A couple days ago I found myself in a brief online (social media) argument with a Court-reformer member of the legal academy insisting that, contrary to my claims, it’s totally false that there are no reformers in the academy. Of course I never said there were no reformers in the academy. What I said, what I think is undeniable, is that the legal academy as a group or a community, and especially its most powerful voices, have been deep in the SCOTUS-reverencing camp. And for more clarity here we’re talking really about the liberal+mainstream academic legal community. It goes without saying that this applies, on a contingent basis certainly, to the conservative legal movement which not only participates in the corruption of the Roberts Court but is in effect its deep root structure, from which the Roberts Court is simply the degenerate, swaggering oak dominating the canopy and blocking out the sun which civic democracy needs to flourish.
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I want to share with you a letter from fellow TPM Reader DA. He makes a point I fully agree with but didn’t make clear enough in yesterday’s post. I fully agree there is such a thing as legal expertise. I’ve made that clear in my actions over a couple decades by paying for some of the very best (and priciest) legal counsel — mostly though not exclusively on 1st Amendment and libel law. It of course goes beyond this. Law, in its largest scope, is a complex set of rules and practices that we as a society have agreed on — sometimes explicitly, usually implicitly — to govern ourselves by and through which we resolve the countless range of disputes — civil and criminal — that arise among us. But it is in the nature of any specialized and professionalized craft to cast a penumbra of authority beyond its actual area of expertise.
Apologies for the extremely lengthy response, but your post today hit upon a perennial hobby horse of mine!
It strikes me that in addition to their own self-image, law professors (and elite lawyers generally) aren’t able to be honest brokers in discussions about court reform because of the enormous quid pro quo and tight knit social ties created by judicial clerkships. The number of students that obtain clerkships plays a big role in law school rankings. Partly as a result of this, having clerked at least for a circuit clerk is now seen as a de facto requirement to be hired as a law professor, barring a PhD in another field (and even then, most still clerk). Professors who clerk help place students with their judges and so on and so forth. There is an *enormous* professional taboo against quitting a clerkship or criticizing the judge that you worked for no matter how bad the experience. It’s viewed as professional suicide, some law schools will effectively ice you out of their career services as you do it, and certain firms will effectively be closed to you for the entirety of your career. Conversely, stay close with your judge and you can expect them to be a letter of rec and introduction-maker for life. All of this adds up to elite law school faculty and elite lawyers having a sizeable material professional and social stake in revering judges, in addition to their psychological investment in feeling learned.
If you’re not a regular listener to our podcast, I hope you’ll listen to the episode that will come out later this afternoon. It was, I think, a particularly good episode, in large part because we had such critical issues to discuss: Callais, the wave of emergency redistrictings across the southern tier of the old Confederacy and what seems to be a sea-change moment on Supreme Court reform among establishment Democrats. I want to expand today on some points about Supreme Court reform, offering some of the historical background for this present moment.
Every current member of the Supreme Court comes out of what we might call the elite academic-judicial nexus, which is to say they’ve been law professors at elite universities and judges in the federal judiciary. I believe this applies to all the current justices. It didn’t used to be this way. It used to be relatively common to have justices who had never served as judges before and had never been law professors. Frequently they were ex-politicians. Famously, William Howard Taft was an ex-president when he became chief justice. Earl Warren was a popular Republican governor of California who had never served as a judge until president Eisenhower nominated him as chief justice. If you go further back, many justices never even went to law school, though this was more a matter of the evolution of legal education. The last non-law school justice was James F. Byrnes. (In earlier history, you generally learned the law as a kind of apprentice and then passed the bar to practice.) There was a brief boomlet of chatter when Bill Clinton was elected that he should or would try to re-inject this “politician on the Court” tradition back into the system. Of course that didn’t happen. The idea has scarcely been entertained since.
In the Southeast right now, we are seeing a no-holds-barred push to obliterate Black electoral power following the decimation of a law for which generations of activists marched and sometimes died. In service of this goal, state officials are going so far as to cancel elections in which voters have already cast ballots.
