1186 (Author at Cato Institute) https://www.cato.org/rss/people/1186 en Josh Blackman discusses New York State Rifle and Pistol Association v. City of New York on KFMB's The Mike Slater Show https://www.cato.org/multimedia/media-highlights-radio/josh-blackman-discusses-new-york-state-rifle-pistol-association-v Thu, 05 Dec 2019 10:19:14 -0500 Josh Blackman https://www.cato.org/multimedia/media-highlights-radio/josh-blackman-discusses-new-york-state-rifle-pistol-association-v Josh Blackman discusses New York State Rifle and Pistol Association v. City of New York in a Federalist Society video https://www.cato.org/multimedia/media-highlights-tv/josh-blackman-discusses-new-york-state-rifle-pistol-association-v Sun, 01 Dec 2019 10:28:58 -0500 Josh Blackman https://www.cato.org/multimedia/media-highlights-tv/josh-blackman-discusses-new-york-state-rifle-pistol-association-v Josh Blackman discusses the Second Amendment's second-class status on Bloomberg Law's Cases and Controversies podcast https://www.cato.org/multimedia/media-highlights-radio/josh-blackman-discusses-second-amendments-second-class-status Fri, 22 Nov 2019 10:49:51 -0500 Josh Blackman https://www.cato.org/multimedia/media-highlights-radio/josh-blackman-discusses-second-amendments-second-class-status The Weird Scenario That Pits President Pelosi Against Citizen Trump in 2020 https://www.cato.org/publications/commentary/weird-scenario-pits-president-pelosi-against-citizen-trump-2020 Josh Blackman, Seth Barrett Tillman <div class="lead text-default"> <p>Assume that President Donald Trump is impeached and removed from office. At that point, Mike Pence would become president. The position of vice president would remain vacant until Congress confirmed a replacement, nominated by the president.</p> </div> , <div class="text-default"> <p>This shift in positions could result in a very unlikely possibility: If, prior to the confirmation of a new vice president, President Pence were to become unable to discharge the office, then Nancy Pelosi, the speaker of the House, would assume the office of the president under the <a href="https://www.senate.gov/artandhistory/history/minute/Presidential_Succession_Act.htm" data-omni-click="r'article',r'',d,r'intext',r'0',r'None' " target="_blank">Presidential Succession Act of 1947</a>.</p> <p>Or would she? Two prominent <a href="https://digitalcommons.law.yale.edu/fss_papers/991/" data-omni-click="r'article',r'',d,r'intext',r'1',r'None' " target="_blank">constitutional-law professors</a> contended in 1995 that the Succession Act now in force is unconstitutional. And a recent <em>New York Times</em> <a href="https://www.nytimes.com/2019/11/03/opinion/trump-impeachment-pelosi.html" data-omni-click="r'article',r'',d,r'intext',r'2',r'None' " target="_blank">op-ed</a> agreed: Legislators, such as the speaker of the House, cannot be elevated to the presidency, the thinking goes.</p> <p>This theory, if correct, risks throwing the United States and the entire free world into a state of chaos. The speaker and the secretary of state (the next-in-line, nonlegislative officer) could both claim, with some legitimacy, to be president. <em>Bush v. Gore</em> would be tame by comparison.</p> </div> , <aside class="aside--right aside pb-lg-0 pt-lg-2"> <div class="pullquote pullquote--default"> <div class="pullquote__content h2"> <p>If Trump and Pence are out of the picture, then Pelosi becomes president. Full stop. But the Senate, even if it removes and disqualifies Trump, could not prevent him from being elected to a second term as president.</p> </div> </div> </aside> , <div class="text-default"> <p>A better reading of the Constitution, however, gives Congress the power to place Nancy Pelosi second in line for the presidency. But, as we’ll get to below, that same reading has an unexpected implication: Contrary to common belief, after removing the president from office, the Senate cannot disqualify him from being elected to the White House a second time.</p> <p>Our analysis starts with the succession clause in Article II of the Constitution. The Constitution specifies that the vice president serves when the presidency goes vacant. But what happens if both positions go vacant, a so-called double vacancy? The Constitution&rsquo;s succession clause states: &ldquo;Congress may by Law ... [declare] what Officer shall then act as President.&rdquo; And Congress has done just that: The Presidential Succession Act places the speaker of the House next in line after the vice president. If the speaker is an officer, then there is no problem, because the Constitution clearly states that Congress may place officers in the line of succession.</p> <p>That&rsquo;s where the law professors (and brothers) Akhil Reed Amar and Vikram David Amar take issue. They wrote in a 1995 article that the speaker, a member of the legislative branch, cannot be characterized as an officer.</p> <p>The Constitution uses different phrases in reference to different types of officesand officers, such as &ldquo;officers of the United States&rdquo; and &ldquo;office under the United States.&rdquo; The Amars write that each of these phrasings, as well as the phrase <em>officer</em> in the succession clause, &ldquo;seemingly describes the same stations.&rdquo;</p> <p>As evidence, the Amars point to the fact that in an early draft of the Constitution, the succession clause expressly extended to &ldquo;officers of the United States,&rdquo; but a style committee changed this language to &ldquo;officers.