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15 May 2010


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Frankly, Pat, I agree... and I say that as a citizen with many of the characteristics, experiences, and opinions that you feel are over-represented on the US Supreme Court (not to mention in the other lower courts, in the US Congress, and in the institutions like the mass media that connect everything together). I am relatively sanguine that a broader reach to our governing bodies would be a good thing because it is what happens anyway every two or four years... and I am quite confident that the result would be surprising to the blowhard TV pundits on both sides of the "divide" and the loudmouthed Tea Party fanatics who do not, in my opinion, represent ordinary people at all...


a followup to my previous post, if I may:

While I should admit that I would not be displeased if Elena Kagan is confirmed because I probably will find her positions to be consistent with my own views, I am disturbed by the fact that she seems to be the equivalent of John Roberts; i.e., individuals who have essentially been groomed for the job by their ideological peers and who therefore has both a thin track record of success (or failure) by which to "judge" them...

... which got me thinking about these same issues in other bureaucratic settings, whether defense/military, foreign policy, or even the domestic sectors such as health care and environmental issues (not to mention the private sector such as with modern journalism...).

You may disagree with this analysis, Pat and it's a bit off your topic, but I felt like adding it.


What this country needs is some peoples' courts to judge the owners of this country and their lackeys, the politicians and judges they have appointed. The control of government and the economy by an ever shrinking minority of the population always leads to unrest.

Margaret Steinfels

But wait, just remember who is over represented in the U.S. Senate!

Sidney O. Smith III

One last word of support for Judge Thomas, based upon the NYT article and, more importantly, “Guamguy’s” endorsement.

The 9th Circuit, collectively, is a very divided bench. So in many ways, the 9th Circuit is a representative microcosm of the fractures and fault lines underlying the American body politic, if not American pathos.

This trend towards fragmentation and social integration is only going to accelerate, in my opinion.

With that assumption in mind, it is clearly evident that one of the rare talents of Judge Thomas is that he can bring justice about in such a way that all sides accept the decision. When I write “bring about justice”, I mean, in street terms, that he will not sell out. Here is the paramount quote from the NYT that makes the point as well as corroborates “Guamguy’s” insights:

“The Ninth Circuit is an ideologically divided court, with strong factions of liberals and conservatives, and Judge Thomas is respected by both sides, said the court’s chief judge, Alex Kozinski. “People really like him, really trust him,” he said.

Judge Kozinski questioned whether persuasion actually has much of a role in the strong-willed, life-tenured federal judiciary — “It really happens fairly seldom,” he said — but added that in the cases where it does play a part, “I think that Thomas is among the best.”

His work habits are legendary among his clerks, as is his attention to detail. Jennifer Chacon, a former clerk, recalled handing him her first bench memorandum with a detailed review of relevant case law. “A very beautiful bench memo,” she recalled.”
(end of quote)

Those three paragraphs say much. I am astounded they are part of an article in the New York Times. Life does trick expectations.

But whoever replaces Justice Steven’s on the USSC will play a vitally important role, as Justice Steven was often the swing vote in cases that tend to polarize Americans.

In my opinion, Judge Thomas has what it takes. And it is worth remembering that the judiciary, at least in theory, is our last line of defense to prevent the rise of an imperial and fascist state.

All that said, I end with one great caveat that is a potential deal breaker. I do not know his standing on the rise of the imperial presidency or other post 9-11 rulings on Gitmo, habeas etc..

Unlike Kagan, I believe that part of the nomination process is to determine one’s judicial positions. And my gut tells me that Judge Thomas, unlike Kagan, would not hide behind the maneuverings of political strategists, but answer the bell to tough questions that cross examine his views.

And, btw, I couldn’t help but notice that the latest article in the NYT supporting Kagan is in the section titled “Fashion and Style”. I doubt Judge Thomas has had much written about him among those who put a journalistic priority upon “fashion and style” as criteria for a USSC justice.

“Fashion and Style”? You have to be kidding me. In this instance, the content of the NYT is not tricking expectations but par for the course.

Patrick Lang


No. No. The Union is a union of the states. Remember ratification by state conventions? Fortunately the wisdom of the framers insures that the "consolidation" that Jefferson feared will never occur. Without the Great Compromise over the issue of representation in the senate there would have been no Union. I would like to see repeal of the 17th Amendment. pl

Patrick Lang


I should be more specific. Too many Justices from Pennsylvania, New Jersey and New England.

