RNLA Honors Prof. Ron Rotunda on His Passing

Professor Ron Rotunda, a stalwart leader of the conservative and Republican legal movements, has unexpectedly passed away.  A consummate scholar, he was an expert on constitutional law, federalism, free speech, professional responsibility, legal history, and many other areas of law.  His legal and political analysis was always insightful and witty, enabling non-lawyers and lawyers alike to easily understand complicated concepts and making him a sought-after commentator on many issues.  

RNLA President Elliot Berke said: "When I was in law school, Ron became a legal giant to me as a Constitutional Law scholar. He had worked on Watergate with my Con Law professor so I then only knew him by reputation. Within a few years of graduating, I was fortunate to work with him in the Independent Counsel's office and to become his friend. He leaves behind a tremendous legacy in the law and will be greatly missed." 

Here are some recent highlights from his prolific writing and speeches:

John Marshall and the Cases That United the States of America - published in January, this critically acclaimed book contains Prof. Rotunda's rewritten and condensed version of Beveridge's biography of John Marshall.  It is a fascinating read for scholars of legal history and constitutional law.

"Facebook, Russian Interference and the Monsters on Maple Street" - Verdict, Dec. 18, 2017:

There is nothing new under the sun and there is nothing new about Russian interference. The Russians (and the Soviets before them) spread agitation-propaganda, or “agitprop,” a Russian blend of agitatsiya (agitation) and propaganda (propaganda). Its purpose is to sow discord, fan hatred. . . . 

Non-democracies spread fake news to undermine democracy and manipulate people. . . . There is nothing unusual, or even new, in all of this. When we express surprise, we emulate French Captain Renault in Casablanca who said, “I am shocked—shocked—to find that gambling is going on in here!” (Right after that, an employee says to him, “Your winnings, sir.”) 

What we know of Russian interference tells us much about Putin, the former KGB operative, and much about ourselves. Russia used Facebook and other social media in the year or so preceding the 2016 presidential election, and the period following, to sow discord and mayhem. The point is to amplify social divisions . . . by promoting opposite sides of the political spectrum . . . .

"Using the Licensing Power of the Administrative State: Model Rule 8.4(g)" - The Federalist Society's National Lawyers Convention, Nov. 18, 2017: Prof. Rotunda provided a chilling, yet amusing, analysis of free speech implications of the American Bar Association's new Model Rule of Professional Conduct 8.4(g).

"George Wallace at Harvard—The Good Old Days of Campus Free Speech" - Verdict, May 8, 2017: 

Every generation must relearn the lessons of free speech. It is no accident that Eastern European Communists suppressed speech and art as well as politics and religion. And when the people overturned the Communist dictators of Eastern Europe, they regarded freedom of expression as a premier right. The Czech revolution began in the theatres, and that country’s first freely elected president since World War II was a playwright.

"An English Teacher Corrects Shakespeare" - Verdict, Apr. 10, 2017:

There is also the problem of free speech. People have a right to use ordinary English. Perhaps because we have passed 1984 unscathed, we often ignore the significance of George Orwell’s “Newspeak”. Words both reflect and mold the way that people think, which is why they are so powerful and why the First Amendment is so important. [Northern Arizona University's] Dr. [Anne] Scott is using her power of grading as a way to control how people talk. . . . 

There are limits to the power of words, but there is also a magic in them: not the magic of “abracadabra,” but magic nonetheless. Words have the ability to confuse and to clarify, to help legitimate policies, to generate loyalty, to give the appearance of action, to mold people’s perceptions of the world, to affect the way they approach a problem, and to reflect their innermost thoughts. When people argue about “mere words,” they are talking about fundamentals, about infrastructure, not superstructure. 

When Dr. Scott and Northern Arizona University force students to use certain words and shun others, they are tapping into this power—a power easy to abuse. That is why we have the First Amendment. The government should not punish people for using words that our dictionary blesses.

"The Electoral College Works Fine, Just as It Is" - Verdict, Dec. 5, 2016:

Our Electoral College system prevents candidates with only regional appeal from winning. Statistically, a rule requiring the winner to prevail in a number of sub-elections produces a better result for the country. For the same reason we count the number of games won in the World Series (rather than the total number of runs, which would be heavily influenced by an anomalous game). After all, if Clinton in 2016, won 100% of the popular vote in her home State of New York, thereby prevailing in the nationwide popular vote, those extra votes would not show she had more support nationwide, only that she is a candidate popular in one very populous state. 

