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Eph Partner on Kavanaugh

Looking for a Williams connection to the Kavanaugh nomination fight? EphBlog has you covered!

On Thursday, Senate Democrats disclosed that they had referred a complaint regarding President Trump’s Supreme Court nominee, Judge Brett Kavanaugh, to the F.B.I. for investigation. The complaint came from a woman who accused Kavanaugh of sexual misconduct when they were both in high school, more than thirty years ago.

Reporter Ronan Farrow is the partner of Jon Lovett ’04.

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#1 Comment By abl On September 26, 2018 @ 12:05 am

Real question: is there a reason besides “politics” that Mark Judge should not also be subpoenaed on Thursday? Like, if the goal is getting the truth, what is the argument against having the only other alleged witness in the room testify in person and under oath?

#2 Comment By frank uible On September 26, 2018 @ 2:24 am

In 1947 there was a hit song called I’m My Own Grandpa.

#3 Comment By PTC On September 26, 2018 @ 11:38 am

That is because the goal is not getting at the truth.

The goal is to sink or to save the nomination.

#4 Comment By Whitney Wilson ’90 On September 26, 2018 @ 1:31 pm

PTC has it exactly right on this one. While there may be individual senators who want to know what actually happened, the vast majority simply want to either confirm or defeat the nominee. For those opposed, these allegations are another vehicle towards acheiving their goal. For those in favor of confirmation, the allegations are simply another obstacle to overcome.

#5 Comment By ZSD On September 26, 2018 @ 4:59 pm

Please don’t forget the shuddering overtones of “boy’s will be boys” on the mid-terms among women voters.

#6 Comment By abl On September 26, 2018 @ 5:50 pm

@PTC & WW — so is the answer to my question no? There is no good reason, besides “politics,” not to have Mark Judge also testify?

#7 Comment By PTC On September 26, 2018 @ 5:54 pm

ZSD- Women also have husbands and sons.

It depends on the optics. I am not sure how the republicans survive these midterms if they fail to nominate someone.

Maybe one more shot after this if it goes against K. Maybe.

#8 Comment By abl On September 26, 2018 @ 6:19 pm

PTC — Yes! Men are also victims of sexual assault and rape!

#9 Comment By PTC On September 26, 2018 @ 6:36 pm

abl- True. But the numbers are much smaller. Women also have a sense of fairness just like anyone else. I hate to pretend to peak for it like ZSD initiated. For that I apologize.

This is the 11th hour. It is what it is for K.

In the end, I think it is the Ivy League elitism of the Court that bothers me the most. Perhaps the polarization. It is too divided and monolithic by pedigree and partisanship. Also regionalism.

abl- I think perhaps you may be with me, and look at this issue from a historical perspective of the Court… but yes- THE NOW.

People generally have a sense of right and wrong, and a lot is riding on the optics of tomorrow’s hearing.

#10 Comment By abl On September 26, 2018 @ 7:03 pm

I don’t totally follow objections re “Ivy League” elitism: Harvard and Yale Law Schools are full of graduates of public colleges. Do you get a leg up at Harvard Law School if you went to an undergrad like Williams rather than MCLA? Absolutely. But it’s a fraction of the advantage that you get at Williams from going to a school like Andover vs a poor country public school.

Harvard and Yale Law Schools are “elite” insofar as they have the highest concentrations (outside of possibly Stanford) of the most promising lawyers — not because they have the most students with wealthy backgrounds or the most students with connected parents or something else of that nature. Is the system purely meritocratic? No. Privilege obviously still plays a huge role in who gets into the best law schools. But it’s a whole lot more meritocratic than a slough of other systems that are the subject of far less controversy. (For example, admission to Harvard Law School is much more of a meritocracy than appointment to a federal judgeship, and few people decrying elitism in SCOTUS would hesitate to back a federal judge for SCOTUS who went to, say, Illinois Law School.)

#11 Comment By PTC On September 26, 2018 @ 8:14 pm

I think you get it abl.

But maybe you do not? Which is fine.

It is not an objection per se of people from Yale/Harvard law schools… it is what it is when you look at the Court.

Have you looked at the Court? Please give me the rundown? Is that diversity in education? Is it inclusion?

Trump wanted a woman from Notre Dame. This was a decision made to placate the Bush side of politics. The Bushies won, and we got K from H. Boring.

H has a lot to do with this decision. Well, as you noted- H is “much better” at this (BS) than others. Of course! We only have so many other peons to choose from.

