Reflections on Live Blogging. Great Success!

I just liveblogged my first conference and I really enjoyed it. Thanks to a link from Volokh, I received over 1,000 hits during the weekend, which is pretty cool.

One of the Yale Professors sitting behind me complemented my ability to type so quickly and still comprehend the conference. I suppose three years of law school multitasking have prepared me for paying attention to professors, vociferously typing, surfing the web, and adding commentary. Only thing I added was taking pictures, which was pretty cool. A special treat was that Yale’s ISP provides ESPN360.com, so I was able to watch Penn State route Illinois yesterday while I was liveblogging. Yet another not unwelcome, defeat for Chicago this week! Let’s hope bad things come in three for Chicago with respect to McDonald v. Chicago.

I will be attending the Federalist Society National Lawyers convention in November. I certainly will be there with my laptop. Unfortunately the Mayflower Hotel charges for Wi-Fi, but I will gladly pay to help spread the gospel.

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Pam Karlin tells it like it is. Call us Liberals, not Progressives. Candor at this conference is refreshing.

(this is a repost of Liveblog of Panel 8)

Karlan went on a fantastic monologue.Why can’t we refer to ourselves as liberals? Why cant we refer to ourselves as on the Left. Why are we calling the Justices swing justices. Why don’t we call them liberals? I’m with you Pam!

I’m reminded of the Ting Ting Song, That’s not my name!

Karlan commented that the Supreme Court is 4 liberals, one conservative, and the four horsemen of the apocalypse. LOL. Who’s who?

Karlan commented that Sotomayor will be an excellent Swing Justice. Great, another O’Connor.

No one on this panel is as far to the left as John Roberts or Clarence Thomas is to the right. I highly, highly, highly doubt this. We had a panelist today say he “missed traditional marxism.”

People always want to keep their options open. The aim of life is not to die with open options.

If we had won the 2000 election, we did win the 2000 election. If we would have gotten a different President, the cases would have come out differently. Brennan said 5 votes a theory any day. Karlan is much more politically savvy than the other pointy head academics. I hope Obama stays far away.

Gordon replies- Liberal no longer stands for New Deal policies. liberal has come to be a snooty intellectual elitist who looks down on my cultural values. Hard to rescue that term.

I think Karlin’s views are way to the Left, but the candor and honesty of her views is refreshing. She doesn’t seek to hide behind labels and veneers. I respect her for that. I also think she won’t make it through SCOTUS confirmation. Which is also good.

Pam Karlan
Pam Karlan
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Pam Karlan Panel: Nostalgia for Traditional Marxism, Prosecute OLC Lawyers, How to Battle Conservatives

(this is a repost of Liveblog of Panel 8)

There were a few choice discussions on Panel 8 today. I am likely taking most of these statements after context, and without a doubt these statements were made largely tongue-in-cheek, but as probably the only conservative in the room, I still got a chuckle.

On Marxism

Robert Gordon

“I miss traditional Marxism.” I feel like breaking out and signing “Those were the Days” from All in the Family or maybe Back in the USSR. Gordon does oes not miss hectoring domineering, but he misses the fitting of points into overall structure, global capitalism. Miss importance of political inequality translates into political oligarchy, and political oligarchy dominates political decisions, e.g., organization of the Senate. Gives oligarchy extra advantages. Affects structures of the careers.

Pam Karlan

Pam Karlan interjected, “A kindler, Gentler marxism.” LOL.

On Prosecuting OLC Lawyers

Nan Aron

Over last 8 years we saw constitution shredded to bits. Lawyers at OLC wrote memos’s that authorize torture. Obama does not want to touch it. Cheney and Bush, government in exile, doing everything they can to campaign against investigation. People died from torture. We need to press Obama and Holder to expand investigation into not just CIA operatives that carried torture outside Jurisdiction, but “hold lawyers accountable.” Amazing that a group that doesn’t mention the text of the Constitution at any point in this 3 day conference is so afraid of it being “shredded.”

Gordon

Primary role of court to defend weak against the strong. Empathy to Republicans is awful thing, but torture is a wonderful thing, and anyone who tortured should get immunity.

Karlan- “It is bad to be empathetic and in favor of torture, because then you will hurt yourself.” Karlan FTW! She is snappy.

Battling Conservatives

Karlan

How to divide and conquer the consevatives?

Gordon

How to divide conservatives? Get people to see that they have a common interest against conservatives. Health care debate, promise of hope of universality by appeal to people who feel that something will be taken and redistributed to less worthy groups. E.g., “blacks, latinos, and immigrants.” Use divide and conquer movement against those using divide and conquer.

