"[Ron] DeSantis, 44, is not the first Republican politician of his generation to rail against his own Ivy League degrees while milking them for access and campaign cash."

"But now, as he seeks the Republican presidential nomination, he is molding his entire campaign and political persona around a vengeful war against what he calls the country’s 'ruling class': an incompetent, unaccountable elite of bureaucrats, journalists, educators and other supposed 'experts' whose pernicious and unearned authority the governor has vowed to vanquish...."

From "How Ron DeSantis Joined the ‘Ruling Class’ — and Turned Against It/Over the years, Mr. DeSantis embraced and exploited his Ivy League credentials. Now he is reframing his experiences at Yale and Harvard to wage a vengeful political war" (NYT).

I see no problem with a young person taking advantage of elite education and then rejecting its values. Who better to challenge the "ruling class" than someone who's had a direct experience with it? If education is any good it equips you to go on to pursue your own goals. Does the NYT think the students are supposed to absorb indoctrination and then go on to be loyal to the elite?

Harvard Law School was looking for women when it hired Elizabeth Warren.

I'm reading "Ethnicity not a factor in Elizabeth Warren’s rise in law" by Annie Linskey, in The Boston Globe.

Harvard Law School’s internal statistics from the time showed the institution was looking for female professors and had set a goal of hiring a tenured woman that year. Oddly, the law school’s internal metrics found that they believed they had sufficient minorities on staff, despite employing only five.

One area that 30 of the 31 professors interviewed by the Globe agreed on: There was no talk about her Native American claims during the meetings over her appointment. One professor emeritus, Lloyd Weinreb, said he believes her Native American ancestry was discussed. But, in an e-mail he questioned his own recollection: “I am not sure enough for you to rely on me,” he wrote.

If it were discussed, in what way would it have been discussed?

It’s not even clear that Warren would have been accepted as a true minority hire if she’d been pitched to the faculty that way. “It wouldn’t have even worked in the most diehard communities,” said [David] Wilkins, who was one of the only black law professors on staff. “Let’s be blunt. Elizabeth Warren is a white woman. She may have some Native American roots, but so do most people.”

That one comment is more significant, I think, than the fact that  30 out of 31 Harvard lawprofs affirmed to the Globe that there was "no talk about her Native American claims during the meetings over her appointment."

By the way, did the Globe ask these professors if there was any talk outside of the meetings? Was there any written communication? Were the professors asked if they knew that Warren was listed as Native American in the American Association of Law Schools book that all law professors get a copy of every year? Did they know and did they think about it? There could be a decorum according to which you don't openly talk about it in meetings but everyone knows and is taking it into account. And one reason not to talk about is that you know that — as Professor Wilkins clearly stated — the black law professors would have objected if her case had been presented as a minority hire. But those voting on the case may nevertheless have considered it a plus that the school would be able to say that it had a Native American law professor — which in fact it went on to do.

The Harvard Law School students who were clamoring for more diversity also did not view her as a woman of color when she was offered a job.

“In order to show a real commitment to diversity they need to do more than pass a resolution and bring in white women,” said Julie A. Su, then a second-year Harvard Law student who was quoted in the Harvard Crimson the day after Warren was offered the job.

I believe this.

And, remarkably, Warren doesn’t even remember getting the offer. “I guess it should have been a big moment,” Warren said, reflecting on her inability to recall the details.

That's weird, but it's doesn't affect the matter under discussion. If her putative Native American ancestry were a factor in hiring her, I can't believe it would be part of the communication of the offer.

I mean, at my school, this sort of thing was out and proud. Under our chancellor Donna Shalala, we had "The Madison Plan," which funded 4 hires in one year. Our hires included a Native American whom Professor Wilkins might have looked at and called "a white man," but he was — and this was considered crucial — a citizen of the Cherokee nation.

Perhaps most telling was the role of Randall Kennedy, a law professor who was on the Harvard appointments committee at the time, and was in charge of recruiting minority candidates.

“She was not on the radar screen at all in terms of a racial minority hire,” Kennedy told the Globe. “It was just not an issue. I can’t remember anybody ever mentioning her in this context.”

Kennedy says he remembers no mentions, and that seems to refer to discussions outside of meetings as opposed to meetings alone, which tweaks my suspicion about what "30 of the 31 professors" told the Globe.

