Scalia (1936-2016)

We mustn't pretend that Justice Nino
was anything but, you know, what he was

UPDATE: Noah passes along a totally to-
the-point thought for the day (see below)

Futurama Wiki

by Ken

It happens every time an American officeholder dies leaving behind a record of evil: Amid the conventional pieties about the great sorrow, the great evil gets lost in the shuffle. In the case of that giant blowhard Antonin Scalia, the Supreme Court justice whose sudden death came as such a shock today, it's especially important not to let the subject pass through with the usual pieties.

In a word, Nino Scalia was a monster, and leaves behind an almost unbroken 30-year career of judicial mayhem -- adjudicating and bullying his fellow justices to adjudicate according to the diseased perversions of his social and political philosophy.

It's all the more important to call Justice Nino on his record because of the pretense he was allowed to maintain that he was a judicial "originalist," that his decision-making process was based on the "original intent" of the framers of the Constitution. Like just about everything this blowhard blew, it was a lie. His opinions were almost always formed in his far-right-wing ideological cauldron, and then dressed up in language pretending to claim knowlege of framers' "original intent," which was always twisted to support his ideologically based opinion.

Justice Nino devoted untold energies in those 30 years on the High Court to transforming the U.S. into the stinking hellhole of his mind: a world of unchallenged privilege for already-overprivileged white male Christians. Justice Nino always got to decide who had what kinds of rights and how much of them; the "originalist" trappings were simply grafted on. When push came to shove, as in the far-rightists's preposterous misreading of the Second Amendment to guarantee a non-existent right of all citizens to own guns, our Nino could not only ignore the "original intent" but ignore the plain language of the amendment, which states clearly that it relates to maintaining militias.

So on matters of government power and economic privilege, we were asked to believe that the framers' original intent was always to favor the power and privilege of the ruling orthodoxy. In matters of civic rights too, the operative concern was for the most restrictive orthodoxies -- as long as it wasn't right-wing orthodoxies that might be restricted.

Finally, some thoughts on a few specific issues:

JUSTICE NINO'S LEGAL "BRILLIANCE"

We're still hearing about how brilliant Justice Nino was, and what a brilliant writer, and all I can say is, once again: WTF? As writing, his Supreme Court opinions were barely a step above gibberish -- thuggish, assaultive, take-no-prisoners gibberish, mind you, but gibberish still. I suppose you could say he was a master of sophistry -- phony-baloney arguments dressed up to sound like simple logic. But I don't get how this passes for brilliant legal argumentation.

Hardly a word of his bombastic blithering ever made actual sense except as shameless bullying, substituting raw prejudice and aggression for argumentation. If any of his opinions had been submitted as a freshman English composition, it would have to have been graded somewhere between a peak of D-minus and a closer-to-typical F-minus. All the self-confidence in the world doesn't make logic-free, ad hominem ranting minimally acceptable argumenation.

THE SUPREME COURT SUCCESSION

I know there's already outrage being voiced at Republican leaders' bald statement that they won't consider an Obama nomination. This is certainly cheeky, but the reality is that as our system has evolved, there isn't much chance of Senate consideration of a Supreme Court nomination that's made in the final year of a presidential term, even though the Constitution doesn't offer any such proscription. But it is the reality, isn't it?

FOOTNOTE: IF THE SHOE WERE ON THE OTHER FOOT

I always like to play this little game, If the Shoe Were on the Other Foot. Of course if it was a Republican president faced with a Supreme Court vacancy in February of the fourth year of his/her term, any attempt by Democrats to interfere with his/her constitutional responsibility to name a replacement would be greeted with choruses of right-wing outrage and cries of "tyranny!"

But for right-wingers nowadays, hypocrisy is considered not just "no foul" but a virtual obligation. If you aren't being hypocritical, it's assumed you aren't really trying.

It's sobering enough to consider that right-wingers now have effective control of the Supreme Court confirmation process, as long as there isn't a 60-vote majority against them, and there isn't ever going to be one. And that means that the Right has influence amounting to veto power over the Supreme Court appointment process, since the right-wingers have effective veto power over any nominee they can muster 41 votes against.

This explains, I think, why -- notwithstanding right-wing invective against "liberal Supreme Court justices" -- we haven't in fact had a liberal Supreme Court justice, as far as I can see, since the retirement of Thurgood Marshall in 1993, and probably won't ever have another. The best we can hope for is moderate justices as distinguished as John Paul Stevens (1875-2010) and David Souter (1990-2009) -- both great justices, I think, for the intrepidity of their support for authentic constitutional values, at a time when those values were being increasingly assaulted by the right-wing thug justices, but neither in any sense a liberal.

The same goes for the Court's current block of moderates: Justices Ruth Bader Ginsburg (1993-), Stephen Breyer (1994-), Sonia Sotomayor (2009-), and Elena Kagan (2010-), honorable moderates all. Godspeed to them all.

There is, of course, an opportunity here for the DSCC --

To campaign for Democratic Senate candidates to retake control of the Senate, arguing the importance of Supreme Court confirmations (and confirmation of other presidential appointees). Democratic control wouldn't change the grim reality of the power of the filibuster, but it would certainly make a difference whether the Judiciary Committee holding confirmation hearings is chaired by a D or an R.

Yeah, I know this is pretty hilarious. I just thought I'd mention it.

ADDITION BY SUBTRACTION: THE
IMMEDIATE POST-SCALIA COURT

My gut response to the prospect of the current eight-member Supreme Court configuration remaining in place for, probably, more than a year: This is probably as good as we're going to get -- a case of addition by subtraction. At least now none of the nightmares that were set to ensue with the old 5-4 majority can happen. (Presumably the Court is sitting on a stack of cases it thought it had "decided" by that majority. Sorry, guyz!) Of course not much good can happen in this configuration except insofar as Slow Anthony K (or just possibly Chief Justice "Smirkin' John" Roberts) is prepared to make it happen, but how is this any different from the situation we've been in?

Obviously there are a lot of cases where the remaining justices will have to try to finesse 4-4 splits, trying to see if there's any kind of decison for which either side can negotiate a fifth vote. This will be especially problematic where federal appellate courts dump conflicting rulings in the High Court's hopper. It will be a mess. But can anyone say that the history of the Roberts Court has been anything but a mess?


UPDATE: NOAH SHARES THIS TOTALLY
TO-THE-POINT THOUGHT FOR THE DAY

"For some reason," he says, "I've been thinking of the attached quote attributed to Clarence Darrow's 1932 memoir."

#

The Supreme Court's final rulings of the term -- some surprises, but in the end really more of the same

Plus: Will Blago have to serve the full 300 years?

""Laws like Arizona's matching funds provision that inhibit robust and wide-open political debate without sufficient justification cannot stand."

-- Chief Justice "Smirkin' John" Roberts, in his opinion
in Arizona Free Enterprise Club v. Bennett

by Ken

Here's how the story was reported in Arizona:

Supreme Court strikes down provision of Arizona campaign finance law

by Mary Jo Pitzl - Jun. 27, 2011
The Republic | azcentral.com

In a 5-4 opinion, the U.S. Supreme Court Monday struck down a key provision of Arizona's public campaign-finance law.

The court's decision means candidates running under the Arizona Clean Elections system in next year's state elections will not be able to tap public dollars to match the funds raised by their opponents.

Matching funds were created to try and level the playing field between candidates running with public funds and those funding their campaigns with traditional fund-raising tactics. . . .

Man oh man, if there's anything the Roberts Court Gang of Five hates, it's trying to create a level playing field.

