an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
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
by Sandy Levinson [link]
Since only a few cases will be concerned with the legislation or bankruptcy, I need a bit more to suggest why she is the best replacement for Ginsburg.
But, there is more suggested by the post, so I'm game, if it comes to that.
Overall, I do want more reasons for the base to be excited, since they were screwed over with Dawn Johnsen and others, while people like the Secretary of Labor, who is supposed to be someone they should like is like never heard of, though these days, that position would seem to be fairly important.
I, too, have long admired Elizabeth. She is the logical choice to head the new Consumer Protection Agency.
But I also admire Paul Krugman, especially with his Op-Ed views during the Bush/Cheney years. Yes, Paul may have been a logical choice as a top member of Obama's economic team. But if Paul had been appointed, the political loyalty requirement may have been too limiting. I don't know if Paul was asked to joined, but I'm glad he didn't so that he can continue to give frank economic advice and analysis not only in his twice weekly Op-Eds in the NYTimes but with even more frequency with his Conscience of a Liberal Blog at the NYTimes. His independence serves liberals, progressives AND America well.
The concern I have with Ms. Warren's appointment is that her independence may be stifled because of political requirements of loyalty. Her independence, as in the case of Paul Krugman, may better serve us all outside of the Obama Administration, unless her independence can be assured (somewhat in the manner of, but better than, the Fed Chair). But if Treasury Secretary Geithner has his foot on her air hose, I would worry.
I am sure that Prof. Warren is a very nice lady. However, has it occurred to anyone that the combination of a statute granting a bureaucracy nearly unlimited power over every credit transaction in the nation (apart from the dispensation given to auto dealers) and a populist department head might not be the best way to relieve our current credit shortage?
Yeah, we really need to keep the boot-heels of government agencies off the necks of all the wonderful people who are making credit so available today.
I'm sorry, really, but I can spare only limited care for your imagined credit shortage -- I'm still all worried about the death panels created under the health care bill. They seem a lot more of an "existential" threat.
a) is there any real question in anyone who is not ideologically blind that there is a dangerous instability in the financial sector, as currently unregulated?
b) if we're going to have a consumer protection office, I'd really rather have a "populist" (interesting term for someone who has made a career out of making sure banks, when they fail, get liquidated smoothly) than, say, a randite.
Thanks, Mark, for the off-topic comment. I had earlier read Adrian Vermeule's "Second Opinions" that had been highly recommended by Larry Solum at his always interesting Legal Theory Blog. The article is available via SSRN at:
Of particular interest is Vermeule's focus upon public law in Part III on the structure of legislative and voting structures, judicial review and judicial precedent, and "sobering" second opinions. Adding to this Anthony Gottlieb's review of George Szpiro's book, I think of the difficult issues that a constitutional convention would have to deal with. So, Mark, your comment may not be so off topic with respect to a combination of Sandy's posts in recent months..
And Larry Solum has recently recommended a companion article by Vermeule "Open-Secret Voting" that I'll start on shortly. (It's also available via SSRN with a link at the Legal Theory Blog.)