Constitutional government is like playground basketball. If you care more about winning this round than about respecting your opponent in the spirit of the game, pretty soon there won't be a game at all.
Those of us whose social privileges make us not the normal targets of that garbage should practice actively remembering, day by day, that many of our colleagues face that gendered hostility all the time. And think of things we can do about that. (13/14)
The point here, of course, is that the sick stuff was *unusual* in *my* notifications. But it was just a window into what abuse looks like on a regular basis for smart/expert/assertive women who speak up in public. (12/14)
There’s actually an important upside when protestors in Michigan decide to fly Confederate flags.
It’s clarifying. We know who they are and what they’re for.
That kind of invective showed up when I saluted a woman who is a super-smart powerhouse of a professor, who does not apologize for who she is and what she knows, on the day she explained why the man who bragged about grabbing women by the pussy should be impeached. (11/14)
I understand that Karlan often has a confrontational style. She’s wasn’t trying to make nice yesterday. But it’s hard to understand this flood of nasty replies as anything other than misogynistic. (8/14)
…many women who are experts in their fields and who articulate unconventional ideas on Twitter—especially if they use humor/sarcasm or other confident/assertive/non-timid tones—are regularly insulted and otherwise verbally abused by other Twitter users. (2/14)
Yesterday, I tweeted a compliment of Pam Karlan. She deserved it, and I stand by it. Agree with her or not, like her style or not, Karlan is one of the smartest constitutional lawyers alive.
I’m writing this thread because of what happened next. (4/14)
The U.S. Senate has sat for 230 years.
Unless I’m missing something, tonight Val Demings became the third African-American woman to speak in one of its sessions. Ever.
Also uninformed. But ignorance alone, without misogyny, doesn’t give rise to the hostility and the specific forms of invective used in these replies. (9/14)
The replies attacking her were personal. About her appearance, her personality, her (real or imagined) personal life and sexuality. They used words that are paradigmatic terms of abuse toward women. There were pictures and GIFs. (6/14)
After I tweeted my positive statement about Karlan, my notifications filled up with ugly replies. Lots of them. Some attacking me for speaking well of Karlan, but mostly just attacking Karlan. In ugly and non-substantive ways. (5/14)
There were also replies asserting (just baldly asserting) that Karlan is stupid or ignorant or an incompetent professor. Which I assure you she isn’t. (7/14)
Trash like that doesn’t usually come into my notifications in any quantity. There are people who don’t like my ideas, and sometimes people on Twitter assert that I know nothing about law. But even nasty repliers don’t usually react to me like *that.* (10/14)
I’m a middle-aged white man. Sometimes I articulate unconventional ideas, and my tone is often assertive, and sometimes I get attacked in ways that are personal and inappropriate. But only sometimes. Most of the pushback I get is relatively civil, even on Twitter. (3/14)
Any Michigander who holds or aspires to public leadership and who purports to value the rule of law needs to say, now and publicly, that it's not OK to use armed intimidation against officials acting lawfully, even if you don't like their actions.
I get that it takes courage to bar entry to the VP. But the absence of that courage, in a hundred little ways, is what lets people who don’t respect the rules become a law unto themselves. I wish Mayo had modeled the right behavior. (5/5)
And now, a thread about something that the present post-election craziness says about the Trump impeachment trial, which seems like centuries ago, but which actually occurred this year.
Yes, this year. (1/17)
The decision by
@VP
Pence to refuse to wear a mask at the Mayo Clinic today is all too apt a symbol of some very deep and troubling problems. A short thread: (1/5)
I wish the Mayo Clinic had just said he couldn’t come in. Sorry, Mr. VP: we don’t let unmasked people into the operating theater, and right now we don’t let them in at all. Surely you understand that. (4/5)
Reading
@PeteButtigieg
’s book. He describes the town where I grew up well. But this is the sentence that brought me up short, thinking “This guy is from exactly where I’m from.”
More deeply, he’s exhibiting the attitude that rules don’t apply to him. *Everyone else* needs to wear a mask, but he doesn’t. Why not? No practical reason; just ‘cuz I hold high office. It’s an attitude of aristocracy and out of place in a democratic republic. (3/5)
First: Not wearing a mask sends the message that it’s OK not to wear a mask, even in a place where medical authorities order the wearing of masks. That’s bad. And irresponsible. (2/5)
Not removing him in February at best delayed the pain. Because what’s happening now is at least as damaging as what would have happened then. And everyone should have known it. (17/17)(end)
A president who doesn’t care about the future of his country or his party, and who is willing to commit impeachable offenses to stay in power, is also likely to be willing to break all kinds of rules to stay in office after losing an election. (8/17)
To avoid serious damage, powerful Rs need to signal that they will not choose the President over the constitutional system. And they need to do it decisively, and fast. To tolerate tactics like yesterday’s is to invite disaster. (8/8
Last summer a mob like today's DC mob occupied the Michigan statehouse, encouraged by President Trump. There were no consequences to the participants or to the President.
Nobody gets to be surprised today.
