By making clear that racial affirmative-action preferences in higher-education admissions are likely to have the Supreme Court’s blessing for many decades to come, the Court might—just might—have set the stage for a more candid and constructive public discussion about how to make preferences work more effectively for the intended beneficiaries.

The June 23 decision should end the siege mentality among defenders of racial preferences—and that, in turn, should lead to much-needed transparency and honesty about the costs as well as the benefits of the very large preferences that most selective schools have long used.

Barring an improbable change in the Court’s membership, Justice Anthony Kennedy’s opinion for the 4-3 majority in Fisher v. University of Texas gives universities very broad latitude to design race-conscious admissions programs that they believe will foster more inclusive, multiethnic communities and educate students to function effectively in an ever more diverse world.

The decision should also move defenders of racial affirmative action to confront the hard truth that many African-American, Hispanic-American, and other minority students are handicapped by inadequate K-12 educations and find themselves struggling academically at selective schools.

Students admitted with modest racial preferences often thrive in college. But a wealth of social science evidence shows that those who receive unduly large preferences often lag far behind classmates with much stronger high school grades and test scores. Many of these students lose intellectual self-confidence, abandon career aspirations, and sink into social isolation.

Well over 20 empirical studies over the past 12 years by serious scholars have confirmed the common-sense perception that most students learn less if they are thrust into environments in which most of their peers are much better prepared to learn difficult material. The research has included large, experimental studies conducted by some of the world’s top social scientists in such diverse settings as the Air Force Academy in Colorado and elementary education in Kenya.

These “mismatch effects,” as they are called, have been particularly well documented in the sciences and in law school. They help explain why African-Americans attending college are only one-seventh as likely as whites to attain a science Ph.D., why many are forced to abandon their dreams of becoming physicians or engineers, and why there are huge racial gaps in bar-exam passage rates.

But mismatch effects are neither preordained nor universal. Supportive academic environments can offset or eliminate them. When racial gaps between entering students are relatively modest, students of color can raise their games and gain ground in college on somewhat better-prepared white and Asian classmates.

Universities could increase the benefits of affirmative action and minimize the costs by the simple expedient of truth in marketing—that is, by disclosing closely guarded data showing the size, and the apparent effects on academic performance, of the preferences they use to reach the racial targets they set for themselves.

How large a preference is too large? There is no simple formula. But lifting the veil of secrecy that universities now use to conceal data about their preference programs would foster better understanding of the trade-offs and more informed discourse about best practices.

In the past, academically underprepared minority students have often been misled by the universities that recruit them about their prospects for academic success. Transparency would help these students assess the strength of the competition that they would be up against and which schools might work best for them.

The same is true for alumni children and recruited athletes, many of whom receive admissions preferences that are (with the exceptions of athletic stars and kids of very large donors) much smaller.

We urged the Supreme Court in an amicus brief in Fisher to require universities to be transparent about the size and workings of their admissions preferences and their academic effects. The Court, we now know, is not going to do that. But for the reasons given above, enlightened educators should embrace transparency voluntarily.

Why have they never done so? A major reason has been the fear that has grown over four decades that honesty about the size and scale of preferences, or about the reality of mismatch effects, would only provide ammunition for a broad Supreme Court attack on all affirmative-action programs.

This fear has led otherwise thoughtful people to disregard or deny strong evidence that mismatch is a serious problem, and to obstruct access to the data that could shed light on the actual effects of admissions preferences on intended beneficiaries.

But with the Supreme Court’s move in Fisher to broad tolerance for policies promoting racial diversity, this fear of a judicial attack has now been largely laid to rest.

University leaders, scholars, civil rights groups, and others should work together to make sure that when preference policies are used, they are used openly; that they are designed to benefit promising disadvantaged students of all races; and that academically vulnerable minority students are no longer misled about their prospects by colleges seeking to raise their diversity numbers.

The post It’s Time to Improve Affirmative Action appeared first on Stuart Taylor, Jr..

Rather, police — or more to the point of current debate, federal agents interrogating suspected terrorists — can skip the famous Miranda warnings and even use some degree of coercion to extract a confession, all quite legally. Indeed, you can even be jailed for refusing to answer questions after being granted immunity from any prosecution.

The problem for law enforcement — especially in the terrorism context — is that any statements obtained from an arrested suspect without Miranda warnings, or by directly coercing an involuntary confession, ordinarily cannot be used against the person in a criminal case.

A less familiar but perhaps more important problem is that current federal law also bars the use of most statements made more than six hours after a suspect’s arrest without first taking him to a magistrate judge for a "presentment" hearing. In a terrorism incident, such an interruption could derail a promising effort to get information about co-conspirators and planned attacks.

The combined effect is to force officials to make an unnecessarily difficult choice: They can put terrorism suspects through the kind of prolonged, uninterrupted interrogation that is their best hope of preventing future attacks. Or they can maximize the chance of a successful prosecution. But they can’t count on doing both, unless they get lucky.

This dilemma creates unhealthy incentives either to shun aggressive interrogation — which the Obama administration has sometimes seemed all too ready to do — or to subject suspects to the indefinite military detention, interrogation, and trial that the Bush administration favored.

The need to alleviate this problem — and to parry Republican political attacks in the process — is why Attorney General Eric Holder has announced plans to propose legislation making it easier for the feds to extract as much information as possible from captured terrorism suspects and prosecute them, too.

Civil-libertarian doves attack the incipient Holder proposal, which has not been publicly detailed, as a threat to constitutional freedoms. But any such threat is quite modest compared with the danger that the status quo poses to innocent lives.

Meanwhile, conservative hawks clamor for Holder and President Obama to hand suspected terrorists over to the military as enemy combatants. But they ignore the damage that this approach does to America’s image abroad; the large risk that any convictions by military commissions will crash on appeal; the dangers of subjecting possibly innocent people to decades of detention; and judicial decisions requiring that "enemy combatants" be given lawyers and other rights.

A Miranda primer: The decision was a very broad reading of the Fifth Amendment’s guarantee that "no person … shall be compelled in any criminal case to be a witness against himself." The Court found interrogations of arrested suspects to be inherently coercive. From this premise, it held that any confessions should be deemed "compelled" — and inadmissible in any criminal case — unless the authorities first dispel the coercive atmosphere.

The Court’s prescribed method for doing this was to tell suspects that they have a right to remain silent and to have a lawyer present during any interrogation, and that anything they say can be used against them in court.

But Miranda‘s holding that it is illegal to use a suspect’s un-Mirandized statements to prosecute him did not make it illegal to extract such statements in the first place. The reason that most people have long assumed the opposite is that the primary purpose of interrogating a suspect has almost always been to obtain evidence to prosecute that person. So the ban on using un-Mirandized statements in court has, in practice, been treated as a ban on interrogating a suspect without Miranda warnings.

But what if the arrested suspect — such as the U.S. citizens accused of seeking to blow up an airliner over Detroit on Christmas Day and to set off a car bomb in Times Square on May 1 — may have information that could save lives by thwarting planned attacks or leading authorities to confederates?

In such a case, the primary goal should be to extract as much information as possible as fast as possible to protect public safety. And as long as this information is not used to prosecute the suspect, there is no violation of either the Fifth Amendment self-incrimination clause or Miranda, because there is no compulsion "to be a witness against himself." The Court made this clear in a 2003 case, Chavez v. Martinez.

Other decisions suggest that it would also be legal for federal agents to seek potentially lifesaving information by grilling suspects for hours using such coercive methods as yelling, bright lights, sleep deprivation, and death-penalty threats.

Such coercion would, like Miranda, make the information obtained inadmissible in court. But under the logic of a 1998 decision, County of Sacramento v. Lewis, the coercion itself would violate the Fifth Amendment’s due process clause (not the self-incrimination clause) only if it were so extreme as to "shock the conscience" or "intended to injure in some way unjustifiable by any government interest."

The bottom line is that the justices might well uphold the constitutionality of a few hours or days of un-Mirandized interrogation of a suspect deemed by the government to have information that could save lives. But Miranda, or the presentment rules, or both would probably bar use of some statements from such a suspect to prosecute him.

To be sure, a 1984 decision called New York v. Quarles created a "public safety" exception to Miranda to admit into evidence a gun that police had found after spontaneously asking a suspect who was wearing an empty holster when he was arrested after a chase through a supermarket where he had hidden his weapon.

Officials invoked this public safety exception to avoid immediately Mirandizing Faisal Shahzad, who is accused of bringing the car bomb to Times Square, and Umar Farouk Abdulmutallab, who was caught trying to blow up the airliner over Detroit. But officials proceeded to give Miranda warnings relatively quickly, apparently out of concern that courts might refuse to extend the public safety exception to interrogations lasting for hours or days.

Holder wants Congress to expand the exception to include lengthy interrogation of suspected terrorists who may have actionable intelligence, without Mirandizing them. Some experts predict that the justices will balk. I think that they might defer, as they should, to the elected branches’ judgment that national security calls for some stretching of the public safety exception.

Holder’s second goal is to modify federal laws that bar use of evidence obtained without bringing the suspect before a magistrate within six hours of arrest, and perhaps to also create an exception to a Fourth Amendment precedent that sets a presumptive outer limit of 48 hours after warrantless arrests.

