Tuesday, February 07, 2006

Erwin Chemerinsky

Last week the American Constitution Society of Notre Dame brought in Erwin Chemerinsky, Constitutional Law professor at Duke, to talk about the prospects of the Supreme Court with new additions Roberts and Alito.

His stated subject was, of course, predictive. He did throw in some very value-based comments regarding, among other things, abortion and affirmative action, but I suppose he and his sponsors were abundantly clear about his liberal identity, so we should perhaps expect as much and allow it. At any rate, I'll leave that and question instead his predictions.

Chemerinsky is obviously very intelligent. He was a good speaker, and relatively persuasive. That said, I don't buy all he had to say. Upon reflection, his views seem rather apocalyptic. Basically, now the court will overturn Roe v. Wade, return to segregation, allow rampant religious establishment, and let the President claim imperial power (are ALL those bad things?). Apparently Alito is a super-extremist and Bush should have chosen an O'Conner clone to save America from upheaval and right-wing tyrrany. I'm not so sure the sky is falling.

One: Overturning Roe v. Wade. That's pretty big, and I think the Court is aware of that. Overturning it would cause some serious political (not to mention cultural) fallout, and the Court won't do it lightly. If they do, is that so bad? If you are pro-life (*ahem* like me), you'll see it as a positive thing. If you're pro-choice, well, it just means now you get to lobby your state legislature instead of Congress (actually, that's true for pro-choicers, too).

As for the others, I don't think, even if Chemerinsky IS right about the balance of the court, we are not going to see as large-scale fallout as he seems to predict. Give the justices some credit, man. And the public. Life will go on. The battles may move to different grounds, but they will always be there. Have some coffee and relax.

Comments, you law nerds and law nerd wannabes?


Thomas said...

This is nit-picking, but I don't think Chemerinsky actually said that this court would reinstate segregation. He said that an originalist jurisprudence would not allow for the court's holding in Brown v. Board of Education. I think he meant to illustrate that originalism is ignored by its adherents when it produces undesirable results, not that originalists would overturn Brown v. Board of Education.

Otherwise I agree - good speach, but a bit too much fire and brimstone.

The Bard said...

I found Erwin C. persuasive, but in the opposite direction, as the presentation was nothing less than the worst substantive presentation I have seen and more suited to a James Carville TV rant than a law school. Indeed, there was nothing LEGAL about the entire presentation. Not once did he consider what the correct legal conclusion might be on any of the issues he mentioned. I realize that to the liberal position presupposes that the distinction between law and policy is a thin one, but EC. could have offered something. Cass Sunstein, the previous liberal law prof who spoke, did a much better job on this point.

Furthermore, Sunstein came off as a gracious opponent, while EC packed his speech with misrepresentaions and strategic ommissions.

For example, EC said that Alito gave his blessing to the strip-searching of a 10 year old girl. Sounds ominous. But EC didn't say that the search was done by a female officer in private, and Alito only approved of such searches when done that way and in drug cases. Now, a reasonable person could still argue that the search violated the the 4th Am, but that was not EC's arguement. EC is too smart not to know those fact which Alito wrote were critical.

EC said that Alito and Roberts think the Endangered Species Act is unconstitutional. Not true. I have read their opinions in last year's Biodiversity & the Law class. They think that the ESA, when applied to species which live only in one state and have no commerical value is outside Congress's power to regulate interstate commerce since there is no commerce and no interstate movement. They do not challenge the ESA's validty as applied to the vast majority of species which live in many states of have commercial value.

EC attacked an Alito ruling that Congress could not regulate the sale of automatic gun parts. Now, I think Alito is wrong on that point, but EC did not say that all the past circuit decisions upholding the ban were issued before the Supreme Court decided a case called United States v. Lopez in 1995, which appeared to limit Congress's power to regulate some guns under the Commerce Clause. Again, one can disagree with Alito, but EC left off some very important facts.

Originalism. EC framed the issue as one of "original intent." No "originalist" take that position, with the possible exception of Robert Bork. The issue is original meaning--not what the Framers subjectively meant (because making that determination is, as liberal correctly observe, impossible) but what the words actually meant in that time. So his charge that the use of "he" referring the the president makes originalism ban a woman president is absurd. An orginialist would say that word's meaning at the time included both men and women, and that meaning trumped any subjective chauvinism on the part of some Framer.

EC must be smart enough to know all these things, and his ommissions cast a serious shadow over his speech. Why should I trust any factual assertion by such a person?

