Sunday, June 16, 2024

That's One Way to Put It

From the Sunday New York Times,"Alabama's I.V.F. Shield Law Now Faces a Constitutional Challenge":

“The new challenge to the shield law comes as Southern Baptists, the country’s largest Protestant denomination, voted this week to oppose the use of I.V.F. at their national conference.”

 Yeah, but is it still okay to use I.V.F. at a clinic? (And who would want to do it in the middle of a national conference, anyhow?)

Posted by Steve Lubet on June 16, 2024 at 08:09 PM | Permalink | Comments (0)

Saturday, June 15, 2024

Hmmm….

Any present or former journalist, or anyone who has written an op-ed or essay for a general interest publication, knows that editors are keen on compelling openings that suggest to the reader the immense importance of the topic. (Law reviews increasingly demand the same, for roughly the same reason: the authors are trying to captivate student editors who are a short step above being general readers themselves.)

It’s an understandable practice. But it carries with it tremendous temptations to exaggerate, mythologize, or pay implicit tribute to Harry Frankfurt. So we come to the first paragraph of this essay in the online spaces of the midbrow conservative “public intellectual” publication City Journal. I have to wonder: Does anyone really think that anything in this paragraph after the first six words is true? Does the author, a law school graduate, really think so? I just can't see how.   

Hardly anyone reads law review articles, but those who do are among the most influential readers in the country. Supreme Court justices and federal and state judges rely on academic theories to decide important cases and to set the legal doctrines that shape American life. Professors shape their students’ worldviews by assigning articles appearing in prestigious journals to show that they are authoritative—the law equivalent of peer-reviewed. Though these journals are student-run and -edited, they often legitimize the ideas that become law and common knowledge.

Posted by Paul Horwitz on June 15, 2024 at 11:12 AM in Paul Horwitz | Permalink | Comments (0)

Saturday Music Post - I've Just Seen a Face

"I've Just Seen a Face" was released in the U.S. in 1965 on the Beatles' album Rubber Soul (it was on Help in the UK). It was written and sung by Paul, who also played guitar -- there was no bass on the cut. 

McCartney has called it a "skiffle" song, although the original cut (at the bottom of today's post) had a decidedly non-skiffle introduction. It has since been covered mostly as a bluegrass or C&W song. There are no live clips of it by the Beatles, but Paul performed it often with Wings. I don't know if left-handed Paul played the 12-string on the album, but he sometimes played one with Wings.

Paul's left-handed twelve-string is at the bottom of today's post at The Faculty Lounge.

Posted by Steve Lubet on June 15, 2024 at 04:05 AM | Permalink | Comments (0)

Friday, June 14, 2024

JOTWELL: Endo on Michalski & Hammond on pro se litigants

The new Courts Law essay comes from Seth Katsuya Endo (Seattle) reviewing Roger Michalski & Andrew Hammond, Mapping the Civil Justice Gap in Federal Court, 57 Wake Forest L. Rev. 453 (2022), on the demographics of pro se litigants.

Posted by Howard Wasserman on June 14, 2024 at 01:03 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Thursday, June 13, 2024

Paring back strange standing doctrines

SCOTUS decided FDA v. Alliance for Hippocratic Medicine Thursday, holding 9-0 (per Justice Kavanaugh) that a collection of anti-choice doctrines lack standing to challenge FDA's expansion of Mifepristone availability.*

* And implicitly holding that the Fifth Circuit and the district judges within Texas are off the rockers, although that is unlikely to have any effect.

The case hints at paring back more strained forms of standing.

The Court emphasizes that the plaintiffs are unregulated parties seeking to challenge government regulation of others, requiring a "predictable chain of events." It refuses to accord standing to anyone who sees an increase in her workload or job burdens as a result of government policy (e.g., the doctors here alleging they will have to treat more patients suffering side effects of Mifepristone or firefighters alleging they will face more fires because government relaxes fire codes).

The Court cabins Havens "organizational" standing. An organization cannot claim standing because it diverts resources in response to the defendant's actions, as by spending money to oppose or work around some policy. The plaintiff organization in Havens (HOME) providing counseling services to homeeseekers; Havens injured HOME in that function by providing Black testers false information about the availability of housing. But Havens does not accord standing to any advocacy group that spends money or otherwise acts to oppose a policy. Note that this conclusion is cross-partisan. Immigrant-rights groups such as HIAS relied on a similar theory in challenging Trump's travel ban--they diverted resources to try to bring people into the country around the travel ban and to educate people about the new rules and limitations.

