Sometime in the coming days, George W. Bush will hand down a list of nominees to fill ninety-nine vacancies in the federal courts. The federal judiciary as a whole is at stake in the fight that will follow. Bush sees the 50-50 Senate balance, with Vice President Cheney the tiebreaker, as a small window of opportunity for loading the benches with judges in the mold of his favorite Supreme Court Justices, Antonin Scalia and Clarence Thomas. The outcome will determine whether Republicans will transform the courts into a rubber stamp for their minority right-wing agenda.
The Supreme Court--whose recent actions include an attack on the Americans with Disabilities Act and its undermining of the Violence Against Women Act--remains the ultimate arena. Although its right-wing bloc has put its man in the White House, it should not be allowed thereby to insure its own succession. Because Bush lacks a mandate, there should be a moratorium on all High Court appointments until after the 2004 election. For the moment, however, immediate retirements appear unlikely, so the important campaign is in the lower courts.
Thanks to GOP obstruction of Bill Clinton's nominees, Republican-appointed judges are predominant in eight of the thirteen federal appellate circuits. Several of these circuits--the Fourth Circuit, located in Virginia, the Eleventh in the Deep South and others--are tipped in the direction of "strict constructionism," which means the most activist judiciary in memory. These circuits are already well outside the mainstream of American legal opinion. The Fourth Circuit's rulings, for instance, have so radically stripped the rights of criminal defendants that they have been repeatedly overturned in recent months even by the law-and-order Rehnquist Supreme Court.
The Administration has junked the American Bar Association's vetting of judicial candidates and turned this task over to conservative legal ideologues. Senate Republicans are trying to outflank Democratic opposition by jettisoning the practice of consulting with senators of the opposition party on political nominees from their states. Judiciary Committee chairman Orrin Hatch plans to abandon the tradition of requiring that nominees win the approval of both senators from their home state--a maneuver that will bring to the floor Bush nominees from the fourteen states with only one Democratic senator.
With the Rehnquist Supremes taking ever fewer cases--only eighty this past term--the federal appeals courts are now increasingly the courts of last resort, and it is essential that Senate Democrats hold the line against further shifting the balance in those courts. There is nothing immoderate or partisan in Democrats--as well as independent-minded Republicans--using their advise and consent power to the fullest to reject any nominees for those circuits who cannot demonstrate substantive commitment to progress in civil rights, to women and to environmental and business regulation. Conservatives will accuse them of "Borking," but that distorts the meaning of the fight against Robert Bork's confirmation, which involved no more than an intensive scrutiny of the nominee's record and philosophy. The goal should be to block the Administration's avowed attempt to pack the federal bench with ideologues who would undercut environmental protection laws, roll back basic rights for all Americans and give the religious right's "morality" the force of law.
A federal district court recently blocked publication of Alice Randall's The Wind Done Gone, a parody of Margaret Mitchell's Gone With the Wind, ruling that the parody constituted plagiarism.
Section One--Reading Comprehension
Read the following literary excerpts. Pick the one that is not parody. Write an essay about why its publication should be enjoined.
a. "Ah's sceered of cows, Miss Scarlett. Ah ain' nebber had nuthin' ter do wid cows. Ah ain' no yard nigger. Ah's a house nigger."
"You're a fool nigger, and the worst day's work Pa ever did was to buy you," said Scarlett slowly, too tired for anger. "And if I ever get the use of my arm again I'll wear this whip out on you."
There, she thought, I've said nigger, and Mother wouldn't like that.
--Gone With the Wind
b. "Help me out of these wet things, Pansy," Scarlett ordered her maid. "Hurry." Her face was ghostly pale, it made her green eyes look darker, brighter, more frightening. The young black girl was clumsy with nervousness. "Hurry, I said. If you make me miss my train, I'll take a strap to you."
She couldn't do it. Pansy knew she couldn't do it. The slavery days were over, Miss Scarlett didn't own her, she could quit any time she wanted to.
--Scarlett: The Sequel, by Alexandra Ripley
c. [H]e took them over to where the house we called Twelve Slaves Strong as Trees once stood. I have forgotten their name for it. What I remember is this: there were twelve columns across the front of that slave-built house. They stood for the original twelve dark men who cleared the land. And the lines, the flutes, on those columns stood for the stripes on those slaves' backs.
