Disclosure and the First Amendment: An Explanation of Doe v. Reed for Lay Readers

The Supreme Court recently decided in Doe v. Reed that the First Amendment does not prevent the State of Washington from publicly disclosing the names and addresses of individuals who signed a referendum petition.  This is one of those rare cases where the issues are intellectually appetizing and the Justices are firing on all cylinders.  There were seven opinions each of them fascinating. The majority opinion was written by Justice Roberts and only Justice Thomas dissented.  Justice Scalia concurred in the judgment only.  Justice Alito wrote a concurrence (that should really be a dissent). Justice Breyer wrote a short concurrence, Justice Stevens wrote a concurrence that was joined by Justice Breyer.  Justice Sotomayor wrote a concurrence that was joined by Justices Stevens and Ginsburg. If you're keeping score at home, only Kennedy and Ginsburg did not write on this one.

Groundhog Day in the Senate

The Elena Kagan nomination hearings began in full this morning.  She is presently engaged in a tedious, boring (even if necessary) game of "gotcha" with Senator Sessions over "don't ask, don't tell" and the Solomon Amendment.  No big surprise there.  What I do find quite remarkable is how Senator Session wields his power as he does, in hearing after hearing, yet the nominees remain respectful and deferential all along.  That alone is a test few of us could probably meet, and is perhaps the very best test our constitutional system could device for a Supreme Court nominee.

As I listen, however, another nomination hearing comes to mind, that of Chief Justice Roberts back in 2005.  For a flavor of what is to come, just compare the prepared statements from Roberts and Kagan. They are so similar that it is downright scary.

This is right out of "Groundhog Day."

Hypocrisy (or is it Political Advantage?) and Conservative Attacks on the Courts

Just today, the Supreme Court finally handed out its opinion in McDonald v. City of Chicago, the gun control case.  Unsurprisingly, in a 5-4 decision, the Court reversed the Seventh Circuit and remanded the case for further consideration.  Per Justice Alito, the Court concluded that the Second Amendment is in fact incorporated into the 14th and applicable to states and local governments.

This case comes on the heels of the Kagan hearings, and rumblings from Republican senators about their likely course of action on the Kagan nomination.  Their response at the hearings will certainly include attacks on liberal activist judging and might go as far as to filibuster the nomination.

This is when your head starts to spin and you wonder whether people are as stupid as Republicans presume them to be.

Judicial Takings

I have to admit that I was fearing the worst from Stop the Beach Renourishment, Inc. v. Florida Dept of Environmental Protection, the Court's recent takings clause case, but the result was, to my mind, striking for its reasonableness. The Court unanimously upheld the Florida Supreme Court's decision that Florida's complicated beach renourishment scheme did not take property from beachfront landowners. The case raises a number of interesting questions. Among these was the intriguing question, as Ben Barros put it in his comments to the New York Times, "why would a beachfront property owner oppose beach renourishment?" As someone who has been critical of beach renourishment as a taxpayer funded giveaway to well-heeled beachfront owners, I found it a bit jarring to agree with with the (shall we say) idiosyncratic plaintiffs with the bust of Ronald Reagan in their office that we should leave beach erosion and accretion to mother nature.

Although the decision on the merits is interesting -- especially to property geeks like me who enjoy reading about the difference between avulsion and accretion within the common law -- the more interesting part of the opinion was the back and forth between Justice Scalia and Justice Kennedy over the question of "judicial takings." Apparently important to the property rights community, judicial takings is not a topic I've given a ton of thought to, aside from the brief discussion of the issue in my first-year property course. Reading over the opinions and the commentary in the days surrounding the decision, however, a few (somewhat half-baked) thoughts came to mind.

First, as I worked through the opinions, I have to confess being initially sympathetic -- in an abstract way -- with the bare possibility of judicial takings and with Scalia's clean argument for treating new property rules created by the judiciary no differently than new rules enacted by the legislature or by an administrative agency. But, for reasons I'll get into below, I'm not ultimately convinced that this equivalent treatment is actually justified most of the time.

Second, a commentator on NPR talked about the doctrine of judicial takings as potentially limiting the power of judges. This struck me as true in a sense, but also a little misleading. Although a judicial takings doctrine would arguably impose some new constraints on state courts, the doctrine would simultaneously seem to dramatically enhance the power of federal courts to review state court decisions on takings clause grounds. And, last time I checked, federal judges were also judges.

