Jurisprudence and Prudence

Aside from being a sexual hound dog, John Edwards was never going to be president. He may have said exactly the right things for the right constituencies – there were two Americas and it was time for the little guy, or just the ordinary Joe, to have some say in how things should be run. Yep, the big corporations and big banks and big this and big that had to have their wings clipped, because folks were dying out there. It was neo-Jacksonian power-to-the-people stuff, and intended to drive the big business Republicans into sputtering anger and eventual shame. And it might have worked, except that Edwards was too slick – he loved his pretty hair and so on. But the real problem is that he had been a trial lawyer, winning big settlements from large corporations whose actions or products had killed or maimed his clients, and pocketing his thirty percent of what was awarded to the victims. Yes, he stuck up for the little guy, and got rich doing so. And thus it was easy enough to portray him as a parasite from a profession of parasites, parasites who drove up the price of goods and services for everyone, just because someone was unlucky.

Of course that had been the Republican position for decades – trial lawyers were ruining everything, suing doctors and hospitals who had made honest mistakes and driving them out of business, making all corporations spend money they could have used to create new products at lower prices on defending themselves, or anticipating defending themselves. It was such a waste, and the Republicans had long been calling for tort reform – make it hard to sue corporations and professionals, or forbid it entirely (disputes should go to arbitration, if they must) – but at least cap settlements at a few hundred bucks so the price of everything doesn’t go through the roof.

They said that enough that it got into the nation’s bloodstream – that stuff everyone just knows is true and there’s no point in even thinking about it. Trial lawyers are about as evil as evil gets. And that doomed Edwards – that, and the love-child with the ditzy blond videographer, conceived on the campaign trail as his noble and long-suffering wife was dying of cancer. But no one knew about that as Edwards was losing primary after primary. He was just one of those slick lawyers.

That may have done him in. And of course he misjudged that business about it being time for the ordinary Joe to have some say in how things should be run. After the election the Tea Party movement showed that a good number of Americans have no problem at all with big corporations and big banks and big this and big that – that’s fine, let it all be Wal-Mart and Pampers and Coca-Cola. They have another target. They want to get rid of big government, if not government itself. Edwards’ notion that the government could be on their side – that it was their government after all – must have sounded to them like someone speaking Lithuanian underwater. There was no way to understand the words, if those were words.

But that sort of thing was only nascent in the 2007 Democratic primaries, if that. Edwards was a lawyer, and we tend to hate lawyers. And in fact, we tend to think the law is silly, as anyone who has served jury duty knows. For example, it was in Long Beach in the early nineties, and the charge was assault and kidnapping and attempted rape, and there was the ex-Marine who said he didn’t give a damn what the judge said about assault in the jury instructions, as he knew what assault was and the legal definition was stupid. And there was that strange woman in her seventies who told us all she thought everyone had it wrong and she had visited the scene of the crime to figure it out herself. Luckily she had the address wrong by about twenty miles, so we didn’t have a mistrial – and she was soon gone. But being the foreman of that jury was a bit surreal. That happens when everyone thinks the law is stupid, or at least boring and pointless. But if you’re guilty as sin – the facts and the law are clear – ask for a jury trial. You may get off.

And this was the week of the Elena Kagan confirmation hearings – it seems she will be our next Supreme Court justice – with wall-to-wall, or as they say, gavel-to-gavel coverage, on all the cable new networks and PBS, and accounts of what was said filled the press. And probably no one watched and no one read much of it. It’s that John Edwards thing. Everyone knows what the law should be and how any case should be decided – it’s just common sense and all the rules and precedent and talk of judicial philosophy are just so many words. Well, maybe some folks watched – the NBA finals were over and the United States had been eliminated from the World Cup and baseball was deep in that interleague play and there was not much else to watch. But over on the History Channel the Germans were still trying to win the Battle of the Bulge. There was no need to watch the confirmation hearings.

And in Newsweek, Stuart Taylor suggested they were a waste of time – no substance and excitement, and perhaps not necessary:

Congress could return to the practice that it followed until the middle of the last century, when it voted based on judicial nominees’ records without calling them to testify at all.

“For most of American history, the Senate considered Supreme Court nominees without soliciting [the nominees’] input,” wrote Benjamin Wittes, of the Brookings Institution, in his 2006 book, Confirmation Wars, “Politicians considered it an intolerable affront to judicial independence to ask a nominee how he would vote on a matter; to answer any such question was unthinkable.”