Finally, Justice Thomas concurs to reaffirm his stated distaste for third-party standing and to add associational standing (which he sees as another form of third-party standing) to his hit list. (He relies on an amicus brief by friend-and-spouse-of-the-blawg Andy Hessick of UNC). He links the expansion of (and thus defects in) associational standing to the problems of universal injunctions--protecting beyond plaintiffs, undermining FRCP 23, and creating preclusion problems. And he rejects any "practical" justifications for the vehicle. (Update: Andy and Michael Morley made the full critique of associational standing here.

Posted by Howard Wasserman on June 13, 2024 at 11:53 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, June 12, 2024

Justice Thomas's Amended Disclosure Is Still Wrong

My new essay at The Daily Beast explains that Justice Clarence Thomas’s amended financial disclosure is still inconsistent, incomplete, and inaccurate. Here is the gist:

The two explanations cannot both be true. Either Thomas had intentionally excluded Crow’s largesse because he believed it to be “unreportable,” or he had somehow “inadvertently” (hastily? carelessly?) forgotten to include it.

As a cross-examiner might ask, was he fooling us then, or is he fooling us now?

But it is worse than that. The amended disclosure lists only “food and lodging” for a single night in a Bali hotel, with no mention of transportation to the destination on Crow’s private jet or on the extended cruise through the islands, both of which were thoroughly documented by ProPublica.

Although I seldom agree with Thomas’ jurisprudence, I can still appreciate the clarity of his written opinions. When it comes to his financial disclosures, however, it is all omission, contradiction, and obfuscation.

You can read the full essay at The Daily Beast.

Posted by Steve Lubet on June 12, 2024 at 07:19 AM | Permalink | Comments (0)

Tuesday, June 11, 2024

Hiring Plans and Hiring Committees 2024-2025

I am collecting information about (1) whether a particular school plans to hire in 2024-2025, and (2) if so, information about the school's hiring committee and hiring interests. Due to some technical difficulties with comments, I'm having to move to a different approach this year for collecting the information.

Please fill out a Google form or email me to provide information about your school's hiring committee and hiring interests for 2024-2025 (scroll down for the list of specific information I'm hoping to collect). Any responses to the Google form can be viewed by anyone.

I will aggregate cleaned, standardized information submitted through the form, emailed to me, or gathered from other sources (such as public hiring ads, posts on the web, social media, etc.) in a downloadable, sortable spreadsheet. You cannot edit this spreadsheet directly. To provide this information, fill out the Google form or email me.

Use a web tool available on the Lawsky Projects website to filter the information in the spreadsheet by subject area, location, and lateral/entry level. All that the tool on the Lawsky Projects website does is sort and filter what is in the spreadsheet; it is therefore only as useful as the spreadsheet is complete.

Here is the specific information I'm hoping to collect. You can submit this information through the Google form or by emailing me:

First:

(a) your school;
 
(b) whether your school is pursuing entry-level hiring in 2024-2025;
 
(c) whether your school is pursuing lateral hiring in 2024-2025.

If your school does plan on pursuing hiring in 2024-2025:

(d) the chair of your hiring committee (please note if you have different chairs for entry level and lateral candidates--I hope that this information will be useful for both entry level and lateral candidates);
 
(e) other members of your hiring committee (again, please note if there is a distinction between entry level and lateral committees); and
 
(f) any particular subject areas in which your school is looking to hire.

Additionally, if you would like to share the following information, candidates might find it helpful to know:

(g) whether you are open to direct applications/individualized expressions of interest (affirmatively want to receive them, affirmatively don't want to receive them, or don't care one way or the other); 
 
(h) your committee's preferred way to be contacted; 
 
(i) the website, if any, that candidates should use to obtain information about the position or to apply; and
 
(j) the number of available faculty positions at your school.

The form also provides a space to provide additional information, such as pasting in a hiring ad.

Again, comments are not reliably working, so to submit this information, please use the Google Form or email me directly.

