Law & Jurisprudence

WASP culture is dead! Long live WASP culture!

Solicitor General Elena Kagan's nomination to the Supreme Court says a whole lot about the state of white Anglo Saxon Protestant culture in the U.S., but it's not what you think. If her appointment is approved, there will be no white — or any other color for that matter — Protestant on the court. Some joke that this means it's high time to carve out a WASP seat on the bench. Others suggest it spells the end of WASP dominance in general.

“There’s about to be a backlash against the Ivy League lock on the court,” explained David Brooks this week. In fact, it has already begun. From left to right, just about the only thing that liberals and conservatives have agreed upon since Elena Kagan’s nomination is that there are too many pointy-heads on the Supreme Court. “I think it would be good to have a nominee that stood up against powerful interests like the elite law schools, which are a powerful interest in the U.S.

In 1971, the New York Times got a hold of a secret Defense Department report on the Vietnam War and began to publish excerpts. The Nixon administration promptly sought to enjoin the Times and stop publication. The leaker, Daniel Ellsberg, was subject to a CIA-aided effort to gain access to his medical files and was also prosecuted for espionage, theft, and other crimes.

So it’s Elena Kagan. Is anyone surprised? I sometimes think Barack Obama has developed a computer program for deciding who to nominate for top jobs. His choices are always so damn rational. When he needed a running mate, he began with his greatest political vulnerability (his weakness among aging lunch-pail Democrats) multiplied it by his greatest governing vulnerability (his lack of experience in Washington) and voila: Joe Biden. It didn’t matter that, given Obama’s legendary discipline and Biden’s legendary indiscipline, the two men weren’t natural pals.

I hope Barack Obama puts another woman on the Supreme Court. And this time, I hope it’s a woman with kids.

President Obama is about to nominate someone for the Supreme Court. On the day he or she is unveiled, conservatives will announce that they are approaching the selection with an open mind. Ten minutes later they will declare, more in sadness than anger, that the nominee has the judicial philosophy of Chairman Mao and the temperament of Dennis Rodman. Ten minutes after that, liberals will rise en masse to defend the nominee as wise, brilliant and humane, a person who restores our faith in humankind. And the kabuki theater will continue like that all summer long.

On April 27, Jeff Shesol discussed his new book, Supreme Power: Franklin Roosevelt vs. the Supreme Court. Shesol, former Speechwriter for President Bill Clinton, was joined by Walter Dellinger, former Acting Solicitor General. They were introduced by Andrés Martinez, Director of New America's Bernard L. Schwartz Fellows Program.

As John Paul Stevens retires from the Supreme Court after a long and distinguished career, it's worth remembering that he was a complicated and, in many respects, very admirable figure, and not just because of his legendary personal charm. Though considered the Court's leading liberal jurist, Stevens embraced a number of libertarian ideas.

We’ve blogged now and then about alternatives to malpractice litigation and are particularly interested in approaches that can address the needs of injured patients and families while also advancing overall patient safety and quality of care. I wrote a piece the other day for Miller-McCune, a California-based magazine, focusing on the “disclose and apology”model. What struck me as I reported the article is that it isn’t (as many articles on this topic have suggested) about apologizing per se. It’s about finding and fixing the root of the problem. As I wrote:

Disclose and apologize doesn’t mean the hospitals or doctors say to a patient or family, “Something went wrong. We’re sorry. Here’s a check. Ciao.” It means, or should mean, they say something like, “You had a bad outcome. We are sorry. We will try to help you while we investigate what happened. If it was our fault, we will take financial and moral responsibility. We will do our best to make sure it never happens again to anyone else.”

U.S. Supreme court confirmations are a good time to reflect on some basic precepts of our "separation of powers" system of government. Like previous nominees, Sonia Sotomayor faced the Senate judiciary committee's firing squad, as partisan tensions played out over lifetime appointment to a court that has no retirement age. At 54 years of age, Sotomayor, whose nomination the full Senate votes on today, easily could serve for three decades.