If you're wondering whether Professor Kennedy is a member of a minority group, I refer you to this book he wrote, the title of which I won't write. (I'd read that book, but I would not listen to the audio version.)

The Boston Globe takes care to give us quotes from Harvard Law School professors Warren antagonists probably know and like — Alan Dershowitz ("occasional Trump defender")....

“This is a made-up issue... This is not an issue that’s worthy of the president or anyone else.”

... and Charles Fried ("the former solicitor general to president Ronald Reagan")...

“It had nothing to do with our consideration and deliberation... How many times do you have to have the same thing explained to you?”

They sound testy! And imperious. Like people are idiots who don't understand their words — when really it's that people don't believe them. Actually, the testy, imperious denial may heighten suspicion.  And race is something that can affect decisionmaking without anyone needing to say it explicitly. Later, maybe no one remembers anything. They may not even see it at the time. But that's too complex and unknowable to see and talk about, unless it's one of those times when we're told we must.

ADDED: Are the last 11 words of this post too enigmatic? I'm thinking of the many calls for a "conversation on race" that are about getting ordinary people to understand the "systemic racism" and "white privilege" they're supposedly failing to see.

The real problem with ending the 3d year of law school: What would happen to the clinics?

Instapundit asks "Should The Third Year Of Law School Be Cut?" which is a link to Paul Caron's excerpts from a set of NYT letters addressing the proposal that President Obama entertained recently.

But Caron's excerpts don't contain what I think would be the real sticking point for law schools. Let me do a different excerpt, with boldface added. From Georgetown lawprof Philip G. Shrag:

Small seminars to teach research and writing would vanish. Education in ethics would be threatened. Clinical education, which best prepares students for the real practice of law, is expensive because of its hands-on approach. It is taught mainly in the third year, and it might be the first to go.

After decades of building up clinical education in law schools, this 2-year approach looks like a devious plan to scrap them. But a second letter, from Hastings lawprof Marsha N. Cohen, makes it look completely different:

Ted Cruz's office says "in the mid-1990s, the Harvard Law School faculty included numerous self-described proponents of 'critical legal studies'..."

"... a school of thought explicitly derived from Marxism – and they far outnumbered Republicans."

That's in response to a New Yorker article quoting something Cruz said in a speech 3 years ago. (What Cruz said back then, at an Americans for Prosperity conference, was that when he was at Harvard Law School "There were fewer declared Republicans in the faculty when we were there than Communists! There was one Republican. But there were twelve who would say they were Marxists who believed in the Communists overthrowing the United States government.")

The Cruz spokesperson called it "curious that the New Yorker would dredge up a three-year-old speech and call it 'news.'"

Curious... there's a noncommittal word. I don't see anything wrong with digging stuff out of old Cruz speeches. He's a new character on the national stage, so it's not like old territory is being reworked. It was an inflammatory statement, and he needs to stand by it (and back it up), defend it as hyperbole, or concede he was wrong.

Elizabeth Warren says — for the first time — that she told Harvard University and the University of Pennsylvania that she was Native American.

Boston Globe reports:

Federal statistics like those in the Harvard records, which were compiled for the Department of Labor, rely on a definition of “Native American’’ that requires both ancestry and an official affiliation with a tribe or community. The 1992-93 and 1995-96 Harvard reports indicate the university relied on that definition during those years as well as the years since.

Warren has not met any of those standards. Though she continues to consider herself Native American, she has not provided any genealogical evidence....

Professor Charles Fried, who sat on the committee that recruited Warren, reiterated to the Globe on Wednesday that he was unaware of Warren’s minority status when she was hired. He said that the committee never discussed it and that he does not consult the legal directory in which Warren had listed herself as a minority.

However, Fried acknowledged Wednesday to the Globe, it seemed strange that the issue of her heritage would not come up during the hiring process since she was recruited in the early 1990s, when the school was under intense pressure to diversify its faculty....

How Patrick Leahy saved Charles Fried from revealing that many law professors think judges should decide constitutional questions to produce the best policy consequences.

At yesterday's Senate Judiciary Committee hearing on the constitutionality of the Affordable Care Act, Republican Senator Charles Grassley asked what you might think is a very basic question: "And do you think that judges should decide cases based on their best understanding of the meaning of the Constitution or on whether they think their rulings would have good or bad policy consequences?"

