The Volokh Conspiracy

Elie Mystal, who graduated from law school at the same time as I did, has bad memories of Elena Kagan from when he had her for Civ Pro as a 1L. [UPDATE: Read The Whole Thing, the commenters remind me to say.] For what it’s worth, here are my own impressions of Elena Kagan:

• I had Kagan for Administrative Law in Spring 2002. She showed sound judgment early on by giving me a high grade in the class, and wrote me a very gracious letter afterwards (which no doubt will fetch a high price on eBay) in which she added, by hand: “I loved everything you said in class. Thanks for making things interesting. EK”.

Slightly more substantively:

• I enjoyed her class a lot, and she was very good at eliciting all the relevant points of view through questioning. I recall saying some fairly libertarian stuff in the class, which she welcomed.
• My scribbled Admin notes for Tuesday, February 12, 2002, say the following. (This was after a discussion of Myers, Humphrey’s Executor, and the “unitary executive theory.”) “Kagan thinks this is all total garbage — so manipulable. Pitch for honesty: everyone needs one area where policy views ≠ constitutional views. Kagan is a total unitarian for policy reasons. But doesn’t think this is a constitutional command. The constitution says so remarkably little that to take this issue away from political decisionmaking is a mistake — courts shouldn’t make these decisions.”
• As has been well documented elsewhere, as dean, Kagan was a good friend (though not a fellow traveler!) of the Federalist Society and of conservative/libertarian professors.
• In particular — and despite her presumably pro-gun-control views (see the David Kopel post below), she was a good friend of the HLS Target Shooting Club, which I founded in Fall 2001 and was the president of for two years. At this link to my old web site for the club, you can see a link (now defunct) to the video of an April 8, 2003 debate on gun control, co-sponsored by my club, and featuring Eugene, Alan Dershowitz, and Dennis Henigan of the Brady Center. Kagan was glad to agree to moderate — this was before she became dean — and her appearance at the debate was one of her first acts after becoming dean.

So there you have it. I know very little first-hand about her actual policy views, except for the snippet above about her views on the unitary executive theory; otherwise, she’s a great person, a great professor, (as far as I was in a position to experience) a great dean, and a friend of campus conservatives and libertarians at a time when, unfortunately, you can’t take that for granted.

Charles Fried tells part of the story about Elena Kagan’s appearance at a Federalist Society dinner at Harvard a few years ago:

In February 2005 the student branch of the Federalist Society (a group founded in the early ’80s to explore and promote conservative and libertarian perspectives on the law) held its national jamboree at Harvard Law School. At the banquet in a downtown hotel, Kagan rose to speak the host institutions’ words of greeting to the thousand or so federalists assembled from every corner of the country. She was greeted by a long and raucous ovation. With a broad grin and her unmistakable Upper West Side twang, the former Clinton White House official responded: “You are not my people.” This brought the dark-suited crowd of federalist students to their feet in a roar of affectionate approval.

Fried leaves out enough of the story that it becomes incomprehensible. Why would the Federalists cheer someone seemingly insulting them by saying, “”You are not my people”? What Fried forgot (or chose to omit) were Kagan’s two lines immediately before her disclaimer.

On the night of Fried’s story, in a very large banquet room I was sitting next to Frank Easterbrook, perhaps 15 or 20 feet from Elena Kagan. She began her welcome by booming out:

“I LOVE the Federalist Society!”

Kagan paused for emphasis and then repeated,

“I LOVE the Federalist Society!”

As I recall, after applause Kagan’s next line was:

“But, you know, you are not my people.”

The crowd indeed loved it. But without Kagan’s opening lines, Fried’s affectionate account in the New Republic makes little sense.

Kagan then went on to explain why she loved the Federalist Society — chiefly, its contributions to the intellectual lives of American law schools and its commitment to open debate. She talked about what liberals had learned from the Federalist Society and about the liberal American Constitution Society trying to copy its methods and success.

