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Bloomington Herald-Times

June 30, 2010

IU law professor questions Kagan's record on diversity
By Mike Leonard
June 30, 2010, last update: 6/29 @ 11:48 pm

When Elena Kagan was nominated to the U.S. Supreme Court by President Barack Obama, Indiana University law professor Luis Fuentes-Rohwer questioned her commitment to racial and ethnic diversity based on the faculty hiring record when she was dean of the Harvard University School of Law.

In a broadly read and discussed piece published by, Fuentes-Rohwer joined with professors from Duke, Iowa and the University of California-Davis in pointing out that Kagan presided over an unprecedented expansion of the Harvard school in hiring 32 tenured and non-tenure track faculty. Of that 32, 25 were men, seven were women and just one was a minority.

"You'd almost have to try to come up with a record like that," the IU law professor reiterated this week.

Fuentes-Rohwer said a lot of explanations have been put forward -- that she bolstered the number of conservatives on the Harvard faculty and helped unify its alumni base; that she simply made decisions based on merit; that she didn't have much of a direct hand in those decisions.

He still makes the argument for diversity. "I could find you a lot of brilliant people who would be qualified but qualified differently," he said. "You could say she was color blind or you could say maybe she wasn't looking for some things she could have paid more attention to."

The IU professor said, those concerns aside, he believes Kagan will be an excellent Supreme Court justice.

After watching the confirmation hearings Tuesday morning, however, Fuentes-Rohwer had moved on criticism of the process. "You watch these senators ask questions and you wonder who they are talking to," he said. "It's all political theater. Posturing. Talking to the base."

The law professor said the questions can be very pointed, often rooted in false premises, and delivered with a rudeness that would provoke a heated argument in any other forum.

Worst of all, he said, they do nothing to illuminate matters of real substance when it comes to understanding the judiciary.

The nominees generally take the abuse without putting up a fight. "I was just reading Chief Justice John Roberts' statement in 2005 and Kagan's. They say the same thing. You'd think they had the same speechwriter," he said.

"Maybe that's the real test," Fuentes-Rohwer said. "They sit there knowing better and they remain so calm and collected it amazes me every time."

Colleague Charles Geyh at the Maurer School of Law does not disagree with his colleague. "I come at this from a very different direction than Luis does, but as someone who was in the political world before I went into teaching, the politics of the possible drive my thinking more than others," he said.

"The business of scoring political points in the confirmation process has become so much the order of the day that I don't begrudge candidates from saying as little as possible," Geyh said.

"Nobody is asking a question because they want information. And that's on each side of the political aisle. They're asking questions because they want to support or trash a candidate. In that environment, as a candidate, why would you want to contest a question and put yourself through what would follow?"

Both Fuentes-Rohwer and Geyh noted that the current nomination climate directly owes to the contentious 1987 hearings over the nomination of President Ronald Reagan's nominee Robert Bork.

Assailed as a justice who would roll back civil rights and women's rights, Bork's nomination was defeated, 58-42. It even resulted in the coining of the word "Bork" as a verb, meaning, according to the Oxford English Dictionary: "To defame or vilify (a person) systematically, esp. in the mass media, usually with the aim of preventing his or her appointment to public office; to obstruct or thwart (a person) in this way."

Geyh said Bork was the recent touchstone but hardly the only time ideology created contentiousness in the confirmation process.

He cited several examples, including the 1881 nomination of Ohio's Stanley Matthews, which got put on hold for months after the farm union The Grange produced 30,000 letters protesting Matthews' friendly views on corporate power. Ultimately Matthews was approved by a single vote in the closest confirmation vote ever.

Without saying they agreed with Bork's views, both Fuentes-Rohwer and Geyh praised him for his candor and his willingness to speak expansively on judicial issues.

"People have learned from the Bork nomination that being forthcoming comes at a cost," Geyh said. "I think the motives underlying Bork were honest ones. Certain things about his viewpoints disturbed fairly reasonable people. But I am in agreement that it's no longer clear to me what value these hearing have, now that they've become what they've become. And there's some political science research out there that shows public confidence in the judiciary is diminished by this kind of game playing at the confirmation level. It does trivialize what the process is about and what judges are about."

Fuentes-Rohwer said there is some irony in the fact that Kagan herself criticized the post-Bork confirmation process in 1995 and said it was important to force nominees to answer legitimate questions about judicial issues. "She said we need to force them to answer the questions and today she's saying, but I'm not answering them."

Fuentes-Rohwer also said it's clear that candor is not valued in today's political climate, noting the failed nomination of IU's Dawn Johnsen to head the office of the president's legal counsel.

