Professor Shugerman (et al) vs. Professor Prakash (et al)

 

 

 

          If you ask me about whether or not the President has an implied constitutionally-granted power to remove high-level Executive Branch officers subject to his (the President’s) appointment power, my answer is basically that I do not have a dog in that fight. Last August, in response to an inquiry by e-mail, I responded: “I have always avoided taking any position on this issue: [the scope of presidential] removal [powers]. I think [any interpreter taking a position] is at the far edge of the construction zone . . . where policy is driving legal conclusions. I do not think [the question] answerable as an originalist matter.”

Contra Tillman, Professor Shugerman and Professor Prakash do have positions on this issue.

Shugerman believes the answer is: No, the President has no such power impliedly granted by the Constitution. And Prakash believes: Yes, the President does have such a power. For the reasons I elaborated above and others, I am not going to judge between these two views, and I am not going to judge between these two academics. At least, between Shugerman and Prakash, I can honestly say that I am unbiased: Shugerman and Prakash have offered something less than effusive praise for my publications—as they are entirely entitled to do.

          But now something has changed. The terms of this debate, indeed, of legal academic debate, are being changed. Prakash et al wrote a 2023 Harvard Law Review article. See Aditya Bamzai & Saikrishna Bangalore Prakash, The Executive Power of Removal, 136 Harv. L. Rev. 1756 (2023), <https://harvardlawreview.org/print/vol-136/the-executive-power-of-removal/>. Prakash made certain arguments in support of his position—he relied on certain documents, and he put forward his interpretation of those documents. Shugerman has taken the position that Prakash has seriously erred—i.e., that Prakash’s interpretations have been wrong all along, and that he (Shugerman) has demonstrated that wrongness, and that Prakash has refused to retract or to sufficiently respond. For this alleged wrong, Shugerman put forward:

If “originalism” is a serious academic enterprise, are there any consequences for originalist scholarship that repeatedly misused, misrepresented, or made false claims about the historical record?

…. Is there accountability for originalists who make false historical claims?

Jed Shugerman, The Misuse of Ratification-Era Documents by Unitary Executive Theorists, Mich. J. L. Reform (2025) (manuscript at 25), <https://ssrn.com/abstract=5070241>; id. at 1 (same).

          Let’s assume that Shugerman is correct, and that Prakash is wrong.

What does Shugerman have in mind by way of “accountability” where Prakash remains unmoved and unwilling to voluntarily concede error? What would Shugerman have third parties do? Should third parties convene a tribunal or board of inquiry? Who would be the judges? Would the finders-of-fact be generalists off the street or specialist academics, and if so, in what field(s)?

Moreover, what punishments would the tribunal be empowered to impose?

Assuming lethal injection and a custodial sentence are out, does Shugerman want to see Prakash “removed” from his academic post?

Should Prakash be held in stocks and forced to read Gienapp and Rakove?

Or Should Prakash be denied access to his university’s library and interlibrary loan service?

Or—God forbid—should Prakash be asked to suffer the Amy Wax treatment—i.e., denied teaching duties involving impressionable 1Ls?

          Is the punishment to be shunning by on-campus peers, or to be denied a spot, by distant faculty, at some off-campus conference?

          What does Shugerman mean by “accountability”?

          I am a traditionalist. Let me suggest that we stick with the traditional norm for legal academics. What is the norm? When Academic-A publishes an article, then Academic-B can write a response. If people are persuaded by Academic-B’s publication, then Academic-A’s reputation will take a hit. And that is “accountability.” Likewise, Academic-A can reply to Academic-B’s response. And that’s “accountability” too. Critics can be critiqued. A university built on free inquiry allows third parties to judge among publications, responses, and replies (and sometimes sur-replies)—along with the absence of such responses and replies. An interlocutor is not owed a response. Where an interlocutor writes a response, the initial proponent can reply or he can stand on his original publication. But the interlocutor is not owed a reply.

          Now you might say: Seth—why do you think that is the norm? The answer is tu quoque. Let me explain:

          In 2017, as briefing began involving litigation against Trump-45 based on the Foreign Emoluments Clause the Domestic (Presidential) Emoluments Clause, Professor Shugerman wrote an article appearing on Slate. He wrote:

Ultimately, the central piece of documentary evidence for this emoluments argument is a manuscript version of a 1792 document by Secretary of the Treasury Alexander Hamilton. That document omitted President George Washington from a list of “Persons Holding Civil Offices or Employments Under the United States.” Yet the same document, when it was actually printed in official records of the early U.S. government, listed the president and vice president under the heading of “persons holding civil offices or employments under the United States.” In every subsequent report of the Treasury Department listing the employees and offices “under the United States”—from Treasury Secretary Hamilton himself and his successors—the president is included . . . .