The Electoral College penalizes political parties that have only regional strength. In the 2016 election, the Democrats had regional appeal. If you look at a map of the vote for president based on counties, with counties colored red (for Republican), you will see the country painted with a sea of red except, primarily, at the seashores. This regional influence extends in congressional races as well. In the House of Representatives, just three coastal states, California, Massachusetts and New York, now account for a third of all House Democrats. 

The Framers of our Constitution built for the long term and created a system to last for generations. They established a democracy while protecting the rights of the minority. . . . 

The structural limits do not stop here. They created the Electoral College to protect the residents of the smaller states, and they rejected government by simple majority because plebiscites historically have been the tool of dictators, such as Hitler & Benito Mussolini. In modern form, plebiscites arose out of the French Revolution. Madison feared what he called “tyranny by the majority.”

"The ABA Decision to Control What Lawyers Say: Supporting 'Diversity' But Not Diversity of Thought" - The Heritage Foundation Legal Memorandum, Oct. 6, 2016: 

These changes show that the ABA is very much concerned with what lawyers say and who teaches them. The only thing that does not concern the ABA is diversity of thought. The language that the ABA uses to promote its latest foray into political correctness makes this all too clear. Moreover, what the ABA does affects all of us, even if we are not lawyers, because of its governmental power. . . . 

Even when a court does not enforce this rule by disbarring or otherwise disciplining the lawyer, the effect will still be to chill lawyers’ speech, because good lawyers do not want to face any nonfrivolous accusation that they are violating the rules. The ABA as well as state and local bar associations routinely issue ethics opinions advising lawyers what to do or avoid, and most lawyers follow this advice. . . . 

Is it the best use of scarce bar resources to discipline lawyers who may violate a vague rule that prohibits speech because that speech violates the new Rule 8.4(g)? It is not as if the disciplinary authorities are looking for things to do. There are plenty of lawyers who are incompetent, who commingle trust funds, or who cheat third parties. 

The purpose of the new Rule 8.4(g) is to promote a “cultural shift” in the United States. Until now, that was not within the job description of the ABA or of the Rules Governing Professional Conduct.

Rest in peace, Professor Rotunda.

ABA Is Blackballing Trump’s Judicial Nominees for Their Beliefs

RNLA Vice President for Judicial Affairs Eric Lycan wrote today in The Daily Caller about how the American Bar Association (ABA) is showing bias in its evaluations of President Trump's judicial nominees:

[The ABA's] biased reviews of Trump’s judicial nominees are increasingly showing that the qualifications and accomplishments of Republicans, conservatives and libertarians do not outweigh political views which are distasteful to the ABA.

Mr. Lycan describes the signs of bias in the ABA's review of Steven Grasz, a well-respected nominee for the U.S. Court of Appeals for the Eighth Circuit who has had a distinguished career.  Just two examples of inappropriate questioning by reviewers who are supposed to be, and claim to be, neutral:

While ostensibly reviewing his professional qualifications as a lawyer, the ABA reviewers questioned why Grasz’s children attended a religious school. . . . [T]he reviewers began referring to Mr. Grasz as “You people.” When Grasz asked what they meant by “You people” — an ambiguous, exclusionary, and outright derogatory term — the reviewers said they were referring to conservatives and Republicans.

Mr. Lycan concludes by questioning whether the ABA's true goal is excluding conservatives, libertarians, and Republicans from the practice of law:

Any effective lawyer — not just judges — must separate personal opinions from what the law requires as a fundamental part of the practice of law. . . . Under the ABA’s standard, no conservative or libertarian would be able to serve as a judge, or maybe even practice law. The ABA thinks that a conservative’s or libertarian’s views take over a person’s thinking to such an extent that the person cannot think objectively about anything.  And the person cannot even recognize his or her lack of objectivity. 

This may show the ABA’s endgame: to eliminate conservatives and libertarians from the legal profession. There are other ways the ABA, in cooperation with state bar associations, is moving toward that goal, from suppressing speech by lawyers that the ABA disagrees with to different ethical standards being applied to conservative and liberal lawyers. As is starting to happen in other fields, Republican, conservative, and libertarian lawyers may soon need to fight for the right to engage in their chosen profession without abandoning their deeply held beliefs. And that is truly disturbing.

