Noah Feldman

An op-ed by Noah Feldman. The consensus on civility emerging from Democratic Party leadership in the wake of Justice Brett Kavanaugh’s confirmation seems to be, if you can’t beat ’em join ’em. Hillary Clinton told CNN that it was impossible to be civil to Republicans until the Democrats win back Congress. And on Wednesday a tape surfaced of Eric Holder, the former attorney general who’s considering a 2020 presidential run, saying that instead of Michelle Obama’s “When they go low, we go high,” the Democratic plan should be “When they go low, we kick them.” Is going low the right choice?

An op-ed by Noah Feldman. Stuck. That’s where almost everyone seems to be when it comes to the nomination of Judge Brett Kavanaugh to the U.S. Supreme Court. We’re in a week of pseudo-calm while the Federal Bureau of Investigation looks into allegations of sexual misconduct against President Donald Trump’s nominee. But let’s be honest with ourselves. It’s almost impossible to imagine anything emerging from the investigation that would make Kavanaugh’s opponents or supporters change their minds.

An op-ed by Noah Feldman. The temperament question has come to the heated debate about the confirmation of Judge Brett Kavanaugh. The basic idea is that by raising his voice during the final part of his confirmation hearing, discourteously interrupting and confronting senators, and depicting the charges against him as politically motivated, the nominee showed himself to have a character not suitable for a U.S. Supreme Court justice. More than 1,000 of my law professor colleagues have signed a letter, addressed to the U.S. Senate and published by the New York Times, opposing Kavanaugh’s confirmation on these grounds...I am nevertheless skeptical of the temperament argument, at least when taken in isolation. It’s not that Kavanaugh’s manner and tactics at the hearing last week seemed normal or acceptable...Rather, what I find doubtful about the temperament argument is that several of the greatest Supreme Court justices had disastrously bad, highly unjudicial temperaments.

An op-ed by Noah Feldman. As of the lunch break in Thursday’s Senate hearing on Judge Brett Kavanaugh’s nomination to the U.S. Supreme Court, it seems as though Republicans’ worst fears are being realized: Christine Blasey Ford is highly credible in describing her alleged sexual assault by the teenage Kavanaugh. Nothing in the ineffectual questioning by sex crimes prosecutor Rachel Mitchell did anything to shake her story...you might think it’s obvious that President Donald Trump should withdraw Kavanaugh’s nomination and substitute another nominee, such as Judge Amy Coney Barrett, who was on his short list. But because this is Trump, the usual political rules don’t apply.

An op-ed by Noah Feldman. The Senate Judiciary Committee hearing Thursday, when Supreme Court nominee Brett Kavanaugh and his accuser Christine Blasey Ford will both face questions about her accusations of assault, is going to be hard to watch for different reasons for different people. The cognitive dissonance stems from the fact that the hearing is functioning on two levels that coexist uncomfortably. On one level, the hearing will be a televised capsule of the #MeToo moment, considering allegations of sexual assault against a significant public figure. On another level, the hearing will be pure political theater, one act of many in these hyperpartisan times.

An op-ed by Noah Feldman. The revelation on Friday that the deputy attorney general, Rod Rosenstein, considered wearing a wire to record President Donald Trump and discussed trying to get the cabinet to invoke the 25th Amendment to remove him is more than merely astonishing. It has consequences.

An op-ed by Noah Feldman. On the surface, it sounds a bit like a coup d’état. An anonymous senior official in Donald Trump’s administration has written an op-ed article for the New York Times saying the official is part of the “resistance” to the president from within. But don’t get taken in by the hype. What the writer describes is a lot like what happens in many, probably most administrations: Officials who share some but not all the president’s goals use bureaucratic tools to avoid or delay implementing presidential initiatives they don’t like. This isn’t a coup. It isn’t unconstitutional. It isn’t even resistance, not really.

An op-ed by Noah Feldman. There is no rule or policy requiring special counsel Robert Mueller to complete his investigation 60 days before the midterm election, despite what the president’s lawyer Rudy Giuliani says. For starters, Donald Trump isn’t on the ballot. Even if he were, there’s no reason that an investigation of him or his 2016 campaign would have to be completed in advance of an election. What is true, however, is that there is a strong unwritten norm for the Department of Justice to avoid taking public prosecutorial action around the time of an election — a period thought to be about 60 or 90 days before it. Mueller and his team are well aware of that norm.

An op-ed by Noah Feldman. The confirmation hearings for Judge Brett Kavanaugh, which began Tuesday morning, mark the culmination of a process that goes back at least 35 years, to the founding of the Federalist Society. Its purpose was to create a conservative majority on the U.S. Supreme Court. Spurred by their disagreement with the abortion-rights decision Roe v. Wade, legal conservatives made judicial selection into the touchstone of their agenda, and gradually convinced the rest of the conservative movement to do the same. When Kavanaugh is confirmed — and I do mean when — their success will be complete, and the court will likely have a stable conservative majority until 70-year-old Clarence Thomas retires.

An op-ed by Noah Feldman. Did the National Enquirer have a right to buy stories about Donald Trump in order not to publish them? And if so, what was the crime in buying Karen McDougal’s report of an affair with now-President Trump — a crime to which Michael Cohen pleaded guilty? These questions have become all the more pressing as it has emerged that the Enquirer has been buying and hiding Trump’s stories for decades. In fact Cohen, Trump’s former lawyer, had wanted to buy the whole archive for Trump to make sure that the stories stayed dead.

