Tuesday, September 27, 2005

Re: Of John Roberts, Ben Stein, Richard Posner and George Bush.

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Dear Colleagues:

This post shall discuss a potpourri of subjects that have no necessary logical connection, but nonetheless can be connected, and in this writer’s mind are connected by free association.

It is clear that, barring something wholly unforeseen, John Roberts is going to be confirmed by the Senate. Even Democratic Senators of whom one might never have thought it – Leahy, Finegold and Kohl -- voted for him in Committee. As remarked here before, people of my acquaintance think very highly of him, and his appearance before Congress made it clear to all that he is smarter than Hades, well spoken and charming, not to mention possessed of great stamina and patience.

Frankly, though one gathers that many Senators on the Judiciary Committee considered the entire matter to be, and treated it as being, one of utmost importance, to watch the hearing was largely to watch a highly knowledgeable intellect overmaster a bunch of windbags. That some of the Senators -- oppositely to Senator Sessions, for example -- may have had justice and decency on their side did not alter the impression one received. They were overmatched. One against eight were pretty good odds for Roberts.

In a way, though, one can hardly blame the Senators, windbag politicians though they are. For they were trying to take on, on his own turf, an expert in a huge field. They might have known more about Roberts’ field than they would know about string theory, for example, but their level of knowledge and their ability to manipulate the concepts were still infinitely less than Roberts’. They were often reduced to spluttering generalities.

Though Roberts overmatched his interlocutors by light years, his victory was no victory for "the better angels of our nature." At least not now, although only God knows what the future will hold. It was, rather, a victory for some of the less desirable aspects of our judicial and political systems. As discussed here previously, and for the reasons given then, Roberts acted very unethically by continuing to sit on the Guantanamo case while he was being repeatedly interviewed by high administration figures with regard to a potential, and then an actual, Supreme Court opening. If there is one thing Roberts could not have failed to know, it is that a decision contrary to the administration’s ardent wishes in the Guantanamo case would doom any hope of appointment to the Supreme Court. Yet he continued to sit on the case. This was shameful, not to mention infuriating to anyone with a sense of ethical decency. (If you wish to read this last remark as an implication that in this instance, at least, Roberts lacked even rudimentary ethical decency, feel free. Such seems all too typical, moreover, of this generation of administration Republicans, who seem to feel they are anointed by God to bring back values and thus may permissibly do whatever they wish, however wrong lesser mortals may think their actions.)

Roberts’ victory in the Judiciary Committee was also a victory for that bane of decent government (and decent corporate and other behavior), secrecy. In every human endeavor, secrecy is the fount and nutrient of evil -- which is why Brandeis said that sunlight is the best disinfectant. Here the administration -- as is its wont -- refused to turn over documents, and Roberts often refused to say what he thought about issues in past cases. Such issues might come before him in the future, after all, and he would not want a litigant to think its’ case was prejudged. Or so we were told.

The last argument is, it seems, an oft given excuse. It is quite surprising to me that nobody seems ever to have brought forth the obvious and inarguable responses. To wit: "Well, Judge, after you have written (or even merely joined) your first opinion on the matter, all subsequent litigants will know what you think, and can equally feel prejudged. So why shouldn’t you tell us now what you think? You will be no more or less free to change your mind after further consideration than after your first opinion. And if your current opinion is merely tentative, you can tell us that too, and you will be even freer to change your mind than after your first opinion, because the latter is a legal precedent."

Sometimes, of course, a nominee is, like Roberts, already a judge, and may have opined on an issue as a judge, may have opined beyond the usual excuse, often bushwa, of "Supreme Court precedent made me do it." When this is so, future litigants on the issue will know what the judge already thinks. So, once again, why shouldn’t someone know what a Roberts thinks?

These points are all so obvious that one wonders why they seem never to have been written about. (Or have they, but I don’t know it?)

Roberts’ victory is also a defeat for another idea, a most unpopular one, however. When asked whether he believed some of the abominable stuff he wrote in the Reagan administration, Roberts kept ducking the question by saying it had to be remembered that he was working for certain people, e.g., William French Smith. Well, who said he had to work for those people? If he didn’t agree with them, why did he work for them? He was, after all, a top graduate of Harvard Law School, and a former Supreme Court Clerk. He could have had gazzillions of prestigious -- and high paying -- jobs. If he worked for W.F. Smith, Reagan, etc. while disagreeing with the abominable views in his memos, he should be censured.

