Times change. And many laws that were once essential to help us progress eventually become outdated, counterproductive, and in need of revision, if not repeal.
But by then such laws have often become sacred cows, perpetuated long past their glory days by self-serving politicians, interest-group lobbies, and media nostalgia or bias. Their reach is very hard to restrain unless an unusual opportunity presents itself.
So it is with Section 5 of the iconic Voting Rights Act of 1965, which was initially set to expire in 1970. It requires eight states in the Deep South, plus Alaska and parts of seven other states, to obtain “preclearance” from the U.S. Justice Department (or a slow-moving special court) before making even the minutest change in their voting rules.
Section 5 played a critical role in ending the disenfranchisement of Southern blacks and breaking the back of American apartheid. But we live in a different America. The very racial progress that Section 5 helped accomplish has arguably made it unnecessary and certainly calls for reducing its intrusion on state powers.
Indeed, many or most of the states and localities covered by Section 5 have become as protective of voting rights as the rest of the country. And Section 2 of the act provides ample authority to deal with residual voting rights violations — which no doubt still occur — through the ordinary judicial process.
Efforts to reform Section 5 have nonetheless been beaten back by left-wing Democrats, right-wing Republicans (some of whom benefit from the racial gerrymandering it imposes, while others would prefer its outright elimination on ideological grounds), the civil rights lobby, and its allies in the news media and the Justice Department’s Civil Rights Division.
Nafissatou Diallo seems "vivid and compelling" when describing how (she says) Dominique Strauss-Kahn violently sexually assaulted her–though not when discussing her murky past, shady associates, $100,000 in bank deposits, and the like.
So says Newsweek, which interviewed her for a cover story. Many viewers of her TV appearances agree. So why shouldn’t she get her day in court?
She should–in civil court. But not in criminal court, in part because of her history of telling vivid and compelling lies, including her invention of a years-ago fictional gang rape and her false statements about her movements immediately after the alleged Strauss-Kahn assault. Plus the inherent implausibility of her claim that a man she had never met suddenly rushed in naked from the bathroom while she was cleaning his suite, attacked her like a madman, and forced her without a weapon to perform oral sex.
Diallo’s history of serial lying alone makes it clear that the prosecution could never prove Strauss-Kahn guilty of the violent sexual assault charged in the indictment beyond a reasonable doubt.
In short, Manhattan District Attorney Cyrus Vance Jr. should drop the case.
Remember the Duke lacrosse rape fraud? Remember Tawana Brawley?
Some seem to unlearn the lessons of such cases every time a poor (or not so poor) woman of color accuses a rich (or not so rich) white male of doing something horrible. Especially when the accused admits to conduct that was, at best, unseemly and crude.
The hard fact is that in a great many "he said, she said" cases–including this one–it is impossible to be confident of whether or not the woman consented.
The judgment underlying the criminal justice system’s reasonable-doubt rule is that–as terrible as it is for a victim (especially of a sex crime) to see a criminal escape punishment–it is far, far worse for an innocent person to be convicted of a crime.
"Terrible things [are] sure to happen," including many "murders, robberies, and rapes."
That was dissenting Justice Antonin Scalia’s dire prediction on May 23, when by a 5-to-4 vote the Supreme Court sort-of-ordered California to reduce its prison population of about 150,000 by 37,000 as a remedy for "cruel and unusual" denial of medical care to inmates.
Thirty-seven thousand hardened criminals loosed among us! Soaring rates of murders, robberies, and rapes!
I don’t think so. For two reasons.
First, 37,000 prisoners are not going to be released anytime soon, if at all, as a result of this decision. Lost in the noise was the majority’s strong suggestion that the lower court extend from two to five years California’s deadline for reducing its prison population. Also drowned out was the majority’s hope that the state may find ways to fix prison medical care with no mass release at all.
Second, while several thousand prisoners have already been released early and thousands more will be, many or most of these will be minor, nonviolent, non-dangerous drug offenders and the like who should never have been given long prison terms in the first place.
This is not to deny that some of those released will commit violent crimes. People released from prison after serving their time often commit violent crimes. It’s called recidivism.
Nor is this to deny that the dissenters in the prison release case, Brown v. Plata, made some strong points, especially as to the flaws in the lower court decision – by three of the most liberal activist judges in the country – that the majority nominally affirmed.