--The Wind Done Gone
Section Two--American History
Read the following passages and decide which best summarizes the facts of the Civil War.
a. "De Yankees is comin'!" bawled Prissy, shrinking close to her. "Oh, Miss Scarlett, dey'll kill us all! Dey'll run dey baynits in our stummicks! Dey'll--"
--Gone With the Wind
b. It was the Confederate Memorial, symbol of the proud, heedless courage that had plunged the South with bright banners flying into destruction. It stood for so many lives lost, the friends of her childhood, the gallants who had begged for waltzes and kisses in the days when she had no problems greater than which wide-skirted ballgown to wear.
--Scarlett: The Sequel
c. If it was mine to be able to paint pictures, if I possessed the gift of painting, I would paint a cotton gown balled up and thrown into a corner waiting to be washed, and I would call it "Georgia."
--The Wind Done Gone
Section Three--Critical Reasoning
Which of the following descriptions best completes the following analogy: mother is to child as elephant is to _______.
a. Mammy emerged from the hall, a huge old woman with the small, shrewd eyes of an elephant. She was shining black, pure African, devoted to her last drop of blood to the O'Haras.
--Gone With the Wind
b. Scarlett stared down at the skull-like face of the dying old woman. "I love you, Mammy," she whispered. "What's going to become of me when I don't have you to love me?"
--Scarlett: The Sequel
c. They called her Mammy. Always.... I heard tell down the years they compared her to an elephant. They shouted down to their ancestors: She was big as an elephant with tiny dark round eyes. But she wasn't big enough to own a name.
--The Wind Done Gone
Section Four--True or False
Mark the following true or false. Use a hard black pencil to fill in the entire area of the little white circle of your choice.
a. To focus the social passions of African-Americans on what some Americans may have done to their ancestors...years ago is to burden them with a crippling sense of victimhood.
--Journalist David Horowitz, in an advertisement in Brown University's student newspaper
b. We've all got to stand up and speak in this respect or else we'll be taught that these people were giving their lives, subscribing their sacred fortunes and their honor to some perverted agenda.
--Attorney General John Ashcroft, quoted in Southern Partisan
c. I could see in Other's face the first moment it came to her the possibility that Mammy did for her not because she wanted to, but because she had to. Maybe Mammy loved her and maybe Mammy didn't. Slavery made it impossible for Other to know. "She who ain't free not to love, ain't free to love."
--The Wind Done Gone
Section Five--Logical Thinking
Cross out the one that is not free speech.
a. a hit list of abortion doctors published on the Internet
--Ninth Circuit opinion, March 2001
b. a regulation promulgated by New York City public schools chancellor Harold Levy prohibiting the opinionated teaching of race and politics
---Peter Noel, The Village Voice, November 22-28, 2000
c. It's a pissed bed on a cold night to read words on paper saying your name and a price, to read the letters that say you are owned, or to read words that say this one or that one will pay so much money for you to be recaptured. It be better never to read than to read that page with your name on it.
---The Wind Done Gone
On March 27, a federal district court struck down the University of Michigan Law School's affirmative action admissions plan, ruling that the school's interest in a diverse student body did not justify using racial preferences. This past December another court in the same district reached the exact opposite result, finding the university's parallel affirmative action program for undergraduates was justified by diversity.
These diametrically opposed rulings on a single university's affirmative action programs perfectly mirror the current division in the nation's courts. Affirmative action, a near-universal practice in universities across the nation, is under serious legal attack. Disappointed white applicants have sued universities in Georgia, Washington and Texas as well as Michigan.
As in Michigan, the lower courts in these cases have divided sharply, so it is only a matter of time before the none-too-hospitable Supreme Court takes up the issue. The main point of disagreement concerns whether diversity is a sufficiently "compelling interest" to justify race-conscious admissions. There is a strong case for diversity-based affirmative action. But another justification, not generally pressed by the universities, offers a more cogent and morally persuasive rationale for affirmative action: society's interest in integration itself.
Since 1978 affirmative action in higher education has rested on the slimmest of reeds--a lone opinion from a Justice who could not attract a single other Justice to his views. In Board of Regents of the University of California v. Bakke, a divided Supreme Court struck down a medical school admissions program that set aside a predetermined number of seats for minority applicants. Four Justices deemed any consideration of race illegal under a federal statute that prohibits discrimination by entities receiving federal funds, while another four concluded that the program was a valid response to broad societal discrimination.
The decisive opinion in the Bakke case was that of Justice Lewis Powell. He voted to invalidate the University of California's program, but he also stated that racial preferences are sometimes permissible, citing with approval Harvard's affirmative action program, in which, in the name of diversity, race was considered as one "plus factor" among many, and all applicants competed for all openings. Harvard's program was not even at issue in the case, but Justice Powell's views about it have guided universities ever since.
