Monday, October 24, 2016
Superbosses Want Their Talent to be Free
As an employment law scholar, I regularly read books on management and leadership to see how industry and business school scholars are thinking about work. I was happy to read Sidney Finkelstein's newest bestseller, Superbosses: How Exceptional Leaders Manage the Flow of Talent. Finkelstein is a Management and Director of the Leadership Center at the Tuck School of Business at Dartmouth College and he studies the behaviors of the world's most successful business leadership across many different industries, ranging from tech to entertainment. One of the top insights he finds in the patterns of superbosses is they Say Good-Bye on Good Terms: "Nobody likes it when great employees quit, but superbosses don’t respond with anger or resentment. They know that former direct reports can become highly valuable members of their network, especially as they rise to major new roles elsewhere. Julian Robertson, the billionaire hedge fund manager, continued to work with and invest in his former employees who started their own funds."
As many of you know, I have argued that setting one's talent free, in the sense of allowing employees to leave their jobs without fear of being sued for a breach of non-compete, is something that benefits not only workers but also employers and regional growth more broadly. It's great to see that the best bosses intuitively understand that they can in fact benefit and celebrate their employees' mobility. This is an important moment for non-compete policy and the more we learn about the win-win benefits of talent flows the better our human capital law will be.
Biskupic on Garland
At CNN, Joan Biskupic offers some reasons that Hillary Clinton may renominate Merrick Garland if she wins the presidency and the lame-duck Congress does not confirm him. These include the connection Garland already has to the Clintons and to top Clinton allies, the desire to preserve political capital, and the assumption that she will have other appointment opportunities before 2021.
JOTWELL: Vladeck on Thomas on the loss of the jury
The new Courts Law essay comes from permaprawf Steve Vladeck (Texas), reviewing Suja Thomas's book The Missing American Jury: Restoring the Fundamental Constitutional Role of the Civil, Criminal, and Grand Juries.
The Story of Voting Rights is not All Doom and Gloom
It is easy to think, with numerous media reports of voter suppression, the adoption of strict voter ID laws, and talk of election rigging, that voting rights are in a perilous state in this country. But there is another side of the story too -- one of optimism. Various states and localities are experimenting with ways to make voting easier, more convenient, and more accessible.
As I explain in a new column for USA Today, "[l]ocal experiments in election rules are helping offset trends toward voting restrictions and floods of money."
Importantly, several of these democracy-enhancing measures are on the ballot in November. Maine is considering whether to adopt ranked choice voting. San Francisco will vote on whether to lower the voting age to 16 (more on that later this week). Various localities are looking to reform their campaign finance rules for local elections. Thus, even if you think your vote "won't matter" for the presidential election, there are likely important down-ballot races and issues that will make a difference for our democracy.
Here is the intro of the USA Today piece:
All politics is local, as the saying goes, and the same is true of election law. Although the U.S. Constitution protects the right to vote, local laws can expand its scope and influence democratic representation. Voters across the country are making choices this fall that will not only affect state and local elections, they will also serve as the catalysts for nationwide reforms.
Read the whole thing here.
Sunday, October 23, 2016
Five outs to go
I always have liked symmetry and patterns in events, not necessarily for signs but for fun coincidences. One under-reported thing over the years and at the time is that in 2003, the Cubs and Red Sox were each five outs away from meeting in the World Series. The Sox lead the Yankees with one out in eighth inning of Game 7, at which point manager Grady Little left a tiring Pedro Martinez in the game, the Yankees scored three runs to tie the game, and won the game and series in extra inning. The Cubs lead the Marlins with one out in the eighth inning of Game 6 (leading 3-2 in the series), before Bartman, an error on a possible double-play grounder by usually reliable shortstop Alex Gonzalez, and the collapse of pitching cost them that game. They never got closer to the Series than five outs. They then completed the collapse in Game 7, blowing a 5-3 lead. At the time, I though Five Outs to Go would be a great title for a book detailing both games in alternate chapters. The point became moot the following year, when the Red Sox won the World Series for the first time since World War I. Hopefully, it becomes more moot over the next ten days.
