"If Trump and Pence both get very sick, it’s not clear who would be president/President Pelosi? Invoking the Succession Act would lead to chaos."

That's the headline on a May 20, 2020 WaPo article by lawprof Sanford V. Levinson, which is getting tweeted about this morning as there's a lot of wild talk about Nancy Pelosi becoming the first woman President laterally — that is, breaking not the glass ceiling by opening the glass window that never had a working lock anyway.

It's good to have some sober, thoughtful, professional analysis standing by:

Should only the president become ill, then the vice president can take over, following the protocol laid out in the 25th Amendment. But if the vice president becomes incapacitated as well, then we could face a constitutional crisis. It would be triggered by the inadequacies of the Presidential Succession Act passed in 1947 (when there was no vice president, because Harry Truman had succeeded Franklin D. Roosevelt)....

"One virtue of appointing federal appellate judges to the Court is that these highly judicialized folk are already masters at applying Supreme Court doctrine."

"After all, this is what circuit-court judges do every day: they study and apply what the Supreme Court has said about one legal issue or another. One problem, however, is that Supreme Court precedent can be dead wrong. Sometimes, in fact, it is baloney. And lower-court judges, who daily slice and eat this doctrinal baloney, may be ill-equipped to see it for what it is. Specifically, they may be inclined to think that judges are more right than they really are, and other branches of government, more wrong. A lower court’s job is to follow the Supreme Court’s precedents, whether right or wrong. But the Supreme Court’s job, in certain situations, is to correct its past mistakes—to overrule or depart from erroneous precedents. (Brown famously and gloriously abandoned Plessy v. Ferguson’s malodorous 'separate but equal' doctrine.) Someone who has not spent his or her entire life reading Supreme Court cases — who has instead spent time thinking directly about the Constitution and also spent time in a nonjudicial branch of government with its own distinct constitutional perspectives and traditions — may be particularly good at knowing judicial baloney when he or she sees it."

Writes lawprof Akhil Reed Amar in "Clones on the Court/A Supreme Court that once included former senators and governors is populated today by judges with identical résumés. Here's why that's a mistake."

Clarence Thomas rejects the idea of a judge having a methodology of constitutional interpretation.

Or so it seems. He said:

“You’re supposed to say there’s some angle, some methodology you’re pushing... There’s originalism. There’s textualism. All these useless peripheral debates other than just doing our jobs as best we can.”

Just doing my job as best as I can. That's the modest-selfless-judge methodology... the methodology that dares not call itself a methodology... the methodology embraced by every Supreme Court nominee when he/she comes before the Senate Judiciary Committee ... at least ever since that one guy got borked.

Thomas was interviewed by lawprof Akhil Reed Amar — who has a new book out, "America's Unwritten Constitution: The Precedents and Principles We Live By." I bought that and I recommend it. I got the Kindle version, which allows me to tell you that it contains only 2 mentions of Justice Thomas by name. There's an endnote at 551 about the "contrasting visions" of Brown v. Board of Education "on pervasive display" in the 2007 school integration case Parents Involved in Community Schools v. Seattle School District No. 1, referring to Thomas's "politically conservative reading." And there's a reference, on the same page, to Thomas's questioning whether the Establishment Clause ought to have been seen as applicable to the states through the 14th Amendment (even though he found the 2d Amendment incorporated in the 14th Amendment).

"The lefty-pundit claim that [invaidating the individual mandate] would delegitimize the Court [is] risible."

Says Instapundit, pointing to this poll that says most people would be happy to see the Court strike down the law and saying it's Congress and President Obama who should be seen as "delegitimized" because of the way they "rammed it through using shady procedures in the teeth of popular opposition." And tweaking lawprof Akhil Amar for his life-is-a-fraud hyperventilating.

Also, earlier today, Instapundit linked to my response to to Jonathan Turley's personal attack on me. Turley couldn't take my criticism of his Court-packing plan, and Instapundit had his own (amusing) Court-packing plan: Let's have term limits (18-years) and a requirement that no more than 5 of the 9 to be law school graduates.

"If they decide this [against ObamaCare] by 5-4, then yes, it’s disheartening to me, because my life was a fraud."

"Here I was, in my silly little office, thinking law mattered, and it really didn’t. What mattered was politics, money, party, and party loyalty."

So said Yale lawprof Akhil Reed Amar to WaPo journ-o-list Ezra Klein, prompting National Review's Matthew J. Franck to turn the question around exactly the way I was going to before I saw that Matthew J. Franck already had:

If the Court goes 5-4 in favor of ObamaCare, will that be, you know, like, a totally okay, nonpartisan, statesmanlike decision?

But really how is a lawprof's life a fraud if it turns out that the Supreme Court is governed by politics, money, party, and party loyalty? As a lawprof myself, I see the Court as an object of study. Whatever it does, my work has meaning.