Subsequent Supreme Court opinions have appeared to diverge from Justice Powell's analysis. For example, Justice Sandra Day O'Connor, a critical swing vote, explicitly rejected diversity as a justification for an FCC affirmative action program, stating: "Modern equal protection has recognized only one [compelling state] interest: remedying the effects of racial discrimination." The FCC's interest in broadcast diversity, she reasoned, was "simply too amorphous, too insubstantial, and too unrelated to any legitimate basis for employing racial classifications." Her opinion was in dissent, but would probably garner five votes today. In other opinions, however, Justice O'Connor has cited Justice Powell's Bakke opinion with apparent approval.
One thing is certain: The argument for diversity finds virtually universal acceptance in academe. More than 360 higher education institutions signed on to briefs defending the University of Michigan's affirmative action program. And for good reason: In our increasingly diverse society, the ability to communicate and understand across racial lines is an essential part of citizenship, and teaching that skill requires a diverse setting. Not considering race in the diversity mix would effectively penalize minorities by denying them benefits that Iowans, violinists, potential donors' children and synchronized swimmers receive.
The usual response is that the Fourteenth Amendment treats racial classifications differently. But the equal protection clause does not prohibit all consideration of race. In its recent voting rights cases, for example, the Court held that race may be considered as one factor among many in redistricting, as long as it is not the "predominant motive." The redistricting process necessarily considers all sorts of factors as proxies for likely political allegiances, and adding race to the mix does not raise the same concerns as other kinds of race-conscious decision-making. Similarly, the search for diversity necessarily considers many factors as proxies for intellectual and cultural diversity, and race should be permissible as one among many.
Ultimately, however, integration itself may be a stronger justification for affirmative action than diversity. An integrated student body undoubtedly adds to diversity. But so does admitting violinists, and surely there is a stronger argument for admitting African-Americans than violinists. Higher education is one of the few arenas in modern life where racial integration remains a realistic possibility. Despite the demise of Jim Crow, most of us continue to live, work, socialize and worship in effectively segregated settings. College student bodies, by contrast, can be integrated because they are consciously selected and are not predetermined by geography or class. Integration in higher education in turn teaches us that integrated communities are possible, and that living in such communities can break down the deep barriers that continue to divide the races. At the same time, because a college degree is essential to professional success, integration in higher education is necessary to any measure of integration beyond.
The Court and the country have failed to live up to the promise of Brown v. Board of Education. The last thing we should do is turn the Constitution into a barrier to one of the last remaining arenas of true integration in America.
All signs point to an all-out drive by the Bush Administration to slot judicial conservatives into the eighty-nine current vacancies on the federal bench. The recent to-do about ending the American Bar Association's role in screening nominees was a smoke signal to the conservative base that only the "right" kind of judges henceforth need apply. White House counsel Alberto Gonzales grumbled that the ABA, which has been screening nominees since the Eisenhower Administration, "takes public positions on divisive political, legal and social issues." In fact, ABA's screening committees eschew political judgments, instead evaluating the candidates' ethics, competence and judicial temperament.
The real meaning of Gonzales's words is that the Bushites want a free hand to appoint their own ideologues. Conservatives crave revenge for the 1987 Senate rejection of Supreme Court nominee Robert Bork, whom four members of the ABA's fifteen-member standing committee found "not qualified." This split decision by the usually unanimous committee gave ammunition to Bork's opponents. Gonzales let the word go forth that in selecting nominees he and John Ashcroft will heed the Federalist Society and kindred far-right legal groups whose acolytes honeycomb this Administration.
Bush further heartened his right-wing supporters by blocking Clinton nominees for the bench like Roger Gregory, who had been given an interim appointment to the Fourth Circuit. (He's the first African-American to enter Jesse Helms's segregated preserve.) Meanwhile, other solidly qualified Clinton nominees have been left dangling by the Judiciary Committee, including James Klein, the able DC public defender; Helene White (whose nomination was stalled for more than 1,500 days) and a score of others for whom Senator Orrin Hatch refused to hold hearings.
The Bushites' court-packing drive is a grade-A rush job. For one thing, the roll Bush is on is petering out with his tax plan seen by a wider public as too friendly to the rich. Then, too, if an enfeebled Strom Thurmond exits the stage, control of the Judiciary Committee would shift to the Democrats, and then it's a whole new ball game.