"She was too honest. You can't say what you think without being hammered for your record," he said. "I don't think you could find anybody in this country more qualified for that position than Dawn Johnsen. She'd already done the job and she was torpedoed for saying torture is a bad thing and we shouldn't do it.

"We don't have a good system if the best qualification for confirmation is to have never have said anything of consequence about the issues of the day," Fuentes-Rohwer said.

Fuentes-Rohwer also noted that the best and most insightful introductory statement made on Monday came from Minnesota Sen. Al Franken, formerly a regular on NBC's "Saturday Night Live."

"He got right to the heart of things," he said. "That's one to think about. Who's the one asking the questions that need to be asked and trying to start the discussion we ought to be having? The comedian."

Reunion, self-renewal and making our community real
By Fritz Lieber
June 30, 2010

Besides a season to sit on porch swings and remember going barefoot, picking berries, sleeping with the windows open, peddling lemonade, or cooling off at the swimming hole, summer is a time of reunions.

Reunions bring back old selves as well as old others.

Recently, I spent a week with three friends in a large farmhouse in western Massachusetts. We hadn't been together since 1970 in London. Only, this time we stayed in the "youth hostel" we never knew.

Later, I joined classmates at my 40th college reunion.

My friends' children are now the age we were when we first met and traveled. Looking over old photographs, sharing stories, drawing a map of the world with dates of our intersecting adventures, I fell in love with my old self. Who was that dashing stranger?

Fresh from the reunion, I am here to report there is still time to excavate ourselves. The old spirit lies, not in the grave of a former self, but in the cradle of today. Much is possible. We only have to believe again.

Intervening years and routines may have eclipsed "the hour of splendour in the grass, of glory in the flower," but take heart: Time past is not time lost. Some of the old doesn't bear a second coming, but other things -- an inspired mythology of ourselves, volcanic laughter, creativity -- are good enough still to be true.

My reunion resolution is to write a novel based on my life in Crete in the early 1970s. That, and swim more. Fueled by old friends and old passions, I feel, if not look, like the young Werther of those photographs. It is a joy to grow up again in Bloomington.

Writing this last column is another kind of reunion, a final one, with neighbors I never met. Receiving feedback has furthered my sense of the friendly foreign. I will miss that feeling on both sides of the real but artificial divide.

It is a major responsibility for all journalists to know that many people read the words that bear our names. Regarding the civility of public discourse, I wonder how many writers who comment in the online version of this newspaper would stand by their virulence if their real names stood alongside their words.

If that was my onion, I have an orchid. It goes to the father who chased down the car from which a water balloon was thrown, hitting his wife and infant son. This quick-thinking dad balanced responsibility and restraint. By his example, their son who knew nothing, and teenagers who know better, will grow up in a more accountable community.

Regardless of the sort of disrespect tossed from car or computer, anonymity emboldens but we are still beholden.

It makes no difference what we do for a living. It's what we do for our community. That dad is the spirit of Bloomington. So is supporting the school referendum and the arts, helping the homeless, and co-existing peaceably with urban deer.

As I sign off, I have appreciated the discipline of 600 words.

If I tried to write a good sentence, my editors picked the best paragraph for it.

Thanks also to my editor-at-home, Don Maxwell, whose fertile listening always found a better way for me to think.

I end in gratitude and applaud two colleagues, Henry Swain and Victoria Ison, the alpha and omega of our community columnist cohort. I learned from Victoria and Hank that it is never too early or too late to find your voice, or to be an articulate observer of a world in need of such wit and witness.

Fritz Lieber is an adjunct professor in the Indiana University School of Education. His column has appeared every other Wednesday in The Herald-Times. You can reach him at

Letter: Wear black Thursday
June 30, 2010
To the editor:

July 1 is a black day for Indiana University employees, their families and their friends. July 1 is the day they would normally get raises. Not this year.

IU employees have not gotten a raise since 2008. We have not kept up with the cost of living in 10 years. Our workloads grow ever larger, but no more money comes our way.

IU continues to grow and build and give the illusion of thriving. Yet no university can thrive when so many of its staff can barely feed their families and rely on food stamps and government assistance.

All IU employees should speak up and wear black on July 1, or wear a black ribbon. We must stand as one -- faculty, janitors, office workers, hourly workers, everyone. We must ask for economic justice. We must ask for raises.

Some economic arguments may say IU can't afford to pay its people more, but moral arguments make it imperative that they do. We have been patient, but many can't wait any longer.

So join us and speak up. Wear black on July 1. Wear a black ribbon. Even if you don't work for IU, join us in solidarity. Every voice matters.

Peter Kaczmarczyk