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June 8, 2016

Reynoso: I’m Mexican-American, and I was a judge. What Trump is doing is appalling.

Former California Supreme Court Justice and Professor Emeritus Cruz Reynoso penned an op-ed for PostEverything, a feature of The Washington Post. The piece is titled "I'm Mexican-American, and I was a judge. What Trump is doing is appalling." In it, Reynoso takes on remarks from presumed Republican presidential nominee Donald Trump, who wishes to disqualify U.S. District Judge Gonzalo Curiel from presiding over the lawsuits against Trump University: "Now, this judge is of Mexican heritage. I'm building a wall, okay?"

Reynoso writes:

Trump's rhetoric is a frontal attack on the judicial system. Are federal judges of Hispanic origin to be judged on the basis of their ethnicity rather than that the quality of their professionalism?

I have had the opportunity these last 53 years of my life to be a lawyer who practiced before judges, as well as a judge - a California state appellate and Supreme Court justice. (I was proud to be the first Latino appointed to my state's highest court, in 1976.) When appellate judges disagree, they write dissents. Dissents are based on differing views of the law. Never has a dissent been based on the ethnicity of disagreeing justices, nor should it be so. Were that true, as Trump asserts, our judicial system would, in effect, be destroyed.

For the full op-ed, visit PostEverything.

September 25, 2015

"Liberty or Equality?" and the Obergefell Opinion

On Wednesday, September 23, I presented the annual Anthony Kennedy Lecture at the Lewis & Clark Law School.  The subject of my talk was "Liberty or Equality?", and the topic was Justice Kennedy's majority opinion in the recent Obergefell case, recognizing a constitutional right to same-sex marriage.  In the first part of my lecture, I placed the Obergefell opinion in context, taking into account Justice Kennedy's place on the current Court, and his past jurisprudence.  In particular, I noted that while Justice Kennedy is undoubtedly the co-called "swing Justice" on the Roberts Court, he is quite different from past swing Justices such as Sandra Day O'Connor and Lewis Powell.  The latter were considered to be moderate pragmatists, lacking strong judicial philosophies.  Not so for Justice Kennedy.  From his first years on the Court, his jurisprudence has been notable for a passionate commitment to Liberty in all of its aspect, and his firm belief that protection for Liberty is intrinsically tied to protection of individual Dignity.  This commitment appears in his  privacy jurisprudence of course (culminating in Obergefell), but also in other areas including notably free speech -- it is no coincidence that Kennedy is the preeminent advocate of First Amendment liberties on the modern Court.  Moreover, unlike his colleagues, Justice Kennedy's commitment to liberty transcends political boundaries, encompassing such "liberal" Liberty claims as abortion and the free speech rights of pornographers, and such "conservative" claims as property rights and commercial speech.  It is this lack of partisanship, rather than lack of philosophy, that has placed Justice Kennedy at the center of the modern Court.

I then stirred up the pot a bit by raising some doubts about Obergefell, at least as written.  I noted that the plaintiffs in the case had raised both Due Process (i.e., Liberty), and Equal Protection (i.e., Equality) claims, and the Court's formulation of the questions presented preserved both.  Yet Kennedy's opinion is almost all Liberty, with a tiny dollop of Equality almost as an afterthought.  I suggested that this emphasis is probably a product of Kennedy's own preferences and comfort levels.  While Justice Kennedy has always been a strong advocate of Liberty claims, his relationship to Equality is more ambivalent.  He unquestionably is firmly committed to nondiscrimination principles, and even (unlike his conservative colleagues) a commitment to racial integration.  However, he has demonstrated -- notably in affirmative action cases -- grave discomfort with policies that classify individuals based on qualities such as race.  Indeed, this discomfort ties into his commitment to Dignity, because he sees such typecasting as itself in consistent with individual Dignity.  As a consequence, Liberty must have seemed the easier path to take.

Ultimately, however, I do believe this choice was a mistake, for several reasons.  First, I think that jurisprudentially, Equality is the stronger argument.  The Court's entire substantive due process jurisprudence, which was the basis of the Due Process holding in Obergefell, rests on somewhat shaky foundations, given its lack of textual grounding.  Equal Protection, on the other hand, is a well-established, textually based doctrine.  And the argument for extending heightened scrutiny to discrimination against LGBT individuals strikes me as extremely powerful, under existing precedent.  Second, an Equality based holding would have been broader, granter more protections to sexual minorities than a narrow decision focused on marriage.  Third, it is possible that an Equality based holding would have generated less intense opposition than a holding that redefines marriage (though this is admittedly speculative).  Finally, I also believe that Justice Jackson was correct in his argument, in the Railway Express case, that in a democracy, equality-based constitutional decisions are generally preferable to liberty-based ones, because they interfere less in legislative authority.

