Commentary Magazine


Topic: professor of law

Are Chinese Mothers Superior?

A certain essay appeared in the Wall Street Journal last Saturday, titled “Why Chinese Mothers Are Superior,” to which one excerpted reaction from the Journal community itself was “I am in disbelief after reading this article.” The author is a Chinese mother, Amy Chua, a professor of law at Yale perhaps best known for writing the New York Times bestseller World on Fire.

The essay affirms that stereotypical Chinese parenting produces stereotypical cases of success for the children raised in that fashion — impeccable grade reports, precocious competence in the violin and piano (but mind you, those instruments and no other!), and fortitude of mind in the child to boot — and it explains how all this can be achieved by drawing on representative episodes from the author’s own experience as a Chinese mother. The most instructive and blood-chilling of these is the story of how little Lulu, Chua’s youngest daughter, was compelled to learn, just in time for her piano recital, how to play “The Little White Donkey” — a most difficult piece, apparently requiring uncommon ambidexterity, and, one would think, rapid and fluent communication between the hemispheres of a seven-year-old’s brain, across its not fully developed corpus callosum:

Lulu couldn’t do it. We worked on it nonstop for a week, drilling each of her hands separately, over and over. But whenever we tried putting the hands together, one always morphed into the other, and everything fell apart. Finally, the day before her lesson, Lulu announced in exasperation that she was giving up and stomped off. “Get back to the piano now,” I ordered. … She punched, thrashed and kicked. She grabbed the music score and tore it to shreds. I taped the score back together and encased it in a plastic shield so that it could never be destroyed again. Then I hauled Lulu’s dollhouse to the car and told her I’d donate it to the Salvation Army piece by piece if she didn’t have “The Little White Donkey” perfect by the next day. When Lulu said, “I thought you were going to the Salvation Army, why are you still here?” I threatened her with no lunch, no dinner, no Christmas or Hanukkah presents, no birthday parties for two, three, four years. When she still kept playing it wrong, I told her she was purposely working herself into a frenzy because she was secretly afraid she couldn’t do it. I told her to stop being lazy, cowardly, self-indulgent and pathetic. … I used every weapon and tactic I could think of. We worked right through dinner into the night, and I wouldn’t let Lulu get up, not for water, not even to go to the bathroom. The house became a war zone, and I lost my voice yelling, but still there seemed to be only negative progress. … Then, out of the blue, Lulu did it. Her hands suddenly came together—her right and left hands each doing their own imperturbable thing—just like that.

The author beams with pride over this “success story” and seems to consider it a vindication of her school of parenting against all naysayers. And throughout the article, starting from its title, she does little to disguise her scorn for Western parents, their tolerance for underachievement in their own children, and their squeamishness at the sight or report of the treatment other (luckier) children undergo every day in the hands of their Chinese mothers.

Having long been convinced that nothing harms stereotypical Western children more than their parents’ stereotypical laxness, I nevertheless find appalling much of what Chua states and even more of what she implies. Perhaps the foibles of modern Western parenting have grown so obvious and so ridiculous that any criticism of them is allowed to stick and any proposed alternative is welcomed; the more diametrically opposed to the status quo, the better even. But what Chua is prescribing in her article should not be rashly applauded by even the most frustrated critics of modern parenting mores. Read More

A certain essay appeared in the Wall Street Journal last Saturday, titled “Why Chinese Mothers Are Superior,” to which one excerpted reaction from the Journal community itself was “I am in disbelief after reading this article.” The author is a Chinese mother, Amy Chua, a professor of law at Yale perhaps best known for writing the New York Times bestseller World on Fire.

The essay affirms that stereotypical Chinese parenting produces stereotypical cases of success for the children raised in that fashion — impeccable grade reports, precocious competence in the violin and piano (but mind you, those instruments and no other!), and fortitude of mind in the child to boot — and it explains how all this can be achieved by drawing on representative episodes from the author’s own experience as a Chinese mother. The most instructive and blood-chilling of these is the story of how little Lulu, Chua’s youngest daughter, was compelled to learn, just in time for her piano recital, how to play “The Little White Donkey” — a most difficult piece, apparently requiring uncommon ambidexterity, and, one would think, rapid and fluent communication between the hemispheres of a seven-year-old’s brain, across its not fully developed corpus callosum:

Lulu couldn’t do it. We worked on it nonstop for a week, drilling each of her hands separately, over and over. But whenever we tried putting the hands together, one always morphed into the other, and everything fell apart. Finally, the day before her lesson, Lulu announced in exasperation that she was giving up and stomped off. “Get back to the piano now,” I ordered. … She punched, thrashed and kicked. She grabbed the music score and tore it to shreds. I taped the score back together and encased it in a plastic shield so that it could never be destroyed again. Then I hauled Lulu’s dollhouse to the car and told her I’d donate it to the Salvation Army piece by piece if she didn’t have “The Little White Donkey” perfect by the next day. When Lulu said, “I thought you were going to the Salvation Army, why are you still here?” I threatened her with no lunch, no dinner, no Christmas or Hanukkah presents, no birthday parties for two, three, four years. When she still kept playing it wrong, I told her she was purposely working herself into a frenzy because she was secretly afraid she couldn’t do it. I told her to stop being lazy, cowardly, self-indulgent and pathetic. … I used every weapon and tactic I could think of. We worked right through dinner into the night, and I wouldn’t let Lulu get up, not for water, not even to go to the bathroom. The house became a war zone, and I lost my voice yelling, but still there seemed to be only negative progress. … Then, out of the blue, Lulu did it. Her hands suddenly came together—her right and left hands each doing their own imperturbable thing—just like that.

The author beams with pride over this “success story” and seems to consider it a vindication of her school of parenting against all naysayers. And throughout the article, starting from its title, she does little to disguise her scorn for Western parents, their tolerance for underachievement in their own children, and their squeamishness at the sight or report of the treatment other (luckier) children undergo every day in the hands of their Chinese mothers.

Having long been convinced that nothing harms stereotypical Western children more than their parents’ stereotypical laxness, I nevertheless find appalling much of what Chua states and even more of what she implies. Perhaps the foibles of modern Western parenting have grown so obvious and so ridiculous that any criticism of them is allowed to stick and any proposed alternative is welcomed; the more diametrically opposed to the status quo, the better even. But what Chua is prescribing in her article should not be rashly applauded by even the most frustrated critics of modern parenting mores.

What’s right with Chinese parenting? It demands and expects the attainment of competence through perseverance and industry. It accepts no excuses for failure. It discourages trivial pursuits. It desensitizes children to occasional harshness from others, even loved ones. Now, is there anything wrong with Chinese parenting? I’d say plenty. The readiest hint can be found in Chua’s own opening: stereotypical Chinese parenting is responsible for cases of stereotypical success in the children subjected to it. It’s what it’s known for. Nothing more. One cannot imagine Da Vinci raised by a Florentine “Chinese” mother or Beethoven by a German one. Genius cannot develop and flourish when its would-be building materials have been deformed and forcibly molded to the shape of a narrow box designed by stereotypical Chinese parents. John Ruskin developed a singular mind in spite of an upbringing with some Chinese flavor to it, not because of it. And in Praeterita, his autobiography, he looks back with his usual keen discernment on the chief calamities of his childhood:

My judgment of right and wrong, and powers of independent action, were left entirely undeveloped; because the bridle and blinkers were never taken off me. Children should have their times of being off duty, like soldiers; and when once the obedience, if required, is certain, the little creature should be very early put for periods of practice in complete command of itself; set on the barebacked horse of its own will, and left to break it by its own strength. But the ceaseless authority exercised over my youth left me, when cast out at last into the world, unable for some time to do more than drift with its vortices. My present verdict, therefore, on the general tenor of my education at that time, must be, that it was at once too formal and too luxurious; leaving my character, at the most important moment for its construction, cramped indeed, but not disciplined; and only by protection innocent, instead of by practice virtuous.

What Ruskin laments the want of, in his own childhood, can be roughly summarized as the rudiments of Stoicism, which, if genius does not need them, the well-ordered mind of the upright citizen certainly does. Instilling Stoic values in a child by the Chinese method is a contradiction in terms. And any nobility of soul, grandeur of mind, or genuine self-discipline in man partakes of Stoic values. It is of this tradition of Stoicism — which, however modified, has shone bright in the high noon of every great Western culture — that we are the almost bankrupt heirs today. Only faint shadows of its former glory survive in popular culture. One of them, as it pertains to the upbringing of children, is the notion (sneered at by Chua), commonly accepted though perhaps misunderstood even by its adherents, that the child, as far as it is capable of rational thought, is a free agent, entitled to make its own decisions and deserving what minimal freedom it requires in order to follow the basic dictates of its conscience. The application of this principle in practice today almost always ends up in a grotesque caricature of its intended meaning, but that meaning itself is noble, and not only that, I will go further and say that an understanding of that meaning, whether conscious or intuitive, is necessary to the mental constitution of any citizen of a free society — just as necessary today as it was to the breeding of the English gentleman in the golden days of the Empire or to the education of the likes of Cato the Younger, Cicero, and Seneca.