The most useful commentary I've seen so far remains the one provided by The New Republic's Rick Hasen: "The Arizona Campaign Finance Law: The Surprisingly Good News in the Supreme Court’s New Decision." Hasen (a visiting law professor at UC Irvine and the writer of Election Law Blog), as I noted earlier, finds in the decision "three pieces of unexpected good news to those of us who believe that reasonable campaign finance regulation is not only constitutional, but essential to prevent corruption and ensure fairness in our democracy":

(1) "[T]he Roberts Court seems to have retreated from the suggestion that all campaign finance laws, aside from disclosure, are in constitutional trouble. . . . [T]he Court confirmed that Citizens United did not overturn the law related to contribution limits, finding these restrictions 'less onerous' and to be upheld under a 'lower level of scrutiny.' That's important, because opponents of campaign finance laws such as conservative attorney Jim Bopp have been going around citing Citizens United in their attempts to get contribution limits struck down left and right."

(2) Confounding some expectations of where Justice Elena Kagan might stand on this issue, based on some of her academic writings, she emerges in writing the dissenting opinion "as a forceful intellectual voice for the constitutionality of reasonable campaign finance regulation. . . . Kagan's dissent was caustic, accusing the majority of missing the point and the challengers to the Arizona law as full of chutzpah. . . . Kagan has emerged here as not only an intellectual leader, but a pugnacious, take-no-prisoners' writer on an issue about which she feels passionately. It is a welcome contrast to Justice Stevens' meandering dissent in Citizens United."

(3) "The last piece of good news is that the Court did not level a death blow to public financing laws. Instead, it said that the decision of cities, states, or Congress enact public financing is 'not our business.' The problem with Arizona's law was not that it gave public financing for elections to candidates, but that it pegged the amount of financing to the political spending of opponents or independent groups opposing the candidate. But lump sum payments should be okay."

Professor Hasen adds:

The big question left open is the fate of public financing programs such as New York City's, which give extra matching funds to participating candidates who collect small donations. This program doesn't directly violate the rule in today's Arizona case, because the amount received is not triggered by opponent spending. But the question will be whether the motive for such programs is to level the playing field. Under the Roberts Court's view of the First Amendment, such an interest remains verboten, even if, as Justice Kagan points out, the law also is justified on anticorruption grounds. Without something like additional matching funds, it is hard to see how governments will enact public financing programs that are both constitutional and attractive enough to candidates.

IN TODAY'S OTHER MAJOR COURT DECISION, ON
SHIELDING MINORS FROM VIDEO-GAME VIOLENCE . . .

The conversion of the First Amendment into a right-wing cudgel continues, as the Court struck down California's attempt to prevent sales of extremely violent video games to minors on First Amendment grounds, with ideological lines zigzagging all over the place. The vote was 7-2, and the justices in the "majority" seemed to be ruling on two totally different cases (about the only thing they had in common was their "yea" votes), while the minority consisted of the odd couple of Clarence Thomas and Stephen Breyer.

The assorted opinions seem mostly direct projections from the relevant justices' ids and superegos. Note, though, that in the end the decision follows the money. Companies wanna sell stuff, and the Roberts Court rarely gets between rich fat white guys and their quest for the Holy Buck.


ELSEWHERE ON THE JUDICIAL FRONT: DOES THIS
MEAN BLAGO'S OFF THE TALK-SHOW CIRCUIT?

Jury convicts ousted Illinois Gov. Rod Blagojevich of trying to sell Obama’s old Senate seat

by Associated Press, Monday, June 27

CHICAGO — Rod Blagojevich, who rode his talkative everyman image to two terms as Illinois governor before scandal made him a national punch line, was convicted Monday of a wide range of corruption charges, including the incendiary allegation that he tried to sell or trade President Barack Obama’s Senate seat.

The verdict was a bitter defeat for Blagojevich, who had spent 2½ years professing his innocence on reality TV shows and later on the witness stand. His defense team had insisted that hours of FBI wiretap recordings were just the ramblings of a politician who liked to think out loud. He faces up to 300 years in prison, although federal sentencing guidelines are sure to reduce his time behind bars. . . .

What? You mean the bastard's not going to serve the full 300 years? It's an outrage!

UPDATE: Raúl Grijalva Responds To Supreme Court's Narrow Pro-Fascist, Anti-Democracy Decision

Calling the decision “a troubling sign that wealth now decides how much free speech you get," Grijalva explained that it will reduce the number of qualified people running for office because they can no longer respond to barrages of attack ads with public campaign funds. According to Reuters, about two-thirds of Arizona state candidates use the current public financing system. “Who wants that many Arizonans to decide they can no longer ask for our votes simply because they’re not wealthy?” Grijalva said. He pointed out that the Arizona law in no way prohibits any individual or group from buying advertising or otherwise communicating a political stance or opinion. “All the state said was that money shouldn’t be the determining factor in an election, and today the Supreme Court decided otherwise,” he said. “It’s part of a larger pattern that began with the ideological Citizens United ruling, which has made it impossible to fix what ails our political process. As soon as you decide a corporation is a person, with all the rights we’re granted as free citizens, you’ve turned government into a contest of corporate interests versus popular interests, and corporations always have more to spend than individuals.”

Grijalva said the logic of today’s decision is more about who influences elections than a plain reading of the First Amendment. “While the court majority described this as a matter of free speech, we should talk about the real issue: corporate control of the political process,” Grijalva said. “Working people’s voices continue to be drowned out by well financed corporations with expert marketing strategies. The Framers of our Constitution never meant for wealthy companies or individuals with their own agendas to drown out the rest of us in public debate, especially not by outspending us.”

The dissenting opinion points out that the victorious plaintiffs in the case “ask this Court to prevent Arizona from funding electoral speech-- even though that assistance is offered to every state candidate, on the same (entirely unobjectionable) basis.”

#

Sure, the election makes things even worse for the federal judiciary, but we knew that going in, didn't we?

by Ken

On the most obvious level, if this White House couldn't get its judicial nominees confirmed by the Senate with a majority ranging, at least theoretically, from 58 to 60, what do you suppose the odds are now? Especially now that the Party of No has proof positive that Obstruction Works™. Basically, the administration's way of standing by its picks has been more or less like an especially craven trick-or-treater's: ring the doorbell and then run like hell. At least the trick-or-treater maybe has that trick up his sleeve. At the slightest sign of confirmation opposition, the Obama White House's Rahm-tested technique is to cut and run for dear life, and if anybody asks, we never heard of the poor bastard.

Then when it comes to the higher-level judgeships, the Obama administration has been so cowardly that it's scary to imagine those people going into truly "defensive" mode. It goes without saying that Supreme Court Justices Sotomayor and Kagan represent infinite-orders-of-magnitude upgrades over anything we could have expected to come out of a McCranky administration, or than we can expect to come out of, God help us, a Romney or Palin or Beck administration. These are perfectly competent legal people, and I wish them long and honorable service.

At the same time, as far as we can tell, they represent considerable pullbacks to the legal center from the justices they replaced, Souter and Stevens. Partly this is the apparently standard Obama "negotiating" strategy of setting an initial negotiating position by splitting the difference and then giving away whatever is left. Partly it reflects the president's apparently basic right-of-center orientation. Do we have any reason to believe that anyone in a position of decision-making power wanted a justice more committed to the traditional liberal understanding of constitutional values?

Meanwhile, the confirmation process has become worse. It's now totally under the control of the Right. No, they didn't put up much of a fight, but then, why should they have? Sotomayor and Kagan were replacing justices who were already outside their sphere of influence. In all likelihood would be less pesky from the right-wing standpoint than their predecessors were in their very different ways, but the fact is that as long as the High Court's hard-core extremist majority holds, the minority justices are pretty much irrelevant, except insofar as each of them, because they have actual principles, will occasionally be picked off to support the extremist majority.

