Reminder: The Federalist Society Does Not Take Positions On Legal Questions.

That rule applies to Steve Calabresi, and Student Chapters.

Critics of the Federalist Society often speak of FedSoc as some sort of collective whole--an autonomous institution that shares monolithic views, and can speak with a single voice. This conception is false. The Federalist Society goes out of its way to not take positions on legal issues. This openness is an essential element for the Federalist Society's existence. Members are free to agree or disagree with each other, privately and publicly. If the Society took an official position--that is, picked sides in a debate--then one member would be right and one member would be wrong. That sort of dogmatism is inimical to the society. And there are many, many positions on which FedSoc members disagree.

Other organizations do take positions. For example, the ACLU will adopt a unified position on campaign finance reform. To reach this unified position, ACLU members will vigorously lobby and argue over precise contours of the issue. Eventually, some members will be alienated with whatever position is reached. And some members may choose to resign in protest. The Federalist Society avoids these difficulties by not taking a position. Members have the space to explore different positions, without violating some party line.

I think critics of the Federalist Society have such a difficult time understanding--or believing--this position, because most other organizations follow the ACLU's model. For these critics, organizations can prescribe what shall be orthodox. And deviating from that orthodoxy--even slightly--is apostasy, and grounds for cancellation. That sort of dynamic does not work for the Federalist Society.

Two recent incidents inspired this post. First, Steve Calabresi wrote an op-ed in the New York Times. He argued that President Trump's "fascist" tweet about postponing the election "is itself grounds for the president's immediate impeachment." Not an order postponing the election. A mere tweet, that the President has already walked back. There is no analysis to explain why a "fascist" tweet is a high crime or misdemeanor. It is simply stated as a conclusion. Maybe "abuse of power"? But the Newspaper of Record published this Op-Ed anyway.

Why? Because a prominent conservative criticized Trump. And not just any prominent conservative. Calabresi's biography line states that he is "a co-founder of the Federalist Society and a professor at Northwestern University's Pritzker School of Law." The casual reader would simply assume that the Federalist Society, as an organization, thinks that the President should be impeached for a tweet. For example, a headline in Forbes blared, "Cofounder Of Conservative Federalist Society Calls For President Trump To Be Impeached."

Calabresi should be proud of his work to establish the Federalist Society. But he must know that listing this fact in his byline creates the false impression that the Federalist Society is taking a position on the President's tweet. To help eliminate this misconception, Calabresi should omit this line from his biography. Being a tenured professor at Northwestern is sufficient to convey authority. There is no need to perpetuate the myth that FedSoc takes a position on this contentious issue.

The second incident concerns law schools. Over the past few months, many law school student organizations have joined statements on racial justice. But Federalist Society student chapters also do not take official positions on any matters. As a result, some chapters are coming under pressure. Campus Reform writes about one such situation at the University of Illinois. The local chapter refused to sign a statement issued by other student organizations.

My general policy is to not sign any statement I do not write--that applies to letters and briefs. When you put your name on something that someone else wrote, you have limited input. You can't request changes. There may be things you agree with, things you disagree with, and other things about which you are not certain. But putting your signature on a document requires you to accept everything, in toto.

I would encourage students to follow my general policy. Individual members should be free to issue whatever statement they wish. But the organization should not feel compelled to agree with demands of other organizations. And law schools, whether public or private, should not punish student organizations for failing to agree with any orthodoxies.

Comments

[Noscitur a sociis]

Just when it seems like Prof. Blackman's posts couldn't get any more insipid, he raises the bar again.

[Leo Marvin]

Right?

[Leo Marvin]

On reflection I withdraw that. I won't pretend I think much of the post, but "insipid" is harsher than I can go along with.

[Kazinski]

You realize that you are reading a blog, not a book or a magazine you paid for, or a site with a paid staff that is actively looking for content that interests readers.

The whole point of a blog is the blogger posts on topics that interest them. I actually found the tidbit interesting on federalist society student groups coming under pressure for not joining other political statements.

[Rev. Arthur L. Kirkland]

Did you understand you were reading a comment?

[Dr. Ed]

Bullbleep.

Prof. Blackman is raising a very good point, particularly regarding student organizations (i.e. student FedSoc chapters). They CAN NOT endorse policy positions (or candidates) because those schisms will destroy the organization. Members will "vote with their feet" and leave -- I've seen this happen repeatedly with other student organizations.

The FedSoc, nationally, needs to support its student chapters by insisting that they NOT adopt any litmus tests.

[Rev. Arthur L. Kirkland]

You figure student organizations CAN NOT endorse policy positions or candidates?

[Dr. Ed]

Yes. It's usually a 60%/40% vote and the 40% of the organization walks away. You don't have to do that too many times before you wind up with just an E-Board and no members.

For this very reason, U-Dem and C-R clubs have a rule that the club endorses *no one* in the primary, and the nominee in the general. And the thing that the Never-Trumpers fail to understand is that a lot of people really didn't like Romney, but observed this rule. And now the Romneyites won't do likewise.

[Stephen Lathrop]

I think critics of the Federalist Society have such a difficult time understanding–or believing–this position, because most other organizations follow the ACLU's model.

Critics of the Federalist Society are not so confused as Blackman supposes. Speaking for myself, I have a difficult time believing Blackman because I can't ignore right-wing tendencies among Federalist-recommended judicial nominees—who seem to share that tendency without exception.

[Liberty Lover]

"right-wing tendencies"
You see the rule of law as right wing?
I see anarchy and chaos as left wing!

[Brett Bellmore]

Well, yes: The left pretty much openly advocates outcome oriented judging, "living constitutionalism". Denies, in fact, that there's actually any other way of judging.

So anybody who proposes that judges not go out of their way to arrive at the left's preferred outcomes is accused of advocating that they go out of their way to avoid the left's preferred outcomes. Because just ruling on the legal merits isn't even an admissible possibility.

[Sarcastr0]

No, the left doesn't do that Brett.

Your second paragraph implies the left is just as accusation happy towards the right as you are towards the left. No, Brett, the right is special on this one.
You don't see us saying Thomas doesn't have convictions. They're just weird ones.

Indeed, given the right's consternation at Roberts and Gorsuch, it's hard to argue that y'all aren't as outcome oriented as the liberals you've conjured are.

[LawTalkingGuy]

The right says for years that textualism is the only legitimate way to divine Congressional intent: everything else is outcome oriented. You get intent from the plain meaning of words as understood at passage. You get the meaning from dictionaries around the time. Grammar matters in statutes because it’s the only thing that you can look at.

Gorsuch goes ahead and does just that, and the right flips out because he reached an outcome they hate.

