Pre-Departure Links Deluge

These should keep you off the streets:

Richard Kahlenberg believes that most distance learning is, at the least, problematic. He's fundamentally right, of course. Although this review focuses mostly on secondary education, the reality is that institutions look at online education, see a cash cow and justify it not for pedagogical reasons (anyone care to tell me how to give a test to an online class?) but rather out of self interest couched in the language of giving the consumers what they want (rather than what they need).

The C's and Lakers are tied at one game apiece as the NBA Finals head to Boston in the ridiculous 2-3-2 format that the league uses for the finals, and only the finals. Going into the series the great Charles Pierce wondered why the C's were underdogs. This will mark the first time one of my teams will have a chance to win a championship while I am away, pretty remarkable given the extent of my travels. Suffice it to say, I am ambivalent. Not that I expect much pity given what I'm going to be doing.

Former Supreme Court Justice David Souter, the smartest man I've ever been in a room with, recently put the smack down on conservative "originalism" saying it "has only a tenuous connection to reality." He's right, of course.

Former federal prosecutor-turned-conservative commentator Andy McCarthy's book is apparently riddled with errors, all of which just happen to bolster his anti-Obama screed.

In the wake of the Rand Paul idiocy about the 1964 Civil Rights Act comes a reminder that in places like Paul's Kentucky not only racism, but active discrimination, are alive and well.

There are a million things you can read about soccer (or football if you prefer -- I tend to use them interchangeably) right now, given our proximity to the World Cup, but I would recommend taking a few minutes to read this, from The Chronicle Review. (Of course I hope you'll also regularly check in at the Foreign Policy Association's Africa Blog where I hope to have daily coverage of things on the ground, not only from a football perspective, but more significantly in looking at how South Africa -- and Botswana -- experience the Cup.)

Texas is looking at a budget crunch right now. My adopted state is looking at cutting back on vital services. And the Lone Star State loved to look at the rest of the world and point fingers when things remained ok here while the economy tanked elsewhere. (Oh, you should have heard the smugness about California's meltdown two years ago. Admittedly, California is rightfully as source of mockery for all given its absurd political-economic system. Still -- many of us knew Texas was just putting off its own reckoning.) Well, Texas is giving $25 million dollars to Formula One, apparently just because.

I have not had the time nor the inclination to weigh in on the fiasco that was Israel's inept handling of the ship of fools heading toward Gaza last week. But Leon Wieseltier hits it pretty squarely on the head when he writes that whatever the justification, Israel may as well just have called its invasion of the ship "Operation Make the World Hate Us." Bibi Netanyahu is a bigot and a fool and has set back the cause of Israel by decades.

Apparently this is what follows "Generation X." I have no idea what it all means.

Have I mentioned that I'm going to the World Cup?

Justice Obama?

Would Barack Obama make a fine Supreme Court justice some day? Absolutely. And he is young enough that following in the footsteps of Williams Howard Taft might happen. But it is just silly to propose, (even as just a thought exercise) as Jeffrey Rosen does here, that Obama should appoint himself to the court.

Not to Quibble . . .

This Jeffrey Rosen op-ed in The New York Times seems to work from a false premise, which is that Earl Warren has a bad historical reputation. He might have a bad reputation among some conservatives. But on the whole, Earl Warren not only does not have a bad reputation among historians and legal scholars, he is considered one of the great justices in American history. That sort of undermines Rosen's larger point.

The Devil’s Dictionary, American Politics, and the Constitution

I was the speaker for our Constitution Day events at UTPB today. Here is the brief address that I gave for any who might be interested (it was followed up by a great Q & A).

In the late 19th and early 20th century a man by the name of Ambrose Bierce, a journalist, author, and humorist, began penning satirical definitions of words in one of his newspaper columns. He defined a cynic as someone “whose faulty vision sees things as they are, not as they ought to be.” He defined contempt as “The feeling of a prudent man for an enemy who is too formidable safely to be opposed.” In 1906 these definitions were compiled into The Devil’s Dictionary, which consists of more than a thousand words and is structured just like a normal dictionary.

Bierce did not steer clear of the law and the legal profession. He defined a lawyer as “one skilled in circumvention of the law.” Justice is “a commodity which in a more or less adulterated condition the State sells to the citizen as a reward for his allegiance, taxes and personal service. And there are three definitions that he put forward that are apropos for my talk today. Speaking of the country’s two great political traditions, Bierce identified a Conservative as “a statesman who is enamored of existing evils, as distinguished from the Liberal, who wishes to replace them with others.” That which is “lawful” is, according to Bierce, “compatible with the will of a judge having jurisdiction.” And, finally, an egoist is “a person of low taste, more interested in himself than me.”