Judges Gone Wild (at the Red Mass). Why is this different from Justices Going to Europe?

Today is the Washington, D.C.’s Red Mass. Washington lawyers, including several Supreme Court Justices. There is a bit of controversy, over whether this creates a tension in the separation of church and state (still looking for the separation clause in the Constitution).

“I don’t think there is any doubt that people in that congregation, including the Supreme Court justices, are going to listen to what is said. They might hear something phrased in a way you might never hear it in the court, but it might become a lingering factor in their decisions. … People who are concerned about the Red Mass worry about this kind of undue influence, an influence that no other group, religious or otherwise, has on those nine men and women.”

Over at Volokh, Jonathan Adler writes:

It seems to me that Lynn’s concerns are misplaced.  If Supreme Court justices cannot attend an annual mass, or any other event at which powerful worldviews are advanced, without compromising the integrity or independence  of our judicial system, we have much bigger problems than this one service.  We expect justices to be able to make legal decisions based on the law in front of them, setting aside their personal moral views and any desire they may have for approval by outside groups.  And even if the occasional Red Mass sermon prosletyzes on a current controversy, I think the justices can handle it.  No matter what is said about abortion, school prayer, or any other issue on which the church has a strong position, I doubt it will have much influence on the decisions of Justice Breyer or any the other justices who attend.

It amazes me the things the left gets upset about. If we are to presume that the Justices are so fickle, that a single sermon or Mass will impact their views on huge Constitutional issues, how does that reflect the Left’s faith in the role of the Judge? Actually, this fear is telling.

Justice Kennedy, for example, takes annual trips to Salzburg, Austria. Jeffrey Toobin in The Nine has written how this exposure to European ideals has changed his views of the Constitution and the Rule of Law. If the Left seeks to criticize the Justices from going to a single mass, perhaps the Right should admonish Kennedy from going to Europe to have his views modified?

Why is going to Church any different from studying law in Austria? They both have the power to persuade, and change a Judge’s mind. Perhaps this just reflects the Left’s negative feelings towards organized religion, but their embrace of European legal values.

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Constitution in 2020 Liveblog Panel 8- Roundtable-The Constitution in 2020: Getting There from Here

Panel Eight:
11:30 – 1:15 Roundtable–The Constitution in 2020: Getting There from Here
Moderator:  Pam Karlan, Stanford Law School
Panelists:   Debo Adegbile, NAACP; Marvin Ammori, Free Press/ University of Nebraska-Lincoln College of Law; Nan Aron, Alliance for Justice; Robert Gordon, Yale Law School; and Tom Saenz, MALDEF

My comments in blue.

Pam Karlan

Rather than allowing opening statements, Karlan is asking questions and creating a discussion. AND, questions only from students, not from Professors. Sadly, Professor Ackerman is not in the room for this golden opportunity. However, the panelists still manage to give lengthy answers to the questions that curiously mirror an opening statement.

Robert Gordon

“I miss traditional Marxism.” I feel like breaking out and signing “Those were the Days” from All in the Family or maybe Back in the USSR. He does not miss hectoring domineering, but he misses the fitting of points into overall structure, global capitalism. Miss importance of political inequality translates into political oligarchy, and political oligarchy dominates political decisions, e.g., organization of the Senate. Gives oligarchy extra advantages. Affects structures of the careers.

Pam Karlan

“A kindler, Gentler marxism.” LOL.

Tom Saenz

Reviving privileges or immunities is troublesome because it is limited to citizens. Kinda ironic that a guy with the last name of Saenz is diminishing priviileges or immunities, in light of Justice Thomas’s fantastic dissent in Saenz v. Roe. He also needs to check out Bruce Ackerman’s theory of “citizenship as a practice” so that aliens would be able to qualify for constructive citizenship, and thus receive the privileges or immunities of citizenship.

We still have a discriminatory immigration policy. US only country that assumes that demands for immigrants will be same form every country. Latin American and Asian countries face waiting periods of over a decade, while European countries are favored. We should introduce constitutional norms and values.

Discussing for guest-worker program. Guest worker programs separate workers from their families. IF people have right” (quotes are mine) to live with their families, immigration reform would be different.

Karlan remarked she is sitting in the room where she studied Constitutional Law from Robert Bork, and segues into Judicial Nomination Process. LOL.

Nan Aron

“I’ll be very brief, I hope.” Such a typical progressive academic introduction, lol.

