On November 18th, at the Federalist Society’s National Lawyers Convention, I joined a trio of eminent national-security-law experts—Texas’s Steve Vladeck, the Brennan Center’s Liza Goitein, and GW’s Brad Clark—for a lively panel on Justice Scalia’s legacy in our field. That was also the theme of an essay I wrote for Lawfare in the wake of Justice Scalia’s passing in February.
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It was a few years ago, on a panel at American University’s Washington College of Law, that I heard Brad Berenson—who served in the White House Counsel’s office under President Bush—make an arresting statement about the American Presidency.
John Adams's famous aspiration is not our reality: We live in a government of men, as well as laws.
One of those men, the most powerful of them all, may soon be Donald Trump.
So as the late Joan Rivers might have said, "Can we talk?"
This has nothing to do with national security, but I have a feeling it will be of interest to many Lawfare readers anyway. Miguel Estrada and I have an essay out in the Washington Post on the judicial confirmation process and the politics of replacing Justice Scalia. We are, shall we say, skeptical of the "principled" arguments of both parties. It opens:
In my view, at least, Justice Scalia's public statements on national security issues and his one majority(-ish) opinion in a "canonical" national security case (in Ashcroft v. al-Kidd) could lead folks reasonably to question just how faithful Justice Scalia was to his first principles where national security was involved. That doesn’t in any way diminish the late Justice’s track record (or Adam’s elegant reflection upon it); it just suggests that, as is so often the case, adding national security-specific considerations to the mix tends to complicate matters.
Justice Antonin Scalia’s views on much of national-security litigation are embodied in an awkward moment during my clerkship interview. Justice Scalia, like most judges, believed that an aspiring law clerk’s transcript should be mostly black-letter law courses, rather than esoteric seminars and other “fluff.” (He’s right, but that’s another story.) My law-school record had a respectable proportion of black-letter law but also plenty of Lawfare fodder: international law, IHL, and various national-security-law seminars (including some taught by Lawfare’s own Matt Waxman).