Yet many news outlets are talking about what’s happening using terms like “political gamesmanship,” noting white Republicans “looking for every advantage.” These terms were already a stretch for describing the mid-decade gerrymandering blitz pre-Callais. They are wildly inapplicable now.
There’s a frog-in-boiling-water quality to it. Its a mode of coverage unmoored from national and global history, which we ignore at our peril.
A bright spot for Democrats, as Republicans’ scramble to gerrymander the old confederacy plows forward: Over in Nebraska, the path is cleared for an independent who supports things like strengthening the social safety net and taking on corporate power.
“We are the most gerrymandered Republican state in the country already,” said South Carolina Sen. Majority Leader Shane Massey (R), announcing his opposition to a new post-Callais redistricting effort which went down to defeat, for now, a short time later. Massey made both political and moral arguments against the move. We shouldn’t underestimate the political motivation. Democrat Joe Cunningham won the 1st district in the wave election of 2018. Nancy Mace defeated him by less than a single percentage point two years later. Her district then had to be significantly fortified with Republican voters to help her keep her seat. Point being, there are a lot of Democratic voters in Jim Clyburn’s 6th district. Spread them out into neighboring districts and you’ve spread the gerrymander so tight it can just snap. And those snaps happen in wave elections.
Some of the most consequential and trust-shattering Supreme Court decisions of late have been ones that could have been predicted decades ago. Certainly that’s the case with the Dobbs decision. Callais doesn’t have quite as long a history, in terms of attempts to overturn the precedent. But certainly it’s been in the cards for at least a decade. Still, it’s some of the smaller decisions that tell us just who and what this corrupt court is. Kate Riga notes one of them here: Conservatives on the Supreme Court have previously invoked the “Purcell principle” to rule that a change couldn’t be made to districts on the “eve” of an election. Now it’s fine to do so in states like Louisiana and Alabama where primary elections are actually already underway and tens of thousands of cast ballots must be invalidated.
The message is simple: there are no rules. Only power. It reminds me of my hand tool woodworking shop. There are a big selection of tools. And it’s just a matter of what helps the GOP and the Court in that particular moment. In a way it’s clarifying. Even helpful.
Independent media can feel like an isolating place. Most of us operate as individuals or in small newsrooms with limited resources, throwing spaghetti at the wall to try to reach new audiences and get our stories in front of people in an ever-more-consolidated media environment.
But we’re in this together, as celebrated historian and writer Heather Cox Richardson reminded us in a generous live interview with TPM’s Kate Riga and Josh Marshall this afternoon.
HCR had Josh and Kate on to talk about what it’s like to report on today’s frenetic politics; the founding and future of TPM; and what independent media will look like in the years to come.
Donald Trump Jr. on Saturday said that his father did speak to fired FBI Director James Comey about his preferred outcome for the investigation into former national security adviser Michael Flynn, though President Donald Trump flatly denied doing so.
“When I hear the Flynn comments, you and I know both know my father for a long time. When he tells you to do something, guess what? There’s no ambiguity in it,” Trump Jr. told Fox News’ Jeanine Pirro. “There’s no ‘Hey, I’m hoping. You and I are friends. Hey, I hope this happens, but you’ve got to do your job.’ That’s what he told Comey.”
On Friday, however, the President flatly denied making those remarks to Comey or pressuring him to drop the investigation into Flynn, implicitly or otherwise.
“You said you hoped the Flynn investigation he could let go,” ABC News’ Jon Karl asked Trump during a press conference.
“I didn’t say that,” Trump interrupted.
“So he lied about that?” Karl asked, referring to Comey.
“Well, I didn’t say that,” Trump said. “And I mean I will you tell you I didn’t say that.”
But, he added, “There would be nothing wrong if I did say it, according to everybody that I’ve read today, but I did not say that.”
Trump Jr. on Saturday claimed that “everything that went on in the Comey testimony was basically ridiculous.”
“For this guy as a politician to then go back and write a memo, ‘oh, I felt,’ he felt so threatened, he felt that — but he didn’t do anything!” Trump Jr. said.
Comey’s blockbuster testimony before the Senate Intelligence Committee on Thursday, however, prompted Trump to offer to do the same.