Still, I was most nervous last night came when Cub starter Kyle Hendricks got the first out in the eighth, then allowed his second hit of the game. Fortunately, the Cubs brought in closer Aroldis Chapman, who got a double play to end the inning, (finally) getting the Cubs closer than five outs from the Series. It was at that point I turned to my wife and said "Now I can relax."
Saturday, October 22, 2016
Cubs win! Cubs win! Cubs win! Holy Cow!
That is all.
Friday, October 21, 2016
Tradition Project Conference: Tradition in Law and Politics
I'm in New York today for a conference called Tradition in Law and Politics. It's the kick-off conference for the Tradition Project, an intellectual enterprise under the auspices of the Center for Law and Religion at St. John's Law School, which is directed by my friends Mark Movsesian and Marc DeGirolami. Although there are obvious strong links to the study of law and religion, both the conference and the project are broader in their concerns and topics. The sessions over the next couple of days will cover the definition of tradition, the American religious tradition, the American political tradition, the common law tradition, and the constitutional law tradition.
This is a great and timely project and topic. One assumption on hearing about this conference might be that it's timely in a rear-guard sense, in that the regnant culture and moment are antipathetic toward tradition, and the rejection of tradition as a basis or reason for doing (or not doing) something is achieving important victories in, say, decisions on substantive due process and equality and arguments about religion. (My equipment here doesn't allow me to hyperlink very easily, but one might want to take a look at Neil Siegel's Balkinization post and piece on Justice Alito's role on the Supreme Court. Although I assume Siegel is unlikely to agree very often with Alito, there are commendably scholarly and sympathetic strains, in Siegel's linked piece, of interest in and acknowledgment of the kinds of people for whom Alito may be said to be writing.)
In a different register, however, at least some of the current bewailing of the state of our political culture also involves a form of traditionalism. This time it comes from a broader leadership class, caste, or establishment that includes both establishment conservatives and establishment liberals--including the same regnant liberals who may well reject tradition in many areas. Here, although they might not talk in terms of tradition, there is a strong ongoing lament for the radical loss or disruption of a settlement, or set of customs and practices, that enabled some degree of civil and productive political discourse, compromise, fellowship within the political class and beyond, and so on. Abstracting away from the rather egregious current figurehead for challenges to that tradition, recent populist movements here and elsewhere, on both left and right, and their sometimes destructive power, have both emphasized the value of our traditions and served as a reminder of the way that those traditions can be hollowed out, or left isolated by changes in the broader culture, or be rendered vulnerable by the failure to include and involve larger communities of people: people of color, members of the working class, denizens of regions suffering from economic and/or cultural dislocation, etc. In that sense, although there's no doubt that many readers of this post, or for that matter people here at the conference table, might associate a "Tradition Project" with mourners or rear-guard fighters on the traditionalist conservative side, and have little sympathy for such a project, there are broader reasons why such a project is timely, and those reasons ought to make more people, including many who would tend to label themselves as anti-traditionalist, more sympathetic to this project than they might be inclined to be at first blush.
Unsurprisingly, there are plenty of representatives in the room of, as a speaker put it, people who are "disposed to respect tradition," many of them religious, politically and culturally conservative, or both. As I've written above, there are at least two reasons the appeal of the project and the subject should not be limited to those people: 1) if the "traditionalists" are a minority voice today, that fact can itself be interesting and worthy of study; and 2) people who see themselves as non- or anti-traditionalist may discover, upon reflection or in response to emergencies and other exigencies, that they are more traditionalist than they think. I certainly hope the makeup of the room widens, and that one of the reasons for this is that a more catholic group of scholars knock on the door and express their interest in participating. The prerequisite, such as it is, is not that one be a traditionalist, but that one be someone who takes tradition seriously.
As per usual, I find myself in the middle. I'm convinced that there is value in tradition itself and in tradition as a subject, and concerned about any approach to law, politics, or culture that sees it as irrelevant or negative or illegitimate as a source of practice or authority. To my mind, one of the potential long-term goals or values of this project should be to explore the ways in which soi-disant rationalist liberals or progressives, or indeed anyone of whatever political stripe who sees himself or herself as operating purely rationally or empirically, end up believing in and relying on tradition, and react hostilely to challenges to those traditions they hold dear--and the ways in which they suppress or deny their own traditionalism and their own reliance on tradition as an authority. But I am also in some sense a tradition skeptic, and think it's possible both to take tradition seriously and be somewhat sympathetic to it, and to be interested in finding ways of defying it, subverting it, or introducing viruses into it. All of thes activities, of course, have a tradition of their own and are part of tradition itself.