An op-ed by Noah Feldman. In the span of one week, we learned that the Office of the U.S. Attorney for the Southern District of New York had both secured a guilty plea from Trump Organization lawyer Michael Cohen and offered an immunity deal to the company’s chief financial officer, Allen Weisselberg. President Donald Trump should be worried. Once the Southern District gets its jaws onto a string of crimes, it doesn’t let go. Weisselberg, as part of his deal, will likely be required to provide information on all criminal activity he knows about. That spells potential disaster for Trump personally, and major problems for his presidency. That’s apart from any potential state-level criminal investigation by the New York district attorney’s office.

An op-ed by Noah Feldman. Lawyers are not supposed to disclose conversations with their clients, at least not without a fight over attorney-client confidentiality. Senior presidential advisers aren’t supposed to discuss consultations with their boss, at least not without first asserting executive privilege. Yet we now know, thanks to the New York Times, that White House Counsel Don McGahn has been cooperating with Robert Mueller’s investigation of Donald Trump. Why is the world of normal procedures being turned upside down? There’s a technical answer; and then there’s the deeper logic (or illogic) behind it: the bizarre nature of decision-making in the Trump presidency.

An op-ed by Noah Feldman. On the surface it sounds like a sick joke. The German drug manufacturer Fresenius Kabi is suing to block an execution in Nebraska — not because it opposes capital punishment, but because it would be bad for the company’s public relations for its drugs to be used to kill. It’s not the first time. Other drug companies have also tried to block executions using their products for similar reasons. A federal district judge rejected Fresenius’s suit Friday, but the company has appealed. Regardless of whether the Nebraska execution, scheduled for Tuesday, is delayed or halted, the effort is worth examining.

An op-ed by Noah Feldman. When Pope Francis makes a point of saying that the death penalty is immoral under all circumstances, and adds the condemnation to the official Catholic catechism, who is he talking to? According to Amnesty International, the top five executing countries in the world last year were China, Iran, Saudi Arabia, Iraq and Pakistan. One of those is Communist and four are Muslim. So the odds are that Francis, in an announcement Thursday, was talking to No. 8 on the list, the only country in the world that has a significant, influential Catholic population yet still executes people: the United States of America.

An op-ed by Noah Feldman. Rudy Giuliani can’t seem to get the law right. The president’s lawyer suggested Monday on CNN and Fox News that Donald Trump didn’t commit a crime even if he colluded with Russians during the 2016 campaign by encouraging them to hack Hillary Clinton’s email server. “I don't even know if that’s a crime, colluding about Russians,” Giuliani put it. “You start analyzing the crime – the hacking is the crime. The president didn't hack. He didn’t pay them for hacking." That's just wrong.

...Directly above the nation's most important tribunal is another type of court, where victors emerge not with five votes and a majority opinion but with 21 points and a margin of at least two. Yes, on the fifth and top floor of the glorious, neoclassical edifice on First Street NE is a basketball court...For some, the haven of the Highest Court was never more welcome than when the justices adjudicated capital cases. On those evenings Noah Feldman, a clerk for Justice David Souter in 1998–99, would go upstairs, often alone, to shoot as he waited for documents, decompressing and considering the gravity of the moment. "It's impossible to overstate the seriousness of how that is taken by all the personnel of the Court, including the clerks. And rightly—a human being's life is in the balance," Feldman says. "Your cortisol is pounding, you want to do everything right and make sure justice is done. And when that was going on, you really needed a break."...On the fifth floor ideological differences dissipate; strict constructionists don't square off against living constitutionalists, nor do liberals take on conservatives for the right to Kennedy's (or, now that he's retiring, Roberts's) swing vote. "It was sort of a place where everyone took off their uniforms and you couldn't tell who was who," says Nikolas Bowie, who clerked for Justice Sonia Sotomayor in 2015–16. "You were just playing basketball."

An op-ed by Noah Feldman. How’s this for a thought experiment the day after President Donald Trump provoked bipartisan disgust over his performance with Russian President Vladimir Putin: Try to think charitably and ascribe rational, non-corrupt motives to political actors.

An op-ed by Noah Feldman. Some Democrats and advocacy groups are saying President Donald Trump picked Judge Brett Kavanaugh as his second nominee to the U.S. Supreme Court because of Kavanaugh’s view that a president shouldn’t be indicted while in office. It’s important that not become the narrative of the Democrats’ opposition, because it can easily be refuted. Properly understood, Kavanaugh’s expressed views actually support the opposite conclusion: that the president can be investigated and maybe even indicted unless Congress passes a law saying he can’t — which Congress has not done.

An op-ed by Noah Feldman. Some Democrats and advocacy groups are saying President Donald Trump picked Judge Brett Kavanaugh as his second nominee to the U.S. Supreme Court because of Kavanaugh’s view that a president shouldn’t be indicted while in office. It’s important that not become the narrative of the Democrats’ opposition, because it can easily be refuted.

An op-ed by Noah Feldman.I don’t claim to know who President Donald Trump will pick Monday night to replace retiring Justice Anthony Kennedy on the U.S. Supreme Court. But I do claim to know what we’ll be saying about it. Here, in alphabetical order, is what will soon be the conventional wisdom. Plus, what you should really think, where it differs.

...As for why members of the Jewish faith have been elevated (and all by Democratic presidents), Harvard Law Professor Noah Feldman said it’s partially explained by the fact that there’s a strong pipeline of Jewish judges and professors. “The reason for that is also a little hard to pin down,” Feldman said, “except to say that academia was an area which, like many other areas of American life, was originally closed to Jews in the late 19th Century.”