Media Mentions

An essay by Jeannie Suk Gersen. A Senate confirmation hearing for a Supreme Court nominee is a political affair, not a court proceeding. But when the topic is alleged criminal wrongdoing by the nominee, the distinction can start to blur. We, the public, may feel more like a jury considering evidence than a boss considering an applicant for an important job. Thursday’s hearing, with testimony by Brett Kavanaugh and Christine Blasey Ford, was supposedly intended to reveal whether there was truth to Ford’s allegation that Kavanaugh attempted to rape her, by providing testimony from each of them under oath. But the Senate Judiciary Committee’s focus on whether Kavanaugh did what he was accused of gave way to partisan recriminations about whether the process for considering that question was fair. The damage to the legitimacy of the Supreme Court and the Senate confirmation process is incalculable, whether or not Kavanaugh is confirmed.

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.

...Mark Wu, a Harvard Law School professor and former US trade official, said that despite previous US administrations’ complaints, some member countries have been “perfectly happy to let the rules stay as they have been, to the disadvantage or dismay of the US”. “Obviously this administration is taking a very different tack” to previous administrations, said Wu, who was the USTR director for intellectual property from 2003-04. He currently sits on the advisory board of a WTO programme that promotes the understanding of trade among academics and policymakers in developing countries.

In the middle of his lengthy news conference Wednesday at the United Nations General Assembly, President Trump made a somewhat new concession about his conduct vis-a-vis the Russia investigation. “There was no collusion, there was no obstruction,” he said. “I mean, unless you call ‘obstruction’ the fact that I fight back. I do fight back. I really fight back. I mean, if you call that obstruction, that’s fine. But there’s no obstruction, there’s no collusion.”...“I think it would be a real stretch for anyone to include this as evidence of ‘corrupt intent’ or anything like that,” said Harvard Law School professor Mark Tushnet. “On its face, it’s a statement that he is developing a vigorous defense against what he regards as unjustified allegation, and any potential defendant has the right to mount a vigorous defense, and then to tell people that’s what he’s doing.”

As of this moment, it is unclear if Deputy Attorney General Rod J. Rosenstein is going to remain in office until the midterms, resign or be fired. If Republicans don’t retain the Senate, there is no telling who would replace him after that. The terms of his departure matter quite a lot. An impressive cross-section of lawyers, ex-governors, Republican loyalists and scholars wrote to Rosenstein this week, essentially pleading with him to stay to continue oversight of the investigation by special counsel Robert S. Mueller III...Another signatory, Laurence Tribe, tells me that how Rosenstein leaves is important, too. “Rod Rosenstein has been a vital defender of our constitutional republic. He is likely to face enormous pressure to cut and run,” he says. “But the man whose dedication to law I have long admired is better than that. If he is to be displaced by a partisan hack, he must make clear that it’s the president who is shoving him aside.”

According to Professor Michael Klarman “it is important to tell the story of the Constitution’s origins in a way that demystifies it. Impressive as they were, the men who wrote the Constitution were not demigods; they had interests, prejudices, and moral blind spots.” Invocations of divine inspiration for the Constitution by supporters of ratification were, at least in part, a conscious political strategy to maximize the chances of ratifying it.

Donald Trump's trade representative said Tuesday that "a fair amount of distance" remains between the Canadian and U.S. sides in the NAFTA talks — but it was pretty obvious that it's China, not Canada, dominating Robert Lighthizer's thoughts lately...."Given the Trump administration's goal of closing transshipment loopholes, it shouldn't be altogether surprising that the U.S. is seeking for its free trade partners to apply a like-minded approach toward so-called non-market economies," said Mark Wu, a professor at Harvard Law School who studies the strategy of state-owned industries in China. "Without it, there's the danger that foreign producers benefiting from unfair trade practices could use a revised NAFTA as a back door to circumvent U.S. tariffs."