We are grateful to Senate Judiciary Chairman Chuck Grassley for not allowing the ABA's shameful rating of Mr. Grasz to prevent his consideration by the Senate.  Chairman Grassley has scheduled a hearing for Mr. Grasz for next Wednesday, November 29.  As Senators Ted Cruz and Ben Sasse pointed out last week, the ABA's actions demonstrate that it is a liberal advocacy group advancing a liberal agenda on judicial nominations, and the Senate leadership is wise not to allow the ABA to veto qualified nominees.

Sen. Cruz on ABA's Biased Review of Judicial Nominees

Today, as part of the Senate Judiciary Committee's hearing on nominations, Pamela Bresnahan, Chair of the American Bar Association's (ABA) Standing Committee on the Federal Judiciary, testified on the ABA's role in evaluating judicial nominees and in particular, the committee's troubling finding of "not qualified" for Eighth Circuit nominee Steve Grasz.  Senator Ted Cruz of Texas co-chaired the hearing and gave opening remarks strongly critical of the ABA (starting at 3:35:30):

But I think the notion of a non-ideological organization has been belied by the conduct of the ABA over years.  The ABA today is an openly liberal advocacy group. . . . Groups are entitled to advocate their political positions.  But if an advocacy group is pressing for a certain desired outcome, they should not be treated as a fair or impartial arbiter of merit. . . .

Sen. Cruz described examples of the ABA’s “political positions [that] are left of center” and went on:

That bias has, in turn, been seen in the evaluations from the ABA.  In 2012, Political Research Quarterly published a careful statistical analysis of the ABA’s ratings over the years and found that “holding all else equal, individuals nominated by a Democratic president are significantly more likely to receive higher ABA ratings than individuals nominated by a Republican president.”  And the authors specifically control for objective qualifications, rejecting the argument that Democratic presidents somehow selected more qualified nominees. . . . And the authors concluded that “systematic bias exists against Republican nominees.” 

 We’ve seen that over and over again, and in fact, one doesn’t have to look too far back to see how many times the ABA has gotten it wrong.  Judicial nominees that the ABA has opined were not qualified to be judges include Justice Clarence Thomas, include Judge Mike Luttig, Judge Alex Kozinski, Judge J. Harvie Wilkinson, Judge Janice Rodgers Brown, Judge Bill Pryor, Judge Thomas Griffith, Judge Steve Colloton, Judge Tim Tymkovich.  What’s notable is that these are not just federal judges; it is literally a who’s who of some of the most widely respected, most outstanding federal judges in the country.  The ABA said they weren’t qualified, and their actual performance on the bench demonstrated that judges across the country follow their opinions, respect their opinions, that they are leading jurists in the country.  But yet, the ABA’s political bias stood in the way of a fair and objective assessment.

Sen. Cruz later clarified that, for the list he gave, at least one member of the ABA’s committee voted to find the judge not qualified, even if a majority voted the judge qualified.  And he added Seventh Circuit Judge Frank Easterbrook to the list.  

Senator Ben Sasse of Nebraska agreed with Sen. Cruz and emphasized one of his points:

The ABA is a liberal advocacy organization.  That’s not a bad thing.  You can be a liberal advocacy organization.  You have First Amendment rights and you should use them.  What’s not ok is being a liberal advocacy organization and be masquerading as a neutral evaluator of these judicial candidates.

We thank the Republican senators for calling the ABA to task over its biased review of Mr. Grasz.  Such "systematic bias" against conservatives and Republicans should not be allowed to persist unchallenged.

Sen. Sasse Dismantles ABA as Neutral Arbiter of Judicial Qualifications

On the Senate floor last week, Nebraska Senator Ben Sasse demolished the idea that the American Bar Association (ABA) is a neutral and impartial arbiter of judicial qualifications, highlighting their biased treatment of Eighth Circuit nominee Steve Grasz:

Unfortunately, over the last few days in this body, it's become clear that some of us are tempted to outsource our constitutional duties to an outside organization. That organization, the American Bar Association, purports to be a neutral arbiter but is frankly twisting its ratings process to drive a political agenda in an important nomination pending before this body. I'm referring specifically to the smear campaign of the ABA against Steve Grasz, a qualified public servant who has been nominated by the President to the Eighth Circuit Court of Appeals. Steve Grasz has decades of honorable service in Nebraska, including more than a decade as the Chief Deputy Attorney General of my state. Mr. Grasz is in fact eminently qualified for the circuit court bench, as has been testified to by Republicans and Democrats across our state. But let's set the scene first for the ABA's silly decision earlier this week to announce that they regard Steve Grasz as not qualified. I'll highlight three specific items.  

