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31
Ideas & Trends
Perhaps Not All Affirmative Action Is Created Equal
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By JEFFREY ROSEN
Published: June 11, 2006
Washington

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Jennifer Pitts/The Journal Record, via Associated Press
Diversity The idea of "racial balancing" in schools has split conservatives.

Q & A With Jeffrey Rosen

Jeffrey Rosen will be taking readers’ questions on affirmative action Sunday and Monday: review@nytimes.com

Answers will be posted on Tuesday: nytimes.com/weekinreview
NOW that the Supreme Court has agreed to hear two cases challenging racial balancing in public schools, some conservatives hope the end of affirmative action is near.

After all, they say, why would the Supreme Court suddenly agree to hear cases about racial balancing in Seattle and Louisville when the court — with Sandra Day O'Connor still serving — refused last December to hear a similar case from Massachusetts? It must be, the thinking goes, that the court, with two new and more conservative justices, John G. Roberts Jr. and Samuel A. Alito Jr., wants to overturn affirmative action.

That optimism may be premature, and not because there is a hidden liberal streak on the court. Instead, there is a vigorous debate among prominent Republican judges and legal scholars about whether racial balancing in public schools is an acceptable form of affirmative action. Some conservatives believe that racial balancing plans, while not colorblind, are still constitutional.

The unexpected fissures among conservatives about how colorblind the Constitution should be suggest that certain forms of affirmative action might be more acceptable to conservatives than liberals had feared.

The Seattle and Louisville cases, which the Supreme Court will hear next fall, involve challenges to plans known as "managed choice" or "open choice." In Seattle, parents can apply to send their children to any public high school in the district.

If a school is oversubscribed, students are chosen based on a number of "tie-breakers," including racial targets designed to ensure that each school's racial makeup doesn't differ by more than 15 percent from the racial composition of the Seattle public schools as a whole.

Last October, no one was surprised when the famously liberal United States Court of Appeals for the Ninth Circuit upheld the Seattle plan. It cited a 2003 Supreme Court opinion, by Justice O'Connor, which held that classroom diversity was a compelling governmental interest for law schools and universities.

But it was eye-opening that Judge Alex Kozinski, a conservative libertarian on the Ninth Circuit, wrote an unexpected concurring opinion. "That a student is denied the school of his choice may be disappointing, but it carries no racial stigma and says nothing at all about that individual's aptitude or ability," he wrote.

And Judge Kozinski quoted the opinion of Chief Judge Michael Boudin of the United States Court of Appeals for the First Circuit, another Republican judge, who upheld the use of racial balancing in a Massachusetts school choice plan. Unlike "modern affirmative action," Judge Boudin had written, these plans do not "seek to give one racial group an edge over another."

Some conservative scholars suggest that there may be significant differences between racial balancing for public elementary and high schools and racial preferences for competitive public universities.

"When you're talking about public schools, everybody's got to go somewhere, and it's not as if some schools are necessarily better than others," said Charles Fried, a conservative law professor at Harvard. "At some point, the government has to have some basis for breaking the tie."

Professor Fried said he had not made up his mind on the issue. "I think Roberts and Alito are both men who are open to arguments, and I would trust them to think long and hard about this," he said.

Conservatives have also long emphasized the importance of deferring to local school officials, a reaction in part to judicially imposed busing programs.

In the Seattle and Louisville cases, the plans were designed by local politicians.

"This is not the result of some liberal master plan; it was adopted from the ground up, " said Samuel Issacharoff, a liberal legal scholar at Columbia Law School. Judicial deference is as deeply held a conservative principle as the importance of a colorblind society, and conservative judges and activists are conducting a vigorous internal debate about how these principles should be reconciled.

Last year, for example, the Supreme Court, in another opinion by Justice O'Connor, struck down California's policy of racially segregating new prisoners to prevent gang violence. Justice Clarence Thomas and Justice Antonin Scalia, ordinarily fierce champions of colorblind policies, argued that an exception should be made in this case because of the importance of deferring to the expertise of local prison officials.