To be the master of oneself and one’s passions, to understand the rightness of one’s moral law and to obey it out of a sense of inward affinity to what’s good and natural; to practice virtue as its own reward, freely; to view one’s sense of duty serenely and make it one with one’s will and desires; and to stand firm in the face of hardship or even annihilation, without bending to coercion from tyrants or losing oneself in any frenzied mob — this is the ideal of discipline that cuts against the grain of the Chinese method, which, despite the good intentions of many of its practitioners, must be recognized for what it is: i.e., the relic of an authoritarian and collectivistic, however stable, culture and a tool for the perpetuation of the same. The mettle to confront mortal danger, eagerly if principle requires it and always with composure, does not come from yielding in childhood to threats of starvation, corporeal punishment, sequestration of property, and the like. On the contrary, someone who values freedom and deserves it tries to teach himself and his child to be indifferent to such debasing stimuli; whereas a child raised to respond to them — and their lowest common denominator is always brute force — grows up to be a cowardly, obedient serf of his parents, elders, and dictators. The only form of discipline he learns is that of endurance, which is also the main virtue he is expected to practice throughout his life as the subject of an absolute external authority that can’t be argued or reasoned with. But said serf might learn to play “The Little White Donkey” at the age of seven, and that’s worth something, right?

In all earnestness, please consider the premises of Chinese parenting as laid out in Chua’s own words:

a) Children are not allowed to 1) play any instrument other than the piano and violin, 2) not play the piano and violin, 3) choose their own extracurricular activities. (Even Socialist Realism permits greater freedom of expression.)

b) Children owe their parents everything (as do citizens to the State).

c) Parents know what is best for their children and therefore override all their children’s own desires and preferences. (The state knows what’s best for the little people and gets it done against their will, but with their best interests very much at heart. Isn’t this how the Communist Party of China justifies its autocratic rule to itself and to the rest of the world?)

In light of all this, perhaps it should come as no surprise that Amy Chua’s bestseller is subtitled “How Exporting Free Market Democracy Breeds Ethnic Hatred and Global Instability.”

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More J Street Donors Revealed

The Jerusalem Post has the latest on J Street’s unusual donors:

According to records filed with the US Federal Election Committee on October 20 and October 21, J Street recorded hundreds of donations from Americans of all sorts, most Jewish and some Muslim. But several names jumped out from the 2,100 pages.

Lenny Ben David, who wrote the item, mentions Genevieve Lynch, a member of the National Iranian American Council’s board.

Lynch, the NIAC board member and a member of J Street’s Finance Committee, is listed contributing $10,000 in October. At one point last year, J Street and NIAC leaders worked together to block anti-Iran sanctions measures proposed by Congress. Belatedly, J Street changed its position and supported sanctions.

Nancy Dutton earmarked last week $250 for the Democratic Senate candidate in Pennsylvania, Joe Sestak. Her late husband Fred served as a Saudi foreign agent in Washington for 30 years. (During the 1982 AWACS debate he was believed to be responsible for the line, “Reagan or Begin?” which strongly suggested American Jews’ double loyalty.)  After Fred’s death, Nancy picked up the pricey Saudi gig.

Oddly enough, the donors have a decidedly anti-Israel perspective:

Another new name on the J Street PAC’s list of contributors is  M. Cherif Bassiouni, a well-known professor of law at DePaul University. Bassiouni is also an unlikely candidate to contribute to a purported “pro-Israel” organization.  Several years ago he complained in an article in the Harvard International Law Journal, “A large segment of the world population asks why Israel’s repression of the Palestinian people, which includes the commission of ‘grave breaches’ of the Geneva Convention and what the customary law of armed conflict considers ‘war crimes,’ is deemed justified, while Palestinians’ unlawful acts of targeting civilians are condemned? These are only some contemporary examples of the double standard that fuels terrorism.”

Now, the jig has been up for some time that J Street allies itself with foes of the Jewish state. The latest is simply more evidence, as if any were needed, that J Street’s pro-Israel label is fraudulent and its sponsored candidates are those it perceives to be most helpful to its — and its allies’ — mission.

The Jerusalem Post has the latest on J Street’s unusual donors:

According to records filed with the US Federal Election Committee on October 20 and October 21, J Street recorded hundreds of donations from Americans of all sorts, most Jewish and some Muslim. But several names jumped out from the 2,100 pages.

Lenny Ben David, who wrote the item, mentions Genevieve Lynch, a member of the National Iranian American Council’s board.

Lynch, the NIAC board member and a member of J Street’s Finance Committee, is listed contributing $10,000 in October. At one point last year, J Street and NIAC leaders worked together to block anti-Iran sanctions measures proposed by Congress. Belatedly, J Street changed its position and supported sanctions.

