Least NEW! thing promoted as "NEW!"

As is my wont, I'm scanning headlines at Memeorandum this morning, and I came across this:

I'm not clicking on that. I'm just blogging to say that I graduated from law school in 1981, before the Federalist Society was created to deal with the problem that law schools only presented what the NYT would now like to repackage as an alternative. This "alternative" was mind-crushingly pervasive back then, and those who made that so are responsible for the reaction they caused. I went to law school believing I'd have the opportunity to participate in a rich debate. That didn't happen.

I see the author here is Jeffrey Toobin. I know you must say the Toobin-specific things that you always say. That's already an entry in my Dictionary of Received Idea. 

"How the Hell To Teach Constitutional Law in 2025: Twenty Questions and No Answers."

Written by Eric Segall, at Dorf on Law.

I don't teach anymore, so I don't need to answer question like this, but I'd actually love the opportunity to work this out, and I'll bet there are a lot of younger law school graduates who have the energy and dedication and brains to figure out how to teach conlaw these days. Maybe those of you who are worn out should consider retiring. Oddly enough, when I decided to retire, it was the fall of 2016, and I was sure that Hillary Clinton was about win the election and that after she appoints the successor to Justice Scalia, with 5 strong liberals on the Supreme Court, constitutional law was going to become very boring.

Much of the bulk of Segall's 20 questions is a longstanding problem in conlaw: There's too much material to cover everything or even to cover anything with enough depth. But the argument that we've got a special problem right now is summed up in the first 2 questions:

"I am so disappointed in The Federalist Society because of the bad advice they gave me on numerous Judicial Nominations... This is something that cannot be forgotten!..."

"I was new to Washington, and it was suggested that I use the Federalist Society as a recommending source on judges. I did so, openly and freely, but then realized that they were under the thumb of a real ‘sleazebag’ named Leonard Leo, a bad person who, in his own way, probably hates America, and obviously has his own separate ambitions."

Wrote Donald Trump, quoted in "Trump, Bashing the Federalist Society, Asserts Autonomy on Judge Picks/The president has grown increasingly angry at court rulings blocking parts of his agenda, including by judges he appointed" (NYT). 

The article is by Charlie Savage, who says:

While Mr. Trump was out of power, a schism emerged between traditional legal conservatives and MAGA-style lawyers.... During the 2016 campaign, Mr. Trump had essentially made a deal with the conservative legal movement. In exchange for its support, he would outsource his judicial selections....

"[Ron] DeSantis, 44, is not the first Republican politician of his generation to rail against his own Ivy League degrees while milking them for access and campaign cash."

"But now, as he seeks the Republican presidential nomination, he is molding his entire campaign and political persona around a vengeful war against what he calls the country’s 'ruling class': an incompetent, unaccountable elite of bureaucrats, journalists, educators and other supposed 'experts' whose pernicious and unearned authority the governor has vowed to vanquish...."

From "How Ron DeSantis Joined the ‘Ruling Class’ — and Turned Against It/Over the years, Mr. DeSantis embraced and exploited his Ivy League credentials. Now he is reframing his experiences at Yale and Harvard to wage a vengeful political war" (NYT).

I see no problem with a young person taking advantage of elite education and then rejecting its values. Who better to challenge the "ruling class" than someone who's had a direct experience with it? If education is any good it equips you to go on to pursue your own goals. Does the NYT think the students are supposed to absorb indoctrination and then go on to be loyal to the elite?

"Are 10 minutes of shouting out of an hour-and-a-half-long event too much? That is a matter of judgment and degree."

Said Nadine Strossen, a former head of the American Civil Liberties Union, quoted in "At Stanford Law School, the Dean Takes a Stand for Free Speech. Will It Work? After a student protest, Jenny S. Martinez wrote a much-praised memo defending academic freedom. But that protest shows how complicated protecting free speech can be" (NYT).

If you get the balance wrong, Ms. Strossen said, then you risk chilling speech on the other side....

Ms. Strossen said she was struck that [a week later, when she appeared on a panel at Yale], there were no protesters of any kind. “I worry that maybe the reason that there weren’t even nondisruptive protests,” she said, “is students were too afraid that they would be subject to discipline or doxxing.” 

