Seth Barrett Tillman, ‘In My Inbox Today,’ New Reform Club (July 6, 2022, 1:27 PM), <https://reformclub.blogspot.com/2022/07/in-my-inbox-today.html>;
Seth Barrett Tillman, ‘In My Inbox Today,’ New Reform Club (July 6, 2022, 1:27 PM), <https://reformclub.blogspot.com/2022/07/in-my-inbox-today.html>;
Seth Barrett Tillman, Associate Professor
Maynooth University School of Law and Criminology
Scoil an Dlí agus na Coireolaíochta Ollscoil Mhá Nuad
(academic title & affiliation for identification purposes only)
The New York Times
Re: Peter Baker, ‘New Insights Into Trump’s State of Mind on Jan. 6 Chip Away at Doubts,’ New York Times (July 3, 2022), <https://www.nytimes.com/2022/07/03/us/politics/new-insights-into-trumps-state-of-mind-on-jan-6-chip-away-at-doubts.html>.
In Baker’s article, he quoted attorney Josh Matz and proceeded to describe Matz as “as a lawyer for House Democrats during both of Mr. Trump’s impeachment trials in the Senate.” That was all true. But it leaves out something significant: Matz is currently one of the attorneys of record for E Jean Carroll, a plaintiff, who is suing Trump in a federal district court in New York. See Court Listener <https://www.courtlistener.com/docket/18418220/carroll-v-trump/> (Dkt. No. 60). Given that Matz is on the opposite side from Trump in ongoing litigation, I suggest he is not well positioned to give a wholly unbiased judgment in relation to Trump. If Matz disclosed his current connection to Carroll v Trump to Baker, then I suggest Baker should have reported it. And if Matz—inadvertently—failed to disclose this to Baker, then perhaps the thing to do is for the New York Times to issue a suitable correction. See, e.g., Josh Matz, ‘Foreign Emoluments, Alexander Hamilton & A Twitter Kerfuffle,’ Take Care Blog (July 12, 2017), <https://takecareblog.com/blog/foreign-emoluments-alexander-hamilton-and-a-twitter-kerfuffle> (“To be sure, there’s always a fine balance to be struck between scholarly nuance and word limits, especially in op-eds and works of legal advocacy. Many capable lawyers and legal scholars fail, at times, to ....”).
Seth Barrett Tillman
Seth Barrett Tillman, ‘Characterizing Sources At The New York Times,’ New Reform Club (July 5, 2022, 9:38 AM), <https://reformclub.blogspot.com/2022/07/characterizing-sources-at-new-york-times.html>;
Seth Barrett Tillman, ‘The Decline of English,’ New Reform Club (July 1, 2022, 7:30 AM), <https://reformclub.blogspot.com/2022/07/the-decline-of-english.html>;
Seth Barrett Tillman, ‘Perjury at Senate Confirmation Hearings?,’ New Reform Club (June 28, 2022, 1:16 AM), <https://reformclub.blogspot.com/2022/06/perjury-at-senate-confirmation-hearings.html>;
Seth Barrett Tillman, 'Seeing the Big Picture,' New Reform Club (June 27, 2022, 7:40 AM), <https://reformclub.blogspot.com/2022/06/seeing-big-picture.html>;
1. Professor Simon Schama: “It so happens all 5 justices voting to overturn Roe are devout Catholics.” (bold added) Gorsuch was raised Catholic, but it is not clear that he currently identifies as Catholic. Gallup recently identified Gorsuch as a Protestant. See Frank Newport, ‘The Religion of the Supreme Court Justices,’ Gallup (Apr. 8, 2022), <https://tinyurl.com/2p9fj9re> (“[Judge] Jackson, who was confirmed by the Senate on Thursday, will be only the second Protestant on the high court when she joins the [Supreme] [C]ourt this summer, along with Neil Gorsuch (who is Episcopalian but was raised Catholic).”).
