Uncommentable: Law Revue Inspires Student; “Effin” Morrison Finds Fame, Frenemies

Editor’s note: Uncommentable is The Commentator’s satirical news imprint. All stories published under the Uncommentable banner are false and intended for entertainment purposes only.

Written by Albert Tawil, Staff Writer

After watching this year’s NYU Law Revue parody video, Jonathan Berg ‘18 was confused – he did not recognize the song. After some research and reading the Above The Law article, he learned that it was a spoof of a musical called Hamilton.

I wonder if Hamilton paid them to make it.

“I’ve been hearing students talk about how excited they are about Hamilton. I figured they were talking about NYU’s new president,” said Berg, referring to New York University President Andy Hamilton.

Berg decided to go see the real thing on Broadway, crediting NYU Law Revue as his inspiration.

“There are probably countless people like me who will go see the play now because of NYU’s video. I wonder if Hamilton paid them to make it,” mused Berg. He was surprised to learn that tickets are sold out until October 2023.

The video also inspired Berg to try and join Law Revue.

“I’m gonna try extra hard during the Writing Competition,” said the confused 1L, noting that his grades may not cut it.  He said that he now finally understands why being on Law Revue is so prestigious.

Typical Canadian bluster.

Dean Trevor “Effin” Morrison, who has already announced a nationwide speaking tour for this summer, has catapulted to D-list fame after the video was featured on legal affairs blog Above The Law.

Eff-Mo is acting as if he’s next in line if Garland doesn’t work out,” said one political commentator. “Typical Canadian bluster.”

Even the Supreme Court itself issued a response to the viral phenomenon.

“Was that supposed to be me?” asked Justice Ginsburg in an official statement.

Shaking his head methodically, Justice Alito was seen mouthing the words, “Not true,” in response to Ginsburg’s inquiry.

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While warmly received by some, sources said the video sparked jealousy among the upper levels of NYU Law’s leadership.

“I thought the video was OK. I think it would have been funnier if it was about a diverse guy who replaced a yoga teacher and made the Law School great again,” said one NYU Law dean, who asked to remain anonymous.

“If any of my colleagues have a problem with the video, I would be more than happy to discuss it with them,” said Morrison, “… in New Jersey.”

“Everything’s legal in New Jersey,” he added.

Trevor “Effin” Morrison by NYU Law Revue

Op-Ed: Why I’m Disappointed that Sri Srinivasan Wasn’t President Obama’s SCOTUS Pick

Written by Jonaki Singh, Guest Contributor

Last month, President Obama announced his nominee for the Supreme Court of the United States, Merrick B. Garland, chief judge of the D.C. Circuit Court of Appeals. Undoubtedly, Garland is qualified for the job—19 years on a federal court of appeals, with years of government service before that. Given the current political climate, Garland is also a strategic choice—Republicans in Congress have consistently praised him, and it would be difficult to sustain a blanket “no consideration” policy for a candidate widely considered to be “centrist.”

And yet, I found myself disappointed that the nominee was not Sri Srinivasan. As one of the contenders that appeared on almost every shortlist, there’s no question that Srinivasan was supremely qualified (no pun intended). He served as a law clerk to Justice Sandra Day O’Connor, argued many cases before the Supreme Court, is currently a judge on the D.C. Circuit (confirmed by the U.S. Senate with a 97-0 vote), and, like Garland, is considered “moderate” or “centrist.” Furthermore, as a relatively young nominee, he likely would have had a significant impact on the Court’s jurisprudence for decades.

As has been discussed in the past few weeks, Srinivasan’s nomination would have been momentous for several reasons: the first Asian-American justice, the first Hindu justice, and one of the few justices born outside the United States. Some have also pointed out the legal significance of such an appointment, given the historical policies and restrictions on Asian immigration and citizenship.

But as an Asian-American law student, Srinivasan’s potential nomination carried a different meaning for me. While many of the formalistic legal barriers to Asian and Asian-American inclusion in society have been removed, several social, intangible barriers and stereotypes still remain. One of the common stereotypes characterizes Asians and Asian-Americans as “perpetual foreigners.” This concept underlies the “no, where are you really from?” line of inquiry and rests on the notion that people of Asian origin fall just short of “American.” Perhaps this perception stems from Asians’ connections to their countries of origin, or perhaps it is a contemporary manifestation of the historic exoticism surrounding “the East.” Furthermore, despite being an integral part of America’s history of exclusion and prejudice, Asian-Americans are generally sidelined in our national conversation on race, cementing the perception that we are somehow a detached, apathetic minority loosely woven into the fabric of American society.