Off message here for Trump Jr. Says his father did tell Comey he hoped he let the Flynn investigation go. His dad says that's a lie. pic.twitter.com/oOhaFgZY4a
President Donald Trump on Sunday suggested that there are more revelations to come from fired FBI Director James Comey, and questioned their legality.
“I believe the James Comey leaks will be far more prevalent than anyone ever thought possible,” Trump tweeted early Sunday morning. “Totally illegal? Very ‘cowardly!'”
I believe the James Comey leaks will be far more prevalent than anyone ever thought possible. Totally illegal? Very 'cowardly!'
Trump made similar remarks on Friday in another early morning tweet where he labeled Comey a “leaker,” referring to Comey’s decision to share the contents of memos about his conversations with Trump to the press via a friend.
Comey revealed that decision during his testimony on Thursday before the Senate Intelligence Committee, where he painted Trump as a liar and testified that Trump tried to obtain a loyalty pledge from the former FBI head and pushed him to drop an investigation into former national security adviser Michael Flynn.
Trump on Friday said he was “100 percent” willing to match Comey and testify under oath to contradict Comey’s testimony.
A spokesman for Attorney General Jeff Sessions late Thursday pushed back on several aspects of James Comey’s Senate testimony after the former FBI director raised new questions about Sessions’ actions before and after he recused himself from the federal investigation of Russia’s interference in the U.S. election.
Comey’s testimony touched on Sessions at several points. He hinted that the FBI was aware of information that led the bureau to believe Sessions would recuse himself from the Russia probe weeks before he actually did so, and reportedly told senators in a subsequent closed session that Sessions may have met with the Russian ambassador to the U.S. on a third occasion that the attorney general had not disclosed.
The morning after former FBI Director James Comey delivered blockbuster testimony in the Senate in which he painted President Donald Trump as a liar and said that the President pressured him to quash a probe into Michael Flynn, Trump published a tweet declaring “vindication.”
Trump published his tweet shortly after 6 a.m. on Friday morning, during the time frame when he typically shares his thoughts on Twitter.
He referenced “false statements and lies,” appearing to accuse Comey of lying under oath.
Trump also labeled Comey a “leaker,” referencing Comey’s decision to get a friend to share the contents of memos about his conversations with Trump to the press, a revelation the former FBI director shared on Thursday during with the Senate Intelligence Committee.
Despite so many false statements and lies, total and complete vindication…and WOW, Comey is a leaker!
James Comey testified Thursday that he was “stunned” by requests President Donald Trump made to curtail federal investigations related to Russia’s interference in the 2016 election and thought the President’s remarks were of investigative interest— and it seems other senior FBI officials agree.
Though the ousted FBI director did not go as far as accusing Trump of attempting to obstruct justice, Comey’s testimony before the Senate Intelligence Committee offered the clearest indication yet that the President may already be under scrutiny for exactly that.
Part of special counsel Robert Mueller’s job is to “sort that out,” Comey said, dismissing questions from the assembled senators on whether he personally believed Trump obstructed justice. His testimony made the case for why he felt “sure” that Mueller would look into the multiple one-on-one conversations that Trump requested of his then-FBI director.
Comey says Trump asked him to quash the FBI’s investigation into ousted national security adviser Michael Flynn in one Feb. 14 exchange in the Oval Office. In a March 30 phone call, Comey says Trump requested that he lift the “cloud” that the Russia probe was casting over his administration.
“I don’t think it’s for me to say whether the conversation I had with the President was an effort to obstruct,” Comey said of the Feb. 14 meeting. “I took it as a very disturbing thing, very concerning, but that’s a conclusion I’m sure the special counsel will work towards to try and understand what the intention was there, and whether that’s an offense.”
Importantly, Comey noted that Trump asked other senior officials, Attorney General Jeff Sessions and his son-in-law and senior adviser, Jared Kushner, to clear the room before initiating the conversation about the Flynn probe. He noted those officials hesitated before complying.
“Why did he kick everybody out of the Oval Office?” Comey said. “That, to me as an investigator, is a very significant fact.”