And looking back at what Professor Amar said, I now think he's being funny. I haven't seen his office, but I'm pretty sure it's damned posh — along with his salary — and not "silly" or "little" at all. Obviously, like any smart conlawprof, he knows that the real world of human beings interpreting the Constitution isn't pure, that human emotion, swirling with everything that affects human beings — politics, money, party, and party loyalty — must play its part. What would law — this law that supposedly matters — be without the human element?

It's inconceivable. Or if you could conceive of it — truly and honestly, without the impurities of humanity (and how would you, you being human?) — I think you would find it to be something alien, inhuman, and brutal, and you would never want to live under the regime called "the rule of law."

But Professor Amar, who is a political creature, with partisan and money-based preferences of his own, plays the role of the Yale law professor, applying political pressure to the Supreme Court and to the larger political mechanism (which includes the 2012 presidential election).

Are you enjoying the theater?

"Paying Students To Quit Law School."

A proposal from 2 Yale lawprofs Akhil Reed Amar and Ian Ayres.

"Ahmed Ghailani's trial shows that courts should admit all reliable evidence."

Writes lawprof Akhil Reed Amar:

For more than a century after the Declaration of Independence, no court in America excluded evidence in a case like Ghailani's. Indeed, the very point of a public trial was to enable the members of the public to bring forth their evidence and have it heard by the jury and the gallery: "That's the man! And here's my proof." In 1783, an English court famously confronted a situation in which a suspect had in effect been coerced into leading the government to find a cache of stolen goods. The idea that evidence about the cache should be suppressed at trial was dismissed by the court as "novel in theory," "dangerous in practice," and "repugnant to the general principles of criminal law." A later court tartly summarized the traditional Anglo-American rule about procuring evidence: "It matters not how you get it; if you steal it, even, it would be admissible in evidence." In 1822, early America's most learned jurist, Supreme Court Justice Joseph Story, wrote emphatically: "In the ordinary administration of municipal law the right of using evidence does not depend … upon the lawfulness or unlawfulness of the mode, by which it is obtained. … The evidence is admissible on charges for the highest crimes, even though it may have been obtained by a trespass upon the person, or by any other forcible and illegal means."

The Founders' Fifth Amendment did operate as a rule of exclusion: It excluded the government from introducing the defendant's own involuntary testimony. But it did so precisely because such testimony was viewed as unreliable.

Amar isn't saying Judge Kaplan misunderstood the existing case law on the subject. He wants the Supreme Court to change it:

[T]he high court could categorically hold that even if physical evidence must sometimes be suppressed, live witnesses, who, after all, speak based on their own free will, should never be muzzled....

In addition, the Court could expand an important limitation on the exclusionary rule known as "inevitable discovery." This standard allows the government to use evidence that would have eventually surfaced regardless of any coerced confession or improper search. Courts thus should strongly—perhaps irrefutably—presume that a witness's conscience would have impelled him to come forward on his own.

ADDED: A key fact: The government chose not appeal Judge Kaplan's decision to suppress the evidence.

The Senate has the power to exclude Roland Burris, say lawprofs Akhil Reed Amar and Josh Chafetz.

They look at Article I, Section 5 of the Constitution — which makes each house of Congress "the Judge of the Elections, Returns, and Qualifications of its own members" — and find a power to judge the Blagojevich appointment:

At the founding, Senators were elected by state legislatures. If the Senate believed that legislators in a given state had been bribed into voting for a particular candidate, the Senate could refuse to seat him.

Because of the word "returns" in Section 5, what is true of elected Senators is equally true of appointed Senators. According to the Oxford English Dictionary, a "Return" in the time of the framers involved a report of an appointment made by a sheriff or other official. If the Senate may refuse to seat a person picked in a corrupt election, it likewise may refuse to seat a person picked in a corrupt appointment process.

Amar and Chafetz need to deal with Powell v. McCormack, in which the Supreme Court said that the House did not have the power under Article I, Section 5 to refuse to seat Adam Clayton Powell. That case focuses on judging "qualifications," and the Court said that only relates to the qualifications specified in the Constitution — age, citizenship, and residency. Beyond those 3 qualifications, the people had the power to choose the representative they wanted. But Powell was clearly the people's choice, so what do you do with Powell when the governor appoints the new member? For an accurate analogy for the Burris appointment, imagine if the problem with Powell hadn't been that the members of Congress thought he was corrupt, but that they thought there had been a fraud in the election.

Now, the Powell case was about whether Powell could use the courts to override the decision to exclude him. The argument on the other side was that the House had the final call about the scope of the power to judge the qualifications of their own members. In that view, which the Court rejected, a vote to exclude already embodied the constitutional interpretation that they had the power. Our current discussion of the question of the scope of the power to exclude Burris will affect how the Senators think about the scope of their power, and articles like Amar and Chafetz's should embolden the Senators, and they may vote to exclude him. If that happens, Burris may sue in federal court, and then the court will have to decide whether the Senators' assessment of their own power is the final answer about the meaning of the Constitution.

But doubts about the scope of the Senate's power to look into the circumstances of the appointment may give the Senators pause. The vote to exclude Burris may fail — because of these constitutional doubts and for other reasons. If that happens, Burris will be seated and there will be no occasion for a court to discuss the scope of the exclusion power.

