another site
9/20/1968: The New York City Landmarks Preservation Commission denied a certificate of no exterior effect to the Penn Central Transportation Co. The Supreme Court found that the City of New York did not violate the Takings Clause in Penn Central Transportation Co. v. New York (1978).
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October 2005
“Scalia is hardly the only justice whose personal values bleed into his rulings. He is, however, the one most critical of his colleagues for allowing their decisions to be dictated by ideological preferences. There is no reason to believe Scalia is consciously hypocritical on any issue. Yet time and again, his strict construction of the Constitution happens to coincide, almost precisely, with some ideological preference of his own.”
Cathy Young
“Antonin Scalia, Judicial Activist”
“In the unlikely event that a terrorist with a bomb is picked for a search, he can simply say no and exit the system with no questions asked. (It has to be that way so the city can argue in court that the searches are voluntary.) Upon leaving the subway, he can try again at another station, pass his bag to an accomplice, or detonate his bomb at a crowded location above ground.”
Jacob Sullum
“Pansies of New York”
October 2000
“Rock and the larger pop music scene are so clearly a function of the wealth, innovation, and leisure time thrown off by capitalism that it should be nothing less than mind-boggling that pop stars themselves mutter incessantly about toppling the very system that pays them so well. But to most rock stars and rock critics, the link between the music and left-wing politics is so natural and so expected that it is simply assumed.”
Brian Doherty
“Rage On”
“When disco died, the record industry did not start taking new wave bands to court, demanding that they stop competing with the Bee Gees and kindred has-beens. It went hunting for every Ric Ocasek clone it could find, intent on exploiting the latest Next Big Thing until audiences found it as intolerable as disco.”
Jesse Walker
“Music for Nothing”
October 1985
“It doesn’t matter whether censorship assumes the guise of orthodox obscenity statutes or the newer and more insidious mask of bogus civil-rights measures. The ultimate consequences are identical—less freedom, more tyranny. Dozens of local governments are now considering restrictive laws patterned after the Indianapolis ordinance. Americans should know better; censorship has flourished before, and we know that it inexorably produces stifling conformity. No intelligent person should wish to repeat that tragedy.”
Ted Carpenter
“Porn Busters”
“A nation’s force level tends to be set by default: it is the result of political and bureaucratic struggling. For those who seek to control armaments in the world, an understanding of this ‘structural’ aspect of militarism is an indispensable starting point. A nation’s armed forces are not only, or even primarily, the result of conscious, calculating leadership decisions, as many arms-control theorists would have it. Rather, the size and character of a nation’s armed forces are shaped by the structure of the regime and the political processes within it.”
James Payne
“Marxists: They Love a Man in a Uniform”
“The humanities, whether they should or shouldn’t be revived for other reasons, are not very useful. Students are not leaving the humanities in droves because they want marketable skills whereas in the humanities’ heyday they were less job-oriented. They are leaving the humanities because a liberal arts education no longer offers marketable skills, as it did in the old days—the intellectual skills that men and women need to prosper in a free society.”
Max Hocutt
“Humanities’ Ills”
October 1975
“Libertarians who are no doubt accustomed to meeting their ideas in caricature have probably been told that in a libertarian world—one with private streets, private mass transit, private utilities of all descriptions, private ownership of redwood trees and alligators—everything would have an explicit price to it. To walk on the streets, to visit the parks, individuals would be required to make an explicit contract. That this is in fact a distortion can be seen because the real world has been kind enough to provide Walt Disney World, a contractual city which bears no resemblance to the caricature.”
David Levy
“Learning Economics From Walt Disney World”
“Would you rather have a gun and not need it, or—if the state has its say—be forced into a situation where a weapon is desperately needed, but you aren’t allowed to have one? This choice by the individual may soon become as extinct as the dodo bird if the state continues on its merry way of grabbing up the rights and freedoms of the individual. However, your right to own a gun, or anything else, should not be argued on the basis of some sort of special pleading to the state.”