Strossen spoke at Stanford in January, a guest of the Federalist Society. That was 2 months before the famously disrupted visit by Judge Kyle Duncan. Strossen says that Tirien Steinbach, the associate dean for diversity, equity and inclusion — widely criticized for her handling of the Duncan event — moderated her event. According to Strossen, "That took some courage." It was "extraordinary."

Pause a moment to absorb that.

"'I don’t recall Roe being an issue in any such conversations I had concerning [the] creation of Fed Soc,' [Theodore] Olson wrote to me...."

"'It was all about creating a forum/venue for debate. Not taking sides on any particular issue.' And yet Roe symbolized something to the Federalist Society’s founding members. 'For someone like me, a lawyer, Roe was really not about abortion,' John McGinnis, a conservative law professor at Northwestern University, said... '[It]was the culmination of the Court diverging from the text of the Constitution and essentially—this is not too strong of a word—fabricating the law.'...  During the next four decades, the conservative legal movement set about radically changing the way that the law was talked about. They promoted a mode of legal interpretation that was purportedly value-neutral, based on their understanding of what the Founders wrote....  Some people in the conservative legal movement are more philosophical about the consequences of overturning Roe. In their view, the error of the original ruling—a 'constitutional deformity,' as one Federalist Society insider put it—has been corrected. Now the democratic process begins...."

From "How the Federalist Society Won/The conservative legal movement was pivotal in getting Roe v. Wade overturned. But does it have any control over what happens next?" by Emma Green (The New Yorker).

"Mocking an ideologically-based group can’t be made a basis for denying academic privileges in any open society worthy of respect. If accurate, this report shows Stanford Law School to be unworthy of treatment as an academic institution."

Tweeted Harvard Law professor Laurence Tribe, quoted in "A Stanford student bashed the Federalist Society with a satirical flier. He nearly missed getting his diploma" (WaPo). 

Stanford reversed its position after getting excoriated on the web yesterday. Below, you can see how the flier looked. It is subject to being mistaken as the real notice for the event, but that's how satire is done, and it's not as though there was a risk of anyone doing anything harmful if they were foolish enough to believe the "fake news." 

And why should Stanford Law strain to protect its community? It can't be that it thinks they're dumb. Maybe it decided to respond to the complaint of the Federalist Society — a conservative group — so it could bank credit for political neutrality as it bumbles boldly forward in the culture wars.

Here is the flyer that led Stanford to place a hold on Wallace's diploma following a complaint by a Stanford Federalist Society leader. pic.twitter.com/sUg3Jvta3I

— Mark Joseph Stern (@mjs_DC) June 2, 2021

"The pandemic has resulted in previously unimaginable restrictions on individual liberty," said Justice Samuel Alito...

... in the keynote address at the national convention of the Federalist Society. The convention took place on line, which means we get video of something that ordinarily would not be recorded:

 

I found a transcript of the speech at Reason. Excerpt:

The pandemic has obviously taken a heavy human toll... The pandemic has resulted in previously unimaginable restrictions on individual liberty.... [W]e have never before seen restrictions as severe, extensive and prolonged as those experienced, for most of 2020.

For brevity, I'm editing out a lot of cautioning about not taking this the wrong way. He's cushioning these remarks. Don't think he's not sympathetic to the victims of the disease.

"In the weeks ahead, we’re going to spend a lot of time going over Brett Kavanaugh’s biography — where he’s from and what he’s written. But that’s not the most important way to understand the guy."

Right. Because Kavanaugh, on his own, is completely boring. A normal person hearing the announcement, got excited for 2 seconds before the name was said, then immediately lost interest and moved on. Kavanaugh is a name we'll see for years, merged with other dull names, in Supreme Court opinions that we won't have thought about all that much, because we'll know how they're going to come out. No surprise. No, gee, I wonder how Justice K thinks about these complexities. The new Justice K won't be someone you need to get to know so intimately.

So David Brooks is taking the right tack here:

Kavanaugh is the product of a community. He is the product of a conservative legal infrastructure that develops ideas, recruits talent, links rising stars, nurtures genius, molds and launches judicial nominees. It almost doesn’t matter which Republican is president. The conservative legal infrastructure is the entity driving the whole project. It almost doesn’t even matter if Kavanaugh is confirmed or shot down; there are dozens more who can fill the vacancy, just as smart and just as conservative. 