Years ago, I asked an administrator at the Federalist Society whether Kagan’s speech had been recorded and he said that he didn’t think so.

UPDATE: In a 2009 interview, Elena Kagan makes her praise for the Federalist Society sound almost like an afterthought, rather than her opening statement:

MSNBC, partially quoting an NPR interview: While at Harvard, received a standing ovation from the conservative Federalist Society. “I sort of looked out at them, and I said, ‘You are not my people, and everyone laughed. And then I said, ‘But I love the Federalist Society, and I think that that’s when I got a standing ovation.” (NPR interview, 12/22/09)

I remember at the time being struck by the boldness and seemingly genuine praise of her exclamation, “I LOVE the Federalist Society!” Yet I was wondering if it was just pandering until she uttered the line about the Federalists not being her people — a qualification necessary for her praise to be credible to me.

Too bad there’s probably no tape. Memories are notoriously imperfect.

[UPDATE: I checked my recollection with a Federalist officer and law professor present on the occasion and he remembered it exactly as I remember it: Kagan opened with "I LOVE the Federalist Society! "I LOVE the Federalist Society!" She followed with a statement that "you are not my people."]

University of Colorado Law Professor Paul Campos decries what he calls “the recent conversion of so many Federalist Society types to the virtues of aggressive judicial review of legislative enactments” in the wake of the enactment of Obamacare. Campos’ claim of a “recent conversion” could hardly be more wrong. If there’s one thing that most “Federalist Society types” have been consistent about over the years, it’s judicial enforcement of, well, federalism. For years, many of us have repeatedly argued for stronger judicial enforcement of the limits to Congressional power under the Commerce Clause and the Tax and Spending Clause, the two provisions most commonly cited as constitutional authorizations for the Obama health care bill. That’s why we defended decisions such as United States v. Lopez and United States v. Morrison and decried cases such as Gonzales v. Raich.

For example, I’m a member of the Society and also sit on the Executive Committee of its Federalism and Separation of Powers Practice Group, the branch of the Society that most directly focuses on these issues. I’m also a constitutional law scholar who writes extensively on federalism. And I have consistently argued for strong judicially enforced limits on congressional power in both fields, including with respect to policy initiatives favored by Republican administrations, such as the War on Drugs, the federal ban on partial birth abortion, and others. Most of the other people who are members of the Practice Group leadership hold at least roughly similar views to mine on these issues. The same goes for the majority of the Federalist Society-affiliated conservative and libertarian scholars who have written on these matters for the last 15-20 years or longer.

On these questions, as on many others, there is a diversity of opinion in Fed Soc circles and among right of center legal scholars. There are a few (e.g. – Lino Graglia) who oppose nearly all judicial review, including on federalism issues. Overall, however, the need for strong judicial enforcement of federalism limits on congressional power is one of the issues that most unites conservative and libertarian legal scholars and jurists. It brings together such otherwise disparate people as social conservative lawprof John Eastman (longtime chair of the Practice Group Executive Committee), and libertarians like co-blogger Randy Barnett and myself.

Campos may be on to something in criticizing loose conservative political rhetoric against “judicial activism,” which sometimes makes it seem as if conservative Republicans are opposed to virtually any strong form of judicial review. I myself have argued that “judicial activism” is not an analytically useful concept. One of the problems with the term is that it can refer to either judicial rulings that overrule the decisions of the political branches or those that impose the judge’s policy preferences on the law. Under the latter definition, a decision upholding an unconstitutional law that the judge favors on policy grounds is just as “activist” as one that strikes down a constitutional law because the judge opposes it. In my view, most conservatives who attack “judicial activism” mean to criticize judges’ imposition of their policy preferences, not judicial overruling of statutes as such.

Be that as it may, most “Federalist Society types” have been pretty consistent in supporting judicial enforcement of federalism for a long time now. For many of us, the need to keep federal power within constitutional bounds is a big part of why we became Federalist Society types in the first place.

