Law

Seth Barrett Tillman: My Post on CONLAWPROF: On Elected Judges and Elected Prosecutors

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It strikes me that the complaint against judicial elections (as voiced on this listserv) is rooted in the absence of life tenure — not elections per se. You could have elections filling judicial vacancies — but with the candidates’ receiving life tenure. And you could have appointments by political authorities to fixed and limited judicial terms — with the possibility of reappointment. The threat to the rule of law (such as it is), lies with the prospective candidate for reelection/reappointment to judicial office biasing his/her decision for self-interested reasons. But that conflict of interest will appear whenever you have terms of limited duration with the possibility of reelection/reappointment. It is not elections per se that create the conflict.

This is an excellent point.

Read Seth’s post in full.

Seth Barrett Tillman: Who Was Right About the Emoluments Clauses? Judge Messitte or President Washington?

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Josh Blackman & Seth Barrett Tillman at The Volokh Conspiracy:

For now, it is enough that we point out that the District of Maryland’s five-page rebuke of our brief rests on plain historical error. Moreover, that error was enabled by errors in the Plaintiffs’ briefs. On appeal, the burden remains on the Plaintiffs to show that the District of Maryland, and not President Washington, is the more faithful arbiter of the Emoluments Clauses.

Worth reading.

Seth Barrett Tillman: My Post on CONLAWPROF: my response to a discussion about removing Trump from office

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If your dispute with Trump and your call for his removal are based on policy (and his language about policy), rather than about discrete factual predicates amounting to legal violations, then you should eschew the language of the criminal law and push forward with debates (in this forum and elsewhere) about the prospective dangers you think Trump is creating or the harms he has already caused. But as I said, the country survived Johnson. To the extent that the argument against Trump is based on his saying stuff you think outrageous, I think the country will survive his talking big. I would also add that Trump has done little (as I see it) which substantially departs from his campaign statements—so a removal based on political disagreement about the expected consequences of policy is not going to be one with a strong democratic justification.
 
Technical point: It may be that deporting foreigners is not a criminal punishment, but exiling/banishing/deporting Americans who are in the country legally would seem to me to amount to a violation of a 14th Amendment liberty interest. This brings up an important cultural divide in America today (and not just in America, but across the Western world). Many of Trump’s supporters see the elites as being indifferent between their fellow citizens and foreigners. I ask you not to prove them correct.

Read the whole thing.

I would take it a step further.

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The conclusion of a Glenn Reynolds USA Today column about pro-governing-class selection bias in US Supreme Court nominations:

To counteract this, we might want to bring a bit more diversity to the court. I’m not recommending that we eliminate the informal requirement that judges have law degrees (though non-lawyer judges were common in colonial times, and some countries still use them). But maybe we should look outside the Ivy League and the federal appellate courts. A Supreme Court justice who served on a state court — especially one who had to run for election — would probably have a much broader view of America than a thoroughbred who went from the Ivy League to an appellate clerkship to a fancy law firm.

I would expand on this thought to suggest US presidents give preference to candidates who have run small businesses, have had run-ins with bureaucratic authorities and/or been arrested.

Lex adds:

Agreed.

If Trump gets a second term, I’d like to see Mike Lee on the Supreme Court.

I like Glenn Reynolds’s idea: 59 Justices. Nine appointed by the President, and one appointed from each state by the governor. Bloody brilliant.