January 2, 2014

Award Winning Blog Entry: "Getting Law Review Fans Out of the Closet"

Congratulations to Professor Gabriel "Jack" Chin, whose PrawfsBlawg post "Getting Law Review Fans Out of the Closet: Liptak on Jacobs and Waxman" just won a Green Bag Exemplary Writing Award.

 

 

Here's the award winning entry in its entirety, cross-posted from PrawfsBlawg (originally published on October 21, 2013):

Getting Law Review Fans Out of the Closet: Liptak on Jacobs and Waxman

In a column today, Adam Liptak discusses some familiar criticisms of law reviews.  I believe law review articles are often high quality, useful and influential, as is reflected by my recent series of interviews with authors of articles cited in the U.S. Supreme Court.  Liptak quotes Second Circuit Judge Dennis Jacobs as saying in 2007 "I haven't opened up a law review in years.  No one speaks of them.  No one relies on them."  Former SG Seth Waxman is quoted as saying in 2002 that "Only a true naif would blunder to mention one at oral argument."  Do not believe either of them for a second; the record suggests that these cynics are closet idealists who regularly enjoy a good law review article.

As for Judge Jacobs, a Westlaw search shows he has cited law reviews dozens of times in his years on the bench.  In 2005, he cited a law review article for a point of sentencing law, and then as an "accord," cited a Stevens and Souter dissent.  See Guzman v. United States, 404 F.3d 139, 143 (2d Cir. 2005).  That is, Judge Jacobs cites the views of two U.S. Supreme Court justices to buttress the conclusions of a law review article.  The next year, in At Home Corp. v. Cox Communications, 446 F.3d 403, 409-10 (2d Cir. 2006), he string-cited three law review articles to explain the realities of leveraged buyouts.

In truth, Judge Jacobs obviously--obviously--loves law review articles.  How can we tell?  He likes to cite articles raising interesting legal wrinkles, but which were not raised or precisely presented by the facts.  See Briscoe v. City of New Haven, 654 F.3d 200, 208 n.13 (2d Cir. 2011) (citing article offering novel reading of a recent Title VII case); Carvajal v. Artus, 633 F.3d 95, 109 n.10 (2d Cir. 2011) (citing article raising novel reading of full faith and credit clause); Pescatore v. Pan Am, 97 F.3d 1, 13 (2d Cir. 1996) (citing articles dealing with "decades-old controversy over choice of law doctrine").   He also likes empirical work.  See, e.g., United States v. Whitten, 610 F.3d 168, 201 n.25 (2d Cir. 2010).    

Judge Jacobs has cited articles written by students, judges and scholars, century-old chestnuts and brand new work, he cites celebrities like Akhil Amar and William Stuntz writing in the Harvard Law Review and the Yale Law Journal, and lesser-known scholars writing in less fancy venues.  In short, the record shows that he relies on law review articles when he concludes their research and analysis makes them worth relying on, which is exactly what judges should do. 

As for Seth Waxman, of course it would be extremely rare for an advocate to mention an article in oral argument, just as it would generally be silly to waste much time emphasizing the fact that a unanimous state supreme court or en banc circuit court agreed with your position.  He is quite right if his point is that by the time the case is in the Supreme Court, naked appeals to  authority (other than binding Supreme Court decisions) are unlikely to help.  And yet, a search of the Supreme Court brief database on Westlaw shows that Waxman authored 149 briefs citing law review articles, and 423 briefs in total.  So more than a third of the time, he concluded that citation of a law review article would be more persuasive than simply incorporating the article's cases and argument in the brief (which would be fair game--briefs and opinions need not be original).  His choice to rely on articles is the clearest possible vote of confidence in the utility of scholarly research.  On behalf of the legal academy, I say to Mr. Waxman: "You're welcome."

April 3, 2011

Widening Spatial Inequality and What to Do About It

Wealth and income inequality have been getting a lot of attention in recent months--at least in the New York Times. Op-Ed columnist Bob Herbert has been especially persistent about keeping the topic on readers' radar screens; read some of his columns here, here, here, and here. Paul Krugman, Frank Rich, and Robert Frank have had a say, too. Wealth inequality was also the subject of a "Room for Debate" feature a few weeks ago.