&rdquo; Finding nothing in the Philadelphia Convention&rsquo;s records that indicates the committee intended to make a substantive change, the Amars assume that <em>officer</em> was &ldquo;shorthand&rdquo; for the longer phrase. For this reason and others, they conclude that all these variations on <em>office</em> and <em>officer</em> have the same scope, and that all these phrases refer only to positions in the judicial and executive branches, including the presidency. Officials in the legislative branch, however, are not officers, they say. As a result, members of Congress fall outside the scope of the succession clause; therefore, the Amars would conclude that Pelosi cannot succeed to the presidency. Their position treats the Framers&rsquo; carefully chosen textual variations as irrelevant.</p> <p>We disagree. The Framers used each of these different phrasings to accomplish different purposes. Presumptively, when different language is used, different meanings are intended. The phrase <em>officers of the United States</em> was the only phrase the Framers chose to refer to appointed executive- and judicial-branch officers; it did not extend to appointed officers in the legislative branch, such as the secretary of the Senate and the clerk of the House. When they wanted to refer to elected positions, generally, the Framers named them, such as president, vice president, senators, and representatives. Where the Framers chose other language, such as <em>office under the United States</em>, they <a href="https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/09/25/the-emoluments-clauses-litigation-part-1-the-constitutions-taxonomy-of-officers-and-offices/" data-omni-click="r'article',r'',d,r'intext',r'4',r'None' " target="_blank">drew</a> the line not between the branches, but between appointed officers and elected officials in all three branches of government. In short, <em>office under the United States</em> encompasses appointedofficers in all three branches, but not any elected officials.</p> <p>Consider the Constitution&rsquo;s impeachment clause. It provides that &ldquo;the President, Vice President and all civil <em>Officers of the United States</em>&rdquo; can be impeached (emphasis added). In his <a href="http://bit.ly/2RlUwhX" data-omni-click="r'article',r'',d,r'intext',r'5',r'None' " target="_blank"><em>Commentaries on the Constitution</em></a> (1833), Justice Joseph Story discussed the meaning of the impeachment clause: If <em>officers of the United States</em> included the presidency, an elected position, then the Framers should have written the clause differently: &ldquo;the president, vice president, and all <em>other</em> civil officers of the United States.&rdquo; In that situation, the president would be an officer of the United States. But the Framers did not write the provision that way. This choice indicates that the elected president is <em>not</em> an officer of the United States. Our counterintuitive position is not novel. Justice Story articulated it nearly two centuries ago.</p> <p>Under this reading, who can be impeached? Unlike the succession clause, which only refers to an &ldquo;officer,&rdquo; the impeachment clause uses the modified phrase <em>officer of the United States</em>. The phrase <em>officers of the United States</em> does not apply to electedofficials; rather, it applies only to appointedofficers. Thus, Mike Pompeo, the secretary of state, who is appointed to the executive branch, can be impeached. But elected members of the Senate and House cannot be impeached, because they are not appointed, nor are they officers of the United States. That includes Representative Adam Schiff. (Sorry, President Trump.)</p> <p>The term <em>officer</em> in the succession clause, standing by itself, is broader than the modified phrase <em>officer of the United States.</em> This category of positions includes the speaker of the House and the president pro tempore of the Senate. Both are electedofficials whose positions are expressly created by the Constitution, as opposed to appointedofficers created by mere federal statute.</p> <p>This understanding of the Constitution&rsquo;s divergent language relating to <em>office</em> and <em>officer</em> has two important&mdash;and surprising&mdash;implications. First, if President Trump is removed from office, the disqualification clause allows the Senate to preclude him from &ldquo;hold[ing] and enjoy[ing] any Office ... under the United States.&rdquo; It is generally assumed that this provision means that the Senate can thus bar an ejected first-term president from being elected to a second term. Indeed, many &ldquo;<a href="https://www.nytimes.com/2019/10/26/us/trump-senate-presidency.html" data-omni-click="r'article',r'',d,r'intext',r'6',r'None' " target="_blank">explainers</a>&rdquo; published on the impeachment process take this outcome for granted, without any skepticism, even in the absence of any on-point judicial authority. But, the phrase <em>office under the United States</em> (much like <em>officer of the United States</em> in the impeachment clause)prevents Trump only from being appointed to an office in any of the three branches. Senate disqualification would not prevent Trump from being elected to the House, the Senate, or even a second term as president. That outcome makes sense: Let the voters decide.