The Faculty Lounge

Ruby Tuesday

Don't forget to vote (if you haven't already), and stay safe.

FIU to Host Panel on Justice Ginsburg

FIU College of Law will host a panel, The Jurisprudence and Legacy of Justice Ginsburg, at 12:30 p.m., this Friday, October 30. Register here. The event is open to the public; please join us for what should be a great conversation.

A panel discussion of the life, jurisprudence, and legacy of Justice Ruth Bader Ginsburg. Legal scholars will consider her work on gender equality, reproductive freedom, election law, constitutional law, comparative law, and procedure, and the effects of her death on the Court and the judicial-appointments process.

Moderator: Michele Anglade (FIU College of Law)

Introduction: Leonard Strickman (Founding Dean Emeritus, FIU College of Law)

Panelists:

            Richard Albert (University of Texas)

            Deborah Dinner (Emory University)

            Scott Dodson (UC-Hastings)

            Atiba Ellis (Marquette University)

            Daniel Epps (Washington University-St. Louis)

            Abbe Gluck (Yale University)

            B. Jessie Hill (Case-Western Reserve University)

More on the Censoring of the PFLP's Leila Khaled

It was deeply objectionable when Zoom and other networking platforms blocked Leila Khaled’s webinar at San Francisco State University earlier this fall, but accurate information about her, which was not provided by her sponsors at the time, is nonetheless necessary to understand why the tech companies acted as they did – and what can be done about it in the future.

Academic freedom rests on a postulate to which there is a corollary, and both are relevant to the censorship of Khaled’s presentations. The postulate is that democracy benefits when teachers and scholars are free to determine their subjects for research, teaching, and speaking. The corollary is that they must be as truthful as they are able. Regrettably, many defenders of Khaled’s right to speak have been less than forthright about who she is and what she had done.

It was bound to be controversial when SFSU’s Arab and Muslim Ethnicities and Diaspora Studies Department (AMED) announced a Zoom-based webinar titled “Whose Narratives? Gender, Justice, and Resistance: A Conversation with Leila Khaled,” scheduled for last September 23.  Although unmentioned in the promotional materials, Khaled was an operative of the Popular Front for the Liberation of Palestine who hijacked two airplanes, in 1969 and 1970. She has since been a member of the PFLP’s Political Bureau. For the SFSU event, however, she was misleadingly billed only as a “Palestinian feminist, militant, and leader.”

SFSU President Lynn Mahoney resisted protests over Khaled’s appearance. In a message to the campus, she “emphatically” affirmed “the right of our faculty to academic freedom and to conduct[] their teaching and scholarship without censorship.”

An organization called the Lawfare Project bypassed Mahoney, appealing directly to Zoom. In an open letter to CEO Eric Yuan, the Lawfare Project argued that hosting Khaled would potentially constitute “material support or resources to a foreign terrorist organization,” in violation of the U.S. Criminal Code. As the letter pointed out, the PFLP has been on the State Department’s list of designated terrorist organizations since its inception in 1997.

Unwilling to risk violating federal law, Zoom invoked its “terms of service” and blocked the webinar, as did Youtube and Facebook when AMED attempted to switch platforms. Both the AMED sponsors and Mahoney decried the censorship, as well they should have.

University of Colorado: Law School Dean

From an email message that I received earlier today:

The University of Colorado has posted its law school dean search announcement.  You'll find the link here.

Hiring Announcement: University of Calgary

From an email message I recently received:

The University of Calgary has posted a hiring announcement for "Assistant Professor, Criminal Law, Faculty of Law."  Here's a link for more information.

CFP: Mass Incarceration and its Disproportionate Effect

This just in:

The Idaho Law Review at the University of Idaho School of Law invites proposals for its annual symposium, which will be held via Zoom in March or April of 2021. This year’s topic, Mass Incarceration, will focus on disparities in U.S. state and federal prisons and solutions toward equitable prison reform.

