Eve of Marathon Day

Today’s NY Times had this interesting op-ed, where this Princeton history prof writes on the inspiring story of how Lisbon, Portugal, recovered from a devestating earthquake 250 years ago – a story of strong leadership and foresight that may inspire a certain devestated American city in the Gulf coast region.

Fascinating article on the painted ghost signs of NYC – remnants of advertising on the brick walls of old buildings, evoking the era of corsets or, at least, a different NYC. The article notes the faded Scribners publishing sign in midtown. Where I work, downtown, you can see one of these painted signs (I think it dates to the early 1900’s, if not the late 1800’s). Too bad theyre not protected by landmarks law, but they do remind us that NYC’s an old kind of town.

These articles in the news prognosticating as to what kind of Supreme Court justice Judge Alito might be – well, they’re just confusing. There’s no question that he’s a conservative, but would he be a radical revolutionary conservative, or a gradualist conservative (i.e., more incrementally, such that in thirty years, you won’t even realize that radical change occurred – for better or for worse). And, listening to the politicians talk like they know what they’re talking about (“We don’t want an activist judge” or “Judges don’t legislate…”) is also irritating. As this NY Times article notes, what is ideology? Is it bad, good, or what? And so:

The debate over what criteria senators should use in deciding how to vote on Supreme Court nominees is almost as old as the court itself, because the Constitution offers the scant instruction that justices should be appointed “with the advise and consent of the Senate.”

Should education, temperament, experience and integrity be the sole determining factors? Or should ideology, a nominee’s political leanings and predictable stands on the hot judicial disputes of the day, also have a major role? [….]

The nomination poses questions about the unwritten rules to decide on a confirmation. No one has questioned Judge Alito’s knowledge, experience or intellect. But if he succeeds Justice Sandra Day O’Connor in what has been a swing seat on critical issues, his staunchly conservative views could have a profound effect on the court and the nation.

“It presents the issue in a very crystalline form,” said Richard D. Friedman, a law professor at the University of Michigan. “Alito is superb on all the measures of qualifications. All that’s left to oppose him on is ideology.”

Professor Friedman argues that ideology should not have a dominant place in the Senate consideration.

“The aggressively ideological opposition distorts the confirmation process,” he said. “Treating it as a political matter may encourage a view of the court as nothing more than another political institution.”

But Lee Epstein, a professor of law and political science at Washington University, said that to expect senators to engage in an apolitical confirmation process was unrealistic.

“If their constituents think ideology is a good reason to vote against a nominee,” Professor Epstein said, “they’re going to vote against him.”

Of the 156 Supreme Court nominees since the court was created, 35 have been rejected or withdrawn, according to the Congressional Research Service. Most of the 35 were clustered in times of turmoil like the Civil War and Reconstruction, when politics often trumped qualifications.

In 1869, more than a century before bloggers and cable pundits would turn up the heat on nominees, President Ulysses S. Grant nominated Ebenezer Rockwood Hoar, widely considered one of the nation’s top legal minds. After seven bitter weeks, the Senate voted him down, 33 to 24, in part because he had pressed for the selection of federal judges on the basis of legal talent rather than political allegiance.

No nominee has been voted down since Robert H. Bork, President Ronald Reagan’s conservative nominee in 1987. Harriet E. Miers withdrew last month because of criticism of her credentials, not her views.

A statistical model developed by Professor Epstein and her colleagues, which incorporates newspaper editorials and other sources, suggests that confirmations have steadily grown more polarized over ideology in recent decades.

Since 1937, her model shows, the importance of nominees’ qualifications has not changed. But ideology took on greater importance beginning in the 50’s, with Brown v. Board of Education and conservative criticism of the Warren court. Ideology “exploded” after the Senate rejected Mr. Bork, Professor Epstein said.

The bitterly contested confirmation hearings for Justice Clarence Thomas, who was accused of sexual harassment by a former employee, Anita F. Hill, played out before a rapt national television audience.

To some, the court’s role in settling the 2000 presidential election seemed to shatter once and for all any notion that it occupied some antiseptic zone untouched by politics. [….]

Professor Epstein and other legal scholars are wary of some of the terms thrown about in this debate. On Roe v. Wade, the abortion ruling that has stood as a precedent since 1973, she asked, would not a “judicial conservative” be a person who would uphold it and a “judicial activist” one who would overturn it? That is the opposite of the way such terms are often used.

“I told my class the other day I have no idea what judicial activism is,” Professor Epstein said. “Maybe the best definition of a judicial activist is a judge you don’t like.”

[emphasis added; Prof. Epstein makes an excellent point!]

profile on Mary Wittenberg
, the president and CEO of the NY Road Runners, who run the NY Marathon (pun not intended). She was able to combine her legal career and love of sports to get into the sport business, and got out of corporate firm life for a better quality of life. Nice.

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