She may have already been at the top of my short list, but this is a strong point in her favor:
Second, Lithwick notes Jeffrey Rosen’s longstanding assumptions about the mediocrity of candidates who aren’t white men:
But more troubling still, he seems to have been arguing that female jurists are by definition “mediocre” for more than a decade! Here’s a piece he did for the New York Times in 1995, arguing that President Clinton’s “single-minded pursuit of diversity, combined with an eagerness to avoid controversy, has kept him from appointing the best available legal minds to the courts.” He then names the many, many white men passed over for federal judgeships and contends that liberal judges lack the intellectual firepower to challenge brilliant conservative jurists because “nearly 60 percent of the Clinton appointments have been minority members and women.” (Read: mediocre.) His single data point to illustrate that mediocrity: Instead of appointing a serious intellectual heavyweight to the Seventh Circuit Court of Appeals (a/k/a “The scholars Court”), Clinton tapped “Diane P. Wood, a little-known professor of antitrust law at the University of Chicago, who is currently an assistant to Deputy Attorney General Anne Bingaman.”
That same mediocre Diane Wood is not only on every shortlist for the Supreme Court today. She’s also widely regarded as one of the finest judges on the bench, to whom other brilliant judges turn for reviews of draft opinions.
What’s striking about this is that not only is Rosen’s judgment spectacularly wrong in retrospect, it doesn’t even make any sense contemporaneously. Generally, if I was trying to demonstrate that a nominee was an intellectual mediocrity, their position at one of the 5 or 7 best law schools in the country isn’t the evidence I’d go with. Compare Wood’s record to that of, say, Antonin Scalia, as described by Tushnet in A Court Divided:
The law schools Scalia taught at were in the top tier of law schools, but he wasn’t one of either school’s superstars. He was at the top of the second rank of law professors in his generation. His specialty was administrative law, not constitutional law. The titles of his major law review articles give some indication of his interests [omitted]…These were good, solid articles about good, solid topics in administrative law, but they didn’t transform even that field.
Wood would seem to have a record that, a minimum, could match up with Scalia. But does anyone think in a million years that Rosen would have attacked Reagan for diluting the intellectual caliber of the D.C. Circuit by putting Scalia on it? Would anybody take such a claim seriously? These questions answer themselves.
This from mrv is worth highlighting:
The recent articles focusing on the absence of memorable language from Souter’s opinions to a certain extent missed that there are other measures of good argument besides pithy quotes. A line of reasoning should be persuasive because of its content and not just because of the particular words chosen to express that content. This post presents a fine example of that.
And some pithy quotes are actually counter-productive even as attempts at persuasion, for instance if they hold one’s colleagues up to ridicule as Scalia seems fond of trying to do.
The fact that Souter showed no interest in the art of the quotable but often simplistic or unilluminating catchphrase is one of the old-fashioned virtues for which he merits admirtaion.
I actually know the inventors of this ridiculous product, although I haven’t tried it.
I can’t decide if the possibility they might get very wealthy from this is one of the worst things about capitalism, or one of the best.
I’ve seen in several places that Souter, while an admirable justice, didn’t produce a lot of memorable quotes. I suppose this is true. But his coruscating demolitions of the Rehnquist Court’s “sovereign immunity” jurisprudence shouldn’t be forgotten. Souter is particularly good about noting that the alleged “background principles” that allowed the Court to find a prohibition on citizens suing one’s own state without its consent — although the text of the Constitution explicitly limits the prohibition to citizens of other states — are relics of monarchical systems with no obvious applicability to democratic states where governments rule with the consent of the governed. From Alden v. Maine:
It is symptomatic of the weakness of the structural notion proffered by the Court that it seeks to buttress the argument by relying on “the dignity and respect afforded a State, which the immunity is designed to protect”…Apparently beguiled by Gilded Era language describing private suits against States as “
‘neither becoming nor convenient,’ ”the Court calls “immunity from private suits central to sovereign dignity,” and assumes that this “dignity” is a quality easily translated from the person of the King to the participatory abstraction of a republican State…The thoroughly anomalous character of this appeal to dignity is obvious from a reading of Blackstone’s description of royal dignity, which he sets out as a premise of his discussion of sovereignty:
“First, then, of the royal dignity. Under every monarchical establishment, it is necessary to distinguish the prince from his subjects… . The law therefore ascribes to the king … certain attributes of a great and transcendent nature; by which the people are led to consider him in the light of a superior being, and to pay him that awful respect, which may enable him with greater ease to carry on the business of government. This is what I understand by the royal dignity, the several branches of which we will now proceed to examine.”
It would be hard to imagine anything more inimical to the republican conception, which rests on the understanding of its citizens precisely that the government is not above them, but of them, its actions being governed by law just like their own. Whatever justification there may be for an American government’s immunity from private suit, it is not dignity.
The resemblance of today’s state sovereign immunity to the Lochner era’s industrial due process is striking. The Court began this century by imputing immutable constitutional status to a conception of economic self-reliance that was never true to industrial life and grew insistently fictional with the years, and the Court has chosen to close the century by conferring like status on a conception of state sovereign immunity that is true neither to history nor to the structure of the Constitution. I expect the Court’s late essay into immunity doctrine will prove the equal of its earlier experiment in laissez-faire, the one being as unrealistic as the other, as indefensible, and probably as fleeting.