Posted by Sarah Lawsky on June 11, 2024 at 08:34 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

Can Governor Hochul Use Federal Law to Stall New York’s Congestion Pricing Program?

NY Governor Hochul surprised just about everyone last week by declaring that she would “delay” New York City’s congestion pricing program on account of its impacts on the city’s central business district. This announcement was surprising because of Hochul’s long-standing support for the program. Just last December, for example, the same Gov. Hochul touted congestion pricing as a “nation-leading” component of her “New New York Plan” that would “Make it Easier for New Yorkers to Get to Work,” “generate billions in revenue for the MTA and improve overall regional air quality.” Hochul is not only contradicting herself but also ignoring state law. The congestion pricing policy that Hochul so casually put on hold had been painstakingly planned for five years since New York’s legislature enacted the Central Business District Tolling Program (codified as Vehicle and Traffic Law Chapter 44-C) in 2019. VTL Chapter 44-C commanded the Metro Transit Authority and New York City — not the Governor — to design tolls for roads, bridges, and tunnels leading into New York City’s central business district. Since 2019, thousands of pages of environmental assessment have been approved. Gantries and transponders have been installed. Contracts had been awarded to vendors. Hochul’s announcement, therefore, risked hundreds of millions in wasted expenditures. Even worse, the announcement carved a $15 billion hole into MTA’s capital plan. The consensus reaction to Hochul’s announcement was most accurately captured by Politco’s headline: “dumpster fire.”

Hochul’s pulling the brake on congestion pricing so abruptly — indeed, chaotically — is certainly terrible policy and likely lousy politics as well. But this is a legal blog, so the question we must ask is: Is it legal? Given that state law seems to give the decision to MTA and New York City, where does the governor get the power to scuttle this state policy?

The answer to this question rests on federal law, not state law. Because New York is imposing tolls on federally aided highways, it must abide by federal rules pertaining to tolls. One of those rules, codified at 23 U.S.C. section 129(a)(3), requires the “public authority with jurisdiction over a toll facility” to “ensure that all toll revenues received from…the toll facility are used only for” federally permitted purposes, The Federal Highway Administration (FHWA) has issued a 2012 guidance requiring the state’s “public authority” to enter into a tolling agreement with the federal government governing this and other federal requirements. From a legal standpoint, Hochul presumably hopes to scuttle the congestion pricing program by refusing to sign such an agreement with the FHWA. She apparently reasons that she is the “public authority” whose consent is needed for congestion pricing to go forward.

After the jump, I will explain that Hochul is wrong to think that she speaks for New York on congestion pricing. Moreover, even if she were right, she would have to give a better reason than her claim (ridiculed here by Jeff Maurer) that working-class drivers would otherwise be paying tolls to eat at Manhattan diners and shop at Manhattan hardware stores. But behind these legal technicalities lies a larger issue of federalism: As a matter of constitutional principle, it is perverse to construe a federal statute to give governors the power to shut down state law. Giving such federal vetoes to state officials will just add to the policy-making gridlock that is now discrediting democracy in America.

Continue reading "Can Governor Hochul Use Federal Law to Stall New York’s Congestion Pricing Program?"

Posted by Rick Hills on June 11, 2024 at 05:22 PM | Permalink | Comments (0)

U. of Alabama Law Seeking Assistant Dean of Public Interest Law/Assistant Professor of Law in Residence

My lovely law school, the University of Alabama School of Law, is seeking an Assistant Dean of Public Interest Law, who also will be Assistant Professor of Law in Residence. From the job search portal, a brief description: "The Assistant Dean will manage the organization, planning, and operations of the Public Interest Institute of the Law School. The Assistant Dean will also teach Public Interest Lawyering and other related courses."

I encourage folks to apply or to spread the news to others who might be interested. For what it's worth, whoever is fortunate to get the job will find that we have a substantial population of law students who are deeply interested in and committed to public interest law and our public interest program. The Law School offers a Public Interest Certificate to students who have demonstrated their commitment to public interest law through hard work in clinics, courses, and community service, and every year the number of students graduating with a public interest certificate grows. You'll also find that our relatively low tuition makes the school attractive to those students precisely because upon graduation, they are much freer to take up a job in or around public interest work. In short, you'll have the pleasure of working with a very serious, enthusiastic group at a law school with a deep student and institutional commitment to public interest work.  