That this seems to have occurred to hardly anyone -- except Nancy Grace and Ted Kennedy -- is a measure of the extent to which people’s minds have been taken over by the evil concept that a lawyer merely represents a client and should say whatever may work on the client’s behalf. It is also a measure of the extent to which careerism uber alles, represented here by saying what one assumedly did not believe, has become the dominating American creed.

Of course, in reality nobody believes (do they?) Roberts’ attempt to elide his prior nasty comments by implicitly claiming that he was merely representing his bosses’ views. It is pretty certain that he damned well did believe what he wrote -- and that that was why he wrote it -- and is now either seeking to escape the consequences of what he said and believed then or seeking to signal a possible change in views without owning up to what he believed and said. Or both. Yet, no matter which, each alternative is a form of careerism, is it not, and, in this respect, not a whit removed from continuing to sit on a case of vital importance to, and deciding in favor of, those who are passing on his nomination?

For those Democrats on the Judiciary Committee -- Leahy, Finegold and Kohl -- who voted in favor of Roberts, their votes represent a triumph of hope over common human experience. As Alan Dershowitz said on television during the hearings, a judge’s political views invariably govern his constitutional ones. Or to put it differently, constitutional views invariably comport with political ones. (Anything else might cause unbearable cognitive dissonance.) There are not many like Holmes, you see. And nobody has yet accused John Roberts of being a political liberal. Leahy, Finegold and Kohl are simply hoping against hope that Roberts won’t turn out to be a political reactionary today and tomorrow, as he apparently was in the early 1980s.

There was one matter about Roberts’ background that, as far as I know, never came out at the hearings. Roberts grew up, as was occasionally pointed out in the media, in a town called Long Beach, Indiana. Long Beach is part of the Indiana lakeshore (Lake Michigan’s eastern shore), in a general area of northwestern Indiana and southwestern Michigan that includes Michigan City, St. Joe, and Benton Harbor, as well as smaller villages and communities like New Buffalo, Union Pier, Lakeside, Michiana Shores and South Haven. If my memory from the 1940s and 1950s is correct, all or some of this is located around, at least roughly speaking, what are known as the Indiana Dunes.

When I was a small kid growing up in Chicago in the mid and late 1940s, my family used to drive to that part of Indiana for vacations. We would pass through Long Beach, and, again if memory serves, my parents would point out the large house of another Leahy, Frank Leahy, the great Notre Dame football coach. And, at least among "my people," so to speak, Long Beach was thought to be an anti-Semitic place. Certainly there had been, around World War II, Bund activity around the general northern Indiana/southern Michigan lake shore area. For those too young to know about such things, the German-American Bund was a pro-Hitler, pro Nazi, antisemitic organization.

Now, unless my memory or the information it contains are wrong, or unless there were dramatic changes of which I’ve not heard, John Roberts grew up in an area and among views that, to put it mildly, could not be described as left wing, or liberal, or politically correct. (Forgive the sarcasm.) One wonders what effect this had on him, and one is not comforted in this respect by the things he wrote while in the Reagan Department of Justice. (And what did he write, that Bush will not let us see, when in the Solicitor General’s Office?)

To be sure, the last thing in the world that one wants to say, the last accusation in the world that one wants to level, is that Roberts is a bigot. At Harvard College, at the Harvard Law School, in Washington, D.C., and in his well known law firm, Roberts has been in contact with, has been practically inundated by one might guess, large numbers of Jewish Americans, and has known, probably to an ever increasing extent, African Americans. Except for some of the language of his early memos, I know of no actual evidence even to suspect him of bigotry, and the diverse company he likely has kept certainly argues against it. Yet, unless my memory or the information of those long ago days of the 1940s is wrong, or unless there was a great change in the milieu, the views that likely surrounded Roberts in his youth give pause when he refuses to answer questions relating to the welfare of minorities. It gives rise to fear that, God forbid, the hope for Roberts implicit in the votes of Leahy, Finegold and Kohl could prove to be a triumph of hope over sense and experience. But let us hope not.