If ever there was a time for mobilizing a counteroffensive, this is it. Bush has no mandate to add more weight to an already rightward-tilting federal bench. The Supreme Court's patently political ruling in Bush v. Gore has shaken its credibility. There is a growing constituency for judicial integrity and against a rollback of individual rights. Public-interest groups are tuning up. Some that will be in the thick of the fight: National Women's Law Center, National Abortion and Reproductive Rights Action League, Leadership Conference on Civil Rights, People for the American Way, NAACP Legal Defense and Educational Fund (for more information contact Marcia Kuntz at the Alliance for Justice, 202-822-6070; firstname.lastname@example.org).
Progressives must also apply pressure on Democratic senators to stall the Bush drive to stack the bench. Yale law professor Bruce Ackerman's suggestion that no Bush Supreme Court nominees should be approved is on the mark. Democrats should demand the same privilege that Hatch claimed of vetting all lower court nominees before their names become public.
Let's heed the admonition of Nan Aron of the Alliance for Justice: "Fight early, fight often and fight to win."
The most enduring debate among twentieth-century legal analysts has been that between "legal realists" and those who believe in a reasonably strong version of "the rule of law." Though legal realism was often caricatured as reducing law to what the judge ate for breakfast, what it was really about was attacking the notion of the majestic impersonality of the judge, who was above politics. As Felix Frankfurter once put it, "as judges we are neither Jew nor Gentile, neither Catholic nor agnostic [and, presumably, neither Democrat nor Republican]. We owe equal attachment to the Constitution and are equally bound by our judicial obligations." Such claims were derided by realists like Yale law professor Fred Rodell, who viewed judges as no more than politicians in robes using legalistic mumbo-jumbo to write their politics into law. The argument has proceeded apace into the twenty-first century.
Almost everyone has accepted what might be termed a "soft" legal realism, one articulated by Frankfurter himself when he wrote in 1930 that "the controlling conceptions of the justices are their 'idealized political pictures' of the existing social order." Thus it is a commonplace to refer to "conservative" and "liberal" wings of the Supreme Court as a shorthand reference to two quite different pictures painted by the two sides in cases involving race relations, the autonomy of states, the death penalty and the like. Though judges are "political," the politics are "high" rather than "low"; that is, decisions are based on ideology rather than a simple desire to help out one's political friends in the short run.
Thus the legal attack on racial gerrymandering led by "conservative" judges probably favors the interests of the Democratic Party, while its defense by "liberal" judges probably enhances the power of the Republican Party (because it "packs" overwhelmingly Democratic black voters into relatively few Congressional districts). Ideology seems to be a better explanation of the two positions than a desire to maximize the interests of one or the other party.
The Court's decision in Bush v. Gore, however, seems an exercise in low rather than high politics. How can one take seriously the majority's claims that their award of the presidency to Bush is based on their deep concern for safeguarding the fundamental values of equality? This majority has been infamous in recent years for relentlessly defending states' rights against the invocation of national legal or constitutional norms. Bush v. Gore is all too easily explainable as the decision by five conservative Republicans--at least two of whom are eager to retire and be replaced by Republicans nominated by a Republican President--to assure the triumph of a fellow Republican who might not become President if Florida were left to its own legal process.
Of course, a consistent realist might point to tension between the generally nationalist, equality-protecting positions taken by the dissenters and their esteem in Bush v. Gore for state autonomy and, concomitantly, for the different standards being applied in various county recounts. It is decidedly "unrealist" to denounce one group of judges as behaving politically while praising another for simply following the "rule of law." Rodell or any other hard-core realist would deride any praise of the Florida Supreme Court for its wisdom in construing the Florida statutes. Those judges, too, could easily be depicted as Democratic partisans manipulating the law to serve their political favorite, Al Gore.
Few Americans, however, and almost no law professors, embrace such a complete legal realism, even if they rightly accept its "softer," more ideologically oriented version. Full-scale realism leaves one without the ability to argue that legal arguments can be assessed by their conformity to norms that can be invoked, by judges and others, to discipline the vagaries of political choice. But a strong critique of the Court's opinion that presupposes that it indeed violated basic norms and "descended" into raw politics would violate the premise of an unabashedly "political" realism.
That "hard" realism has nihilistic overtones might explain why we resist it so strongly, but it does not constitute a genuine refutation of the position. It is a sign of the truly unprecedented nature of Bush v. Gore that many liberal law professors, who have spent much of their career asserting the reality of the rule of law (and of the Supreme Court as what Ronald Dworkin terms "the forum of principle," even if they sometimes disagree with particular principles enunciated by the Court), find themselves wondering if they can continue to do so. Bush v. Gore may have superficially resolved a short-run political crisis, but it has triggered the deepest intellectual crisis--at least for people who profess to take the law seriously--in decades.
