With GOP Senators testing positive for covid, "Will the Senate Have a Quorum to Confirm Judge Barrett?"

Asks Jonathan Adler (at Reason):

There are 53 Republican Senators. As of this morning, three Republican Senators (Tillis, Lee, and Johnson) have tested positive. This means there are only 50 Republican Senators who can attend Senate proceedings. (The Vice President does not count for these purposes.) So if Senate Democrats boycott proceedings, they might be able to grind Senate business to a fault....

To a fault? I'm guessing he meant to say "to a halt." Anyway... Adler observes the Judiciary Committee has been allowing members to participate remotely, so it can reach its quorum that way. And someone needs to be present to raise the quorum issue, and that person — one of the Democrats — would be the 51st Senator. So there's a quorum without Tillis, Lee, and Johnson. Also, under Article I, section 5, the Senate can ask the sergeant-of-arms to go get missing Senators and drag them to the floor.* Lastly, they could try to authorize remote attendance for the full Senate and include the quarantined Senators that way (but that has its own procedural difficulties, described at the link). Adler also notes that 2 of the covid-positive Senators seem to have caught the disease at the ceremony announcing the Barrett nomination.

That is the literary device known as poetic justice.

Notably, poetic justice does not merely require that vice be punished and virtue rewarded, but also that logic triumph. If, for example, a character is dominated by greed for most of a romance or drama, they cannot become generous. The action of a play, poem, or fiction must obey the rules of logic as well as morality. During the late 17th century, critics pursuing a neo-classical standard would criticize William Shakespeare in favor of Ben Jonson precisely on the grounds that Shakespeare's characters change during the course of the play. When Restoration comedy, in particular, flouted poetic justice by rewarding libertines and punishing dull-witted moralists, there was a backlash in favor of drama, in particular, of more strict moral correspondence.

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*In 1988, Republican Senator Bob Packwood was arrested and carried into the Senate chamber:

"I’m beginning to understand why this beautifully published book went to No. 1 on The Times’s nonfiction best-seller list."

"It’s not that people are suddenly nostalgic for Bush.... The success of 'Portraits of Courage'... testifies to our genuine, bipartisan determination to do it better this time — to support healing in all of its forms, even from the president who most made that healing necessary. It reflects our fascination with how leaders process pain and regret...."

From Jonathan Adler's NYT review of George W. Bush's excellent book of paintings.

My law school is as ideologically left as the average lawprof who teaches Feminist Legal Theory.

That's what I learned from Figure 2 and Figure 4 in this article "The Legal Academy’s Ideological Uniformity," by Adam Bonica, Adam Chilton, Kyle Rozema, & Maya Sen (who are lawprofs at Stanford, Chicago, Northwestern, and Harvard).

I got there via Paul Caron, who nudged me to notice that the University of Wisconsin Law School is the 3d most left-wing law school, according to the study. If you limit your view to the top 50 law schools, we're #1:

I know you're going to say: And that was before Althouse retired. But I think the calculation was done by looking at campaign contributions. I give money to nobody.

Here's Jonathan Adler:

Assuming there is substantial ideological uniformity in the legal academy, and that this is a problem, there remains the problem of what to do about it. 

Here's my idea for any law school that wants to look less conspicuous in the next study that's done with this methodology. The professors should find some innocuous or liberal Republicans or Republicans who were going to win anyway and throw some money at them.

But that's just me and my lateral thinking. The main solutions being talked about are: 1. affirmative action for conservatives, which seems to go against everybody's predilections, and 2. some vague commitment to intellectual diversity. As Adler puts is: "the way forward begins with efforts to cultivate an appreciation of the value of differing perspectives and viewpoints and a broader recognition that ideological uniformity undermines effective legal education."

I disagree with Adler. I think professors at a pervasively left-wing law school would readily agree with the intellectual diversity abstraction. It would change nothing. Maybe Adler would push back and say that he wrote "cultivate an appreciation" — there needs to be more growth in appreciation — and "broader recognition" — there's recognition but it should be wider. I don't know. It's so anodyne. The way forward begins... Begins! I see this going nowhere.

"The university’s ideological tilt, combined with its intolerance, cannot but place higher education in an even more precarious place."

"After all, how long will taxpayers in red states be willing to subsidize universities that appear to be their ideological enemies? In a politically polarized nation, why subsidize the other side?"

Writes lawprof Jonathan Adler, citing Wisconsin politics specifically, quoted in a post by Instapundit, who also links to the post I wrote yesterday about why lawprofs can't/won't see the intellectual diversity problem.

I get the idea that there's pushback from the political sphere, especially here in Wisconsin, but I can't imagine how much political pushback there would need to be for my law school to acknowledge a need for more intellectual diversity in the form of more conservatives on the faculty.