Opponents of affirmative action don't buy conservative arguments that racial balancing is acceptable. Parents don't view all public schools as equal, they argue, so racial tie-breakers force some parents to send their children to worse schools farther from home because of their race.

"In some ways, the damage may be greater than in the university context, since this may limit the ability of black families to escape inferior schools by transferring to schools where the authorities deem there to be too many blacks," says Peter H. Schuck of Yale Law School, author of "Diversity in America," a prominent critique of affirmative action.

In the Seattle case, the conservative dissenting judges wrote that the educational benefits of diversity for university students were less obvious for lower-school students. The dissenters quoted David J. Armor, a George Mason professor who has reported finding little connection between racial integration and student achievement.

"Where we have had very substantial long-term desegregation, we did not find the achievement gap changing significantly," Mr. Armor said in an interview. "I did find a modest association for math but not reading in terms of racial composition and achievement, but there's a big state variation."

Professor Armor estimated that "at least dozens or maybe hundreds of school districts still use race in some way" and said he hoped that the Supreme Court would put an end to all race-conscious assignment plans. "We have racially imbalanced neighborhoods and cities based on where people choose to live. What's wrong with racially imbalanced schools?"

IF the court agrees with him, it might require districts to consider "race-neutral alternatives," like a lottery, to decide which students gain admission to popular schools. But given segregated housing patterns, that might mean the end of integration.

Chief Justice Roberts, in his first term, has shown a skill in persuading his colleagues to join unanimous opinions decided on narrow grounds. The race cases may test his leadership abilities more than any he has confronted so far. And the fact that conservatives disagree so vigorously about how to apply the principle of colorblindness in different contexts makes the outcome especially hard to predict.

Jeffrey Rosen's latestbook is "The Most Democratic Branch: How the Courts Serve America."


32
Highest Court in New York Confronts Gay Marriage

By ANEMONA HARTOCOLLIS
Published: June 1, 2006

ALBANY, May 31 — As the issue of gay marriage finally reached New York State's highest court on Wednesday, the six judges who heard the passionate arguments from both sides put forth a fundamental question: Has marriage been defined by history, culture and tradition since the dawn of Western civilization, or is it an evolving social institution that should change with the times?

Kathy Burke, left, and Tonja Alvis, a couple from the Schenectady, N.Y., area who have pushed for same-sex marriage, waited outside court to hear Wednesday's case.

During the two and a half hours of oral argument, the judges on the Court of Appeals grappled with essential questions of social values, asking tough questions without tipping their hands as to their ultimate decision.

They wanted to know whether there were studies showing that children raised by mothers and fathers turned out better than those raised by same-sex couples, and they wanted to know whether opening the door to gay marriage would also open the door to bigamy or polygamy.

They wanted to know whether asking the courts to rewrite New York State's marriage laws was a way of letting the State Legislature escape responsibility for taking a position on a social controversy.

The case before the court was a challenge to New York State's marriage laws, filed by 44 same-sex couples. Their lawyers argued that marriage was a fundamental right, and compared laws assuming marriage to be a union of a man and a woman to the laws prohibiting interracial marriage, which the Supreme Court struck down in 1967.

Lawyers defending the marriage laws argued that even if the institution had evolved, it was the job of the Legislature — not the courts — to change them.

The plaintiffs' lawyers argued that the court merely had to change the gender-based language of the current law, which refers to "husband" and "wife," to something neutral, like "spouse." If the court agreed to legalize same-sex marriages, New York would become only the second state, after Massachusetts, to do so.

The judges' questions pointed to the precedent-setting nature of the debate. "Isn't this the only one where you have literally the whole history of Western civilization against you?" asked Judge Robert S. Smith of the state's domestic relations law. "That does go back right to the dawn of civilization."

After first citing traditional views of marriage, Judge Smith then asked whether the time was ripe for the courts to approve same-sex marriage. Judge Smith also wondered whether the issue of same-sex marriage deserved special attention because of the history of discrimination against gay people.