[Dr. Ed]

"Sex" has meant something specific for generations -- and now it means something else. That's changing the definition.

[LawTalkingGuy]

Gorsuch agrees. He used 1960s dictionaries. But the statute says: “because of sex” which means that it’s a but-for causation test. If the sex of the employee is a but-for causative factor in the employment decision, which it logically must be when dealing with an LGBT person, then it’s covered by Title VII.

[Dr. Ed]

LGBT people were incarcerated in the 1960's.

[LawTalkingGuy]

That’s the part of the social conditions that existed when Congress passed Title VII. We’re supposed to ignore that when we’re doing textualism, remember?

And FWIW. Interracial marriage was also prohibited in states until 1967. And that if “because of sex” doesn’t mean what Gorsuch says, then neither does “because of race” and employers can fire people for being in interracial relationships. But I don’t think any employment lawyer wanted to test that theory after 1964. (If someone has a case I’d be very interested to see it.)

[M L]

The text does not remotely require Gorsuch's tortured interpretation. "But-for" is not in the text.

[LawTalkingGuy]

Because is though. And Congress has never used it to mean exclusively as he explained.

And, again, rejecting his approach to “because of sex” necessarily means Title VII doesn’t prevent an employer from discriminating against employees simply for being in interracial relationships since that would not be “because of race.”

[Dr. Ed]

LTG, "living in sin" was frowned on well into the 1970s, and if an interracial couple couldn't get married, then they were. And please don't tell me that people weren't fired for cohabitation in the 1960's.

A professor told me about a lawyer who almost didn't get her bar card because of it, and that was in the 1970s. (Or maybe the professor made that story up -- who knows....)

[Dr. Ed]

In fact, I vaguely remember a sex discrimination suit on the basis of female teachers being fired for this under "moral turpitude" clauses while the (male) football coach was doing the same thing with impunity.

[LawTalkingGuy]

This is all extra-textual though. Don’t you realize that?

[Sarcastr0]

...I don't think Ed is making the doctrinal connection here.

[NOVA Lawyer]

Extra-textual. The text says what it says. That's the point.

[Sarcastr0]

You're not making a textualist argument, Ed, you're making an intentionalist one.

IOW, you sound like you want a more liberal analysis.

[Rev. Arthur L. Kirkland]

" LGBT people were incarcerated in the 1960’s. "

By people like you, Dr. Ed. It is a substantial part of the reason people like me won the culture war and people like you have been relegated to muttering bitterly and impotently about 'all of this damned progress.'

Bigotry, backwardness, insularity, and superstition have consequences. So do reason, science, education, inclusiveness, and modernity.

[Dr. Ed]

No, I'm merely pointing out that one can logically conclude that Congress did not intend to protect persons who were (then) both (a) defined as mentally ill (DSM-II) and criminals.

It would be like Congress saying you can't discriminate against bank robbers.

And I am citing facts --- without even mentioning if I think they were good or bad things to be, only that they were.

[Sarcastr0]

Gorsuch was not hired to figure out what Congress intended.

[Rev. Arthur L. Kirkland]

Many conservatives appear to believe he was hired to do what they wanted him to do.

[LawTalkingGuy]

Sarc,

Or perhaps more accurately he was hired to use the only true and legitimate way to determine Congressional intent...and to their consternation he did exactly that.

[Sarcastr0]

LTG - your larger point is correct, but I cannot resist a pedantic diversion.

Because your comment depends on which sub-school of textualism you're talking about.

Sometimes it's about divining intent, holding that text is the best way to do so. Other times it's about punishing Congress for bad drafting so they get better(?). Or it's a positive good to follow the text because that's what the system says you follow.

Between my law school courses in jurisprudence and legislative interpretation, things got sillier and more angels-on-a-pinnish than I, in my naive youth, would have hoped.

[LawTalkingGuy]

Sarc,

That’s a great point about punishing Congress for bad drafting. It does feel like that’s what courts do sometimes. And Roberts in King v Burwell couldn’t resist pointing out all the mistakes even as he looked for the larger context. But to be fair, I totally understand the impulse of being frustrated by the drafting choices of legislatures.

[LawTalkingGuy]

No. I think they’re just pointing out that right-wing judges are perfectly capable of being outcome oriented and in fact do it all the time, despite their protestations to the contrary. I mean look at the third go around of the ACA suit. That’s one of the most outcome oriented things I’ve ever seen from judges of any political bent.

[Pacific]

Rao, Rao, Rao.

[Pacific]

Ho, Ho, Ho.

[James Pollock]

"Well, yes: The left pretty much openly advocates outcome oriented judging"

Whereas the right prefers litmus judicial appointment. Does the candidate suggest that abortion is actually a right that people have or that possession of a firearm isn't? Then they can't be nominated or confirmed.

[Dr. Ed]

Stephen Lathrop -- there is a *big* difference between "sharing tendencies" and a prescribed orthodoxy -- and what scares me is that you do not appear to be able to comprehend that.

[James Pollock]

" there is a *big* difference between “sharing tendencies” and a prescribed orthodoxy"

Other than just stating that it exists, and that it is big, can you explain what this difference is?

[BigChiefWahoo]

If you are not explicitly in favor of what the Left favors, you are necessarily against what the Left favors. In their view, anyway. If you do not loudly agree with the self-proclaimed "anti-racists", why, you must be a "racist" yourself. If you are not loudly and explicitly pro-Leftist, you have exposed yourself to be "right-wing", and therefore racist, fascist, etc., etc., etc. Isn't that how it works, Comrade?

[Sarcastr0]

You're not describing left or right, you're describing standard zealotry.

You know 'you're either with us, or you're with the terrorists.'

I agree it's bad, and that the left does have it's fair share, but claiming it's particular to the left is incorrect.

[Kazinski]

That's not exactly true, the left is not a monolith, they have many different positions and degrees of leftism.

But the one principle they do seem to agree about is ”no enemies to the left". Once they get power (as opposed to a temporary electoral foothold), that's when the knives will come out.

[James Pollock]

"If you are not explicitly in favor of what the Left favors, you are necessarily against what the Left favors. In their view, anyway. "

Making broad statements and then imputing them to other people is more descriptive of you than it is of the people you're attacking. In my view, anyway.

[Kazinski]

Having a difficult time believing Blackman about what? The Federalist Society having positions on issues?

Well then I'm all ears, it shouldn't be a problem for you to dig up one of those position papers or Federalist Society press releases that endorse a position.

[giuliajones]

The word along these lines signifies government in which legislative issues is an open undertaking and not the individual right of a solitary ruler. Assignment Services There have been highborn republics and oligarchic republics, be that as it may, as applied to the United States government, this term for the most part suggests an equitable republic, one in which chose delegates complete the elements of government.