The other day a student asked me, "Why are you the only conservative on the faculty?" I said, "But I'm not a conservative. I'm just someone who takes the conservative viewpoint seriously and thinks it deserves respect." 

"A divided panel of the U.S. Court of Appeals for the Fifth Circuit has affirmed a federal district court’s nationwide injunction against the Obama administration’s Deferred Action for Parents of Americans and Lawful Permanent Residents..."

Jonathan Adler reports.

In an extensive, 70-page ruling, Judge Jerry Smith (joined by Judge Jennifer Elrod) concluded that the states had standing to challenge DAPA and were likely to succeed on both their procedural and substantive claims. Among other things, Judge Smith concluded that DAPA is not authorized under existing law, nor is it justified by historical practice.

Adler excerpts from the opinion. Here's an excerpt of the excerpt:

DAPA undoubtedly implicates “question[s] of deep ‘economic and political significance’ that [are] central to this statutory scheme; had Congress wished to assign that decision to an agency, it surely would have done so expressly.”... Even with “special deference” to the Secretary, the INA flatly does not permit the reclassification of millions of illegal aliens as lawfully present and thereby make them newly eligible for a host of federal and state benefits, including work authorization....

[T]he President explicitly stated that “it was the failure of Congress to enact such a program that prompted him . . . to ‘change the law.’” At oral argument, and despite being given several opportunities, the attorney for the United States was unable to reconcile that remark with the position that the government now takes....

"Personally, I find that the most objectionable feature of the conservative attitude is its propensity to reject well-substantiated new knowledge..."

"... because it dislikes some of the consequences which seem to follow from it—or, to put it bluntly, its obscurantism. I will not deny that scientists as much as others are given to fads and fashions and that we have much reason to be cautious in accepting the conclusions that they draw from their latest theories. But the reasons for our reluctance must be rational and must be kept separate from our regret that the new theories upset our cherished beliefs."

Wrote F.A. Hayek in "Why I Am Not a Conservative," quoted by Jonathan Adler at The Volokh conspiracy in a post titled "What does it take to convince libertarians and conservatives that climate change is a problem?"

Instead of picking on Indiana, why don't we figure out if we want RFRA laws or not?

Here's Jonathan Adler's explanation of "What will the Indiana religious freedom law really do?"

RFRA laws are common, as shown by this map. Whether or not such laws are good policy, they are about accommodating religious belief, not authorizing discrimination....

The Indiana RFRA is not identical to every other RFRA, but the textual differences are not particularly material....

Are there any scenarios in which a state-level RFRA might result in an individual business owner denying service to a same-sex couple? Perhaps. The most likely scenario would be something like a religious wedding planner refusing to help plan a wedding that violates his or her religious beliefs. But even if such laws eventually allow this sort of thing, it is a far cry from... a general license to discriminate against one’s neighbors....

Indiana has focused attention on RFRA laws, but it's stupid to focus on Indiana. These laws are all over the place. Understand them. Understand how they apply in many different scenarios and how they are limited by courts in their application. Understand that if we're going to relieve religious believers of the burdens of generally applicable laws, courts are going to have to avoid preferring one religion over another. You can't accommodate the religions you agree with or think are sweet and fuzzy and say no to the ones who seem mean or ugly. We need to figure that out. If, in the end, you think the Indiana RFRA is a bad idea, check that map and see if your state has RFRA (or a RFRA-like state constitutional provision) and push for repeal in your state. And get after Congress. Congress started it. Unless you're Hoosier, leave Indiana alone. Stop otherizing Indiana.

AND: I had to wonder What does Garrett Epps think about this? Because Garrett Epps wrote a whole book about how terrible it was for the U.S. Supreme Court to deny special exceptions to religious believers, especially in that case where Native Americans wanted the freedom to use peyote. As I predicted, Epps is otherizing Indiana.

"One of the benefits of having been right-of-center in college was that my political and philosophical views were constantly challenged."

"There was no 'safe space' — and I was better for it. I often felt that I received a better education than many of my peers precisely because I was not able to hold unchallenged assumptions or adopt unquestioned premises."

"It is quite unusual... Judge Schwab appears to have reached out quite aggressively to engage the lawfulness of the President’s actions" on immigration.

Says lawprof Jonathan Adler. And on the merits, he's "not persuaded":

[T]he executive branch has exercised a substantial degree of discretion in implementing and enforcing immigration law for decades.... It is true, as Judge Schwab notes, that the President’s announced policy identifies broad criteria for deferring removal of individuals unlawfully in the country. This would appear to make the action somewhat legislative, but I don’t think it’s enough to make the action unlawful.... It’s no more unconstitutional than a US attorney telling the prosecutors in his office not to prosecute low-level marijuana possession absent other factors that justify federal prosecution....

