Sunday, May 23, 2010

The Protestant Triumph? Ike - Obama's intellectual godfather?

There has been a lot of brush fire fretting about diversity and representativeness since four of the  five boroughs of New York City will be represented on the Supreme Court, composed of six Catholics and three Jews (orthodoxy and religiosity aside).  But it is worth mentioning that the President is a Protestant.  Niebuhrian themes rooted in original sin and man's imperfectibility and the need for grace underly much of what is said by him.
James Fallows (of  Scot Presbyterian extraction) points out the interesting parallels among : Obama, Jimmy Carter at Notre Dame (Fallows had a hand in that), and Dwight Eisenhower's  "farewell address".  Here they are in chronological order:
During the long lane of the history yet to be written, America knows that this world of ours, ever growing smaller, must avoid becoming a community of dreadful fear and hate, and be, instead, a proud confederation of mutual trust and respect. Such a confederation must be one of equals. The weakest must come to the conference table with the same confidence as do we, protected as we are by our moral, economic, and military strength. That table, though scarred by many past frustrations, cannot be abandoned for the certain agony of the battlefield.  Disarmament, with mutual honor and confidence, is a continuing imperative. Together we must learn how to compose differences, not with arms, but with intellect and decent purpose. 
Carter  (Notre Dame) (1977):

We live in a world that is imperfect and which will always be imperfect--a world that is complex and confused and which will always be complex and confused. I understand fully the limits of moral suasion. We have no illusion that changes will come easily or soon. But I also believe that it is a mistake to undervalue the power of words and of the ideas that words embody. In our own history, that power has ranged from Thomas Paine's "Common Sense" to Martin Luther King, Jr.'s "I Have a Dream." 

Obama at West Point commencement (2010):
[A] fundamental part of our strategy for our security has to be America’s support for those universal rights that formed the creed of our founding.  And we will promote these values above all by living them -- through our fidelity to the rule of law and our Constitution, even when it’s hard; even when we’re being attacked; even when we’re in the midst of war. 

And we will commit ourselves to forever pursuing a more perfect union.  Together with our friends and allies, America will always seek a world that extends these rights so that when an individual is being silenced, we aim to be her voice.  Where ideas are suppressed, we provide space for open debate.  Where democratic institutions take hold, we add a wind at their back.  When humanitarian disaster strikes, we extend a hand.  Where human dignity is denied, America opposes poverty and is a source of opportunity.  That is who we are.  That is what we do.
We do so with no illusions.  We understand change doesn’t come quick.  We understand that neither America nor any nation can dictate every outcome beyond its borders.  We know that a world of mortal men and women will never be rid of oppression or evil.  What we can do, what we must do, is work and reach and fight for the world that we seek -- all of us, those in uniform and those who are not.      
And in preparing for today, I turned to the world -- to the words of Oliver Wendell Holmes.  And reflecting on his Civil War experience, he said, and I quote, “To fight out a war you must believe in something and want something with all your might.  So must you do to carry anything else to an end worth reaching.”  Holmes went on, “More than that, you must be willing to commit yourself to a course, perhaps a long and hard one, without being able to foresee exactly where you will come out.”

Friday, May 21, 2010

Jobs Picture for 2009 Law Graduates - 88% working, many in non-legal slots

The New York Law Journal reports today:

The post-graduation employment rate for the 2009 law school class fell to the lowest rate since the mid-1990s, with only 88.3 percent nationally finding a job, according to the National Association for Law Placement.
The decline marked the second year in a row that the number of jobs fell. And while there are more graduates working than many expected, a good portion of their jobs are part-time, temporary or do not require a law degree, masking the weaknesses in the job market, said James Leipold, the executive director of NALP, which released a report yesterday.
"People can't graduate with this much law school debt and nine months after graduation not be working," he said.
The study collected information on employment nine months after graduation from 192 law schools on more than 40,000 graduates, nearly 93 percent of the class of 2009.
The basic facts are in the NALP report HERE

Wednesday, May 19, 2010

Monday, May 17, 2010

A decent respect to the opinions of mankind - foreign law and the American Constitution