Jed Handelsman Shugerman & Ors, Presidential Revisionism, Slate (July 17, 2017, 5:42 PM), <http://tinyurl.com/y7qaabr4> (emphases added). Leaving aside Shugerman’s claims about the 1792 document and its subsequent reproduction, here, Shugerman is saying that there were other Treasury Department circulars—that is, “every subsequent report”—listing offices “under the United States.” Shugerman has this language in quotation marks. But he fails to identify any such documents using office “under the United States”-language. I put Shugerman et al on notice of my concerns long ago.

          To date, roughly eight years later . . .

·      Shugerman has not published copies of the documents he claimed existed in his 2017 Slate publication. Nor has he privately sent me copies;

·   Shugerman has not published full bibliographic information identifying where these documents can be found. Nor has he privately sent me this information.

·   Shugerman has not published links to these documents. Nor has he privately sent me such links.

My own belief is that, in 2017, Shugerman erred, and that no such documents exist. But he has not responded, and he has not retracted. And that is within norms. Indeed, I suggest that it is the norm.

Shugerman does not owe Slate, its readers, or me a reply regarding my critique—then or now. Why Shugerman has not responded is difficult to say. Perhaps he adheres to his original claims, and he leaves it to third parties (such as me) to go out and find the documents he claims exist. Or, maybe, he thinks the issue unimportant, and that his basic argument stands, even if this lone set of related documentary-claims fails. Or, perhaps, he is just too busy.

And the same applies to Prakash. Prakash does not owe the world and Shugerman a reply just because Shugerman is 101% sure Prakash is wrong. A failure to reply simply means that Shugerman gets the last word, and people have to decide who has the better argument.

Even now, at this late date, Shugerman might reply to my critique. But if he does so now, that is some eight years after-the-fact, that is a tell. Moreover, the Foreign Emoluments Clause and the Domestic (Presidential) Emoluments Clause are likely to be in the news again very soon. Perhaps as early as Monday, January 20, 2025, at noon. Given that Shugerman’s Slate article is likely to be cited in renewed scholarship and renewed briefing, there is good reason for him to consider addressing the difficulties which I have flagged in this blog post. But “good reason” does not amount to an academic duty or other moral obligation. After all, if you are the sort who will rely on an article in Slate, absent footnotes and links justifying ambitious documentary claims, that is on you. What I can say is that if Shugerman revises his position in light of my critique, and he does so some eight years after the fact, that leaves Prakash with some time to reassess his position in a similar fashion. After all, Shugerman was responding to a 2023 Prakash publication in Harvard Law Review—so that leaves Prakash with a good seven years to decide what to do.

          Fair is fair.

 

Seth Barrett Tillman, ‘Professor Shugerman (et al) vs. Professor Prakash (et al),’ New Reform Club (Jan. 17, 2025, 9:28 AM), <https://reformclub.blogspot.com/2025/01/professor-shugerman-et-al-vs-professor.html>;

 

Recent Academic Writing on the End of the Rule of Law

 

 

[T]here are numerous other methods that Trump will likely deploy on day one of his new administration to immunize himself and punish those who attempt to hold him accountable. The two most important of these would be to appoint an attorney general who could be counted on to fire Special Counsel Jack Smith in an attempt to end the federal prosecutions. Without a special counsel protecting the criminal trials, Trump could then demand that the attorney general withdraw the federal government from the D.C. and the Florida indictments. Second, Trump may attempt to pardon himself for any federal crimes or commute any sentences he has received up to that point. Although it seems likely that both of these acts would constitute criminal obstruction of justice by the President, the Trump v. United States ruling could give Trump cover to do just that; according to the majority opinion, appointing and removing Justice Department officials is among his core constitutional powers to which absolute immunity attaches, and the same would be said for any exercise of the pardon power, given that it is an enumerated power under Article II.

It is not overly dramatic to say that should these events occur, it would signal the end of the rule of law with respect to the presidency . . . .

 

Claire Finkelstein & Richard Painter, When an Indicted Candidate wins the Presidency: What Happens to the Trials if Donald Trump Wins the Election?, S. Cal. L. Rev. Postscript 1, 4 (Oct. 2024), <https://tinyurl.com/yc49yy7x>.

