There He Goes Again . . .

The Savannah, Georgia of the late 1950's and early 1960's was a cauldron of Black political activism. Many organizations, from the Southern Christian Leadership Conference and the NAACP to the Chatham County Crusade for Voters led voter registration drives, economic boycotts, and demonstrations against segregated public facilities.  In 1963 alone, Blacks in Savannah had mass meetings every Sunday in order to drum up support for the movement. On July, 12, 1963, tensions erupted and 2000 Black demonstrators were scattered with tear gas and water hoses. In 1965, during the voting rights march from Selma to Montgomery, 650 Blacks in Savannah held their own march as a show of solidarity.

It is clear to anyone paying attention that Savannah, Georgia played host to a very rich and very active civil rights community.

Not so, however, to Justice Thomas. As he recently told an audience at Palm Beach Atlantic University in West Palm Beach, Fla,

'My sadness is that we are probably today more race and difference-conscious than I was in the 1960s when I went to school. To my knowledge, I was the first black kid in Savannah, Georgia, to go to a white school. Rarely did the issue of race come up,' 

We could try to make sense of what, at first blush, makes no sense.  Dahlia Lithwick writes, for example, that 

Maybe the issue never came up because color simply determined everything: where you could sip water, where you could swim, where you could go to school, which doctors you could see, which gas stations would allow you to use their restrooms. Maybe there was a lot less to talk about, not because nobody noticed racial differences but because the legal regime crafted to perpetuate those differences was omnipresent and seemingly impregnable.

But that's far too charitable.  The question for anyone living through these tumultuous times is not whether the race issue ever came up.  Rather, the question is how anyone could live through the Savannah, Georgia of the 1960's and remain unaware of the social and political revolution brewing.  

This is the same man who could confidently say that there is no longer a need for the Voting Rights Act.  We have a right to wonder, in light of these recent comments, how he knows this.

Can we consider Justice Thomas anything other than a judicial activist?

In yesterday's "Room for Debate," four distinguished contributors discussed whether "Justice Thomas's silence matters." I was reading the four entries fully intending to respond to them as a whole, until one particular passage from Jamal Greene's entry caught my eye.  Here is what he wrote:

He is a judicial iconoclast, opposed to following constitutional precedents with which he disagrees and unwilling to moderate his positions to achieve consensus. He is the court’s most frequent lone dissenter, and to assign an important majority opinion to him is to risk losing your majority because of his uncompromising language.

When you read this, you might be reminded of the conservative critique leveled at Justice Marshall.  We saw it most recently during the Kagan confirmation hearings, when Republican Senators tried to pin the activist label on Kagan simply because she had clerked for Marshall.  The critique is clearly wrong. But that hardly matters.  To the Republicans on the committee, Marshall was a "well-known activist" (Sen. Sessions); "a judicial activist" with a "judicial philosophy that concerns me" (Sen Cornyn); and a judge with a legal view that  "does not comport with the proper role of a judge or judicial method."(Sen. Grassley).  When pressed for evidence of this activism, the Senators can only offer his insistence on dissenting from death penalty cases.  

Anyone who has thought about judicial activism at all will soon find that the concept is often used as a term of opprobrium, to signal substantive disagreement with a judge's positions.  In essence, a judicial activist is a judge who disagrees with us.  That is human nature, I suppose. What does seem clear from the critique of Justice Marshall, however, is that under any available metric, and particularly the metrics used by conservative critics, Justice Thomas no less a judicial activist than Justice Marshall might have been.

Why does any of this matter?  Because Justice Thomas, along with Justice Scalia, are the two model justices for conservatives.  We must understand that this is a canard, part and parcel of the mythology that surrounds the courts.   Labelling Justice Thomas a model justice is part of a political strategy, not a serious argument.

The Latest on Justice Thomas

This is beginning to sound like a daily occurrence: in his financial disclosures, Justice Thomas reports that the Federalist Society reimbursed him for “transportation, meals and accommodations” for four days at a weekend retreat.  This is for an event organized by Charles and David Koch, the billionaire brothers "who are waging a war against Obama."  Last month, however, a spokesman for the Court offers that the Justice had only made a "brief drop-by" at the event, which included a speech.  The advocacy group Common Cause sent a letter to the Court this week asking for "further clarification."

You can take this latest episode one of two ways: either liberal groups are on a witch hunt (a high-tech lynching, perhaps?) against Justice Thomas; or else Justice Thomas is more tone-deaf and irresponsible than a justice deserves to be.  Judicial independence will do that to a guy. 

