I have the pleasure of speaking at the National Press Club on Thursday about the use of the 25th Amendment to remove an American President. In light of my debate on Monday in Dallas on the standard of impeachment with CNN’s Jeff Toobin, there certainly does seem a theme, or at least a focus, in these events after the midterm elections. Organized as a a National Press Club Headliners event featured an impressive array of panelists. The event is entitled “Presidential Jeopardy: Impeachment, Indictment and the 25th Amendment” and will be held on Thursday, November 15, 2018, 10:00-11:00 a.m. at the Bloomberg Room of The National Press Club, 529 14th Street, NW, 13th Floor Continue reading “Turley To Speak On Thursday At National Press Club On Presidential Removal Under The 25th Amendment”
Yesterday, I addressed arguments that the appointment of Matt Whitaker as Acting Attorney General violates federal law. The arguments based on the Federal Vacancies Reform Act, in my view, are unpersuasive. As I noted, however, there remains a different and more fundamental question of whether the Act itself is unconstitutional by allowing an official without Senate confirmation to assume, even temporarily, the office of a “principal officer.” If standing can be found to challenge the Act on that basis, the constitutional arguments are compelling. The constitutional question could be difficult to litigate if a nomination is made in January. However, these constitutional concerns again raise the logic of firing Jeff Sessions immediately after the election as opposed to having him serve until the confirmation of his successor. Nevertheless, this is an issue that is somewhat untested in the courts and challengers would need to establish standing as well as raise a “ripe” issue to argue that Whitaker is lawful under the Act but the Act is unconstitutional under Article II.
As we have discussed over the last couple days, President Donald Trump’s pledge to end birthright citizenship by an executive order has caused a firestorm. Where President Donald Trump is wrong is to claim the ability to end birthright citizenship for undocumented individuals through an executive order. The column below in USA Today explains that Trump would lose under two out of three interpretations of the 14th Amendment. Even if he prevailed on the one possible interpretation, I remain opposed (as I was under President Barack Obama) to unilaterally ordered such major changes through executive orders. Putting aside the means, I have been surprised by the many statements that the meaning of the 14th Amendment as it relates to illegal or undocumented is absolutely unclear and unassailable. In fact, while birthright citizenship is unassailable, the scope of the amendment has long been questioned including both Democratic and Republican members long proposing legislative limits (including former Sen. Harry Reid). An argument can be made for a more limited meaning, even though the plain meaning of the Amendment (and the interpretation that I would tend to favor) would militate toward the broader meaning. Regardless, a clear and final ruling on the 14th Amendment should be welcomed — confirming whether this is a matter for legislative reform or constitutional amendment. Trump should drop the executive order approach so the focus of any judicial review is on the meaning of the 14th amendment and not the means used by the President.
Below is my column in The Hill newspaper on the aftermath of the Kavanaugh confirmation. It is not that there is no winner and loser as much as both Dr. Christine Blasey Ford and Judge Brett Kavanaugh are both winners and losers.
It will take time to decide which party will benefit, but there is clearly Brett bump for Republicans going into the midterms. Yet, the confirmation will also continue to resonate Democratic voters.
In 2010, I (and others) criticized the Democratic leadership (including then Majority Leader Harry Reid and many of the continuing Democratic senators) for their use of the “nuclear option” in curtailing the power of the filibuster. I was equally critical of Republican leaders who previously suggested such a course of action. The Democrats acted with little concern that they might ever be in the minority and need this critical power. They muscled through the Affordable Care Act on a marginal vote that cost various members their seats and passed a highly flawed bill that was plagued by problems of bad drafting and poor planning. Moreover, they secured relatively few confirmations to federal office. The result was the final demise of the filibuster for Supreme Court nominees when the Republicans took power. The result for the Democrats is Justice Brett Kavanaugh, who was confirmed by a 50 to 48 vote. Continue reading “A Bill Comes Due: Reid’s Folly Becomes The Democratic Nightmare”
Justice Elena Kagan had a curious comment on Friday when she publicly lamented the loss of a swing justice on the Court in the departure of Justice Anthony Kennedy. Kagan said that the loss of a middle would make the Court look too predictable and partisan. What is strange is that Kagan is not lamenting her own consistent vote on the left and unwillingness to take a more centrist position.