I am intrigued by Bierce’s definitions because while cynical, in both the traditional and in his own definition of the word, they also speak some truths. We live in a cynical age. More to the point, we live in an age of ugly and divisive political dialogue. Without a grasp of history or meaning we accuse those with whom we have honest disagreements not merely of being wrong or misguided, but of being idiotic or evil, of being Nazis and Fascists and Socialists and Communists and terrorists and Klansmen. We accuse them of being Hitler or Stalin or Lenin or Satan. These accusations are wrong in both sense of the word – they are wrong in fact and interpretation, but they are also wrong ethically and morally. To be intentionally ironic, and even hypocritical, these accusers are unaware of how fascistic and Stalinist, how idiotic and evil they are.

Our judicial system is not immune from these trends. Indeed, on both sides of the political all and across all ranges of the ideological spectrum the inclination is to try to appropriate those aspects of Constitutional law and our judicial system that we like and to disregard those that we don’t. And so in that spirit, and with Bierce’s definition of both an egoist and lawfulness in mind, I offer my own entries into a Devil’s Dictionary for our fraught political climate.

An activist judge is “a judge who does not act to misinterpret the constitution in ways that I see fit.”

Original Intent is “how I can best misrepresent a complex history into a simplistic sound bite to convince the listener that I know how Thomas Jefferson would have felt about the internet.”

Unelected judges are “men and women in black robes with black hearts who act in ways contrary to my interests.”

And, alas, it seems that the Constitution is now “ a document that serves as a useful weapon to hit my Nazi-Stalinist-Socialist-Communist-Hitler-loving-Satanist of an enemy over the head with.”

But perhaps a little perspective is in order. In a world in which the noisiest and the obnoxious get the most attention irrespective of talent, merit, or the intelligence of one’s views on the issue about which they are screaming (I’m talking to you Kanye West, Joe the Plumber, and anyone who has ever appeared on a reality show) it is worth stepping back and recognizing a few salient points, particularly when it comes to our Constitution and those who interpret it.

Almost universally the men and women on the court are not just intelligent, but are brilliant and committed public servants all of whom could be making much more money and garnering much more fame while being called much nicer names. I have been in the room with a number of Supreme Court judges, and almost across the board they have been thoughtful, dazzlingly articulate, and able to sort through ideas of great complexity and with long and sometimes tortured histories. It is precisely the fact that we do not elect them that allows to them to contemplate, think, and sometimes protect the rights of the few when the Constitution and the principles of the country demand it.

The accusation of “Judicial activism” really is a bit of an empty one. Assuming that we really do believe that the courts, and particularly the Supreme Court, are part of the system of checks and balances and that the judicial branch is coequal with the legislative and the executive branches, then the Supreme Court is sometimes going to challenge both the legislature and the executive. As my own definition indicates, “activism” tends to be in the eye of the beholder. The other side engages in activism. My side engages in complex legal assessments.

And while close decisions draw all of the sound and fury and bring out some of the very worst in our politicized dialogue, the reality is that the vast majority of cases that go before the Supreme Court end up with unanimous and near unanimous decisions. The vast majority of cases are decided by unanimous, 8-1, or 7-2 majorities. Far, far fewer cases end up with a 5-4 result than we would think from the tone of discussion about the court.

It seems clear, then, that we need to take a step back. That the Constitution and the interpretations of it are too important to become part of the maelstrom of ugliness that too often defines American life in the year 2009. Disagreement is a vital and cherished part of American civic life. But that guy whose politics you disagree with? He’s not a Nazi. He’s not a Stalinist. He’s almost certainly not even actually an enemy. He simply disagrees with you. Is that really so evil?

On Activist judges

Matthew Yglesias makes a great point in this article at The Daily Beast: "Conservatives love activist judges. They just prefer when they advance the interests of white people." More importantly, and perhaps more fairly, conservatives love judicial activism as long as the activism is for stuff that they like. Indeed, when a conservative accuses a justice of judicial activism what they really mean is "that judge did something with which I disagree so they must be an activist judge."

SCOTUS

And it's: Sonia Sotomayor, who, if confirmed (and she will be), will become the first Hispanic and third woman to serve on the Supreme Court of the United States. Cue the predictable "judicial activism" condemning, liberal-bashing outrage from conservatives who only loathe certain kinds of judicial activism.

