Why Kagan And Company Aren't Right For The Supreme Court

The same edition of the New York Times that carried an assessment of the top three contenders for the imminent vacancy on the United States Supreme Court also carried a story that one of three Americans failed to return Census Bureau forms. I wonder whether there's a deeper moral in this innocent juxtaposition: Is the Supreme Court increasingly irrelevant to the lives most Americans live? Or, perhaps more to the point, are most Americans detaching from anything like a mainstream of common norms?

Elena Kagan, Diane Wood and Merrick Garland are three of the top contenders for the seat being vacated by Justice John Paul Stevens. Kagan is former dean of the Harvard Law School, and serves now as Solicitor General of the United States. Diane Wood and Merrick Garland are federal appellate court judges. They are part of the other, and affluent America; they are the sort of people who most likely returned their Census forms because they feel it is their civic obligation to do so. They are also as mainstream as one can get.

Each of the three contenders served as federal appellate court clerk, and, then, clerk to a United States Supreme Court justice. Kagan and Garland were graduated from the Harvard Law Review; Wood's academic roots are more modest: she was graduated from the University of Texas law school. All have experience as lawyers in the federal government, and all are legal academics. It appears that only Kagan has any experience in the private sector, working briefly at a white shoe firm, Covington and Burlington.

The Times makes much of the differences between the three. Ms. Kagan is seen by some as more concerned with gay rights than national security. Ms. Wood is considered by others to be hostile to Christians and too inclined to support abortion rights. Mr. Garland just might like big government and lean in favor of assuring that those accused of terrorism enjoy basic constitutional rights. Put another way, all could easily share the same limousine en route to a Georgetown dinner party.

And that's the problem. Each of these candidates sits atop the pyramid of Maslow's hieracrchy of need. Each has it all: affluence, fame, power. They lead privileged lives, far from need, far from foreclosure, far from the madding crowd that darkens the doors of almost every trial court in the land. For folks like this, the law is all about theory and legal doctrine. I suspect each would wet themselves if left alone with an actual client facing prison time for a crime he may, or may not, have committed.

I cannot fathom why President Obama finds it necessary to dip into the same cesspool of privilege for Supreme Court justices that has served the country so indifferently during the past three decades or more. Is this change?

Watching the debate about the nomination reminds me of appearing before a federal judge some fifteen years ago for several trials. The man was a distinguished intellectual. But he had never tried a case to a verdict as a lawyer. Appearing before him hurt: he tried mightily to do the right thing, but one sensed his discomfort in the rough and tumble world of need. In his world, clients had all the money necessary to do everything the law permitted. Most Americans make cost-benefit decisions about what they can and should do. The privileged rarely do.

Kagan, Wood and Merrick are all qualified to be Supreme Court justices. There is no doubt about that. But they are all also distressingly cut from the same cloth as members of the current court. Hasn't the president noticed, however, that this cloth is fraying? The tapestry of American society is becoming undone? We need new wine skins for the court; the skins old are bursting with the pressure of a nation polarized into worlds as different as Georgetown and Main Street, USA.

Why isn't the president looking among the ranks of the nation's Public Defenders for a justice? Or perhaps someone who has sat in a Legal Aid office counseling folks on how to keep their home? Why not a lawyer who has spent a decade of so facing juries, or explaining to clients just how difficult it is to overturn a verdict on appeal? It's easy for judges to regard trial error as harmless when they never face those harmed.

Change, the president promised. It is a promise unredeemed thus far in so far as judicial appointments are concerned. When it comes to the Supreme Court, its the same old cream churned into premium vanilla.

Is it any wonder many Americans ignored the Census? For many folks, reporting the details of their domestic life to a distant government feels alot like reporting to a foreign power. Kagan, Wood and Garland are each distinguished jurists. But they are also so far out of the mainstream as to live in a world apart from ordinary Americans.

Lipsky's Constitution: "We The People"?

