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Win-Win

[ 10 ] May 13, 2010 |

I think Matt has exactly the right reaction to this Douthat op-ed : what Douthat prevents as a “tradeoff” is just a strong case that providing women access to abortion increases both individual freedom and family stability. Call me crazy, but reducing unwanted births for teenage mothers is…a good thing!

I should also note that the data cited by Douthat also make a complete hash of his frequent assertions that the United States has an “absolutist” pro-choice legal regime. Rather, state governments are allowed to regulate abortion in a lot of ways, and while these regulations don’t have huge effects on overall abortion rates they do make it much harder for women from whom the consequences of being forced to carry an unwanted pregnancy to term are most dire to obtain abortions. I think this explains why Douthat needs to be dishonest about what Casey actually holds; he’s certainly not going to opposed these kinds of regulations, but the desirability of “the status quo with more teenage mothers and desperately poor mothers” outcome Douthat is implicitly supporting is…far from self-evident.

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A Brief Essay On How Political Power Functions In The United States (With Bonus Campaign Updates!)

[ 24 ] May 12, 2010 |

When I started blogging about the nomination of Elena Kagan to the Supreme Court, I expected the effect to be what most of you did: that Obama would withdraw the nomination, announce that it had been a belated April Fool’s Day joke, and immediately announce the nomination of Zombie Thurgood Marshall as Associate Justice. Strangely, this has not occurred. Some calls to my many well-placed sources within the administration have confirmed the most logical explanation for why Kagan remains the nominee. Obama, Senator Leahy, and their top advisers read and carefully considered my blog posts, agreed that I was correct, and began to prepare the appropriate press release. Unfortunately, the re-animation of former Justice Marshall had not been fully completed — Glenn Reynolds decided to join up with Jeff Sessions’ Restore James McReynolds project instead. It being too late in the day to begin the thawing of Jim Nabors William O. Douglas, the administration reluctantly concluded that Kagan’s nomination had to go forward.

This will all be obvious to most of LGM’s politically sophisticated readership. Some commenters, however, have advanced the radical thesis that my blog posts have not had a direct effect on the nomination and confirmation process. Now, it’s one thing if people get the bizarre idea that nobody in America’s political and economic elite knows who I am or cares what I think about anything. I can take the slings and arrows! But what if some gullible readers — despite all of the authoritative pronouncements of Roger L. Simon and Jeff Jarvis — get the idea that C-list political blogs are not at the apex of political power in the United States? I find it highly distressing that anyone could deny this obvious truth.

However! Lest you get the idea that I’m not a hugely influential muckety-muck, I have been made part of the highly exclusive mass campaign email list of Mickey Kaus, who at least in some formal sense is a candidate for the Democratic nomination for Senator. Why, that position entails almost as much power as writing blog posts! So allow me to share the latest campaign news:

He has appeared on a radio call in-show neither you nor I have ever heard of, but that probably has an influence among Democratic primary voters almost equal to that of Smooth Billy Bennett!

An op-ed about the influence of unions “will be unveiled somewhere soon.”  About time — I’m sick of Kaus’s position on this issue remaining a secret!

The LA Times will be remaining neutral!

A lot of other unspecified things will be happening soon!

Hey, when he’s the nominee, don’t forget who made it happen…

[Picture stolen from FMK.]

Please stop hitting me, Professor Kagan

[ 157 ] May 12, 2010 |

As Glenn Greenwald points out, skepticism about the Kagan appointment issuing from anyone left of Miguel Estrada (who by the way thinks Kagan is a terrific pick) has been met with the sort of response engendered by essentially tribal loyalties. “Our” team’s captain has made his decision, and now it’s time for everybody to get dutifully on message. All this is natural and predictable; what I find more interesting is the extent to which the tribalism of legal academia is playing a role in the support for Kagan. It’s hardly surprising that Kagan’s friends and colleagues from Harvard and Chicago are leading the charge in her behalf. What’s more notable is the number of conservative legal academics, including Stephen Bainbridge, Eugene Volokh, Charles Fried, and Glenn Reynolds, who are either enthusiastically supportive or at least not opposed to Obama’s pick.

Update: Ken Starr thinks she’s a great pick as well.