Now, it's not completely clear how you'd get to federal court to raise your claim, in light of the onerous exhaustion requirements the Court has imposed on takings claims under Williamson County. It's an interesting question to consider whether a doctrine of judicial takings would necessarily open up an avenue of collateral appeal of state court civil judgments in the lower federal courts -- almost like habeas corpus for disgruntled civil litigants. Scalia emphasizes the route used by the plaintiffs in this case -- certiorari to the Supreme Court from a final judgment in state court, which would not be very significant in light of the small number of cases that could successfully get to the high court, but that would be the required path only for the litigants in the case first giving rise to the so-called judicial taking. For other litigants, he does not rule out a collateral attack in federal court if a takings claim in state court would be futile.

Scalia tries to paint this as nothing new, since this route to federal courts is already available for challenges to state exeuctive or leglislative actions as well. But there does seem to be something new about the judicial takings route, particularly in light of the expansive view of the takings clause Scalia has endorsed in the past. Specifically, I'm not sure how Scalia and the rest of the plurality who favored judicial takings would cabin the doctrine to cases -- like this one -- where a state court explicitly considers the meaning of its common law of private ownership. After all, in Eastern Enterprises v. Apfel, Scalia and Thomas both endorsed the notion that the retroactive imposition of monetary liability violates the takings clause.

If that were the law, then it's not clear that the doctrine of judicial takings the plurality endorses in Stop the Beach Renourishment wouldn't open the door to a federal claim for any party who thinks a state court got the law wrong, if the result of the new legal rule would be an award of damages against the claimant. And this would be true even if the law the state court got wrong were the law of contracts or torts, and not just the law of property. A state supreme court case on the law of, say, contracts, which the claimant thinks changed clearly established law and which, if applied in the claimant's case, would result in an adverse damages award, would seem to operate, from the standpoint of Scalia's version of the takings clause, the same as the retroactive imposition of monetary liability in Eastern Enterprises. And so a robust doctrine of judicial takings would appear to create a very dramatic and broad power to challenge civil state-court decisions of any sort in federal court. For the losing party, the path of appeal would be through a judicial takings claim in a cert petition to the Supreme Court. But for non-parties to the original case for whom the state high-court decision would adversely affect their interests, the door would seem to be open to a takings challenge in lower federal courts.

And this gets at why I think Scalia goes wrong with his easy argument for treating courts the same as other branches of government. His mistake comes early on in the opinion where he says that "the classic taking is a transfer of property to the State or to another private party by eminent domain." I think this is wrong. The classic use of eminent domain is a transfer to the state. The so-called private-to-private uses of eminent domain are typically understood as derivative of this paradigmatic private-to-state taking, to be used in situations in which it is for some reason preferable to have a private party undertake the public purpose the state is seeking to advance through the use of eminent domain.

The key point is that, even in private-to-private takings, there is always a governmental actor seeking to advance a state objective. That is not true, however, in any number of cases where judges are trying to decide a case between private litigants. In most of those cases, the state courts are not seeking to advance a public purpose, but rather to resolve private disputes as best they can. To say that a state court decision resulting in a loss of property rights (or, perhaps, money) is the equivalent of eminent domain is to ignore this distinction, which Joe Sax made in one of his early takings articles. Thus, when Justice Kennedy gives the example of a state court trying to revolve a boundary dispute between two private parties, it's just not obvious to me how even a clearly erroneous decision on the merits takes the loser's property for public use. It certainly deprives the loser of property that he had before, but not in the service of some state goal. And that difference seems significant for deciding whether to treat this claim under the takings clause or the due process clause. (I don't think I'm being overly formalistic in making this distinction, but I need to think about it some more, and I'm open to being convinced otherwise.) Sure, from the perspective of the owners, both types of actions are similar: they both result in property owners losing property (or money) to which they otherwise would have been entitled, but the state (court's) role and goals are very different in the two sorts of cases. At the end of the day, then, I suppose I am inclined towards Justice Kennedy's due-process approach.