2. Schama: “It so happens all 5 justices voting to overturn Roe are devout Catholics.” (bold added) What is the evidence that each of the 5 are “devout” Catholics? What did Schama mean by this claim? It cannot be that they attend a Catholic church—because Gorsuch (reportedly) attends an Episcopal church. See Alison Durkee, ‘What religion is Neil Gorsuch,’ Mic (Apr. 7, 2017), <https://nc.mic.com/articles/173527/what-religion-is-neil-gorsuch> (Gorsuch “has been attending Episcopal services for the past 15 or so years.”). Even if Schama had a particularly meaning in mind for “devout,” he cannot possibly believe that his readers had a common, settled, or unified understanding of what he intended by that word. So why would a respected historian use such a loaded and ambiguous term?
3. Schama: “No wonder [the] Union of Conservative Rabbis issued an outraged denunciation.” (bold added) There is no organization with the name: “Union of Conservative Rabbis.” There is an organization called the Rabbinical Assembly, which can be characterized in many ways, including, as a union of Conservative rabbis. If Schama thinks the Rabbinical Assembly’s view is important, then why not use its actual name? Is it really that he has no genuine idea—at all—what Jewish organization he is referring to, and he is merely co-opting the Jews most conveniently at hand in order to show that some Jews take exception to what some Catholics (and others) have done?
4. Schama: “It so happens all 5 justices voting to overturn Roe are devout Catholics, two Jesuit-educated. No wonder [the] Union of Conservative Rabbis issued an outraged denunciation.” (bold added) Schama does not link to the Rabbinical Assembly’s response to Dobbs. So we cannot evaluate whether it was a mere disagreement, or a strongly worded but otherwise fair-minded “denunciation,” or an “outraged denunciation.”
That said, even without reading the Rabbinical Assembly’s response, and contra Schama, it would be a “wonder” if the Rabbinical Assembly’s objection were related to the fact that the 5 Justices in the Dobbs majority held a particular religious persuasion, Catholic or otherwise, or that some or all of the 5 Justices were educated in institutions connected to other religions, or that some or all of them were “devout,” whatever that might mean. If that were the basis for the Rabbinical Assembly’s objection, it would not be a “wonder.” Rather, it would be an American tragedy, and an invitation to ramp up sectarianism and religious communalism of the sort that the United States has avoided throughout the largest part of its history.
Schama’s writing illustrates the ancient adage:
—Whom the gods would destroy they first make mad.
Seth Barrett Tillman, ‘Fisking Professor Simon Schama, Columbia University, Department of History,’ New Reform Club (June 26, 2022, 3:56 PM), <https://reformclub.blogspot.com/2022/06/fisking-professor-simon-schama-columbia.html>;
Schama’s Tweet: <https://twitter.com/simon_schama/status/1540655363095248897>;
Most Orwellian tweet of the day!—by a self-described “Reporter”
Seth Barrett Tillman, ‘Most Orwellian Tweet of the Day!—by a self-described “Reporter”,’ New Reform Club (June 19, 2022, 6:44 AM), <https://reformclub.blogspot.com/2022/06/most-orwellian-tweet-of-day.html>;
Here are a few short questions for those supporting new restrictive gun control laws.
If a state passes legislation limiting now extant gun-ownership rights, and that state includes one or more native American Indian reservations where a majority of the registered members remain attached to their traditional gun-ownership rights and they refuse to comply with the new laws ….
Do you advocate sending in the U.S. Marshal to make arrests and to seize their guns?
If the U.S. Marshal and his deputies (and posse) are insufficient to overcome resistance by our nation’s indigenous inhabitants, do you advocate sending in the U.S. National Guard or the regular U.S. military? And if your answer is “no,” then what happens to equality under the law?
By the way, would you like to volunteer for that mission?
Seth Barrett Tillman, ‘A Few Short Questions About Gun Control,’ New Reform Club (June 1, 2022, 14:18 PM), <https://reformclub.blogspot.com/2022/06/a-short-question-about-gun-control.html>;
re: Joan Biskupic, 'Supreme Court leak investigation heats up as clerks are asked for phone records in unprecedented move,' CNN (May 31, 2022, 12:37 GMT)
Should you not inquire (and report) if the investigators are also investigating non-law-clerk Supreme Court personnel in a similar fashion?*
Should you not inquire (and report) if the investigators are also investigating all nine Supreme Court Justices in a similar fashion? You might ask each individual Justice if he or she authorized the leak, or if he or she knows the identity of the leaker. It is up to you to ask.
