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His Day in Court

"If men were angels, no government would be necessary," James Madison argued in Federalist 51. But he went on to say, "If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions." These words were written to argue for a system of checks and balances in our Constitution, but they have some relevance to the controversy over Alabama Republican candidate for U.S. Senate, Roy Moore.

The people of Alabama may well choose Moore as their senator, despite continuing allegations that Moore engaged in predatory behavior toward young girls when he worked as an attorney in Gadsen, Ala., and, in two instances, may have sexually assaulted underage girls. Moore's supporters disbelieve the women who have come forward and blame the media and so-called establishment Republicans for a witch hunt.  Moore's wife has spread false rumors that the accusers were paid to tell their stories, and others have defended Moore's actions by comparing the then 30-something attorney to the Biblical Joseph and his betrothed Mary, the mother of Jesus Christ. That devout Christians are not sickened by such comparisons speaks worlds about the state of our politics today.

If Roy Moore were a decent man, he would step aside.  But I said the same thing about Bill Clinton in 1998, when the Monica Lewinsky scandal broke, and we all know what happened.  Instead of doing the manly thing, Clinton clung to power and put the nation through the spectacle of semen-stained dresses and "It depends on what the meaning of 'is' is."  Clinton's defenders were liberals, including feminists who saw nothing wrong in a 51-year old commander in chief engaging in sex acts with a 21-year-old intern in the Oval Office.  Their defense was that his policies were good for the country, never mind his "private" behavior. Moore's supporters say much the same today.

The most disheartening aspect of this story -- even in the context of many dozens of stories of sexual misconduct by powerful men in Hollywood, the media and, now, Congress -- is the double standard being applied by those in the Evangelical community.  There was a time in the not too distant past when personal character mattered a great deal to Evangelical voters.  But that view has been eroding for some time now -- among all groups -- but especially among Evangelicals. In 2011, only 30 percent of Evangelicals said, "an elected official who commits an immoral act in their personal life can still behave ethically and fulfill their duties in their public and professional life," but by 2016, 72 percent agreed in a poll taken by PRRI/Brookings.

So, what should happen if the good people of Alabama elect Roy Moore, despite credible allegations of misconduct?  As Federalist 51 says, "experience has taught the necessity of auxiliary precautions" when the people fail. The rules of the U.S. Senate don't allow the option not to seat Moore if elected, but they do allow, under Article I Section 5 of the Constitution, that the Senate may expel him by a two-thirds vote. If Alabama voters send Roy Moore to Congress, the Senate should exercise the extraordinary means at its disposal. Those who defend Moore say he deserves "his day in court," so give it to him by allowing both accused and his accusers testify under oath before the Senate.  And if the accusers' testimony holds up -- as I believe it will -- the Senate should vote to expel him.

It would be far better for everyone involved if Roy Moore did the honorable thing and stepped aside.  But given the credulity of his supporters and the current state of our politics, I don't expect that to happen, which is why James Madison's argument for "auxiliary precautions" has never been more relevant.

Cynicism Isn't a Winning Strategy

Republican Ed Gillespie lost his bid to become Virginia governor this week by running one of the most cynical campaigns in recent memory. Gillespie is no racist, but he appealed directly to racism during the campaign. In a state with a growing Latino and immigrant population, four of his campaign ads focused on MS-13, a violent Latino gang, with the words "Kill, Rape, Control" flashing across the screen. But Virginia has one of the lowest violent-crime rates in the country, and the images used in the ad weren't even MS-13 members, much less Virginia residents, with the most frightening photos of heavily tattooed men taken in a prison in El Salvador. Not content to try to scare Virginians into voting for him, Gillespie dog-whistled a favorite alt-right meme as well, promising to protect "our" heritage, by which he meant displaying Confederate statues on public grounds. But Robert E. Lee and Jefferson Davis aren't exactly heroes to the 20 percent of Virginia voters who are African-American.