* * * * *
As one pundit put it during the Roberts’ hearings, Roberts shows that one born to privilege can rise to power. Of course, we already knew that, didn’t we? Viz. John F. Kennedy and the two Georges Bush. The lives of such people, especially the life of the drunken, serial corporate failure/playboy who became President, contrast dramatically with a situation that was described by Ben Stein in a New York Times’ article of January 30th -- by the Ben Stein of "Win Ben Stein’s Money," which is pretty hard to do because he is awfully smart.

Stein is an accomplished guy, being a lawyer, writer, actor, economist and television personality, with a regular Sunday article in the Sunday Business Section of The Times. In the article of January 30th he tells of career advice he received from his father, circa 1958. He makes plain that his father was in a position to know whereof he spoke, because he was director of research, and wrote papers on tax, trade, labor policy and other major issues for the Committee For Economic Development, and "knew the top people in business in the nation at the time," albeit "not as a social equal" though "he was at least their intellectual and moral equal." "And he did know the world." Stein’s father, you see, though Stein does not say so in this particular article, was Mort Stein, who later became head of Nixon’s Council of Economic Advisors.

Stein wrote the article to show how much the American world has changed since 1958, when he talked to his father about possible careers. Today, says Stein, we have made "stunning, unbelievable moral progress. It is a whole new world, a new universe of equality of opportunity." "Every job in every field is open to everyone," he continues, "with perhaps a very few exceptions" -- a statement which strikes me as quite an overstatement, although one takes his general point. Women and blacks run large corporations, Stein says, "Jews are hired at law firms that would not have let them in the door during my youth, except as tailors," and are "the heads of industrial corporations where they would not have been considered for interviews in 1958." Asians and Hispanics "are rising everywhere," Asians in technology especially and Hispanics "in the media, law and other fields."

But it was not ever thus, and it was not thus in 1958 when Stein sought his father’s advice on a career. Mort Stein asked 13 year old Ben "what careers I was interested in." "‘Well, I love cars, and I think I’d like to work at General Motors or, even better, Ford.’" Mort Stein told him to forget it. "‘Actually, Benjy, auto companies don’t really take Jews in executive positions.’"

Asked to make another choice, 13 year old Ben said "‘maybe advertising. I like the idea of working on commercials.’" Forget it, said Mort. "‘I have to tell you that Madison Avenue doesn’t really take Jews either, or at least not much.’"
Ben then said maybe banking. "‘That’s a neat place to work.’" "Now my father looked really unhappy. ‘They really don’t take Jews at a high level or even a low level either at the big banks,’ he said."

"It was a sobering conversation for a 13-year-old and, as you can tell, I remembered it vividly."

"That was the business world then -- highly restricted against Jews. And locked absolutely tight against blacks, unless they were washroom attendants or manual laborers. (The junior high school I attended, in the Maryland suburbs of Washington, had been desegregated only 18 months earlier.) For women, there was the world of typists and receptionists. Asians and Hispanics were hardly a business afterthought. That was it in free, white America in 1958. It was a white Christian men’s club, and it was not that long ago."

Well, this writer, being about five or six years older than Ben Stein, and like him born of Jews, grew up in that world and well remembers it. One remembers that there were hotels one could not go to, restaurants where one could not eat, universities -- especially some Ivy League ones, whose graduates practically run the country for God’s sake -- where one’s chance of admission was quite low, fraternities that would not consider you, law firms galore that would neither interview nor hire you though you were in the very top part of your class at a major law school (while Christians in the middle of the class were inundated with offers), and practically a whole country that scorned you as being part of a people who, contrary to the American ethos, were thought to generally be small, weak and non-athletic -- which is a reason why lots of Jews of my generation thanked God every day for the martial, and therefore inevitably physical, example of the mailed fist of the Israeli army and air force.

