"A sad day indeed! This whole sexual harassment thing is devolving into McCarthyism I fear."

"Does sexual harassment exist? Of course it does - we've seen a number of perpetrators fall. In my 84 year old opinion I don't think Senator Franken is guilty of harassment, and I suspect the female senators who have asked for his resignation are guilty of grandstanding for political reasons. Sad day!"

That's (the first part of) the top-rated comment — with 1963 votes — on the NYT article "Al Franken Announces He Will Resign from Senate Amid Harassment Allegations." (The second part is a demand that the Senate go after Donald Trump.)

The comment jumped out at me because I'd just read a column by Ana Marie Cox at The Washington Post, "Al Franken isn’t being denied due process. None of these famous men are," which had a high-rated comment that sensed the arrival of McCarthyism:

What a sorry column. Yes, Franken is being denied an ethics probe and impeachment [sic] and conviction in the Senate. To tap dance around the established procedures to placate a Twitter Mob and a devious, grandstanding Senator whose doing a hell of a Joe McCarthy impression in a dress. And the spineless Senators that lined up behind her are a disgrace to the rules and procedures of the U.S. Senate.

I don't really think Franken can complain about due process: He's expelling himself. He just experienced political pressure to quit and he yielded. And I laughed when Franken said:

I, of all people, am aware that there is some irony in the fact that I am leaving while a man who has bragged on tape about his history of sexual assault sits in the Oval Office, and a man who has repeatedly preyed on young girls campaigns for the Senate with the full support of his party.

He's leaving because he's deciding to leave. They're staying because they're deciding to stay. Same treatment. No irony. (And why is he "of all people" aware of irony? Because he's been a comedy writer?)

But I am interested in seeing how people in general may be shifting from enthusiasm about believing women and taking women seriously to feeling something is going wrong when the accused goes down so fast. Maybe Franken's case is where the public sentiment turns. Franken wouldn't admit to his misdeeds (so he couldn't apologize), and he described his predicament:

I was shocked. I was upset. But in responding to their claims, I also wanted to be respectful of that broader conversation because all women deserve to be heard and their experiences taken seriously. I think that was the right thing to do. I also think it gave some people the false impression that I was admitting to doing things that, in fact, I haven’t done. Some of the allegations against me are simply not true. Others, I remember very differently.

He was afraid that to defend himself, he'd only make his troubles worse. He'd be questioning the credibility of his accusers. But maybe he should have defended himself. Because at some point people are going to flip into have-you-no-decency mode. And poor Franken may regret that he went with what seemed to be the trend at the time and gave up without a fight. Fighting may catch on.

Now, I'm searching the news reports for other invocations of McCarthy, and here's Cathy Young in The Daily News yesterday: "Al Franken, the latest casualty of the 'Weinstein' effect, now a victim of sexual McCarthyism." By contrast, here's lawprof Stephen L. Carter in Bloomberg, 3 days ago:

Are we facing a new McCarthy era?

No. Perhaps there is occasionally too great a rush to judgment, but that’s a familiar problem in human history. McCarthyism involved a huge effort to punish people for their opinions, not their actions. That’s despicable at any time.... Disciplining an employee because he expresses views that some hate is McCarthyist; disciplining him for harassment or assault isn’t.

It would be McCarthyist for an employer to fire an employee for insisting on more due process for those who are named, or for coming to the defense of one who has been accused. But taking strong action when there is credible evidence that an individual has been abusive toward women is simply the turning of the wheel of justice.

That's one man's opinion, but it might be the view from 3 days ago, and the culture has shifted since then.

"Will the G.O.P. Response to Antonin Scalia’s Death Hand the Election to the Democrats?"

Asks John Cassidy at The New Yorker, and you might wonder why the question doesn't work the other way too: Why not ask Will the Democratic Response to Antonin Scalia’s Death Hand the Election to the GOP?

The way I asked the questions yesterday was:

Will liberals overreach and show too much of a raging desire to control the Court and make it solidly liberal at long last, touching off a reaction among conservatives? Or will conservatives flare up with hostility to women's rights and gay rights and affirmative action and all the many issues that make them look too mean and ugly?

I gave some balance to it, a question for both parties, but you can see by the difference between my questions that the GOP is tempted in a different way, lured to move the social issues forward and alienate people. Like what happened back in the War of 2012, the War on Women.

But let's see why Cassidy thinks the GOP is exposed in a way that the Democrats are not. He's saying that political maneuvering to hold the nomination for the next President is an "apparent contravention of precedent and the U.S. Constitution." Nice use of the word "apparent" to avoid responsibility for an actual constitutional law interpretation.

But, really, does it matter what the Constitution means? (Especially now that Scalia is dead. It can mean whatever we need it to mean now. The bulwark is gone. Let creativity run wild.)

Just as Donald Trump wrings political energy out of saying that Ted Cruz is not a "natural born citizen," Democrats can get something out of saying Obama has the right to fill the vacancy. The President has a power to nominate new Justices, subject to the check of the Senate, which must confirm. It's balanced power, to be played out politically.

So what if the GOP-dominated Senate plays hard? Cassidy says it will "prompt" "outrage" "among Democrats and independent-minded Americans who dislike partisan warfare." The GOP "appears to be intent on hurtling into a deep pit." Obviously, Cassidy wants to scare the Republican Senators away from pushing back, checking the President's power with their own power, but you've got to play chess games looking ahead several moves.