Trump never had a chance to remove Special Counsel Jack Smith. Smith resigned days before Trump will take office. And before he left, Smith actively closed down the D.C. and Florida federal prosecutions. (Albeit, zombie-like, the Florida prosecution continues—against the non-Trump defendants.) If these things were wrongful for Trump to do, was it not also wrongful for Smith to do? And if so, do Finkelstein and Painter think Smith should be impeached for wrongdoing in office amounting to high crimes and misdemeanors? Or should Smith be indicted for criminal obstruction of justice? See, e.g., Claire O. Finkelstein & Richard W. Painter, “You’re Fired”: Criminal Use of Presidential Removal Power, 25 N.Y.U. J. Legis. & Pub. Pol’y 307 (2023), <https://scholarship.law.upenn.edu/faculty_articles/242/>.

One wonders.

Do these two legal academics believe that the rule of law in the United States is now at an “end … with respect to the presidency”?

One really wonders.

 

Seth Barrett Tillman, ‘Recent Academic Writing on the End of the Rule of Law,’ New Reform Club (Jan. 15, 2025, 4:43 AM), <https://reformclub.blogspot.com/2025/01/recent-academic-writing-on-end-of-rule.html>;

A Short Note on John Merryman

 

 

An academic of note recently wrote on a listserv that John Merryman was a “terrorist”.

 

I wrote back as follows:

 

Dear Professor ABC,

[I]n 1861, no one knew where the battlefields would be. I did not write that Maryland was a battlefield, but that some of the state political authorities were seeking to avoid their state “being” a site of [future] battlefields. Many border states had citizens and politicians who wanted to do just that. It was quite rational to do so. Wanting to avoid such an outcome, that is, one’s state being a site of conflict, hardly is on-point with a criminal intent or terrorism.

You are constantly ratcheting up what counts as terrorism and what we know about John Merryman. Do you really believe that Merryman was “attempting to raise troops to fight the US” or even “attempting to raise [any] troops”? If you don’t believe that, why say it? Was the destruction of the bridge to inspire terror and fear amongst civilians? Or just to stop Union troops movements in Maryland? If the latter, that might be a crime, it might be a war crime, it might be treason, but terrorism? Really? I think terrorism is a term better reserved for Quantrill and his raiders, and those like them. Forrest may have been a terrorist, but he is probably better characterized as a war criminal for Fort Pillow. [Your] using the language of “terrorism” for Merryman drains “terrorism” of meaning. As I said, do White or McGinty [who are John Merryman’s recent biographers] use such language?

What we know about Merryman is quite ambiguous. See, e.g., ‘Merryman, John, of Hayfields,’ in 1 The Biographical Cyclopedia of Representative Men of Maryland and District of Columbia 312–313 (Baltimore, National Biographical Publishing Company 1879), <https://tinyurl.com/mtf43mbk> (explaining that shortly before Merryman’s seizure by the U.S. Army, Merryman “was introduced to [U.S.] Major Belger, and offered to render him or the [Union] troops any service required; and if necessary would slaughter his [Merryman’s] cattle to supply the[] [Union troops] with food.”). Do I know if what is reported here is true? No. I don’t. I do know that the [contemporaneous historical] record, as were the times, was quite messy, and although there were some figures who were singularly pure and others singularly evil, many were quite in-between. Merryman was one such figure. If burning a single privately owned bridge is terrorism, then Sherman and all his troops were pirates, along with virtually every other soldier on both sides. Who believes that?

Seth

Seth Barrett Tillman, ‘A Short Note on John Merryman,’ New Reform Club (Jan. 12, 2025, 10:49 AM), <https://reformclub.blogspot.com/2025/01/a-short-note-on-john-merryman.html>; 

CALIFORNIA: POLITICAL ACCOUNTABILITY

 

LA’s city council has 15 members. 14 of the 15 are Democrats. Apparently, the 15th is an independent.

<https://x.com/SethBTillman/status/1878284785715470787>; 

Seth Barrett Tillman, ‘California: Political Accountability,’ New Reform Club (Jan. 12, 2025, 6:26 AM), <https://reformclub.blogspot.com/2025/01/california-political-accountability.html>;

Atheism: You just can't not believe in God anymore; you must believe other things

Atheist biologist Jerry Coyne [often a foil on classical theism for Thomist Edward Feser, my guru] resigns from the atheist Freedom From Religion Foundation for "mission creep." He wrote--as a biologist--that there are only two genders. This of course offended intersectionality, of which anti-religion cultism is just a part.

