The Volokh Conspiracy

I've been reading and much enjoying Paul Mirengoff & Bill Otis's Ringside at the Reckoning. I don't always agree with them, and I think that politically they tend to be more conservative than I am. But I've generally found them to be blunt, level-headed, and thoughtful, and they generally strike me as astute observers of American politics. (Paul Mirengoff was a cofounder of the conservative Power Line blog, which has been following American politics for 20 years.)

I thought I'd pass along Mirengoff's most recent post, Trump's picks: The good, the questionable, and the crazy. As you can tell from the title, he praises some (Marco Rubio for Secretary of State, John Ratcliffe for CIA Director), expresses doubt about others (including criticizing Kristi Noem for Homeland Security as not being conservative enough), and sharply criticizes others, including Matt Gaetz for Attorney General. Since the AG position is of especial interest to me as a lawyer and someone who writes mostly about law, I thought I'd pass along Mirengoff's thoughts:

I agree with the Wall Street Journal's editorial board:

This is a bad choice that would undermine confidence in the law. Mr. Trump lauded Mr. Gaetz's law degree from William and Mary, but it might as well be a doctorate in outrage theater. He's a performer and provocateur, and his view is that the more explosions he can cause, the more attention he can get. "It's impossible to get canceled if you're on every channel," he once said. "If you aren't making news, you aren't governing."

Mr. Gaetz has no interest in governing. When Republicans took control of the House in 2022, it was with a small margin. Rather than work to get things done, Mr. Gaetz sabotaged Speaker Kevin McCarthy before finally leading a rebellion to oust him. Eight Republican malcontents plunged the GOP into weeks of embarrassing paralysis, since Mr. Gaetz had no alternative that could command a majority….

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A very good Substack post by Yascha Mounk; two short excerpts:

The aspiration of many journalists to save democracy has not just proven counterproductive because it drove a big part of their readership away from mainstream outlets. It has also deprived Democrats of key facts they would have needed to make good strategic decisions—which, ironically, has helped to strengthen the very political forces that the journalists who were self-consciously striving to preserve democracy were trying to contain.

Over the last months, I have heard from multiple European diplomats that the extent of Joe Biden's struggles has long been well-known. In meetings with a number of senior statesmen, Biden repeated the same anecdotes, or seemed unsure about his own whereabouts, as early as 2021. Is it really plausible that American journalists were unable to learn something that has been known in capitals across Europe for so long—something that, as it happens, tens of millions of American voters have long cited as a serious concern in opinion polls?

No. The obvious truth of it is that, for the most part, journalists simply did not want to go there. Part of that reluctance may have been rooted in an understandable (if misplaced) sense of propriety. But another part of it was rooted in the unspoken suspicion that open consideration of this topic would somehow wind up helping Donald Trump.

As it happens, the reluctance to level with readers ultimately accomplished the opposite of what was intended. It allowed Biden to stay in the race long enough to make the entire Democratic establishment complicit in covering up the true state of his mental health. And it made it virtually impossible to stage an open primary to choose his successor….

But the truth of it is that the American mainstream itself now suffers from a serious epistemological crisis. If you were a faithful reader of The New York Times or a frequent listener of NPR, you were less likely than the average American citizen to believe that Biden was suffering from serious mental decline or that Harris was an unpopular politician with a steeply uphill path towards winning the presidential election. You were also less likely to recognize that school closures would exact a big toll on students' educational outcomes and mental health or to realize that a lot of Latinos were embracing the Republican Party. And you would, even now, be less likely than most voters to recognize how utterly simplistic it is to believe that America can meaningfully be divided into two opposing blocks of "whites" and "people of color."

Americans have lost trust in many of their institutions in good part because, despite their assurances to be the arbiters of truth and science, legacy news outlets and establishment institutions fundamentally misconstrue and misunderstand basic aspects of American life. The reasons for this sorry state of affairs go well beyond the decision by many journalists to flatter themselves into thinking that their task was to save democracy. But the first step towards fixing the problem is for journalists to re-embrace the humdrum conception of their own work that served them comparatively well in the past: to cultivate a healthy distrust of everyone, including those you may secretly believe to be on the right side of history, and report the news without fear or favor.

The whole post is much worth reading.