The need to relax these hearing requirements may be even more pressing than the necessity to expand the public safety exception to Miranda.

Many talkative suspects, including Shahzad, just keep talking even after agents quickly recite Miranda warnings, experts say. Suspects are more likely to shut up after a courtroom presentment appearance, which includes Miranda-like warnings, a defense lawyer, and other formalities. The especially chatty Shahzad repeatedly waived his right to a presentment hearing until two weeks after his arrest. But others may not.

The main purpose of presentment hearings is to prove to the courts that suspects arrested without warrants (the usual situation) are not being arbitrarily detained. Holder’s proposed legislation may seek to provide a similar assurance without interrupting the interrogation by bringing the suspect into court. One approach, suggested by Brookings Institution scholar Benjamin Wittes, might be a high-level certification that there is probable cause of a terrorist crime and strong evidence that the suspect may have potentially lifesaving intelligence in a national security emergency.

Such a certification might also overcome a more formidable obstacle to prolonged, uninterrupted interrogation: the 1991 ruling in County of Riverside v. McLaughlin that the Fourth Amendment requires another type of preliminary hearing — to determine whether there is probable cause that the suspect committed a crime — within 48 hours of any warrantless arrest.

I’d be surprised, however, if Holder proposes to delay a terrorism suspect’s first appearance before a judge by more than a week or two, except perhaps in extremely rare circumstances. The actionable-intelligence benefit of any information extracted from a captured terrorist by incommunicado interrogation shrinks, and the civil-liberties cost grows, with each passing day.

By striking a judicious balance in this precarious area, a new law just might help avert attacks so numerous or catastrophic as to drive the government to measures far more drastic and dangerous to liberty than anything we have seen so far.

This will be my last National Journal column. I thank the magazine for publishing these columns since 1998. I will continue as a contributing editor for National Journal and Newsweek, and will write for other publications as well.

This article appeared in the Saturday, May 22, 2010 edition of National Journal.

The post Holder’s Promising Interrogation Plan appeared first on Stuart Taylor, Jr..

Kagan did discriminate against military recruiters for some months to protest the exclusion of openly gay people from the military. Is this a big blot on her record?

A little blot at worst, I’d say, and one offset by Kagan’s energetic and consistent support of students who had served and who planned to serve in the military, which she praised as a “noble” and “deeply honorable” profession.

One of Kagan’s great virtues was her success in taking a sledgehammer to the Harvard faculty’s high quotient of left-wing mindlessness.

Kagan’s short-lived denial to military recruiters of the same help that the law school provided to private employers was, in my view, an unwise way to protest the unjust 1993 law — adopted by a Democratic Congress and signed by President Clinton — that excluded openly gay people from the military.

“At a time of war, in the face of the grand civilizational challenge that radical Islam poses,” charges Ed Whelan, head of the conservative Ethics and Public Policy Center, in National Review Online’s Bench Memos blog, “Kagan treated military recruiters worse than she treated the high-powered law firms that were donating their expensive legal services to anti-American terrorists.”

Ouch. But Kagan’s restrictions on military recruiting were both inherited and largely symbolic. They do not appear to have impeded recruiters’ access to interested students. She held annual Veterans Day dinners at her home for students who had served. And three Iraq War veterans who were students on her watch praised “Dean Kagan’s strong record of welcoming and honoring veterans on campus” in a letter to the Senate Judiciary Committee.

In an October 2007 speech to the cadets at West Point, Kagan said, “I am in awe of your courage and your dedication,” and, “I know how much my security and freedom and indeed everything else I value depend on all of you.”

Some facts:

Kagan did not “ban” military recruiters from the campus, as many critics have erroneously said. Before, during, and after her deanship in 2003-2008, the Harvard Law School Veterans Association provided military recruiters access to classrooms and other campus space for recruiting events, with the law school’s approval.

Kagan did for a time deny the assistance of the law school’s Office of Career Services to recruiters for the military and other interested employers (if any) that discriminate against gay people. That office helps employers schedule interviews and recruit students. It is not a place where they can meet. Most private employers interview students in nearby hotels.

The law school’s policy did not prevent the military from recruiting law students who were interested in enlisting. Indeed, 18 went into the military during her tenure.

And the policy was not Kagan’s invention. It dated back to a 1979 faculty vote to bar any employer that discriminates on the basis of race, sex, age, or sexual orientation from using the Office of Career Services. Other law schools had similar policies.

I largely agree with Kagan’s assertion in a 2003 e-mail to the law school community that the government’s exclusion of open gays was “a profound wrong” and “a moral injustice of the first order.” (I reserve “the first order” for, say, mass murder.)

But I fault Kagan for aiming her denunciations at what she (among many others) has over and over again called “the military’s” discriminatory recruitment policy. In fact, the “don’t ask, don’t tell” policy was set by Clinton’s implementation of the 1993 law that he signed after a Democratic Congress had passed it.

Although Congress and Clinton acted at the behest of military leaders, it was unwise for Kagan (and many others) to discriminate against military recruiters who were bound by the Clinton-signed law and policy while giving a pass to the Democratic politicians who (along with most congressional Republicans) adopted them.

In addition to Clinton, whom Kagan would later serve as a White House aide from 1995 to 1999, the politicians who voted in 1993 to perpetuate discrimination against gays in the military included then-Sen. Joe Biden and 18 current Democratic senators, among them Majority Leader Harry Reid, Senate Judiciary Committee Chairman Patrick Leahy, and 2004 presidential nominee John Kerry.

Still, I would be less harsh on Kagan than Peter Beinart, a moderate-liberal columnist for The Daily Beast, who called her policy “a statement of national estrangement” and a surrender to “the left-wing mindlessness that sometimes prevails on campus.”

Indeed, one of Kagan’s great virtues as dean was her success in taking a sledgehammer to the Harvard faculty’s previously quite high quotient of left-wing mindlessness.

Kagan became dean in 2003, the year after Harvard had suspended its discrimination against military recruiters in response to a Bush Defense Department threat to strip the university of more than $300 million a year in federal research funding. (None of the money went to the law school.)

The department had invoked the 1996 Solomon Amendment, in which Congress called for defunding any educational institution that “prohibits or in effect prevents” military recruiting.

Kagan continued to give military recruiters access to the Office of Career Services during her first two years as dean. Meanwhile, in 2003 a consortium of other law schools and professors sued to challenge the Solomon Amendment as contrary to the First Amendment.

While hundreds of law professors made the same argument in amicus curiae briefs in a federal Appeals Court and later the Supreme Court, 54 of Harvard’s 81 law professors, including Kagan (in her capacity as a professor but not as dean), took a different tack.

Apparently foreseeing that the First Amendment claim had little chance of success if the case reached the Supreme Court, the Harvard professors argued in another amicus brief that the Solomon Amendment’s language should be read as allowing institutions to exclude military recruiters as part of a general policy of excluding all groups that discriminate against gays. Most of the same professors, including Kagan, later made the same argument — which would have astonished the Solomon Amendment’s authors — in the Supreme Court.

The Appeals Court held the Solomon Amendment unconstitutional by 2-to-1 in November 2004. Although the decision was stayed pending Supreme Court review, Kagan immediately reinstated her law school’s policy of relegating military recruiters to working through the campus veterans’ group.

The veterans’ group said at the time that its “tiny membership, meager budget, and lack of any office space” would prevent it from “duplicating the excellent assistance provided by the Office of Career Services” or doing much else besides coordinating campus recruiting via e-mail. “In other words,” Whelan wrote, “it appears that Kagan’s decision … was, in practice, the substantial equivalent of kicking them off the campus altogether.”

With all respect to Whelan, who is perhaps Kagan’s most factually meticulous and trenchant critic, this strikes me as overstated and unfair. However inconvenient her policy may have been for some, Kagan never sought to prevent military recruiters from using classrooms or other campus space to meet students.

In the summer of 2005, the Defense Department again threatened to yank federal funds, and the university again backed down. Kagan announced that the law school would give military recruiters equal access. Lamenting the inequity to gay students, she explained that “the importance of the military to our society — and the great service that members of the military provide to all the rest of us — heightens, rather than excuses, this inequity.”

The Supreme Court put an exclamation point on the Defense Department’s fund-stripping threat in an 8-0 decision reversing the Appeals Court in March 2006. The opinion, by Chief Justice John Roberts, rejected both the plaintiffs’ First Amendment challenge and the Harvard brief’s strained interpretation. His tone seemed to suggest that the legions of law professors supporting the lawsuit had showed little understanding of law.

In fairness to Kagan, the brief that she signed took a more defensible position than those attacking the Solomon Amendment as unconstitutional. She believed passionately in the justice of her cause. And refusing to sign might have offended Harvard’s overwhelmingly liberal faculty and student body so much as to set back Kagan’s campaign to make the law school more open to conservative perspectives and healthy debate.

A conservative Kagan critic might retort: Aren’t you admitting that Elena Kagan’s world is a legal academic complex oozing politically correct bias, moral vanity, detachment from the real world, and a cynical view of the law as meaning whatever you can manipulate it to mean?

Yes, to some extent. But while she was unwise to discriminate against military recruiters, Kagan is not part of the p.c. problem. She is part of the commonsense solution.