I resign from the Freedom from Religion Foundation

December 29, 2024 • 9:15 am

This is the result of a dispute I’ve explained before (see here). Because the FFRF has caved into to gender extremism, an area having nothing to do with its mission, and because, when they let me post an article on their website about this, they changed their mind and simply removed my post, I have decided I can no longer remain a member of their board of honorary directors.  So be it. Everything is explained in this email I sent FFRF co-Presidents Annie Laurie Gaylor and Dan Barker about an hour ago, to wit:

Dear Annie Laurie and Dan,

As you probably expected, I am going resign my position on the honorary board of the FFRF.  I do this with great sadness, for you know that I have been a big supporter of your organization for years, and was honored to receive not only your Emperor Has No Clothes Award, but also that position on your honorary board.

But because you took down my article that critiqued Kat Grant’s piece, which amounts to quashing discussion of a perfectly discuss-able issue, and in fact had previously agreed that I could publish that piece—not a small amount of work—and then put it up after a bit of editing, well, that is a censorious behavior I cannot abide. I was simply promoting a biological rather than a psychological definition of sex, and I do not understand why you would consider that “distressing” and also an attempt to hurt LGBTQIA+ people, which I would never do.

As I said, I think these folks should have moral and legal rights identical to those of other groups, except in the rare cases in which LGBTQIA+ rights conflict with the rights of other groups, in which case some kind of adjudication is necessary. But your announcement about the “mistake” of publishing my piece also implies that what I wrote was transphobic.

Further, when I emailed Annie Laurie asking why my piece had disappeared (before the “official announcement” of revocation was issued), I didn’t even get the civility of a response. Is that the way you treat a member of the honorary board?

I always wanted to be on the board so I could help steer the FFRF: I didn’t think of it as a job without any remit. The only actions I’ve taken have been to write to both of you—sometimes in conjunction with Steve, Dan (Dennett), or Richard—warning of the dangers of mission creep, of violating your stated goals to adhere to “progressive” political or ideological positions. Mission creep was surely instantiated in your decision to cancel my piece when its discussion of biology and its relationship to sex in humans violated “progressive” gender ideology. This was in fact the third time that I and others have tried to warn the FFRF about the dangers of expanding its mission into political territory. But it is now clear that this is exactly what you intend to do. Our efforts have been fruitless, and if there are bad consequences I don’t want to be connected with them.

I will add one more thing. The gender ideology which caused you to take down my article is itself quasi-religious, having many aspects of religions and cults, including dogma, blasphemy, belief in what is palpably untrue (“a woman is whoever she says she is”), apostasy, and a tendency to ignore science when it contradicts a preferred ideology.

I will continue to struggle for the separation of church and state, and wish you well in that endeavor, which I know you will continue. But I cannot be part of an organization whose mission creep has led it to actually remove my words from the internet—words that I cannot see as harmful to any rational person.  I am not out to hurt LGBTQIA+ people, and I hope you know that. But you have implied otherwise, and that is both shameful for you and hurtful for me.

Cordially
Jerry

The Importance of Hyphens

 

 

This is what Fox News wrote:

‘Oregon AG creates sanctuary “toolkit” ahead of likely Trump-Homan illegal immigration crackdown’.

This is what Fox News meant to write:

‘Oregon AG creates sanctuary “toolkit” ahead of likely Trump-Homan illegal-immigration crackdown’.

 

See Charles Creitz, ‘Oregon AG creates sanctuary ‘toolkit’ ahead of likely Trump-Homan illegal immigration crackdown,’ Fox News (Dec. 26, 2024, 4:00 AM EST), <https://tinyurl.com/55jdvdma>, <https://www.foxnews.com/politics/oregon-ag-creates-sanctuary-toolkit-ahead-likely-trump-homan-illegal-immigration-crackdown>.

 

 

Seth Barrett Tillman, ‘The Importance of Hyphens,’ New Reform Club (Dec. 26, 2024, 6:20 AM), <https://reformclub.blogspot.com/2024/12/the-importance-of-hyphens.html>;

2024 Inaugural Tillman Award

Submissions for the 2024 Tillman Award remain open until February 1, 2025. Send entries to me via X (formerly Twitter) @sethbtillman or send me an e-mail. First prize (in each category) will be … I buy the first round at The Brazen Head (Dublin, established circa 1198). Second prize … you buy the first round ….

 

Entry 1: Professor Rick Hasen (after the U.S. Supreme Court denied Professor Blackman, acting as my attorney, argument time to argue the position in my amicus brief):

 

 

 

Entry 2: Professor Deep Gulasekaram with Professor Rick Hasen:

 

 

 

Entry 3: James Hohmann, Interview, ‘Supreme Court hears oral arguments in Trump ballot access case—2/8,’ Washington Post (Feb. 8, 2024), <https://www.youtube.com/watch?v=ULjkYY9xTMg> (01:04:20ff):

 

Hilariously, this is an argument that was actually pushed by this obscure assistant professor in Ireland at a law school. His name is Seth Tillman. And he has been writing these law review articles for decades. He was dismissed as a crackpot. People made fun of him.

