"Each time Ed had another encounter with his 'pal, the surgeon'—whom he did not begrudge for having 'to maintain his skills'..."

"... he’d promise to quickly 'be back with fervor at the drawing board, conjuring up malevolent, wicked delights and pleasures for your eyes.' And sure enough, his shaggy Vermonters and Manhattanites, his farmers’-market devotees and NPR donors—by way of ​​Snuffleupagus by way of Daumier—whose pretensions and obsessions he affectionately lampooned, would soon be parading into my in-box. In his final months, he didn’t have the energy to draw as large, or with such obsessive, scratchy detail, as before, but he still couldn’t resist reworking one final cartoon—featuring the Grim Reaper, as a poet—before sending it off to me last week.... On a recent call with Ed, when I expressed awe at the fact that he was still sending in cartoons for me to review, he quoted Mark Twain: 'The secret source of Humor itself is not joy but sorrow.' Neither of us mentioned the second half of that line—'there is no humor in heaven.'"

Writes Emma Allen in The New Yorker's "Postscript" — "Edward Koren, the Cheery Philosopher of Cartoons/The artist, who was first published in The New Yorker in 1962, never stopped marvelling at the miracle of a cartoon’s creation."

Here's the NYT obit: "Edward Koren, 87, Whose Cartoon Creatures Poked Fun at People, Dies/For six decades in The New Yorker and elsewhere, his hairy, toothy, long-nosed characters offered witty commentary on the foibles of the American middle class."

"The very intensity of Justice Alito’s remarks seems to me to confirm my judgment about who won the culture wars. His are in fact the observations of a person who hasn’t come to grips with the fact that he’s been on the losing side of many culture war issues."

Said Harvard lawprof Mark Tushnet, quoted in "In Unusually Political Speech, Alito Says Liberals Pose Threat to Liberties/The conservative justice’s pointed remarks, which he made in a speech to the Federalist Society, reflected thoughts he has expressed in his opinions" (NYT). 

Tushnet is the Harvard professor that Alito was referring to in his speech (transcript):

The question we face is whether our society will be inclusive enough to tolerate people with unpopular religious beliefs. Over the years, I have sat on cases involving the rights of many religious minorities — Muslim police officers whose religion required them to have beards, a Native American who wanted to keep a bear for religious services, a Jewish prisoner who tried to organize a Torah study group.... 

A Harvard Law School Professor provided a different vision of a future America. He candidly wrote, quote, the culture wars are over, they lost we won. The question now is how to deal with the losers in the culture wars. My own judgment is the taking a hard line you lost live with it is better than trying to accommodate the losers, taking a hard line seem to work reasonably well in Germany and Japan after 1945. Is our country going to follow that course? To quote a popular Nobel laureate, "It's not dark yet, but it's getting there."

Alito seems to like to refer to people without naming them. The "Harvard Law School Professor" was Mark Tushnet. Who was the Nobel laureate? 

 

ADDED: Hey, Professor Tushnet, you say the war is over and you won and the other guy is the loser, but the Nobel laureate says: 

... don’t speak too soon 

For the wheel’s still in spin 

And there’s no tellin’ who that it’s namin’ 

For the loser now will be later to win 

For the times they are a-changin’

Jonathan Turley writes that he was "a tad naive in hoping that an academic discussion on the history and standards of it might offer a brief hiatus from hateful rhetoric on both sides."

Hate! Don't say that word! Nancy Pelosi is a Catholic, and she freaks out at the word "hate."

Here — at The Hill — is Turley's reflection on his sojourn before the House Judiciary Committee. It's almost entirely a self-defense, because he's being attacked for contradicting things he said in testimony when Obama was President and when Bill Clinton was President:

Despite 52 pages of my detailed testimony, more than twice the length of all the other witnesses combined, on the cases and history of impeachment, [Washington Post columnist Dana Milbank] described it as being “primarily emotional and political.” Milbank claimed that I contradicted my testimony in a 2013 hearing when I presented “exactly the opposite case against President Obama” by saying “it would be ‘very dangerous’ to the balance of powers not to hold Obama accountable for assuming powers ‘very similar’ to the ‘right of the king’ to essentially stand above the law.”

But I was not speaking of an impeachment then. It was a discussion of the separation of powers and the need for Congress to fight against unilateral executive actions, the very issue that Democrats raise against Trump. I did not call for Obama to be impeached....

In my testimony Wednesday, I stated repeatedly [as I stated in my testimony during the Clinton impeachment] that a president can be impeached for noncriminal acts.... My objection is not that you cannot impeach Trump for abuse of power but that this record is comparably thin compared to past impeachments.... ... Democrats have argued that they do not actually have to prove the elements of crimes.... In the Clinton impeachment, the crime was clearly established and widely recognized.... [W]e are lowering impeachment standards to fit a paucity of evidence and an abundance of anger.... 