Gillespie's campaign advisers convinced him that such appeals were his only chance of winning. They were wrong, but even if they had turned out to be right, is winning the only thing that matters today? Gillespie once embraced the notion that reaching out to Hispanics and others who are not part of the traditional base of the GOP was badly needed, even championing a path toward legal status for undocumented immigrants. When Republican gubernatorial candidate Jerry Kilgore lost in 2005, Gillespie, who had just finished his first stint as Republican National Committee chair, blamed a series of anti-illegal-immigration ads for Kilgore's defeat. But with the siren call of Trumpists beckoning, Gillespie sailed to defeat on even more egregious ads than Kilgore's.

President Trump quickly blamed Gillespie's loss on the candidate's failure "to embrace (Trump) or what (Trump stands) for." It's true Gillespie didn't campaign with Trump, but the president lost the state in 2016, and he is less popular today than he was a year ago. If anything, Gillespie lost because he tried to morph into Trump, not run away from the president's toxic brand of politics. It should be a lesson to Republican candidates around the country, particularly those -- and there are many -- who don't share the president's views on race and immigration.

America is not a racist country, and appeals to racism turn off far more voters than they appeal to. Americans were horrified by what happened in Charlottesville this summer, with white nationalists shouting "Jews will not replace us" as they marched through the city to oppose the removal of Confederate statues on public grounds, with one young woman killed when a self-described neo-Nazi ran his car into the crowd. Nor is anti-immigration fervor gripping the country. Exit polls in Virginia show that the No. 1 issue on voters' minds was health care. Immigration was the top voting issue for only about 12 percent of Virginians, ranking below all others except abortion. And while immigrants have changed the face of Virginia over the last 20 years, with about 1 in 8 residents now foreign-born, those immigrants have helped revitalize Virginia's economy and are neighbors, co-workers, friends and family to many native-born voters -- not to mention that immigrants who have naturalized vote, too.

If Republicans hope to retain control of Congress in next year's election, they had better figure out a better strategy than Ed Gillespie's. Given the president's unpopularity -- he's the least-popular president one year after his election than any president since polling began, with less than 40 percent approval -- Trumpism isn't a winning message. Americans are fed up with hate and scapegoating, especially when it is accompanied by incompetence and the failure to get any meaningful legislation through Congress. If Republicans learned anything Tuesdaynight, it should be that Trump doesn't help the GOP; and when the GOP loses, he's quick to disassociate himself from the party and its candidates. With friends like Donald Trump, who needs enemies?

The Shaming of George H.W. Bush Is Obscene

The recent allegations against former President George H.W. Bush for "sexually assaulting" young women who stood next to him during photo shoots are obscene -- but not because of what the president did or did not do. Enough is enough. President Bush is 93 years old. He sits in a wheelchair, and anyone who witnessed his appearance last week when all the living former presidents gathered to help raise funds for hurricane victims can plainly see that he is much diminished, physically and mentally. Unlike former President Ronald Reagan, who publicly announced that he was suffering from Alzheimer's disease, neither Bush nor his family has talked much about his declining mental capacity -- but it is clearly there.

President Bush did not assault young women when his hand, which rests at a lower level because he cannot stand, touched their bottoms and he covered up his awkwardness with a bad joke about his favorite magician, "David Cop-a-Feel," as they allege. His behavior is perfectly consistent with what doctors who treat patients with dementia call sexually disinhibited behavior. The risk of developing Alzheimer's or other forms of dementia increases with age, doubling every five years after age 65. At age 80, 1 in 6 people will have developed the disease. By 85, it goes up to 1 in 3, and by 90, 85 percent of people lucky enough to still be alive are likely to have some dementia, according to the Alzheimer's Society.

Like many elderly men -- and women -- President Bush said and did something inappropriate not out of malice or with the intent to harm but because he now lacks the judgment to behave as he did all his life. And those who are using this incident to score political points or to turn themselves into victims akin to women who have been assaulted by individuals with all their mental faculties intact should show a little mercy.