REMINDER: IT WASN'T LIBERAL JUSTICES
THAT SOTOMAYOR AND KAGAN REPLACED

I think it's important to restate at every occasion that we're not talking about replacing liberal justices. As much as I respect the sitting centrists on the current Court, there hasn't been a liberal jurist among them since the retirements of William Brennan (1990) and Thurgood Marshall (1991).

The reality for the present and foreseeable future is that no liberal can ever again be considered for the Supreme Court.

So while the truly loathsome creatures who occupy the Republican seats on the Senate Judiciary Committee (my goodness, what a bunch!) now have the confirmation process entirely on their terms; the ground rules are now fixed and unchangeable:

(1) No candidate farther left than dead center can ever again be given consideration of any sort, whereas no limit of rightwardness exists.

(2) No nominee can be confirmed without pinky-swearing allegiance to the right-wing booby-mantra of "just applying the law," thereby guaranteeings that anyone who comes out the other end of the process must by definition be either a liar or a legal ignoramus, because anyone with the legal qualifications to, say, watch The Good Wife, let alone sit on our highest court, has to know that "just applying the law" is literally meaningless.

It still seems to me that the next Supreme Court justice to need a replacement is going to be Justice Ginsburgs. The fact is that no meaningful change in the Roberts Court can be hoped for until once of the extremists justices depart, and there seems no immediate prospect of that. When it happens, though, the new rules of selection and confirmation are going to come into play, savagely.

Of course the judicial arbiters of the Right have now made it crystal clear that with judicial appointments, as with everything else in American political life, lying is not only permissible but mandatory, as long as the lies are right-wing ones. The previous two nominees, John Roberts and Sammy Alito, blithely lied their way through their kid-gloves confirmation proceedings. Far from "just applying the law," they have set out to systematically rewrite the Constitution.

Most of us have had a general sense of the extremist block on the Court, apparently now under the personal management of Chief Justice Roberts, has gone about its work of writing a new Constitution. We've seen, in such well-publicizied instances as the gun rights cases and the Citizens United decision legitimizing unlimited corporate cash for election-buying, the broad strategy: deciding what portions of the Constitution or exististing judicial precedent -- which Roberts and Alito swore to respect (ha ha!) -- they wish to rewrite, then finding the cases and instructing the litigators how the cases are to be argued, and of course then abandoning the old-fashioned principle of deciding cases on the narrowest legal grounds necessary for a decision.

Now, however, it turns out that this is only the public face of what Roberts et al. doing, and literally the least of it. My attention has only been directed to and Oct. 4 Slate piece by Barry Friedman and Dahlia Lithwick, "Watch as We Make This Law Disappear," we've gotten a glimpse of the magician-like skills being perfected the the Roberts Court to perform their wholesale constitutional rewrite while keeping it mostly hidden, following the great insight developed by the right-wing think tanks that in much of our political life it's perception that matters rather than reality.

It's a piece that no one with any interest in our system of judicial review can afford to miss. We're going to need to talk about it, I hope over the weekend.

#

That smart Ruth Marcus raises questions about "the McConnell standard" for judicial confirmations

Did you know that Our Miss Mitch has a "standard"?

by Ken

Really, don't we all tend to judge people's smartness by how well they agree with us? You know, like with that smart-as-a-whip Ruth Marcus and her excellent Washington Post column today, "Broken confirmation: High court nomination process gets worse."

I know I've suggested that our Ruth always gives me the hermetic, locked-away-from-reality feeling of being locked up in the attic -- you know, like the first Mrs. Rochester in Jane Eyre. Still, sometimes the view from the attic is, er . . . well, okay, there's some of the usual silly pseudo-Olympianism to be bitched about, but all the same, our Ruth makes some nice points about a subject dear to my heart: the possibly fatal final corruption of the Supreme Court confirmation process.

Ever the even-hander, Ruth starts out by noting that Elena Kagan "did not live up to the Kagan standard of openness in answering questions during her confirmation hearing," even though Kagan herself has answered questions about that, and it's actually been discussed quite a lot, as for example Ronald Dworkin did ever so thoroughly in the NYRB piece I referenced in the above post. More interesting, though, is the next charge: "Mitch McConnell did not live up to the McConnell standard of deference in voting against her."

The McConnell standard? I'd never heard of it, either, but in a recent session with reporters, the Senate minority leader mentioned that he had once written a law review article outlining the respect the Senate should show to a president's choice of Supreme Court nominee. The Kentucky Republican sounded wistful, almost sheepish, as he acknowledged how far the Senate, himself included, had departed from the standard he once set out.

"It will always be difficult to obtain a fair and impartial judgment from such an inevitably political body as the United States Senate," McConnell wrote in the Kentucky Law Journal. "However . . . the true measure of a statesman may well be the ability to rise above partisan political considerations to objectively pass upon another aspiring human being."

That was 1971, when McConnell was a young staffer for Sen. Marlow Cook (R-Ky.) and the Senate had just rejected two of President Richard Nixon's Supreme Court nominees -- Clement Haynsworth and G. Harrold Carswell -- before finally confirming Harry Blackmun.

But times have changed -- and not for the better. The deterioration has been both sudden and precipitous. "I voted for Breyer and I voted for Ginsburg, and I applied the standard that I had written in my law journal article in 1971 that basically the president won the election and if the person was not mediocre or obviously unqualified then we ought to have a less assertive role," McConnell said at a breakfast last week sponsored by the Christian Science Monitor.

Justice Stephen Breyer was confirmed by a vote of 87 to 9. Justice Ruth Bader Ginsburg was confirmed 96 to 3. As recently as 2005, Chief Justice John Roberts was confirmed 78 to 22, with the support of 22 Democrats and one independent.

Apparently Ruth was allowed out of her attic to attend the Monitor breakfast, and it set her to thinking about the confirmation process, which she argues "has been degraded into a partisan political fight, in which senators of each side line up, with a few odd defections, with their own party. Justice Samuel Alito received only four Democratic votes. Sonia Sotomayor had the backing of just nine Republicans. Kagan got only five."
Now comes that outburst of Ruthian, "on the one hand, on the other hand" even-handedness :

The debate about who is to blame for this unhealthy state of affairs is as tangled and as contested as any tribal battle over territory. Republicans argue that Democrats fired the first shot with filibusters of lower-court nominees. Democrats say they were forced to extreme actions by the extremeness of George W. Bush's judicial nominees, and that in any event Republicans have since taken it up a notch. Or several.

I find the whiny, they did it first debate as unconvincing from bickering senators as it is from bickering children. I don't care who started it. What concerns me is the corroded state of the confirmation process and the prospect of worse to come.

Except that by her own testimony, there is a difference between the Democratic and Republican contributions to this ugly new reality "of near automatic opposition to the other party's nominee"

Voting against Robert Bork was one thing; voting against Elena Kagan quite another. Bork's judicial philosophy was demonstrably outside the mainstream. There is nothing in Kagan's background that came close.

Ruth took advantage of her breakfast breakout to solicit testimony from the horse's ass's mouth:

"The process has become more political," McConnell acknowledged. "But Senate Republicans didn't set the standard. Senate Democrats . . . put us in the position that we're in, and it's very hard for me to make the argument to my members, this new standard having been established, you should ignore it."

Or, as he told me after the breakfast, "We are where we are."

Um, what? Miss Mitch, Miss Mitch, you're fading on us. Ruth won't let you get away with this, you naughty thing:

Actually, we are only where we are because senators -- on both sides -- who know better have chosen not to speak out. It's too tempting not to quote McConnell again: "The true measure of a statesman may well be the ability to rise above partisan political considerations to objectively pass upon another aspiring human being."

Of course this wasn't exactly my cause for concern regarding the broken-beyond-repair confirmation process. My concern was that the Right has gotten its hooks in, and now all nominees must profess loyalty to the right-wing-approved, though utterly fraudulent standard of "just applying the law."