</p> <p>Second, the Constitution&rsquo;s foreign-emoluments clause applies only to a &ldquo;person holding any Office ... under&rdquo; the United States. Again, this language prevents only appointed federal officers, not elected officials, from accepting foreign-state gifts and some forms of compensation from foreign states. As a constitutional matter, the president and members of Congress can accept foreign-state gifts. We have <a href="https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/09/26/the-emoluments-clauses-litigation-part-2-the-practices-of-the-early-presidents-the-first-congress-and-alexander-hamilton/" data-omni-click="r'article',r'',d,r'intext',r'7',r'None' " target="_blank">previously written</a> that President George Washington received, accepted, and kept valuable gifts from the French government, and he did not seek congressional consent.</p> <p>Recently, however, a <a href="https://www.courthousenews.com/wp-content/uploads/2018/07/EMOLLUMENTS.pdf" data-omni-click="r'article',r'',d,r'intext',r'8',r'None' " target="_blank">federal court</a> concluded that the president was subject to the foreign-emoluments clause. This ruling, which is on appeal, unintentionally casts doubt on the validity of the Presidential Succession Act. That decision rejected the careful textual distinctions the Framers drew: Much of the &ldquo;officer&rdquo;language in the different clauses distinguishes between appointed officers and elected officials in all three branches. Abandoning this textual dichotomy is a reading akin to that put forward by the Amars. The logical consequence of that position is that elected legislative-branch officials, such as the speaker, are not officers. Under this court&rsquo;s approach, the Presidential Succession Act, which places the speaker in the line of succession, would be unconstitutional.</p> <p>That result is very dangerous. The Supreme Court, should it eventually consider the emoluments-clause cases, would be wise to reverse course, and recognize that the Constitution&rsquo;s text draws a distinction between appointed officers and elected officials in the federal government. Or, at least, the Court should decline to decide the question. Otherwise, the justices may very well usher in political and legal chaos should a double vacancy arise.</p> <p>The process prescribed by the Constitution and the Presidential Succession Act is much simpler. If Trump and Pence are out of the picture, then Pelosi becomes president. Full stop. But the Senate, even if it removes and disqualifies Trump, could not prevent him from being elected to a second term as president. Moreover, even while he is president, Trump-affiliated commercial properties could continue catering to foreign governments without creating any constitutional problems.</p> <p>We realize these results are counterintuitive by modern sentiments, and for some undesirable. Still, each of these outcomes is far better than the genuine constitutional calamity that might emerge if the courts abandon the Constitution&rsquo;s vital textual distinction between appointedofficers and electedofficials. We would much rather have one unpopular, term-limited president than two dueling senior federal officeholders laying claim to the presidency.</p> </div> Wed, 20 Nov 2019 08:35:12 -0500 Josh Blackman, Seth Barrett Tillman https://www.cato.org/publications/commentary/weird-scenario-pits-president-pelosi-against-citizen-trump-2020 Josh Blackman discusses the Supreme Court's DACA case on the National Constitution Center's We the People Podcast with Jeffrey Rosen https://www.cato.org/multimedia/media-highlights-radio/josh-blackman-discusses-supreme-courts-daca-case-national Thu, 14 Nov 2019 12:14:10 -0500 Josh Blackman https://www.cato.org/multimedia/media-highlights-radio/josh-blackman-discusses-supreme-courts-daca-case-national Josh Blackman discusses the Supreme Court's DACA case on Al Jazeera English https://www.cato.org/multimedia/media-highlights-tv/josh-blackman-discusses-supreme-courts-daca-case-al-jazeera-english Tue, 12 Nov 2019 14:03:16 -0500 Josh Blackman https://www.cato.org/multimedia/media-highlights-tv/josh-blackman-discusses-supreme-courts-daca-case-al-jazeera-english Josh Blackman discusses the Supreme Court's DACA case and the Sandy Hook families suing Remington on KTRH's The Michael Berry Show https://www.cato.org/multimedia/media-highlights-radio/josh-blackman-discusses-supreme-courts-daca-case-sandy-hook Tue, 12 Nov 2019 11:53:06 -0500 Josh Blackman https://www.cato.org/multimedia/media-highlights-radio/josh-blackman-discusses-supreme-courts-daca-case-sandy-hook Josh Blackman discusses the Supreme Court's DACA case on ABC News Live https://www.cato.org/multimedia/media-highlights-tv/josh-blackman-discusses-supreme-courts-daca-case-abc-news-live Tue, 12 Nov 2019 11:41:05 -0500 Josh Blackman https://www.cato.org/multimedia/media-highlights-tv/josh-blackman-discusses-supreme-courts-daca-case-abc-news-live Josh Blackman discusses the Supreme Court's DACA case on KPCC’s AirTalk with Larry Mantle https://www.cato.org/multimedia/media-highlights-radio/josh-blackman-discusses-supreme-courts-daca-case-kpccs-airtalk Mon, 11 Nov 2019 11:26:05 -0500 Josh Blackman https://www.cato.org/multimedia/media-highlights-radio/josh-blackman-discusses-supreme-courts-daca-case-kpccs-airtalk Josh Blackman discusses the Supreme Court's DACA case on WJR’s The Guy Gordon Show