I saw this behavior firsthand with a relative who had Alzheimer's for at least 10 years before dying of the disease at 93. One of the first signs that something was wrong was inappropriate sexualized talk. At first, the comments were just out of character and inappropriate, but they grew to be very disturbing over time. As far as I know, nothing physical ever happened, but having spoken with those who work with the elderly in nursing homes, it happens every day, and both men and women engage in such behavior. It is one of the most embarrassing things about dementia for those whose family members suddenly start acting in ways they never would have if disease were not eating away at their brains.

According to a scholarly paper on the issue published in Current Treatment Options in Neurology, inappropriate sexual behavior "should be seen as a part of the symptom cluster of behavioral and psychiatric disturbances associated with dementia, which is disruptive and distressing, and impairs the care of the patient." It isn't something for which others should shame someone, much less criminalize. We should recognize when behavior is driven by disease -- in this case a devastating, fatal disease that strips individuals of everything that made them who they were.

It broke my heart to see President Bush onstage with his son and other former presidents. His eyes were vacant. He seemed not to know where he was or even why he was there. When the national anthem played, his hands stayed at his side and his eyes wandered. Does anyone think that President Bush would have sat there so confused if he were in control of his faculties?

The former president's office has issued an apology on his behalf to the women who have come forward, which is absolutely appropriate. And perhaps the family should say more about the former president's condition; President Reagan's candor did a great service for those families who have suffered through the experience of their loved ones' dementia. But to treat this incident as if it were akin to the stories about men who used their power and fame to demean women and solicit or force sex or sexual contact is disgraceful. It not only hurts an honorable man who served his country but also demeans the real victims of sexual assault.

Cooper Quotas

North Carolina governor Roy Cooper (D) announced last week a statewide goal of 10 percent for government contracting with minority-owned firms (defined by race, ethnicity, sex, and disability). He’s not alone with such nonsense; indeed, New York governor Andrew Cuomo (D) has set a goal of 30 percent in his state.

Now, it’s good to make sure public contracting programs are open to all, that bidding opportunities are widely publicized beforehand, and that no one gets discriminated against because of skin color, national origin, or sex. But that means no preferences because of skin color, etc. either — whether it’s labeled a “set-aside,” a “quota,” or a “goal,” since they all end up amounting to the same thing, and courts have ruled all to be presumptively unconstitutional.

Such discrimination is unfair and divisive; it breeds corruption and otherwise costs the taxpayers and businesses money to award a contract to someone other than the lowest bidder; and as noted it’s almost always illegal — indeed, unconstitutional — to boot.

On the legal point, there are two problems here. First, before the state can use racial classifications, it must at a minimum do a “disparity study” that documents evidence of discrimination in a specific contracting area that has to be remedied. Governor Cooper gets the process backward: He sets the racial goal, and then says it can be adjusted if some disparity study comes along that proves it’s too high.

Second, and in any event, in 2017 there’s no reason why quotas are the “narrowly tailored” way to remedy any discrimination. Rather, the state should ban racially preferential treatment for any group, enforce that ban, and require plenty of transparency — in publicizing bidding opportunities and in announcing the winners — to avoid cheating.

Contracts are not like employment selection or university admissions, where there is often an irreducible and significant amount of subjectivity in the decisionmaking. Rather, the low-bid process in government contracting can be made very transparent at every step, and this transparency should make it relatively easy to achieve any remedial purpose, that is, to detect and correct discrimination. This is an area where, as Chief Justice Roberts wrote famously, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

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Heroic Book Review --  I’d like to add my voice to the chorus praising Scalia Speaks:  Reflections on Law, Faith, and Life Well Lived, the recent compendium of speeches given by the late, great justice. In doing so, let me offer a couple of points that I’ve not seen made elsewhere.