The GOP will also say it's partisan politics, and this argument will be boosted by the usual claim that liberal Supreme Court Justices infuse their opinions with political preference that does not belong in constitutional interpretation. They'll celebrate their dead icon Scalia, whose method of interpretation will be presented as politically neutral and legally solid. We need another Justice like him, they will say. How terrible to allow Obama to install the 5th vote that achieves a liberal majority on the Court, they will say. Not only is the delay crucial, but the next President must be a conservative, they will say.

Cassidy says:

If the Republicans block the nomination without properly considering it, which also seems likely, a huge political row will ensue, enveloping the Presidential race....

Small wonder, some senior Democrats already appear to be dancing a jig. 

"Dancing a jig"?! Dancing on a man's grave? Is it not obvious how the GOP will respond? That was the basis of my question yesterday: "Will liberals overreach and show too much of a raging desire to control the Court and make it solidly liberal at long last, touching off a reaction among conservatives?"

The jig of raging desire is revolting to those who do not share the Democratic orientation.

ADDED: The title of this post is the title of Cassidy's essay that appears with the essay, but in the sidebar "Most Popular" list the title is "Will Scalia’s Death Boost the Democrats?" That's a much uglier image, depicting the dead body as a step stool. The Democrats are just hopping up on it. In the more sober title, the bad behavior comes from the Republicans and the Democrats stand by decorously, merely accepting what is handed to them.

AND: Here's the membership of the Senate Judiciary Committee, through which any nomination must pass. One notable face: Ted Cruz. What an opportunity for him to perform in The Theater of Proper Constitutional Interpretation. The GOP hold the majority and can calmly control the vote. The trick will be maintaining scrupulous dignity and veneration of constitutional principle. Expect Antonin Scalia to be canonized as the Saint of Constitutional Principle. The Democrats will not have him as their scary monster anymore. Dead, he's an angel. It will be hard to say his seat should be filled by someone unlike him.

That game has been played successfully: I'm thinking of the vicious fight that flared up when George H.W. Bush nominated Clarence Thomas to take the seat that Thurgood Marshall had vacated. That happened in 1991, with the presidential election a year away. Bush won that fight, even with a Democratic majority on the Judiciary Committee, but he proceeded to lose the election. Obama doesn't face reelection, so he can perhaps absorb the heat, and he has an opportunity to pick someone that will be very damaging for the other party to attack. I'm sure he's working on an exquisitely strategy.

ALSO: "Scalia's Grave-Dancers Deserve a Harsh Verdict," by Stephen Carter. 

"What caught [lawprof Noah] Feldman's attention was [Kim Davis's] claim that her oath of office, which ends with 'so help me God,' entitles her to invoke a higher law when necessary."

"Feldman thinks she's mistaken. I wish she were; I fear she's not," writes lawprof Stephen L. Carter.

Feldman finds this claim not so much unpersuasive as wrongheaded -- a misunderstanding of the nature of the oath. Davis’s argument, he writes, “implies that obedience to divine law is somehow baked in to one’s constitutional duties and obligations.”...

Like much scholarly writing today about oaths, it seeks to impose a post-modern outlook on a pre-modern practice.... Davis’s argument for relying on her oath of office as justification for disregarding the law of the land is well grounded in history. It’s also dangerous. The nation will not long survive open defiance of court orders by elected officials....

If you could choose/write one sentence to explain the value of free speech to the people of the world who don't get it...

... what would it be? Lawprof Stephen L. Carter — addressing the anti-blasphemy mobs — says:

The best statement of our constitutional rule remains the one announced by the U.S. Supreme Court 40 years ago in Police Department of the City of Chicago v. Mosley: “To permit the continued building of our politics and culture, and to assure self-fulfillment for each individual, our people are guaranteed the right to express any thought, free from government censorship.”

If that's the best statement, we are in trouble. I love the idea of looking for a short, apt sentence saying why we believe in protecting freedom of speech, but surely there must be hundreds of better statements than that.

To assure self-fulfillment for each individual... I think it's creepy for the government to even purport to assure self-fulfillment. You can have all the freedom in the world and it won't assure much of anything. And self-fulfillment... you have to already have a particular view of the meaning of life before you put self-fulfillment at the center of the universe. And if you're trying to convince people who begin with a conviction that God is the center, you're blocking your own pathway into their minds. (And they already want that pathway blocked.)

The NYT asks "7 legal experts to pose the questions they would like to hear [Sonia Sotomayor] answer."

There are: Stanford lawprof Kathleen M. Sullivan (who asks about the use of federalism to achieve progressive ends and the Supreme Court's response to the detainees), former secretary of homeland security Michael Chertoff (who asks about the influence of evidence, foreign law, and personal sympathy on judicial decisions), Yale lawprof Stephen L. Carter (who focuses on the limitations of the confirmation hearings, asks for the naming of a favorite Supreme Court Justice, and wonders whether Sotomayor will do something about the way these Supreme Court Justices today snipe at each other), former Attorney General Alberto Gonzales (who asks whether "there is a difference between doing justice and applying the law" and whether Justices should take into account the way the United States is perceived around the world and what the standard is for overruling precedent), NYU lawprof Ronald Dworkin (who goads Sotomayor into admitting that judges can't decide cases by just "applying the law" and that it's okay for for government to have race-based policies that "reduce racial inequality and tension"), author James MacGregor Burns (who asks if Sotomayor believes in the notion of a living Constitution and whether the Constitution should be changed to abolish the power of judicial review and to require Justices to retire at age 70)... and me, your humble lawprof blogger (asking whether Sotomayor meant that "wise Latina" remark to be taken seriously, whether the Supreme Court will be better with a diverse array of Justices, and whether we ought to take note of the "extreme overrepresentation" of Catholics on the Court).