So without for a moment minimizing the importance of the serious disagreements I have with someone like Judge Luttig, I want to recognize and respect the character he shows in standing up for what is right here. (10/11)
(2) An armed mob pushing its way into the state capital is a very bad thing, and every responsible leader in the state (and the national government) should say so. (Why do I need to say this?) (2/2)
In a properly functioning constitutional democracy, "I will pardon you after you give a political speech praising me" would be career-ending.
@ZekeJMiller
So we’re clear in advance: SCOTUS shouldn’t rule against the govt in the census case to save the Court’s legitimacy. It should rule against the govt b/c the govt’s action was flagrantly illegal.
It’s also true that endorsing flagrant illegality is bad for the Court’s legitimacy.
…for someone like Judge Luttig, it’s genuinely costly. It costs you friendships and other long-term relationships you value. It exposes you to excoriation by reference groups from whom you used to draw positive reinforcement. (7/11)
It can be true both (a) that
@realDonaldTrump
has wielded power ineffectually and (b) that it is appropriate for people to denounce his authoritatian rhetoric. Indeed, that it would be inappropriate not to.
@jacklgoldsmith
“When somebody is president of the United States, the authority is total,” says
@realDonaldTrump
. Heads will now explode over his authoritarian rhetoric. But the reality is that Trump, during COVID-19 crisis as before, has wielded presidential power ineffectually.
Impeachment/removal would not have brought 11 weeks of a dangerous/desperate lame-duck President still giving orders. And it’s hard to bring totally baseless claims of voter fraud against an electorate of 100 Senators voting publicly. (15/17)
The idea that we could avoid the pain of impeachment/removal and deal with Trump’s misconduct at the ballot box presumed that if he lost the election, he’d be out of office without the pain/crisis of impeachment/removal. And that was always naïve, as we’re now seeing. (7/17)
For the last several months, Judge Luttig has been working with others to try to get people who voted for Trump and who have identified with the GOP to recognize the reality of the threat and to do what’s necessary to meet it. (4/11)
Our disagreements are still deep and important. But right now we agree about some of the most important issues facing our constitutional democracy. Most of all, we agree about the threat posed by Trump and Trumpism. (3/11)
Nobody should have thought “Trump lies/cheats/breaks things to tamper with the election in advance, but he’ll play by the rules once he’s lost.” He was never going to do that. Removing him by election was always going to involve the pain/damage/distrust we’re seeing now. (10/17)
And if he’d been removed in February, the country would have stood up for the principle that presidents are accountable. (To say nothing of the difference for COVID, among other things.) (16/17)
Because the guy who needs to be impeached for the stuff Trump was impeached for is also the guy who won’t go gracefully after he loses an election. He’ll burn the house down around him. As everyone should have known. (13/17)
Thread:
Yesterday, when I saw news of Rs in Congress “storming” the meeting their (D and R) colleagues were conducting, I didn’t tweet my first thoughts. I wanted to give myself a little time to reflect. It’s the next day now. Know what?
It’s really bad. (1/8)
2 points. (1) I have yet to hear any of Gov Whitmer's critics explain why Michigan law (MCL 30.417(d)) doesn't make perfectly clear that she's exercising lawful authority. People may not like her decisions, but I don't see a basis for the claim that she's acting unlawfully. (1/2)
That was always a terrible argument, for lots of reasons, including first that if a president does something for which he should be removed, he should be removed; and second… (5/17)
It’s relatively costless for someone like me to keep saying that Trump, Trumpism, and the people who enable it are threats to the Republic. I’ve been a Democrat since before I was old enough to vote. But for someone like Judge Luttig… (6/11)
…that it’s especially weak to say that the remedy for tampering with an election should be the election itself. If he is trying to tamper with the election, the election might not be a reliable remedy.
So far, this is old news. Here’s the new point: (6/17)
500+ legal scholars have signed a letter explaining:
@realDonaldTrump
engaged in impeachable conduct. He abused presidential power to pressure a foreign gov into helping him distort an American election.
The evidence is clear.
#ThisIsImpeachable
I’d like to think I’d pass that test of character if I were called on to do so. But I don’t know that I would, because I haven’t been tested. It’s not my party that nominated and supported (and still overwhelmingly supports) Trump. (9/11)
The point is that it was never reasonable to think the country could minimize the pain/damage/distrust attending his exit by showing him the door after an election rather than with an impeachment. (12/17)
So we’ve now heard audio of a former president revealing national security secrets.
But if you have been paying attention for the last eight years, there is nothing important about DJT that you know tonight that you didn’t already know a long time ago.
If he’d been removed in February, there would have have pain/trauma/distrust to get through. But it wouldn’t have been worse than what we’ve got now. Right now millions of Americans are being told the election was stolen. (14/17)
The bigger problem is it’s an attempt *by Members of Congress* to use physical disorder to block the work of Congress. That’s terrifying. And completely inappropriate. Constitutional government can’t function that way. (3/8)
That’s hugely important. It doesn’t make my areas of disagreement with Judge Luttig go away, but it’s hugely important. And what I want to say about it most of all is this: (5/11)
As you’ll remember, Trump was impeached because he used his office to try to undermine the fairness/integrity of the presidential election process, by pushing a foreign government to throw (made-up) mud on Biden. (2/17)
On the heels of AG Barr’s troubling speech to
@FedSoc
, here’s a thread about why I consider myself a member of the Resistance to Trump and Trumpism and what I mean when I say that I am part of this Resistance. (1/17)
The Whitaker appointment might be illegal and it might be unconstitutional.
