Which sitting Supreme Court justices are most likely to have a law school named after them one day?

I recently took a light survey on Twitter to see which sitting Supreme Court justices might one day have law schools named after them. Given the apparent rise of celebrity culture around Supreme Court justices, coupled with the sizeable gift to George Mason to rename the law school after the late Justice Antonin Scalia, I wondered whether this might be a new trend.

A helpful commenter identified ABA-accredited law schools currently named after former Supreme Court justices: John Marshall (one at University of Illinois-Chicago, and one in Atlanta); Thurgood Marshall; Salmon P. Chase (Northern Kentucky); Louis Brandeis (Louisville); Benjamin Cardozo (Yeshiva); Sandra Day O’Connor (Arizona State); and Antonin Scalia (George Mason). And there are plenty of “centers” (like the Rehnquist Center at the University of Arizona) or federal courthouses (like the Byron White Courthouse in Denver) named after Supreme Court justices.

From the readers’ most likely to least likely candidates—which largely comport with my best guesses. Only three were voted more likely than not to have law schools named after them within a decade of their death.

Ruth Bader Ginsburg. Naturally, the most celebrity-styled justice and the second woman to serve on the Supreme Court received the most votes, nearly unanimous. Whether Columbia would change its name (everyone has a price), or some other law school (New York, DC, or elsewhere) remains to be seen.

Sonia Sotomayor. The first Latina to serve on the Supreme Court, with a small celebrity following of her own—and, I think, a likelihood that a New York law school must be preparing to pitch donors on a package to rename the law school after her one day.

Clarence Thomas. The second African-American to serve on the Supreme Court with a lengthy term of service, a particular originalist methodology, and a small but vocal celebrity following of his own, the right (in more than one sense of the word!) school would have to come along.

John Roberts. Here the voters start to say that it’s more likely that the justice would not have a school named after him than would. And here, the “centrist” or “unanimity-maker” justice may lack the celebrity, despite his role as Chief Justice.

Elena Kagan. I admit, I was surprised to see voters to pessimistic about her. Kagan is a sharp writer and a good public presence in interviews. Perhaps her fate changes in the decades to come—or perhaps she’s simply not the “celebrity” of others.

Neil Gorsuch, Stephen Breyer, Samuel Alito, and Brett Kavanaugh, in that order, were voted overwhelmingly unlikely to have law schools named after them.

In any event, it’s a fairly meaningless survey—but an interesting popular observation about which Supreme Court justices are likely to have the weight to have law schools named after them. Assuredly, much can change in the decades to come!

Trump matches Obama's appellate judicial appointment total in just 2 years, 10 months

The confirmation of Barbara Lagoa to the Eleventh Circuit today was President Donald Trump’s 48th appointment to the federal appellate bench.

Excluding the Federal Circuit,* President Barack Obama appointed 48 federal appellate judges in his entire eight years in office. Mr. Trump has appointed 48 federal appellate judges in just 2 years, 10 months.

There are several overlapping reasons why Mr. Trump has been able to accomplish this.

Senate priorities. This is not only Senate Majority Leader Mitch McConnell making it a priority to confirm judges. It’s also the fact that the Senate has precious few other priorities at the moment. The Democratic-controlled House is not passing legislation designed for the Republican-controlled Senate to enact or that the two could meaningfully compromise on. That leaves one-chamber activity in the Senate the most useful path forward.

Less emphasis on blue slips and home-state deference. This takes a couple of forms. First, the White House is not necessarily deferring to the preferred nominees of home state senators. That can slow the process if senators have a process to review candidates before sending them to the White House, which then must review the candidates and make a nomination. It can also slow the process if there are bipartisan compromises to make. The White House, however, has not been deferring to home-state preferences—at least, not always, and far less with Democratic-controlled Senate delegations. On top of that, the “blue slip” process—where a home-state senator could refuse to approve of a nominee, and the Senate Judiciary Committee had, at times in history, deferred to what effectively amounted to a home-state veto—was shed (for now) for appellate nominees. That not only allows for the Senate as a whole to consider nominees without one state’s senator blocking the process, but it means district court nominees who do face blue slip treatment aren’t being sent to the Senate as a whole—and that means the Senate prioritizes appellate nominees all the more.