https://www.cato.org/multimedia/media-highlights-radio/josh-blackman-discusses-supreme-courts-daca-case-wjrs-guy-gordon Mon, 11 Nov 2019 11:23:47 -0500 Josh Blackman https://www.cato.org/multimedia/media-highlights-radio/josh-blackman-discusses-supreme-courts-daca-case-wjrs-guy-gordon The American Bar Association Broke Its Own Rules https://www.cato.org/publications/commentary/american-bar-association-broke-its-own-rules Josh Blackman <div class="lead text-default"> <p>For decades, the American Bar Association has played a unique role in vetting federal judges. Starting with President Dwight Eisenhower, administrations would give the lawyers&rsquo; group a heads-up about whom they intended to nominate to the federal bench. A committee would then assess the candidate&rsquo;s qualifications. In theory, at least, if the organization rated the nominee as &ldquo;not qualified,&rdquo; the administration would reconsider the appointment.</p> </div> , <div class="text-default"> <p>Conservatives have long alleged that the ABA&rsquo;s process was biased against conservative nominees. And some <a href="https://www.nytimes.com/2009/03/31/us/31bar.html" data-omni-click="r'article',r'',d,r'intext',r'0',r'None'" target="_blank">data</a> do back this claim up, though the ABA vigorously defends its independence. Unsurprisingly, over the past two decades, the ABA has whipsawed in and out of the White House. In <a href="https://www.washingtonpost.com/archive/politics/2001/03/23/bush-curtails-aba-role-in-selecting-us-judges/ebfe106c-344d-40a0-8dff-ccf0a2e411fe/" data-omni-click="r'article',r'',d,r'intext',r'1',r'None'" target="_blank">2001</a>, President George W. Bush opted out of the process, and stopped giving the ABA &ldquo;such a preferential, quasi-official role.&rdquo; In <a href="https://www.nytimes.com/2009/03/31/us/31bar.html" data-omni-click="r'article',r'',d,r'intext',r'2',r'None'" target="_blank">2009</a>, President Barack Obama welcomed the ABA back into the fold. And, like clockwork, in <a href="https://www.nytimes.com/2017/03/31/us/politics/white-house-american-bar-association-judges.html" data-omni-click="r'article',r'',d,r'intext',r'3',r'None'" target="_blank">2017</a>, President Donald Trump fired the ABA. Since then, the group has reviewed Trump&rsquo;s nominees after they were announced, in its own capacity but not as part of the formal process, and found most of them qualified. Last week, however, there was one notable exception.</p> <p>President Trump nominated Lawrence VanDyke to fill a vacancy on the U.S. Court of Appeals for the Ninth Circuit. He previously served as the solicitor general of Nevada and Montana. As the top appellate lawyer of two states in the Ninth Circuit, VanDyke argued two dozen cases and briefed scores more. (I worked with VanDyke on several cases over the past few years.) By any objective measure, VanDyke is qualified to serve as a federal judge.</p> </div> , <aside class="aside--right aside pb-lg-0 pt-lg-2"> <div class="pullquote pullquote--default"> <div class="pullquote__content h2"> <p>The organization has proved it can’t be trusted to fairly review nominees.</p> </div> </div> </aside> , <div class="text-default"> <p>The American Bar Association, however, rated him &ldquo;not qualified.&rdquo; On the eve of VanDyke&rsquo;s confirmation hearing, the organization released a <a href="https://judicialnetwork.com/wp-content/uploads/2019/10/2019.10.29_Chair_rating_letter_to_Graham_and_Feinstein_re_nomination_of_Lawrence_J.C._VanDyke.pdf" data-omni-click="r'article',r'',d,r'intext',r'4',r'None'" target="_blank">two-page letter</a> relaying anonymously sourced criticisms. But I find many of the allegations are simply implausible, and border on misleading.</p> <p>For example, the letter stated, &ldquo;In some oral arguments [VanDyke] missed issues fundamental to the analysis of the case.&rdquo; Oral arguments are matters of public record. It should have been easy enough to cite several, or at least one, case in which VanDyke missed a fundamental issue. But the letter offers no such citation. (The <a href="https://twitter.com/OrinKerr/status/1190213101687173120" data-omni-click="r'article',r'',d,r'intext',r'5',r'None'" target="_blank">law professor Orin Kerr</a> reviewed a few of VanDyke&rsquo;s arguments, and said he seemed to be a &ldquo;very good advocate.&rdquo;) Likewise, the letter asserted that &ldquo;his preparation and performance were lacking in some cases in which he did not have a particular personal or political interest.&rdquo; If some objective evidence exists to back up this accusation, none was provided. The letter said VanDyke was &ldquo;lacking in knowledge of the day-to-day practice including procedural rules.&rdquo; But it offered no evidence to support this claim, either.</p> <p>Other claims in the letter were quite personal. For example, based on &ldquo;assessments of interviewees,&rdquo; the ABA reported that &ldquo;VanDyke is arrogant, lazy, [and] an ideologue&rdquo;; &ldquo;lacks humility&rdquo;; and &ldquo;has an &lsquo;entitlement&rsquo; temperament.&rdquo; And it reported &ldquo;a theme&rdquo; that he &ldquo;does not have an open mind, and does not always have a commitment to being candid and truthful.&rdquo;</p> <p>Who would make such unfounded accusations? The letter states that the ABA&rsquo;s evaluator conducted &ldquo;60 interviews with a representative cross section of lawyers (43), judges (16), and one other person&rdquo; who have worked with VanDyke. Those interviews included &ldquo;attorneys who worked with him and who opposed him in cases and judges before whom he has appeared at oral argument.