Judge Ed Chen and Diversity: Recalling Justice Sandra Day O'Connor's and Justice Samuel Alito's Appreciation of the Importance of Diversity in the Judiciary

In the pages of the California Law Review, Judge Chen cites Justice O'Connor for the value of diversity on the federal bench:

The practical value of diversity within the judiciary is illustrated by Justice O'Connor's 1992 tribute to Justice Thurgood Marshall. She re- counted Justice Marshall's fondness for sharing personal stories with the other justices in conference in order to emphasize legal points, including stories about Ku Klux Klan violence, jury bias, defending an innocent African American wrongly convicted of rape and sentenced to death, and the many indignities of racial segregation he personally had endured.' an wrongly convicted of rape and sentenced to death, and the many indignities of racial segregation he personally had endured.’ Justice O’Connor spoke about the impact those stories, told by a man who had traveled a very different path than her, had on her own understanding of the issues confronting the Court. She spoke about the impact of legal rules on human lives, and the need for judges to strive to narrow the gap between the ideal of equal justice and the reality of social inequality:

No one could help but be moved by Justice Thurgood Marshall’s spirit; no one could avoid being touched by his soul.... Occasionally, at Conference meetings, I still catch myself looking expectantly for his raised brow and his twinkling eye, hoping to hear, just once more, another story that would, by and by, perhaps change the way I see the world.

Judge Chen's remarks recall Justice Alito's statement about the importance of his family's own immigrant experience--a diversity of experience that he believes valuable to the judiciary:

When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account.

And that’s why I went into that in my opening statement. Because when a case comes before me involving, let’s say, someone who is an immigrant — and we get an awful lot of immigration cases and naturalization cases — I can’t help but think of my own ancestors, because it wasn’t that long ago when they were in that position…

Video of Justice Alito's remarks here.

Confirm Judge Ed Chen--An American Patriot

The SF Chronicle's editorial on February 4, 2010 reveals the unfairness of today's attack on him in the pages of the Washington Times.

Edward Chen: Portrait of a patriot

In his State of the Union address, President Obama implored members of Congress to rise above the highly partisan and often petty “if you lose, I win” mentality that seems to pervade Washington. A test of who will heed those words comes today, when the Senate Judiciary Committee is scheduled to take up Obama’s nomination of Edward Chen to become a U.S. District Court judge in Northern California.

Chen, 56, has become a target of the type of ideological smear campaign that corrodes the level of public discourse as the vacuous vitriol echoes in the blogosphere and on talk radio. Chen has been assailed in right-wing talking points as a radical who is obsessed with racial grievances and hates the country so much that he recoils at the sound of “America the Beautiful.”

There are two telling traits about the utter dishonesty in the trashing of Edward Chen. One, each of the anecdotes being used against him looks dramatically different in context. Two, the “case” against Chen does not include a shred of evidence from his nine years as a federal magistrate to challenge his dedication to administering the law in a fair and impartial manner.

The “America the Beautiful” example is the most common and the most outrageous distortion. Its origin was Chen’s May 20, 2005, speech to law graduates at the UC Hastings College of Law. Chen talked about being moved to tears when mourners sang the song during a service for Fred Korematsu, a U.S. citizen who had been convicted of defying the internment of Japanese Americans during World War II. Chen had been a member of the legal team that helped overturn Korematsu’s conviction in 1983.

Chen extolled the beauty in the principles of patriotism – “freedom, justice and equality under the law” – and how adherence to those American values was so much deeper and enduring than waving a flag or singing a song. No reasonable person could read the full text of that speech and not be struck by Chen’s reverence for his country – and the song “America the Beautiful” too. Other Chen speeches and writings have been similarly distorted.

It seems that much of the “evidence” of Chen as a radical is drawn from his work for the ACLU. But, again, an attorney’s advocacy role is much different than that of a judge – and Magistrate Chen has demonstrated his full appreciation for the value of a neutral arbiter who can act with absolute fidelity to the law.

Chen should be confirmed.

From the Health Care Ruling to Advice and Consent

After thinking about Judge Hudson's decision in Sebelius for some time, there was something still gnawing at me, something I couldn't quite figure out. The case itself is uneventful, as far as the legal particulars are concerned. For a judge appointed by a Republican President -- and not just any Republican President, but George W. Bush -- to side against any part of a health care bill signed into law by a Democratic President should surprise no one.

And yet, we as a politico-legal community seem either surprised or else, depending on one's point of view, relieved that the judge would decide as he did. I have in mind here a quote from Randy Barnett, professor of law at Georgetown University. It went something like this: “All the insiders thought it was a slam dunk,” . . . “Maybe a slam dunk like weapons of mass destruction were a slam dunk.” The Times reporter similarly wrote that the many challenges to the law could "no longer be dismissed as frivolous, as they were earlier this year by some scholars and Democratic partisans." This is clearly a theme of the ruling, as a different Times reporter similarly wrote that "the ruling was nonetheless striking given that only nine months ago, prominent law professors were dismissing the constitutional claims as just north of frivolous.

This struck me then, and still strikes me now, as simply nonsensical. This is especially so in light of everything we know about Judge Hudson and his politics as well as the arguments he made. Frivolity -- or lack thereof -- is the order of the day. Jack Balkin has a terrific response to this push on the part of Barnett and others to legitimize the commerce clause argument at the heart of Judge Hudson's ruling.

But this still didn't quite get at what wasn't quite right about the case and our responses to it. And then this occurred to me. What if, instead of Judge Hudson, the judge in the case were none other than Judge Judge Dick Cheney, or, even worse, Judge Limbaugh or Judge Beck. It may be that our reactions would still be the same. It may be, that is, that congressional Republicans would feel emboldened by such a ruling and renew their attacks on the law all the same, and that political support for the law would still destabilize as a result of the ruling. Who knows.

I suspect as much. Irrespective of the identity of the judge, the reactions would not change one bit. For support, one need to look no further than the mother of all activist decisions, Bush v. Gore. This was a case where the law took a backseat to pragmatic considerations and the short term goals and ideologies of the justices. What we knew as a practical reality meant little in the real world. President Bush went on to govern as if nothing unseemly had happened, and we were told to move on and "get over it."  The same would be true after a health care ruling striking down the law en toto, by a Judge Glenn Beck, even if every single law that had ruled on the question had upheld its constitutionality.

This must mean, in sum, that the confirmation process is really that powerful. A conclusion reached by a private citizen can be considered "frivolous," yet legitimate once the same conclusion is reached by the same person once confirmed by the Senate. Put more simply: the decision reached by Judge Hudson was considered frivolous a month ago, yet somehow is no longer frivolous because one federal judge, appointed by a Republican president and with strong ties to the Republican Party, placed it at the heart of his opinion.

The implications could not be clearer. The confirmation process is the end game, the place where legal revolutions are won and lost. This is why nominees need not be smart, or even qualified by whatever standard of one's choice. The nominee just needs to be part of the right team. I don't know much about Judge Hudson, but I know one thing: he is clearly playing for the team that put him in the game.