 

Entry 4: Alastair Campbell and Rory Stewart, Podcast, ‘The Killing of Alexei Navalny,’ The Rest Is Politics (Feb. 21, 2024), <https://www.youtube.com/watch?v=jL2S5ri1HRs> (at 41:58–44:10):

 

There has been some really interesting coverage particularly in the New York Times of this amazing eccentric introverted lawyer, who is a junior lecturer* at a university in Ireland, who has become the key to the Trump legal campaign … this man called Seth Barrett Tillman … he looks like Robert Sapolski, … a big kind of beard …. this man has been saying for 15 years that the President cannot be referred to as an officer, and this was a really marginal view and everyone thought it was completely eccentric and nobody cared … he is what is called a “constitutional fundamentalist”.

Entry 5: Professor Akhil Amar, Podcast, ‘An Officer and a President,’ Amarica’s Constitution (Sept. 13, 2023), <https://amaricasconstitution.podbean.com/e/an-officer-and-a-president/> (01:26:15ff):

But what I’m saying is that he [Attorney General Mukasey] has written no article that I know of in which he elaborates all this. I know where it’s coming from. It’s coming from Seth Barrett Tillman . . . . 

Entry 6: Judge Luttig (4th Cir.) (retired) (follow the link for greater clarity):

 

 

*FYI: I have been an associate professor since 2021. Really!—It is true!!

 

Seth

 

Seth Barrett Tillman, ‘2024 Inaugural Tillman Award,’ New Reform Club (Dec. 24, 2024, 5:23 AM), <https://reformclub.blogspot.com/2024/12/2024-inaugural-anti-tillman-award.html>; 

See also: Josh Blackman & Seth Barrett Tillman, ‘Professor Akhil Amar, On His Podcast, Responds to Attorney General Mukasey and the Tillman-Blackman Position,’ Reason—Volokh Conspiracy (Sept. 14, 2023, 1:08 AM), <https://tinyurl.com/3zkybsk4>;

See also: Seth Barrett Tillman, ‘Re: Application for a Lateral Position at Yale Law School’ (Sept. 14, 2023, posted: Dec. 24, 2024), <https://ssrn.com/abstract=5070417>; 

This is What Happened—This is How it is Reported

 

Trump-45 Federal Judicial Appointments

    3: Supreme Court Justices

  54: Article III circuit judges

234: all Article III Justices & judges (including federal district/trial court judges)

  26: Article I specialty courts

    1: Article IV Federal Territorial Courts

261: all federal judicial appointments (Article I + Article III + Article IV courts)

 

Biden Federal Judicial Appointments* 

    1: Supreme Court Justice

  45: Article III circuit judges

235: all Article III Justices & judges (including federal district/trial court judges)

  17: Article I specialty courts

    1: Article IV Federal Territorial Courts

253: all federal judicial appointments (Article I + Article III + Article IV courts)

 

 

This is how it was reported in the news. See, e.g., Stephen Neukam, ‘Schumer and Biden eclipse McConnell and Trump on confirming judges,’ Axios (Dec. 20, 2024), <https://www.axios.com/2024/12/20/schumer-judges-biden-mcconnell-trump> (emphasis added to text) (emphasis added to title):

Senate Majority Leader Chuck Schumer (D-N.Y.) confirmed his 235th federal judge on Friday, breaking the record [of 234 appointments] set by Republicans under the first Trump administration. 

See also: Alexander Bolton, ‘Senate confirms 235th Biden judge, surpassing Trump’s record,’ The Hill (Dec. 20, 2024, 8:53 PM ET), <https://thehill.com/homenews/senate/5051917-biden-judges-trump-record/> (emphasis added);

Sahil Kapur, ‘Senate confirms Biden’s 235th judge, beating Trump’s record,’ NBC News (Dec. 21, 2024, 12:11 AM GMT), <https://www.nbcnews.com/politics/joe-biden/senate-confirms-bidens-235th-judge-beating-trumps-record-rcna182832> (emphasis added);

Nate Raymond, ‘Biden secures 235th confirmed judicial appointee, one more than Trump,’ Reuters (Dec. 21, 2024, 12:58 AM GMT), <https://www.reuters.com/world/us/biden-secures-235th-confirmed-judicial-appointee-one-more-than-trump-2024-12-21/> (emphasis added);