Of course to our Ruth that would be pointing a finger of blame, an impermissible deviation from the "on the one hand, on the other hand" standard.

#

Who'll Stand Up For Regular American Working Families?

Worth fighting for?

Do you ever imagine you're a senator? I don't. I was in the student Senate in college; never need to do that again. It was more fun being an executive. (I was freshman class president and chairman of the Student Activities Board. That's where the action was.) But sometimes I do think about how I would vote on one thing or another. Before the senators left for their August holidays, the very last vote was on President Obama's nomination of Elena Kagan. It passed 63-37, five Republicans-- Susan Collins (ME), Lindsey Graham (SC), Judd Gregg (NH), Dick Lugar (R-IN), and Olympia Snowe (ME)-- crossing ye olde aisle. And yesterday she was sworn in, only the 4th woman ever-- out of a total of 112 Justices-- to serve on the Supreme Court.

Would I have voted for her confirmation? Or would I have joined reactionary asshat Ben Nelson (NE) crossing the aisle in the other direction? Nelson voted against her so in case she ever votes to uphold women's right to choice, he can go braying to his backward constituents that he voted against her. I would have been hard-pressed to vote for her, because I'm not convinced she realizes that corporate interests are undermining America and that they're the most pernicious enemy our nation faces. I'd rather vote to confirm someone who does... like Thom Hartmann.

I imagine in the end I would have held my nose and voted to confirm, hoping-- still hoping-- Obama's 14-dimensional chess was going to somehow add up to something good for the good guys... one fine day. Unlike Chris Dodd, though, where I'd really be putting my energy would be into getting Elizabeth Warren confirmed as head of the Consumer Financial Protection Bureau, the body she thought up. Dodd thinks it isn't worth the battle. He's incorrect. There's some thought that she's too much an advocate for working American families and that it wouldn't be fair to Wall Street and the bankers. I guess that would be more true if Wall Street didn't own the Senate, the Republican Party, half the Democratic Party, the Blue Dog Caucus, much of the House, most of the Supreme Court, the Department of the Treasury, virtually all of the federal and state agencies dealing with them and, of course, nearly as much of the White House as it owns during an average Republican administration. Go, Rahm!

The New Republic’s Noam Scheiber wrote that “after surveying a dozen insiders over the last few days-- congressional aides, industry officials, progressive activists, and a few administration officials-- I’ve concluded that the odds are good that Warren would be confirmed if nominated by the White House.” And Dodd now seems to have shifted his rhetoric, saying that even if Warren is confirmable, it’s not worth a potential fight to get her the job: "What you don’t need to have is an eight-month battle for who the director or the head or chairperson of this new consumer financial protection bureau will be."

...Leaving aside Warren’s qualifications, it makes little sense that Dodd feels a political fight here isn’t worth it. Warren is an unabashed, articulate consumer advocate, and her nomination would set up a clear choice: consumers or the banks. After having overwhelmingly voted against the Dodd-Frank Wall Street reform bill, Republicans standing against her nomination would once again be siding with the financial services industry. It’s worth the fight to show that dynamic at work.

Dodd's friends-- and probably future employers-- on Wall Street will do anything to stop Elizabeth Warren. I doubt, considering how much they've paid Rahm Emanuel over the years, they'll have to do much. She does have Al Franken, Dr. Phil and Stephen Colbert pumping for her, though. Oh, and every honest member of the Senate, though that doesn't amount to too, too many. Just the handful who always favor consumers and workers: Barbara Boxer, Sherrod Brown, Jeff Merkley, Bernie Sanders, Sheldon Whitehouse, Ron Wyden, Tom Harkin, yadda, yadda, yadda, instead of who Boehner and McConnell call the "job producers" (like Lloyd Blankfein and Paris Hilton-- i.e., rich people who buy politicians their careers).

Dr. Phil is getting political.

TV's best-known shrink is endorsing Harvard economics professor Elizabeth Warren -- a frequent guest on his show-- to be the first federal consumer-protection czar.

"I could not more strongly support Professor Warren's appointment to head up this new bureau," he wrote on his personal blog under the headline "Elizabeth Warren: Fighting for Consumers"

"But you don't need me to tell you how to feel about her," he says.

It is an unusual departure for Dr, Phil, who has been close to fellow-Texans former President George W. Bush and wife Laura, but has never come out publicly for a political candidate before.

..."As you know, I don't talk politics on this blog or on the show," Dr. Phil wrote, but then went on to urge fans to "write or e-mail your congressperson and tell him or her how you feel. Washington DC is always up to something, but this one counts!"

The Colbert Report	Mon - Thurs 11:30pm / 10:30c
Consumer Protection Agency - Barney Frank
www.colbertnation.com
Colbert Report Full Episodes 2010 Election Fox News

Ronald Dworkin argues that Supreme Court nominees could "educate the public in the political complexities of constitutional law"

NYU and University College (London) Prof. Ronald Dworkin

by Ken

That may have naughty of me, titling my post last night "On what basis might the rightward drag of the Supreme Court be arrested, or at least slowed?" without actually addressing that question. I did tone that head down, from something closer to "How might the rightward drag . . . ?"

The idea -- known only to me, of course -- was that I wanted to work toward the question of what we're going to have to do to so much as slow down, let alone arrest, the heavy extreme-right pressure being exerted by the Supreme Court's pack of out-of-control far-right-wing zealots.

When Sonia Sotomayor was nominated and confirmed to the Court, I voiced my extreme distress, not at her qualifications or likely service, but at the indications from the process of selection and subsequent willful mischaracterization, that a moderate like Judge Sotomayor was now as close as we could ever come to a truly liberal Supreme Court justice -- and even someone as centrist as she is was acceptable only because she had the political cover of being the first Latina appointee.

It's the Right-Wing Noise Machine that makes it possible, of course. In the same way that a right-of-center moderate like Barack Obama can be called a socialist without any recognition of the preposterousness of the notion, any judicial nominee to the left of, say, Robert Bork can now be branded "an extreme left-winger," and nowhere in the Infotainment Newsmedia is there even a hint of pushback, whereas zealots as extreme as John John Roberts and "Sammy the Enforcer" Alito can masquerade as centrists and nobody so much as cracks a smile of incredulity.

I don't see how this can ever be changed without a broad-based attack on the faux-centrist media and pols who choose to give it cover. Especially because the issues are so easily distorted for public consumption, since the general public has near zero-comprehension of anything the federal judiciary does.

Above all, this means that the Far Right has gotten away with defining the American legal spectrum as a divide between judges who "just apply the law" on their side and "activist judges," with of course proper respect for God's law, on the other side who rule based on their extreme-left biases, not to mention other abominations like "foreign law." And they get away with this mischaracterization despite the fact that there isn't a grain of reality or truth anywhere in this tissue of bare-faced lies.

There is, of course, no such thing as a Supreme Court justice "simply applying the law." If the matters at issue could be resolved by simple application of the law, the case would never have reached the Supreme Court. This seemingly simple bromide in fact represents a misunderstanding of American law and the U.S. constitutional system so profound as to be all-encompassing, which means that the people who propagate it are either judicial nitwits or garden-variety liars.

We had a flurry of hope for a fundamental shift in the confirmation process in June ("Is there a glimpse of daylight beyond the 'Let Them Eat Guns' Roberts Court?"), when it was suggested that Sens. Sheldon Whitehouse and Al Franken planned to redirect the questioning "to put the right of citizens to challenge corporate power at the center of their critique of activist conservative judging, offering a case that has not been fully aired since the days of the great Progressive Era Justice Louis Brandeis." This turned out to be a false alarm. It may be that it happened and the Infotainment Newsers didn't notice, which would be the same as it just not happening.