An op-ed by Laurence Tribe. As the battle over Judge Brett Kavanaugh’s Supreme Court confirmation reaches its climax, the cascading emergence of seemingly credible charges of attempted rape, indecent exposure and other forms of sexual misconduct by the nominee has ignited a volatile mix of personal biography, judicial philosophy and national politics. The nation has certainly witnessed dramatic confirmation controversies before, but none has so explosively churned the political and the personal precisely at the nexus of a burgeoning social and cultural movement.

As our community follows developments related to two high-profile men facing accusations of improper conduct with women, KARE 11 sat down with a national expert on sexual assault. Dr. Diane Rosenfeld is the Director of the Gender Violence Program and a lecturer at Harvard Law School. On Wednesday, she offered several insights on the impending hearing involving Judge Brett Kavanaugh and the ongoing reactions to allegations against Rep. Keith Ellison of Minnesota. “We shouldn’t rush to judgment, but we should have some kind of fair process that does not retraumatize someone who comes forward with allegations that are so painful and that reveal such painful and traumatizing incidents,” Rosenfeld said.

The Harvard Black Law Students Association released a statement Wednesday asking the Law School to place greater emphasis on criminal justice and calling on Harvard to steer clear of investing in prisons, among other demands. The group’s public statement — posted on Twitter Wednesday morning — endorses 10 demands issued as part of the National Prison Strike and states the Law School must “work to better prepare its students to support the plight of incarcerated people.”...Roughly 30 students gathered at the Law School three weeks ago to hold a demonstration in support of the strike. In an interview Wednesday, Lauren D. Williams, president of BLSA, said the group must continue to publicly back the cause. “I think it’s important that we as an organization stand by this cause because a lot of our work that we have done in school is really connected to this kind of work, and especially when we’re looking at a system that disproportionately impacts black and brown people,” Williams said...Emanuel Powell, one of the co-chairs of the Powerfully Utilizing Law School Educations for Political and Social Justice Committee — a subcommittee of the Harvard Black Law Students Association that organized the demonstration three weeks ago — said the group hopes to use the Harvard name to call attention to the cause. “I think it’s critical... for us to use our platform in support of individuals who are currently incarcerated — to use our platform to elevate their voices,” Powell said.

An op-ed by Ivy Yan `20. The last time I went back to China, I had just graduated from high school and was starting college at Harvard in the fall. We arrived in the city of Baotou at the beginning of June, just in time to catch the annual spectacle of the Gaokao, the national college entrance exam that determines where students can go to university, if at all...Despite the discomfort of growing up Chinese in suburban Indiana, I couldn’t help but feel thankful that my path to college in the United States involved fewer do-or-die moments.

...The former clerk declined to be named in HuffPost for privacy reasons, but Catharine MacKinnon, a prominent professor at the University of Michigan Law School who first conceptualized the notion of sexual harassment in the legal system, confirmed his story. “He spoke of hearing in the chambers things Judge Kozinski said that I vividly recall were sexually salacious,” she said, adding that the judge made this man extremely uncomfortable. The former clerk was MacKinnon’s research assistant years ago...“He thought it was discriminatory, harassing to everybody in the chambers. He was absolutely horrified and attempted to convey his lack of enjoyment of this to the judge,” MacKinnon said.

...‘’The battles over Supreme Court nominations from the early history of the republic focused on the nominees’ views of national debates about certain foreign entanglements, about a national bank, about legal tender, about slavery, or about economic regulation,’’ Laurence Tribe, the Harvard Law School expert on constitutional law, wrote in an email exchange the other day. “Those issues were of course packed with emotion at the time, but their intersection with individual nominees turned on the nominees’ philosophical and jurisprudential views largely apart from the ways they had conducted their personal lives, whether as adults or as teens.”

An op-ed by Laurence Tribe and Norman Eisen. Whatever happens to Deputy Attorney General Rod J. Rosenstein, he should not resign. If President Trump is determined to oust him, Rosenstein should insist that he be fired rather than leave voluntarily.