But geographic analysis of inequality has been little examined in the mainstream media until The Economist Magazine ran a couple of stories about uneven development and spatial inequality in the March 10, 2011 issue. The first "Internal affairs: The gap between rich and poor regions widened because of the recession," analyzes various nations' spatial inequality as measured by income and GDP. This analysis shows that Britain is the nation with the widest geography-based income gap: the per capita GDP is nine times greater in central London than it is in some Welsh regions. The smallest regional spreads, on the other hand, were in Italy and Germany, where "incomes in their most affluent areas are [nevertheless] almost three times those of the poorest." The United States falls at the British end of the spectrum, coming in second for inequality across regions among the nations studied. The District of Columbia, for example, is five times as rich as Mississippi. Further, the situation has worsened in the past few years.

Between 2007 and 2009 real GDP per head in the five richest states actually rose by an average of 2%, but fell by 3% in the five poorest. Both groups outperformed the national average, a fall of more than 4%. (The biggest slumps, both by more than 10%, were in Michigan, the eighth-poorest state, and in Nevada, site of the biggest house-price crash.)

The Economist notes that this is merely a continuation of a long-standing trend, and it attributes the phenomenon, in part, to the "dependence of poorer states on manufacturing, which has suffered big job cuts over the past decade." The feature concludes that "the income gap between richer and poorer areas is likely to widen further as government-spending cuts disproportionately hurt less prosperous parts."

One of the story's big attention getters is its comparison of GDP among regions and cities of different nations.

[O]ver a quarter of regions in Britain and Italy and one-tenth of those in Germany will this year have a lower GDP per head than the municipality of Shanghai. All the American states remain richer, but Shanghai looks set to overtake Mississippi by 2015; within ten years half of all the states, including Florida, Michigan and Ohio, could have a GDP per head lower than Shanghai and Beijing.

If the comparison were at the scale of the county rather than that of the state, these Chinese cities would no doubt be shown well out-pacing our nation's persistent poverty counties.

The second Economist feature on spatial inequality, "Gaponomics," takes up the question of what should be done to respond to this problem, particularly in the context of Britain. Instead of investing in particular regions or giving tax breaks to "enterprise zones" in these downtrodden areas, The Economist offers this proposal:

[M]ake it easier for people to move. Given inherent gaps in regional productivity prospects, there is a case for boosting mobility from declining regions to prospering ones. In Britain the main problem is the fetish for home-ownership and high house prices in the south-east, partly the result of severe shortages of supply. Easing planning restrictions below the Watford Gap would be a better way of helping Britons than propping up the north.

As a ruralist, I am immediately suspicious of policies that would aggravate uneven development. Among other things, they ignore those who will remain immobile and inevitably left behind. They also ignore attachment to place as an aspect of the political economy of rural areas in particular.

This story's second proposal is far more palatable: invest in education because it results in "the single biggest reward" for the nation--even if northerners then move south with their enhanced human capital. (Regarding the latter, I am reminded of this book on the rural brain drain).

Back in the United States, a recent New York Times editorial echoes the second of these ideas in relation to New York's funding scheme for education. In "Rich District, Poor District," the editorial staff consider how two of the state's school districts will fare under the Cuomo budget: "Ilion in the economically depressed Mohawk Valley, and Syosset, a wealthy town in Long Island’s Nassau County." Needless to say, it's not a pretty picture. Here' a summary:

The cuts would scarcely affect wealthy districts that rely primarily on local taxes to support lavishly appointed schools. But they would be catastrophic for impoverished rural districts that have been starved of state aid for decades and are still reeling from cuts levied last year .... Already struggling to furnish even basic course offerings, the poorest districts would need to cannibalize themselves to keep the doors open and the lights on.

As the editors express it, the $1.1 million cut Ilion is being asked to take to its $25 million budget "would not even come to a rounding error in the state's richest districts," like Syosset, which is being asked to absorb only a $1.4 million cut to its $188 million budget. But the New York Times editors aren't just arguing that school funding should be more equitable because "it's the right thing to do," they make an argument grounded in economics: Depressed regions like that around Illion "stand[ ] little chance of attracting high-skill jobs if [their] schools are allowed to deteriorate."