The perpetual foreigner stereotype is especially powerful in the legal field. Legal practice, particularly in government service, requires an understanding of the philosophical tenets underlying the legal system, of the historical context in which our system took shape, and an awareness of how the law governs relationships between individuals and the state. Given these prerequisites, being perceived as a foreigner or outsider may present Asian-Americans with additional hurdles to “prove” their American-ness and to demonstrate that they are capable of meaningful participation in American politics and governance. See generally former Governor Bobby Jindal and Governor Nikki Haley.

As Asian-Americans, it is extremely frustrating to grapple with these presumptions in spite of our embodiment of American identity. We share a sense of responsibility in America’s future. We are not a disinterested minority; we do not see the destiny of the nation as separate from our own. We care, and we are capable of the same commitment and participation as any other American—whether in legislatures, at the voting booth, or on the bench.

The Obama administration has made remarkable progress in appointing Asian-Americans to prominent government positions. Neal Katyal, Jacqueline Nguyen, Jenny Yang, Vijay Murthy, Vanita Gupta, and Sri Srinivasan himself are all examples. However, the Supreme Court is a unique institution, and Asian-American representation there carries its own value and significance. The Supreme Court synthesizes our historical past and distills its principles to resolve the current questions of rights, liberties, and justice in our nation. In recent times, the Supreme Court has taken an especially active role in protecting and extending rights to groups against whom there has been a history of discrimination.

After Srinivasan’s nomination, it would no longer be unimaginable that an Asian-American, even one born outside the United States, could participate in an institution such as the Supreme Court. It would finally be conceivable that a group so undeniably present in America’s past could participate in shaping its future. In an election cycle where a major party’s leading candidate has questioned the extent to which minorities and immigrants enrich our nation, Srinivasan’s nomination would have reaffirmed the belief that the country we, as Asian-Americans, consider our own also trusts us with the great responsibility of shaping the future of America, our country.

Editor’s note: A version of this article originally appeared on BrownGirlMagazine.com and is republished here with permission. 

Associate Justice Elena Kagan Visits NYU Law

Written by Phil Brown, Staff Writer

Associate Justice Elena Kagan of the United States Supreme Court visited New York University School of Law on Monday for a public conversation with Dean Trevor Morrison. Before an audience of students and faculty, the pair discussed a range of topics, including the passing of Associate Justice Antonin Scalia, Kagan’s work on the Court, and what law students can do to prepare themselves for a future on the nation’s highest court. The event was sponsored by the Law School’s Supreme Court Reading Group and Moot Court Board.

Initially taking an informal, question and answer format, the conversation turned momentarily somber when Morrison asked Kagan to reflect on how the Court has changed since Scalia’s passing. Kagan, who said she considers knowing Scalia to be one of the “great gifts” she has received in life, noted that the Court is certainly a different place following his death.

“I think we’re less fun,” Kagan said, speaking of Scalia’s absence both within the Court’s chambers and on the bench. “He was a big presence at argument.”

Kagan also observed that the work of the Court has been affected, though not disrupted, as a result.

“There’s a reason courts don’t usually have even numbers,” Kagan remarked, after acknowledging that the justices are especially concerned about reaching agreement now.

Switching topics, the conversation shifted to technology’s impact on the law. When asked whether she thinks the Supreme Court is the branch of government least impacted by technology, Kagan appeared to agree, recalling that, “all the procedures were exactly the same” some 28 years earlier when she clerked for Associate Justice Thurgood Marshall.

Things could be worse, Kagan joked, referring to the Second Circuit, where fax machines are still in wide use.  “[It is] better to use no technology at all than to use a fax machine,” said Kagan.

One of only three, sitting justices to have clerked on the Supreme Court, Kagan also fielded questions about her experiences in the judicial branch. Dean Morrison asked, for example, whether would-be justices should have to have previously served on a federal court prior to their appointment to the Supreme Court. Kagan demurred, opining that possibly the best job that could prepare someone for a position on the Supreme Court would be that of United States solicitor general, a position she held for just over a year before her nomination to the Court in 2010.

Kagan recounted how her job as solicitor general required knowing the Supreme Court inside and out while simultaneously serving as an advocate before it. Kagan quipped that, in effect, her job went, “from persuading nine people to persuading eight.”

Kagan was even more candid describing her preferred methods of persuasion. Although she loved writing, “I’m a schmoozer,” she said.

While most of that schmoozing probably happens far from public view, Kagan noted that she thinks of oral argument “as a forum for persuading people,” even in her role behind the bench.

“We sort of ignore the attorneys,” she mused, wondering if the whole thing would “be more efficient if [the attorneys] just disappeared.”

Kagan also offered the assembled crowd advice on being a persuasive advocate at the highest levels. She told everyone to always be comfortable engaging a judge on their terms, even when they turn the discussion to your case’s weaker points. She also emphasized that there are any number of oral advocacy styles that can be effective, from the firebrand intensity of some, to the cool, reasoned arguments of others. One of the most important themes of oral advocacy, according to Kagan, is to match one’s advocacy style to one’s own personality.