Morgan Norval
“Why We Need Guns”
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October 2005
“Scalia is hardly the only justice whose personal values bleed into his rulings. He is, however, the one most critical of his colleagues for allowing their decisions to be dictated by ideological preferences. There is no reason to believe Scalia is consciously hypocritical on any issue. Yet time and again, his strict construction of the Constitution happens to coincide, almost precisely, with some ideological preference of his own.”
Cathy Young
“Antonin Scalia, Judicial Activist”
“In the unlikely event that a terrorist with a bomb is picked for a search, he can simply say no and exit the system with no questions asked. (It has to be that way so the city can argue in court that the searches are voluntary.) Upon leaving the subway, he can try again at another station, pass his bag to an accomplice, or detonate his bomb at a crowded location above ground.”
Jacob Sullum
“Pansies of New York”
October 2000
“Rock and the larger pop music scene are so clearly a function of the wealth, innovation, and leisure time thrown off by capitalism that it should be nothing less than mind-boggling that pop stars themselves mutter incessantly about toppling the very system that pays them so well. But to most rock stars and rock critics, the link between the music and left-wing politics is so natural and so expected that it is simply assumed.”
Brian Doherty
“Rage On”
“When disco died, the record industry did not start taking new wave bands to court, demanding that they stop competing with the Bee Gees and kindred has-beens. It went hunting for every Ric Ocasek clone it could find, intent on exploiting the latest Next Big Thing until audiences found it as intolerable as disco.”
Jesse Walker
“Music for Nothing”
October 1985
“It doesn’t matter whether censorship assumes the guise of orthodox obscenity statutes or the newer and more insidious mask of bogus civil-rights measures. The ultimate consequences are identical—less freedom, more tyranny. Dozens of local governments are now considering restrictive laws patterned after the Indianapolis ordinance. Americans should know better; censorship has flourished before, and we know that it inexorably produces stifling conformity. No intelligent person should wish to repeat that tragedy.”
Ted Carpenter
“Porn Busters”
“A nation’s force level tends to be set by default: it is the result of political and bureaucratic struggling. For those who seek to control armaments in the world, an understanding of this ‘structural’ aspect of militarism is an indispensable starting point. A nation’s armed forces are not only, or even primarily, the result of conscious, calculating leadership decisions, as many arms-control theorists would have it. Rather, the size and character of a nation’s armed forces are shaped by the structure of the regime and the political processes within it.”
James Payne
“Marxists: They Love a Man in a Uniform”
“The humanities, whether they should or shouldn’t be revived for other reasons, are not very useful. Students are not leaving the humanities in droves because they want marketable skills whereas in the humanities’ heyday they were less job-oriented. They are leaving the humanities because a liberal arts education no longer offers marketable skills, as it did in the old days—the intellectual skills that men and women need to prosper in a free society.”
Max Hocutt
“Humanities’ Ills”
October 1975
“Libertarians who are no doubt accustomed to meeting their ideas in caricature have probably been told that in a libertarian world—one with private streets, private mass transit, private utilities of all descriptions, private ownership of redwood trees and alligators—everything would have an explicit price to it. To walk on the streets, to visit the parks, individuals would be required to make an explicit contract. That this is in fact a distortion can be seen because the real world has been kind enough to provide Walt Disney World, a contractual city which bears no resemblance to the caricature.”
David Levy
“Learning Economics From Walt Disney World”
“Would you rather have a gun and not need it, or—if the state has its say—be forced into a situation where a weapon is desperately needed, but you aren’t allowed to have one? This choice by the individual may soon become as extinct as the dodo bird if the state continues on its merry way of grabbing up the rights and freedoms of the individual. However, your right to own a gun, or anything else, should not be argued on the basis of some sort of special pleading to the state.”