Part of the distressing, reactionary subjugation ritual that Senate review of federal court nominees has become is the affirmation that foreign law does not tell us how to understand the American Constitution.  It is rarely noted that our Declaration of Independence begins
When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
So it is reassuring that Justice Anthony Kennedy has displayed a decent respect to the opinions of mankind  in his Eighth Amendment jurisprudence with today’s decision in Graham v. Florida, striking down state statutes sentencing juveniles to life without parole for crimes other than murder:
[A]s petitioner contends and respondent does not contest, the United States is the only Nation that imposes life without parole sentences on juvenile nonhomicide offenders. We also note, as petitioner and his amici emphasize, that Article 37(a) of the United Nations Convention on the Rights of the Child, ratified by every nation except the United States and Somalia, prohibits the imposition of “life imprisonment without possibility of release . . . for offences committed by persons below eighteen years of age.” Brief for Petitioner 66; Brief for Amnesty International et al. as Amici Curiae 15–17. As we concluded in Roper with respect to the juvenile death penalty, “the United States now stands alone in a world that has turned its face against” life without parole for juvenile nonhomicide offenders.  (emph. added - gwc)

Sunday, May 16, 2010

1970 revisited: Boston University holds canceled 1970 graduation

As the Times has reported, Boston University held a make-up graduation for the class of 1970 whose Commencement exercise was canceled in the wake of the national student strike following the killing of four students by National Guardsmen at Kent State University.  I personally don't think there was any need to do that.  Certainly not for fear of violence.  But that things had been gummed up is certain.  I went from desk to desk in the library during exam week asking students to join the national student strike (class boycott) to protest the Nixon decision to invade Cambodia to seize the enemy's jungle hideouts.  That fiasco was a last ditch effort to win what had already been lost: the American effort to defeat the Vietnamese Communist Party's armies - the NLF in the south and the NVA in the north - both fighting now throughout the south.

I was at BU as a graduate student of Howard Zinn, the populist/pacifist/socialist historian.  Though the Times account and the BU video below don't mention him, Howard's was the spirit of the day.  I had read his Vietnam - The Logic of Withdrawal  before I left for the Peace Corps in India in 1967.  Planning my return to America while in Bassein, Maharashtra State, a master's degree seemed to be a good idea.  Combined with a law degree, I thought it would give me the choice of teaching or practicing law. So much for unaided career planning.  My contemporaries had flooded graduate schools seeking draft deferments and a PhD would be needed to teach full time (though I did teach at Rutgers night school and at 2-year Essex county College during and after law school).

In fall  1968 I wrote to Howard and discussed India, the Peace Corps, and Norman Mailer's Armies of the Night (reviewed here by Alfred Kazin).  Mailer described himself as a Left Conservative, constructing a legendary account of the anti-war March on the Pentagon in October 1967 - when some sought to levitate it, others to put flowers in gun barrels, and others to find a porta potty. ( I had missed it because we were in Peace Corps training north of Bombay.)  Howard appreciated the spirit, warned me gently not to take Mailer too seriously, and invited me to come study with him.  No college transcript, no references, no application - though I probably mentioned my GRE scores (at least the verbal).  My inquiry yielded a  typewritten acceptance letter from Professor Zinn who told me to contact the registrar about enrolling in the fall.

We read a book a week in Howard Zinn's seminar - works on history, method, and ideology. Karl Mannheim - Ideology and Utopia,  Barrington Moore - Lord & Peasant in the Making of the Modern World, a dose of Karl Popper, and the impenetrable Herbert Marcuse are ones I remember.  And in a public administration course I went to D.C. and interviewed the GSA lawyer who had negotiated the terms of the Pentagon steps confrontations between protesters and their expressionless contemporaries - the soldiers who faced the dissenters at the massive labyrinth's gates.

Howard had two doctoral students with him - Jim Miller (don't know what became of him), and Peter Irons who had a brilliant career as both historian (May It Please the Court) and lawyer (challenging the government successfully to make up for the Korematsu error and compensate the Japanese-Americans who had been incarcerated during World War II.  Peter retired from University of California at San Diego in 2004.

Howard Zinn died in 2010. His People's History of the United States sold two million copies.  He tells the story to Bill Moyers in 2009 here:

This video depicts scenes of Boston University at the time which I recall - some hazily and some well.