I have written extensively of all this in Misfits In America, and shall not repeat most of it here. But I remember it well, and not without some real bitterness. For while America fooled fools like me with its pretense that in the United States all things are possible for, and all obstacles can be surmounted by, anyone who is intelligent and works hard, the truth was quite different, and still is. There were outside, artificial limits on sons of immigrants, on Jews, on blacks, on women, and all the intelligence and hard work in the world could not surmount those limits.
There are people who tell me that anger is misplaced because, they say, one has done fairly well. And I would certainly say that Ben Stein has done very well. One would also say, with Ben Stein, that today the situation is infinitely better than in 1958, so that today a far smaller percentage of the population faces what people of our generation faced and are subject to artificial limits that were placed on us. Yet, as Stein conceded, "Of course we [still] have problems." Given our history, and given that we still have problems, there are lots of people who fear John Roberts, this son of Long Beach, this scion of Long Beachian privilege who will not answer questions relating to whether he will seek to continue the forward march Ben Stein speaks of so ardently, or will instead seek to turn back the clock to the days of Long Beach in the middle of the 20th century.

In an article about John Roberts in the most recent issue of The New York Review of Books, William Taylor asks the "intriguing question" of why did this "young person whose success in life was virtually assured by family wealth and academic achievement . . . enlist in a political campaign designed to deny opportunities for success to those who lacked his advantages? It is a question of great relevance to Roberts’s candidacy for the Supreme Court. As the late Charles Black has written, no serous person is under the illusion that ‘a judge’s judicial work is not influenced . . . by his sense, sharp or vague, of where justice lies in respect to the great issues of his time.’" We do not know the answer to Taylor’s "intriguing question." And, with fine irony, the three Democrats who are taking a fling on Roberts without knowing the answer -- Finegold, Kohl and Leahy -- include two Jews, the people whose limited opportunities not so long ago were written of by Ben Stein, and a descendant of the Irish, a people against whom discrimination was so deeply bitter and greatly prolonged when they immigrated to this country in the 1840s and 1850s that they were portrayed as monkeys in cartoons throughout most of the remainder of the 19th Century. One wonders if these three Senators have forgotten where they came from now that they personally are big deals politically.

Of course, many would say that it is a measure of the greatness of this country, of the opportunities it provides, that these three can forget where they came from in deciding on John Roberts. Personally, I prefer the wisdom of Santayana. One is not aware that history has as yet overthrown his dictum.

* * * * *
Richard Posner is a conservative, but a most interesting contrast to John Roberts.
Though I did not meet him at the time, I first heard of Posner when he came to the Solicitor General’s Office of the Department of Justice circa 1965 or so and I was writing Supreme Court briefs in the Appellate Section of the Antitrust Division of the Department. He quickly became legendary for the speed and therefore the extent of his work. It was a bittersweet joke told by other members of the Solicitor General’s Office that Posner, due to his speed, not only was doing his own work, but was taking over everyone else’s work in the office, too.

Posner, you see, typed. Today, when everyone seems to type (except Alan Dershowitz (and me)), it may be hard for most people to understand the great advantage possessed in those days by the few lawyers who knew how to type. Let me tell you a story that further illustrates this point.

Two years ahead of me in law school was a young man named James Adler. In those days, when an A was the highest grade one could get in a course at the Michigan Law School (whether this is still true today I do not know), Adler graduated with a straight A average, a perfect 4.0 average. (He was also editor-in-chief of the law review.) To the best of my knowledge, graduating with a straight A, or straight 4.0, average at the Michigan law School was unheard of in those days. For all I know, Adler may have been the only person who ever did so up until then, and I suppose it is possible he still may be (unless one can get A pluses these days, which would count for 4.3). A handful of extraordinarily bright people were known to have graduated with approximately 3.9 averages over the years, but a straight 4.0? Impossible. But Adler did it.

Adler must have had some kind of truly unusual mind. Coming along two years after him, I once bought a used casebook that had his name written in it as the prior student owner. There was not a mark in the book -- no underlining, no check marks, nothing. There was also a story around the school that Adler had gotten a score of about 187 or 189 or something like that on a test on which the next highest score was about a 148 -- the score of a fellow who himself graduated with a very unusual average of about 3.8 or 3.9. Yet another story around the school was that a final exam in tax law had had three questions. The third question asked whether the answer to question two would change if, instead of facts A and B, you substituted facts C and D. Adler’s answer, it was said, was one word: no. Looking at that question in the library’s file of old exams two years later, it was obvious that the answer was no. But with a 4.0 average possibly on the line, who could have had the guts, the confidence, to simply write the one word, no, without any explanation of why the answer was no? According to the story, Adler did.