Morgan Norval
“Why We Need Guns”
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If the Supreme Court is expanded to eleven members, where would everyone sit? As things stand now, the Justices have some breathing room between them. They can recline, move from side-to-side, and chat with their neighbors. But it would get cozy by sliding in two more chairs.
Plus, in the COVID-era, will the Justices install plexiglass shields between their stations?
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If the Supreme Court is expanded to eleven members, where would everyone sit? As things stand now, the Justices have some breathing room between them. They can recline, move from side-to-side, and chat with their neighbors. But it would get cozy by sliding in two more chairs.
Plus, in the COVID-era, will the Justices install plexiglass shields between their stations?
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via IFTTT
For some time, there has been a poorly-kept secret in Washington: as soon as the Democrats take power, they will make four power moves. To date, most prudent Democrats have refused to discuss these four moves aloud. But now with Justice Ginsburg’s death, the cat is out of the bag. Jeffrey Toobin lays out the roadmap in the New Yorker:
The question is whether the Republican Senate will violate its supposed principles from 2016 to push one of them through. If the answer is yes—if Trump fills the Ginsburg seat—the next question will be how the Democrats respond. If the Democrats fail to retake the majority in the Senate in November, their options are few except to grin and bear it. But, if they win the majority and Joe Biden wins the Presidency, there are four major possibilities for retribution—which all happen to be good policy as well.
- The first is the abolition of the filibuster, which should have happened decades ago. Even in the minority, McConnell will do everything he can to thwart Biden, and the filibuster will be the tool. This antidemocratic relic should be retired once and for all.
- Second, statehood for the District of Columbia and Puerto Rico, with two senators apiece, would be another appropriate rejoinder.
- Third, Congress should pass a law expanding the number of lower-court federal judges; that number has not increased since Jimmy Carter was President.
- Finally, the greatest and most appropriate form of retribution involves the Supreme Court itself. The number of Justices is not fixed in the Constitution but, rather, established by statute.
If Republicans succeed in stealing two seats—the Scalia and Ginsburg vacancies—the Democrats could simply pass a law that creates two or three more seats on the Supreme Court. To do so would be to play hardball in a way that is foreign to the current Senate Democrats. But maybe, in light of all that’s happened, that’s a game they should learn to play.
I disagree with only one of Toobin’s predictions. He writes that the these outcomes are “possibilities” “if Trump fills the Ginsburg seat.” Argle bargle. These steps will happen no matter what Trump and Mitch do.
However, I disagree with Toobin’s ordering. I agree with the first step: the filibuster will be nuked. I’ve long predicted this this step would happen in the wake of a calamity. For example, there is a mass killing, and Republican senators filibuster an assault weapon ban. At that point, there will be a majority to eliminate the filibuster. But given the current climate, the Green New Deal, or some such bill could be deemed momentous enough to pass nuke the filibuster.
Toobin lists statehood for D.C. as the second option. I disagree. The presently-constituted conservative Supreme Court may very well declare that bill unconstitutional. If the Democrats were smart, they would first pack the Supreme Court. New justices could be confirmed in the span of a month or two. After the Supreme Court has eleven members, then they can safely create statehood for D.C. by statute. (It isn’t clear Puerto Ricans even want statehood, but things may change). The statehood bill would be subject to immediate challenge. But it will be upheld by a 6-5 vote. (Get used to that new number). As that statehood litigation is making its way though the courts, then the Democrats can pack the lower courts. Even without blue slips and cloture, it may take a year or more to fill all of those vacancies. The lower courts really should be the last step.
These steps will happen whether or not Trump fills the vacancy. There is still bad blood from the Garland nomination. Had RBG pulled through till January, she probably would have said, “my most fervent wish is to be replaced by three Justices.” #HonorHerWishes
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For some time, there has been a poorly-kept secret in Washington: as soon as the Democrats take power, they will make four power moves. To date, most prudent Democrats have refused to discuss these four moves aloud. But now with Justice Ginsburg’s death, the cat is out of the bag. Jeffrey Toobin lays out the roadmap in the New Yorker:
The question is whether the Republican Senate will violate its supposed principles from 2016 to push one of them through. If the answer is yes—if Trump fills the Ginsburg seat—the next question will be how the Democrats respond. If the Democrats fail to retake the majority in the Senate in November, their options are few except to grin and bear it. But, if they win the majority and Joe Biden wins the Presidency, there are four major possibilities for retribution—which all happen to be good policy as well.