The message I got from this round of confirmation hearing is that in addition to the Far Right now having veto power over the allowable deviation from center in a Supreme Court nominee, Lying Right has now formalized the frame that confirmation hearings exist to distinguish between judges who will "just follow the law" and (boo! hiss!) the other kind, the liberal activists. So if you're a right-wing wacko like Roberts or Alito, you have license to lie your lying head off at confirmation about just following the law, so that once confirmed you can set about reducing the Constitution to toilet paper in accord with your own crazed white-male-establishment zealotry, while if you're anywhere to the left of right-wing wacko, you will be trashed as a "liberal activist."

You'd think that ideological hacks like Sens. Orrin Hatch and Jeff Sessions, feigning such concern for judicial experience in a prospective Supreme Court justice, would be citing as a cautionary tale the career of the therefore-manifestly-unqualified William Rehnquist. They might even want to agitate for invalidating every Court ruling in which his vote counted toward the majority. I'm not going to hold my breath, though.

Justices Ruth Bader Ginsburg and Anthony Kennedy were on hand for yesterday's White House celebration of Justice Kagan's swearing-in, which took place today.

Now, I'm not blaming Elena Kagan for following the now-obvious strategy of going along with the charade and in the process saying nothing about her own concept of jurisprudence. She would have been crazy to do anything else. And Prof. Ronald Dworkin makes just this point in the New York Review of Books piece I mentioned last night, "The Temptation of Elena Kagan," in the August 19 issue.

It was predictable that Kagan would follow this now well-trodden path. She knew that if she disclosed nothing she would soon be a Supreme Court justice for life. If, on the contrary, she was even slightly more adventurous, there was a good chance she would not be confirmed. If she showed herself sympathetic to abortion rights or unsympathetic to gun rights, for instance, Republicans and conservative Democrats would feel bound to join a filibuster to sink her.

The committee senators, for their part, had no reason to press her to be more forthcoming. Democrats had no wish to endanger her appointment, which would be a terrible defeat for the President, and Republicans had no wish to contradict their own repeated and ludicrous declarations (cheerfully endorsed by their recent nominees, Chief Justice John Roberts and Justice Samuel Alito) that a judge can always decide what the law requires without calling on any moral or political convictions or any theory of social justice.

Nevertheless, as Dworkin notes, "[T]he Kagan hearings have been almost universally denounced as pointless and calls for reform have increased," and he proceeds to "review the hearings in some detail to consider how far that charge is justified and how confirmation hearings might be improved."

The Supreme Court is a very powerful political institution: justices are appointed for life and five of them can veto any decision, no matter how popular, of Congress or a state legislature. Only the Senate confirmation hearings offer the public a chance to participate in the process . . . [A]s Kagan pointed out in 1995, failure of disclosure undermines the public’s power to help choose.

Dworkin notes Kagan's explanation that she had been persuaded in a private meeting with Senator Hatch "that the 'balance' of her earlier statement was 'a little off,'" and so she would be pulling back from most of her former recommendations. He's not impressed by her argument "that she must not disclose her views about particular issues that might come before the Court because it would be injudicious and unfair to future litigants for her to publish her views in advance." He points out that the eight sitting justices "have expressed their opinions on a large variety of constitutional issues through their votes and their majority or dissenting opinions." However, he argues --

there is a genuine and important countervailing argument. It is crucial to the role Supreme Court justices play in our constitutional system that they be free and able to reject popular opinion—to overrule the wishes of the majority in order to protect individual rights. The individual rights that need protection are often unpopular; it would compromise that crucial role were the public able to defeat a nominee because he or she proposed to defend such rights.

He doubts that anyone who expressed concern for due process for suspected terrorists, or for the right to choose abortion, or for possibly recognizing a constitutional right to marriage equality --

could be nominated now or, if he were, escape a filibuster or outright defeat. So if nominees were as candid as Kagan proposed in 1995, and senators approved only those with very popular opinions, Americans might lose their traditional protection against majority selfishness, intolerance, or prejudice.

True, the right-wing phalanx of the Court has used its power to overrule the will of the majority in what strikes many of us as an indefensible and dangerous way: not to protect a vulnerable minority from majority indifference or hatred but to protect conservative interests and privilege from progressive legislation. Richard Posner, himself a conservative judge, recently wrote that four of the five most conservative justices since 1937 are together on the Court now: Chief Justice Roberts and Justices Clarence Thomas, Antonin Scalia, and Samuel Alito. Many lawyers believe it would have been better had Roberts and Alito been forced to disclose their real substantive intentions in their hearings because they would not have been confirmed if they had. Posner said of Roberts: “The tension between what he said at his confirmation hearing and what he is doing as a Justice is a blow to Roberts’s reputation for candor and further debasement of the already debased currency of the testimony of nominees at judicial confirmation hearings.”

Dworkin still thinks, though, that nominees "should certainly be pressed to discuss constitutional theory and political principle at a more abstract level.

As Kagan pointed out, judges may not declare that the Constitution’s requirement that senators be “thirty” years old really means “forty” because people live longer now. But some of the most important constitutional clauses are drafted in abstract moral language, such as the Fourteenth Amendment’s injunction that government must accord everyone the “equal protection” of the law. How can judges decide whether laws against consensual gay sex or gay marriage deny equal protection to homosexuals without deciding, for themselves, what equal citizenship means and requires?

He doesn't think much of the argument that judges can avoid imposing their own moral judgment by "find[ing] the right answers in history," applying "abstract moral clauses" according to either the intent of the framers or "practices and traditions embedded in American history." After all, "a judge must rely on moral conviction even to discover what history teaches."

Dworkin seconds the point made by Kagan herself, that the framers knew what they were doing when they chose to used abstract moral language rather than setting down precise rules, and cites her example of the 1954 Brown school-desegretation decision. "The Supreme Court did not change the Constitution, but only enforced its original meaning," even though the framers expressed no qualms about school segregation, and --

the Congress that adopted the Fourteenth Amendment itself segregated the schools of the District of Columbia from 1864 onward. The Court enforced the original meaning of the Fourteenth Amendment in 1954 because the framers laid down a principle that required the justices to decide for themselves whether segregation is consistent with equal citizenship and they decided, rightly, that it is not.

I hate to skip over what I consider Dworkin's irrefutable case against the argument that judges can judge from "history," either framer-type or traditions-and-practices-type. Goodness knows, that case needs to be made on a continuing basis, for the reasons I suggested above. At the time, as I pointed out, the fact that the explanation requires such detailed explanation means there isn't a chance in hell it will ever have the traction with the voting public of judges "just applying the law," in the same way that Justice Stephen Breyer's quite sensible case for "proportionality" as a way of weighing competing legal interests, to which I referred last night requires too high a degree of patience, sophistication, and to be frank interest to be followed by the general public, even though his approach, far from being "judge empowering" as critics charge, requires

a judge who uses such an approach [to] examine and explain all the factors that go into a decision. The need for that examination and explanation serves as a constraint. It means that the decision must be transparent and subject to criticism. Because the approach just illustrated can require the judge to accept reasonable legislative determinations of empirical matters, it is “legislator empowering”; not “judge empowering.” In the democratic society that the Constitution creates, legislative empowerment is a virtue.

(By the way, let me note again that the full text of the excerpt from Justice Breyer's forthcoming book, Making Our Democracy Work: A Judge’s View, published in NYRB as "On Handguns and the Law" isn't available free on the website, but I invite anyone who'd like to read it to let me know at kenfromdwt@aol.com. I had a terrific exchange with a reader who took me up on the offer, which I expect to report on in the near future.)

What then, does Dworkin think can be done about confirmation hearings?