Confirmations are best opportunity to articulate a progressive view of the Constitution.

“With Sotomayor you would have thought it was John Roberts’s hearing.” She was muzzled by the White House, she did not hear about her background, how her experience srelated to the type of Judge she would be, she did not mention the Constitution. Senate Democrats are to blame. They had all opportunities. The White House should have allowed Sotomayor to articulate the liberal vision ad progressive values of the Constitution.

We need:

  1. Progressive candidate to the Supreme Court
  2. Explain how dangerous the Roberts Court has been. Roberts Court has detonated bombs in voting rights, civil rights, dismantling campaign finance rights laws, eroding rights of defendant
  3. We have to mobilize. Last mobilization was for Bork. We need a mobilization for a progressive SCOTUS and Courts of Appeals seat. Vacancy on 2nd circuit. Put a progressive.
  4. If Constitution is to work, we have to stand up for it.

Over last 8 years we saw constitution shredded to bits. Lawyers at OLC wrote memos’s that authorize torture. Obama does not want to touch it. Cheney and Bush, government in exile, doing everything they can to campaign against investigation. People died from torture. We need to press Obama and Holder to expand investigation into not just CIA operatives that carried torture outside Jurisdiction, but “hold lawyers accountable.” Amazing that a group that doesn’t mention the text of the Constitution at any point in this 3 day conference is so afraid of it being “shredded.”

Amoori

A big public fight in the confirmation process could be a teaching moment. Fights should be in dark terms. Define liberal vs. conservative.

Karlan

How to divide and conquer the consevatives?

Gordon

How to divide conservatives? Get people to see that they have a common interest against conservatives. Health care debate, promise of hope of universality by appeal to people who feel that something will be taken and redistributed to less worthy groups. E.g., “blacks, latinos, and immigrants.”

Use divide and conquer movement against those using divide and conquer.

Bottom third of country gets no political representation at all because other side so successful in demonizing it as unworthy.

Adegbile

Academics should write simplified versions of scholarly literature for magazines and mass consumption. Academics see tension, due to the purity and complexity of the work.

If Academics just talk amongst themselves, they are going to lose the battle. Debo is exactly right. I made this exact point my first day. This conference has been incestuous. Academics talking to other academics achieve little. I realize the irony of criticizing the ivory tower while sitting in a law school that resembles a medieval castle, but this point is dead on.

Ammori

To organize people around media issues, focus on broader issues. Everyone should have access to Internet, media too consolidated, if you don’t like what you see on TV, there is something wrong.

Karlan

Privileges or immunities deals with citizens. But scholars make up citizens doesn’t mean what it actually means. This is a jab at Ackerman, among others.

Saenz

“Appalling” that Yale Law School has not hired a single Latina Professor. Oh snap! I’m sitting right next to Dean Post. He didn’t even flinch.

Karlan on Liberalism and the Supreme Court

Why can’t we refer to ourselves as liberals? Why cant we refer to ourselves as on the Left. Why are we calling the Justices swing justices. Why don’t we call them liberals? I’m with you Pam!

Supreme Court is 4 liberals, one conservative, and the four horsemen of the apocalypse. LOL

Sotomayor will be an excellent Swing Justice. Great, another O’Connor.

Debo Adegbile is the Thurgood Marshall of his generation. Lofty praise. He won NAMUDNO

No one on this panel is as far to the left as John Roberts or Clarence Thomas is to the right.

Karlan

If we had won the 2000 election, we did win the 2000 election. If we would have gotten a different President, the cases would have come out differently. Brennan said 5 votes a theory any day. Karlan is much more politically savvy than the other pointy head academics. I hope Obama stays far away.

Gordon

Federal courts are currently obstructive to advance civil rights. We do not have the Warren Court. Best bet is to keep them at bey. Senators Whitehouse and Franken did best job by exploring radicalism of conservative court. “Roberts and Alito are trained as ideological – in revolutionary movement.” They are “sleeper cells that are activated” as though they are defenders of conservative values. They are radicals who want to bring about radical transformation of the courts. The Senate shoudl “demonize” these Judges. Focus on Dormant commerce clause and preemption cases.

Primary role of court to defend weak against the strong. Empathy to Republicans is awful thing, but torture is a wonderful thing, and anyone who tortured should get immunity.

Karlan- It is bad to be empathetic and in favor of torture, because then you will hurt yourself. Karlan FTW! She is snappy.

Gordon- Liberal no longer stands for New Deal policies. liberal has come to be a snooty intellectual elitist who looks down on my cultural values.