In any event, great topic and great conference and I'm delighted to be here. I may have more to say, but there are other bloggers here and no doubt they'll have some reactions and posts of their own.
Thursday, October 20, 2016
Peaceful transition of power
The big takeaway from last night's debate is Donald Trump's refusal to say that he would concede if he loses the election, stating that he would "look at it at the time" and that he would keep everyone "in suspense." Trumps's minions are spinning this roughly as follows: 1) He meant he would have to see if there is voter fraud about which something could be done and 2) Al Gore did not concede until December, with the implication from some now being that Gore was wrong to contest the result in Florida. (Update: An emailer reminds me that the recount was automatic under Florida law, given the closeness of the vote. So Gore was even more within his rights to argue that, as long as we were doing a recount, it should be done what he believed was the right way).
As to the second, we have laws in place to contest close elections for a reason, so there is nothing wrong with a candidate availing himself of those processes (especially when the state itself, not the candidate, triggers those processes). But the question last night clearly worked from the premise that the outcome was clear, either because it was not close or there were no more legal challenges to bring. As to the first, the problem with the argument is that for Trump, his losing the election is proof of voter fraud and a just basis not to accept the result, Q.E.D.
I do want to separate the effect of Trump's rhetoric and possible refusal along two lines-- democracy as an institution and the peaceful transition of power. I do not believe he threatens the peaceful transition of power. And that is because Trump does not currently possess political power or the resources that go with it (e.g., military or paramilitary forces). And most of the people who do possess that power would not back him up in refusing to recognize the results of the election. John Roberts is not going to refuse to swear-in Hillary Clinton on January 20. Barack Obama is not going to stand on a tank outside the White House and refuse to let Hillary Clinton in. Officials of states totaling 270 electors are not going to refuse to certify the slate of electors. And Congress, even if both houses are Republican-controlled, are not going to refuse to accept the electoral votes showing Clinton as the winner. Perhaps if they would, this might get more dangerous, but that does not appear to be likely. If anything, that the current President is a Clinton supporter weakens that rhetoric even more. Trump may provoke some violence among his supporters, which would be tragic, but it would remain on a small scale and still subject to legal control.
But Trump's words and actions do pose a danger for democracy as an institution, given democracy's dependence on the consent of the losers. A Trump concession would be symbolically important for the ability of the next President to govern and to be seen as legitimate by all The People, even those who did not vote for her. And that is ultimately what Trump's talk over the past month has been about--not to stop Clinton from gaining the presidency, but to undermine the legitimacy of her presidency.
I think it is important that we speak about this in those specific, and more accurate, terms.
Wednesday, October 19, 2016
Designated Survivor, The End
I just got around to watching Episode 4, which will be my final one (and this my final post). The idea seems so good, but the execution is horrible, even allowing for the relatively low bar on these things. Nothing changed from my assessment of Episode 2--It is just too simplistic, craven, and heavy-handed.
The show returned to the controversy with the governor of Michigan and mass arrests of Muslim citizens, culminating in the federal arrest of the governor, although I could not figure out what the charges were. Nor could I figure out why it was necessary to fraudulently induce the governor to fly to Washington to arrest him, rather than arresting him in Michigan--were there no FBI agents anywhere in the state? There were more comparisons of Kennedy and sending people to "watch" what was going on, without any discussion of the civil lawsuits in functioning courts*that gave the Kennedy watchers (and the calling of the National Guard) its force and that would have been the obvious solution here.
[*] One whopper I forgot to mention from Episode 2 was the governor, in explaining why he was free to do what he was doing, pointing out that there was no longer a Supreme Court. Of course, there is a Sixth Circuit and there is still an Eastern and Western District of Michigan, all of which are fully capable of issuing injunctions and bringing the governor and state police of Michigan to heel.
If anyone keeps watching and it gets better, please let me know.
End of the Filibuster?
