Hugo Black: A Biography by Roger K. Newman (Pantheon, 741 pp., $30) On February 17, 1960, at New York University, Justice Hugo Black defended his judicial philosophy against the sneers of Felix Frankfurter and Learned Hand. "Some people regard the prohibitions of the Constitution ... as mere admonitions which Congress need not always observe," said Black in backhanded response to Hand's lectures at Harvard two years earlier. This approach, which "comes close to the English doctrine of legislative omnipotence," Black could not accept.
I flew to Oregon to pick pears with migrant workers. We had a month to kill, and wanted an adventure that combined rugged physical exertion with a hint of social conscience. But the expedition ended badly. When we arrived in Medford, suspicious foremen, convinced we were muckrakers or immigration agents, insisted they had no work. After a week of rejections, we were reluctantly hired by a small company, and soon discovered why we were the only American citizens in the field.
The New Republic does not include footnotes, which is unfortunate in the case of Murray and Herrnstein. For by examining the citations in Chapter 13 of The Bell Curve, from which much of this article is adapted, readers can more easily recognize the project for what it is: a chilly synthesis of the findings of eccentric race theorists and eugenicists. Murray and Herrnstein cannot be held to account for all the views of these scholars. It is useful, however, to examine the sources, which are disclosed in their book but not in these pages. Murray and Herrnstein's discussion of white-Asian i.q.
On September 7 Deval Patrick, the assistant attorney general for civil rights, filed a brief in a New Jersey case arguing that it is legal to fire a white teacher over a black teacher purely because of her race. And on August 19 a federal district judge in Austin, Texas, held that aspects of the affirmative action program at the University of Texas law school are unconstitutional. One or both of the cases may reach the Supreme Court before long. Each on its own could revive the debate about racial preferences and ventilate their more troubling assumptions.
With Honors, Alek Keshishian's movie about four Harvard roommates who learn charity and humility by taking in a homeless man closed recently after an aborted run. I wish it had done better; for Keshishian and I were college classmates, and he appears to have borrowed his plot from my life. In the movie, a cuddly bum named Simon (played by Joe Pesci) finds the only copy of an honors thesis written by Monty, a Harvard senior, and trades it back for food and lodgings.
The publication of Gerald Gunther's biography of Learned Hand is a canonical sort of event. Hand never made it to the Supreme Court, but he is generally ranked, as Gunther emphasizes at the beginning of his book, in the more rarefied company of twentieth-century judicial deities that includes Holmes, Brandeis and Cardozo.
By nominating Stephen Breyer to the Supreme Court, the Democrats have, however reluctantly or inadvertently, weaned themselves from Warrenism at last. Over the past four decades, as the excesses of the Warren Court provoked the equally ideological excesses of the Rehnquist Court, liberals and conservatives have accused each other of politicizing the judiciary.
Last week's j.e.b. decision should have been the dramatic highlight of an otherwise dull Supreme Court term, especially for those who have been waiting for Ruth Bader Ginsburg to find her voice. The outcome of the case, which forbids prosecutors from peremptorily excluding jurors on the basis of sex, was never really in doubt.
George Mitchell's withdrawal of his Supreme Court candidacy leaves the White House with a list of familiar names, many of them left over from the search that ended with the selection of Ruth Bader Ginsburg last year. Stephen Breyer of Boston and Amalya Kearse of New York are back in the running (see "The List," TNR, May 10, 1993). The leading contenders this week, however, seem to be Jose Cabranes of Connecticut, Drew Days, the U.S. solicitor-general, and Richard Arnold of Arkansas. While Days and Cabranes are able legal thinkers, Arnold is, on the merits, the best person for the job.