Going back to The Economist articles for a moment, I noted that enhanced investment in education is one reason for the income convergence across Germany, even as spatial inequalities become more acute in other nations. The story describes "huge national and European Union funds for infrastructure, R&D and education, as well as the transfer of some manufacturing jobs from factories in the western states to the east." For some reason, Germany sees reasons to take care of its citizens where they are--not to create incentives for residents of the less affluent East to move West. I'd like to know more about those reasons because I suspect they go beyond a sentimental desire to permit people to stay where they are and the attractive orderliness of a more evenly populated. I am guessing these policies are based in part on economic calculations about the value of existing infrastructure and human capital in the historically deprived East. Better understanding those reasons might inform debates in the United States about why regional development and reducing spatial inequalities--not fueling them--makes good sense from myriad perspectives.

Some of my writings mapping the sociogeographic concept of spatial inequality onto legal conceptions of (in)equality are here, here, and here.

Cross-posted to SALTLaw.blog, ClassCrits, and Legal Ruralism.

June 25, 2010

Taking Rural People Seriously. Not.


Parthenon General Store, Parthenon, Arkansas
(not a Census Designated Place and has no Wikipedia entry)
Photo © Lisa R. Pruitt

I started writing about rural people and places in relation to the law a few years ago, motivated in part by their near total absence from legal scholarship.  I grew up in a very rural corner of Arkansas, where most of my family of origin still lives, and it struck me that lives like theirs (and formerly mine) were largely unseen and unacknowledged by legal actors at scales other than the most local (and sometimes even by those, e.g, the Sheriff).  Rural residents comprise nearly 20% of our nation's population, but they are a forgotten fifth whose lives are in many ways different to what has become a presumptive but rarely expressed urban norm in legal scholarship.   (Katie Porter's work on bankruptcy in rural contexts is an important exception).  I started studying the legal relevance of rurality about a decade ago, and I have found so much to say that I have published only within the sub-discipline I call "law and rural livelihoods" since 2006.   I expect to spend the rest of my career exploring rural people as legal subjects and rural places as context, even if it sometimes feels as if I am writing my way into the very obscurity associated with rurality itself.

It is not surprising, then, that as a consumer of legal scholarship I find myself looking for rural people, for acknowledgment of rural difference, rural context, rural society.  Of course, rural-urban difference is not relevant to every legal issue or every piece of legal scholarship, but from time to time I come across a law review article that seems to cry out for some acknowledgment of rurality.   That happened last week when I saw on ssrn.com an essay by Jonas Lerman titled "Food Fights and Food Rights:  Legislating the 'Delicious Revolution.'"  Lerman's abstract states in part:

This Essay explores some of the civil rights and human rights dimensions of American food policy.  In particular, the Essay examines the weaknesses in America’s school lunch programs, and the problem of “food deserts” – the dearth of grocery stores and farmers’ markets in

America’s poor and nonwhite urban neighborhoods. These are complex problems, involving powerful agricultural interests, difficult public health questions, urban planning, and civil rights.

This is a nicely written manuscript about important issues that get surprisingly little attention in legal scholarship:  agricultural policy, food, and child nutrition.  But I was surprised and disappointed that in 51 pages, Lerman does not use the word "rural" a single time.   Nor does he use the word "nonmetropolitan."  The word "urban," on the other hand, appears thirteen times (more if you count the footnotes).  He talks about farmers' markets, farm policy, the Farm Bill, Farmer Barack, and occasionally plain old farmers,  but he doesn't mention the fact that a whole lot of food is grown in rural and/or nonmetropolitan areas.  He talks about what is good for cities and urban children without acknowledging rural children, their families, their nutritional needs or their communities.

On the one hand, Lerman's use of the modifier "urban" can be seen as progress.   That is, by specifying urban people and contexts, he is at least not pretending to refer to all children when his real focus is those who live in cities.  There is precision and honesty in this.  Unlike many legal scholars, he is not merely assuming the urban; he's expressing it.

Now, I do understand that urban ag, slow food, and Alice Waters are hot topics these days.  I also appreciate that even (or especially!) law review articles need a little marketing.  Still, given that food insecurity and child obesity are as much rural problems as urban ones and given agriculture's importance to rural economies, I would expect rurality might play at least a cameo role somewhere in the discussion.  (Read more about rural food insecurity and food deserts here here, and here.)

A few days after seeing Lerman's essay, I came across Katharine Baird Silbaugh's article,  "Sprawl, Family Rhythms and the Four-Day Work Week."   Rural people and places are more visible here, even garnering a mention in the abstract.  Here's an excerpt:

This Article seeks to highlight some of the institutional practices that influence the adoption of a four-day work week, particularly those associated with sprawl. It compares the reform to school districts that operate a four-day school week as a cost-saving measure. School systems choose a four-day week because they are rural and long distances create particularly serious time and transportation costs. This comparison helps to reveal the role sprawl and its impact on commutes plays in the four-day work week reform.