In a few weeks, Democrats might manage to secure both the presidency and control of the Senate. If they do, I predict that the Senate will change its rules to allow Supreme Court nominees to be confirmed without the possibility of a filibuster – much like the Senate moved to do in 2013, when it voted to end the ability to filibuster in response to all other judicial- and executive-branch nominees. My prediction assumes that the Democrats (if they win) would prefer to take this historically significant step rather than attempt to reach bipartisan compromise over the next Supreme Court confirmation. A few different factors combine to support this conclusion. These include the precedent the Senate set in 2013; the Republicans’ ongoing refusal to consider Judge Garland’s nomination; and recent statements, such as those made by Senators John McCain and Mike Lee, suggesting that Republicans will not vote to confirm any Supreme Court candidate nominated by Hillary Clinton. (Senator McCain did attempt to walk this statement back, but that doesn’t change my assessment of how Democrats are likely to respond.) In light of these developments, which both reflect and contribute to the highly partisan political climate we’re now experiencing, I would be very surprised if the Democrats were willing to allow Republicans even the option of continuing to block a replacement for Justice Scalia. And while it's possible that, in response to a major Democratic victory, the Republicans would change tack and quickly confirm Judge Garland, new openings on the Court very well may arise between now and January 2021.
If the Democrats were to take this step, they would have the ability to appoint a Supreme Court Justice knowing that they need no support whatsoever from the opposition party. I cannot think of a precedent for this. Even contested confirmation votes (such as Justice Thomas’s vote, in 1991, which had 11 Democrats voting in favor of confirmation, or Justice Sotomayor’s vote, in 2009, which had nine Republicans voting in favor of confirmation) have included some bipartisan backing. And in most of those cases, the opposition party also had the option of resorting to a party-line filibuster. There may be an exception to this unbroken tradition of bipartisan support for successful Supreme Court nominees, but I have yet to find it. Come January 2017, if the Democrats win big, I predict this tradition will end.
This leads to a host of questions. Among them, how would such a development affect what the President might be looking for in a candidate? Would the President be willing to consider, for example, a newly minted lawyer, straight out of law school, statistically likely to serve for the next half-century? (Surely, that’s a step too far – though Justice Story, as the youngest of those joining the Court, was confirmed as a fresh-faced 32-year-old.) More realistically, might the candidate have more of a paper trail than otherwise? Be more ideologically driven?
I also wonder how a razor-thin vote, on party lines and without the possibility of a filibuster, might affect the reception of a newly appointed Justice. Given the Court’s tradition of collegiality, the other members of the Court are likely to be just as welcoming and respectful to such an addition as to any other. But what effects might such an appointment (or set of appointments) have on the legitimacy of the Supreme Court as a whole?
A third set of filibuster-related questions looks beyond the Supreme Court to what might happen if the Democrats also were to take control of the House. (Such an electoral outcome appears unlikely but not impossible.) In that circumstance, would the Senate vote to eliminate the last source of power for the filibuster – namely, its ability to require a Senate supermajority to enact legislation? I think the Senate is somewhat less likely to take this step than it is to change the filibuster rules relating to Supreme Court confirmations, but given the current polling in the House races, it’s something I haven’t spent as much time considering.
By contrast, I have been thinking quite a bit about the various questions surrounding the filibuster and Supreme Court appointments. Because I do think there’s a decent chance we'll soon see a landmark change in how this process works.
Tuesday, October 18, 2016
The Claim that the Media is Rigging the Election--and Citizens United
This post floats a tentative thought, welcoming reaction to it (but isn't that in part what blogging is for?):
Elsewhere, I've addressed the current claims that the election might be rigged through modern-day equivalents of old-fashioned ballot-box stuffing. Here, I want to consider the other current claim being made: that the mainstream media is rigging (or attempting to rig) the election, as Trump, Pence, and other supporters of their ticket are claiming.
My first reaction to this claim was straightforward: the freedom of speech being exercised by the media couldn't possible "rig" an election, because freedom of speech is essential to the functioning of a democracy. Free speech, far from rigging an election, promotes the fairness of elections by monitoring the voting and counting process to assure its accuracy and its compliance with the relevant rules.
While my follow-up thoughts are fully consistent with this initial reaction, I now think there is more that is worth considering on this point--and it relates to the public debate over the propriety of the Citizens United decision.
