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Posted by Jonathan Levin on February 16, 2016 28 Comments
Media discussion of Justice Scalia's death and its implications for the public unions case Friedrichs v. California Teachers Association overstates the impact and misses the larger issue. Before Justice Scalia died, it was very likely the Court would hold that it is unconstitutional for state law to require, or even simply allow, "agency shop" agreements compelling non-union members to nevertheless contribute to the union's collective bargaining and related expenses.  Now, the Court will probably affirm the Ninth Circuit's decision upholding agency shop agreements, but without setting precedent. That is obviously a better outcome for the Union, but how long will it last?  The New York Times says "a major threat to public unions has evaporated."  Reuters writes more temperately that "a 4-4 split is a likely outcome, which would hand a win to the unions as that would leave the lower court's ruling in their favor in place."

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Posted by Mike LaChance on February 16, 2016 25 Comments
Back in 2007, Chuck Schumer stated plainly that Democrats should block all U.S. Supreme Court judges nominated by then president George W. Bush. There is no other way to interpret his words: Having been confronted with this irrefutable evidence that Democrats played partisan politics on this very issue, Schumer has responded by claiming that was totally different. Sam Reisman of Mediaite:

Posted by David Gerstman on February 16, 2016 6 Comments
We hear from critics of Israel that Israel needs a two-state solution to be  legitimate. Without a Palestinian state, the argument goes, Israel will rule over millions of resentful Palestinians to whom it will have to deny their basic rights in order to maintain its Jewish nature. Or if Israel enfranchises the Palestinians, they could overwhelm the Jews with their votes and then Israel would cease to be a Jewish state. So the reasoning goes, without a separate Palestinian state, Israel will either cease being Jewish or democratic. But there was already a separation achieved in 1993, with the signing of the Oslo Accords. By the end of 1995 Israel had withdrawn from the major population areas in the West Bank, leaving over 90% of Palestinians under the political control of the Palestinian Authority. In 2005, Israel "disengaged" from Gaza ending the occupation of that territory.

Posted by Fuzzy Slippers on February 16, 2016 5 Comments
As Hillary tries to assure the progressive-socialist base of her party that she is not beholden to corporate or Wall Street money, super PACs supporting her campaign are purposefully wooing these same deep-pocketed donors. The Washington Post reports:
Two powerful organizations within the Democratic establishment announced steps Friday that have the potential to provide substantial financial firepower to presidential contender Hillary Clinton by drawing on the support of wealthy donors and corporate interests. . . . .  Priorities USA Action, the main super PAC supporting Clinton, unleashed a $5 million infusion of spending on her behalf, upending plans to hold its fire until the general election. The move calls attention to growing concern within the party’s leadership that her campaign may be in trouble, and it underscores how crucial several upcoming contests have become in Clinton’s battle with Sanders, a senator from Vermont.

Posted by Fuzzy Slippers on February 16, 2016 127 Comments
Following Trump's eye-brow raising assertions that President Bush was not only responsible for 9/11 but purposefully and intentionally lied about weapons of mass destruction in Iraq, he faced a barrage of criticism from the right. Those on the right argued that he was not only wrong but that he sounded a bit too much like the "Bush lied, people died" sputterings of the fringe left (and of left-leaning "journalists" like Ron Fournier). Indeed, Dick Cheney noted on Monday that Trump's comments make him seem like a "liberal Democrat." The Blaze reports:

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Posted by Leslie Eastman on February 16, 2016 23 Comments
There are moments I always recall with great clarity. Learning about the death of Supreme Court Justice Antonin Scalia will be one of those events. As I have been closely following this news, I have noticed that there is a lot of chatter about the circumstances of his death and the disposition of his body. For example, reading The Drudge Report headlines, I could almost believe this story might soon be featured on Forensic Files. While dialoging with fans of Legal Insurrection's cartoonist, Antonio F. Branco, I noticed many comments I had also read elsewhere. For example, suspicious were shared about the pillow found over his head. Many Americans are expressing worries about the lack of an autopsy that would have confirmed the ruling of "natural death". I wanted to share some perspectives, which I thought might be helpful, based on my own experiences.

Posted by Vijeta Uniyal on February 16, 2016 0 Comments
British Prime Minister David Cameron’s government has proposed new directives to combat anti-Israel boycott in the United Kingdom. Under the proposed regulations, universities, city councils, state-run health services and other government-funded public organisation will be not be allowed to discriminate against products made in Israel. The announcement comes on the heels of a bill introduced in the US congress to combat anti-Israel boycott campaign. “The Combating BDS Act of 2016" wants to give more power to the states to act against businesses that boycot or divest from Israel. According to the reports in British media, Cabinet Office Minister Matthew Hancock is expected to announce the details during his trip to Israel in coming days, citing concerns that such campaigns directed towards Israel fuel antisemitism. The London-based newspaper The Indepedent reports:

Posted by Mike LaChance on February 16, 2016 21 Comments
At a campaign appearance in Nevada yesterday, Hillary Clinton told a story about an old campaign ad that featured a barking dog and then... proceeded to bark like a dog. CNN reported:
Hillary Clinton barks like a dog to slam Republicans Clinton was in the middle of a riff about how, in her view, Republicans say things that are not true, when she remembered a radio ad that she said ran in rural Arkansas while her husband, Bill Clinton, was running for office. "(Republicans) actually, with a straight face, say that the great recession was caused by too much regulation on Wall Street. They actually say that," Clinton said.

