Friday, July 22, 2005

Them Flashy Liberals

Todd Zywicki, in a post Justice-to-be John Roberts' law school days, wonders about what "type" of intelligence is desirable for a would-be law professor:
I have wondered whether legal academia today (perhaps even more than other academic fields) tends to place an undue premium on a "showy type of intelligence" as opposed to "controlled ... not-aggressive type of intelligence." I don't know, of course, whether this has always been the case. But it is my impression that this is the case today (there's no empirical test for this assertion, of course, so I could be completely wrong).
...[G]iven the institutional arrangement of modern law schools, it may be that this bias in inevitable. In particular, for whatever reason, law reviews today seem to overvalue novel, glib, and clever articles in the market, thus it may be that to the extent that the law school hiring process selects for "showy" intelligence, it may be an efficient response to peculiar market in which we sell our services, i.e., law reviews.

So, while at first glance the relative absence of people like "Professor Roberts" seems like a market failure in the professorial hiring market, it may be perfectly rational in light of the peculiar market for which future scholars are being selected.

Over at PrawfsBlawg, Ethan Leib concurs, and adds that:
I've benefited from this bias, not because I'm especially intelligent but because I liked to talk in class and get into arguments with people, where I seemed competent and able to hold my own. This disposition would get me almost nowhere in political science, my Ph.D. discipline. As long as one avoids seeming cocky and arrogant, "showy intelligence" pays dividends on the legal academic market.

I notice a similarity between this discussion and my claim that the desire for "novel scholarship" is partially to blame for academia's liberal slant (a thesis I originally hashed out with the help of Professor Zywicki). Zywicki explicitly makes the link between "flashy" and "novel" scholarship, which makes sense--after all, something new and groundbreaking is far more likely to make a splash than a piece that reiterates something already present in the canon--even if the latter is better written/analyzed/argued than the former. Professor Leib also provides support for the my theory in the form of a cross-application of "hostile environment." All else being equal, of course, there probably are as many outspoken liberals as outspoken conservatives. But in a law school environment that is predominantly liberal, many conservatives might reflexively self-censor themselves--thus skewing the amount of "flash" in the liberal direction. This is especially true considering that the only way to verify that one's academic setting is not biased against conservatives is to risk incurring any bias that is present. In a situation where even rumors of liberal hegemony run rampant--certainly true of American universities-this can cause the self-censorship even where there isn't any expressed hostility to conservative views. Hence, the "bias" (and concordant skew in partisan alignment) can exist even if there is no actual overt discouragement of conservatives to apply or to teach as academics. What does this give us? The magical condition loved by critical theorists (like myself) everywhere--a structural bias!

To be clear--this is my conclusion by combining the posts of Professors Zywicki and Leib together--neither has endorsed this theory (or rejected it, for that matter, but I don't want to give the impression that this was an argument they were making too). And to be fair, Professor Leib's post also poses a challenge to my theory: Why wouldn't this same desire for "flash" and resultant self-censorship be present in Political Science (where he says it isn't)? I'll admit I don't have a ready answer to this.

But all in all, I think that this adds some more heft to the claim that there likely is a liberal structural bias in academia.

Nice, Reasonable, Conservative

If this case (U.S. v. Jackson) is any indicator, then I think Judge Roberts will make a fine Supreme Court Justice. It's conservative, to be sure. But it's also very rational, persuasively argued, and well-written.

Like Professor Kerr, I thought this case was quite close. Could go either way. The mark of a superb justice is one who can cogently explain the reasons for their decision (in a dissent, no less) in a case in which rational persons might differ on the result. Here, Judge Roberts performed exceptionally.

UPDATE: Haha. Althouse brings us the start of Judge Roberts' opinion in Consumers Energy Company v. Federal Energy Commission, 367 F.3d 915 (2004):
It was a close thing, but Benedict Arnold's bold plan to capture Canada for the Revolution fell short at the Battle of Quebec in early 1776. As a result, the Federal Energy Regulatory Commission must now decide when affiliates of Canadian utilities -- utilities not subject to FERC jurisdiction -- may sell power at market-based rates in the United States.

Add that one to Roberts' legendary line about "the hapless toad which, for reasons of its own, lives its entire life in California" (I'd give the context, except I've discovered it completely ruins the incredibly poetry of the phrase).

