it is hard to deny that the Framers had something very different in mind. As Justice Jackson put it (in dicta) some time ago:

“No one faithful to our history can deny that the plan originally contemplated, what is implicit in its text, is that electors would be free agents, to exercise an independent and nonpartisan judgment as to the [individuals] best qualified for the Nation’s highest offices.” Ray v. Blair, 343 US 214, 232 (1952).

Hamilton’s Federalist No. 68 is the primary, though hardly the only, support for this view of the “original expectation” of the Framers. Hamilton stressed the importance of having the president elected by “men most capable of analyzing the qualities adapted to the station,” noting that a “small number of persons, selected by their fellow citizens from the general mass, will be most likely to possess the information and discernment requisite to so complicated an investigation.”

The original scheme, in short, contemplated that presidential electors would actually elect the president—not merely ratify the results of an election by others. This was part of the Constitution’s remarkable, and remarkably ingenious, method of diffusing and diffracting the power to select officers of the new federal government by distributing that power to different bodies of electors: The “People of the several States” would choose Members of the House of Representatives (Art. I Sec. 2); the members of the State legislatures would choose Senators (Art. I Sec. 3); and a third body, composed of presidential electors who would be appointed by each State “in such Manner as the Legislature thereof may direct,” would choose the President and Vice-President (Art. II Sec. 1 and Amend. XII).

That scheme has been altered, of course, by express constitutional amendment: the 17th Amendment, providing for popular election of Senators. But no such modification has altered the express terms of the presidential election scheme.

I’ve never been particularly skilled at predicting how Justices will vote on particular matters, and I’ll spare you my predictions here.  One of the fascinating aspects of these cases is how difficult it is to situate the issue presented on some simplistic left-right spectrum. There’s an originalism/living constitutionalism axis; strict originalists at the Court may find the evidence of the historical understanding of the electors’ role persuasive, or even dispositive, while others more on the steady evolution over time of practices derogating from the original scheme. And there’s a federalism axis; some Justices might be receptive to the argument, which has roots in John Marshall’s opinion in the seminal case of McCullough v. Maryland, that because electors are performing a federal function, the Supremacy Clause disables the States from interfering with their performance of those functions, which others may believe that it is important to buttress the states’ role in the presidential electoral process.

And if the Court were to follow the 10th Circuit’s lead (and mine!) and uphold the principle of State non-interference in elector actions, what then? Will it actually change the manner in which we elect our presidents?

I’ll have more to say about all that as we get closer to a decision.

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The Return of the “Faithless Elector”

As I predicted here, on Friday the Supreme Court granted certiorari in two consolidated cases (Chiafalo v. Washington (10th Cir.) and Colorado v. Baca (CO Supreme Court)) raising a significant question of constitutional law that the Court has never squarely addressed before: whether the Constitution, which expressly grants plenary power to the individual States to appoint presidential electors (Art. II sec. 1), permits those States to direct presidential electors to vote for a specific presidential candidate and to enforce those directions via ex post punishment, or whether, conversely, electors have a constitutionally-guaranteed right to use their discretion in deciding who to vote for.

Historian Michael Rosin and I, ably assisted by Michael Donofrio and Bridget Asay of the Stris & Maher law firm in Montpelier VT, submitted an amicus brief urging the Court to grant cert [available here], as well as amicus briefs on the merits in both of the cases at the appellate stage [available here].

So I’m naturally delighted that the Court agreed to take on the two cases.  With the presidential election of 2020 looming just over the horizon, and given all of the attention, good and bad, that the Electoral College scheme has gotten over the past few years, it is, clearly, a question of some importance.

Our briefs have focused on a single, narrow point: that while we all have come to regard presidential electors as performing a purely formal, ministerial function—a “kabuki democracy”-style ceremonial ratification of the results of the presidential election—it is hard to deny that the Framers had something very different in mind. As Justice Jackson put it (in dicta) some time ago:

“No one faithful to our history can deny that the plan originally contemplated, what is implicit in its text, is that electors would be free agents, to exercise an independent and nonpartisan judgment as to the [individuals] best qualified for the Nation’s highest offices.” Ray v. Blair, 343 US 214, 232 (1952).

Hamilton’s Federalist No. 68 is the primary, though hardly the only, support for this view of the “original expectation” of the Framers. Hamilton stressed the importance of having the president elected by “men most capable of analyzing the qualities adapted to the station,” noting that a “small number of persons, selected by their fellow citizens from the general mass, will be most likely to possess the information and discernment requisite to so complicated an investigation.”