The 2021 Symposium hopes to tackle issues related to mass incarceration and its disproportionate effect across race, gender, socio economic status, and sexuality. In particular, we are interested in papers and proposals dealing with:
The school-to-prison pipeline
Pre-trial incarceration and bail reform
Health inequities among prisoners, including the COVID-19 pandemic The outsourcing and privatization of prisons
Immigration and incarceration
First Amendment implications of criminalizing protest and dissent Alternatives to the current prison system

The Idaho Law Review wants to bring diverse voices to Idaho in order to engage in difficult conversations relating to our current criminal justice system. As such, we are seeking submissions from individuals with a variety of experiences and backgrounds, both inside and outside the legal field. These submissions may include alternatives to traditional law review articles including commentaries and essays, both of which may be shorter in length. Quality submissions will be published in our annual Symposium edition, with authors being invited to participate in a series of panel discussions relating to mass incarceration.

Submission Procedure

Proposals should be approximately 250-500 words, double-spaced, and must be submitted by e- mail to Erin Hanson, Chief Symposium Editor, at hans4900@vandals.uidaho.edu no later than 5 p.m. December 1, 2020. Feel free to contact Professor Shaakirrah R. Sanders, Symposium Faculty Advisor, at srsanders@uidaho.edu. Proposals will be selected on a rolling basis, with final selections completed by December 18, 2020. Preference of presentation times will be given to those also planning to submit an article for publication. Articles will be due to the Idaho Law Review on January 29, 2021.

University of Missouri: Faculty Diversity Postdoctoral Program

From an email message that I recently received:

University of Missouri: Preparing Future Faculty – Faculty Diversity Postdoctoral Program

            I am pleased to share with you the 2021 call for applications for the University of Missouri’s Preparing Future Faculty – Faculty Diversity (PFFFD) Postdoctoral Program. The PFFFD program is designed to develop scholars for tenure-track faculty positions. Applicants should demonstrate how they can contribute to faculty diversity, such as through membership in a group that is historically underrepresented or through other experience. Postdoctoral positions are typically for two years and provide research, teaching, and professional development opportunities.

            The position is analogous to the visiting assistant professorship common at law schools across the country. We are seeking a legal scholar working in any area of law. Experienced members of our faculty will provide a supportive setting and mentorship, including extensive feedback on teaching, scholarship, and practice job talks. As we are part of a research and land grant university, we have extraordinary opportunities for interdisciplinary research and teaching. In addition, Columbia is regularly ranked as one of the most livable cities in the country.  

            Please click here for the call for application for more details about the program and application process. Applications are due by November 2, 2020 by 11:59 pm (Central time). General questions about the PFFFD program can be directed to Dr. Behm-Morawitz, Associate Dean of the Graduate School (postdoc@Missouri.edu). If you have any questions about applying to our research area in law, specifically, I am happy to answer your questions.

Sincerely,

Paul Litton

Associate Dean for Research

R.B. Price Professor of Law

Fatigue: An Adventure Story

I have this post up on The Virology Blog:

There are relatively few certainties in life, but you can be pretty sure that nobody wants to have West Nile virus – a nasty, mosquito-borne disease that can kill you if your immune system is on the fritz. Even its “moderate” strain  could result in symptoms like mine – unrelenting headaches, body aches, nausea, fever, and the sort of staggering neurological problems that makes it tough to wash the dishes and impossible to walk the dog.  And by the way, there are no treatments for it.  Yet there I was in late 2006, fretting by the phone for hours and checking my email every fifteen minutes, in the hope that my doctor would confirm that I was indeed a West Nile sufferer. 

It’s not that I wanted to be sick; I already was sick.  Nor am I a masochist or a hypochondriac.  But after about ten weeks of nameless misery,  I was getting desperate for a diagnosis. West Nile was preferable to some of the leading alternatives, as explained when I visited my doctor, including brain abscesses and various tumors.  So I hadn’t wasted any time getting to the HMO’s lab when my doctor ordered a blood culture.  In answer to my anxious question, the technician told me the result would be back in “five to seven business days.”