It was not until the high court’s epochal decision desegregating public schools, in 1954, that senators began to be emboldened to press nominees by asking directly or indirectly about what they would do if confirmed. It was an effort to exert some influence on a judiciary that – since Brown v. Board of Education – has assumed a far more commanding role in setting national policies via interpretation of the Constitution. This progressed over the decades to the point that confirmation hearings have become “grand mobilizations of the political bases of both parties, along with their affiliated interest groups and sympathetic academics,” Wittes wrote.

The best counterargument is that confirmation hearings are the only chance that the American public will ever have to assess a Supreme Court nominee who will serve for life.

That’s not much of a counterargument. Taylor notes that polls show that fewer than twenty percent of the public can even name Kagan as the nominee. Not many know who she is, or care. And Taylor notes what the few who watched saw:

Instead of disclosing her own views, Kagan settled – with poise, self-assurance, and occasional flashes of humor – into the familiar pattern followed by all recent nominees: patiently summarizing what the Supreme Court had said about the specific questions posed to her while commenting only in the most noncommittal, general, soporific terms.

Meanwhile, the senators settled into their own familiar pattern of making little speeches about their pet issues, thinly disguised as questions for the nominee, while staffers passed out propaganda full of carefully selected, often-out-of-context quotes supporting and opposing the nominee to reporters.

That was about it. But the Food Channel ran a series on grilling vegetables.

Of course there’s another way to look at this, and as the lawyers say, let’s make a stipulation – this whole business was not about Elena Kagan at all. Let us stipulate this was about what we believe, and what we think others should believe, were they not so foolish and misguided. That would explain the posturing, and why everyone was pretty much okay with Kagan being a pleasant cipher. She played her part. This wasn’t about her.

Slate’s Dahlia Lithwick explores that in a series of three consecutive columns covering the confirmation hearings – and she opens with this:

One of the reasons everyone loves to hate on Supreme Court confirmation hearings is that they are not merely “vacuous and hollow,” but also often show the nominee at his or her personal worst. Last year I complained that then-Judge Sonia Sotomayor had shrunk herself down to about a third of her usual size in order to convince Senate Republicans that they had nothing to fear from her. Justice Samuel Alito came off looking far more grumpy and much less warm and insightful than he has been on the bench in recent years. In fact, with the exception of Chief Justice John Roberts, it’s hard to think of a modern nominee who came off well at his or her hearings, and I can think of a few (Clarence Thomas, Robert Bork) whose hearings turned them into characters to which they bear no personal resemblance at all.

And then there’s Kagan:

One of the things that have been difficult to explain is why anyone who’s ever met her – from her students to her colleagues at Harvard to her staff at the Solicitor General’s office – lights up when talking about her. Whereas an American public that fell pretty hard for Roberts and Sotomayor has remained almost completely indifferent to Kagan. …

One explanation for this is that Kagan never had a personal story that grabbed American voters by the heartstrings and dragged them into this hearing room. But the other explanation – the one that is increasingly evident today – is that to know Elena Kagan is to love her. This is what her boosters and students have been telling me all along: While on paper Kagan appears to be made out of, well, paper, in person she lights up a room.

This is not about the law. This is about the kind of people we like:

It’s almost impossible not to warm to her as the day progresses. For one thing, as most of the Senators note, she’s hilarious. She pretty much brings the house down when – in a colloquy with Lindsey Graham – he asks her earnestly where she was on Christmas Day when the Christmas Bomber was caught. And without batting an eye she grins: “Like most Jews, I was probably in a Chinese restaurant.”

Even the reporters burst into applause.

One thinks of Woody Allen, with a twist:

What she also brings is a nominee in full: A wry, charming, witty person who seems to get better and better as the nine-plus-hour day drags on and on. Indeed, unlike some of her predecessors, who appeared before the company as if at gunpoint, Kagan gives the impression that there’s no place she’d rather be than in a one-on-one seminar on the Voting Rights Act with Ben Cardin or a private tutorial on the propriety of citing foreign law with Chuck Grassley or chatting about the boundaries of the 10th Amendment with John Cornyn. Toward the very end of the afternoon, as Sen. Tom Coburn is all but shouting the words of Federalist No. 44 at her, Kagan hears him out and then counters with Marbury v. Madison. And her colloquy with Sen. Lindsey Graham is so giggly, they sound at times like two teens at a drive-in.

