Did Romney — who went to Harvard Law School — display ignorance of the Supreme Court's decisions on the right of privacy and contraception?

Here's the transcript from last night's debate:

STEPHANOPOULOS: Governor Romney, do you believe that states have the right to ban contraception? Or is that trumped by a constitutional right to privacy?

ROMNEY: George, this is an unusual topic that you’re raising. States have a right to ban contraception? I can’t imagine a state banning contraception. I can’t imagine the circumstances where a state would want to do so, and if I were a governor of a state or...

So Romney begins by avoiding the question. No law professor would accept a student's responding that way. The question is about whether the states have the power to do something or whether there is a constitutional right supervening that power. It's a separate question whether the state would want to use that power.

You could say: Actually, the states do have the power, and the Supreme Court was wrong when it said there was a constitutional right of privacy, but it's not something to worry about, because the states aren't going to use this power. It's not going to happen.

But Romney went straight for the second point, that the states won't use this power. Implicitly, perhaps, he's saying it's not worth discussing the question of the state's power, because this issue won't come up in the real world. There's some justification in keeping it simple. This isn't a law school class, and the point I've just made is a bit difficult for the average person to catch on the fly.

Stephanopoulos drags Romney back to the question whether there is an individual right that supervenes the state's power:

STEPHANOPOULOS: Well, the Supreme Court has ruled --

ROMNEY: ... or a -- or a legislature of a state -- I would totally and completely oppose any effort to ban contraception. So you’re asking -- given the fact that there’s no state that wants to do so, and I don’t know of any candidate that wants to do so, you’re asking could it constitutionally be done? We can ask our constitutionalist here.

Romney acknowledges that he can see the question Stephanopoulos is asking, but he still doesn't want to answer it. Let Ron Paul answer it. Ron Paul is always going on about the Constitution. There's something clever and cagey about what Romney is saying: I don't make a constitutional question out of everything; I live in the real world, where I deal with real problems.

As a constitutional law professor, let me say that this is the way a lot of judges and scholars talk about law. Romney's engagement with law at this point is actually sophisticated, even as it looks simple. Ron Paul's continual pronouncements about constitutional law, by contrast, feel like political rhetoric to me.

STEPHANOPOULOS: I’m sure Congressman Paul...

(CROSSTALK)

ROMNEY: OK, come on -- come on back...

(CROSSTALK)

Now, to me, Romney got the better of that. I'm reading the cold transcript now, but I did glimpse this part on TV last night. The humor and adeptness of what Romney was doing there is much more apparent in text. There is a seeming lightness and modesty to Romney when you're watching him, but, in writing, I see the cleverness. 

STEPHANOPOULOS: ... asking you, do you believe that states have that right or not?

(I wish everyone would say "power" and not "right" in that context of what governments may do.)

ROMNEY: George, I -- I don’t know whether a state has a right to ban contraception. No state wants to. I mean, the idea of you putting forward things that states might want to do that no -- no state wants to do and asking me whether they could do it or not is kind of a silly thing, I think.

Romney recommits to his original response, but he drops in the statement that he doesn't know whether the states have that power, which is to say, he doesn't know whether individuals have a right that trumps the exercise of that power.

STEPHANOPOULOS: Hold on a second. Governor, you went to Harvard Law School. You know very well this is based on...

ROMNEY: Has the Supreme Court -- has the Supreme Court decided that states do not have the right to provide contraception? I...

STEPHANOPOULOS: Yes, they have. In 1965, Griswold v. Connecticut.

This is the weird part of the interchange. In Griswold, the Supreme Court found the right of privacy that trumps the state's effort to ban contraceptives (used by married couples. A later case, based on Equal Protection, protects unmarried persons as well). But when Romney restates the question, he changes it to whether the states "do not have the right to provide contraception," an issue that no one was even talking about. My best guess is that Romney is stumbling here, and he needs the prompt about Griswold.

ROMNEY: The -- I believe in the -- that the law of the land is as spoken by the Supreme Court, and that if we disagree with the Supreme Court -- and occasionally I do -- then we have a process under the Constitution to change that decision. And it’s -- it’s known as the amendment process.

Here, he's resorting to generalities about the Supreme Court's authority and the supremacy of constitutional law.

And -- and where we have -- for instance, right now we’re having issues that relate to same-sex marriage. My view is, we should have a federal amendment of the Constitution defining marriage as a relationship between a man and a woman. But I know of -- of no reason to talk about contraception in this regard.

He comes back once again to his original point, that as a real-world matter, contraception is a nonissue. We shouldn't even be talking about it.

STEPHANOPOULOS: But you’ve got the Supreme Court decision finding a right to privacy in the Constitution.

ROMNEY: I don’t believe they decided that correctly. In my view, Roe v. Wade was improperly decided. It was based upon that same principle. And in my view, if we had justices like Roberts, Alito, Thomas, and Scalia, and more justices like that, they might well decide to return this issue to states as opposed to saying it’s in the federal Constitution.

Now, he's clear that he doesn't think there is such a right. Either he finally has to talk about it, or he actually didn't realize that the Court first articulated the right of privacy in a case about contraception. Also, in addition to noting that a Supreme Court opinion can be overcome with a constitutional amendment, he's talking about something the President of the United States can do: Appoint new Justices who will overrule the case.