First, because this is book is not only entertaining and thoughtful but also accessible to nonlawyers — the speeches are divided into six categories, only one of which is “On Law” — it’s a good way for us conservative lawyers to show our laymen friends the reason we loved Justice Scalia as we did. This sort of enthusiasm is not always easy to explain without eyes glazing over; to outsiders, I suspect, the Federalist Society annual meeting must seem like Sesame Street’s “National Association of W Lovers,” where W stands for Scalia. Anyway, I’m giving a copy to my parents as a Christmas present.

Second, the insights are as fresh as today’s newspaper. Case in point: The day I finished the book some columnist criticized on separation of powers grounds those politicians who attack judges; well, Justice Scalia explains more than once in this book that, when judges act as politicians, their being treated as such is not only inevitable but even desirable, if the only alternative is to accept their rule as that of a new aristocracy.

Now, it is common knowledge that one of the book’s editors, Ed Whelan, is a good friend, so to show that I am not in the tank, let me note: (1) the editors are not perfect, and I did find one typo in the book (on page 310, the failure to capitalize the last word in “Grand Army of the republic”); (2) Justice Scalia should have credited Emil Faber rather than simply plagiarizing the latter’s trenchant observation, “Knowledge is good” (page 328); and (3) it was unconscionable for my hero Justice Scalia to characterize, albeit indirectly, William F. Buckley Jr., another hero of mine, as “one smart-aleck political commentator” (page 329).

Still, all is forgiven since I now know that Justice Scalia, proud Italian-American Catholic though he was, was also apparently a fan of the Irish-British Protestant and a third hero of mine, C.S. Lewis. The justice pays him this fine compliment: “Had he been a lawyer, C.S. Lewis would have been a magnificent legal writer.” And had he had the chance to read what Justice Scalia has to say “On Faith,” I’m sure Mr. Lewis would have found some way to return the compliment.

A fine book!

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A First-Rate Article on the Second Amendment – In light of the horrible shootings near San Antonio over the weekend, I’d like to commend to our readers this article by Professor Nelson Lund. It’s a thorough discussion of a recent gun-control column in the New York Times by Bret Stephens. It’s worth reading not only as a response to Mr. Stephens, but for its broader defense of the right to bear arms, and no one knows more about the Second Amendment than Professor Lund.

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The Washington Post Doesn’t Get It – The Washington Post this week devoted a long and astonishingly one-sided news story to the efforts of Native Hawaiians to turn themselves into a federally recognized Indian tribe, without saying one word about the conservative objections to this. The basic problem is that there is a big difference, as a matter of law and policy, between the federal government acknowledging a preexisting political entity, versus creating a brand-new such entity on the basis of race or ethnicity. As a legal matter, the Supreme Court has warned about the potential problems here with the equal-protection guarantee of the Constitution (see its 2000 ruling in Rice v. Cayetano). And as a policy matter, this is more balkanization and identity politics, just what the United States does not need.

Apple Turnover

Once again we learn that, in Silicon Valley as elsewhere in Corporate America, there is no place for politically incorrect truth-telling. What’s more, what the law says is not even part of the conversation.

The latest kerfuffle involves Apple’s vice president of “inclusion and diversity,” who made the following statement during a panel discussion: “There can be twelve white blue-eyed blond men in a room and they are going to be diverse too because they’re going to bring a different life experience and life perspective to the conversation.”

Well, talk about your mansplaining, and isn’t that just what you’d expect to hear from some corporate white guy?

Except that this particular executive happens to be a black woman, and of course she’s exactly right. Those twelve individuals may have wildly dissimilar life stories and outlooks, and for that matter you could also choose twelve people of wildly dissimilar ethnicities but nearly identical upbringing and mindset.

If Apple thinks having a diversity of life experiences and background is important in assembling a good team, fine, but why use skin color, national origin, and sex as a proxy for how people grew up and what they believe? That’s stereotyping, and by the way Title VII of the 1964 Civil Rights Act makes it illegal to discriminate on the basis of race, ethnicity, or sex in employment. (I discussed all this a decade ago in testimony before the U.S. Equal Employment Opportunity Commission — see especially parts III and V.)

No matter. The outcry was immediate and loud, and an apology has been issued.