There should have been a witness who did take the position that the President can only be impeached for criminal acts. Turley took a middle position, and perhaps he demonstrates the dangers of moderation. He's drawing distinctions that his antagonists can fail or decline to see.

I see there's a column at The Nation titled "The Republicans’ Star Impeachment Scholar Is a Shameless Hack/Jonathan Turley’s testimony was so inconsistent, it contradicted his own previous statements on impeachment." Elie Mystal writes:

"The dogma lives loudly within you" — Dianne Feinstein's amazing challenge to 7th Circuit nominee Amy Coney Barrett.

I'm writing about this topic for the first time because there's a NYT op-ed by lawprofs Geoffrey R. Stone and Eric J. Segall that I anticipate will get closer to what I'd like to say than what I've seen so far. At the Judiciary Committee hearing on the nomination of Amy Coney Barrett, Dianne Feinstein said something related to religion — Barrett is Catholic — that was phrased very carefully:

“Whatever a religion is, it has its own dogma. The law is totally different. And I think in your case, professor, when you read your speeches, the conclusion one draws is that the dogma lives loudly within you, and that’s of concern when you come to big issues that large numbers of people have fought for for years in this country.”

That got a big reaction, including the charge that it violates the constitutional demand that "no religious test shall ever be required as a qualification to any office or public trust under the United States."

Is "dogma" a dog whistle, expressive of anti-Catholic bias or does it aptly characterize a person with fixed beliefs that interfere with understanding law in a properly judicial way? As Stone and Segal put it:

Senator Feinstein was not suggesting that Catholics shouldn’t be judges. She was asking whether someone of deep faith and who had previously openly (and in our opinion eloquently) written about the relationship between judging and faith could cast aside her deeply held views when judging. Had Ms. Barrett said that her faith would in fact deeply influence her judging, would the question have been deemed so wrong? We think not.

Likewise, if senators had asked Justice Ruth Bader Ginsburg during her confirmation hearing if her long history litigating claims of gender discrimination would influence her judging, or if they had asked Chief Justice John Roberts whether his time working in the Bush administration would affect his decision making, no one would have blinked.

Judges regularly decide difficult legal issues in which the law at issue is unclear. In those open spaces, a judge’s personal values and life experiences will inevitably play a role in the outcome of the case. Given that Ms. Barrett had previously explored the relationship between her deeply held religious views and judging, Ms. Feinstein acted well within the bounds of fair questioning to probe deeply on this question.

The main problem with this kind of questioning is that it is so routine and so routinely answered. We're being asked to rely on the decisions that will come from the mind of this nominee. That mind must be tested, and it can't be tested enough. There are all sorts of biases and disabilities within any human mind, and the hearings can do very little to expose the limitations of an intelligent, well-prepared nominee.

To create a special immune, untestable zone is absurd.

A nominee with a mind entirely devoted to religion and intending to use her position as a judge to further the principles of her religion should be voted down just like a candidate who revealed that he'd go by "what decision in a case was most likely to advance the cause of socialism."

I'd like to think that a religious person has a strong moral core that would preclude that kind of dishonesty, but we're not required to give religious nominees a pass and presume they're more honest than nominees who are not religious devotees. That would be religious discrimination!

"Fix law schools’ diversity problem, NOW!"

Says Instapundit, referring to intellectual diversity and quoting a Scott Rasmussen piece that cites a James Lindgren study that shows 82% of lawprofs are Democrats and 11% — that many?! — are Republican. "Fewer than half" — that many?! — "are Christian."

I passed on blogging that Rasmussen piece when I noticed it yesterday, but I'm blogging it today because of Instapundit's reaction, which might ring clear to blog readers but is utterly (and, I assume, deliberately) obtuse from my perspective within the law academy.

"For liberals, the question now is how to deal with the losers in the culture wars. That’s mostly a question of tactics."

Writes Mark Tushnet, in part of a 6-point plan for "abandoning defensive-crouch liberalism" (energized, prematurely, by the 4-4 balance on the Supreme Court):

The culture wars are over; they lost, we won. Remember, they were the ones who characterized constitutional disputes as culture wars (see Justice Scalia in Romer v. Evans, and the Wikipedia entry for culture wars, which describes conservative activists, not liberals, using the term.)

Professor Tushnet doesn't bother to put in links. I found the Wikipedia entry for "culture wars," and it traced the term to "Culture Wars: The Struggle to Define America" by the sociologist James Davison Hunter. That was published in 1991, 5 years before Scalia, in Romer, wrote of the "Kulturkampf" ("culture war").

Does the war metaphor matter? Is there some idea that whoever called it a "war" first is — after the war ends — properly treated like a conquered enemy?

The Supreme Court's new double jeopardy case divided 6-3 on gender lines: was this "some sort of gender-related 'empathy'"?