And by the way, if the people say it should be in the federal Constitution, then instead of having unelected judges stuff it in there when it’s not there, we should allow the people to express their own views through amendment and add it to the Constitution. But this idea that justice...

STEPHANOPOULOS: But should that be done in this case?

ROMNEY: Pardon?

STEPHANOPOULOS: Should that be done in this case?

ROMNEY: Should this be done in the case -- this case to allow states to ban contraception? No. States don’t want to ban contraception. So why would we try and put it in the Constitution?

With regards to gay marriage, I’ve told you, that’s when I would amend the Constitution. Contraception, it’s working just fine, just leave it alone.

This gets a laugh and applause from the audience — proving perhaps that Romney is playing it the right way for his purposes — but it still doesn't deflect Stephanopoulos, who restates his question again.

STEPHANOPOULOS: I understand that. But you’ve given two answers to the question. Do you believe that the Supreme Court should overturn it or not?...

ROMNEY: Do I believe the Supreme Court should overturn Roe v. Wade? Yes, I do.

Stephanopoulos shouldn't have said "it." He should have said Griswold, but, seriously, do American voters worry about Griswold? Stephanopoulos might be trying to get people worried about contraception, which nearly everyone wants to have available, instead of abortion, which lots of people want to ban, and Romney isn't allowing himself to be dragged into Stephanopoulos's agenda. Romney pulled the discussion in a different direction, a direction that served his political goals and probably won the favor of the actual voters in the audience. In short, he succeeded in making Stephanopoulos look like a pest.

Mitt Romney "mastered the Harvard Business School method of literally looking at the world on a case-by-case basis..."

"... approaching each problem completely on its own terms and making recommendations based on data."

In the classrooms where Mr. Romney distinguished himself, there were no “right” answers — no right questions even, just a daily search for how to improve results. The Mitt Romney classmates knew then was a gifted fix-it man, attuned to the particulars of every situation he examined and eager to deliver what customers wanted.

“Mitt never struck me as an ideologue outside matters involving church and family,” said Howard Brownstein, a classmate. “He is a relativist, a pragmatist and a problem solver.”

That's from an article by Jodi Kantor in the NYT, and you can try to figure out if it's trying to promote Romney, undermine him, or tell it straight. I don't really know, but then, I like pragmatists and don't trust ideologues. For voters who look for an ideological structure of beliefs and mistrust pragmatism, this portrait will look different. But what I'm noticing, after all these months of mushy complaints about Romney's lack of "core values," is that there is no dirt on Romney. The criticisms about him are utterly abstract: he seems "plastic" or wishy-washy. Why do people keep saying things like that? I think it's because that's all they can say. The man has lived a blameless, virtuous life. He's the man who's never done anything wrong. Do you have a problem with that? He's too good?

If Mr. Romney melded with [Harvard Business School] l intellectually, he kept some distance from it socially. He was married and a parent. In the liberal precincts of Cambridge, he and his wife, Ann Romney — pictured wearing matching sweaters at a fall 1973 business school clambake, with their two sons on their laps — seemed like they were from “out on the prairies,” Mr. Brownstein said.

The future governor abstained from things many other students were doing: drinking coffee or alcohol, swearing, smoking.... When classmates visited the Romneys’ tidy home in suburban Belmont, they felt as if they were visiting a friend’s parents, not members of their own generation, and the young couple’s closest friends came from the Mormon church.

He's a big old square, you see.

The Romneys did let outsiders into their world, sometimes inviting study group members to their weekly “family home evening,” a night Mormons traditionally set aside for husbands, wives and children to spend time together. (Mr. Brownstein remembered Mrs. Romney showing him her basement: in accordance with Mormon custom, she had a year’s supply of food stored in bins and freezers.)

Those crazy Mormons! Family home evening... a year's worth of provisions, stored in the basement... are these the kind of people you'd like to put in charge of the economy?

Mr. Romney never seriously considered practicing law. “He wanted to make money, he wanted to solve problems,” said [Howard] Serkin, his former classmate. (In Mr. Romney’s world, money is “how you keep score,” he added.)

How many Howards did the NYT find to inject snark into every fact? Don't we want a President who will "keep score" with money? Or does solving problems and keeping track of money fit your "no core values" template for Romney?

"Now I wish I could write you a melody so plain/That could hold you dear lady from going insane..."

"That could ease you and cool you and cease the pain/Of your useless and pointless knowledge..."

Oh, it's crossed my mind occasionally, over the last 25 years, to resort to a Bob Dylan lyric — notably, that one — when a law student has asked me for the wrong kind of answer. I managed to resist. Now, imagine a law professor — a Harvard Law professor — making an exam out of 2 nothing questions and tossing in a Dylan quote as a taunt — "'There must be some way out of here,' said the joker to the thief/'There’s too much confusion, I can’t get no relief,'"

Via Instapundit, Elie Mystal gives Professor Charles Nesson a pass.

That exam — which you can read at the last link — reminds me of an anxiety dream I once had. I suddenly realized I had to give an exam. The students were all in the room ready to go, and I had nothing to hand out. All I could think of to do was to walk up and begin to write on the blackboard, making up the exam questions as I formed the letters of the words. Beginning with a Dylan quote would be a useful way to stall while scrambling for something that could plausibly be considered an exam question.... before going insane.