Showing uncharacteristic – and if I may take a moment to compliment myself, admirable –  restraint, I waited until the afternoon of the eighth day to contact the doctor’s office, only to be told that the lab had sent my blood specimen to the Mayo Clinic, and that it would therefore take ten business days to get an answer. Since it was already Thursday, that meant I’d have to wait until at least Monday before I could expect to learn anything.

At this point I should explain that my medical provider was an early adopter of what they then called a “platinum” communication system, presumably because it exceeded the gold standard.  In theory, I could use my login and password to access a webpage where, again in theory, my doctor would quickly post my test results and, still in theory, mind you, I could message him for an update and advice.  Like so many theories – such as Hillary Clinton’s “Blue Wall” campaign strategy in Wisconsin and Michigan, or British Petroleum’s approach to offshore drilling – this one happened to be a little weak in the execution.  Alas, it depended entirely on my doctor’s initiative.  To make it work, he had to notice whether test results had been received, and then he had to respond to my inquiries with something resembling accurate information.

Northwestern Law Names Dean Search Committee

Northwestern University has announced the members of the law school dean search committee.  It will be chaired by Professor Erin Delaney.

The Truth About Family Separation....

During the final 2020 presidential debate this past Thursday, President Trump and former Vice President Biden squared off on a host of issues, but one issue neither side neither side seemed to enjoy discussing; the immigration policy that ripped asylum-seeking and migrant children from the arms of their parents. Despite the finger-pointing during the debate, it was in fact the Trump administration’s Family Separation Policy that separated children from their parents and eventually caged them. This cruel and indefensible policy was specifically implemented to deter immigration into this country. 

During the debate, Trump tried mightily to recharacterize his program by alleging, “These children are brought here by coyotes and lots of bad people, cartels, and they used to use them to get into our country.” Trump’s quote was neither honest nor accurate. The Family Separation policy did not aim to protect children from coyotes or cartels, as his quote suggests. It targeted children with such a cruelty the government believed it would stop migration.

On April 6, 2018, then Attorney General Jeff Sessions announced the administration had a “zero-tolerance policy” regarding the unauthorized entry of immigrants at the southern border. Shortly thereafter, in May 2018, Sessions announced the administration's new “Family Separation” policy on family border crossings. Under this practice, when undocumented migrants were stopped and detained at the border, children were separated from their parents. Sessions Warned : “If you are smuggling a child then we will prosecute you, and that child will be separated from you as required by law.” He added, “If you don’t like that, then don’t smuggle children over our border.” Unlike what Trump would like us to believe, Family Separation was far from an effort to save children from traffickers. It was his policy that led to the caging of thousands of children.

While the specifics above were not highlighted during the debate, the debate moderator, Kristen Welker, pressed the President on the issue, to which Trump once again distorted the truth, this time about the detention facilities: “They are so well taken care of. They’re in facilities that were so clean.” This Trump claim was nothing short of obscene.

In June 2018, after more than a half a dozen of these children died in the so-called “so clean” facilities, U.S. District Court Judge Dana M. Sabraw  ordered an end to the Family Separation policy. The judge demanded the federal government to reunite parents with their children within 30 days, and children age 5 were to be reunited within 14 days. Around the same time, Trump announced the end to the policy. Yet two years later, another federal Judge had to once again order the release of migrant children (that were still in detention centers) because of the deplorable and dangerous conditions of their detention. Over half a dozen of these innocent children were infected with the COVID 19 while in U.S. custody.

Despite Trump’s efforts to deflect blame and obscure the truth, he had to contend with reports this week that the government still cannot find 545 parents of the separated children. In a classic Trump pivot, the President seemed to catch Vice-president off-guard by asserting: “But let me just tell you, they [the Obama Administration] built cages….It was hm. They built the cages. They did it, we changed the policy.”