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MLB: No White Men Need Apply -- Major League Baseball recently announced a “Diversity Fellowship Program” that is explicitly limited to “person[s] of color” and women.
What can I say? This is of course worse than the NFL’s Rooney Rule, which is also illegal, but which at least does not bar people on the basis of race from applying for and obtaining a position. This does.

There is no legal justification for this; Title VII of the 1964 Civil Rights Act bans discrimination on the basis of race, ethnicity, and sex in private employment. Bizarrely, MLB’s announcement includes at the end this boilerplate: “Individuals seeking employment at MLB . . . are considered without regards to race, color, . . . national origin, . . . sex . . . ”

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Local Control over Schools at Stake – The Southeastern Legal Foundation and Center for Equal Opportunity have filed an amicus brief with the U.S. Court of Appeals for the Eleventh Circuit,  supporting a group of Gardendale City, Alabama, residents who want to form a new municipal school system but are burdened by a 40-year old desegregation decree, and a federal court who insists on controling the local schools.

This case, Stout v. Jefferson County Board of Education, originated over 50 years ago when Linda Stout sued the Jefferson County school board for racially segregating the school system. Such de jure segregation is of course unconstitutional, and accordingly the court entered an order directing the school system to desegregate. By 1976, the County’s dual system was fully dismantled. 

Fast forward to 2012. Residents of Gardendale City, within the County, began a campaign to raise property taxes to form their own school system, hoping to increase local control over education, improve test scores, and decrease overall size of the system their children attended. They succeeded in raising sufficient funds and in 2014, formed the Gardendale City Board of Education.  But because the federal district court still controls the local school board, the new school board had to seek its permission to operate. The court ultimately allowed the two elementary schools, but not the middle and high schools. Both sides appealed.

SLF and CEO filed their amicus brief to bring one particular issue to the Court’s attention — the inherent violation of federalism that results from continued federal court control over local school boards. The U.S. Supreme Court has, time and time again, indicated that the time for federal court control over an area which is constitutionally reserved to the States has come. Unless there is a constitutional violation that needs to be remedied, federal courts should return control of our children’s education to the local and state governments.

Click here for SLF's and CEO’s 11th Circuit amicus brief.

Policy Can't Trump Undermining of Democratic Norms

For conservatives who support much of President Donald Trump's agenda but find his character and commitment to democratic norms and the Constitution lacking, a week such as this one is challenging. On the one hand, the president has succeeded in spurring the House of Representatives to introduce a major tax overhaul that will be good for the economy and will benefit both families and businesses, fulfilling one of his major campaign promises. For many conservatives, this is enough to justify supporting a man who has no ideological ballast and whose behavior makes most of the country cringe. As one dear friend of mine -- a former state legislator and a man of real character and faith -- put it to me when I challenged his criticism of those, like me, who don't think Trump is fit for the office he occupies: "Policies, bingo, you said it. ... I can't find a reference in the Constitution to the chief executive as a moral exemplar." But is policy all that matters? And if principle doesn't drive policy, how can we know whether we can trust that it won't change when expediency or political advantage dictates?

This week also displayed the president's glaring defects. When a terrorist struck New York this week, killing eight people and injuring a dozen others, President Trump was quick to blame the justice system and immigration policy for the horrific attack on innocent people biking and walking along a path in lower Manhattan. He also suggested that he'd have the suspect, who was injured by police and in custody, shipped to Guantanamo Bay, though he backtracked later, probably when someone explained to him that the man's legal permanent resident status and the fact that the crime took place on U.S. soil would make that option difficult. But the president followed with calling for the attacker to be put to death for his crime -- before he had even been charged.