As I have written previously, I have long been a huge admirer of former Supreme Court Associate Justice John Paul Stevens — not just for being a fellow Cubs fan. However, I was surprised to see that Stevens broke a long-standing uwritten rule of former and current justices not to speak on pending nominations or confirmations. According to The Palm Beach Post, Stevens spoke publicly at an event with a retirement group that Kavanaugh should not be confirmed. The event was described as “closed” so it is not clear that Stevens realized that he would be quoted, but it was obviously a large crowd setting. Stevens said that the anger and language used by Kavanaugh raises serious questions of his temperament. Continue reading “John Paul Stevens: Don’t Confirm Brett Kavanaugh”
I have the honor of addressing the Federal Bar Association (Chicago) at its annual meeting today. It is a particular pleasure to come to Chicago and spend time with my 91 year old mother and siblings. I was able to watch the Blackhawks on television with my mom last night in the first game of the season. Today, I will be speaking on the Supreme Court and the unfolding Kavanaugh nomination. Continue reading “Turley Addresses Federal Bar Association In Chicago”
News reports indicate that Democrats have been speaking with a second woman who is now prepared to accuse Judge Brett Kavanaugh of sexual assault. The accuser is reportedly Deborah Ramirez, 53, and went to Yale at the same time as Kavanaugh. She describes a bizarre scene of Kavanaugh exposing himself at a party in a dorm. Ramirez admits that she was drunk and was previously uncertain if she could implicated Kavanaugh. Continue reading “And Then There Were Two: Another Woman Reportedly Has Come Forward To Accuse Kavanaugh”
Below is my column in The Hill newspaper on the rising pressure on Sen. Susan Collins over her vote on Supreme Court nominee Brett Kavanaugh. There is considerable anger over Collins maintaining that she would never vote for a nominee hostile to Roe v. Wade but refusing to acknowledge the widespread view of Kavanaugh as not only hostile to the reasoning of Roe but appointed by a president who promised only to nominate an anti-Roe justice. As with Neil Gorsuch, Collins appears inclined to vote for Kavanaugh despite her oft-repeated pledge. She insists that she is comfortable after Kavanaugh told her that Roe is “settled” law. However, many have put Collins’ position as falling somewhere between hopeful thinking and willful blindness. As discussed below, the unsettling thing about settled law is that only five votes make anything truly settled on the Court.
Adding to the political dimension are polls showing that the hearings did not produce a bump for confirmation. The latest polling shows 38 percent in favor of Kavanaugh and 39 percent opposed.
I will have the pleasure of participating in the annual Supreme Court review today previewing the upcoming October term. The other panelists will be former Solicitor General Gregory Garre, NAACP Legal Defense and Educational Fund President and Director-Counsel Sherrilyn Ifill. Associate Dean (and Supreme Court litigator) Alan Morrison will moderate the panel.
“Previewing the Supreme Court’s October Term 2018” will be held in the Jacob Burns Moot Court Room, 2000 H St NW, Washington, D.C. at 9:00.m. Continue reading “GW To Host Annual Supreme Court Review”
Below is my column in The Hill newspaper on the Kavanaugh confirmation hearing and the opening statement of Sen. Sheldon Whitehouse attacking the conservatives on the Supreme Court as a virtual ideological cabal. I have always found Whitehouse an articulate and insightful member of the Congress. He was not alone in these attacks. However, I found the attack on the current justices to be unwarranted and distorted. There is a tendency when you disagree with a decision like Hobby Lobby to conclude that the motivations of the justices must therefore be raw politics. The possibility that the justices, including Justice Kennedy, are following a coherent jurisprudential view is dismissed in favor of partisanship.
There is an interesting C-SPAN survey out this week where ninety-one percent of citizens agreed that decisions on the Supreme Court impacted the lives of every American but a majority lack the ability to name a single justice.
For over a year, there has been an ongoing debate over the constitutionality of the appointment of Robert Mueller as Special Counsel. The claim is that Mueller constitutes a “principal officer” who should be nominated by President Trump and confirmed by the Senate. Instead, defenders claim Mueller is an “inferior officer” who does not require such a process. Chief Judge Beryl Howell of the United States District Court for the District of Columbia just gave Mueller an impressive legal victory in an opinion that swept aside this and two other fundamental challenges to the Special Counsel. The decision came as part of the grand jury investigation into Trump confidant Roger Stone.
While there are good-faith arguments that Mueller is no inferior officer given the sweeping nature of his mandate, I have previously expressed great skepticism of the viability of these challenges in light of the prior decision of the Court in Morrison v. Olson, which upheld the constitutionality of the Independent Counsel Act. That Act was allowed by Congress to lapse but the special counsel procedure is, if anything, stronger than the ICA since Mueller is squarely within the Justice Department and subject to its chain of command. This of course could well change with the appointment of Brett Kavanaugh to the Supreme Court. Kavanaugh is a long critic of Morrison. However, his past writings do not clearly establish that he would rule a Special Counsel to be a principal officer. However, this challenge is clearly designed to move up to the Supreme Court where Morrison is considered an endangered precedent, even before the expected addition of Kavanaugh.
I have the honor of giving a keynote address to the Ninth Circuit Judicial Conference in Anaheim, California this morning. The presentation at 10:30 am at the Marriott Anaheim is entitled “The Rise and Fall of Free Speech In the West.” Continue reading “Turley To Address The Ninth Circuit Conference”