There's a job portal with a longer description of the job and how to apply. Here it is: https://careers.ua.edu/jobs/assistant-dean-of-public-interest-law-and-assistant-professor-of-law-in-residence-523889-tuscaloosa-alabama-united-states. If you have any serious questions about the school or about living here, feel free to email me.  

Posted by Paul Horwitz on June 11, 2024 at 12:30 PM in Paul Horwitz | Permalink | Comments (0)

Monday, June 10, 2024

Alito, Recusal, and Court Expansion

My new essay at The Hill explains why Supreme Court expansion is the only way to fix the justices’ broken recusal practice, building on Justice Alito's upside-down flag display and his explanation of non-recusal. Here is the gist:

The Supreme Court is broken. More justices can fix it.

by Steven Lubet, opinion contributor - 06/10/24 11:30 AM ET

Alito declared, no reasonable person would doubt his impartiality, unless “motivated by political or ideological considerations or a desire to affect the outcome of Supreme Court cases.”

But Alito himself evidently realized that the flag created an appearance of impropriety. Otherwise, why persist in asking his wife to take it down over a period of days?

But no matter. Under Supreme Court practice, Alito himself served as the subject, key witness and exclusive judge of his own impartiality, secure from all further inquiry or review.

There is not much reason to expect the current justices to reform their solipsistic recusal practice, which they jointly reaffirmed just last year.

There are sincere arguments for and against court expansion, which I will not repeat here. 

One nonpartisan benefit, however, is that adding four justices in a relatively short time might enable the newcomers, with no commitment to the recusal status quo, to initiate a review of Supreme Court disqualification practices.

Perhaps that is too much to hope for. But Alito has demonstrated that the Supreme Court’s recusal process is broken beyond repair, and it may take a radical personnel change to address it.

You can read the full essay at The Hill.

Posted by Steve Lubet on June 10, 2024 at 06:25 PM | Permalink | Comments (0)

On Judicial Ethics and "corruption:" Celebs, Authors, and Medicis

In a pair of posts at the VC, Josh Blackman raises some valuable questions about modern judicial ethics. I think of them as follows: 1) Are books and book contracts for Supreme Court justices unethical? 1a) Are they corrupt? 2) Are gifts to justices unethical? 2a) Are they corrupt? 3) Are standard-issue versions of the examples of (1) and (2) no different from, or even worse than, a 26-year trail of lavishly generous patronage from real or ostensible "friends," from a legal-ethical or general-ethical perspective?  

As you can see, I tend to think of this general topic in terms of two separate categories: what is unethical in a formal legal-professional sense, and what is dishonorable or corrupt. I mean "corrupt" in the small-c sense not of acting for gain, but of moral debasement, degradation, or decline. I think it's a mistake for lawyers to treat every moral and ethical issue as a legal one, and for interest groups to publicize every act of alleged corruption as if it necessarily has some legal consequence--and, conversely, to call it a "nothing-burger" if it doesn't. The question whether a judge should recuse is relatively uninteresting to me, and the "scandal"-based arguments for recusal or punishment are often unpersuasive and, from a systemic perspective, unwise or ill-thought-out. The question whether office-holders or people with power have lost what George Washington called "a proper Sense of Honor," on the other hand, I find both interesting and crucial. that sort of quotidian corruption is, after all, the ordinary state of affairs in politics and political advocacy, and the effects of everyday small-c corruption are far more pervasive, routine, and damaging than legally unethical or criminal behavior. Corruption in this sense is also more interesting because it raises harder questions about how to participate in politics, how to live and behave in a corrupt world, what should and shouldn't be taken for granted, when and whether to respond in kind, what the going price of Wales is, and so on.