Abolishing filibusters. Before 2013, cloture votes for judicial nominees requires a three-fifths vote (60 Senators) in the Senate under Senate rules. In 2013, due to escalating use of the filibuster in judicial nominations, Senate Majority Leader Harry Reid led an interpretation of the rule that effectively abolished the filibuster for lower-court judicial nominees and required a simple majority vote for cloture (follow by a simple majority vote to confirm the nominee). (It also effectively abolished it for executive branch nominees. Mr. McConnell extended the abolition of the filibuster to Supreme Court nominees in 2017.) That has allowed judicial confirmations to occur more easily than in past years.

Lack of ABA deference. The Bush administration refused to pre-screen candidates with the American Bar Association. The Obama administration returned to that practice, and it withdrew candidates the ABA deemed “not qualified.” That resulted in delays for every nomination to go through ABA screening, and it meant that Mr. Obama saw at least 14 nominees rejected by the ABA, then withdrawn internally rather than sent them to the Senate Judiciary Committee. That also meant he had to find new nominees and effectively start the process over again. Without deferring to the ABA, Mr. Trump can move much more quickly. (I’m not convinced the ABA process adds any value.)

Executive priorities. Mr. Obama was criticized for moving very slowly on judicial nominations. In his first nine months in office, for instance, he made just 23 nominations and just three confirmations—only one to the appellate bench. Compare that to President George W. Bush, who had 95 nominations and eight confirmations in his first term. Mr. Obama had other legislative and executive priorities—including addressing the recession, enacting health care legislation, and seeking to shut down Guantanamo Bay—but he also deferred to the ABA and the Senate, which slowed the process further.

Greater number of vacancies. Mr. Obama saw no nominees confirmed in the last year of his presidency—a combination of Mr. McConnell’s “hardball” tactics in the Senate and Mr. Obama’s inability to seek a third term (and make this a salient campaign issue) due to the Twenty-Second Amendment. Mr. Trump certainly entered office with more vacancies than Mr. Obama (but, as noted, Mr. Obama was slow to nominate in the first place). But undoubtedly Mr. Trump also benefits from the timed retirements that have occurred early in his term from Republican-appointed judges taking senior status, including a number of Reagan administration nominees who are quite senior.

In all, then, there are a variety of reasons why appellate judicial confirmations have proceeded at a breakneck clip. It’s a convergence of a number of factors that give us the present federal judiciary. There are actually only a few vacancies on the federal court of appeals left, all with nominees, and all but one almost assured of confirmation in the next couple of months. District court vacancies—due to the blue slip process, the lower priority of Mr. McConnell, and other reasons—remain significant. What the 2020 election cycle will yield, and its impact on the federal judiciary, remains to be seen.

*The Federal Circuit has a unique and narrow jurisdiction compared to the rest of the federal courts of appeals, which are general appellate courts. You may want to include them—President Obama appointed seven to the Federal Circuit (55 counting the 48 other appellate appointments), and President Trump has nominated zero. I exclude them but would not fault you for including them.

Federal judge finds tax return disclosure requirement for ballot access cases violates Elections Clause, First Amendment, and Equal Protection Clause

A federal court in California issued its order (PDF) after enjoining California’s tax disclosure requirement for presidential candidates. Earlier, I noted the court suggested that California’s statute was preempted by the Ethics in Government Act. The court did make that finding. But the court also found it unconstitutional on three other bases.

First, the statute runs afoul of the Elections Clause, meaning California lacked the power to add this rule as a condition of ballot access. (This is the argument I make in Weaponizing the Ballot.) It relies on Term Limits v. Thornton and Cook v. Gralike, in addition to a Ninth Circuit opinion Schaefer v. Townsend that struck down a voter registration requirement as a condition of ballot access.

Second, the court concluded it burdened the associational interests of candidates, voters, and political parties under the First Amendment. The court concluded the burden was “severe” because it was a “functional bar” on candidates who refused to disclose tax returns, a “severe” burden that the state failed to justify.

Third, the court held that it violated the Equal Protection Clause by “distinguishing among constitutionally eligible candidates,”—that’s because general-election independent candidates would not need to disclose their tax returns, but primary candidates would.

In short, the court found four separate reasons why the law failed. We’ll see what happens as this case proceeds to the Ninth Circuit—given that time is precious as the ballot petition period begins in a matter of weeks, and given that the California Supreme Court is considering an independent challenge, we’ll see what choices the parties and the courts make moving forward.

Federal Judicial Clerkship Report of Recent Law School Gradates, 2018 Edition

I've regularly posted judicial clerkship statistics on this blog. This year, I offer something slightly different: "Federal Judicial Clerkship Report of Recent Law School Gradates, 2018 Edition," a report I've posted on SSRN.

