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Ed Whelan

@EdWhelanEPPC

Feb 14

Awesome letter of resignation by Hagan Scotten, lead prosecutor in the Eric Adams case. Scotten, BTW, is recipient of two Bronze Stars and former law clerk to Chief Justice Roberts and then-D.C. Circuit judge Kavanaugh. 1/

Adams prosecutor Scotten tells Emil Bove that Bove's first reason for motion to dismiss "is so weak as to be transparently pretextual" and second reason is "worse": "No system of ordered liberty can allow the Government to use the carrot of dismissing charges, or the stick of threatening to bring them again, to induce an elected official to support its policy objectives."
And then this: "If no lawyer within earshot of the President is willing to give him that advice, then I expect you will eventually find someone who is enough of a fool, or enough of a coward, to file your motion. But it was never going to be me." 2/

Here's the full letter. static01.nyt.com/newsgraphics/d…

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Ed Whelan

@EdWhelanEPPC

Feb 11

On the Rule of Law and Presidential Defiance of Judicial Orders
Some thoughts of mine on the topic. Link to blog post at end of thread.
1. It's not defiant, or even remarkable, for the federal government to decline to comply with an order while it seeks emergency relief from that order.

2. I do not hold an absolutist position against a president’s sustained refusal to comply with a court order. My position is instead that rule-of-law considerations in our constitutional system generally call for a very strong presumption in favor of executive-branch compliance with federal court orders. Truly extraordinary circumstances might well overcome that presumption.

3. In his first inaugural address, Abraham Lincoln drew a sharp and important distinction between the Supreme Court’s rulings in particular cases and the holdings or reasoning that underlie those rulings. As I understand Lincoln's position, the Rule of Law requires (at least as a general matter) that a ruling bind the parties in the case.
But, Lincoln explained, while the Court’s holding on a constitutional question is “also entitled to very high respect and consideration in all parallel cases by all other departments of the Government,” its holding does not bind the president and Congress in those other cases.
Lincoln’s remarks were of course directed at the Court’s infamous Dred Scott decision. Lincoln’s actions as president were faithful to his words. Rejecting the dual holdings of Dred Scott, Lincoln signed into law bills banning slavery in the District of Columbia and in other federal territories, and he instructed the executive branch to issue passports and patents to free blacks (thus recognizing them as citizens).

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Ed Whelan

@EdWhelanEPPC

Feb 6

New in Confirmation Tales, "William Pryor's Gamble on Recess Appointment Pays Off: Liberal Democrats' abortion politics backfires"
In 2004, George W. Bush rescued William Pryor from filibuster limbo by recess-appointing him to Eleventh Circuit. 1/

Pryor’s judicial career might well have ended when his recess appointment expired at the end of the Senate’s 2005 session. But that’s not at all how things turned out. The extraordinary measures by liberal Democrats to block Bush’s judicial nominees backfired on them. Pryor’s blunt and direct testimony on Roe v. Wade and abortion had the ironic effect of ensuring that he was ultimately confirmed. 2/

Liberal Democrats had aimed to stigmatize as unacceptable any judicial nominee who opposed Roe. But their more moderate colleagues who joined the bipartisan “Gang of 14 Agreement” in May 2005 expressly recognized that it was not disqualifying for an appellate nominee to regard Roe as “the worst abomination in the history of constitutional law” and to decry that it had “led to the slaughter of millions of innocent unborn children.” 3/

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Ed Whelan

@EdWhelanEPPC

Jan 23

New in Confirmation Tales, Teddy Roosevelt Quickly Regrets Appointing Justice Holmes: “I could carve out of a banana a judge with more backbone"
In Roosevelt’s distinctively vivid and outsized way, he provides an enduring lesson in how presidents are disposed to misjudge Supreme Court candidates. 1/

Here's link to new Confirmation Tales post. 2/confirmationtales.com/p/teddy-roosev…

It is essential, Roosevelt argued, that a justice be a “party man, a constructive statesman” in the “higher sense” of those concepts. But Roosevelt's "higher sense" suddenly descends into the question whether Holmes agrees with Roosevelt on every political matter that Roosevelt regards as important. 3/

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Ed Whelan

@EdWhelanEPPC

Jan 22

On first read, President Trump's DEI executive order looks outstanding. Corporations and law firms that have been using DEI to engage in unlawful discrimination had better stop pronto.

It's not just that President Trump is ending unlawful DEI in the federal government. He has also committed that his Administration will enforce non-discrimination laws against private actors (e.g., big business, Big Law) that engage in unlawful discrimination under the banner of DEI.

So, for example, any company that has been following Eric Holder's DEI advice (and overpaying him for the privilege) should quickly hire new counsel (outside Big Law) in order to get straight with the law.

I sure hope that former Attorney General Eric Holder does a quick pivot to explain to all of his clients the massive liability they will face for following his DEI advice. But those clients would be better served by finding other lawyers, probably outside BigLaw.

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Ed Whelan

@EdWhelanEPPC

Jan 17

In a gross act of constitutional defiance, Biden is about to announce that he regards the ERA as having been lawfully ratified.

Never mind that his own Department of Justice, Ruth Bader Ginsburg, and just about everyone else has recognized otherwise.

Biden is citing Virginia's purported ratification of ERA on January 27, 2020--a year before he became president. Why has he waited until now to make his declaration? Because he knows that it's outrageously wrong.

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