I am deeply saddened by the passing of Theodore Olson. Ted, as he was known, was a giant in the conservative legal movement. Generations of law students will study his defeat in Morrison v. Olson, as well as his victories in Bush v. Gore and Citizens United. But Federalist Society members, in particular, owe Ted a special debt. He was instrumental in the flourishing of our society. Here, I will relay one small anecdote, that I'm sure many will share.

For years, the Federalist Society has held the student leadership conference every July. In more recent years, the reception has been held at the United States Supreme Court. But in the 2000s, the reception was held at Ted Olson's home in Northern Virginia.

I was fortunate enough to attend the gathering in July 2008, after my second year of law school at George Mason. As I recall, we instructed to park our car at a nearby church, and ride a shuttle bus to Ted's home. (I sat next to a student from Harvard named Sarah Isgur.)

Entering the Olson estate was like walking into Disneyland. There was a huge backyard with an enormous swimming pool. There was something that looked like a robot cleaning the bottom of the pool. Such a gadget may be common nowadays, but it was beyond futuristic sixteen years ago. I remember just walking around in awe at the luminaries I saw. I walked onto the back porch and Judge Robert Bork was sitting there, drinking Iced Tea. The year before, Bork was injured in a fall at the Yale Club in New York. Bork was complaining about his leg, which was still bothering him. I was tempted to ask Bork about the Ninth Amendment and the "inkblot" comment, but I figured I would come across as a smartass, so I didn't. In hindsight, I am grateful I just sat and listened to him chat about whatever was on his mind.

I walked around the ground and saw Justice Samuel Alito. He was wearing a polo shirt. I was star struck. We chatted for a few moments, and I sheepishly asked for a picture. I also asked the then-Junior Justice to sign my pocket Constitution, which he did. I continued to walk around and I found the host of the party Ted Olson. I don't remember exactly what I said, but I recall thanking him for hosting us at his palatial home. He was very gracious. I asked Olson if he too would sign my pocket Constitution. Olson gladly did. And, for good measure, I saw Judge Dave Sentelle. He too signed that Constitution. That Constitution now hangs on the wall in my office, alongside another Constitution that is signed by Justices Thomas and Scalia. These are among my most prized possessions.

Last year, I chatted with Ted after the 2023 Olson Lecture. I relayed to him this story about my experience at his home, and I shared how meaningful it was to me and countless other FedSoc members. He beamed with pride. It was an exchange I will not forget.

Ted will be deeply and profoundly missed. The 2024 Federalist Society Convention will not be the same without his presence.

Here is the photo of me with Justice Alito in July 2008. This is what Ted's backyard looked like!

And here is a photograph of my signed pocket Constitutions.

I'm sorry I don't have a better photographs to share. I am on the road, staying in the soulless Washington Hilton this evening. I'll share my longing for the Mayflower in another post.

Ed Whelan writes that President Trump may adjourn Congress as a means to instantly confirm his entire cabinet without any confirmation hearings. In an earlier post, Ed writes that this approach may risk the Court overruling Justice Breyer's Noel Canning majority opinion, and adopting Justice Scalia's concurrence.

I maintain that Justice Scalia's opinion is correct on originalist grounds, as I noted in my earlier post. And I would be happy to see Justice Breyer's majority opinion repudiated. But even so, is this potential plan inconsistent with Justice Scalia's concurrence?

Under Scalia's opinion, the President could only fill a vacancy that arises during the recess of the Senate. Trump's plan would only be feasible if these cabinet positions become vacant during the recess of the Senate. Presumably, the holdover Biden cabinet officials will be long gone on January 20. And, on January 20, I suspect the President will use the Vacancies Reform Act to detail friendly people already in the federal government to serve as acting cabinet officials. What if one of them were to resign during the presidentially-induced recess? That is, on January 21, Trump adjourns Congress, and all acting cabinet officials resign. Would those vacancies have arisen during the recess of the Senate? Or, would the relevant starting point be when the last-confirmed official resigned? I don't know how the Recess Appointments Clause, as understood by Scalia, interacts with the Vacancies Reform Act. I doubt anyone has given this issue much thought.

There is a second issue. Under Justice Scalia's concurrence, the President can only make a recess appointment during an inter-session recess, and not during an intra-session recess. That is, the President can make a recess appointment during the recess between sessions, and not during the recess in the middle of a session. Would a presidential-induced recess be an inter-session recess or an intra-session recess? This power has never been exercised before, so there is no precedent.