"Aren't homosexuals about the classic example of people who have been abused and discriminated against," and who therefore need the protection of the courts? he asked.

Peter H. Schiff, senior counsel to the state attorney general, said there was no urgent need to change the law, and pointed out that same-sex couples accounted for only 1.3 percent of all households in New York State, a "very small" number.

"I don't think anybody 100 years ago was thinking about this issue," Mr. Schiff said. "It wasn't on the radar screen."

The main lawsuit in this case was filed by a gay and lesbian rights group, Lambda Legal Defense and Education Fund, on behalf of five same-sex New York City couples against the city clerk, Victor L. Robles, who issues marriage licenses.

In New York, the legal dispute over same-sex marriage goes back two years. In February 2005, a State Supreme Court judge in Manhattan found that state marriage law violated the State Constitution. That decision was overturned last December by the Appellate Division of State Supreme Court, which said it was up to the Legislature to change the law.

In yesterday's hearing, the New York City plaintiffs were joined by three other groups of plaintiffs from across the state. New York City's lawyer, Leonard Koerner, said yesterday that even in its own case law, the Court of Appeals had affirmed the reason for marriage as "the begetting of offspring," not, as the plaintiffs argued, as the sanctioning of a loving and committed union between two people.

Mayor Michael R. Bloomberg has said that New York City is appealing the case to clarify the issue, and that he supports legislative change.

Roberta A. Kaplan, arguing for same-sex marriage on behalf of 12 of the couples across the state, said there were 46,000 families with children headed by same-sex couples in New York State, and that they could not wait until their children were grown for the law to change.

The seventh judge on the Court of Appeals, Albert M. Rosenblatt, removed himself from the case. His daughter, a lawyer, has argued on behalf of advocates for same-sex marriage in California. Judge Rosenblatt has been perceived as a swing vote in many cases. A spokesman for the court said that in the event of a 3-3 tie, another judge could be brought in. He said a tie had occurred only once in the last 20 years or so.

Judge Victoria A. Graffeo asked whether, under the plaintiffs' argument, the Legislature should afford more rights and benefits to other types of family arrangements, such as two sisters raising children. "Was the Legislature denying them due process or equal protection?" she asked.

Judge George Bundy Smith asked what the consequences of legalizing gay marriage had been in Massachusetts.

"Basically nothing," Ms. Kaplan replied. "There is not a breakdown of civil society in Massachusetts and there certainly isn't a breakdown of marriage."

Judge Bundy Smith also asked why gay couples were not satisfied with civil unions — a remedy that the plaintiffs argued would make them second-class citizens.

Chief Judge Judith S. Kaye said the court would have to decide the constitutional questions, "whether we do it frontally or whether we do it in some more subversive way," like changing language about gender.

To which Terence Kindlon, a lawyer for same-sex couples in Albany, replied, "Subversive is one of the words I've liked all my life, your honor."

------------------------------------------------------------------


I'm trying to find the briefs filed in this case; it'd be interesting to parse the legal reasoning on both sides of this debate.  But until I find that, dare anyone put forth their best legal argument on either side of this issue?

33
Who and why come?

34
High Court Clerks: Still White, Still Male

Tony Mauro
Legal Times
May 25, 2006


The intense competition for Supreme Court clerkships has been compared more than once to a market that responds to economic forces.

If the analogy works, then it has been a very bullish year for clerkship futures.

Think of it: A former high court clerk, John Roberts Jr., has succeeded another former clerk, William Rehnquist, as chief justice. Two excellent books have just been published on the history and power of clerks, also adding luster to the job.

The resignation May 10 of Judge J. Michael Luttig from the 4th U.S. Circuit Court of Appeals abruptly shut off a major pipeline of high court clerks, intensifying competition among other judges. Luttig has sent 43 of his 45 law clerks to the Supreme Court in the past 15 years.

Cap that with reports of law firm hiring bonuses of $200,000 for former clerks, and the job's luster seems brighter than ever.

But as high court clerkships drift ever upward into the stratosphere of earthly rewards to which young lawyers can aspire, one stark reality persists: Recipients of this prize are overwhelmingly white, and mostly male.