This Report offers an analysis of the overall hiring of recent law school graduates into federal judicial clerkships between 2015-2017 for each law school. It includes an overall hiring report, regional reports, overall hiring trends, an elite hiring report, and trends concerning judicial vacancies.

A preview of overall placement:

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There's also been a decline in total law school federal clerkship placement, likely attributable in part to the rise in federal judicial vacancies:

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For these and more, check out the Report!

In the Orange County Register: "Judicial vacancies threaten the rule of law"

Last week, the Orange County Register published my opinion piece, "Judicial vacancies threaten the rule of law." It begins:

There is a judicial crisis in California, but you won’t hear the judges talking about it. Those professionals work tirelessly without complaint. But California needs more federal judges, and it needs them with higher salaries. Otherwise, access to justice will be diminished, and the rule of law will be threatened.

Is the ABA any good at evaluating judicial nominees?

The American Bar Association ("ABA") has long been evaluating federal judicial nominees, and it has received some scrutiny for how it goes about doing so. There have been empirical studies to show that Republican-nominated judicial candidates tend to receive lower scores than Democratic-nominated candidates, studies which admittedly offer their own limitations.

...as an aside, I've also found it interesting to dig through the ratings of those who appeared on President Donald Trump's "list" of prospective Supreme Court nominees:

Brett Kavanaugh: revised rating Q (sm), WQ (min) (backstory on downgraded rating here)

Thomas Hardiman: Q (sm), NQ (min) [on nomination to Third Circuit, WQ (1 abstention)]

Raymond Kethledge: WQ (sm), Q (min)

Amul Thapar: WQ (1 abstention)

Diane Sykes: WQ (sm), Q (min)

Steven Colloton: Q (sm), WQ (min), NQ (min)

Raymond Gruender: Q

Neil Gorsuch: WQ

Timothy Tymkovich: Q (sm), NQ (min)

Bill Pryor: Q (sm), NQ (min)

Federico Moreno: Q

To be fair, there are different traits that might make one a good district court judge, appellate judge, and Supreme Court justice. But it's worth noting, I think, that the very candidates a Republican presidential administration considers as most worthy of a Supreme Court nomination received, on the whole, fairly middling grades from the ABA.

Back to the topic at hand. I want to set those aside for a moment these debates, and look instead at something else. Is the ABA any good at doing what it purports to do?

As the Standing Committee on the Federal Judiciary reports, "the Committee focuses strictly on professional qualifications: integrity, professional competence and judicial temperament." The goal is to "ensure that the most qualified persons serve on the federal judiciary."

Is the ABA any good at that?

In part, that's because the ABA is typically looking backward at a candidate's record, then trying to project it forward to how the ABA believes that person will behave as a judge. It might be the case that past performance is an indicator of future success, but it also might be the case that the ABA is relying on weak measures of "qualifications."

One problem is the "rating" system itself, which lacks any nuance and instead offers the kind of thumbs-up/thumbs-down (and thumbs-sideways) of a movie review. Yes, there are probably several minutes of thoughtful film commentary that could precede that final rating, but, here, the ABA actually leaves all that commentary on the cutting room floor. All we have are opaque inputs and a single output.

One of the criteria that the ABA uses is "experience," and it includes some hard-and-fast proxies for experience: "The Committee believes that a prospective nominee to the federal bench ordinarily should have at least twelve years’ experience in the practice of law." This isn't a terribly thoughtful criterion, even if it has the advantage of being a fairly clear rule. That said, one would be hard-pressed to think a rule like this does very much to fill out the term "qualified" or "not qualified." After all, Roger Ebert might well have said, "If a movie comes in under an hour twenty, I give a thumbs down." But if we have no rush to get younger judges, then perhaps it's a fairly harmless criterion.

Additionally, the committee makes other kinds of ex ante determinations about what makes a good judge, like "substantial courtroom and trial experience as a lawyer or trial judge is important." These tend to skew the judiciary toward those with more practical experience, true; it also skews toward litigators and trial lawyers. For appellate judicial nominees, the ABA places "somewhat less emphasis on the importance of trial experience as a qualification for the appellate courts." It prizes certain types of experience: "While the Committee recognizes that civic activities and public service are valuable experiences for a prospective nominee, they are not a substitute for significant experience in the practice of law in either the private or public sector."