I had always thought this clause would cause an inter-session recess. At the Framing, intra-session recesses were very rare. Generally, Congress would meet for continuous periods, taking only short breaks, and then take very long inter-session breaks. To the extent this power was more likely to be used, it would be used to decide when to conclude one session, and begin another. But I don't know. I do think it is the case that this clause was not designed to trigger the President's recess appointment power. But that is a separate question from what kind of recess this power would trigger.

Those who joined the Noel Canning majority may very soon regret their choice.

Louisiana law requires the posting of the Ten Commandments in public school classrooms. A group of Plaintiffs challenged the ordinance. These Plaintiffs are faith leaders, parents, and others who object to the display of the Ten Commandments on Establishment Clause grounds.

The District Court ruled that the posting of the Ten Commandments was unconstitutional. I may address the First Amendment analysis elsewhere. Here, I'd like to focus on the scope of the court's remedy:

The Court has ruled that the Act is facially unconstitutional. That is, H.B. 71 is unconstitutional in all applications. As a result, the Act cannot be enforced throughout the state. While AG Defendants do not have to serve each school with a copy of this ruling, they certainly will be ordered to provide notice to all schools that the Act has been found unconstitutional, particularly since the burden on AG Defendants to accomplish this task is minimal.

Though this ruling only applies statewide, it is a universal injunction. It provides relief beyond the named plaintiffs, and their children. It applies to all schools in the state, even schools at which there were no objecting parents/plaintiffs. There is no certified class, so Rule 23 is out. Under Labrador v. Poe (see here and here), this universal injunction seems too broad. Relief should be targeted to those who are injured. This standard ought to apply in the state context, especially when it is a federal court granting relief.

This issue will be appealed to the Fifth Circuit shortly. Putting aside the merits question, the court may see fit to narrow the scope of relief.

This is #8 in a very occasional series plucked from my files of quotes and snippets and what-have-you. I've spent a lot of time over the last year or so immersed in the early history of rock-and-roll, both because I find it inexhaustibly fascinating [a shout-out to Andrew Hickey's stupendous "History of Rock Music in 500 Songs" podcast] and because I'm thinking of writing something "serious" about the way that several arcane provisions of US copyright law affected the structure and development of the music industry in the '40s and '50s. So this post, and probably others into the future, will be full of rockandroll-iana. 

1.  Jerry Leiber and Mike Stoller started writing songs together as teenagers, two East Coast Jewish music nerds recently transplanted with their families to Los Angeles. They had their first (of many) #1 hits before either turned 20 years old - "Hound Dog," recorded in 1953 by Big Mama Thornton (and by many, many others in subsequent years). They went on to become one of the most successful songwriting duos in the early years of rock-and-roll, with a long string of mega-hits (Jailhouse Rock, Stand By Me, On Broadway, There Goes My Baby, Love Potion #9, Yakety-Yak . . .) to their credit.

Stoller was the better technical musician of the two, a talented classically-trained pianist (a big Bartok fan, apparently) whose true passion was jazz and rhythm-and-blues. He was able to persuade the great jazz pianist James P. Johnson to give him lessons in stride/boogie-woogie piano, a style that Johnson himself had basically invented back in the 1910s and 20s, and which Johnson had taught to, among others, Fats Waller and Willie ("The Lion") Smith, and whose influence on a whole generation of great jazz pianists is impossible to overstate.

Stoller later said: "It was as if Beethoven were giving me lessons — except that, unlike James P. Johnson, Beethoven had never given lessons to Fats Waller."

2.  Rock Around the Clock

I always thought Bill Haley was a lucky one-hit wonder who stumbled onto his 1955 megahit by chance. Wrong, wrong. Haley was a hard-working pro; he and his band (the "Comets") had a #1 hit in 1953 with "Crazy Man Crazy," and they worked hard to find the next big thing. Haley had a day job as a DJ at a local radio station in southeast PA, which meant not only that he heard pretty much everything that was being recorded at the time, but also that the band had access to an empty studio they could use after closing hours to work on their songs. And because the station had (primitive) tape equipment, they could record themselves and listen to what they had come up with - an almost unheard-of luxury for a 50s band. They did dozens of shows, for free, at local high schools; Haley wanted to see what kind of songs teenagers were getting into, and he would constantly change the band's set-list as they watched what the kids reacted to.

