Another One Bites the Dust

Earlier today, a federal judge in Pensacola, Florida ruled that the 2010 Patient Protection and Affordable Care Act is unconstitutional. From here on out, we can fill in the rest of the blanks without doing any research whatsoever. Yes, the judge was appointed by a Republican President -- the judge is on senior status, so it must be Reagan -- and no, it is not a coincidence that the suit ended up in Pensacola, Florida -- lots of conservative judges up there -- and yes, the judge ruled that the law exceeds Congress' commerce power. That about covers it.

The response from the Obama administration is not surprising. They don't like the opinion. But far more interesting is the notion that this ruling can actually affect the law going forward.  In the words of an administration official, for example, "You could have governors come out tomorrow and say my state will no longer enforce this law because this judge said the whole things is unconstitutional." But this was true before this judge ruled down in Pensacola, and it is not much different from a governor coming out next week and saying that they will support the law because two judges upheld it months before. This one ruling doesn't change anything. Curiously, the judge did refuse to enjoin the law while the parties appeal the decision, yet suggested that his declaratory judgment is "the functional equivalent of an injunction." Whatever that means.

Also quite interesting, if expected, is the reaction from Republican leaders. They praised the ruling.  Not a word about judicial overreaching, or about activist federal judges causing havoc with the work of our political branches. Not a word. I wonder what Senator Sessions thinks of this one. I can only imagine.

I have four questions.

Whether law school is a losing game is not the right question

Not a day goes by that a friend or acquaintance does not ask me about the Times piece a few weeks ago that posited whether law school is "a losing game."  This is because law graduates incur great debt to acquire their law degrees only to enter into an over-burdened market that will not provide adequate jobs for all.  At the center of this mess are the law schools, which massage their numbers in order to win (or not lose) the rankings game.  According to my colleague Bill Henderson, “Enron-type accounting standards have become the norm.” Things are so bad, he says, that “[e]very time I look at this data, I feel dirty.”

The examples can be quite disheartening.  Most troubling are the numbers that involve students and jobs.  What does it mean to be working right after graduation, for example, or nine months after?  Waiting tables counts, or stocking shelves at the local grocery store.  Worse yet are anecdotes of law schools hiring their own graduates for short periods of time in order to count them as "working," whether at graduation or nine months later.

Henderson calls this state of affairs an open secret, and he is certainly right about that.  My first reaction upon seeing the the Times piece was one of surprise tinged with incredulity.  I could not believe, that is, that people did not know about this.  How could they not?  Or put another way, how could law schools keep their actions secret for as long as they have?

Understanding What Drives the Modern University (hint: it is not academics)

For those who wonder when the decline of the American empire began in earnest, look no further than this Sunday's sports edition of the New York Times.  In its front page, you will find a story about a school in Texas spending $60 million dollars to built what the Times labels a "palace," also commonly known as a football stadium.  In these difficult economic times, this community put the question to a vote, whether to pass a $119 million bond to finance the project as well as a few other projects, and it passed by a resounding 63% of the vote.  

I cannot speak about other states, but in my home state of Indiana, communities went to the voters this past election to ask for money to finance basic school needs, and were largely rebuffed.  It is all about priorities, I say.  

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."