This article appeared in the Saturday, May 15, 2010 edition of National Journal.

The post Recruiters: Kagan’s Forgivable Sin appeared first on Stuart Taylor, Jr..

Kagan did discriminate against military recruiters for some months to protest the exclusion of openly gay people from the military. Is this a big blot on her record?

A little blot at worst, I’d say, and one offset by Kagan’s energetic and consistent support of students who had served and who planned to serve in the military, which she praised as a "noble" and "deeply honorable" profession.

Kagan’s short-lived denial to military recruiters of the same help that the law school provided to private employers was, in my view, an unwise way to protest the unjust 1993 law — adopted by a Democratic Congress and signed by President Clinton — that excluded openly gay people from the military.

"At a time of war, in the face of the grand civilizational challenge that radical Islam poses," charges Ed Whelan, head of the conservative Ethics and Public Policy Center, in National Review Online’s Bench Memos blog, "Kagan treated military recruiters worse than she treated the high-powered law firms that were donating their expensive legal services to anti-American terrorists."

Ouch. But Kagan’s restrictions on military recruiting were both inherited and largely symbolic. They do not appear to have impeded recruiters’ access to interested students. She held annual Veterans Day dinners at her home for students who had served. And three Iraq War veterans who were students on her watch praised "Dean Kagan’s strong record of welcoming and honoring veterans on campus" in a letter to the Senate Judiciary Committee.

In an October 2007 speech to the cadets at West Point, Kagan said, "I am in awe of your courage and your dedication," and, "I know how much my security and freedom and indeed everything else I value depend on all of you."

Some facts:

Kagan did not "ban" military recruiters from the campus, as many critics have erroneously said. Before, during, and after her deanship in 2003-2008, the Harvard Law School Veterans Association provided military recruiters access to classrooms and other campus space for recruiting events, with the law school’s approval.

Kagan did for a time deny the assistance of the law school’s Office of Career Services to recruiters for the military and other interested employers (if any) that discriminate against gay people. That office helps employers schedule interviews and recruit students. It is not a place where they can meet. Most private employers interview students in nearby hotels.

The law school’s policy did not prevent the military from recruiting law students who were interested in enlisting. Indeed, 18 went into the military during her tenure.

And the policy was not Kagan’s invention. It dated back to a 1979 faculty vote to bar any employer that discriminates on the basis of race, sex, age, or sexual orientation from using the Office of Career Services. Other law schools had similar policies.

I largely agree with Kagan’s assertion in a 2003 e-mail to the law school community that the government’s exclusion of open gays was "a profound wrong" and "a moral injustice of the first order." (I reserve "the first order" for, say, mass murder.)

But I fault Kagan for aiming her denunciations at what she (among many others) has over and over again called "the military’s" discriminatory recruitment policy. In fact, the "don’t ask, don’t tell" policy was set by Clinton’s implementation of the 1993 law that he signed after a Democratic Congress had passed it.

Although Congress and Clinton acted at the behest of military leaders, it was unwise for Kagan (and many others) to discriminate against military recruiters who were bound by the Clinton-signed law and policy while giving a pass to the Democratic politicians who (along with most congressional Republicans) adopted them.

In addition to Clinton, whom Kagan would later serve as a White House aide from 1995 to 1999, the politicians who voted in 1993 to perpetuate discrimination against gays in the military included then-Sen. Joe Biden and 18 current Democratic senators, among them Majority Leader Harry Reid, Senate Judiciary Committee Chairman Patrick Leahy, and 2004 presidential nominee John Kerry.

Still, I would be less harsh on Kagan than Peter Beinart, a moderate-liberal columnist for The Daily Beast, who called her policy "a statement of national estrangement" and a surrender to "the left-wing mindlessness that sometimes prevails on campus."

Indeed, one of Kagan’s great virtues as dean was her success in taking a sledgehammer to the Harvard faculty’s previously quite high quotient of left-wing mindlessness.

Kagan became dean in 2003, the year after Harvard had suspended its discrimination against military recruiters in response to a Bush Defense Department threat to strip the university of more than $300 million a year in federal research funding. (None of the money went to the law school.)

The department had invoked the 1996 Solomon Amendment, in which Congress called for defunding any educational institution that "prohibits or in effect prevents" military recruiting.

Kagan continued to give military recruiters access to the Office of Career Services during her first two years as dean. Meanwhile, in 2003 a consortium of other law schools and professors sued to challenge the Solomon Amendment as contrary to the First Amendment.

While hundreds of law professors made the same argument in amicus curiae briefs in a federal Appeals Court and later the Supreme Court, 54 of Harvard’s 81 law professors, including Kagan (in her capacity as a professor but not as dean), took a different tack.

Apparently foreseeing that the First Amendment claim had little chance of success if the case reached the Supreme Court, the Harvard professors argued in another amicus brief that the Solomon Amendment’s language should be read as allowing institutions to exclude military recruiters as part of a general policy of excluding all groups that discriminate against gays. Most of the same professors, including Kagan, later made the same argument — which would have astonished the Solomon Amendment’s authors — in the Supreme Court.

The Appeals Court held the Solomon Amendment unconstitutional by 2-to-1 in November 2004. Although the decision was stayed pending Supreme Court review, Kagan immediately reinstated her law school’s policy of relegating military recruiters to working through the campus veterans’ group.

The veterans’ group said at the time that its "tiny membership, meager budget, and lack of any office space" would prevent it from "duplicating the excellent assistance provided by the Office of Career Services" or doing much else besides coordinating campus recruiting via e-mail. "In other words," Whelan wrote, "it appears that Kagan’s decision … was, in practice, the substantial equivalent of kicking them off the campus altogether."

With all respect to Whelan, who is perhaps Kagan’s most factually meticulous and trenchant critic, this strikes me as overstated and unfair. However inconvenient her policy may have been for some, Kagan never sought to prevent military recruiters from using classrooms or other campus space to meet students.

In the summer of 2005, the Defense Department again threatened to yank federal funds, and the university again backed down. Kagan announced that the law school would give military recruiters equal access. Lamenting the inequity to gay students, she explained that "the importance of the military to our society — and the great service that members of the military provide to all the rest of us — heightens, rather than excuses, this inequity."

The Supreme Court put an exclamation point on the Defense Department’s fund-stripping threat in an 8-0 decision reversing the Appeals Court in March 2006. The opinion, by Chief Justice John Roberts, rejected both the plaintiffs’ First Amendment challenge and the Harvard brief’s strained interpretation. His tone seemed to suggest that the legions of law professors supporting the lawsuit had showed little understanding of law.

In fairness to Kagan, the brief that she signed took a more defensible position than those attacking the Solomon Amendment as unconstitutional. She believed passionately in the justice of her cause. And refusing to sign might have offended Harvard’s overwhelmingly liberal faculty and student body so much as to set back Kagan’s campaign to make the law school more open to conservative perspectives and healthy debate.

A conservative Kagan critic might retort: Aren’t you admitting that Elena Kagan’s world is a legal academic complex oozing politically correct bias, moral vanity, detachment from the real world, and a cynical view of the law as meaning whatever you can manipulate it to mean?

Yes, to some extent. But while she was unwise to discriminate against military recruiters, Kagan is not part of the p.c. problem. She is part of the commonsense solution.

The post Recruiters: Kagan’s Forgivable Sin – The Ninth Justice appeared first on Stuart Taylor, Jr..

Similar misgivings — filtered through a legal doctrine called "field pre-emption" — seem more likely than not to persuade the courts to strike the law down.

But please, let’s can the hysteria. The problems with this law — and with copycat proposals in at least 10 other states — are a far cry from the images of Nazi Germany, apartheid, and the Jim Crow South conjured up by leftists who would denounce any effort to discourage illegal immigration.

To correct some misconceptions:

• The solid majority support for the law among Arizonans — and the 51 percent support among other Americans who told Gallup pollsters that they had heard of the Arizona law — is not driven by racism. It’s driven by frustration with the federal government’s failure to protect Arizona and other border states from seeing their neighborhoods, schools, hospitals, and prisons flooded by illegal immigrants. Worse, "It’s terrifying to live next door to homes filled with human traffickers, drug smugglers, AK-47s, pit bulls, and desperate laborers stuffed 30 to a room, shoes removed to hinder escape," as Eve Conant reported in Newsweek.

• Although it’s true, and most unfortunate, that absent robust administrative safeguards the Arizona law could lead to racial profiling by police, it certainly does not require racial profiling. Indeed, a package of revisions signed on April 30 by Arizona Gov. Jan Brewer seeks to prohibit racial profiling. The revisions did this by deleting the word "solely" from the original, April 23, law’s provision barring investigation of "complaints that are based solely on race, color, or national origin."

• Nor does the new law, as revised, empower police officers to stop anyone they choose and demand to see their papers. Rather, it authorizes such demands only after "any lawful stop, detention, or arrest made by a law enforcement official," and only if "reasonable suspicion exists" — apart from ethnicity — that the person "is an alien and is unlawfully present in the United States." Some of the law’s language could tempt police to demand papers from people suspected of petty violations of civil ordinances such as having an overgrown lawn, but it’s unclear how that will play out in practice.

