Legal Commentary

David Fontana (GW) argues in The Chronicle of Higher Education that President Obama, Sonia Sotomayor, and Elena Kagan all were part of the postradical generation of law students at Harvard and Yale. Fontana makes two points from this. First, it explains the reputation of all three as more-moderate conciliators, who were influenced either by more-conservative faculty members or liberal-but-not-radical (i.e., non-CLS) faculty members. avid argues that most of the radical CLS crowd had left Harvard and Yale by the mid-to-late 1980s (when Obama and Kagan were there).

Second, David argues this explains why Obama has not been appointing more strongly, "theoretically ambitious," "truly liberal" judges--there are not enough of them, particularly among the legal professoriate. Many of today's liberal law professors (he cites Mark Tushnet, Robert Post, and Larry Kramer) have shifted to the popular constitutionalism movement, arguing that courts should stay out of the judicial-review business--a theoretical position that would not play well for a judicial nominee. Alternatively, many liberals are doing quantitative work, which speaks less to the work that judges do and thus makes them less attractive as judicial nominees. And even straight-up liberal doctrinalists largely saw their arguments fail in the face of resistance from the legal system, especially now that it is dominated by Republican-appointed judges. Necessarily implicit for this argument to work, I think, is that not only are law faculties not breeding grounds for liberal judges, but they are not producing theoretically ambitious law students who could be strong liberal judges.

This is an interesting take and worth a read. I am not sure of the empirics of the first point, although it makes some sense, given the timing of the departures of many CLS folks from Harvard and Yale and the general shift in CLS since its early days. I am not convinced on David's second point for several reasons.

First, there are a lot of us liberal doctrinalists out here who do not buy all-in to popular constitutionalism and who still believe in a liberal vision (what David calls the "Old Left") of the Constitution enforced in the courts. And students are learning that vision in law school. It may not overlap with the same vision of judicially enforceable "positive" constitutional rights (to education, health care, wages) as in the 1960s. But there is a vision of broad individual negative rights and broader congressional power to create positive rights. It seems to me Obama could find a whole bunch of these folks in and out of law schools.

Of course, Obama's highest-profile attempt thus far has been the nomination of Gordon Liu to the Ninth Circuit, which has run into a ton of political controversy and faces a potential Republican filibuster. But this suggests that it really is about the politics rather than an absence of liberal constitutional theoreticians and scholars. For better or for worse, anyone more liberal than the current left of the current Court is tagged as "outside the mainstream," creating the "exceptional circumstances" that justifies a filibuster even among the Gang of 14.

Second, the Republicans recognized that the way to change constitutional law was to change the composition of the courts, which they have done over the past 30 years. That explains, in part, why the liberal doctrinal vision has heretofore failed. Of course, the way forward is to put more of these liberal doctrinalists onto the courts and see where things go in the next 30 years. Otherwise, this seems circular--many liberal constitutional arguments failed, so we have no liberal law professors and no pool for ambitiously liberal judges who might accept those arguments.

Third, I am not sure why the popular constitutionalists have, through their arguments, disqualified themselves from consideration for the judiciary. How many conservatives were appointed despite (or likely because of) a track record of arguing against "judicial activism" and judges overstepping their bounds? Why not in reverse?

The whole piece is worth a read.