As I understand it, the Trump-Pence argument that the media could be rigging the election depends on the proposition that the media is improperly distorting the electoral process by persuading voters of the pernicious ideas that the media is disseminating. Persuasion must be the mechanism of the alleged "rigging" because the media is not paying voters to cast their ballots for a particular candidate (which would be a different type of mechanism for "rigging" the election). Perhaps part of the claim is that major media outlets (like CNN?) have some kind of monopoly position in the marketplace idea, which gives them an unfair advantage in the effort to persuade voters of what to think; but this kind of monopolization claim seems increasingly untenable given the diversity of media sources available to voters, who can choose whatever outlets they wish in an effort to gather information and develop their opinions.
Insofar as the media-rigging claim depends on the media's being effective in persuading voters, it is indeed a claim that is antithetical to the very premises of the First Amendment and the role that free expression plays in a democracy. Voters are entitled to be persuaded by whatever expression convinces them. If you disagree with the message that the media is sending to voters, then send the voters a different message of your own: the remedy for "bad" speech is counter-speech, and it is up to the voters to decide what to believe. And in this regard, of course, the media is not monolithic. If CNN is "slanted" in its particular point of view, then watch Fox for a different perspective. Likewise, read the Wall Street Journal and not the New York Times, if you think the Times is unduly liberal.
Now for the relevance of Citizens United: insofar as the attack on that decision rests on the premise that corporate-funded speech will distort the electoral process by persuading voters of its message, it seems the same sort of argument that Trump and Pence are making with respect to the media's capacity to influence what voters think. To be sure, there might be different types of arguments for attacking Citizens United--that corporate money, for some reason, should be off-limits in the process of persuading voters what to think. But if one rejects the idea that CNN and the New York Times are capable of rigging the election because the messages they send to voters about the competing candidates, then presumably to be consistent one should equally reject the idea that Citizens United and other corporations are capable of improperly distorting the electoral process because of the messages these other corporations send to voters.
Conversely, defenders of Citizens United should be taking the lead in condemning the Trump-Pence claim that the media is currently rigging the election because of its messages about the candidates. The First Amendment reasoning that underlies Citizens United rules out the Trump-Pence position on this issue.
One final thought: it seems to me that a well-functioning democracy requires some shared premises among the competing political parties about the nature of the democratic process itself. While the parties compete to win, they agree upon some basic ground rules. One of those basic ground rules, it seems to me, used to be the background condition of free expression as the basis upon which competing parties and groups will attempt to convince the electorate of the correctness of their respective positions. Perhaps, however, like so much else about the electoral process in this strangest of election years, the shared understanding of the role that free speech plays in a democracy is being frayed. If so, then let's hope that after this election we can begin a process of civic renewal that will enable restoration of the shared premises that are essential to a well-functioning democracy.
A lawyer's unexpected 15 minutes
Disenfranchisement and electoral losers
A quick thought in response to this piece arguing democracy depends on the consent of the losers and this Gerard Magliocca post arguing that Trump's rhetoric is not historically unprecedented: Immediately after Obama's inauguration in 2009, non-Obama voters began protesting, and the press began reporting, that they were "disenfranchised." They apparently used the term not to mean they were denied the right to vote,* but that they were "unrepresented" by a president who did not share their policy preferences and thus lacked any voice in government. And, again, the press reported it as a reasonable argument.
[*] Which would have been beyond ironic, given the political focus of recent attempts to limit the franchise.
This gets at another fundamental aspect of republican government that was ignored/misunderstood in the discussion: Being represented and being a full member of the polity does not mean you get all, some, or even any policies that you favor enacted by the candidate you favor. It means you get the opportunity to elect and try to influence people in office to your preferences. If your preferred candidates (and thus your preferred policies) lose, it does not mean you somehow are denied the rights of a full member of the society. It means you have a new opportunity at the next election to try to pick your preferred candidates who will enact your preferred policies. And in the meantime, public policy might go in a direction you do not like. But that is what we consent to.
"McConnell, denounce Trump's 'rigged election' comments"
I have written this Op-Ed for CNN, which debunks Donald Trump's "election rigging" comments and calls on Senator Mitch McConnell to denounce this dangerous and unfounded rhetoric. Here is the intro:
Mitch McConnell must end this nonsense.