Professor Silbaugh uses "sprawl" as it is most commonly used now, to refer to a metropolitan phenomenon.  Fair enough.  Of course, the word sprawl is also an accurate descriptor of the lay of the land in rural areas.  That is, one defining characteristic of rurality is low population density--residents far flung across often vast spaces.  Kudos to Professor Silbaugh for seeing this link and acknowledging what might be seen as a rural "solution" to dealing with spatially dispersed populations:  the four-day school week.  What Professor Silbaugh doesn't do (presumably because her focus is the role that "urban sprawl plays in generating worker demand for a compressed work week and citizen demand for extended service hours") is acknowledge that the four-day work week (along with the upsides and downsides she identifies) would have similar impacts on rural families.  Not only must rural children traverse great distances to get to school, rural women (and men) must traverse them to get to work.  In fact, the rate at which rural mothers work outside the home is higher than that for their urban counterparts!  Read more here.

Of course, I appreciate (and greatly enjoy myself) the latitude that legal scholars enjoy to define their research agendas and to state the parameters of each article.  It's easy for a reader to say, "but what about ...."   Those "what about" questions can can go on endlessly, and they get in the way of the laudable goal of writing shorter law review articles.  Nevertheless, some legal issues cry out for an acknowledgment of rural difference.   Authors might ask how a given law would affect rural residents?  or whether a law would operate in the same way in rural places?

Taking our nation's rural population seriously is perhaps too much to ask as we move into the second decade of an increasingly metro-centric 21st century.  But we could at least acknowledge the very existence of rural people and places more often than we do.  In the context of legal scholarship, surely the rural experience is worth at least an occasional law review footnote.  Progressive legal scholars, who generally seek to be inclusive, could start with that.

Cross-posted at SALTLaw.org/blog.

May 21, 2010

Elena Kagan's Confirmation Hearings: Her Lack of Judicial Experience May Not Matter, But a Key Essay She Wrote Might

Many commentators and some Republican Senators have been suggesting that Supreme Court nominee Elena Kagan should undergo particularly rigorous questioning in the Senate because the "paper record" setting out what she believes and stands for is rather thin. This thinness is due in part, say some Kagan detractors, to the fact that she is not, and has never been, a judge. In this column, I discuss the relevance of Kagan's not having served in the judiciary to the adequacy of her paper record, and discuss more generally — based on something that is in her record — what the hearings might feature.

Kagan Lacks Judicial Experience — But So Did Some Influential Prior Justices

Let's begin with the criticism that Kagan's record is opaque because she hasn't ever been a judge. It's true that every member who has been appointed to the Court for the last 40 years or so had some judicial experience, and that every Justice today came to the Court from the United States Court of Appeals.

But, of course, great (that is, influential) Justices like Earl Warren, William Rehnquist, and Hugo Black lacked significant judicial experience before their appointments to the Court.

Equally importantly, many other, more recent, Justices lacked enough judicial experience to really tell us much about the kind of Justices they would likely be if confirmed. It might initially seem that the Senate's task is easy when a nominee has been a judge: simply read a jurist's past decisions to glean his/her approach to judging, and compare that approach to the Senate's own vision(s). But, in fact, past decisions may not tell us much, and may indeed be misleading in what they do suggest.

For one thing, stare decisis — the principle that precedent should generally be followed, and that precedent from higher courts is binding on judges lower down in the pyramid — limits all lower courts, federal and state. This principle may force individual judges to reach decisions and embrace reasoning that are deeply in conflict with the judge's own views.

Ironically, the willingness to reach such a decision, or employ such reasoning, based on precedent, despite the judge's personal views, may in fact illustrate a virtue, even though, during the confirmation process, past respect for the rule of stare decisis places limits on how much we can really learn from a lower court judge's record.

Moreover, some existing state (as opposed to federal) court judges may not have had occasion to consider many of the kinds of federal questions that regularly confront the Supreme Court. (Because certain federal questions can be easily litigated in federal court, they arise infrequently in state court; indeed, some federal issues, such as those regarding federal criminal law, are almost never heard in state courts.)

Thus, the kind of judge whose record tells us a lot about the kind of Justice s/he will make is a lower federal court judge who has served long enough such that s/he will have confronted many important questions on which (confining) Supreme Court precedent has been sparse. Some of the Court's current Justices — like Justices Alito, Kennedy and Sotomayor — had just such a record. But others, like Chief Justice Roberts or Justice Thomas (or retired Justice Souter, who was appointed in the 1990s), did not serve on a lower federal court for a sufficiently long period of time to generate a large number of probative rulings that provided a meaningful sense of how each might rule when freed from the duty to abide by the rulings of a higher Court.