A judge should seem boring, right? He should seem like a humble servant discovering the meaning of the law and faithfully articulating it. The great accomplishment (described in detail at the link) was to make the conservative view of law feel so completely normal that a judge like Kavanaugh would bore us, instead of seeming like a monstrous outlier, as we were made to see Robert Bork.

I vividly remember this depiction (click to enlarge):

Bork should have been confirmed, of course, and would have been confirmed if there had been a structure around him to explain and defend conservative judges. Brooks explains how in the years since Bork's defeat that structure has been built. But if that had not been needed, Justice Kennedy — about whose swingable moderation liberals wring their hands today — would never have sat on the Court. All these years, Bork would have staked out the right end of the Court, and who knows how much that would have affected all the other Justices and Presidents? Everything would have been different. Perhaps the Federalist Society would not have grown the way it did. Perhaps Bork would not have died of heart disease in 2012, but if he did, would the President who replaced him have been Barack Obama?

That time I said "mansplaining" in a law school setting.

The scene in Room 2211 yesterday evening looked like this:



Photo by Meade, across the vast landscape of tabletop and the remains of the dinner provided by The Federalist Society.

Ilya Somin was there to talk about some of the things in his book "A Conspiracy Against Obamacare: The Volokh Conspiracy and the Health Care Case," and I was there to offer a few insights of my own. I began with a description of the last time I heard Ilya speak about Obamacare, which was at another event sponsored by The Federalist Society, that one at the Madison Club, where the audience sat at round dinner tables, and Meade and I were among the last arrivals and took the last 2 seats at a table full of strangers, probably Madison lawyers.

I don't think the person I sat next to knew I was a law professor. He started lecturing — he started mansplaining — he started mansplaining — I'd never say that in law school — he started (as I say) mansplaining to me about how this is really all politics and that the healthcare reform bill represents a big important political effort, and that's why it's going to be upheld in the courts. It's all politics, this was so important to the Obama administration, this was such a huge deal politically that there's no way that the courts are going to be able to strike it down. So I said if it's all politics, then what about all the polls that show how unpopular it is? People don't like it. So if the court is responding to politics, why wouldn't the court respond to politics in the form of striking it down? Well, at that point the panel began, so he didn't have to answer me, but I thought I had him cornered.

Much more was said, of course. And Professor Somin gave a lively presentation taking the strong, clear position that the individual mandate is beyond the commerce power and could not properly be regarded as a tax. Me, I thought both sides on both questions were within the realm of debate. As usual, I'm more interested in how people can think the different things they think and what might be motivating them than in taking positions on legal issues and trying to persuade anyone. So Ilya and I took different tones, but I think it harmonized pretty well for a nice evening law-and-politics talk.

IN THE COMMENTS: I expanded on the meaning of "mansplaining":

The much-admired November 14th interview with Clarence Thomas — now on YouTube.

Discussed previously here, linking to an Above the Law item that is now titled "Justice Clarence Thomas Speaks!" but was previously titled "Justice Clarence Thomas Speaks — And Oh What A Speech!"

I'm going to guess that the "And Oh What A Speech!" part got dropped not because ATL wanted to back away from expressing enthusiasm but because it's not a speech. It's an interview. And part of what's good about it is that the interviewer 7th Circuit Judge Diane S. Sykes is excellent. The gushing over Thomas deprived Sykes of her share of the gushing.

Now, I don't like what's left of the title — "Justice Clarence Thomas Speaks!" — because it redirects our attention to a favorite liberal media meme about Thomas: He doesn't speak at oral argument. But you can easily look up his reason for that. It's been observed and discussed many times. And Clarence Thomas frequently speaks outside of the oral argument setting, so I don't like the hey-who-knew-the-guy-could-speak snark — which is what we're left with once the "And Oh What A Speech!" is lopped off.

Anyway, the fact is, this is an excellent 50 minutes of conversation, and thanks to The Federalist Society for putting it up.