Fourth installment in a five-part series on Silverglate’s book, Three Felonies a Day: How the Feds Target the Innocent.

In a discussion on WAMU Radio yesterday, host Kojo Nnamdi noted that vagueness in the federal criminal law has recently made “strange bedfellows” of the political left and right. This same “emerging consensus” was also the subject of an insightful November 23 article by Adam Liptak, The New York Times’ Supreme Court reporter.

What has occasioned this coming together? As I mentioned here on Monday, individuals and organizations of all political stripes are realizing the danger to all when prosecutors are empowered with exceedingly broad and—worse—hard-to-define federal laws. A diverse coalition of groups—including the Heritage Foundation, the Federalist Society, the Cato Institute, the National Association of Criminal Defense Lawyers, and the ACLU, among others—have been sounding a clarion call against this species of executive expansion. They have pointed out that, from webmasters to fund managers, no segment of civil society is safe.

But this phenomenon is not new. As I document in Three Felonies a Day, the proliferation of vague laws—and prosecutions under them—began in the mid-1980s. Why has widespread recognition, especially from the American public, taken so long?

For one thing, the Department of Justice has a very effective public relations machine. With every major indictment, there is a press release and, not infrequently, a press conference that major national media typically attend with bated breath. Flanked by FBI, IRS, DEA, SEC, and members of the other myriad supporting agencies, prosecutors feed reporters the government’s side of the case, often a matter of hours after a hapless defendant has been rousted out of bed and paraded in the infamous “perp walk” (much to the delight of press photographers who have been tipped off in advance). At the end of this prejudicial circus-like performance, prosecutors often refuse to answer media questions on the ironic ground that they are bound by the federal court’s rules against pre-trial publicity and, in any event, they do not want to cause the public (especially potential jurors) to prejudge the case!

But the press corps itself is ultimately responsible for the one-sided coverage of what I call “three-felonies-a-day” cases (a reference to my new book, Three Felonies a Day: How the Feds Target the Innocent). The fact is that there is an unseemly relationship between the Department of Justice and much of the news media. While in some areas the press and the DOJ have developed an appropriately adversarial, or at least skeptical relationship, by and large the DOJ plays the press corps like a fiddle.

Consider the Houston Chronicle’s slanted coverage of the arrest, indictment, and trial of former Enron President Jeffrey Skilling, convicted in May 2006 on charges of conspiracy, securities fraud and depriving the now-defunct Houston-based energy company of his “honest services.” Vitriol for Skilling was not limited to the Chronicle’s opinion pages; news articles, sports stories, and columnists vilified Skilling well before his day in court. Despite affirming his conviction, the Fifth Circuit Court of Appeals ruled that the media coverage created a community prejudice against Skilling. The three-judge panel wrote (PDF) that the Chronicle published “nearly one hundred…personal interest stories in which sympathetic individuals expressed feelings of anger and betrayal toward Enron,” and that even “the Chronicle’s ‘Pethouse Pet of the Week’ section mentioned that a pet had ‘enjoyed watching those Enron jerks being led away in handcuffs.’” (Emphasis in original) In Houston, the so-called Fourth Estate played the role of prosecutorial lapdog.

The Supreme Court decided on October 13 to review the Skilling case as part of its trio of honest services cases this term, and one of the issues on appeal is the extent to which jury prejudice affected the verdict. But, if the previous hearing on honest services is any indication, the justices will use the Skilling case to look at the broader constitutional due process question surrounding the infamously vague 28-word fraud provision. Oral argument is set for March 1.

Another public figure, disparaged in the public eye even before he was indicted (much less convicted) will be intently watching the high court’s decisions in all three honest services cases. The prosecutor’s press machine has been so effective that even mentioning his name causes some to chuckle with derision. But the case of former Illinois Governor Rod Blagojevich deserves a closer look.