Nancy Dutton earmarked last week $250 for the Democratic Senate candidate in Pennsylvania, Joe Sestak. Her late husband Fred served as a Saudi foreign agent in Washington for 30 years. (During the 1982 AWACS debate he was believed to be responsible for the line, “Reagan or Begin?” which strongly suggested American Jews’ double loyalty.)  After Fred’s death, Nancy picked up the pricey Saudi gig.

Oddly enough, the donors have a decidedly anti-Israel perspective:

Another new name on the J Street PAC’s list of contributors is  M. Cherif Bassiouni, a well-known professor of law at DePaul University. Bassiouni is also an unlikely candidate to contribute to a purported “pro-Israel” organization.  Several years ago he complained in an article in the Harvard International Law Journal, “A large segment of the world population asks why Israel’s repression of the Palestinian people, which includes the commission of ‘grave breaches’ of the Geneva Convention and what the customary law of armed conflict considers ‘war crimes,’ is deemed justified, while Palestinians’ unlawful acts of targeting civilians are condemned? These are only some contemporary examples of the double standard that fuels terrorism.”

Now, the jig has been up for some time that J Street allies itself with foes of the Jewish state. The latest is simply more evidence, as if any were needed, that J Street’s pro-Israel label is fraudulent and its sponsored candidates are those it perceives to be most helpful to its — and its allies’ — mission.

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The Everyone-Knows Peace Process

The AP reports on a “surprising symmetry” between the U.S.-backed regime of Mahmoud Abbas (about to start the 69th month of his 48-month term) and the Iran-backed dictatorship in Gaza (h/t Seth Leibsohn):

Both governments carry out arbitrary arrests, ban rivals from travel, exclude them from civil service jobs and suppress opposition media, [Palestinian] rights groups say. Torture in both West Bank and Gaza lockups includes beatings and tying up detainees in painful positions.

Not only that, but the arc of history seems to be bending downward: “the crackdowns have become more sweeping in recent months as each aims to strengthen its grip on its respective territory.” It comes at an unfortunate time for the peace-processing industry:

With each incident, the wedge is hammered deeper and the hostility grows between the two halves of what is meant to be a future Palestine, just as the U.S. relaunches Mideast talks at the White House this week in hopes of getting an agreement within a year.

Those who threaten Israel with a one-state solution if it does not hand over land to the West Bank “president” and his unelected “prime minister” might consider that Fatah and Hamas cannot live in a single state, even with themselves. Those who believe the West Bank prime minister is building the institutions of a stable state might reflect on the fact that the regime has canceled not only two presidential elections but one for local officials as well.

Why anyone thinks a Judenrein state, with its headquarters in the capital of the Jewish one, with borders approximating the 1949 armistice line that ended the first Arab war against Israel (until the Arabs could regroup for another one), will produce peace, or why such a state should be a central goal of current U.S. foreign policy, is a bit of a mystery. In “Getting to No,” Donald L. Horowitz, professor of law and political science at Duke, has written an important analysis that challenges the conventional wisdom that “everyone knows” what a peace agreement entails and that majorities on both sides support it:

Like a strong majority of Israelis, a strong majority of Palestinians support a two-state solution, but if its boundaries are not the 1967 lines because of territorial swaps, support shrinks. If Palestinians must acknowledge the Jewish character of the Israeli state, only a bare majority agrees. If the borders are not the 1967 lines, the territory is smaller, there is recognition of the Jewish character of Israel, and Palestine must be demilitarized, approval declines by more than half to about 33 percent, according to surveys conducted by the authoritative Palestinian Center for Policy and Survey Research.

Horowitz identifies the conundrum of the everyone-knows peace process: “compromise facilitates agreement but simultaneously reduces popular support for it” — and such a “peace agreement could actually produce warfare.” The article concludes that it is a serious mistake to think that all that is needed are bridging proposals and U.S. pressure. Peace-processors, realists, and everyone else should read the article.

The AP reports on a “surprising symmetry” between the U.S.-backed regime of Mahmoud Abbas (about to start the 69th month of his 48-month term) and the Iran-backed dictatorship in Gaza (h/t Seth Leibsohn):

Both governments carry out arbitrary arrests, ban rivals from travel, exclude them from civil service jobs and suppress opposition media, [Palestinian] rights groups say. Torture in both West Bank and Gaza lockups includes beatings and tying up detainees in painful positions.

Not only that, but the arc of history seems to be bending downward: “the crackdowns have become more sweeping in recent months as each aims to strengthen its grip on its respective territory.” It comes at an unfortunate time for the peace-processing industry:

With each incident, the wedge is hammered deeper and the hostility grows between the two halves of what is meant to be a future Palestine, just as the U.S. relaunches Mideast talks at the White House this week in hopes of getting an agreement within a year.