So Adler obviously was a young man of truly unusual intellectual gifts. And, adding to his gifts, he had one other advantage, the same one Posner did. He typed. He typed his exams at a time when very few others did. Without taking anything away from Adler’s truly unusual mental gifts, any law professor can tell you that a typed, and therefore easy to read exam, starts with an advantage when being graded. It has an advantage over a quickly written, often difficult to read handwritten test no matter how smart or knowledgeable the scribbling writer may be.

We used to jokingly say that, given Adler’s grade point average, any professor who did not give him an A would feel compelled to reexamine his grading. And given that Adler was one of only a precious few who typed his exams, it would have been hard, after Adler’s freshman year and his remarkable 4.0 average that year, not to know which exam paper was his even though we put numbers, not our names, on tests. But be all this as it may, Adler obviously had truly unusual gifts.

So, as the Adler story further illustrates, that he was able to type gave Posner a leg up in the Solicitor General’s Office in the mid ’60s. But he too, like Adler, possesses unusual gifts, and decades later, when everyone typed (except perhaps Alan Dershowitz (and this writer)), Posner was still producing far more work than anyone else (with Dershowitz perhaps being the only one who is even within hailing distance in certain respects).

At some point Posner left Washington, D.C.. He was at Stanford Law School briefly, and then settled in at the University of Chicago Law School, where he created -- I think created is a fair word for it -- the law and economics movement and, I believe, started a consulting firm as well as taught and wrote. Then he went on the federal bench as part of Reagan’s conservative movement, a movement one thinks in the overall lamentable notwithstanding that it brought someone like Posner to the bench, and a movement for which the country is paying and will continue to pay notwithstanding all the supportive conservative propaganda of the last 25 years from so many think tanks, professors and politicians.

I have to regretfully admit that, for a considerable period, this blogger thought of Posner as simply one of Reagan’s conservative henchmen, since he is reasonably conservative, and seems to see most things in light of and to explain them by means of abstract, bloodless economic principles. But I began to change my mind drastically about 12 years ago when I read two 1993 articles by Posner. In one, which was later incorporated into one of his books, Posner lambasted a very famous, oft cited 1959 Harvard Law Review article by Herbert Wechsler on so-called "neutral principles" of constitutional adjudication. Without getting into all the ins and outs of the "neutral principles" argument, suffice it to say that Wechsler’s view treated the real world consequences of constitutional adjudication as being more or less irrelevant. That a decision be consonant with prior ones as a matter of abstract legal logic divorced from real world results was, rather, the desideratum, even if this meant we would have racial discrimination or other evils. This idea was outrageous to me as a believer in social justice who had not had this idea exorcized even by three years at the conservative Michigan Law School of the day, a school where the very air we breathed was suffused with the idea that the promotion of big business is the only proper goal of lawyers. So, as a kid of 24 or 25 who was outraged by Wechsler’s view, I wrote about it in an article that, after being rejected by the truly big shot law reviews of the day, actually got published in the UCLA Law Review, which wasn’t too bad a result even though that law school was still fairly new at the time.

But, although the article probably wasn’t too shabby, it was, after all, the product of a young kid of 24 or 25. So, when I saw almost 30 years later that the renowned and conservative Richard Posner had eviscerated Wechsler’s piece in ways that a 24 or 25 year old kid had never dreamed of 30 years before, but as part of the broader evisceration had also lambasted Wechsler’s lack of professional concern (as opposed to human concern, which he had) for real world results . . . well, this was, to say the least, interesting.

Also in 1993, Posner wrote an article in a Michigan Law Review symposium that addressed the criticism of legal education and legal writing leveled by Judge Harry Edwards, himself a Michigan graduate. Put in brief compass, although Edwards is considered a liberal, his fundamental criticism of legal writing was that it wasn’t sufficiently "doctrinal," as it is said. Instead of being about legal doctrine, too much legal writing, especially at the so-called "elite" schools, is about sociology or economics, or philosophy, etc.

