The Harvard Law School Seal: What Should Be Done?

Yesterday, Vox posted a short article about the controversy surrounding the Harvard Law School shield, which is based on the family seal of the Royalls, major slaveowners who bequeathed land and money to Harvard, laying some of the groundwork for the creation of the Law School.  The Harvard Crimson published a more detailed piece.

The seal is unobjectionable on its face.  It is has the word “Veritas” – truth, Harvard’s slogan – over three sheaves of wheat.  But the wheat comes from the Royalls’ family crest and symbolizes the source of the family wealth – wealth that was predicated on the massive use of slaves in Antigua and in Massachusetts.

Law School Alums were recently sent an e-mail from the Law School's Dean Minnow agreeing with a Harvard Committee recommendation that the shield be eliminated. When I went there in the early 1970s, no one was aware of the origins of the seal -- at least not that I know of. Indeed, I was oblivious to the seal's existence.  Apparently, this did not become a topic of wider knowledge and conversation until about fifteen years ago. My initial reaction to Dean Minnow’s e-mail was to agree fully with her recommendation. After reading the Committee's majority and dissenting reports (wisely provided by Dean Minnow in her e-mail), I am not so sure.

Last summer, I wrote about this general subject in the context of discussion of a Confederate Soldier Memorial Statue outside the Montgomery County Courthouse in Rockville, arguing that that statue should be removed. 

The Harvard Law School seal issue is it not as clear-cut as the Confederate Soldier Memorial issue.  The symbol is not offensive on its face.  But it does represent the sordid side of our country’s origins (and the origins of its most prestigious institutions).  The report of the Harvard Committee recommending that the seal be dropped is useful, because it provides a reasonable framework to analyze such questions. http://today.law.harvard.edu/wp-content/uploads/2016/03/Shield-Committee-Report.pdf 

But the dissenting view of Committee member Professor Annette Gordon-Reed, an African-American scholar who has written extensively on the history and legacy of slavery, digs deeper into the issues and concludes that this particular symbol should remain, so that the Law School community always remember, rather than paper over, the evil past.  Here is part of what Professor Gordon-Reed writes:

Thanks to historians, we have “new knowledge” that we are joined in history to a group of people entrapped in the tragedy of the Atlantic slave trade. This also joins us to the larger American story of slavery. We should take this knowledge and run with it, not away from it. I end where I began: the larger purpose outside of our own personal feelings is to marry the memory of the injustice done to the people enslaved on the Royall plantation to Harvard Law School’s modern commitment to justice and equality through a well-known symbol that connects both.  

While I appreciate the highly-charged (and perfectly legitimate) emotions and intellectual points surrounding the origins of the seal and the accompanying desire to remove it, Professor Gordon-Reed may well have the better of the argument.  I would ask that no one agree or disagree on this point without first reading both the majority and dissenting reports. They are both worth considering as we face up to our history and try to figure out which symbols we should keep and which symbols we should drop. 

The GOP's "Perfect" Storm

On August 11, I outlined the dilemma in which the Republican Party now finds itself.  For anyone interested, below is an annotated version, in light of yesterday’s election results:

***

There will be 2,470 voting delegates at the Convention -- or 1,236 to win the nomination... 49% of those delegates will be selected before March 15 -- the time period during which the states MUST use a proportional formula for delegate allocation.  So let's say that Trump secures 25% of those delegates -- and is running in "first place."  In Trump World (and, to be honest about it, in Media World) that would mean he is "winning" even if most of the other 75% desperately wants someone else.   So on March 14, let's say he has 302 delegates (25% of the total). [Indeed, he has 315 delegates after yesterday’s results.]  He would need to get 934 [actually, now 921] of the remaining 1,262 delegates to win.  Sounds daunting, no?

Well, it is not daunting at all, under the present rules. The Republican National Committee allows state parties selecting their delegates beginning on March 15 to use a winner-take-all approach:  In other words, whoever come in first, regardless of the percentage of votes secured, gets ALL the delegates. [Nearly all of those states have opted for the winner-take-all approach.]  