Posted by William A. Jacobson on February 15, 2016 17 Comments
Vassar College has been rocked by a series of anti-Israel, anti-Semitic events. Apparently the President of Vassar, Catharine Hill, has received numerous alumni complaints and concerns, because she issued a statement to alumni seeking to allay their concerns. But in the process, the President sought to shift the responsibility by blaming "online publications" and "social media" for the controversy. I don't know if the President included Legal Insurrection in her criticism, but please scroll through our Vassar College Tag so you can see how thoroughly we have documented all our reporting. As background, anti-Israel activism has led to anti-Semitic incidents in 2014 and 2016. Among other things, in 2014 Jewish students who stood up at a campus-wide forumwere mocked and jeered by a raucous crowd of students and faculty, a class was picketed and a professor forced to cross a picket line of ululating students because the course involved a trip to Israel (and the West Bank), Students for Justice in Palestine posted a Nazi cartoon on social media, and pro-Israel displays were vandalized.

Posted by William A. Jacobson on February 15, 2016 2 Comments
Bernie Sanders is Jewish and worked on a kibbutz in Israel in the 1960s. Bernie supports Israel's right to exist, though he's decidedly more into the "balanced" approach compared to other candidates, and has questionable Middle East advisors. Bernie doesn't wear either his Judaism or Zionism on his sleeve, unlike his socialism. To the contrary, when given the perfect opportunity at the last Democratic PBS debate Thursday night, February, 2016. Gwen Ifill asked Bernie if his candidacy would "thwart" history by denying the opportunity for Hillary to become the first female president. It was a perfect opportunity for Bernie to make the point that he also would be a first -- the first Jewish president. But Bernie didn't go there, instead he danced around the issue and said that it would be historic for "someone of my background and views" to be president:

Posted by Kemberlee Kaye on February 15, 2016 20 Comments
Justice Scalia's untimely passing has the entire political arena stressed. Senate Republicans refuse to confirm another justice until the next president is elected, but President Obama insists he will move forward with a nominee. NBC News has the breakdown:
While the president said Saturday was "a time to remember Justice Scalia's legacy," he did announce his intention to nominate a successor. The Republican Senate majority leader and chair of the Senate Judiciary Committee called for the decision to be delayed and left to the next president.

Posted by Fuzzy Slippers on February 15, 2016 9 Comments
As the scandal surrounding her private email server and her apparent mishandling of classified information and FBI suspicion involving her possible public corruption mount, Hillary Clinton bounds joyfully along the Democrat presidential primary trail seemingly without a care in the world. However, not everyone thinks she should be in the presidential race at all given the FBI investigations swirling around her.  Indeed, retired Defense Intelligence Agency chief, Lt. Gen. Michael Flynn, is calling for Hillary to drop out of the presidential race while she is under investigation by the FBI. CNN reports:

Posted by Jonathan Levin on February 15, 2016 4 Comments
Two Supreme Court cases with significant public policy implications previously discussed on Legal Insurrection face very different futures in the wake of Supreme Court Justice Antonin Scalia's death on Saturday. Oral arguments in Fisher v. University of Texas and even more more so Friedrichs v. California Teachers’ Association suggested the Court would decide for the conservative position in both. Now those cases are thrown into turmoil.  The traditional response when a Justice dies after oral arguments but before a written decision has been to either affirm the lower court without setting precedent, or to order.  Either option is at least a temporary setback for conservatives.

Fisher revisited

I previewed the challenge to the University of Texas's affirmative action scheme in Fisher, here, and discussed the oral arguments, here.   In Fisher, the Court is reviewing UT's admission system that considers race as one factor among many for admitting applicants who did not otherwise qualify for admission for having graduated in the top-10 percent of their Texas high school class. As noted in the case preview:

Posted by William A. Jacobson on February 15, 2016 25 Comments
You remember Mizzou Prof. Melissa Click, don't you? She's the world's most famous red-headed social warrior professor who gained internet fame for seeking "some muscle" to keep a student journalist away from a Black Lives Matter protest. https://youtu.be/xRlRAyulN4o?t=6m19s Click claimed this was an aberration and that she's not really the wacko she appears to be on the video. The Columbian Missourian reports on the consequences, or lack thereof:
She acknowledged that ordering Schierbecker away from inside a human wall around the camp and calling for “some muscle” was poor judgment.
But Click, who also had joined student protesters during MU's Homecoming parade, didn't rule out protesting with them again; nor did she rule out filing a lawsuit against the UM System Board of Curators, MU or Schierbecker. She said she would not join students in protest if she felt it would endanger others or disrupt an event.

Posted by William A. Jacobson on February 15, 2016 140 Comments
Last night, for reasons unrelated to this post, I was looking back at the posts from when former Cornell undergrad Kathleen McCaffrey joined (November 2010) and then departed (May 2012) Legal Insurrection. What I immediately noticed is how many of the commenters back then still are commenters now. That sense of continuity and community is one of the things I think sets Legal Insurrection apart. But it wasn't something I was going to write about. Over the years I've struggled with how to handle the comment section. I've had to make repeated appeals to commenters to tone things down, and on occasion have had to ban people when they crossed that "you know it when you see it" line. Those appeals have met with limited success, and it troubles me that in the past couple of months I have received numerous communications from long-term readers -- some who have been with us almost since the beginning -- that the comment section is out of control and they don't like reading it anymore. They are not wrong, and things seem to be getting worse this election season. But, that said, I want our comment section to be vibrant and active.  I think it would be worse if we opened it up to third-party software like Disqus or Facebook. We would lose the sense of community, and would open ourselves up to more drive-by commenters throwing hand grenades into the comment section then moving on.
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