Tradition is not the worship of ashes, but the preservation of fire.—Gustav Mahler

Sunday, December 29, 2024

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

Thursday, December 26, 2024

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>;

Tuesday, December 24, 2024

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 Im saying is that he [Attorney General Mukasey] has written no article that I know of in which he elaborates all this. I know where its 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>; 

Monday, December 23, 2024

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 Trumps 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 categoryall 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 appointmentand 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>;


Sunday, December 22, 2024

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, [TheArab 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>;


Sunday, December 15, 2024

“Deep-State Shenanigans”

 

Bill Kristol Interviewing Professor Jack Goldsmith, ‘Conversations with Bill Kristol,’ Youtube (Dec. 13, 2024), <https://www.youtube.com/watch?v=cepel3piwdE> (at 27:10ff):

 

Professor Jack Goldsmith: 

 

[B]ut it’s normal for Trump, and let me just say part of what Trump is about is to just blow up all these norms [which] he just thinks … he thinks or talks acts as if he thinks, that they are just illegitimate, that they are corrupt, that the justice department is under the control of the Deep State or Democrats or some combination of both, and you know there were some Deep-State shenanigans against him in his first term, so and I get it, but this [?] is all completely out of the ordinary. [For us?] We unfortunately: it is about to become ordinary …. (emphasis added)

Tillman asking: I genuinely wonder how Goldsmith thinks Trump-47 should lawfully, reasonably, and proportionately respond to the Deep-State shenanigans” about which he (Goldsmith) speaks. What precisely does Goldsmith think Trump-47 should do? And, if he (Goldsmith) cannot tell us, why complain that Trump-47’s conduct is “out of the ordinary”? 


Bill Kristol never followed with any sort of probing questions in regard to “Deep-State shenanigans.”


And when Goldsmith asserts that “this” is all completely out of the ordinary ... what precisely does Goldsmiths use of “this” refer to? 

Seth

Seth Barrett Tillman, Deep-State Shenanigans,New Reform Club (Dec. 15, 2024, 7:37 AM), <https://reformclub.blogspot.com/2024/12/never-followed-up-with-any-sort-of.html>;

See also: Seth Barrett Tillman, ‘Bob Bauer’s Free Speech Problem and Ours,’ New Reform Club (July 23, 2017, 10:36 AM), <http://tinyurl.com/y7ahouep>;

Judge Wynn’s Resignation

 

In January 2024, Judge James Andrew Wynn, Jr (4th Circuit) decided to take senior status. The Biden administration nominated Ryan Young Park, the Solicitor General of North Carolina, to succeed Wynn. A few days ago, the Biden administration withdrew the Park nomination. Now, about a month before the start of the new administration, Judge Wynn has rescinded his decision to step down from active status.

 

In 2020, the Fourth Circuit ruled against Trump-45 in an en banc proceeding in one of the Emoluments Clauses cases. See In re Donald J. Trump (DC & MD v. Trump), No. 18-2486, 958 F.3d 274 (4th Cir. May 14, 2020) (en banc) (denying mandamus relief in a 9-to-6 decision) (official capacity), Dkt. No. 100, 2020 WL 2485573, 2020 WL 2479139, <https://assets.documentcloud.org/documents/6890090/Trump-Emoluments-ca4-2020-05-14.pdf>, <https://www.ca4.uscourts.gov/opinions/182486A.P.pdf>. Judge Wynn filed a concurrence. See id. at 289. In that concurrence, Judge Wynn wrote:

 

Without a doubt, a lawsuit brought by the State of Maryland and the District of Columbia against the President of the United States catches attention outside the walls of the courthouse. How then should the Court avoid the appearance of partiality when there are eyes upon it? By applying the law and abstaining from grandiose screeds about partisan motives. Or, put another way—by doing its job. And that is exactly what the excellent majority opinion does.

But to the contrary, our dissenting colleague insinuates that “something other than law [is] afoot” here. First dissent at 308–09 (Wilkinson, J.). 

 

Id. (emphasis in the original). 