Those who threaten Israel with a one-state solution if it does not hand over land to the West Bank “president” and his unelected “prime minister” might consider that Fatah and Hamas cannot live in a single state, even with themselves. Those who believe the West Bank prime minister is building the institutions of a stable state might reflect on the fact that the regime has canceled not only two presidential elections but one for local officials as well.

Why anyone thinks a Judenrein state, with its headquarters in the capital of the Jewish one, with borders approximating the 1949 armistice line that ended the first Arab war against Israel (until the Arabs could regroup for another one), will produce peace, or why such a state should be a central goal of current U.S. foreign policy, is a bit of a mystery. In “Getting to No,” Donald L. Horowitz, professor of law and political science at Duke, has written an important analysis that challenges the conventional wisdom that “everyone knows” what a peace agreement entails and that majorities on both sides support it:

Like a strong majority of Israelis, a strong majority of Palestinians support a two-state solution, but if its boundaries are not the 1967 lines because of territorial swaps, support shrinks. If Palestinians must acknowledge the Jewish character of the Israeli state, only a bare majority agrees. If the borders are not the 1967 lines, the territory is smaller, there is recognition of the Jewish character of Israel, and Palestine must be demilitarized, approval declines by more than half to about 33 percent, according to surveys conducted by the authoritative Palestinian Center for Policy and Survey Research.

Horowitz identifies the conundrum of the everyone-knows peace process: “compromise facilitates agreement but simultaneously reduces popular support for it” — and such a “peace agreement could actually produce warfare.” The article concludes that it is a serious mistake to think that all that is needed are bridging proposals and U.S. pressure. Peace-processors, realists, and everyone else should read the article.

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Elena Kagan — Stealth Nominee?

Elena Kagan is the prohibitive favorite for the Supreme Court. She has made it through one confirmation hearing for her current post as solicitor general and possesses academic credentials, a reputation for collegiality with conservatives, and a limited paper trail. Moreover, she is the closest we have to a stealth candidate among the front-runners. As Tom Goldstein notes, “I don’t know anyone who has had a conversation with her in which she expressed a personal conviction on a question of constitutional law in the past decade.”

Casual observers assume that a dean of Harvard Law School and a domestic-policy aide in the Clinton administration must have a sizable body of work reflecting her legal views. But not so. Paul Campos has read all there is to read — and it’s not much:

Yesterday, I read everything Elena Kagan has ever published. It didn’t take long: in the nearly 20 years since Kagan became a law professor, she’s published very little academic scholarship—three law review articles, along with a couple of shorter essays and two brief book reviews. Somehow, Kagan got tenure at Chicago in 1995 on the basis of a single article in The Supreme Court Review—a scholarly journal edited by Chicago’s own faculty—and a short essay in the school’s law review. She then worked in the Clinton administration for several years before joining Harvard as a visiting professor of law in 1999. While there she published two articles, but since receiving tenure from Harvard in 2001 (and becoming dean of the law school in 2003) she has published nothing. (While it’s true law school deans often do little scholarly writing during their terms, Kagan is remarkable both for how little she did in the dozen years prior to becoming Harvard’s dean, and for never having written anything intended for a more general audience, either before or after taking that position.)

Campos goes so far as to suggest that Kagan is a Harriet Miers type – minus the cronyism. He concludes:

Indeed, the most impressive thing about Kagan is that she seems to have a remarkable ability to ingratiate herself with influential people across the ideological spectrum. … As a private lawyer, Miers, after all, had a fairly good excuse for having no public views on the great legal issues of our day. For most of the past 20 years, Kagan’s job has been to both develop and publicize such views. That she has nevertheless managed to almost completely avoid doing so is rather extraordinary.

What to make of this? Well, if a Republican president were to select a person with such a skimpy written record, conservatives would be (and were with the Miers nomination) rightfully worried. But do the same concerns — ideological infidelity, intellectual mediocrity — really apply to Kagan? Let’s be honest, it works differently for liberals. Very few are tempted to moderate their views and slide rightward, while Republican-nominated jurists (David Souter, John Paul Stevens) have a history of “disappointing” their side. And while no one has claimed that Kagan has achieved greatness in legal scholarship, the assumption — rightly or not — is that the dean of one of the top law schools in the country must have some intellectual wattage. Nevertheless, liberal legal activists might have reason to be a bit nervous — after all, would a justice who lacks judicial chops be the best choice to sway Justice Kennedy on those all-important 5-to-4 decisions? Is she really the one who is going to go toe-to-toe with Justice Scalia? There is some risk there if Obama were to choose a lesser known quantity than an appellate judge such as Diane Wood.