[Union of Concerned Socks]

Kudos, spammer; this one wasn't immediately obvious.

[Jeff Walden]

Calabresi can put it in his article blurbs because it's true. If people misconstrue that as representing an official FedSoc position, that's their mistake -- just as it would be if a federal judge wrote an article and mentioned their position in their blurb, with respect to the federal judiciary or that circuit or district. And it's useful to mention it precisely to correct any misimpression that FedSoc is monolithic, and to indicate that it is possible for FedSoc members (even longtime ones!) to condemn the president.

I don't like people misunderstanding how FedSoc works in this fashion. But it is abundantly and repeatedly stated that FedSoc doesn't take positions in teleforums, conference talks, panel discussions, etc. so it's easy to correct the misimpression. So correct it. Don't tell people they can't list relevant credentials by articles. (Does op-ed authors really have veto power over the words of their credentials anyway?)

[Jeff Walden]

"Does op-ed authors" *Do op-ed authors (he said, wishing for that edit-window WaPo used to offer)

[Brett Bellmore]

I agree: It's true, so he can say it. Period, end of story.

[sparkstable]

I took the article more about an argument of pragmatism versus principle. I didn't get the feeling that there was a virtue of hiding the fact one works for FedSoc, or a vice of stating it. Instead, it was a question along the lines of, "Would self-reflection with a bend towards pragmatism and protection of the brand lead me to conclude it may be more beneficial to NOT list this info?" We do it in our personal lives all the time... make decisions about what to disclose and when/where. To disclose or not is, in itself, not inherently good/bad. Thus, to do so or not becomes a balance of various interests. Seems like the article is simply questioning if other interests could be better served with different behavior.

[Dr. Ed]

He should have said it was his personal opinion and not that of either the Fed Soc or NW Law. Many of us once had .sig files to that effect.

[sparkstable]

I think that is a fair point. Doing so would have allowed him to claim a sense of authority via membership with FedSoc and Northwestern while simultaneously defending those brands.

[santamonica811]

Ed,
Good point. Should have been added.

[Leo Marvin]

"The casual reader would simply assume that the Federalist Society, as an organization, thinks that the President should be impeached for a tweet."

Seriously? I suppose some hypothetical reader could conceivably make that assumption. But no, Josh, the typical casual reader of the NY Times op-ed page would not so assume.

[tkamenick]

Exactly, this was my very first thought and it invalidates Blackman's point. I'm pretty confident that the default position for most people - especially most people interested in this kind of topic - is that somebody who mentions their affiliation with a group is not speaking on behalf of the group unless they expressly say so or their affiliation is as a spokesperson.

[Rev. Arthur L. Kirkland]

One prominent right-wing blog expressly states that readers "naturally" should not ascribe a writer's position to the writer's employer(s) or organization(s).

[Pacific]

Indeed; no one believes that the Fed Soc supports impeachment. Bill Barr is far more
Influential in that community than Calabresi.

[Voize of Reazon]

Then Calabresi shouldn't advertise his position at Northwestern either, otherwise that same gormless Times reader might think he is speaking for that institution.

[Dr. Ed]

NO, he should have had the disclaimer.

[Voize of Reazon]

The truly gormless, the kind of reader that Blackman appears to be worried about, are so profoundly lacking in gorm that they are disclaimer-proof.

[David Welker]

This argument that Steven Calabresi ought to CENSOR a key aspect of his biography is a bad one. And is Blackman's minimization of the significance of Trump's tweet.

First, this is a call to censor or conceal a truthful statement. This is not helpful. If one wants to dispute how meaningful a truthful statement is, one is free to write blog posts or Tweet about it or whatever. Acting as though people are better off being ignorant altogether isn't just unpersuasive, it is a bad argument which if adopted would have bad consequences.

Second, that the Federal Society as an organization takes no "official position" doesn't matter very much. This is just a matter of internal organization. Overall, there is a strong ideological cohesiveness with respect to the legal views that members of the organization adopt. This is not a claim that Federalist Society members have the same views on every issue of importance. Instead the claim is that given the information that someone is a member of the Federalist Society, the probability that they hold a spectrum of views on a whole number of issues changes significantly compared to a randomly selected lawyer taken from the population as a whole.

Third, that Blackman has minimized Trump's tweet is borderline ridiculous. Trump is the President of the United States. Can Blackman name even one other time that a President of the United States has called for the delay of an election? Dismissing this behavior as "no big deal" does nothing more than normalize the abnormal.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

One could also read Trump's tweet as simply saying he thinks Congress should postpone elections. Insisting on always reading the worst is just paranoia.

[David Welker]

Are you ever going to get tired of claiming that Trump does not really mean what he says?

One of Trump's defenders has said, with respect to his strange well-wishing of Ghislaine Maxwell that by "wishing her well" he really meant "in Gitmo." OK.

Sure. Everytime Trump says something stupid, he actually means something else. Whatever you say.

So, I suppose, if you insist on saying that Trump never means what he says, just so long as whatever he has said is deeply irresponsible, that Trump has only said responsible things.

But, even if this were true, having a President who constantly needs to be "re-interpreted" by his followers is itself abnormal. Being able to communicate and being thoughtful about how you communicate is a basic job qualification.

The gaslighting statement that Trump never really means what he actually says is insulting not only to Trump, but to the whole country.

At some point, reasonable people are going to get tired of carrying Trump's water and defending the indefensible. It appears that Steven Calabresi has reached that point.

[Dr. Ed]

"One of Trump’s defenders has said, with respect to his strange well-wishing of Ghislaine Maxwell that by “wishing her well”"

Would you have preferred he said something similar to what Richard Nixon did about Charles Manson? And didn't Nixon cause some potentially-serious legal problems by saying what he did?

Wishing someone well is (or once was) a neutral but polite generic saying about people in general. "Well" used to mean the converse of "sick" or "injured" (or "dead") and it's similar to the Catholic tradition of saying "God bless you" when someone sneezes.

My reading on "I wish her well" is that he's staying out of this -- that he's not involved and doesn't intend to be -- that (like most of us) he thinks she's guilty, but if she can beat the charges, good for her.

Any other interpretation of those three words requires no small amount of paranoia.

[Rev. Arthur L. Kirkland]

" My reading on “I wish her well” is that he’s staying out of this "

I am glad you are on the other side of the culture war, Dr. Ed. I like the opposition to be just like you. I also like winning.

[Dr. Ed]

What kind of psychopath does it take to think it inappropriate to wish others well?