Watch this video on YouTube

Thursday, May 13, 2010

8 Retired NJ Supreme Court Justices ask Gov. to reconsider nomination decision

"For over sixty years, governors have nominated judges for reappointment unless there has been a determination that the judge has not capably performed his or her duties. There has been no "political test" for reappointment because the independence of the judiciary has been a bedrock principle followed by every governor....
No governor before now has sought to control the Third Branch of government through the reappointment process. " - Robert L. Clifford, James H. Coleman, Jr., Marie L. Garibaldi, Alan B. Handler, Stewart G. Pollock, Deborah T. Poritz, Gary S. Stein and James R. Zazzali.  The above are retired Justices of the New Jersey Supreme Court.

Eight retired members of the New Jersey Supreme Court have jointly called on Gov. Christopher Christie to reconsider his decision not to nominate for tenure Justice John Wallace - the Court's sole African-American.  Wallace is 22 months from the mandatory retirement age of 70.   Christie seems to relish confrontation, and speaks of "Trenton" with the sort of enthusiasm that Ronald Reagan had for the Berlin Wall.  Reconsideration is unlikely.  The State's bar and judiciary are alarmed.  New Jersey judges have been assured of re-appointment after the initial 7 year term, absent misconduct or incompetence.  Christie's expressly ideological refusal is unique in the past 60 years - as an angry NJ Law Journal editorial similarly observed.

New Jersey's modern constitution was drafted by a remarkable group of men and women. Our "founders" met at the Constitutional Convention of 1947 to replace an antiquated framework for state governance with a simplified and balanced structure that became a model for other State Constitutions. In the Judicial Article, the members of the Committee on the Judiciary turned to the Federal Constitution for guidance as they sought to transform a system of multiple courts with overlapping jurisdiction into the streamlined, yet flexible, structure we have today, and to ensure, through the judicial appointment process, the independence built into the federal system. Indeed, judges' independence was the "litmus test" for each point of discussion, as the Committee members considered such issues as lifetime tenure, appointment and reappointment. Governor Driscoll, at the close of the Judiciary Committee debates, sounded that theme:
It is, as you know, the courts that have traditionally been the guardians of our constitutions, to whom the meanest citizen may appeal for protection against a wayward executive or a capricious legislature. Without independent courts, the whole republican system must surely fail. Our primary, our basic purpose in the drafting of a new Constitution is to secure beyond any question a strong, competent, easily functioning, but always independent, judiciary, and, therefore, in a position to curb any tendency on the part of the other two branches of government to exceed their constitutional authority.
On the appointment of judges, the Committee heard testimony and discussed the pros and cons of a probationary period for judges, whether ten years, seven years, or some other period. There was concern that judges who were not reappointed would not be able to reestablish their legal practices, a concern the Committee weighed against the positive value in removing judges "who [were] appointed but didn't work out." As one member put it, "Mistakes do happen."
The members worried about misuse of the tenure appointment process, and, whether judges would be influenced by their desire to be reappointed. The convention proceedings reveal with unmistakable clarity how the seven-year initial appointment for Supreme Court Justices became part of our Constitution. As initially drafted by the Committee on the Judiciary, the Constitution provided for a seven-year term for trial judges but immediate lifetime tenure for Supreme Court Justices. Arthur Vanderbilt, the first Chief Justice after adoption of the Constitution, wrote to the Committee on July 29, 1947 and recommended initial seven-year terms for Supreme Court Justices as well in order to provide "assurance of the appointee's fitness for a life appointment."
An amendment reflecting that proposal was offered on August 19, 1947, and briefly debated. During the debate, Senator Frank "Hap" Farley supported the amendment with these words: "[It] is only fair that any new [judicial] appointments under the new Constitution should go through the trial period of one term. If they are qualified, they have no fear of not being reappointed." There is simply no question about the intent of the framers of our Constitution: reappointment would be denied only when a judge was deemed unfit, a standard that ensured the independence of the State's judiciary under the Constitution. That standard, embraced and followed for more than sixty years, is imbued with constitutional value.
The concern for judicial independence that shaped the discussion has been a hallmark of our judicial system since 1947. By unwritten rule, governors have maintained a four/three party affiliation split on the New Jersey Supreme Court, a balance seen as a powerful restraint on court "packing" or other means of exerting political pressure on an independent judiciary. Even lower court appointments are balanced between the parties. For over sixty years, governors have nominated judges for reappointment unless there has been a determination that the judge has not capably performed his or her duties. There has been no "political test" for reappointment because the independence of the judiciary has been a bedrock principle followed by every governor. When those who disagreed with the decisions of Chief Justice Wilentz tried to prevent the Senate from exercising its consent power, Governor Kean spoke out, recognizing the importance of independent judges even though he as well sometimes disagreed with the Wilentz Court.
No governor before now has sought to control the Third Branch of government through the reappointment process. Judicial decisions must be made without fear of retaliation: competence, integrity, impartiality — those qualities have been fostered by law and by tradition. Every litigant before the court has known that his or her case would be decided fairly, without undue political influence, by impartial, independent judges. Our court system has been an exemplar for other states; our courts' opinions are cited and followed by other state courts. Not everyone agrees with every decision, nor should unanimity be expected in a free society.
No one, not even the governor, suggests that Justice Wallace is not qualified to serve. He has demonstrated, as a trial judge, as an appellate judge, and as an Associate Justice of the New Jersey Supreme Court for almost seven years, integrity, thoughtfulness, scholarship, compassion and adherence to the rule of law. We can ask no more of any judge. That he is the second African American to serve on our State's highest court, and that the Court has benefitted from his understanding of our diverse society, in addition to his exemplary record, argue powerfully in favor of his reappointment.
We regret the governor's decision not to reappoint Justice Wallace and urge the governor to reconsider the effect of such a decision on judicial independence.