EC's predictions of what the SC will do in the future were equally absurd. His "parade of horribles" assumed that on every issue, the issue would come before the court, and that none of the justices would say, as they sometimes do "that past decision sucked, but it's water under the bridge." (Rehnquist's opinion in a case reaffirming the Miranda Warning is an example of this). His characterization of the judges themselves was disingenuious, as O'Connor was more conservative, and Roberts & Kennedy more liberal, than he let on. He also assumed that none of the conservative justices would die or retire, and that the GOP would keep winning elections to appoint their kind of judges.

EC threw out words like "extreme," "radical," and "mainstream," but never gave us a baseline by which to judge. Who decides?

Finally (and I stop because of space, not lack of ammunition), EC never addressed the fundemental question of the role of an unelected judge in a democratic society. He mentioned several times that for some people it was "the courts, or nothing."
Maybe. But is that a bad thing? Is our nation primarily a democracy where the courts step in only to prevent the worst abuses, or an oligarchy of nine unaccountable platonic guardians with occasional input from the people? For every liberal who wants the courts to interpret a law one way, I can point to a crank conservative (disclosure--I object to some of my fellow conservatives legal claims at times as merely the mirror image of liberal cranks). Just who and what are the courts supposed to be? This is the foundational problem of constitutional law, and no one (no, not even someone as opinionated as me) can offer a complete solution. But EC brushed over this issue without a thought on his policy rant. Al Franken and Rush Limbaugh can give policy rants, even polished rants. I expected more from one of the nation's most well known law professors.

EC earned fame for arguing that a six-foot monument containing the 10 Commandments, which had stood among dozens of similar momuments on the state house grounds for 30 years in the very liberal city of Austin, Texas without inciting any protest somehow constituted an unconstituional "Establishment" of religion. That position struck me as so preposterous that I was hoping to hear someone whose legal reasoning could force me to rethink the issue, and whose personal credibiltiy would convince me of their good faith.

I was dissapointed.

The Bard said...

Response to Thomas on Originalism & Brown. Michael McConnell was written on the issue and created an orginialist defense of Brown. One need not entirely accept his analysis, but McConnell work is well-reguarded, even by liberals like Sunstein. An honest presentation would at least acknowledge McConnell's work and try to refute it.

Becca said...

Note on the segregation: I wasn't actually referring to the Brown decision stuff (which I found a little unbalanced, but whatever), but the implication (or outright statement) that an end to affirmative action (which Alito would presumably affect at the first chance) would inevitably result in all-white public universities.

Monkey Lung said...

The bard's points about the role of the courts in 21st century America are well-taken and I think really at the heart of what the battle over the recent appointees is all about. I would like to take things in a bit of a different direction and address the Roe v Wade issue.

Monkey Lung said...

This is one ruling that I think has become so ingrained in American policy no amount of conservative justice apointing could overturn it. And even if it did, Becca is wise to point out that the consequences may not be disastrous. Such a ruling, as I understand it, would merely deem any new laws prohibiting abortion not to be "unconstitutional". One must still go about the task of passing said bans, which may be harder than pro-choicers think. I for one do not wish for such a dramatic upheaval. I am pro-life, and I do think abortion is an abomination but necessity breeds ingenuity and I would rather see a tightly regualted legal abortion practice in this country than a blackmarket one killing as many women as babies. It should be difficult to obtain an abortion, there should be hoops, and it should be forbidden in earlier stages than the current 27 week standard based on outdated data about fetal viability. But a wholesale ban in my opinion endangers more lives than it saves. Thoughts?

Lincoln said...

I suspect that any prediction--liberal or conservative--about what the court will do will come true only because it is lucky, not because it is right. More presidents than one have been surprised by what their good, predictible nominees have done once they became justices. Once a justice had been (mostly) removed from the political process, faced with the responsibility to decide cases instead of advocate them, and, most importantly, achieved the highest office in his profession with life tenure, his opinions tend to change. True opinions do come out (with the encouragement of life tenure), but more than that, opinions tend to become more moderate as justices' recognize the significance of their decisions. So best of luck to the Nostradami of the High Court. I'm not taking time to read their prophesies; it takes some patience to wait for the histories, but they're usually more accurate.

Just an unoriginal, uninsightful comment from one who fits well into the category of "law nerd wannabes."

The Bard said...

If we are going to discuss Roe specifically, I suggest another posting. In answer to Lincoln, another of Erwin C.'s historical misrepresentations is that very few judges (he cited Blackmun as an example) really do change their minds. Kennedy & Byron White are two examples he did not give, but could have. I think that while the ability to predict what a judge will do is greater than Lincoln suggests, there is an impact from the insulation from the political process. The impact is one more reason that the role of the court in a democratic society should be the center of the debate rather than focusing on specific policy issues.

More on Erwin C & Brown. What kind of assumptions must he have about minorities in general, and African Americans in specific, to suggest that without racial preferences there will be no minorities in public universitites? Has he ever heard of Condi Rice or Barak Obama?