[NOVA Lawyer]

Staying out of it is staying out of it. For a man who has publicly commented on trials of his associates while those trials were ongoing, whose administration has intervened in prosecutions of his associates, who has commuted the sentences of his personal friends, and otherwise very much taken sides, telling a former (present) acquaintance that he wishes her well just after she is arrested....it suggests he supports her. He didn't wish her victims well. He didn't state, without implying a particular outcome, that he wished for justice for the accused and the accusers, or something. He said he wished his (former) friend/acquaintence well as she faced charges involve the sexual assault and rape of underage women. There is an obvious slant to that.

If you want to stay out of it, you stay quiet on the subject. If you want to stay neutral, you talk in neutral terms. Here, the President of the United States wished an accused child molester (for all practical purposes) well. Not a good look. Don't pretend the psychopath is the one who points that out.

[Dr. Ed]

I think you are reading too much into it.

[Dr. Ed]

No, I'm going to say this.

The "rape" here is -- from everything I have yet seen -- consensual statutory rape. The offense was that the child was not old enough to consent, not that she didn't consent. That's a very big difference!

These were unemancipated minors -- they all had a parent or legal guardian -- and why the hell were these purported responsible adults permitting these young girls to fly down to Orgy Island?

Not knowing where the girl was for a couple hours in NYC -- maybe. But when she's missing for a couple of DAYS?!?

Maxwell is not the only person who ought to be on trial....

[James Pollock]

" The offense was that the child was not old enough to consent, not that she didn’t consent. That’s a very big difference!"

So your difference rests on the notion that a person who can't give consent gave consent. Not able to give consent isn't different from not wanting to give consent it's not consent either way.

[NOVA Lawyer]

And you are defending it based on the fact that maybe (probably) some parents were extremely negligent to the point of criminality (I don't know the facts, but seems quite likely to me too)? This is really bizarre whataboutism. It seems you have so often deployed whataboutism to defend Trump, now it really is just justification for absolute amorality. Because there is always someone else in the world who has done something as bad or worse than the thing being identified as evil, that evil is basically okay and worthy of special attention because whatabout. Your conversion to Trump's moral outlook and worldview is complete. This is the problem with electing an utterly amoral, pathological liar, and narcissist the likes of which we have never seen (hat tip to pre-sellout Senator Cruz). The President of the United States influences culture and adoption of his worldview, including, in this case, utter amorality.

Only a psychopath can be fine that someone they believe preyed on children beats the rap. And that's your interpretation of what Trump said. Ed, that's just sick.

[Dr. Ed]

In response to NOVA Lawyer, I have just two words:
Bill Clinton.

Relative to the moral standards of the day, Bill 'n' Monica was far worse than Trump has said or done.

And don't forget that Trump banned Epstein from his club when he learned about the underaged girls. When he learned about it.

[NOVA Lawyer]

Ed,

Leaning hard on that whataboutism.

It really is embarrassing for Trumpsters that they can't just say he did something wrong. It's always but Obama, but Clinton, but, but, but. Yet, none of that excuses Trump in the least.

I remind you, your interpretation of Trump's comment was that it was "good for [her]" if Ghislaine could beat charges of which Trump believes she is guilty and which involves the abuse of underage girls.

he thinks she’s guilty, but if she can beat the charges, good for her.

Again, only a psychopath can hope an abuser of girls escapes justice. Disgusting.

[NOVA Lawyer]

And Ed,

You are uncritically accepting Donald Trump's word (!!) that he fell out with Epstein over underage girls. But their falling out was in 2004 (or maybe 2005), very shortly after Trump outbid Epstein in a heated auction for property. Trump had known about Epstein's proclivity for underage women for many years prior to that. In other words, Trump's claim appears to be as accurate as so many of his other claims. He never stood up to Epstein's predations. He just fought with Epstein over real estate and their friendship appears to have suffered.

Stop spreading Trump's lies.

[James Pollock]

"And you are defending it based on the fact that[...]"

What exactly did you see me defend? Might quoting me doing so?

Let's get that out of the way before I bother to attack your imaginary analysis of why I did what you imagined.

[James Pollock]

" It seems you have so often deployed whataboutism to defend Trump"

If you see me as defending Trump, you really need professional help, because you're severely delusional.

[Rev. Arthur L. Kirkland]

"Maxwell is not the only person who ought to be on trial…."

But she is the only one to receive a 'I wish her well' from fellow Epstein pal Donald Trump.

So far, anyway.

[NOVA Lawyer]

"....that (like most of us) he thinks she’s guilty, but if she can beat the charges, good for her...."

Who's the psychopath here? Wow, Dr. Ed. Even from you.

[Dr. Ed]

Some of us believe that we have to respect the judgement of the jury.

[James Pollock]

"Some of us believe that we have to respect the judgement of the jury."

Jurys offer verdicts. judgement isn't just the wrong word, it isn't even a word.

[Rev. Arthur L. Kirkland]

"Some of us believe that we have to respect the judgement of the jury."

So far, that's Dr. Ed, Roger Stone, Donald Trump, and Paul Manafort.

[NOVA Lawyer]

There is a world of difference between respecting the judgment of the jury and "good for her" when she does. That you pretend not to see that says nothing good about you.

[David Nieporent]

…unless a Trump crony is convicted, of course.

[James Pollock]

"At some point, reasonable people are going to get tired of carrying Trump’s water and defending the indefensible."

Alas, there's no shortage of unreasonable people to do these things.

[NOVA Lawyer]

It has been an incredibly demoralizing realization. But also motivating.

[Kazinski]

Says a Biden supporter.

[Sarcastr0]

Case and point.

Biden is incredibly milquetoast. That you can get a rage-on for him to occlude Trump's actions is impressive, but also must be exhausting.

[James Pollock]

"Says a Biden supporter."
Yeah, and besides you, I said it, too.

[Kazinski]

Do you really think Trump's tweets are well thought out and the result of serious reflection?

But I think Trump does have a point (although not explicitly made) about one thing, conducting the election via mail in ballots is tantamount to delaying the election. Take this WAPO headline from earlier this week:

A month later, this New York City primary is still a train wreck and a warning to us all

And I really doubt the postal service can come with and implement the kind of nationwide structure, procedures, and training, in coordination with 100,000 county clerk's, needed in 3 months to avoid a nationwide train wreck that is neither their responsibility or their fault.

[Sarcastr0]

Trump exploded that weak theory in his press conference yesterday, Alphabet.

He meant what he said, as it turns out. And made you look like a fool trying to defend him. Again.

[Dr. Ed]

Trump likely was referencing this: https://www.cbsnews.com/news/covid-19-vote-by-mail-ballot-counted-election/

And that's CBS News -- no bastion of right wing thought.

