Voters Want A Revolution. Here’s What It Would Take.

Washington Constitutional Convention 1787Below is my Sunday column yesterday in the Washington Post on reforming our political system. We are certainly, as the Chinese curse says, “living in interesting times.” We seem to be in the midst of an American revolution where citizens have arisen in collective disgust of the establishment and the status quo. For years, citizens have objected to a political system that is dysfunctional and detached. The two parties have largely ignored these objections and many have objected to this “doupoly” on power. For many, answer of the two parties to the American people seems to be the same as Henry Ford to customers of the Model T Ford: “you can have any color so long as it is black.” In the United States, you can have any party so long as it is red or blue; Republican or Democrat. Yet, in 2016, the public has responded with a deafening rejection of the establishment. The most obvious is Donald Trump who is the perfect personification of an angry electorate. On the democratic side, a 74-year-old Democratic Socialist has rocked the Democratic party, which overtly rigged a primary system to guarantee the selection of the ultimate establishment figure: Hillary Clinton. However, we seem to go this cathartic exercise every four years rather than seek some changes to break down the insularity of government. There is another way. Instead of just choosing some personality that matches our angry politics, we can really change the system . . . for the better. The Framers gave the public the power to solve our own problems, including the ability to circumvent Congress with a constitutional convention. We have the anger. The question is whether we have the answer.

Below is the column. There are a host of other changes that can be made to improve the system, including many that can be down without a constitutional amendment. However, there is a value in focusing on a few basics that could have a transformative effect on the respective branches of government.

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The Supreme Court Vacancy: Will President Obama Seek A Grand Slam or A Sacrifice Fly Nominee

275px-Sonia_Sotomayor_on_first_day_of_confirmation_hearingsBelow is my column in USA Today on some of the possible nominees to fill the vacancy left with the death of Associate Justice Antonin Scalia. There is a long list of potential nominees and only some are discussed in this column. One of the more interesting prospects is Jane Kelly from the Eighth Circuit who would bring badly needed trial experience to the Court and particularly a rare criminal defense background. As a threshold matter, it is worth noting that the current chaos that we are witnessing over Scalia’s replacement is the result of a long-standing flaw on the Court. As I have argued for many years, our Supreme Court is demonstrably too small and should be expanded by Congress to 19 members – roughly the size of other large nations – to avoid so much power being concentrated in so few hands. If the Court was larger, there would likely be no question that President Obama could get a nominee confirmed because there would be greater turnover on the Court and less at stake with each justice. However, as it stands, even a moderate nominee would move the center of gravity of the Court significantly to the left and would likely produce a host of sweeping changes on gun rights, abortion, affirmative action, and other areas. That is something that the Republicans have pledged to bar, at least until we know who the next president will be.
So our dysfunctionally small Court has left us in another dysfunctional standoff. However, we have some added issues due to the timing of this vacancy as discussed in the column below.

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Federal Magistrate Orders Apple To Help FBI Hack Its Own Phones . . . Apple Refuses

apple-logo200px-us-fbi-sealsvgApple has decided to fight an unprecedented and highly controversial order by U.S. Magistrate Judge Sheri Pym that the company has to assist the government in breaking into one of its encrypted phones. Apple says that it does not have the technology and does not want to be part of such an effort to create a privacy stripping tool for the FBI. Pym seems to believe that she can order companies to become unwilling participants in surveillance research and development. I fail to see her legal basis for such an extraordinary order against a private company.

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Supreme Folly: The Senate Should Consider A Nomination By President Obama And President Obama Should Forego Any Use of a Recess Appointment

ScaliaBelow is my column today in USA Today on the prospect of a recess appointment fight in the filling of the vacancy left on the Court by the passing of Associate Justice Antonin Scalia. The White House could well use any refusal to consider a nominee as a license to use a recess appointment while the Senate could move to stay in session to preempt such a recess appointment. In my view, the Senate should consider any nominee submitted by the President and, for his part, the President should forego any recess appointment if the nomination is not successful. Here is the opinion:

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SCALIA AND HIS LEGACY

scaliaThe Washington Post posted my column on Sunday discussing the passing of Associate Justice Antonin Scalia, a towering figure on the United States Supreme Court and an icon for conservative jurists. It is regrettable that people today often demonize those with whom they disagree. Scalia was personally a warm and engaging person. Indeed, liberal justices Ginsburg, Breyer, and Kagan appeared quite close to Scalia as not just a colleague but a friend. I expect that Scalia has left a lasting legacy that will withstand the test of time, as I discuss below. He was a man of principle. One could certainly disagree with those principles, as I sometimes did. However, he left 30 years of opinions that challenged and often changed doctrines in a wide array of areas. These opinions show a depth and scope that sets them apart in the annals of the Court. Liberals and conservatives alike should be able to recognize the impactful and brilliant life of Nino Scalia. Here is the column: Continue reading

Report: Clinton Emails Contained “Operational” Information and Put Lives At Risk

Hillary_Clinton_Testimony_to_House_Select_Committee_on_BenghaziWe have been closely following the Clinton email scandal and this morning additional information was leaked on the 22 “top secret” emails withheld by the States Department An official is quoted as saying that some of those emails contained “operational intelligence” and jeopardized “sources, methods and lives.” While I agree with the Clinton campaign that these leaks are themselves problematic (both in terms of their timing and their disclosures from an ongoing investigation), I have long maintained that this was a serious scandal and that Clinton’s evolving defense does not track with national security rules or procedures. I consider the decision to use exclusively an unsecure server for “convenience” to be a breathtakingly reckless act for one of the top officials in our government. I am also deeply concerned about the level of “spin” coming from the campaign that is misrepresenting the governing standards and practices in the field. Much of what has been said in defense of Clinton’s use of the email system is knowingly misleading in my view.

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State Department: 22 Emails Will Not Be Released As “Top Secret”

Hillary_Clinton_Testimony_to_House_Select_Committee_on_BenghaziThe email scandal has deepened for former Secretary of State Hillary Clinton today with the announcement that the State Department will not release 22 emails because they contain “top secret” information, the highest level of government classification. The latest batch of emails contains seven email chain with top secret information.  While Clinton once insisted that she never sent or received classified information, it is now official that many of the emails did indeed contain classified information. Clinton later argued that she did not send or receive information “marked” as classified. While many of us in the field noted that such markings are not the only issue for those who handle classified information, the classification level given so many emails will likely increase the criticism of Clinton’s decision to use exclusively her own, unsecure email system over the protected system in place at State. She has insisted that this was done for “convenience” and recently rejected the suggestion that the use of the system showed “an error in judgment.” In the very least, the decision to use a private email system was a horrendously bad decision for a Secretary of State when a secure system was available. It is hardly a compelling argument to advance that you took this reckless step for “convenience.”

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