There will be talk aplenty about what our Constitution means, even what it is, in the weeks and months to come as debate forms around the nomination of the next justice to the United States Supreme Court. The debate, frankly, is too important to be left to lawyers. But where is an ordinary person to turn for information, much less inspiration, about the Constitution?

I'm reading Seth Lipsky's. The Citizen's Constitution: An Annotated Guide, (Basic Books: New York, 2009). It is a refreshing.

Lipsky is a life-long journalist, having worked at the Wall Street Journal and founded the now defunct New York Sun. His editorials earned him a finalist's berth for the Pulitzer Prize in 1991. He's a keen observer of politics, both national and international, and has been following public affairs for 40 some years. In the preface, he notes that over the years he has actually turned to the Constitution as he tried to make sense of the issues of the day.

This business of turning to the Constitution may not seem remarkable to you. But consider, for a moment, the act in the context of Lipsky's life. He is not trained as a lawyer. Rather, he is a journalist. As his newspapers sought to comment on the meaning of the day's events, he turned to a document he regarded as a compact between he, other similarly situated people, and the government. He assumed that as a person of intelligence, he could discern both the Constitution's meaning, and the limits it placed on Government.

You lawyers out there are smirking as you read. You know it's not that simple. The document doesn't speak, it must be read. And even if it could speak, its speech must still be interpreted. The act of interpretation is a highly creative process, requiring very active and self-conscious commitments to interpretive canons. Thus, the current dichotomy between those who support a "living constitution" and those favoring "originalism" is really just a parlor squabble among lawyers and judges about how best to read a document whose meaning and relevance to our time is often far from apparent. We're all activists now, whether we like it or not. And the activity we engage in is interpretation.

But I like Lipsky's experiment. Can a person of ordinary intelligence make sense of the document? Does the Constitution speak in any meaningful sense to the conflicts of our day?

I am reminded of Senator Sam Ervin during the Watergate hearings. One day, he pulled a battered copy of the Constitution from a jacket pocket and waved it around, exclaiming that he did not see any reference in his Constitution to some high-fallutin' nonsense being peddled by a Government lawyer. It is an image that remains with me almost forty years after the fact.

Sure, Ervin was grandstanding. But why not? The Constitution is written so that it can be published and relied upon by all. We speak now of the law's transparency, and then shroud it in doctrines as opaque as medieval theology. Only lawyers benefit from obscurantism.

So what does Lipsky make of the Preamble? Who are, for example, "We the People?" Does that have meaning today? Did it at the time of the founding?

The joy of an annotated interpretation is in the scholarship that supports it. Lipsky has gone to the Founder's writings, and has parsed terms debated about at the time of the Constitutional Convention. His annotations reflect familiarity with the writings of Federalists and Anti-Federalists, as well as Farrand's Records, and a wide variety of other contemporaneous sources.

Three words into the preamble, and already controversy. "Who authorized them to speak the language of, We, the people, instead of, We, the states? States are the characteristic and soul of a confederation," Patrick Henry noted. Sam Adams, too, was puzzled: "I confess, as I enter the building I stumble at the threshold. I meet with a national government, instead of a federal union of sovereign states."

It's always puzzled me that the convention, called to amend the Articles of Confederation, assumed a mandate it was never given: Wholesale restructuring of the Government. It is as though they were sent to purchase a new saddle, and returned with a team of wild new stallions.

James Madison saw perhaps more clearly. The Preamble, he wrote, "is not an unmeaning flourish. The expressions declares, in a practical manner, the principle of this constitution. It is ordained and established by the people themselves; and we, who give our votes for it, are merely the proxies of our constituents. We sign it as their attorneys, and as to ourselves, we agree to it as individuals."

Perhaps. But it is an odd, odd notion for an attorney to assume responsibility not given by his client. Did the people authorize creation of this document? Not in any literal sense. It took a bitter ratification fight for the Constitution to be adopted two centuries ago.

