Should liberals fear Amy Coney Barrett?

They won’t like the way she interprets the law, but she is certainly qualified to serve as a Supreme Court justice.

Noah Feldman of Harvard Law School says Barrett “deserves to be on the Supreme Court” despite the fact that he disagrees with her on “almost everything.” Here is a taste of Feldman’s recent column at Bloomsberg:

I disagree with much of her judicial philosophy and expect to disagree with many, maybe even most of her future votes and opinions. Yet despite this disagreement, I know her to be a brilliant and conscientious lawyer who will analyze and decide cases in good faith, applying the jurisprudential principles to which she is committed. Those are the basic criteria for being a good justice. Barrett meets and exceeds them.

I got to know Barrett more than 20 years ago when we clerked at the Supreme Court during the 1998-99 term. Of the thirty-some clerks that year, all of whom had graduated at the top of their law school classes and done prestigious appellate clerkships before coming to work at the court, Barrett stood out. Measured subjectively and unscientifically by pure legal acumen, she was one of the two strongest lawyers. The other was Jenny Martinez, now dean of the Stanford Law School.

Here is O. Carter Snead, a law professor at the University of Notre Dame, in a piece at The Washington Post:

Even more reassuring to Barrett skeptics should be her remarkable humility. There are plenty of smart people in elite academia and on the federal bench, but few with Barrett’s generosity of spirit. She genuinely seeks to understand others’ arguments and does not regard them as mere obstacles to be overcome on the way to reaching a preferred conclusion. Time and again, I have seen her gently reframe a colleague’s arguments to make them stronger, even when she disagreed with them. And she is not afraid to change her own mind in the search for the truth, as I have seen in several of our faculty seminars. Such open-mindedness is exactly what we want of our judges — and what we can expect Barrett to bring to the Supreme Court, because that is who she has always been.

There is no need to fear Barrett’s faith. To the contrary, her commitment to treating others with respect grows directly out of her religious convictions. But Barrett’s love of neighbor goes beyond merely treating others with dignity. In all the time I have known her, I have never once seen Barrett place her needs above those of others.

A few years ago, a blind student matriculated as a first-year law student at Notre Dame. Upon arrival, she encountered delays in getting the technological support she needed to carry out her studies. After only a few days in Barrett’s class, the student asked her for advice. Barrett’s response was “This is no longer your problem. It is my problem.” Barrett followed up with university administration herself, got the student what she needed, and then mentored her for three years. That student just completed her service as the first blind female Supreme Court clerk in U.S. history.

Read the entire piece here.

“Dershowitz’s view is so absurd that I don’t know of even one legal scholar who studies the Constitution who agrees with him”

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During the impeachment trial, Trump defense lawyer Alan Dershowitz made the case that “abuse of power” is not an impeachable offense. Harvard University constitutional law scholar Noah Feldman (along with nearly all other constitution scholars) disagree.

Here is Feldman today at Bloomberg News:

As Republicans scramble to argue that they don’t need to call witnesses in Donald Trump’s Senate impeachment trial, one argument seems to be gaining traction: that witnesses are irrelevant, because even if Trump did everything he’s accused of doing, abuse of power is not an impeachable offense.

This argument isn’t merely wrong. It is the single most dangerous argument that any of Trump’s defenders have made during the entire impeachment process. If abuse of power isn’t impeachable, what is?

The strongest version of this argument has been made by Alan Dershowitz, who has insisted that the Constitution’s “high crimes and misdemeanors” include only crimes found in the statute books, not abuse of power.

That’s obviously wrong. In 1725, in a case the framers knew, Thomas, Earl of Macclesfield, was impeached by the House of Commons specifically for “Abuse of his Power” and “great Abuse of his Authority.” The House of Lords convicted him for it.

At the constitutional convention, on July 20, 1787, Edmund Randolph, the governor of Virginia who had introduced the Virginia plan, stated specifically that “the propriety of impeachments was a favorite principle with him” because “[t]he Executive will have great opportunitys of abusing his power.” In Federalist 65, Alexander Hamilton defined “high crimes and misdemeanors” as “those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.”

Dershowitz’s view is so absurd that I don’t know of even one legal scholar who studies the Constitution who agrees with him. That includes Dershowitz himself, who in 1998 said (correctly) that impeachment doesn’t have to be for a crime.

Read the rest here.