But there is substance:

Kagan seems finally to put the lie to the nonsense that judging is all balls-‘n-strikes and easy child’s play. This morning she tells Sen. Kyl that “there are cases where it is difficult to determine what the law requires. Judging is not a robotic or automatic enterprise, especially on cases that come before the Supreme Court.” Late this afternoon she amplifies that by explaining that the idea of “robotic judging” doesn’t reflect our history – that judging is hard, and that cases are close. She seems fully comfortable standing before this committee and suggesting something which no recent nominee has ever dared suggest: Supreme Court justices should be among the nine smartest people in the land, and guess what? I’m one of ’em!

But then it gets serious, where it is a matter of what we believe, and what we think others should believe, were they not so foolish and misguided:

When John Cornyn asks her if she’s an “activist judge” (defined as a belief that there is “no fixed constitution and judges can invent law from whole cloth”) she looks taken aback – as if she can’t quite believe he’s seriously going to go Glenn Beck on her. And when John Kyl goes after Thurgood Marshall for judicial activism (a trope that has thankfully all but disappeared today), she replies “Marshall’s whole life was about seeing courts take seriously the claims that were generally ignored anywhere else.” It’s a rebuke that is all the more powerful for having been delivered in a thoughtful monotone.

So “despite the one-liners and the borsht belt shtick and the toothy grin, Kagan gives the impression of being extremely serious about the law.”

And it did get serious in the afternoon:

The talking points on both sides – “liberal judicial activist” and “justices who understand real people” – are so overused that at first you think you just might be listening to the mix tape Chief Justice John Roberts prepared for Justice Samuel Alito’s hearings. It’s not just Kagan who’s being interrogated, though: It’s Thurgood Marshall, John Roberts, Clarence Thomas, and Sonia Sotomayor. And it’s not just that Republican and Democratic senators are applying the same boring old scripts to a brand new nominee. They’re actually applying the same boring old scripts to the same boring old nominees.

She doesn’t want to play along with this what-everyone-should-think stuff, but it hardly matters:

Yet the ghost of Marshall himself comes in for tremendous abuse today at the hands of Republican members of the committee. Jeff Sessions, R-Ala., starts the ball rolling by accusing Kagan of having clerked for “a well-known liberal activist judge.” John Kyl, R-Ariz., tears into Kagan for respecting Marshall’s emphasis on protecting the underdog and says she “enthusiastically embraces” Marshall’s philosophy by labeling it a “thing of glory.” Not to be outdone, John Cornyn, R-Texas, piles on with this: “[I]t is more about his judicial philosophy [is] what concerns me, and this has already been mentioned: it is clear he considered himself a judicial activist and was unapologetic about it.”

Yep, Marshall was big in protecting the underdog – he argued Brown v Board of Education before the court, before he was on the court. He convince the court that the government should protect the underdog – fair is fair. And now he’s the villain? Lithwick sums it up this way:

Having alienated every minority in America with their weird “wise Latina” obsession last year, Republicans are determined to use this year’s hearing – this time featuring a white nominee – to scare off the rest.

And it was not about her, per se. It was about how letting the underdogs get some sort of justice just messes up everything, and there has been far too much of that going on lately. See John Edwards above. And Al Franken will have none of that:

Franken is even more cut–and-dried: “With few exceptions, whether you’re a worker, a pensioner, a small-business owner, a woman, a voter, or a person who drinks water, your rights are harder to defend today than they were five years ago.”

Yep, and Republicans fear that once she takes the bench she will become another Thurgood Marshall – and all this was about their fear, and why they have that fear, with details and examples, and why the rest of America should be as afraid as they are. Do you really want someone fighting for the underdog, and winning? Don’t you see where that would lead? Wasn’t desegregating schools bad enough? Do you want something like THAT to happen again?

But those weren’t questions for Kagan. Her job was to sit there and let them point at her, now and then, and let them roll on for the cameras, even if no one was watching.

Lithwick puts it this way:

It is a truism that Supreme Court confirmation hearings give us only a limited insight into the constitutional philosophy of the nominee in question. But it is also true that they can offer valuable insight into how Democrats and Republicans view constitutional law and history. The split goes deeper than spats over who’s an activist and who’s a strict constructionist. A confirmation hearing can actually give us a pretty good sense of each party’s sense of the sweep of constitutional law, history, and vision.