Consider in this vein today's latest plea by the editors of the New York Times. The crux of their critique boiled down to the following:

The Senate’s power to advise and consent on federal judicial nominations was intended as a check against sorely deficient presidential choices. It is not a license to exercise partisan influence over these vital jobs by blocking confirmation of entire slates of well-qualified nominees offered by a president of the opposite party.

Nevertheless, at a time when an uncommonly high number of judicial vacancies is threatening the sound functioning of the nation’s courts, Senate Republicans are persisting in playing an obstructionist game. (These, by the way, are the same Senate Republicans who threatened to ban filibusters if they did not get an up-or-down vote on every one of President George W. Bush’s nominees, including some highly problematic ones.)

Because of Republican delaying tactics, qualified Obama nominees who have been reported out of the Judiciary Committee have been consigned to spend needless weeks and months in limbo, waiting for a vote from the full Senate.

In light of the foregoing discussion, I have a completely different reaction to the Republican's delaying tactics decried by the Times. To my mind, the miracle in all of this is that any nominees get confirmed at all.

Study: Asian American Men Earn Less Than White Male Counterparts

R&D Magazine summarizes an interesting study published in the American Sociological Review this month:

A new study by a University of Kansas sociologist shows that U.S. employers fail to pay Asian American men as much as similarly qualified white men.

"The most striking result is that native-born Asian Americans - who were born in the U.S. and speak English perfectly - their income is 8 percent lower than whites after controlling for their college majors, their places of residence and their level of education," said ChangHwan Kim, an assistant professor of sociology at KU, who led the study.

Full results of the study - "Have Asian American Men Achieved Labor Market Parity with White Men?" - appear in the December issue of the American Sociological Review.

According to Kim, who co-authored the study with Arthur Sakamoto of the University of Texas at Austin, the findings show that the U.S. falls short of the goal of a colorblind society.

"As an individual, you can reach as high as president," said Kim. "But as an ethnic group, no group has reached full parity with whites. That's the current status of racial equality in the United States."

Kim and Sakamoto combed data from the 2003 National Survey of College Graduates to investigate earnings - numbers that have not been used previously in research on Asian Americans.

Among their other notable findings:

• First-generation Asian American men, who were born and completed their education overseas, earn 29 percent less than white men in the U.S.

• 1.25-generation Asian American men, those who earned their highest degree at a U.S. institution, but were born and previously educated in a foreign country, had incomes 14 percent lower than those of white men.

• The only group to have achieved earnings parity with white men is 1.5-generation Asian American men. Though foreign-born, these men came to the U.S. as children, so therefore speak perfect English and have U.S. educations.

Kim said that 1.5-generation Asian American men could benefit economically from their parents' immigrant work ethic: "They see their parents struggle, and they understand that their achievement in the United States is actually their parents' achievement. It's not their own goal, it's the goal for their whole family," he said. "They actually have a burden of success."

Judging the Health Care Law

A federal judge in Virginia has fired the first direct salvo against the constitutionality of the health care law, and the debate now rages in the blogosphere. This is a debate largely about the merits of Judge Hudson’s opinion in Virginia v. Sebelius striking down the law’s specific mandate that individuals buy health insurance. To the critics, this ruling is "bizarre," significant error" and invites “mischief,” with parts of the opinion reading “as someone determined to strike the mandate regardless of the force of argument in the way.” According to Jack Balkin, Judge Hudson could only make his case by “dredg[ing] up jurisprudence from the court's Lochner Era, which has been discredited since the New Deal.” The argument, Balkin concludes, is “remarkabl[y] weak.”

Critics of the law take the opposite view. To Randy Barnett, for example, the ruling is “a milestone in the legal process of deciding whether Congress has the power to command every person in the United States to enter into an economic relationship with a private company. According to Peter Wehner, former domestic policy advisor to President George W. Bush, argues that “Judge Hudson’s a serious judge and he has put into words, and into a legal decision, a fairly profound pronouncement, which is that a key element of Obama’s health care plan is unconstitutional, Ilya Somin similarly argues that to uphold the individual mandate “would give Congress virtually unlimited power to mandate anything it wants.” This would be both “dangerous and unconstitutional.”

This is an important debate, and I don't mean to minimize it here.  But to focus on the legal debate would be to miss what is far and away the much more interesting story and its many lessons.

Gangsta, Minstrel, & House Negro: Race and Obama's Critics on the Left

An observation on the racialized critique of the President from those on the left.  The new left fashion is bashing President Obama, see here, here and here.  It is still two long years away from 2012 and many in the President's own party have started writing him off.  My crystal ball is not working today, so I can't say what will happen in 2012. If I were a betting man, I would bet on the President.  After all, the man did pull the country back from the brink of financial disaster, not to mention other significant accomplishments such as the historic healthcare bill.  And until a serious Republican challenger emerges, Chris Christie?, the odds should favor the Obamas holding on to their current abode for a another four years.

There's nothing wrong with criticizing the President and many of us would not be honest if we did not engage in good faith criticism of the President.  But some of the criticisms of President, and I mean to single-out the recent criticism from the left, have a particular racial tincture to them that leaves me quite uncomfortable. These types of critiques rely upon certain familiar racial tropes: the gangsta or thug, the minstrel, and the house negro.  An example of the thug is from comedian Bill Maher's explicitly racial critique, where he complains that the President should be a real black man and start shooting up people.  Recently, Maher followed up his early critique with the following:

"I thought, when we elected the first black president, as a comedian, I thought two years in, I'd be making jokes about what a gangsta he was, you know?" Maher said. Instead, Maher said we've got "President Wayne Brady."

For Bill Maher, Suge Knight is his vision of who Obama should be.  Interestingly, his vision of Obama is actually another racial stereotype, that of the black jester, the minstrel.  While few critics have been as explicitly racial as Maher, many of the left criticisms implicitly rely upon the gangsta/minstrel stereotype: We expected a black gangsta as a President, instead of we got an effete shuckin' and jivin' president.

There is another set of criticism that is less overtly racial but perhaps just as troubling.  In this set of criticisms the President is chided for not being sufficiently progressive.  These writers tend to talk down to the President as if he's a schoolboy who did not learn his lesson.  They remind him that the only reason that he is the first black president is because of them and their good graces.  Otherwise, he'd be another Jesse Jackson or Al Sharpton.  The President is not viewed as the pragmatic politician/scholar that he is, but like a house negro.  These folks are constantly reminding the President that if he does not behave, they'll return him to the field.

The house negro is both good negro and servant.  You expect the house negro to be a grateful negro because he knows (or should know) that your good grace is the only thing that preventing him from being a field negro.  And if the house negro ever gets out of line, your remind him that he is one step away from the field.  You expect the field negro to lead the revolt, but you expect the house negro to be docile and obedient.

