This is a non-story on the @ManhattanDA race on both @TaliFarhadian & @AlvinBraggNYC.
There is zero conflict of interest here.
Being interviewed for a federal judgeship indicates no political favor or grudge. To the contrary, this story shows Tali's merit & independence. 1/
2/ @nytimes reports HLS Prof @NoahRFeldman recommended @TaliFarhadian to the Trump administration on his own initiative - b/c she is extraordinarily qualified to be a judge.
Remarkably enough, Trump staffers actually interviewed her, a progressive Obama DOJ veteran!
3/ Tali had no contacts with Trump world, but was so impressive that they interviewed anyway.
She bravely told the Trump staff things they didn't want to hear, and the interview "became heated during a disagreement over constitutional law."
And her candidacy ended.
Good for her.
4/ It is a problem that Americans have chosen to elect prosecutors, creating lots of appearances of political bias.
Some of those biases are very real & destructive, and I'm writing a book about that.
But this story on Farhadian & Bragg is neither smoke nor fire.
5/ This @nytimes story doesn't provide the context of the history and practice of Senate confirmation of judges. For a federal judgeship in NY, the NY Senators (both Democrats) would have extra pull. See "blue slip" (though it has changed recently, still has a political effect).
6/ I respect these 3 journalists, but frankly, it is disappointing that @Jonesieman, @BenWeiserNYT and @maggieNYT included none of this "blue slip" tradition of Senate politics/bipartisan consultation, nor the possibility of the Dems winning the Senate in 2018.
Very unfair.
7/ For what it's worth, I am hearing agreement from many law professors and legal experts that this @nytimes piece was not a good piece of journalism.
It was simplistic, and tries to imply "scandal" trafficking on a public misperception of lower-court judicial politics.
8/ In full disclosure, I've known Tali for 25 years, we're friends, and I support her candidacy.
I am calling out this @nytimes story as unfair to both her and her main opponent @AlvinBraggNYC.
It's disappointingly thin & shallow journalism, unfair to both candidates.
9/ I want to clarify that my problem is with the misleading framing and deliberate (yes, deliberate) lack of context about judicial politics in the article, and burying the legal issue in the 31st and 32d paragraphs.
10/ The subhed and intro grafs focus on how Trump could exploit these 2 stories as accusations of bias against Bragg and Weinstein. Subbed:
“Both had dealings with President Donald J. Trump’s administration that Mr. Trump could try to use against them."
“Weaponize them”
Ok, how?
11/ The implication is that the attack of bias has some validity, perhaps legal merit... quoting Trump on Mueller as "totally coflicted”
That Bragg will face “accusations of bias.”
The lay reader is obviously worried by now: Will Trump use this to his legal advantage?
Misleading.
13/ These journalists built up anxiety for 30 paragraphs, did not provide appropriate political context about Bragg or Farhadian, and waited until the very end to address the legal problems they had implied...
in their 31st paragraph.
That's irresponsible.
FIN
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Good essay by Gov. Mike DeWine on Ohio’s Vaccine Lottery.
But this gave me pause:
DeWine quoted baseball owner Bill Veeck, “To give one can of beer to a thousand people is not nearly as much fun as to give 1,000 cans of beer to one guy.” 1. NO WAY... nytimes.com/2021/05/26/opi…
2/ First of all, has DeWine or Veeck ever been to a party? The best parties are giving a beer to a 1000 people. The worst party is where one guy has a thousand beers.
(You know what I mean).
And this is really about happiness, diminishing utility, and policy.
3/ DeWine says his team discussed cash payments or prizes for each person who got the shot. But they loved the flashiness of the lottery.
First: Do we really know whether the lottery was more effective than cash or other prizes?
Major story on the Barr DOJ memo blocking the Mueller Report and indictments. 1. Shame on the Biden DOJ today for suing to block its release. 2. Some context: Memo co-author OLC Steve Engel needs to be investigated for his role in Ukraine cover-up. washingtonpost.com/national-secur…
2/ Obama/Biden officials need to do some soul-searching about how they expanded executive power.
They may have had good moral reasons, but they established precedents that Trump abused.
Today's filing to block is a bad sign from the Biden/Garland DOJ
3/ Thread from @ZoeTillman on Biden/Garland DOJ fighting the release of Part II of the memo.
Credit to Zoe for posting the Barr DOJ memo text. Major media should link to such documents when writing stories about them.
cc: @washingtonpost@DevlinBarrett
This week, 2 major scholars re-asserted the unitary executive theory:
Akhil Amar in "The Words That Made Us," p. 357-59; @jacklgoldsmith in After Trump podcast w/ @page88.
2/ The unitary executive theorists that Trump appointed are getting more extreme. Yesterday, Judge Newsom on the 11th Cir. used the theory to assert ahistorical and unprecedented restrictions on Congress, standing, and private rights of action:
3/ @jacklgoldsmith is right about how the Supreme Court has ruled recently, and that limits reform. But this is how their show summary characterize the reformers’ view:
“As a legal and constitutional matter, this ‘independent’ Justice Department is a lot of nonsense.”
Forthcoming in the Stanford Law Review, March 2022:
"Vesting": Text, Context, and Separation-of-Powers Problems
("Vesting" didn't mean what the Roberts Court and the unitary theorists assume it meant).
Abstract attached. papers.ssrn.com/abstract=37932…
2/ The unitary executive theory relies on 3 originalist pillars: Take Care/Faithful Execution Clause, Vesting, and the Decision of 1789.
It's a shell game - if you raise questions about one, unitarians point to another.
But none of the 3 pillars can support the Roberts Court.
3/ The Take Care Pillar? @andrewkent33, Leib, and I showed in 2019 @HarvLRev that the Faithful Execution clauses (Take Care and Oath clauses) are historically duty-imposing rather than power-granting, setting fiduciary-like limits on the president. harvardlawreview.org/2019/06/faithf…
Tomorrow at noon:
I'll be talking with my friend Prof. @CBHessick about my book project "The Rise of the Prosecutor Politicians: A Cause of Mass Incarceration."
Focus on Earl Warren, the Japanese Internment, & the Kennedys, "liberals" tough on crime. 1/
2/ Background:
I put together a database showing that an increasing number of Sens, Govs, State AGs, & Justices rose from prosecutors' offices.
1st turning point: Progressive Era pols after short time as DA.
2d turning point: 1940s for career "tough" DAs shugerblog.com/2017/07/07/the…
3/ The Prison Policy Initiative @PrisonPolicy (@PWpolicy Wendy Sawyer, Alex Clark) used my data to put together this chart showing the pattern of former prosecutors becoming Sen/Gov/AG over the past decade: prisonpolicy.org/blog/2017/07/1…
The way we talk about the Taney Court and Dred Scott and about the Lochner Court as illegitimate ideological hack partisans is how one day we all will talk about Shelby County and the Roberts Court.
Hell, let’s start now.
2/ “In Shelby, Roberts used erroneous data to make claims about rates of voter registration among blacks and whites in 6 southern states...
The data displayed registration gaps had shrunk dramatically.
But some of the numbers in his chart were wrong.” propublica.org/article/suprem…
3/ BASIC RACE STATS ERROR:
“Roberts used numbers that counted Hispanics as white, including many Hispanics who weren’t U.S. citizens and could not register to vote, which had the effect of inaccurately lowering the rate for white registration.”