[MatthewSlyfield]

"Third, that Blackman has minimized Trump’s tweet is borderline ridiculous. Trump is the President of the United States. Can Blackman name even one other time that a President of the United States has called for the delay of an election?"

I won't dismiss it as no big deal. Nor will I argue that Trump meant something other than what he actually said.

However, as to no president ever calling for a delay in an election before, can you name even one other time the US has held a presidential election in the middle of a pandemic?

Do I think the election should be delayed over the pandemic? No. I also don't think we should make any major changes to how the election is handled (mail in voting) either.

The whole situation is a bit unprecedented, so I don't think you can make a case that Trump's suggestion is out of line just because no other President has ever made a similar suggestion.

I don't see how you can say that completely revamping the election process at this late hour (universal mail in voting) is a reasonable thing to do, but suggesting a delay in the election is EVIL and beyond the pale.

Also, Trump, like every other US politician ever, says shit he never acts on. There are too many things to be outraged over and I only have so much energy and time to devote to outrage. I'll wait until Trump actually does something about it to be outraged over this.

[OtisAH]

Of course, merely expanding who can vote absentee isn’t actually a “major change” or a “revamping” or even something that would be controversial if not for the President of the United States — yes, *that* President of the United States — soiling his diapers over it. In fact, you’ll be amazed to learn that expanded mail-in voting is also available (or would be, anyway) to Trump supporters, the majority of who are middle aged to elderly and many of who live in rural areas.

Another surprise for you: the USPS is also slowing down mail delivery for those very same folks I mentioned. And you. And every other “libertarian” around here. Waiting on something from amazon, Matthew? Well, you might just get to wait as long as those Libs you’re owning.

[James Pollock]

If we continue to let Mr. Trump call his (mostly elderly) supporters together during a pandemic while simultaneously denying that there IS a pandemic that mostly kills elderly people, the problem will take care of itself.

[Kazinski]

It's not that simple, as New York has showed. Washington is a good example, since they've been conducting all mail in balloting for years. They are a medium size state with only one large urban areas, and a few other medium sized urban areas. Washington in previous elections has required either a stamp, so the post office provides a mailing date, or the ballot be dropped in a elections dropbox. Without a reliable date on the ballot there is no way to know when the election ends, as New York has discovered.

[James Pollock]

" They are a medium size state with only one large urban areas"

Unless you count the other ones.

[MatthewSlyfield]

"Of course, merely expanding who can vote absentee isn’t actually"
I do not agree that universal mail in voting is anything remotely resembling "merely expanding who can vote absentee".

[James Pollock]

"I do not agree that universal mail in voting is anything remotely resembling 'merely expanding who can vote absentee'."

That's not remote resemblance that's it exactly.

[James Pollock]

"However, as to no president ever calling for a delay in an election before, can you name even one other time the US has held a presidential election in the middle of a pandemic?

the 18th century and about the first half of the 19th, had presidential elections. There was a just-about-constant state of pandemic of some kind or another. Polio didn't come under control until the 20th century. Tuberculosis, either.

More recently, we had midterm elections in 1918. Druing a flu pandemic that killed millions of people.

[Voize of Reazon]

To be fair, it is only a call for self-censorship, like an admonition to think before you speak. That makes it much less objectionable than a call for the iron-fisted third-party kind of censorship.

[Longtobefree]

" Being a tenured professor at Northwestern is sufficient to convey authority."

I got some bad news for you, Josh - - - - - - -

[Rev. Arthur L. Kirkland]

To a guy from South Texas?

[bernard11]

This is idiotic.

First, identifying him as co-founder of the Federalist Society is a simple factual statement that conveys important information - he's likely to be a conservative.

Second, it's not clear that it's even up to Calabresi how he is described by these publications. Certainly he didn't write the Forbes headline, and it's likely up to the NYT how they describe their op-ed authors.

Oh, and drop the high-mindedness. Whatever they do at their meetings, the Federalist Society sure seems intent on pushing right-wing nutjobs onto the federal bench. That influences my opinion more than the fact that they have liberal speakers at some of their events.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Classifying so many judges as right wing nut jobs says more about you than them.

[Sarcastr0]

Really? You think the Federalist Society's preferred judges have a wide range of philosophies?

[bernard11]

Not all, but enough.

And they certainly do push appointees based on partisanship rather than qualifications.

You can hardly deny that.

[OtisAH]

Yeah? Watch him.

[David Nieporent]

I can deny that the Federalist Society qua Federalist Society pushes appointees at all.

[James Pollock]

No need, lots of people will make that kind of denial.

[M L]

Calabresi went pretty overboard. I guess he figured if you're going to come at the tweet, might as well go hard with hyperbole and get it in the "paper of record."

[Sarcastr0]

You disagree with a person so why not read their mind to make their motives venal.

Like clockwork.

[Bob from Ohio]

Its either venal or Calabresi is terminally stupid. Its unhinged to react like he did.

Trump broke many seemingly sane people. Calabresi just took longer than most to manifest it.

[David Nieporent]

A senior citizen was driving down the highway, when he got a frantic call from his wife on his cell phone. His wife worriedly told him, "George, please be careful coming home! I just heard a report on the radio that there's a car driving the wrong way on the highway!"

"Hell," he replied, "It's not just one car. It's hundreds of them!"

[James Pollock]

You seem to use the word "unhinged" to mean "accurate". I don't think anyone else is using the word that way. You might want to conform if you want your message to be understood.

[M L]

I'm not ascribing a venal motive here.

I engage in hyperbole myself sometimes. There's nothing per se wrong with that.

[OtisAH]

His op-Ed took your spot, did it?

[Rev. Arthur L. Kirkland]

This could have turned out differently. Perhaps if someone had befriended Prof. Blackman in law school . . . or in college . . . or in high school . . . or in junior high school . . . or in grade school . . . or in kindergarten . . . or in pre-school . . .

I do not intend to imply that Prof. Blackman is friendless.

He has Prof. Barnett.

[LawTalkingGuy]

The Federalist Society doesn’t need to take advocacy positions on legal questions because it’s much easier to just skip that step and have people in the Society answer those questions from the bench.

[apedad]

Wouldn't a simple, "The views of the author are his own and do not imply concurrence or agreement with the institutions he is affiliated with," clear things up?

[Dilan Esper]

This is what 99 percent of people do, and it is so much better than having to rely on claims about what people do or don't understand.

[MDJ23]

Signed: "JOSH BLACKMAN is a constitutional law professor at the South Texas College of Law Houston, an adjunct scholar at the Cato Institute, and the President of the Harlan Institute."

[Dr. Ed]

And Josh Blackman probably ought to have a disclaimer.

[NOVA Lawyer]

That is hilarious.

[apedad]

Also...