Though "activist" is what they've railed against,
These five Supremes said, "Just this once, let's try it.
We know which candidate we want to win.
We'll simply find some law to justify it."
The judge who chided Bush over aid to children is part of a state tradition.
Remember when Hillary Clinton dared suggest that a vast right-wing
conspiracy was behind the campaign to destroy her husband's presidency?
Well, the troubles besetting the nomination of Theodore B. Olson as US
solicitor general provide stunning evidence of what she had in mind.
Olson's confirmation hearing was abruptly suspended last week by
Senate Judiciary Committee Chairman Orrin Hatch (R-Utah) after a report
in the Washington Post raised questions about Olson's truthfulness under
oath about his relationship to right-wing billionaire Richard Mellon
Scaife and the $2.3-million, anti-Clinton Arkansas Project of Scaife's
American Spectator magazine. Olson served as the magazine's lawyer and on
its board of directors, but when questioned by Democratic members of the
committee as to his connection with the infamous Arkansas Project, Olson
stated: "It has been alleged that I was somehow involved in that
so-called project. I was not involved in the project in its origin or its
That statement was subsequently contradicted in testimony before the
Judiciary Committee by David Brock, the writer responsible for the key
American Spectator articles attacking the Clintons. Brock stated that he
was present at "brainstorming" sessions on the Arkansas Project with
Olson at the home of American Spectator Chairman R. Emmett Tyrrell Jr.
Brock connected Olson with the Spectator's strangest article linking
Clinton to the suicide of his close friend and aide, Vincent Foster.
According to the Post, Brock said Olson told him that "while he didn't
place any stock in the piece, it was worth publishing because the role of
the Spectator was to write Clinton scandal stories in hopes of 'shaking
That is not the sort of judicious, nonpartisan stance that one would
hope for from a nominee to the position of solicitor general, often
called the "tenth member of the Supreme Court," who represents the US
government before the Court.
Since judicial objectivity is key to the performance of this
all-important job, it was irresponsible of President Bush to nominate
Olson, a key leader of the right wing's nonstop attacks on Clinton. Olson
not only was deeply connected with Scaife and the American Spectator but
he also represented David Hale, the key witness against Clinton in the
Whitewater case, and advised Paula Jones. His partisanship was amply
manifested when he represented Bush before the US Supreme Court to halt
the recount of Florida ballots.
But the issues now being raised against Olson's nomination go beyond
partisanship and deal with the honesty of his testimony under oath before
the Judiciary Committee. In addition to the testimony of ex-Spectator
writer Brock, the Washington Post reported that Olson and a fellow law
partner at Gibson, Dunn and Crutcher prepared some of the anonymous
anti-Clinton material that was published in the Spectator.
The Post reported last Friday that American Spectator documents show
that Olson's law firm was paid more than $14,000 for work on the Arkansas
Project. Part of this money was to pay for a hit piece on the Clintons
that Olson purportedly wrote under a pseudonym, cataloging all the
possible laws that the Clintons might have violated if the
unsubstantiated charges hurled at them by their right-wing critics proved
After the Post ran its story last week, Hatch conceded "there are
legitimate issues" justifying his decision to defer action on Olson's
nomination pending further investigation. One issue concerns Olson's
testimony at an April 5 hearing of the Judiciary Committee as to how he
came to represent Hale, a key source for the Spectator. Olson said he
couldn't remember how the contact was made and never mentioned David W.
Henderson, the Arkansas Project director. But Henderson last week told
the Post he was the person who introduced Hale to Olson.
Even if one assumes that Olson has a conveniently poor memory on key
matters relating to his involvement with the American Spectator and its
Arkansas Project, his behavior hardly suggests the stellar qualities
required of the chief representative of the US people before the
highest judicial body. Nor is this the first time Olson's credibility in
testimony before Congress was questioned. The Post article noted that, in
1986, Independent Counsel Alexia Morrison was appointed to investigate
whether Olson had provided misleading testimony to a congressional
committee when he worked at the Justice Department in 1983. Morrison
concluded that Olson's testimony was "disingenuous and misleading," but
that his statements were "literally true" and therefore he could not be
Pretty slippery for the "tenth member of the Supreme Court," but,
sadly, given the recent shenanigans of the Court's right-wing majority,
Olson should fit right in if he is ultimately confirmed.