Jonathan Turley: Trump WAS Impeached

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Was Trump impeached?

Last weekend Harvard Law professor Noah Feldman argued that Donald Trump will not be officially impeached until the House transmits the articles of impeachment to the Senate.

Jonathan Turley disagrees.

Some of you may remember Turley.  He is the George Washington University law professor who argued before the House Judiciary Committee on December 4, 2019 that there was not enough evidence to impeach Donald Trump. (The other three law professors called to testify–Pamela Karlan of Stanford, Michael Gerhardt of UNC-Chapel Hill, and Feldman–argued that Trump’s phone call to Ukrainian president Zelinsky was an impeachable offense).

In a recent Washington Post op-ed titled “I testified against Trump’s impeachment. But let’s not pretend it didn’t happen,” Turley writes:

Last Saturday in West Palm Beach, Fla., in remarks to a group of young supporters, President Trump road-tested a talking point that appeared to be aimed at changing the narrative around his December impeachment: “You had no crime. Even their people said there was no crime,” he said of congressional Democrats, before adding: “In fact, there’s no impeachment. There’s no — their own lawyers said there’s no impeachment.”

Trump was clearly baiting House Speaker Nancy Pelosi (D-Calif.) after she refused to send her chamber’s two just-passed articles of impeachment to the Senate before leaving town for the holidays. The move caused something of a stalemate with Senate Majority Leader Mitch McConnell (R-Ky.) and precipitated a curious debate about whether Trump is actually impeached. It’s unclear what Pelosi and McConnell may do in their game of constitutional chicken between now and when the House reconvenes in January, but one thing is clear: Trump was impeached.

As I testified earlier this month before the House Judiciary Committee, I was opposed to this impeachment. While I said that this president could be legitimately impeached on these two articles, abuse of power and obstruction of Congress (while rejecting other potential articles like bribery), the record is the thinnest of any modern impeachment to go to the Senate, which could result in a trial as cursory as its investigation. Trump’s suggestion that he remains unimpeached appears based on a theory recently floated by my colleague, Harvard Law School’s Noah Feldman, that “Trump Isn’t Impeached Until the House Tells the Senate.” But while this theory may provide tweet-ready fodder for the president to defend himself and taunt his political adversaries, it’s difficult to sustain on the text or history or logic of the Constitution.

Read the rest here.

Was Donald Trump Impeached?

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Noah Feldman of Harvard Law School is one of the legal scholars who testified before the House Judiciary Committee.  He was one of the three (of four) lawyers who concluded that Trump’s phone call to Ukraine and his obstruction of Congress were impeachable offenses.

In his most recent column at Bloomsberg News, Feldman argues that the House has not yet impeached Donald Trump.

Here is a taste:

If the House does not communicate its impeachment to the Senate, it hasn’t actually impeached the president. If the articles are not transmitted, Trump could legitimately say that he wasn’t truly impeached at all.

That’s because “impeachment” under the Constitution means the House sending its approved articles of to the Senate, with House managers standing up in the Senate and saying the president is impeached.

As for the headlines we saw after the House vote saying, “TRUMP IMPEACHED,” those are a media shorthand, not a technically correct legal statement. So far, the House has voted to impeach (future tense) Trump. He isn’t impeached (past tense) until the articles go to the Senate and the House members deliver the message.

Once the articles are sent, the Senate has a constitutional duty to hold a trial on the impeachment charges presented. Failure for the Senate to hold a trial after impeachment would deviate from the Constitution’s clear expectation.

For the House to vote “to impeach” without ever sending the articles of impeachment to the Senate for trial would also deviate from the constitutional protocol. It would mean that the president had not genuinely been impeached under the Constitution; and it would also deny the president the chance to defend himself in the Senate that the Constitution provides.

Read the entire piece here.

Is Robert Jeffress a “Bigot” for Claiming that Jesus is the Only Way to Heaven?

 

I wrote this early last week and never got the chance to place it somewhere.  Regular readers of The Way of Improvement Leads Home will recognize it as a compilation of a couple of blog posts I wrote in the wake of the dedication of the new Jerusalem embassy.  –JF

Jesus said “I am the way, the truth, and life.  No one comes to the Father except through me.”

In age in which the exclusive claims of the Christian gospel are scorned by a culture that celebrates tolerance as one of its highest virtues, Jesus’s claim in John 14:6 seems like bigotry.