If these critics were coming from the right, many of these same folks would be crying racism because it would politically expedient to do so.  I'm not ready to cry racism, but some of the President's critics need to be more thoughtful; their racial bias is showing.

Connecting the Dots: Of Haves and Have Nots

I am thinking about three separate pieces this morning, brought together by President Obama's recent tax deal.  The first is a terrific video by Swedish academic Hans Rosling doing the rounds on the internet that illustrates graphically the last 200 years of global development.

You can watch the video here.

The second is, of course, Obama's tax deal, and particularly the extension of Bush's high end tax cuts.  It is all about the economy, stupid, and particularly job creation.  Economists and Democratic policy experts are pleased with the deal, as Democrats in Congress are clearly not.  So if you make in excess of $250,000, go create us some jobs.  And Happy Holidays.

The third is the recent decision by Don Blankenship, notorious CEO of Massey Energy, to resign from his position on the heels of a scathing Rolling Stones' profile piece by Jeff Goodell. It was the closing line of the piece that brought all three pieces together for me:

If any of this troubles Blankenship, he doesn't let on. By his own accounting, the bottom line provides all the proof he needs of his virtue. "I don't care what people think," he once said during a talk to a gathering of Republican Party leaders in West Virginia. "At the end of the day, Don Blankenship is going to die with more money than he needs."

We can only hope, at the end of the day, that Blankenship creates us some jobs.  Obama's presidency, it might appear, hinges on it.

As for the moral of all these stories?  Andrew Leonard put it best: "Suffering pays -- as long as it is inflicted on other people."

Who Could Possibly be Against the Dream Act?

 This coming week, a showdown looms in Congress over passage of the DREAM Act.  This is a bill that provides permanent resident status to illegal residents who came into the country as minors and who have been admitted to college or have earned a college diploma or a general education development (G.E.D.) certificate.  The bill also provides that the applicant must be of  "a person of good moral character since the time of application" and neither inadmissible nor deportable under the immigration laws.

This bill has much to commend it.  The arguments should be familiar ones. For example, why in the world would a society choose to punish a child for decisions made by her parents?  In the context of the DREAM Act, why keep a child from attending college because his parents happened to have come into the United States illegally? Whatever else one thinks of the parents' initial choice, how could be possibly hold the child morally responsible for that decision?  Relatedly, once the child graduates from high school and/or enrolls in college, what is gained by keeping her from getting a college degree?  This is not much different from an H-1B work visa, which allows applicants from "specialty occupations" (such as accounting, engineering, doctors, nurses, and financial analysts, to name a few) the opportunity to apply for work in this country ahead of others.  The same policy would appear to apply in both situations.

If neither of these two arguments persuades you much, then think about the DREAM Act simply as a crude policy calculation.  That is, what is the downside of encouraging young children to apply themselves in school and graduate from high school, and to try to attend college?

When I first heard about this legislation, I remember thinking, who could possibly be against this bill, and what would their reasons be?

Silly me

The Misleading Metaphor of Political "Capital"

A folk belief in contemporary politics is the notion of "political capital." The idea is that a political leader begins with a certain amount of "political capital." The leader is well-advised, the belief goes, to shepherd that capital well, deploying it in careful measures only towards the highest aims of that leader. In deploying it, one trades that capital for the hope of achieving one's highest aims.

The necessary corollary of this approach is that a leader avoids applying herself to anything other than her highest aims. Everything else, even if desirable, must be sacrificed, so as not to use up one's political capital. Thus, if one wants health care, one should not try to do too much for gay rights.

I believe that this approach is usually wrong. Applying one's power towards an end might in fact generate more power, demonstrating to the other side the power of a leader's constituents, and the strength of her resolve. It also generates goodwill among one's followers, necessary to fight the political battles ahead.

Looking for a Few Good Conservative Constitutionalists

What is not to like about a constitutional conservative? This is a person, according to the Mount Vernon statement, who believes in five basic principles:

limited government based on the rule of law to every proposal.

the central place of individual liberty in American politics and life.

free enterprise, the individual entrepreneur, and economic reforms grounded in market solutions.

America’s national interest in advancing freedom and opposing tyranny in the world and prudently considers what we can and should do to that end.

conservatism’s firm defense of family, neighborhood, community, and faith.

In a recent essay in the New York Times, Lincoln Caplan argues that the biggest challenge for those who wish to understand constitutional conservatism lies in "understanding what, if anything, it actually means." According to Caplan, some might call the slogan "vague" or "arrogant." However, "it would be shortsighted to dismiss this increasingly used rallying cry."

Caplan gets it largely right. The term "constitutional conservatism" does no substantive work, nor does it need to. It is a rallying cry, to be sure, but also a label. The good guys, those who agree with us about all that is good in the world, or all the things to which we ought to aspire as a nation, are constitutional conservatives. Everybody else, I suppose, is a constitutional liberal. Beyond that, the term is short on specifics.

For example, is Justice Scalia a constitutional conservative when he opposes race conscious measures as contrary to the equality principle of the Fourteenth Amendment, even if, as we very well know, the Reconstruction Congress did not pursue the colorblind principle as a guide to its own actions? Similarly, is Scalia a constitutional conservative when he rewrites the Voting Rights Act to his own liking, or when he enshrines a personal right to bear arms at the heart of his vision of the Second amendment?

I can't tell. And neither those who call themselves constitutional conservatives nor the Mount Vernon statement itself provide any answers.

But that is probably the point. The use of the “conservative constitutionalism” slogan is no different than the use of terms like judicial activism or strict constructionism. These terms are deployed as labels to signal one’s agreement or disapproval with a decision, but mean nothing. Scalia and Thomas are no more or less activist than Brennan or Warren might have been.

This is not to say that we should dismiss the term and those who now deploy it. I agree with Caplan on this point wholeheartedly. Rather, the question is, what is the intended audience? I think, in light of the recent election returns, that we know the answer to this question all too well.

A White Middle Earth

Little did us Tolkein fans realize that elves, hobbits and dwarves were all white.  Here from the NY Times:

Casting Director Dismissed From ‘Hobbit’

By DAVE ITZKOFF

You’d think a movie project whose roster of characters runs from dwarves to dragons would need to be as inclusive as possible in its casting. But on Monday a casting agent was let go from Peter Jackson’s planned film adaptations of“The Hobbit,” after placing newspaper advertisements seeking extras with “light skin tones” and a prospective performer said she was told she was too dark to appear in the movies, Agence France-Presse reported.

A spokesman for Wingnut Films, the production company of Mr. Jackson, the “Hobbit” producer and director, told Agence France-Presse that the casting director, who was not named, was not directed by the company to make these restrictions. “No such instructions were given,” the spokesman said. “The crew member in question took it upon themselves to do that and it’s not something we instructed or condoned.” In addition to an ad that appeared in The Bay of Plenty Times, a regional New Zealand newspaper, Naz Humphreys, an actor who attended a casting meeting, told The Waikato Times, “The casting manager basically said they weren’t having anybody who wasn’t pale-skinned."