"Frankly, whenever I see a complaint alleging racism these days, I assume it’s a political hatchet job by political hacks."

"That assumption is generally borne out," says Instapundit, linking to this (of mine) and to Above The Law's "A Tale of Sound & Fury (But No Transcript): In Defense of Judge Edith Jones."

My post — "Character assassination attempted on 5th Circuit Judge Edith Jones" — encouraged people who actually attended Jones's talk at the University of Pennsylvania Law School to write to me. I'm still hoping someone made a recording, but I did get this response from someone who attended (and who gave me permission to reprint this):

Setting the right free speech example.

Dean Daniel Polsby at George Mason Law School.

Meanwhile, at UW-Stout, after sufficient pressure, the Chancellor caved.

Comparative Federalist Society fliers.

Here's the flier for the event I'm participating in this week:



And here's the flier for last week's event (which went big after the CEO charged the UW with "serious racial discrimination"):



What accounts for the differences between these 2 fliers? Please speculate. I'll tell you the answer later. [Both events were put together and sponsored by the Wisconsin Law School's Federalist Society, which made both fliers.]

UPDATE: Answer here.

"How do you escape the notion that getting rid of affirmative action is white supremacy?"

2 UW-Madison students challenge Roger Clegg — the president of the Center for Equal Opportunity:



Like the clip in the previous post, this was recorded at a Federalist Society-sponsored debate on September 13th.

[Video shot and edited by me.]

ADDED: I want to say that, for me, the second questioner exemplifies a central problem for Clegg and his agenda. The students at a university are always the students who were admitted. They feel hurt or outraged if they think the message is that they shouldn't be here. They're here, in the room, and the individuals who did not get in are not here to cry out with corresponding outrage.

It reminds me of debates about abortion. Those who were aborted are never present in the room to express their perspective on the issue. The emotions of those who are not present may be expressed, vicariously, by others, but it's another matter entirely to say to human beings as they stand in your presence: Under my proposed policy — the only morally/constitutionally permissible approach — you  lose.

Now, I'm sure Clegg would try to find a way to say these students wouldn't lose. Under a race-blind approach to admissions, some of them would get in, and, if so, they won't be burdened by a stigma that, he would say, attached when race is taken into account. And, in any event, a switch to a color-blind approach would only take place prospectively, so it wouldn't affect any of these students, who got in under the existing policy, and no matter how illegal or immoral the policy is, they didn't design it. They played by the rules in effect at the time, and they won and deserve their prize.

The policy will only affect individuals who are not in the room, who are out there, just as the students who didn't get in this year are out there. The difficult thing — and the true moral challenge — is to visualize those who are affected who are not in the room to express pain when you hurt them.

AND: I don't know that Clegg's primary concern really is for the individuals whose applications were rejected but who would have gotten in under a race-blind approach. I think he expressed more concern for the harm done to the students who did get in, the ones who were in the room resisting his message. He was telling them, to their faces, that they were being stigmatized by affirmative action. In that light, the young woman's statement "You disrespected me" really is not such an inaccurate understanding of what he was saying. He was concerned about her, but it wasn't a kind of concern she appreciated.

"You need to take an Ethnic Studies Requirement class!"

An audience member yells reeducation advice at Roger Clegg of the Center for Equal Opportunity, who asserts that public universities should not sort people according to race and ethnicity:



That's a short clip from the Federalist Society-sponsored debate that took place here on campus on September 13th.

[Video shot and edited by me.]

There was a huge crowd for tonight's big affirmative action debate here at the University of Wisconsin.

But the 2 speakers  — Roger Clegg and Larry Church — refrained from cranking up the emotions in the big room. There was some clapping and finger-snapping to approve of just about anything pro-affirmative action and some hooting and booing over anything against affirmative action, but the men were in no way drowned out. Clegg and Church got to say what they had to say. During the question period, the various students who got a turn at the mike sounded passionate but not irrational.

I would have liked more discussion of legal doctrine and the precise issues from the case law, but both men chose to concentrate on policy, with the assumption that racial equality and harmony are the desired ultimate goals. What's the best way to get there? It's an old, old question, and the 2 men mainly assembled the usual pro and con arguments, so I doubt if any minds were changed.