The fact is that voter fraud occurs at such a minuscule level that it hardly ever affects a race. Moreover, it does not happen in the way that Trump and other Republicans seem to think: through in-person impersonation or individuals voting multiple times. The only proven fraud that exists, infrequent as it is, entails absentee balloting or paying off poll workers, typically to sway a local election. Voter ID laws, which Trump and others champion as a cure for our elections, would do nothing to solve that kind of fraud.
Read the full column here.
Whither the Trump Coalition?
Thanks Howard for the invitation to join this election symposium and apologies for my late arrival. I've been spending all this time trying to figure out who Billy Bush is.
So things are not looking great for Mr. Trump. The New York Times has put Secretary Clinton's odds for winning the election at 91 percent while Nate Silver has it at 88 percent in his polls only forecast and 85 percent in his polls plus forecast. Trump has resorted to claims that the election will be rigged and along with "America's mayor," Rudi Guiliani, he appears to be encouraging minority voter suppression. And the final days of the campaign leading up to the election has devolved into a battle of the headlines: Clinton emails versus Trump accusers. It would be kind of comical if it weren't happening in real time.
But while there is much to criticize about the Trump campaign, one thing that he successfully exploited to secure the Republican nomination was an obvious incompatibility in the Republican coalition between business republicans and the core Trump supporters of white, mostly male, working class voters with less than college education. President Reagan successfully aligned these two interests with an agenda focused in part on trickle down economics that justified tax cuts for the wealthy and anti-minority rhetoric that provided an excuse for white working class stagnation that trickle down economics would redress. Republican nominees since have campaigned on some version of the Reagan agenda ... hence the invocation of his name during every Republican primary debate.
But Trump decided in the primary to abandon the Reagan agenda and campaign on an anti-trade, anti-immigration agenda that appeals to white working class voters but is contrary to the interest of the business republicans who prefer fewer trade regulations and immigration. And rather than moving toward the middle in the general election through a renewed embrace of a version of the Reagan agenda, Trump has, as he has with many things, doubled down. Assuming Trump loses in 22 days, this Reagan coalition is not going to be easy to put back together. Republican business interests will find a home and that will likely be in the Republican party. But if the Republicans decide during their inevitable reset after the election to try to reclaim the Reagan agenda, while finding some other set of compatible voters to appeal to, whither the Trump coalition?
How a non-infield fly shows the need for the Infield Fly Rule
During Sunday night's Cubs loss (sigh!) to the Dodgers in Game 2 of the NLCS, the Cubs ended the top of the sixth with a double play. With first-and-second/one-out, the batter broke his bat and hit a soft looping line drive towards Cubs second baseman Javier Baez. Rather than charging to catch the ball on the fly, Baez took two steps backwards, allowing the ball to fall at his feet. He then threw to shortstop Addison Russell covering second to get a force-out on the runner on first, then, after some confusion and hesitation by Russell, he tagged the runner on second heading to third following a rundown. (the play went 4-6-5-6, if you're scoring at home). The video is in the above link.
Monday, October 17, 2016
Law School Hiring, 2016-2017, Thread Two
Please leave comments on this thread regarding whether you have received:
(a) a callback from a law school and/or accepted it; or
(b) an offer from a law school and/or accepted it; feel free to also leave details about the offer, including teaching load, research leave, etc. A school listed as "offer accepted" may have made more than one offer and may still have some slots open.
Five miscellaneous things:
1. If you don't want your contact information displayed, enter firstname.lastname@example.org or something like that as an email address.
2. There is a separate thread, "A Clearinghouse for Questions," for general questions or comments about the teaching market. Please do not use the thread below for general questions or comments.
4. The year's first hiring thread is here. Comments to that thread are now closed.
5. If you would like to enter the information on a spreadsheet, the spreadsheet is available here:
You can also add your information to the spreadsheet via this Google form, which was created by someone on the market this year.
Here is a link to the last page of comments.
Originally posted October 17, 2016.