But it's definitely anti-constitutional. Even if it's meticulously legal, it's a corrupt threat to the rule of law.
The Rs who “stormed” the SCIF know that. They’re signaling, yet again, that the President’s camp is willing to do anything—to violate any norm, to destroy any process or institution—to protect its own interests. (4/8)
Impeachment and removal, they said, breeds mistrust and damage downstream, because pro-Trump Americans will think their guy was unjustly sacked. Elections, they said, are cleaner and more authoritative and provide better resolution. (4/17)
For many years, Judge Luttig to me embodied so much of what I disagreed with in the world of constitutional law. I thought he was so wrong about so many things. I’m confident he’d have thought the same of me. (2/11)
Hutzpah: Telling tens of thousands of people (or more) that they must occupy real space with strangers if they want to vote...
...while refusing to do your own job (which can easily be done at 6-ft distances, or by video conference) because there’s a pandemic on.
#Wisconsin
First, it’s a stunt aimed to distort reality. It’s supposed to make people think that Rs are being kept out of a secret D hearing, when in fact there are more than 40 Rs on the investigating committees (Intelligence, Foreign Affairs, Oversight).
But that’s the least of it. (2/8)
At the time, many people said that the President shouldn’t be impeached & removed for that; that instead, the voters should pass judgment on it in the election that was soon to come. (3/17)
The chairman of the board of
@FedSoc
says that the 6th Amendment, whose text specifies application to criminal proceedings, applies to impeachments. He offers no argument for why.
How do textualists and originalists feel about this?
May I recommend that we start saying "physical distancing" instead of "social distancing"? We actually need a lot of social closeness right now. Just at a physical distance.
As things come to look worse for Trump, he and his supporters will resort to increasingly desperate/destructive tactics. That’s how institutions collapse. (7/8)
I hope everyone understands we have not hit bottom with the post-election shenanigans. Trump will grow increasingly desperate and will act accordingly. The enablers who have enabled him so far will keep enabling him. It’s who they are.
We’ll get there. But buckle up.
But in one sense what happened yesterday was *more* troubling than the Bleeding-Sumner incident: it was organized. And the people who organized it are probably not planning to stop at this point. (6/8)
@FedSoc
To me, this Resistance has two premises. Premise 1: The Trump presidency is morally repugnant and a threat to the rule of law. Premise 2: I am obligated to exert myself, above and beyond my normal level of civic engagement, to meet the threat. (4/17)
The list of amici in today’s GOP House members’ filing in support of Texas may be the greatest roster of constitutional shame since at least the Southern Manifesto. (1/2)
NEWS: A White House staffer and former Texas state rep are among those suing several participants of a "Trump Train" that allegedly harassed a Biden campaign bus in Texas, claiming in a lawsuit filed today that the Trump supporters violated the KKK act
Fellow liberals: I know it’s been a hard week. But two things, please. (1) Don’t blame a Deutsche Bank loan for anything about the Supreme Court, b/c it makes no sense. (2) Don’t embrace court-packing. Maybe it’s a therapeutic fantasy, but it’s a destructive way to think & talk.
Ever wonder what you would do if your government was praising brutal dictators and ripping children away from parents who are among the most powerless and vulnerable people in the country?
You’re doing it now.
This is by far not the most important or troubling thing about the Gorsuch opinion in SFFA. But I’d prefer that senior members of the US Gov’t not use the word “bureaucrats” as a term of invective. Government is necessary, & it has to be staffed, & public service is honorable.
I won’t be teaching on Election Day. As with previous Election Days, I encourage students to spend the day as campaign volunteers/poll workers/etc. It’s vital work, and I know from experience that you learn a ton about democracy (& lawyering) by doing it.
#2020SafeElectionUMich
The big problem w/
@VP
's saying he didn't wear a mask so he could look people in the eye & thank them isn't that he doesn't know how masks work. It's that he thinks (or thinks his audience will think) his wanting to look people in the eye could be an OK reason not to wear a mask.
Two fundamental rules of modern con law: (1) Brown v Board was rightly decided; (2) If you come for Pam Karlan, you are likely to get your butt kicked.
Pamela Karlan *is not* messing around: "Here Mr. Collins I would like to say to you, sir, that I read transcripts of every one of the witnesses who appeared in the live hearings ... I'm insulted by the suggestion that as a law professor I don't care about those facts."
FWIW, even before the present 14/3 controversy, there were people who had written papers arguing that the President is not an officer of the United States.
FWIW, none of those arguments ever made sense to me. The President is an officer of the United States.
So right on schedule, within 24 hours of the naming of a nonwhite nominee, here come the natural-born citizen objections.
Disgust is not too strong a word.