May 20, 2010

Has Obama failed to nominate a strongly liberal Supreme Court Justice because of the insufficient supply of liberal law professors?

Recounting the history of Harvard's struggle with Critical Legal Studies in the 1980s and the "postradical" period that followed, lawprof David Fontana writes:
The stories of the postradical generation are not only of intellectual interest but also affect the future of American government. Obama has been criticized by many for not nominating enough theoretically ambitious and bold liberals to the federal courts. Part of the reason for that dynamic, however, has less to do with politics than with the supply of such theoretically ambitious liberals—particularly law professors.

Many of the more-radical jurisprudential movements from the earlier generations have succeeded in opening eyes to the flaws in the legal system, but beyond that have largely disappeared. The Old Left efforts to push courts to be more aggressively liberal floundered after years of courts dominated by Republican appointees. The New Left efforts by the critical-legal-studies movement and others floundered, in part because, like with the Old Left, their ideas were met with sustained resistance from the elite institutions of the legal system.
Spare me! There are plenty of strongly liberal and lefty lawprofs and if you want theoretical ambition you can find it. The reason these folks don't get nominated to the Supreme Court is crushingly obviously because they'd be soundly rejected by the American people and borked in the Senate.
The country has moved to the right, so there are fewer law professors who are truly liberals. 
Yeah, there's a little balance now. I can imagine what "truly liberal" means to Fontana. I think they're nearly all liberal from the standard that prevails among American voters, but that's not truly liberal.
Many of those on the left today are simply trying to maintain older decisions... Others on the left, who once might have aggressively pursued liberal legal ideas, are now increasingly writing about law from a more theoretical or quantitative, and therefore less practical, perspective—making their writing less related to the issues judges decide and making them less obviously candidates for future judgeships.

And some on the left who write more directly about cases and courts, like Tushnet or Dean Larry Kramer of Stanford Law School, and Dean Robert C. Post of Yale Law School, are now increasingly members of the "popular constitutionalism" movement, who believe that courts should be stripped of all or most of their decisional powers—hardly the prejudicial profile that one wants.
"Prejudicial"? I know what he meant to say but... what a hilarious word!

Anyway, yes, many brilliant liberal/lefty lawprofs have applied their minds to generating arguments for why courts shouldn't enforce rights, but I think the reason they have gone in that direction is that they have perceived that it is the most effective way to push back against the conservative and liberal-but-not-truly-liberal jurists who get appointed to the Supreme Court. The "popular constitutionalism" movement is further evidence that the American people have a pretty conservative view of what judges should do and how the Constitution should be interpreted. And that's why the nominees aren't "theoretically ambitious and bold liberals."

34 comments:

mccullough said...

Kagan's the best the President can do on this front.

Pam Karlan would get maybe 15 votes; Tushnet maybe 33 votes.

The President is liberal, but not insane.

AlphaLiberal said...

Interesting question and beyond my knowledge base. But Barack Obama is basically a political centrist. We knew that in the campaign and he's demonstrated that time and again. So that seems like the simplest explanation.

But, who knows?

david7134 said...

Are you telling me that there are people more liberal than Kagan? You have got to be kidding. The real problem with Kagan is that she is young and not very bright. Yes, I know she was president of Harvard, but that is my point. I have not really met that many people from Harvard that I hold respect for.

david7134 said...

Alphaliberal,
Obama is a centrist? You obviously are joking. The guy is so far out there that main line Dems are leaving the party.

NotYourTypicalNewYorker said...

Funny how some could call the most liberal senator in the senate a "political centrist",but there you have it.


WV: conect-What some should do with reality...

Skyler said...

B. Hussein is a centrist like the Pope is a muslim.

ChuckC said...

Fontana's premise appears to be that the only repository of future Supreme Court justices are the faculties of law schools.

FDR once contemplated appointing a non-lawyer to the court although he realized him nominee would have to be a sitting Senator or else the Senate would balk.

Maybe he had something there.

edutcher said...

Just what we need - appellate court judges even farther to the Left.

They'd probably cease to view the Constitution as a living document, and kill it, so they can resurrect it as the Gospel according to Lenin.

david7134 said...

Are you telling me that there are people more liberal than Kagan?

Liberals are supposed to believe in freedom and liberty. I don't think she qualifies.

John Thacker said...

There are plenty of people on the Right upset that Justices Roberts and Alito are no Thomas and Scalia.

paul a'barge said...

Get the bloody F'ing hell all the way out of town!
[blockquote]
When President Barack Obama nominated Elena Kagan to the U.S. Supreme Court last week, he described her appeal in much the same way he has described his own: as a postpartisan figure. Just as Obama and Kagan represent a generation of national political figures trying to be postideological, so too they represent a distinctive generation of figures in elite law schools
[/blockquote]

oh. my. freakin'.heart.

Barack Hussein Obama is postpartisan. Elena Kagan is postideological.

Just wow. Dial 911. Wake the kids and start the car.

The mutt who wrote this is a professor of law? How about the mutt who wrote this is not even originally from this planet.

