Analysis and Commentary on Politics

What’s Really at Stake in the Controversy Over Elizabeth Warren’s Past Claims of Native American Ancestry

Justia columnist and Cornell law professor Michael Dorf comments on the controversy that is brewing regarding Elizabeth Warren, the likely nominee for the Massachusetts Senate seat most recently held by Ted Kennedy. The controversy stems from Warren’s mentions of her Native American roots, and it turns out that Warren is, in fact, 1/32d Native American (specifically, Cherokee), so that her claim of having Native American roots is technically true, even if those roots are minimal. So why is the controversy continuing? Dorf suggests that it is because Republicans are trying to somehow connect Warren’s roots to affirmative action issues, even though there seems to be no evidence that Warren was ever herself a beneficiary of affirmative action. The Republicans’ goal, Dorf suggests, is to use affirmative action as a wedge between minority voters and working-class white voters.

Revisiting Woodward and Bernstein’s Watergate Reporting: A New Smoking Gun?

Justia columnist and former counsel to the president John Dean comments on a fascinating new twist in the Watergate story—evidence that Woodward and Bernstein spoke to Watergate grand jurors. The evidence was unearthed by Jeff Himmelman, who has written a biography of former Washington Post executive editor Ben Bradlee, who served during the Watergate years. It consists of a seven-page memorandum, dated 1972, that summarizes a conversation between Bernstein and a Watergate grand juror. The find prompted Bernstein recently to comment wryly, “Maybe they’ll send us to jail after all.” The memorandum is all the more notable because it is clear that Judge Sirica, who presided over the Watergate grand jury proceedings, did not believe that Woodward and Bernstein had obtained any information from any grand juror. Dean tells the story of how Woodward and Bernstein managed to avoid suffering consequences, despite their having intentionally had contact with at least one grand juror. He also provides a sampling of attorneys’ opinions as to whether the law was, or was not, broken, assuming that contact between Woodward and Bernstein and one or more grand jurors did indeed occur.

What Would Life Be Like Under a President Romney? The First in a Series of Columns Analyzing What Mitt Romney Would Do As President

Justia columnist, George Washington law professor, and economist Neil Buchanan looks at past and current evidence to predict what might happen during a possible Romney presidency. First, Buchanan covers Romney’s botched attempt to court female voters by claiming erroneously that President Obama was to blame for layoffs affecting women, and traces the real responsibility for women’s layoffs to schoolteacher firings, which Romney has supported. Buchanan also argues that it will be difficult for voters to isolate a clear set of beliefs that Romney has consistently held dear, which is troubling. Buchanan asks who the “True Romney” really is, and warns that it may not be the moderate Romney who governed Massachusetts. Instead, he contends, today’s Romney will stay conservative in order to gain a second term as president. Finally, Buchanan contends that, even if Romney did remain moderate while in the White House, Republican extremists at every level of government would still push him toward extremism at every juncture.

A Politically Moderate Constitutional Law Professor Examines the Gender Gap in This Presidential Election

Justia columnist and Cardozo law professor Marci Hamilton takes very strong issue with Republicans’ current stances on issues that are of importance to women, such as contraception access, equal pay for equal work, violence against women, and child sex abuse. As a politically moderate woman herself, Hamilton notes that she would find it very difficult to support the package of views and proposals that the Party is offering voters this year. Interestingly, Hamilton observes that, had Rick Santorum never run for president, the other candidates and the voters might never have focused on these issues, and the issue of the economy might, instead, have dominated Republican speeches and stances in the run-up to the election. But because Santorum did run, Hamilton predicts that Mitt Romney, too, will face a very significant gender gap at the polls this year as he, too, is forced to address these issues—for female voters will likely be uncomfortable with some of his answers.

