USNWR law school ranking fiasco ends with a whimper (until next rankings cycle)

In March, I chronicled the repeated problems that cropped up with the latest USNWR law school rankings. I titled it, “The USNWR law school rankings are deeply wounded--will law schools have the coordination to finish them off?” I identified four specific problems that plagued this year’s rankings and offered a few ways forward. I concluded:

Of course, I imagine these, like most such projects, would fall to infighting. It’s one thing for law schools to write a strongly-worded letter decrying what USNWR is doing. It’s another thing to, well, do something about it. I confess my solutions are half-baked and incomplete means of doing so.

But if there’s a moment to topple USNWR law school rankings, it is now. We’ll see if law schools do so.

Well, the answer is, perhaps unsurprisingly, no.

There was no effort, no formality, no movement forward. Law school complained very loudly, and the moment the rankings were released, touted them to prospective students and largely forgot about these issues. Indeed, USNWR delayed releasing its new (controversial) “diversity” rankings of law schools, and still has not done so.

The moment has passed… until next year, when, I’m sure, we’ll see similar cries from law schools and complaints and letters, and little action.

"Supreme Court Raised the Bar for Challenge to GA Election Law"

I have this piece over at RealClearPolitics, “Supreme Court Raised the Bar for Challenge to GA Election Law.” It begins:

The Supreme Court’s recent decision in Brnovich v. Democratic National Committee has prompted extensive commentary about the implications for future challenges to election laws under Section 2 of the Voting Rights Act. Litigants arguing that some laws, such as Georgia’s newly enacted SB 202, disproportionately affect racial minorities may have a greater challenge meeting the standard set forth by the court than the standard that some lower courts had been using in recent years.

But while the justices split on a 6-3 vote on whether a pair of Arizona statutes ran afoul of the Act, it voted 6-0 (with three justices not addressing the question) in concluding that Arizona did not act with discriminatory intent. This holding sets the stage for the Justice Department’s recent lawsuit against Georgia, and it offers hints at how district courts and reviewing courts should behave. In short, the Justice Department has an uphill battle.

"Electoral Votes Regularly Given"

I have this (late stage!) draft at SSRN on a piece forthcoming in the Georgia Law Review, entitled “Electoral Votes Regularly Given.” Here’s the abstract:

Every four years, Congress convenes to count presidential electoral votes. In recent years, members of Congress have objected or attempted to object to the counting of electoral votes on the ground that those votes were not "regularly given." That language comes from the Electoral Count Act of 1887. But the phrase "regularly given" is a term of art, best understood as "cast pursuant to law." It refers to controversies that arise after the appointment of presidential electors, when electors cast their votes and send them to Congress. Yet members of Congress have incorrectly used the objection to challenge an assortment of pre-appointment controversies that concern the underlying election itself. This Essay identifies the proper meaning of the phrase "regularly given," articulates the narrow universe of appropriate objections within that phrase, and highlights why the failure to object with precision ignores constraints on congressional power.

"Brnovich, election-law tradeoffs, and the limited role of the courts"

I have this essay at SCOTUSblog, “Brnovich, election-law tradeoffs, and the limited role of the courts.” It begins:

Arizona “generally makes it quite easy for residents to vote.” This framing from Justice Samuel Alito in Brnovich v. Democratic National Committee set the path for the six-justice majority of the Supreme Court to reject challenges to two Arizona laws.

It marks a major victory for states that seek to innovate or tinker with their election laws — to expand them or to contract them. And it is the latest in a string of cases pushing the federal courts out of second-guessing state election laws.

And from near the end:

Brnovich is the latest in a line of cases suggesting that the federal courts should play a smaller role in the patrolling of how states administer elections. Crawford approved Indiana’s voter-identification law. The court’s 2019 decision in Rucho v. Common Cause said that federal courts should not entertain challenges to partisan gerrymandering under the Constitution. In 2020, it decided a series of cases, including Republican National Committee v. Democratic National Committee, which mostly instructed federal courts not to make late-breaking changes to how states administer elections, even in the middle of a pandemic. And it rejected a challenge to the presidential election in Texas v. Pennsylvania, letting state election officials’ decisions stand.

Without ABA, Biden judicial nominations rolling along

According to the Heritage Foundation’s “judicial appointments tracker,” President Joe Biden has more confirmed judicial appointments through July 7 of his first term (7) than the last six presidents combined (6). Granted, President Donald Trump confirmed a Supreme Court nominee, Justice Neil Gorsuch, in that window. But despite the Trump administration leaving relatively few vacancies, federal judges began retiring at an extraordinary clip at the beginning of the Biden administration. And the Senate, despite a 50-50 partisan divide, has moved expeditiously with nominations, aided by the decline of the filibuster for judicial nominations.

But it’s probably the Biden administration’s decision to dispense with the American Bar Association’s approval process that has expedited the process most of all in these early days. Since the George W. Bush and Trump administrations also dispensed with the ABA, it’s not clear that any administration will pre-clear nominations with it. Indeed, it is likely the Obama administration’s experience and frustration with the ABA’s process that made the decision for Obama-Biden alumni. Without the ABA’s pre-approval process, the Biden administration has been able to move much more quickly and much earlier on any given vacancy.

And the ABA has given glowing recommendations to every nominee thus far. We’ll see if that shine fades in the future, but it’s worth emphasizing a separate frustration from the Obama administration was the ABA’s decision to rate a number of its prospective nominees as “not qualified,” which the Obama administration dutifully scuttled. The Biden administration, it appears, would have no such plan to do so, and so it’s a wait-and-see approach if the ABA ever deems one of Mr. Biden’s nominees to be “not qualified.”

Contributing to the Election Law Blog

I’m honored that Professor Rick Hasen has invited me, along with an all-star cast of election law scholars, to join as a contributor to the Election Law Blog. I’ll continue to blog here, of course, especially on legal education and federal courts issues, but I’ll also occasionally cross-post more in-depth content on election law issues.

Senate Committee hearing: "Examining D.C. Statehood"

I’ve written a little about D.C. statehood issues. I had the honor of participating in the U.S. Senate’s Homeland Security and Government Affairs Committee this week on “Examining D.C. Statehood.” A video of the proceedings, along with my written testimony, are here.

"Despite outrage, new state voting laws don’t spell democracy’s end – but there are some threats "

I have this interview over at The Conversation.

DOJ attorneys routinely mocked 2020 conspiracy theories ahead of January 6

From Professor Rick Hasen, the House Oversight Committee has documents showing the pressure that Mark Meadows and others in the White House had on the Department of Justice to investigate allegations of fraud. Principal officers in the Department of Justice, from my reading, ever flinched. Several resigned in the aftermath of the 2020 presidential election. But two emails struck me.

First was an email January 1 from Mr. Meadows to Acting Attorney General Jeffrey Rosen. Mr. Meadows alleged “signature match anomalies in Fulton county, Ga.” Mr. Rosen forwarded the email to another, “Can you believe this? I am not going to respond to the message below.”

Second was an email forwarded by Mr. Meadows to Mr. Rosen, with the title—I can’t make it up—”Brad Johnson: Rome, Satellites, Servers: an Update - YouTube.” Richard Donaghue at the Department of Justice emailed Mr. Rose, “Pure insanity.” Mr. Rosen responded about why these conspiracy theorists never brought evidence to the FBI, and about why he would not discuss these matters with Rudy Giuliani.

In short, the conspiracy theories surrounding the 2020 presidential election never got off the ground within any faction of the officials in the Department of Justice.