Tuesday, April 27, 2010

Stanley Crouch Takes Tavis Smiley to the Woodshed

Is the black intelligentsia engaged in an internecine scuffle?  If so, this is the latest salvo and it's devastating.

Monday, April 26, 2010

The Lessons of Immigration Reform in Arizona for the Court

Late last week, Arizona governor Jan Brewer signed into law one of the toughest, if not the toughest, immigration bill in recent memory. The one feature of the new law that has received a great deal of attention requires police officers to stop anyone they reasonably suspect of being an illegal immigrant. Those who fail to produce a driver's license or documentation showing their legal status could be arrested. What this means for brown people in Arizona should be painfully clear. What could it possibly mean to reasonably suspect that a person is illegally in this country, particularly in the Southwest, other than by the color of her skin, her facial features, his surname or accent? This bill is, in a word, "shameful."

Governor Brewer is mindful of these concerns. Yet, she argued while signing SB 1070 into law:
"I will NOT tolerate racial discrimination or racial profiling in Arizona. Because I feel so strongly on this subject, I worked for weeks with legislators to amend SB 1070, to strengthen its civil rights protections. That effort led to new language in the bill, language prohibiting law enforcement officers from “solely considering race, color, or national origin in implementing the requirements of this section."
I do not doubt for a moment the governor's sincerity. But how can the law not lead to racial profiling? In fact, it may be said that the law encourages precisely that, the targeting of people within the state on the basis of race.

Responses to the law have ranged from direct protest to promises of litigation. I think both are important. But the more I think about litigation as an alternative, the more I keep coming back to the upcoming nomination of Justice Stevens' replacement on the Court.

Thursday, April 22, 2010

Some Questions About Elena Kagan

Elena Kagan, currently the Solicitor General of the United States, is widely rumored to be President Obama's top choice to succeed Justice Stevens on the Supreme Court. The most compelling and least compelling aspect of a Kagan nomination is that we do not know where she stands on many of the issues that would come before the Court. For those of us who would prefer a strong left-of-center nominee, the basic message is that we should trust that Kagan will not be the left's version of David Souter. I understand why Kagan is politically attractive as a nominee. But I am nevertheless left with some questions.

Monday, April 19, 2010

Thinking about Activism, Judicial and Otherwise

An article in yesterday's New York Times pitted President Obama and Chief Justice Roberts as "two intellectual gladiators in a great struggle over the role of government in American society."

Without intending to do so, this Article highlights the many problems facing progressives in the world of American politics.

Three things in particular caught my attention. First, the framing of the article itself puts progressives in a situation they cannot win. It is Obama, the President and author of "Obamacare" and everything that is wrong in the world of politics inside the Beltway, against the Chief Justice of the Supreme Court. I wonder who is going to win that battle in the court of public opinion.

This point is directly related to the second. In the article itself, Obama is labeled "an activist president." I think the label is partly right, especially in the wake of the landmark health care legislation. But the label is also partly wrong. Obama may be an activist, but he certainly is not the activist that progressives might prefer. Think in this vein of the health care bill itself and its lack of a public option. Think also of the recent debacle over the failed nomination of my colleague Dawn Johnsen to lead the Office of Legal Counsel, or the direction of Obama's foreign policy. If this is a liberal President, and an activist President at that, I cannot imagine what a moderate president would look like.

The third point follows as well. This is a point about judicial nominations. From the article:
the search for a replacement for the retiring Justice John Paul Stevens is centered on finding a justice who will not just replicate his liberal votes but also bring intellectual heft and powers of persuasion to the court to win the swing vote of Justice Anthony M. Kennedy, according to people close to the search who insisted on anonymity to discuss it. While activists on the left often say they want a liberal Antonin Scalia, the fiery conservative justice, Mr. Obama is looking for a liberal John Roberts, who can forge a five-vote majority rather than write satisfying but ultimately meaningless dissents.