To be sure, there are plenty of other reasons to seat Burris. For one thing, if we rely on the theory that the Senators have the power to exclude him because the appointment process was corrupt, they will need to go through some sort of factfinding process. Blagojevich faces his criminal trial, but he is the duly elected governor of Illinois, with the power to appoint the Senator. What sort of parallel process in the Senate will be needed to make the exclusion legitimate?

In this context, the Senate itself is a judge, in the words of the Constitution, and can decide facts for itself. It need not follow the rules of criminal courts. That means it need not find Blagojevich guilty beyond reasonable doubt, as a court would if his liberty were in jeopardy. It is enough for the Senate to reject Blagojevich's appointee if a majority of senators are firmly convinced that Blagojevich is corrupt and that any nomination he might make is inherently tainted by such corruption.

If the Senators exclude Burris because they simply feel quite certain the appointment is tainted and not because they've gone through some impressive and fair factfinding, when — if — Burris goes to court to override their decision, Burris's argument about the scope of the power to exclude will look much more appealing. The Senate will need to argue that the court should defer, but the court will think less of this notion of deference if the process to be deferred to is not very impressive. Amar and Chafetz recognize this reality of litigation:

To make sure its ruling sticks, the Senate should follow its own procedures with due deliberation. Burris' case can be referred to a committee for careful review. He need not be seated while this committee does its work, and it will be very hard for Burris to persuade any federal judge to interfere in the meantime, especially if Senate Democrats and Republicans unite. With any luck, Blagojevich will be out of office soon enough and a new appointments process (or a special election) can begin that would supersede the attempted Burris appointment.

The delay itself is effective, but it does mire the Senate in an investigation of the Democratic governor. The argument will be made that the effort to exclude is more of a power grab than the governor's attempt to fulfill what is, after all, a duty of his office. Should the Senate Democrats want that? What a nasty preoccupation for Congress at what should be the fresh beginning of a new administration!

Amar and Chafetz make a good argument about the power to exclude but in doing so, they expose the political disaster it would be to vote to exclude.

ADDED: Lawprof Sandy Levinson puts it well:

I don't see how one can mount a good-faith argument against seating Burris unless one is willing to open each and every gubernatorial appointment to some kind of "good-government" scrutiny....

Should the motives of Gov. Patterson [sic] be subjected to relentless scrutiny if he bows to pressure to name Caroline Kennedy as a tribute to a dying senator and, in addition, to get access to the Bloomberg and Kennedy donor list that presumably comes with that appointment?

"Cheney should use this as a teaching moment."

Lawprof Akhil Reed Amar wants Dick Cheney to argue free speech, not official immunity, to win the lawsuit brought by Valerie Plame. To argue immunity is to snuggle up alongside of Richard Nixon in the case law:

Wouldn't it make more sense for him to position himself in the lawbooks alongside John Peter Zenger?

... Cheney should use this as a teaching moment, to explain how a proper understanding of First Amendment principles actually supports him and not the Wilsons, who have claimed that Cheney violated their free-expression rights. The result would be an elegant First Amendment jujitsu, using all the Wilsons' free-press momentum against them, to defeat their lawsuits.

Here is the key fact that Cheney should stress: Unlike Nixon, who fired a government whistle-blower, Cheney did not fire the Wilsons. He merely spoke out against them. True, he did so furtively, in what many might view as an underhanded whispering campaign. But the First Amendment protects a wide variety of speech and expression, encompassing the right to print, orate, and yes, to whisper—even to whisper anonymously and with petty or partisan motivation.

And to whom were Cheney and his fellow defendants whispering? To the press! This is the other key fact for the New Dick Cheney—the Zorro/Zenger Defender of the First Amendment. The Wilsons claim that they were being punished for speaking out against Cheney and the administration. But if the Wilsons have a right to criticize Cheney in the press, Cheney can claim that he has an equal right to criticize the Wilsons when talking to the press, whether on the record or off....

[R]ather than hiding behind the claim that he, like the president, is somehow above the law, Cheney should assert that he—like any ordinary citizen!—has a legally protected right to speak to the press.

Nicely put. Read the whole thing. Amar hasn't convinced me that Cheney ought to set aside the strong defense of immunity and only make the free speech argument. Immunity is an important tool for fending off the many lawsuits that would otherwise be aimed at the individuals who undertake public service. Just because Nixon was involved in using this defense doesn't mean it's sleazy (even assuming you think Nixon is sleazy). Should you have to worry about making a free speech defense because Larry Flynt is unsavory?

But I do like the First Amendment argument. The fact is Joe Wilson made a harsh attack on the administration, and we ought to want to know who he is, in context. There is other law to protect national interests from those who would disclose government secrets. A vigorous inquiry was made into whether that law was violated, and it came up dry. This is a tort suit, and anyone who is rooting for Plame -- feeling the old anti-administration blood lust -- ought to try to calm down for a few minutes and think about the broader picture. Do you really want to intimidate people into silence this way?