Saenz– Being a “Wise Latina” may actually make you a better Justice. I knew Sotomayor believes this and many on her side do as well. I don’t agree, but I think it is disingenuous of her to back away from those statements.

The left does not have a reliable test to determine progressiveness of judicial candidate.

The text of the  constitution is at a level of generality that permits us to do a lot. Change how it is interpreted, and how everyone views the values it embodies. But why bother talking about the text if it is so general?

Response to originalism: vast majority of us, families came to this country more recently than the people who wrote it.

Discussion of voting with feet. Immigrants vote with their feet. Immigrants have a sense of what is in the Constitution, and this governs the values of how we should interpret it. This is just as legitimate as what founding fathers believe.

Descendants of founding fathers very small population today.

Tom

Tom Saenz, Debo Adegbile, Pam Karlan, Robert Gordon, Marvin Ammori, Nan Aron

Professor Eskridge on Olson/Boies SSM Lawsuit

Bill Eskridge praised Ted Olson for the Olson-Boies law suit. Olson came out of “conservative closet” to favor SSM. He encourages others, including Dick Cheney, to do this.

Best thing to do with Olson-Boies law suit is to stall. LAMBDA denied intervention in lawsuit.

Eskridge’s strategery- Delay law suit as long as possible, and revoke Prop 8 in 2012. Revoking Prop 8 would moot the lawsuit. If lawsuit proceeds to 9th and “finds” Constitutional Right. CA9 has poor record with SCOTUS. Olson thinks he can get Justice Kennedy’s vote. Eskridge not sure if the movement has Breyer and Ginsburg. If not mooted before 20102, not optimistic SCOTUS will find right.

Winning constitutional arguments is not end-all of social movements. Yale Law School should not fetishize SCOTUS. We should reject it. Best thing to energize LGBT movement and straight allies was Bowers v. Hardwick.

The more gay marriage is talked about, the better it is to talk about. Eskridge has no doubt he is right. SSM Marriage good for the children, for neighbors, for states, good for jobs, good for America.

Older generations set on LGBT issues. Identity tied to traditional understanding of marriage. Progressives ought ot understand that.

Question

Professor Neil Siegel thinks Ginsburg is on board for constitutional right to SSM, not sure about Breyer. Siegel thinks we should not forget about SCOTUS between now and 2020. They can do a lot of damage between now and 2020.

Professor Eskridge

Professor Eskridge

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Constitution in 2020 Liveblog Panel 7- Mobilization

Panel Seven:
9:30 – 11:15 Roundtable:  Mobilization
Moderator:  William Eskridge, Yale Law School
Panelists:  Addisu Demissie, Organizing for America; Marshall Ganz, Kennedy School of Government, Harvard; Judy Scott, SEIU, Michale Wishnie, Yale

Caroline Frederickson– Executive Director ACS

Thanked members of ACS, Panelists, and Organizers.

Conservatives have hijacked the constitutional process through strict construction and original meaning. It’s good to feel the love. Scholars have shed light on how constitution should be interpreted. Principels and values founders embodied in this document. Significant progress has been made over past 200 years. Still much work to be done.

Caroline Frederickson

Caroline Frederickson

Wiliam Eskridge

Like interpretation, these panels are dynamic. Yuk Yuk Yuk.

Mobilization. Main example- gay rights/gay marriage movement. Shows aspects of constitutional mobilization- huge mistakes, moderate successes. Mobilization in Vermont being done locally, state-wide, and nationally. Mobilization protected against right-wing retribution at Polls. Started with mobilization of small meetings (5-10 ppl).

Olson-Boises Law Suit

Bill Eskridge praising Ted Olson for the Olson-Boises law suit. Olson came out of “conservative closet” to favor SSM. Best thing to do with Olson-Boises law suit. LAMBDA denied intervention in lawsuit.

Eskridge’s strategery- Delay law suit as long as possible, and revoke Prop 8 in 2012. Revoking Prop 8 would moot the lawsuit. If lawsuit proceeds to 9th and “finds” Constitutional Right. CA9 has poor record with SCOTUS. Olson thinks he can get Justice Kennedy’s vote. Eskridge not sure if the movement has Breyer and Ginsburg. If not mooted before 20102, not optimistic SCOTUS will find right.

Winning constitutional arguments is not end-all of social movements. Yale Law School should not fetishize SCOTUS. We should reject it. Best thing to energize LGBT movement and straight allies was Bowers v. Hardwick.