An essay by Jeannie Suk Gersen. For much of the past decade, at Harvard Law School, I have welcomed a crop of new law students to campus each fall with an orientation speech warning them that the time for youthful indiscretions is over; it is now the first day of their professional lives. I admonish them not to engage in any conduct that they might later be tempted to lie about to get a job, and note that F.B.I. background checks are routine for lawyers seeking positions of trust. Though I’ve wondered about instilling this level of anxiety in students, many of them will later face scrutiny as public officials. Perhaps Brett Kavanaugh internalized such a stern professional message, in law school and later, as a religious and conservative lawyer. The current scandal surrounding the Supreme Court nominee involves events that allegedly took place while he was in high school, at Georgetown Prep, and in college, at Yale.

...Connie Cho [`20], a Law School student and Cabot House tutor who helped organize a campus walkout Monday to support Ford and Ramirez, said she and her peers are disappointed by what she called the Law School’s failure to address the allegations. “So many of us, as Law Students, saw this news and expected a response from our school,” Cho said. “There was no response.”

Several Harvard Law School professors said they were troubled by the sexual assault allegations recently levelled against Supreme Court nominee Brett M. Kavanaugh and called for further investigation into his alleged misbehavior...Law School Professor Michael J. Klarman, a constitutional law scholar, wrote in an email Sunday that, while some have argued that Kavanaugh’s actions as a 17-year-old are not relevant to the judge's ability to serve on the Court, he does not buy that reasoning.“I certainly agree with the idea that we should be pretty forgiving toward youthful mistakes. But attempted rape is a really serious charge. And serving on the Supreme Court is a privilege, not a right,” Klarman wrote...Law Professor Laurence H. Tribe ’62 took his views on the Kavanaugh confirmation process to Twitter Monday. “Closing ranks around Kavanaugh even before Dr.Blasey Ford testifies is proof positive that these Trumpsters either (1) don’t regard an attempted rape and a nominee’s false denials as relevant and/or (2) are ready to disbelieve her without listening,” Tribe wrote. Tribe expanded on his thoughts in an email to The Crimson...Law Professor Elizabeth Bartholet ’62 wrote via email that the Thursday hearings should be postponed pending an investigation.

Harvard Law School is refusing to say whether it will allow conservative judge and Supreme Court nominee Brett M. Kavanaugh to return to Cambridge to teach the course on the Court he is slated to offer Law students in Jan. 2019...Alexandra “Vail” Kohnert-Yount [`20], one of the authors of the Harvard Law Record article who helped organize Monday’s walkout and rally, said that several students have reached out to Manning regarding Kavanaugh — and at least some of them have asked whether the Law School will allow Kavanaugh to continue teaching. Kohnert-Yount said she has not individually contacted Manning.

An op-ed by Cass Sunstein. In the U.S., voters are often drawn to candidates who seem to be the opposite of the incumbent president — the anti-Obama, the anti-Bush, the anti-Clinton. Beto O’Rourke, now running for the Senate in Texas against Republican incumbent Ted Cruz, is the anti-Trump.

A series of recent court rulings and settlements, including one last week in Indiana, have found that states cannot withhold potentially life-saving but expensive medications from Medicaid beneficiaries and prison inmates who have chronic hepatitis C...“If there were a cure for breast cancer or Alzheimer’s or diabetes, people would be storming the White House to make sure those medicines were available to everyone, you can be sure of that,” said Robert Greenwald, a professor at Harvard Law School and the faculty director of the school’s Center for Health Law and Policy Innovation. “But we’ve responded completely differently with the cure for hepatitis C because of the stigma associated with that disease.” Greenwald and others insist that treating prisoners with hepatitis C is an indispensable step toward eradicating the disease in the whole population.

The US is imposing new tariffs on $200bn worth of Chinese goods as it escalates its trade war with Beijing. We hear from Mark Wu, professor of international trade law at Harvard Law School.