Eight years after attention was first called to the dearth of minorities among high court clerks, it appears that only three of the 37 clerks serving at the Court this term are nonwhite. No Hispanics or Native Americans seem to be among the ranks of law clerks, and not a single African-American male.

Viewed another way, it appears that all of the clerks are white in the chambers of seven of the nine justices. Only Justices Clarence Thomas and Stephen Breyer have hired minorities this term.

Thomas' chambers are the most diverse, with Chantel Febus, an African-American woman, and James Ho, an Asian-American male (and former Senate Judiciary Committee counsel), as clerks. The only other minority clerk appears to be Danielle Gray, an African-American woman working for Breyer.

Slightly fewer women are clerking this term, as well: 13 of the 37, compared with 15 of 35 last term. In the chambers of Justices Antonin Scalia and Anthony Kennedy, all four clerks are white males.

One caveat: As in the past, the Court itself does not provide any statistics about clerk demographics, so the tally is made through personal observation and other kinds of research -- including the always-helpful Underneath Their Robes blog, which reports many fun facts about the clerks but little about their racial or ethnic backgrounds.

But from a range of sources, it appears that the current number of minorities is substantially lower than in recent years. The three minorities this term compare with five last term, eight the previous term and a record nine in 2002.

What now seems to be a high-water mark in 2002 came four years after news of the historically low numbers sparked protests at the Court and angry inquiries from Congress. At hearings on the Court's budget, justices would be grilled about the clerk situation, but in the past two years -- when scrutiny of the Court budget was shifted to a different House subcommittee -- no one has asked about the number of minority clerks.

That is fairly understandable, however, because justices and others have given repeated assurances that the entire clerkship supply chain -- top law schools and feeder judges, among others -- has been sensitized to the issue. But if the proof is in the pudding, the pudding, this term at least, is vanilla.

Anecdotally, it appears the usual vagaries of young lawyers' plans factored into the low numbers this term. Larry Thompson Jr., an African-American and son of the former deputy attorney general, was scheduled to clerk for Thomas this term, but Thompson postponed his service, as he had the year before. Currently, Thompson, a former Luttig clerk, is working as an associate at Weil, Gotshal & Manges in Houston and appears to be off the clerkship track for the long term. He declined to comment.

This is also the first term in which clerks affected by the new federal clerkship hiring plan have reached the Court. Under the plan, adopted in 2002, appellate judges agreed they would no longer hire clerks after their first year of law school but would wait until the start of their third year. Some judges speculated that by giving law students another year to blossom, more minority candidates could emerge. If so, it did not result in more minority clerks at the Court.

Todd Peppers, author of the new book "Courtiers of the Marble Palace," which takes a historical look at high court clerks, says none of the possible explanations for low numbers of minorities is satisfying. When, a few years ago, members of Congress asked why justices could not cast their nets more widely to find more minority candidates, Peppers recalls, the justices often fell back on the "questionable" excuse that they could not afford to take chances that even one of their clerks might not be a top performer.

That excuse is flawed, says Peppers, not only because of its unsavory assumption that minority candidates are risky but also because of history. Back when justices had fewer than four clerks each, he says, some took chances in their hiring, "and it did not cripple the ship."

Alabamian Justice Hugo Black favored clerks from Southern law schools, and he once announced to a startled candidate that he liked to hire young students he could help. The candidate was a stutterer, and that appealed to Black. Other justices, such as Lewis Powell Jr. and Felix Frankfurter, also sought out a diversity of views among clerks, Peppers says, resulting in, at least in Frankfurter's chambers, screaming matches.

Peppers speculates that as the job of law clerk has become more intense and formalized, justices may place a higher premium on technical efficiency and less importance on diversity. Also, the cert pool, in which clerks share the chore of summarizing incoming petitions for eight of the nine justices, has made each individual clerk that much more important. And that may leave justices thinking that they would harm the work of the entire Court -- not just their own chambers -- if they hired clerks outside the mold. As a result, they tap the usual sources -- top students at Harvard, Yale and a handful of other schools -- and end up with very few minorities.

