University of Minnesota Law School Professor Myron Orfield has materialized in the Star Tribune this morning to play the race card against Minnesota Supreme Court Justice Stras. The Senate’s consideration of Justice Stras’s nomination to the Eighth Circuit has been blocked by Minnesota Senators Amy Klobuchar and Al Franken. With the dishonesty that permeates his column, Orfield declares that Klobuchar and Franken “are exhibiting appropriate diligence.”
It is true that Franken purports to be studying Justice Stras’s record now that he has returned from his shift as disc jockey for a day curating the offerings on SiriusXM’s Grateful Dead channel while promoting his new book. The more than three months during which Stras’s nomination has been left hanging should have been more than enough for Franken to get a handle on Justice Stras’s record.
How does preventing a hearing on the nomination constitute “due diligence”? It doesn’t. This Myron Orfield is one slippery customer.
Klobuchar’s “due diligence” is equally illusory. Klobuchar is using the nomination as a bargaining chip to secure leverage over Minnesota’s four federal vacancies, including United States Attorney and two district court judgeships. That is her “due diligence.” Klobuchar must be grateful to Orfield for providing her cover; she’s a little sensitive about the exposure of her partisan game-playing with those vacancies, even if the exposure has been limited so far to Power Line.
Orfield’s column draws mostly on Justice Stras’s assessment of Anthony Kennedy’s concurring opinion in Parents Involved in Community Schools v. Seattle School District No. 1. In his brief comment on Justice Kennedy’s concurrence, Stras sought to ascertain which were to be deemed controlling authority and which parts dicta.
Unlike Orfield, Stras is a scholar, not an ideologically driven hack. See for yourself here. Orfield makes no argument that Stras got anything wrong. Rather, Orfield exploits the average reader’s lack of access to the relevant text to make a dishonest point.
Orfield’s dishonesty may culminate in this assertion:
Stras, in his words and writings, has suggested he’d prefer that judges worry less about their “moral and ethical obligations” to the country. Stras once lamented that the Supreme Court’s “ventures into the contentious areas of social policy — such as school integration, abortion and homosexual rights” have politicized judicial nominations.
Orfield’s assertion lacks even his usually creative dishonesty; it is derivative of an earlier, equally dishonest Star Tribune op-ed column by one Beth Gendler. Six Minnesota law professors with diverse political views joined together to respond to Gendler:
With respect to Stras’ academic work, Gendler’s piece distorted a book review written by Stras in 2008 called The New Politics of Judicial Appointments to suggest that Stras “lamented” the Supreme Court’s school integration decision in Brown v. Board of Education. That review discussed the work of Benjamin Wittes, a leading journalist and scholar at the Brookings Institute. As Wittes correctly observed, school integration in 1954 was a controversial subject, and the court’s decision in Brown became an issue during confirmation hearings for subsequent Supreme Court justices. Stras summarized Wittes’ views in his review. To suggest this discussion somehow means that Stras “lamented” the school-integration decision is absurd.
In his Texas Law Review book review of two books on the confirmation wars — the book review just cited, this is what Justice Stras wrote to summarize the review’s concluding section (i.e., part III):
Part III begins where both books leave off by identifying the structural, judicial, and external factors that account for growing politicization of the judicial appointments process. Structural factors, such as the passage of the Seventeenth Amendment and the proliferation of confirmation hearings for judicial nominees, have driven the Senate to take a more active role at the confirmation stage. External factors, such as the rise of organized interest groups and the mass media, have exerted pressure on the key players in the process, including senators and the president, to act with a keen eye toward pleasing constituent groups and maintaining a consistent policy image. Finally, the Court’s own ventures into contentious areas of social policy—such as school integration, abortion, and homosexual rights—have raised the stakes of confirmation battles even higher. In fact, the new politics of judicial appointments have become so contentious, especially with respect to circuit court nominees, that the process for appointments now bears striking similarity to the polarizing legislative process that so many Americans find objectionable.
Myron Orfield, you might say, is a case in point.
When it comes to playing the race card and dealing it from the bottom of the deck, as Robert Shapiro said of the late Johnny Cochran in his defense of the murder charge against O.J. Simpson, Cochran had nothing on Myron Orfield.