&rdquo; Did all 60 people have the same opinions? The letter itself concedes that they did not, stating that &ldquo;the interviewees&rsquo; views, negative or positive, appeared strongly held on this nominee.&rdquo; Those positive views are not relayed in the letter, though, and it gives no indication of how widely held the negative views actually were.</p> <p>Indeed, there is some evidence that the interviewees who supported VanDyke&rsquo;s nomination were not asked to rebut such slanderous charges. Former Nevada Attorney General Adam Laxalt told <em>National Review</em> that when he was contacted by the ABA, he&rsquo;d spoken of VanDyke in <a href="https://www.nationalreview.com/2019/10/american-bar-association-attack-on-lawrence-vandyke-doesnt-make-sense/?utm_campaign=trueanthem&amp;utm_content=5dbb927d8021ed000132db3e&amp;utm_medium=social&amp;utm_source=twitter" data-omni-click="r'article',r'',d,r'intext',r'6',r'None'" target="_blank">glowing terms</a>. (His assessment matches my own.) Laxalt was interviewed by Marcia Davenport, a Montana trial attorney who led the ABA&rsquo;s evaluation. Laxalt said that the interview was &ldquo;short and perfunctory,&rdquo; and that Davenport &ldquo;did not ask me to comment on anyone else&rsquo;s critiques of his character or professionalism.&rdquo; Nor did she ask Laxalt to comment on VanDyke&rsquo;s most important cases during his tenure as Nevada solicitor general. Laxalt told Fox News that Davenport &ldquo;<a href="https://www.foxnews.com/politics/attorneys-legal-review-of-trump-pick-after-emotional-hearing" data-omni-click="r'article',r'',d,r'intext',r'7',r'None'" target="_blank">seemed completely disinterested</a>.&rdquo; If people told Davenport that VanDyke was &ldquo;arrogant&rdquo; and &ldquo;lazy&rdquo; and routinely made errors in his professional dealings, then Laxalt and other interviewees with more positive impressions should have been given a chance to address those accusations.</p> <p>Laxalt says he was not, and he is not alone. Davenport also interviewed <a href="https://www.foxnews.com/politics/attorneys-legal-review-of-trump-pick-after-emotional-hearing" data-omni-click="r'article',r'',d,r'intext',r'8',r'None'" target="_blank">Ashley Johnson</a>, who worked with VanDyke at the Gibson Dunn law firm for several years. She wrote on Twitter that &ldquo;the call lasted fewer than 5 minutes.&rdquo; Davenport did not tell Johnson &ldquo;that she had received ANY negative comments or ask if they matched my experience over the 13 years I have known Lawrence. Instead, [Davenport] read through what was clearly a script of questions, thanked me for my time, and hung up,&rdquo; Johnson wrote.</p> <p>Davenport also interviewed Joseph Tartakovsky, who served as Nevada&rsquo;s deputy solicitor general for three years under VanDyke. Tartakovsky <a href="https://www.foxnews.com/politics/attorneys-legal-review-of-trump-pick-after-emotional-hearing" data-omni-click="r'article',r'',d,r'intext',r'10',r'None'" target="_blank">told Fox News</a> his interview also lasted about five minutes, and &ldquo;it was clear to me that she was going through the motions.&rdquo; She did not ask follow-up questions, he said.</p> <p>The Regent University law professor Brad Lingo also spoke with Davenport. He <a href="https://www.nationalreview.com/2019/10/american-bar-association-attack-on-lawrence-vandyke-doesnt-make-sense/" data-omni-click="r'article',r'',d,r'intext',r'11',r'None'" target="_blank">offered a similar account</a>, also on Twitter. Lingo tweeted that he told Davenport that VanDyke was &ldquo;one of the most earnest, humble, kind-hearted, and intellectually engaged lawyers I know.&rdquo; He added, &ldquo;I was surprised that the interview lasted all of about 5 minutes.&rdquo; Indeed, VanDyke himself testified at his Senate confirmation hearing that during his ABA interview, Davenport repeatedly cut him off whenever he attempted to respond. She said they didn&rsquo;t have enough time to go through all the points.</p> <p>There seems to be a pattern. People who had good things to say about VanDyke, including VanDyke himself, report that they were cut short, and that their opinions did not make it into the letter. How many of these 60 people thought VanDyke was &ldquo;arrogant&rdquo; and &ldquo;lazy&rdquo;? We have no idea.</p> <p>The most salacious accusation came from Davenport herself. The letter states: &ldquo;Mr. VanDyke would not say affirmatively that he would be fair to any litigant before him, notably members of the LGBTQ community.&rdquo; I have watched many confirmation hearings. Often a nominee is asked whether he or she would be fair to a particular group. The nominee invariably replies, &ldquo;I will be fair to everyone.&rdquo; It would be improper for a judge to single out any group for particular treatment.</p> <p>When I first read the letter, I simply assumed that Davenport asked VanDyke the same question: Would he be fair to people in the LGBTQ community? No reasonable nominee would admit a bias toward LGBTQ people. During his hearing, VanDyke stated that he would be fair to everyone. But that is not what the ABA reported.</p> <p>During his confirmation hearing, VanDyke rejected the letter&rsquo;s insinuation: &ldquo;I did not say that,&rdquo; <a href="https://twitter.com/gregorytangelo/status/1189579775414808576?