Wednesday, July 20, 2005

Clinton Positions Herself: Parts II and III

Let's see. Clinton takes on violent, sex-drenched videogame company. A week later, the company admits that the sex-scenes are of it's manufacture and the game is re-rated to Adults Only, likely costing the company millions. Clinton will take loads of credit.

Clinton: 1
Other People: 0

Not only that, but Southern Appeal notes that Clinton may be willing to vote for Judge Roberts. Frankly, I don't consider this to be a revelation. I have not seen much of an outpouring of opposition to Roberts amongst liberals, indeed, the only even quasi-negative reactions I've heard so far are Randy Barnett's worries that Roberts is so used to being a litigator that he won't have a solid, principled core, and of course Ann Coulter's "Souter-lite" gripe. But SA is still right--Clinton has loads more maneuvering room than most Democratic contenders--she can be as moderate and reasonable and sensitive and bipartisan as she wants, and the base will still adore her.

Clinton: 2
Other People: 0

Tuesday, July 19, 2005

Could Be Worse

So says Legal Fiction, and so say I.

The big man is John Roberts, currently on the DC Circuit Court of Appeals. After all that talk about replacing O'Connor with another woman, or a minority, Bush throws a curveball and nominates a white male. Took my ankles out on that one! (Actually, I'm serious. Bush has been admirable in appointing minorities to high positions--and he loves to make splashes in showing how diverse he is. I figured this was an opportunity he couldn't pass up).

So...Roberts, Roberts. Well, I'm going to respectfully disagree with my noble TMV co-blogger Michael in calling Roberts a "right-wing radical" with a "scary" record. Most of Roberts' paper trail is on stuff where he was representing the Bush (I) administration--in other words, where he had to toe the precise line of the administration. Hence, all the hay about how he asked for Roe to be overturned (Rust v. Sullivan), or other arguments he's made as an attorney, don't carry too much weight with me.

What little I know of Judge Roberts comes from personal testimonials (though if you're looking for a more meaty background, here is a good place to start, thanks to The VC). When presented with a four person "short list" of nominees, I ranked Roberts second, behind McConnell but ahead of Luttig and Wilkinson. Much of that has to do with my conversations with Georgetown Law Professor Richard Lazarus, Roberts' law school classmate and certainly no Republican. Orin Kerr, another man I respect highly, also gave Roberts the thumbs up. Like Joseph Weisenthal, "if it's good enough for Orin Kerr and Juan non-Volokh...then it's good enough for me!" Ultimately, he strikes me as a conservative non-ideologue. I can accept that mix.

Conservatives are happy with the choice. Powerline says "pop the champagne corks," while Southern Appeal is just happy to see that O'Connor's seat won't become reserved for women (they also treat us to this butchering of the Critical Legal movement, courtesy of Senator Jeff Sessions (R-AL)). Like Pejman, I too would have preferred Roberts for Chief, not just because I think he'd be good at it (though I think he would), but also because I think he fits more closely with Rehnquist's judicial philosophy than O'Connor's (remember, he clerked for him). Keep in mind, I've had this Supreme Court since I was 8. I kind of like the lineup--I'd rather not see any drastic ideological shift.

But to me, at least, the most interesting reaction was over at The Daily Kos. Expecting some reflexive Bush-bashing? Think again:
So who is this guy Roberts? He has only two years of judicial experience, and his legal advocacy can be dismissed as doing the bidding of his bosses.

Fair enough. I'm willing to hear the guy out. We're not going to get a Ginsburg, but I'd be happy with an O'Connor-style moderate conservative. For all we know (and for all the religious-right knows), Roberts might be that sort of guy.

But he has to be honest and forthcoming, unlike his previous confirmation hearing. The Senate must take its time deliberating over the nomination. And this is something that all sides should want, not just ours. For all the right wing knows, this guy may be the next Souter who simply pretended to be virulently anti-privacy.

As Roberts answers all questions posed, we can then decide whether it's worth opposing or not. And as that process plays out, we can make sure that Rove isn't forgotten in all the Supreme Court hoopla.

