Rick Duncan's question
conlawprof at YAHOO.COM
Thu Dec 28 07:34:41 PST 2000
I think Mike Paulsen's points are powerful.
A thought experiment. Suppose we had a rather
conservative law school, perhaps one with a faculty
consisting of folks like Bob Bork, Lino Graglia, Jay
Sekulow, Ed Meese, John Ashcroft, etc. And suppose
this law school administered an oath at graduation
pursuant to which its students pledged to model their
careers after, say, Nino Scalia and to work as social
engineers to advance the cause of justice for unborn
children and property rights.
Now suppose someone who had taken that oath were
nominated for a Supreme Court seat by a conservative
President.. If you were on the Senate Judiciary
Committee, would you grill the nominee about that oath
and how he or she understood its significance to the
nominee's work on the Court?
Be truthful now!
Cheers, Rick Duncan
--- stoke001 wrote:
> I do not quite understand the harshness of Michael
> Newsom's response to Rick Duncan's inquiry about the
> Oath." I did not read all of that thread (and
> Eugene had to forward
> to me Rick Duncan's original post), but it seemed
> simply to be an
> inquiry as to the oath's content, with an eye toward
> Howard Law School's conception of the law was one
> that might be
> focused on *just outcomes* -- and whether that might
> affect a
> graduate's conception of the judicial role, too.
> Isn't that a fair question, *especially* if one
> believes (as it appears
> that a fair number on this list do) that the US
> Supreme Court's
> decision in *Bush v. Gore* was motivated by the
> sense of what was the just outcome?
> If I were a Supreme Court justice, and thought that
> the Florida
> Supreme Court, and Al Gore, were attempting to
> "steal the
> election," but thought that the constitutional
> claim(s) for reversal
> were wrong, should I vote for (what I think is) the
> "just outcome" or
> what I think the law requires, even if it
> facilitated the unjust stealing
> of an election, abetted by a lawless state supreme
> court? (I'm
> curious to hear Rick's response, as well as
> Michael Stokes Paulsen
> University of Minnesota Law School
> Date sent: Wed, 27 Dec 2000 10:30:36
> Send reply to: Discussion list for con law
> From: Michael deHaven Newsom
> Organization: Howard University Law School
> Subject: Rick Duncan's question
> To: CONLAWPROF at listserv.ucla.edu
> > I am not a member of this listserv, and I hope
> that this email reaches
> > it.
> > I have happened upon Rick Duncan's question
> regarding the so-called
> > Howard Oath. As a member of the faculty at the
> Howard University
> > School of Law, I thought that I would respond.
> > The so-called Oath is really a pledge to follow in
> the footsteps of
> > former Justice Thurgood Marshall. For some law
> students, lawyers and
> > judges, Marshall was the epitome of a good judge.
> For others not so.
> > What is disturbing, however, about Rick Duncan's
> question is the
> > implication that social justice and the rule of
> law are inconsistent.
> > Would he suppose that Brown v. Board was
> illegitimate or inappropriate
> > because it overruled Plessy v. Ferguson? Arguably
> Brown was about
> > social justice, or results. Was it therefore, not
> about the rule of
> > law?
> > After Bush v. Gore, I am confused by Rick Duncan's
> suggestion that
> > there is a difference between the rule of law and
> the rule of results.
> > The per curiam opinion demolishes for all time
> the argument that
> > there are neutral principles of law to which a
> non-activist judge can
> > repair and apply rather mechanically to the facts
> at hand, all the
> > while leaving "politics" or "results" to the other
> branches of
> > government. Formalism and its pretenses are gone
> and what we are left
> > with is the rather ugly mess that Crits -- the
> unruly and radical
> > children of the Realists -- and others have been
> claiming for years.
> > I find nothing in Rick Duncan's question but his
> particular brand of
> > very conservative politics, trying to wrap it in
> the mantle of a
> > supposed neutrality which does not exist. Let us
> see. O'Connor wants
> > to leave the Court and have a Republican president
> pick her successor.
> > It has been said that Scalia wants to be Chief
> Justice. It is said
> > that Rehnquist wants to leave the Court as well.
> And Rick Duncan is
> > worried that there may be some lawyers and judges
> out here who favor
> > social justice! And for aught that I can tell he
> has little to no
> > interest in the shennanigans of the conservative
> five who stole the
> > election for Bush for transparently personal and
> political reasons!
> > Maybe if they had taken and followed the oath
> about which Rick Duncan
> > is so curious they would have decided to let the
> voters of Florida
> > decide who won the 2000 Florida presidential
> > One more thought. If Rick Duncan believes in the
> rule of law, I look
> > forward to his support for the efforts of those
> who wish to probe the
> > limits of the supposed new Equal Protection that
> the conservative five
> > seem to have discovered. We could use some help
> getting Equal
> > Protection in the voting process, something that
> is sorely lacking as
> > press reports are making ever increasingly clear.
> > Michael deHaven Newsom
> > Professor
> > Howard University School of Law
daughters and kitten
(haiku, rfd, 12/00)
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