There is so much wrong with this passage that I don't even know where to begin. Obama wants a "liberal" with "intellectual heft" yet also with "powers of persuasion" to seduce meek Justice Kennedy to our side. This is troubling enough; yet more troubling still is the idea that the Chief Justice is a consensus builder, a conservative justice willing and able to forge compromise and bring the needed justices to his side. To be sure, this is what the Chief Justice preached during his confirmation hearings and soon after joining the Court. This is not the Chief Justice we have come to know.

The larger point is this: labels matter, and in the public imagination, Obama is a liberal, and so is Justice Stevens, Breyer, and even Sotomayor. In contrast, Thomas, Scalia and the Chief Justice are conservative justices , "classical judicial jurists" who follow the law and do not try to make anew. This is clearly a hoax, a myth carefully created and nurtured by very smart people who clearly know what's at stake.

Move ahead to the upcoming Supreme Court nomination in order to make sense of all of this. In the last go around, Obama nominated a moderate judge yet conservatives assailed her as a liberal activist and 31 senators voted against her. The next nomination will be along similar lines and senators will criticize it all the same. Right then and there you know that the conservative movement and its construction of reality is winning, by a wide margin. A Republican president nominates Justice Alito and Chief Justice Roberts, and Senate Republicans are able to confirm them. Why is it that Democrats cannot do the same? Why is it that Professor Pam Karlan, as distinguished and credentialed an academic as you will find, is not nominated, but a moderate, even conservative Elena Kagan might be?

Here is everything you need to know: five years ago, two of the four "liberals" on the Court were nominated by Republican presidents. What does that tell you about the Court's ideological drift in the last generation? This reminds me of Justice Stevens' dissent in Parents Concerned, the Seattle school case, where he wrote that "It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today's decision." Of course not. This is not the same Supreme Court we are discussing. This is an activist Supreme Court, especially on matters about which the conservatives care deeply. All the while, the general public continues to believe that it is a conservative Court, and the press continue to perpetuate the myth of its conservatism.

As I stated at the onset, this is the problem confronting progressives at the moment. It is quite a challenge.

Sunday, April 18, 2010

Further Thoughts on Networks, Connections, and "the people we know"

During their testimony this past week in front of the House Appropriations Subcommittee, Justices Thomas and Breyer conceded that getting a clerkship on the Court comes down to a great extent to a candidate's networks and connections, to "the people you know," in the words of Justice Thomas.

I wonder if the implications of their concessions was lost on the justices, especially Justice Thomas.

Whatever happened to "merit?"

This should not be hard question, particularly for Justice Thomas. The issue of law clerk diversity should be open and shut for him: I only hire on the basis of merit, he should have said, the same way that Michigan law school should admit its students and New Haven should promote its firefighters. Instead, he chose to talk about the pool of candidates and how he basically does the best he can under the circumstances.

In fairness to him, it may be that he was simply pandering to the subcommittee, telling its members what they wanted to hear. But that seems unlikely. I really think he was being honest. For a telling example, consider the case of Duke Law School and its most recent dean search.

Think first about what the concept of merit would entail in such a search. What does it mean to deserve a position of dean at a major law school, not to mention an elite one. Strong academic credentials? Strong fund-raising record? Affability? Good looks and charming personality? All of the above? I don't really have a definitive answer, and anyone who has been part of a dean search knows full well that faculties don't have one either. They simply hire the person they like, or the candidate who feels right, or whatever. They look to the future and hire the candidate they think is best positioned to get them there. Hardly an exact science.

A little over two years ago, Duke Law School found itself in this position. Their three finalists were Erwin Chemerinsky, then a faculty member at Duke and presently dean at UC-Irvine; Kyle Logue, professor of law at Michigan Law School; and David Levi, Chief Judge of the United States District Court for the Eastern District of California.

For someone looking on the outside, the choice seems pre-ordained. But rather than choose Chemerinsky, the law school chose Judge Levi. A surprising choice, it would seem. Upon close inspection, not so much.

Judge Levi is the son of Edward Levi, former attorney general under President Ford, former President of the University of Chicago and former dean of the Chicago Law School. Without question, his credentials are impeccable, and by no means do I intend to impugn them: he is a magna cum laude graduate of Harvard College, graduate of Stanford Law School, where he graduated Order of the Coif and was President of the Stanford Law Review, and clerked for Justice Lewis Powell. Under any measure, Judge Levi is qualified to do whatever he wants in life, including lead an elite law school. But just think: when was the last time you heard of a federal judge leaving the bench to become dean of a leading law school?