One particularly striking feature of the Kagan nomination is the extent to which it threatens to throw an unflattering light on various aspects of legal academia. It’s no doubt coming as a surprise to lots of people in other precincts of academia that it’s possible to get tenure at two of America’s top universities while publishing as little as Kagan has published, especially given that nothing she’s ever published was subjected to a genuine peer review process prior to publication. (Her articles in the Chicago and Harvard law reviews were chosen by Chicago and Harvard law school students, some of them who were in her classes at the time. Her two pieces in the Supreme Court Review were chosen by members of her own current faculty in the first instance, and her former faculty colleagues in the second). This, of course, is not primarily a criticism of Kagan herself, but of the system which has produced her — a system which among other things rewards puerile obsessions with structurally phony citation counts as a substitute for actually reading and evaluating what somebody has written.

Yet the advice to hate the game not the player rings hollow when the time comes to decide whether a particular player should be promoted to a different league altogether. Speaking of that game, consider this vignette about Kagan’s teaching:

As a professor, Kagan was one of the last of a dying breed: a purely Socratic law school professor. With Kagan, there was no panel. There was no back-benching. She would just randomly call your ass to the carpet, and you had best be prepared.

Here’s the thing about the Socratic method: it freaking blows when people are not prepared. Sure, it’s horribly embarrassing for the person who is stumbling through, trying to answer questions based on cases he or she hasn’t read. But it really just slows the whole class down. Yes, 5% of us didn’t read International Shoe, but 95% of us did; can you focus on the ones who did their homework?

I hated the Socratic method, and while many people in my section were so terrified of Kagan that they did their Civ Pro reading before anything else, I quickly fell into the habit of not doing my Civ Pro reading. Hell, we were just going to spend half of class rehashing what people already read the night before. In my 1L mind, I was being efficient.

So it came that one Friday morning I was cold-called. I wasn’t even in the ballpark of being prepared. But I didn’t want to waste everybody’s time. So I responded: “Professor Kagan, honestly I didn’t get to all of the reading for today’s class. Sadly, I think I need to pass on this one.”

Bzzt. Wrong answer:

PROFESSOR KAGAN: Well, Mr. Mystal, did you manage to remember your casebook?
1L ELIE: Yes. But like I said, I didn’t …
PROFESSOR KAGAN: Do you think you could be bothered to OPEN your casebook?
1L ELIE: (I have a bad feeling about this.) Yes. Abso…
PROFESSOR KAGAN: Please turn to page [whatever]… Now read.
1L ELIE: (Reading silently.)
PROFESSOR KAGAN: ALOUD.
1L ELIE: (Channeling Nathan Jessup: I’m not an idiot, I don’t need to read aloud like I’m a five year old.) Umm … Okay. (Much reading aloud.)
PROFESSOR KAGAN: Now, can you explain to me what you just read?
1L ELIE: (I can’t even remember what I blathered.)
PROFESSOR KAGAN: Mr. Mystal, open to page [same page as before], and TRY AGAIN!

At that point I just kind of had a disassociative break. My mouth kept moving, but my mind went into some kind of fetal position. Please stop hitting me, Professor Kagan.

Given that we know so little of substance about Kagan, I suggest this little incident has some evidentiary value. It’s not Kagan’s fault, after all, that the standard publication and evaluation process for legal academics is a bad joke (although of course she can be criticized for the actual content, or the absence of content, of the texts she generated while taking part in that process). But, as even the cowed and terrified Mr. Mystal recognized, not too many law professors today indulge — or at least not to anything like this extent — in the combination of authoritarian browbeating and pedagogical infantilization that are the hallmarks of the classic “Socratic” (sic) method.

That method was (is) a horribly ineffective way to transmit substantive knowledge. If educational theorists agree on one thing it’s that pedagogical terrorism doesn’t work — assuming the point of the exercise is for people to actually learn what you’re claiming to teach them. But of course as critics have been pointing out for many decades now, that was never the real point. Here is a small piece of Duncan Kennedy’s more than 30-year-old critique of the classic method:

The classroom is hierarchical with a vengeance, the teacher
receiving a degree of deference and arousing fears that remind one of high school
rather than college. The sense of autonomy one has in a lecture, with the rule that
you must let teacher drone on without interruption balanced by the rule that
teacher can’t do anything to you, is gone. In its place is a demand for
pseudoparticipation in which one struggles desperately, in front of a large
audience, to read a mind determined to elude you. It is almost never anything as
bad as The Paper Chase or One-L, but it is still humiliating to be frightened and
unsure of oneself, especially when what renders one unsure is a classroom
arrangement that suggests at once the patriarchal family and a Kafkalike riddle
state. The law school classroom at the beginning of the first year is culturally reactionary.