Quick Hits

Because dcat readers cannot live solely on a diet of Keele Diaries, here are a few links with brief commentary:

Eugene Robinson takes on the very real and deeply disturbing possibility that The New York Times Co. might shutter The Boston Globe. He uses words such as "pimp" and "cannibalism" to describe the Times' behavior. It is hard to disagree with him.

At Salon Glenn Greenwald goes after Jeffrey Rosen of The New Republic for what Greenwald (to my mind rightfully) calls Rosen's "smear" of potential Supreme Court nominee Sonia Sotomayor. Rosen basically relies on little more than anonymous sources to attack Sotomayor's intellectual abilities. long-time readers know my view on journalistic use of anonymous sources, especially when those sources are used simply to grind an ax or pursue an agenda. It is one thing to protect a source who would otherwise be in legitimate danger and whose evidence is essential to the telling of a story. It is quite another to rely on anonymous sources to provide the only evidence you have to accuse someone of being dumb, sloppy, or both.

Finally, Jonathan Chait at The New Republic asks what happened to conservatives cherishing the rule of law? It was vital when it came to pursuing Bill Clinton for lying about his infidelities. Apparently it is less important when it comes to the rather more significant matter of engaging in torture. I am not sure where I stand on pursuing convictions. It seems to run the risk of guaranteeing future tit-for-tat. At the same time, should being in a presidential administration automatically grant one carte blanche for what are, not to put too fine a point on it, human rights violations?

Loving Privately, Loving Publicly

Mildred Loving, the wife in the couple who brought the case of Loving v. Virginia, in which the Supreme Court struck down laws prohibiting interracial marriages, recently passed away. In an "Editorial Observer" piece in The New York Times, Brent Staples reminds us of the ways in which intimately private concerns became the foundation for a monumental court decision that the plaintiffs would have as soon never had to endure.

[Hat Tip to my top-notch student, Mary, for the link. For a review of the best history of interracial marriage in the United States in the post-World War II era I humbly direct you here, and to my getting the stamp of approval from Harvard University Press here. (If they can use me to further them, I'll gladly use them to further me!)]

James McGregor Burns and the Supremes

The historian and political scientist (and Williams College professor emeritus) James McGregor Burns is turning his attentions toward the Supreme Court. I suspect that this book will make an important contribution as most of Burns' works have.

Race, Schools, and the Supreme Court

There has been a great deal of worthwhile commentary on the Supreme Court's recent, and to my mind unfortunate, decisions in two recent cases involving race and public schooling, Parents Involved in Community Schools v. Seattle School District #1, et al. and Meredith, Crystal (next friend for McDonald, Joshua) v. Jefferson County Bd. of Education, et al.
Since I'm not quite ready to engage in full-bore commentary (or to bore you with full commentary) you should go read verious assessments by Eugene Robinson in The Washington Post, Stuart Taylor at Newsweek in an online-only commentary, Juan Williams at The New York Times (See also Times articles by Linda Greenhouse and Tamar Lewin as well as the Paper of Record's editorial), Derrick Z. Jackson at The Boston Globe, (See also the Globe's editorial), Mary Dudziak at "Legal History Blog," Jim Castagnera at History News Network (originally from the News of Delaware County),and Ralph Luker (who was a signatory to an amicus brief from sixty historians and from whom I cribbed the links to the reports on the cases) both here and here. (Naturally there has also been some stuff with which I adamantly disagree, such as this.)

Dear Diary

Tom has a new diary post up. There he cites a WSJ Opinion Journal article as evidence that Clarence Thomas is his own man. I find the argument underwhelming to say the least. He also cites Jeffrey Rosen's recent article-cum-interview with Justice John Roberts, which is great, and argues that Roberts is staggeringly smart and could be one of the great chief justices. While I think it is seriously premature to come to any such conclusions on the latter point, Roberts is staggeringly smart. But almost all Supreme Court justices are staggeringly smart. Scalia may be a gasbag, but he is brilliant. I have been able to spend time in small groups in person with Ruth Bader Ginsberg and Stephen Breyer, and both are insanely intelligent. I have done so on three occasions with David Souter who is, hands down, the smartest person I have ever encountered. Intelligence is usually (though not always) the coin of the realm for Supreme Court justices.

He also amusingly pillories Nickelback simply by quoting the lyrics of one of their songs in full. Though there was a song of theirs in the last year or two that I thought was pretty good and had a great video. But their earnest frat rock certainly warrants mockery, and Tom is up to the challenge.