This still leaves me open to the possibility of a narrower category of so-called "judicial" takings, which would be limited to situations in which the state court is -- as in the Stop the Beach Renourishment Case -- adjudicating between the state and a private actor. In such cases, the state court's redefinition of property rights to make room for the state's own action could, if it erroneously disregards established property rights -- have the affect of unlawfully empowering the state to take property for public use without just compensation. Even in these cases, care would need to be taken to avoid finding to be takings situations in which the state court was merely clarifying the law or applying an existing (but broad) principle (like sic utere) to a new factual situation or in light of new knowledge about the harmfulness of longstanding practices. But where the state court is merely adjudicating between private actors -- as it is in most common law property, contract, and torts cases -- the proper rubric seems to me to be Justice Kennedy's due-process analysis.

UPDATE: Proving that there's no idea I can have that Lior Strahilevitz can't have more clearly and at least five days sooner, here's a link to his excellent post from a few days ago at the U. Chicago Law Profs blog, which makes many of the same points, and, in addition, connects the beach renourishment case up to Kelo v. New London.

Inflating Elena Kagan

In recent days, Robert Bork announced his intention to publicly oppose Elena Kagan's nomination to the Supreme Court.  Just this morning, The Times reported on the growing  grade inflation taking hold in our nation's law schools.  These stories have much in common.  I can think of at least two commonalities.

First, they both make sense.  On Kagan, it is clear that this is the time when critics of the nomination must do whatever they can to derail it.  Needless to say, this is a complicated calculation; to derail this nomination is not to say that Obama would appoint somebody better the second time around.  In fact, he might decide to do exactly the opposite, just as President Bush did with the appointment of Justice Alito.  The Kennedy nomination is also instructive.  

Grade inflation is also quite rational.  It makes sense to keep up with the market, especially if the end result will be a competition for jobs in a tight labor market.  Who would you rather hire: a student with a 3.0 grade point average from a good law school, or a student with a 3.5 gpa from a great law school?  I think the answer is clear.  Now, I understand that gpa's are artificial measures, which only serve to compare similarly situated students but not students across a larger spectrum.  This is why class rankings are the best way to compare students from different institutions.  But tell that to the recruiters.  

Judging as Refereeing and the World Cup

I wonder if Chief Justice Roberts is a fan of futbol.  As I watch the Germany-Serbia match this morning, I could not help but think of his analogy, during the confirmation hearings, between judging and umpiring.  As he famously said, “Umpires don’t make the rules. They apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire.”  Fans of any sport know better.  Apparently, U.S. Senators did not.

The referee this morning has had a very active hand, calling yellow cards at at a very fast pace.  At one point during the first half, the announcers wondered whether this pace could possibly keep up, and what it would mean for the outcome of the game.  Wouldn't you know it, a few minutes later, the ref called a second yellow on a German players, sending him off to the bench.  Moments later, Serbia scored and the match remains 1-0.

The point, clear to anyone watching this match, is that the referee had a very clear idea of how he wanted the game to go, and called it accordingly.  This is not a novel point, and I don't mean to suggest otherwise.  The same is true of judging.  This is why I wondered, were the Chief Justice watching the game with, say Senator Sessions, what they would say to each other.  I would imagine the conversation to go something like this:

"Can you believe this referee, calling the game so tightly?"

"That reminds me of your nomination hearing, John, and the analogy you gave us about judging and refereeing. Brilliant!"

"I must say, I never thought your colleagues would buy it, or anybody else for that matter.  Can you believe it?"

As the hearings for General Kagan are soon to begin, the analogy will likely resurface with a vengeance.  Brilliant indeed. Or embarrassing.  You be the judge.

The BP Dividend Controversy: Why Communities of Color Should Care

This is a guest post by Professor Dorothy Brown 

BP yesterday agreed to establish a $20 billion escrow fund to pay off victims of the oil spill in the Gulf.  That’s a good start.  BP also agreed to not pay any more dividends until the end of the year. That’s even better.  Because if dividends were paid and BP found itself subsequently unable to pay off Gulf victim claims, that money is gone and cannot be used to compensate those victims. 

To begin at the beginning, dividends can only be received if you own shares of stock in a company.  According to the BBC, 39% of BP’s stock is held by Americans and a third of that is owned by individuals.  Americans can own stock via several different avenues.  First, we could own BP Stock directly.  Second, we can own BP stock indirectly by investing in a mutual fund that owns BP shares.  Third, our retirement accounts could have BP shares.  The first two methods of ownership could result in immediate taxable income; the latter does not until you retire and start to withdraw those funds.