Talking about corruption in the small-c sense is admittedly harder to pin down, harder to address, and less likely to result in answers to the question what to do, although it is more conducive to asking the question "How shall I live?" It is also, perhaps, sometimes harder to face. Partisans, inside and outside of electoral politics and within both the for-profit and nonprofit sectors, are generally already soaking in it. If you already get your funding from Arabella Advisors or Leonard Leo and the Marble Freedom Trust or David Brock and his sponsors and vehicles, you are already steeped in small-c, often within-the-rules corruption. It's perhaps understandable that advocacy groups, which draw their water from the same well, would thus focus on what is actionably wrong rather than what is permitted but degrading. The greatest risk of such corruption is not so much that you will change your views or alter your life, but that you won't change a thing--just accept and entrench a dishonorable and dissatisfactory way of life, politics, and public and private morality. But this kind of corruption is still worth our attention--still worth, as it were, the continual effort to make it unfamiliar--even where it falls short of some code violation. 

From that perspective, I doubt that books or book advances present an ethical issue. Morally, perhaps the call is a little closer, given the size of book advances and, perhaps more importantly and interestingly, the niche nature of markets and the degree to which, in a polarized society, some presses (and judicial authors) are going to be thinking more about how a book should be tailored to one side of the usual divide or the other rather than seeking a general audience. My sense of the question is perhaps affected by my view that some judges--Posner, Scalia, Friendly, and others--have published books whose absence would be a loss, and so one doesn't want to disincentivize their creation. The Code of Judicial Conduct agrees. The reason I see a moral flipside is that the books most likely to earn a substantial advance are not the deep dives, but books that simply mouth platitudes or memoirs. Despite the fact that some judges obviously have interesting stories to tell, the memoirs that get larger advances generally trade off of the judge's status as a celebrity or as an idol to the right or left. Others may be keener on such projects insofar as they bridge the gap with the general public. But it is easy for such books to be not a general bridge-building effort but more of a targeted liberal or conservative project. Is that really a worthy supplement to an already-sufficient income?

On gifts, my loose read of the general approach is that we take a liberal view of gifts that are either truly personal, fundamentally trivial, or commensurate with the circumstances--both the occasion and the relationship--while requiring reporting in other circumstances to allow parties the opportunity to judge for themselves whether and when they might raise questions about the judge's impartiality in particular matters. Most of the time, that is sufficient. But a factor perhaps less accounted for is the celebrity status of a Supreme Court justice. That status can contribute to a small-c corruption, in which the justice receives gifts because of who he or she is as a general public figure, or as a prominent figure in the political divide. The gift may be of trivial value to the giver; but it can still tempt the judge to enjoy that celebrity status too much, or to become too much accustomed to access to special velvet-rope privileges handed to them because of the office they occupy. Judges are not special; judicial office is special. When those gifts accrue to the person and not the office, an air of entitlement or unearned privilege can develop. 

In that sense, one might justly be uneasy about things like Justice Jackson's gift of precious and expensive Beyonce tickets, the subject of Josh's second post. I'm not quite sure how to read that post, because some of it may be deliberately parodic. Of course no sensible person treats a quip based on song titles as actually intended to sell Beyonce records, or thinks Beyonce was seeking to curry influence with Justice Jackson; I therefore assume that Josh's comments on that score were intended to be humorous. But that doesn't make such gifts unproblematic. The problem with them, as I've suggested, is not that they involve a quid pro quo or something of the sort, but that there is something unseemly about even duly-reported generosity of this sort when it permits judges or justice to take for granted a celebrity or elite lifestyle that would otherwise be unavailable to them. It's the kind of generosity one enjoys by virtue of being a celebrity, not a judge, and a judge should avoid that celebrity status even if it means rejecting the fruits. (Even though these are legal events, I feel the same way about justices speaking at fancy ACS or FedSoc events--not that donning evening wear to listen to a justice make light jokes over the dessert course can hold appeal to anyone.) If you wouldn't get in to a concert or be able to afford the tickets otherwise, you shouldn't do so because you've become famous or notorious or adored by virtue of the robes you wear or the publicity your confirmation generated. 