The original scheme, in short, contemplated that presidential electors would actually elect the president—not merely ratify the results of an election by others. This was part of the Constitution’s remarkable, and remarkably ingenious, method of diffusing and diffracting the power to select officers of the new federal government by distributing that power to different bodies of electors: The “People of the several States” would choose Members of the House of Representatives (Art. I Sec. 2); the members of the State legislatures would choose Senators (Art. I Sec. 3); and a third body, composed of presidential electors who would be appointed by each State “in such Manner as the Legislature thereof may direct,” would choose the President and Vice-President (Art. II Sec. 1 and Amend. XII).

That scheme has been altered, of course, by express constitutional amendment: the 17th Amendment, providing for popular election of Senators. But no such modification has altered the express terms of the presidential election scheme.

I’ve never been particularly skilled at predicting how Justices will vote on particular matters, and I’ll spare you my predictions here.  One of the fascinating aspects of these cases is how difficult it is to situate the issue presented on some simplistic left-right spectrum. There’s an originalism/living constitutionalism axis; strict originalists at the Court may find the evidence of the historical understanding of the electors’ role persuasive, or even dispositive, while others more on the steady evolution over time of practices derogating from the original scheme. And there’s a federalism axis; some Justices might be receptive to the argument, which has roots in John Marshall’s opinion in the seminal case of McCullough v. Maryland, that because electors are performing a federal function, the Supremacy Clause disables the States from interfering with their performance of those functions, which others may believe that it is important to buttress the states’ role in the presidential electoral process.

And if the Court were to follow the 10th Circuit’s lead (and mine!) and uphold the principle of State non-interference in elector actions, what then? Will it actually change the manner in which we elect our presidents?

I’ll have more to say about all that as we get closer to a decision.

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Vice President Pence’s Profile in Cowardice

On Thursday, Vice President Mike Pence had an op-ed in the Wall Street Journal praising the “courage” of Republican Senator Edmund G. Ross of Kansas, who broke with his party during the impeachment trial of President Andrew Johnson. Drawing heavily on President John F. Kennedy’s profile of Senator Ross in Profiles in Courage, Pence praises the willingness of a Senator to oppose a “partisan impeachment.”

Yet as Gerard Magliocca explains at Balkinization, there was nothing particularly courageous about Senator Ross’ vote. Rather, Magliocca explains, Ross was something of a “coward.”

The real profiles in courage were the House impeachment managers, led by John Bingham, who fought body and soul for the Fourteenth Amendment against President Johnson’s determined opposition. (Go and read Bingham’s closing argument in the trial to see real courage.) Saying this in 1957, when Profiles in Courage was published, would have been highly controversial, so JFK took the easy way out. (He was also running for President and wanted the support of segregationist Democrats.)

Could a person of principle have voted for President Johnson’s acquittal in 1868? Probably. Was Senator Edmund Ross of Kansas, whom JFK and the Vice President single out, one of those men? Definitely not. He was bribed for his not guilty vote. Ross was promised lots of federal patronage if he voted in favor of the President. Word of this got out after the trial ended and Bingham wanted the House of Representatives to investigate. Realistically, though, there was nothing that the House could do short of impeaching Johnson a second time, which was impractical at that point.

There are serious arguments that most of the charges upon which the House impeached President Johnson were mistaken, particularly insofar as they centered on Johnson’s violation of the (almost certainly unconstitutional) Tenure in Office Act, which purported to prevent the President from removing certain government officers without Senate approval. Yet there is little reason to believe a principled concern for protecting executive power motivated Senator Ross, and there were many sound reasons to urge President Johnson’s impeachment, particularly his efforts to undermine Reconstruction.

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Vice President Pence’s Profile in Cowardice

On Thursday, Vice President Mike Pence had an op-ed in the Wall Street Journal praising the “courage” of Republican Senator Edmund G. Ross of Kansas, who broke with his party during the impeachment trial of President Andrew Johnson. Drawing heavily on President John F. Kennedy’s profile of Senator Ross in Profiles in Courage, Pence praises the willingness of a Senator to oppose a “partisan impeachment.”

Yet as Gerard Magliocca explains at Balkinization, there was nothing particularly courageous about Senator Ross’ vote. Rather, Magliocca explains, Ross was something of a “coward.”

The real profiles in courage were the House impeachment managers, led by John Bingham, who fought body and soul for the Fourteenth Amendment against President Johnson’s determined opposition. (Go and read Bingham’s closing argument in the trial to see real courage.) Saying this in 1957, when Profiles in Courage was published, would have been highly controversial, so JFK took the easy way out. (He was also running for President and wanted the support of segregationist Democrats.)

