The View from Right Field

On the Special Counsel for Donald Trump

I let out a big sigh when I read that Attorney General Merrick Garland has appointed a special counsel to investigate whether Donald Trump should be indicted with respect to the events of January 6 and with respect to confidential documents he took to Mar-a-Lago.  I sighed because, at least to me, the appointment means former President Trump will likely be indicted, and I can’t see that as a good thing.

I don’t know whether former President Trump broke any laws with respect to January 6 or the Mar-a-Lago documents.  I don’t know all the facts, and I don’t know the specifics of the laws.  But, ultimately, I don’t think former President Trump should be indicted because I don’t think it will help the country.  I want former President Trump gone.  And I think the best way to get him gone is to just ignore him.  Don’t talk about him.  Stop giving him the respect of attention.

Solving Gun Violence – Without a Time Machine

I totally understand the calls for new gun control legislation.  What is happening is horrific.  The problem is that most of the proposals involve a time machine.  Let me explain.  Too many of the calls for gun control assume we can go back in time and get rid of the Second Amendment (which would involve going back to the early 1790s).  Or that we can, at least, go back to before the Heller decision in 2008, and get the Supreme Court to issue a different decision in that case (which might require going back before 2008 and getting at least a couple different justices on the Supreme Court). 

Many of them also assume we can go back to a time when we did not have upwards of 400 million guns in the United States. 

Overturning Roe v. Wade – And a Call for the Great Middle of America to Take the Issue Back

In September of 2018, I wrote a post about Roe v. Wade and the possibility that it might be overturned.  (It was the time of the confirmation hearings for Brett Kavanaugh.)  At that time, I said this:

“What people don’t understand in the debate over a woman’s right to choose is that we are not evenly divided between those who support a woman’s right to choose and those who oppose abortion.  Actually, views on abortion are divided among four groups: (i) those who oppose a woman’s right to choose under virtually any circumstances; (ii) those who want abortion available virtually without restriction; (iii) those who would allow it in some situations; and (iv) those who allow it in many circumstances. 

Do Kirkland & Ellis and the Biden Administration Have the Solution to Crime?

With Roe v. Wade getting overturned today, this post is probably a day late and a dollar short.  But here it is anyway:

Paul Clement and Erin Murphy, who won the case in the Supreme Court against New York state’s relatively strict handgun law,  New York State Rifle and Pistol Association v. Bruen, have announced that they are leaving the law firm they were at, Kirkland & Ellis.  According to them, Kirkland & Ellis told them that the firm would no longer take firearms cases and that they needed to stop representing clients such as the New York State Rifle and Pistol Association or leave the firm.  Not surprisingly, Clement and Murphy are leaving K&E.¹  In any case, the lesson is clear: K&E doesn’t want to provide legal representation to unpopular clients – or at least certain unpopular clients.

Two Nations, One Country, Talking Past Each Other

I watched parts of a couple of Sunday morning news shows this morning (for the first time in I don’t know how long).  Among the stories were (i) the January 6 committee hearing last week in prime time and (ii) the protests outside Supreme Court Justice Brett Kavanaugh’s house and the guy arrested and charged with his attempted murder.

With respect to the January 6 committee, I don’t know if I learned much new.  For me, January 6, and the events leading up to it, told me all I needed to know about Donald Trump.  He lost the election, he tried to overturn the results on specious grounds, and he should not be considered any kind of candidate for any kind of office ever again.  The committee hearings may tell me a little more about January 6, but it will only make him look worse, and the prior sentence is still true. 

Right to Choose; Right to Life. Again.

The big deal in Washington on Wednesday, in addition to Covid, was the Supreme Court argument in Dobbs v. Jackson Women’s Health Organization, the case involving the Mississippi law generally prohibiting abortion after fifteen weeks.  Among others things, the question in the case is whether Roe v. Wade (1973), along with Planned Parenthood v. Casey (1992), should be overturned.

I had several thoughts.  I’m going to just list them, maybe not in the right order, but as I think of them.

1. First, I think Roe v. Wade is a poor decision from a legal reasoning point of view. The Court created the three-trimester test out of thin air. It didn’t really justify it; it just stated it.  Without commenting on whether abortion ought to be legal, Roe v. Wade is just poorly done.