Sunday, October 16, 2016
Substantive Due Process Within Sunday Night's Florida Election Law Decision
Tonight a Florida district court issued an opinion enjoining a state law that does not allow voters to "cure" a signature mismatch in a vote-by-mail ballot. If a Florida voter mails in their ballot without a signature, the state notifies the voter and allows that person to submit an affidavit with a signature. But if the county election workers determine that the signature that is on the envelope does not match the signature on file from when the voter registered, then the vote is deemed "illegal" and is not counted. Tonight the court ruled that refusing to allow a voter to cure this signature mismatch violates the Equal Protection Clause of the U.S. Constitution.
Most people (at least on Twitter) are focusing on the last line of the opinion, which is a doozy: "Justice Stewart once quipped, in reference to pornography, 'I know it when I see it . . .' Jacobellis v. State of Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring). Likewise, this Court knows disenfranchisement when it sees it and it is obscene."
But another line caught my eye, this one in a footnote:
Friday, October 14, 2016
If Trump Never Concedes ...
Chris Cillizza of the Washington Post's Fix observes that the escalation of Trump's rhetoric suggests that he's unlikely to concede defeat no matter what the results of the election show.
I've been thinking about this possibility over the last several days, beyond what I wrote a a couple of weeks ago for Politico.
It's important to recognize a few points:
- Election Night returns are not official certified results. No matter how much of a blowout in favor of Clinton, both in terms of the national popular vote and the Electoral College, that Election Night returns show, our system does not require that a candidate--or a political party--accept them as a definitive statement of the outcome. While we certainly have come to expect the tradition of the Election Night concession in the television era, especially when the results appear conclusive, it bears repeating that there is no official status to preliminary returns--and certainly none to the APs numbers. In short, we don't have a constitutional crisis on our hands if we don't have a gracious concession on Election Night even if the result appears a blow out.
- Our nation has withstood previous presidential elections in which the results were not known, and a concession was not forthcoming, until the canvassing of the returns were complete and the results officially certified. The election of 1884 took two weeks for the canvass in New York to be complete, and with it the official verdict that Grover Cleveland had defeated James Blaine. A similar situation occurred in 1916 as Charles Evans Hughes waited for completion of the canvass in California to confirm that he had lost to Woodrow Wilson. Neither of these examples, moreover, were ones that stressed the system in the way that 1876 and 2000 did. In other words, waiting for official results by itself does not constitute any serious threat to our democracy, which is far stronger than that.
- The key is the absence of violence. In both 1884 and 1916 there was no civil disorder as the nation peaceably waited completion of the official counting process. Whatever Trump does or does not say--assuming preliminary returns do show him to be losing decisively--the country will not be in crisis as long as his supporters do not engage in violent protests.
- To my mind, what will be key is the conduct and statements of Paul Ryan and Mitch McConnell as the leaders of the Republican party in Congress. If they publicly concede that Trump has lost, and the media appropriately reports the significance of their concession, the nation's democratic system can take that as the requisite sign of closure, whatever antics Trump might engage in. Remember, it is a joint session of Congress that constitutionally receives the Electoral College votes from the states under the Twelfth Amendment, and thus Ryan and McConnell have an official, constitutional role in congressional declaration of a president-elect. If and when Ryan and McConnell make clear to the public their intention to exercise this role in service of the Republic, the media should report that as the functional equivalent of the election being over.
- Mike Pence could also help in this process. If he acknowledges defeat, that will go a long way to helping those who voted for the Trump-Pence ticket to achieve closure, even if Trump is steadfastly refusing to acknowledge what would then be the reality of the situation.
- How much time should lapse before Ryan, McConnell, and Pence play this important role? Obviously, there will be intense media pressure for them to make concession-like statements on Election Night, especially if the results point to a Clinton landslide. But it seems to me that it would not be inappropriate for them to wait to give Trump a chance to do the right thing. Of course, the more belligerent Trump's rhetoric, the more important it becomes for Ryan, McConnell, and Pence to come forward quickly with responsible statements of their own.
- In sum, we have the capacity to navigate the situation even if Trump is inappropriately reckless after being defeated. Given our constitutional system, one aberrational individual cannot destroy our country--particularly if that individual has lost the election. (Finally, I'm obviously just assuming now that the Election Night returns may show a resounding victory for Hillary Clinton. Until we see what results the election actually brings, all these thought are simply by way of preparation.)