[N]ominees should be required to discuss the larger issues of constitutional philosophy that I have mentioned: to provide a general account of how they propose to interpret and apply the grand but abstract clauses of the Constitution. This account might include, for instance, stating a general definition of what equal citizenship requires, what they take the purpose of the First Amendment’s free speech protection to be, and whether they are drawn to a majority-rule conception of democracy or a conception closer to that Justice Breyer defended in his recent book, Active Liberty. [Note: This is the justice's 2005 book, not the new one. -- Ed.] Skillful nominees can answer such questions without forecasting their own future votes in particular cases. In that way they can educate the public in the political complexities of constitutional law without compromising their protection of individual and perhaps unpopular constitutional rights.

Dworkin also suggests a change in Senate Judiciary Committee procedures.

It should appoint special majority and minority counsel, who might be academic specialists in constitutional law, to conduct a major part of the hearings, as other congressional committees do in other investigations. Senators will not of course deny themselves the opportunity to preen before constituents and to try to demonstrate (sometimes successfully) their own knowledge of constitutional law. But their television time could be reduced to give special counsel opportunity to press nominees in much more depth than senators can. This may not help much. But confirmation hearings remain the best and perhaps only opportunity to make constitutional law a matter of public interest and concern. That is a grand goal -- it would improve our democracy in many ways -- and we should miss no opportunity to pursue it.

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Is there a glimpse of daylight beyond the "Let Them Eat Guns" Roberts Court?

Solicitor General Elena Kagan listens to Senate Judiciary Committee members' opening statements as her Supreme Court confirmation hearings began today.

"Corporations hate juries. It's the one part of government you can't buy."

-- Sen. Sheldon Whitehouse (D-RI), quoted by E. J. Dionne Jr. in his Washington Post column today, "Whose Supreme Court is it?"

by Ken

It was Justice Steven's last day on the Court, and the day after Justice Ginsburg's husband died, but they were both on hand to watch their colleagues, the beasts-of-the-fields who now constitute its working majority pursue their brutish assault on the Constitution.

You figured the chief justice and his five-man Constitutional Rewrite Committee ("We make it up as we go") had some jolly mischief sitting on something big for the final day of this session, with four noteworthy cases still to be resolved. In fact, for a band of hooligans like these, it was kind of pathetic stuff. Apparently the "Let them eat guns" majority isn't secure enough to just say, "Anybody can buy a gun anytime he wants." Presumably to hold onto "Slow Anthony" Kennedy's vote, they left open the possibility that jurisdictions actually can set limits on gun ownership.

You can see the thinking, though. "We are by God the Supreme Court, and what was the point of our rewriting the Second Amendment if we can't damn well make sure every goddamn court in the land enforces out new version making gun ownership a 'feel good' unrelated to any of language of the pedantic old version [i.e., "the written text"] of the amendment?" No doubt the dears are trying to pour some concrete around their flimsy Second Amendment rewrite to protect it from being treated as cavalierly as they themselves have been treating judicial precedent the next time the Court has a sane and legally responsible majority. I like to think, though, that the rulings of the Roberts goons are being preserved on toilet paper, so they can all be quickly and unceremoniously flushed down the crapper when the time comes.

Worse still, Slow Anthony went off the reservation altogether, joining the Court's four Communists, refusing relief to the Christian bigots who think they're entitled to university funds to pursue their bigotry. And nobody can really figure out what the Supreme goon squad said about patent limits.

Meanwhile, the confirmation hearings for Elena Kagan's nomination to replace Justice Stevens got off to a predictable start.

Republican senators questioned Monday whether Elena Kagan can be an impartial Supreme Court justice, displaying the partisan divide of the Senate Judiciary Committee as it began its confirmation hearing on Kagan's nomination to the nation's highest court.

While the panel's seven Republicans used their opening statements to challenge Kagan's judicial experience and ability to put aside personal politics, the 12 Democratic members praised Kagan's qualifications and welcomed her possible presence on a court they criticized for what they called conservative activism.

But if you're in the market for some political good news, E. J. Dionner Jr. says we should keep an eye on Senators Sheldon Whitehouse (D-R) and Al Franken (D-MN). He says they intend to have these hearings "mark a sea change in the way liberals argue about the judiciary."

Democratic senators are planning to put the right of citizens to challenge corporate power at the center of their critique of activist conservative judging, offering a case that has not been fully aired since the days of the great Progressive Era Justice Louis Brandeis.

It was Brandeis who warned against the "concentration of economic power" and observed that "so-called private corporations are sometimes able to dominate the state."

None of this should affect Kagan's confirmation, Dionne argues, except perhaps in a positive way. "Unless we live in an age of partisan double standards, she can't be asked to be any more forthcoming about her views than were Chief Justice John Roberts or Justice Samuel Alito." Oh, nothing apparently can stop Little Jeffy Sessions from making his squeaky little jerk noises (if he were your pet cocker spaniel and you took him to a vet, the vet would tell you it's time to let the poor creature go to peace), surrounded by fellow Republican members of the Judiciary Committee who are apparently themselves too far gone to be properly mortified that they even know, let alone are known associates of, the little cartoon character. Nevertheless, says Dionne, Kagan "will be approved easily, and should be." (See Charlie Savage's NYT report, "Kagan Promises Impartiality as Hearings Open.")

But E.J. says the good guys are going to set about changing the confirmation agenda.

[I]f Kagan's job is to get confirmed, the task of progressive members of the Senate Judiciary Committee is to reverse the effects of years of conservative propagandizing over the stakes in our debates about the nation's highest court.
They will be pushing the narrative away from the hot-button social issues that have been a distraction from the main game: the use of the Supreme Court as a redoubt against progressive legislation, the right of plaintiffs to call corporations to account before juries and the ability of the political system to protect itself against corruption.

If Whitehouse and Franken have their way, upcoming rounds of judicial confirmation hearings may follow a markedly different script, even if it means Little Jeffy will throw the tantrum to end all tantrums. (Is that different from what he's doing now?)

Whitehouse, formerly his state's attorney general, was one of the most outspoken voices during Justice Sonia Sotomayor's hearings last year. He battled -- largely in vain -- against Republican efforts to turn the hearings into a rally on behalf of a definition of "judicial restraint" that would have judges approve whatever items happen to be on the conservative agenda.

It's amazing how often conservative judges use the "original intention" of our Founders to conclude that Jefferson, Hamilton and Madison were simply card-carrying members of the American Conservative Union.

This time, Whitehouse told me, he plans to focus on how conservative courts have limited plaintiffs' rights to challenge corporations before juries by restricting the right to sue and on the evidence that can be brought into play.

"Corporations hate juries," Whitehouse said. "It's the one part of government you can't buy." He will link this argument with a challenge to the Supreme Court's appalling Citizens United decision, which gives corporations virtually unlimited rights to spend money to influence elections. Invoking the baseball-umpire metaphor made popular by Roberts, Whitehouse observed that "corporations have a different strike zone in the Supreme Court than regular people."

Franken previewed his approach in a powerful speech to the American Constitution Society this month that has made conservatives unhappy. Franken argued that the right has dominated the judicial debate by suggesting that "the Court's rulings don't matter to ordinary people" through a focus on cases involving late-term abortion, flag-burning and pornography.

The time has come, Franken said in an interview, for progressives to recognize that Roe v. Wade has distracted attention from what is now at the heart of the judicial controversy: the ability of individuals to assert their rights against corporations.

"If you use a credit card, if you work, if you drink water, you're affected by the court," he said. "Roe is important, but there's this whole other area we weren't talking about."

In his speech, Franken cited a long list of conservative rulings that powerfully affected average citizens: decisions against shareholders' rights, against workers fighting for their pensions, against small-business owners battling price-fixing, against environmentalists trying to protect wetlands -- and, note well, in favor of Exxon when it capped punitive damages for the Valdez oil spill.

How will this argument affect Kagan? It puts her in a perfect position to tell Republican senators what they claim to want to hear: that she is resolutely opposed to "legislating from the bench."