All the conservatives are convinced that the left would just oppose any name Bush threw out. The statements of Kos (as good a barometer as any for the left end of the Democratic party) belie that prediction (yes, I suppose they could just want to appear like they gave Roberts a "reasonable" hearing, to justify later opposition. But since when has Kos cared about being reasonable?).

Monday, July 18, 2005


If you read this blog regularly, you'll note that I've said nary a word on the Rove/Blame controversy currently all the rage on the blogosphere (I particularly like John Cole's quest for a "consensus." Good luck, John!). There are several reasons for this. The most important is that I detest Karl Rove. He is one of the most repulsive men alive in American politics today. I reject everything he stands for. I'd like nothing more than to see him marched off into prison (or ignoble exile, or whatever). Ergo, I can't give him a fair hearing. Normally, I wouldn't care so much--blogging, like all opinion writing is, after all, merely the process of putting ones biases down into print. But the standard is higher when we're talking about criminal activity. So I'm not commentating. I'm breaking that today, of course, but I don't think I'm really making a legal judgment, as you'll see.

The second reason is that I don't really like the positions taken by either side here. On the one hand, the legal case against Rove seems a bit weak. As far as I understand it, under the statute everyone is talking about, for Rove to have broken the law he'd have had to knowingly blow an agent's cover with the purpose of causing harm to America. The odds of being able to nail him on that are slim to none.

Andrew Sullivan points to an alternative statute which might be used on Rove. The relevant passage, to me at least, is the following:
(d) Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it...
(e) [same, but for those having unauthorized access to the material]
Shall be fined under this title or imprisoned not more than ten years, or both.

"[H]as reason to believe could be used to the injury of the United States" is a far easier standard to meet, but even there I think it's only 50-50. So I'm not going to jump on the blood bandwagon when I'm not positive Rove has committed a crime.

However, "committed a crime" is not the same as "did something wrong," and that's why I'm not going to swing the other way and defend Rove. There a disturbing Borg-like mentality amongst those defending Rove--all parroting the same excuses and justifications as if they are part of a giant GOP hivemind, not independent, rational thinkers. After Bush appeared to shift the standard on accountability (I'm with Amy Sullivan: Flippity-flop), we see the partisans falling over themselves to explain why really, nothing changed. As Andrew Sullivan argues, the point isn't whether or not they can make the argument. The point is they are parsing on a level that would make Billy Clinton proud.

The point is, whether a "crime" was committed or not, Rove still was wrong. Ethics transcend law. I come down with Matthew of the Centrist Coalition:
Maybe what Rove did technically wasn't illegal, maybe the accusations that he is a threat to national security are overblown, and certainly the call for criminal proceedings are premature at best; however, that doesn't change the fact that his discussion with Cooper was inappropriate, irresponsible, unethical, and wrong. Furthermore, what he did certainly goes against the spirit of what the President and his Press Secretary previously claimed was the standard for the administration. To me, the words "Valerie Plame" have little meaning.... For a senior adviser of the most powerful office in the world to have a discussion with a news reporter about the work of a CIA agent, regardless of the seriousness or importance of that work, is the action of a man who clearly sees politics at any cost as a means to an end.

Ultimately, this issue does not lie at the extremes. Whether Rove committed a crime is obviously important, but at the same time it is entirely unimportant. When Bush (by way of Scott McClellan) said that:
If anyone in this administration was involved in it [the improper disclosure of an undercover CIA operative's identity], they would no longer be in this administration

he demonstrated that right and wrong was the operating point, not lawful and unlawful. In the two years that have passed, that standard appears to have been lost.

Just a Slip...

Howard Bashman links to a Bush press conference on the upcoming Supreme Court nomination. Any hints? Well, there's this:
And of course I'm reviewing a different candidate. I'm reviewing their curriculum vitae, as well as their findings. I will sit down with some and talk to them face-to-face, those who I have not known already. You know, we've got some people that -- perhaps in contention that I've already spent time with, that I know; in other words, I'm familiar with some of the people that are being speculated about in the press. And so I don't need to interview those. But of course I'm going to take a very thorough approach.

The familar face is obviously Gonzalez, no surprise there. But do any of the folks on Bush's shortlist, besides McConnell, have a C.V. of any length? To my knowledge, he's the only one with significant academic experience?

Or am I reading too much into it?