No matter what the reason, Peppers says, the dearth of minorities "opens a real issue of social justice." Given the value of a clerkship in the marketplace, he notes, it is regrettable that "a certain segment of society is just not getting this golden ticket."

The other new clerk book, "Sorcerers' Apprentices" by Artemus Ward and David Weiden, also concludes on this subject, "The relatively unchanged face of the century-old Supreme Court law clerk does not bode well for an institution that has been criticized for wielding too much power."

35
Cheney's Guy
He's barely known outside Washington's corridors of power, but David Addington is the most powerful man you've never heard of. Here's why:

By Chitra Ragavan

5/29/06

One week after the September 11 terrorist attacks, President George W. Bush briefly turned his gaze away from the unfolding crisis to an important but far less pressing moment in the nation's history. The president signed legislation creating a commission to celebrate the 50th anniversary of Brown v. Board of Education, the landmark Supreme Court ruling desegregating public schools. In a brief statement, Bush invited the various educational groups listed in the legislation to suggest the names of potential commissioners and also urged members of Congress to weigh in, as a "matter of comity." But in a little-noted aside, Bush said that any such suggestions would be just that--because under the appointments clause of the Constitution, it was his job, and his alone, to make those kinds of decisions.

This was what is known, in the cloistered world of constitutional lawyers and scholars, as a "signing statement." Such statements, in the years before President Bush and his aides moved into the White House, were rare. A signing statement is a legal memorandum in which the president and his lawyers take legislation sent over by Congress and put their stamp on it by saying what they believe the measure does and doesn't allow. Consumed by the 9/11 attacks, Americans for the most part didn't realize that the signing statement accompanying the announcement of the Brown v. Board commission would signal one of the most controversial hallmarks of the Bush presidency: a historic shift in the balance of power away from the legislative branch of government to the executive. The shift began soon after Bush took office and reached its apogee after 9/11, with Bush's authorization of military tribunals for terrorism suspects, secret detentions and aggressive interrogations of "unlawful enemy combatants," and warrantless electronic surveillance of terrorism suspects on U.S. soil, including American citizens.

The "invisible hand." Much of the criticism that has been directed at these measures has focused on Vice President male private part Cheney. In fact, however, it is a largely anonymous government lawyer, who now serves as Cheney's chief of staff, who has served as the ramrod driving the Bush administration's most secretive and controversial counterterrorism measures through the bureaucracy. David Addington was a key advocate of the Brown v. Board and more than 750 other signing statements the administration has issued since taking office--a record that far outstrips that of any other president.

The signing statements are just one tool that Addington and a small cadre of ultraconservative lawyers at the heart of the Bush administration are employing to prosecute the war on terrorism. Little known outside the West Wing and the inner sanctums of the CIA, the Pentagon, and the State Department, Addington is a genial colleague who also possesses an explosive temper that he does not hesitate to direct at those who oppose him. Addington, says an admiring former White House official, is "the most powerful person no one has never heard of."

Name one significant action taken by the Bush White House after 9/11, and chances are better than even that Addington had a role in it. So ubiquitous is he that one Justice Department lawyer calls Addington "Adam Smith's invisible hand" in national security matters. The White House assertion--later proved false--that Saddam Hussein tried to buy nuclear precursors from Niger to advance a banned weapons program? Addington helped vet that. The effort to discredit a former ambassador who publicly dismissed the Niger claim as baseless, by disclosing the name of his wife, a covert CIA officer? Addington was right in the middle of that, too, though he has not been accused of wrongdoing.

In national security circles, Addington is viewed as such a force of nature that one former government lawyer nicknamed him "Keyser Soze," after the ruthless crime boss in the thriller The Usual Suspects. "He seems to have his hand in everything," says a former Justice Department official, "and he has these incredible powers, energy, reserves in an obsessive, zealot's kind of way." Addington declined repeated requests to be interviewed for this story.