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwterm%5E1189579775414808576&amp;ref_url=https%3A%2F%2Freason.com%2F2019%2F10%2F30%2Fjudicial-nominees-should-only-meet-with-aba-investigators-if-a-court-reporter-is-present%2F" data-omni-click="r'article',r'',d,r'intext',r'12',r'None'" target="_blank">he recounted, while holding back tears</a>. &ldquo;I do not believe that. It is a fundamental belief of mine that all people are created in the image of God, and they should all be treated with dignity and respect, Senator.&rdquo;</p> <p>We now have a situation of &ldquo;he said, she said.&rdquo; I believe VanDyke. Davenport&rsquo;s account is utterly implausible. The Senate should call Davenport to testify under oath about her assertion. She should also be called upon to explain why her investigation appears not to have complied with the <a href="https://www.americanbar.org/content/dam/aba/uncategorized/GAO/Backgrounder.authcheckdam.pdf" data-omni-click="r'article',r'',d,r'intext',r'13',r'None'" target="_blank">ABA&rsquo;s own procedures</a> in three important regards.</p> <p>First, ABA rules require members to recuse themselves from an investigation if their &ldquo;impartiality might reasonably be questioned.&rdquo; In 2014, VanDyke ran for election to the Montana Supreme Court. The race was extremely divisive. According to public records, Davenport donated to VanDyke&rsquo;s opponent. Based on those standards, Davenport should have recused herself. She should not have been the lead investigator.</p> <p>Second, ABA rules state that when a nominee is rated as &ldquo;&lsquo;not qualified,&rsquo; the Chair will appoint a second evaluator&rdquo; who will conduct &ldquo;a new interview of the nominee.&rdquo; VanDyke was never interviewed a second time. The final letter considered only Davenport&rsquo;s interview with VanDyke. A follow-up discussion could have resolved any doubt about the LGBTQ comment, but none was held.</p> <p>Third, the ABA rules provide that the written statement must be submitted to the Senate Judiciary Committee, as well as the nominee, 48 hours before the confirmation hearing. This gap is designed to address any possible errors, and perhaps to make last-minute corrections. In this case, the letter was released at 7 p.m., in advance of a hearing the next morning. VanDyke was ambushed.</p> <p>At every juncture, the ABA seems to have cut corners. It apparently failed to ask VanDyke&rsquo;s supporters to respond to charges against him. The letter may have mischaracterized VanDyke&rsquo;s statements. And the investigation was led by a conflicted person who did not even appoint a second person to interview the nominee. The process was flawed from the outset, and should not be afforded any deference. Even if Davenport testifies, and justifies her actions, the damage has already been done—not to VanDyke, but to the ABA. This letter demonstrates that the organization can no longer be trusted to perform a fair assessment of nominees. (William Hubbard, chairman of the ABA committee that conducts judiciary-nominee evaluations, <a href="https://www.washingtonpost.com/politics/2019/10/30/trump-judicial-nominee-cries-over-scathing-letter-american-bar-association/" data-omni-click="r'article',r'',d,r'intext',r'15',r'None'" target="_blank">said in a statement</a>, &ldquo;The evaluations are narrowly focused, nonpartisan, and structured to assure a fair and impartial process.&rdquo;)</p> <p>What happens next? Nominees, of course, could refuse to meet with the ABA. Though that option includes a risk: The most damning allegations will not be refuted. There is a far more productive approach. These interrogations should be treated as hostile depositions. A court reporter and videographer should be present, as well as privately retained counsel to push back on unfounded accusations. In the event that the nominee is rated as qualified, there would be no need to release the transcript. Going forward, when a nominee is rated as unqualified, the transcript should be released, and the recording should be posted publicly online. There is no reason to rely on disputed accounts of the interview.</p> <p>As originally designed, the confidential nature of this process made some sense. The interviews were not recorded to ensure that members of the bar could candidly critique a potential jurist, and to prevent the nominee from facing public embarrassment if the report was released. But the VanDyke letter turns that practice on its head. He was sandbagged at the last minute, and he was not given a chance to address any of the accusations it contained. This wound was entirely self-inflicted. If the ABA wanted to rate a nominee like VanDyke as unqualified, the organization should have followed its own rules to a T. Instead, it ran a slipshod process, led by a person whose objectivity was open to question.</p> <p>This process should no longer be a black box. If reports faithfully reflect the interviews, faith can be restored in the ABA. If the process remains shrouded in secrecy, Americans can safely discount future findings.