Now you could argue that the Court makeup is purely a matter of the fact that the only good jurists come from those schools. Diversity? Na.

History sais no. Not until recent history.

Elitism. Love it!

It’s political. It has everything to do with elitism.

You disagree? I think not.

#12 Comment By PTC On September 26, 2018 @ 9:17 pm

PTC —

My point is that I don’t understand the advantage of having people from lower-ranked schools. Sure, maybe, if you believe that there is a “Harvard Law School” distinct approach to education that has persisted across decades that could color the way the Harvard Law-educated justices decide cases (which I seriously doubt), there would be an argument to have justices from Yale and Stanford and Columbia as well. But that’s not a problem of “elitism.”

I’m all for diversity. I’m all for diversity on the Supreme Court specifically. But I’m not convinced that diversity of law school quality is a meaningful type of diversity. Appoint justices who come from a variety of personal and professional backgrounds, please. Appoint justices of different genders, races, and religions, please. But you can do that while also appointing justices who went to the best law schools.

I want to make it clear that I am absolutely not categorically opposed to appointing a justice who went to a lower-ranked school. Like you point out, there are excellent lawyers and brilliant legal thinkers who did not attend Harvard or Yale (or Stanford … etc). But I can think of no good arguments for (and a number of good arguments against) specifically seeking to appoint a justice who went to a non-elite law school for no reason other than she went to a non-elite school. (This point isn’t anti-Barrett or anti-Kethledge. Notre Dame and Michigan are hardly non-elite schools.)

If the Supreme Court was comprised entirely of justices born in January, one could argue that there was bias towards winter babies on the court. It would, however, be a silly thing to care about. This is only different insofar as there is actually a meaningful correlation between law school quality and judge quality. If you want the best justices, you should disproportionately draw graduates from the best law schools.

There might be some irrational bias towards Harvard and Yale and away from Stanford and Columbia and Chicago and NYU … etc. If so, that’s a problem remedied by looking more to Stanford and Columbia and Chicago and NYU …etc – trained lawyers — not by lambasting the “elitism” on SCOTUS.

There are lots of reasons to be POed about Kavanaugh’s lack of diversity. He’s a wealthy straight Christian white male who has lived his entire life in privileged personal and professional circles. He represents a viewpoint and a set of experiences that are extraordinarily well-represented as it is everywhere–including on the judiciary and on the Supreme Court. The fact that Judge Kavanaugh went to Yale Law School is probably the least important respect in which he will fail to diversify the Supreme Court.

#13 Comment By abl On September 26, 2018 @ 9:21 pm

Ah! That was my post above. I have no idea how that happened — but obviously PTC is not responding to himself.

#14 Comment By PTC On September 26, 2018 @ 9:23 pm

Yawn.

#15 Comment By abl On September 26, 2018 @ 10:02 pm

@PTC – not your best.

#16 Comment By PTC On September 27, 2018 @ 5:49 am

abl-

Explaining the obvious is boring. The questions answer themselves.

Why is it political to wait for an 11th hour investigation prior to midterms?

Why does a Court full of Harvard and Yale law school grads display a lack of diversity because of that fact?

Why is this Court so monolithically partisan?

Is Justice Sotomayor a diverse jurist? What about Justice Thomas? Is Justice Thomas a diverse jurist? Roberts is the new swing vote- is Roberts a diverse jurist?

If K sinks, the next nom will be a woman. Let me guess- WOMEN CAN ALSO BE….

Got it.

#17 Comment By PTC On September 27, 2018 @ 8:09 am

Abl-

And if you think I am making an argument for conservative or liberal judicial philosophy you are mistaken. A “living constitution” and “constructionism” are false designs. They are designs used to mold politically partisan outcomes- to pre-determine decisions based on political partisanship.

Harvard and Yale have given us nothing but judges that proscribe to these false theories.

Of course that can be attributed to the selection, but it would seem that such “judicial philosophy” (read who a president can choose and a senate confirm who will be political) is now present in the Court from these two schools. HY mold jurists to these realities because they are elitist.

Sovereign is he or she who decides on the exception. I cannot put it any more plainly than Schmitt. HY have trained the jurists now on this Court to decide based almost entirely on the basis of political philosophy masked at judicial philosophy.

You will not get that from every law school.

#18 Comment By abl On September 27, 2018 @ 12:09 pm

Why is it political to wait for an 11th hour investigation prior to midterms?

The question was about Judge. You still haven’t answered it. Your response is just “whataboutism.” (Also, Dr. Ford didn’t wait. Also, what counts as “11th hour” is arbitrarily established by Republicans here.)