Nevertheless, there are clues as to Kagan’s legal mindset. Indeed, one such clue is also her primary shortcoming. Stuart Taylor explains:

The one issue that could slow down Kagan’s confirmation is her impassioned effort as dean to bar military recruiting on campus to protest the law banning openly gay people from serving in the military, which she called “a moral injustice of the first order.”

Kagan carried this opposition to the point of joining a 2005 amicus brief whose strained interpretation of a law denying federal funding to institutions that discriminate against military recruiters would — the Supreme Court held in an 8-0 decision — have rendered the statute “largely meaningless.” This helps to explain the 31 Republican votes against confirming her as solicitor general.

Well, that might be enough to lose her a batch of GOP Senate votes, but would it derail her nomination? Probably not. And it might just give enough comfort to the left that Kagan is a “safe” pick for them.

Elena Kagan is the prohibitive favorite for the Supreme Court. She has made it through one confirmation hearing for her current post as solicitor general and possesses academic credentials, a reputation for collegiality with conservatives, and a limited paper trail. Moreover, she is the closest we have to a stealth candidate among the front-runners. As Tom Goldstein notes, “I don’t know anyone who has had a conversation with her in which she expressed a personal conviction on a question of constitutional law in the past decade.”

Casual observers assume that a dean of Harvard Law School and a domestic-policy aide in the Clinton administration must have a sizable body of work reflecting her legal views. But not so. Paul Campos has read all there is to read — and it’s not much:

Yesterday, I read everything Elena Kagan has ever published. It didn’t take long: in the nearly 20 years since Kagan became a law professor, she’s published very little academic scholarship—three law review articles, along with a couple of shorter essays and two brief book reviews. Somehow, Kagan got tenure at Chicago in 1995 on the basis of a single article in The Supreme Court Review—a scholarly journal edited by Chicago’s own faculty—and a short essay in the school’s law review. She then worked in the Clinton administration for several years before joining Harvard as a visiting professor of law in 1999. While there she published two articles, but since receiving tenure from Harvard in 2001 (and becoming dean of the law school in 2003) she has published nothing. (While it’s true law school deans often do little scholarly writing during their terms, Kagan is remarkable both for how little she did in the dozen years prior to becoming Harvard’s dean, and for never having written anything intended for a more general audience, either before or after taking that position.)

Campos goes so far as to suggest that Kagan is a Harriet Miers type – minus the cronyism. He concludes:

Indeed, the most impressive thing about Kagan is that she seems to have a remarkable ability to ingratiate herself with influential people across the ideological spectrum. … As a private lawyer, Miers, after all, had a fairly good excuse for having no public views on the great legal issues of our day. For most of the past 20 years, Kagan’s job has been to both develop and publicize such views. That she has nevertheless managed to almost completely avoid doing so is rather extraordinary.

What to make of this? Well, if a Republican president were to select a person with such a skimpy written record, conservatives would be (and were with the Miers nomination) rightfully worried. But do the same concerns — ideological infidelity, intellectual mediocrity — really apply to Kagan? Let’s be honest, it works differently for liberals. Very few are tempted to moderate their views and slide rightward, while Republican-nominated jurists (David Souter, John Paul Stevens) have a history of “disappointing” their side. And while no one has claimed that Kagan has achieved greatness in legal scholarship, the assumption — rightly or not — is that the dean of one of the top law schools in the country must have some intellectual wattage. Nevertheless, liberal legal activists might have reason to be a bit nervous — after all, would a justice who lacks judicial chops be the best choice to sway Justice Kennedy on those all-important 5-to-4 decisions? Is she really the one who is going to go toe-to-toe with Justice Scalia? There is some risk there if Obama were to choose a lesser known quantity than an appellate judge such as Diane Wood.

Nevertheless, there are clues as to Kagan’s legal mindset. Indeed, one such clue is also her primary shortcoming. Stuart Taylor explains:

The one issue that could slow down Kagan’s confirmation is her impassioned effort as dean to bar military recruiting on campus to protest the law banning openly gay people from serving in the military, which she called “a moral injustice of the first order.”

Kagan carried this opposition to the point of joining a 2005 amicus brief whose strained interpretation of a law denying federal funding to institutions that discriminate against military recruiters would — the Supreme Court held in an 8-0 decision — have rendered the statute “largely meaningless.” This helps to explain the 31 Republican votes against confirming her as solicitor general.

Well, that might be enough to lose her a batch of GOP Senate votes, but would it derail her nomination? Probably not. And it might just give enough comfort to the left that Kagan is a “safe” pick for them.

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Another About-Face?