Lawprof Mark Tushnet wonders, noting the dissent limited to the 3 female Justices — Ginsburg, Kagan, and Sotomayor — and expressing the belief that "this is the first case in which the Court has divided along gender lines." I don't think he's taking account of instances when Justice O'Connor (or Justice Ginsburg) was the only woman on the Court and dissented alone. It is striking to see the 3 women segmented off, but really, what is the big deal? They are the liberal wing of the Court, so it's just a matter of whether or not Justice Breyer joins them. I suppose one might wonder whether there's something male about Breyer's defection from the usual group of liberals.

The case in question, Blueford v. Arkansas, found the 3 women championing the rights of a man accused of murder after a 1-year-old boy died of a severe head injury while in his care. Nothing particularly appealing to females there, as Tushnet notes.

Perhaps what's at work is some sort of gender-related "empathy" triggered by the prosecutor's decision to "overcharge," as the three justices might have thought, and then to continue to try to obtain a conviction on an unjustified charge. (I can also imagine -- I stress the word, because I have absolutely no inside information -- Justice Kagan thinking the case close on the merits and deciding that it would be neat to have the Court line up along gender lines. For what it's worth, I note my personal judgment that Justice Sotomayor's dissent is tighter than the Chief Justice's opinion for the Court.)

Tighter?! I hope that's not a gender-related notion, professor. I've read both opinions, and I think the Chief Justice's majority opinion is plenty tight.

Anyway... neat to have the Court line up along gender lines. Tushnet can imagine Kagan thinking that. I can't.  (And why is Kagan running the show? It's Sotomayor's opinon.)

"But she found the Party of the Right students compassionate, intellectual and not terribly exercised about her homosexuality."

"She was drawn to the Catholics among them, who corrected her misimpression that the existence of sin 'means you are bad.' It means 'precisely the opposite,' they taught her. 'It means you have a chance to come back and repent and be saved,' she says."

The NYT has an article about Eve Tushnet, the daughter of lefty lawprof Mark Tushnet. As a Yale student, she first attended a meeting of the conservative group "specifically to laugh at them, to see the zoo animals." Now, she advises individuals with a homosexual orientation to abstain from sex.

As the hundred or so daily readers of eve-tushnet.blogspot.com, and a larger audience for her magazine writing, know by now, Ms. Tushnet can seem a paradox: fervently Catholic, proudly gay, happily celibate. She does not see herself as disordered; she does not struggle to be straight, but she insists that her religion forbids her a sex life.

That blog has been on my blogroll for a long time. Her father, now a Harvard lawprof, is one of the many former Wisconsin lawprofs who are out there at other law schools carrying on what people here like to think of as the Wisconsin tradition.

Her father, a nonobservant Jew, and her mother, a Unitarian, both belonged to progressive traditions, tolerant of her sexuality.

Eve became a Catholic in her sophomore year at Yale.

[S]ince 2002 she has made a meager living through writing, computer programming and freelance research. She lives in the Dupont Circle neighborhood of downtown Washington and volunteers two hours a week at a Christian pregnancy-counseling center.

ADDED: Queerty says:

Tushnet's website receives "hundreds" of visits per day — hardly enough to call her an influential blogger. But that reach comes through her scribblings for magazines like the National Review, titles that are apt to give space to people "on the inside" of gays advocating against them. Her writings are interesting, we'll give her that; ex-gays! sublimation vs. repression! And so is her story.... But she is a person with a platform who is out harming human beings with her instruction, and that's simply unacceptable.

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."

Lawprof Mark Tushnet "wants [the Supreme Court] to be slackers."

He's referring to the current Supreme Court, which he doesn't like, so he's happy with them cranking out fewer cases. The ideal number would be 0, he snarks, here at the judicial review symposium.  It's the last panel of the day.

Lawprof Nelson Lund has just spoken, condemning the "cult of celebrity judges." Is there a cult of celebrity judges? If so, is it a bad thing? Anyway, Lund has a bunch of proposals designed to destroy the cult. Make the job of being a Supreme Court Justice more onerous and less nourishing of narcissism, and maybe the Justices will become dourly dutiful little scribes.

One proposal is to end the practice of signing opinions. Do you think if the Justices couldn't stamp their names on the opinions, their behavior would change? And would unsigned opinions even hide who the author really was?

Prof. Tushnet says:

"You're going to have to figure out how to keep Justice Ginsburg from using the word 'pathbreaking,' and you're going to have to keep Justice Scalia... well, from being Justice Scalia."

Ha ha. It would give us lawprofs a new game to play, figuring out the distinctive marks of the different judges. For a while, at least. Over time, I think, we'd stop caring who was who. The Court would fade into a black box from which opinions emerged, and we'd judge the opinions on their merit, without bothering to imagine what's going on in the minds of particular judges. Would that make law more law-like, or would it just hide things that we ought to want to know?