- The first is the abolition of the filibuster, which should have happened decades ago. Even in the minority, McConnell will do everything he can to thwart Biden, and the filibuster will be the tool. This antidemocratic relic should be retired once and for all.
- Second, statehood for the District of Columbia and Puerto Rico, with two senators apiece, would be another appropriate rejoinder.
- Third, Congress should pass a law expanding the number of lower-court federal judges; that number has not increased since Jimmy Carter was President.
- Finally, the greatest and most appropriate form of retribution involves the Supreme Court itself. The number of Justices is not fixed in the Constitution but, rather, established by statute.
If Republicans succeed in stealing two seats—the Scalia and Ginsburg vacancies—the Democrats could simply pass a law that creates two or three more seats on the Supreme Court. To do so would be to play hardball in a way that is foreign to the current Senate Democrats. But maybe, in light of all that’s happened, that’s a game they should learn to play.
I disagree with only one of Toobin’s predictions. He writes that the these outcomes are “possibilities” “if Trump fills the Ginsburg seat.” Argle bargle. These steps will happen no matter what Trump and Mitch do.
However, I disagree with Toobin’s ordering. I agree with the first step: the filibuster will be nuked. I’ve long predicted this this step would happen in the wake of a calamity. For example, there is a mass killing, and Republican senators filibuster an assault weapon ban. At that point, there will be a majority to eliminate the filibuster. But given the current climate, the Green New Deal, or some such bill could be deemed momentous enough to pass nuke the filibuster.
Toobin lists statehood for D.C. as the second option. I disagree. The presently-constituted conservative Supreme Court may very well declare that bill unconstitutional. If the Democrats were smart, they would first pack the Supreme Court. New justices could be confirmed in the span of a month or two. After the Supreme Court has eleven members, then they can safely create statehood for D.C. by statute. (It isn’t clear Puerto Ricans even want statehood, but things may change). The statehood bill would be subject to immediate challenge. But it will be upheld by a 6-5 vote. (Get used to that new number). As that statehood litigation is making its way though the courts, then the Democrats can pack the lower courts. Even without blue slips and cloture, it may take a year or more to fill all of those vacancies. The lower courts really should be the last step.
These steps will happen whether or not Trump fills the vacancy. There is still bad blood from the Garland nomination. Had RBG pulled through till January, she probably would have said, “my most fervent wish is to be replaced by three Justices.” #HonorHerWishes
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Ten days ago I blogged about President Trump’s 44-person not-so-short list. At the time, I gave it two cheers. Ten days later, this list seems very important. Here, I will try to narrow down the list in light of Justice Ginsburg’s passing.
First, I think it is safe to say this nominee has to be a woman. President Bush initially wanted to replace Justice O’Connor with Harriet Miers, but that nomination blew up; he defaulted to a man, then-Judge Alito. On the 44-person list, there are twelve women. A second factor is age. Lifetime appointments last for a long time. I imagine Trump would want to go as young as possible on this list. Third, Trump may consider how the Judge fared before the Senate Judiciary Committee, and on the floor vote. Fourth, Trump may also consider geography as a factor.
I have listed the twelve women on the list, with their age, committee vote, and floor vote (Please email if I messed up any of the numbers).
Now, the White House would have to start making cuts. First, the list can be culled on certain non-jurisprudential factors. For example, age. Some are too old. I have long been a fan of Chief Judge Sykes, but I think her time passed. Others are too young. Judge Rushing and others will have their shot in a few years. Another non-jurisprudential consideration might be electoral support. For example, Judge Lagoa might a boost for Florida voters, and Hispanic voters nationwide. Judge Barrett, a well known former professor at Notre Dame, would excite the Catholic vote.