See also: Seth Barrett Tillman, 'Courthouse Security Checks,' New Reform Club (Aug. 7, 2016, 7:33 AM), <https://reformclub.blogspot.com/2016/08/my-personal-brexit-courthouse-security.html>;
PS: To be sure, I do not think we can rule out the possibility that the leak was from someone other than a law clerk--and, perhaps, by a person who is not Supreme Court staff at all. Furthermore, I do not think we can rule out the possibility that the leak (whoever did it) was authorized by a Justice.
Seth Barrett Tillman, 'Query for CNN's Joan Biskupic,' New Reform Club (May 31, 2022, 11:30 AM), <https://reformclub.blogspot.com/2022/05/query-for-cnns-joan-biskupic.html>;
Biskupic wrote: "It is not known if court officials are asking employees who are part of the permanent staff, beyond the one-year law clerks, for their phone records." Seth's response: You might know if you ask.
Some years ago, I picked up my mother at an airport in Pennsylvania (or maybe it was DC). We drove through north NJ to get to our Passover destination—my in-laws’ home. I was driving on back roads, and not on any interstate highway. I had not discussed, in advance, with my mother the route I was taking.
At one point, my mother—who grew up as a child in NJ—pointed to a house in the distance, and she said that was the house in which your cousin was killed by his wife. I was well over 40 years old at this time. I had never heard that I had had a cousin who had been killed or murdered.
To this day, I don’t know quite what to make of the story. What parts (if any) were true? Even if I had a cousin who had been killed by his wife, how would my mother recollect the particular house while I was traveling in excess of 40 miles per hour?
Seth Barrett Tillman, 'True Story,' New Reform Club (May 29, 2022, 12:24 PM), <https://reformclub.blogspot.com/2022/05/true-story.html>;
A Short Note on
Cawthorn v. Amalfi, No. 22-1251, 2022 WL 1635116, --- F. 4th ----
(4th Cir. May 24, 2022), Doc. No. 113
Circuit Judge Julius N. Richardson wrote a separate opinion, concurring in the appellate panel’s judgment. His opinion states in a footnote:
While Andrew Johnson’s pardon of [Jefferson] Davis eventually mooted the case, Chief Justice Chase went on the record anyway. He agreed with the defendant’s argument that § 3 [of the Fourteenth Amendment] was a punishment and that “it executes itself.” In re [Jefferson] Davis, 7 F. Cas. 63, 90 (C.C.D. Va. 1871).
Cawthorn, slip op. 40, 60 n.16 (Richardson, J., concurring). Judge Richardson’s restatement of the facts of In re Davis is not quite correct. The “it executes itself” language appears in In re Davis, but it was not Chief Justice Chase who made the ‘it executes itself” statement. Rather (Judge) Robert Ould made this statement.[fn1] (Apparently, Ould, himself a former confederate, was an attorney for the defendant!)
Why is this apparently minor error in Cawthorn important?
In 1869, in Griffin’s Case, 11 F. Cas. 7, 26 (C.C.D. Va. 1869) (No. 5,815), Chief Justice Chase explained that Section 3 of the Fourteenth Amendment was not self-executing. Rather, Section 3 required a congressional statutory enforcement scheme to put that provision into effect. In re Davis was also by Chief Justice Chase—that is, Chase presided over the court and Judge Underwood also sat on the two-judge panel. If Chase had stated that Section 3 was self-executing in In re Davis, then his two positions, in the two cases, decided within about two years of one another, were (arguably) in tension with one another—all without any reported explanation. Indeed, Judge Richardson, in his concurrence, draws just that very inference: “These contradictory [!] holdings, just a few years apart, draw both cases into question and make it hard to trust Chase’s interpretation.” Cawthorn, slip op. at 60 n.16 (Richardson, J., concurring). However, the error here is Judge Richardson’s (and, perhaps, others[fn2]), not Chase’s.