Stock ownership either inside or outside of retirement accounts are race and class based.  The higher your income the more likely you are to own stock directly or in your pension account.  Whites regardless of income are more likely to own stock than blacks.  While the reasons for this are somewhat complicated – (see my research below that shows lower income whites are more likely to own stock than higher income blacks) – the fact remains.  One recent study, done by the Center for Budget and Policy Priorities tells us that over 75 percent of all capital gains and dividends that are currently taxed – not held in pension accounts - are taxed to households with income in excess of $200,000.  That represents only 3 percent of US households.

More individuals are likely to have pension accounts than own stock directly or through mutual funds.  About half of all private sector employees have a pension plan. The half that participates is most likely to be high income. That makes common sense.  Lower income employees have more pressing current financial needs that make it difficult for long-term financial planning.  There are racial differences as well.  Fifty-seven percent of white workers participated in an employer sponsored pension plan in 2008, compared to 45.6 percent of black workers, and 30.3 percent of latino workers. While the majority of white private sector workers participate in their employer’s pension plans, the majority of black and latino workers do not.  Worse still, black and latino account balances are most likely to be smaller than their white counterparts, due in no small part to the reticence on the part of black and latino workers to invest their pension funds in the stock market.

Every year since 1998, there has been a survey done jointly by Ariel Investments and Charles Schwab Investment Company of blacks and whites who earn more than $50,000 and what their preferred investments are.  Every year, whites are most likely to say stock and blacks are most likely to say real estate.  Since the stock market has historically provided the best yields, it is not surprising that the whites surveyed have higher retirement account balances than their black counterparts.  Retirement is something we all need to be better prepared for – especially communities of color.  For more commentary on the BP dividend controversy see my CNN Opinion piece. http://www.cnn.com/2010/OPINION/06/16/brown.bp.dividends/index.html

My prior research on pensions by race and class can be found at:

Pensions and Risk Aversion: The Influence of Race, Ethnicity, and Class on Investor Behavior, 11 LEWIS & CLARK L. REV. 385 (2007)

Race, Class and the Obama Tax Plan, 86 DENV. L. REV. 575 (2009)

Pensions, Risk, and Race, 61 WASH. & LEE L. REV. 1501 (2004)

Dorothy A. Brown is a professor of law at Emory University in Atlanta, GA and has published several articles on the race and class implications of employer provided pensions. 

The Village of Port Chester, Latinos and Cumulative Voting

The Village of Port Chester has a population of nearly 30,000 people, half of whom are Latino. But Latinos are only 20% of the voting age citizenry, so they had never elected one of their candidates of choice to the village Board of Trustees.  The Department of Justice sued in 2006 under the Voting Rights Act, and a federal judge agreed that the Village's at-large voting system deprived Latinos of fair representation.  In response, DOJ pushed for the creation of single member districts, while the village preferred a cumulative voting system.  This is a system where all voters receive multiple votes, which they may cast on any candidate they want, and can even cast them all on one candidate if they wish.  The federal judge sided with the village and ordered use of the cumulative voting system.

Yesterday, the election finally took place, and a Latino finally broke through and won election to the village board.  The candidate, Luis Marino, received the fourth highest number of votes from among 13 candidates.  The lessons of this election, and the process that led to Mr. Marino's election, are many.

Giving is not as Good as Receiving: Statutory Interpretation and Campaign Finance

Suppose that I give a friend of mine, we'll call him Amigo, $100 and he gives the money to someone else, let's call her Ami, who "gave" the money to Ami, me or Amigo?  When is it sensible to say that I gave the money to Ami and when is it sensible to say that even though the money came from me, Amigo gave the money to Ami? These are the questions that are at issue in the campaign finance case of U.S. v. O'Donnell.

The United States prosecuted Mr. Pierce O'Donnell for violation of 2 U.S.C. section 441f.  This section provides:

No person shall make a contribution in the name of another person
or knowingly permit his name to be used to effect such a
contribution, and no person shall knowingly accept a contribution
made by one person in the name of another person.

Mr. Pierce supposedly directed 13 of his friends and family members to make contributions to the John Edwards campaign in their own names.  They contributed a total of $26,000.  Mr. Pierce allegedly advanced some of them the money and others he promised to reimburse.  Mr. Pierce moved to dismiss the indictment on the ground that he did not "make a contribution in the name of another person" as required by the statute.  The contribution was made by the other people in their own name, though the funds either came from him or would ultimately come from him. The District Court agreed with Mr. Pierce, but a panel from the United States Court of Appeals for the Ninth Circuit unanimously overturned the district court's decision.