For those presidents who pre-screened their lists of applicants with the ABA, the results can be frustrating. President Barack Obama saw the ABA reject 14 of his prospective judicial nominees as "not qualified" his first three years in office. As Obama administration officials complained, "In particular, they have questioned whether the panelists — many of whom are litigators — place too much value on courtroom experience at the expense of lawyers who pursued career paths less likely to involve trials, like government lawyers and law professors."

Now, perhaps these ABA litigators are right, and perhaps their criteria are superior. Could that be measured? That would be a new and valuable place for future ABA studies. But that is also difficult to quantify. Allow me to offer a few thoughts.

First, we have a handful of notoriously bad-behaving judges we can examine.

Thomas Porteous was rating unanimously "qualified" (not "well qualified"), but he was impeached and removed for committing perjury by signing false financial disclosure forms and abusing his judicial office.

Samuel Kent was unanimously rated "well qualified," but he was impeached and later resigned from office for lying about sexual misconduct involving female employees.

Mark Fuller, in contrast, received a "qualified" rating with a minority "not qualified," before resigning after an investigation involving allegations about spousal abuse. (I should add, maybe this is a hard thing to measure ex ante....)

Second, I looked to a couple of the examples cited recently of more controversial nominees, and then I examined what litigants had to say about those judges in the Federal Judicial Almanac.

Roger Benitez received a substantial majority "not qualified," with a minority "qualified." Here's highlights from the Federal Judicial Almanac on him:

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Alison Nathan received a majority "qualified," with a minority "not qualified." From the Almanac:

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As a law professor who has to read (often inconsistent) student evaluations of my own performance each semester, I'm well aware of the limitations evaluations like these might present. But, in my view, they reflect, on the whole, that both judges are, with some possible weaknesses, capable and competent (even "qualified") judges. And, of course, perhaps someone will counter that using the Almanac has an entirely different set of flaws to evaluate judges.

Now, I have no idea how many Type I & Type II errors come out of the ABA judicial nominating process, at least to the regard that it's trying to anticipate who is "qualified" for the bench. I just cherry-picked a few examples, and I made no effort to dig deeper.

Additionally, these judges are hardly a random sample. They are selected, at times, to comport with the ABA criteria, and, with a couple of recent Republican administration exceptions, exclude candidates unanimously rated "not qualified." Other political reasons sink some nominees. Some items arise so far in the future that perhaps the ABA could not reasonably have been thought to be capable of evaluating that candidate's qualifications.

That said, I do think there would be tremendous value in examining the Federal Judicial Almanac entries of recent nominees and trying to compare them with ABA ratings. I assume, but perhaps I am wrong in the assumption, that the correlation between "qualified" ratings and the feedback from litigants is uneven. Additionally, I wonder if, over the course of a judge's career, the judge's capabilities (particularly instincts regarding exercises of discretion) improve to a degree that lessen the significance of any shortcomings. (Admittedly, learning on the job may be cold comfort to some early litigants!)

All this is to say, I wonder, setting aside the political critiques of the ABA at the moment, whether its evaluation process is even doing what it's designed to do in the first place.

RSS feeds of federal appellate opinions

Even after the death of Google Reader, I've been an avid RSS user for many years, most recently using Feedly. RSS is a simple feed for web pages, and an RSS reader aggregates those feeds into a single location. I follow hundreds of blogs this way, but more than that. I can follow the updates to a pending state law on the legislature's website, the columns from an opinion writer at a newspaper, or an agency's updates in the Federal Register. And unlike Twitter (where I probably have to see it pop up at the top of my feed, and the author must actively share the piece) or Facebook (where I might be stymied by the News Feed's proprietary algorithm that only lets me see certain content), I get to see everything, and everything is held until I open my reader and peruse the headlines.

Yes, RSS can be a bit wonky to the average user, but it's an essential way for me to gather news. That includes federal appellate judicial opinions. Below, I've aggregated the RSS feeds of each of the federal courts of appeal. When given the option, I chose all opinions instead of only "published" or "precedential" opinions. When given the option, I also chose the "summary" or "daily" option that aggregated all the day's opinions into a single RSS item rather than ones that would separate them into independent items. In the event you find a better feed or an error, please let me know!