Griffin’s Case is good persuasive authority. Prior to 2021 that was widely, if not universally, recognized. To put it another way, if Griffin’s Case was correctly decided, then state and federal executive branch officers (and other applicants in ballot contests) cannot rely on Section 3 of the Fourteenth Amendment to disqualify an alleged insurrectionist candidate from the ballot for a federal position[fn3] absent federal statutory authorization. Apparently, no such federal statutory authorization (now) exists. Likewise, if an alleged insurrectionist already holds a federal office, then federal executive branch officers cannot remove the person from office (e.g., in quo warranto proceedings) based on Section 3 absent federal statutory authorization to do so.
Furthermore, if Griffin’s Case is good law or correctly states the law, then the Cawthorn plaintiffs lack a cause of action, as do other similarly situated plaintiffs in other Section 3 cases. If the plaintiffs lack any valid or cognizable cause of action, then the federal courts lack jurisdiction to hear the case. In those circumstances, jurisdiction should have been discussed prior to any discussion of Cawthorn’s Amnesty Act defense (and the plaintiffs’ responses to that defense), and the entire case should have been dismissed for lack of jurisdiction. So Judge Richardson’s footnote was not gratuitous; rather, it was a necessity: it was needed to obviate the arguably obvious jurisdictional flaw—i.e., Section 3 is not “self-executing.”
Finally, in the same footnote, Judge Richardson states: “Between the shifting legal conclusions, [Chief Justice] Chase’s pragmatic political concerns, and the obvious conflicts of interest, I do not take his discussion as much evidence of broader contemporary understanding [of Section 3 of the Fourteenth Amendment].” Cawthorn, slip op. at 60 n.16 (Richardson, J., concurring) (emphasis added). Richardson’s concurrence supplies no information what those purported “conflicts of interest” were, or how they were “obvious.” Why do this?
 See In re Davis, 7 F. Cas. 63, 90 (“Judge Ould then commenced the argument . . . .” (emphasis added)); id. at 91 (“When Judge Ould concluded . . . .” (emphasis added)). The “it executes itself” language appears between the two quotations listed here. Ould was acting as counsel in Davis.
 See, e.g., Gerard N. Magliocca, Amnesty and Section Three of the Fourteenth Amendment, 36 Const. Comm. 87, 88 (2021) (“Jefferson Davis contended in 1868 that Section Three was self-executing and barred his treason prosecution, and Chief Justice Salmon P. Chase agreed with those arguments as a circuit judge presiding over the proceedings in Virginia.” (emphasis added)), <https://conservancy.umn.edu/handle/11299/221946>. Professor Magliocca cites to page 102 of the Federal Cases report of In re Davis, but I see nothing at that page establishing that Chase adopted the position that the Fourteenth Amendment was self-executing. Perhaps, at some future juncture, Magliocca will clarify the specific language in In re Davis that he was referring to? See Magliocca, supra, at 88 n.8 (citing In re Davis, 7 F. Cas. at 102).
 Where the position is a state position, different legal principles (beyond this scope of this blog post) come into play. President, Vice President, Representative, and Senator—all are federal positions, even if elected in state or intra-state elections.
Seth Barrett Tillman, ‘A Short Note on Cawthorn v Amalfi,’ New Reform Club (May 25, 2022, 5:38 AM), <https://reformclub.blogspot.com/2022/05/a-short-note-on-cawthorn-v-amalfi.html>;
See also Josh Blackman and S. B. Tillman, Opinion Editorial, ‘Only the Feds Could Disqualify Madison Cawthorn and Marjorie Taylor Greene,’ The New York Times, Apr. 23, 2022, A22, <https://www.nytimes.com/2022/04/20/opinion/madison-cawthorn-marjorie-taylor-green-section-3.html?searchResultPosition=1>, <https://tinyurl.com/59s8c6er>, <http://ssrn.com/abstract=4086516>.