Our Purpose

•Law schools and the legal profession are currently strongly dominated by a form of orthodox liberal ideology which advocates a centralized and uniform society. While some members of the academic community have dissented from these views, by and large they are taught simultaneously with (and indeed as if they were) the law.
•The Federalist Society for Law and Public Policy Studies is a group of conservatives and libertarians interested in the current state of the legal order. It is founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be. The Society seeks both to promote an awareness of these principles and to further their application through its activities.
•This entails reordering priorities within the legal system to place a premium on individual liberty, traditional values, and the rule of law. It also requires restoring the recognition of the importance of these norms among lawyers, judges, law students and professors. In working to achieve these goals, the Society has created a conservative and libertarian intellectual network that extends to all levels of the legal community.

Sounds like that they actually do go out of their way to take positions on legal issues.

[Bob from Ohio]

Oh noes, someone from Illinois broke with Trump. I guess there goes Trump's chance of winning Illinois.

[Rev. Arthur L. Kirkland]

While you're evaluating propositions, Bob . . . what do you think of conservatives' chances to avoid another half-century of losing the culture war?

[James Pollock]

Depends on how many of them can hang on for another half-century. Odds not good considering they've decided to pretend that a pandemic that mostly kills old people doesn't exist, and is actively killing mostly old people.

[Rev. Arthur L. Kirkland]

The clingers will always be among us.

As a dwindling, inconsequential, disaffected minority.

[SykesFive]

Come on, Josh, you can't be serious.

Do people really think that because Stephen Calabresi expresses a position, and Calabresi was a founder of the Federalist Society, that means the Federalist Society has taken the position that Calabresi expressed?

Do they think that any more than they would think Northwestern University has taken Calabresi's position?

The fact a cofounder of the Federalist Society took a position that people will perceive as anti-Trump is itself significant. You know, it actually helps cut against the idea the Federalist Society is monolithic and its members are all required to spout a party line.

Regarding "I don't sign what I don't write"--good luck if you ever decide to practice law for a living.

[Bob from Ohio]

"cofounder of the Federalist Society took a position that people will perceive as anti-Trump is itself significant"

Its not "significant" at all. An anti-Trump op-ed in NYT. There is at least one every day.

Outside maybe his family, not one vote is being changed. Being attacked by an Establishment figure has never hurt Trump before.

[Dr. Ed]

I read the OP more as a warning to student charters not to sign the BLM petitions that they are being bullied to sigh.

[M L]

There must be an average of at least 2 anti-Trump op-eds in the NYT each day for the last 5 years.

That's 3,650 anti-Trump NYT op-eds.

[santamonica811]

Wow, that's a large number. About one for every 6 of Trump's lies and misleading statements. Seems to be a reasonable ratio.

[James Pollock]

"Its not “significant” at all. An anti-Trump op-ed in NYT. There is at least one every day."

A piece of his fanclub has peeled away. That and Trump's inability to draw much of a crowd to his last rally... Dude might be in trouble. Next thing you know, he'll be asking how he can postpone the election and just stay President until the coronavirus goes away.

[Brian Kennedy]

I don't see how someone is likely to view the Op Ed as a position of the Federalist Society in these circumstances.

[Earnest]

With respect, Professor Blackman, this is hogwash. Federalist Society advocates cling to the fact that FedSoc, as an organization, does not take positions on legal issues as though that should end the matter. But in doing so, you refuse to engage with the good faith criticism lodged against FedSoc: membership has become a purity test, a necessary condition, for all judicial appointees under the Trump admin. So while FedSoc as an org. may not take positions, you can make a fairly accurate guess where a person stands on abortion, gun rights, regulation, or substantive due process based on their membership in FedSoc. As further evidence against your point, over the last five years there have been countless FedSoc affiliates/leaders praising President Trump, conservative judicial outcomes, and the like. Were you asking that they remove their FedSoc byline from their bio then?

[Bob from Ohio]

"good faith criticism"

Snort.

[Earnest]

Bob, I suspect you may be doing exactly what I was trying to point out.

[Bob from Ohio]

I decline to engage with faulty premises. The criticism of the Federalist Society has never been in good faith.

As usual, Senator Whitehouse exhibits the purse form of lib derangement:

"While The Federalist Society is trending, I’ll remind everyone that this is a group funded by dark money that has captured our judicial nomination process on behalf of their rich donors. Sorry, too late to get off the Trump train now."

"funded by dark money" is not good faith, its unhinged.

[James Pollock]

"'funded by dark money' is not good faith, its unhinged."

this complaint from this source indicates that the claim made is very likely true.

[Sarcastr0]

Bob, have you seen any criticism of Trump that you'd allow was in good faith?

[Bob from Ohio]

Earnest was talking about the Federalist Society, not Trump

["lodged against FedSoc]

[Earnest]

Honest question, because I've seen similar comments, but how is FedSoc funded? I also don't know, however, whether its funding is necessarily relevant to Prof Blackman's or my points. My point is that, to be nominated to the federal bench under the Trump administration, you probably need to be a bona fide FedSoc member. And the Trump Admin didn't choose that membership arbitrarily -- it did so because FedSoc membership is a good proxy that the candidate holds conservative legal views, and will assert those views in judicial action, at least at the appellate level. So it's a straw man to rely only on the fact that FedSoc, as an organization, takes no official positions.

[Bob from Ohio]

"how is FedSoc funded?"

Is your google broken?

"Q. Who are some of the Federalist Society's financial supporters?
A. 90% of the funding comes from individuals and foundations; the other 10% comes from corporations. The Society does not take money from any political party or group affiliated with a political party or from the federal government." Federalist Society web site

"The Federalist Society is a nonprofit 501(c)(3) educational organization." Federalist Society web site

[OtisAH]

Ohhhhhhh, individuals and foundations. And corporations! That certainly answers the question, doesn’t it?

[Purple Martin]

“The Federalist Society is a nonprofit 501(c)(3) educational organization.”

...and thus able to accept unlimited amounts of money without disclosing the source. Generally, that's considered a prerequisite to be considered dark money.

[QuantumBoxCat]

So, The Federalist Society is a heterogenous group and claims should not be made about the group as group, since the individual views differ so much. But, when talking about other groups, like the ACLU or The Newspaper of Record, it's perfectly okay to assume homogeneity among it's members and make group-based claims. When talking about FedSoc, refer to members rather than group; when talking about ACLU or NYT, refer to group rather than individual members.

[Jerry B.]

Well, when the organization itself, and not just individual members, make claims and take positions, that seems different than saying one member of the organization has this or that position.

[QuantumBoxCat]

I just noticed there's a new post on The Cato Institutes blog stating that Josh Blackman does not speak for the group, and that he should remove the reference to Cato from his byline to prevent further confusion.