"Come on, can’t you hear the keystrokes clicking by somebody over at Fox or Althouse just so eager to defend this next 'brave young person' who dared to 'tell the truth' at Harvard Law School?"

Somebody over at Althouse? I'm the only one here. I've been solo-blogging with nary a guest blogger for nigh on 8 years. If you're talking about somebody over at Althouse, you're talking about me. Or are you dragging my name through the "raaaaccciissssttt!!!!" mud over what you imagine a commenter might say?

Dammit. Now I know Elie Mystal at Above the Law has an old issue with me about calling things racist. Back in 2008, there was a contest — which he won — to determine who would be the new blogger at Above the Law. I was one of a panel of judges — a la "American Idol" — and we were looking a the writing of several competitors without seeing the details of who was writing. Judging one of Mystal's entries, I said: "Racism alert." I didn't know that Mystal is, in fact, African American.

Anyway, in the present case, Mystal is writing about a blog called “Harvard Law Caveman,” which is some kind of satirical blog opposed to affirmative action. I have never linked to it, though the author pitched it to me via email a couple times about 10 days ago. I'm not amused by the crude use of racism even when I think the writer meant to lampoon racism. Mystal's belief that I am "just so eager to defend this next 'brave young person' who dared to 'tell the truth'" is nothing but mudslinging.

As for the Harvard Law Caveman, why give him attention just to trash him? Is it so you can trash somebody who has profile, like me? But I didn't link to him. Maybe back when he pitched his blog to me, the Caveman also pitched it to Above the Law. Maybe Mystal has been waiting to see whether someone like me would link so he could attack. Time passed. Did anyone link? But he nevertheless portrays me as "eager" to link! I call bullshit, Elie.

This guy launched a racist blog using as much HLS branding as he could, but the school is not going to actually do anything about it. 

Like what?! It's free speech, and Mystal must know damned well that taking action would draw attention to this erstwhile unnoticed blog and also turn the writer into a free speech martyr. The criticism of Harvard Law School is thus also bullshit.

... But this is life at Harvard Law School. The school is so big. And there are so many people there who are still pissed that they didn’t get into Yale. The racist crap one hears from the HLS student body on just a casual level I think would blow most people away. I once had a white guy argue to my face that I didn’t “belong” there — and this was after we’d both figured out that I got a better grade in the class we took together.

Shine a light on whatever HLS "racist crap" you really see, but it only undercuts your credibility to make crap up. The way you just treated me makes me wonder what was the whole context of that "belong" quote? Let's talk about what's actually true. It works a whole lot better that way.

Did you see that Harvard law student — John Cochran — on "Survivor"?

The new season started last night.



For some reason, he blurted out, at the first opportunity, that he's watched every episode of the show (that's some 20+ seasons) and that he's a Harvard law student, which — you'd think he'd know if he's such a sharp student of the show — makes him look unreliable and threatening. Plus, he made a spectacle of his lack of "Survivor"-level physical beauty and athleticism. Well, maybe he has some genius strategy and making elementary blunders is some sort of sleight-of-hand misdirection.

Over at the Television Without Pity forum on last night's episode:

I didn't mind "Cochran" so much until his little self-pity rant where he bemoaned the unfairness of being voted out "before the three girls." I mean, ooh, "girls" might be better than you are? The shame, the shame!...

[Different commenter:] I was kind of rooting for Cochran until he threw in that "girl" bit. Was he at a different challenge than the rest of us? Did he not notice that the GIRL, Mikayla, was seriously kicking ass?

[Yet another commenter:] Trust me, they are giving Cochran MAJOR grief at Harvard Law School for that "girls" comment. Not cool.

Cochran assumes he is charmingly witty — because that's what he needs in place of looks. But that doesn't mean people see the humor. He probably intended the "girls" remark to be cute and self-deprecating, but those show fans didn't hear it that way.

So... are we rooting for the law student or not?

Speaking of rooting, Meade and I were going back and forth between "Survivor" and the Brewers game. Let's just say that it helped a bit to have the South Pacific as leavening in the Milwaukee experience.

Bathrooms and "the gender norms of their context."

From the Harvard Crimson:

"So many people I know, including many women who are not trans-identified but whose gender presentation to some degree transgresses the gender norms of their context, have had the experience of being asked if they are in the ‘right bathroom’ or told they are in the ‘wrong’ one..."

The current solution is single stalled bathrooms with no gender designation. There are 73 on the Harvard Campus, but there are complaints that it's not enough.

“So many people take it for granted that they can use a public bathroom,” [says Trans Task Force student leader Jia Hui Lee ’12.] “For those who are trans and gender non-conforming, it’s much more difficult to use a bathroom in public.”

Critics of expanding access to gender neutral bathrooms say that they increase the likelihood of sexual assaults in such spaces, but the concept of individuals of different sexes sharing the same restroom is not all that radical, according to Marco Chan ’11, Queer Students and Allies Co-Chair.