Addington's admirers say he is being demonized unfairly. "This is a new war, an unconventional war," says an informal Cheney adviser, Mary Matalin. "When you are making new policy to meet new challenges, you are going to get vicious opposition."

Few would have predicted that Addington, 49, would become such a lightning rod. Tall, bearded, and imposing, Addington has the look, says former White House associate counsel Bradford Berenson, of "a rumpled bureaucrat crossed with a CIA spook." The son of a career military official, Addington was born and raised in the nation's capital and was in the eighth or ninth grade when he read Catherine Drinker Bowen's Miracle at Philadelphia: The Story of the Constitutional Convention, May to September 1787.

"The next battlefield." Thus began a lifelong love affair with the U.S. Constitution. Even today, Addington carries a copy in his pocket and doesn't hesitate to wield it to back up his arguments. "The joke around here," says a senior congressional staffer with a chuckle, "is that Addington looks at the Constitution and sees only Article II, the power of the presidency." Berenson, Bush's former associate counsel, says that's because Addington is so intensely security minded: "He's absolutely convinced of the threat we face. And he believes that the executive branch is the only part of the government capable of securing the public against external threats." Addington, Berenson adds, is a national security conservative with a twist. "He's not the intellectual legal conservative of the Federalist Society type," Berenson says, referring to the group of conservative lawyers esteemed by the likes of Supreme Court Justice Antonin Scalia, "for whom judicial restraint is the holy grail. He's much more of a Cold War conservative who has moved on to the next battlefield."

Addington began his government career 25 years ago, after graduating summa cum laude from the Georgetown University School of Foreign Service and with honors from the Duke University Law School. He started out as an assistant general counsel at the CIA and soon moved to Capitol Hill and served as the minority's counsel and chief counsel on the House intelligence and foreign affairs committees. There, he began his long association with Cheney, then a Wyoming congressman and member of the intelligence panel. Addington and Cheney--who served as President Gerald Ford's chief of staff--shared the same grim worldview: Watergate, Vietnam, and later, the Iran-contra scandal during President Reagan's second term had all dangerously eroded the powers of the presidency. "Addington believes that through sloppy lawyering as much as through politics," says former National Security Council deputy legal adviser Bryan Cunningham, "the executive branch has acquiesced to encroachment of its constitutional authority by Congress."

When Cheney became ranking Republican on the House select committee investigating the Iran-contra scandal, Addington helped write the strongly worded minority report that said the law barring aid to the Nicaraguan contras was unconstitutional because it improperly impinged on the president's power. The argument would become the cornerstone of the Bush administration's post-9/11 policies.

A second critical article of faith for Addington has to do with the presidential chain of command. "He believes there should be the shortest possible distance from the president to his cabinet secretaries, and he does not like staffers or coordinating bodies in that chain of command," says Cunningham, who worked closely with Addington and also was a Clinton administration lawyer.

36
Black Law Student Discussion Board / Best Firms for Minorities?
« on: May 20, 2006, 11:12:44 PM »
I know a bunch of the rankings people have this type of list (AmLaw, Vault) but I'm wondering from within our group -- what exactly makes a firm "minority-friendly"?  To what degree is that appealing, or taken into consideration (for those of you with firm jobs this summer, or planning on one in the near future)?

I'm thinking I might do a firm job 1L if I'm sure I can get a nice DOJ/AUSA position for my 2L.  Any idea of who is generally known to be the best firm for minorities?

37
Black Law Student Discussion Board / USAO v. DOJ
« on: May 20, 2006, 09:36:11 PM »
Hey, just a couple of questions for the current students (or otherwise informed) as I procrastinate (damned thesis). 

What does an Assistant US Attorney do?

What is an summer USAO position like?  How hard is it to get it in a hot district like SDNY/EDNY?  In another district like the Western District of North Carolina (Charlotte, hometown)?

How difficult/easy is it to land a job as an AUSA after graduation?

How does AUSA litigation-type work compare to DOJ litigation-type work (and I recognize that the DOJ category is quite broad)?