Good grief. How would you like to be one of this mutt's students? Oh the bottomless pit of suffering there.

Fat Man said...

Insufficient supply of liberal law professors? That must be because the vast majority of law professors are left wing radicals.

halojones-fan said...

Both this article and several others (discussed here and elsewhere) have brought up this New Dem/Left Judicial Theme; namely, the notion that judicial activism does exist after all but that it's a conservative activism, as though liberal judges are the defenders of precedent and Constitutional originality.

Joe said...

From a liberal, or at least Democrat, perspective, what's wrong with Diane Wood? She seems to be quintessentially qualified to be a Supreme Court Justice. (Perhaps it's because she actually makes cogent arguments?)

paul a'barge said...

Want to read more about this imbecile?
Click here and scroll down to the section on Fontana.

New mascot for the Lib-tard team right here, folks.

Joe said...

Oh, that's right Wood learned law in Texas and is a protestant. Sorry.

AJ Lynch said...

LOLOLOLOLOLOL at that question and Alpha's "centrist" comment. Bahhaaawwaaa!

BJM said...

"hardly the prejudicial profile that one wants.

Apart from the Freudian slip...Liberals should be careful for what they wish...Chief Justice Earl Warren comes to mind.

Jason said...

The suggestion is so totally ridiculous that it is offensive. My law profs were mostly left-wing loons.

Original Mike said...

"Has Obama failed to nominate a strongly liberal Supreme Court Justice because of the insufficient supply of liberal law professors?"

I am speechless.

Foobarista said...

The problem is "if it feels good, do it" and "the ends justify the means" aren't terribly coherent legal philosophies, but they're at the core of modern leftism. The extension of these ideas is simply "might makes right", and is not a good basis for careful legal thinking.

Hoosier Daddy said...

Interesting question and beyond my knowledge base.

2+2= is beyond your knowledge base.

Hoosier Daddy said...

Obama is a centrist? You obviously are joking.

Depends on what company you're comparing him to. Trotsky was a centrist.

etbass said...

My challenge to Alphaliberal:

If Obama is a political centrist, please give just a handful of others in public life who are to Obama's left and just a smidgen of data to support that.

GMay said...

BetaLib, that's some first class trollin' right there!

Pro-moves, by BetaLiberal!

Cue Robert Cook rushing in to back up the centrist claim in 3...2...1...

Big Mike said...

But Barack Obama is basically a political centrist. We knew that in the campaign and he's demonstrated that time and again.

I'm glad I wasn't drinking a hot cup of coffee when I read that.

I'm trying to figure out the mindset of someone who thinks that Barack Obama is a centrist, or that there is an "insufficient supply of liberal law professors." A person who can write either of those with a perfectly straight face must be a genuine extremist.

Alex said...

AL:

Interesting question and beyond my knowledge base. But Barack Obama is basically a political centrist. We knew that in the campaign and he's demonstrated that time and again. So that seems like the simplest explanation.

Yeah I keep hearing from the ultra-lefties that Barack Insane Obummer is not nearly lefty enough for them.

David said...

It is possible to get tenure in a top-tier law school arguing that the objective meaning of the Constitution is no bar to Congressional action because the Constitution is just a text and any interpretation of a text is as valid as any other interpretation.

Having made that argument, it is not possible to get confirmed for a seat on the Supreme Court.

c3 said...

But Barack Obama is basically a political centrist.

Why would I trust a person's assessment of centrism if his screen name is ALPHA LIBERAL

In a similar manner one can see that Utah is next to LA!

KLDAVIS said...

Well, it's pretty clear that the law, like art, is a Conservative's domain. There's no way a judge could achieve the decisions that liberals want the courts to achieve while claiming to be upholding the law.

Saint Croix said...

The question is not how liberal Kagan is. Hugo Black was a liberal. Felix Frankfurter was a liberal. The question is how committed she is to a jurisprudence that keeps her from playing politics in the Brennan/Marshall mold.

traditionalguy said...

The liberal theory of empowering the poor has outrun the practical time limits needed to enforce laws that protect property owners. When you give an extended time limit to perform or be subject to the law's penalties under a due process extension after extension rule, you have only extended the dates ahich does nothing except delay the inevitable adjustment.

gromit82 said...

I can't even figure out who the writer has in mind as being "ambitious and bold liberals." Duncan Kennedy and Roberto Unger are both cited in the article as leaders of the Critical Legal Studies movement and thus presumably would qualify under the author's criteria. But they both got tenure at Harvard Law School before Kagan or Obama enrolled there, and have been at Harvard subtantially all of the time since then. So they were certainly around to influence Kagan and Obama, even if Kagan and Obama may have preferred the influence of their more "mainstream liberal" professors.

Seven Machos said...

No true leftist law professors? That is some hilarious shit right there.

Chase said...

Fontana's article - which I slowly made my way through - is a bait and switch, rope-a-dope.

Again, another liberal saying something he doesn't really believe but will say to influence the conversation anyway.

Why don't these people just move to China or Cuba and practice their propaganda attempts there? Surely they would be much happier . . .