That type of reaction would be understandable from a man on the street. All of us react in anger and want quick retribution when something like this happens. But the president of the United States should not attack our justice system by claiming, "We need quick justice and we need strong justice, much quicker and much stronger than we have right now -- because what we have right now is a joke and it's a laughingstock. And no wonder so much of this stuff takes place." When he does so, he undermines the judicial system itself, essentially saying this coequal branch of government is a failed institution. The American judicial system is the best in the world, and it has punished terrorists with swift and sure justice, including imposing the death penalty on Dzhokhar Tsarnaev for the 2013 Boston Marathon bombings and murders and six consecutive life sentences on Zacarias Moussaoui for his role in the 9/11 World Trade Center attacks. America does not engage in vigilantism; we abide by the rule of law, including due process for the accused, no matter how heinous the crime, under the Constitution -- which the president swore to uphold.

But perhaps the worst part of the president's reaction to the attack on Americans was his knee-jerk reaction to blame our immigration system for the deaths. Ending the diversity lottery (which admits about 100,000 permanent residents and their families to the U.S. each year from countries that do not contribute large numbers to our immigrant population) will do nothing to stop terrorism. The president was quick to blame immigration policy for the New York City deaths but loath to blame gun policy for the far deadlier attack in Las Vegas a month ago. Yet the correlation seems far clearer between the high number of deaths in Las Vegas and the shooter's legal access to an obscene number of weapons (47 modified rifles with high-capacity magazines were recovered in his hotel room) than any link between terrorism and our legal immigration policy. But the president and a large part of his base favor virtually unlimited access to guns while opposing immigration, legal as well as illegal. Politics, not policy, dictate why reactions to two terrorist acts differ.

Tax reform will make Americans wealthier, but President Trump's attacks on our judicial system and other institutions of democracy undermine our fundamental freedoms. We can survive as a democracy without the former, but not without the latter. I will continue to support President Trump's policies when I think they are good for the country. But I continue to believe that whatever good a specific policy might bring, it is far outweighed by his undermining of our institutions and his flouting of democratic norms.

The Republican Establishment Strikes

In remarkable speeches this week, two members of what skeptics like to call the "Republican establishment" took on President Donald Trump and his brand of nationalist populism. Neither man mentioned the president by name, but their criticisms were unmistakable. Speaking in Philadelphia, where he received a Liberty Medal from the National Constitution Center, Sen. John McCain said of the current president's policies, "To abandon the ideals we have advanced around the globe, to refuse the obligations of international leadership and our duty to remain 'the last best hope of earth' for the sake of some half-baked, spurious nationalism cooked up by people who would rather find scapegoats than solve problems is as unpatriotic as an attachment to any other tired dogma of the past that Americans consigned to the ash heap of history."

Former President George W. Bush, speaking on Thursday, followed suit: "Our politics seems more vulnerable to conspiracy theories and outright fabrication," he warned. "We've seen our discourse degraded by casual cruelty. ... We've seen nationalism distorted into nativism -- forgotten the dynamism that immigration has always brought to America." Bush has been reluctant to take center stage since leaving office more than eight years ago, withholding criticism from his Democratic successor, President Barack Obama, even when the latter did not return the favor by calling out the Bush administration in his first inaugural address for "greed and irresponsibility." But apparently, Bush felt compelled to say something now, perhaps because he sees President Trump as destroying the Republican Party, as well as harming the country.

Trump is an expert at branding; it is the thing he did best as a private businessman. He made his millions mostly by selling his eponymous brand, putting his name on garish casinos, gilded condominium buildings and lush golf courses around the world. The brand stood for glitz and glamour, a reflection of Trump's outsize persona, not necessarily good taste or high quality. Trump has now branded the Republican Party -- and a lot of men and women who have spent their lives building and supporting the GOP, including McCain and Bush, don't like the Trump makeover. To dismiss their criticisms as the establishment's trying to hold on to power misses the point.

Political parties change. The Democratic Party of John F. Kennedy in 1960 was not the same party as it had become by 1972, when George McGovern won its presidential nomination. The former supported tax cuts and opposed communism; the latter believed that the communist threat was overblown and that government should redistribute wealth by taxing and spending more. Nor is the Republican Party of Ronald Reagan the party of Donald Trump. Their styles couldn't be more different, but more importantly, Reagan promoted the very principles and ideals McCain and Bush spoke of.