Now as Kennedy goes on to point out, this “method” is not merely culturally reactionary, it’s politically reactionary as well. The whole point is to produce lawyers, which is to say people, who never question the fundamental power relations encoded by the legal, economic, and cultural status quo. And in that sense, it was and remains quite effective. As TT points out in a comments thread below:

How many people voted against Bush 41 because of Clarence Thomas? I guarantee you it was a miniscule percentage. For that reason, Obama could have nominated a real liberal like Wood or Karlan and expected to pay a an equally small political price in 2012. The fact that he didn’t confirms, for me anyway, that he prefers David Ignatius’s “beloved center”, the place where Washington, Wall Street, and the Ivy League meet and congratulate themselves for being Serious.

Precisely. Indeed that’s what the classic Socratic “method” is all about — it’s a performance designed to demonstrate that the performer is In Charge Here and a Very Serious Person who you had best defer to if you know what’s good for you. In short, it’s authoritarianism at its most straightforward and distasteful — and anyone who currently practices it in 180-proof form in an American law school at this late date should be viewed with suspicion: not merely as an educator, but in terms of that person’s fundamental orientation towards hierarchy, authority, and social power. Which is another way of saying, in terms of her politics.

So This is England…

[ 19 ] May 12, 2010 |

I’m sitting in Plymouth, UK in the Americano Coffee House. The theme appears to be an English interpretation of a upscale American coffee house. There’s a picture of Che Guevara on the wall, for some reason. As you walk out, there’s a big sign saying “Adios Amigos!” On the menu are the following drinks:

Classic Americano (espresso and water, or what you’d expect)
Premiere Americano (an Americano with whipped cream)
Cuban Americano (an Americano with cane sugar)
Canadian Americano (an Americano with maple syrup)

There’s also a host of drinks filled with enough sugar to make Starbucks blush. On the downside, no drip coffee and no refills. On the upside, they appear to have the loosest wifi in town.

…and so apparently we remain in a Special Relationship. That’s lovely.

Summing Up What’s Wrong (And What’s Not Wrong) With The Kagan Pick

[ 31 ] May 12, 2010 |

I have a piece up at TAP that sums up my position on the Kagan pick. What I see as the core of the argument:

But it must also be noted that plenty of candidates, including all of the other members of Obama’s shortlist, exceeded the formal minimum qualifications by an even greater margin. To say that Kagan is reasonably qualified for the Supreme Court does not constitute an affirmative reason to select her instead of an arguably more accomplished and more clearly liberal candidate such as Diane Wood or Sidney Thomas. When considering a Supreme Court nominee, a president should be looking for something more than merely “good enough.” Kagan may be to the left of John Roberts, but that still leaves a lot of ideological territory open. Two historical Supreme Court nominations illustrate the magnitude of the risk Obama is taking.

First, consider the case of Byron White, a John F. Kennedy appointee. Although little public record of his constitutional views existed, White was well known to the Kennedy administration and had views broadly consistent with mainstream Democrats’. On civil rights and federal power — the issues of the greatest interest to the Democrats of the early 1960s — White remained a consistent liberal throughout his career. But White was less solid on the civil-liberties issues where the Kennedy administration’s commitment to progressive values was more dubious. He dissented from many of the Warren Court’s landmark rulings on the subject, including Miranda v. Arizona. Over the course of a long judicial career, he also proved to be a surprisingly consistent ally of William Rehnquist on the new issues that inevitably arose before the Court, such as abortion.

And so liberals had a Democratic appointee who dissented in many of the Warren and Burger courts’ liberal landmarks and wrote the Court’s appallingly homophobic opinion upholding laws banning “sodomy” over the dissents of two Republican appointees. This is not to suggest that Kagan will vote to overrule Roe v. Wade or Miranda v. Arizona. After all, what it means to be a mainstream Democrat is very different in 2010 than it was in 1962. But it does suggest that putting a relative blank slate on the Court carries a substantial risk of ideological heterodoxy and drift.