Obama's IYLYPYCKYP fix isn't legal.

Jonathan Adler argues:

According to various press reports, the Administration argues it may do this as a matter of enforcement discretion.... In other words, the Administration is not changing the law. It’s just announcing it will not enforce federal law....

Does this make the renewal of non-compliant policies legal? No. The legal requirement remains on the books so the relevant health insurance plans remain illegal under federal law....

I've got to run, but if I had more time I'd try to compare this to the efforts at "legalizing" marijuana in Washington and Colorado — a gigantic felonious conspiracy —  while the Justice Department says it won't enforce.

University of Colorado appoints a "Visiting scholar in Conservative Thought and Policy."

Is this a good thing?

While [Steven Hayward's] presence will provide some additional viewpoint diversity on the Colorado campus, it also smacks of the sort of tokenism many on the Right condemn.  Peter Lawler sees the appointment as “conservative affirmative action” and Max Boot fears this sort of thing will encourage the further academic ghettoization of conservative thought.... Half of the country may have right-of-center views, but a single token is supposed to constitute balance?  How sad is it that a major university would have to create a position like this to ensure a minimal range of viewpoint diversity on campus.  Through all this, Hayward is keeping things in perspective.

The Obama Administration clearly states that the individual mandate is not a tax.

Notes Jonathan Adler, pointing to this video:



But of course, the government is arguing in the Supreme Court that the individual mandate is a tax, authorized by Congress's taxing power. Read the brief for the United States — PDF — beginning at page 50:

The “practical operation” of the minimum coverage provision is as a tax.... It amends the Internal Revenue Code to provide that a non-exempted individual who fails to maintain a minimum level of insurance shall pay a monthly penalty for so long as he fails to do so. 26 U.S.C.A. § 5000A. The amount of the penalty is calculated as a percentage of household income for federal income tax purposes, above a flat dollar amount and subject to a cap. Id. § 5000A(c). It is reported on the individual’s federal income tax return for the taxable year, ibid., and “assessed and collected in the same manner as” other specified federal tax penalties. Id. § 5000A(b)(2), (g).

Individuals who are not required to file income tax returns for a given year are not required to pay the penalty. Id. § 5000A(e)(2). The taxpayer’s responsibility for family members depends on their status as dependents under the Internal Revenue Code. Id. § 5000A(a), (b)(3). Taxpayers filing a joint tax return are jointly liable for the penalty. Id. § 5000A(b)(3)(B). And the Secretary of the Treasury is empowered to enforce the penalty provision. Id. § 5000A(g)....

Although the taxing power may not be used to impose “punishment for an unlawful act,” United States v. LaFranca, 282 U.S. 568, 572 (1931), the minimum coverage provision does not impose punishment. It does not apply retrospectively; instead, it imposes a month-to-month penalty for a failure to maintain adequate coverage, with liability ceasing when adequate coverage is obtained. 26 U.S.C.A. § 5000A(a)-(c). The tax cannot exceed the cost of qualifying insurance, id. § 5000A(c), does not apply to persons below a certain income level who do not need to file a federal income tax return, id. § 5000A(e)(2), and contains a “hardship” exemption, id. § 5000A(e)(5). It has no scienter requirement, and bars criminal prosecution for failure to pay. Id. § 5000A(g)(2)(A).

That sounds pretty sincere. And yet President Obama's acting budget director Jeffrey Zients acted completely confused when House Budget Committee Rep. Scott Garrett, R-N.J., asked him if the penalty for failure to buy insurance was a tax.

Well, I suppose it depends on what the meaning of the word "tax" is. It's one thing for the purpose of political argument: Democrats in Congress didn't want to call it a tax when they were jamming it through, and Obama doesn't want to call it a tax now as he's promoting a budget with no new taxes for those making less than $250,000 a year. But for the purposes of legal argument, you might want to characterize it as a tax. The serious question is whether the Supreme Court will accept that characterization for the purpose of upholding the law, even though for political purposes the word was not — and is not — used.

And the answer to that question depends on whether the Justices think that analysis of the political dynamics matters in the interpretation of the scope of Congress's enumerated powers. Whatever the vigor of the Court's role here — and obviously much is left to Congress's political will — it is crucial for the people — exercising their political pressure on the Congress that works its political will — to see what is happening. Even in the thrall of judicial restraint, the Court should reject an argument based on fooling the people about what Congress is doing. The people are especially vigilant about new taxes, so denying that something is a tax is an important maneuver in the political arena. If that move is made to ward off public outrage, it should not be easy to turn around win the favor of judges by calling it what you did not dare tell the people it was.

"Is Harold Koh the Left’s John Yoo?"

One might well ask.