Category: reason

The National Law Journal reports that the Biden Administration is having some difficulty finding a Solicitor General:

Biden’s selection for U.S. solicitor general is still being discussed, according to a source close to the team. California Supreme Court Justice Leondra Kruger, mentioned as a possible choice, has twice declined the job. Judge Diane Wood of the U.S. Court of Appeals for the Seventh Circuit has also reportedly been considered for the position.

I am not surprised Justice Kruger declined the nod. I offered her this same unsolicited advice last month. Kruger will almost certainly be nominated when Justice Breyer steps down. Why would she suffer through an unnecessary confirmation hearing, and potentially get embroiled in political conflicts? The fact that she declined twice reaffirms my thinking.

In the interim, Elizabeth Prelogar will serve as acting Solicitor General.

Elizabeth Prelogar, a Cooley partner in Washington and former assistant to the U.S. solicitor general who was a legal adviser in the special counsel probe of Russian interference in the 2016 election, will be the principal deputy U.S. solicitor general in the new Biden administration.

Alas, other candidates on the short list are not female:

The transition team is still interested in filling the position with a woman, preferably someone with litigation experience and stature. However, if the choice is a male, some names mentioned include Mayer Brown partner Andrew Pincus and David Frederick of Kellogg, Huber, Hansen, Todd & Frederick.

Either selection would be excellent, but they are both white men. There is another non-white male on the short list:

It is also possible that Chief Judge Sri Srinivasan of the D.C. Circuit may be among the candidates, although there is some concern about removing two judges from that appeals court.

There is some precedent for a D.C. Circuit judge stepping down to serve as Solicitor General, in the hopes of getting appointed to the Supreme Court. Ken Starr served on the D.C. Circuit from 1983 till 1989. At that point, he was confirmed as Solicitor General in the H.W. Bush administration. Most people assumed Starr made this move to help his Supreme Court prospects. Alas, Starr was not selected for the Brennan and Marshall seats. The rest is history. My unsolicited advice to Judge Srinivasan: stay put.

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I’ve done several Zoom talks on various subjects over the last several weeks (most recently to a Jewish high school in Atlanta), and much enjoyed them. They are less engaging, of course, than an in-person talk, but there’s no travel time and no travel cost, so I’m much more open to such invitations than I had been to in-person speaking engagements. So far, I’ve done, among other things,

• law school talks “at” Arizona, Chapman, Columbia, Duke, Illinois, Texas, and Yale,
• talks to college classes, in places where I’d normally have a hard time traveling (such as the southernmost tip of Texas),
• talks to high school classes, including in Alaska,
• talks to lawyer groups, including in the Northern Mariana Islands,
• talks to community groups, such as a local Rotary Club,
• a conversation with a church pastor,
• TV and radio programs, and
• podcasts and videocasts.

I’m teaching again starting next week (I was on sabbatical this Fall), but I’ll still be up for such talks then. So if you’re interested, please just drop me an e-mail at volokh at law.ucla.edu. I’d also be glad to talk

• to school assemblies and classes,
• to homeschooling groups,
• and to other groups as well.

I’ve mostly talked about free speech and about religious freedom, but I can also talk about gun rights and gun policy, Internet law, the Supreme Court, and a smattering of other topics. Please let me know if you’re interested.

People sometimes ask me about honoraria, and my answer is that I’d like whatever honorarium your group customarily pays for similar events. If it doesn’t normally pay an honorarium, I’ll generally be glad to do it for free; I view it as part of the “service” component of a professor’s job (“research / teaching / service“), and it’s part that I enjoy. But if you’d like to send me a locally themed care package (three places so far have done that), especially items that I can display or eat or drink on the video, I think that makes for a fun extra connection for the audience—a little bit more like I was physically there. In any case, please let me know if some group you’re involved with would be interested.

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“All animals experience fear—human beings, perhaps, most of all.” The government depends on it to “secure popular submission, compliance with official dictates, and, on some occasions, affirmative cooperation with the state’s enterprises and adventures,” wrote the historian Robert Higgs in a 2005 essay.

The storming of the Capitol was a horrifying event, and Americans were understandably traumatized. But the reaction to a crisis also requires special vigilance.

After the horror of the 9/11 attacks, many Americans acquiesced in the face of any policy that promised to keep them safe.

We got mass surveillance, deadly foreign wars, state-sanctioned torture, and the incompetent Department of Homeland Security.

This week’s armed lockdown of D.C.—in preparation for the swearing-in of a new government—provides us with a visceral feel for the legislative proposals we can expect in the months to come.

“They were a riotous mob. Insurrectionists. Domestic terrorists,” President-elect Joe Biden said. “It’s that basic. It’s that simple.”

In his remarks after the Capitol attack, Biden promised to revive a domestic terrorism bill that would make “the same commitment to root out domestic terrorism as we have [made] to stopping international terrorism.”

This from a man who repeatedly claimed authorship of the Patriot Act, which turned “regular citizens into suspects,” in the words of the ACLU.