Illinois U.S. Attorney Patrick Fitzgerald framed the case, from the start, as an altruistic Department of Justice mission to clean up state and local politics. At a December 9, 2008 press conference, held shortly after Blagojevich’s early-morning arrest on a variety of political corruption charges, Fitzgerald announced his most sensational allegation: The governor deprived Illinois’ electorate of his “honest services” when he sought to sell to the highest-bidder the Senate seat vacated by Barack Obama. The headlines were, predictably, nationwide, in large type above-the-fold (or the on-line equivalent).

This discovery from the wiretap and bug planted by Fitzgerald’s agents in the governor’s office and home was deemed so threatening to the public weal that the prosecutors, rather than give the plot time to play itself out and result in an outright sale-and-purchase of the Senate seat, pulled the plug and arrested Blagojevich before any deal was consummated—or so the nation was told. At the press conference, Fitzgerald informed a rapt audience of newsmen that he had to act precipitously to prevent the governor from carrying through this “most appalling conduct” that was the pinnacle of the governor’s “political corruption crime spree.”

So the prosecution is for a “conspiracy,” or plan, to sell the Senate seat, rather than for an accomplished act. Without having to show that Blagojevich actually sold the Senate seat, and with the notoriously vague federal conspiracy law, securing a conviction is much easier. In a sense, no real crime is required. Yet neither the media nor the public questioned Fitzgerald’s motives for failing to wait until the Obama seat was actually sold. (Had such a sale taken place, of course, the Senate would surely not have seated the governor’s nominee. Hence, there was no good reason for Fitzgerald to fail to wait for the completed crime—except, as I suggest, that no such sale was in fact going to take place.)

Blagojevich has some quite different perspectives on his pre-arrest political machinations, which he sets out in a remarkable, even if unbalanced and in some places downright silly, memoir published after his indictment, entitled The Governor. The former governor claims that his motive for choosing Obama’s successor had to do with getting his political enemies out of the way of his legislative agenda. If Blagojevich’s account is to be believed, Fitzgerald pulled the plug prematurely not to serve the people of Illinois, but to save his own case. Had the matter been allowed to play itself out, says the former governor, it might have become increasingly obvious that what Blagojevich was doing was perfectly legal—even if unsavory to some refined sensibilities—Chicago politics. Indeed, Blagojevich tried, without success, to obtain the full, unedited eavesdrop tapes to play at his impeachment trial, claiming they would exonerate him, but was unable to do so due to Fitzgerald’s objection. At the very least, the tapes might have portrayed conduct deemed lawful, or at least acceptable under Illinois state law.

Blagojevich’s benign (even if unrefined) political explanation is lent credence by something Fitzgerald said during the December 2008 press conference. He noted that an Ethics in Government Act was pending in Illinois, scheduled to take effect January 1, 2009 that, according to Fitzgerald, “would bar certain contributions from people doing business with the state of Illinois.” And so, explained Fitzgerald, Blagojevich and his cronies “were working feverishly to get as much money from contractors, shaking them down, pay-to-play before the end of the year.” In other words, Fitzgerald appeared to be conceding that at least some of Blagojevich’s conduct was in accordance with state law as it stood at the time. Not a single reporter, however, pointed out that this “crime spree” was apparently occurring before the new ethics laws were enacted, and that the governor’s actions therefore conformed to and were permissible under state law.

Were these “crimes” the work of an arch criminal, or merely the machinations of a master political opportunist doing what Illinois law allowed? While it is true, of course, that the honest services fraud statute enables the feds to prosecute state officials for conduct allowed under state law—this is one of the statute’s problems that the Supreme Court presumably will rule upon in the upcoming cases—it is, or should be, difficult to brand a politician as on a “political corruption crime spree” if he is scrupulously adhering to the statutes and codes duly enacted by a sovereign state legislature.