This brings to mind the old joke about New England. "If the US had been setled from west to east New E ngland would still be unpopulated except by the Indians." pl


As someone well into his 8th decade, I think the justices should be made to retire before they reach the current age of Senator McCain.

Clifford Kiracofe

The traditional cultures of the regions are different and, indeed, the cultures of the states (and even regions within the states) vary considerably.

The glue which binds us is the Constitution. The best introduction to the Constitution is found in James Madison's Notes. Here one gets a first hand accout and insight of the "Father of the Constitution":

James Madison (Intro by Adrienne Koch) Notes on the Debates in the Federal Convention of 1787 Reported by James Madison (Athens, Ohio: University of Ohio Press, 1966) is an excellent edition.

With respect to Kagan's credentials, I do not see any for this job.What ARE they??? As far as I have seen she has never sat on a bench, never even BEEN a judge.

She was dean of a law school, well ok but so what? It's nice that the President went to Harvard Law and has this school tie with Kagan. Fine for sentimentality but what about for QUALIFICATIONS for a Supreme Court Justice???

We still have no idea what her course of study was at Princeton. No idea about her Oxford course of study and Masters Thesis. Has she written any profound and well regarded books on the law? On Constitutional law?

As for the New England types, well they are today subjects for museums like Sturbridge Village and so on. The "WASP ascendancy" is long since dead and buried and replaced by the influence and power of the pro-Israel crowd.

About 40 some years ago, when I lived in Boston, I was a member of a very small "ancient and honorable" lunch club. We would meet at the Harvard Club and talk about everything from WWII to politics to whatever came up. Among the group were Henry Cabot Lodge, Jr. and Leverett Saltonstall who were infrequent albeit honored members. One of the members was kind enough to obtain reading privileges for me at the old Boston Athenaeum. Another member was an OSS veteran stationed at 83 Baker Street, London. He was deeply involved in the sabotage action behind the lines prior to D-Day and in other significant operations. Another member had been involved with the liberation of Dachau and etc.

But 40 years ago was another day and age. The days of the New England WASP ascendancy had passed although ghosts were then about...in the mist procession.


A few bits of precision are in order:

"But wait, just remember who is over represented in the U.S. Senate!"

... and I think, Pat, that Margaret was referring to men, not the states that are not on either coast (though I could be wrong...).

"She was dean of a law school, well ok but so what? It's nice that the President went to Harvard Law and has this school tie with Kagan. Fine for sentimentality but what about for QUALIFICATIONS for a Supreme Court Justice"

... but the connection between the President and the Solicitor General was at the University of Chicago where they both taught in the 90's.

One last thought, if I may: while I sympathize with the critique that there should be more balance on the highest court in the land both on the basis of gender (because women do, after all, represent ~50% of the citizenry) and on the basis of regional variations in culture and experience (though more because the filter of the primary "vetting" establishments are too narrow and exclusive if still an ideological duopoly), I am left wondering about the question unasked here about the theological grounding of the current court if Ms. Kagan is confirmed: six Catholics and three Jews is hardly representative of the country, n'est pas? (and for what it's worth, my French-born spouse with a strong secular side was first to point out this incongruence...).


Calhoun may have been right for the wrong reason, the immediate one at least, but this post sums up the fair point he made.


The constitution also states that the president gets to nominate pretty much anyone he (or she) darn well pleases ...Senate has the power of advise and consent.

I do not recall reading anything in the Article three re. geographic diversity...

From a pragmatic point of view, I think you make a reasonable point, but I still disagree. I think it is the socialization of elite institutions(harvard law, yale law) that just happen to be located in the northeast that is the real culprit.

The assumptions in your comment (please correct my mistaken interpretations if wrong) seem to me to be:

1) descriptive representation is more important than substantive representation
2) some degree of cultural sameness defined by geography is a requirement for representation to be legitimate
3) the 'compact theory' of government is the correct way to understand our government.

Patrick Lang


We are not a "people." We are a country. New Yorkers are more like the English than they are like Arizonans.

Margaret Steinfels

I was generally referring to the over-representation of the populations of Wyoming, Montana, Idaho, and probably Alaska...What do we call them? Cowboys?

Patrick Lang


Margaret has now clarified her statement. pl


Thanks for the clarification and sorry for my mistaken presumption...

... but I am intrigued, Pat, by your insistence that the cultural variation between the various states is as concrete and consequential today as it certainly was in earlier centuries. I don't know the numbers but will try to find some; however, my basic question is reflected by Clifford Kiracofe's description of the changes that my home state of Massachusetts has experienced during my lifetime... and the corresponding changes that states like Arizona (where my sister now lives) or your home state of Virginia have experienced since 1945 (just to choose an arbitrary, if reasonable, reference point).