First, we should discuss the two people who interviewed Mr. Grasz and recognize that, unfortunately, they are blatant partisans with a sad track record of hackery. Second, the ABA Is trying to paint Mr. Grasz as an extremist simply because he did his job as the Chief Deputy Attorney General of Nebraska and defended Nebraskans and Nebraska laws that wanted to outlaw the most barbaric of abortion practices — partial-birth abortion. Third, we should talk about the obvious bigotry of cultural liberals evident in their interview process of Mr. Grasz when they asked him repeated questions about nonlegal matters that had nothing to do with the claims of competence of the ABA. 

The ABA's questions and manner of questioning tellingly revealed their bias, in a way that is astounding for an organization of lawyers who should have learned to ask better, more precise, clearer, more on-point questions in the first year of law school:

Third, I know that the ABA has an august-sounding name, but here's the reality of the kinds of stuff they did in their interview of Mr. Grasz. They asked him, “What kind of schools do your kids go to?” I don't really understand the connection to their legal interview, and when they found out that his kids attended a religious institution, they asked him why they would go to a religious institution. Well, it turns out in my state, lots and lots of Lutherans and Catholics and lots of non-Lutherans and Catholics send their kids to Lutheran and Catholic schools. I don’t know what that has to do with someone’s competence, man or woman, to sit as an objective judge on a court of appeals, and yet the interviewers decided they should go there.  

Then they began to refer to Mr. Grasz repeatedly in the interview as "You people." They would frame questions to him and ask about “You people”. At one point, he finally paused and said, “Can you tell me who ‘you people’ are?” because at this point, he didn't know if it was pro-life people, people who send their kids to religious schools, maybe just Nebraskans. They informed him that they were using the term "You people" to mean conservatives or Republicans. 

The ABA continues to deliver "not qualified" ratings for President Trump's nominees, not for any defect in their careers, qualifications, or legal scholarship but because they happen to belong to the dastardly "you people."  Of course, Senate Democrats tout the "not qualified" ratings while ignoring when nominees like now-Justice Neil Gorsuch receive the "gold standard" of a unanimously well qualified rating.  Thankfully Senate Majority Leader Mitch McConnell and  Senate Judiciary Chairman Chuck Grassley are willing to overlook the ABA's pettiness and still consider these excellent nominees.

Judge Thapar: ABA Unanimously Well Qualified -- Not Good Enough for Senate Judiciary Dems

Today, Judge Amul R. Thapar, a U.S. District Court Judge from Kentucky, had his Senate Judiciary Committee Hearing. Judge Thapar is the first circuit court nominee by the Trump Administration.

He earned the ABA's highest rating of unanimously Well Qualified to be a judge on the 6th Circuit, which at one time was called the "Gold Standard" in judicial nominations by Democratic Senator Pat Leahy (VT) and echoed by Democratic Minority Leader Senator Schumer (NY).
Judge Thapar faced a line of questioning reminiscent of the recent hearing for Justice Gorsuch, albeit slightly more subdued. Politico summarized the hearing as follows:

Asked by Sen. Richard Blumenthal (D-Conn.) to address the denigration of federal judges, Thapar evaded any direct comment on Trump's rhetoric, but he said it was unlikely to have much impact because federal judges are thick-skinned and have lifelong tenure. . . ."I am a proud Article III judge. We've been criticized from the beginning of this great country," Thapar said. "What I will say about me and my colleagues is it doesn't matter to us." . . . 

Thapar also faced pointed questions from Democrats about his affiliation with the conservative Federalist Society. Trump last year had included both Gorsuch and Thapar, 47, on a list of judges he said he would choose from when making nominations to the Supreme Court, and the possibility Thapar could someday be elevated to the high court was a subtext of Wednesday's hearing. Thapar was one of four individuals reportedly interviewed by Trump for the Supreme Court vacancy. 