• Neither is it fair to say — as did a New York Times editorial — that Arizona’s "defining the act of [an alien’s] standing on its soil without papers as a criminal act is repellant." In fact, since 1952, the law of the United States has defined the act of an alien’s standing on its soil without papers as a criminal act.

So is there a problem with Arizona stepping in to enforce its own identical copy of a federal law that the feds barely attempt to enforce?

The problems with this law are a far cry from the images of Nazi Germany, apartheid, and the Jim Crow South conjured up by leftists who would denounce any effort to discourage illegal immigration.

Actually, there is a problem. It’s more subtle than suggested by the dependably hyperbolic Times editorial page. But it may well persuade the courts to find the new Arizona law unconstitutional.

The Supreme Court has long held that by adopting a comprehensive regulatory regime for immigration matters, Congress has manifested an intent to "pre-empt the field" and thus to sweep away state laws addressing the same issues.

To be sure, federal immigration laws do not specify that states may not do what Arizona has done. Nor do they conflict directly with the Arizona law. So the pre-emption challenges now being prepared by civil-rights groups and others are not sure to succeed.

But they aren’t sure to lose, either. The Supreme Court has held that federal law regulates immigration so comprehensively as to pre-empt any state law — even one purporting to help enforce federal law — that "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." So said the justices, in Hines v. Davidowitz, in 1941.

The strongest argument for federal pre-emption of the Arizona law is that Congress has carefully balanced the need to pursue the most-dangerous criminals among the estimated 12 million to 20 million illegal immigrants in the U.S. against the risk of harm from overly aggressive or arbitrary pursuit of hard-working people who immigrated — legally or illegally — years ago.

The justices may well hold that "Congress would prefer to have U.S. agents making the decisions about what individuals are realistic suspects," says a leading Supreme Court litigator who declined to speak for attribution, "and not having potential vigilante groups (even if they are wearing a badge) running around sweeping up individuals, many of whom are here legally."

Another consideration is the pre-eminence of the federal government in matters touching on foreign affairs. Mexican President Felipe Calderon, among others, has sharply condemned Arizona’s action.

Although a 1976 decision, De Canas v. Bica, recognized an exception to the pre-emption doctrine for state laws regulating conduct of only "peripheral concern" to the federal immigration laws, the issues raised by the new Arizona law seem more than peripheral.

All of this may sound rather technical and abstract, and you may wonder: Is that really the way that judges and justices think? Don’t they worry about how the Arizona law will affect the lives of real people?

Of course they do. But that begs the question of which real people have the best claim on what Obama used to call judicial "empathy." The hard-working Mexicans and Central Americans whose crime (a misdemeanor, under both federal and Arizona law) was sneaking across the border long ago to seek a piece of the American dream? The legal immigrants and children of immigrants who fear being hassled by racial-profiling police? The other Arizonans who feel that they are being overrun by illegal immigrants and fear that the murderous Mexican drug lords’ reign of terror is starting to spread across the border?

Principled judges and justices are less comfortable making such open-ended value judgments — or, to be precise, making them overtly — than they are following precedents that weigh such apparent abstractions as whether an admittedly failed federal regulatory regime should pre-empt a chaotic collection of inconsistent state laws that might, or might not, deepen the dysfunction.

The bottom line is that it’s a pretty good bet that the four more-liberal justices, including any successor to retiring Justice John Paul Stevens, would vote to strike down the Arizona law. And even if all of the four more-conservative justices went the other way — no sure bet — swing-voting Justice Anthony Kennedy might well vote with the liberals.

A Supreme Court decision striking down the Arizona law would be most likely if there were evidence by the time the case reached the justices of police abuses so serious and widespread that the only effective remedy would be wholesale invalidation.

And therein lies a paradox: If civil-rights groups and other plaintiffs succeed in persuading lower federal courts to block the law from taking effect — and thus from spawning any police abuses — they may well hurt their own chances of prevailing in the Supreme Court.

So they might be wise to wait for evidence of real police abuses rather than rushing to sue over potential abuses — which seem somewhat less likely after the April 30 revisions than before. But the race to raise funds by piling lawsuits atop hyperbolic rhetoric is on.

The Obama administration faces a similar quandary, and others, in deciding whether to file its own court challenge.

Homeland Security Secretary Janet Napolitano testified on April 27 that the Arizona law will "detract from and siphon [federal] resources that we need to concentrate on those… who have committed the most serious crimes." But she could avoid that outcome — while taking some political heat — simply by instructing federal agents not to cooperate with Arizona police in enforcing the new law.

Meanwhile, an extraordinarily broad coalition of immigrant, civil-liberties, business, and other groups — including virtually all of those attacking the new Arizona law — has urged the Supreme Court to review and strike down another Arizona immigration law, which was adopted in 2007 to punish employers of illegal immigrants.

The justices asked Solicitor General Elena Kagan more than six months ago to take a position on the plaintiffs’ petition. She has not yet responded.

Might the delay have something to do with the fact that it was Napolitano, then governor of Arizona, who signed the 2007 law? Or the fact that Kagan, a leading contender to fill Stevens’s seat, will be savaged by many conservatives if she attacks either Arizona law and by many liberals if she defends either of them?

Inquiring minds in Congress will want to know.

This article appeared in the Saturday, May 8, 2010 edition of National Journal.

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I hasten to add that the consensus that Garland would be the least controversial, most easily confirmed nominee is the least of my reasons for praising him.

Nor is my personal relationship with Garland a substantial factor, although full disclosure is in order: We became friendly in law school, working together on the law review in the mid-1970s. We had dinner at each other’s homes years ago and, more recently, have met for lunch once or twice a year. He invited my wife and me, among many others, to his chambers to watch President Obama’s inauguration. Garland has been guarded about his views, and I know nothing about them beyond the public record. But I can testify — as can many others — that he is about as fair-minded, judicious, and straight as a straight-arrow can be.

To be sure, ranking Garland and the three other shortlisters — all people of outstanding integrity and intellect — is a close call.

Solicitor General Elena Kagan, the early betting favorite, would bring youth (she is 49; Garland is 57), charm, and substantial conservative as well as liberal support. The former Harvard Law School dean is unencumbered by much of a paper trail — her views on almost all of the big issues are unknown — or by as much real-world experience as the others.

If the president wants an unalloyed, intellectually meticulous liberal, 59-year-old federal Appeals Court Judge Diane Wood of Chicago would fill the bill. (So would Garland’s admirable D.C. Circuit colleague David Tatel, were he not considered too old, at 68, to serve for more than a decade or two.)

If Obama wants to add broad experience in politics and government, plus geographical diversity, to a Court now made up of nine former federal Appeals Court judges mostly from Harvard and Yale law schools, 52-year-old Homeland Security Secretary Janet Napolitano — a former Arizona governor — would be best.

But the president could do no better than Garland if he wants a moderate liberal universally seen as a paragon of fairness, open-mindedness, and collegiality, with broad experience as a high-level Justice Department troubleshooter, as a prosecutor who showed extraordinary empathy for victims, and as a corporate litigator.

"He is also the most effective person I’ve ever known at persuading people to his point of view."

Some liberals worry that accolades from such conservatives as Sen. Orrin Hatch, R-Utah (not to mention from me and other centrists) must mean that Garland leans to the right.

But Garland is no conservative. His overall record suggests that when the Supreme Court splits along liberal-conservative lines, he would usually — if not always — vote with Justices Stephen Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor.

Garland has sometimes disappointed liberals with rulings that he said he regretted as unjust but compelled by law, notably a logically unassailable 2000 decision that nothing in the Constitution empowered his court to give D.C. residents voting representation in Congress.

But he has also taken on conservatives when he felt that their position was weak on the law. Last September, for example, Garland dissented point-by-point from a ruling by conservative colleagues Laurence Silberman and Brett Kavanaugh that Supreme Court precedent required dismissing a lawsuit filed by Iraqis against U.S. military contractors who had worked at Abu Ghraib prison as interrogators and interpreters. The former prisoners alleged that — as Garland put it — the contractors had "beaten, electrocuted, raped, subjected to attacks by dogs, and otherwise abused" them.

It’s true that ex-prosecutor Garland’s record — unlike that of Stevens — is relatively pro-prosecution in terrorism cases and criminal proceedings. But Kagan’s history as solicitor general is, if anything, more pro-prosecution. So was Ginsburg’s record during her 13 years on the D.C. Circuit.

"He was born to be a judge," says Jamie Gorelick, who met Garland at Harvard College and made him her top adviser from 1994 to ’97, when she was President Clinton’s deputy attorney general. "He listens. He’s open to all points of view. He’s eminently fair. He is also the most effective person I’ve ever known at persuading people to his point of view."

Not among the most effective. The most effective.

Another superlative, from a D.C. Circuit colleague who declines to speak for attribution: "He’s one of the most skilled judges I’ve ever sat with, and probably the most conscientious."

Garland is also known for beautifully crafted judicial opinions that are models of logic and clarity. Indeed, during his September 2005 confirmation hearing to become chief justice, then-Appellate Judge John Roberts went out of his way to say that "any time Judge Garland disagrees, you know you’re in a difficult area."

