Something important is at risk when it comes to pass that (as will be the case when Elena Kagan is confirmed) every justice of the U.S. Supreme Court is a graduate either of Yale or Harvard Law Schools, a commentator on the Jurist web site wrote last Thursday.[1]  --  "In The Common Law, Justice Oliver Wendell Holmes astutely observed that, 'The life of the law has not been logic:  it has been experience,'" Dave Sidhu wrote.  --  "University of Chicago law professor and federal appellate court judge Richard A. Posner similarly stated that there is 'a considerable residue of cases . . . against which logic and science will be unavailing and practical reason will break its often none-too-sturdy lance.'  'Practical reason,' Posner explains, consists of 'anecdote, introspection, imagination, common sense, empathy . . . , metaphor, analogy, precedent, custom, memory, "experience," intuition, and induction,' among other things.  --  That personal experiences play a critical role in the development of the law is more than legal theory -- it is confirmed by Supreme Court history.  Justice Holmes's experience as a Civil War veteran, for example, clearly shaped his judicial decisionmaking.  As Jeffrey Rosen notes, 'Holmes insisted that his three years as a lieutenant in the Civil War had influenced his judicial philosophy even more than his thirty years on the Supreme Court.'"  --  BACKGROUND: A Sikh, Dave Sidhu is the founding director of the post-9/11 Discrimination and National Security Initiative at Harvard,[2] which produced the film "Divided We Fall: Americans in the Aftermath." ...


1.

ELITISM AND THE SUPREME COURT

By Dave Sidhu

** JURIST Guest Columnist Dave Sidhu, founding director of the Discrimination and National Security Initiative (DNSI) and a fellow at the Pluralism Project at Harvard University, says that the soon-likely-to-be-complete domination of the U.S. Supreme Court by graduates of two Ivy League American law schools is cause for considerable concern, despite elite contentions to the contrary... **

Jurist
May 20, 2010

http://jurist.org/forum/2010/05/elitism-and-the-supreme-court.php


If Elena Kagan is confirmed as the next Supreme Court justice, all nine members of the highest court in the land will be graduates of the nation's two most exclusive law schools -- Harvard and Yale.  Christopher Edley, a former law professor at Harvard Law School when Kagan was its dean, defends this likely outcome, arguing that we should prefer judges with excellence and that schools such as Harvard and Yale are part of an "elite meritocracy" whose selectiveness generally filters out all but the excellent.  In what follows, I suggest that Edley, now dean of U.C. Berkeley School of Law, misses the mark and that the elitist composition of the Supreme Court is problematic notwithstanding Edley's apologia.

In touting excellence as the touchstone of a quality justice, Edley contends that what matters on the Supreme Court is "intellectual horsepower," "wisdom and analysis," and "not personal experiences."  But a judge's intellect, wisdom, and analytical abilities are informed by, if not dependent upon, his or her personal experiences.  In The Common Law, Justice Oliver Wendell Holmes astutely observed that, "The life of the law has not been logic:  it has been experience."  University of Chicago law professor and federal appellate court judge Richard A. Posner similarly stated that there is "a considerable residue of cases . . . against which logic and science will be unavailing and practical reason will break its often none-too-sturdy lance."  "Practical reason," Posner explains, consists of "anecdote, introspection, imagination, common sense, empathy . . . , metaphor, analogy, precedent, custom, memory, 'experience,' intuition, and induction," among other things.

That personal experiences play a critical role in the development of the law is more than legal theory -- it is confirmed by Supreme Court history.  Justice Holmes's experience as a Civil War veteran, for example, clearly shaped his judicial decisionmaking.  As Jeffrey Rosen notes, "Holmes insisted that his three years as a lieutenant in the Civil War had influenced his judicial philosophy even more than his thirty years on the Supreme Court."  Moreover, Justice John Paul Stevens -- the man Kagan is tapped to replace -- served in the U.S. Navy during World War II, which enlarged his perspectives on various legal issues, especially national security, foreign affairs, and claims of executive authority.  Practical experience is thus important.  Edley's belief to the contrary, that "Kagan has excelled in the legal field" and that this "ought to be enough," is unconvincing.