“Everyone lives their gender in different ways, so this is everyone’s business,” he says with an uncharacteristic note of anger. Chan is arguably the most prominent face of the gay rights movement on campus, and this media-savvy spokesperson rarely gets angry in interviews. This is an issue, however, of paramount importance to his organization. “We all know people who bring their small children of a different sex into the bathroom, people who have caretakers of a different sex assist them in the bathroom. Gender neutral bathrooms will simplify the way we all live our lives. This is not just transgender or queer people’s business.”

In the early 90s, I visited Harvard Law School and met some women who were extremely concerned about men getting into the women's bathroom. You needed a code to get through the lock on the door. Interesting how these issues cycle around over the years! Thoughts of the likelihood of sexual assaults in such spaces stirred up notes of anger. But now, it seems that what the good people are supposed to believe is that only retrograde women are worried about sharing the bathroom with men.

Rush Limbaugh talks about Critical Legal Studies... and Obama's legal education at Harvard.

From yesterday's show:

[Obama] attended Harvard Law School at the height of something that it was promoting, education technique or a theory.  It was called critical legal studies.  Critical legal studies was in its ascendancy at Harvard Law when Obama was there.  You can look it up.  Just Google critical legal studies.  It is out and out Marxism. 

In a nutshell, critical legal studies claims that law is just politics by other means.  It is a way for the rich to keep the poor working man down and deny him opportunities for prosperity.  That is what Obama was taught at Harvard and based on what he believes and is doing it looks to me like he probably did get good grades.  Look it up if you want.  Critical legal studies.  Law is just politics by other means.  You can even turn it around.  Politics is just law by other means.

"If a group circles around sacred values, they will evolve into a tribal-moral community."

"They’ll embrace science whenever it supports their sacred values, but they’ll ditch it or distort it as soon as it threatens a sacred value."

Says University of Virginia social psychologist Jonathan Haidt, quoted in this John Tierney piece in the NYT, which gets pretty good if you read past the first half. The first half invites mockery for being so head-slappingly obvious. Glenn Reynolds already wrote just about exactly the post I was about to write. I might have gone even shorter, though. "Duh" is shorter than "Indeed." So, yeah, conservatives are so radically underrepresented in academia that it can't be mere chance.

But let's skip into the middle of the piece and think about the mechanisms of exclusion, these "sacred values" that displace scientific thinking. Haidt notes the example of Daniel Patrick Moynihan, back in 1965, who "warned about the rise of unmarried parenthood and welfare dependency among blacks" and "was shunned by many of his colleagues at Harvard as racist."

Similarly, Larry Summers, then president of Harvard, was ostracized in 2005 for wondering publicly whether the preponderance of male professors in some top math and science departments might be due partly to the larger variance in I.Q. scores among men (meaning there are more men at the very high and very low ends). “This was not a permissible hypothesis,” Dr. Haidt said. “It blamed the victims rather than the powerful. The outrage ultimately led to his resignation. We psychologists should have been outraged by the outrage. We should have defended his right to think freely.”

According to Tierney, Haidt's audience of social psychologists "seemed refreshingly receptive to his argument."

A few even endorsed his call for a new affirmative-action goal: a membership that’s 10 percent conservative by 2020. 

Affirmative action? Why not just stop giving affirmative action to liberals? I think that would get you way above the 10% quota... if you could do it. Ironically, talking "affirmative action" is inherently off-putting to conservatives. It's more of those sacred values from the tribal-moral community that ward off outsiders.

***

Here's Haidt on Bloggingheads, back in 2008, talking about the social psychology of conservatives and liberals. And here's Haidt's "Your Morals" website project about morality and political ideology.

JFK's "application to Harvard, including mediocre test scores and a refreshingly banal personal essay."

Found in the JFK Library's digital archives. You know, there really was a time when you filled out the application form in handwriting, dashing off a few sentences in the space provided to answer the question "Why do you wish to come to Harvard?" (or whatever school you were applying to). These separate pages of ultra-tweaked writing that people attached to the form in later decades are really just as banal. I mean, seriously, "Why do you wish to come to Harvard?" is a stupid question that deserves an answer like the one JFK scrawled in 1935: "To be a 'Harvard Man' is an enviable distinction, and one that I sincerely hope I shall attain."

Also refreshing is the letter from JFK's father:

Jack has a very brilliant mind for the things in which he is interested, but is careless and lacks application in those in which he is not interested. This is, of course, a bad fault.

Jan Crawford interviews Justice Scalia at the Federalist Society annual dinner.

David Lat reports:

Crawford asked Scalia if he ever found himself in a situation where he was torn between his personal conscience and his professional duty as a justice. He said no. After Crawford expressed a hint of incredulity — you’ve never encountered such a situation, in your many years on the bench? — Scalia quipped, “Maybe I have a lax conscience.” The resulting laughter cleared the air nicely.

Conversation turned to whether the Supreme Court’s opinions offer adequate guidance to the lower courts and litigants — a topic recently raised in this fascinating New York Times article by Adam Liptak, which Crawford explicitly referenced. Scalia appeared to agree with the general thrust of the piece.

“You can write a fuzzy decision that gets nine votes,” Scalia said, “or a very clear decision that gets five votes.”

On the subject of putting Supreme Court oral arguments on video, Scalia said he disapproved. He thought it would mainly lead to out-of-context clips. He thought he'd look great in those clips though: "I could ham it up with the best of them on television... I’d do very well." Lat calls that boasting, but I see modesty. Best of them implies that he doesn't think he is the best oral-argument entertainer. But he is!

