Wednesday, September 18, 2002

Today's an honest-to-goodness work day for me, so blogging will be light. But a few interesting bits and pieces:

This week's New Republic contains a piece (not yet online) on Brazil's presidential election. An interesting supporting role is played by Critical Legal Studies godfather Roberto Unger, whose democratic vision apparently now includes presidential recourse to plebiscites to get around parliament-- in other words, as TNR notes, old-style Latin American executive-populist strongman authoritarianism, and a refusal to be bound by constitutional procedures (of which Unger has been a critic for years). Unger is a figure of the radical left in the academy, but has now allied himself with the status quo, anti-globalization candidate of Brazil's oligarchs.

Michael McConnell seems likely to win Senate Judiciary Committee approval for a seat on the federal bench, with subsequent Senate approval all but assured. An important factor in that is the vocal support for him among center-left legal academics like Sunstein and Tribe. What's interesting to me is the variety of responses to that fact, from Byron York's view that this is near-nepotism ("[M]any of the professors know and like McConnell — and it appears that those personal connections trump any objections to his opinions on abortion. Priscilla Owen, it seems, just didn't know the right people.") to the NYT's matter-of-fact view. Is there any other moment in American domestic politics when the academy plays as significant a role as in judicial nominations?

Finally: Secretary of the Interior Gale Norton, like her predecessor Bruce Babbit, has been held in contempt of court in connection with Interior's shameful mismanagement of the trust fund that is supposed to send royalty checks to Indian landowners for the mining and logging that takes place on their property. The judge in the case, Royce Lamberth (a Reagan appointee) held that "there is no longer any doubt that the Secretary of Interior has been and continues to be an unfit trustee-delegate for the United States." The truth about this case is that the United States has been and continues to be an unfit trustee for the interests of American Indians, who would not need a paternalistic trustee-guardian relationship for land ownership even if the trustee had not proven itself "disgracefully" incompetent. The U.S. should settle the $10 billion lawsuit for mismaganement of the fund, and should then get out of the Indian trust fund business. Any Indian landowners who want help in managing their relations with the miners and loggers can find much more competent assistance in the private sector. This is one of my areas of academic expertise-- the pseudo-paternalistic treatment accorded to indigenous landowners by settler-state governments such as the U.S. and Australia. ("Pseudo" because paternalism is supposed to be in the interest of the person being trated like a child; in fact the settler states have often acted assumed the role of trustee or guardian even though it was from those states' interests that the indigenous peoples most needed protecting.) But I'm wearing my citizen's hat as well as my scholar's hat here; I'm disgusted with Interior and the Bureau of Indian Affairs, and don't want such abuses to be committed by the government that acts in my name.

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