However, as Souter pointed out in a previous case — in which the Court held that it would violate this mysterious “dignity” of the states to enforce agreements they made, at the invitation of Congress, in an area of plenary federal authority — to compare the work of the Rehnquist Court in this line of cases to Lochner is unfair. To Lochner:
The majority today, indeed, seems to be going Lochner one better. When the Court has previously constrained the express Article I powers by resort to common law or background principles, it has done so at least in an ostensible effort to give content to some other written provision of the Constitution, like the Due Process Clause, the very object of which is to limit the exercise of governmental power. Some textual argument at least, could be made that the Court was doing no more than defining one provision that happened to be at odds with another. Today, however, the Court is not struggling to fulfill a responsibility to reconcile two arguably conflicting and Delphic constitutional provisions, nor is it struggling with any Delphic text at all. For even the Court concedes that the Constitution’s grant to Congress of plenary power over relations with Indian tribes at the expense of any state claim to the contrary is unmistakably clear, and this case does not even arguably implicate a textual trump to the grant of federal question jurisdiction.
I hope that Souter is right that this embarassing line of cases will ultimately be overruled. But nobody will make the case about why they should be any better.
The only thing I can say about the Manny story is that at least it’s better than the ever-so-fascinating speculation about whether the 26th-best QB in the league will one again unretire and make a team mediocre by his very presence. And there is at least the comedy of sportswriters climbing over themselves to be more moralistic. There are the inevitable explanations about how taking steroids is OK if a player you like did it. Claims that a first offense should mean a lifetieme suspension and players who used PEDs should be treated like scabs, even those who (unlike Ramirez) didn’t even “cheat” in any meaningful sense (i.e. by breaking an actual rule that is actually being enforced.) The Dodgers should release him. (Could you trade him to the Mets instead? We have a recent 15-game winner to give up!) Manny should not be voted to the HOF even though excluding steroid users would be completely incoherent. Etc. Etc. Etc. Gawd.
…as part of his comprehensive link roundup, Keri notes this from Bill James: “You give me the opportunity to earn $22 million a year by taking steroids, I’ll shoot the pharmacist if I have to. I’m not saying it’s right. I’m not saying I shouldn’t be punished for shooting the pharmacist. I am saying it is self-righteous to pretend that I don’t have the same human failings that these guys do, and further, if you are insisting that you don’t have them, I don’t believe you.” And, more to the point, leaving aside the fact that the sainted players of the Greatest Generation who are the only legitimate HOFers ever did use PEDs (except that for some reason it was kinda charming when they did it) anyone who thinks that many players from the Era of Integritude wouldn’t have used them if they weren’t available is dreaming in technicolor.
The entire keynote can be viewed here via Panopto, along with Rogers’ slides on how to research the coming digital landscape.
The neo-secessionist resolution that passed 43-1 indeed tells us a lot about the current Southern politics that currently dominate the Republican Party, none of it good (although some of it pretty funny):
Really, you can’t make this stuff up. You have to read it in full to believe it. Even then you can’t believe it. You thought that “nullification” had been rendered inoperative by the Civil War? Well, think again. You considered secession a pre-Appomattox kind of thing? Well, reconsider. You assumed that John C. Calhoun was a dead parrot? Well, turns out he was only resting.
The resolution is written in a mock eighteenth-century style, ornate and pompous. Just two of its twenty sentences account for more than 1,200 of its 2,200 words. But the substance is even nuttier than the style.
It begins by saying that what it sneeringly calls “a compact under the style and title of a Constitution for the United States” limits the “General Government” only to specifically named powers, such as punishing piracy and counterfeiting, and that “each party” to the “compact,” i.e., each state, is the final judge of whether the “General Government” has overstepped its very tight bounds. Among other rights, the states “retain to themselves the right of judging how far the licentiousness of speech and of the press may be abridged without lessening their useful freedom.” (There’s a lovely phrase: “the licentiousness of speech and of the press.”) If I’m reading the resolution’s convoluted language correctly, it also asserts that the states have a right to suppress “libels, falsehood, and defamation, equally with heresy and false religion” without interference from “federal tribunals.”
There’s more. If a state doesn’t like some federal law, then “nullification of the act is the rightful remedy.”
It looks like the Texas Republican Party platform is no longer the gold standard for wingnuttery…
…Hilzoy notes that the bulk of the Georgia resolution isn’t mock 18th-century prose but is 18th century prose, from Jefferson’s Kentucky Resolution in response to the Alien and Sedition Acts. Evidently, the provenance doesn’t make the Georgia position any more constitutionally respectable…
UPDATE: Until I determine whether LGM has a peekaboo function whereby I can write up my reaction below the fold without spoiling it for anyone, I’ll have to say only this: not much of a prequel, if you ask me.
UPDATE: Negative on the peekaboo function; hence I have posted on this at the Duck.
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