On the subject of attending the President's State of the Union Address, he said: “It is a juvenile spectacle, and I resent being called upon to give it dignity…. It’s really not appropriate for the justices to be there.”

On the subject of hiring clerks from Harvard and Yale law schools:

"The best minds are going to the best law schools. They might not learn anything while they’re there [laughter], but they don’t get any dumber."

I should reprise that Vonnegut quote from my 10:20 post. What if you had to argue that they do get dumber? I'll bet you could.

Lat says:

Note how Scalia did not use politically correct terminology. The PC approach calls for referring to the “highest ranked” law schools rather than the “best” law schools.

I must chide Lat for not seeing the political incorrectness of saying "the best minds." Or has Allen Ginsberg's "Howl" made "best minds" seem like a standard phrase? "I saw the best minds of my generation destroyed by madness, starving hysterical naked...." That's not innocuous. "Best minds" should prick up our attention and make us feel that something is not right.

Surely, the applicants that Harvard and Yale smile upon are not really our "best minds." Perhaps they are the "best minds" that are applying to law school in any given year, but I don't think even that is true. You have to do too many things right, too diligently, too early in life to hit the law school application sweet spot and get into the most selective schools. The best minds will have resisted acquiring the conventional indicia of career promise.

Come to think of it, Lat is also wrong to say that "highest ranked" is the preferred terminology for law schools. In academia, "highest ranked" implies highest ranked by U.S. News, and it is the proper thing to loathe U.S. News. It lacks the nuance to perceive the subtle qualities that make our favorite law schools so damned special.

Seriously... I think Scalia, being a good writer and speaker, simply believes that short, simple words are... best.

"She is a Harvard-trained lawyer who broke the law."

Oh, come on. Why would someone who went to Harvard Law School know what all the piddling little statutes and ordinances are? Elite law schools are for teaching high level concepts. Specific rules are for the little people.

Remember, Obama said: "I do have an obligation to make sure that I’m following some of the rules." Some of the rules. He went to Harvard Law too. Don't you see? You pick some rules that it will serve your interests to follow, follow those, and then preen about your amusing law-abidiness.

(Thanks to Insty for the first link.)

"Brooklyn College said it was 'regrettable that Mr. Bruce Kesler misunderstands the intentions of the Common Reader experience and the broader context of this selection.'"

Reports The Daily News, picking up the story that we were talking about here yesterday.

Hey, now we get to check out the Daily News comments. Continuum says:

I guess if you can't physically burn the books yourself, you can burn the school financially where they're allowed to be read. 

"Allowed to be read"? (Yes, ’n’ how many books can exist in a school/Before they’re allowed to be read?) It's an assigned text, one book for all. It's the book we want in your head, the school says to the incoming freshman, who, presumably, were chosen for their diversity.

Continuum continues:

It's his money, so he can do with it as he chooses. This won't be the first, nor will it be the last time, that some rightwinger will try to prevent an opposing view using his money or lack thereof . . . . . 

Prevent an opposing view?

Joezoo says:

The gentleman misunderstands the purpose of a college education - to be exposed to a wide variety of ideas, and learn how to be critical of them. 

Yet, ironically, Kesler is being critical of a book — and teaching a lesson in criticism.

I wonder what books he read while at Brookly College were high on the list of books-to-be-burned by donors at that time.

Where did this "burned" concept come from? Kesler never said the book shouldn't be available in the library and assigned in some courses where it has some relevance. He objected to its being chosen as the one book to give to freshmen to create a sense of "common experience." That's a much stronger statement by the school of how it sees itself. And the book is assigned in the required freshman English course. Imagine a set of transcribed interviews with young people as the text to be studied in an English class. Think of the rich pool of English literature... and weep.

StoutKraut says:

Its about time someone has the 'pair' to stand up and be counted. With freedom comes responsibility and NOT radicalism. Besides its his money and he can do whatever he wants with him.

Alumni provide an important check. Look at what happened at Harvard Law School:

In 1987, our last year as students at Harvard Law School, we formed a group called NOPE. No matter how rich we became, even if we could credit Harvard for our careers, we vowed to never contribute anything of financial value to its endowment: Not One Penny Ever. NOPE...

That's a long side track that I won't travel down today, but Elena Kagan is in that story. In the 80s, I worked at a Wall Street law firm (Sullivan & Cromwell), hearing Harvard alumni partners fretting over what was happening to their law school. Suffice it to say that radical politics were a big problem... and the alumni were not powerless.

It's a marketplace of ideas, and there are powerful buyers and sellers in that marketplace. The professors have market power, but they aren't the only ones.

You’ve been with the professors
And they’ve all liked your looks
With great lawyers you have
Discussed lepers and crooks
You’ve been through all of
F. Scott Fitzgerald’s books
You’re very well read
It’s well known

Ah! There was a time when the professors at least saw fit, when imposing a book, to impose an exemplar of great writing.

***

"Our lives are defined by opportunities, even the ones we miss."

If Elena Kagan worked a "Miracle at Harvard," what effect might she have on the Supreme Court?

An essay by University of New Mexico lawprof Kevin K. Washburn:

For most of the past fifty years, attending Harvard Law School was a miserable experience....