[Jimmy the Dane]

Hmmm...he is still up on their website.

[Jimmy the Dane]

Also had not looked at Cato's blog in some time. Reminds me of why I stopped paying attention to Cato a long time ago.

[Jeff Walden]

Are you making a factual claim, or suggesting a hypothetical analogous scenario? I can't find such a post looking now, but maybe I missed it.

[James Pollock]

the fact that it might have been real is what makes the joke work.

[Jeff Walden]

I dunno, I don't think it was actually particularly funny. If it had actually happened there would be some irony, but evidently Cato is not uptight about this in the exact same fashion Blackman is about Calabresi. (And I wouldn't have expected them to be, there's a general sense of things its affiliates share, but some deviations on most manner of issue aren't something it's really gotten upset about. I'm reminded of Julian Sanchez once noting this in context of his saying he didn't think net neutrality was a bad idea, and that Cato gave him the space to hold occasional "contrarian"-in-context views.)

[Jimmy the Dane]

Federalist Society is the legal wing of the vast right wing conspiracy to liberals. That makes it evil. Doesn't matter WHAT it actually does. Reality never mattered to liberals.

[bernard11]

What it does, among other things, JTD, is push conservatives, good, bad or indifferent, onto the federal bench.

Claiming an organization that does that is "non-ideological" is ridiculous.

[Jimmy the Dane]

Pushing conservatives on to the federal bench is NOT necessarily a bad thing (unless you are a liberal ideologue and want to use that branch set your public policy.)

Many people forgot how we arrived at the position we are now dealing with even in 2020. That is conservatives ignored the judiciary starting after WWII. Being a federal judge was boring. The pay was horrible (compared to Big Law at the time) and it was considered to be a "career ender" where you would take a position before retirement.

That left the liberals to fill the federal judiciary in the 50's and 60's, then we got all the activist rulings of the 70's. Conservatives didn't wake up till well into the 80's when their newly nominated, Fed Soc backed judge picks, were not overruling those precedents which was thought to be what would happen. Roe v. Wade and its ideological ilk were considered to be huge outliers that would never survive a "common sense court." Well here in 2020 what do we still have? Roe v. Wade and just about every other activist decision.

Maybe 4 years of Trump will be what it takes to finally put the federal judiciary back into its rightful constitutional role. If that does eventually happen maybe we can look back and at least say Trump did something.

[James Pollock]

"Pushing conservatives on to the federal bench is NOT necessarily a bad thing (unless you are a liberal ideologue and want to use that branch set your public policy.)"

Unless you are a non-partisan and want at least one branch to remain non-partisan.

"Maybe 4 years of Trump will be what it takes to finally put the federal judiciary back into its rightful constitutional role."

counterbalancing the executive and legislative roles, or mediating between them?

[Rev. Arthur L. Kirkland]

“Maybe 4 years of Trump will be what it takes to finally put the federal judiciary back into its rightful constitutional role.”

And maybe one year of Biden will be all it takes to relegate Trump-nominated federal judges to careers of authorizing bitter, strident, inconsequential dissents.

#House majority+Senate majority+lack of veto=progress

[Jimmy the Dane]

The judicial branch has never been the non-partisan branch it was envisioned to be. It is fanciful thinking to believe it will magically become that.

[James Pollock]

"Federalist Society is the legal wing of the vast right wing conspiracy to liberals."

Not quite. It's the indoctrination program for the vast right wing's legal branch. Conspiracy theory is more of a right-winger's hobby.

[Sarcastr0]

As the right clamors for results and becomes ever more reactionary, I do wonder what'll happen to the FedSoc in the next year or 2.

It looks to me like they're not the right kind of zealot for today's GOP.

[Bob from Ohio]

"in the next year or 2"

It entirely depends on Roberts, Gorsuch and Kavanaugh.

[Jerry B.]

Well, the Left excels at stereotyping. All people in the South are racists (despite many of them being Black, Asian, Hispanic, etc.) All police are racists (ditto). I could go on, but you catch my drift.

[Jimmy the Dane]

Don't forget that in the mind of a leftie all police but guns should be banned except for the police of course.

[James Pollock]

Someone imagined that this sentence was coherent:
"Don’t forget that in the mind of a leftie all police but guns should be banned except for the police of course."

All police but guns? of course!

[Jimmy the Dane]

I really wish there was an edit function. Should be "all police are racist but guns should be banned except for the police of course."

[James Pollock]

Can't be bothered to get your story straight before you click "send"?

[Jimmy the Dane]

If we are going to be sticklers hit would be hit "reply" but who is keeping track...

[James Pollock]

I don't want to be sticklers hit.

[Rev. Arthur L. Kirkland]

Not all southerners, conservatives, Republicans, or police officers are bigots. Not nearly.

Plenty are, however. And all Republicans and most conservatives are at minimum appeasers of bigots and bigotry.

[James Pollock]

First you complain about how the Left are stereotyping, then you proceed to offer several stereotypes.

[Rev. Arthur L. Kirkland]

From the Volokh Conspiracy's current "Editorial Independence" message:

"Naturally, you shouldn't ascribe our views to our employers, either, or even to the other cobloggers. Each blogger speaks only for himself or herself."

From the Volokh Conspiracy's current "Who We Are" message:

"Naturally, we speak only for ourselves, and not for the institutions that employ us."

From Prof. Blackman in this exchange: "Calabresi's biography line states that he is "a co-founder of the Federalist Society and a professor at Northwestern University's Pritzker School of Law. The casual reader would simply assume that the Federalist Society, as an organization, thinks that the President should be impeached for a tweet. . . . Calabresi should be proud of his work to establish the Federalist Society. But he must know that listing this fact in his byline creates the false impression that the Federalist Society is taking a position on the President's tweet. To help eliminate this misconception, Calabresi should omit this line from his biography."

I am still searching for evidence of existence of or compliance with the "civility standards" the Volokh Conspiracy claims to have (when it wishes to censor someone who is not a movement conservative).

[Jimmy the Dane]

Liberals thought the President should be impeached over a phone call. And then they did it. So why would a simple tweet not be grounds for impeachment?

[James Pollock]

"Liberals thought the President should be impeached over a phone call."

A phone call in which he openly asked a foreign government to harass one of his political opponents in the run-up to an election. And coincidentally, he was holding up Congressionally-appropriated military aid to that same foreign government while it is attempting to repel an invasion from another foreign government. And, again, just coincidentally, that third government actively tampered with the American election system during the election cycle that got Mr. Trump his gainful employment. Why would anyone have any problem with any of that?