The witnesses — Oregon Attorney General John Kroger, lawyer Michael Carvin, and law professors Randy Barnett, Walter Dellinger, and Charles Fried — all immediately agreed [ADDED: with the first option].

Grassley, who was running out of time, added, "Obviously, it's good to have that understanding, that we're a society based upon law and not upon what judges just happen to think it might be." 

It was Senator Leahy's turn at that point, and he began, spontaneously, off-script:

LEAHY: Actually, on that last question, Professor Fried, do you know anybody that disagrees with that, whether the left or the right?

FRIED: Well...

LEAHY: I mean...

FRIED: Yes, I'm afraid I do.

LEAHY: They don't admit it. But do you know anybody who should disagree with it?

FRIED: Not a soul.

LEAHY: I thought you might feel that way.

Now, Fried is a professor at Harvard Law School. Of course, he knows lots of people who think judges should decide cases based on "whether they think their rulings would have good or bad policy consequence" and not on some sort of "understanding of the meaning of the Constitution." I'll bet he knows many people whose understanding of the meaning of the Constitution already automatically is: whatever would have good policy consequences.

But when Leahy says "They don't admit it," Fried does not answer. Fried was saved from having to admit that he knows plenty of people — I'll bet he does — who would proudly admit it. I know law professors who not only admit it but trash you as naive or evil if you won't go along with them.

Leahy moves quickly to another question thus closing the uncomfortable opening: "But do you know anybody who should disagree with it?" Ah! The relief of the word "should"! If he had said "does," Fried would, in all likelihood, have had to say "yes." But Leahy said "should," and Fried could say "Not a soul." And Leahy could totter ahead onto his prepared script. Whew! That was a close one!

(I'm sorry I don't have a transcript to link to. Here is video of the event.)

Obama's pick for Solicitor General -- Elena Kagan -- has never argued a case before the Supreme Court.

In fact, it appears that she has no appellate experience at all.

[F]ormer Solicitor General Charles Fried, now a Harvard colleague of Kagan's, exclaims "Nonsense!" when asked if Kagan's lack of appellate experience is a deficit. "Anyone who tells you it's a problem is trying to maintain a guild lock on Supreme Court arguments."...

Fried himself had not argued before becoming deputy solicitor general in February 1985 -- a few months before he was elevated and confirmed as solicitor general....

... Georgetown University law professor Richard Lazarus -- currently visiting at Harvard -- the appointment of Kagan represents a "return to the mold" of earlier solicitors general, most of whom arrived from academia or the bench with little or no appellate experience.

It was not until Seth Waxman's appointment by President Bill Clinton in 1997, Lazarus says, that a new trend began of drawing SGs from the ranks of private firms, where they had honed litigating or appellate skills....

But the Waxman trend also tracks -- and perhaps responds to -- a new era on the Supreme Court itself, of a searingly "hot bench" with eight very active, combative questioners, as opposed to past courts where as many as three or four justices were almost as silent as Justice Clarence Thomas is now. That intensity has helped promote the notion that a new level of skill and specialization is needed to conquer the modern-day Court....

Well, it will be interesting to see how this works out.

What to ask Mukasey.

4 law professors say what questions they'd like the Senate Judiciary Committee to ask Michael Mukasey. (The Attorney General nominee testifies today.)

A sampling:

Jack Goldsmith: "In 2002 the Department of Justice opined, 'Any effort by Congress to regulate the interrogations of battlefield combatants would violate the Constitution’s sole vesting of the commander-in-chief authority in the president.' Do you agree with this statement? How do you define the scope of the president’s exclusive military powers?"

Charles Fried: "Priorities in law enforcement and particular conceptions of controversial legal issues — affirmative action, severity and leniency in criminal prosecution and sentencing, antitrust policies, civil rights enforcement — have always been part of a president’s project for the nation. And yet the public expects and the rule of law demands impartiality in law enforcement. So the attorney general cannot be independent of the president who appointed him, as are judges or the chairman of the Federal Reserve Board, but neither must he be a political operative pushing the president’s advantage at every turn. How would you balance these conflicting demands?"

Jack Balkin: "When, if ever, should the government prosecute journalists or other citizens for publishing classified information leaked to them about government activities of questionable legality?"