Indeed, Chief Justice Roberts's paper record, prior to his time on the Court, was about as thin as Dean Kagan's. When Roberts was nominated, he had no lengthy judicial track record, but rather a distinguished history of serving particular clients — specifically, Presidential Administrations and private clients. Kagan, for her part, has represented mainly Presidential Administrations. And, of course, a lawyer representing clients must make arguments based on what the client wants to accomplish, rather than what the lawyer believes is necessarily right as a matter of law.

Thus, on the whole, for Roberts there were — and for Kagan, there are — not very many specific articulations of viewpoints to go on. Instead, the President's nomination was more probably grounded on non-public information he had, and/or a general sense of each nominee's philosophy based on the organizations, institutions and Administrations the nominee had chosen to affiliate with in the past. But my suggestion here is that there was not much more to go on for Roberts than there is for Kagan, and yet Roberts's sparse record didn't bother Republicans during his nomination and confirmation process.

Can Other Sources Tell Us What We Need to Know About What Kagan Would Be Like as a Justice?

In Kagan's case, we might expect that we could glean a lot from her scholarship as an academic. After all, law professors (unlike lower court judges and practicing lawyers) are constrained by neither precedent nor a client's need, in the positions they take. Academic freedom means that scholars are able, and encouraged, to say what they really believe.

Still, even here, we need all be sensitive to the nuanced roles that academics play. Professors are taught to be, and rewarded for being, provocative. Thus, an academic will sometimes float an argument in order to generate discussion and dialogue, even when he is not yet convinced that he is right. (Some of unsuccessful Supreme Court nominee Robert Bork's controversial scholarship may belong in this category.)

Yet for Dean Kagan, the real problem is not that we might overread her scholarship, but rather that there may not be enough for us to read. Either because she was interested and involved in Deaning early in her career, or for other reasons altogether, she simply didn't produce a large number of meaty law review articles or essays or books. There are, to be sure, some important pieces she wrote; she did very careful work in the area of free speech doctrine, and wrote a substantial article on various aspects of administrative law. She also wrote an interesting essay on hate speech codes for the UC Davis Law Review about 15 years ago (at my invitation and the invitation of my frequent FindLaw co-author, Alan Brownstein).

The Book Review Kagan Authored that May Play an Important Role During the Hearings

But there is one piece in particular that Kagan wrote that may well stand out, and become central in her confirmation hearing. In it, she didn't talk about her views concerning Roe v. Wade, or Bakke, or Miranda, or the death penalty, or other momentous substantive constitutional issues of our day. But she did talk about a big and timely question of constitutional process — the proper role the Senate should play in the confirmation hearings.

In a 1995 University of Chicago Law Review book review, Dean Kagan powerfully critiqued a book written by Yale Law professor Stephen Carter, in which Professor Carter essentially argued that the Senate should avoid asking specific and substantive questions about a nominee's constitutional vision, but should instead largely satisfy itself with an inquiry into the nominee's qualifications, temperament, and character.

Disagreeing sharply with this view, Professor Kagan labelled the current state of affairs — in which nominees avoid answering specific questions ("stonewalling" is the term she uses) about specific constitutional controversies of our era — a "mess." She characterized the modern confirmation process as lacking in "seriousness and substance," and as an exercise that "takes on an air of vacuity and farce."

In her book review, Kagan observed that without specific questions and meaningful answers, the Senate isn't doing its job and the country can't learn what it needs to know; general discussions of philosophies simply are not revealing enough. Nominee "comments on particular issues" are necessary.

Kagan criticized the Senate for not putting more pressure on the nominees, and, importantly, she pointed out that recent nominees' reasons for refusing to answer specific questions — that answers would compromise judicial independence — were hogwash (an "especial red herring" she termed it.) If this reason for clamming up were right, she correctly observed, then "Justice Scalia [would be] in a permanent state of recusal, given that in the corpus of his judicial opinions he has stated unequivocal views on every subject of any importance."

I myself have expressed views similar to Kagan's, on this website and in academic writings, both before and after Kagan's book review. In my writings, I've explored in much more detail why the explanations nominees have proffered for refusing to answer simply don't hold up to scrutiny. For me (and apparently for Dean Kagan), a specific question by the Senate is fair game so long as it does not seek a promise or a commitment from the nominee, in form or effect, as to how s/he would rule if confirmed. So I laud Dean Kagan for the views she expressed in this 15-year-old book review.

