Is Affirmative Action Doomed?
October 17, 1994
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.
August 08, 1994
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.
July 11, 1994
Jeffrey Rosen offers his take on the prospective Justice Breyer.
The Craftsman and the Nihilist
July 04, 1994
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.
June 06, 1994
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.
May 16, 1994
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.
May 02, 1994
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.
May 02, 1994
It seems ungenerous, perhaps, to dissent from the praise that has been lavished on Harry Blackmun since he announced his retirement from the Supreme Court last week. Blackmun was, as President Clinton said, a good and decent and humane man, whose compassion suffused his work and his life. Unlike some of his colleagues, he took his job seriously until the very end, and rather than flitting about to dinners and receptions, he worked long and lonely hours poring over the facts of the most obscure cases and agonizing about the fate of the parties.
April 11, 1994
Can the state of New York, by drawing political boundaries along religious lines, establish a municipal theocracy governed entirely by Satmar Hasidim? This is the constitutional question the Supreme Court is likely to avoid when it takes up the Kiryas Joel case on March 30. Instead, the justices will answer a related but less basic question: Can New York grant the Satmar village all the powers of a religiously segregated public school district and authorize it to educate handicapped Hasidic children at state expense? The missed opportunity is unfortunate.
April 04, 1994
Unless a Supreme Court nomination falls from the sky, federal judges are rarely evaluated by cool-eyed critics. And so my heart leapt the other day when Federal Express brought a 126-page report from the Chicago Council of Lawyers reviewing the performances of the fifteen judges on the Seventh Circuit Court of Appeals. But the lawyers have an ax to grind. Their oddest conclusion is that Richard Posner and Frank Easterbrook, two of the most celebrated judges in the country, are in fact two of the least professional judges on the court.