Good Luck, Wisconsin, You’ve Got A Classic Authoritarian Governor: Part Two in a Two-Part Series on Scott Walker

In the second in this two-part series of columns, Justia columnist and former counsel to the president John Dean puts together substantial evidence suggesting that controversial Wisconsin governor Scott Walker possesses disturbingly authoritarian personality traits. Dean’s analysis draws from both his own 2006 book, Conservatives Without Conscience, and the work of Professor Robert Altemeyer. Here, in Part Two, Dean explains in greater detail, based on evidence from Walker’s life, why he believes that Walker is a “double high authoritarian”—a suggestion which, if true, would be very troubling, Dean explains, as those with such personalities tend to find it difficult to govern in a democratic fashion. With Walker facing a recall vote on June 5, voters will have another chance to assess their governor and consider whether they believe Dean is correct.

‘The One Percent’ and the Rewards of Education: Collecting the Revenue Necessary to Send More Americans to College Is Vital

Justia columnist, George Washington law professor, and economist Neil Buchanan takes strong issue with several arguments that have often been made by Republicans in the run-up to this year’s presidential election. Specifically, Buchanan counters arguments that taxpayers should not help pay for others’ college educations—and perhaps not their K-12 educations, either. He also takes on the two mutually contradictory arguments that (1) college is a waste of time and money, and (2) college education is the only force driving economic inequality. As to the first argument, Buchanan points out that education is a key indicator of economic progress, and that as we stagnate in our population’s educational achievement, other countries eagerly seek out more college education for their own people. As to the second argument, Buchanan argues that it can be rebutted by basic statistics, and that, even if it were true, the logical response would be to broaden American educational attainment.

An Educated Population Is Essential to a Nation’s Prosperity, yet Some Politicians Are Demonizing Our Educational System for Political Advantage

Justia columnist, George Washington law professor, and economist Neil Buchanan comments on the recent Republican attack on American education. Buchanan begins by emphasizing the copious evidence showing that education leads to national prosperity. In addition, he contends that it only makes sense for everyone who benefits from our educational system—meaning all Americans—to together pay for that system, including via student loans. Citing recent comments by candidates Mitt Romney and Rick Santorum, Buchanan critiques and opposes their, and other Republicans’, seeming disdain for education. Buchanan argues that if you focus on the facts, education has been proven, over and over, to be well worth its cost. Other countries clearly know this, Buchanan points out, citing notable examples, and if we forget this truth, he says, we will surely fall behind as a nation.

A Fair Question: Is Governor Scott Walker a Conservative Without Conscience?

In this two-part series of columns, Justia columnist and former counsel to the president John Dean comments on authoritarian personality traits, drawing from his own 2006 book, Conservatives Without Conscience, and from the work of Professor Robert Altemeyer on this subject. In particular, Dean raises the question of whether controversial Wisconsin Governor Scott Walker might be categorized as having an authoritarian personality. In this column, Part One in the series, Dean explains the personalities of authoritarian dominators and followers, and unravels the conundrum of how some people (called “Double High Authoritarians”) may test as both dominators and followers at the same time. Dean notes that such people are especially frightening, and explains why that is the case. In addition, Dean ascribes some part of the Nixon White House’s dysfunction to the large contingent of “Double Highs” in the Administration, including Nixon himself. Finally, Dean begins his analysis of Governor Walker, which he will complete in Part Two of this series of columns.

The GOP, Privacy and Reproductive Rights, and the Backlash

Justia columnist and Cardozo law professor Marci Hamilton comments on the recent attack on reproductive and privacy rights by GOP presidential candidates Rick Santorum and Mitt Romney. Hamilton notes that some state legislatures, such as those of Ohio and Utah, have also taken similar stances—with Arizona and Kansas very possibly following the trend. Hamilton questions the wisdom of these stances, in light of the fact that a sizable majority of the country is not opposed to contraception, and the fact that only with the support of independent and moderate voters could the GOP candidate possibly beat President Obama’s re-election bid. Hamilton also notes that there has been a substantial backlash against such measures, by female legislators who are registering their protest by introducing laws that would, for instance, make it harder for men to obtain Viagra, and regulate ejaculation except when it occurs in the context of conception. Vasectomies, too, have been the target of the female legislators’ efforts—which, of course, are not serious attempts at getting laws passed, but are very serious attempts to draw attention to what the legislators believe is a dangerous attack on women’s rights. Hamilton adds her own “modest proposals” to those of the female legislators, and warns that moving into this delicate and personal area may cost the GOP the presidential election and/or congressional seats.