This is an interesting case for someone who just this past term taught both campaign finance and statutory interpretation.  I think this question is harder than the Court of Appeals thought that it was. Don't be surprised if the Supreme Court takes this up and reverses.

Thoughts on "Political Correctness" and the Helen Thomas Controversy

Last week, the Chicago "Blackhawks" won the Stanley Cup.  This was great news for Chicago hockey fans and fans of hockey's "original six." This was Chicago's first Cup in 54 years.  Yet all I could focus on during the games was the team jerseys, and particularly the Chicago logo.

Now, I know that this is a long-standing controversy.  I also know that to question the use of American Indian mascots for entertainment purposes puts me squarely within the "politically correct" camp, a hopeless liberal hell-bent on taking all our great American pleasures away from us.  I get all of that.  But I still can't help it.

These images are everywhere, from college campuses to major league baseball, and professional football.  They pervade our sports culture.  That does not make them any less offensive, or discriminatory.  Thinking about this debate also helped me put the recent Helen Thomas outburst, and her subsequent "retirement," in perspective.

Here's a quick and dirty answer to this debate.  If the use of American Indians as institutional symbols is an honor bestowed upon a great people, and intended as such, why then not spread the honor to other groups? I have in mind something like this:

I, for one, would love a mascot of a puertorican jibaro wielding a knife (or a machete) on one hand and a cuatro on the other.

You don't have to agree with me on any of this in order to find the recent Helen Thomas controversy a bit off-putting.  According to Ms. Thomas, Israel should "get the hell out of Palestine," and Jews should "go home . . . to Poland and Germany."  After offering these remarks, Ms. Thomas soon apologized, and within a few days "retired."

This is hypocritical on many levels.  For my purposes here, I must ask: what makes these attacks on Helen Thomas' views a legitimate response to "hateful" forms of expression?  If we can retire Ms. Thomas on the basis of something she said, how else must we understand this response but as "political correctness" run amok?

Could American Indian mascots be next?

Periodic Brief World Cup Thoughts

The United States tied England today. Yeah!!  England has a great team (okay, maybe some questions at the goal-keeping position).  They may not have the type of talent they've had in years past, but they are still one of the best teams in the world. So, this was a tremendous accomplishment for the U.S. and a big disappointment for the English.  I thought Tim Howard and Landon Donovan played particularly well.  We were a bit tentative at the back and sometimes our guys looked tired.  But we'll take the draw.

The South Koreans were fun to watch and may be a sleeper team.  The Argentines were also fun to watch, particularly Messi--what a player.  The Nigerians were frustrating, though their keeper deserves a raise.

What's Wrong with Judicial Diversity?

President Obama is nominating women and minorities to the federal bench in unprecedented numbers. But apparently, not everyone is happy about this newfound commitment to judicial diversity. According to Stephen Presser, professor of legal history at Northwestern, “[w]hen you make law representative of America, you are undermining the objective” of a fair and impartial judiciary. . . . What you’ve got here is the opposite of John Roberts’s notion that judges ought to be umpires." To "send a message of inclusiveness . . . is a dangerous move, and it makes the court more political than it needs to be."

Now, I have been interviewed often enough to know that statements can be taken out of context, words twisted, and who knows what else. And yet, this statement, standing alone, comes off as nothing short of bizarre, particularly coming from a law professor. You don't even have to agree with me that judicial diversity in fact furthers the value of judicial independence in order to find this statement puzzling. Assume that we agree that judicial diversity "make[s] law representative of America"? I would have assumed that this representativeness was a good thing, particularly in light of studies of judicial behavior that posit judges as influenced by myriad factors, including their politics and experience. How would recognizing what judges in fact do undermine in any way the fairness and impartiality of the judiciary?

Worse, I had really thought that Roberts' analogy of judges as umpires was nothing more than a rhetorical device for the moment, aimed at those on the Senate and the public at large predisposed to agree with him. Nobody, I thought -- and I do mean nobody -- with any experience reading cases and studying courts could seriously believe the analogy had any basis in reality.

Clearly, I was wrong.

Finally -- and maybe I am being unfair on reading the statement this way -- but how could sending a message of inclusiveness ever be "a dangerous thing" and make the judiciary "more political than it needs to be"? This is one paper from Professor Presser, defending this conclusion, that I would love to read.