Some conservatives plausibly argue that Solicitor General Elena Kagan would be the kind of liberal activist justice that they deplore.
There is plenty of material to support that claim — and also some material that cuts against it — in the tens of thousands of pages of documents involving Kagan’s work in the Clinton White House from 1995 to 1999 that are being released in batches.
And there are more manifestations of liberal ideology in the memos that Kagan wrote in 1987 and 1988 as a law clerk for Thurgood Marshall, a liberal activist justice who had — before taking the bench — been the most accomplished lawyer of the 20th century.
Not to mention Kagan’s efforts — much-decried by Republicans — to exclude military recruiters from Harvard Law School’s career services facilities as a protest against the law excluding gays from the military.
Still, Kagan’s nomination — unlike last year’s nomination of then-Judge Sonia Sotomayor — has been received with good will bordering on enthusiasm by some leading conservative academics.
Part of the reason is that Kagan’s brand of liberalism appears to be less aggressive in terms of social-engineering ambitions and less doctrinaire than that of some other possible Obama nominees.
But the main reason is that these pro-Kagan conservatives see in the former law professor and Harvard Law School dean a quality they consider quite rare in liberal academia, a place that some conservative professors characterize as rife with a closed-minded condescension toward unfashionable ideas that is all the more irksome coming from people who style themselves to be paragons of open-minded reflectiveness.
The Supreme Court is dominated by right-wingers on a conservative activist, pro-corporate, anti-civil rights tear.
Or, perhaps, the court is driven by liberal activists who make up new constitutional rights out of whole cloth and may soon legislate a right to gay marriage.
It all depends on your point of view.
President Obama, his press secretary Robert Gibbs, Senate Judiciary Committee Chairman Patrick Leahy, other congressional Democrats, New York Times editorialists, liberal groups, and others have been attacking Chief Justice Roberts and the other conservative justices for being aggressively conservative corporate shills. These critics’ goals seem to include greasing the wheels for confirmation of Elena Kagan and laying the groundwork for bolder Obama attacks on the court if it keeps messing with his agenda.
Conservatives — who have for decades accused the court of usurping elected officials’ powers to flog liberal causes — now find themselves on the rhetorical defensive.
So the Heritage Foundation fought back on Wednesday by holding an event entitled "The Myth of a Conservative Court and Why Liberals Peddle It," with conservative icon Ed Meese, President Reagan’s attorney general, moderating.
A notice for the event suggested that panelists would argue that it is "a sign of liberal vulnerability to the charge of left-wing activism that they are trying to ascribe their activist ways to others" and to "hoodwink journalists into propagating a moral equivalency between different judges that does not exist."
The most forceful line of attack on Elena Kagan during the confirmation hearing that starts Monday will be that she showed an "anti-military" bent when, as Dean of Harvard Law School, she "defied" a federal law by denying to military recruiters the help that the school’s Office of Career Services provided to other employers.
If senators and voters end up deciding that this is a fair characterization, it will be extremely damaging to Kagan’s chances. But it’s not fair.
Kagan does deserve some criticism for making rhetorical attacks on "the military’s" discrimination against gays while giving a pass to her former boss President Clinton and other Democrats who adopted the 1993 law that requires the military to discriminate.
But her policy did not single out military recruiters for disfavored treatment. Rather, it applied to them a longstanding law school rule denying any employer that discriminated against openly gay people access to the career services office.
And I’m betting that after she explains all the facts, she’ll be confirmed by a comfortable margin of 63-37 or thereabouts.
The claim that Kagan has been hostile to the military is confounded by evidence that — at the same time that she was enforcing the law school’s antidiscrimination rules against recruiters — she also praised the military as a "deeply honorable" and "noble" profession and took extraordinary pains to honor students who had served or planned to serve.
Various analysts have dissented from my May 14 post, "Why Kagan Should Stonewall the Senate." There I argued that Elena Kagan should follow the almost unbroken tradition of judicial nominees refusing to disclose their views on issues likely to come before their courts.
So here I detail some of the logic underlying my major premise: a predictive judgment that complete candor about all big issues would likely doom any Supreme Court nominee, no matter what his or her views might be.
If I’m right about this, it should clinch the case for stonewalling on specific issues even apart from my other, more normative premise: that full disclosure would lead nominees down the road toward essentially promising to decide the big issues in specified ways in a (probably vain) effort to eke out a Senate majority.
