Posts Tagged ‘John Roberts’

How the Supreme Court Nomination Process Rewards the Type of People Who Defer to Presidential Authority

Wednesday, May 12th, 2010

David Brooks did a great job today of describing the type of individual our current Supreme Court confirmation process tends to reward (to paraphrase):

A person whose career has dovetailed with the incentives presented by the confirmation system, a system that punishes creativity and rewards caginess, and who therefore we are forced to construct arguments based on speculation because they have been too careful to let their actual positions leak out.

Brooks locates this type of individual — as is his wont (see for eg. bobos) — in a general sociological group:

About a decade ago, one began to notice a profusion of Organization Kids at elite college campuses. These were bright students who had been formed by the meritocratic system placed in front of them. They had great grades, perfect teacher recommendations, broad extracurricular interests, admirable self-confidence and winning personalities.

If they had any flaw, it was that they often had a professional and strategic attitude toward life. They were not intellectual risk-takers. They regarded professors as bosses to be pleased rather than authorities to be challenged. As one admissions director told me at the time, they were prudential rather than poetic.

Brooks sees this as a flaw in his evaluation of Elena Kagan:

Kagan has apparently wanted to be a judge or justice since adolescence (she posed in judicial robes for her high school yearbook). There was a brief period, in her early 20s, when she expressed opinions on legal and political matters. But that seems to have ended pretty quickly…

But I was struck by the similarity of David Brooks’s evaluation of Elena Kagan now and Dahlia Lithwick’s evaluation of John Roberts when he was nominated:

I knew guys like [John Roberts] in college and at law school; we all knew guys like him. These were the guys who were certain, by age 19, that they couldn’t smoke pot, or date trampy girls, or throw up off the top of the school clock tower because it would impair their confirmation chances. They would have done all these things, but for the possibility of being carved out of the history books for it…

My sense that Roberts has been preparing for next month’s confirmation hearings his whole life was shored up by a glance at the new memos released by the Library of Congress yesterday. As early as 1985, Roberts was fretting about how federal government records disclosed to Congress before confirmation hearings could tank a nomination.

Roberts was widely seen to have been very “careful” and “cautious” throughout his life — intellectually and otherwise. Yet David Brooks had a different reaction to Roberts nomination:

Roberts nomination, how do I love thee? Let me count the ways.

Less important than this minor bit of hypocrisy (which Bill Scher for the Huffington Post mines for all it’s worth) — or perhaps partisan blindness — on the part of David Brooks (and haven’t we all been there?) — is the substance of his critique. Brooks never quite connects the dots — but seems on the verge of making a profound point.

There seems to be a connection between the personality type of Kagan and Roberts — the type of cautious, establishment-minded personality rewarded by our current nomination process — and the tendency of this type of person to defer to the highest authority figure in the American psyche, the President of the United States. In Roberts and Alito, we have 2 of Brooks’s Organization Kids who also happen to be 2 of the most pro-presidentialist Supreme Court justices in history. Though Kagan’s views on this aren’t clear — as she has made some comments indicating an expansive view of executive power only in the context of discussing the views of others — we do know that she felt the Bush administration went too far, unlike Roberts and Alito.

Though I would have preferred a justice more wary of executive power, for me personally, this concern is not enough to give me reason to oppose Kagan’s nomination and appointment. I do want to know more about Kagan’s views on this — to see whether and to what degree she conforms to Glenn Greenwald’s fears (which are, as it should go without saying regarding Greenwald, hyperbolic). Lawrence Lessig has pushed back convincingly against Greenwald on this issue — and of course, Greenwald responded by going ad hominem.

Both Greenwald’s and Brook’s critique ignores the structural element to this pick as neither addresses the degree to which our current confirmation process tends to reward cautious people whose public views are somewhat ambiguous but who are close enough to those in the executive branch that the President nominating them trusts them. The type of person who would meet these criteria would not tend to be the strongest supporters of the Court as a check on executive power. Even aside from the generational category of “Organization Kids,” this would tend to place people deferential to presidential authority into the Supreme Court.

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Also interesting: Ezra Klein posits a better analogue than John Roberts to understand the Kagan pick is Barack Obama himself:

When Obama announced Kagan’s nomination, he praised “her temperament, her openness to a broad array of viewpoints; her habit, to borrow a phrase from Justice Stevens, ‘of understanding before disagreeing’; her fair-mindedness and skill as a consensus-builder.” This sentence echoes countless assessments of Obama himself.

Obama is cool. He makes a show of processing the other side’s viewpoint. He’s more interested in the fruits of consensus than the clarification of conflict. In fact, just as Kagan is praised for giving conservative scholars a hearing at Harvard’s Law School, Obama was praised for giving conservative scholars a hearing on the Harvard Law Review. “The things that frustrate people about Obama will frustrate people about Kagan,” says one prominent Democrat who’s worked with both of them.

[Image by the Harvard Law Review licensed under Creative Commons.]

Even Worse Than John Roberts

Monday, January 26th, 2009

At administering the presidential oath that is. (Yet another random webcomic from xkcd.)

In Defense of Indiscretion

Wednesday, December 10th, 2008

Or, In Defense of Fondling Cardboard Cut-Outs

Dahlia Lithwick, writing in Slate about the character of John Roberts as he was being vetted for the Supreme Court in 2006:

I knew guys like [John Roberts] in college and at law school; we all knew guys like him. These were the guys who were certain, by age 19, that they couldn’t smoke pot, or date trampy girls, or throw up off the top of the school clock tower because it would impair their confirmation chances. They would have done all these things, but for the possibility of being carved out of the history books for it.