Why does a Court full of Harvard and Yale law school grads display a lack of diversity because of that fact?

Again, I’m not arguing that a Court full of Harvard and Yale law grads has much “quality of law school” diversity. I’m arguing that “quality of law school” diversity is meaningless at best (much the same way that “month of birth” diversity is meaningless) and harmful to the Court at worst. Want to know another way in which the Court lacks diversity? All of the justices were good lawyers. There’s no “quality of lawyer” diversity on the Court.

Is Justice Sotomayor a diverse jurist? What about Justice Thomas? Is Justice Thomas a diverse jurist?

Yes! And I don’t know how one could reasonably argue that the diversity of experience and background that Justices Sotomayor and Thomas add to the Court are not more meaningful, as a matter of degree and kind, as the diversity that would be added by appointing a straight white wealthy Christian male who went to Harvard undergrad but Suffolk Law School. I don’t disagree with everything that Justice Thomas and Justice Sotomayor write, but there is no reasonable argument that their respective racial experiences shape their respective jurisprudences.

Roberts is the new swing vote- is Roberts a diverse jurist?

I don’t know what you’re getting at. Obviously Justice Roberts’ background largely reflects the backgrounds and experiences that have long been overrepresented on the Court.

If K sinks, the next nom will be a woman. Let me guess- WOMEN CAN ALSO BE….

Yea, that’s probably true. Woman really are only very rarely sexual assaulters, so it’d be shocking if the next female nominee is accused of anything of this nature. Note: it’s not like all white males are being accused of sexual assault, nor even all white male SCOTUS appointees. Justice Gorsuch’s nomination, which was a WHOLE lot more unpalatable from a political standpoint in a lot of ways (given what happened w/ Garland), didn’t provoke anything of this nature. That’s part of why I don’t buy the whole “set-up” argument. Why fake accusations against Kavanaugh but not Gorsuch?

#19 Comment By PTC On September 27, 2018 @ 1:00 pm

We do not know if these allegations are true or false. We probably never will.

As I have said, I am not a fan of the current jurists on the court because of their political purity. For me, diversity in law pertains to the ability to leave partisan politics aside during controversial judicial decisions. I don’t like K as a jurist- for very different reasons than you. I don’t like Sotomayor as a jurist for these same reasons.

Recently it has been the conservative justices moving left to provide a swing- but that is the flaw with the court. You can predict the outcome based on politics, with some sense of fairness or perhaps protectionism from people like Roberts who do not want the court to be seen as political.

This Court is clearly political. It lacks diversity. It is partisan. That is my point. That is a fact.

HY has been a grooming ground for this (false) process. That is an opinion.

#20 Comment By abl On September 27, 2018 @ 1:52 pm

PTC,

You’re all over the place.

First, you don’t get to unilaterally re-define diversity. (“For me, diversity in law pertains to the ability to leave partisan politics aside during controversial judicial decisions.”) Diversity and non-partisanship mean completely different things. It would be possible to have a very diverse and very partisan Court. It would also be possible to have an entirely non-diverse Court that is also entirely non-partisan. The interests implicated by diversity overlap slightly with the interests implicated by a desire for non-partisanship, but these are largely different concerns–and words with very different meanings.

Second, I don’t see how conservative justices moving left is a “flaw of the court,” at least as it relates to either diversity or partisanship. To the extent that there are negative consequences of justices turning out to be jurisprudentially further left or right than expected (or of justices shifting in their viewpoints), these consequences are different, and largely unrelated, to concerns about the diversity of the court or the partisan purity of the court. In fact, to the extent that there is any relation between partisanship and shifting ideologies, non-partisan judges will be less likely to be ideologically fixed. Thus, in one breath, you criticize the Court’s fixed partisanship while also citing examples of nonpartisanship as a “flaw.”

Finally, your point about Harvard and Yale seems to be that (you think) the partisanship of the Court is somehow tied to the fact that these justices all each went to Harvard or Yale. But you haven’t provided any support–factual or logical–or any authority to support this assertion. What is it about Harvard and Yale specifically that lead to greater partisanship? And, moreover, why is this a problem tied to law school quality? E.g., even accepting that there might be something weirdly “special” about Harvard and Yale with respect to partisanship-grooming, why wouldn’t appointing more justices from Stanford or Berkeley or Chicago — all excellent schools with cultures very different from Harvard or Yale — solve this problem? Why is it that we need more justices on the Court who hail from worse schools in order to obtain a less partisan Court? What reason would you have to believe that a George Mason- or BYU- or UC Hastings- trained law graduate is less likely to be purely partisan than a Michigan- or Virginia- or Chicago- trained law grad?