Biased as I may be, I am inclined to view as cluelessness on the justice's part, perhaps hubris.  He is a supreme court justice.  We are not.  And if he wants to give a speech and then sit in any case he wishes to sit on, that is not your problem.

Here's the real question: how much will be enough?

What happens when a Supreme Court justice fails to comply with the law?

Here's a curious story.  74 members of Congress wrote Justice Thomas a letter asking him to recuse himself from any upcoming health care case because his wife is a self-appointed “ambassador to the Tea Party movement.”  Justice Thomas also failed to report in his financial disclosure forms, as required by law, income that his wife received from the Heritage Foundation.  We are talking a big chunk of change, around $680,000.

At first glance, one is inclined to catalogue this under similar attacks from liberal quarters at Justice Thomas.  But this letter has a different quality to it.  How could a federal judge forget to comply with federal law in this way? 

So I wonder: what are the chances of recusal?  I'd wager between zero next and none.  But the better question is, what happens to a sitting justice when he fails to comply with federal law?  I suspect we already know the answer: probably nothing. But the better question is why.  Is it because judicial independence demands it?  Or is it because we understand the justices for what they are, human beings with political connections, and this is nothing that ought to disturb anybody?  Or is it something else entirely?

On Justice Thomas' silence . . . and a journalist's odd choice

In Sunday’s New York Times – on its front page, no less – we find an article by Adam Liptak about Justice Thomas and his reticent to speak from the bench. Anyone familiar with the Court will not be surprised by this story. In fact, they will be surprised that the story was published by the Times in the first place, and on the front page to boot. 

This is not to say that the story is not interesting in its own right and worth reading. But not for the reasons you might think. 

For one, it may well be the case that Justice Thomas is really not that interesting, or a deep thinker. Why assume that he – or any other justice -- is? Why assume that mere mortals are transformed into philosopher kings simply by virtue of donning a judicial robe? 

Something else entirely caught my eye. Later in the article, Liptak quotes from a piece in the Florida Law Review by a third year law student. Two things about this choice on Liptak’s part raises eyebrows. The first is the fact that he chose to publish a piece from the Florida Law Review, hardly considered a leading review by those who have nothing better to do than to rank these things. The second is that the author is a law student, and not some major eminence in the field of law. It must be the case, then, that whatever this student wrote is simply brilliant, the kind of thing that Liptak could only get from this piece and nowhere else. But that is not quite so. The quote is not that insightful: “If Justice Thomas holds a strong view of the law in a case, he should offer it . . . . Litigants could then counter it, or try to do so. It is not enough that Justice Thomas merely attend oral argument if he does not participate in argument meaningfully.” 

So why is Liptak quoting from this obscure piece? All that makes sense is that the author is David Karp, described by Liptak as a “veteran journalist.” This might mean – and this is the only way that any of this makes any sense – that Liptak and Karp are friends, acquaintances, or something along those lines. Liptak is essentially doing a friend a favor. For make no mistake, to get quoted in a Times piece is a much bigger deal in the law schools than it deserves to be. Go to a random law school website and tell me what you find: right in the front, law schools love to advertise how their professors are quoted and cited across the globe. I find the practice quite embarrassing, for it is clear that getting cited or quoted is more a reflection of the size and quality of one’s rolodex than of whatever it is one is saying. (If anybody out there ever finds a quote that is not a reflection of one's standing and networks rather than the worth of the quote itself, please pass it along; I have yet to see one).

Justice Thomas is not about to start speaking – he does not appear to have it in him – and the law schools are not about to stop advertising every breath one of their professor takes that is noted in print. 

Who do they think they are kidding?

The Politization of the Federal Judiciary

I often wonder what constitutional law professors tell their students about the big cases.  These are the canonical cases every law student discusses at one time or another during her law school years, cases such as Youngstown Steel and Brown v. Board of Education, Marbury v. Madison and Dred Scott, South Carolina v. Katzenbach and McCulloch v. Maryland. I suspect that most professors keep it simple.  They talk about the Constitution and surely they talk about "law" as an abstract proposition.  They also bring up prior cases and spend much time "distinguising" them or "reconciling" them, or else arguing why the present case follows seamlessly from prior, settled law.

I understand why they do this.  They are law school professors, and this is a place where law must matter.  if not law, then what?

But here is the problem.  Constitutional law is not about "law" in the formal sense.  That is, constitutional law is not about the formal meaning of the privileges and immunities clause or the necessary and proper clause.  To be sure, this is what law professors would have you believe.  I am here to tell you that they are either lying to you (and themselves) or else they are so imbued in the law school orthodoxy that they can't tell any better.  And that's too bad.

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.

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.