Elizabeth Warren

Sandy Levinson

Like many around the country, I'm transfixed by whether Pres. Obama will (as he most certainly should) appoint Elizabeth Warren to head the new Consumer Protection Agency that is part of the regulatory legislation signed yesterday. First, I should note that Liz is an old friend, going back to the time she graced the University fo Texas Law School faculty. (We lost her first to Penn and then they, in turn, lost her to Harvard.) I simply want to make two points:

1. It is a mistake to fixate on her status as a "Harvard Professor." Yes,she is that, but, unlike most Harvard law professors (and some of my best friends are Harvard law professors.....), she is an authentic populist far more than a technocratic progressive. This may be traceable to her growing up in Oklahoma. She went to the decidedly unfashionable University of Houston for her undergraduate education and then went on to the almost equally unfashionable Rutgers Law School for her J.D. (I am confident that she will remain the one and only graduate of Rutgers who will ever be hired by the Harvard Law School, since their "pool" tends to be drawn from the graduates of a remarkably small number of "elite" law schools.) It is safe to say that Liz got to Harvard entirely and exclusively on her own merits, as one of the leading bankruptcy experts in the United States, period. Along with UT Professor Jay Westbook and then UT Professor Terry Sullivan (who has just bcome president of the University of Virginia), she did the most sophisticated and important empirical examination of the actualities of bankruptcy and, along the way, exploded a lot of myths that privileged people have about those who go bankrupt. Long before the past couple of years, she emphasized in both scholarly and popular writings that an amazing number of families was one serious medical illness away from bankruptcy. Anyone who has seen her on television knows that she has a remarkable ability to communicate the importance of reforming our financial institutions and cracking down on predacious credit-card issuers and the like.

2. The fact that banking interests and the Repubilcan Party (who can truly be described these days as running dog lackeys of the banking interests--as distinguished from most Democrats, who are lackeys of same, but not with the same degree of abject submission) will be apoplectic and try to filibuster her appointment is a plus, not a minus. It's not only that her appointment, unlike that of the other two (by stipulation, thoroughly competent and equally thoroughly unknown to all but DC insiders and a very few others) contenders, would invigorate Obama's base, something badly needed these days, especially after such fiascoes as Shirley Sherrod and Dawn Johnson (and the disintegration of OLC). It's also the case that a filibuster would be a delight to see, especially if former boxer Harry Reid displayed some backbone and forced a "real" filibuster that forced the Republican mad-dog lackeys not only to stay up all night, but also to explain exactly why someone with Warren's impressive personal background and even more impressive intellectual accomplishments--and her ability to communicate so well with the American people, especially those most in need of protection--is unfit to serve the public.

For many of us, this is an acid test as to whether the Obama Adminsitration really does have backbone, except when Rahm Emanuel wants to curse liberals for not being sufficiently "understanding" of the need to capitulate, again and again, to self-proclaimed "realities." Some of the time, of course, Emanuel is absolutely right. But this isn't one of them. Both crass politics and the public interest make Elizabeth Warren the right person at the right time. If she is passed over, then "we" should insist that she be nominated to replace Ruth Bader Ginsburg, not least because it would really be wonderful to have someone on the Court who actually understands bankruptcy law and because, of course, it would be even more wonderful to have Elizabeth Warren construing the meaning of the various provisionsn of the 2300-page statute signed yesterday. It's a great thing for Harvard to have her on its faculty, but her highest and best use is a very high position serving the country at large.
Posted 5:21 PM by Sandy Levinson [link]