Mensch tracht, un Gott lacht

Friday, November 22, 2019

What the Democrats have Learned from their Failure in Connection with the Kavanaugh Hearings

This is what the Democrats have learned from their failure in connection with the Kavanaugh hearings. Don’t allege crimes which, if true, would leave physical evidence; rather, allege crimes which only exist in men’s hearts and minds. Should we go down that road, our next destination will be a world where men deny they have hearts and minds, and our final destination may be a world where that denial reflects the actual truth—a world where men have no hearts and minds at all.

Seth Barrett Tillman, What the Democrats have Learned from their Failure in Connection with the Kavanaugh Hearings, New Reform Club (Nov. 22, 2019, 11:03 AM), <>;

Tuesday, November 19, 2019

Today, I agree with Professor Akhil Amar ....

Akhil Reed Amar, On Impeaching Presidents, 28 Hofstra L. Rev. 291, 313 (1999) (emphasis added), <>: 

The explicit role of the Chief Justice has profound implications for the proper ethical relations between Senators and the President. Suppose a sudden illness were to require the Chief Justice to resign. Although the senior associate justice might presumably fill in temporarily, at some point a new Chief Justice would need to be installed, and Article II, Section 2 tells us how this would happen. The President would appoint, with the advice and consent of the Senate, a new Chief Justice. In other words, even in the middle of a trial, the judges and the judged might need to confer and collaborate to pick the permanent presiding officer. Stranger things have happened.

For the view that it is pellucidly clear that the senior associate justice may fill in during such circumstances, see Steve Lubet, Could Justice Thomas Substitute for Justice Roberts in an Impeachment Trial of President Trump?, The Faculty Lounge (Nov. 19, 2019, 9:15 AM), <>. And you must read the many interesting and helpful comments that follow. 

Can both of these views be correct? I dont see how. 


PS: For my views on this subject, see Josh Blackman & Seth Barrett Tillman, Could Justice Thomas Preside over President Trump’s Impeachment Trial?, Balkinization (Nov. 17, 2019, 1:10 PM), <>. 

Seth Barrett Tillman, Today, I agree with Professor Akhil Amar ...., New Reform Club (Nov. 19, 2019, 11:29 AM), <>. 

Monday, November 18, 2019

Could the President Recess Appoint Himself into the Chief Justice’s Position During his own Impeachment?

You ask: Could the President recess appoint himself into the chief justice’s position during his own impeachment? Your query raises the same subject as:
[a] May the Speaker preside when debate on the House floor involves investigating, censuring, disciplining, and/or expelling the Speaker?; and,
[b] May the Vice President preside when debate on the Senate floor involves investigating, censuring, disciplining, and/or impeaching the Vice President.

These situations are sometimes put forward as examples of defects in our Constitution, but this critique fails. In each of these situations, the relevant house would just go into the committee of the whole, and that would displace the presiding officer, which would resolve the conflict at issue. The committee will report back to the full House or Senate. If the committee had a majority supporting the imposition of some punishment, then the same majority can act when the committee reports to the full house. If two-thirds were necessary to take action, the same scenario would apply. If a two-thirds majority were available in the committee of the whole, then that same two-thirds majority can act when the committee reports back to the full house. At that stage, where the merits had been fully determined in the committee, it would not matter who was the presiding officer or if he were conflicted.

The only defect would be if the original motion to put the proceedings into the committee of the whole led to an evenly divided House or Senate. I am not going to lose any sleep in regard to that potential minuscule problem. Let’s get real here. Consider the scenario involving an impeachment of the Vice President before the Senate. It is very unlikely that a Vice President will be impeached; it is also unlikely that an impeached Vice President will attempt to preside; and it is also unlikely that an impeached Vice President, prior to trial in the Senate, but who demands to preside in the Senate, will have the benefit of an evenly divided Senate.

Seth Barrett Tillman, Could the President Recess Appoint Himself into the Chief Justice’s Position During his own Impeachment?, New Reform Club (Nov. 18, 2019, 8:01 AM), <>; 

Friday, November 15, 2019

The Old School

“The judge is an arbiter, not an inquisitor. He must not run a line of his own. He has no battle to fight. He must not, as the appeal court has several times said, descend into the arena. He is a referee and not a player, but not a mere referee. In relation to the facts of the case as distinct from the law, his power resembles that of a constitutional monarch of the Victorian age. He can ask any question he likes when he likes or he can keep silent until he has to sum up. Complete silence is, however, no more the mark of a good judge than is loquacity. By the discreet use of his power he softens the rigidities of the adversarial process. He can, and often does, ask the question which neither side dares to ask; or the question which one side is not allowed to ask and the other side does not want answered.”

Quoting from: Patrick Devlin, Easing the Passing: The Trial of Dr John Bodkin Adams (2nd edn., 1986) 74. 

Seth Barrett Tillman, The Old School, New Reform Club (Nov. 15, 2019, 7:38 AM), <>; 

Wednesday, November 06, 2019

The Moral History of the American Revolution

OK, I've gotta have this one. AND SO DO YOU. See below.

America's Revolutionary Mind is the first major reinterpretation of the American Revolution since the publication of Bernard Bailyn's The Ideological Origins of the American Revolution and Gordon S. Wood's The Creation of the American Republic. 

The purpose of this book is twofold: first, to elucidate the logic, principles, and significance of the Declaration of Independence as the embodiment of the American mind; and, second, to shed light on what John Adams once called the "real American Revolution"; that is, the moral revolution that occurred in the minds of the people in the fifteen years before 1776.
The Declaration is used here as an ideological road map by which to chart the intellectual and moral terrain traveled by American Revolutionaries as they searched for new moral principles to deal with the changed political circumstances of the 1760s and early 1770s. This volume identifies and analyzes the modes of reasoning, the patterns of thought, and the new moral and political principles that served American Revolutionaries first in their intellectual battle with Great Britain before 1776 and then in their attempt to create new Revolutionary societies after 1776.

The book reconstructs what amounts to a near-unified system of thought—what Thomas Jefferson called an “American mind” or what I call “America’s Revolutionary mind.” This American mind was, I argue, united in its fealty to a common philosophy that was expressed in the Declaration and launched with the words, “We hold these truths to be self-evident.”


And from Robert Bidinotto in his own words: I edited this book in manuscript, and let me tell you: It’s THE book our country needs right now, to counter the anti-American narratives that have been poisoning generations. THIS is the rationale for, and defense of, America that we have all been waiting for — and that we so desperately need in our time. If you are upset with how the history, principles, and Founders of America have been vilified and vandalized, then you absolutely, positively must get “AMERICA’S REVOLUTIONARY MIND” by Clemson historian C Bradley Thompson. I am thrilled to have helped edit this magnificent examination of America’s founding, revealed through Prof. Thompson’s deep and eloquent exploration of the ideas of the Declaration of Independence — as they were debated and championed by the people of that era. It is a rich work that will enrich your mind and spirit. Buy it today — and spread the word.

Order here:

A Letter to SSRN

Today is November 6, 2019 and the monthly rankings have not been reported. There is no legal holiday or weekend interrupting the flow of regular work.

When will the November 1, 2019 rankings be reported?

Last month, the rankings were significantly delayed AND the numbers were reported as of the 6th of the month, rather than the 1st. Is this going to be the new norm? Rankings are just a counting (rather than analytic) exercise. Why is this so difficult?


Seth Barrett Tillman, A Letter to SSRN, New Reform Club (Nov. 6, 2019, 12:11 AM), <>.