In a remarkable and entirely welcome reversal, the Eric Holder Justice Department has retreated in its effort to pursue ethics charges against Bush administration lawyers who authored memos on enhanced interrogation. Newsweek reports on the internal probe by the Justice Department’s Office of Professional Responsibility (OPR):

While the probe is sharply critical of the legal reasoning used to justify waterboarding and other “enhanced” interrogation techniques, NEWSWEEK has learned that a senior Justice official who did the final review of the report softened an earlier OPR finding. Previously, the report concluded that two key authors—Jay Bybee, now a federal appellate court judge, and John Yoo, now a law professor—violated their professional obligations as lawyers when they crafted a crucial 2002 memo approving the use of harsh tactics, say two Justice sources who asked for anonymity discussing an internal matter. But the reviewer, career veteran David Margolis, downgraded that assessment to say they showed “poor judgment,” say the sources.

A draft report prepared in the waning days of the Bush administration by OPR was roundly criticized by departing Attorney General Michael Mukasey and his deputy Mark Filip. As I reported previously:

One former Justice official with knowledge of the matter says, “It is safe to say they had a number of concerns about the draft report both as to the timing and the substance” of the work by OPR. There is, this official reports, “institutional unease by senior career people” at Justice that good faith legal work may place attorneys in peril. “The department won’t be able to attract the best and the brightest. You really want lawyers who will give candid legal advice.”

But the question remains why, and why now, the department has come to its senses. Newsweek pointedly observes: “A Justice official declined to explain why David Margolis softened the original finding, but noted that he is a highly respected career lawyer who acted without input from Holder.” One can speculate that some group of career attorneys, with no love lost for the Bush administration, nevertheless found the prospect of disbarring two of their own for good-faith legal work to be a bridge too far in the partisan wars. And it may be that as the wheels come off the ideology-driven Holder-Obama approach to terrorism (e.g., widespread criticism of the handling of the Christmas Day bombing, reversal of the decision to try KSM in New York), this was one more ill-conceived crusade that the Obami did not need.

Finally, for those who like a bit of Washington intrigue, consider that the White House counsel was until recently Greg Craig, who in his pre-Obama days as an adviser to Sen. Kennedy found the Nicaraguan Sandinistas to be deserving of our support, later helped return Elian Gonzales to the clutches of Fidel Castro, and advised in some capacity Pedro Miguel González, the Panamanian terrorist the U.S. government believed to have murdered two American soldiers. (Yes, that’s a story in and of itself, one that the mainstream media found no interest in reporting.) Craig, often cited as an enthusiastic backer of the “Not Bush” anti-terror policies, is now gone, a victim of the failed attempt to close Guantanamo. Perhaps his departure has removed a powerful advocate for this sort of unseemly mischief. If so, good riddance.

Regardless of the reason, the news that Yoo and Bybee will not be hounded from their profession is positive and long overdue. (The potential loss of their professional licenses has been hanging over them for well over a year.) The notion that lawyers providing detailed legal analysis and a comprehensive review of existing law could later be strung up by state bar associations is nothing short of chilling. As I previously wrote, Ronald Rotunda, a professor of law at Chapman Law School and a specialist in ethics who was consulted by the Justice Department on the OPR’s investigation, found the entire effort to prosecute lawyers for their opinions baffling:

“I can’t imagine you would discipline someone who goes through everything methodically.” He explains, “If you don’t like the particular policies, then change the policies.” He draws an analogy with the attacks on free speech during the Vietnam war and McCarthy eras in which lawyers with particular views were demonized and threatened with loss of their professional licenses.

Well, perhaps some sanity has been restored to the Justice Department. If so, we can finally turn our attention from waging war against the prior administration to determining how to uproot the failed policies of this one. Then on to steering an approach to combating terrorism that is both effective and enjoys the support of the public.

In a remarkable and entirely welcome reversal, the Eric Holder Justice Department has retreated in its effort to pursue ethics charges against Bush administration lawyers who authored memos on enhanced interrogation. Newsweek reports on the internal probe by the Justice Department’s Office of Professional Responsibility (OPR):

While the probe is sharply critical of the legal reasoning used to justify waterboarding and other “enhanced” interrogation techniques, NEWSWEEK has learned that a senior Justice official who did the final review of the report softened an earlier OPR finding. Previously, the report concluded that two key authors—Jay Bybee, now a federal appellate court judge, and John Yoo, now a law professor—violated their professional obligations as lawyers when they crafted a crucial 2002 memo approving the use of harsh tactics, say two Justice sources who asked for anonymity discussing an internal matter. But the reviewer, career veteran David Margolis, downgraded that assessment to say they showed “poor judgment,” say the sources.