Here is a sampling of the uniformly glowing reviews by anonymous lawyers collected by Aspen Publishers’ carefully researched Almanac of the Federal Judiciary: "He is a brilliant man … painstakingly thorough … a judge’s judge … I have never seen him annoyed or petulant … a very good sense of humor … very pleasant … polite … absolutely beloved by those who have worked for him … a man of humility and superb values … not predictable based on ideology at all … very fair … an open mind … intellectual depth … an unusually empathetic man … very much aware of the impact of his decisions on real people … extremely evenhanded."

(Lawyers’ reviews of Judge Wood in the almanac are almost as enthusiastic.)

Some commentators see Garland as too much of the same for a Court with nine former federal Appellate judges; with no member who has ever run for office or served on a state court; and with more than enough Harvard-Yale representation.

But Garland had an unusually rich experience between Harvard and the D.C. Circuit. After clerking in New York for Judge Henry Friendly — perhaps the greatest judge of the 20th century — and then for the very liberal Justice William Brennan, Garland was a special assistant to Attorney General Benjamin Civiletti. After that, he was a corporate litigator at Arnold & Porter, a big Washington law firm, for almost a decade. In 1989, he left his lucrative partnership to become a federal prosecutor in D.C., trying lots of cases. All the while, Gorelick says, Garland’s life has revolved around work, his wife, Lynn, and their two daughters.

As Gorelick’s principal associate deputy attorney general, Garland had a hand in most big Justice Department issues and supervised the Unabomber and Oklahoma City bombing prosecutions. He specifically asked to be sent to Oklahoma City after the 1995 bombing and ran the case for Justice until he had put a trial team in place to prosecute Timothy McVeigh.

"He was unbelievably motivated by the victims," Gorelick recalls. "When the bomb went off in Oklahoma City and they started pulling little children out of that wreckage, he was stricken. He was also moved that people were killed just because they worked for the government. He put his soul into that and spent a lot of time with the families."

President Clinton got Garland onto the D.C. Circuit, after a long Republican stall, in 1997. That court’s docket is heavy with appeals from federal agency rulings, and Garland has had no cases involving abortion, religion, the death penalty, gay rights, or most other ideologically polarizing Supreme Court issues.

Colleagues give him much of the credit for the remarkable paucity of angry splits on a court whose membership includes a leading liberal (Tatel) and strong-minded conservatives such as Chief Judge David Sentelle. Garland is said to be especially effective at finding narrow ways to resolve cases without tackling larger, more divisive controversies.

Among several opinions pleasing to liberals that Garland persuaded conservative colleagues to support was Parhat v. Gates in 2008. Joined by Sentelle and George W. Bush appointee Thomas Griffith, Garland rejected as utterly unsupported by evidence the Bush administration’s claim that Chinese Uighurs imprisoned at Guantanamo Bay were subject to indefinite detention as "enemy combatants."

To be sure, Garland’s consensus-building skills might not work as well on the Supreme Court. The stakes are much higher there, with a steady stream of big cases not clearly governed by precedent. And it’s an uphill battle for any newcomer to influence more-senior justices.

But Garland is as good a bet as anyone to soften the ideological edges of the deeply divided Court and bring a quality too often lacking there. It’s called wisdom.

This article appeared in the Saturday, April 24, 2010 edition of National Journal.

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Many also stress how far to the right (say liberals) or left (say conservatives) of center the Supreme Court has been in recent years, the better to dramatize the need to correct the perceived imbalance.

And the dominant media image has been of "the conservative Court" (recent articles in The Washington Post), or "the Supreme Court’s conservative majority" (New York Times editorials), or a Court "as conservative as it’s been in nearly a century" (Newsweek commentary by my friend Dahlia Lithwick).

All this brings to mind three contrarian theses.

First, it simply won’t make much difference in the next five or so years — if ever — whom Obama picks from the lists of moderately liberal, extremely liberal, and just plain liberal candidates leaked by the White House.

Indeed, I can’t think of a single case or issue that would foreseeably be decided differently depending on whether the nominee turns out to be the most or the least liberal of those under serious consideration.

The Court is by nature quite stable. Imagine, for example, that Obama nominated and the Senate confirmed a person more liberal than either John Paul Stevens or any other current justice. No matter how passionate, or how brilliant, or how persuasive, he or she could move the law no further than at least four others were willing to go. And given the justices’ fierce independence, it’s hard to imagine any of them lurching leftward at the urging of the new kid on the block.

The eventual impact of the next justice’s ideology will depend on unpredictable developments, including how many allies he or she might gain from future appointments and how his or her own views might evolve, both on today’s big issues and on issues that will emerge later.

Polls suggest lopsided public disapproval of Supreme Court decisions on Guantanamo detainees.

Indeed, history suggests that an appointee is likely to make a dramatic difference only when three ingredients are present: 1) The president is liberal and the outgoing justice is conservative, or vice versa; 2) the Court is very closely divided along liberal-conservative lines; and 3) the president can get a strong proponent of his own ideology through the Senate.

The first ingredient is not present now because Obama and Stevens are both liberal.

The first two ingredients were present in 1987, with the retirement of moderate Justice Lewis Powell, who had been the balance-tipping vote. President Reagan named Robert Bork, who was poised to provide the fifth vote to overrule Roe v. Wade and other major liberal precedents. But the Senate rejected him.

That led to the appointment of Justice Anthony Kennedy, who now occupies the same balance-tipping position that Powell once did. Kennedy was far less conservative than Bork, as he showed by reaffirming Roe in 1992 (with some trimming). Kennedy also proved to be more liberal than Powell on some big issues. That helps explain why during Kennedy’s time the Court has moved to the left — although you’d hardly know it from most media portrayals — on national security, gay rights, the death penalty, and church-state issues.

The only time in the past 35 years that all three ingredients for a balance-tipping appointment have been present was 2005. The retirement of moderate-liberal Justice Sandra Day O’Connor allowed President Bush to move the Court to the right — but not so far as to fit the "conservative Court" caricature — by nominating the solidly conservative Samuel Alito, who was confirmed in 2006.

(Bush’s 2005 appointment of John Roberts to succeed William Rehnquist as chief justice did not substantially change the Court’s balance.)

This brings me to my second contrarian thesis: Despite complaints by both liberal and conservative critics, the Court has not strayed far from mainstream public opinion over the past 35 years.

The need to get the support of both the president and the Senate tends to screen out candidates with extreme views. And the Supreme Court does follow the election returns, as humorist Finley Peter Dunne’s Mr. Dooley observed. Polls, too.

Indeed, no decision since Roe in 1973 — not even Bush v. Gore — has produced a lasting public backlash. And that one was a surprise to the justices.

My third contrarian thesis is that although Alito did make the Court more conservative on some big issues, we have not had a consistently "conservative Court" since 1937. Indeed, since the 1970s, the Court has strayed more often to the left than to the right of center of public opinion. And it remains as liberal as ever on some big issues, if only by a one-vote margin.

Here’s a brief issue-by-issue analysis, updating a more detailed commentary that I posted last June 16 on National Journal’s Ninth Justice blog.

• National security. In three big cases involving Guantanamo detainees since 2004, the four liberals plus Kennedy (and O’Connor in the 2004 case) have pushed the judiciary deeper into second-guessing the political branches’ national security policies than ever before, by sweeping aside both presidential orders and a major 2006 act of Congress. Polls suggest lopsided public disapproval.

• Abortion. Polls have shown for many years that although the public does not want Roe v. Wade overruled, majorities say that abortion should be legal in, at most, "only a few circumstances" and support restrictions that the four liberals and Kennedy have struck down. These include banning abortions in the second and third trimesters and requiring spousal notification. Kennedy did join the four conservatives in 2007 in upholding a federal ban on "partial-birth" abortion that O’Connor would have struck down, a decision that enjoyed overwhelming public support.

• Religion. Polls have consistently shown strong approval of the nondenominational, nonparticipatory types of school prayer outside the classroom setting that the liberals plus Kennedy and O’Connor struck down over conservative dissents in 1992 and 2000.

• Death penalty. The four liberals and Kennedy have banned the death penalty for murderers who were mentally disabled or younger than 18 and for child-rapists. These decisions — the last of which candidate Barack Obama denounced in 2008 — put the justices somewhat to the left of public opinion.

• Gay rights. Although a solid majority of the public believes that sexual relations between consenting gay adults should be legal, polls showed that many thought the four liberals and Kennedy had gone too far, too fast when they made gay sex a constitutional right in 2003. Roberts and Alito have yet to face a gay-rights case.

• Gun rights. The June 2008 decision by the Court’s conservatives and Kennedy striking down the District of Columbia’s complete ban on handguns was an unprecedented interpretation of the Second Amendment. But it was also consistent with the overwhelming public support for an individual right to keep and bear arms — and was applauded by Obama.

• Federal power. Conservatives plan to argue during the coming confirmation proceedings that the health care overhaul’s mandate to buy insurance or pay a penalty tax exceeds Congress’s constitutional powers. It is not yet clear whether Alito and Roberts would be more receptive to such claims than O’Connor and Rehnquist.

• Race. This is the biggest issue on which Alito appears to have made the Court markedly more conservative than it had been. In a 2007 decision striking down race-based student assignments — which would almost certainly have gone the other way had O’Connor stayed on — the four conservatives came close to adopting an absolutist "colorblind Constitution" stance that would doom racial preferences. Kennedy didn’t go as far, but has generally opposed racial preferences — as has the public, by wide margins.