In a world where connections, networks, and "the people you know" make all the difference in the world, the appointment of Dean Levi was a masterful one. Could it be a coincidence that Duke law is sending three of its graduate to clerk on the Supreme Court the upcoming term?

Is it also hardly a coincidence that Elena Kagan and Diane Wood, former professors at the University of Chicago Law School -- where President Obama once taught as a senior lecturer -- are leading candidates to replace Justice Stevens.

The bottom line is simple: in a world where networks and connections matter, we already know who will not get jobs and gaudy appointments to important places. We can focus on Mr. Ricci and Ms. Gratz all we want, but the world that conservatives on the Court want us to believe exist, a world where hard work and individual effort will get you places is simply not the real world. In the case of Justice Thomas, it is particularly galling that not only did he get ahead in the world through networks, his race, and the people he knew, but he also fully recognizes and acknowledges the realities of the world. So, when you read his next opinion hiring, admissions, or equal protection in general, keep his testimony from last week in mind. The man is either inconsistent, not smart enough to see the inconsistency, or a hypocrite.

Pick one.

Friday, April 16, 2010

The Justices and Law Clerk Diversity

Justices Breyer and Thomas testified in front of the House Appropriations Subcommittee on the proposed budget for the courts for the fiscal year 2011 (watch it here). The testimony as a whole is not terribly interesting; silly at times, condescending at others. And then the Representatives started asking about law clerk diversity.

Take Representative Crenshaw question:
"there is a disproportionate share that come from either Harvard or Yale. . . . Is the reason for that because people from Harvard or Yale are more qualified to be Supreme Court justice clerks or do a disproportionate share of students from those schools apply? And is that something that you all think about when, the educational diversity aspect of being a clerk?"

Justice Thomas answered by pointing out that he hires from a broad pool, yet conceded that the pool is not terribly deep.

Somehow, that was a good enough answer for Mr. Crenshaw. But not, thankfully, for Barbara Lee. As she told the justices right off the bat, Rep. Crenshaw "asked her question," but she wanted a "broader answer." Her questioning begins around the 54-minute. You knew where this was going when she began to talk about the time when she arrived on Capitol Hill and how hard it was then for women and people of color. She conceded that improvements have been made, but not enough. She then asked the following question:
"I know that the courts want to strive to be representative of the American people in terms of their staffing and their law clerks. . . . Harvard and Yale are great law schools, they are excellent institutions. However, we know that there are few minorities attending these law schools.

And so I wanna find out if you have an actual concerted effort at identifying law clerks from Howard, or Texas Southern or even in terms of regional diversity, Boalt hall, out in California. How do you do this, and is there a way we can look at what these numbers are currently?"

In his response, Justice Thomas blamed the pool of clerks from the Court of Appeals. If this pool is not broad enough, diverse enough, then the hiring process at the Supreme Court will of necessity reflect this lack of diverse. For himself, he stated that he has a broad pool, in terms of law school diversity. He conceded that Blacks and "Hispanics" don’t show up on the pool from which he draws, but it is not up to the Court to increase that pool.

His bottom line? Diversity happens. Diverse candidates just “show up.” In the end, “you have to look at what’s in the pool.”

Representative Lee was not having any of it, and she told Justice Thomas exactly that:
“What’s in the pool has to do, unfortunately, with some of your decisions that really shut out people of color at these institutions. So if we go there, we could have a good, healthy discussion about some of your decisions.”

Of note, Justice Thomas did not have an answer.

To Justice Breyer, this conversation was "not as ‘in-date’ as you might think.” Within his time on the Court, he has seen sea-change" on this issue. As he talked, he ultimately hit the nail in the head: it is all about "networks and contacts." Justice Thomas later conceded that Rep. Lee had a "good point" and concurred with Justice Breyer; in his words, "a lot of our hiring depends on people we know." If this is true -- and I agree that it is -- then candidates of color have a built-in, structural disadvantage. Privilege just continues to reproduce itself. I wonder how the justices could possibly miss the connection.