</p> </div> Wed, 06 Nov 2019 08:49:03 -0500 Josh Blackman https://www.cato.org/publications/commentary/american-bar-association-broke-its-own-rules Josh Blackman discusses whether the SCOTUS will keep Trump's tax returns secret on The Bloomberg Law podcast https://www.cato.org/multimedia/media-highlights-radio/josh-blackman-discusses-whether-scotus-will-keep-trumps-tax Tue, 05 Nov 2019 10:41:14 -0500 Josh Blackman https://www.cato.org/multimedia/media-highlights-radio/josh-blackman-discusses-whether-scotus-will-keep-trumps-tax Little Sisters of the Poor v. Pennsylvania https://www.cato.org/publications/legal-briefs/little-sisters-poor-v-pennsylvania Ilya Shapiro, Josh Blackman <div class="lead text-default"> <p>The Supreme Court said in <em>Burwell v. Hobby Lobby</em> (2014) that, under the Religious Freedom Restoration Act, the Department of Health and Human Services (HHS) could not apply its contraceptive mandate to closely held for-profit corporations when doing so would violate the owners&rsquo; sincere religious beliefs. Around the time of that decision, the Court stayed the application of the mandate to nonprofits, including a group of nuns known as the Little Sisters of the Poor. The Little Sisters and their co-plaintiffs in <em>Zubik v. Burwell</em> (2016) objected to the &ldquo;accommodation&rdquo; that HHS crafted for religious nonprofits because they considered it to require them to be complicit in sin. While the Supreme Court stopped the operation of the contraceptive mandate against the Little Sisters in light of <em>Hobby Lobby</em>, their case is still active.</p> </div> , <div class="text-default"> <p>Here's the deal: Although the Affordable Care Act said nothing about accommodating or exempting religious organizations from the requirement of providing employees &ldquo;preventive care&rdquo; (a term undefined in the statute&rsquo;s text), HHS issued a rule that exempted churches and their &ldquo;integrated auxiliaries&rdquo; from the mandate altogether but required other religious organizations to submit a self-certification that would lead insurers or third-party administrators to cover the cost of the objectionable contraceptives. In doing so, the department claimed to try to balance religious liberty and access to contraceptives by <em>exempting</em> churches and <em>accommodating</em> other religious employers. It justified this distinction by saying that non-church religious employers were &ldquo;more likely&rdquo; to employ people who did not share their faith or adhere to the same objection. That distinction did not and does not hold up, however, as the Little Sisters continue to maintain that the mere &ldquo;accommodation&rdquo; makes them violate their sincerely held religious beliefs.</p> <p> In appealing to the Supreme Court to resolve the issue once and for all, Cato and the Jewish Coalition for Religious Liberty propose the same question Cato asked the Court to resolve in <em>Zubik</em>: Whether HHS and other federal departments have the interpretive authority to craft a religious &ldquo;accommodation&rdquo; pursuant to the ACA&rsquo;s &ldquo;preventive care&rdquo; mandate. The answer, both then and now, is no. With a new administration, the balance of the parties has changed and the White House seeks a more expansive exemption&mdash;one that would arguably cover the Little Sisters. Yet even if New Jersey and Pennsylvania (the parties now opposite the Little Sisters) are correct that the new exemption cannot go into effect, the Court will still have to decide what alternate regime complies with RFRA. That is, if the Court takes seriously Cato&rsquo;s doubts about agency authority in this case, it cannot just consider the expanded exemptions in a vacuum and call it a day. </p> <p>First, the accommodation&mdash;third-party coverage of &ldquo;preventive care&rdquo; upon self-certification of a belief-based objection&mdash;was crafted without any statutory anchor. There is no indication in the ACA&rsquo;s 900+ pages that Congress intended for HHS to make religion-related judgment calls; the word &ldquo;religion&rdquo; does not even appear anywhere. It is particularly unlikely that Congress would have delegated, without any statutory guidance, this sort of authority, given that the relevant agencies have no expertise in crafting religious accommodations. Executive agencies simply cannot impose arbitrary burdens on religious non-profits that they guesstimate to be &ldquo;less&rdquo; religious than churches. Second, the departments lack the &ldquo;expertise&rdquo; to answer this &ldquo;major question&rdquo; of social, &ldquo;economic and political consequence,&rdquo; to quote <em>King v. Burwell </em>(the 2015 statutory challenge to Obamacare), and are not entitled to make religious-liberty policy or receive judicial deference when they do. Although administrative law&rsquo;s <em>Chevron</em> doctrine allows agencies to fill in the gaps where statutory language is ambiguous, that power does not entitle agencies to make major decisions that alter the fundamental aspects of religious free exercise when the only potential source of that power is the term &ldquo;preventive care.&rdquo; Finally, where there is a lack of clear indication of congressional delegation, the Court must avoid constitutional questions that could lead to church-state entanglement, as is likely the case when an agency picks and chooses which religious tenets it respects or ignores.