First Circuit

Second Circuit (no longer operating)

Third Circuit

Fourth Circuit

Fifth Circuit

Sixth Circuit (no RSS, only email subscriptions)

Seventh Circuit

Eighth Circuit

Ninth Circuit

Tenth Circuit

Eleventh Circuit

D.C. Circuit

Federal Circuit (no RSS)

Visualizing law school federal judicial clerkship placement, 2014-2016

The release of the latest ABA employment data offers an opportunity to update the three-year federal judicial clerkship placement rates. Here is the clerkship placement rate for the Classes of 2014, 2015, and 2016. Methodology and observations below the interactive visualization. The "placement" is the three-year total placement; the "percentage" is the three-year placement divided by the three-year graduating class total.

The placement is based on graduates reported as having a full-time, long-term federal clerkship. (A one-year term clerkship counts for this category.) I thought a three-year average for clerkships (over 3600 clerks from the graduating classes of 2014, 2015, and 2016) would be a useful metric to smooth out any one-year outliers. It does not include clerkships obtained by students after graduation; it only includes clerkships obtained by each year's graduating class.

I included some schools that had only one or two year's worth of data, like the separate Penn State schools. Additionally, I merged the entries for William Mitchell and Hamline into Mitchell|Hamline. The three schools in Puerto Rico are excluded.

I should add that we've actually seen a slight decline in graduates placed into federal clerkships, just under 1200 for the second year in a row. Given last year's figures, some might think this is a trend toward judges hiring more clerks with work experience. I'm not sure that's the case. Instead, I would venture to guess that because the Senate last confirmed a federal judge in November 2015, we may be experiencing an unusual number of vacancies--and, therefore, lack of slots for clerkship hires. In the event the President nominates, and Congress confirms, these judges, we could see a few hundred more clerkship openings in the near future. And if Congress chooses to create more judgeships consistent with the recommendations of the Federal Judicial Center, we'd see even more.

I'll highlight two smaller charts first. The first is New York law school placement.

School	Pct	Total Clerks
Cornell University	6.5%	36
New York University	5.8%	84
Columbia University	5.0%	64
Brooklyn Law School	2.4%	26
Fordham University	2.0%	25
Syracuse University	1.8%	10
University of Buffalo-SUNY	1.2%	7
St. John's University	1.2%	9
Cardozo School of Law	1.2%	13
Albany Law School	1.1%	6
City University of New York	1.1%	4
Pace University	0.7%	4
New York Law School	0.7%	8
Hofstra University	0.7%	6
Touro College	0.0%	0

The second is California law school placement.

School	Pct	Total Clerks
Stanford University	27.1%	153
University of California-Irvine	12.5%	40
University of California-Berkeley	12.3%	110
University of California-Los Angeles	4.0%	39
Pepperdine University	3.5%	20
University of Southern California	2.9%	18
University of California-Davis	2.8%	14
Loyola Law School-Los Angeles	2.3%	26
University of San Diego	2.0%	15
University of California-Hastings	1.7%	17
Thomas Jefferson School of Law	0.7%	5
California Western School of Law	0.6%	4
McGeorge School of Law	0.4%	2
Chapman University	0.2%	1
University of San Francisco	0.2%	1
Southwestern Law School	0.1%	1
University of La Verne	0.0%	0
Western State College of Law	0.0%	0
Golden Gate University	0.0%	0
Whittier Law School	0.0%	0
Santa Clara University	0.0%	0

An overall raw chart is below.

