The Faculty Lounge

Could Justice Thomas Substitute for Justice Roberts in an Impeachment Trial of President Trump?

Over at Balkinization, Josh Blackman and Seth Barrett Tillman have a long post addressing an unlikely problem: “Could Justice Thomas Preside over President Trump’s Impeachment Trial?” The issue would only arise, of course, if Chief Justice Roberts were to be unavailable for some reason – such as death or disability. Blackman and Tillman note that Chief Justices Chase and Rehnquist did in fact die within a few years of presiding over the impeachment trials of Andrew Johnson and Bill Clinton, so there is some reason to discuss the hypothetical of Roberts’s unavailability (despite his evident good health). If no one can sit in for the chief, an impeachment trial could not proceed.

According to Blackman and Tillman, Justice Thomas, as the senior associate justice, could step in for the missing Roberts. It takes them a long time to reach that conclusion, invoking parallels to Constitutional provisions for replacing the Speaker of the House and the President Pro Tempore of the Senate.

In a later post, Gerard Magliocca gets to the same conclusion more quickly, making a structural argument. If the Chief Justice position is empty, Magliocca points out, only the president can nominate a successor. In the absence of replacement, presidents could therefore prevent their own impeachment trials, simply by declining to nominate a new chief. “That can't be right,” he explains. “The President cannot possess the power to halt his own removal through inaction.” Magliocca recognizes that structural arguments are divorced from traditional legal authorities, “But in this case I think that the principle of ‘Nemo iudex in causa sua’ is broad enough to cover a President preventing anyone from being a judge in his case.”

Southern Illinois Law Seeks Visitor for Next Semester - Apply ASAP

This just in:

Southern Illinois University School of Law is looking for a visiting Assistant/Associate Professor to teach during the upcoming spring 2020 semester. We have needs in the areas of intellectual property, bar preparation, legislation & regulation, and health law, as well as other areas depending on the School’s needs and the successful candidate’s expertise. November 22nd is the deadline for priority consideration. The job advertisement with additional information may be found here.  

Tennessee Law Seeks Dean

This just in (and further details here):

The University of Tennessee, Knoxville (UTK) invites applications and nominations for the position of Dean of the College of Law (UT Law), to commence in the summer of 2020. As UT Law’s chief academic and administrative officer, the dean reports to the provost and will work closely with the vice provosts, deans of other academic colleges, and UT Law faculty, staff, students, alumni, and other stakeholders, including members of the Tennessee bench and bar, in setting overall academic and strategic priorities for UT Law, allocating resources to move those priorities forward, and developing a community committed to student success.

The next dean will be an experienced and collaborative leader who will inherit a highly engaged and self-governing faculty and a dedicated staff, a strong student body, a supportive university administration, and a loyal alumni base. With these resources the dean will have the opportunity to expand an already successful fundraising and alumni-engagement program; to strengthen the school’s commitment to diversity, equity, and inclusion; to advance the reputation of the school locally, regionally, and nationally; and to maintain a community that is non-hierarchical, collaborative, and transparent for all its stakeholders.

Candidates should be able to demonstrate relevant experience in leadership positions of academic institutions. Ideal candidates will also have experience in leading, engaging, and inspiring a diverse community that equally values teaching, scholarship, and service. UT Law’s vision also includes expanding its stakeholder base and engagement across the University, with the public, and inside the legal profession. The successful candidate will also have effective relational and consensus-building skills, high emotional intelligence, and energy and enthusiasm.

Further Thoughts on the Bernie Sanders Anti-Semitism Oped

Bernie Sanders’ oped on “How to Fight Anti-Semitism has been republished in the British newspaper The Guardian, with only one minor change from the original version published in Jewish Currents. Re-reading the essay, however, has caused me to re-think some of my own views about the piece (posted here) with, I hope, a little more nuance.

As I initially wrote, Bernie deserves credit for his unequivocal insistence that progressives acknowledge “the enormous achievement of establishing a democratic homeland for the Jewish people after centuries of displacement and persecution.” And even more importantly, he recognizes that “criticism of Israel can cross the line into antisemitism, especially when it denies the right of self-determination to Jews.”

Reading the British version, however, made me think harder about this sentence: “I will always call out antisemitism when I see it.”

But as far as I can tell, Bernie has said exactly nothing about the anti-Semitism currently ripping apart the British Labour Party. This is quite remarkable, given that numerous Jewish and non-Jewish members have recently resigned from the Labour Party, and called on voters to abandon it, because of Jeremy Corbyn’s long history of associating with anti-Semites and tolerating their involvement in the Labour Party.

TF Mafia & the Automobile Exception

Last week’s post considered how just a slice of the investigation into Steven Avery—widely known from the true-crime documentary series, Making a Murderer—makes a compelling tool for teaching students the basics of search warrants. This week, we shift gears to explore the tale of two New York rappers whose stories both setup and explain how the automobile exception works in modern practice.

Keep on the Sunny Side

"Keep on the Sunny Side," written in 1889 by Ada Blenkhorn (lyrics) and Howard Entwisle (music), was recorded by the first iteration of the Carter Family in 1928, and later became Maybelle Carter's theme song. Here is a version by Mother Maybelle and her daughters Helen and Anita:

"Keep on the Sunny Side" has become a country and bluegrass standard.