Tobi Raji, ‘Senate confirms 2 Biden judicial nominees, boosting total over Trump,’ Wash. Post (Dec. 20, 2024), <https://www.washingtonpost.com/politics/2024/12/20/biden-judges-trump-record/> (emphasis added);

Courtney Bublé, ‘Biden Exceeds Trump’s Record On Judges By One,’ Law360 (Dec. 20, 2024, 7:54 PM EST), <https://www.law360.com/pulse/courts/articles/2276197/biden-exceeds-trump-s-record-on-judges-by-one> (emphasis added); 

Kevin Freking (Associated Press), ‘Senate confirms 235th federal judge under Biden’s presidency, beating Trump’s first-term tally,’ PBS (Dec 20, 2024, 8:03 PM EST), <https://www.pbs.org/newshour/politics/senate-confirms-235th-judge-under-bidens-presidency-beating-trumps-first-term-tally> (emphasis added); 

Stefania Palma, ‘Joe Biden and Democrats seal judicial confirmation push to beat Donald Trump’s tally,’ Financial Times (Dec. 24, 2024), <https://www.ft.com/content/b555b44c-946d-4a44-900a-d43bb6d12754> (emphasis added); 

and, 

Martha McHardy, ‘Joe Biden Overtakes Donald Trump on Judicial Appointments,’ Newsweek (Dec. 21, 2024, Updated 9:13 AM EST), <https://www.newsweek.com/biden-judicial-appointments-senate-trump-2004575> (emphasis added). 

Trump-45 outpaced Biden: Trump-45 had more Supreme Court Justices (3-to-1), more federal circuit judges (54-to-45), more federal appellate judges (57-to-46), more Article I specialty court judges (26-to-17), and more federal judicial appointments in toto (261-to-253). 

Biden outpaced Trump in one category—“all Article III Justices & judges” (235-to-234)—and that is the lead, the news, and the only news. 

Again, Trump-45 outpaced Biden: Trump-45 had 2 more Supreme Court Justices, 9 more federal circuit judges, 11 more federal appellate judges, 9 more Article I specialty court judges, and 8 more federal judicial appointments in toto.

Biden outpaced Trump in one category—Biden had 1! more Article III judicial appointment—and that is the lead, the news, and the only news. 

Makes complete sense.

Seth

*After December 20, 2024 final adjournment of the Senate.

 

Seth Barrett Tillman, ‘This is What Happened—This is How it is Reported,’ New Reform Club (Dec. 23, 2:14 AM), <https://reformclub.blogspot.com/2024/12/this-is-what-happenedthis-is-how-it-is.html>;

See also Seth Barrett Tillman, ‘Senate Confirms 23 BIDEN-nominated Judges Since the Election (UPDATED),’ New Reform Club (Nov. 7, 2024, 6:56 AM, UPDATED Dec. 23, 2024), <https://reformclub.blogspot.com/2024/11/trump-45-v-biden-federal-judicial.html>; Seth Barrett Tillman, ‘Trump-47 and the Future of the Federal Judiciary (UPDATED),’ New Reform Club (Dec. 7, 2024, 3:09 PM, UPDATED Dec. 23, 2024), <https://reformclub.blogspot.com/2024/12/trump-47-and-future-of-federal-judiciary.html>;

Fair & Balanced: David Lat, ‘Biden Leaves Office With Mixed Legacy for the Federal Courts (1),’ Bloomberg Law (Dec. 18, 2024, 9:30 AM GMT), <https://news.bloomberglaw.com/us-law-week/biden-leaves-office-with-a-mixed-legacy-for-the-federal-courts>;

 

Fair & Balanced: Carl Hulse, ‘In Late Push, Senate Democrats Narrowly Top Trump on Judicial Confirmations,’ New York Times (Dec. 20, 2024, 23:25 EST) A18, <https://www.nytimes.com/2024/12/20/us/politics/senate-democrats-judges-biden.html>;

A Letter to Axios on Trump-45 and Biden

 

AXIOS

stephen.neukam@axios.com

letters@axios.com

info@axios.com

 

 

RE: Stephen Neukam, ‘Schumer and Biden eclipse McConnell and Trump on confirming judges,’ AXIOS (Dec. 20, 2024), <https://www.axios.com/2024/12/20/schumer-judges-biden-mcconnell-trump>;

 

You wrote: “Senate Majority Leader Chuck Schumer (D-N.Y.) confirmed his 235th federal judge on Friday, breaking the record [of 234 appointments] set by Republicans under the first Trump administration.” (emphasis added)