Once again, Trump failed to tell the truth, either through ignorance or more likely an intentional effort to mislead the public. This assertion seemed to catch Biden slightly off guard, as he did not initially answer the attack. In truth, Trump’s assertion was so outlandish it even initially perplexed this writer, who has spent years examining Family Separation. But once again, Trump’s false statement appears to have been nothing but a ploy to confuse, and perhaps even deceive the public. While it is true, the Obama administration used facilities in 2014. But this effort was not to separate children from their parents. On the contrary, it was during an influx of unaccompanied minors entering the U.S., and the facilities, which were used to detain minors and young adults for 72 hours, and were erected to protect girls and young women from young males also being detained.

Ultimately, on a broader scale, neither democrats and republicans have been able to resolve the never-ending immigration debate for one primary reason: the reality that the demand for migration into the U.S. comes from both outside and within the U.S., especially from business sectors such as agriculture, and the service and construction industries (which I have previously called the free-riders of this debate). If the larger immigration issue is going to be confronted in an honest and realistic fashion, each side needs to confront both legitimate security issues as well as profound human rights, and equally important economic realities.

But in terms of more immediate debates relating to caging of children and the upcoming presidential election, President Trump distorted the truth, deflected blame, falsely accused others for a policy his administration created, which ultimately led to caging of thousands of innocent children.  In the end, try as he might, Trump once again cannot run away from his most abominable act.

Spencer Davis (1939 - 2020)

Davis, who died on October 19,  founded the Spencer Davis Group in 1963, with Peter York and Muff and Steve Winwood. The story goes that Davis became the front man of the eponymous band, even though Steve Winwood did most of the lead vocals, because he was the only one who enjoyed promoting the group in the press. He certainly did seem to enjoy being interviewed, both in English and German (he had a university degree in languages). Like most of the British Invasion groups in the early 1960s, the Spencer Davis Group got started by playing American R&B and blues music, which could still be heard after they developed their own sound. Steve Winwood, of course, went on to perform with Traffic, and then to a solo career. Davis, too, had a solo career that lasted well into the 2010s.

Very Few Takers for Leila Khaled Event

Today is the "National Day of Action" in support of airplane hijacker and PFLP operative Leila Khaled, called for by the U.S. Campaign for the Academic and Cultural Boycott of Israel. As readers know, Khaled's scheduled webinar at San Francisco State University was aborted when Zoom, Facebook, and YouTube refused to allow their platforms to be used for the event, out of concern that they might run afoul of the law against providing "material support" for the PFLP, which is on the U.S. and EU lists of designated terrorist organizations. The tech giants' censorship has been criticized as violating academic freedom by the president of San Francisco State University, the National Coalition against Censorship, the Council of University of California Faculty Associations, and many individuals -- including me.

To protest the censorship, the USCACBI called on "anyone with access to a university Zoom account to hold a webinar of your own including a message from Leila Khaled -- which we will provide -- on October 23, 2020."

The response has been underwhelming, as their is evidently not much interest in hearing the message from Leila Khaled. As of this writing, on the morning of the "Day of Action," there are only eleven scheduled webinars: eight in the United States, one in the United Kingdom, and two in Canada. On the USCACBI website, none of the webinars mention hijacking or  identify Khaled as a member of the PFLP "Political Bureau" and only a few list the other speakers, although more information may be available for those who register.

The "Day of Action" is a thoughtful, creative, and very appropriate response to censorship. It will be interesting to see how Khaled is introduced at the various programs. While Khaled is entitled to free expression, and her supporters are entitled to academic freedom, it is encouraging to see how little participation they have been able to generate for their "National Day of Action."

 

Eduardo Peñalver Named President of Seattle University

Seattle University announced today that its new president will be Cornell University law dean Eduardo M. Peñalver. Peñalver has served  as Cornell's dean since 2014.  He will be Seattle University's first Latino president and the first layperson to lead the Jesuit school. Peñalver will take over on July 1, 2021.