I don’t doubt Judge Wynn’s fine sentiments from his concurrence. I do not doubt that back in 2020, he sincerely believed what he had written. It is now 2024. And, in the future, I do not see how Wynn’s colleagues or the wider public would see his (again) stating such views in quite the same favourable light. If his having taken senior status was “doing [his] job,” then why has he rescinded? Should not his colleagues and the public see “partisan motives” on this occasion? Or, perhaps, Wynn recently suffered from a bout of unexpected good health and longevity?

 

Seth Barrett Tillman, ‘Judge Wynn’s Resignation,’ New Reform Club (Dec. 15, 2024, 3:05 AM), <https://reformclub.blogspot.com/2024/12/judge-wynns-resignation.html>; 

See generally Josh Blackman, ‘“Brazenly Partisan” Judge Wynn Withdraws Senior Status Because Trump,’ Reason–Volokh Conspiracy (Dec. 15, 2024, 4:40 PM), <https://reason.com/volokh/2024/12/15/brazenly-partisan-judge-wynn-withdraws-senior-status-because-trump/>; 


Note: I filed several amicus briefs in In re Donald Trump. See, e.g., Amicus Brief of Scholar Seth Barrett Tillman and the Judicial Education Project in Support of Respondent-Defendant, In re Donald J. Trump, President of the United States, in his official capacity, App. No. 18-2486 (4th Cir. Oct. 21, 2019) (en banc proceedings) (filed by Josh Blackman et al.), <https://ssrn.com/abstract=3450000> (refiling, per en banc court’s order, the Tillman and the Judicial Education Project’s brief we had previously sent to the original 3-judge circuit panel); Amicus Brief of Scholar Seth Barrett Tillman and the Judicial Education Project in Support of Petitioner, In re Donald J. Trump, in his official capacity, App. No. 18-2486 (4th Cir. Jan. 29, 2019) (filed by Josh Blackman et al.), ECF No. 28-1, 2019 WL 366219, <https://ssrn.com/abstract=3314703>.  

A Work-in-Progress: Select Bibliography of Court filings and Other Sources Regarding 2025 and post-2025 Litigation Involving the Foreign and Domestic (Presidential) Emoluments Clauses Cases



On January 23, 2017, during the first days of Trump-45, plaintiffs brought litigation against then-President Trump involving the Foreign and Domestic (Presidential) Emoluments Clause. See CREW v. Trump (S.D.N.Y.) (Abrams, J., subsequently Daniels, J.). In June 2017, two further, similar lawsuits were brought: DC & MD v. Trump (D. Md.) (Messitte, J.) and Blumenthal v. Trump (D.D.C.) (Sullivan, J.).

 

There has been chatter on social media suggesting that one or more players from those earlier cases will bring new (or renewed) litigation involving the same sort of claims and legal arguments. I could add information involving these newly, yet-to-be-filed cases to my older blog post. See Seth Barrett Tillman, A Work in Progress: Select Bibliography of Court filings and Other Sources Regarding the Foreign and Domestic Emoluments Clauses Cases, New Reform Club (Feb. 28, 2018, 8:59 AM), <https://reformclub.blogspot.com/2018/02/a-work-in-progress-select-bibliography.html>, <https://tinyurl.com/ybg5dg6u>.





 

My former blog post is long. Adding to it might be less than readable. Instead, I will start a new blog post here tracking filings in the newly, yet-to-be-filed cases. I expect something similar may be done on LawfareJust Security, Constitutional Accountability Center, and, perhaps, on a newly reactivated Take Care Blog. I am a lone blogger—so, it may be the consummate professionals at these other fora will be more quick to update their sites and also have more complete listings. My guess, based on past experience, is that their websites and blogs will lack good active links and substantial efforts at presenting complete citations with all available bibliographic information for a proper Blue Book citation. 


Feel free to send me material to add to this blog post as litigation proceeds to develop. See generally George Santayana (1905) (“Those who cannot remember the past are condemned to repeat it.”). 