Now please don't get me wrong: I would agree that people who resettle in states and regions other than the one where they were raised are affected by the cultural differences to which they are exposed. And I would certainly agree that there is significant variation among the states (or more precisely, in my opinion, between the difference regions of a country as large as ours).

I would simply suggest that this can be as true for Kagan after a decade or so in Chicago as it almost certainly is for the President with his wildly eclectic cultural experiences. This conjecture collapses, if only a bit, if you are suggesting that there are specific institutions that have been imbued with a special role as the training ground for the ultimate interpreters of the law as written and that these institutions have too narrow a perspective to reflect the sentiments of the entire country. On this I agree in the sense that the formative experience of Justices Roberts (IN) and Scalia (NYC) could not be more different and yet they both went through the filter that is Harvard Law...

Do we need an equivalent of West Point for those who would sit on the federal bench?

Patrick Lang


Your underlying belief in the homogenization of the country speaks volumes for the northeastern belief that you all ARE the country and that you therefore have primacy of place.. Numbers will tell you nothing. Get out there and listen and watch.

I travel around a lot and am a pretty good observer of people. It is true that there have been changes in regional cultures, but those changes have not homogenized the country. They have merely made the various cultures different than they were in 1945 (your date).

It is profoundly true that immigrants to a region both change the culture and are changed by it. In the Washington metropolitan area several trends are evident. One is the self selection that takes place among new arrivals in the area. People who are more liberal, more self consciously Northern tend to live in DC or in Maryland. Those who are more conservative and less uneasy with the idea of the South live in Virginia. Some people don't grasp the difference when they first arrive and later sell houses and move across the river in search of what they think of as a more comfortable environment. African Americans are leaving northern Virginia, either moving father south into deep commuter country or into Maryland. White people are moving from suburbia into the continuing growth of new or newly "gentrified" communities close to the Potomac. Typical of these are the Del Ray neighborhood in Alexandria and what will be a new town (7.5 million square feet of floor space, 4.2 million residential) on the grounds of what was once the RF&P classification yard in Alexandria. The result tends to be that northern Virginia is steadily getting whiter and more conservative. Central Americans have tended to huddle together in self imposed ghettos in Arlington and north Alexandria, but that, too, is changing as these people begin to disperse themselves deeper in the hinterland. pl



I grew up in the west - Colorado specifically - and have lived and/or traveled in most parts of the US. There is a common kind of national "popular" culture mainly based on consumerism, but that is just on the surface. Underneath that veneer are very real and substantive regional differences.

Of course, there is also a significant urban/rural divide, which is particularly evident in western "flyover" states. This divide is growing, IMO, in western states because the urban areas are rapidly growing thanks to people fleeing California and other parts of the country. For those of us who are culturally "western" and who've seen the changes over the years, the cultural changes and clashes from these population movements are obvious.



I second your motion for more diversity on the court, including the geographical variety. I also am greatly concerned by the over-reliance on a few private law schools, as I would suggest that an intellectual diversity is essential in any form of decision-making, and especially for decisions as important and long-lasting as those made by the SCOTUS.

Intellectual diversity among students arises from their various backgrounds, and so regional culture plays an important role here. But another very important component of a student's training is provided by the mentorship of the faculty, and this is where I am most concerned by the trend towards appointing justices educated solely at Harvard and Yale.

This nation has plenty of fine law schools, including many of the public variety. The institutional culture of these schools varies widely, and that diversity of opinion is an asset in understanding the practical effect of the laws of this nation.

And while geographical, ethnic, and gender diversity are important, intellectual diversity is arguably the most important factor in good decision-making. So how about seeing some appointments from Ann Arbor or Austin or Davis for a change?

The Twisted Genius

I, too, can vouch for the existence of distinct regional cultural differences in the U.S. Although I am in full agreement that regional diversity on the Supreme Court is a good thing, I also had an immediate emotional response to a perceived (or maybe real) dissing of New England. As a Connecticut Yankee, I identified with my tribe.

As Andy pointed out, there is also a common kind of national popular culture. I would argue that we do not have any totally self contained regional or local cultures that can compare to that of an isolated homogenous tribe. We all identify with and operate in multiple cultures in our every day lives. Almost every aspect of our lives shared with others produces a corresponding cultural scene. A Northeasterner will scoff at a Southerner or Westerner. A New Englander will scoff at a New Yorker and and a "Mainiac" will scoff at anyone whose family hasn't lived in Maine for at least several generations. Even further, someone from Houlton is leery of those from down in Portland. It's all a matter of degree.