Let me see if I understand: appointing judges in the mold of Alito and Roberts furthers judicial fairness and impartiality, but appointing judges in the mold of Sotomayor and Kagan is "dangerous"?

I am almost speechless.

On Sestak and Romanoff

Marc Ambinder has written a thoughtful post on why the White House did nothing wrong in trying to prevent, unsuccessfully, Joe Sestak from running against Alan Specter in Pennsylvania and Andrew Romanoff from running against Michael Bennett Colorado.  Ambinder's post is generally persuasive, but I think he and many other commentators have failed to struggle with an important point.  Ambinder concludes:

Where the White House erred is obvious. In claiming to hold themselves to an ethereal, fairly impossible ethical standard, they are partly responsible for the casual criminalization of regular political discourse. In some ways, this White House has been more transparent and more committed to generally accepted ethical practices. Although Obama never promised to abstain from politics, he invited some of this scrutiny by refusing to delineate what he found acceptable and what he did not.  But this is a venial sin compared to the transgressions of organized journalism.

I think this misses the point.  The issue here is not that the administration promised ethical behavior but behaved otherwise.  I am not troubled by the fact that the Administration cannot live up to all of its own standards.  That in and of itself is no reason for condemnation.  Before condemning we should ask why was was it that the Administration failed to live up to its own standards.  Some violations will be problematic others will be understandable in light of new information, changed circumstances, different perspectives, or the foolishness of an Administration in setting too high of a bar, etc.

What does trouble me is that the Administration attempted to deny Democrats in at least two different states, the opportunity to choose their own representatives.  The key question here is whether one takes elections seriously as an important mechanism for effectuating self-government.  Elections are not the only mechanism, but they are certainly critical.

The White House's response is that the Administration "has every right to try to avert expensive and divisive intraparty primaries between Democrats, something it did by encouraging potential candidates to consider other options, including government jobs or appointments."  The problem with that response is that it proves too much.  Under that theory, we might as well get rid of all primaries and let the President pick all of our nominees.  All primaries are expensive and all of them are divisive.  But democracy is also expensive and divisive.  It is not without costs. It might be easier and less expensive if we disposed of elections all together and abided by the wishes of dictator, but we would not be a self-governing people.


As I understand the facts of the Sestak and Romanoff cases, I don't think the Administration crossed an ethical line (I certainly don't think they violated relevant legal statutes).  But I don't think that these cases are insignificant and the creation of the media-machine.  We should always be skeptical whenever political elites arrogate the power to choose our representatives because they think they know best.  

The White House and "Liberal Judicial Philosophy"

On "Face the Nation" two days ago, CBS Chief Legal Correspondent Jan Crawford discussed some documents she unearthed that will "give the White House something else to think about" regarding Elena Kagan's nomination to the Supreme Court.  Bob Schieffer first offered that one of the main reasons that Kagan was Obama's choice was the fact that she would be "easily confirmed."  But these documents proved that Kagan was "a lot more liberal than people realize."  According to Crawford (you might want to sit down as you continue reading, by the way):

These documents have her squarely within mainstream liberal thought.  She’s worried about this conservative Supreme Court undoing rulings that would give a woman the right to an abortion, she’s worried about gun rights, saying she is not sympathetic to an individual’s right to own a handgun, she’s concerned about some conservative rulings scaling back rights of criminals, that’s basic, mainstream liberal thought.

So basically, for a Democratic President to nominate a person to the Supreme Court who would not overturn Roe, Miranda et al., and would agree with Judge Robert Bork that the Second Amendment "guarantee[s] the right of states to form militia, not for individuals to bear arms" would bring a fight with conservatives that President Obama does not want?  

This, in a nutshell, highlights the challenge facing progressives in modern American politics.  

As Guy has argued, judicial nominations offer an "opportunity to debate the purpose of the Court, to explore alternative constitutional visions, and to argue about constitutional meaning."  Instead, the White House has fought back the notion that Kagan is a liberal with a vengeance, as if, in Crawford's words, "it's a smear to say their nominee is a liberal."

In the end, judicial nominations are fights over meaning.  Presently, the conservatives hold the clear upper hand: their judges are "paragons of judicial restraint," while liberal judges are "judicial activists" hell-bent on rewriting the Constitution to their liking.  Rather than offer a counter-narrative, President Obama has chosen to accept the conservative narrative as his own.  That is unfortunate.  He is thinking about his political future in the short term, when he should be thinking "long term for the Court and the law and liberal judicial philosophy.”