---

This story made me look for the composition of the Fellowship of the Ring, as imagined by Peter Jackson--and indeed, "light skin tones" abound: 

Is the Arizona Campaign Finance Case the Death of Public Financing?

So says my friend Rick Hasen.  But I'm not so sure.  The Supreme  Court recently agreed to hear a case from Arizona that challenges that state's public financing scheme, McComish v. Bennett.  Oversimplifying slightly, Arizona's public finance scheme attempts to provide enough public money  to candidates who agree to forgo private money so that they can compete against privately financed candidates and independent groups.

Arizona provides an initial lump sum payment to candidates (we'll call them the public candidates) who choose to forgo financing their campaigns with private sums.  If the candidates' opponents  (we'll call them the private candidates) spend more than the public candidates received in the initial lump sum payment, the public candidates are entitled to more public money to match the excess amount spent by the private candidates.  Arizona also takes into account the amount of money spent by independent groups against the public candidate.  The public candidate is entitled to more public money to match the combined spending of independent groups and the private candidate if the combined spending of the private candidate and the independent group exceeds the initial lump sum provided to the public candidate.  Lastly, there is a cap to the amount of public money that the public candidate can receive; the public candidate cannot receive more than three times the amount of the initial lump sum.  Thus, the private candidate, if they're a good fundraiser, always has the potential of out-funding the public candidate.

So who is complaining about this scheme?  Private candidates who maintain that they've refrained from spending money or raising money in their campaigns because they did not want to trigger the matching funds that their public candidate opponents would receive.  They argued that the availability of matching funds to their opponents puts them at a competitive disadvantage.  Some of them argued that the availability of matching funds forced them to self-censor because they did not want to trigger matching funds.

Rick is a more perceptive watcher of the Court than I am.  I don't know why the Court takes certain cases and except in the most obvious cases I'm often less sure how they'll decide the ones that they take.  And Rick's assertion that there is no other reason for the Court to take the case other than to reverse the Ninth Circuit is facially plausible. For the reasons I lay out below however, I'm less sure of Rick's claim that this case will be the death knell for public financing.  This is not an easy case for the Court to overturn.  If he's right, campaign finance reform advocates are truly doomed. But here are some hurdles that the Court would have to overcome.

First, it is not clear that the plaintiffs' First Amendment rights are burdened in any way.  The plaintiffs' central argument is that they will refrain from campaign spending  so as not to trigger matching funds.  This is not a case of the government limiting the plaintiffs' spending or punishing them for spending.  Consider this scenario, suppose the State of Arizona had said to public candidates, if you opt into our public finance system, we will give you public funds to match your opponent's spending dollar for dollar.  Would such a scheme be a burden on the free speech rights of the private candidates,the ones who opt-out of public financing?  Is this any different from the state providing funds to a public school to compete with a private school?  To have the devastating impact that Rick is predicting, the Court would have to find that the availability of public funds is itself a burden on the speech rights of a privately-funded candidate.  Indeed, to the extent that there is a good argument here, the better argument is that the availability of public funds itself, as opposed to matching, is the burden.  While the public candidate can focus on campaigning the private candidate has to raise money.  If the Court did that, Rick would surely be right.  But such a move would be truly unprecedented.

Second, even if the Court concludes that the public financing scheme burdens the plaintiffs' speech rights, the Court would have to find that the burden is substantial.  Some of the plaintiffs' in this case are individuals who were successful officeholders even after triggering matching funds for their opponents.  Assuming that that they did self-censor and this self-censoring constitutes a cognizable burden, the significance of this burden is not very clear.  To be actionable the burden must be substantial. Even if one is charitable to the plaintiffs' claim, I cannot see how the burden is substantial.  Moreover, it is quite clear that by publicly financing candidates the state satisfies directly its concern to limit corruption in campaign financing.

Third, if the Court is inclined to overturn the Court of Appeals, the most vulnerable part of Arizona's scheme is the part that grants the public candidate matching funds to counteract independent expenditures against the public candidate.  I can't fathom a constitutionally cognizable justification, state interest, for granting matching funds to counteract independent expenditures.  There, I think the private candidate has an equality claim.  Moreover, that equality claim may be exacerbated if the state does not take into account independent expenditures in favor of the public candidate.  As I understand Arizona's scheme, it is not clear that the State takes into account independent expenditures in support of the public candidate to offset the grant.  If you're a private candidate you do have a basis to complain where the state is providing funds to your opponent for independent expenditures that are, by definition, outside of your control when the state does not provide you funds to counteract independent expenditures deployed against you.  This comes closer to the scheme the Court struck down in Davis v. FEC.

But if the Court went down this route, it would largely leave the public financing scheme intact.  The opinion would be narrow and would only communicate that the Court is serious that campaign finance regulations must hew closely to judicially-recognized legitimate state interests.  I can easily see the Roberts Court taking this approach.

If the Court overcomes these hurdles and goes down the road that Rick predicts, McComish will not only signal the death-knell of public finance, it will signal the death-knell of all campaign finance reform.

The New Racial Discrimination

I am convinced that the term “racial discrimination” must be the most overused term in our popular culture, ranking alongside “invidious discrimination” in the legal culture.  Neither term means all that much. For a recent example, look no further than a recent letter from Roger Clegg, President and General Counsel of the Center for Equal Opportunity.  In the letter, Mr. Clegg complained that “[t]here can be no serious doubt that whites face more racial discrimination in [the context of university admissions] today than do African Americans.”

In reading this passage, and the letter in its entirety, I was reminded of Herbert Wechsler’s much criticized Holmes lecture, where he offered a critique of the Court’s reasoning in Brown.  I was particularly reminded of his closing, where he offered the following:

I think, and I hope not without foundation, that the Southern white also pays heavily for segregation, not only in the sense of guilt that he must carry but also in the benefits he is denied. In the days when I was joined with Charles H. Houston in a litigation in the Supreme Court, before the present building was constructed, he did not suffer more than I in knowing that we had to go to Union Station to lunch together during the recess.

I must confess that I really don’t get what Professor Wechsler means, the same way I simply cannot understand what Mr. Clegg is referring to.  This is cognitive dissonance in full display.

But to dismiss these views off-hand would be to miss a far more important and interesting story.

A Word on the "Mystery" of Justice Stevens' Change of Heart on the Death Penalty

In Sunday’s New York Times, Adam Liptak “settles [a] legal mystery:” how to explain Justice Stevens’ vote to reinstate the death penalty in 1976 and his shift in 2008, when he wrote that he believed the death penalty to be unconstitutional?  To the untrained eye, this might appear to be a puzzle indeed.  If the Constitution is but an unchanging legal document, and the Justices’ job is akin to legal archaeology, how to explain any change in legal doctrine, not to mention changes of heart among particular justices? 