Adam L Silverman

I think this informative blog post about Professor Liu's nomination may shed some light on the matter. Professor Liu has had to amend his disclosed materials four times to make the minority members happy (happy being a relative term) in order to account for anything he has apparently ever said or written in his entire life. This is a marked change from these confirmation hearings in the past, most recently when the Republicans controlled the Senate in the mid 1990s. Senator Sessions is shocked, shocked that Professor Liu might have said something somewhere and somewhen that the good Senator won't be able to caricature, make fun of, twist, or use out of context during the hearings:http://legaltimes.typepad.com/blt/2010/04/goodwin-liu-offers-sincere-and-humblest-apology-to-senators.html

Given this unfortunate farce, that we call a confirmation process, I'm not in the least surprised that President Obama appointed someone with virtually no paper trail whatsoever. Now I know why Congressman Obey indicated that part of the reason he was retiring is that he is tired of explaining to his constituents why Congress can't do anything because of bizarre, internal Senate rules and customs!

Margaret Steinfels

As someone who lived her first twenty-two years in Chicago and the last many decades in New York (and in the infamous Upper West Side), I continue to find enormous regional differences. But anyone who thinks New Yorkers know politics, knows squat. Chicago still does Real Politics, while New Yorkers have...look at our governor, our state legislature, our two Senators!!! And it doesn't make any difference whether they are Republicans or Democrats. They mostly don't know what they're doing. I say nothing about Elena Kagan's qualifications or future performance on the Supreme Court (but she can hardly be worse than Roberts, Thomas, Allito, and Scalia (also a New Yorker).

Clifford Kiracofe

Regional diversity and intellectual diversity. Cieran's point is an excellent one.

I recall my father talking about his days at Harvard Law School and Dean Pound and Williston and the luminaries of that era at that institution.

I also recall my father, a corporation lawyer, telling me that his hiring policy in his practice was to select top candidates from a range of law schools from around the country so as to have intellectual DIVERSITY, differences in thought, approach, analysis and so on. He did not want a practice filled with graduates from one or two schools all taught by the same professors and so on...

Patrick Lang


"...elite institutions(harvard law, yale law) that just happen to be located in the northeast..."

Thank you for making my point. pl



I can offer no serious disagreement with everything that was said above... and in particular, I regret that our host got the impression that I believe in a cultural homogeneity on geographic terms as either a concrete reality or as a worthy ideal because that was certainly not my intent. I doubly regret having apparently irritated you, Pat, because I find the rest of your argument in that response to be perfectly reasonable. While I have lived in all parts of MA, in IL near Chicago, and in Northern CA for extended periods of time, I have had many friends and colleagues from all parts of the continental US and we never ceased to discover matters on which the contrasts between our world views were as remarkable as the commonalities....

... and for what it's worth, since I resided in France and was active throughout Europe for almost two decades in the 80's and 90's, I may well be more inclined to view the differences between American and European culture more concretely than those that distinguish American citizens from the fifty states.

So a few points of precision, if I may:

1) I would certainly agree with the arguments suggesting that our citizenry reflects a very significant degree of regionally-oriented diversity, but I personally think that this is more related to the region in which one is raised (and yes, this might suggest that Scalia has more in common culturally with Kagan than with Roberts...).

2) I would disagree somewhat, but only to a certain degree, that a person's "cultural identity" can be fundamentally changed by their graduate school experience in Cambridge MA or New Haven CT, but I don't think the "sorting" that occurs in those environments is as conscious as it is eliminatory (ie., a Scalia, Roberts, or Kagan - just to name a few - advance in part due to their intellectual skills and in part for their ability to satisfy the institutional predilictions

3) I would wholeheartedly agree with the observations regarding "intellectual diversity" as a predicate for a more comprehensive perspective in decision-making institutions large-and-small.

All I can add is that of my many friends not from the Northeast, the more significant is my buddy from Wyoming who teaches political science at UCSD... because when he refused two different job offers at Harvard in the 90's, his polite rejection of the propositions as followed by a disbelieving rebuke containing words like "your career will suffer"... and "Harvard University is the center of the intellectual universe...

... to which I think he replied that he would rather cut a broad orbit than be trapped within a black hole.

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