Peter said...

All right, this whole dialogue seems a bit one-sided...

As far as Chemerinsky's assumptions about minorities, I don't know that his beliefs betray, as the Bard is alleging, a racist belief that African Americans are less capable. Rather, Chemerinsky's beliefs reflect a view, right or wrong, that we as a culture have put minorities in a position where it's harder for them to gain access to our institutions of higher education - harder, not impossible, as evidenced by Obama and Condi.

Bard, I suspect (and I'm not anxious to build a straw man so let me know if this is inaccurate), believes that African Americans should pattern themselves on minorities similar to the Asian population, who are frequently characterized by conservatives as the "ideal minority" - hardworking, intelligent, and, most important of all (to anti-Affirmative Action conservatives), not demanding of a political redress of their grievances.

This criticism ignores the vicious cycle we as Americans have put African Americans in - from ghetto to underfunded school back to ghetto. After the constant discrimination of the past 300 years or so of American history, there's no reason we can't - and yes, I'm going to say it - "reverse discriminate" to help end this cycle.

In addition, criticism of affirmative action ignores the benefits of diversity in educational institutions. Although this may not be evident at either Bob Jones or Notre Dame Law, where the percentage of minority students is appallingly low and the pressure to conform to a conservative, white culture is appallingly high, diversity benefits everyone. I think Bard would be less willing to characterize people he disagrees with as "cranks" if he had more exposure to diversity in education - and I can say this, not as a personal attack, but as a comment on the tragic lack of diversity in these institutions, because I have had the exact same background, and have the exact same propensity to label those I disagree with.

Peter said...

Looking over my comments, I think I failed to make something clear. I personally am not a whole-hearted advocate of affirmative action. My comments were aimed at pointing out the valid arguments in favor of affirmative action, and also the absurdity of implying that affirmative action supporters are somehow racist. To doctor and parody the argument a little, what kind of assumptions must Lincoln have had about minorities in general, and African Americans in specific, to suggest that without a bloody war liberating slaves African Americans wouldn't be able to free themselves? Had he never heard of the underground railroad?

An absurdy comparison? Definitely. But not much more absurd than suggesting that those wishing to rectify the cultural divide between the white majority and minorities, particularly African Americans, are somehow secretly racist.

The Bard said...

My side remarks seem to have touched off another subject which belongs in a different forum. My bad. But in response to Peter's point on Asians, I suggest a bit of history. While there is a mental aspect to slavery that Asians cannot match, the physical conditions that Asians faced when they first came to this nation are every bit as severe. Ever heard of the Chinese exclusion laws? Japanese Alien Land Law? The treatment of the chinese who built the transcontinental railroad? Japanese internment?

My point is not that there is not lingering racism specially directed against blacks. There is. My point is that Asians suffered more than some want to admit, and further that there IS a cultural issue here. Think Bill Cosby's recent comments.

Cranks. No amount of diversity education is going to make me think that Mr. Van Orden, whom Erwin C lionized, is not a crank. I can, and have argued that I am equally disturbed by right wing cranks, and would be equally disturbed by some person who wanted to remove a Totem Pole on grounds that it was establishing animism, statutes of Buddha in an Asian neighborhood, or even someone who sued aruging that giving Muslim soldiers a pork-free diet establishes a religion.

Might there be arguements in favor of affirmative action? Yes. I think there is a pragmatic arguement that having different cultures makes one better able to do business with members of that culture. But making that arguement is a far cry from suggesting that without affirmative action, we will have all-white public universities, which is what Eriwn C. did.

My point remains that while reasonable arguements exist for (some) liberal positions, Erwin C. made none of them and relied instead on mischaracterizations and exaggerations which he is too smart a man to have made accidentally.

Anonymous said...

Hey, I just want to know if Chermerinsky was forced to write a check! ;)

The Bard said...

I'm guessing not, as no firm is dumb enough to say "we're not hiring you b/c you are not diverse," just as no firm is dumb enough to say "we're not hiring you because you are hispanic."

Both happen, the latter more than the former, but lawyers are too smart to be that obvious.

Anonymous said...

No kidding. Hence the sarcasm.

Anonymous said...

If you're going to write a post about an event, please get the name of the sponsoring organization correct. It's the American Constitution Society, not the "American Constitutionalist folks."

Becca said...

Thank you for pointing out the inacuracy. I have changed the post to reflect the group's proper name. I apologize for any confusion this may have caused.

Anonymous said...

I thought it was funny when he said "as much as it pains me as a Jewish man, I think Christmas is a secular holiday."

I think Christmas is about as secular as Christianity.