We should also remember Ronald Reagan’s handling of the nomination of Robert Bork. As Jan Crawford Greenburg explained in her recent book about the Court, had Reagan nominated Bork instead of Antonin Scalia while the GOP controlled the Senate, it is overwhelmingly likely that Reagan could have had both on the Court. Instead, Reagan had to settle for the more centrist Anthony Kennedy.

So why is Obama repeating Reagan’s mistake now? Kagan is the youngest and perhaps the most easily confirmable of the top Supreme Court candidates, and Obama is virtually certain to receive at least one more appointment just as the Republicans are virtually certain to gain substantial representation in the Senate this year. It would be smarter to let Kagan get more experience as solicitor general and to use this opportunity to nominate a candidate who might face a tougher confirmation later on.

Indeed, Obama may be doing Reagan one better, as nominating Kagan presents the possibility of getting two liberal equivalents to Kennedy rather than just one, as getting even a mainstream liberal confirmed in a closely divided Senate will be difficult.

The first big issue I’ve already discussed, but I think it’s clear that “Obama knows her views well” isn’t a very convincing argument. It could be that Obama knows that she’s a solid liberal. It could be that Obama is comfortable with a moderate on the Court, just as he’s comfortable with moderates running economic policy (and an outright conservative running the Federal Reserve.) We don’t know, because the category “mainstream Democrat” encompasses a lot of room.

But I think the second point is decisive, and I have yet to hear a decent response to it. Kagan is a risky (from the standpoint of liberal constitutional values) pick in a political context in which such risk is politically unnecessary. I think that’s the bottom line.

“And Justice For All”?

[ 1 ] May 12, 2010 |

Gary Haugen and Victor Boutrous have a useful article in the new print version of Foreign Affairs, pointing out that all the human rights standards in the land mean nothing if they’re not translated into practical justice for every human being. Particularly, they point out how the ability to enjoy one’s legal rights is related to wealth.

Efforts by the modern human rights movement over the last 60 years have contributed to the criminalization of [various] abuses in nearly every country. The problem for the poor, however, is that those laws are rarely enforced. Without functioning public justice systems to deliver the protections of the law to the poor, the legal reforms of the modern human rights movement rarely improve the lives of those who need them most…. Helping construct effective public justice systems in the developing world, therefore, must become the new mandate of the human rights movement in the twenty-first century.

An important and timely argument that may constitute a major reframing of human rights discourse and practice. Two minor rejoinders, however: Read more…

Four Weeks In, Glee Has Got Its Groove Back

[ 2 ] May 11, 2010 |

This week we deal with disability, gender identity, cross-ethnic relationships (OK, ‘deal’ might be too strong a word) and Mercedes and Santana unleash some amazing vocal mojo. Plus we find out where Quinn has been living since Finn broke it off with her. Plus the old Sue Sylvester seems to be back, sans creepy, vulnerable complexity.

Probably the best scene is between Kurt and his Dad at the end. According to my eight-year-old, “Kurt has really got a lot of interpersonal intelligence.” I don’t know about that, but I did like his song.

Damn.

[ 10 ] May 11, 2010 |

I have to apologize in breaking in to the 24/7 coverage about the Kagan appointment that our readers expect and demand from LGM, but let’s face it: this is one of the areas we’re damned good at.  I largely agree with the disappointment that my colleagues are articulating.

Here in the UK, we have a new government.  I suspect it will stick.

And Farley is asleep downstairs on my couch.  Correlation?  Causation?

You be the judge.

Opportunity Cost

[ 12 ] May 11, 2010 |

I’m not saying that she will be as bad as the endorsement suggests. But let’s be frank: when you’re a Democratic president with 59 votes in the Senate and you nominate someone that Glenn Reynolds can get behind, it’s a wasted opportunity. And that goes triple when he’s able to tout with at least some measure of plausibility her “track record of supporting strong — dare I say Bushian (or even Cheneyian) — views of presidential power.”

See also.

Again With The Judicial Term Limits

[ 9 ] May 11, 2010 |

This seems like a good time to note that Matt is completely right about judicial term limits. I’ve been through this before, so rather than elaborating again I’ll just emphasize that since justices are already perfectly free to resign and get rewarded by powerful interests they’ve favored in past rulings that the idea that non-renewable fixed terms will undermine judicial independence are especially implausible.