So there’s the Republican Version:

According to Sen. Chuck Grassley, R-Iowa, our constitutional rights predate the Constitution itself. Or one of them does, anyway. On the second day of the hearings Grassley asked Elena Kagan whether the Second Amendment’s right to bear arms is in fact a “fundamental right” that was “endowed by our creator.” Kagan appeared baffled and said she hadn’t given this question much thought. Luckily, Sen. Tom Coburn, R-Okla., was there to clarify the issue, saying that things really got cooking for American freedoms around 1765, when the great British legal scholar Sir William Blackstone wrote about the right to bear arms.

Fast forward 189 years to Brown v. Board of Education. The main problem seems to be former Justice Thurgood Marshall, who was invoked by Republican senators 35 times on the opening day of the hearings as an example of “a judicial activist” (Sen. John Cornyn, R-Texas) and someone whose legal views “do not comport with the proper role of a judge or judicial method” (Grassley). Evidently, American justice and freedom suffered a crushing and enduring blow at the hands of the man who argued Brown.

But if you really want to understand the Senate Republicans’ view of constitutional decline, you need look no further than Coburn’s heartfelt paean to the summer of 1980, when, in his telling, American freedom made a quick run to the 7-11 and never came back. On Day 2 of the hearings Coburn scored a huge win for Fox News by posing this hypothetical to Kagan: If Congress passed a law requiring Americans “to eat three vegetables and three fruits, every day,” he asked, “does that violate the Commerce Clause?”

Kagan hedged and dodged – she’s a lawyer – but then came the New York Post editorial about the coming nanny-state where the government will tell you what you are and are not allowed to eat, and if you don’t eat your vegetables you’ll end up in a concentration camp or something. Horrors! We are losing our freedoms. The talk was all about that eat-your-vegetables thing, where Kagan said not much of anything. Tom Coburn said Americans know they are losing their freedoms, and were outraged.

And then there’s the Democratic Version:

It fell to Sen. Amy Klobuchar, D-Minn., to provide the Democratic counternarrative about the arc of moral justice in America. Klobuchar was so astonished by Coburn’s claim that Americans are on the brink of tyranny in 2010 that she hopped onto Google and determined that in 1980, Blondie’s “Call Me” topped the charts and there were no women on the Supreme Court. Noting that whether freedom had been lost in the 30 years since is “all in the eyes of the beholder,” Klobuchar pointed out that in 1980 there were also no women in the Senate and no women on the Senate Judiciary Committee. (She later corrected her statement to note that there was in fact one woman in the Senate.) She then asked Kagan whether maybe women, at least, are a bit more free now than they were 30 years ago. Kagan agreed.

Klobuchar probably could have added that more Americans are “more free” today because of Thurgood Marshall, too.

But Lithwick knows full well that these hearings probably won’t change anyone’s minds about the progress of moral justice in America:

People who believe the courts and the Congress are intent on stripping away basic freedoms and imposing a Communist regime of forced vegetables on every man, woman, and child will probably persist in that belief. People who believe Americans have made slow but steady progress toward equality and fairness in America will be happy there is a third woman on the court. Perhaps all of us can agree, however, that this sort of big melodramatic debate about “freedom” is not the best way to confirm future justices.

But that’s okay. No one watched – Americans know what the law should be and how any case should be decided – it’s just common sense and all the rules and precedent and talk of judicial philosophy are just so many words. You’ll find that out they next time you’re on jury duty, or if you ever face a jury of your peers. Good luck with that.

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About Alan

The editor is a former systems manager for a large California-based HMO, and a former senior systems manager for Northrop, Hughes-Raytheon, Computer Sciences Corporation, Perot Systems and other such organizations. One position was managing the financial and payroll systems for a large hospital chain. And somewhere in there was a two-year stint in Canada running the systems shop at a General Motors locomotive factory - in London, Ontario. That explains Canadian matters scattered through these pages. Otherwise, think large-scale HR, payroll, financial and manufacturing systems. A résumé is available if you wish. The editor has a graduate degree in Eighteenth-Century British Literature from Duke University where he was a National Woodrow Wilson Fellow, and taught English and music in upstate New York in the seventies, and then in the early eighties moved to California and left teaching. The editor currently resides in Hollywood California, a block north of the Sunset Strip.
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