In Light of Kagan's Position in Favor of Searching Senate Questioning, Must She, as a Nominee, Provide Answers to Such Questioning?

The question now, of course, is whether (or how) Kagan can avoid providing specific answers to questions about her views on the hot-button constitutional issues, given that she is on clear record that the Senate's job is to obtain these answers and that there is no reason that such answers can't be given by a nominee.

To be sure, at other points in her book review, Kagan does point out that nominees understandably conform their behavior in the hearings to that of many prior nominees, and that in their hearings Justices Ginsburg and Breyer sincerely believed the mantra about judicial independence that they offered to explain their refusal to answer certain questions. But unless Dean Kagan says that she now agrees with Ginsburg's and Breyer's flimsy reasoning — which would be hard to do, given the force with which she argued to the contrary in 1995 — we may very well get some meaningful and specific answers from Kagan in the hearings to fill in the somewhat sparse record.

Cross-posted from FindLaw.com.

April 21, 2010

John Paul Stevens and the American Century

For years after John Paul Stevens arrived in Washington, Court-watchers across the ideological spectrum typecast him as a “wild card” whose fact-conscious approach led to “maverick” results. Those terms seldom surface any more; accounts of his recent decision to step down at the end of this Term instead dubbed him a “lion,” a “leader of the liberal wing.”  Yet neither description alone does justice to Justice Stevens, who today celebrates his ninetieth birthday.  In his jurisprudence may be found not only a commitment to common law processes, but also a vision of how law must serve American ideals.

John Paul Stevens has lived much of what has been called the American Century.  He was born in Chicago on this day in 1920.  Just five months earlier, the Senate had voted to keep the United States out of the post-World War I League of Nations.  Four months before that, deadly race riots had roiled neighborhoods not far from Stevens’ Hyde Park home.  His family was among the city’s most prominent, having earned a fortune in the life insurance business.  In 1927 the family opened the lakefront Stevens Hotel, then the world’s largest, run by John’s father, already manager of another posh downtown hotel.  John’s Jazz Age childhood soon gave way to Depression-era tragedy: Stevens’ father, who had borrowed money from the insurance company in an attempt to save the hotel, was convicted in 1933 of embezzlement.  The Illinois Supreme Court fully exonerated him in 1934.  But the hotel was lost, and the father ran a food concession at the Century of Progress World’s Fair.  John had his first job selling Banbury tarts near the Fair’s replica Globe Theatre.  There began his love of Shakespeare’s plays.

As a University of Chicago undergraduate, John heard Mortimer Adler and Robert Maynard Hutchins – renowned as founders of the Great Books curriculum – debate whether America should come to the aid of England in its fight against fascism in Europe.  When war came Stevens served, earning a Bronze Star for his work as a Navy codebreaker at Pearl Harbor.  At war’s end he returned to Chicago.  Having excelled at Northwestern University School of Law, Stevens was hired by Justice Wiley B. Rutledge, Jr., later described as the conscience of a Supreme Court sorely tested by World War II and the ensuing Cold War.  As Rutledge’s law clerk Stevens played his part in America’s mid-twentieth century struggles to resolve competing claims of national security and individual dignity, and to enforce the Constitution’s guarantees of liberty and equality.

Stevens spent most of the nearly three decades between that clerkship and his own confirmation in Chicago, where he taught antitrust part-time and established himself as one of the city’s premier litigators.  (Stevens is quick to note that his stints in Washington, working on congressional antitrust inquiries, taught him how legislation is made, a lesson that has influenced his approach to statutory interpretation.)  His work as special counsel in a corruption investigation that prompted the resignation of Justices of the Illinois Supreme Court – chronicled in Kenneth Manaster’s Illinois Justice (2001) – led to Stevens’ appointment to the Seventh Circuit in 1970.  Five years later, he became the only Justice nominated by post-Watergate President Gerald Ford.

As commentators soon noted, Stevens brought to the Court the litigator’s focus on the case at hand.  That focus has remained evident not only in the Justice’s penchant for attending to factual wrinkles that sometimes lead to unexpected results, but also in his insistence that the Court should decide only the issues squarely presented in briefs and oral argument.