What Bryce Harper Teaches Us About Promotions, Hiring and Admissions

Bryce Harper is the talk of Major League Baseball. He is the next can’t miss prospect, a 17 year old kid on a direct path to stardom. He graced the cover of Sports Illustrated last year, and today he became the first pick in baseball’s amateur draft.

The hype is extraordinary: to some, "He might be the greatest amateur player of all time," and to others, "He's the best position player I've seen come through here," or “the LeBron James of baseball.” He has been called “a prodigy” and “the chosen one.” According to Sports Illustrated’s Tom Verducci:

So good and so young is Bryce Harper, however, that he explodes baseball convention. He has hit the longest home run in the history of Tropicana Field, home of the Tampa Bay Rays, and he did so in January, at age 16, with a blast that would have flown farther than the measured 502 feet had it not smashed off the back wall of the dome. Still only 16, Harper stands 6'3", weighs 205 pounds, has faster bat speed than Mark McGwire in his prime and runs so fast that he scored on wild pitches six times this season from second base. As a catcher he picks off runners from his knees, and when he pitches, he throws a fastball that has been clocked at 96 mph. He also does volunteer work, holds down a 3.5 grade point average and attends religious education classes nearly every morning before school.

I can’t help but wonder: does he leap tall buildings in a single bound?

In thinking about Bryce Harper, I also can’t help but think of college admission debates, or firefighter promotion tests, or law school hiring. These things are never sure things – this is true whether we are talking about promotions, admissions, or hiring – and to be behave as if they are is simply foolish.

Merit is in the eye of the beholder.

White House Strategy on Kagan Working to Perfection

In an article that should make the White House political team cheer, Politico's Manu Raju and Glenn Thrush are reporting on how the Kagan so far sailed smoothly with nary a storm in sight.  The nominee does not have much of a paper trail, has not said anything that is controversial, and has taken few (if any) strong positions.  The White House nominated someone that the left can live with and that the right can tolerate.  Moreover, a confluence of other issues--in particular the economy, the oil spill, jobs--have overshadowed this nomination.  Though it may be too early for the White House to have the victory parade, they can't be faulted if the private celebrations have already started.

The real question is whether the Kagan nomination  has provided the perfect recipe for future administrations faced with a Supreme Court vacancy (and maybe Roberts and Alito before her?):  find a candidate who does not have a paper trail but has great academic credentials; preferable if candidate is moderate (or perceived as moderate); assure that candidate has never uttered anything controversial to anyone; assure that candidate has been silent about his/her views on controversial issues; nominate; wait a few months; swear-in.

Do we now have a set pattern (and expectations) for Supreme Court nominations?

Diversity of Actual Hires vs. Diversity of Offers Made

When we raised concerns about the lack of women and people of color hired to Harvard academic faculty positions during the Kagan deanship, some of her defenders responded by suggesting that we were failing to examine the diversity of offers made (sometimes these were offers for Visiting Professorships--temporary positions). As an employee in the Clinton White House, Elena Kagan showed some interest in promoting her office's diverse hiring record (DPC is the the Domestic Policy Council), even going so far as to carefully excise a man from the draft accounting so that the office looked more diverse. Of course, this document (seemingly misfiled under "Hate Crimes" in the Clinton Library document disclosure) does not show that she herself promoted diversity or thought that this was important (I assume that she does on both counts, on the basis of the strong testimonials delivered publicly by well-respected colleagues at Harvard Law School), but only that she recognized the public interest in these numbers. But the numbers that Kagan approves focus, as we did, on actual hiring, not on offers made.

The Public on Elena Kagan

A recent Gallup poll places Elena Kagan’s nomination in “perilous territory.” According to the poll, only two other nominees polled lower than Kagan at this stage in the process --Harriet Miers and Robert Bork. Perilous territory indeed.

The numbers also break in predictable fashion along party lines: while 68% of Democrats are in favor, 12% in opposition; the numbers are 26% and 51%, respectively, for Republicans. Independents are 43% in support, 33% in opposition.

Now, I don't think this amounts to anything, nor will it lead to a rejection of Kagan's nomination by the Democratically-controlled Senate. But it does raise some very interesting questions about Kagan as a candidate and the nomination process in general in relation to the public.

