Amarica's Constitution

Judge Jackson - or is it Justice Jackson (we discuss) - is confirmed, but we aren’t done discussing it yet.  Distilling the non-nonsensical questioning down, it really was an attempt to probe into the question of rights; who decides, and how, what rights Americans have?  We listen to the colloquy and use it as a jumping-off point for a wide-ranging discussion of fundamental, enumerated, and unenumerated rights - among other things.

The Senate Judiciary Committee hearings have concluded, as has the committee vote.  We put the Senators, and the Judge, back on the stage.  We listen to them and comment.  What do we know now about the Judge, and about the Senators, in terms of their view of their respective constitutional roles, and their constitutional views?  Their own words are replayed, and then Akhil and Senate expert Vik Amar critique them - and educate us.  Oh, and Lindsay Graham had something to say.

We’re a little late this week, but it’s worth it, as we are able to report on a lengthy conversation that our (returning) guest, Dean Vik Amar of the University of Illinois School of Law, had with the Chairman of the Senate Judiciary Committee, Illinois Senator Dick Durbin, just hours before our podcast taping.  He offered Vik and his students a truly inside look at the Supreme Court Confirmation Hearings just conducted, as well as his perspective on confirmations in general, and some truly surprising perspectives and possible ideas for reform - and now, our listeners have this early access to them.

Ketanji Brown Jackson prepares to testify at Senate confirmation hearings, and the air is filled with confirmation bromides. It is said that a judicial nominee cannot speak about past cases.  Or about cases that might come up.  Or about legal theories.  Is this true?  Some say that all that matters is that the nominee be qualified and admirable.  Can the Senate inquire further?  How far can a nominee go in committing themselves on anything?  Fortunately, we have a leading Senate expert, law school Dean, public intellectual - and, an “Amar” on “Amarica’s Constitution.”  No, not Akhil, but Vik Amar, Dean of the Illinois College of Law and the first American of Indian descent to clerk for a Supreme Court Justice, to be a major Law School Dean.  Listen to the “brothers-in-law” as they prepare you for the hearings.  And - even more important - hear about their forthcoming law review article that may do nothing less than save the country.  No kidding.

Walter Dellinger and Charles Black are hard acts to follow, but our concluding role model is up to the task.  Telford Taylor was legislator, war hero, Nuremberg prosecutor, international law pioneer, law firm founder, tenured professor and scholar extraordinaire, public intellectual, and always a principled, skilled lawyer.  Professor Amar admired his work from afar, and that admiration led to a personal meeting, to Akhil’s first major law review article in the Harvard Law Review, and ultimately, to the opening scene of his latest book.  Meanwhile, in the news, we also take time to look at the latest developments, statements, and misstatements filling the air on the notorious Texas abortion law, SB8.

Continuing our exploration of inspirational models in the law that deeply influenced Professor Amar’s career, today we learn of a predecessor of last week’s model - the newly passed Walter Dellinger - as we hear of the life of Charles Black.  A son of the deep South, Black made an enormous mark as he was a vital part of the team that won Brown vs. Board of Education, and in the aftermath, we see his genius as he defends the decision, and separately reflects on how he came to his principled positions.  We see this as he picks up pen and paper and leaves these notes for the ages.  You will now hear these writings and Akhil’s reaction to them, and ultimately they will lead us back to considering the emerging picture of Ketanji Brown Jackson, nominee to the Supreme Court, in these lights.

The great Walter Dellinger, one of Professor Amar’s role models in the law and one of the great lawyers of the past century, moves Professor Amar to present and review his role models and why they matter to all of us.  Dellinger’s career was so enormous in its scope, so impactful in its action, that it forms a scaffolding for considering topics as varied as the most important SCOTUS footnote ever written; other momentous careers such as Earl Warren, Charles Black, and Telford Taylor; the lighter side of working for President Clinton; the last public statements of Benjamin Franklin and now Dellinger himself - and much more.  Fittingly, Dellinger’s last writing has impact beyond his demise, as he provided background and perspective for the momentous nomination by President Biden of Judge Ketanji Brown Jackson to Associate Justice of the Supreme Court - and so we consider that.

We deliver a long-promised episode, as the audience guides the discussion this week with their penetrating questions.  Was Akhil too easy on Mitch McConnell?  How about bringing on expert X or Y?  Should SB8 prompt a new exception to Younger abstention?  Oh, and by the way - what is "Younger abstention?" Can judges be ousted without impeachment?  As you see, we have a very educated audience.  Indeed, once you have completed the podcast, you will find yourselves that much more informed, as these sometimes complex concepts are explained in Akhil’s usual approachable if inimitable way.

We continue our discussion of the Equal Rights Amendment.  Is it the proposed ERA, the adopted ERA, or the dead ERA?  Some say we already have an ERA in the 14th and 19th Amendments; Akhil and Jesse explore what some women, such as Elizabeth Lady Stanton, had to say about the 14th Amendment and equal rights back in the day.  The SCOTUS was asked to weigh in on amendment adoption dates back in the 1930’s - they punted.  Would that happen again, should this reach them?  And - would it be better to have an ERA “Now Now Now,” as many insist, or is there a better way? Finally, Professor Amar is about to do something he hasn’t done in 22 years.  What is so important that it prompted this?

The Archivist of the United States is in the news, and if that’s happening, you know some esoteric constitutional question is up.  Fortunately, “Amarica’s Constitution,” is on the case.  We have New York Times Editorial Board member, Jesse Wegman, who wrote for the Times on this subject recently, raising all sorts of issues - which Akhil is happy to answer for Jesse and for all of us.  Meanwhile, this is all about the Equal Rights Amendment, and Amendments in general, and Article V of the Constitution, and what about ERA anyway - what would it do?  All this and more - with feeling.  There’s a lot here, so this is part one of two.