Scott Brown, Former Senator, To Be Dean of New England Law

New England Law (the school's full official name) has announced that Scott Brown,  former U.S. Senator from Massachusetts and current ambassador to New Zealand and Samoa, will take over as dean and president of the freestanding law school at the end of 2020.  He will replace President John O'Brien who has helmed the school for over 30 years.  The announcement was not universally well received.  

Willamette Law Names Four Dean Finalists

Willamette University has announced the names of the four finalists in its search for a new law school dean.  They are Susan Bisom Rapp (Thomas Jefferson), David Yellen (Marist College, most recently), Brian Gallini (University of Arkansas, Fayetteville)  and Karen Bravo (Indiana University, Indianapolis).  

The Bernie Sanders Oped on "How to Fight Anti-Semitism" [UPDATED]

Bernie Sanders recently posted an oped at the Jewish Currents site explaining his views on “How to Fight Antisemitism.” Jewish Currents was an interesting choice for this article, as it has a much smaller circulation than many other Jewish publications such as Tablet or The Forward. I will comment on that at the bottom of this post [now updated], but first some observations on Bernie’s views.

Credit Where Due:  Unlike many younger Democrats, Bernie recognizes the historic achievements of Israel, stating “it is very important for everyone, but particularly for progressives, to acknowledge the enormous achievement of establishing a democratic homeland for the Jewish people after centuries of displacement and persecution.” He is obviously aware of a shift of opinion on the left that goes beyond criticism of the Netanyahu government and seeks to delegitimize Israel itself.

In this regard, it is even more important when Bernie points out that “some criticism of Israel can cross the line into antisemitism, especially when it denies the right of self-determination to Jews.” We can only hope that every progressive, especially those who advocate academic and other boycotts of Israel, reads these words and takes them seriously. Zionism is the ideological movement for Jewish self-determination, and not the property of any particular Israeli government. The denial of Jewish self-determination – that is, the condemnation of Zionism by non-Jews – is itself anti-Semitic.

No, The House Impeachment Proceeding Is Not Unconstitutional

As I explain today in The American Prospect:

The Conservative Legal Community Is Grasping at Straws to Defend Donald Trump

by Steven Lubet

November 11, 2019

The defense of Donald Trump has taken some strange turns lately, as allies and supporters have constantly had to change their positions—sometimes in a matter of days or hours—in order to justify the president’s shifting moods and explanations. Perhaps the greatest contortion, however, has come from an unexpected source.

Steven Calabresi, the highly respected constitutional law scholar—and my colleague at the Northwestern University Pritzker Law School—recently published an essay claiming that the House of Representatives’ impeachment proceedings are “violating the president’s constitutional rights” to “confront the witnesses against him” in a “speedy and public trial.” To reach this conclusion, Calabresi has to misapply the unambiguous provisions of the Sixth Amendment and completely ignore the equally plain terms of Article I’s definition of the impeachment power.

As a co-founder of the Federalist Society and the current chair of its board of directors, Calabresi ordinarily speaks with great authority on behalf of the conservative legal establishment, which makes this misstep all the more troubling. In the essay, Calabresi argues that “Impeachment is a legal proceeding, and just as criminal defendants have constitutional rights in criminal trials so too does Trump have constitutional rights, which House Democrats are denying him.” He then sets out the basic rights afforded to criminal defendants under the Sixth Amendment, and asserts that these rights have been denied to the president by the House of Representatives.

The opening words of the Sixth Amendment—“In all criminal prosecutions”—make it unmistakable that its provisions do not apply to impeachments, which are clearly noncriminal in nature. Impeachment by the House and conviction by the Senate cannot result in imprisonment, fine, or any other criminal penalty. Rather, the only allowable consequences are removal from office and disqualification from future office-holding.

Steven Avery & Search Warrants

Last week’s post discussed how the initial investigation into Aaron Hernandez presents a compelling opportunity for students to learn the Fourth Amendment’s plain view doctrine. This week, we explore just a slice of the investigation that led to the arrest of Steven Avery—widely known from the true-crime documentary series, Making a Murderer.

In summer 1985, Steven Avery was twenty-two years old and a resident of Manitowoc, Wisconsin. Avery worked at his family’s salvage yard, Avery Salvage, which his family had operated since 1965. On July 29, 1985, a fellow Manitowoc resident named Penny Ann Beernsten was jogging along Lake Michigan when she was brutally attacked and raped. During the investigation that followed, Beernsten described her attacker as a white male, approximately 5′6′′, stocky, with brown eyes and long sandy hair, and dressed in a black leather jacket. Manitowoc County Deputy Sheriff Judy Dvorak overhead Beernsten’s description and commented, “[that] sounds like Steven Avery.”

Avery was ultimately arrested, charged, and convicted for the forcible rape of Penny Beernsten. He was sentenced to serve thirty-two years in prison. After eighteen years of that sentence, DNA testing revealed evidence that both exonerated Avery from the rape charge and implicated a man named Gregory Allen, a suspect in similar rape investigations at the time of Avery’s arrest. Avery was released from prison on September 11, 2003. Thirteen months later, he filed a lawsuit for 36 million dollars in damages as compensation for his wrongful imprisonment.

Noel Ignatiev (1940-2019)

Noel Ignatiev has passed away—among many pieces of work my favorite How the Irish Become White.

The Mona Lisa Twins Cover the Beatles

Mona and Lisa Wagner are twins from Austria.