 

Your statement here somewhat undercounts both Trump-45’s and Biden’s record. You are only counting appointments to positions on Article III courts (including the U.S. Supreme Court and lower federal courts). However, a President (i.e., Trump-45 and Biden) also appoints other federal judges. Such federal judges include: Article I judges for specialty courts (e.g., United States Tax Court, and United States Court of Federal Claims), and Article IV courts for the territories (e.g., United States District Courts for the District of the Virgin Islands, for the District of Guam, and for the District of Northern Mariana Islands). If you include Article III, Article I, and Article IV federal judicial appointments by the President, then Trump-45 had 261 federal judicial appointments, and Biden had only 253 appointments. [A President also can make appointments to the local D.C. Superior Court and the local D.C. Court of Appeals. Trump-45 and Biden made such appointments, but I lack accurate numbers as to how many each made.]

 

It is also worth noting that in terms of the more powerful lawmaking federal appellate courts, Trump-45 made 57 appointments (including 3 U.S. Supreme Court appointments), and Biden made only 46 appointments (including 1 U.S. Supreme Court appointment). See Seth Barrett Tillman, ‘Senate Confirms 23 BIDEN-nominated Judges Since the Election (UPDATED),’ New Reform Club (Nov. 7, 2024, 6:56 AM, UPDATED Dec. 22, 2024), <https://reformclub.blogspot.com/2024/11/trump-45-v-biden-federal-judicial.html>; Seth Barrett Tillman, ‘Trump-47 and the Future of the Federal Judiciary (UPDATED),’ New Reform Club (Dec. 7, 2024, 3:09 PM, UPDATED Dec. 22, 2024), <https://reformclub.blogspot.com/2024/12/trump-47-and-future-of-federal-judiciary.html>; 

 

Seth

Seth Barrett Tillman, ‘A Letter to Axios on Trump-45 and Biden,’ New Reform Club (Dec. 22, 2024, 9:58 AM), <https://reformclub.blogspot.com/2024/12/axios-stephen.html>;

A Passing Thought on Katz-Rosenblum versus Bamzai-Prakash

 

 

 

This three-part exchange on the scope of the President’s removal power occupied the academic imagination for over a year. That’s an impressive amount of time.

 

Aditya Bamzai & Saikrishna Bangalore Prakash, The Executive Power of Removal, 136 Harv. L. Rev. 1756 (May 2023), <https://harvardlawreview.org/print/vol-136/the-executive-power-of-removal/>;

 

Andrea Scoseria Katz & Noah A. Rosenblum, Removal Rehashed, 136 Harv. L. Rev. F. 404 (2023), <https://harvardlawreview.org/forum/vol-136/removal-rehashed/> (responding to Bamzai & Prakash, supra);

 

and,

 

Aditya Bamzai & Saikrishna Bangalore Prakash, How to Think About the Removal Power, 110 Va. L. Rev. Online 159 (Aug. 2024), <https://virginialawreview.org/articles/how-to-think-about-the-removal-power/> (replying to Katz & Rosenblum, supra).

 

In their response, Katz and Rosenblum cite a 1916 treatise by Frank Goodnow. See Katz & Rosenblum, supra at 416 n.94 (citing Frank Goodnow, Principles of Constitutional Government 88–89 (1916)). In their reply, Bamzai and Prakash quote Goodnow as follows:

 

Here is Goodnow’s paragraph, which we quote in its entirety to allow readers to assess the relevant context:

The United States Constitution, as we have seen, vests the executive power in a President. The meaning of the power thus granted is, however, to be obtained from the powers subsequently specifically enumerated. These are:

1. The power to appoint all officers of the government except inferior officers, who, if so provided by law, may be appointed by their superiors or by the courts. This power, where not otherwise provided by law, is to be exercised with the approval of the Senate. No mention is made in the Constitution of any power of removal from office. All that is said with regard to the termination of office is contained in the provision with regard to impeachment, which is applicable to all civil officers, and that giving the judges a term of office during good behavior. The practice is, however, that the President has the power to remove arbitrarily almost all civil officers of the United States, not judges. This power has been recognized as belonging to the President as a part of the executive power granted to him.

Frank J. Goodnow, Principles of Constitutional Government 91 (1916).

 

Bamzai & Prakash, How to Think About the Removal Power, supra at 162 n.12 (emphasis added by Tillman).