Censorship of Leila Khaled's SFSU Webinar Was Wrong, but the Sponsors Still Need to Tell the Truth about Her [UPDATED]

[UPDATE: In response to a call from the US Campaign for the Academic and Cultural Boycott of Israel, webinars featuring Leila Khaled have been scheduled at five universities on Friday, October 23, under the heading "We Will Not Be Silenced -- National Day of Action."  The USCACBI call to action does not mention Khaled's membership in the PFLP Political Bureau, nor do any of the five six scheduled programs (as far as I can tell without registering for them). As with the previous event at San Francisco State University, described below, Zoom has evidently refused to allow its platform to be used for the Khaled event at the University of Hawaii. I have not been able to determine whether the other four five webinars -- at San Francisco State, UMass Boston, NYU, Loyola New Orleans School of Law, and the Claremont Colleges -- will be able to proceed.

As I explain below, I believe that these events should be allowed to be held without censorship, either by their universities (which have thus far upheld academic freedom), or by Zoom and other social networking platforms. On the other hand, the academic sponsors need to stop obscuring Khaled's background as a two-time airplane hijacker and member of the PFLP. The announcement for the University of Hawaii program, for example, says "This webinar explores -- and refuses! -- the use of the label 'terrorism' to censor political speech and criminalize resistance."

Finally, it is significant that the USCACBI's call for nationwide webinars has been answered by only five six campuses, which must surely be disappointing to them.]

BEGIN ORIGINAL POST:

No living person has done more to romanticize terrorism than Leila Khaled. As an operative of the Popular Front for the Liberation of Palestine, she participated in two airplane hijackings in 1969 and 1970, threatening the lives of hundreds of people, including children. Her photograph taken after the first hijacking – a young woman in a keffiyeh, smiling broadly while holding a Kalashnikov automatic rifle – became a symbol of Palestinian resistance. That image has since been displayed all over the world, on posters, murals, and tee shirts, for over fifty years, leading The Guardian, in a 2001 profile, to call her the “international pin-up of armed struggle.” Fascinated by her daring, many of Khaled’s enthusiasts no doubt have had little understanding of the role she played in inspiring later acts of PFLP terrorism, such as the Entebbe hijacking and the massacre at the Munich Olympics. Others, however, have celebrated her for it.

It was therefore bound to be controversial when San Francisco State University’s Arab and Muslim Ethnicities and Diasporas Studies program (AMED) scheduled a presentation, to be held on Zoom, titled “Whose Narratives? Gender, Justice, and Resistance: A Conversation with Leila Khaled.” With two SFSU professors as co-moderators, the roundtable discussion promoted Khaled only as a “Palestinian feminist, militant, and leader.” In an Arabic language tweet, however, the director of AMED  called Khaled a “great fighter.”

Numerous Jewish and other organizations objected to the presentation, although stopping short of calling for its cancelation. The Anti-Defamation League, for example, noted that “it is bitterly ironic that a notorious hijacker and admitted terrorist will be welcomed at an institution of higher learning,” while stating nonetheless that the “ADL respects and defends academic freedom.” A coalition of 86 pro-Israel groups went further, condemning the event as an abuse of academic freedom that “foments a divisive and toxic atmosphere,” and calling on SFSU president Lynn Mahoney to “clarify” her position on the Khaled invitation.

Mahoney never budged. In a campus-wide statement, she “emphatically” affirmed “the right of our faculty to academic freedom and to conduct[] their teaching and scholarship without censorship,” adding, without naming Khaled or the PFLP, “and I say this while also condemning the glorification and use of terrorism and violence, particularly against unarmed civilians.”

A group called the Lawfare Project took a different approach, bypassing the SFSU administration and appealing directly to Zoom itself. In a letter to Zoom founder and CEO Eric Yuan, the Lawfare Project pointed out that hosting the Khaled event would potentially violate section 2339A of the U.S. Criminal Code, which prohibits providing “material support or resources to a foreign terrorist organization.” Khaled is an acknowledged member of the “Political Bureau” of the PFLP, which has been on the state department’s list of designated terrorist organizations since 1997. (The PFLP is also on the European Union’s list of terrorist organizations, which led to Khaled’s exclusion from Italy in 2017.)

Zoom flinched.

