His Election Law blog should be the go-to resource for honest, authoritative information as to the law in the aftermath of an election of a president that causes so many people to feel, write, believe, so many monumentally nonsensical things about the law. You know, the opportunity not to make people stupider. That’s pretty much what intellectual integrity is all about, why academic freedom exists.

Rick Hasen just couldn’t. He may not be as rabidly partisan as the once-respected Larry Tribe, but he makes his sympathies clear. The problem is that his blog, rather than provide insight, goes down the lazy route of merely linking to other people’s writings. One might hope a scholar would add some critical analysis, something resembling thought, to justify the murder of bandwidth. If only.

But Hasen actually wrote something which, despite being noted on his blog, appeared in the Los Angeles Times.

Even before the Senate confirmed Neil Gorsuch as a justice of the Supreme Court, and before it “nuked” the filibuster for nominees, the Trump administration and conservatives were already plotting to fill the next vacancy. Indeed, they have made overtures to swing Justice Anthony M. Kennedy to get him to feel comfortable with retirement. If Kennedy goes, or if a liberal justice gets sick or dies, Democrats have few levers to stop Republicans from confirming a nominee even more conservative than Gorsuch. The future, then, holds a Supreme Court where Chief Justice John G. Roberts Jr. is the swing vote — a scary eventuality for progressives.

The linked language, “already plotting,” isn’t a reference to what Trump claims to be doing, but Hasen’s word choice to create the impression that there is something nefarious about an administration looking to the future of the Supreme Court. It links to Hasen’s blog, but the post merely links to others. It doesn’t support the proposition, both because its first linked source, Politico, is just as deeply partisan (it claims “the president and his team are obsessed with the next possible vacancy.” Obsessed? Not too loaded a word).

Hasen’s intro, however, belies his space alien view of the world. What if Sam Alito gets hit by a bus? What if Clarence Thomas falls off a bridge. What if space aliens come down from the sky and land on top of the Supreme Court, crushing them all. What if? The next Supreme Court seat may come from the liberal side or the conservative side, to the extent those classifications are meaningful.

Of course, there are no progressive justices, despite the adoption of the Notorious RBG, except when they hate her for heresy.  There is also the empathetic Latina, Sonia Sotomayor, a prosecutor who was appointed as SDNY judge by President Bush, details that are largely ignored by anyone who didn’t represent a defendant before her in the Second Circuit.

The difference in his Los Angeles Times op-ed is that it was penned not for the effete ranks of the academy, where they use a language all their own, but for the public. The dirty, nasty, brutish public. People like me, in other words. So after running through his first eight paragraphs of one-sided characterization of what happened, and one-sided speculation of what might happen, Hasen reaches a point.

The only real solution is for Democrats to pray for the current justices’ good health — and then to take back the presidency and the Senate. And once they do, perhaps they’ll play hardball themselves by increasing the number of justices on the court and packing it with liberals.

Wait, what? Did Hasen just promote the idea that the Democrats, under the assumption that if they just persist down the progressive path could win the presidency and Senate, should pack the court? Like Elie Mystal, to whom Hasen links, did when he got just a wee bit silly and self indulgent?

Not at all, Hasen claims when confronted by twits stating the obvious. Was this just the inability to read what Hasen wrote? Josh Blackman, who came under particular scrutiny, decided to delete his twit and write about it on his blog instead. After distinguishing Elie’s “enlarge the court” idea with Hasen’s “when Democrats take back the nation,” he turns to Hasen’s use of the language of the academy.

Rather he wrote that when the Democrats “take back” the White House and the Senate, “perhaps” they can “pack[] it with liberals.” Here, the word “perhaps” does a lot of work.

“Perhaps” is one of my least favorite academic phrases, along similar lines as “interesting” and “I think.” The term allows a scholar to advocate for a position through implication, without expressly advocating for it. Consider the same sentence, slightly rearranged, swapping the word “perhaps” with “should.”

So which is it? Does Hasen use the word “perhaps” because he has no clue how regular people (not to mention a few irregular people) will read what he wrote, because he can’t distinguish a law review from the LA Times op-ed page? Or does he know exactly how his word choice will come off, but his artful dodging will enable him to claim plausible deniability amongst the scholarhood so that he can deflect responsibility for what he put out for the groundlings to read, but can parse it in the moderate tones of the academy?

Hasen, stops short of explicitly telling the Democrats what they “should” do. Rather he is merely suggesting, “perhaps” what they can do. But this is not idle speculation. Hasen, who is a very careful writer,  is attempting to take an off-the-wall idea–Court packing–and lend to it his academic gravitas.

This is where academics, maybe even scholars, sell their soul to the cause. The reason reporters quote them and cable news outlets ask them to appear isn’t because they’re so good-looking or their sound bites are so pithy. It’s because they can claim academic cred, which the public believes because, well, they have no clue and if a professor says so, then it must be true.

Did Rick Hasen call for the Democrats to pack the Supreme Court to eliminate the impact of the last election, where a Republican was elected president, where the Senate majority remained Republican? Technically, no. As Josh states, the word “perhaps” does a lot of academic heavy lifting.

Yet, this leaves a choice to be made: Does Rick Hasen fail to grasp how his purportedly academic use of “perhaps” will be read by those who do not attend faculty teas? Can he possibly be that disconnected, that clueless, as to the message that his very artful, very careful, writing will send? I don’t think Rick Hasen is stupid at all. Perhaps I’m wrong.