Following her conversation with Morrison, Kagan joined Judge Thomas B. Griffith of the United States Court of Appeals for the D.C. Circuit and Judge William A. Fletcher of the United States Court of Appeals for the 9th Circuit in hearing the final arguments of NYU Law Moot Court Board’s Marden Competition.

Editor’s Note: An earlier version of this article misstated Justice Kagan’s clerkship on the Supreme Court. She clerked for Justice Thurgood Marshall, not Justice Clarence Thomas.

Who is Merrick Garland? #SCOTUS

Written by Naeem Crawford-Muhammad, Editor-in-Chief

Today, President Barack Obama nominated fellow Chicagoan Merrick Garland, the chief judge for the Washington, D.C. appeals court (appointed by President Bill Clinton), for the post of associate justice of the Supreme Court. If confirmed by the United States Senate to fill the vacancy left by the passing of Justice Antonin Scalia, Mr. Garland would become the 113th justice to serve on the nation’s highest court.

Mr. Garland is a graduate of both Harvard College and Harvard Law School, and once clerked for Justice William Brennan. While not a household name to most Americans, Mr. Garland is described by the New York Times as a, “well-known moderate,” with deep experience as a legal practitioner in both the public and private sectors. He rose to prominence during the mid-1990s when he supervised the Justice Department’s prosecution of the perpetrators of the Oklahoma City Bombing. He also had a lead role in the investigation of the Unabomber.

According to the Washington Post, seven sitting Republican senators voted to confirm Mr. Garland to his current post on the D.C. Court of Appeals. They include: Dan Coats (Ind.), Thad Cochran (Miss.), Susan Collins (Maine), Orrin Hatch (Utah), James M. Inhofe (Okla.), John McCain (Ariz.), and Pat Roberts (Kan.).

However, speaking from the Senate floor shortly after Mr. Obama’s speech, Senate Majority Leader Mitch McConnell vowed to block any nominee from Mr. Obama, including Mr. Garland, on the basis of “principle, not a person.”

Invoking what he termed, the “Biden Rule,” Mr. McConnell said the costs to confirm any nominee during an election year would be “too great” to the institution [of the U.S. Senate] and to the American people. The so-called Biden Rule is named after then-Senate Judiciary Chairman (and now U.S. Vice President) Joseph Biden, who argued for delaying Supreme Court nominees from then-President George H.W. Bush in 1992, an election year.

Mr. Biden, for his part, has said that his 1992 Senate speech was mischaracterized, and that he later announced he would support a nominee from the president, so long as the president consulted with the Senate and chose a moderate.

To help interested parties follow the nomination process, the White House has released a new Twitter handle: @SCOTUSnom. It had more than 21,000 followers within an hour of Mr. Obama’s announcement.

Interview: Kenji Yoshino on Scalia’s Legacy, State of SCOTUS

Written by Sarah Higgins, Staff Writer, and Naeem Crawford-Muhammad, Editor-in-Chief

The sudden death of Associate Justice of the Supreme Court Antonin Scalia has sent shockwaves throughout the legal and political landscapes of the United States. While only time will tell how history will remember Justice Scalia, Sarah Higgins and Naeem Crawford-Muhammad of The Commentator sat down with Kenji Yoshino, the Chief Justice Earl Warren Professor of Constitutional Law at New York University School of Law, to get his perspective on the life and legacy of Justice Scalia, and the current state of the Supreme Court.

Sarah Higgins (SH): Have you ever personally interacted with Justice Scalia, and if so, in what capacity?

Kenji Yoshino (KY): I was fortunate enough to be on a panel with Justice Scalia for PBS NewsHour about what it means to be an American. The panel had three left-leaning people, including myself, and three conservatives, including Justice Scalia.

The idea of the panel was to figure out where could we find common ground, and one of the pieces of common ground was the degree of gratitude we all felt in being Americans. But the real pleasure of the event was dinner afterwards. I had heard rumors about Justice Scalia’s charm, his ebullience, and his outgoing nature, and those were all on full display.

SH: Can you describe in more detail how Justice Scalia interacted with you personally?

KY: He was very engaged. It was funny because he said to me, “I heard about you and I expected you to be a lot more liberal/crazy, and you seem perfectly reasonable.” And I said, “well I am a liberal but I was raised by conservative parents. I think the difference between a good conservative and a good liberal is just how broadly you draw your circumference of concern. My parents were immigrants and drew their circumference of concern around the family and would have done anything for the family. Whereas the luxury of the education and the opportunities they gave me allowed me to care more about people to whom I am not related.”

He reacted very positively to that and said, “I knew you had conservative parents because that’s why you turned out so well.” And I said, “well hold on there because you are suggesting that if I have kids that they won’t turn out that well.” He laughed and thought that was very funny.