There are, of course jurisprudential factors. I think all of the names on the list have already been vetted on this front. They will all be able to talk the talk about originalism and separation of powers. There are no surprises on this front. Of course, vetted jurisprudence does not always lead to predictable results. See Justice Gorsuch in Bostock.
Next, there is what I call the “solid” factor. Is this person “solid”? One way to measure a person’s solidness is by looking at their opinions. Some of these judges have been on the bench for a very short time. For example, Judge Lagoa was confirmed in December 2019. Judge Barrett was confirmed in November 2017. Others have a longer judicial experience. Judges Eid and Larsen spent several years on their state Supreme Courts. It is harder to measure how “solid” a judge is without studying their opinions. In the absence of a given record, we are left relying with people vouching for the judge. Whenever I sometime tells me, “they’re solid,” my response is “prove it.” No more Souters.
Another critical factor is a Judge’s willingness to fight. Justice Gorsuch’s confirmation hearing was fairly calm. Justice Kavanaugh’s hearing was like World War III. The nomination to fill the Ginsburg seat will be Armageddon. Critic will destroy this person’s reputation, family, and beliefs. We need a Justice who can stand up to brutal attacks and be willing to return fire. Judge Barrett proved her mettle when Senator Feinstein attacked her “dogma.” And, more recently, Judge Lagoa stood up against an attempt to disqualify her in the Florida disenfranchisement cases (See here and here). She also joined Chief Judge Pryor’s concurrence, which resisted liberal virtue signaling. From these limited experiences, she showed a backbone.
There is a related factor: does the nominee have an army of surrogates willing to go to bat for them. Judge Kavanaugh’s clerk network mobilized at every juncture, and was able to present a unified front in the media. It was a remarkable show of force. I do not know if Judge Lagao has had the time to build that network. Judge Barrett has been on the bench a short while, but the Notre Dame network runs deep.
There is one final factor to consider. There is no guarantee this nominee ever gets confirmed: she may become the next Merrick Garland. There is a stigma to having been rejected. Just ask Robert Bork or Harriet Miers. It is not easy to live with that defeat. No one wants to be rendered Persona Non Garland. Any nominee must be willing to walk into the slaughter, knowing they may get slaughtered.
May the odds ever be in their favor.
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Ten days ago I blogged about President Trump’s 44-person not-so-short list. At the time, I gave it two cheers. Ten days later, this list seems very important. Here, I will try to narrow down the list in light of Justice Ginsburg’s passing.
First, I think it is safe to say this nominee has to be a woman. President Bush initially wanted to replace Justice O’Connor with Harriet Miers, but that nomination blew up; he defaulted to a man, then-Judge Alito. On the 44-person list, there are twelve women. A second factor is age. Lifetime appointments last for a long time. I imagine Trump would want to go as young as possible on this list. Third, Trump may consider how the Judge fared before the Senate Judiciary Committee, and on the floor vote. Fourth, Trump may also consider geography as a factor.
I have listed the twelve women on the list, with their age, committee vote, and floor vote (Please email if I messed up any of the numbers).
Now, the White House would have to start making cuts. First, the list can be culled on certain non-jurisprudential factors. For example, age. Some are too old. I have long been a fan of Chief Judge Sykes, but I think her time passed. Others are too young. Judge Rushing and others will have their shot in a few years. Another non-jurisprudential consideration might be electoral support. For example, Judge Lagoa might a boost for Florida voters, and Hispanic voters nationwide. Judge Barrett, a well known former professor at Notre Dame, would excite the Catholic vote.
There are, of course jurisprudential factors. I think all of the names on the list have already been vetted on this front. They will all be able to talk the talk about originalism and separation of powers. There are no surprises on this front. Of course, vetted jurisprudence does not always lead to predictable results. See Justice Gorsuch in Bostock.