St	School	Pct	Total Clerks
CT	Yale University	31.0%	200
CA	Stanford University	27.1%	153
MA	Harvard University	17.6%	312
IL	University of Chicago	15.8%	98
VA	University of Virginia	15.2%	159
NC	Duke University	12.7%	82
CA	University of California-Irvine	12.5%	40
CA	University of California-Berkeley	12.3%	110
MI	University of Michigan	11.1%	119
TN	Vanderbilt University	10.3%	58
PA	University of Pennsylvania	9.8%	77
TX	University of Texas at Austin	9.4%	100
IL	Northwestern University	8.0%	66
AL	University of Alabama	7.6%	35
MT	University of Montana	7.5%	18
IN	University of Notre Dame	7.0%	37
LA	Tulane University	6.6%	45
KY	University of Kentucky	6.5%	26
NY	Cornell University	6.5%	36
VA	Washington and Lee University	6.1%	24
IA	University of Iowa	5.9%	25
VA	William and Mary Law School	5.8%	36
NY	New York University	5.8%	84
GA	University of Georgia	5.8%	36
NC	University of North Carolina	5.7%	40
VA	University of Richmond	5.5%	25
NY	Columbia University	5.0%	64
TX	Baylor University	5.0%	20
MN	University of Minnesota	4.9%	37
PA	Temple University	4.8%	34
MO	Washington University	4.5%	32
MS	University of Mississippi	4.3%	19
DC	Georgetown University	4.1%	81
AR	University of Arkansas, Fayetteville	4.1%	15
UT	Brigham Young University	4.1%	17
WA	University of Washington	4.0%	22
CA	University of California-Los Angeles	4.0%	39
WV	West Virginia University	3.8%	14
UT	University of Utah	3.8%	14
GA	Mercer University	3.8%	16
DC	George Washington University	3.7%	59
DC	American University	3.7%	49
GA	Emory University	3.6%	31
KS	University of Kansas	3.6%	13
IL	University of Illinois	3.6%	19
CA	Pepperdine University	3.5%	20
MO	University of Missouri	3.4%	13
MA	Boston College	3.3%	25
WY	University of Wyoming	3.3%	7
VA	Regent University	3.0%	10
SD	University of South Dakota	3.0%	6
TX	Texas Tech University	3.0%	18
TN	University of Memphis	2.9%	10
NC	Wake Forest University	2.9%	15
CA	University of Southern California	2.9%	18
CA	University of California-Davis	2.8%	14
PA	Pennsylvania State University	2.8%	5
GA	Atlanta John Marshall Savannah	2.8%	1
MS	Mississippi College	2.7%	12
MD	University of Maryland	2.7%	21
GA	Georgia State University	2.7%	16
IN	Indiana University - Bloomington	2.6%	16
TX	Southern Methodist University	2.6%	19
NV	University of Nevada - Las Vegas	2.6%	10
VA	George Mason University	2.6%	12
LA	Louisiana State University	2.6%	15
SC	University of South Carolina	2.5%	15
KY	University of Louisville	2.5%	9
OH	Ohio State University	2.5%	14
AZ	University of Arizona	2.4%	10
FL	Florida State University	2.4%	17
NY	Brooklyn Law School	2.4%	26
LA	Loyola University-New Orleans	2.4%	15
NE	Creighton University	2.4%	9
ME	University of Maine	2.4%	6
CA	Loyola Law School-Los Angeles	2.3%	26
TN	University of Tennessee	2.3%	10
CT	University of Connecticut	2.2%	11
OH	University of Toledo	2.2%	7
DC	Howard University	2.2%	8
CO	University of Colorado	2.2%	11
FL	University of Florida	2.1%	20
CA	University of San Diego	2.0%	15
PA	Widener-Commonwealth	2.0%	5
NY	Fordham University	2.0%	25
WI	University of Wisconsin	1.9%	12
AZ	Arizona State University	1.8%	11
NY	Syracuse University	1.8%	10
NJ	Rutgers Law School	1.8%	22
OH	Case Western Reserve University	1.7%	7
CA	University of California-Hastings	1.7%	17
NE	University of Nebraska	1.7%	6
OR	Lewis and Clark College	1.6%	10
WI	Marquette University	1.6%	10
NM	University of New Mexico	1.5%	5
NC	Elon University	1.5%	4
OH	University of Cincinnati	1.5%	5
TX	University of Houston	1.4%	10
MO	University of Missouri-Kansas City	1.3%	6