Under questioning by Sen. Sheldon Whitehouse (D-R.I.), Thapar said Wednesday he was surprised to learn from a law clerk after a court session last fall that he'd been named to Trump's list. "I have no idea how I got on the list. I wasn't notified ahead of time," Thapar said. . . . Whitehouse and Sen. Dick Durbin (D-Ill.) noted that the list was prepared by the Federalist Society and by the conservative Heritage Foundation, but Thapar insisted he'd made no pledge of ideological fealty to those groups. "I'm my own judge, and I hope my track record speaks to that," he said. He called the Federalists "an open-debate society." Durbin appeared skeptical of that explanation.

Also, entered into the record, by Chairman Senator Grassley, was a written statement signed by a diverse group of 23 lawyers who all clerked under Judge Thapar:

Each of us spent a year working closely with Judge Thapar in his chambers, and we can each attest that he is an exemplary judge, a devoted mentor, and a great person. First, and most importantly, Judge Thapar is an exceptional jurist. There is only one rule in his chambers: get the law right. Judge Thapar works diligently with his law clerks to ensure that every decision he makes is in accordance with what the law requires. Judge Thapar gives equal attention and a fair hearing to every litigant in every case that comes before him. From individual social security 2 disability claimants, to incarcerated inmates, to large multinational corporations, every party gets a fair hearing from Judge Thapar. . . .

We firmly believe there is no one better than Judge Thapar to fill the open seat on the Sixth Circuit. If confirmed, we are confident that Judge Thapar will approach his job on the appellate court the same way he has approached his job on the district court—with dedication to the law, with a prodigious work ethic, and with respect for all parties who appear before him. We hope the Senate will confirm Judge Thapar quickly. 

According to The Washington Times, there are some 19 circuit court vacancies and more than 100 district court vacancies in need of nominees, perhaps giving President Trump the opportunity to reshape federal courts. However, it looks like this line of questioning will likely be repeated against most, if not all, of President Trump's judicial nominees.

The Leahy Rules for Supreme Court Confirmation Mean Gorsuch Must Be Confirmed

In preparation for the Gorsuch hearing next week, we thought we would mention some of the Democrat Rules for confirmation of a Supreme Court Justice from their most senior member. The Leahy Rule (Part 1) on the President’s power to pick a Supreme Court Justice.

And I think as members of the [Judiciary] Committee, we should respect the mandate the president has earned.  The president had told us in 1980 and 1984 he would appoint judges of his philosophy.  He was given a mandate to do that.  This Committee, if the nominees are otherwise qualified, should respect that. (Senator Patrick Leahy, Meeting of Senate Judiciary Committee 69, Aug. 14, 1986, discussing Justice Scalia.)  

This quote is incredibly relevant as President Trump ran on Gorsuch as a possible nominee.  Thus, he deserves even more respect than President Reagan on that front.   

The Leahy Rule (Part 1) dictates Gorsuch be confirmed as long as he is “otherwise qualified.”  The Leahy Rule (Part 2) dictates that the ABA rating of a nominee is the gold standard.  As current Judiciary Chairman Chuck Grassley stated recently (emphasis ours):

With less than two weeks to go before he appears before the Senate Judiciary Committee for a hearing on his nomination to the Supreme Court, the American Bar Association on Thursday gave 10th Circuit Judge Neil Gorsuch its highest possible rating.

“The ABA’s ringing endorsement is no surprise given Judge Gorsuch’s sterling credentials and his distinguished decade-long record on the Tenth Circuit,” Senate Judiciary Chairman Chuck Grassley, R-Iowa, said in a statement. “Former Chairman [Sen. Patrick] Leahy and [Senate] Minority Leader [Chuck] Schumer have called the ABA’s assessment the ‘gold standard’ in evaluating federal judicial nominations. In light of Judge Gorsuch’s impeccable record, it’s hard to imagine any other result from the ABA’s consideration.”

The Leahy Rules mean that Judge Gorsuch should be promptly and easily confirmed. 

Different Ethical Standards for Republican and Democratic Lawyers?

Is there a different standard under the ethical rules governing lawyers for Republicans and Democrats?  According to some recent actions by liberal attorneys, they think there is.