But tell me, today, what binds us to the commitments of a foregone era? Madison was a brilliant lawyer; there was genius among the founders. But they spoke for a people far different than that which populates our continent today. James Madison did not represent me, or my forebears: My father's family was still in Crete, perhaps dreaming yet of Minotaurs. He hadn't hired an American lawyer to dream for him.

"We the people" is wonderful rhetoric. But the words are an old wine skin that requiring refilling each generation. Will new wine burst the old skin?

So we struggle now to select another new justice for the Supreme Court. It is fair to ask this justice just how he will interpret the Constitution. What canons bind? And to what interests are those canons bound? The Constitution has never been revealed truth speaking somehow outside the limiting pressures of particular places and times. More importantly, if this justice serves, in some sense as Madison fancied himself to be serving, as the people's attorney, aren't we entitled to a role in interviewing him or her for the job?

I want a lawyer I can trust, a lawyer who understands the life I lead, and whose world is not so different than mine that I feel a chill of condescension as we discuss the goals of the representation. I want an ordinary sort of lawyer, schooled in chaos, and accustomed to grief. If a judge is going to pretend to represent the people, he ought to be a people's lawyer.

Next: The rest of the Preamble

Stevens Retiring: Time For A Trial Lawyer

Supreme Court Justice John Paul Stevens announced this morning that he is retiring at the end of the current term. The retirement gives President Barack Obama an ideal opportunity to honor the commitment to change that was the hallmark of his presidential campaign. He can and should nominate a trial lawyer to the high court.

The current court is composed almost exclusively of lawyer's whose blood runs pure blue with Ivy League pedigrees, big law experience and years laboring in the vineyards of the nation's federal appellate courts. Altogether absent from the court is anyone with substantial experience in the trenches where legal abstractions have the most direct impact on the lives of ordinary Americans.

Clearly, experience in the appellate courts, brilliant performance at a status- factory law school and intimate familiarity with the levers of political power are important perspectives to have on the nation's highest court. But we now have nine such Solons presiding. Is it too much to ask for one lawyer who wakes up every morning, looks a frightened client in the eye, and says, simply, "I'll do my best"?

The leading candidates to replace Stevens are Solicitor General Elena Kagan, 49, and federal appellate Judges Merrick Garland, 57, and Diane Wood, 59. All are brilliant and accomplished. None are cut from the cloth, however, of which ordinary Americans stitch their coats of many colors.

I often wince when I read high-court decisions. They sometimes read as though they were written by tourists beholding the suffering of others. Such legal theories as the harmless error doctrine, qualified immunity and the explosion in exceptions to the Fourth Amendment have the redolence of a Wall Street bailout: Power wins. The Government, like Wall Street, is too big to fail. Hence, legal doctrine deserts those in need in favor of those in need of deceit to remain in control. The courts drift further and further away from the promise of liberty, and the people, like sheep, are expected simply to bleat in unison that all is well in this the best of all possible nations.

Except we know that this isn't paradise. It is no longer even much of a city on a hill. The American Century ended long ago with a thud. Now even the American dream is becoming, for many, a cynical farce. We do not need another Supreme Court justice who has grown fat, sassy, and insulated from the raw emotions most Americans struggle with -- fear, need, and, yes, sometimes fury. What we need is a lawyer who has spent a career representing ordinary people in ordinary trouble.

President Obama energized a nation with a promise of change. He stunned those of us who assumed we would never live long enough to see a person of color in the White House. He energized young people who had never before participated in the political process. He wooed those accustomed to playing the games politicians play with promises of change. It is time to redeem those promises with the next Supreme Court nomination.

I nominate a Connecticut lawyer named Bill Bloss. He is a partner at Koskoff, Koskoff and Beider, in Bridgeport. His is a first-rate intellect. He has appeared in courts high and low. And he represents people from all walks of life. Rather than dipping into the star-studded ranks of the law's glitterati, the president needs to look among the nation's working lawyers for brilliance acquainted with sorrow and grief. There is no time like the present for the president to promote change.

Don't like Bloss? Okay, then. Who is your nominee? Let's name names and force change!