Rep. Alexandria Ocasio-Cortez (D–N.Y.) objected to the call for a new domestic terrorism bill on Twitter, noting that “our problems on Wednesday weren’t that there weren’t enough laws, resources, or intelligence. We had them, & they were not used.”

She pointed to a different culprit.

“We’re going to have to figure out how we rein in our media environment,” she said on Instagram, “so you can’t just spew disinformation and misinformation, it’s one thing to have different opinions, but another thing to say things that are just false.”

To let government agencies “rein in” the media is to put control over speech in the hands of people who always see the benefit in less scrutiny and criticism of their own actions.

As former Chicago mayor and former White House chief of staff Rahm Emanuel famously quipped, “you never want a serious crisis to go to waste. And what I mean by that is an opportunity to do things that you think you could not do before.”

“By keeping the population in a state of artificially heightened apprehension, the government-cum-media prepares the ground for planting specific measures of taxation, regulation, surveillance, reporting, and other invasions of the people’s wealth, privacy, and freedoms,” wrote Higgs.

A politician’s wish list of expanded powers is endless. And we must be especially careful when fear overtakes us not to turn a blind eye to a different threat coming straight at us.

This video essay is based on Tuccille’s January 15, 2021 column, “Don’t Let the Capitol Riot Become a 9/11-Style Excuse for Authoritarianism.”

Narrated by J.D. Tuccille; edited by Meredith Bragg; Camera by Qinling Li.

Riot footage by Ford Fischer.

Photo Credits: Ron Sachs/picture alliance / Consolidated/Newscom; SplashNews/Newscom; Stefani Reynolds/CNP / Polaris/Newscom; KEVIN DIETSCH/UPI/Newscom; Hubert Boesl/picture-alliance / dpa/Newscom; JASON REED/Reuters/Newscom

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Writing at The Daily Beast, Jeff Stein asks whether America needs a new federal spy agency focused on domestic threats in the wake of the attack on the U.S. Capitol by Americans who refuse to accept that outgoing President Donald Trump lost the 2020 election.

But we already have such an organization. It’s called the FBI. Stein argues that the FBI is so focused on solving and clearing crimes that it’s not able to effectively engage in domestic intelligence gathering. He asks whether a new federal agency should be created for that purpose.

In reality, the FBI is set up just fine for intelligence gathering. In fact, under Trump, the FBI’s authority to secretly snoop on American citizens was actually expanded. The intelligence failures that preceded the attack on the Capitol involved a lack of communication between law enforcement agencies about the intelligence that had been gathered. It’s not entirely clear how yet another federal surveillance agency would fix that problem.

Stein does quote a number of experts who throw cold water on the idea of creating a new domestic surveillance agency, including former Director of National Intelligence James Clapper, who says, “Whenever something goes wrong, the knee-jerk Beltway reaction is, ‘Let’s reorganize,’ when more often than not, that’s not the problem.”

Clapper himself became a symbol of the capacity of the federal government to snoop on American citizens when he flat-out lied to a Senate Intelligence Committee in 2013 about whether the National Security Agency (NSA) was collecting Americans’ data records. “Not wittingly,” Clapper said.

But the NSA was collecting such information. In fact, it collected millions of metadata records documenting Americans’ cellphone and internet activities. Edward Snowden even pointed to Clapper’s lie as one of the reasons why he decided to blow the whistle on America’s post-9/11 domestic surveillance regime.

Our understanding of that domestic spying regime did not start with Snowden. Thanks to an Associated Press investigation we learned in 2011 that the New York City Police Department had engaged in the mass surveillance of Muslim citizens. That police snooping uncovered zero terror plots.

The rise of the Department of Homeland Security led to the creation of a national network of “fusion centers,” state-level centralized information hubs that were presented as a way of collating data about potential terrorism threats within the U.S. These centers have, in fact, become domestic surveillance tools keeping track of everything from the Occupy movement to protesters bearing “Don’t Tread on Me” flags. The fusion centers have been justly criticized for being useless, expensive, and bad for civil liberties.

More recently, the Department of Homeland Security deployed drones and recorded hundreds of hours of Black Lives Matter protests in the wake of George Floyd’s death.

We are absolutely awash in federal domestic surveillance.

Furthermore, these expanded federal surveillance powers have failed to prevent multiple terrorist attacks on U.S. soil in the past two decades. There was the Boston Marathon bombing, the San Bernardino shootings, and the Orlando Pulse nightclub shooting. It’s hard to believe that yet another agency will be any different.

As a response to the 9/11 attacks, the U.S. embraced a host of invasive policies that didn’t work, didn’t make us safer, and didn’t respect our civil liberties. We should not make the same mistakes in our response to the attack on the Capitol.

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This morning, USA Today published my new op ed on how Sen. Josh Hawley’s “national conservatism” is a menace to free speech (especially online) and liberty generally. I also point out how similar ideas are prevalent in many quarters on the left. Here’s an excerpt:

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