Fifteen liberal law professors filed an ethics complaint with the DC bar, alleging that Kellyanne Conway violated Rule 8.4(c) of the D.C. Rules of Professional Responsibility by engaging in “dishonesty, fraud, deceit, or misrepresentation.”  As RNLA member Maya Noronha explained on the Fed Soc Blog, this presents a serious misuse of the ethics rules and implicates the First Amendment:

Many legal ethics professors, such as Jack Marshall, Jonathan Turley and Steven Lubet, have said these complaints against Conway are meritless. Exaggerations, misstatements, or gaffes occur on political talk shows.  But do they constitute professional misconduct comparable to such actions like embezzlement, blackmail, fraud, and bribery, acts that undoubtedly violate the rule?  Bar disciplinary rules are in place to ensure clients are not injured by misconduct, to deter future misconduct, and to promote a good reputation for the legal profession. It’s not quite clear how Conway, who has not practiced law since 1995 and does not even have an active license in D.C., is causing “shame” to the legal profession, as the bar complaint alleges. 

Bar disciplinary committees have the authority to institute such sanctions as reprimand, probation, suspension, and disbarment, but bar complaints can have other implications, even if disciplinary committees never reviews the complaints.  Bar complaints can be used as a tactic to tarnish the reputation and even silence individual lawyers. Meanwhile, the people lodging the complaint can get interviews and free press. 

But the First Amendment concerns are even more serious. Bar complaints inviting disciplinary committees to take a position on political commentary invites politically motivated bar discipline and discourages lawyers from speaking about controversial political issues. Several decades ago, Justice Black warned that “the rights of a lawyer…to practice cannot be left to the mercies of his prospective or present competitors.”

When even a liberal Democrat law professor writes a scathing article in Slate explaining that the complaint is "dangerously misguided," it is clear that there is no merit to this politically motivated complaint.

This is just one example of a disturbing trend of applying different ethical standards to conservative and liberal lawyers and using the bar disciplinary system as a political tool.  With the ABA trying to extend the reach of bar discipline into lawyers' social activities, this trend is even more disturbing.

VP Pence on Gorsuch: "Worthy Successor to Justice Antonin Scalia"

On Saturday, Vice President Mike Pence spoke on Judge Gorsuch's nomination to the Supreme Court at Congress Hall in Philadelphia, Pennsylvania, in an event sponsored by The Federalist Society.  Here are excerpted highlights of Vice President Pence's remarks:

[The Constitution] was, it is, and I believe will forever be the greatest charter of liberty our world has ever seen.  It's fostered our nation's unparalleled success.  And it is to this day the greatest bulwark against tyranny in history.  This is the Constitution that President Trump and I have both sworn to uphold. . . . And I promise you, we will keep that oath.

The American people elected President Trump, I believe in significant part, because of his vow to . . . nominate someone to the Supreme Court in the mold not only of Justice Thomas but of the late and great Justice Antonin Scalia. . . . Justice Antonin Scalia's devotion to the Constitution will be forever remembered by the people of the United States of America. 

I can say with the utmost confidence that Judge Gorsuch is a worthy successor to Justice Antonin Scalia. . . . When you get right down to it, Judge Gorsuch, plain and simple, is one of the most mainstream, respected, and exceptionally qualified nominees in American history.  But don't take my word for it.  That was actually the conclusion of the American Bar Association in 2006. . . . [T]he ABA gave him a unanimous rating of well qualified, which is the highest possible recommendation.  And the United States Senate agreed.  Only two months after Neil Gorsuch's nomination to the court of appeals, the Senate confirmed him by a unanimous voice vote.  And nearly a third of those senators on both sides of the aisle are still serving in the Senate today. 

In his decade on the Tenth Circuit, he's established himself as a fair and impartial judge who's been faithful to the Constitution.  He's well-known by his peers as a keen legal thinker, and just as important, a clear legal writer.  It's evident to all that he's a man, also, of high character and courage, indispensable qualities for a jurist. 

Our constitutional order requires the rule of law without exception.  We are, after all, a nation of laws. Judge Gorsuch firmly understands this.  He's said on many occasions that judges must apply the law as written without regard to their own politics or personal feelings.  He put it well on Tuesday, and movingly, saying: "In our legal order, it's for Congress, and not the courts, to write new laws."  He added: "It is the role of judges to apply, not alter, the work of the people's representatives."  And my favorite line [was]: "A judge who likes every outcome he reaches is very likely a bad judge, stretching for results he prefers rather than those the law demands." I don't know about you, but that's my kind of Supreme Court justice. 

