Menu Toggle menu

Constitutional Law Professor Verna Williams Pens Editorial on Merrick Garland Supreme Court Nomination


Verna WilliamsU.S. Senate Majority Leader Mitch McConnell insists that Republican refusal to act on President Obama’s nomination of Merrick Garland to the Supreme Court is based on principle. Lawmakers merely are continuing to follow the Biden rule. This declaration suggests that, rather than engaging in unparalleled obstructionism, Republican senators are observing one of their esteemed traditions, like eating bean soup in the Capitol cafeteria.

But, the full text of Biden’s 1992 speech on the Senate floor suggests otherwise.

It was late June. The nation and Senate were recovering from bruising hearings to confirm Clarence Thomas. Re-examining the Judiciary Committee’s handling of professor Anita Hill’s allegations of sexual harassment, Biden explained that “many questioned whether we took professor Hill’s charges seriously, investigated them thoroughly, and disseminated them appropriately.” While Biden concluded that he and his colleagues had done their best, given Hill’s desire for confidentiality, he nonetheless believed a new set of rules should apply going forward. He announced that the committee would:

  • Advise sources that any information the committee obtained would be placed in a nominee’s FBI file and be available on a confidential basis to the Senate before voting on the nomination.
  • Hold closed, confidential sessions about all Supreme Court nominees.
  • Meet routinely with nominees in closed session, on the record, and under oath about any investigative charges.

Throughout the process, senators would be able to review any documents, reports or transcripts in a manner that protected confidentiality.

Those are the Biden rules; they appear toward the end of his speech.

Conspicuously absent in that context, in which Biden clearly is setting forth how the Judiciary Committee would do business, is any suggestion that it would abandon its constitutional duty to engage in the confirmation process during an election year. But, in discussing the history of such nominations, Biden noted that when a president sought to appoint a justice in the summer or fall of an election year – just a few months before the election – that typically resulted in failure. In contrast, when the president selected candidates before the summer, the Senate confirmed them.

Not a rule. An observation.

Assuming it applies to the current situation, as Republican senators suggest, Biden’s statement actually supports the Senate doing its job in this case.

Out of a 20-page speech, Republicans selected one sentence from a 20-page speech and declared it the Biden rule, the one they were following. But another playbook informs their actions.

Massive resistance.

That term refers to Southern refusal to abide by the Supreme Court’s decision in Brown v. Board of Education, a particularly shameful chapter in our history.

Stunned by the court’s action finally striking down Jim Crow, the Virginia General Assembly met in special session to address what it viewed as an incursion on states’ rights. Columnist James Kilpatrick advised lawmakers that interposition supported repudiating federal authority. Gov. Thomas Stanley denounced the court’s actions as unlawful and unconstitutional. Buoyed by U.S. Sen. Harry Byrd, Stanley established a commission to determine how to respond. Just as today, the shutdown was a favored strategy. Virginia’s Prince Edward County, an A student in this regard, stopped levying taxes for education and kept its schools closed for five years.

Like Virginia’s post-Brown lawmakers, today’s Republicans confront the prospect of the social order upending. Obama, whom McConnell pledged to make a one-term president, now has the opportunity to change the highest court in the land for generations to come. Like Virginia’s lawmakers of that period, today’s senators responded to the threat Obama poses by declaring his actions as unconstitutional, illegitimate and overreaching. And, like those lawmakers of yore, senators threw a wrench in the workings of government instead of accepting an outcome they disliked.

And, just like Virginia’s lawmakers, these senators are wrong.

They would do themselves, the nation and the Supreme Court a service by turning to the right playbook this time. The one Utah Sen. Orrin Hatch has written about at length.

As published by Cincinnati.com on March 22, 2016.

Professor Stephanie McMahon Featured in Story Examining Whether Tax Rates Influence Where Families Live


Stephanie McMahonProfessor Stephanie McMahon was featured in WalletHub’s recent piece about 2016's states with the highest and lowest tax rates. She shares how taxes influence where families choose to live in a small way and why.