Hamilton & The Law: The Book is Out

For those of you who adore Hamilton and adore the law - or perhaps just enjoyed Hamilton and have enough interest in law to read this blog - there's a new book out. Hamilton and the Law: Reading Today's Most Contentious Legal Issues through the Hit Musical is a collection of essays edited by my colleague and Hamilton lover Lisa Tucker.  It's an impressive collection including essays by an exceptionally distinguished gang of Hamophiles, including Mehrsa Baradaran, Erwin Chemerinsky, Todd Henderson, Rebecca Tushnet, Danielle Holley-Walker, and many, many others.  More details are here.

ALI Elects 36 New Members

The American Law Institute has announced (here) the election of 36 new members, including these professors:

• Raquel E. Aldana, University of California, Davis School of Law
• Evelyn Mary Aswad, University of Oklahoma College of Law
• Lonnie T. Brown, Jr., University of Georgia School of Law
• Zachary D. Clopton, Northwestern University Pritzker School of Law
• Lisa A. Fairfax, George Washington University Law School
• Richard W. Garnett, Notre Dame Law School
• Justin F. Marceau, University of Denver, Sturm College of Law
• Lauren K. Robel, Indiana University, Maurer School of Law
• Kimberly J. Robinson, University of Virginia School of Law
• Jacob H. Rooksby, Gonzaga University School of Law
• Nancy A. Welsh, Texas A&M University School of Law

Congratulations to all!

No Love, No Tacos

There is a great article on CNN.com about a Mexican Restaurant in Marshalltown, Iowa, where a customer took offense at this sign.

In an anonymous message, the customer complained that La Carreta had gone "leftist/marxist" (sic) and vowed never to return.

The owner responded by putting up an even larger sign:

As the article explains:

 

"I am someone who takes something negative and tries to turn it into something 10 times more positive," Medina[the owner] said. "If they don't want us, they should align their ideals and their comments with the food they eat."

 

Piggybacking on the popularity of the slogan, Medina created a new website where he is advocating to make Election Day a national holiday. He is practicing what he is preaching.

 

"My goal is to make the elections as just as possible," Medina says. "I a going to close on election Day, and not only pay my employees, but I am going to go and volunteer at the polls."

 

The whole article is tremendously uplifting. You can read it here.

The Beach Boys

Law School Hiring In The Time of Corona...

Fans of great Latin American novels would smile at the title above, or perhaps, much like my many other musings, few ever seem to understand them. A function of my brilliance, or more likely, pedestrian thinking? I bet I can guess what you are thinking right now. In any event, on to more challenging questions. During these difficult times, I have had the privilege to interview candidates, assist interviewees with mock interviews, and in a not-so-law related setting, been an interviewee myself. In each instance, I have grown to appreciate the difficulty of making sound hiring decisions based on classic criteria, but in the time of Corona, I never expected other matters would become so significant. Some of these included the lighting in the room, camera angles, etc.... Not sure how this cuts for candidates, but without question, these are trying times for institutions trying to make important decisions.  I also wonder how such challenges may level the playing field for women and other non-traditional candidates--we are all the same height during a Zoom call, for instance. This fact alone I suspect is more relevant, especially on gender, than many may realize--this screams for research from respected colleagues like Professor Meera Deo. Professor Deo, let's chat?

These and related issues make me think of recent dean hires like Beto Juarez at Nova.  I wonder how much influence technology played in that search? Personally, I think Beto is a wonderful pick, and Nova hit a homerun. He is experienced, a kind person, and an impressive leader. The fact he also looks like the lead in a Wall Street film, I suspect didn't hurt. But other questions come to mind, especially earlier in the year when the fear over the pandemic, rightly or wrongly, seemed to be heightened. Were some searches conducted completely via Zoom? I hope not. If any of you have such an experience, I would love to learn of it. On a related front, how much will the finalists at Colorado dean search benefit from or will be challenged by technology? 