Does that make such a gift as bad or worse than a 26-year record of lavish gifts and quasi-loans extending to motor homes, Lifestyles of the Rich and Famous junkets, tuition, and antique Bibles, real estate purchases, and the lavishing of lavish similar attentions on the justice's spouse? Well, of course not. Others may argue about their legality or consequences for recusal in individual cases. I'm less interested in the legal question than in its corruption and corrupting nature, in the small-c sense. I don't know whether, as Josh writes, "no one doubts that [Justice Thomas] and Harlan Crow are genuine friends." I'm also not sure why he is firm about a friendship that developed after Thomas attained his lofty status, while doubting that Justice Jackson could be "genuine friends" with Oprah or Beyonce. Isn't the question in both cases whether the relationship, even if genuine, was a product of Jackson (or Thomas) being a famous, and perhaps also a politically sympatico, judge? If Oprah wanted to meet Jackson because of her status or politics, hit it off with her, and then chose to spend the rest of her life lavishing gifts on her, giving Jackson a lifestyle she otherwise couldn't hope for, wouldn't accepting that generosity be corrupt even if they had developed a "genuine" relationship? If a judge or justice wants to get rich and enjoy the lifestyle of a rich person, isn't the answer to quit the bench and try his or her luck as a capitalist? And if the alternative is to enjoy the office and status of a judge while merely subsisting as a member of the ten percent, is that really a hardship or sacrifice?

At the moment, all one can say of Justice Jackson is that she received concert tickets--tickets she ought to have turned down, in my view--and duly and promptly reported them, without unfortunate bouts of forgetfulness, obfuscation, or amendment. By contrast, Justice Thomas seems to have treated the later-acquired friendship of a politically sympathetic plutocrat as a pleasant opportunity to live a part-time plutocratic life himself. I imagine he could have forced himself to enjoy a deep "kinship and connection" with Harlan Crow that did not involve the Bohemian grove, jaunts to Bali and other luxury outings, Frederick Douglass's Bible, and so on.

I would suggest that the legalistic frame leads us to focus on the wrong things--whether a real friendship exists, whether any votes will change, even how such a relationship will be perceived. A look further back in history suggests the more accurate way to think about this relationship. Whether a friendship exists or not, this is a three-decade relationship of patronage. Justice Thomas has allowed his friend or friends to serve, Medici-like, as a patron or patrons, enabling him to live in the lifestyle that he may mistakenly think a Supreme Court justice, or just he in particular, should receive as a matter of dessert. (This was Justice Fortas's malady as well.) But this isn't quattrocento Florence, and I can't help but see that patronage relationship as fundamentally unseemly and corrupt even if they also enjoy a true and deep friendship. It's as simple as the old British phrase: It just isn't done. A justice deserves no lifestyle in particular, other than the one his or her generous salary will afford, and should retain the good plain common sense to know it. To allow oneself to become accustomed to live otherwise is surely corrupt in the small-c sense.   

Posted by Paul Horwitz on June 10, 2024 at 05:15 PM in Paul Horwitz | Permalink | Comments (0)

Saturday, June 08, 2024

Saturday Music Post - Before the Next Teardrop Falls

"Before the Next Teardrop Falls" was written by Vivian Keith and Ben Peters in 1967 and was recorded a couple of dozen times by various artists over the next six or seven years. It charted briefly twice, without much notice. Then along came Baldemar Garza Huerta, better known as Freddy Fender, in 1975. Fender had been performing under various names and nicknames -- including El Bebop Kid and Eddie con los Shades -- since the late '50s, with some success, including a hit with "Wasted Days and Wasted Nights," but he'd spent three years in a Louisiana prison on drug charges, leaving his career in doubt. (He was pardoned by Gov. Jimmie Davis, who was also a musician most famous for the first recording of "You Are My Sunshine" in 1940.)

It proved to be one of the great intersections of artist, song, and timing. Fender's release reached number one on the country chart, and then number one on Billboard's Hot 100. His recording included a verse in Spanish, and he later recorded an entire cut in Spanish.

The clips are at The Faculty Lounge.

Posted by Steve Lubet on June 8, 2024 at 06:04 AM | Permalink | Comments (0)