</p> <p>Unfortunately, the Supreme Court in <em>Zubik</em> did not decide whether the post-<em>Hobby Lobby</em> regulations were the least restrictive means of serving the government&rsquo;s interest in the &ldquo;preventive care&rdquo; provision, remanding the case&mdash;and the 800-pound religious-liberty gorilla&mdash;to the lower courts. Now the case has returned to the Court&rsquo;s marble steps, offering the justices another chance to provide the Little Sisters and similarly situated groups real protection. This is the only way to remedy the substantial burden placed on their free exercise of religion, imposed on them by dint of their organizational form and other agency-contrived criteria.</p> </div> Fri, 01 Nov 2019 15:07:06 -0400 Ilya Shapiro, Josh Blackman https://www.cato.org/publications/legal-briefs/little-sisters-poor-v-pennsylvania An Introduction to Constitutional Law: 100 Supreme Court Cases Everyone Should Know https://www.cato.org/multimedia/cato-daily-podcast/introduction-constitutional-law-100-supreme-court-cases-everyone Josh Blackman, Caleb O. Brown <p>Reducing the Supreme Court's jurisprudence to just 100 cases is quite a challenge. Josh Blackman is coauthor of <em>An Introduction to Constitutional Law: 100 Supreme Court Cases Everyone Should Know</em>.</p> Wed, 09 Oct 2019 08:05:02 -0400 Josh Blackman, Caleb O. Brown https://www.cato.org/multimedia/cato-daily-podcast/introduction-constitutional-law-100-supreme-court-cases-everyone Josh Blackman discusses the upcoming SCOTUS term on WBAL's News Now with Bryan Nehman https://www.cato.org/multimedia/media-highlights-radio/josh-blackman-discusses-upcoming-scotus-term-wbals-news-now-bryan Tue, 08 Oct 2019 13:23:46 -0400 Josh Blackman https://www.cato.org/multimedia/media-highlights-radio/josh-blackman-discusses-upcoming-scotus-term-wbals-news-now-bryan Josh Blackman discusses the upcoming SCOTUS term on WWL's First News with Tommy Tucker https://www.cato.org/multimedia/media-highlights-radio/josh-blackman-discusses-upcoming-scotus-term-wwls-first-news Tue, 08 Oct 2019 13:21:54 -0400 Josh Blackman https://www.cato.org/multimedia/media-highlights-radio/josh-blackman-discusses-upcoming-scotus-term-wwls-first-news Josh Blackman discusses Cato's DACA brief on The Daily Journal podcast https://www.cato.org/multimedia/media-highlights-radio/josh-blackman-discusses-catos-daca-brief-daily-journal-podcast Mon, 07 Oct 2019 13:15:24 -0400 Josh Blackman https://www.cato.org/multimedia/media-highlights-radio/josh-blackman-discusses-catos-daca-brief-daily-journal-podcast Josh Blackman discusses the upcoming SCOTUS term on KTRH's The Michael Berry Show https://www.cato.org/multimedia/media-highlights-radio/josh-blackman-discusses-upcoming-scotus-term-ktrhs-michael-berry Mon, 07 Oct 2019 13:10:14 -0400 Josh Blackman https://www.cato.org/multimedia/media-highlights-radio/josh-blackman-discusses-upcoming-scotus-term-ktrhs-michael-berry Josh Blackman participates in the event, "Federalist Society Discussion on New 2019 Supreme Court Term," on C-SPAN https://www.cato.org/multimedia/media-highlights-tv/josh-blackman-participates-event-federalist-society-discussion-new Thu, 03 Oct 2019 14:38:56 -0400 Josh Blackman https://www.cato.org/multimedia/media-highlights-tv/josh-blackman-participates-event-federalist-society-discussion-new Josh Blackman previews the upcoming SCOTUS 2020 session on Houston Public Media's Red, White & Blue https://www.cato.org/multimedia/media-highlights-tv/josh-blackman-previews-upcoming-scotus-2020-session-houston-public Fri, 27 Sep 2019 12:21:56 -0400 Josh Blackman https://www.cato.org/multimedia/media-highlights-tv/josh-blackman-previews-upcoming-scotus-2020-session-houston-public Josh Blackman discusses Speaker Pelosi's announcement of impeachment inquiries against the President on the Bloomberg's Politics, Policy, Power and Law https://www.cato.org/multimedia/media-highlights-radio/josh-blackman-discusses-speaker-pelosis-announcement-impeachment Thu, 26 Sep 2019 11:23:02 -0400 Josh Blackman https://www.cato.org/multimedia/media-highlights-radio/josh-blackman-discusses-speaker-pelosis-announcement-impeachment Josh Blackman discusses Brown v. Board of Education (1954) on Conlaw.com https://www.cato.org/multimedia/media-highlights-tv/josh-blackman-discusses-brown-v-board-education-1954-conlawcom Thu, 26 Sep 2019 11:07:33 -0400 Josh Blackman https://www.cato.org/multimedia/media-highlights-tv/josh-blackman-discusses-brown-v-board-education-1954-conlawcom Josh Blackman participates in the Ethics CLE Teleforum, "Model Rule 8.4(g) Update, What Attorneys Should Be Aware Of In 2019/2020," on the Federalist Society Practice Group podcast https://www.cato.org/multimedia/media-highlights-radio/josh-blackman-participates-ethics-cle-teleforum-model-rule-84g Wed, 25 Sep 2019 12:12:00 -0400 Josh Blackman https://www.cato.org/multimedia/media-highlights-radio/josh-blackman-participates-ethics-cle-teleforum-model-rule-84g Josh Blackman discusses impeachment proceedings on KPRC Channel 2 News at 6PM https://www.cato.org/multimedia/media-highlights-tv/josh-blackman-discusses-impeachment-proceedings-kprc-channel-2-news Wed, 25 Sep 2019 11:55:45 -0400 Josh Blackman https://www.cato.org/multimedia/media-highlights-tv/josh-blackman-discusses-impeachment-proceedings-kprc-channel-2-news Josh Blackman discusses executive action and gun control on WWL's First News with Tommy Tucker https://www.cato.org/multimedia/media-highlights-radio/josh-blackman-discusses-executive-action-gun-control-wwls-first Wed, 25 Sep 2019 11:40:24 -0400 Josh Blackman https://www.cato.org/multimedia/media-highlights-radio/josh-blackman-discusses-executive-action-gun-control-wwls-first