To think through how the tell-all approach would play out, let’s consider whether any of the nine current justices – other than Sonia Sotomayor, who has not yet cast votes on many big issues — could win re-confirmation by the Senate now that their views are known.
Such a hypothetical reconfirmation proceeding would approximate the difficulty of confirming a nominee who makes all of her views known.
Take Justice Stephen Breyer, who might well be the easiest of the eight veteran justices to confirm.
Why the easiest? First, because as a fairly liberal Clinton appointee, Breyer would fare better among Senate Democrats than any of the five more conservative justices. Second, because with a record more moderate than those of the quite liberal Justices John Paul Stevens and Ruth Bader Ginsburg, Breyer would probably have a better chance with Senate Republicans.
One Elena Kagan assertion that seems supported by a broad bipartisan consensus is that senators should insist that nominees disclose their "views on particular constitutional issues . . . involving privacy rights, free speech, race and gender discrimination, and so forth." (Oddly, her bill of particulars omitted abortion.)
Kagan complained, in a 1995 book review in the University of Chicago Law Review, that all nominees since the defeat of Robert Bork in 1987 had "stonewalled" the Senate Judiciary Committee by refusing to discuss specific issues and sticking to "platitudes." This, she famously wrote, has made confirmation hearings "a vapid and hollow charade." All quite true.
People ranging from Republican senators to my old friends Linda Greenhouse, writing in The New York Times, and Mike Kinsley, writing and on video in The Atlantic Wire, emphatically endorse Kagan’s 1995 case for telling all and hope that she won’t recant now.
But Kagan will recant. And she should. Yes, at first blush there seems to be an overwhelming case for demanding candor from a nominee who seeks a lifetime appointment to an office with more power than any but the presidency, and who will never have to answer to voters.
One irony of President Obama’s nomination today of Solicitor General Elena Kagan to the Supreme Court is that the effect of a Democratic president filling the seat of Republican-appointed Justice John Paul Stevens will likely be to make the Court more conservative.
Another irony is that after vowing to name a justice with "a keen understanding of how the law affects the daily lives of the American people," the president has chosen a New-York born graduate of Princeton and Harvard Law School who has spent almost her entire career teaching in elite law schools and working in the upper echelons of the Clinton and Obama Administrations. Her experience has been far from the circumstances of most ordinary Americans. (Stevens is the only member of the current Court who did not attend Harvard or Yale Law School.)
This is not to deny the 50-year-old Kagan’s notable strengths: a brilliant legal mind, demonstrated skills as a consensus-builder and conciliator as dean of Harvard Law School from 2003 to 2008, an engaging personality, skilled at getting along with liberals and conservatives alike, and parents whose lives and careers exposed her to the struggles of ordinary people — plus, the prospect of serving as a justice for 40 years if she, like Stevens, lasts until age 90.
There’s been a lot of attention this week on Elena Kagan’s 1983 master’s thesis, a critique of the liberal Warren Court’s methods, although not necessarily its outcomes.
One passage that jumps out is her assertion that "if a court cannot justify a legal ruling in terms of legal principle, then that court should stay its hand."
It’s hard to argue with that. But you have to wonder whether the current Kagan would agree with her younger self when it comes to the most headline-grabbing victory for the Court’s liberals this term, which is expected to wind down by about June 28. That also happens to be the first day of Kagan’s Senate confirmation hearing, unless the schedule slips.
The case is Graham v. Florida. Earlier this week, the Court’s four liberals and sometimes-liberal Justice Anthony Kennedy struck down laws in 37 states and an act of Congress that allowed for sentences as severe as life without parole for juveniles whose crimes did not include homicide.
Stripped to its essence, the decision was based on little more than the personal policy preferences of the five majority justices — preferences with which I happen to agree.
But policy preferences are not constitutional commands. Not unless you subscribe to what the late, liberal lion William Brennan used to call the "rule of five." As Justice Brennan explained it to law clerks, "If you have five votes, you can do anything you want around here."
So where would Kagan have come down in Graham? You might imagine from her resume that she would have voted with the liberal majority. But consider that passage, and others, from her 134-page master’s thesis. She wrote it while in her early 20’s, studying at Oxford University after graduating from Princeton and before entering Harvard Law School.