Getting Watergate’s History Right: Max Holland’s Page-Turner Explaining Deep Throat’s Motives

Justia columnist and former counsel to the president John Dean discusses recent Watergate-related books and other writings, as we approach Watergate’s 40th anniversary. Dean makes the interesting observation that as more and more information is being released about Watergate, more writers are getting its history wrong, perhaps because of the difficulty of sifting through the massive record that now exists. Dean praises Mark Holland, however, as a sterling exception to that rule—noting that Holland’s book, which focuses on why Mark Felt became “Deep Throat,” shows an excellent command of the record, and indeed, casts light on a dark subject. In contrast, Dean notes that another respected journalist lacked the command of the record truly necessary to write accurately and insightfully about Watergate.

Why Are So Many Economists So Unable to Help With the Ongoing Economic Crisis? Understanding What the Economics Profession Rewards and Penalizes

George Washington law professor and economist Neil Buchanan comments on the state of the economics profession today, linking it to the frustration many Americans feel when economists seem unable to come up with a clear set of prescriptions as to how the economy can be improved. Buchanan traces the root of the problem to the way in which economists are now trained, and the expectations placed upon PhD candidates. Ideally, Buchanan says, economists would be trained to study important and interesting real-world issues. Instead, he observes, they are not asked to actually try to understand the economy, but rather to master certain technical skills and to gain a command of topics in advanced mathematics that have limited, if any, direct real-world applications. Buchanan notes that some excellent economists do learn to grapple with real-world problems, but he observes that they do so more by happenstance, than as a result of their training. He traces the roots of this longstanding situation, and predicts that it will only change if and when the incentives presented to economics PhD candidates change.

Predicting Presidential Performance: Why Mitt Romney Would Be an Active/Negative President Like Bush II, Nixon, LBJ, Hoover, and Wilson

Justia columnist and former counsel to the president John Dean comments on the leadership style that Mitt Romney would likely employ if he were to be elected president. In characterizing Romney’s likely style, Dean relies in part on a framework developed by James David Barber in his book “The Presidential Character: Predicting Performance in the White House.” As Dean explains, Barber puts presidents into four categories, based on two factors: (1) how actively or passively the president performs in his political role; and (2) whether the president enjoys or dislikes the activities that his role requires. Whereas Dean deems President Obama an active/positive president under Barber’s scheme, like JFK and Clinton, Dean believes that Romney would be an active/negative president, as was George W. Bush. In light of these categorizations, Dean concludes that Obama ought to be allowed to finish what he has started, with a second term in office, and that—based on news accounts and on two recent biographies of Romney—a Romney presidency could well be more than the country can handle at this point in time.

The Buffett Rule Is an Imperfect Form of Tax Justice, but an Important Step in the Right Direction

Justia columnist, economist, and George Washington law professor Neil Buchanan comments on the controversy regarding the “Buffett Rule,” Warren Buffett’s observation that he surely should not pay a lesser percentage of his income in taxes than his secretary does. This rule—and the principle behind it—proved to be especially relevant this week, Buchanan notes, when presidential candidate Mitt Romney released some of his tax returns. Buchanan explains how wealthy Americans typically receive special tax treatment, and argues that it is not true that—as some claim—this treatment is necessary to induce the wealthy to invest. He also lauds the Buffett Rule as a key step toward reaching our ultimate goals as a nation, and ensuring the fair treatment of all Americans, regardless of income.