Senior FBI officials briefed on that conversation said it was “of investigative interest” to determine the intent of Trump’s statements about Flynn, Comey testified.
Acting FBI Director Andrew McCabe made similar remarks in separate testimony before the committee on Wednesday, telling Sen. Jack Reed (D-RI) that it was “accurate” to assume that Comey’s private conversations with Trump either already are or are “likely to become part of a criminal investigation.”
These loaded comments apparently did not trouble Trump’s legal team or his defenders on Capitol Hill, who insisted that Comey’s testimony actually vindicated the President. They noted that, as Trump previously said, Comey confirmed that he informed Trump on three separate occasions that the President was not the subject of a counterintelligence investigation.
Republican lawmakers, the White House and Trump’s own family members also argued that the President was merely looking out for the interest of Flynn, a longtime adviser, and never explicitly ordered Comey to end any investigation. Those defenders neglected to mention that Comey testified that a senior FBI official cautioned him against telling Trump he was not a part of the federal investigation, because that person believed that “inevitably his behavior, his conduct will fall within the scope.”
Whether Trump requested or ordered that Comey drop the investigation into Flynn is an irrelevant semantic distinction. As Comey testified, Trump asked him to swear “loyalty” and repeatedly brought up the status of his job in their conversations, leaving the former FBI director with the impression that his continued tenure at the bureau was “contingent upon how he felt I conducted myself and whether I demonstrated loyalty.”
He did not comply with Trump’s requests and was fired only four months into Trump’s term. By the President’s own admission, Comey was dismissed because of the “Russia thing.”
“I was fired in some way to change, or the endeavor was to change, the way the Russia investigation was being conducted,” Comey testified. “That is a very big deal.”
The ranking member of the House Intelligence Committee said Thursday that it was “hard to overstate the significance” of fired FBI Director James Comey’s testimony to the Senate Intelligence Committee.
Rep. Adam Schiff (D-CA), whose committee is leading its own investigation into Russian election meddling, wrote in a statement responding to Comey’s testimony that it “constitutes evidence of an intention to interfere or potentially obstruct at least a portion of the Russia investigation, if not more.”
Read Schiff’s full statement below:
“Today, former FBI Director James Comey testified that the President of the United States demanded his loyalty, and directed him to drop a criminal investigation into his former National Security Advisor, Michael Flynn. Director Comey further testified that he believes President Trump ultimately fired him in order to alter the course of the FBI’s Russia investigation. It is difficult to overstate the significance of this testimony.
“These discussions and others took place in one-on-one telephone conversions and meetings initiated by the President, or after the President cleared the room of other people. Director Comey wrote memoranda about his conversations with President Trump because he was worried that the President and his Administration would misrepresent them.
“In my view, this testimony constitutes evidence of an intention to interfere or potentially obstruct at least a portion of the Russia investigation, if not more. It will be important for Congress to obtain evidence to corroborate this testimony — the memoranda, certainly, as well as any tapes, if they exist. We should also interview those around Director Comey at the time of these contacts, to get their contemporaneous impressions of his conversations with the President and to supplement his testimony. Finally, we cannot accept the refusal of Directors Rogers and Coats to answer questions about whether they were asked to intervene with Comey on the Flynn case or any related matter. Similarly, we will need to ask Director Pompeo the same questions. These additional steps are vital to determining the ultimate significance of the President’s actions.”
A routine budget hearing in the Senate next week featuring Attorney General Jeff Sessions took on heightened importance following ousted FBI Director James Comey’s explosive Thursday testimony, which raised questions about what Sessions did both before and after he recused himself from the federal investigation into Russian interference in the 2016 election.
At least one member of the Appropriations Committee, Vice Chair Sen. Patrick Leahy (D-VT), plans to use next week’s budget hearing as an opportunity to grill Sessions about Russia, Comey and President Donald Trump. “I have many important questions for him to answer,” he said in a statement.
During his feverishly-anticipated testimony Thursday before the Senate Intelligence Committee, ousted FBI Director James Comey made a host of major revelations about his handling of President Donald Trump and the federal investigation into Russian interference in the U.S. election in the months before he was abruptly fired in May.