AR	University of Arkansas, Little Rock	1.3%	5
OH	Ohio Northern University	1.3%	3
ND	University of North Dakota	1.3%	3
NJ	Seton Hall University	1.3%	8
AL	Samford University	1.2%	5
IL	Southern Illinois University-Carbondale	1.2%	4
NC	Campbell University	1.2%	5
NY	University of Buffalo-SUNY	1.2%	7
NY	St. John's University	1.2%	9
KY	Northern Kentucky University	1.2%	5
NY	Cardozo School of Law	1.2%	13
MA	Boston University	1.2%	8
PA	University of Pittsburgh	1.2%	7
PA	Villanova University	1.2%	7
TX	Texas Southern University	1.1%	5
OK	University of Oklahoma	1.1%	5
NY	Albany Law School	1.1%	6
PA	Penn State - Dickinson Law	1.1%	1
NY	City University of New York	1.1%	4
OK	University of Tulsa	1.1%	3
MA	Northeastern University	1.1%	6
SC	Charleston School of Law	1.1%	5
PA	Penn State Law	1.0%	2
FL	Stetson University	1.0%	9
VA	Liberty University	1.0%	2
MI	Michigan State University	1.0%	9
WA	Gonzaga University	1.0%	4
PA	Drexel University	1.0%	4
MI	Wayne State University	0.9%	4
OR	University of Oregon	0.9%	4
ID	University of Idaho	0.9%	3
FL	University of Miami	0.9%	10
NY	Pace University	0.7%	4
NY	New York Law School	0.7%	8
NH	University of New Hampshire	0.7%	2
NY	Hofstra University	0.7%	6
VT	Vermont Law School	0.7%	3
PA	Duquesne University	0.7%	3
IL	Loyola University-Chicago	0.7%	5
FL	Florida A&M University	0.7%	3
CA	Thomas Jefferson School of Law	0.7%	5
MO	Saint Louis University	0.7%	4
IN	Valparaiso University	0.6%	3
CA	California Western School of Law	0.6%	4
IL	John Marshall Law School	0.6%	7
OH	University of Dayton	0.6%	2
TN	Belmont University	0.6%	1
WA	Seattle University	0.6%	5
CO	University of Denver	0.6%	5
TX	St. Mary's University	0.6%	4
IA	Drake University	0.6%	2
OH	Cleveland State University	0.5%	2
DE	Widener University-Delaware	0.5%	3
MN	University of St. Thomas (Minnesota)	0.5%	2
OH	University of Akron	0.5%	2
IL	Chicago-Kent College of Law-IIT	0.5%	4
TX	South Texas College of Law	0.5%	5
AZ	Arizona Summit Law School	0.5%	4
DC	Catholic University of America	0.4%	2
AL	Faulkner University	0.4%	1
IL	Depaul University	0.4%	3
FL	Ave Maria School of Law	0.4%	1
LA	Southern University	0.4%	2
CA	McGeorge School of Law	0.4%	2
MD	University of Baltimore	0.3%	3
IL	Northern Illinois University	0.3%	1
FL	St. Thomas University (Florida)	0.3%	2
TX	Texas A&M University	0.3%	2
KS	Washburn University	0.3%	1
IN	Indiana University - Indianapolis	0.3%	2
CA	Chapman University	0.2%	1
OK	Oklahoma City University	0.2%	1
MA	Suffolk University	0.2%	3
MI	University of Detroit Mercy	0.2%	1
NC	North Carolina Central University	0.2%	1
CA	University of San Francisco	0.2%	1
MN	Mitchell|Hamline	0.2%	2
FL	Barry University	0.1%	1
FL	Nova Southeastern University	0.1%	1
MA	New England Law | Boston	0.1%	1
CA	Southwestern Law School	0.1%	1
NC	Charlotte School of Law	0.1%	1
TN	Lincoln Memorial	0.0%	0
ID	Concordia Law School	0.0%	0
VA	Appalachian School of Law	0.0%	0
CA	University of La Verne	0.0%	0
MA	University of Massachusetts Dartmouth	0.0%	0
CT	Quinnipiac University	0.0%	0
HI	University of Hawaii	0.0%	0
RI	Roger Williams University	0.0%	0
CA	Western State College of Law	0.0%	0
DC	District of Columbia	0.0%	0
MA	Western New England University	0.0%	0
CA	Golden Gate University	0.0%	0
OR	Willamette University	0.0%	0
OH	Capital University	0.0%	0
CA	Whittier Law School	0.0%	0
NY	Touro College	0.0%	0
GA	Atlanta's John Marshall Law School	0.0%	0
FL	Florida International University	0.0%	0
CA	Santa Clara University	0.0%	0
FL	Florida Coastal School of Law	0.0%	0
MI	Thomas M. Colley Law School	0.0%	0