An acquaintance of mine from college has been in the news recently. No – I’m not talking about this profile in Newsweek (which was reddit-famous), this one from The New York Times, or this piece in Time magazine. I’m talking about the headline on The Drudge Report linking to this piece in the Washington Post. I ignored that piece when it first came up, hoping the story would die. It’s certainly not news in any meaningful sense. But it does turn out to be “news” in the sense that matters most these days: It provides a hook for people to fake righteous outrage over.

Jon Favreau, a speechwriter for Barack Obama now slated to move to the White House as chief speechwriter for Obama, had a picture taken of him at a party. I include the picture to keep matters in perspective – for without it, an observer would probably imagine something quite shocking.

(The Wikipedia entry’s description of the photo, Favreau “performing a suggestive gesture to a cardboard cut-out of Hillary Clinton.” With that description, I would have pictured something else entirely!)

The offending picture was posted on Facebook by a friend of Favreau’s for some two hours before it was taken down. Now it’s in the Washington Post and the New York Times and analysts on CNN are making profound noises about it. According to The New Agenda, a supposedly feminist group, Favreau should be fired. Campbell Brown of CNN, the individual whose brilliant first name inevitably leads her to disappoint viewers expecting profundity (“Free Sarah Palin!”) decided her counterintuitive response would be to attack Senator Clinton’s lack of outrage over the degradation of womankind that this photo represents:

Really, Sen. Clinton? Boy, have you changed your tune. You really think this photo is OK?

Put another woman in that photo, just an average woman who supported you during the campaign. Have it be her image being degraded by a colleague of hers. Would you be OK with that?

Yes – Campbell Brown is outraged over Hillary Clinton’s shrugging-off of an unfortunate photo while the economy is melting down and two wars are raging. Clearly, Hillary’s priorities are out of order – not Brown’s. Walter Cronkite must be ashamed to call himself a newsman these days.

There is a sensibility that infects mainstream coverage of any material that is tawdry and cheap – a kind of Hayes Code for today’s newsroom that makes every sexual scandal or embarrassing photograph into a morality tale. Without that cover, it’s hard to justify the right to show scandalous photographs repeatedly and talk in graphic details about the sex lives of politicians. (Remember the New York Post‘s scolding headline about the Miley Cyrus photograph, the scandalous photograph that they then enlarged on their front page to scold her about?) The goal of these morality tales is to pull readers or viewers in with titillating details while simultaneously and self-righteously denouncing the behavior.

What’s worse though than the faux-outrage and real outrage over such petty scandals is the type of public servant it encourages. We can’t all live as Dahlia Lithwick imagines John Roberts has. To view a scandal with good humor is one thing – to view it with the knowledge that we are all human, are all imperfect, all make mistakes – with the knowledge that if a perfect inquisitor came to judge us by our own standards, each of us would be found wanting. None of us are pure – and often those most obsessed with purity turn out to have their own demons. (See Haggard, Ted.) Our current political and media environment penalizes anyone who has lived and left any evidence to show for it. And we wonder how we’ve gotten in so much trouble.

At the same time, the self-appointed inquisitors have often been found wanting themselves. From preachers to journalists to politicians to news anchors to judges to each one of us – all of us, having lived, have done things we regret. Whether our regrets are dragged into the light of day and made into a media spectacle is largely a matter of happenstance. If you live in the public eye, then having the media pore over the worst moments of your life is a risk you take.

But we don’t really want to limit our politicians and public servants to those who have never done anything to have offended anyone in their lives.

Thankfully, Barack Obama has not taken this approach. If he wanted to avoid scandal and hypocritical tsk-tsk-ing, he would not have named Hillary Clinton Secretary of State with her long history. Lawrence Summers, as necessary as his brilliance may be to saving our economy, would have been eliminated because of controversial remarks he made some years ago. Eric Holder, despite his almost spotless record, would have been eliminated for that one spot – his minor role in the Marc Rich pardon. Joe Biden’s runaway mouth has led him to offend many constituencies.

Barack Obama campaigned saying he would change Washington and politics as usual. It seems his first order of business is to ignore the hypocrites of the media (and media-parasites like The New Agenda). With Hillary Clinton downplaying the incident and Obama having a history of ignoring this type of media scandal, I hope and trust that Jon Favreau’s job is safe.

But that’s not the point. It should never have been called into question over an incident like this. If the media wants to report on some lewd scandal, they can at least do their audience the favor of avoiding the hypocritical moral posturing and just revel in the tawdriness of it. It would at least be honest.

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By the way, The New Agenda managed to insinuate that my college inculcated “less-than-respectful attitudes toward women”:

Ironically, other famous alumni of Jon Favreau’s alma mater, the College of the Holy Cross, are Clarence Thomas and Chris Matthews, also noted for their less-than-respectful attitudes toward women.

Apparently, the writer of this piece for The New Agenda never quite understood the meaning of the word “ironically.” That’s what a second-rate education will get you – a lack of knowledge of basic English vocabulary and a deficient sense of humor.

To complain about The New Agenda’s misuse of the word, “ironically,” you can email:

Or preferably, email each address to make sure someone gets it.

(It’s harder to get in touch with Campbell Brown – but you can comment to CNN here.)

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