Justice Stevens’ answer is uneventful: changes in the composition of the Court, coupled with what he labeled “regrettable judicial activism,” led to a system that is no longer constitutional.   In other words, a process that once could withstand constitutional scrutiny was irretrievably damaged by allowances made by the Court itself.  This is a process, Liptak writes, “shot through with racism, skewed toward conviction, infected with politics and tinged with hysteria.”

But clearly this is no mystery. 

Fuentes-Rohwer in the NY Times

Luis has an essay in the Times that you can find here.  The essay is about race and merit in college admissions.  Well done Luis.

WikiLeaks and Free Speech

Over at Slate Dahlia Lithwick wonders why the war on terror has not produced great free speech cases as had previous wars. I offer two thoughts.  First, as many others have observed, the war on terror is not like the other wars.  For whatever, we are not currently behaving like we are a country at war.  While the financial impact of the war is significant on the state fisc, few people are directly affected.  This war is more the national subconscious than in the national consciousness.

Second and maybe related to the first point, the free speech issues that are likely to arise in the context of the war on terror may not resemble the contexts of the past. Instead, they may be closer to the leaks of State Department cables by WikiLeaks.  We will see a First Amendment confrontation, if not sooner, when the government prosecutes WikiLeaks for publishing sensitive military intelligence regarding our involvement in Afghanistan, Iraq, or some other area. Already Representative Peter King is calling for the prosecution of WikiLeaks and its founder.  My guess is that what we're seeing is a new form of protest and one that is effective and dangerous to the State. Consequently, the clash between the First Amendment and the government is inevitable.

Where Are Thou, Judicial Activists?

The health care law is under heavy attack in federal courts across the country.  According to these attacks, Congress does not have the power under the Commerce Clause to demand that individuals buy their own health insurance.  This is the legal question, formally stated.  Put another way: how extensive and far-reaching are the power of Congress?

I could cobble together a bunch of cases and quotes to argue that the law is in fact unconstitutional.  But I could also argue otherwise.

That is to say: does anybody seriously think that these suits will be decided by formal law, not by political ideology or the judges' personal preferences?

Make no mistake, this is no different from the recent gun control rulings, Heller and City of Chicago, or the Citizens United case, or just about any other major case you can think of.  This is also how the upcoming showdown on the constitutionality of the Voting Rights Act will play out. The justices will paste together select quotes and cases that will inexorably lead them to their inevitable conclusion.  The law will make them do it.

In this vein, I would love to ask incoming House Speaker John Boehner and Senator Sessions what they think about the health care litigation.  I would also love to ask them, in turn, what they think about the upcoming challenge to the constitutionality of the VRA.   I would also love for them to explain what made Justice Thomas a judicial activist but not Justice Thomas or Scalia.

I would then love for them to explain to us all how they would reconcile these various decisions.

It is simply not possible. Not rationally, at least.

Some Senators Stall Judicial Nominee Because He Worked for ACLU

The L.A. Times editorializes plainly: "President Obama's nominations to the federal bench have been stalled by Republicans in continuation of a partisan feud that dates back, depending on who's counting, to the George W. Bush, Clinton or Reagan administrations. Three California nominees are emblematic of the problem. They were all approved by the Senate Judiciary Committee months ago and received stellar evaluations from the American Bar Assn., but it's possible they won't be confirmed by the Senate (or will be rejected, though that would be a travesty) before the 111th Congress winds down.

Two of the nominees are for the U.S. District Court, the labor-intensive front line of the federal judicial system. Both Edward M. Chen, nominated for the Northern District of California, and Kimberly Mueller, chosen for the Eastern District, are currently federal magistrate judges. Both were unanimously rated "well qualified" by an ABA panel. Chen was first approved by the Senate Judiciary Committee in October 2009; Mueller was approved in May of this year. No serious objections have been raised to either nomination, though some conservatives have complained, outrageously, about Chen's past affiliation with the American Civil Liberties Union.
The third candidate whose nomination has been languishing is UC Berkeley law professor Goodwin Liu, selected for a seat on the U.S. 9th Circuit Court of Appeals, which has jurisdiction over California and other Western states. Liu was approved by the Senate Judiciary Committee first in May and again this month after Obama resubmitted his nomination. He also was unanimously rated "well qualified" by the ABA panel."

Demographic Distribution of Clerkships

The National Jurist summarizes the latest National Association for Law Placement statistics on judicial clerkships:

The National Association for Law Placement has released demographic information on judicial clerkships throughout the country. In a November bulletin, NALP notes that over the past 10 years the total number of judicial clerkships obtained by law school graduates has decreased significantly, resulting in a shift in demographics.

Among the most notable news is the representation of women in the field. In 2009, women made up 46 percent of of graduating class and obtained 51 percent of all clerkships, including 54 percent of state positions and 54 percent of local clerkships. In 1999, women held only 4 percent more state positions than men, but that has since jumped to nearly 10 percent. Of the 51 percent of women in clerkships, 41 percent were white, 4.4 percent were African American, 3.4 percent were Asian and 2.1 were hispanic.

NALP's findings identified, however, that while women held more clerkships overall, men dominated the federal level, holding 54.3 percent of federal positions.

Among other findings from NALP, is a disproportionality of the number of minorities in the 2009 graduating class and the number of clerkships obtained. For example, while minorities made up 22 percent of the graduating class, they only obtained 16 percent of clerkships. Of those positions, most were in state positions, with only 13 percent on the federal level. Findings indicate a breakdown of African Americans in clerkships, as well. Keeping in mind the fact that the total number of clerkships has decreased significantly over the past decade, NALP noted that African-American/Black men hold about half of the positions that they held in 1999.

Asian Americans Live Longer than U.S. Average

The Wall Street Journal runs a fascinating story with surprising claims, based on a report by the Social Science Research Council:

Asian-Americans in New Jersey live longer, earn more and are better educated than other residents of the Garden State.
They have a life expectancy of 91.8 years in New Jersey, compared to 79.7 years for the state's general population, according to a study run by the Social Science Research Council, a New York City-based nonprofit. For the entire U.S., the average Asian-American lives 87.3 years.

Writing Supreme Court Opinions

I often ask my students why they think the U.S. Supreme Court hands down written opinions. The question traditionally comes on the heels of a maddeningly if unnecessarily complicated opinion, when the justices choose to join parts of a majority opinion but not others, choosing instead to concur in part or in the judgment. Just this past week, for example, during our discussion of Thornburg v. Gingles, we encountered the following:

BRENNAN, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III-A, III-B, IV-A, and V, in which WHITE, MARSHALL, BLACKMUN, and STEVENS, JJ., joined, an opinion with respect to Part III-C, in which MARSHALL, BLACKMUN, and STEVENS, JJ., joined, and an opinion with respect to Part IV-B, in which WHITE, J., joined. WHITE, J., filed a concurring opinion, post, p. ---. O'CONNOR, J., filed an opinion concurring in the judgment, in which BURGER, C.J., and POWELL and REHNQUIST, JJ., joined, post, p. ---. STEVENS, J., filed an opinion concurring in part and dissenting in part, in which MARSHALL and BLACKMUN, JJ., joined, post, p. --. 