Less noted was the intellectual framework that Stevens brought with him to Washington.  During his tenure he, like Rutledge and all members of the Court, has grappled with the important issues of this last century:  issues of liberty, equality, and security.  Underpinning many such decisions has been a vision of the relation between the individual and the state that Stevens explicitly has linked to the work of Mortimer Adler and John Stuart Mill.  In a lecture published as The Third Branch of Liberty, 41 University of Miami Law Review 277 (1986), Stevens construed the “liberty” of the Due Process Clauses to protect every individual from “being treated less favorably than the average member of society unless there is an acceptable justification for such treatment.”  He then gave two examples of unjustified invasions of liberty:  when a “person is branded as a ‘felon’” without proper hearing, and when “he is treated less favorably than the majority of his peers simply because his skin is not of the same color as theirs.’”  Stevens thus maintains, as did the Court in Bolling v. Sharpe (1954), that the Constitution’s guarantee of fundamental fairness encompasses a principle of equality dating to the Declaration of Independence.  That view of the Constitution not only has influenced Stevens, but also may be discerned in recent writings of other Justices; most notably, those of Justice Anthony M. Kennedy in cases like Lawrence v. Texas (2003).

This vision, along with his clerkship for Justice Rutledge and other life experiences, influenced Justice Stevens’ jurisprudence on myriad issues.  To cite a few instances:

Capital Punishment.  Soon after joining the Court, Steven drafted the opinion in Woodson v. North Carolina (1976), which made clear that the Eighth Amendment forbids mandatory imposition of the death penalty. But he also cast the essential vote in companion judgments, like Gregg v. Georgia, by which the Court ended a four-year de facto moratorium and reinstated capital punishment. Even then, his wartime experience had sown seeds of doubt about the death penalty, and he confronted his vote in Gregg throughout his career on the Court.  He has drawn an ever smaller circle around the types of cases that are death-eligible.  Noteworthy is his opinion for the Court in Atkins v. Virginia (2002), which reversed a thirteen-year-old precedent to outlaw the execution of mentally retarded persons, and set the stage for the abolition three years later of the juvenile death penalty.  Culminating this jurisprudence is Stevens’ separate opinion in Baze v. Rees (2008), in which he wrote that judicial experience compelled him to conclude that the capital punishment is not susceptible to constitutional application, and then explained that since his view did not command a majority, he would continue to evaluate every death case according to precedent.

Equal Protection.  Justice Stevens initially evinced hostility toward government programs said to give preference to minorities as a means to remedy past discrimination; indeed, in Fullilove v. Klutznick (1980), he likened one such program to the Nuremberg Laws by which Nazi Germany persecuted its Jewish citizens.  In contrast stands a 1948 memorandum, written fully six years before the Court’s landmark decision in Brown v. Board of Education (1954), in which clerk Stevens advised Justice Rutledge to “take judicial notice of the fact that … the doctrine of segregation is itself a violation of the Constitutional requirement.”  About midway through his tenure on the Court, Stevens came to approve affirmative action programs that, rather than dwelling on past discrimination, looked forward to the promotion of diversity in American society.  Wresting from the majority its claim to the mantle of Brown, Stevens declared in 2007 that the integration plans at issue in Parents Involved in Community Schools v. Seattle School District No. 1 served “the public interest in educating children for the future,” adding that “children of all races benefit from integrated classrooms and playgrounds.”

National Security.  An undisputed landmark in Stevens’ career is his forging of coalitions that crossed the conventional liberal-conservative divide to reject key aspects of the President’s post-9/11 campaign against terrorism.  Stevens wrote two of the most important judgments, Rasul v. Bush (2004), which granted federal habeas privileges to noncitizen  terrorism suspects held offshore at Guantánamo, and Hamdan v. Rumsfeld (2006), which invalidated military commissions established by a decree of President George W. Bush.  Those judgments restraining executive power stood in some tension with some of Stevens’ earlier decisions  respecting the extraterritorial reach of law enforcement.  The post-9/11 jurisprudence hearkens to opinions in which Rutledge – in one case, an opinion that clerk Stevens helped draft – stressed the Court’s duty to ensure fair treatment for even the most disfavored persons, even when national security rests in the balance.  For Stevens as for Rutledge, no less than America’s tradition was at stake.  “[I]f this Nation is to remain true to the ideals symbolized by its flag,” Stevens wrote in dissent from one post-9/11 judgment, “it must not wield the tools of tyrants even to resist an assault by the forces of tyranny.”

On this his ninetieth birthday, our country celebrates Justice John Paul Stevens’ invaluable service to the American Century.

Cross-posted at SCOTUSblog's "Thirty Days of John Paul Stevens: A series of posts by authors who know him and his work." A direct link to this entry is here.