If that is tough, how about the challenges faced by new teaching candidates? Will there be any impact on diversity? In other words, will faculty, which are historically not very diverse, reach out to close friends and mentors? If so, how many will promote diverse candidates? Were LLM programs focusing on law teaching affected by the pandemic? If so, how? I know at least a few schools reached out to me concerning the Olivas Faculty Recruitment Initiative. I was thrilled to suggest a few names to each. Much to my surprise, it was more challenging than I expected to convince mentees ( I call them FRI Fellows) to at times apply for positions--ah, the blissfulness of youth.  

So for now, I wonder if the most appropriate advice to candidates in these challenging times would be to follow Gabriel Garcia Marquez's advice and “Tell him yes. Even if you are dying of fear, even if you are sorry later, because whatever you do, you will be sorry all the rest of your life if you say no.” Or should hiring institutions, be cautious of Zoom and perhaps, also like Marquez, say to themselves "“Today, when I saw you, I realized that what is between us is nothing more than an illusion.”

 

Supreme Ambition, or Absence Thereof, and ACB

Writing on the Volokh Conspiracy, Josh Blackman expressed his admiration for Judge Amy Coney Barrett's modesty, in particular her acknowledgement that "I am not the only person who could do this job, but I was asked. And it would be difficult for anyone. So why should I say someone else should do the difficulty if the difficulty is the only reason to say no." To Blackman, Judge Coney Barrett's response stands in commendable contrast to others whose ambition "fermented through a lifetime of social-climbing" and who "scratched and clawed for years to put themselves in a position to be nominated."

Perhaps Josh is right that Judge Coney Barrett "didn't have to audition." I do not know enough about her, or the Trump administration's process, to agree or disagree. But then Blackman says this, which seems completely unsupportable:

On the Roberts Court today, the Justices who wanted the job the most are more likely to bend and sway in response to social pressures. The Justices who wanted it the least are most likely to stand resolute.

How could Blackman possibly know which justices wanted the job more or less? And why would earlier ambition make any difference to a justice who already has life tenure? What does it mean to "stand resolute," especially if that involves sticking to previous positions rather than being open minded? And finally, how could anyone distinguish between bending to social pressures and recognizing changed circumstances? Presidents, after all, have in recent years made SCOTUS appointments for political reasons, so standing "resolute" would not seem to be much a virtue in a jurist.

It does appear obvious that Blackman had Chief Justice Roberts in mind as the justice most likely to "bend and sway," as well as the one whose ambition, however modestly expressed, manifested itself early on. As we know from Joan Biskupic's recent biography, the teenage John Roberts applied to a private high school, saying "I won't be content to get a good job by getting a good education. I want to get the best job by getting the best education." And of course, conservatives have angrily reviled Roberts for voting independently on the Obamacare and Census cases.

But is ambition really the explanation for Roberts's independence (or swaying, as Blackman would put it)? Brett Kavanaugh certainly seems to have been every bit as ambitious as Roberts, judging from his confirmation hearing. He repeatedly volunteered his youthful achievements, unbidden by the questioning. He told Senator Leahy:

I busted my butt in academics. I always tried to do the best I could. As I recall, I finished one in the class, first in -- you know -- freshman and junior year, right at the top. . . . I was captain of the varsity basketball team. I was wide receiver and defensive back on the football team. I ran track in the spring of '82 to try o get faster. I did my service projects at the school.

And in answer to Senator Whitehouse:

I was at the top of my class academically, busted my butt in school. Captain of the varsity basketball team. Got in Yale College . . . got into Yale Law School. Worked my tail off.

And to Senator Hirono:

I got into Yale Law School. That's the number one law school in the country. I had no connections there. I got there by busting my tail in college.

Justice Kavanaugh may be resolute by Blackman's metric, but it would be hard to call him modest.

And what of Justice Gorsuch? He seems to have been equally as ambitious as Justice Kavanaugh, and yet he might be said to have swayed "in response to social pressure" by voting to extend Title VII protection to gay and transgender people.

It is always tempting to see multiple virtues in those whom we admire, but the ambition versus resoluteness test does not seem to hold up. More could be said about the real or imagined ambitions of Justices Thomas, Alito, Kagan, Breyer, and Sotomayor, but I think that is enough for now.