Change will not happen on its own, in other words, and in this vein Ms. Lee's offered the following suggestion: The justices must try to expand the pool themselves, maybe by issuing an "edict" to the lower courts where it announces its desire for more minority clerks. "Somehow you need to communicate that that's what you'd like to see [a diverse pool], rather than just say we'll take who shows up."

Whatever you do, don't hold your breath.

Monday, April 12, 2010

Replacing Justice Stevens

Upon the announcement that Justice Stevens is indeed retiring from the Court, Senate Republicans immediately began to offer their views on the future nominee. According to Senator McConnell, for example, "Americans can expect Senate Republicans to make a sustained and vigorous case for judicial restraint and the fundamental importance of an even-handed reading of the law," while Senator Lamar Alexander warns that "I hope President Obama will nominate his successor from the middle and not from the fringe. His nominee will be fairly and respectfully considered. The question is not whether the president's nominee is politically 'on my side,' but whether he or she is well-qualified and has a record of being impartial." In case anybody missed the implication, he added: "In truly extraordinary cases, I reserve the prerogative to vote no on confirmation or even to vote to deny an up-or-down vote."

The writing is already on the wall, and I can only conclude one thing: it stinks to be a progressive.

When Republican presidents nominate justices, they usually pull no punches: think here of the present conservative majority on the Court. Justices Scalia and Thomas are "impartial and even-handed" in the same way that I am from Mars. The same goes for Justice Alito and Chief Justice Roberts. Yet somehow Republican presidents appointed them to the bench and Senate majorities confirmed them. No talk of filibusters then, but rather, of nuclear options and a fair vote.

In contrast, Democratic nominees are quite tame in comparison. There is simply no way to look at Justices Breyer, Ginsburg and Sotomayor and think of them as ideological counterweights to Scalia and Thomas. Case in point: the conservative majority on the Court is so far to the right that a year ago, with Justice Souter on the bench, two of the four "liberals" were appointed by Republican Presidents. What does that say about the ideological commitments of this majority?

This is simply maddening (or, depending on your point of view, a brilliant political strategy, nurtured and developed over time). The conventional wisdom portrays any Democratic nominee as an activist, yet "conservative" nominees are "strict constructionist with deep respect for the rule of law." This is a blatant canard, but one with a lot of purchase where it matters. This is the main reason why conservatives can go to the far right, to the fringe of the party, and grab anybody they want, and liberals must come to the center. Conservatives can choose Justice Alito, but liberals can barely get Justice Sotomayor (I imagine those 31 Senators voting against her would only have supported President Obama's nominee if she had been Harriet Miers).

It is clear that the Republicans hold the upper hand and will continue to do so until the Democrats get a backbone. In case any further proof is necessary, see, for example, Dawn Johnsen's failed nomination to head the Office of Legal Counsel. In the aftermath of John Yoo's and Jay Bybee's stint in this office, I didn't think there would ever be any Republican objection to a Democratic nominee for the foreseeable future. I was clearly wrong, by a mile.

If Democrats had a backbone, they would nominate Pam Karlan, even Diane Wood. That is why Tom Goldstein wrote back in February that Elena Kagan is a "prohibitive favorite" or, according to Elie Mystal at Above the Law, the "front runner."

This is depressing and even "harmful," but not terribly surprising. Guy has much more to say about nominating Kagan, and I look forward to his future post on the subject. For the moment, I will only offer the following, written by Tom Goldstein last October: "I don't know anyone who has had a conversation with [Elena Kagan] in which she expressed a personal conviction on a question of constitutional law in the past decade." That is not disqualifying, to be sure, but hardly something that should instead elevate a person to the select realm of Supreme Court nominee.

Tuesday, April 6, 2010

Steele's Race Card

Appearing in ABC's "Good Morning America, embattled Republican National Committee chairman Michael Steele suggested that his margin of error as chairman is smaller than others because of his race. In so doing, Mr. Steele argued that he and President Obama found themselves in the same position: handicapped because of their race.