• Campaign finance regulation. In striking down on January 21 all limits on independent election spending by corporations and (apparently) unions, the five-justice majority moved dramatically to the right not only of its own precedents but also of public opinion, which was overwhelmingly negative. This was big. Whether it foreshadows bigger things to come is unclear.

Democrats are trying to leverage public disapproval of this and other decisions into a populist backlash against justices who "always seems to side with the big corporate interests against the average American," in the words of Senate Judiciary Committee Chairman Patrick Leahy. Lest mere exaggeration fall short of galvanizing the public, Leahy, Obama, and many in the media have added a large dose of distortion. (For more NJ coverage of this issue, see, for example, "Does the Ledbetter Law Benefit Workers, or Lawyers?")

The reality is that although Alito has moved the law to the right on some issues, the Court still has five solid liberal votes on others, thanks to Kennedy’s ideological eclecticism. The same will almost certainly be true when the dust clears after this summer’s confirmation vote.

This article appeared in the Saturday, April 17, 2010 edition of National Journal.

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Rather, according to Stevens, he has remained about where he always was while newer and younger appointees have pushed the court to the right.

The record suggests otherwise. Like many of us, this extraordinarily intelligent, self-effacing gentleman, who will turn 90 on April 20, may be kidding himself a bit about his own consistency.

Like some other Republican-appointed justices in recent decades — Harry Blackmun and Sandra Day O’Connor and, to a lesser extent, David Souter, Warren Burger and Lewis Powell — Stevens has become markedly more liberal during his years on the court.

Meanwhile, no Democratic-appointed justice has become substantially more conservative over time. This helps explain why, despite the fact that Republican presidents have appointed 12 of the last 15 justices, the court itself has never — or, at least not yet — made the dramatic right turn that many reporters and commentators have repeatedly proclaimed. Indeed, the court’s rulings have remained left of the center of general public opinion on most (though not all) of the biggest issues.

What explains the asymmetry in justices’ evolution? More on that below. First, some facts about Stevens and other leftward-moving justices.

Seen in his early years as an idiosyncratic loner given to writing separate opinions joined by no other justice, Stevens was never a solid conservative. But he joined conservatives on ideologically charged issues including racial affirmative action, the death penalty, rights of criminal defendants, freedom of speech and government funding of abortion. Since about the mid-1980s, however, he has taken positions markedly to the left of where he started on these and other big issues.

Examples:

Race. Stevens sided with conservatives in the court’s first big cases involving racial affirmative action preferences in admissions and federal contracting. In the 1978 Bakke decision, Stevens wrote a dissent joined by his three most conservative colleagues arguing that the 1964 Civil Rights Act barred state universities from giving race-based preferences to minorities. And his 1980 dissent in Fullilove v. Klutznick argued for striking down a federal law requiring racial quotas in federal contracting.

"Preferences based on characteristics acquired at birth foster intolerance and antagonism against the entire membership of the favored classes," Stevens wrote. He added in an acidic footnote that any "serious effort to define racial classes by criteria that can be administered objectively" must look to precedents such as Nazi Germany’s detailed definition of a Jew. But since the mid-1980s, Stevens has taken positions contrary to both of those early opinions while supporting every racially preferential program to come before the court.

Death penalty. In 1976, six months after his appointment and four years after the court had struck down every death penalty law in the country, Stevens took a center-right stand on one of the hottest issues facing the nation by writing one of the opinions that reinstated capital punishment. The 1976 decisions included procedural requirements designed to make imposition of the penalty less arbitrary and more fair. But over the years, Stevens became convinced that the safeguards have not worked and the death penalty would never be fair. Finally, in a 2008 opinion, he suggested for himself alone that all death penalty laws should be struck down for good.

Defendants’ rights. Stevens has said in interviews that his father’s apparently unwarranted embezzlement conviction taught him that the criminal justice system could lead to great injustices. But "examining Stevens’ first full year on the court nevertheless reveals a justice who often appears unsympathetic to criminal defendants’ rights," according to "

Examples:

Race. Stevens sided with conservatives in the court’s first big cases involving racial affirmative action preferences in admissions and federal contracting. In the 1978 Bakke decision, Stevens wrote a dissent joined by his three most conservative colleagues arguing that the 1964 Civil Rights Act barred state universities from giving race-based preferences to minorities. And his 1980 dissent in Fullilove v. Klutznick argued for striking down a federal law requiring racial quotas in federal contracting.

"Preferences based on characteristics acquired at birth foster intolerance and antagonism against the entire membership of the favored classes," Stevens wrote. He added in an acidic footnote that any "serious effort to define racial classes by criteria that can be administered objectively" must look to precedents such as Nazi Germany’s detailed definition of a Jew. But since the mid-1980s, Stevens has taken positions contrary to both of those early opinions while supporting every racially preferential program to come before the court.

Death penalty. In 1976, six months after his appointment and four years after the court had struck down every death penalty law in the country, Stevens took a center-right stand on one of the hottest issues facing the nation by writing one of the opinions that reinstated capital punishment. The 1976 decisions included procedural requirements designed to make imposition of the penalty less arbitrary and more fair. But over the years, Stevens became convinced that the safeguards have not worked and the death penalty would never be fair. Finally, in a 2008 opinion, he suggested for himself alone that all death penalty laws should be struck down for good.

Defendants’ rights. Stevens has said in interviews that his father’s apparently unwarranted embezzlement conviction taught him that the criminal justice system could lead to great injustices. But "examining Stevens’ first full year on the court nevertheless reveals a justice who often appears unsympathetic to criminal defendants’ rights," according to "The Stevens Myth," a recent New Republic piece by Justin Driver, an assistant professor at the University of Texas Law School.

"Stevens wrote a dissent in Doyle v. Ohio contending that it should be constitutional for a prosecutor to cross-examine a defendant regarding his failure to offer an exculpatory story immediately after being arrested and receiving Miranda warnings," Driver observes. "… Today, in stark contrast, Stevens views Miranda as sacrosanct."

Freedom of speech. The early Stevens was seen as no friend of broad free speech rights, then — though not so much now — a liberal article of faith. He wrote a plurality opinion in a 5-4 decision in 1976 upholding local zoning laws limiting where adult (but not obscene) films could be shown. Two years later, he ruled for the court, over a liberal dissent, that the Federal Communications Commission could penalize a radio station for airing George Carlin‘s "Filthy Words" monologue. But in recent decades Stevens has usually joined liberals in free speech cases.

Medicaid abortions. In 1977, Stevens joined a majority ruling that states may constitutionally deny Medicaid funding for abortions that did not qualify as "medically necessary." William Brennan, Thurgood Marshall and Blackmun dissented. Since then, Stevens has been a reliable supporter of abortion rights.

Stevens’ evolution resembles Blackmun’s more dramatic movement from fairly consistent conservative after President Nixon appointed him in 1970 to becoming the most liberal justice when he retired in 1994. (The even more liberal William Brennan and Thurgood Marshall had retired in 1990 and 1991, respectively.)

Blackmun was known above all as a passionate champion of abortion rights since he wrote Roe v. Wade in 1973. That decision seemed less controversial when issued than it was to become; indeed, Stevens was not asked a single question about abortion during his brief 1975 confirmation hearing. Over the next decade, Blackmun had also become passionately liberal on racial preferences, gay rights, the death penalty, defendants’ rights, religion and most or all other big issues.

O’Connor’s leftward evolution — from moderate conservative in the first few years after President Reagan named her in 1981 to moderate liberal by the time she retired in 2005 — was less dramatic but unmistakable.

Her early abortion opinions, for example, led many experts to predict that she would vote to overrule Roe v. Wade. She also voted against constitutional protection of homosexual conduct in 1986 and sided through 1995 with conservatives on racial preferences, warning in a 1989 plurality opinion that they may "promote notions of racial inferiority and lead to a politics of racial hostility."

But in 1992, O’Connor cast a crucial vote — as did Souter and the Reagan-appointed Anthony Kennedy — that joined liberals (including Blackmun and Stevens) in reaffirming the basic abortion right declared in Roe. While O’Connor, Souter and Kennedy trimmed abortion rights around the edges over liberal protests, they left U.S. abortion law more liberal than that of any nation in Europe.

And in 2003, O’Connor voted with Souter, Stevens, Kennedy, and Clinton-appointed Justices Ruth Bader Ginsburg and Stephen Breyer to strike down a Texas prosecution for homosexual sodomy as unconstitutional. That year she also wrote a major 5-4 decision — joined by Stevens, Souter, and the two Clinton appointees (but not Kennedy) — upholding the University of Michigan Law School’s very large racial preferences in admissions. The law school would, for example, almost always admit a black or Hispanic applicant with a B average ahead of an otherwise similarly qualified Asian or white student with an A average.

Stevens and the other more liberal justices have sometimes gotten a fifth vote from Kennedy, who since shortly after his 1988 appointment has been center-right on some issues and center-left on others. This posture has enabled Kennedy in recent years — much like O’Connor from about 1990 to 2005 — to be the pivotal vote determining whether liberals or conservatives would win. But unlike O’Connor, Stevens and Blackmun, Kennedy has been fairly consistent over time.