Could a person of principle have voted for President Johnson’s acquittal in 1868? Probably. Was Senator Edmund Ross of Kansas, whom JFK and the Vice President single out, one of those men? Definitely not. He was bribed for his not guilty vote. Ross was promised lots of federal patronage if he voted in favor of the President. Word of this got out after the trial ended and Bingham wanted the House of Representatives to investigate. Realistically, though, there was nothing that the House could do short of impeaching Johnson a second time, which was impractical at that point.

There are serious arguments that most of the charges upon which the House impeached President Johnson were mistaken, particularly insofar as they centered on Johnson’s violation of the (almost certainly unconstitutional) Tenure in Office Act, which purported to prevent the President from removing certain government officers without Senate approval. Yet there is little reason to believe a principled concern for protecting executive power motivated Senator Ross, and there were many sound reasons to urge President Johnson’s impeachment, particularly his efforts to undermine Reconstruction.

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Chefs in Ireland Are Fighting a Mandatory Menu Calorie Count Law

Some of Ireland’s leading chefs are protesting a proposed mandatory restaurant calorie labeling law, with several of the country’s top chefs saying they’ll defy the law should it take effect.

Ireland’s health ministry has toyed with the idea of menu calorie labeling for some time. But reports last week indicated the government would press on with legislation after reviewing public comments on its proposal (which the government also did in 2015).

“I’ll pay whatever fine I have to, but I will never put calories on my menu,” chef Wade Murphy—whose award-winning restaurant 1826 Adare serves sumptuous and authentically Irish dishes such as Cured and Marinated Organic Irish Salmon and Wild Irish Venisontold the Irish Times last week. “Never.”

The Times reports other “chefs and restaurateurs across the country” are outraged. “We won’t be doing it, as stated many times before, we will NEVER put calories on the menus,” famed Dublin chef Eamon O’Reilly, holder of two Michelin stars, said in a tweet that also dubbed the plan “nonsensical, ridiculous & totally impractical.

The lead lobbyist for pub owners in Ireland, Donall O’Keefe, warns the proposal is an “administrative nightmare…. [that] will add to costs.”

The leading Irish restaurant lobby, the Restaurants Association of Ireland (RAI), has opposed plans for mandatory calorie labeling on restaurant menus for years. The RAI says testing menu items and revising menus will cost the average restaurant around $10,000.

Adrian Cummins, head of RAI, says the group’s members are “totally opposed” to the plan. He details the reasons behind RAI’s position here. They include dramatic compliance costs, a shortage of Irish chefs, and the fact calories counts alone, without context, “are not a good measure of healthy menus.”

Cummins calls the calorie mandate “nanny-statism at its best” and says his members will leave the country if forced to comply with the law.

Leading Dublin chef Gaz Smith, also an award winner, penned a spectacular op-ed last week in the Irish Daily Mail blasting the proposal.

“This seems like another Nanny State box-ticking exercise by the government with no real thought on genuine implementation, the realities of the costs and time of getting it accurate, and the burden it will place on smaller independent restaurants and cafes that are already swamped in regulations, legislation, VAT increases, and the ever-soaring insurance costs,” Smith writes.

As the Irish Times notes, Smith has had a little fun with the proposed mandate by placing a warning on his menus that each dish he crafts contains somewhere between one and 1,000,000 calories.

While that latter figure is a joke, the Irish are indeed among the world’s top consumers of calories. Many are obese. The government’s plan is intended to combat that problem.

But research consistently shows menu calorie labeling is not an effective tool for combating obesity. If menu labeling rules are “grounded in science,” I wrote in 2017, “that science is shoddy.” As I detailed in a 2014 column, “research show[s] mandatory menu-labeling doesn’t work—and may even be counterproductive.”

Last week’s Irish Times report suggests the calorie-labeling scheme is supported by research, citing a study that purportedly found “people order less and consume fewer calories when information on calorie content is included on menus.” That study, by researchers from Dublin’s Economic & Social Research Institute (ESRI), concluded what some others have found: Consumers who noticed calories printed after a menu item “ordered and ate fewer calories.”

But ESRI isn’t a neutral observer. Reports last year indicated ESRI had been “drafted in to help with the legislation” on calorie counts. What’s more, while the study details I reviewed don’t include data about what percentage of people who took part in the study actually noticed the calorie counts, the study’s results appear to track closely with thoroughly unconvincing earlier research I debunked in a 2016 column: “Contradictory studies that have touted menu labeling tend to be filled with qualifiers, along the lines of a small percentage of the small percentage of consumers who self-reported that they noticed calorie information on restaurant menus reduced their calorie intake by a small amount.” (To be fair, the Irish study was based on actual research observations rather than consumer self-reporting.)