Edley seems to believe that conversations surrounding practical experience are a mere sideshow or naked effort to humanize an otherwise smart individual.  He writes that "to be safe," Kagan "must explain what beer she drinks while slugging softballs."  This sarcastic comment completely ignores the substantive value that one's background and life experiences have on one's view of the law, as demonstrated by Justices Holmes's and Stevens's tenures on the Court.  It dodges the question of what, if anything, in Kagan's biography or her writings indicates that she possesses life experiences that can enrich her understanding (and by extension her prospective colleagues' collective understanding) of the law, or that she possesses a particular appreciation for certain individuals, groups, or communities that will appear before her.  This inquiry is not designed to determine whether she is an "ordinary" person, as Edley derisively remarks, but to ensure she is extraordinary in terms of her rational thinking and practical reason.  (Edley mentions his wife, who "grew up picking crops in an immigrant farmworker family," but one wishes Edley could point to something, anything, in Kagan's life as similar evidence of her empathy.)

Assuming that excellence alone defines an appropriate Supreme Court justice, Edley acknowledges that elite schools do not have a monopoly on excellence -- some "good people" are "denied entry" and are consequently compelled to study elsewhere.  And he admits that there have been some "false positives," that is, "not-so-good people mistakenly admitted to elite settings."  But he fails to concede that because not every student at an elite school is "good," elite schools are not a proxy for excellent students.  Edley does not provide any information showing that elite schools measure or identify excellence any more accurately or reliably as compared to other schools, nor does he give meaningful credit to the fact that some quality students opt to attend non-elite schools for financial, geographic, family, or other reasons, including attractive and affordable programs at state schools.  (Financial limitations and admissions considerations, such as "legacy" relationships or membership to an underrepresented minority group, cut against Edley's attempt to associate Berkeley and other elite law schools with merit-based democratic institutions.)

Even if all students at elite schools are not excellent as a matter of fact, the perception exists nonetheless that the uppermost echelons of professional success are restricted to those who attend Harvard, Yale, and the other Ivies.  Indeed, Kagan's nomination sends a powerful message to aspiring lawyers, law students, attorneys, and the general public:  you must graduate from an elite law school in order to be a Supreme Court justice and thereby reach the height of American legal practice.  In an age when President Obama's ascendance was thought to shatter certain glass ceilings, his selection of Kagan perpetuates another:  the dominance of elite schools, including his own, over the top strata of American governance and public service.

Thomas Jefferson, founder of the University of Virginia, believed in a "natural aristocracy" in which "merit and talent," not "connections and influence," were to be the proper criteria for selecting our leaders.  This is not to say that Kagan herself is without merit.  She is amply qualified for the post of Supreme Court justice.  But her nomination comes at a cost -- the reinforced perception that merit matters, and it matters most when it has been validated by certain rarefied institutions.  In picking Kagan, Obama regrettably bypassed the opportunity to send a different statement to youth and the people -- sadder still is that Edley does not appear to think a different statement is needed at all.

--Dave Sidhu is a founding director of the Discrimination and National Security Initiative (DNSI) and a fellow at the Pluralism Project at Harvard University.


2.

The Pluralism Project at Harvard University

DISCRIMINATION & NATIONAL SECURITY INITIATIVE


http://pluralism.org/affiliates/kaur_sidhu/ (See original for links)

PROJECT DESCRIPTION


Following the terrorists attacks of September 11, 2001, Muslims and those perceived to be Muslim encountered an almost immediate and wide-ranging backlash in the United States.  In particular, Muslim-, Arab-, South Asian-, and Sikh-American communitites were targeted on the basis of their appearance and subject to murder, physical assault, verbal harassment, profiling, and other discriminatory conduct.  The consequences of this hate violence and bias implicates not only the safety of the victims themselves, but more broadly it denies the realization of a free and equal society for all Americans, and challenges the embrace of pluralism, the effectiveness of tolerance, and the existence of mutual respect.