One reason why so many Republican appointees have turned out to be more liberal than the presidents who picked them has been the difficulty of getting nominees with conservative paper trails through the Senate. Reagan chose Kennedy, whose record as an appellate judge was fairly centrist, only after the Senate had rejected the far more conservative Robert Bork by 58-42. The first President Bush chose Souter, a so-called stealth nominee, because his views were so unknown that there was little for Democrats to attack. He soon proved to be fairly liberal.

Blackmun and O’Connor as well as Stevens, on the other hand, clearly "evolved," as liberal journalists and academics have said approvingly. Their ideological drift has to some extent mirrored the direction of general public opinion, such as diminishing bias against gay people. But the public has never moved sharply to the left — as has Stevens and as did O’Connor and Blackmun — on abortion rights, racial preferences or church-state issues such as school prayer.

While many liberals see this trend as a case of acquiring wisdom on the job, conservative critics including Justices Clarence Thomas and Antonin Scalia have claimed that their more liberal Republican-appointed colleagues have been moved neither by wisdom, nor by legal principle, nor by general public opinion, but by the leftward march of the intellectual elite, especially in the media and academia.

While I would not dismiss the liberal view, the conservative critique seems more plausible. Indeed, it would be only human, as I wrote in a 2003 column, for justices who arrive without settled ideological convictions to evolve in a liberal direction.

The justices’ reputations are determined in large part by mostly liberal news reporters, commentators and law professors and by liberal feminist, civil rights and professional interest groups such as the American Bar Association. Newly appointed justices who vote conservative are often portrayed as uncompassionate right-wing ideologues. Those who move leftward win praise for enlightenment. ("I ain’t evolving," the aggressively conservative Thomas has reportedly told clerks.) And the bright young law clerks — the justices’ closest professional collaborators — tend to come from elite law schools where conservative professors are rare birds and general public opinion is widely seen as benighted.

As a conflicted moderate with (for example) a center-left sympathy for gay rights and a center-right discomfort with large racial and gender preferences, I myself am more happy with the court’s direction than I would be had Stevens, Blackmun, O’Connor, Souter and Kennedy all been as conservative as Scalia, Thomas, Samuel Alito, Chief Justice John Roberts and the late Chief Justice William Rehnquist. Or vice versa.

I am also concerned that the balance may have tipped too far to the right when Alito replaced O’Connor in 2006, making possible such aggressively conservative (and in my view unwise) decisions as the 5-4 ruling in January striking down the 63-year-old federal ban on independent campaign spending by business (and other) corporations and unions.

But don’t believe people who portray the court’s handiwork in recent decades as moving to the right of the mainstream of general public opinion, and as moving dramatically to the right of the pre-Reagan court.

Tracking How Justices Were Perceived When Nominated

The graph presents historical data from a database compiled by Northwestern law professor Lee Epstein and her colleagues. It’s an analysis of Segal-Cover scores dating back to 1937.

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Many Republicans are spoiling for a fight to rev up their base for the coming elections. Some would depict any Obama nominee as an ultra-liberal eager to push the Court to the left, legislate from the bench, impose gay marriage by judicial decree, strip "under God" from the Pledge of Allegiance, invent welfare rights, require government-funded abortions, and free terrorists.

But, in fact, none — or at most one — of the four brainy and well-qualified public servants at the top of the shortlists that have made their way into the media from inside sources seems likely to move the Court left.

None of the four is clearly more liberal than Stevens, who is in turn a lot less liberal than, say, the late Justices William Brennan or Thurgood Marshall.

Stevens, who will still have one of the best minds on the Court when he turns 90 on April 20, has long insisted that he remains the old-fashioned judicial conservative and moderate Republican he was when President Ford appointed him in 1975. But the leftward drift of his opinions over the years has made him the senior member of the four-justice liberal bloc.

The four shortlisters are Solicitor General Elena Kagan; federal Appeals Court Judges Diane Wood of Chicago and Merrick Garland of the District of Columbia; and (though some count her out) Homeland Security Secretary Janet Napolitano. President Obama interviewed Kagan, Wood, and Napolitano last spring before choosing Sonia Sotomayor, an Appeals Court judge, to succeed Justice David Souter.

It would be hard for Senate Republicans to justify or sustain a filibuster against any of these four, based on what’s known about them. Indeed, Kagan, Garland, Napolitano, and arguably Wood have less problematic paper trails than Sotomayor, whom the Senate confirmed last summer on a 68-31 vote, with lots of complaining but no filibuster.

Democrats (including then-Sen. Obama) tried to filibuster Justice Samuel Alito in 2006, but the Senate voted 72-25 to break the filibuster and then 58-42 to confirm him. This even though Democrats then held 45 seats — four more than Republicans hold now — and even though Alito was clearly more conservative than Justice Sandra Day O’Connor, his predecessor.

If the president’s priority were to seize his last chance to get a crusading liberal onto the Court before the expected Democratic losses in November, he might choose State Department legal adviser Harold Koh or Stanford law professor Pam Karlan. Other possibilities include Sen. Amy Klobuchar of Minnesota, Michigan Gov. Jennifer Granholm, and Massachusetts Gov. Deval Patrick, all Democrats.

This year, the political pressure to pick another woman or a person of color is not as great as it was when Obama nominated Sonia Sotomayor.

But Obama knows that a big confirmation battle could deplete his political capital and make it much harder to get his proposed legislation on climate change and other matters through Congress. For their part, Senate Judiciary Committee Democrats Charles Schumer of New York and Arlen Specter of Pennsylvania have said they want to avoid a big battle.

In addition, although Obama surely would not pick a conservative, the former law professor does not appear to share some supporters’ passion for a strong left-liberal theorist who could someday lead the charge but who would be hard to sell now to the independent voters whose support the president seeks to reclaim.

Here are sketches of the four candidates on the shortlist:

• Elena Kagan. The solicitor general is the "prohibitive front-runner," wrote Tom Goldstein, a leading Supreme Court litigator and the founder of Scotusblog, in a widely read February 23 piece on his website. I would strike "prohibitive."

Kagan’s assets include her outstanding record as a professor and dean at Harvard Law School, where she brought in some conservative professors and calmed the school’s politically contentious faculty; her experience as a domestic policy aide in the Clinton White House; her age (only 49); and — crucially — her careful avoidance of a paper trail of controversial statements for critics to attack.

Indeed, Goldstein wrote, "I don’t know anyone who has had a conversation with her in which she expressed a personal conviction on a question of constitutional law in the past decade."

The one issue that could slow down Kagan’s confirmation is her impassioned effort as dean to bar military recruiting on campus to protest the law banning openly gay people from serving in the military, which she called "a moral injustice of the first order."

Kagan carried this opposition to the point of joining a 2005 amicus brief whose strained interpretation of a law denying federal funding to institutions that discriminate against military recruiters would — the Supreme Court held in an 8-0 decision — have rendered the statute "largely meaningless." This helps to explain the 31 Republican votes against confirming her as solicitor general.

Many liberal critics are unhappy with Kagan’s arguments as solicitor general supporting the "state secrets" doctrine, detentions without trial, and other broad Obama claims of executive power to fight terrorism — some of them similar to the Bush policies that liberals hate. But their angst would be no obstacle to confirmation.

• Diane Wood. She appears to be the most liberal of the shortlisters and is applauded in progressive circles for going toe-to-toe with the conservative intellectual heavyweights on her court. For this reason, she might have the bumpiest confirmation.

Wood, 59, is highly respected for her intellectual firepower, careful preparation, and clear thinking and expression. She was won praise from some conservative as well as liberal colleagues and from lawyers appearing before her.

Before President Clinton put her on the U.S. Court of Appeals for the 7th Circuit in 1995, she was a University of Chicago law professor — and working mother without benefit of pregnancy leave — and a high-ranking antitrust expert in the Clinton Justice Department.

Some conservatives have assailed her as a hard-left judicial culture warrior whose passion for abortion rights is so strong that (they contend) she has disregarded Supreme Court precedents; and whose writings suggest that she might indeed strip "under God" from the Pledge of Allegiance and make same-sex marriage a constitutional right.

Still, Wood’s overall record may be no more liberal than that of Stevens. She would be confirmed eventually, but she would surely draw more Republican fire than would Kagan or Napolitano, and much more than Garland.

• Merrick Garland. Another intellectually stellar, more moderate Democrat with no apparent land mines in his paper trail and the respect of Republican colleagues and senators alike, the 57-year-old Garland would be the easiest of the four to confirm by far.

In anonymous surveys of lawyers arguing before him, he has won glowing reviews as highly intelligent, open-minded, evenhanded, fair to all parties, and extraordinarily clear and thorough in his opinions.

"After only Judge Wood, D.C. Circuit Judge Merrick Garland is the most respected Democratic appointee now on the bench," as well as the most confirmable, Goldstein wrote. I rank Garland above Wood, given my preference for restrained, moderate consensus-builders. (Disclosure: Garland and I were Harvard Law School classmates and are friends.)