[bdb484]

This post is great proof of FedSoc's big-tent policy. Even though one of our founding principles is that "the separation of governmental powers is central to our Constitution," members like this are completely free to ignore that principle when the President of the United States suggests canceling elections. Haha! That scamp! What'll he come up with next?!?!? (Who cares, as long as he keeps owning the libs?)

Whether this post is proof of the wisdom of that policy.....

[Jimmy the Dane]

Sadly "owning the libs" is now most of the fun of politics. It used to be having intellectual conversations about public policy, then the left ruined that with political correctness. Now the most you can get out of the exercise is upsetting a snowflake or watching them melt down as you tear apart their precious little political positions.

[Rev. Arthur L. Kirkland]

Winning the culture war and shoving progress down right-wing throats is nearly all of the fun in politics. You guys have to settle for occasional ankle-nipping.

[Dr. Ed]

We shall see....

[Sarcastr0]

Ed, RAK is correct on the point that conservatives have lost the culture war. It's not the 1950s anymore, and it's never going to be again. And no raging against trangenders and gay marriage and weak men in sitcoms will bring that back.
Neither will whatever reactionary violence you're 'worried' about.

The right can be destructive as hell and make things miserable for a lot of people, but you've lost that front.

Plenty of other policy debates left to be had.

[James Pollock]

Some of them haven't committed to letting the 1750's go. The ones stuck in the 1950's are still seeing commies hiding behind every tree. Hint: Portland, OR, has a LOT of trees.

[Jimmy the Dane]

And AK is the first to cry foul when any right of him makes a comment about winning the culture war...

[Rev. Arthur L. Kirkland]

If a clinger engages in delusion about right-wingers winning the culture war, I do not cry foul. I mock the loser.

The culture war is not over, but it has been settled. This blog's authors and fans have lost.

[OtisAH]

I’ve yet to see you own anybody. You just come here and clown yourself multiple times a day. Some argue with you, but most just roll their eyes and think “This jackass again.”

[James Pollock]

"It used to be having intellectual conversations about public policy"

It must have been lonely for you, back when you were left out, back when it was about having intellectual conversations.

[James Pollock]

" members like this are completely free to ignore that principle "

Prof Blackman was just bragging that the FedSoc doesn't HAVE any principles...

[Dave W.]

"The Federalist Society goes out of its way to not take positions on legal issues."
That's gotta be pretty tough on FedSoc corporate lawyers. "Your honor, the Federalist Society takes no position on the merit of this lawsuit against the Federalist Society."

[Jimmy the Dane]

They both do stuff...

Maybe that is the common denominator?

[OtisAH]

Btw, how exactly I are FedSoc and the ACLU comparable as organizations? Because they’re organizations?

[James Pollock]

" listing this fact in his byline creates the false impression that the Federalist Society is taking a position on the President's tweet."

No, it doesn't. It gives the correct impression that that co-creator of the FedSoc is taking a position on the President's tweet. Now, if he changed it "spokesman of the FedSoc and started making claims, you'd have an accurate complaint.

[Alan Vanneman]

Prominent conservative lawyer says Donald Trump unfit for office; Josh Blackman wets pants. Better invest in some Depends, Josh! Things could get messy!

[Dr. Ed]

Prominent conservative lawyer sells soul for 15 minutes of fame.
That's what is really at play here.

[Voize of Reazon]

Everybody should ease up on Prof. Blackman.
When you're bashing these things out five a day, they're not all going to be winners.

[Sarcastr0]

No, ML's post is not unique. Partisan claptrap rarely is.

I guess you didn't read the op-ed, if you're trying to make that comparison.

[M L]

Do you think that Calabresi didn't go overboard? Trump's tweet does not include the slightest hint or suggestion that he would seek to unilaterally postpone the election by executive action. He is raising legitimate concerns about the timing of all these mail in ballots.

[bernard11]

Those guiding principles if strictly adhered to by Federalist Society members will result in some form of position taking

I'd say a lot of position-taking. Just putting "a premium...on traditional values" can be read a lot of ways, not all of them attractive. Indeed, some might interfere with individual liberty.

[NOVA Lawyer]

That's a bit disingenuous. "traditional values" certainly implies a strong outcome oriented approach to certain questions or, perhaps more accurately, a strong preference for an interpretive framework/method that will inevitably favor certain policy outcomes.

There is a difference between taking positions on particular cases or particular position on a specific legal question versus taking a more general position on legal issues, but they do the latter, if not the former. And they do it explicitly.

Also, I am not sure how they can really claim that "it is emphatically the province and duty of the judiciary to say what the law is, not what it should be" but also that this "entails reordering priorities within the legal system to place a premium on...traditional values."

That's basically the equivalent (in reverse) to saying: "It is emphatically our position that the province and duty of the judiciary is to say what the law is, not what it should be. This entails reordering priorities within the legal system to place a premium on LGBTQ+ rights." You view that as no thumb on the scale in favor of specific legal issues?

[Sarcastr0]

So maybe don't make up what the NYT article says to defend charges of ML making up why the NYT article was writeen.

[Dr. Ed]

And doing so after CBS News -- no right-wing outfit -- DOCUMENTED major problems with the mail-in process.

[James Pollock]

" Trump’s tweet does not include the slightest hint or suggestion that he would seek to unilaterally postpone the election by executive action."

right. He just wanted to know if he could.

[Purple Martin]

...does not include the slightest hint or suggestion

Sure. And King Henry II's Will no one rid me of this meddlesome priest? sincere intent was just to be a hypothetical question.

[James Pollock]

"rump’s tweet does not include the slightest hint or suggestion that he would seek to unilaterally postpone the election by executive action."

Does his history of seeking unilateral action on various policy initiatives suggest that he'd tweet first, then follow up with a hamfisted attempt to achieve what he said?

[NOVA Lawyer]

You are avoiding the point. I never said "traditional values" was an actual policy position, but there is a reason you are "not saying it won't lead to policy positions." There is a great deal of tension between it is the "duty of the judiciary to say what the law is, not what it should be" and having the legal system (obviously including the judiciary) "place a premium on...traditional values." Maybe there is some hypothetical world in which those two coexist, but the latter very nearly precludes the former. The latter very much takes a position on what the substantive law should be.

[sparkstable]

And so long as he leaves it at that, it deserves less scorn than acting to do it. I would hate Obama much less if he had simply asked if he could kill American citizens without a trial and then never did it. That he did is separate from him asking about it... they both deserve scorn, and it is sort of additive having done both, but the asking is deserving of much less than the doing.

[James Pollock]

" Our traditional values have valued individual liberty."

Sure, unless the wrong people were getting liberty, or people were using their liberty in a way you disapproved of.