UPDATE: Mukasey on the "torture memo": "The Bybee memo, to paraphrase a French diplomat, was worse than a sin, it was a mistake. It was unnecessary."

Explaining the Solicitor General's office, defending Alito.

Lawprof Charles Fried has an op-ed on Samuel Alito in today's NYT, looking at the way Alito's opponents have used memoranda he wrote as a junior lawyer in the office of the Solicitor General. Fried, who was Solicitor General from 1985 to 1989, writes:

These were not the writings of a political operative seeking to make trouble or advance an agenda. The solicitor general takes a case to the Supreme Court only when some other part of the government - perhaps a division of the Department of Justice or another agency - recommends it.

As a junior staff member, Alito received assignments, including one dealing with abortion and another with wiretapping:

What is remarkable in both cases is that Judge Alito recommended against taking the position that more senior, politically appointed officials were urging the solicitor general to take before the court.

I'm not going to excerpt from the rest of the piece, because it's so pithy that you ought to read every word. Fried makes his point with the great clarity you'd expect from a Solicitor General: if you understand the context of the cases and the way the Solicitor General's office works, you can see that Alito is "a careful lawyer with the professionalism to give legally sound but unwelcome advice" and "a person who can tell the difference between the law and his own political predilections."

Radio alert!

I'll be on Open Source, a nationally distributed public radio show based in Boston and hosted by Christopher Lydon, at 7 Eastern, 6 Central Time -- in other words, in a few minutes. I'll be talking about Supreme Court nominations along with Cass Sunstein, Eric Muller, and Charles Fried. You can listen live here. And it's Halloween, with kids coming to the door.... Crazy day! And I've got a final edit on an op-ed to turn around before I go on. Gotta run!

UPDATE: That was interesting. Cass Sunstein came ready with statistics based on reading 41 Alito dissents and concluding that Alito was a predictable conservative vote, a point he repeated at least five times. And then he accused me of spinning.... Isn't this like "he who smelt it, dealt it"? He who detects spinning is the spinner?

Although I'm detecting it now, so....

Oh, lord! I am hitting the wall tonight!

And where are all the trick-or-treaters? I've got sooooo much extra candy! Two tiny kids came to the door just now and I held out a giant bowl o' candy and said "Take as much as you want."

Spiderman and the Princess each took one piece.

"Go ahead, take as much as you want."

No reaction.

"Go ahead, take two."

Answer: "I already have one."

Awwwww.... little kids are so sweet!

UPDATE: Here's the recording of the show.

The inevitability of Justice O'Connor.

Lawprof Charles Fried, in a NYT op-ed, delivers a pithy analysis of what's at stake in Supreme Court appointments:

Democrats fear a court that will embrace the constitutional rigidities of its most conservative members. Republicans fear a court that will once again seek to impose in the name of the Constitution the agenda of a liberal elite. I fear an indefinite and incoherent prolongation of a fin-de-siècle jurisprudence, where the court serves as nothing more than an ad hoc arbiter of issues it finds too difficult to decide in a principled way.

Crude translation: I'm tired of Justice O'Connor.

So then because thou art lukewarm, and neither cold nor hot, I will spue thee out of my mouth.

But there is some force in the Supreme Court microcosm that produces a moderate center. Fried wishes one or the other of the grand visions would prevail. (Though, clearly he prefers the conservative side, about which he says: "I would call [their doctrines] liberal with a small l, the liberalism of classic individualism... not, as their opponents have caricatured them ... extreme or lacking in nuance.")

I tend to think whoever becomes President will find it difficult to appoint a Justice who will give a decisive majority vote to one side or the other. You may find this balance of extremes with a moderate center an unstable condition that must, sooner or later, give way to one or the other of the clear positions. But perhaps not. Perhaps there is something utterly stable about the current balance. Even as Justice Brennan's replacement found himself drawn into the vacated niche, so may Justice O'Connor's replacement feel compelled to play The Moderator.

UPDATE: Lawprofs Stephen Bainbridge and Jack Balkin also take on Fried. They characterize Fried as making a "simple error" in not perceiving the role Justice O'Connor plays. My reading of Fried is that his piece is all about implying that O'Connor is a big problem that needs to be solved. I'm willing to bet Bainbridge and Balkin that Fried has a sharp comprehension of the situation!