Affirmative action in the Ivies

I do not understand the conversation about Sonia Sotomayor’s notional affirmative action advantages at all, not at all. The affirmative action that gives you a kick upwards in Eastern Establishment territory is the thumb on the scale for white people from the right schools and neighborhoods and families, especially legacy applicants: it’s the most affirmative and active of all. W got into Yale, for Pete’s sake!

I remember arriving at Harvard (a decade before SS went to college) from the Bronx HS of Science, whence Harvard had admitted eleven students a year since forever, out of a graduating class of about 800- of whom, we learned, none had ever graduated less than magna. There I found many things of interest to a New York kid, for example (1) Protestants! (2) …who seemed to be in charge of everything! My social justice gland went into overdrive as I started to meet the thirty-odd Pomfret students (a third of their graduates) in my class through my roommate, and compare them just on general smarts to the BHSS students who hadn’t made the cut with me.

It’s the credentials of WASPs we should be discounting, not Sotomayor’s, especially given Princeton’s reputation at the time as the “northernmost Southern school” and a distinct laggard in accommodating minorities of any kind (it certainly seemed that way to Michelle Obama a decade later). Speaking of minorities, I wonder if Princeton wasn’t also infected with the condescending anti-Catholic fungus (which may have been more pronounced in Boston given its political history) that pervaded Harvard at least through the eighties. I remember standing with a glass of sherry at some event, on the fringes of a conversation between two distinguished faculty members seriously considering whether Catholics were really capable of independent thinking, and realizing that they both knew my name (but, having just been introduced, could not know that the obvious inference was incorrect).

If we’re going to recalibrate Sotomayor’s academic credentials at all, I think we have to at least get the sign right, and recognize that she would have had a much easier ride at Princeton were she named Woods or Grove, or even Bigthicket.

Alito, judges, and moral values

I was a little sore at Prof. Bainbridge for using my post on Alito as a punching bag in a way that would be off the mark if he had read the whole thing, so I held off responding until now. I’m also impatient with the straw man dichotomy between judges who respect the law meticulously and judges who careen in all directions recklessly doing whatever they want, as though those distinct types comprise the universe of choice. Mark’s post below demonstrates one central way in which even a very conservative judge’s fundamental beliefs will affect his decisions. But there’s more to this.

In the first place, cases that come to the Supreme Court are hard cases, meaning that legitimate values (including values set out abstractly in laws like the constitution) and settled laws conflict. Decisions may turn on whether the value of stable expectations (“an old tax is a good tax”) or protection of a constitutional right (“a poll tax for voting is not a good tax”) should count more to decide the case at hand, and no parsing the technical record of law will answer this, any more than scrutiny of the nutrition label will help you decide whether to make your kid’s birthday cake from chocolate or vanilla mix. The kind of values justices hold in especially high regard will tilt decisions on the whole one way or another, and it’s entirely appropriate for the president and the senate to try to read these values and use them in making appointment decisions.

Prof. Bainbridge does corporate law, a context in which the parties are usually not people, have no human rights, and cannot suffer (I know, shareholders and employees figure in it) and in which the issues for all I know can always be settled by reference to statutes. But among the laws important to appellate practice is the constitution, whose preamble says its purpose is to “establish justice”, an abstraction that simply cannot be used without interpretation and specification for cases. At one time, that word meant a defendant should only have to put his hand in the boiling water for a few seconds to see if he was guilty – that it would be unjust to cook him until his flesh fell off the bones. Now we have a different idea, Miranda rights and such like. But what it means in practice will always depend on its expression in the mental constitution of judges, an expression that cannot be blank, nothing, or labile and contingent on the case at hand.

The idea that a decision must properly flow only from the enacted statutes (the unique expression of political will) of a state and not from the contradictory holdings of lower courts which are to be resolved, or precedents of higher courts, is the foundation of the Roman Law model that contrasts with the Common Law system used in Anglo-Saxon countries, including ours. It may or may not be a better system, but we haven’t bought it; in any case, it doesn’t work the way it’s supposed to even where it lives, as the immortal 1976 Hastings Law Review article by Prof. Merryman (“The Refrigerator of Bernard Buffet”) demonstrates.

It is also impossible to decide the big cases properly looking through a knothole only at the law. Even tough conservatives seem to think Brown was decided properly, and that holding depended greatly on sociological research by academics. In using evidence like this, the relative weight of different moral values of the justices has to matter (I don’t mean this normatively, I mean it positively): my problem with Alito is simply that the moral value of human rights and justness seem to be fairly far down his salience scale compared to other things that matter to him. This will matter when he votes on close cases, and it’s entirely an appropriate concern of the Senate and the public.

How to Write Talking Points–Alito Edition

Kevin Drum is unsure about what the “battle cry” against Alito ought to be. After all, he notes, Alito hasn’t really come out and said anything outrageous.

Is Alito fudging furiously? Probably. But it still doesn’t give liberals much of a purchase to lead a battle against his nomination. Subtle arguments about the nature of stare decisis and the precise extent of the president’s Article II powers just aren’t going to get very many people ready to take to the streets with pitchforks. So what’s the battle cry?

Here’s where it’s a political liability that Drum is smart, principled, and intellectually honest. The point here is not to have a subtle debate about jurisprudence. It would be tremendous if we could actually have one, but when pundits start talking about having a “public debate” about an issue, that’s when I get little nauseous.