Incidentally, on the subject of the Court’s partisanship and/or political purity, roughly 50% of its decisions in a given year are unanimous–including countless decisions with far-reaching consequences on matters of deep important for political liberals and conservatives alike. And most of the Court’s non-unanimous decisions are either 8-1, 7-2, or involve justices voting in ways that diverge from what might be predicted by their presumed political leanings. See also, e.g., the Fourth Amendment jurisprudence of Justice Scalia or any of the many absurd opinions written by Justice Thomas for strong counter-examples of when the presumed political leanings of a given justice poorly predict that justice’s vote in a given case.

#21 Comment By PTC On September 27, 2018 @ 2:02 pm

There is no such thing as political diversity?

Good to know.

This court is not partisan?

Right. I think you will be hard pressed to find any good law professor attempt to make the argument that this Court is not partisan- as you just have.

This Court is partisan. That is a fact. Political diversity, or lack thereof, is a real thing.

#22 Comment By PTC On September 27, 2018 @ 2:16 pm

Feel free to guide me to the scholarly articles that point to how non politically partisan this Court is.

I believe you will find plenty of arguments for this Court’s partisanship. None saying it is not partisan.

#23 Comment By abl On September 27, 2018 @ 2:23 pm

PTC —

There is no such thing as political diversity?

There’s a difference between political diversity and nonpartisanship. Your point about diversity (“For me, diversity in law pertains to the ability to leave partisan politics aside during controversial judicial decisions”) seemed to be about (non)partisanship.

There is, of course, such thing as political diversity. The current Court has some political diversity (insofar, at least, as 2+ different political ideologies are well-represented on the Court). As the Court’s entire history has demonstrated, it is not difficult to get a Supreme Court that is political diverse while only hiring from the best law schools in the country. I have never argued that “[t]here is no such thing as political diversity.” Nor has your argument seemingly turned around the need to hire from worse law schools so as to ensure that the Court is politically diverse.

If you want a Court that represents a more politically diverse set of views, your first step should be to disregard the suggestions of Fed Soc, which is explicitly devoted to ensuring a certain brand of ideological purity on the Court. (There isn’t a comparable organization on the left.) There is no lack of political and ideological diversity in the top law schools, and it would be easy to get a Supreme Court that represents a wider range of political and legal views on both the right and the left while still choosing largely (or even exclusively) from graduates of top law schools. Incidentally, the result of this would be a far more idiosyncratic court — you’d have more Souters (who, because he represented a less-mainstream view of Republican conservativism, voted largely with the Court’s liberal block), not fewer.

This court is not partisan?

I didn’t say that. My aside point is that the Court is far less exclusively driven by partisanship than you (and others in the popular sphere regularly) imply. I don’t think that there are many (any?) good law professors in the country who would disagree with anything that I posted above in this vein (most of which was simply a repetition of facts).

Regardless, though, even accepting–incorrectly–that the Court’s jurisprudence is mostly driven by partisanship, you have failed to provide any factual or logical support (or any authority) for your claim that this failure is driven by, let alone related to, the fact that the justices went to some of the best law schools in the country, or that appointing more justices from worse law schools would do anything to help in this respect.

#24 Comment By PTC On September 27, 2018 @ 2:52 pm

That is why it is an opinion, not a fact.

#25 Comment By PTC On September 27, 2018 @ 2:56 pm

Looks to me like this Yalie is going down in flames, by the way.

Mostly because of his lack of social diversity.

#26 Comment By PTC On September 27, 2018 @ 3:03 pm

abl-

Looking like Ryan or Barrett. My money is on Barrett.

Roberts has his work cut out for him…

Gotta run to class- on this.

Thanks for your time.

#27 Comment By ZSD On September 27, 2018 @ 3:21 pm

K seems to be a student of Drumph in his oratorical style! And in his aviodance of the issue on the table.

K as Virgin Hero of the American Ideal. What an asshole.

#28 Comment By PTC On September 27, 2018 @ 3:34 pm

ZSD- watching this now with you… I agree with you that the optics are not good.

#29 Comment By abl On September 27, 2018 @ 3:55 pm

Barrett would be interesting, b/c I think Collins and Murkowski have both said they wouldn’t vote yes to someone outwardly opposed to Roe, and I think Barrett has been pretty outwardly opposed to Roe. I wonder if Trump would nominate Barrett and essentially dare Collins and Murkowski to vote no yet again.