A draft report prepared in the waning days of the Bush administration by OPR was roundly criticized by departing Attorney General Michael Mukasey and his deputy Mark Filip. As I reported previously:

One former Justice official with knowledge of the matter says, “It is safe to say they had a number of concerns about the draft report both as to the timing and the substance” of the work by OPR. There is, this official reports, “institutional unease by senior career people” at Justice that good faith legal work may place attorneys in peril. “The department won’t be able to attract the best and the brightest. You really want lawyers who will give candid legal advice.”

But the question remains why, and why now, the department has come to its senses. Newsweek pointedly observes: “A Justice official declined to explain why David Margolis softened the original finding, but noted that he is a highly respected career lawyer who acted without input from Holder.” One can speculate that some group of career attorneys, with no love lost for the Bush administration, nevertheless found the prospect of disbarring two of their own for good-faith legal work to be a bridge too far in the partisan wars. And it may be that as the wheels come off the ideology-driven Holder-Obama approach to terrorism (e.g., widespread criticism of the handling of the Christmas Day bombing, reversal of the decision to try KSM in New York), this was one more ill-conceived crusade that the Obami did not need.

Finally, for those who like a bit of Washington intrigue, consider that the White House counsel was until recently Greg Craig, who in his pre-Obama days as an adviser to Sen. Kennedy found the Nicaraguan Sandinistas to be deserving of our support, later helped return Elian Gonzales to the clutches of Fidel Castro, and advised in some capacity Pedro Miguel González, the Panamanian terrorist the U.S. government believed to have murdered two American soldiers. (Yes, that’s a story in and of itself, one that the mainstream media found no interest in reporting.) Craig, often cited as an enthusiastic backer of the “Not Bush” anti-terror policies, is now gone, a victim of the failed attempt to close Guantanamo. Perhaps his departure has removed a powerful advocate for this sort of unseemly mischief. If so, good riddance.

Regardless of the reason, the news that Yoo and Bybee will not be hounded from their profession is positive and long overdue. (The potential loss of their professional licenses has been hanging over them for well over a year.) The notion that lawyers providing detailed legal analysis and a comprehensive review of existing law could later be strung up by state bar associations is nothing short of chilling. As I previously wrote, Ronald Rotunda, a professor of law at Chapman Law School and a specialist in ethics who was consulted by the Justice Department on the OPR’s investigation, found the entire effort to prosecute lawyers for their opinions baffling:

“I can’t imagine you would discipline someone who goes through everything methodically.” He explains, “If you don’t like the particular policies, then change the policies.” He draws an analogy with the attacks on free speech during the Vietnam war and McCarthy eras in which lawyers with particular views were demonized and threatened with loss of their professional licenses.

Well, perhaps some sanity has been restored to the Justice Department. If so, we can finally turn our attention from waging war against the prior administration to determining how to uproot the failed policies of this one. Then on to steering an approach to combating terrorism that is both effective and enjoys the support of the public.

Read Less

Legal Conservatives Endorse McCain

Steven Calabresi, Professor of Law at Northwestern University and co-founder of the premiere conservative legal organization, The Federalist Society, who previously backed Rudy has now endorsed John McCain. In an e-mail to me he explained:

I have endorsed Senator McCain and think he would be an excellent president because he is tough on foreign policy, committed to spending restraint which is the key to small government, and because he has consistently voted for good judicial nominees in tough fights like Robert Bork and Clarence Thomas. I am not troubled by his role as a member of the gang of 14 because I think the compromise he forged got us cloture on Roberts and Alito and produced three excellent lower court judges: Bill Pryor, Janice Rogers Brown, and Priscilla Owen.

Conservative legal scholar and former Solicitor General Charles Fried, another ex-Rudy supporter, also informed me that he “immediately, readily and enthusiastically switched to McCain” after Rudy dropped out.

These and future endorsements from other legal conservatives may help calm nerves of some in the base who remain suspicious of McCain’s commitment to appointing conservative judges.

Steven Calabresi, Professor of Law at Northwestern University and co-founder of the premiere conservative legal organization, The Federalist Society, who previously backed Rudy has now endorsed John McCain. In an e-mail to me he explained:

I have endorsed Senator McCain and think he would be an excellent president because he is tough on foreign policy, committed to spending restraint which is the key to small government, and because he has consistently voted for good judicial nominees in tough fights like Robert Bork and Clarence Thomas. I am not troubled by his role as a member of the gang of 14 because I think the compromise he forged got us cloture on Roberts and Alito and produced three excellent lower court judges: Bill Pryor, Janice Rogers Brown, and Priscilla Owen.

Conservative legal scholar and former Solicitor General Charles Fried, another ex-Rudy supporter, also informed me that he “immediately, readily and enthusiastically switched to McCain” after Rudy dropped out.

These and future endorsements from other legal conservatives may help calm nerves of some in the base who remain suspicious of McCain’s commitment to appointing conservative judges.

Read Less




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