Blog and Substack Posts

Bob Bauer, ‘Why It Matters That a President Declines His Salary,’ Executive Functions (Dec. 23, 2024), <https://executivefunctions.substack.com/p/why-it-matters-that-a-president-declines>; 



Seth Barrett Tillman, A Work-in-Progress: Select Bibliography of Court filings and Other Sources Regarding 2025 and post-2025 Litigation Involving the Foreign and Domestic (Presidential) Emoluments Clauses Cases,’ New Reform Club (Dec. 15, 2024, 1:49 AM), <https://reformclub.blogspot.com/2024/12/a-work-in-progress-select-bibliography.html>;


See also Seth Barrett Tillman, A Work in Progress: Select Bibliography of Court filings and Other Sources Regarding the Foreign and Domestic Emoluments Clauses Cases, New Reform Club (Feb. 28, 2018, 8:59 AM), <https://reformclub.blogspot.com/2018/02/a-work-in-progress-select-bibliography.html>, <https://tinyurl.com/ybg5dg6u>; 


Saturday, December 14, 2024

Saturday, December 07, 2024

Trump-47 and the Future of the Federal Judiciary (UPDATED)

 

As things now stand, it looks like Trump-47 will start his administration with some 38 federal judicial vacancies. This assumes that all of Biden’s current, pending nominees are seated before January 20, 2025If all 7 of these Biden nominees to federal judicial posts fail to secure Senate advice and consent in the days ahead, then those positions will likely be filled by Trump-47. If none of these Biden nominees secure Senate advice and consent, and there are no efforts to retract or rescind resignations, then it is likely that Trump-47 will have 45 federal judicial positions to fill at the start of his administration. As things now stand, January 3, 2025, it now appears that Trump-47 will have an opportunity to fill both the 38 and the 7 yet-unfilled federal judicial positions. (All 45 of these positions are Article III posts, as opposed to Article I and Article IV posts, and 4 or the 45 posts are federal circuit court of appeals posts.)

Some of these 45 judges might retract or rescind: their resignations, their intent to resign, or their decision to take senior status. In fact, since the election, apparently three Article III judges have already retracted their decision to take senior status. E.g., Judge Wynn (4th Cir).

It is also likely that any number of sitting federal judges will resign or take senior status in the days, weeks, and months ahead: that follow January 3, 2025, when the Senate flips to the Republicans, and that follow January 20, 2025, when the Biden administration ends. It is difficult to say how many judges will do so. Under the assumption that all or nearly all* Trump-45 federal judicial appointees remain in office, should Trump-47 appoint as many federal judges as Trump-45 appointed, and that is possible,** Trump will end his (second) presidential term having appointed more than half the federal judiciary, and also, possibly, more than half of the U.S. Supreme Court. 

 

Eight years will do that. And then there is Vance.


See <https://www.uscourts.gov/judges-judgeships/judicial-vacancies/current-judicial-vacancies>, and, <https://www.uscourts.gov/judges-judgeships/judicial-vacancies/future-judicial-vacancies>. See generally List of federal judges appointed by Joe Biden, Wikipedia, <https://en.wikipedia.org/wiki/List_of_federal_judges_appointed_by_Joe_Biden>.

 

Seth Barrett Tillman, ‘Trump-47 and the Future of the Federal Judiciary (UPDATED),’ New Reform Club (Dec. 7, 2024, 3:09 PM, UPDATED Jan. 3, 2025 (Irish Time)), <https://reformclub.blogspot.com/2024/12/trump-47-and-future-of-federal-judiciary.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 Jan. 3, 2025 (Irish Time)), <https://reformclub.blogspot.com/2024/11/trump-45-v-biden-federal-judicial.html>; 


*One Trump-45 judicial appointee has already left judicial service. IE. Michael J. Juneau, former United States District Judge for the Western District of Louisiana.

**It is possible, in part, because during the 119th Senate, the Senate will have a Republican majority. Whether the 120th Senate will have a Republican majority is a different matter.

Sunday, December 01, 2024

In Remembrance of P.J. O’Rourke: Let’s Make a List


Which, if any or all, of these things (most) helped to elect Trump?