Last year Simon Harris, Ireland’s health minister, said the government would soon push for calorie labeling. “I would hope that businesses across the country will, by their own initiative, lead on this issue,” Harris said at the time. Irish businesses are doing just that—though probably not in the way Harris intended. Good for them.

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Chefs in Ireland Are Fighting a Mandatory Menu Calorie Count Law

Some of Ireland’s leading chefs are protesting a proposed mandatory restaurant calorie labeling law, with several of the country’s top chefs saying they’ll defy the law should it take effect.

Ireland’s health ministry has toyed with the idea of menu calorie labeling for some time. But reports last week indicated the government would press on with legislation after reviewing public comments on its proposal (which the government also did in 2015).

“I’ll pay whatever fine I have to, but I will never put calories on my menu,” chef Wade Murphy—whose award-winning restaurant 1826 Adare serves sumptuous and authentically Irish dishes such as Cured and Marinated Organic Irish Salmon and Wild Irish Venisontold the Irish Times last week. “Never.”

The Times reports other “chefs and restaurateurs across the country” are outraged. “We won’t be doing it, as stated many times before, we will NEVER put calories on the menus,” famed Dublin chef Eamon O’Reilly, holder of two Michelin stars, said in a tweet that also dubbed the plan “nonsensical, ridiculous & totally impractical.

The lead lobbyist for pub owners in Ireland, Donall O’Keefe, warns the proposal is an “administrative nightmare…. [that] will add to costs.”

The leading Irish restaurant lobby, the Restaurants Association of Ireland (RAI), has opposed plans for mandatory calorie labeling on restaurant menus for years. The RAI says testing menu items and revising menus will cost the average restaurant around $10,000.

Adrian Cummins, head of RAI, says the group’s members are “totally opposed” to the plan. He details the reasons behind RAI’s position here. They include dramatic compliance costs, a shortage of Irish chefs, and the fact calories counts alone, without context, “are not a good measure of healthy menus.”

Cummins calls the calorie mandate “nanny-statism at its best” and says his members will leave the country if forced to comply with the law.

Leading Dublin chef Gaz Smith, also an award winner, penned a spectacular op-ed last week in the Irish Daily Mail blasting the proposal.

“This seems like another Nanny State box-ticking exercise by the government with no real thought on genuine implementation, the realities of the costs and time of getting it accurate, and the burden it will place on smaller independent restaurants and cafes that are already swamped in regulations, legislation, VAT increases, and the ever-soaring insurance costs,” Smith writes.

As the Irish Times notes, Smith has had a little fun with the proposed mandate by placing a warning on his menus that each dish he crafts contains somewhere between one and 1,000,000 calories.

While that latter figure is a joke, the Irish are indeed among the world’s top consumers of calories. Many are obese. The government’s plan is intended to combat that problem.

But research consistently shows menu calorie labeling is not an effective tool for combating obesity. If menu labeling rules are “grounded in science,” I wrote in 2017, “that science is shoddy.” As I detailed in a 2014 column, “research show[s] mandatory menu-labeling doesn’t work—and may even be counterproductive.”

Last week’s Irish Times report suggests the calorie-labeling scheme is supported by research, citing a study that purportedly found “people order less and consume fewer calories when information on calorie content is included on menus.” That study, by researchers from Dublin’s Economic & Social Research Institute (ESRI), concluded what some others have found: Consumers who noticed calories printed after a menu item “ordered and ate fewer calories.”

But ESRI isn’t a neutral observer. Reports last year indicated ESRI had been “drafted in to help with the legislation” on calorie counts. What’s more, while the study details I reviewed don’t include data about what percentage of people who took part in the study actually noticed the calorie counts, the study’s results appear to track closely with thoroughly unconvincing earlier research I debunked in a 2016 column: “Contradictory studies that have touted menu labeling tend to be filled with qualifiers, along the lines of a small percentage of the small percentage of consumers who self-reported that they noticed calorie information on restaurant menus reduced their calorie intake by a small amount.” (To be fair, the Irish study was based on actual research observations rather than consumer self-reporting.)

Last year Simon Harris, Ireland’s health minister, said the government would soon push for calorie labeling. “I would hope that businesses across the country will, by their own initiative, lead on this issue,” Harris said at the time. Irish businesses are doing just that—though probably not in the way Harris intended. Good for them.

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