Saturday, May 8, 2010

NJ Law Journal Editorial Bd: Gov. Christie's assault on judicial independence

Images: Assoc. Justice John Wallace, Gov. Christie and Anne Patterson; Sen. President Steve Sweeney
Since 1947 when the current New Jersey Constitution was adopted no Governor has refused to move the confirmation for tenure of a sitting Supreme Court justice, at expiration of the initial 7 year term.  Christopher Christie rejected that tradition when he refused to submit for confirmation after a competent first term Associate Justice John Wallace.  The centrist Democrat, the high court's only African-American, was said by the Governor to believe in "judicial legislation".  That is New Jersey code for support of Abbott v. Burke - a thirty year judicial effort to establish rough equivalence in funding of urban and suburban schools, and the Mt. Laurel decisions which mandated local zoning provide for moderate and low income housing.
The Democratic Senate majority in Trenton has said it will not act on the Governor's nominee for 22 months - until the expiration of Wallace's term when he would have reached the state's mandatory retirement age of 70.  The Law Journal Editorial Board has denounced the Governor's action as a grave threat to the independence of the entire state judiciary, and has commended the Senate's stance. - GWC
Update: 8 retired NJ Supreme Court Justiices have joined the fray.  Their statement is HERE.

Judicial Independence

May 7, 2010
"[I]t is only fair that any new [judicial] appointments under this new constitution shall go through the trial period of one term. If they are qualified they have no fear of not being re-appointed." 
Excerpted statement by state Sen. Frank "Hap" Farley in support of the successful amendment to the judiciary article at New Jersey's 1947 Constitutional Convention, providing that supreme court justices, like lower court judges, be appointed for a seven-year term subject to reappointment and tenure. Vol. 1, page 587 of the Proceedings.