  • Mainstream / legacy media
  • Media’s normalization of foreign! gangs’ committing crimes in the U.S.
  • Media’s normalization of Biden’s continuing presidency until January 20, 2025, although he was not well enough to run for a second term as President
  • Media’s characterization of (every) political disagreement as a crisis
  • Media’s characterization of every crisis” as an “existential crisis
  • Media’s characterizing every person who disagrees about the scope of a purported “existential crisis,” or how it is best addressed, as a denier
  • Academia
  • Legal academia
  • Citizens for Responsibility and Ethics in Washington (CREW)
  • Constitutional Accountability Center and other CREW wannabes
  • Universities’ adopting partisan political positions
  • Universities’ failing to protect traditional expressive and association rights
  • Civil rights & civil liberties organizations’ failing: to support those holding minority political opinions and to support minorities’ traditional expressive and association rights
  • Criminal Defense bar’s sudden lack of interest in the U.S. Constitution’s Sixth Amendment (as incorporated against the States), jury unanimity rights, and Apprendi and its progeny
  • Never Trump Republicans
  • Cheney-the-Elder & Cheney-the-Younger
  • Take Care Blog
  • Lawfare Blog
  • Russia Collusion Hoax/Mueller investigation
  • Foreign Emoluments Clause & Domestic (Presidential) Emoluments Clause cases
  • Ukraine telephone call impeachment
  • January-6-events impeachment
  • Special Counsel Jack Smith
  • New York Attorney General Letitia James (ADDED)
  • New York (Manhattan) District Attorney Alvin Bragg
  • Georgia (Fulton County) District Attorney Fani Willis
  • Section-3 ballot-access cases
  • Professional commentariat: e.g., former U.S. prosecutors and former judges—state and federal
  • Professional commentariats’ endless predictions which failed to materialize
  • Swatting political opponents
  • Stealing opponents’ political posters and otherwise defacing and destroying private property to advance political causes
  • Defacing and destroying public property and museum exhibits to advance political causes
  • Endorsements from actors and musicians
  • Debanking clients based on political association and speech
  • Regulators’ encouraging banks to debank clients based on: political association, political speech, and/or policy goals unrelated to the agency’s stated mission
  • Killing Peanut (the squirrel) and killing Fred (the raccoon)
  • And, those who sought to normalize any or all of the above

And post-election confirmation—explaining election losses by way of racism, misogyny, and low-information voters.

And will ANY of them take ANY responsibility for their “success”?

Honorable mentions:

  • Those who endlessly parroted: “The walls are closing in”
  • Podcasts and podcasters boldly and confidently predicting a Harris-Walz win (ADDED)
  • All those entertainers who threatened to emigrate should Trump win the election
  • All those entertainers who threatened to emigrate should Trump win the election, but (unexpectedly) have remained in the United States
  • Those pollsters and party operatives who depended on the Taylor Swift vote
  • Michael Avenatti and those who promoted and praised him
  • Michael Cohen and those who promoted and praised him
  • Hunter Biden laptop story and the response of the media, current and former intelligence agency heads, and other so-called “experts,” including academics and former prosecutors on blogs, on other social media, and those writing opinion editorials
  • Bar organizations which and judges!! who sought to control attorneys non-professional and other out-of-court activities and speech
  • Pollsters and other “experts” who, pre-election, expressed confidence (if not near certitude) of a Harris-Walz national popular vote victory!!! and/or electoral vote landslide!!!!
  • Pollsters and other “experts” who, pre-election, expressed confidence (if not near certitude) of Harris-Walzs prevailing in Iowa!!!!!
  • Nobel Peace Prize selection committee
  • Foreign political leaders who injected themselves into the U.S. political process
  • Those who sought to normalize foreign political leaders’ injecting themselves into the U.S. political process
  • And, those who sought to normalize any or all of the above


Seth Barrett Tillman, In Remembrance of P.J. O’Rourke: Let’s Make a List,’ New Reform Club (Dec. 1, 2024, 2:34 AM), <https://reformclub.blogspot.com/2024/12/in-remembrance-of-pj-orourke-lets-make.html>; 

See also: Seth Barrett Tillman, Who Was On The Remain Side?, New Reform Club (Jan. 18, 2019, 7:32 AM), <https://reformclub.blogspot.com/2019/01/who-was-on-remain-side.html>; 

See also: Emperor Tiberius to Caligula: “You and I will draw up a list during dinner. A long list.” Robert Graves’ “I, Claudius” (1934);