In Gingles, the Court was assigned the task of interpreting the recent Amendments to Section 2 of the Voting Rights Act. Setting aside for the moment the question of interpretive philosophy, why did the Court feel compelled to issue an opinion totaling close to 25,000 words, and with so little agreement among the justices? In specific reference to constitutional cases, why doesn’t the Court simply announce its judgment and nothing more, that is, why doesn’t it simply tell us who wins and who loses and save the trouble of writing opinions?

The usual answer is the guidance rationale. That is, the Court writes opinions as a guide to the future, for lower courts, the relevant political actors, and the public at large. But according to Adam Liptak’s recent piece in the N.Y. Times, this is no longer a rationale that makes any sense, if it ever did. In Liptak’s words, “In decisions on questions great and small, the court often provides only limited or ambiguous guidance to lower courts. And it increasingly does so at enormous length.”

What, then, to make of the justices’ penchant for expressing themselves? That is, to put the question in a way that actually makes sense: who in the world are the justices’ talking to?

Congressman Rangel: Ending Sadly

I am saddened by the ignominious ending to Congressman Charles Rangel's career.  Stories such as this latest one on the NY Times seem like serial pre-obituaries of both the man and his career.  There's enough blame to go around here starting with Mr. Rangel himself. But that's not the point. I would hope that whatever one's partisan inclination, humanity compels a twinge of sadness for the inglorious ending to the career of a Vietnam war hero, founder of the Congressional Black Caucus, and an individual who has spent almost all of his life in the service of the public.

Affirmative Action for Elites . . . Not that there's anything wrong with that

In his popular course about justice, Michael Sandel spends a class session discussing with the students the modern debate about affirmative action.  As he invites the students to offer their views on the subject, the discussion soon reflects the same arguments we have now rehearsed for over a generation: the practice of affirmative action is either unfair and discriminatory, or else needed to correct past injustices or the way to attain a diverse student body.  This is not terribly surprising.  But one student in particular caught my attention. He argued that

 "racial discrimination is illegal in this country, and I believe that it was African-American leaders themselves, when Martin Luther King said he wanted to be judged not on the color of his skin, but by the content of his character, his merit, his achievement, and I just think that to decide solely based on someone's race is just inherently unfair.  I mean, if you want to correct based on disadvantaged backgrounds, that's fine, but there are also disadvantaged white people as well.  It shouldn't matter . . ." 

The student conceded, in response to a question from Sandel, that grades and tests scores are not enough; "there is more than that.  Universities need to promote diversity."  His objection focused on the one factor, race, that he argued applicants could not control.

There is a lot in that exchange, and again, there is really nothing new there. But later in the conversation, in response to a point to a student, Sandel asked about legacy admissions.  Should those exist?  Are they fair? These were uncomfortable, difficult questions, and the student's response reflected that fact.

"I do believe that, in terms of a legacy admission, you shouldn't have a special preference, I mean, there is a legacy admission, you could argue, as another part of diversity.  You could say it's important to have a small percentage of people that have just several generations of their family attend a place like Harvard."

Even while saying this, the student wasn't hedging.  Race was just different.  To him, legacy considerations  "should not be an advantage factor like race.  That should just be another part of promoting diversity." Sandel pushed him one final time, and asked him whether "alumni status, should it count at all." The student paused a moment, and then, unsurprisingly,  said "yes. it should count."

This is the ugly underside of the debate over racial preferences and university admissions.  Richard Kahlenberg, a longstanding participant in this debate, argues in this morning's New York Times that legacy admissions are the biggest affirmative action program in the country.  He argues that they are bad policy, illegal, unconstitutional, and unknown around the world.  To the charge that legacy is often used as a tiebreaker among applicants, he offers a recent study that concluded that legacy standing is the equivalent of 160 points on the SAT (on a 400 to 1600 point scale), which is close to the gain attributed to racial factors.

Where are the marches and lawsuits fighting against this injustice?  Where is Ward Connerly when you need him?  And how do we explain the contrasting reactions?  Or put another way, can we conclude, with any degree of certainty, that criticisms of affirmative action are tinged, at some level, by racism?

I have two reactions.

Killing American Citizens Without "Due Process"

In a lawsuit filed late last month, the father of U.S. citizen Anwar Awlaki is asking the federal courts to prevent the Obama administration from assassinating his son without providing him with any kind of due process whatsoever. In response to the suit, the Obama administration raises familiar arguments; for example, that the father lacks standing to proceed, or that the issue itself is a political question and outside the jurisdiction of the federal courts. They also argue, however, that their program to assassinate U.S. citizens abroad is a "state secret," which means that they do not have to disclose any information about who they intend to kill, or why.

As a moral question, this is appalling in so many ways that it is hard to know where to begin. Glen Greenwald put it best: " Obama's now asserting a power so radical -- the right to kill American citizens and do so in total secrecy, beyond even the reach of the courts -- that it's 'too harsh even for' [David Rivkin,] one of the most far-right War on Terror cheerleading-lawyers in the nation."  If the U.S. government can do this, is there anything they cannot do?

As a question of history, or politics,or institutional competence, however, this is a far more difficult question. 

Standing, Restraint as Virtue, and Conservative Judicial Politics

Just this past week, while teaching a seminar on the Supreme Court as an institution, I wondered about the way we teach constitutional law to our 1L's.  I know that law students need to learn law, and as such the legal model must be given pride of place.  I get that.  But, assuming con law has not changed from the time I took it in the early 90's -- and a quick perusal of the leading con law case books appears to confirm my intuition -- how do we explain the exclusive attention we pay to law and legal materials as dependent variables, at the expense of everything else?  That is, how do we excuse the fact that political science models -- particularly the attitudinal model and the strategic models -- are seldom part of the discussion in law schools across the country?  How else could we possibly explain what is going on, in order to be able to predict the future?

These questions on mind, I read with great interest Linda Greenhouse's latest online entry in the Times.  Her point is quite simple though no less important: standing doctrine, which determines whether a party has been harmed and thus can bring a suit in federal court, has long been interpreted narrowly by conservative jurists.  But according to Greenhouse, this traditional approach is soon to change, as conservative judges "are suddenly throwing the courthouse doors open wide."

This is certainly interesting. And calling Senator Sessions a hypocrite is always great fun.

However, this should not be big news to anyone paying attention.

School Desegregation in Action (cont.)

In reaction to a Washington Post article on the real-world outcome of the Parents Involved decision, Guy writes that the Court's impact "has been negative at best."  I am not sure what he means by this, especially in light of the very passage that he cites.  For example, and as the article explains, Seattle stopped its efforts to implement a policy of classroom diversity; school assignments were changed in many places, including New York City and Beaumont, Texas; and teacher assignment plans were struck down in Memphis and Cincinnati in cases that cited Parents Involved approvingly.  It is hard to conclude from these facts that the impact of the Court's opinion "has been negative at best."  This is an important question.  I wish he'd tell us exactly what he means.