Importantly, Comey disclosed new information about actions he took when he became concerned about the Trump administration’s attempts to establish a “patronage” relationship with him and persuade him to drop the FBI investigation into former national security adviser Mike Flynn. Here’s an overview of some of the most significant moments from the hearing, where Comey revealed exactly what steps he took and why he took them.
Throughout his testimony Thursday, former FBI Director James Comey repeatedly stressed the serious implications of Russia’s attempts to interfere in the 2016 election. He argued that the issue of Russian meddling it not about politics, but about the credibility of the American government.
Toward the beginning of the hearing, Comey said that he has no doubt that Russia attempted to interfere in the 2016 election and that Russian government officials were aware of the meddling.
He later stressed that Russian interference is very real, countering President Donald Trump’s constant dismissals of the Russia probe.
Sen. Martin Heinrich (D-NM) asked Comey about the way Trump has discussed Russia’s election meddling, noting that the President has described Russian interference “as a hoax and as fake news.” In response, Comey stressed that there’s no doubt that the Russian government tried to interfere in the 2016 election and that the conclusion on Russia’s actions is “about as unfake as you can possibly get.”
“There should be no fuzz on this whatsoever. The Russians interfered in our election during the 2016 cycle. They did it with purpose. They did it with sophistication. They did it with overwhelming technical efforts. And it was an active measures campaign driven from the top of the government. There is no fuzz on that,” Comey said.
“It is a high confidence judgment of the entire intelligence community — and the members of this committee have seen the intelligence — it’s not a close call,” he continued. “That happened. That’s about as unfake as you can possibly get and is very, very serious, which is why it’s so refreshing to see a bipartisan focus on that. Because this is about America, not about any particular party.”
Asked if it was a “hostile act by the Russian government,” Comey replied, “Yes.”
Later in his testimony, Comey emphasized that Russia’s attempt to meddle in the election is a threat to the United States and should rise above politics. He delivered a passionate monologue about just how grave a threat Russia’s meddling is to America.
“The reason this is such a big deal is we have this big, messy, wonderful country where we fight with each other all the time but nobody tells us what to think, what to fight about, what to vote for, except other Americans. And that’s wonderful and often painful,” Comey said. “But we’re talking about a foreign government that — using technical intrusion, lots of other methods — tried to shape the way we think, we vote, we act.”
“That is a big deal. And people need to recognize it. It’s not about Republicans or Democrats. They’re coming after America, which I hope we all love equally,” he continued. “They want to undermine our credibility in the face of the world. They think that this great experiment of ours is a threat to them. And so they’re going to try to run it down and dirty it up as much as possible. That’s what this is about. And they will be back, because we remain — as difficult as we can be with each other — we remain that shining city on the hill and they don’t like it.”
The former FBI director also noted that Russia’s attempt to interfere in the 2016 election was part of an ongoing effort targeted at the U.S.
“It’s a long-term practice of theirs. It stepped up a notch in a significant way in ’16. They’ll be back,” he told the Senate Intelligence Committee.
He stressed that the probe into Russian election meddling is also about prevention of future attacks, saying that Russia is not a threat to any one political party, but to the country as a whole.
Comey also addressed some of the details of the the FBI’s investigation into Russian hacking attempts. He said there was a “massive” effort to target government agencies and non-governmental groups, estimating that hundreds, possibly around 1,000, entities were targeted. He also said that the FBI never examined the hardware that was hacked at the Democratic National Committee’s, but that the FBI got the information they needed from a third party.
Sen. John McCain (R-AZ) on Thursday reflected ruefully on his questions to fired FBI Director James Comey during an open session of the Senate Intelligence Committee.
“I get the sense from Twitter that my line of questioning today went over people’s heads,” McCain said in a statement. “Maybe going forward I shouldn’t stay up late watching the Diamondbacks night games.”
McCain said he wanted to find out whether Comey believed “that any of his interactions with the President rise to the level of obstruction of justice.”
“While I missed an opportunity in today’s hearing, I still believe this question is important, and I intend to submit it in writing to Mr. Comey for the record,” he said.