 
So even if a number of candidates drop out, it is not at all inconceivable that Trump will continue to role up pluralities; except that from March 15 onward, a 25% [or, as things seem to be playing out, a 35% plurality] translates to 100% of the delegates.  If Trump gets pluralities in states with 74% of the remaining delegates, he wins the nomination.

Of course, the state parties could easily deprive Trump of such a triumphant march to the nomination by changing their rules to mandate proportional representation (as is required in the pre-March 15 states).  Indeed, such an approach certainly would be more democratic.  But, in Trump World, that would be "unfair" because he would be deprived of so many delegates even though he is "winning" -- i.e., coming in first in a multi-candidate field.  If he loses the nomination because he is not treated "fairly," he has made it clear he will run as a third-party candidate, thus probably assuring a Democratic Party victory in November.  So the party leaders likely will not change their formulas.

[But if the party leaders did seek to change the formula, Trump could (and likely would) file a lawsuit.  A similar 1972 lawsuit is discussed on pp. 14-15 of a law review article I co-authored with Joe Rauh and Ken Bode in 1973.  Here is what happened:  In June 1972, George McGovern seemed to seal the Democratic nomination by winning the then-winner-take-all primary in California with 43% of the vote; the Democratic Party rules then allowed winner-take-all primaries.  When the anti-McGovern forces on the Convention’s Credentials Committee voted to strip McGovern of 57% of his California delegates – thus depriving him of a majority on the floor of the Convention – McGovern sued, and a panel of the U.S. Circuit Court of Appeals for the District of Columbia Circuit agreed that it would be illegal for the Convention to change its rules at the end of the game.  The Supreme Court issued a stay of the ruling, and the Convention eventually awarded McGovern all of the California delegates, thus assuring his nomination and making the lawsuit moot.  But the chaos created at the Convention doomed the McGovern candidacy in the general election. See this previous post for more on this.]

Now if, by Spring, there is a one-on-one matchup with Trump, one would think that Trump would lose.  But who would that one candidate be?  Is there any party leadership that could clear out the field for a one-on-one matchup?  It is hard to see, for example, the Koch Brothers being able to push out Jeb Bush in favor of Scott Walker; and it is hard to see Scott Walker bowing out in favor of Bush.

[The lineup of candidates is even more difficult for the party Establishment than the one I posited last August.  Bush and Walker are gone; just about everyone in the Establishment can’t stand Cruz, and Rubio is a lightweight; Kasich has yet to come in first anywhere. The process will drag on (with the accompanying embarrassing attacks by the candidates on each other), at least through March 15 -- and beyond, particularly if Rubio or Kasich are able to win their home states. There are no good choices for the Republican Party, and they realize that.]

The Trump/GOP descent into chaos was entirely predictable by late last summer

The Trump/GOP descent into chaos was entirely predictable by late last summer.

The New York Times just published a really detailed analysis of the national nominating convention delegate selection process in the Republican Party, and how it is playing out.  The question now isn't whether Trump gets the nomination, but, rather, how ugly the process will unfold.

One really interesting question is how the Evangelical vote will continue to split, particularly in light of the strange (instructive?) Trump responses to his rabid support by avowed White Supremacists, including the Ku Klux Klan.  Some are disgusted by Trump; others don't seem to care about his flouting of their view of Christian norms of decent behavior. No one really knows yet what choices members of the former group will make when the November election roles around.  These choices will tell us much about the actual nature (and splits) in among self-described Evangelicals.  See my blog post here.

Both of these dynamics have been clear since late last summer.  It is astounding how long it took the Republican "establishment", such as it is, and most of the media, to recognize them. See my blog post here.   

For those election geeks who really want to get into the weeds, check out this resource.

The Bork/Kennedy Precedent: Meeting in the Middle. But Is That Possible Anymore?

In 1987, the United States had a conservative President, Ronald Reagan, and a liberal majority Senate. President Reagan nominated extreme conservative D.C. Circuit Court Judge Robert Bork to be an Associate Justice of the Supreme Court. Judge Bork was properly rejected by the Senate. I say "properly" not principally because I disagree with Judge Bork's judicial ideology, but because, in our constitutional system, Supreme Court Justices are nominated by the President subject to the advice and consent of the Senate. So what should the role of the Senate be when there is a huge ideological divide between the President and the Senate?