During Elena Kagan’s tenure as dean, a miracle occurred. Harvard Law School was transformed. Today, students embrace the institution. The professors engage with one another. And the school’s widely discussed dysfunctions are distant memories. Kagan accomplished this miracle by modeling two important and traditional American values: hard work and community. Kagan was known for walking the halls tirelessly to learn the views of her bright and independent colleagues and to seek consensus. She broke the gridlock between faculty political factions that had atrophied the academic life of the institution. Even more importantly, she transformed the student experience. This essay seeks to describe Kagan’s transformational leadership and provide insight as to the specific changes Kagan made to accomplish the miracle.

Let's take this all as true. Kagan has skills that worked brilliantly in the context a dean transforming a deeply dysfunctional, highly elite law school. But how will those skills apply in the context of an individual Justice on the Supreme Court? When a troubled law school brings in a new dean, it is looking for leadership and transformation. But there is no reason to think that the Supreme Court Justices look toward the newcomer for leadership at all, and she arrives to fill the seat that was vacated, not with any problem to be solved and institution to be transformed.

Has Obama failed to nominate a strongly liberal Supreme Court Justice because of the insufficient supply of liberal law professors?

Recounting the history of Harvard's struggle with Critical Legal Studies in the 1980s and the "postradical" period that followed, lawprof David Fontana writes:

The stories of the postradical generation are not only of intellectual interest but also affect the future of American government. Obama has been criticized by many for not nominating enough theoretically ambitious and bold liberals to the federal courts. Part of the reason for that dynamic, however, has less to do with politics than with the supply of such theoretically ambitious liberals—particularly law professors.

Many of the more-radical jurisprudential movements from the earlier generations have succeeded in opening eyes to the flaws in the legal system, but beyond that have largely disappeared. The Old Left efforts to push courts to be more aggressively liberal floundered after years of courts dominated by Republican appointees. The New Left efforts by the critical-legal-studies movement and others floundered, in part because, like with the Old Left, their ideas were met with sustained resistance from the elite institutions of the legal system.

Spare me! There are plenty of strongly liberal and lefty lawprofs and if you want theoretical ambition you can find it. The reason these folks don't get nominated to the Supreme Court is crushingly obviously because they'd be soundly rejected by the American people and borked in the Senate.

The country has moved to the right, so there are fewer law professors who are truly liberals. 

Yeah, there's a little balance now. I can imagine what "truly liberal" means to Fontana. I think they're nearly all liberal from the standard that prevails among American voters, but that's not truly liberal.

Many of those on the left today are simply trying to maintain older decisions... Others on the left, who once might have aggressively pursued liberal legal ideas, are now increasingly writing about law from a more theoretical or quantitative, and therefore less practical, perspective—making their writing less related to the issues judges decide and making them less obviously candidates for future judgeships.

And some on the left who write more directly about cases and courts, like Tushnet or Dean Larry Kramer of Stanford Law School, and Dean Robert C. Post of Yale Law School, are now increasingly members of the "popular constitutionalism" movement, who believe that courts should be stripped of all or most of their decisional powers—hardly the prejudicial profile that one wants.

"Prejudicial"? I know what he meant to say but... what a hilarious word!

Anyway, yes, many brilliant liberal/lefty lawprofs have applied their minds to generating arguments for why courts shouldn't enforce rights, but I think the reason they have gone in that direction is that they have perceived that it is the most effective way to push back against the conservative and liberal-but-not-truly-liberal jurists who get appointed to the Supreme Court. The "popular constitutionalism" movement is further evidence that the American people have a pretty conservative view of what judges should do and how the Constitution should be interpreted. And that's why the nominees aren't "theoretically ambitious and bold liberals."

"Was it a mistake for Elena Kagan when she was Dean of the Harvard Law School to oppose allowing the U.S. military to recruit law students because of the Pentagon's Don't Ask/Don't Tell policy?"

Wolf Blitzer asked on "The Situation Room" today:

AXELROD: Well, that's not -- that's not exactly what happened. The fact is that there was recruitment on the Harvard campus at the time that she was there. She maintained the policy that existed before she came there -- not allowing the career placement office ts -- to -- to host that. Because there was a policy relative to discrimination. When the law was passed and upheld banning that, then she changed the policy.

So she -- she tried to conform to the policy of the school, and the law. And yes, she expressed herself on the law. But she's always been very hospitable to military recruitment and to young people campus who wanted to serve their country. In fact, the irony of this discussion, Wolf, is her objection to the Don't Ask/Don't Tell law was she wanted everyone who wanted to serve their country -- every young person -- every young person who wants to serve the country to have that opportunity.

BLITZER: Because Jeff Sessions, the ranking Republican on the Judiciary Committee -- he's concerned. He says this is a significant issue he wants to discuss with her -- especially her -- her comments back in 2003 that the Pentagon's policy, in her words, was "A profound wrong. A moral injustice of the first order."

AXELROD: Well, again, I think her concern was that every young American who wants to serve their country should have that opportunity. But Senator Sessions should and will have that opportunity to discuss it with her. And I hope that he also talks to the young men and women from Harvard who have served in the military who -- who -- who came into contact with -- with Dean Kagan when she was there, and who got her full support. Because she is -- she -- she was very close to veterans on campus. And they were very supportive of her.