Robert Jeffress, the pastor of the First Baptist Church in Dallas, learned this hard way.  When Jeffress’s critics learned that he would be praying at last week’s opening of the U.S. embassy in Jerusalem, they recalled some of the Southern Baptist’s previous remarks about the exclusive claims of Christianity.

Mitt Romney led the charge.  In a tweet he criticized Jeffress for saying that “you can’t be saved by being a Jew” and “Mormonism is a heresy from the pit of hell.”

If Romney had more than 280 characters to work with, he could have also noted Jeffress’s belief that Hindus “worship a false God” and Muslims are “evil.”

Indeed, Jeffress is a bombastic, loud-mouthed preacher who likes to peddle his brand of evangelicalism on Fox News and other politically conservative news outlets.  He was one of the few evangelical leaders to support Donald Trump’s presidential candidacy during the GOP primaries when there were Christian Right candidates in the field—Ben Carson, Ted Cruz, Marco Rubio, to name three—who did not come with Trump’s moral baggage.

On the evening of the embassy dedication, Jeffress appeared on Fox News to defend himself against charges of bigotry. While he did not say anything negative about non-Christian religions during this appearance, he firmly re-asserted his belief that Christianity is an exclusive religion.

The belief that salvation comes through Jesus Christ, and Jesus Christ alone, Jeffress proclaimed, has been the teaching of the Christian church for more than two thousand years.

He is correct.

And Noah Feldman, law professor and public intellectual at Harvard, agrees.  In a recent column at Bloomsburg News, Feldman argued,

“All Jeffress is doing is echoing an almost 1,800-year-old doctrine: Extra ecclesiam nulla salus, there is no salvation outside the church. It can be traced to St. Cyprian of Carthage, who died in the year 258. The basic idea is that Jesus Christ came to save those who believe in him — and not those who don’t…Most religions in the monotheistic tradition think they are right and others are wrong. That’s normal. It isn’t a reason to consider those who hold other beliefs to be bigots.”

Why would we expect Jeffress, a Christian pastor, to believe that there is more than one way to God?  I am sure that Mitt Romney, if pushed to explain his own religious beliefs, would say something similar about the exclusive nature of the Christian faith as understood through his Mormonism.

Let’s face it, evangelical Christians are not going away anytime soon.  Thomas Jefferson learned this lesson the hard way.  The great man of the Enlightenment from Monticello predicted in 1822: “there is not a young man now living in the United States who will not die a Unitarian.” Woops. So much for Enlightenment progress.

So rather than wishing evangelicals away, it is time for Americans to think seriously about how to live together amid what Washington University law professor John Inazu has described as our “seemingly irresolvable differences.”  The practical application of Inazu’s vision will not be easy, and people like Robert Jeffress will make it even more difficult.

As an evangelical and a historian, I have been critical of the Dallas pastor’s attempt to fuse God and country in a desire to “restore” America to its supposedly Christian roots.  It is a form idolatry and it is based on bad history.  Jeffress’s undying support of Trump and his Christian nationalism weakens the witness of the Christian Gospel–the “good news”–and alienates the very people who may be most in need of it.

Moreover, Jeffress’s dispensationalism makes him insensitive to the sufferings of his fellow evangelicals in Palestine. He seems oblivious to the very real possibility that Donald Trump is playing him and his fellow court evangelicals, the born-again Christians who frequent the Oval Office and flatter the president much in the same way that the King’s courtiers did in the Renaissance-era.

As New York Times columnist Thomas Friedman recently put it, the ceremony celebrating the opening of the new Jerusalem embassy was a “Republican mid-term pep rally disguised as a diplomatic event….This was meant to fire-up the far-right religious base of the Republican Party.”

When Jeffress does announce that salvation lies only in Jesus Christ, he may have the history of Christian doctrine on his side, but he makes such pronouncements with a culture-warrior spirit that reflects a dark and angry brand of conservative evangelicalism that has little to do with the Prince of Peace.

If secularists need to learn how to live with the millions of evangelicals who believe that salvation lies only in the Gospel of Jesus Christ, then evangelicals need to learn how to engage those with whom they differ with “gentleness and reverence” that will cause them to ask about the “hope that lies within.”