I cannot imagine President Reagan demonizing immigrants and threatening to build a wall or putting family members in choice West Wing space and assigning them portfolios for which they had no experience or expertise as Trump has. During my tenure in the Reagan West Wing, I once locked horns on policy with President Reagan's daughter Maureen, who held no formal position and whose views were very different from her father's. Maureen called and yelled a lot, but the White House came down on my side, opposing a resolution that favored comparable worth at an international women's conference in Kenya. Reagan's political loyalty was to ideas, no matter how much he loved family members.

And Reagan's ideas were a far cry from Trump's. The GOP of Donald Trump will be forever branded as nativist and protectionist, like some gated community more interested in excluding than expanding. If "establishment" means being respectful, behaving with decorum, honoring tradition and upholding principle, count me alongside President Bush and Sen. McCain, and I suspect a lot more Reagan Republicans feel the same. What will emerge from the Republican Party after Trump is unpredictable. But such voices as those of Bush, McCain and others -- notably Sens. Bob Corker, Ben Sasse and Jeff Flake -- don't represent the past so much as they do the future if the GOP is to survive.

Justice Scalia on Writing Well: It takes time and sweat

Writing this for The Weekly Standard, I was struck by just how well-crafted were Scalia’s own speeches. With the good writers, a reader waits for a surprise—a deft choice of words, an illuminating metaphor, some shrewdly placed humor. Dip into Scalia Speaks and you’ll have many such surprises.


Justice Scalia was a terrific writer. And he thought about the craft, and what it requires. A short speech titled “Writing Well,” given to a group of legal writers who were giving him a lifetime achievement award, is fantastic.

In the speech, as recounted in the recently released book Scalia Speaks, Scalia said legal writing does not exist—not as a separate genre of writing, the way poetry and playwriting do. “Rather, I think legal writing belongs to that large, undifferentiated unglamorous category of writing known as nonfiction prose.” Meaning that if you’re good as a legal writer, you could be “equivalently good” as a writer of history or economics or theology. “Had he been a lawyer,” the justice said, “C.S. Lewis would have been a magnificent legal writer.”

Scalia learned from his law students at the University of Virginia Law School that there is no such thing as legal writing. What they lacked, he said, was “not the skill of legal writing but the skill of writing at all.” Nor did he think that skill could be taught. Scalia settled on trying to teach his students that there was “an immense difference between writing and good writing” and that it took “time and sweat to convert the former into the latter.”

The justice elaborated on what time and sweat meant in his case. During his first semester as a freshman at Georgetown College, he had an English composition professor who was “a damned-hard grader” and gave him some B minuses on his first papers—not what the recently matriculated college student Scalia was used to. The teacher gave weekend assignments, and for the rest of the weekends in that semester Scalia said he “devoted many nervous hours to writing and rewriting.” You can bet his grades got better.

Scalia thought there was such a thing as “writing genius.” It consists “of the ability to place oneself in the shoes of one’s audience; to assume only what they assume; to anticipate what they anticipate; to explain what they explained; to think what they must be thinking; to feel what they must be feeling.” A rare ability, Scalia knew.

Scalia closed his speech by observing that “a careless, sloppy writer has a careless, sloppy mind.” Such a writer is not really a writer, though the individual could become one. How? The Scalia way. With more time and sweat.

The Pseudo-Science of Microaggressions

The last campus fad of finding "microaggressions" targets not just conservatives but also liberal and progressive faculty and administration who commit unconscious acts against a myriad of identity groups, of race, gender, disability, LGBTQ, religion, and every other category of “social justice.” In this essay, CEO research fellow Althea Nagai looks at racial microaggressions, where the microaggressions concept and theory originated, and the ways in which the research behind it falls far below traditionally accepted social science standards. 

This piece originally appeared in the special section “Wrong Turns, Dead Ends, and the Way Back,” in the Spring 2017 Academic Questions(volume 30, number 1).