First, I don't think that Kagan is as impressive a candidate as the President and her close friends would want us to believe, nor do I think she is the best candidate President Obama could have selected. Yet, it is also true that her qualifications are unimpeachable. How does a nominee with Kagan's credentials fare as low as she does? This is a particularly interesting question in light of Bork's and Miers' nomination. Both of these nominations energized the party base and became lightning rods about the future of the Court. I don't think the same can be said for the Kagan nomination.

Glen Greenwald could not be that powerful, could he?

Second, the public's initial support for Kagan was at 40% back on May 10. Over the course of two weeks, this support inched upward, even while the candidate said precious little of any consequence. This is true across party lines, with support for Kagan rising, if moderately, for Democrats, Republicans, and independents alike. Yet 22% of the public still holds no opinion of her. This is the 22% percent the White House and Republican leaders will be trying to influence.

Gallup pollster Jeffrey Jones concluded that "[a]t this point in the process, however, there does not seem to be much in Kagan's background or in the political environment that would prevent her from becoming the first nominee to win confirmation with less than majority initial public backing." This is where the Clinton era papers and the Marshall papers come in. According to Senator Sessions, top Republican in the Senate Judiciary Committee, for example, "Kagan's [Marshall] memos unambiguously express a leftist philosophy and an approach to the law that seems more concerned with achieving a desired result than fairly following the Constitution."

Will the public care? Probably not. And in this case, as Senator Sessions seeks to derail a judicial nomination, that might be a good thing.

Some Thoughts on Kagan, Sotomayor, and Race

Over at PrawfsBlawg, I've posted a few short thoughts on the role of race in facilitating opposition to Sotomayor's nomination. Here's a taste:

By this time last year, merely a week after [Sotomayor's] nomination was announced, we had been treated to over 600 stories in what Lexis/Nexis defines as "major newspapers" concerning her "wise Latina" remark and the ridiculous question whether that proved that Sotomayor was a "racist." Her credentials and intelligence had been impugned as the consequences of affirmative action and grade inflation at Princeton. She had endured a firestorm of conservative criticism over a per curiam opinion in the Ricci case. In other words, the first nomination of a Latina to the Supreme Court was met with extreme resistance by conservatives, who immediately went on the offensive, attacking Sotomayor within days of her nomination in terms that explicitly played on racial fears and stereotypes about the intelligence of Latinos.

Justice Souter's Judicial Philosophy

Justice Souter delivered the commencement address at Harvard College last week. His theme was the challenge of interpreting the Constitution, a document best understood as “a pantheon of values,” where many open-ended clauses often lie in tension with one another.  How is a judge to interpret such a document?  One answer is to argue that the text, or the intent of the framers, standing alone, guides the justices in their pursuit of right answers.  Anything else is law-making, or judicial activism.  But Justice Souter argued, clearly and forcefully, that “for the cases that tend to raise the national blood pressure, the fair reading model has only a tenuous connection to reality.”  For the really hard cases, when constitutional values conflict, no simple rule of decision exists.  When deciding those cases, what must a judge do?

This is where Justice Souter parts company with those who yearn for a “simpler Constitution.”  In his words, “behind most dreams of a simpler Constitution lies a basic human hunger for the certainty and control that the fair reading model seems to promise.” But he is far too kind, because I don’t think for one moment that those who “dream[ ] of a simpler Constitution” are seeking certainty and control.  They know better.  All the same, Souter argues that while they seek certainty, he holds on to the “belief that in an indeterminate world I cannot control it is possible to live fully in the trust that a way will be found leading through the uncertain future.”

At the heart of Justice Souter’s constitutional vision lies his recognition about the subtlety of constitutional meaning.  He offers the example of segregation, and the Court’s reversal of Plessy in Brown.  To the justices in 1896, the meaning of segregation was quite different for the justices in 1954.   This is not to say that the 1896 Court was wrong, or that the 1954 justices were activists.  Rather, Souter explains, “[t]he meaning of facts arises elsewhere and its judicial perception turns on the experience of the judges, and on their ability to think from a point of view different from their own.”  This is only a recognition of the centrality of judicial diversity as an integral component of a fair and independent judiciary.

This is a remarkable speech, worth reading in its entirety.  Justice Souter’s lessons about experience the ability to think “from a point of view different from their own” are worth remembering as we set out to replace Justice Stevens.