Do you think that K is done? My instincts and leanings are really different from yours, so I’m super curious to hear how this is playing for you, PTC (and DDF and the other right-leaning folks here).

#30 Comment By PTC On September 27, 2018 @ 4:47 pm

It’s the optics. He is defending himself well right now, but in the end I think his pedigree hurts him more than helps him.

He may still make it. I think it looks bad though.

I’d rather see Ryan, because of the military background both practically and as a matter of practical and judicial diversity.

But Barrett just went through the process and is fresh- and time is a huge issue. I disagree with your assessment of how Barrett would present herself and how Collins and Murk would vote.

#31 Comment By PTC On September 27, 2018 @ 6:10 pm

Both Murk and Snow voted to confirm Barrett for the Seventh Circuit in October of 2017. I doubt they create a new layer of a test for Roe for her to elevate, even though it matters, of course.

They will not be able to afford such a change so soon after this, if K goes down. They will be a part of bringing him down.

What we are witnessing is partisan theater because both sides now demand politically groomed partisan jurists. The majority decides.

Be it the ACLU Democrats or the Federalist Society Republicans.

I am rooting for the Marine. A fresh face outside of the puppy mill. I doubt that happens- no one will know exactly what to make of her.

#32 Comment By abl On September 27, 2018 @ 6:24 pm

PTC — as a 7th Circuit judge, Barrett is bound by Roe (and its progeny) in a way that she is not necessarily as a SCOTUS justice. Senators Murkowski and Collins both have made it clear that it is SCOTUS about which they are concerned for these purposes — as they should be.

Also, the ACLU (which is not even altogether aligned with the modern Dem party) does not play anywhere close to the same role in vetting and suggesting and filtering potential judges as does Fed Soc. I’m not arguing that what Fed Soc does is necessarily bad (although if you care about intra-party political diversity, Fed Soc’s efforts are super counterproductive to that). I’m just arguing that, as a factual matter, there is not anything remotely comparable on the left. (ACS comes the closest, but ACS has nowhere near the influence or cohesiveness as does Fed Soc.)

#33 Comment By frank uible On September 27, 2018 @ 6:25 pm

Big time politics is big time depressing.

#34 Comment By ZSD On September 27, 2018 @ 9:08 pm

It is amazing to me that both Drumph and K have been so influenced by Queeg’s rant about the messboy’s and the missing strawberries.

#35 Comment By ZSD On September 27, 2018 @ 9:17 pm

… for those who may not remember:

https://www.youtube.com/watch?v=-95QqBXLG2I

#36 Comment By Alum-Anon On September 27, 2018 @ 9:24 pm

It is amazing to me that both Drumph and K have been so influenced by Queeg’s rant about the messboy’s and the missing strawberries.

Less Wouk than “woke,” and less “woke” than clueless.

#37 Comment By PTC On September 28, 2018 @ 7:16 am

abl- I had no idea that SCOTUS decisions were binding on Circuit Courts. Thanks for the heads up.

Just kidding.

Barrett has not written decisions or cast votes on abortion. She has written articles, and been a member of groups, and has a well known personal opinion- but her answer during confirmation was and will be Stari Decisis, Stari Decisis and Stari Decisis.

She drives liberals crazy because of her religious beliefs, but that does not mean that Snow votes no because the judge has a personal opinion that she tempers through precedent.

At least she is not HY, but she is still a partisan jurist. Just like everyone else now on this Court.

I want the Marine. Someone coming from an Article I court who brings a whole different perspective into this. A complete outsider. A wild card. New thinking.

By the way, I never said that the POTUS/ Senate should select from a T2 or T3 school. Just that there might be more to life than the groomed partisans we have gotten from HY. Please god, anything than another Yalie or Harvard man.

But you are correct, you can find groomed partisans from other places. Barrett is that. If K goes down, she has a good shot at being nominated and confirmed.

#38 Comment By PTC On September 28, 2018 @ 8:07 am

#39 Comment By PTC On September 28, 2018 @ 8:22 am

https://scholar.harvard.edu/files/msen/files/judicial_ideology.pdf

Here is another one you will like. Lots of data. Well written.

#40 Comment By fendertweed On October 1, 2018 @ 11:42 am

It’s easy to give lip service to stare decisis when you want the job.

It’s also easy to twist it to your own ends once on the Court. I put no stock in Barrett’s rote disclaimers.