Congress, the executive, and the FBI: what makes a "constitutional crisis"?

A few longer, meandering thoughts from a few Twitter threads overnight....

President Donald Trump fired Federal Bureau of Investigation ("FBI") Director James Comey last night. As I tweeted last October, the Office of Legal Counsel has long held the view that the FBI director may be removed "at the will of the president." The removal is certainly constitutional. There is a design of independence in the FBI director--he is given a 10-year position, which is designed to insulate him from political pressure, such as the pressure of renewal by the same president who hired him. But that does not mean that he is legally independent.

Much of the commentary that erupted has elided some of these legal and political distinctions. But it's worth noting that the firing itself has elided these distinctions. And it's worth emphasizing why our constitutional order is functioning quite well--hardly a "constitutional crisis." That said, the next political steps will be significant in the extent to which they protect the institutions, and the checks, the Constitution has created.

President Trump could have fired Mr. Comey for no reason whatsoever. But he didn't. He provided reasons linked to Mr. Comey's handling of Hillary Clinton's email server. As commentators have already noted, elements of this justification seem oddly post hoc or a solution in search of a justification. Some have speculated that the true reason was on account of the investigation into the possible relationship between members of the Trump campaign and Russia. (Indeed, President Trump mentions in the cover letter that he is gratified that Mr. Comey has informed him "on three separate occasions" that he is not under investigation.)

Here we see an important legal/political distinction. Legally, President Trump needed no such justification; politically, he felt compelled to come up with a reason. (Apparently, that reason has not been sufficiently persuasive to many.) Because of a political tradition of rarely firing the director of the FBI (President Bill Clinton is the only other to do so, after a lengthy investigation and fact-finding)

Some have opined about the problems of this regime--how can the President be able to fire at will the very person investigating him? Consider Justice Antonin Scalia's words in dissent in Morrison v. Olson (1988) (some citations excluded):

Is it unthinkable that the President should have such exclusive power, even when alleged crimes by him or his close associates are at issue? No more so than that Congress should have the exclusive power of legislation, even when what is at issue is its own exemption from the burdens of certain laws. No more so than that this Court should have the exclusive power to pronounce the final decision on justiciable cases and controversies, even those pertaining to the constitutionality of a statute reducing the salaries of the Justices. A system of separate and coordinate powers necessarily involves an acceptance of exclusive power that can theoretically be abused. As we reiterate this very day, "[i]t is a truism that constitutional protections have costs." While the separation of powers may prevent us from righting every wrong, it does so in order to ensure that we do not lose liberty.  The checks against any branch's abuse of its exclusive powers are twofold: First, retaliation by one of the other branch's use of its exclusive powers: Congress, for example, can impeach the executive who willfully fails to enforce the laws; the executive can decline to prosecute under unconstitutional statutes; and the courts can dismiss malicious prosecutions. Second, and ultimately, there is the political check that the people will replace those in the political branches (the branches more "dangerous to the political rights of the Constitution," Federalist No. 78, p. 465) who are guilty of abuse. Political pressures produced special prosecutors - for Teapot Dome and for Watergate, for example - long before this statute created the independent counsel. See Act of Feb. 8, 1924, ch. 16, 43 Stat. 5-6; 38 Fed. Reg. 30738 (1973).

As Professor Adrian Vermeule has carefully pointed out, the remedies here are political. And they are considerably more powerful, I think, than many otherwise anticipate.

First, the Senate has the power to consent to appointment of the next FBI director.

Second, the House can initiate impeachment proceedings.

Third, Congress can authorize the creation of a special prosecutor to investigate (who might still be removable at the will of the Attorney General).

Fourth, Congress can create an independent commission to investigate the matter.

The likelihood is perhaps another matter. It is worth noting that these political solutions work under limited circumstances: if party that controls the Senate (or Congress) is not the President's party, or if there is bipartisan support for these political solutions, or if one waits for an intervening election, or if Congress can override the President's veto on new legislation. There is some suggestion that this may be a bipartisan moment, at least among some influential moderate and independent Senators. Time will tell. But these are the costs of a political system like we have, as Justice Scalia pointed out in Morrison.

Two notable solutions are likely unavailable.

The first is the independent counsel--the very thing that was approved in Morrison v. Olson. Much time has passed since 1988, and many view Justice Scalia's dissent as unusually prophetic. It may be that the Supreme Court would overrule Morrison--indeed, Justice Elena Kagan offered remarkable praise for Justice Scalia's dissent, and it may well be the case that there are five votes to overturn Morrison. Some in Congress have already mentioned such a possibility, but I believe that would be dead on arrival in Congress, much less in the courts.

The second is a judicial remedy. The battle here will play out between Congress and the executive--and into the political realm in 2018, given our frequency of elections in the United States. The federal courts--absent, perhaps, weighing in on the constitutionality of some such possible new legislation in the future--will remain on the sidelines.

Finally, I've seen people refer to this as a "constitutional crisis," but, as Professor Orin Kerr notes, this phrase has become something too broad. This isn't the Civil War; this is a significant political controversy, to be sure, that will be carried out in Congress, in the executive, and in the election cycle. But it's something our Constitution is actually fairly equipped to handle. What the results will be, and whether one finds those results acceptable, is, I think, quite a different matter.