Teaching American History in an Age of Woke-ism*

The Wall Street Journal recently had a review of a new book about Berlin after World War II – and especially the Airlift.¹  It looks fascinating.  I have read other books about the Airlift and have been to Berlin to see the sights of it – more than once.  It is a great story: How we turned a former enemy into an enduring friend, while defending freedom in the heart of Europe.² 

But I wonder how the Airlift is taught in school today.  Well, it probably isn’t.  But I wonder how it would be taught, if it was.  Would it be taught as a triumph of American policy and determination.  As a success story in the early days of the Cold War.  Something for Americans to be proud of.

Dreamers – Again

The legal status of “Dreamers,” i.e., children who illegally entered the United States with their parent(s), generally before June, 2007 (though maybe that date would be pushed back by some), is in the news again.  A federal district court in Texas has held that Barack Obama’s Deferred Action for Childhood Arrivals, i.e., Dreamers, program is unlawful and has barred the Biden administration from adding new people to the program.  A good explanation of the decision, by Jonathan Adler, a professor at Case Western Reserve University School of Law, can be found here. 

Several comments¹:

1. Former President Obama tweeted on Saturday that “[i]t’s long past time for Congress to act and give them the protection and certainty they deserve”, which is true.  It is too bad that former President Obama didn’t propose a Dreamers-only law when he was president.  He only wanted to do a comprehensive immigration bill.  After the 2010 election, that was a non-starter, whether for good or ill.  It is possible, however, that a Dreamers-only bill might have gotten enough Republican support to pass.  I don’t know.  But former President Obama didn’t try.  It may have been that there were not enough Democrats willing to pass a Dreamers-only bill.  Maybe there were so many Democrats who wanted a comprehensive immigration bill and were unwilling to break it into parts and vote on the parts individually, that a Dreamers-only wouldn’t have gotten enough Democratic votes to pass, even if some Republicans would have voted for it.  We’ll never know because former President Obama didn’t try.²

2. Also, the Obama administration merely issued an executive order on Dreamers.  It did not pursue t he formal rule-making processes for notice and comment under the Administrative Procedure Act.  I don’t know if that would have made a difference, but they didn’t try, which is unfortunate.  Following the proper procedures and process is always better.

3. If a Dreamers bill passes, it’s got to be the last one.  Ronald Reagan did immigration reform back in the 1980s, which included an amnesty on the basis that we would step up efforts on controlling illegal immigration and that it was a one-time only thing.  If we are going to do it again, and I would happily support a Dreamers-only bill, this has to be the last time – and we have to mean it.

4. Plus, we have to get our immigration system, both legal and illegal, under control.  Things are a disaster now.  I would like to think there are enough people of reasonably good will in Washington to try to do it, but I’m not sure.  It may be that the bases on both sides are so strong, or at least loud, that it is more important to beat the other side than to do something good for the country that might look like a bit of a victory for the other side.
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¹ Prior comments on this subject can be found here and here.
² Donald Trump was pretty much incompetent at governing, there is not much to say about his efforts.

Why Plessy v. Ferguson – and What Might Have Been

Earlier this month was the 125th anniversary of the decision in Plessy v. Ferguson.  The New York Times had an op-ed by Peter Canellos on the only justice to dissent in Plessy: Justice John Marshall Harlan.¹

In his article, Mr. Canellos said this of the Supreme Court’s decision in Plessy:

“The Supreme Court decision in Plessy v. Ferguson … is duly remembered as one of the great abominations in legal history.  By endorsing the notorious separate-but-equal doctrine, it consigned most African Americans to a state of rank oppression.  In the space of no more than 5,000 words, it violated the plain language of the Constitution, engaged in expansive racist dissembling and defied the outcome of the Civil War.”

Writing Constitutions – And Judging Those Who Write Them

This week’s Economist has a review of Linda Colley’s new book on the history of written constitutions, The Gun, the Ship and the Pen.  The book covers the writing of constitutions from the middle of the eighteenth century to the present.  According to the review:

“Above all, Ms Colley argues, the need for innovative, written constitutionalism was driven by the evolving nature of war. … Governments’ need for ever-more manpower to fight these wars – and ever-growing tax revenues to pay for them – led to crises at home that could only be tackled by the concession of new rights and promises of wider political participation. …