The more gay marriage is talked about, the better it is to talk about. Eskridge has no doubt he is right. SSM Marriage good for the children, for neighbors, for states, good for jobs, good for America.

Older generations set on LGBT issues. Identity tied to traditional understanding of marriage. Progressives ought to understand hat.

Marshall Ganz

Calling, craft, and career with respect to mobilization. Who, how, and with whom, do you do the work of mobilization. Civil rights all about ending racism. Equates civil rights movement to exodus story told during Passover.

Deeper inequality driving racism was inequality of power. African-American’s couldn’t vote, unions out of power. What to do? Some thought you ask people in Washington for some of their power. If change comes from up high, it can be taken away easily, because power inequality still exists. Example, Montogmery bus strike. People had stake, could withdraw their bus fare.

To affect meaningful change, must engage resources of those who have an interest. Need skilled leadership.

While he thought racism was an exception in America, became an example in America.

Keys for mobilization

  1. Translate power into action through narratives
  2. Bringing people together around common interest through relationship building
  3. Structuring organizations
  4. Strategize- transform what you have into what you need
  5. Measurable results

Talking about Obama, politics of hope, change.

Rabbi Hillel. “If I am not for myself, who will be for me. If I am for myself alone, who am I? If not now, when.”

Addisu Demissie

Political director for Organizing for America. It seems Organization for America was formally Obama for America. Is he a community organizer?

Get out the vote director for Obama in Ohio.

Hard for progressives to admit they are in power and to use their leverage of power. Really? Didn’t Obama make his Presidential seal before he was President? Didn’t Nancy Pelosi start measuring the drapes for her Speaker Office in October 2006?

Change made through citizen contact, with neighbors talking to one another. Difference between mobilizing and organizing. Mobilizing- fight you are in. Organizing- fight you are in, fight you will be in the future. He predicts the Left will win on health care. But there is always some issue to bring people in. Organization building will use health care, 2010, energy, etc. Can’t get totally submerged in the fight you are in. Need to consider fight you will be in next.

Organization building tips

  1. Train leaders to take charge of their communities. Goal to train leader in every community in this country.
  2. Permanent structure-Neighborhood team leader-community organizer model. For every group of precincts, a neighborhood team leader (NTL) to organize. That organizer reports to a community organizer that manages neighborhood team leaders. The community organizer linked to higher-ups. Don’t do nitty-gritty, more managerial. Not about any particular issue. It is about empowering them.
  3. Meeting- getting face to face with people. Just like those helpful ACORN tax advisers in Baltimore!
  4. Reporting. Strict, structured reporting system to track everyone from volunteers up to amangers

Need to creates sustainable organization that lasts beyond the current fight. Structure is important, don’t just focus on substance. 2/3 of fight is setting agenda and framing issue. Get excited about small victories.

Judy Scott

Economic Justice. Concentration of wealth, very few peopel who speak for bottom third. What is mobilization structure to make those voices heard? Not just individual rights, but collective rights and collective action.

Labor law has limited concepts of organization to bargaining unit. Look to issues of global unions.

Unions need to be:

  1. Global- mulinational corporations growing at a fast rate.  Nation states incapable of dealing with multinational labor conditions. Need structures to deal with international IP rights, WTO for international trade. Need structure to enforce labors beyond borders.
  2. National level. Change that work campaign. Need to extend to 12 states with much density. Labor movement density was 35% in 1950s to 7% today. This is a threat to Democracy.  Working with farmer unions, consumer leagues, around issue of health care reform. Showing up at town hall meetings. Like this SEIU member who roughed up a Town Hall attendee? Agitate for improvement of American families.

Don’t just think about filing grievances and arbitrations, but focus on organizing in community and mobilizing.

Mike Winshnie

Thanks everyone for giving up right to leisure to come here on Sunday. Apparently the right to leisure is declared in the fundamental declaration of human rights. I suppose I generally waive this right.

Progressives acheive social reform by supporting a particular social movement, and translate movement values to ways courts, legislatures, and agencies can understand. Lawyers are often crucial in this interpreting function.

In a few generations, we will look back at modern immigration law as de jure subjugation, similar to Jim Crow Laws.

There is a hope that “the constitution will jsut stay out of the way” because it hurts more than it helps. So the Constitution in 2020 is should just hide? He’s quoting Saul Alinsky now.


Judy Scott, Marshall Ganz, Bill Eskridge, Mike Wishnie, Addisu Demissie (Left to Right)

Judy Scott, Marshall Ganz, Bill Eskridge, Mike Wishnie, Addisu Demissie (Left to Right)


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