The drafters of New Jersey's 1947 constitution intended to create a powerful, independent judiciary, free to interpret the law using its best judgment without regard to political considerations of the moment. This judicial independence bolsters protections for individual rights and acts as a check on the worst impulses of democracy. Defending that independence against political attacks has been the guiding editorial principle for this Law Journal Editorial Board since 1947.
In refusing to reappoint Supreme Court Justice John Wallace Jr. — a moderate Democrat and the only African-American on the Court — for the 22 months remaining before his constitutionally mandated retirement, Gov. Chris Christie has erroneously claimed a mandate to end 63 years of bipartisan tradition intended by the constitution's framers, simply because he disagrees with the substance of some of the Court's decisions. None of those decisions have been identified by the governor as those in which Justice Wallace participated.
We believe that the governor's action is a radical and unprecedented assault on judicial independence. It sets a precedent that will allow governors of both parties eventually to reduce the Court to a body of temporary appointees with membership fluctuating in accord with the political cycle. We urged him not to take this step, and we condemn it unconditionally.
This is not about Anne Patterson, the woman named to replace Justice Wallace, who by all accounts is well regarded as a smart, seasoned, professional and collegial lawyer. But one has to wonder what was going through her mind standing by the governor's side at that special moment of having her nomination announced, only to hear him deliver a searing broadside directed at the same Supreme Court that he would have her sit on and its "out of control" liberal bias.
Why the governor's vitriol? To a vocal segment of the right, the idea of a politically independent Supreme Court interpreting the constitution is downright pernicious. They want to purge the courts with two primary goals: ending the transfer of suburban taxes to urban school districts and establishing the power to zone out lower-income residents. By denying Justice Wallace permanent appointment, the governor has not only catered to his base, he has declared that all nontenured judges are subject to an ideological screening by the party in power. In so doing, he has set a precedent that will have disastrous consequences long after the political wheel has turned again. Unless this action is somehow reversed, our courts will be reconstituted after every election, and their independence, their integrity and their prestige will be swamped by politics.
No one is begrudging the governor's right to appoint his choices to the Court. But there is a right way and a wrong way to go about it, and the governor rushed to choose the wrong way. His decision to stand at a press conference with his nominee in tow and declare war on the Court was a sad and arrogant display of ideological bullying. Those who expected some degree of moderation because former Republican Gov. Tom Kean is one of Christie's mentors were apparently deluding themselves; Kean stood up to his own party to reappoint Chief Justice Robert Wilentz despite his liberal bent because that's what every governor had done since the 1947 constitution: reappoint justices even if they disagree with them philosophically in order to maintain judicial independence.
The framers of our constitution understood and discussed that very point in approving the judiciary article, Art. VI. As Essex County chairman and later the first Chief Justice Arthur Vanderbilt wrote at the time, the seven-year initial term provides "assurance of the appointee's fitness for a life appointment." It is undisputed that Justice Wallace, who was initially appointed by Gov. Kean to the Superior Court in 1984, reappointed for tenure by Democratic Gov. Florio in 1991, elevated to the Appellate Division by Chief Justice Wilentz in 1992 and appointed to the Supreme Court by Democrat James McGreevy in 2003, is so qualified.
We are not fooling ourselves. It's not as if political appointments to all levels of our bench are not commonplace and often regrettably lacking in caliber. However, our Supreme Court has largely been different. Appointments have been practicing lawyers, gubernatorial advisors, government officials, attorneys general and judges, most liberal, some moderate and conservative, most very bright and some very exceptional. But why would any lawyer of quality abandon a presumably successful law career for a Supreme Court judgeship whose longevity depends on the political wind blowing seven years hence?
Gov. Christie's decision was not only about him making his own political appointment or even changing the Supreme Court's ideology. He knows full well that he will have four chances to name his own people to the seven-member court. We believe that this nomination was meant as a warning to every nontenured judge in the system, telling him or her that they had better take care how they decide cases because under this governor, their ideology will be examined before reappointment. Faced with such a startling and disturbing message, it was important that our normally reticent Chief Justice Stuart Rabner reacted publicly as he did immediately afterwards in a statement expressing disappointment in the governor's decision:
"Citizens who turn to the courts for relief are entitled to have their cases resolved by impartial judges who focus only on the evenhanded pursuit of justice; litigants should never have to worry that a judge may be more concerned about how a decision could affect his or her reappointment."
We as the members of this Board can say even more forcefully than the Chief Justice that the governor's action was wrongheaded and dangerous, and so should lawyers throughout this state. We have opined recently, along with Governor Kean and others, that Gov. Christie should avoid this path to confrontation. Regrettably, the governor acknowledged at his press conference that he did not care what anyone else thought on this subject, and like other issues he has addressed in his short tenure, he is willing to make his point regardless of cost, including his placement of Anne Patterson's career in the middle of this constitutional and ideological struggle.
In light of the potential for irreversible damage to our judicial system, we applaud the leaders of the state Senate for taking the extraordinary step of declaring that they will not act upon the nomination for the remaining 22 months of Justice Wallace's eligibility to serve. We can only hope that the Senate can engage the governor in some meaningful return to past traditions as anticipated by our constitution's framers, or we will have nothing but an ugly future to look forward to for our judiciary.

This editorial was published in the May 7, 2010 issue of the New Jersey Law Journal.  Copyright 2010. ALM Media Properties, LLC. All rights reserved.  Further duplication without permission is prohibited.