Friday, June 07, 2024

The Missing Ingredient

I would suggest, in response to Gerard's post below, that if we ask why those actions succeeded with Nixon and failed with Trump, the missing ingredient is: an Establishment. A good, old-fashioned Establishment, a dominant elite that is enmeshed, to quote Henry Fairlie, in both "the centres of official power" and "the whole matrix of official and social relations within which power is exercised." It mattered that the Post, a well-connected newspaper in a well-connected city, opened the door to Watergate reporting and that the Times and other mainline papers and TV networks (remember them?) quickly followed suit. They had influence in large measure because those institutions were part of or important to the Establishment and taken seriously as such. It mattered when someone like Walter Cronkite spoke to a huge chunk of the nation at the same time. It mattered, too, that the other figures and institutions he mentions were part of that Establishment. Although in our popular histories and memories of the event we sometimes dramatize folks like Woodward and Bernstein and the young lawyers working for congressional committees as young rebels or outsiders, they were for the most part consummately inside, or worked for institutions that were taken seriously as Establishment organs: they were inside the barricades, not outside--and stayed there, sometimes pursuing power and sometimes wealth, for decades. It certainly mattered that Mark Felt was a member of the Establishment. It probably even mattered, despite his inexcusable conduct, that Nixon was a member of the Establishment. 

At best, we have two establishments now, but I doubt even that is an accurate description. In any event, once there are multiple establishments, and multiple avenues to success and notoriety outside any establishment, their power to include or exclude or enforce norms is greatly weakened if not wholly evaporated. Both Donald Trump and President Biden, in their ongoing willingness and ability to ignore, bypass, or freeze out the legacy papers, demonstrate that they no longer have the power they once did, however seriously some of their staff may take themselves. Nor does anyone take select committees or federal district court judges seriously anymore--and for good reason, often enough.

There are certainly still elites. I'm fond of observing and writing about them--their dreams, projects, and illusions, their games and their self-image, and their never-ending struggle with cognitive dissonance. And there are certainly still elite institutions; if Toward Nakba as a Legal Concept had been published and de-published by the Podunk Law Review, we would not have spilled so much ink about it. But the Establishment itself is now, for the most part, like Gertrude Stein's Oakland: there is no longer any there there. I would add that it's crucially important that Establishment mingling, in circumstances in which things can be hashed out by all hands on what passed in the Establishment for all sides, is neither possible nor especially welcome. 

An "Establishment" is also exclusionary, cozy and clubby, self-selecting and self-dealing, and so on. There are lots of reasons to oppose or question it and its structure. I certainly have, especially when it comes to what I think of as the Canadian mandarinate but also here. It's more than a little ridiculous that anyone ever treated any single figure like Cronkite as "the most trusted man in the nation." But the value of reposing trust, and having something in which to repose it, is not so absurd. Back when people thought the Internet was a good thing, they (I include myself) would talk, sometimes rhapsodically, about the democratizing power of moving from a "one-to-many" model of communication to a "many-to-many" model. (It's interesting to look back and think about how much that particular vintage of Internet still revolved around a relatively small number of both traditional and new speech institutions that were effectively Establishment publications. That was, in retrospect, really an era of "more-than-one to many" communication. It's long dead. Something like The Atlantic [est. 1857] exists largely vestigially, can be read or ignored quite safely and easily, and farms engagement like everyone else.) But a one-to-many model, and the social structure that undergirds it, has its benefits too, and any change in governing models has its costs.

Absent an Establishment, I am unsurprised that the Watergate model is ineffective. How can you be cast out of, or by, a social and political power elite that doesn't exist anymore? And I'm rather doubtful, for the same reasons, that the prosecution model will be effective either.      

Posted by Paul Horwitz on June 7, 2024 at 03:31 PM in Paul Horwitz | Permalink | Comments (0)

The Repudiation of Watergate

One way of thinking about the Trump era in a more panoramic way is that we are witnessing the repudiation of the Watergate precedents. When people think about how institutions responded to Watergate, they probably come up with the following list: (1) intense press scrutiny from the likes of Woodward & Bernstein; (2) intense scrutiny from a District Court (Judge John Sirica); (3) a select congressional committee; (4) a special prosecutor; (5) an impeachment inquiry; and (6) Supreme Court action. The one missing tool was a criminal trial of Richard Nixon, due to President Ford's pardon.

To respond to President Trump's misconduct, all six options listed above were pursued. Up to now, though, they have all failed or, at least, cannot claim success. The only one that might is the criminal conviction of Trump (pending appeal). Thus, the takeaway might be that this should be the go-to choice in the future because it's the only effective remedy. I hope that's not the case, but we are on that path.

Posted by Gerard Magliocca on June 7, 2024 at 01:03 PM | Permalink | Comments (0)