One additional thing to note is that the hypothetical that Matt puts forward below isn’t actually purely hypothetical:

What’s more, we might plausibly see in the near future the situation in which an elderly justice begins to suffer from very serious medical problems but refuses to step down because he or she finds the incumbent president ideologically uncongenial.

This basically describes what happened with William Douglas, who stayed on for too long after a serious stroke partly in a futile attempt to deny Gerald Ford — who had led an attempt to impeach Douglas in Congress — the ability to appoint his replacement. (His brethren actually created an informal rule that they would only issue rulings if Douglas’s vote didn’t affect the outcome.) And while it had nothing to do with who would appoint his replacement — indeed, a couple hundred thousand votes in Ohio and it could have handed his seat to a Democratic appointment — I think it’s very likely that William Rehnquist also stayed on beyond his ability to do his job well. It’s unlikely that this will be the last example…

Responding To Commenters

[ 74 ] May 11, 2010 |

I don’t mean to join in making this an all-Kagan-all-the-time blog, but some commenters have raised points that may help to clarify the argument I’m making. The question of whether her views being known by Barack Obama guarantees a strongly liberal nominee (as opposed to a nominee at least as liberal as Larry Summers) I’m going to leave until later, because I address this in a longer piece I have coming out. But there are a couple other interesting points being raised that can be profitably addressed. First, from Martin:

It’s just that the right-wing tendencies of Barack Obama himself are important for the case you’re making, and those obviously haven’t been established, and the same goes for the lamentable need for SCOTUS nominees who don’t raise red flags during the nomination process.

On the latter point I have two words in response: Sam Alito. It’s just not true that someone with a clear ideological record cannot be confirmed. It was absolutely clear that Alito was a down-the-line reactionary without relying on the fact that George Bush was aware of his views, and it was also pretty clear that John Roberts was an orthodox conservative. And, similarly, a nominee with an actual record of having consistent mainstream liberal views could absolutely be confirmed in the current political context. (It may be true that after the midterms that more of a blank slate nominee is required — but of course this makes the Kagan choice even worse.) This assumption, I think, takes the wrong lesson from the Bork hearings. It’s not true that having a paper trail per se makes you unconfirmable; a paper trail might make you unconfirmable if you have have a history of writing stuff like “the Civil Rights Act is unconstitutional,” “the Constitution has no right to privacy,” “the First Amendment should be construed the way it was construed in 1798,” etc. etc. George W. Bush understood this, and got two justices who will vote pretty much the way Bork would have out of the deal.

Essentially, this argument buys into the idea that anything but a “smooth” confirmation process will extract a substantial political cost. The problem is that there’s no evidence that this is true, and in fact plenty of evidence that almost nobody votes based on what happens at Supreme Court hearings. And even if you believe that a president politically “needs” a nominee who can not only get confirmed but get confirmed easily for reasons I don’t understand, it’s not even clear that Kagan will generate much less opposition than Wood or Thomas would have. Yes, the “anti-military” and “in bed with Goldman Sachs” issues are 100% and at least 98% specious, respectively. But if we’re arguing politics, the merits of the charge don’t matter.

Then from Barbara:

You make it sound as if the ones in the top 200 can be listed in order of merit, as if there is one most qualified, followed by the second most aqualified, etc. This is the argument that opponents of affirmative action use. It is not persuasive there, and is not here.

On its own terms, I agree with all of this. Of course, Kagan is perfectly well “qualified” for the position. For a position like the Supreme Court — which doesn’t have the administrative responsibilities of, say, being the head of FEMA — what is required to be minimally qualified isn’t a whole lot. Some of the greatest justices of the 20th century had substantially less formal qualifications than Kagan. That’s all true. She’s perfectly well-qualified. In and of itself, I don’t care that she didn’t serve as an appellate judge.

But it’s not enough. The question isn’t whether Kagan is good enough. The question is why her, as opposed to the significant number of other candidates who are at least as well accomplished and have a much more proven record of constitutional liberalism. Her scholarship absolutely convinces me that she’s a very intelligent and careful scholar — but it tells me very little about what her jurisprudence on the Supreme Court will be like. That’s the issue. This uncertainty is a substantial risk, and it’s a risk there’s no reason to take in this political context.