Next, there is what I call the “solid” factor. Is this person “solid”? One way to measure a person’s solidness is by looking at their opinions. Some of these judges have been on the bench for a very short time. For example, Judge Lagoa was confirmed in December 2019. Judge Barrett was confirmed in November 2017. Others have a longer judicial experience. Judges Eid and Larsen spent several years on their state Supreme Courts. It is harder to measure how “solid” a judge is without studying their opinions. In the absence of a given record, we are left relying with people vouching for the judge. Whenever I sometime tells me, “they’re solid,” my response is “prove it.” No more Souters.
Another critical factor is a Judge’s willingness to fight. Justice Gorsuch’s confirmation hearing was fairly calm. Justice Kavanaugh’s hearing was like World War III. The nomination to fill the Ginsburg seat will be Armageddon. Critic will destroy this person’s reputation, family, and beliefs. We need a Justice who can stand up to brutal attacks and be willing to return fire. Judge Barrett proved her mettle when Senator Feinstein attacked her “dogma.” And, more recently, Judge Lagoa stood up against an attempt to disqualify her in the Florida disenfranchisement cases (See here and here). She also joined Chief Judge Pryor’s concurrence, which resisted liberal virtue signaling. From these limited experiences, she showed a backbone.
There is a related factor: does the nominee have an army of surrogates willing to go to bat for them. Judge Kavanaugh’s clerk network mobilized at every juncture, and was able to present a unified front in the media. It was a remarkable show of force. I do not know if Judge Lagao has had the time to build that network. Judge Barrett has been on the bench a short while, but the Notre Dame network runs deep.
There is one final factor to consider. There is no guarantee this nominee ever gets confirmed: she may become the next Merrick Garland. There is a stigma to having been rejected. Just ask Robert Bork or Harriet Miers. It is not easy to live with that defeat. No one wants to be rendered Persona Non Garland. Any nominee must be willing to walk into the slaughter, knowing they may get slaughtered.
May the odds ever be in their favor.
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I encourage everyone to read this touching essay by Nina Totenberg about her dear friend, Ruth Bader Ginsburg. Here, I would like to flag a topic near and dear to me: Leaks. This leak though was inadvertent, and thankfully, innocuous.
I sometimes was asked how I could remain such good friends with RBG at the same time that I covered her as a reporter.
The answer was really pretty simple. If you are lucky enough to be friends with someone like Ruth Bader Ginsburg, you both understand that you each have a job and that it has to be done professionally, and without favor.
I think the only time that she told me anything she wasn’t supposed to was a mistake. After the coronavirus outbreak and lockdown, our house was about the only safe place Ruth could go, and so from mid-March until the end of July, she came to us for dinner every Saturday night, except a few where we brought dinner to her. Periodically, she would get this evil grin on her face, and say something on the order of “You are going to be a very busy person this week.” Translation: lots of big opinions for you to cover.
Then, one Sunday I called her about something else, and she said, “How did you like that Electoral College decision?” I couldn’t believe my ears. My friend was human. She had, like the rest of us in these COVID-19 times, gotten her days mixed up. She thought it was Monday. I paused and said, gently, “Ruth, it’s Sunday, not Monday.”
She gasped. She was horrified. Beside herself at her indiscretion. Of course, she hadn’t told me anything about what the court had decided, only that I would find out in about 12 hours. But still, she was lashing herself for her mistake. I couldn’t help but laugh.
I think this anecdote can be used to rebut the presumption that RBG was leaking to Joan Biskupic. If Ginsburg was so aghast at this minor indiscretion, would she tell Joan all the intimate details of conference? Again, we may find out if Joan continues to publish exposes this summer.
We also learn that RBG wore an RBG face mask:
And amid COVID-19 pandemic, she took to wearing a mask, with her tiny face printed on it.
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