Judge Gorsuch's record on the bench clearly demonstrates his fidelity to the wisdom of the Founders rather than the whims of our own day and age.  He's written more than 200 published opinions in his decade on the Tenth Circuit.  And if you read them all, . . . an unmistakeable picture emerges.  He's an originalist and a textualist who will pick up right where Justice Scalia left off.  Judge Gorsuch has such a long history of holding the separation of powers and the checks and balances between the three branches.  He also defends the Constitution's unique system of federalism, and he restricts the national government to the specific and enumerated powers enshrined in the Constitution while leaving to the states much more sizable control over their lives and destinies. . . . By defending [these mechanisms], Judge Gorsuch has shown himself to be a true friend of our freedoms. . . . Our Constitution and our country will be stronger with him on the Supreme Court. 

Never before in the history of our country has an Associate Justice nominee to the Supreme Court faced a successful filibuster, and Judge Neil M. Gorsuch should not be the first. . . . We will work with the Senate leadership to ensure that Judge Gorsuch gets an up or down vote on the Senate floor, one way or the other.  This seat does not belong to any party, or any ideology, or any interest group.  This seat on the Supreme Court belongs to the American people, and the American people deserve a vote on the floor of the United States Senate.

Thank you, Vice President Pence, for your commitment to supporting the rule of law, the Constitution, and our founding principles through the nomination of Judge Gorsuch to Justice Scalia's seat on the Supreme Court.

ABA Tries to Suppress Lawyers' Speech, Even in Social Activities

The ABA recently adopted, by voice vote, an amendment to the model rules of professional conduct containing a speech code for lawyers.  Speech codes have become increasingly popular on college campuses, and when challenged in court, are unsurprisingly almost always found to violate the First Amendment (when enacted in a public college or university).  Eugene Volokh explains the meaning of the new model rule and its chilling implications:

The American Bar Association has adopted a new provision in its Model Rules of Professional Conduct — an influential document that many states have adopted as binding on lawyers in their state. . . . Here is the relevant text (emphasis added):

It is professional misconduct for a lawyer to . . . engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. . . . Discrimination and harassment . . . includes harmful verbal or physical conduct that manifests bias or prejudice towards others. . . . Conduct related to the practice of law includes representing clients; interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice of law; operating or managing a law firm or law practice; and participating in bar association, business or social activities in connection with the practice of law. . . .

So say that some lawyers put on a Continuing Legal Education event that included a debate on same-sex marriage, or on whether there should be limits on immigration from Muslim countries, or on whether people should be allowed to use the bathrooms that correspond to their gender identity rather than their biological sex. In the process, unsurprisingly, the debater on one side said something that was critical of gays, Muslims or transgender people. If the rule is adopted, the debater could well be disciplined by the state bar . . . .

Or say that you’re at a lawyer social activity, such as a local bar dinner, and say that you get into a discussion with people around the table about such matters — Islam, evangelical Christianity, black-on-black crime, illegal immigration, differences between the sexes, same-sex marriage, restrictions on the use of bathrooms, the alleged misdeeds of the 1 percent, the cultural causes of poverty in many households, and so on. One of the people is offended and files a bar complaint. 

Again, you’ve engaged in “verbal . . . conduct” that the bar may see as “manifest[ing] bias or prejudice” and thus as “harmful.” This was at a “social activit[y] in connection with the practice of law.” The state bar, if it adopts this rule, might thus discipline you for your “harassment.” And, of course, the speech restrictions are overtly viewpoint-based: If you express pro-equality viewpoints, you’re fine; if you express the contrary viewpoints, you’re risking disciplinary action. 

Volokh concludes that the goal of the speech code appears to be suppression of speech with which the ABA disagrees:

Many people pointed out possible problems with this proposed rule — yet the ABA adopted it with only minor changes that do nothing to limit the rule’s effect on speech. My inference is that the ABA wants to do exactly what the text calls for: limit lawyers’ expression of viewpoints that it disapproves of. 

While this rule could likely be successfully challenged in court should any state bar or state courts adopt it, it will suppress speech merely by its existence.  Attorneys should not need to live in fear of an ethics complaint for expressing an unpopular view, any more than organizations should have to live in fear of government investigation for expressing politically incorrect views.