The Bork fight could have set a very good precedent: That when there is such a divide, the President should nominate, and the Senate should confirm, a qualified person whose judicial philosophy is somewhere in the middle. The appointment of Ninth Circuit Court Judge Anthony Kennedy to that seat met that standard.

This approach could have been confirmed and given precedential impact in 1991, when Justice Thurgood Marshall died. President George H.W. Bush nominated D.C. Circuit Court Judge Clarence Thomas, someone who was just as conservative as Judge Bork. And, as in 1987, Democrats controlled the Senate. But rather than focus on Thomas's judicial philosophy, too many Democrats got side-tracked by the Anita Hill scandal allegations. Lost in the sturm und drang of that controversy, the Democrats lost sight of the best lesson of the Bork battle: the desirability of meeting in the middle. And Thomas was confirmed by a close vote. (Note that the Democrats did not engage in a filibuster.)

Now we are faced with a situation that is the mirror image of 1987. We have a liberal Democratic President and a conservative majority Republican Senate. But rather than insist that President Obama send a middle of the road nominee, the Republicans refuse to consider anyone nominated by Obama. On one level, this is just another Republican rejection of Obama's legitimacy as President -- even though he received 66 million votes (a clear majority) in 2012, while Republican congressional candidates received only 40 million in 2014. 

As an institutional process matter, the Senate should give any presidential nominee to the Supreme Court a hearing and then an up or down vote. If there are not enough votes to confirm, so be it. If it takes a couple of nominees, so be it. 

Sadly, however, there no longer appears to be any middle ground in Supreme Court judicial politics. So an Anthony Kennedy-type compromise seems impossible. But the Republicans, to their discredit, do not even want to try. 

Here is another aspect of the current controversy that should be explored. Someone should ask Republican Senate Majority Leader Mitch McConnell the following question: Suppose Hillary Clinton is elected President this November, but the Republicans hold on to the Senate. Or the Democrats regain the Senate, but do not have a filibuster-proof majority. Would Senator McConnell continue to advocate obstruction of the Democratic President's nominee?  Would the Court then limp along with 8 members?  And what would happen if there were another vacancy?  Or several vacancies?

We have a pretty sound Constitution, but it is not idiot-proof. 

Recess Appointment to the Supreme Court and the Will of the People.

Fox News Reports that President Obama has until February 22 or 23 to make a recess appointment to the Supreme Court. http://www.foxnews.com/politics/2016/02/13/obama-has-rare-parliamentary-window-to-make-recess-appointment-to-succeed-scalia.html?intcmp=hpbt1

In a normal world, such a tactic by President Obama would be outrageous. But since the Senate Republicans have made it unambiguously clear that they would not even hold hearings, much less a vote, on ANYONE he would nominate, maybe he should use this obstructionism as a reason to at least fill the position for a while so the Court can get its work done. Since it would clearly be an interim appointment, maybe he should really make heads explode by appointing Laurence Tribe. 

As for the "will of the people," the 66 million votes Obama received in 2012 (https://en.wikipedia.org/wiki/United_States_presidential_election,_2012) are much more of a mandate than the 40 million votes the Republican Congressional candidates received in 2014 (https://en.wikipedia.org/wiki/United_States_House_of_Representatives_elections,_2014)

In any event, Democratic politicians should start actually using these electoral FACTS when the Republicans talk about Obama thwarting the “will of the people.”

Cruz will try to use Justice Scalia's death to vault himself ahead of Trump in South Carolina

Tonight's Republican debate should be interesting. I suspect that Ted Cruz will wrap himself in the mantle of Antonin Scalia, noting his (Cruz's) clerkship on the Supreme Court and his arguments before the Supreme Court as Texas Solicitor General.  Cruz will try to use Scalia's death to vault himself ahead of Trump in South Carolina. 

Some useful links on Cruz and the Supreme Court.

http://www.nytimes.com/2012/07/22/us/politics/a-history-for-senate-candidate-ted-cruz-and-supreme-court.html

http://www.nytimes.com/2016/01/12/opinion/the-brutalism-of-ted-cruz.html

http://www.nytimes.com/2016/01/21/us/politics/as-supreme-court-clerk-ted-cruz-made-death-penalty-his-cause.html