At this moment, those words would signal her refusal to join a conservative majority on the court determined to enhance the power of private corporations and to undermine the right of our government's elected branches to legislate and regulate in the public interest.

For once, that sounds like a plan to me.

#

What Will We Do If We Get A Gay On The Supreme Court? Or Someone Who Wants To Sleep With A Goat?

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Confirming Elena
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Many Americans are probably perplexed about why conservatives seem so hysterically concerned about Elena Kagan's sexual orientation. Fox and the rest of Murdoch's GOP media empire has gone so far to help its low-IQ viewers draw the conclusion that a dumpy unmarried woman who plays softball must be a lesbian. (One can only imagine what they would have to say about the incredible and brilliant progressive running for Congress from Salt Lake City!) Unmarried women-- especially ones with an inconvenient independent streak who refuse subservience to a patriarchal social organization-- have always been suspect, going right back to the Salem Witch Trials (1692-3).

Could anyone in the Senate be stupid and bigoted enough to care about this Fox-ring circus? In 1985-- and again in 1986-- Alabama Republican Jefferson Beauregard Sessions III was rejected for a District Court appointment by the Republican-controlled Senate because of his blatant racism-- he once told an African-American Assistant U.S. Attorney to "be careful what you say to white folks"-- and his relationship with the Ku Klux Klan. One of the Republicans voting against Sessions' confirmation was Arlen Specter so it was with immense gusto that another vicious racist, Miss McConnell (R-KY), appointed Sessions the ranking minority member of the Senate Judiciary Committee when Specter switched parties last April and gave up that position. No one had to tell Sessions to let his bigotry run wild against President Obama's judicial nominees. It comes very naturally to him.

Having railroaded Abe Fortas off the Supreme Court, Richard Nixon sought to emphasize his much-touted Southern Strategy with two consecutive Supreme Court nominations of purposefully below par candidates. It didn't matter how mediocre and unqualified Clement Haynsworth of South Carolina and G. Harrold Carswell of Florida were; it only mattered that they were Southerners and extreme conservatives. Haynsworth was a die-hard segregationist and anti-union fanatic (as well as-- being a conservative-- a crook). When he was defeated in November 1969, 55-45 (with 38 Democrats and 17 Republicans voting against him), Nixon went bonkers... and then doubled down with an even worse nominee.

Just 7 months after being confirmed as a Court of Appeals Judge, Carswell was nominated by Nixon-- almost spitefully, daring the GOP-controlled Senate to reject two in a row-- to the Supreme Court seat Haynsworth was deemed not good enough for. Haynsworth was a pillar of wisdom compared to Carswell whose most notorious defender, Nebraska senatorial nitwit Roman Hruska, sought to help his foundering nomination by declaring "Even if he is mediocre, there are a lot of mediocre judges and people and lawyers, and they are entitled to a little representation, aren't they?" It didn't help, especially when he threw in the little anti-Semitic slur at the end: "We can't have all Brandeises, Frankfurters and Cardozos."

Carswell's confirmation hearing showed him to be a bumbling judge, an unrepentant segregationist and a die-hard misogynist. 38 Democrats and 13 Republicans voted against him and his nomination went down in flames-- 51-45. Carswell was a typical Republican closet queen and went on to be arrested several times in public toilets trying to have sex with uninterested men. He was eventually arrested and convicted of attempting to perform fellatio on a policeman. I don't know if he was a softball player or a hardball player but later-- at around the same time Kagan is being accused of playing lesbianic softball-- he was beaten up by some redneck he had lured back to a motel room.

In his most recent book, Nixonland, Rick Perlstein documented Nixon's reactions to his dual defeats:

"I have reluctantly concluded-- with the Senate as presently constituted-- I cannot successfully nominate to the Supreme Court any federal appellate judge from the South who believes as I do in the strict construction of the Constitution. Judges Carswell and Haynsworth have endured with admirable dignity assaults on their intelligence, their honesty, and their character...

"But when all the hypocrisy is stripped away, the real issue was their philosophy of strict construction of the Constitution, and the fact that they had the misfortune of being born in the South... I chose them because they were both men of the South... I understand the bitter feelings of millions of Americans who live in the South about the act of regional discrimination that took place in the Senate yesterday. They have my assurance that the day will come when men like Judge Carswell and Haynsworth can and will sit on the high court."

Nixon then pivoted into trying to drive the most liberal-- and brilliant-- judge, William O. Douglas, off the court with the help of two conservative corporate shills, Republican clod Jerry Ford and vicious Dixiecrat Joe Waggonner. Meanwhile, his assurance that "the day will come when men like Judge Carswell and Haynsworth can and will sit on the high court" has certainly come true. The court is now dominated by mediocre, highly partisan corporate conservatives like Sam Alito, Clarence Thomas, Nino Scalia, John Roberts and Anthony Kennedy-- including a Southerner, Clarence Thomas, and a closet case (now retired), David Souter. You'll know the whole American experiment has failed when we finally do end up with one like Sessions though.

The Kagan nomination: Tom Tomorrow draws lessons from parallel worlds that are almost as goofy as ours

I'd still like to believe in the optimistic view of Elena Kagan promoted by Larry Lessig, as a progressive and a go-getter who's going to whip the Court into shape, but hey, I don't know, and I have a feeling that isn't who the president thinks she is either. But then, as I keep pointing out, I rarely have much idea what the president is thinking, except when it's clear that he's called on Master Rahm Emanuel to bring out the scientific measuring equipment to locate the absolute center of a political issue -- and never mind that, because of a failure of error correction in that equipment, it usually fails to adjust for the rightward flight of the mythical "center," which these days is usually found, according to the instruments, trapped in a canyon that was once labeled "Far Right," where even onetime Mr. Conservative Extremist Barry Goldwater rarely visited. -- Ken

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An essential case in support of Elena Kagan's suitability for that Supreme Court seat

Could Justice Kagan, say, bring Anthony Kennedy to his senses?

by Ken

In my opinion, any aspersions henceforth cast on the suitability of Elena Kagan for the Supreme Court need to be cast in acknowledgment of a crucial case made on HuffPost on her hehalf a couple of weeks ago, when she was merely on the short list for the nomination, by Lawrence Lessig ("A Case for Kagan"), who is unapologetically clear that she's a longtime friend as well as colleague and even, at Harvard, boss.

I've made it pretty clear that I'm in the agnostic-at-best camp regarding the brilliant but (the way I see him) slick and shifty Lessig, and in this very piece he describes two grindingly dismal ideological hacks, his old Chicago chums Richard A. Posner and Cass Sunstein, as respectively "perhaps the greatest judge of our time" and "possibly the brightest legal scholar of our time." (Does the Chicago climate somehow lend itself to ideological crossdressing?)

With regard to the progressivism of his old pal Dean Kagan's beliefs, the self-described "liberal" Lessig offers this decidedly quicksandy paragraph:

The Kagan I know is a progressive. But we should be careful about precisely what that term means today. Constitutional law has been affected fundamentally by the work of scholars and judges such as my former boss, Justice Scalia. Their influence has plainly reoriented constitutional law to ask not, "What would be the best answer?" to any particular question, but instead, "What is the answer of fidelity?" Or again, what is the answer that most faithfully applies the law of the different generations of our Framers -- the Founders, the Civil War Republicans, and the Progressives at the beginning of the last century. I'm not sure that "liberals" on the Court have always accepted this framing. Certainly Douglas and Holmes didn't feel themselves so constrained. And I can see how many wonder whether some of the more prominent liberals since the Warren Court have accepted this framing either. But among those who do accept that the charge of a judge is interpretive fidelity, there are progressives and conservatives. Diane Wood's opinions plainly mark her as a progressive. Justice Thomas is plainly among the conservatives. The Kagan I know is with Wood in her views about what the constitution means. She is with both Wood and Thomas in believing that it is the Framers (and again, every generation of them) whose views, as expressed in the text of the Constitution, a judge should apply.