Posner leveled both barrels at this criticism. One of his barrels was more than a mere whiff of grape detailing the benefit that such so-called "interdisciplinary" writing has had. Posner started with the field he knew best, law and economics. Admitting that its transformation of antitrust law is regarded by some as merely providing intellectual cover for conservative social and political results desired by judges, he said that he himself thought the transformation of antitrust was desirable, and that law and economics had also contributed to such widely approved results as the deregulation of transportation and communications, had contributed to the awarding of hedonic damages (damages "for loss of the pleasure of living"), had given economic arguments to women in divorce cases, had provided new lines of proof in employment discrimination matters, and had had desirable effects in numerous other fields too. Turning to non-law-and-economic matters, he indicated that feminist writings have had an effect "on rape law, sexual harassment, employment discrimination," that testimony by political scientists has had an effect on reapportionment cases, that "a literature informed by philosophy and literary theory" has affected constitutional and statutory interpretation, and so forth.

No doubt, in some areas where effect is seen by Posner, such effect is politically conservative. In others, though, the effects would almost certainly seem politically liberal -- which brings one to the major point here. As shown by areas where the effects are liberal or at least would likely be considered such today -- hedonic damages, economic arguments for women in divorce cases, sexual harassment and employment discrimination -- Posner is not reflexively conservative, is not always and unthinkingly conservative. He considers and adopts liberal positions, I believe, where he thinks them the stronger. He does not consider them the stronger nearly as much as this writer might, but he surely seems not to be closed minded, and for sure he is not blind to merits in arguments on the other side of his own.

These two 1993 articles caused this writer to reassess his view of Posner’s work. One knows there are lawyers in Chicago who have regarded him as arrogant or sharp towards lawyers when on the bench, or as sometimes inventing facts or a new, possibly idiosyncratic view of a case. And one may not agree fundamentally with his intellectual approach. But the fact remains that he is one smart dude who has written publicly about so many things that it seems he has written publicly about everything, and -- very importantly -- whose mind is open to good arguments.

In certain of these respects Posner contrasts dramatically with John Roberts. Roberts also is very smart. But he seems to have avoided a public record, documents that might reveal his more recent views have been withheld, and his refusal to answer questions means that fundamental views he may now hold are unknown. Holding unknown views seems almost a prerequisite these days to nomination and confirmation as a Justice, and is one of the reasons a man like Posner cannot be nominated. (Other reasons he wouldn’t be nominated by Bush are that his writings, as I think he has said on television, have created lots of opponents, he is not a right wing zealot, and he is unlikely to be on the bench for 30 years to impose right wing zealotry for three decades). All one can say about this is that it is a shame that a man as smart, accomplished and publicly understood as Posner cannot be nominated, while the opaque and reticent can be and, indeed, perhaps one need be opaque and reticent to be.

* * * * *
Which brings me to George Bush. George Bush is not smart as hell, very competent, and accomplished, as Roberts, Stein and Posner are. He is, rather, dumb, a former drunk who was a serial failure in business, an incompetent as he has been intent on proving with regard to Iraq, social security, New Orleans and other matters, and a great user of platitudes as well as an afficionado of photo ops instead of achievement.

George Bush is a child of privilege, as Roberts was and as Stein may in some respects have been because his Dad was so accomplished. But unlike Stein, any and every field was open to George Bush. He got into a few of them and managed to pretty much eff them up.

Unlike Roberts, Stein and Posner, all of whom succeeded outside of politics, George Bush succeeded only in or because of politics, that den of bushwa and iniquity, and succeeded there only because of who daddy and grandpa were.

Unlike Roberts, Stein and Posner, who as far as I know have committed no crimes, George Bush has been in criminal violation of the Anti-Torture Statute for years. One would venture that, if it hasn’t occurred already, you can bet that before Bush leaves office there will be a lot of destruction of documents and computer disks, and lots of attempted purging of hard drives, in the White House, the Department of Justice and the Pentagon in order to try to permanently hide the extent to which Bush and his pals are guilty of crimes.

And unlike Roberts, Stein or Posner, George Bush is the man our system has thrown up, in both senses of the phrase, to be President. Thrown up not just for one term, no less, but, heaven help us, for two.*

*This posting represents the personal views of Lawrence R. Velvel. If you wish to respond to this email/blog, please email your response to me at velvel@mslaw.edu. Your response may be posted on the blog if you have no objection; please tell me if you do object.

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