Whichever way one feels about the impact of Parents Involved, his comment does point to one of the most interesting aspects of the Supreme Court's role in American society.  Why in the world would any political actor acquiesce to a mandate from the Court?  

Kennedy's & Roberts' Jurisprudence in Action: School Desegregation

Robert Barnes of the Washington Post has a a wonderful article on the changes wrought by the United States Supreme Court's 2007 decision, Parents Involved Community School District v. Seattle.  Parents Involved is a 5-4 decision by the Court in which Chief Justice Roberts attempted to severely limit, if not eliminate, the ability of public school's to use race to achieve racial equality. The controlling opinion was written by Justice Kennedy, who found the Roberts opinion too extreme.  Roberts's opinion precluded the public schools from using race to achieve racial equality, but Kennedy's opinion provided a limited way forward. 

Robert Barnes returned to Louisville, Kentucky and one of the school districts at issue before the Supreme Court, to determine how they were responding to the Court's decision.  Here is a short excerpt from the article:

The impact of the decision, which directly involved schools here and in Seattle and set rules for school boards across the nation, already has been noteworthy. Seattle has mostly abandoned efforts to force diverse classrooms; it has returned to a system of neighborhood schools augmented by magnet schools and new educational programs scattered throughout the city.

After the ruling, the Bush administration, which supported the challenges to the plans in Seattle and Louisville, warned other local school officials to be wary of assignment plans that relied on race. School attorneys advised their boards that such plans were sure to be challenged. The message was reinforced when conservative legal groups forced changes in school assignments in places as diverse as New York City and Beaumont, Tex.

The decision was cited when courts struck down teacher-assignment plans based on race in Memphis and Cincinnati.

But Louisville, along with a number of other like-minded systems across the country, is betting that using socioeconomic factors, not just race, will help maintain diverse schools and meet the Supreme Court's requirements.

Those who have battled the school system here say it is nothing more than an end run around the court's decision, a misguided experiment by school officials who should be focused on the bigger goal of improving education.

I highly recommend this piece.  It fits with the literature on the the ability of the Supreme Court to affect change. The conservative majority on the Supreme Court clearly attempted to profoundly change the ability of the government to use race to achieve racial equality.  After reading this article, in my view, the Court's impact has been negative, at best. 

On Fenty & Why Ta-Nehisi Coates is Mistaken

On his blog over at theatlantic.com, Ta-Nehisi Coates blames Adrian Fenty, who recently lost his mayoral bid for reelection as governor of the District of Columbia and Michelle Rhee, the Chancellor of the DC public schools for not sufficiently selling voters on their policy of change for DC. 

Coates notes that:

In a democracy, persuasion is a necessary aspect of politics. Large-scale reform certainly complicates persuasion, but the two aren't antithetical. 

It is true that persuasion is an important component of politics, but did the voters of DC really need Fenty and Rhee to tell them how bad the schools were before the Fenty administration came into power and how much things have improved?  If they were not persuaded by the actual improvement to their lives is there much that Fenty and Rhee could have done to persuade them that Fenty deserved to be reelected--short of promising to abandon his reform agenda? Perhaps more pertinently, what if there was a correlation between the aloof and gruff attitudes and the results?

Maybe it's time to spread the blame around.  Maybe voters should be blamed for not retaining an administration that was hellbent on making sure that DC's black kids had future.  Voters should be blamed for rejecting Fenty because he was not the right type of black person.    Voters should be blamed for rejecting someone who was fighting on their behalf against entrenched interests.  So maybe he was a little arrogant or aloof (for the sake of argument let's assume so), but were his policy prescriptions effective?  If they were and the voters rejected him nonetheless, then the blame lies with the voters and not with Fenty and Rhee. 

Sunday Morning Talk Shows Neglect Minorities, Women, and Democrats

In a study published in Green Bag, law student Alex Mitchell offers a stark demonstration of Sunday news shows' failure to represent even the limited diversity of the U.S. Congress in their guest pools.  ThinkProgress reports on the study here:

In 2009 the talk shows told us (by their selection of Congressional guests) that the people who matter are disproportionately white, male, senior and Republican — disproportionate not just when compared to the American population overall, but also when compared to the population of Congress itself,” concluded a study published this month in The Green Bag, a quarterly journal supported by the George Mason University School of Law.

The study, of the five network Sunday shows from February to December 2009, found that while 14.6 percent of members of Congress were minorities, just 2.5 percent of the Congressional TV guests were minorities; and that while 16.9 percent of members were female, 13.5 percent of the guests were female. 

The study also singled out “the 49 white, male U.S. senators in office six-plus years” who represented 9.2 percent of the Congressional populace, but 61.4 percent of the TV guests.

Editor of Leading American Newsmagazine Reveals Contempt for Muslim-Americans

In this post to his New Republic blog, Martin Peretz, Editor-in-Chief of The New Republic, and (apparently and quite surprisingly) Lecturer in Social Studies at Harvard University:

1. seems to encourage "rall[ies] or demonstration[s] in America aimed at Muslim or Arab interests or their commitments to foreign governments and, more likely, to foreign insurgencies and, yes, quite alien philosophies";

2. observes what he describes as "the increasingly Islamicized but non-practicing Christian and democratic sovereignties of Europe";

3. claims that "Liberal political theory has virtually ignored the philosophical, legal and ethical questions posed by the threatening demographics of Europe."

4. suggests that Muslims may be indifferent to death even in Islamic lands: "I want to believe that Muslims are traumatized by the unrelieved murders in Islamic lands."

5. suggests that few Muslims protest mass slaughter: "Frankly, the only demonstration against a mass killing (after all, they happen nearly every day) I've read about was last week in Pakistan when some 30-odd people, not designated and not guilty of doing anything except going to a Shia shrine were blown right then and there.... Why do not Muslims raise their voices against these at once planned and random killings all over the Islamic world? ... And among those Muslims led by the Imam Rauf there is hardly one who has raised a fuss about the routine and random bloodshed that defines their brotherhood. "

6. suggests that Muslims do not value their own lives: "But, frankly, Muslim life is cheap, most notably to Muslims."

7. questions whether Muslim Americans merit First Amendment protections because they are likely to abuse such protections: "So, yes, I wonder whether I need honor these people and pretend that they are worthy of the privileges of the First Amendment which I have in my gut the sense that they will abuse."

The Unjustifiable Leap from Koran Burning to Rioting

There will always be rude people who go out of their way to insult other people's faiths. They might even do so in ways designed to provoke. (Hopefully this issue will die with a whimper, as the pastor reconsiders his unwise plan of action.)

The question then is how the world should respond to such provocations.

Repudiation, accompanied by clear expressions of support for those who are targeted, strike me as the appropriate response.  Public protest such as marches--as long as it is respectful of other people's faith--is appropriate as well, should one feel so moved. However, violent response is entirely inappropriate. That is an irrational and repugnant reaction to a despicable act. Indeed, a violent response is far worse than the original action on a moral scale.