"Harvard Law students are not in the 'pursuit of truth.' They’re not scientists. They’re not researchers."

"They’re law students and legal academics. I presume that everyone there is manifestly unqualified to evaluate the scientific evidence one way or the other. It’s rebuttable. If they show me their scientific creds, I’ll listen. Until then, STFU."

So says a commenter over at Volokh, provoking are great response from Volokh:

Now if these comments just complained about people who write definitive-sounding op-eds or blog posts about subjects they know nothing about, I wouldn’t be responding to it here. But of course the author of the e-mail wasn’t writing an op-ed aimed at persuading the public. She was continuing a conversation with a friend. The recommendation is that non-scientists who don’t know much about the subject shouldn’t even discuss it....

[W]hat a narrow, stultifying notion of education that is. Read quietly, on your own, with no discussion with others who are interested in the subject, until you become knowledgeable enough. Only then should you feel authorized to discuss it. Only then will we be “sympathetic” should you be publicly pilloried for your e-mail to a friend that raises the question — because only then could we say that “actual science is being foreclosed” by the condemnation of you.

The law school classroom experience requires students to discuss complicated and sensitive subjects in front of other students. How on earth are we going to be able to do that if the students think there's a terrible risk in saying the wrong thing — or the right thing the wrong way?

The way most people actually educate themselves effectively, it seems to me, is very different. They get interested in a subject. They talk to friends about it. They read some more. They talk some more about their readings, perhaps especially with people who are also learning about the matter. Their friends might help correct their errors. Enlightenment might emerge in a conversation when it didn’t emerge in mere reading.

Yes. Exactly. Human culture emerges as people interact with each other. Life would be very different if it was all about reading and studying. In fact, this is why we value diversity in the classroom, so that different kinds of individuals will converse and react. We will get to a better understanding of things that way.

Now, part of that really is seeing and feeling what makes other people angry. This conversation that is so valuable can't be bland and emotionless. Emotion is a part of reasoning and learning. But what does the group do to itself? What should the law school classroom (or any classroom) be like? There is an ideal level of interaction that includes ease and care in the expression of ideas and the response to what other people are saying. I want students to debate and even argue, to get excited and even angry, but not to the point where the exchange breaks down.

Back to Volokh:

That’s supposed to be one of the joys of intellectual life. It’s supposed to be one of the advantages of life in a university, where you can find classmates who — like you — have intellectual interests beyond your narrow field of study.

My law school, the University of Wisconsin, prides itself on interdisciplinary study. We encourage students (and faculty) to import other fields of study into working within law. We like the cross-fertilization and don't see the academic disciplines walled off from each other (with the walls staunchly guarded by the experts). Do you think law should be aridly academic? Do you think cases should be argued and decided by people who are intensely specialized in the study of legal texts? If you think you do, I don't think you'd keep thinking that if we had a way to run the experiment and see the results.

Back to Volokh:

Some of the people who learn about the subject may end up working on it professionally. People with Ph.D.s in physiology and membrane biophysics might write prominent books on anthropology and geography. Computer programmers who get interested in law, and who spend years talking to their friends about policy questions unrelated to their formal educations, might become lawyers. 

Volokh himself is that computer programmer. Jared Diamond is the biophysicist.

I think the lesson here is that we should want to experience our full humanity and to understand and respect and help each other as full human beings. This is an idea that completely harmonizes with the rejection of racism.

"Racist Harvard Law Email: The Cat Fight That Turned Into a National Scandal."

Oh, no!

We cannot absolutely rule out the the possibility that women are, on average, genetically predisposed to be....

Ha. How horribly, embarrassingly messy for everyone at Harvard who took the bait. They got sucked into the vortex. They got played.

AND:  David Lat has some details. And some opinion:

Heck, this episode probably won’t even stop Steph from landing a Supreme Court clerkship. If I were in her shoes, I’d focus my efforts on Justice Clarence Thomas. Of all the members of the Court, he’d probably be most open to hiring the victim of what some conservatives might call, to paraphrase CT himself, the “high-tech lynching [of conservative females] who in any way deign to think for themselves, to do for themselves, to have different ideas.”

He also has an update from the woman whom some accused of leaking the email. She writes:

There was no fight over a guy (this isn’t Mean Girls). I certainly didn’t yell that I would ruin Stephanie’s life.

Moreover, I didn’t forward the e-mail to BLSA, anyone in BLSA, or ATL....

I know that you would prefer anything related to two girls to be a catfight... but that just isn’t how it happened.

***

If you're trying to remember the "Seinfeld" reference for "cat fight," it's "The Summer of George":

Jerry: Did you tell Peterman about this?

Elaine: Well, I tried, but he thought it was some sort of cat fight.

Kramer: Cat fight?

Elaine: Ok, why? Why do guys do this? What is so appealing to men about a cat fight?

Kramer: Yeye cat fight!

"I think this is all just a clever ploy to get people talking about how much better Harvard Law was when Elena Kagan was Dean."

Instapunditry.

"Now I hasten to say that the controversy at Harvard is only a pale echo of Soviet Communism."