#41 Comment By PTC On October 1, 2018 @ 12:18 pm

Fender- Of course. But that does not change the fact that the Republicans are in control of this process, and can use that to vote how they want to vote. Just like they did when they confirmed Barrett for the circuit court.

The same general tenor would be used by a liberal judge if asked about gun rights. They would dodge. You think a gun control jurist would come out and say something to put the vote of Dems from strong gun rights states in jeopardy?

No way.

All nominees do this now.

#42 Comment By fendertweed On October 1, 2018 @ 2:00 pm

I’m not sure how any of that is relevant to the issue of believing re her true beliefs. In a case like hers or K, hard to believe they’ll throw off the aggressive political tone. And stare decisis isveasily pulled and twisted once you’re a Supreme..

In contrast, there are many judges across the spectrum who can do the job without pandering to the worst elements (rabid partisanship on either side), as is clearly the case here (and, I believe, w Barrett or a clone).

I practiced before many judges with politics different than mine. It was never an issue, but it would be hard to have much respect for K as an attorney in his courtroom after his unhinged performance.

He’s flagged everything he does going forward as a potential extension of an angry political rant, even a vendetta.

#43 Comment By fendertweed On October 1, 2018 @ 2:03 pm

P.s. NO nominee ever behaved liked K, that alone renders him unfit IMO regardless of his politics, etc.

The behavior was unprecedented, unprofessional, and disqifying IMO (I’ve been fortunate to serve as a judge, and in that context K’s behavior was inexcusable.).

#44 Comment By PTC On October 1, 2018 @ 3:03 pm

I am not disagreeing with what you are saying fender- but in the end if he can get 50 senators he will be confirmed.

Good luck getting him off the bench if he is confirmed. That is not a procedural rule matter that the senate controls like the filibuster to confirm is. It takes 2/3. Call when you have 67.

Same as Barrett.

I’d prefer Ryan.

This is also true of the left wing judges on this court- although partisans will deny that. Sotomayor did not sign her more controversial (ideologically based) opinions- because this is political and judges position themselves for these jobs by playing to politics.

We were much better off before the filibuster ended for this process…

Who is to blame for that? Well, I would imagine that the democrats will argue the republicans are to blame, and the republicans will argue the democrats are to blame… and la da da da.

#45 Comment By abl On October 1, 2018 @ 4:40 pm

PTC — I think the issue here is that you’re responding to a normative point (K shouldn’t get confirmed) with a descriptive point (K will get confirmed if he can get to 50 votes).

I 100% agree with you re the filibuster, though, about which both parties clearly bear some of the blame.

#46 Comment By fendertweed On October 1, 2018 @ 5:25 pm

… what abl said. ;-)

#47 Comment By PTC On October 2, 2018 @ 7:35 am

abl/ fender-

But that is my basic critique of this Court in general. It does not matter who “should be confirmed.” What matters is partisanship, and both sides stacking this Court full of ideologues who will decide on the exception the way that either Republicans or Democrats want.

The normative does not matter. At this point, no clearly ideological jurist who has been groomed for a “side” should be confirmed- but they will be.

#48 Comment By PTC On October 2, 2018 @ 7:52 am

To change the subject- since I have now diluted this into a circular argument- what do you two think about this?

https://www.wsj.com/articles/california-moves-to-mandate-female-board-directors-1535571904

Fantasyland only because of the law? Is it/ should it be fantasyland?

#49 Comment By fendertweed On October 2, 2018 @ 9:33 am

“The normative does not matter. At this point, no clearly ideological jurist who has been groomed for a “side” should be confirmed- but they will be.”

Sad, but true.

#50 Comment By abl On October 2, 2018 @ 11:33 am

@PTC: honestly, I’d want to learn more re California. I’m a fan of the general goal (diversifying boards of directors) but not a huge fan of the strategy used (absolute government mandating).

I generally prefer the incentive/economic approach — create (potentially governmental) incentives that encourage the practice in question. I think the incentive approach is at its best when the incentives in question are well tailored to / mirror the underlying policy goals at stake. E.g., if the issue here is that we are worried that all-male boards will do a poor job of handling internal sexual assault allegations, a slight presumption towards allegations denied by all-male boards in the review process could go a long way to remedying the problem–it will both address the underlying fairness problem while encouraging boards to diversify–while minimizing the generation of negative side consequences generated by the government intervention.*

*I just made this example up on the spot, so I fully reserve the right to abandon it on further thought.