The original version of Rock Around The Clock was recorded and released in 1953 by "Sonny Dee and his Knights." The record flopped, but Haley heard it and wanted to work up a cover version; his producer at the small record label he was signed to (Essex Records), however, didn't like the song and wouldn't let the band record it, going so far as to tear up the sheet music in the studio when Haley brought it in for a recording session. But in 1954 Haley signed with Decca, and got to work with their star producer, the legendary Milt Gabler (Billy Crystal's uncle, as it happens), who had worked with Billie Holiday, Big Joe Turner, Lionel Hampton, Louis Jordan, Louis Armstrong, and other R&B and jazz giants.

Gabler, it turned out, wasn't too crazy about the song either, but he let the band record it and Decca released it in 1954 as the B-side (!!) to a pretty dopey novelty song, "One Man (and 13 Women Around)." Sales were disappointing - it almost (but not quite) made it into the top 50 on the Billboard Pop chart.

That would've been that, but the following year (1955) Richard Brooks, who was directing the film "Blackboard Jungle," asked Peter Ford, the teenage son of the lead actor in the film, Glenn Ford, to bring some of his favorite records to the movie set so Brooks could listen to them. Brooks wanted to hear what kind of music real teenagers were listening to (as opposed to the fictional teenagers in his movie, who were portrayed as swing jazz fanatics) so he could include some in his film in hopes of getting teenagers to come to the theater. He chose Rock Around the Clock, using the entire recording, start to finish, as background over the opening credits.

Mass hysteria ensued across the land. It was an early version of Beatlemania, but in movie theaters rather than live shows, and the kids weren't screaming like banshees, they were jumping up and down in their seats and dancing in the aisles. Theater owners in several cities had to call in the cops to quell it all, those old movie theater seats not having been engineered to withstand the pounding of teenagers jumping up and down on them.

Frank Zappa was one of those kids, and he had a very interesting observation about what made the whole thing so incredible:

"I remember going to see Blackboard Jungle. When the titles flashed up there on the screen, Bill Haley and his Comets started belting out 'One, Two, Three O'Clock, Four O'Clock Rock…' It was the loudest rock sound kids had ever heard at the time. I remember being inspired with awe. In cruddy little teen-age rooms, across America, kids had been huddling around old radios and crappy transistor radios and cheap record players listening to their 'dirty music.' ("Go in your room if you wanna listen to that crap…and turn the volume all the way down".) But in the theatre watching Blackboard Jungle, they couldn't tell you to turn it down. I didn't care if Bill Haley was white or black, phony or sincere…he was playing the Teen-Age National Anthem, and it was so LOUD we were all jumping up and down."

It went on, incidentally, to sell 25 million records.

If you haven't heard it in a while - or have never heard it (is such a thing possible?) - the original recording is here. Worth hearing, if only for Marshall Lyttle's fantastic slap-back bass and Danny Cedrone's terrific guitar solo.

I just made a new Esperanto film, which I've submitted to an Esperanto film festival (the 6th American Good Film Festival). (It's really short: under five minutes long. And don't worry: it has English subtitles.) It's called "Mesaĝo en botelo," or "Message in a bottle." My kids (and a couple of others) have acting or voice roles in it, and my twelve-year-old son Mark did the video editing. You might remember my Esperanto film from last year, "Honesta homo" ("An honest person"), which was about Diogenes.

I'm embedding the film below, but most importantly, please click through to YouTube and "like" ("thumbs-up") the video there: "audience favorite" gets a special prize in this film festival! Voting finishes on Monday, so please do it now.

(I don't think you can "like" a YouTube video when you watch it on this blog: click on the title at the top of the video to open it in YouTube.)

Thanks to Catie Neilson, the host of this year's festival, and Alex Miller, former vice president of Esperanto USA and indefatigable longtime organizer of this film festival for the previous five years. Click here to see the full set of films submitted to the festival. (Alex also organizes the local Atlanta Esperantist scene—if you find Esperanto interesting and are in the Atlanta area, let me know and I'll hook you up.)

Esperanto is the most popular of the constructed languages (and has been around longer than Klingon, Elvish, and High Valyrian), is extremely easy to learn, and is even easier to learn these days now that there's an Esperanto course on Duolingo. (Back in 1997-98, I had to learn it using a book. Now, I've finished the Esperanto and Klingon courses on Duolingo.) The film reflects that I visited Esperantists earlier this year in Białystok, Poland, where Ludwik Zamenhof, the guy who founded the language in the 1870s-80s, was born; and I might go to the world congress next year in Brno.

And remember, please click through to YouTube and "like" my video (and spread the word)!