Why Interdisciplinary Legal Scholarship Is Good for the Law, the Academy, and Society at Large

Justia columnist, George Washington law professor, and economist Neil Buchanan responds to some of the common criticisms of interdisciplinary legal scholarship, defending such scholarship on the ground that it makes a valuable contribution. He begins by noting how legal scholarship has changed over the years, beginning around the 70’s, from a field that primarily summarized legal developments, to one that primarily describes how the law could and should change. As a result of this evolution, Buchanan argues, it made sense to bring in other academic disciplines to assist law professors who were interested in improving policies, and who wanted to draw from the relevant schools of thought in framing their policy recommendations and developing their ideas. There has been nostalgia on the part of some—and, especially, some judges—for legal scholarship the way it used to be: primarily focused on describing the law, not improving it. But Buchanan argues that this nostalgia, while understandable, is misplaced, for combining legal expertise with expertise in another field can importantly further the debate on important policy matters. Some questions, Buchanan notes, are truly interdisciplinary and for these, interdisciplinary scholarship is not just useful, but vital.

The Back Story of the Unsealing of Nixon’s Grand Jury Testimony

Justia columnist and former counsel to the president John Dean describes and comments on the process by which former President Richard Nixon’s previously sealed grand jury testimony (along with related materials) was revealed in July 2011—a process in which Dean himself played a key role. Dean gives great credit for the unsealing both to Public Citizen's Litigation Group, headed by Allison Zieve, which took the case; and Judge Royce Lamberth, who made the ruling that led the grand jury testimony and related materials to become public—as had occurred earlier in famous cases such as those of the Rosenbergs and Alger Hiss, based on the rulings of the U.S. Court of Appeals for the Second Circuit. Dean also notes that this, and other material that is still being transcribed, encompass the last real secrets of Watergate.

Newt Gingrich Is Right That Judicial Supremacy Has Been Challenged Before, but Wrong to Try to Turn Back the Clock

Justia columnist and Cornell law professor Michael C. Dorf takes strong issue with presidential candidate Newt Gingrich’s comments regarding judicial supremacy. In particular, Dorf explains, Gingrich has suggested that federal judges could be summoned—even by force—to explain their decisions before Congress, and that Supreme Court Justices and lower federal court judges with whose opinions Gingrich disagrees ought to be impeached. Dorf explains that, as Gingrich states, there have indeed been times in American history when judicial supremacy—which holds that all other government actors must act as if bound by the rulings of the Supreme Court—has been controversial. However, Dorf contends, Gingrich—in suggesting that we revert to those times—fails to appreciate how and why the courts’ role has evolved over the course of American history up to the present, and, worse, puts forth a dangerous proposition.

Why Girls Under Seventeen Need a Prescription to Buy the Morning After Pill

Justia columnist and Cornell law professor Sherry Colb comments on regulations regarding the “morning after pill,” a form of emergency contraception that is only available by prescription to girls under seventeen—despite a recent recommendation by the U.S. Food and Drug Administration that it be made available over the counter (OTC) to girls of that age. The Secretary of the U.S. Department of Health and Human Services (HHS), Kathleen Sebelius, overruled the recommendation, but was she right to do so? Colb explains how the morning after pill works; explains how the brains of young girls differ from those of older girls and women; offers a hypothetical to illustrate what may happen if young girls cannot access the OTC morning after pill; considers whether parents’ interests should come into play here; discusses the argument that this kind of OTC contraception is a form of abortion and its relevance or lack thereof; and expresses deep disappointment if this decision by the Obama Administration was at base a political choice.

Whatever Happened to Making an Honest Buck? Wall Street Attacks Elizabeth Warren Because She Believes in Capitalism More Than They Do

Justia columnist, George Washington law professor, and economist Neil Buchanan discusses the issues raised by the candidacy of Harvard Law professor Elizabeth Warren, who is running for a Massachusetts Senate seat. Buchanan’s thesis is that Warren is more truly a capitalist than her opponent, Republican Scott Brown, or the voters and commentators who oppose her. In particular, Buchanan notes that Warren—an advocate of transparency in financial transactions; an architect of the Consumer Financial Protection Bureau; and an advisor to President Obama on financial industry issues—is a true advocate of free markets. The reason her opponents claim otherwise, Buchanan argues, is that they are confusing being pro-free market with being blindly pro-business, no matter what evils business interests may perpetrate. Being truly in favor of the free market, he contends, means that one ought to endorse—as Warren does—the principle that both sides need to be well-informed when they transact business. That kind of free-market thinking, he points out, might have stemmed or prevented the mortgage loan crisis.