Among Garland’s assets are his 1989 decision to leave a lucrative law partnership to become a federal prosecutor in D.C.; his supervision of a range of major civil, criminal, and national security matters in the Clinton Justice Department, including the initial proceedings against Oklahoma City bomber Timothy McVeigh; and his skill at finding common ground with colleagues across the ideological spectrum. Conservative bench mates have joined logically compelling Garland opinions on ideologically divisive issues.

All of this was not enough to put Garland on Obama’s all-woman shortlist in 2009. This year, the political pressure to pick another woman or a person of color is not as great. But would Obama choose a white male nominee who seems clearly less liberal than Stevens?

• Janet Napolitano. Some media handicappers have written off her prospects because of two much-ridiculed gaffes: saying that "the system worked" after the near-success of a suicide bomber’s attempt to blow up a Detroit-bound airliner on Christmas Day, and speaking earlier of terrorist attacks as "man-caused disasters."

But don’t count the tough, no-nonsense Napolitano out; these lapses were out of character. Obama thinks highly of her, and "if the president is looking for someone who is not a Court of Appeals judge like all current members of the Court, she would be at the top of the list," thanks to her broad political experience, says a source familiar with the selection process and Obama’s thinking.

Before taking over at Homeland Security, the 52-year-old Napolitano was a federal prosecutor, then Clinton’s U.S. attorney in Arizona, and subsequently the elected attorney general and governor of Arizona. She worked effectively with, and often against, the Republican state Legislature, and she won re-election by a wide margin in 2006 by taking centrist, tough-on-crime positions and pushing programs for children that appealed to Republican women.

Some Court-watchers complain that these four possibilities are unexciting, even boring. In my view, that’s a plus.

This article appeared in the Saturday, April 10, 2010 edition of National Journal.

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The nominee was John Roberts, now the chief justice. The critic was the comparably brilliant and charming Goodwin Liu, a University of California (Berkeley) law professor. He is now the most resolutely liberal of President Obama’s judicial nominees.

Indeed, the 39-year-old Liu’s sweeping vision of court-ordered social justice, though within the mainstream of legal academic opinion, puts him markedly to the ideological left of all 41 Senate Republicans, at least half of the Democrats, and 80 percent or more of voters, I’d guess.

Putting aside his ideology and his less than two years of legal experience outside the academy, Liu is an admirable candidate for the federal Appeals Court seat in California that he will fill if confirmed. The Rhodes scholar and former law clerk to Justice Ruth Bader Ginsburg has an inspiring son-of-Taiwanese-immigrants life story. Plus, people like him.

So how should Senate Republicans and moderate Democrats respond to Liu’s nomination, now set for a Judiciary Committee hearing on April 16? Defer to the president? Vote no? Stall? Filibuster?

More on that below. First, a look at Liu’s writings and speeches, which conservative legal analyst Ed Whelan has collected, linked, and exhaustively analyzed in multiple posts on National Review Online’s Bench Memos blog.

•Racial preferences without end. In 2003, in a panel discussion held by the progressive American Constitution Society for Law and Policy, Liu — who later chaired the group’s board — called for reviving a constitutional justification for racial preferences for African-Americans in government employment, education, and contracting that would likely expand and extend such programs for many, many decades into the future.

The idea is what Liu described as "remedying societal discrimination as a justification for affirmative action." This rationale, rejected by the Supreme Court since 1989, is broader in important ways than the "educational diversity" rationale for preferences in university admissions that a 5-4 Court majority adopted in 2003.

Liu thereby embraced an idea that, Justice Lewis Powell warned in a 1986 opinion, could make "discriminatory legal remedies that work against innocent people… ageless in their reach into the past, and timeless in their ability to affect the future."

Indeed, Liu spoke of "societal discrimination" as synonymous with "historical discrimination," which, he could have noted, was committed mostly by people who died long ago. And he asserted — more than three decades after affirmative-action programs were initiated as temporary remedies for ongoing discrimination — that the need for such preferences "has only just begun" and that "the cumulative effects of societal discrimination will take a long time to remedy."

A very, very long time, if Liu and his allies continue to pretend that the huge gaps in educational performance that are the main cause of racial inequality today can be closed by discriminating against Asians and whites; by conscripting school children to integrate distant schools; and without far greater efforts by black parents to get their children to study.

Goodwin Liu’s sweeping vision of court-ordered social justice probably puts him markedly to the ideological left of at least half of Senate Democrats and 80 percent of voters.

•Reparations for slavery. Liu suggested in a 2008 panel discussion about responsibility for the slave trade that Americans generally, "whatever our lineage, whatever our ancestry, whatever our complicity, still have a moral duty to… give up [something] to make things right… whether it is the seat at Harvard, the seat at Princeton. Or is it gonna require us to give up our segregated neighborhoods, our segregated schools? Is it gonna require us to give up our money? It’s gonna require giving up something." The graduate of Stanford University and Yale Law School did not discuss the extent to which courts should order people to comply with this "moral duty."

•Racial balancing in schools. Liu co-authored a 2005 law review article lamenting the 1974 Supreme Court decision, Milliken v. Bradley, that ended court-ordered busing of children between mostly black cities and mostly white suburbs to desegregate schools. In the article, he also supported vouchers and charter schools, but only if they promote racial balance by reflecting "the racial and socioeconomic diversity of the metropolitan area — not the local school district — where they are located."

•Welfare rights. In "Rethinking Constitutional Welfare Rights," a 2008 Stanford Law Review article, Liu argued that courts should play an "interstitial" role in requiring governments at all levels to provide "education, shelter, subsistence, health care, and the like, or… the money these things cost" to needy people.

Although creating welfare programs should be mainly a legislative function, he wrote, courts should "leverage the legislature’s own publicly stated commitment to welfare provision" by reviewing and sometimes invalidating "apparent qualifications on that commitment." When judges think that "our collective values on a given issue have converged to a degree that they can be persuasively crystallized and credibly absorbed into legal doctrine," Liu wrote, they should push laggard legislatures to spend more generously or equitably. He suggested that courts should strike down, for example, Congress’s method of allocating federal funds for the education of poor children among states and California’s "antiquated and inequitable system of school finance."

•Gay marriage. Liu joined 16 other law professors in a 2007 amicus brief urging the California Supreme Court to rule that the state’s failure to give the same respect (as well as the same benefits) to same-sex marriage as to man-woman marriage violated the state constitution’s guarantee of equal protection of the laws. The brief implied — without explicitly stating — that the traditional definition of marriage also violates the U.S. Constitution. If Liu is confirmed to the U.S. Court of Appeals for the 9th Circuit, that issue could soon come before him in the major gay-marriage case now pending in federal District Court in San Francisco.

•Judicial power to reshape society while overruling major Supreme Court precedents. "Some [say] that courts, and more broadly law, can only do so much to change society, that some things, some problems are best left to politics and not principle, and that to believe otherwise is to indulge a hollow hope," Liu said in another American Constitution Society panel, in 2004. "I want to disagree with this view…. If we work hard, if we stick to our values, if we build a new moral consensus, then I think someday we will see Milliken, Rodriguez, [and] Adarand be swept into the dustbin of history."

Rodriguez is the 1973 Supreme Court precedent that required judges to defer to local and state control of public school funding and programs; Adarand, in 1995, subjected racially preferential federal programs to judicial "strict scrutiny." To be sure, overruling Adarand would reduce judicial power to strike down racial-preference programs, which are highly unpopular. But Liu’s overall approach would vastly expand judicial power at the expense of democratic governance.

These and other Liu assertions would — unless he somehow dispels their clear meaning in his confirmation testimony — provide senators who strongly disagree ample justification for voting against him. As Liu himself correctly suggested in opposing the nominations of Roberts and Samuel Alito, senators have no duty to defer to the president’s choice of a judicial nominee whom they consider ideologically unacceptable.

It would be a shame, however, if Senate Republicans were to deploy procedural gimmicks against Liu. It would be a bigger shame if they were to emulate the Democratic leadership’s virtually unprecedented strategy of filibustering admirable, outstandingly well-qualified conservative Bush nominees such as Miguel Estrada and Peter Keisler. A filibuster seems likely unless Republican leaders, who have so far been silent on the subject, see it as a political loser.

One reason to give Liu an up-or-down vote is that like all lower-court nominees, he will pledge to obey Supreme Court precedents and he would, at worst, have only so much room to write his personal views into the Constitution without being outvoted by Appeals Court colleagues or reversed by the justices.

A second reason is that the stalling, filibusters, and sometimes-vicious character assassination that have polluted the confirmation process are leaving judicial vacancies unfilled for too long and are degrading the quality of the judiciary by scaring off some of the best potential nominees.

Third, many Republican senators forcefully denounced as unconstitutional the Democratic filibusters of Bush’s nominees. Could they unblushingly turn around and filibuster Obama’s nominees?

Yes, they could. Republican senators cannot be expected to disarm unilaterally. Not unless Democratic leaders first make a meaningful pledge not to filibuster future Republican presidents’ nominees absent truly extraordinary circumstances.

Seven moderate Senate Democrats made just such a pledge as part of their May 2005 "Gang of 14" agreement with seven Republicans. Might Senate leaders leverage the coming battle over Liu into a broader agreement to give all judicial nominees a fair shake? Hope springs eternal.

This article appeared in the Saturday, April 3, 2010 edition of National Journal.

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