He is also a great lover of literature, so we talked about a Charles Dickens character, Mrs. Jellyby [from the novel Bleak House], who keeps writing checks to missionaries in different parts of the world, while her own children were being neglected. We agreed that whether you are a conservative or a liberal, caring more for humanity in general than the human beings around you can’t be the right model. Overall, it was a very wonderful, lively dinner.

SH: Now, we are going to shift to talk about the Supreme Court itself. Do you know if the Court is scheduled to issue any more rulings for this current term?

KY: Well, we presume that they will. They have recently heard arguments today [March 1, 2016] on the abortion case [Whole Woman’s Health v. Hellerstedt] that will revisit what the undue burden standard means. This, in my view, is the most important reproductive rights case that we have had since 1992 [Planned Parenthood of Southeastern Pennsylvania v. Casey].

The Court has dodged the question of what is an undue burden is [in terms of abortions] until this current case. I assume that if they felt that they couldn’t function as an eight-member Court, they would have set the case for re-argument. So, the fact that they are hearing it suggests to me that they are quite willing to go it as an eight-member Court for as long as they need to.

The Court could have DIGed [dismissed as improvidently granted] some of these cases, meaning they decided that they shouldn’t have granted certiorari and will dissolve the grant of cert. If you DIG a case, it is as if the Court never granted cert in the first place. This can happen at any time, so we could imagine that in the upcoming affirmative action case [Fisher v. University of Texas], the Court could say that they don’t want to create such a monumental precedent without a full nine-member Court.

SH: What would the Court do in an instance where there was an even 4-4 split amongst the justices?

KY: It is well-settled practice that a 4-4 split is called, “affirmance by an equally divided Court.” Any time there is a tie, the Court generates no precedent, and whatever the Circuit below decided remains the law, but only for that Circuit. In the abortion case, [Hellerstedt], the Fifth Circuit upheld the restrictions on a woman’s right to abortion, so if the Court splits 4-4 in this case, then the Fifth Circuit decision will hold and be binding law, but only in the Fifth Circuit, and won’t create national precedent.

SH: How do you think Justice Scalia’s death has shifted the political and legal landscape of the country?

KY: I think it has been a seismic shift. I was reading an article….that said that Senators are refusing to meet with President Obama with regard to appointing a Justice. This notion that the American people should be allowed to decide who their next Justice is going to be seems to me to be very wrongheaded, given that the American people decided to give President Obama that power when they elected him.

The idea that a president’s power to nominate a candidate would expire simply because it’s his last year in office would make no sense if we applied it to any of the other powers that the executive has. For example, is the president no longer permitted to act as Commander in Chief just because it’s his last year of office?

In fairness to the Senate, what they are saying is that this isn’t a unilateral decision, and that they have the power to give their advice and consent with regard to the nominee, and ultimately they have to confirm. Over the course of our nation’s history there have been twenty-four times in which a president has nominated and the Senate has confirmed a Supreme Court Justice in the last year of the president’s term. So, the current Senate really can’t cite to past practice.

What must be going on here is that the Senate, for completely political reasons, which I resist as a constitutionalist, is saying this would so dramatically alter the balance of the Court that they want to hold out hope that a Republican president will be elected, so they are going to prevent President Obama from creating a fifth liberal vote on the Court.

Naeem Crawford-Muhammad (NCM): Earlier this week [Associate] Justice Clarence Thomas spoke in oral arguments for Voisine v. United States, which was the first time he has spoken in over a decade. What do you think this signals for his role in the Court?

KY: I want to put an asterisk on this. He did break his silence once in 2012, but only to take a dig at [Justice Thomas’ and my] alma mater, Yale Law School, to say that a degree from Yale isn’t worth the paper that it’s printed on. But you are quite right that this is the first time in a decade that he asked substantive questions.

Justice Thomas has been elliptical as to why he remains silent on the Court. On his early days on the Court, he has said it was because he was self-conscious of his Gullah dialect. His later reasoning has been that oral arguments are for the litigants and that his colleagues interrupted them too much, and he was there to listen to them talk.

I am speculating, but I think that one of the reasons that he may becoming more vocal now, based on the timing of Justice Scalia’s death and his questioning in oral arguments, is that maybe he feels that he needs to be the torchbearer now for the Originalist, conservative voice that Justice Scalia was. Without being overly sentimental about it, there is sense in which he is carrying on his fellow traveler’s and friend’s legacy now that Justice Scalia is unable to speak.

NCM:  [Is there] anyone affiliated with NYU Law that you think could be a possible nominee by President Obama?

KY: Raymond Lohier, an NYU Alum who sits on the Second Circuit, has been discussed by SCOTUS Blog, which I think is one of the most reliable places to look. I think that he would be a possible choice.

Editor’s note: The Commentator also reached out to Professors Rachel Barkow and Scott Hemphill, who clerked for Justice Scalia, but they were unavailable for comment.