Until we have a more skeptical press corps, the public discussion of whether and how federal prosecutions on the basis of vague statutes should be reined in is going to have to be conducted without the essential participation of an educated citizenry. This Fourth Estate cheering gallery is not what Thomas Jefferson envisioned.

I recently renewed my membership in the Federalist Society, and got a mailing asking to sign up with the Fed Soc Pro Bono Center. I was only vaguely aware of this organization’s existence, even though it is a potentially important effort to address the most important shortcoming of conservative and libertarian public interest law. Perhaps it will be more successful in that effort, if more people learn about it.

Over the last 30 years, conservative and libertarian public interest firms such as the Institute for Justice, the Center for Individual Rights, and the Pacific Legal Foundation have mounted a strong challenge to the previously dominant legal left, and won some important legal victories for property rights, economic liberties, and limits on government power. However, right of center public interest law suffers from a key weakness: the paucity of lawyers available to conduct follow-up litigation to enforce favorable precedents. Even the most important federal and state supreme court decisions don’t change the legal landscape all by themselves; they usually require extensive follow-up litigation to make sure that government officials comply and that their principles are enforced in other cases where similar issues come up. Often, the people victimized by government violations of constitutional rights are poor, politically weak, or unable to engage in protracted litigation to vindicate their rights. This is true in the area of property rights, and many others of interest to libertarians and conservatives. Left-liberal scholars and activists have long understood this crucial lesson, and they have created an extensive network to facilitate follow-up litigation to enforce their high court legal victories. In almost every major law firm, there are lawyers who do small-bore pro bono cases on behalf of various left-wing causes. These cases often build on and enforce favorable appellate decisions.

By contrast, conservatives and libertarians have been slow to grasp this point and act on it. That isn’t just my opinion. It’s also the view of Steven Teles, author of the leading academic work on right of center public interest law, and also of prominent leaders of conservative and libertarian public interest organizations, such as Chip Mellor, President of the Institute for Justice and the leaders of CIR (interviewed in Teles’ book).

The Fed Soc Pro Bono Center is a thoughtful effort to address the problem. The premise is simple: interested lawyers sign up at the Center’s website, and give their contact information, areas of expertise (e.g. – property rights, First Amendment, religious liberties, criminal law), what kind of work they can do (trial, appellate, etc.), and how much time they have per month. The Center then matches them up with public interest firms and other organizations that are looking for lawyers to work on specific cases (these organizations can also sign up at the website, and provide information about their needs). I doubt that the Pro Bono Center can cure the greatest weakness of conservative/libertarian public interest law all by itself. But it’s a step in the right direction. IJ’s Human Action Network is an older, somewhat similar initiative (but one that doesn’t have an explicit case-matching system).

Most lawyers, especially those working at large firms, have at least some time to do pro bono work. Indeed, senior partners often encourage junior associates to so such work because it is a great way for younger lawyers to get useful experience. At many firms, partners are happy to have associates take on such work even if they don’t necessarily agree with its ideological orientation; after all, it’s still valuable experience that can benefit the firm when the associate uses what he or she has learned in later work for paying clients. Obviously, there are also career benefits to the lawyer himself. Getting useful litigation experience can help your career, and it’s often easier for a young lawyer to get major responsibility on a pro bono matter than in a case on behalf of a paying client.

Conservative and libertarian law students often ask me what they can do to promote the cause of free markets and limited government if they are unable or unwilling to go into public interest law or academia. Here’s my answer to that perennial question: They also serve who litigate unglamorous but essential follow-up cases. Few important legal precedents ever amount to much without them.

CONFLICT OF INTEREST WATCH: I have done various pro bono work for the Institute for Justice myself, and serve on one of the Federalist Society’s practice group executive committees (an unpaid position).