As soon as I heard the comment, two questions popped into my head. Can anybody seriously doubt that such a double-standard exists? And yet, why in the world would Steele say that?

The first reaction takes me back to a post from a few months back about the way race shapes perceptions of reality. The same applies here: ask a person of color about this comment, and she will nod her head in agreement, barely having to think about it at all. Of course he is being judged differently. What's new about that? Ask a white person, however, and you are likely to get a different answer. We are divided by color indeed.

But that's precisely the point. What does Mr. Steele have to gain by linking his struggles as chairman of the Republican National Committee to his race? The immediate reactions were unsurprising. Ask the White House, and its spokesperson will tell you that Steele's comment is "silly." Ask a Democrat, and he will tell you that Steele's "case of foot-in-mouth disease is getting very tiresome," and he "is the price the Republicans are paying for tokenism." Ask a Republican, and he will take issue with the tokenism charge and will blame liberals for their intolerance. Ask a black person, and she will tell you that "Steele is absolutely right to acknowledge that he has a lower margin of error than perhaps a white counterpart."

These responses were as predictable today as they would have been a week ago. Why, then, did Steele feel the need to go on national television to defend himself in this way? The only audience that makes any sense to me is fellow black and Latino voters. Could this be the latest effort on his part to court voters of color to the Republican party? Crazy as it may seem, this is the only way his interview makes any sense.

Monday, April 5, 2010

Justice Stevens' Views on the Court, Dissenting, and Judicial Behavior

Will he do it, or won't he? That is the big question surrounding Justice Stevens rumored retirement from the Court. In an interview published yesterday by the New York Times, Justice Stevens shed very little light on that question.

Three other things he did say caught my attention.

Note first how the "wise Latina" controversy was much ado about nothing (shocking, I know). According to Justice Stevens, “I’ve confessed to many people that I think my personal experience has had an impact on what I’ve done. . . .Time and time again, not only for myself but for other people on the court, during discussions of cases you bring up experiences that you are familiar with.” In so many words, this was the view expressed by Justice Sotomayor that brought her so much criticism. I wonder whether Senator Sessions and the conservative talking heads will come after Justice Stevens for this comment. Then again, maybe they objected not to the notion that personal experience influences judging, but the fact that the Latina would be a "wise" one.

On the issue of judicial behavior, turns out that Justice Stevens comes quite close to the Chief Justice's view, expressed during his conformation hearings, that a judge only calls balls ands strikes, nothing more. In reference to the controversial Kelo case, Justice Stevens was relieved that he was not a legislator, so he would not have to decide how this issue should ultimately come out. He added: “One of the nice things about this job is that you don’t have to make those decisions” . . . . “Very often you think, in this particular spot I don’t have to be deciding the really hard case about what should be done. Which is one of the reasons why the function is really quite different from what people often assume.”

Not sure that I have much to add to this point, other than to wonder out loud whether Justice Stevens could possibly be serious, or just playing to his audience. In light of that comment, I wonder how he would explain the recent Citizens United case, or the Court's jurisprudence under the Voting Rights Act, or the Court's race jurisprudence under the Fourteenth Amendment. The functions may be different, and so are the processes, but the end result is functionally the same: strategic policymaking. I am not sure how anyone intimately familiar with the Court's inner workings could hold any other view.

His views on the role of dissent is also eye-opening. Once the Court decides an issue, he explained that he would no longer continue to dissent in future cases, as Justices Marshall and Brennan would do in death penalty cases. This is because “I’m still a member of the court, and I still have to work.” Maybe so. But Marshall and Brennan are hardly the only ones who would follow this approach -- see for example, Justice Thomas many concurring opinions in Section 2 cases under the Voting Rights Act, which refer to his earlier criticism in Holder v. Hall, or the many dissents by Justices Kennedy, Thomas and Scalia in campaign finance cases. Of note, these dissents culminated in the recent Citizens United case. Similar dissents might also lead to an overturning of the Voting Rights Act. If this is what being a "a member of the team" is, I wonder what being a member of the opposite team looks like.