Nevertheless, nevertheless . . . I never suggested the guy isn't wicked smart, and he's got some seriously important points to make. For the record, though, he's well persuaded via that long acquaintance of the progressivism of her views, and later in his piece he devotes considerable attention to the supposed documentation of Kagan's nonprogressive views, which he argues are merely "inferences that suggest a different Kagan" but that fail to distinguish between what her own views might be an the requirements of the roles she occupied at the times in question, as an adviser to President Clinton, for example, where the context was his agenda, or as the dean of a major law school, where she was required to represent the collective will of the school, or indeed now as solicitor general, who "is not philosopher in chief" but is hired " to defend the government so long as a defense is constitutionally plausible." In effect, he's suggesting that a fictional Elena Kagan has been created from these serially inappropriate inferences, and I'm inclined to agree that the people who have already condemned her really know next to nothing about her.

Of course for the point Lessig is about to make we need to be satisfied about her progressive bona fides, but it's such an interesting and potentially decisive point that I think it needs aat least to be heard:

I believe there's an aspect to Kagan's experience that sets her apart from others on the short list. Kagan has had practical strategic experience. Her most important work over the past two decades has been in contexts where she has had to move people to see things as she did. And through that experience, she has developed a sixth sense for the strategy of an argument. She matches that insight with a toughness that can get what she wants done. That doesn't mean triangulating. It doesn't mean "compromise." It means finding a way to move others to the answer you believe is right.

This is the single feature the liberal side of this conservative court lacks most. Even Justice Stevens was too quick to run off to a corner to write his universally brilliant dissents from insane majorities. Breyer too too often seems content in his law professor way to write an opinion that sounds good when read aloud to himself, but in light of the evolving jurisprudence of the Court, is tone deaf to the view of others. Too many of our progressive colleagues swing for the bleachers of history, rather than victories now. Too many are content with simply knowing that their liberal law professor friends are busy praising their opinions in constitutional law classes rather than fighting to find a way to split the ideologues on the right with their own principles and rhetoric.

Again, I'm not talking about triangulating. The point is not that we need someone who knows how best to compromise. The point instead is that we need a justice with the energy and strength to use the legal materials provided by the other side to advance the right answer.

And he backs this up with a case that he himself argued and lost in the Supreme Court, Eldred v. Ashcroft.

The issue in that case was Congress' power to extend the term of existing copyrights. We argued (and historians in the case confirmed) that these repeated extensions (11 times in the prior 40 years) were inconsistent with the Framers' understanding of a clause that gave Congress the power to grant copyrights "for limited times." Nonetheless, seven justices upheld the extension, with the five conservatives sitting silent in the face of an originalist argument about how Congress was exceeding its enumerated powers -- just the sort of argument that seemed to excite those 5 conservatives, at least when the underlying issue was, well, conservative.

Stevens and Breyer dissented. But neither even tried to engage the conservatives on the other side. Stevens can be forgiven for that; after thirty years, a justice has the right to simply state his or her beliefs. But Breyer had no such excuse. His opinion read more like an article in an economics journal: brilliant, and right, but adopting a method of reasoning that literally no one else on that Court was going to follow. No doubt, if you think you're writing for history, that's fine. But if you're trying to leverage argument to get 5 votes for the right answer, this sort of opinion is simply self-indulgence.

Breyer's weakness points to a general weakness in appointing law professors to high courts. We law professors -- especially at places like Harvard or Yale -- spend too much of our time worrying about abstract right, not practical right. We're skilled in working out the very best theory. We're not very good at figuring out how to engineer an argument to the best result. We're the opposite of a politician, though we have just as many sins: Politicians care too little about what is right, and too much about getting the deal. Law professors care too much about what is right, and care too little about the strategy for getting what is right. No law professor praises Earl Warren (who engineered arguably the most important opinion of right in the 20th century -- Brown v. Board of Education), or even Brennan with true feeling. The real heros are the great dissenters -- Holmes most prominently.

Lessig drives the point home with the effortless eloquence and piercing debating skill that are the delight of his fans and the caution of us not-persuadeds:

[T]he core of Kagan's experience over the past two decades has been all about moving people of different beliefs to the position she believes is correct. Not by compromise, or caving, but by insight and strength. I've seen her flip the other side. Those were the reports of her work inside the Clinton administration (Clinton's nickname for her: "Judge"). Many describe her success at remaking a radically diverse law school (the Harvard I've returned to is not the Harvard I left). I've seen her earn the respect of people who disagree with her, and not by either running to a corner to pontificate, or by caving on every important issue. Kagan can see a fight; if she can see a path through that fight, keeping her position in tact, she can execute on it. And even when a victory is obviously not in the cards, she will engage the other side boldly. It is extremely rare for a Solicitor General to tell a justice he is wrong (as Kagan did to Scalia in the argument in Citizens United). But for those of us who know her, that flash of directness and courage was perfectly in character for this woman who knows what she wants, and how to get it.

In a line: She marries the brilliance and strength of the very best Justices, a practical skill not of compromise but argument, and deep experience inside the executive branch. It is a broad base of experience, producing an understanding of what is possible, and skill to produce what is right.

And this peerless debater's conclusion is pretty crushing:

The bottom line calculus for me in this case could not be clearer. Obama's second Supreme Court appointment will still leave the balance of power in the Supreme Court tilted to the right. What progressives need most now is someone with the right views, and a deep sense of how to fight to get a majority to recognize those views as law. It's not enough to appoint someone who will cast the right vote. We need someone who will make majorities.

Considering how little Kagan's detractors actually know about her, and how much Professor Lessig does, I think at the very least has to account for his arguments.


MEANWHILE, A DIFFERENT SORT OF CASE EITHER
FOR OR AGAINST PROGRESSIVE SUPPORT OF KAGAN

Alternet has helpfully reposted (as "Good News: Kagan May not Be a Giant Shill for State Power") a No More Mister Nice Blog post today by Steve M., "If Kagan doesn't really worship state power, does that mean she's doomed?," which makes an utterly seductive case either for or against -- depending on your shading of the moment -- progressive support for the Kagan nomination. After noting some indications that (just as Larry Lessig is insisting) Kagan has been wildly mischaracterized for us, Steve wanders into some breathtaking speculation. I can't begin to tell you how much I admire its around-the-bend twistiness:

[T]he White House assumes, probably correctly, that criticism of Kagan from the left makes it much easier to confirm her -- nobody in the political mainstream (pols ot the press) cares what we think, except to the extent that if we're yelling about it, they assume that being on the other side must be the reasonable point of view.

And now, if we start holding our fire, she's probably going to have a tougher confirmation battle -- because, after all, if righties are yelling about something, their concerns have to be taken very, very seriously. Ask any mainstream pundit. Ask any Democratic senator from a non-coastal state.

And righties are sitting up and taking notice of this -- already at the Daily Caller we have "Supreme Court Nominee Elena Kagan Compared Republican Terrorism Proposal to 'Dictatorships,'" and that instantly got a link at Fox Nation (in a multi-story thread titled "Kagan Booted Recruiters, Linked GOP Terror Proposal to 'Dictatorships,' Wrote Thesis on Socialism" -- oh, and please note that the thesis is being cited, as I've been predicting).

It's Rupert Murdoch's country and we just live in it, so I think we're not going to split the difference and say Kagan has angered both left and right on issues of state power. I think this hurts her. I think the McCain/Lieberman/Graham joint press conference opposing her nomination is probably only days away.

Wow! Is that deep, or what? Think about it -- if you dare.

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