An Endless War on Terror

Justia columnist and Hunter College Human Rights Program Director Joanne Mariner comments on the aggressive new War on Terror bills currently pending in Congress. With Osama Bin Laden dead and all the living alleged 9/11 perpetrators in custody awaiting trial, Mariner notes that the bills’ timing seems odd. She also contrasts the long-lasting War on Terror with the events of the post-World-War-Two period in American history. If the bills that are pending pass, she explains, they will go significantly beyond prior War on Terror policies, which were already broad to begin with. Mariner describes the bills as dangerous and irresponsible, and points to the irony that Congress can make bipartisan compromises in the fraught area of counterterrorism, but not when it comes to sorely needed economic measures. If the bills pass, Mariner reports, they will essentially make Guantanamo permanent, embrace detention without trial—which had previously been seen as un-American—and make the military the presumptive detaining and prosecuting authority in certain categories of cases. Mariner points out that even the Bush Administration tried and convicted many terrorism suspects in federal court, rather than resorting to military justice. Finally, she expresses hope that President Obama will veto the bills, as he has threatened to do.

The Republican Dream for the 2012 Presidential Election: Control of the U.S. Supreme Court

Justia columnist and former counsel to the president John W. Dean discusses a less-remarked but extremely important aspect of the 2012 presidential race: Its outcome may exert a profound influence on the composition of the U.S. Supreme Court, if the Republican candidate prevails. As Dean explains, with Justice Ruth Bader Ginsburg approaching her eighties, and having experienced some health issues, Republicans foresee her possible retirement from the Court. And, if a Republican President were to be elected in 2012, and Ginsburg were indeed to retire, then that President would have a chance to create a solid conservative majority on the Court. Dean describes the Court’s current composition, and contends that if a conservative were indeed to take Justice Ginsburg’s (or another moderate or progressive Justice’s) spot, that would create a majority that would be not only conservative, but also radical and fundamentalist in its conservatism. Such a majority, Dean notes, would put the Court far out of step with Americans’ views. Indeed, Dean predicts, drawing in part on the work of Martin Garbus, that a conservative majority could even take America back to a pre-New Deal world—and one where long-established rights are abolished or severely compromised. He thus urges even the most unhappy former Obama supporter to think seriously about the fate of the Supreme Court when casting his or her vote.

Meet our Columnists

Vikram David Amar
Vikram David Amar

Vikram David Amar is the Dean and Iwan Foundation Professor of Law at the University of Illinois Co... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan is an economist and legal scholar and a Professor of Law at The George Washington U... more

Sherry F. Colb
Sherry F. Colb

Sherry F. Colb is Professor of Law and Charles Evans Hughes Scholar at Cornell University. Colb tea... more

John Dean
John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973. Befo... more

Michael C. Dorf
Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He has w... more

Joanna L. Grossman
Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School of L... more

Marci A. Hamilton
Marci A. Hamilton

Marci A. Hamilton is one of the country’s leading church-state scholars and the Fox Professor of Pra... more

Joseph Margulies
Joseph Margulies

Mr. Margulies is a Professor of Law and Government at Cornell University. He was Counsel of Record... more

Anita Ramasastry
Anita Ramasastry

Anita Ramasastry is the UW Law Foundation Professor of Law at the University of Washington School of... more

Ronald D. Rotunda
Ronald D. Rotunda

Ronald D. Rotunda is the Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence... more

Lesley Wexler
Lesley Wexler

Lesley Wexler is a Professor of Law at the University of Illinois College of Law. Immediately prior... more