Legal Commentary

Here, for your non-edification, are a couple of articles that appeared yesterday.  In the first, Noam Scheiber discusses how Harvard beat Yale in the Democratic Party.  He argues that the differences in behavior between the Clinton and soon-to-be Obama administrations in the transition period reflects, in part, "the elite institutions that socialized them -- namely Harvard and Yale, [and] their respective law schools."  He trots out all the usual anecdotes about the two law schools, and a few I hadn't heard before: Charles Reich saying that his property course should be called "the intellectual, moral, ethical, and political implications of property ownership in America" -- more fun than the RAP, I suppose; Obama urging Roberto Unger to "bring the theorizing back down to earth"; the construction of mock issues of the HLR to appease Erwin Griswold.  I always enjoy this sort of thing.  Still, this is decidely one of those cases where the plural of anecdote is not data, and the whole piece comes off as weakly supported.

In the New York Times yesterday, Mary Frances Berry writes an op-ed that moves beyond weak argument and is closer to being insidious and dangerous.  She writes that "President-elect Obama should abolish the now moribund Commission on Civil Rights and replace it with a new commission that would address the rights of many groups, including gays."  Her reasons for concern with the civil rights of gays and lesbians are absolutely fine with me.  Still, one might be surprised to hear one who has been so long associated with the Commission on Civil Rights arguing for its abolition.  What's the reason?  It has nothing to do with any argument that the Commission is unable under its existing authority (such as it is) to say anything about gay rights.  No, the problem is that "[t]he Commission on Civil Rights has been crippled since the Reagan years by the appointments of commissioners who see themselves as agents of the presidential administration rather than as independent watchdogs.  The creation of a new, independent human and civil rights commission could help us determine our next steps in the pursuit of freedom and justice in our society."

Well, there is no doubt that the makeup of the Commission has changed significantly since Berry's day; and the appointment by the outgoing administration of individuals who see themselves as serving the political agenda of the president rather than their offices would come as no surprise.  On the other hand, I doubt that characterizes all the current commissioners; obviously what bothers Berry in large measure is not that they are not independent, but that their agenda and views are different.  Still, it strikes me as a pretty dubious response to the alleged capture of an independent commission to shut it down and recreate it with new commissioners, presumably ones more to her liking.  I hope Berry has not spent any time complaining about executive branch abuses in the past eight years, because obviously her differences lie only with the ends, not the means.