Noah Feldman Calls Diane Feinstein’s Anti-Catholic Questions an “Outrage”

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Noah Feldman, Harvard law professor and Director of the Julius-Rabinowitz Program on Jewish and Israeli Law, is the latest to criticize Dianne Feinstein for her questioning of Trump appellate court nominee Amy Coney Barrett.  He joins Princeton president Christopher Eisgruber and Notre Dame president John Jenkins.

Here is a taste of Feldman’s piece at Bloomberg:

Senator Dianne Feinstein owes a public apology to judicial nominee Amy Coney Barrett — and an explanation to all Americans who condemn religious bias. During Barrett’s confirmation hearings last week before the Senate Judiciary Committee, Feinstein, the California Democrat, insinuated an anti-Catholic stereotype that goes back at least 150 years in the U.S. — that Catholics are unable to separate church and state because they place their religious allegiances before their oath to the Constitution.

If a Catholic senator had asked a Jewish nominee whether she would put Israel before the U.S., or if a white senator had asked a black nominee if she could be an objective judge given her background, liberals would be screaming bloody murder. Feinstein’s line of questioning, which was taken up by other committee Democrats, is no less an expression of prejudice.

The thrust of Feinstein’s questioning was that, as a believing Catholic, Barrett couldn’t be trusted to apply the Constitution and laws objectively should she be confirmed to the 7th Circuit Court of Appeals. Feinstein repeatedly used a term with a long history as a dog whistle for anti-Catholicism in America: dogma. “The dogma lives loudly within you,” Feinstein asserted. She went on: “Dogma and law are two different things. I think whatever a religion is, it has its own dogma. The law is totally different.”

And the senator topped it off with a classic form of bias: the irrefutable imputation. “Why is it that so many of us on this side have this very uncomfortable feeling?” she asked.

The word “dogma” that Feinstein deployed is specifically connected to the Protestant critique of Catholicism, and to its particularly nasty American version. A dogma is an article of faith laid down by an authority. One of the classic Protestant polemical attacks on Catholicism was the allegation that Catholics are obligated to believe what the church teaches them is incontrovertibly true, whereas Protestants are called on to form their own beliefs on the basis of individual faith and judgment.

Read the entire piece here.

I think this is less a case of Feinstein trying to deliberately practice anti-Catholicism and more a sign that she is clueless on these matters.  This is sad coming from a Stanford history major.  Having said, Feinstein does not seem to have learned her lessons well at Stanford, as evidenced by this exchange with Eric Foner.

Is the Trump Wiretapping Accusation an Impeachable Offense?

wiretapping

I don’t know.

But Bloomberg columnist and Harvard Law School professor Noah Feldman thinks it might be.  Here is a taste of his recent column:

The sitting president has accused his predecessor of an act that could have gotten the past president impeached. That’s not your ordinary exercise of free speech. If the accusation were true, and President Barack Obama ordered a warrantless wiretap of Donald Trump during the campaign, the scandal would be of Watergate-level proportions.

But if the allegation is not true and is unsupported by evidence, that too should be a scandal on a major scale. This is the kind of accusation that, taken as part of a broader course of conduct, could get the current president impeached. We shouldn’t care that the allegation was made early on a Saturday morning on Twitter.

In a rule of law society, government allegations of criminal activity must be followed by proof and prosecution. If not, the government is ruling by innuendo.

Shadowy dictatorships can do that because there is no need for proof. Democracies can’t.

Thus, an accusation by a president isn’t like an accusation leveled by one private citizen against another. It’s about more than factual truth or carelessness.

The government’s special responsibility has two bases. One is that you can’t sue the government for false and defamatory speech. If I accused Obama of wiretapping my phone, he could sue me for libel. If my statement was knowingly false, I’d have to pay up. On the other hand, if the president makes the same statement, he can’t be sued in his official capacity. And a private libel suit mostly likely wouldn’t go anywhere against a sitting president — for good reason, because the president shouldn’t be encumbered by lawsuits while in office.

The second reason the government has to be careful about making unprovable allegations is that its bully pulpit is greater than any other. True, as an ex-president, Obama can defend himself publicly and has plenty of access to the news media. But even he doesn’t have the audience that Trump now has. And essentially any other citizen would have far less capacity to mount a defense than Obama.

For these reasons, it’s a mistake to say simply that Trump’s accusation against Obama is protected by the First Amendment.

False and defamatory speech isn’t protected by the First Amendment.

Read the entire piece here.