As Meade and I walked home, I called the students "admirable" for not getting out of hand and shouting down the speakers, and Meade made fun of my low standard. I said, "It's Wisconsin. Kudos for not rioting."

ADDED: Pictures:





"Socialism 101/What it is and why we need it":

A Federalist Society/Wisconsin Law School event promoted with boxing gloves...

... just got a lot more boxing-y.

Professor Larry Church will debate Roger Clegg of the Center for Equal Opportunity tonight, the evening of the day Clegg dropped the Center's bombshell studies accusing the Law School (and the undergraduate program) of "severe racial discrimination."

The event — a debate titled "Affirmative Action and Higher Education" — was planned — by The Federalist Society — without knowledge that these reports were forthcoming.

It's scheduled to take place tonight at 7. It was originally going to take place in a room that will hold only 95 people. I will update to tell you where it actually will take place when I find out.

UPDATE: The event will take place in South Hall, in our beautiful new Union South.

Jan Crawford interviews Justice Scalia at the Federalist Society annual dinner.

David Lat reports:

Crawford asked Scalia if he ever found himself in a situation where he was torn between his personal conscience and his professional duty as a justice. He said no. After Crawford expressed a hint of incredulity — you’ve never encountered such a situation, in your many years on the bench? — Scalia quipped, “Maybe I have a lax conscience.” The resulting laughter cleared the air nicely.

Conversation turned to whether the Supreme Court’s opinions offer adequate guidance to the lower courts and litigants — a topic recently raised in this fascinating New York Times article by Adam Liptak, which Crawford explicitly referenced. Scalia appeared to agree with the general thrust of the piece.

“You can write a fuzzy decision that gets nine votes,” Scalia said, “or a very clear decision that gets five votes.”

On the subject of putting Supreme Court oral arguments on video, Scalia said he disapproved. He thought it would mainly lead to out-of-context clips. He thought he'd look great in those clips though: "I could ham it up with the best of them on television... I’d do very well." Lat calls that boasting, but I see modesty. Best of them implies that he doesn't think he is the best oral-argument entertainer. But he is!

On the subject of attending the President's State of the Union Address, he said: “It is a juvenile spectacle, and I resent being called upon to give it dignity…. It’s really not appropriate for the justices to be there.”

On the subject of hiring clerks from Harvard and Yale law schools:

"The best minds are going to the best law schools. They might not learn anything while they’re there [laughter], but they don’t get any dumber."

I should reprise that Vonnegut quote from my 10:20 post. What if you had to argue that they do get dumber? I'll bet you could.

Lat says:

Note how Scalia did not use politically correct terminology. The PC approach calls for referring to the “highest ranked” law schools rather than the “best” law schools.

I must chide Lat for not seeing the political incorrectness of saying "the best minds." Or has Allen Ginsberg's "Howl" made "best minds" seem like a standard phrase? "I saw the best minds of my generation destroyed by madness, starving hysterical naked...." That's not innocuous. "Best minds" should prick up our attention and make us feel that something is not right.

Surely, the applicants that Harvard and Yale smile upon are not really our "best minds." Perhaps they are the "best minds" that are applying to law school in any given year, but I don't think even that is true. You have to do too many things right, too diligently, too early in life to hit the law school application sweet spot and get into the most selective schools. The best minds will have resisted acquiring the conventional indicia of career promise.

Come to think of it, Lat is also wrong to say that "highest ranked" is the preferred terminology for law schools. In academia, "highest ranked" implies highest ranked by U.S. News, and it is the proper thing to loathe U.S. News. It lacks the nuance to perceive the subtle qualities that make our favorite law schools so damned special.

Seriously... I think Scalia, being a good writer and speaker, simply believes that short, simple words are... best.

Now, worldly things call me.

I have an intimidating amount of work this morning.



The Federalist Society is hosting a talk on originalism by Northwestern lawprof John McGinnis, and I'll be offering a bit of commentary. The stated time of the end of of this event is actually 10 minutes after my 80-minute Constitutional Law class begins, and, of course, I must begin on the dot. I will not resort to prayer. I'm going entirely on preparation, nerve, and slipping out 11 minutes before the stated end time.