Writes Eugene Volokh (who knows how it felt to live in the Soviet Union):

With luck, this student won’t have her career ruined, or even much affected. I’ve seen a public call for her to be expelled.... but I doubt that this will happen. And even if some of the best future jobs are closed off to her, at least for a while, a Harvard Law diploma will get you to plenty of places. She doesn’t have to worry, I suspect, about not being able to feed herself or her future family.

Yet the public revelation of a private conversation; the public condemnation by management; the obvious danger of serious career ramifications; the apology, which I take it came out of a fear of those ramifications — all for daring to say to friends something that simply represents a basic scientific principle (the need to be open to the possibility that there are racial differences in intelligence, as one is open to other possibilities on other scientific questions) — that just sounded a little too familiar to me.

It’s a pale echo, but of something so bad that we should be wary even of pale echoes.

Isn't this a teaching moment for Harvard Law School? Dean Minow's memo dated April 29th said:

A troubling event and its reverberations can offer an opportunity to increase awareness, and to foster dialogue and understanding. The BLSA leadership brought this view to our meeting yesterday, and I share their wish to turn this moment into one that helps us make progress in a community dedicated to fairness and justice.

So the original "troubling event" was something Minow chose to use as a teaching moment to increase awareness, and to foster dialogue and understanding. She embraced the practice of turning the difficult material into an occasion to make progress in a community dedicated to fairness and justice.

Keep teaching, professor! A lot of us are prepped and eager for Lesson 2!

Neo Neo-con flunks Harvard Law School Dean Martha Minow.

It's that statement of the facts.

How bad is it to say "one of our students suggested that black people are genetically inferior to white people" when what the student wrote was "I absolutely do not rule out the possibility that African Americans are, on average, genetically predisposed to be less intelligent"? There is a difference between "suggesting" something is true and conceding that you don't have a basis for excluding the possibility that something is true.

The language in the email places itself in the context of a continuing conversation, and any attempt to interpret it should acknowledge that we have it out of context — and that it seems to have been leaked by someone who was privy to the whole conversation. The phrase "I absolutely do not rule out the possibility...," implies that that during the conversation, the student was criticized by someone else for ruling out the possibility. What does that... suggest... about the full context of the email and the motives for leaking it?

AND: In the comments, Jon said: "[T]he student didn't say 'genetically inferior,' she said 'less intelligent.' Does Dean Minnow think that everyone less intelligent than her, is genetically inferior?"

It's possible — possible! — that Minow thinks that everyone less intelligent than her is inferior, but for reasons having only to do with nurture. This must be an interesting subject for her, because she's the daughter of a highly successful man, Newton Minow (the FCC chairman who called TV a "vast wasteland"). Does she trace her high intelligence only to environmental factors? Most likely, it's a subject about which she chooses not to speak. Not in public anyway. Perhaps she once emailed someone about that.

But consider Minow's other interpretive leap — that to be less intelligent is to be inferior. Why isn't that an even more outrageous statement than what the student (Stephanie Grace) said?

Are less intelligent individuals inferior? It's time for our lesson in Elementary Class Consciousness. From Aldous Huxley's "Brave New World" (PDF, page 20-21):

“Elementary Class Consciousness, did you say? Let’s have it repeated a little louder by the trumpet.”

At the end of the room a loud speaker projected from the wall. The Director walked up to it and pressed a switch.

“. all wear green,” said a soft but very distinct voice, beginning in the middle of a sentence, “and Delta Children wear khaki. Oh no, I don’t want to play with Delta children. And Epsilons are still worse. They’re too stupid to be able to read or write. Besides they wear black, which is such a beastly colour. I’m so glad I’m a Beta.”

There was a pause; then the voice began again.

“Alpha children wear grey They work much harder than we do, because they’re so frightfully clever. I’m really awfully glad I’m a Beta, because I don’t work so hard. And then we are much better than the Gammas and Deltas. Gammas are stupid. They all wear green, and Delta children wear khaki. Oh no, I don’t want to play with Delta children. And Epsilons are still worse. They’re too stupid to be able .”

Are the Alphas superior? They have to work so hard and wear grey... I’m so glad I’m a Beta. Betas don't think they're inferior! They are less intelligent though.

Do you think the most intelligent people are the best? Let's hear from P.J. O'Rourke:

I’m sure up at Harvard, over at the New York Times, and inside the White House they think we just envy their smarts. Maybe we are resentful clods gawking with bitter incomprehension at the intellectual magnificence of our betters. If so, why are our betters spending so much time nervously insisting that they’re smarter than Sarah Palin and the Tea Party movement?...

The C student starts a restaurant. The A student writes restaurant reviews. The input-worshipping universe of the New York Times is like New York itself—thousands of restaurant reviews and no place we can afford to eat.

Let us allow that some intelligence is involved in screwing up Wall Street, Washington, and the world. A students and Type-A politicians do discover an occasional new element—Obscurantium—or pass an occasional piece of landmark legislation (of which the health care reform bill is not one). Smart people have their uses, but our country doesn’t belong to them. As the not-too-smart Woody Guthrie said, “This land was made for you and me.” The smart set stayed in fashionable Europe, where everything was nice and neat and people were clever about looking after their own interests and didn’t need to come to America. The Mayflower was full of C students. Their idea was that, given freedom, responsibility, rule of law and some elbow room, the average, the middling, and the mediocre could create the richest, most powerful country ever.