The formula here is actually much simpler. Here’s how you do it. Pay attention, class:

1) Find positions that you believe Alito will take as a justice and have some basis in the record. Say it’s executive power: you believe that Alito will exceesivly defer to executive power and Presidential demands.

2) Don’t worry that Alito has said (correctly) that there is a “twilight zone” when thinking about executive power that no one is sure about. True, this isn’t a good “battle cry”, but—

3) Instead, get a bunch of focus groups to find just the right phrase that will resonate with the public (or key groups therein) that expresses their fear of overweening executive power. For the sake of argument, let’s say that that phrase is “imperial presidency” (which I doubt, but that’s why Frank Luntz makes the big bucks, not me)

4) Encapsulate that phrase in a sound bite, say, “we need to stop Alito’s imperial presidency”

5) Get your senators, sympathetic press people, talking heads, bloggers, newspaper letter-writers, everybody to master this phrase;–


6) Say it OVER AND OVER AND OVER AND OVER AND OVER AND OVER AND OVER AGAIN. Everywhere. In every context. As an answer to every question.

And then good, smart, principled conservatives like Eugene Volokh and Steve Bainbridge and Stuart Taylor will rightfully protest, and say that Alito’s never actually said that, and that the situation is really much more complex, and that we all know that there is some kind of inherent executive power (which is true) and that shouldn’t you be ashamed of yourselves for simplifying the issue this way.


Note that this isn’t about outright lying; it’s about using a genuine concern based on reasonable information, and turning it into a clear political slogan. Outright lying often works (see, e.g. Bush’s 2000 attacks on Gore for mendacity, which was itself an outright lie), but this isn’t that strategy. Instead, this is like the Bush 2004 campaign’s attacks on John Kerry for flip-flopping. The fact is that Kerry is not the most principled of politicians, and while you could have written a thoughtful policy piece on his inconsistencies, it’s easier just to say “flip-flopper.”

This is not the most sanguine or edifying view of politics, and it clashes with the most cherished values of the university, which of course favors reasoned discussion. But it’s far more realistic, and it’s less cynical than some other strategies than I can think of (again, see Bush 2000–or most of his other campaigns.)

Bottom line: It is unrealistic to think that the other side will provide your talking points for you. That’s your job.

That is all.

Early Reflections on Miers

The nomination of Miers will obviously generate a lot more information about the candidate than we have now, but from what’s out there so far, it’s typical of too many appointments in this administration generally: an insult to the institution and the public on grounds of the mediocrity of the candidate, and a callous mistreatment of the nominee herself. It’s insulting because it embodies the idea that a candidate of no real distinction is suitable for a high and important office as long as she doesn’t have a disqualifying scandal in her past, and it’s abusive of Ms. Miers because it sets her up for failure in a position whose duties are almost certainly beyond her. What is life really like for Justice Thomas, always a day late and a dollar short of the intellectual life of his workplace? Do the people who sent Michael Brown to do a senior manager’s job feel any guilt at the pratfall they set him up for?

Ms. Miers has no record of ever doing anything important except chairing a commission during a cleanup of a state agency in trouble (not, for example, being the executive director actually doing the cleanup). There are dozens of state lottery and gambling commissions and hundreds of members thereof in the last twenty years; what makes her special? The bar associations she’s headed are just two of hundreds, which again have had thousands of presidents. These positions are in themselves admirable and respectable, but convey no special distinction (at the level of this nomination for this job) whatever.

Otherwise, there’s not a book or an article or a bill or a program or an idea to her credit, just conventional lawyerly service to this and that client, the sort of thing thousands and thousands of partners in top law firms do every day. Except for failing to save Bush from himself and his bad lieutenants, she appears to have made no big difference to anything important, ever. At the same time, the buzz on her style (and it’s not much more than that, yet) is extreme formality and insularity, lack of forest-tree discrimination, and an inability to collaborate. The Supreme Court is a collegial environment, and ability to abstract and see the big picture background against which a given case is a figure would seem to be pretty important.

The quality that rings like a bell through her press notices is personal loyalty to George W. Bush. This is beyond irrelevance; it’s truly bizarre and troubling to offer it as qualification for Supreme Court Justice. Does W expect to be calling her up from time to time to dictate votes? Is she expected to decide cases for twenty years by guessing what that great legal mind W would want? If not, how could it possibly be a point of merit for this job?

Ms. Miers was the first woman to have various positions. This is to her credit, but among all the thousands of “first woman to do X”, not in and of itself a very big selling point. It should probably be discounted by her total lack of direct experience of what being a woman professional is for those who have children or even spouses. Miers may know something about sexual harassment and discrimination, but again, we’re talking about a job of which there are only eight others in the world. A professional woman’s perspective is a selling point for it, but for the most part, Miers’ is no more than second hand or observational.

Probably the most insolent quality of this nomination derives from her recent job experience, where her duties since 2001 have been as an inside, direct, advisor to the president, including a stint managing his access to information. In the current case, the idea that such a resume merits consideration for any high office is beyond satire and beyond ridicule, because this administration has a nearly unblemished record of taking bad advice, ignoring useful information, and making catastrophic choices on a steady and varied stream of international and national policies. Anyone suspected of being in the advisory chain that generated this record would seem to be flatly disqualified from any job involving good judgment or insight, at least on a prima facie basis.

There was a time when it was expected that the Supreme Court was a body of really special and distinguished legal thinkers, whether left- or right-flavored. Roberts was no shoo-in on this ground, but not outside the pale, and may well fulfil the promise of his career to date. Miers is not even in the ball park on any of the evidence we have so far.