Perhaps some utilitarians would disagree. They may say that the morality of the burning, if predictably followed by a violent response, must then be presumed to subsume the ill effects of the violence. I would think that the moral guilt of provoking violence should be borne by the person lighting the flame, but that this does not mean that that person is as morally reprehensible as the person engaging in the violence itself.

The Upcoming Redistricting Season

This is what Indiana's Fourth Congressional District looks like:

According to an editorial in my local paper, this district shape is unseemly and "stretches the bounds of reason." Those who reside within a district, according to the editorial, "should have more common ground than geography allows the people in this strangely drawn 4th."  But nothing in life is ever quite so simple.

Puerto Rico's Birth Certificate Controversy

Somehow, you knew it would come to this.  Under a new law, old birth certificates issued by the government of Puerto Rico would no longer be valid after July 1, 2010.  Foreseeing problems with this deadline, the government extended it by three months.  The claim then, as now, is that these birth certificates are prone to misuse and particularly identity theft.

A few days ago, the inevitable happened.  According to a report from the Associated Press, the Ohio Bureau of Motor Vehicles is not accepting the old birth certificates from those applying for a state identification card or a driver's licence.

In fairness to state officials and bureaucrats at the Ohio BMV, the old birth certificates are in Spanish, with translated language in parentheses.  It is also true -- at least as far as my old birth certificate is concerned, that the words "United States" appear nowhere within the certificate.

And yet, this story makes you feel oddly uncomfortable, especially if you happen to be, like me, a citizen of Puerto Rico, born on the island and residing in the continental United States.

The Use of Race to De-legitimate Conservatives: Are Predominantly White Events and Institutions Per se Illegitimate?

I have often been uncomfortable with the way in which liberals and the media use race as a de-legitimating tool in disputes with conservatives.  Clive Crook nicely points this out here with respect to the recent Glenn Beck rally.

Are predominantly-white events and institutions per se illegitimate or does the criticism apply only to conservatives?  It strikes me that when liberals use race in this way, they are simply using race cynically and politically.

I am willing to explore the claim that predominantly white events and institutions are not representative of America and therefore have less claim to legitimacy.  But if this is a serious inquiry, it should not be directed selectively against conservatives.  Otherwise, the inquiry is betrayed by its cynical manner in which it is selectively deployed and it is the cause of racial equality that suffers.

New Elections Might Cause Number of Women in Congress to Decline

The L.A. Times reports that the prospect of Republican successes in this fall's Congressional races will likely reduce the number of women in Congress:

With this fall's midterm elections, the number of women serving in Congress could drop for the first time in a generation — a twist on a political season many had dubbed "the year of the woman."

If large numbers of Democratic incumbents lose in November, as expected, many women could be replaced by men. Female candidates tend to do better in Democratic years, and 2010 is shaping up as a successful year for Republicans.

Women now hold 90 seats in Congress: 69 are Democrats and 21 are Republicans. After the November election, Congress could end up with as many as 10 fewer female members, prognosticators now say, the first backslide in the uninterrupted march of women to Washington since 1978.

...In fact, just four women are among the GOP's 46 "Young Guns," as the party calls its frontline challengers who are considered future leaders.

According to the Wikipedia , only 17 percent of our current Senate is female; remarkably, only 17 percent of our current House is female as well.

Back to Class . . . and Race

The debate over the use of race in public policy is in full swing, at least as far as elite opinion is concerned. I can’t really figure out why. Michael Lind issued the latest salvo yesterday, writing in salon. Unfortunately, as it is often the case with this issue, his essay does little to persuade. The reasons become obvious after reading the first few paragraphs: those who assail racial preferences and those who defend them cannot even agree on a set of basic premises. This is a debate where people are talking past one another.

More on Muslim Cultural Center near Ground Zero

Michael Kinsley has a very nice response to Charles Krauthammer on Krauthammer's opposition the Muslim cultural center near Ground Zero.  I thought Kinsley's analogy to blacks and Jews being asked not to move into a neighborhood because their presence might cause anger among the neighbors is pretty apt.  Another example might be nine black students who enrolled in Little Rock Central High School in 1957 following the Supreme Court's desegregation decision in Brown v. Board.  Should they have encouraged to attend an all-black school because integration was upsetting to the white folks in Arkansas?

This is why I think President Obama was right and courageous to speak out on this issue.  The principle at stake is basic and central to our democracy: heckler's do not have a right to veto the exercise of a person's constitutional right in the public square.  We are not a society where we allow the mob to determine whether individuals' can exercise their constitutional rights in the public square.  That was the issue at stake in the Little Rock Nine case and it is the issue at stake here.  If the President of the United States is unable to stand-up for that principle because he is afraid of the political repercussions, then he is not a person of courage.  But this President demonstrated courage in this case and I applaud him.

The End of Judicial Activism?

I have been thinking a lot lately about Judge Walker’s ruling in California striking down Proposition 8, and Judge Bolton’s ruling on Arizona’s immigration law.  The most obvious response is that these rulings, and the reactions of those who oppose them, lay bare the silliness of the modern debate over judicial activism.  According to their critics, these rulings are exercises in judicial activism by liberal judges hell-bent on destroying everything we hold dear; yet recent rulings on gun rights, campaign finance, and race, to name a few glaring examples, are exercises in judicial restraint and the faithful exercise of judicial responsibilities in enforcing our beloved Constitution. 

This is bunk, obviously; Justice Scalia is no less an activist judge than Justice Marshall.  They just happened to care about different things.  This is true under any definition of activism you can think of, from the invalidation of statutes to the creative and dynamic interpretation of federal laws to the active use of the avoidance canon.  If you need support for this, take a look at the Supreme Court’s most recent pronouncement about the Voting Rights Act, Namudno v. Holder.  Rather than rule on the constitutionality of the Act, as most observers expected, the Court, in an opinion authored by Chief Justice Roberts, “avoided” the constitutional question.  It did so by essentially rewriting the statute to say something the text clearly did not say.  In the coming years, the Court is similarly poised to strike down the special provisions of the Act.  As I have written elsewhere, this is “activism on steroids.”

To focus on the concept of activism is thus to focus on the wrong target.  This is to focus on politics, not law, and to render criticisms of judicial rulings as questions of whose ox is being gored.  No shame in that, of course, but hopelessly unhelpful.

Instead, we should focus on the fact that judges are strategic actors, particularly those who sit at the top of the judicial hierarchy.  This is to say, the justices of the U.S. Supreme Court have policy preferences, which are reflected as best as possible in their rulings and votes from the bench.  This is true of all the justices, not only the liberal ones.  The moment we come to accept this truism, the better off we will be. 

Right off the bat, I can think of one big improvement on our politics: we won’t have to listen to Senator Sesssions pontificate about the dangers of judicial activism. 

Enough already.