38
Black Law Student Discussion Board / Flag Burning Amendment
« on: May 20, 2006, 09:22:51 PM »
What do you all think about a flag burning amendment?  Here's an insightful op-ed.

-----

Senators, Congressmen, Please Heed the Call...

Post Date: May 19, 2006
Richard Parker

This Spring, the American flag was in the news again. Several high schools forbade students to display a flag – or even to wear red-white-and-blue clothing. Their reason was stark. The flag, they said, is controversial. It represents, they claimed, one “point of view” with which some disagree, basically no different from a Mexican flag – or, for that matter, a swastika.

This line of argument shocked many Americans. It is, however, the very same line of argument that lay behind the Supreme Court’s conclusion that, under the First Amendment, the flag may not be singled out for legal protection -- even when someone burns it or rips it up or defecates on it.

Soon, the flag amendment – the proposed constitutional amendment that would restore to Congress its long-standing authority to protect the American flag from physical desecration – will arrive at a moment of truth.

Once again, huge bipartisan majorities in the House and in the Senate want to send it to the states for debate and ratification, as provided for in the Constitution. This time, just one or two Senators stand in the way.

Now, the fundamental issue is coming into a new and sharper focus.

In the past, the debate was, first of all, about whether the flag deserves protection. That no longer is the crucial issue. For the pivotal Senators agree that it does, indeed, deserve protection.

In the past, the debate was over whether protecting the flag from physical desecration is consistent with respect for the freedom of speech. The pivotal Senators understand that there is no basic inconsistency, since singling out the flag for protection does not involve taking sides in favor of a controversial “point of view” but, instead, affirms a value that transcends – and, in fact, undergirds – controversy among competing points of view.

In the past, the debate was about who have the last word in interpreting the Constitution: Five people on the Supreme Court? Or “We the people”? That, too, is no longer the issue. The pivotal Senators recognize that the people have the right, under Article V of the Constitution, to amend the Constitution – especially, as in this case, to restore to the Constitution its traditional meaning.

What they say, however, is that the flag can be protected without an amendment -- simply by passing yet another statute. Recently, debate focused on the merits of the statute they propose. But that, now, is no longer the issue. For their statute has been revealed to be empty. It is, at best, a fantasy. Overwhelming majorities in the Senate have rejected it -- repeatedly.

They have done so for two reasons. On one hand, most Senators see that the terms of the statute, in fact, provide no real protection to the flag. On the other hand, they (along with all credible experts) understand that, if enacted, the statute would be struck down, like other such statutes, by at least five of the members of the Supreme Court.

So, what is the fundamental issue now?

It is: Why are the one or two pivotal Senators hiding behind this statutory fantasy in defiance of public opinion? And what, in our constitutional democracy, can done about that?

After talking with members of Congress over ten years – in public hearings and in private meetings – I believe that two basic convictions underlie the defiant reliance by these Senators on so transparent a fantasy. It is appropriate, after all this time, to be blunt in describing those convictions and in responding to them.

(1)The first conviction has to do with the role and status of the Senate itself – imagined by some Senators, perhaps, as a sort of British House of Lords.

The Senate is sometimes said to be the “upper” house of Congress. It differs, to be sure, from the House of Representatives in certain ways. Its special responsibilities, its smaller size and its longer terms of office suggest to some that it is supposed to be the more mature, “deliberative” legislative body. And the vast inequality of population from state to state – each of them with two Senators – suggests to some that, as a whole, the Senate is “above” the democratic norm of one-person-one-vote. For some, a conviction may follow that the Senate is supposed to be a less “representative” body, even one that is “above” representation of the views of ordinary people.

What may follow, next, for certain Senators is a conviction that they have a duty, on principle, to resist popular opinion. Indeed, they may suppose they have a special duty when it comes to constitutional matters. While recognizing the right of the people to amend the Constitution, they may imagine themselves as a bulwark against the exercise by the people of that right. Indeed, a few years ago, one retiring Senator stated openly – and a veteran Senator said to me in private -- that among his proudest moments in office were occasions on which he helped to stop any popular amendment of the Constitution.