In response to the post-9/11 climate, advocacy organziations defending the rights of these groups and engaging in efforts to combat the ignorance that allowed for Muslims and those perceived to be Muslim to be equated with the terrorists of 9/11.  Two Sikhs -- filmaker Valarie Kaur and civil rights attoreny Dawinder "Dave" S. Sidhu -- noted the conspicuous absence of academic information on the backlash and particularly on the human consequences of the mistreatment on these targeted communities.  Accordingly, in 2004 the Pluralism Project at Harvard University established the Discrimination & National Security Initiative (DNSI), to explore the human costs of the post-9/11 backlash in a scholarly format.  DNSI's specific charge is to examine mistreatment of minority communities during times of war or national emergency, especially post-9/11 America.

In furtherance of this objective, DNSI has engaged in two independent, though overlapping, efforts:  1) to perform original research on the human consequences of the discrimination faced by Muslims, Arabs, South Asians, and Sikhs after 9/11, and 2) to issue a documentary, "Divided We Fall: Americans in the Aftermath," which offers a close look at members of America's Sikh community in the aftermath of September 11.

DNSI was officially established on December 18, 2004, the 60th anniversary of Korematsu v. United States, the U.S. Supreme Court case that upheld the forced exclusion of citizens of Japanese ancestry.  The dissenting justices warned of the use of perceived race, ethnicity, or national origin as a proxy for suspect qualities, including subversion and disloyalty to the union, during wartime.  Over sixty years later, Sikhs and others in the United States have been subject to discrimination on the basis of their perceived identity.  DNSI is therefore interested in examining discrimination and its social impact not only since September 11, 2001, but in historical and international contexts that touch upon the tension between equality and concerns for national security.

PROJECT RESEARCH


“Civil Rights And the Wartime Supreme Court,” 22 February 2010.

"Civil Rights in Wartime: the Post-9/11 Sikh Experience," is an academic textbook prepared by Mr Sidhu and DNSI legal fellow Neha Singh Gohil on the challenges faced by turbaned Sikhs following 9/11 (Ashgate Publishing, 2009).

"The Sikh Turban: Post-911 Challenges to this Article of Faith," examines the tangible and intangible discrimination faced by turbaned Sikhs in the wake of the 9/11, terrorist attacks.  It provides an overview of Sikhism, incidents of discrimination, broader challenges to Sikh identity, and legal remedies available to victims.

“We are Americans Too: A Comparative Study of the Effects of 9/11 on South Asian Communities,” addresses the impact of and the responses to the discrimination that South Asians faced since 9/11, focusing specifically on Indian Hindus, Pakistani Muslims, and Sikhs in the Washington, D.C., area.

"First Korematsu and Now Ashcroft v. Iqbal: The Latest Chapter in the Wartime Supreme Court’s Disregard for Claims of Discrimination," analyzes a recent Supreme Court ruling dismissing a Muslim plaintiff's allegations of discrimination.

"Wartime America and The Wire: A Response to Posner’s Post-9/11 Constitutional Framework," critiques a prominent professor and judge's proposals on the direction of the wartime Constitution.

"The Chilling Effect of Government Surveillance Programs on the Use of the Internet By Muslim-Americans," looks at the chilling effect of government surveillance measures on the use of technology, principally the Internet, by Muslim-Americans.

DNSI drafted and filed an amicus brief in the Supreme Court of the United States case, Iqbal v. Ashcroft, S.Ct. No. 07-1015 (2008), which concerns allegations of discrimination by a Muslim detained in New York after 9/11.

DIVIDED WE FALL


* Website (www.dwf-film.com)
* Pluralism Project sponsored screenings, May 6-7, 2006
o Flyer (PDF)
o Photographs
* Boston Premiere, September 25, 2006
* Trailer
* Valarie's Blog
* DWF Tour Blog
* Print News
* Audio / NPR Interviews
* Videos
* Valarie Kaur on YouTube

 


Staff
Founders
Dawinder S. Sidhu
Valarie Kaur

Fellows & Interns
Neha Singh Gohil
Morgan Hargrave
Sakhiba Khairullah
Sarah Mazzochi
Randa Zakhour
Brian Chan
Gauri Patil
Jamila Willis