SCOTUS Absurd

[ 42 ] May 11, 2010 |

The controversy, such as it is, over Elena Kagan’s nomination throws several points into relief:

(1) The extent to which legal academia is an intellectually bankrupt and politically corrupt insider game. Once Kagan was nominated it became inevitable that a bunch of people would argue that she’s an excellent scholar because, if nothing else, it would be institutionally embarrassing to the Harvard Law School if she wasn’t. Kagan’s academic career is a typical one for a driven, politically ambitious young lawyer who intellectually speaking doesn’t have much to say. She’s written a few boring hyper-technical pieces that take no chances in either intellectual or political terms. She’s published them exclusively in her home reviews, which means that the students at the school at which she teaches (and no doubt to some extent students from her own classes) are the people selecting her work for publication, except in two cases when her work was published in a journal edited by the faculty members at what was either her current or her former home institution. Because one of these pieces is an 150-page article in the Harvard Law Review, and its author became dean of the Harvard Law School shortly afterward, it’s then cited 300 times. This fact is then cited as evidence for the supposed significance of her work, which further “fact” is cited in support of the claim that she’s one of the, in the words of Barack Obama’s press release, “best legal minds of her generation.”

(2) Because she’s one of the best legal minds of her generation, see, e.g., (1) supra, the claim is made that the fact that Kagan has no public views on almost any question relevant to being a Supreme Court justice is not in any way disqualifying to her candidacy. This claim is based on the notion that what’s most relevant to being a good pick for the SCOTUS is a high degree of technical competence in the mysterious science of legal interpretation. That hypothetical competence then becomes what people mean when they talk about whether a candidate is “qualified.”

(3) The argument in (2) makes sense only to the extent that it’s plausible to argue that legal interpretation, when it takes place at the level of the SCOTUS, isn’t a thoroughly political, as opposed to a formally technical, activity. That is deeply implausible, but the social and intellectual conditions of the American law school obscure this.

(4) Despite the social and intellectual conditions that enable (1), (2), and (3), there’s nevertheless something of a consensus emerging that the current structure of the SCOTUS, which puts a premium on giving life tenure to relatively young lawyers with relatively little of a “paper trail” (aka evidence of their legal/political views) on an enormously powerful political institution doesn’t make any sense.

Update: I just did an NPR segment with conservative law professor Stephen Bainbridge, who supports Kagan’s nomination for exactly the same reason I oppose it: because in both of our estimations she’s a best-case scenario for the GOP, in that there’s a significant chance she’ll move the court to the right. Bainbridge opposed Harriet Miers for precisely the same reasons in reverse. Of course the fact that a lot of conservative commentators are taking a similar line proves nothing in itself, but it’s awfully suggestive.

As IB points out in comments, the White House has announced Kagan has had a conversion experience regarding whether SCOTUS nominees should be expected to answer tough questions. It’s heartening, I suppose, that the members of the media treated to this revelation literally burst into laughter.

Several people have referenced Eugene Volokh’s defense of Kagan’s writing. Leaving aside for the moment the question of its quality, one issue that’s not, I think, in dispute, is that it doesn’t actually answer precisely those questions a person would want answered under these circumstances — that is, normative questions about her view of the law, rather than issues of descriptive categorization. Consider the Private Speech, Public Purposes article Volokh likes so much. Volokh emphasizes that it’s in his view a sophisticated analysis of the relevant legal doctrines. But Kagan quite self-consciously avoids any critical evaluation of those doctrines. For example, the thesis of the article is that the Supreme Court’s First Amendment doctrine “constitutes a complex scheme for ascertaining the governmental purposes underlying the regulation of speech.” Of course the questions a reader wants answered when considering Kagan’s potential elevation to the court is whether Kagan believes this scheme correctly interprets the First Amendment, and whether — to the extent Kagan believes this is even a different question – it’s a good method for regulating speech. Kagan flatly refuses to address these issues: “I have never proposed to show,” she notes, “that the most sensible system of free expression would focus on issues of governmental motive to the extent our system does . . . I leave for another day the question of whether our doctrine, in attempting to discover improper motive, has neglected too much else of importance.” (That day is apparently not yet here).