You can find the piece here.

Dean Joseph Tomain Gives Energy Policy Presentation at American and French Universities


Joseph TomainIn March Dean Tomain gave a lecture entitled Clean Power Politics: The Democratization of Energy, at Miami for a class hosted by its University Institute for the Environment and Sustainability. He also gave a seminar on The Past, Present and Future of US Energy Policy to the trial and appellate lawyers of the Federal Energy Regulatory Commission.

Dean Tomain delivered a lecture to the Faculty of Law and the Faculty of Mining at the University of Lorraine in Nancy France. Finally, he delivered a workshop on The Clean Power Plan and the Democratization of Energy at the University of Denver Sturm College of Law.

Professor Tim Armstrong’s book review accepted for publication


Tim ArmstrongProfessor Tim Armstrong’s book review titled Two Comparative Perspectives on Copyright's Past and Future in the Digital Age has been accepted for publication in the John Marshall Review of Intellectual Property Law. The essay critically evaluates two recent high-profile titles on digital copyright law: The Copyright Wars: Three Centuries of Trans-Atlantic Battle by Peter Baldwin (Princeton, 2014) and Copyfight: The Global Politics of Digital Copyright Reform by Blayne Haggart (Univ. of Toronto, 2014).

Professor Michael Solimine co-authored an amicus curiae brief filed in Shapiro v. McManus, 136 S. Ct. 450 (2015)


Professor Michael Solimine co-authored an amicus curiae brief filed in Shapiro v. McManus, 136 S. Ct. 450 (2015), arguing that the lower court decision should be reversed. The case concerned the powers of a single district judge in deciding whether to convene a three-judge district court. In December, 2015, the U.S. Supreme Court decided the case in a unanimous decision agreeing with the argument asserted in the amicus curiae brief.

Professor A. Christopher Bryant judged the state finals of the high school We The People Competition


Professor A. Christopher Bryant judged the state finals of the high school We The People Competition on January 22, 2016, in Columbus, Ohio at the Statehouse. See more here. We The People is a national, civic education program that originated with the Burger commission on the Bi-centennial of the Constitution. 

Professor A. Christopher Bryant made two panel presentations at the AALS Annual Meeting


Professor A. Christopher Bryant made two panel presentations at the AALS Annual Meeting in New York City. On January 8, 2016, he presented "Constitutional Law from the Ground Up: How the Prohibition on 'Under-ruling' Distorts the Judicial Function" at the Federalist Society's works-in-progress session. On January 9, 2016, he spoke at the Law & Interpretation Section's panel addressing "The Empirics of Legal Interpretation."

Professor A. Christopher Bryant made two panel presentations at the AALS Annual Meeting


Professor A. Christopher Bryant made two panel presentations at the AALS Annual Meeting in New York City. On January 8, 2016, he presented "Constitutional Law from the Ground Up: How the Prohibition on 'Under-ruling' Distorts the Judicial Function" at the Federalist Society's works-in-progress session. On January 9, 2016, he spoke at the Law & Interpretation Section's panel addressing "The Empirics of Legal Interpretation."

Dean Bard Publishes in Utah Law Review


Congratulations to Dean Jennifer S. Bard on her recent publication. Her article “Diagnosis Dangerous: Why State Licensing Boards Should Step in to Prevent Mental Health Practitioners from Speculating Beyond the Scope of Professional Standards” was recently published in the Utah Law Review (vol. 2015, No. 4).

Professor Mark Godsey Receives Awards Bar Foundation and Philanthropy Group


Professor Mark Godsey accepted the Rescuer of Humanity Award in December, 2015 on behalf of the OIP from Project Love, a major philanthropic organization in Cleveland. Prior winners of the award include Rosa Parks, Steven Speilberg and Christopher Reeve.

He also received the Outstanding Organization Award in December, 2015 on behalf of the OIP from the Ohio State Bar Foundation.