 

Authors on both sides of this removal-related debate are citing Goodnow and his treatise (as good authority or, in order, to contradict the other side). Here Goodnow is taking the position that the President appoints “all officers,” except inferior officers of the United States. (emphasis added). But all know that the President does not appoint successor Presidents or any Vice Presidents. A fair inference from this extract from Goodnow is that the President and Vice President are not “officers of the United States”. 

 

My reading of Goodnow’s views is not exceptional. See, e.g., Frank J. Goodnow, The Principles of the Administrative Law of the United States 225 (Law Book Exch., Ltd., photo. reprint 2003) (1905) (“[T]he United States Supreme Court has held that no one can be an officer of the United States government unless he be appointed as the constitution provides, viz., by the President and Senate, the President alone, one of the United States courts, or the head of an executive department.” (emphasis added)); see also Bamzai & Prakash, How to Think About the Removal Power, supra at 162 n.13 (citing Goodnow’s 1905 treatise favourably).

 

In short, commentators, as well as courts and Executive Branch memoranda, for well over a century, have recognized that the President of the United States is not an officer of the United States.

 

Seth Barrett Tillman, ‘A Passing Thought on Katz-Rosenblum versus Bamzai-Prakash,’ New Reform Club (Dec. 22, 2024, 6:35 AM), <https://reformclub.blogspot.com/2024/12/a-passing-thought-on-katz-rosenblum.html>;

 

 

Tillman on Syria (from 2013)

 

Seth Barrett Tillman, ‘Responding to John McHugo’s Syria: Caught in a Trap,’ 64(2) History Today 66 (Feb. 2014), <http://ssrn.com/abstract=2312399> (posted on SSRN in 2013) (also available on EBSCOhost): 

Mr McHugo ends his article with: “During both periods [the Cold War and the Arab-Israeli conflict], many conspiracies were hatched against Syria. People often became paranoid in reaction to events.” (p.4)

If I were cheeky, I would point out that if “conspiracies” had—in fact—been “hatched” against Syria, then it makes little sense to call the Syrian people’s “reaction” “paranoid”. The people’s “reaction” should be described as “paranoid”, if and only if, there were no such “conspiracies”. Again, if I were cheeky, I would point out McHugo’s incoherence and leave it at that.

But I am not so cheeky.

Adopting the language of conspiracy without specifics of who and what, and when and where, simply means that one has given up substantive efforts to understand the world around him. And when a Western (would be) historian adopts the language of conspiracy in regard to the Middle East, it simply means that the Western historian has given up any effort to understand current events in favour of an oft-repeated and long-discredited narrative of certain less than wholesome elements of the so-called “Arab street” and the Ba’ath party. As Fouad Ajami explained:

The troubles and irresponsibility of the Ba’ath [Party] [in Syria] had played no mean part in the malady of the pre-1967 years. The Ba’athists had urged unity but had conspired against it after it materialized .... [Sami al-] Jundi’s account has the power of a genre of African fiction .... The theme is the bright nationalist vision ending in betrayal. The main characters begin as aspiring young men full of promise; they turn into tormentors and murderers who end up being tormented and murdered by others.

Fouad Ajami, The Arab Predicament 49–50 (1981). McHugo’s narrative has been put forward by those who realize that their present is a failure; that they do not understand their own past and how it shaped the present; and that seeks, in every instance, to deflect current and past failures onto others (preferably foreigners, Jews, and other disloyal—if not “traitorous”—domestic minorities). In the past, those who had adopted this narrative were almost exclusively party functionaries of the Ba’ath [Party] and other panegyrists for pan-Arabism. Why McHugo would promote this moribund narrative in the pages of History Today is a mystery. 

McHugo may genuinely believe the roots of this conflict “flow[]” (p.4) from the Cold War and the Arab-Israeli conflict. But those who are fighting in it, they think they are fighting for or against the Assad clan and Alawite oppression or are fighting under the banner of Islam in a Sunni-Shia (Alawite-Druze) sectarian civil war. See [Fouad] Ajami, [The] Arab Predicament 51 (1981) (“[N]o ideology will make the Alawites and Sunnis of Syria forget their primary loyalties.”). The Cold War and the Arab-Israeli conflict (and, for that matter, European colonialism) did not cause the current Syrian civil war; rather, the Cold War/Arab-Israeli conflict were a historical blip: a relatively peaceful intermission within the greater and long-running ethnic and sectarian conflict that is the Middle East.

Seth Barrett Tillman, ‘Tillman on Syria (from 2013),’ New Reform Club (Dec. 22, 2024, 1:52 AM), <https://reformclub.blogspot.com/2024/12/tillman-on-syria-from-2013.html>;