From that, it is but a small step to justify opposition to any popular amendment with bogus but plausible-sounding arguments – that is, arguments that may sound plausible to ordinary people – such as the illusion of a supposed statutory “alternative” to the flag amendment.

However well meant, this idea of Senators as Bulwarks of the constitutional status quo is, in truth, a subversion of the Constitution. It subverts the very foundation of the Constitution – which is popular sovereignty. Indeed, it subverts the Constitution’s conception of Senate itself.

Among the founding fathers, there were a few who thought Senators should hold office for life, portraying them as a sort of virtuous “aristocracy.” But that view had almost no support. In fact, it was condemned. That is why, in the original Constitution, Senators were subjected to political responsibility – periodically chosen for (and removed from) office by elected state legislatures.

Then in 1913, the Seventeenth Amendment to the Constitution sealed the matter. It provided for the direct popular election of Senators. Its purpose was to ensure that the Senate be not only responsible -- but also responsive -- to the people.

To imagine, in the twenty-first century, that the United States Senate should behave like the unelected, hereditary British House of Lords of the nineteenth century is especially odd. In Britain, after all, the House of Lords was brought to heel more than ninety years ago. And, today, it is being systematically dismantled -- precisely because of its occasional resistance to popular will. Thus has the “upper” house in Britain come down to earth.

Can our own “upper” house presume, for long, to resist this democratic law of gravity? No doubt, the vast majority of our Senators, nowadays, have no desire to do so. But a few – a pivotal few – may still cling to the aristocratic dream.

(2) The second conviction that underlies the defiance of popular will by these pivotal Senators -- hiding behind an illusory statutory “alternative” to the flag amendment -- is, I believe, rather different from the first. It accepts the reality of the electoral responsibility of the Senate to the people. But it calculates that, in this case, Senators need not heed the discipline of electoral responsibility.

One Senator indicated to me that, although the flag amendment is supported by most Americans, his own political -- and financial -- “base” is against it. And, he said, for the majority of his constituents, it is not a “voting issue.” What he meant is that most people, as he sees it, simply will not vote against a Senator who defies their view on this issue. Hence, he concludes, he can go on defying public opinion -- claiming the “cover” of a statutory “alternative” -- without paying any price at the polls.

The accuracy of this perception, however, is now in doubt. In several recent senatorial elections – in Virginia, in South Carolina and in South Dakota, for example – the flag amendment was put in issue. And, in those elections, the candidate supporting the amendment won.

Thus there is but one way, in the end, to correct this mistaken Supreme Court decision and to restore the traditional meaning of the Constitution. It is to vindicate the principle of popular sovereignty by acting on that principle. That is to say, by acting on it at the ballot box -- making the flag amendment a “voting issue” in state after state. And, for that to happen, candidates for the Senate must put it in issue. They have every incentive to do so.

After seventeen years, the American people have sustained their support for the flag amendment. No other constitutional amendment proposed in the last quarter-century has enjoyed such active and enduring commitment. Just as rivers run to the sea, the force of such sustained public opinion will, eventually, prevail.

Faith in the potential of American democracy, which all of us share, entails at least that measure of faith.

39
So, any predictions?  Who's rooting for who?  Y'all know my allegiance.

LET'S GO METS!


40
Okay, time to buy a laptop.  Money isn't much of an issue, but I'm not trying to spend more than $2000.  I know nothing about laptops.  Don't need much save for durability.  I had an iBook throughout college and it died on me 3x.  So I'm very wary of the Apple laptop's ability to deal with the daily wear and tear.  At the same time, the new Macbook has everything the Thinkpad has and for much cheaper!

So, Apple and Thinkpad fans, convince me.  Enlighten me.  And above call, please help me!

Question for Thinkpad fans -- does the x60s come with an optical drive built in or do I have to get a dock?  How much will this cost?

Question for Apple fans -- Am I going to have all types of software compatibility/hardware durability problems as I did with my iBook?

Thanks.

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