The ongoing discussion over the law firm partner who decided to reject all job applicants with Federalist Society membership raises the question of how common discrimination against Federalist Society members really is in the law firm world. The only real way to get a definitive answer to this question is to look at systematic data comparing the success of job applicants who reveal their Fed Soc membership with that of applicants who have similar credentials, but are not Fed Soc members (or conceal their membership). In the absence of such data, all we have are conjectures. Here are mine:

Overall, I doubt that Fed Soc membership is a big obstacle to getting law firm jobs. This is likely to be so for three reasons. First, law firm partners are usually focused on the bottom line. If they reject good conservative or libertarian applicants in favor of inferior liberal ones, their pocketbook is likely to suffer. Anyone who has ever worked at a big law firm knows that partners hate it when that happens. Those few who are indifferent to profits are unlikely to stay in business for long. Second, surprising as it may be, many practicing lawyers simply don’t care about politics as intensely as academics and political activists do. They may have political opinions, but those opinions aren’t a major part of their lives. For such people, hiring associates who disagree with their political views isn’t a big deal because they don’t care about politics that much in the first place. Of course this isn’t true at all law firms. There are some that are intensely political, especially here in Washington. But it’s true of enough of them that the applicant with unpopular political views will still have a wide range of firms to choose from.

It’s also worth noting that there are some firms where Federalist Society membership might actually be an advantage. After all, many partners at prominent law firms are Fed Soc members themselves. These people are unlikely to prefer weak Fed Soc applicants to clearly superior liberal ones; after all, they care about the bottom line too. But Fed Soc membership could sway them in a close case. More generally, there are lots of conservative and libertarian practicing lawyers, enough that those firms where liberals predominate are likely to be roughly offset by the ones where right of center types hold sway.

When I was in law school, I put the Federalist Society on my law firm resume, as did many of my classmates who were also members. It didn’t seem to hurt. As a second year, I got a job as a summer associate at an overwhelmingly liberal New York law firm where no one seemed to care much about my politics one way or the other. The only time ideology came up in a negative way during numerous interviews with big-name New York and DC firms was when a conservative partner grilled me about the fact that I had been an RA for liberal Yale professor Bruce Ackerman (an exchange that didn’t end up costing me the offer, though I did get rejected on the grounds that the hiring committee thought I was too likely to become an academic, as also happened at several other firms).

By contrast, both liberal and conservative law professors warned me not to put the Fed Soc on my CV for the academic job market, where ideological discrimination is likely to be greater because academia is far more ideologically homogenous than the law firm world, (see also here), there is little or no equivalent to the constraint imposed by the profit motive, and academics tend to care about politics far more than practicing lawyers do.

These personal experiences aren’t necessarily typical. Only systematic data can really settle the issue. But they are similar to those of other Fed Soc members I know in the law firm and academic worlds (and I know a great many in both). It’s not unusual for people to put Fed Soc membership on their law firm resumes, while the conventional wisdom is strongly against doing so on academic CVs.

Even if I am correct as a general matter, there are certainly likely to be individual cases of ideological discrimination against Fed Soc members in law firm hiring. But I doubt that the private sector job prospects of law school grads who are Fed Soc members are systematically worse than the chances of those who are not.

Randy Cohen’s The Ethicist column in the New York Times responds to the following reader question:

While interviewing law students for jobs as paid summer interns and full-time associates for my firm, I noticed several had résumés listing their activities in the Federalist Society. Some of my partners have conservative views similar to those of the society, but I do not. These students’ politics would not affect their professional function, but my review is meant to consider their judgment and personality (though I don’t need to give reasons for the assessments given). May I recommend not hiring someone solely because of his or her politics?
NAME WITHHELD, GREENWICH, CONN.

Cohen concludes, fortunately, that the answer is “no.” He then adds this update: “Believing that all the applicants were qualified, but able to hire only a few, this person recommended rejecting each member of the Federalist Society.” Hat tip: ATL.

UPDATE: I urge all Federalist Society members working at law firms to take immediate counteraction. Specifically, if you are reviewing resumes of potential laterals and you come across a resume from Mr. Name Withheld from Greenwich, CT, don’t hire him.