american academy of arts & sciences

winter 2009 Bulletin vol. lxii, no. 2 Page 35 Challenges to Public Universities Robert J. Birgeneau, Mark G. Yudof, and Christopher F. Edley, Jr.

Page 44 Judicial Independence Sandra Day O’Connor, Linda Greenhouse, Judith Resnik, Bert Brandenburg, and Viet D. Dinh

Page 59 The Invisible Constitution and the Rule of Law Diane P. Wood, Laurence H. Tribe, Frank H. Easterbrook, and Geoffrey R. Stone

Page 77 A World Free of Nuclear Weapons Sidney D. Drell, William J. Perry, , and George P. Shultz

inside: Academy Inducts 228th Class of Members, Page 1 Indicators Prototype Launched, Page 3 The Nuclear Future by Richard A. Meserve, Robert Rosner, Scott D. Sagan, and Steven E. Miller, Page 71 Reflections: Three Moles by Paul A. Samuelson, Page 83 1 Bulletin of the American Academy Winter 2009 Calendar of Events

Monday, Thursday, March 9, 2009 April 16, 2009 Stated Meeting–Washington, DC Stated Meeting– Contents The Public Good: The Humanities in a An Evening of Chamber Music Civil Society News Performance: The Arron Chamber Ensemble Speakers: David Souter, United States Academy Inducts 228th Class of Supreme Court; Don Michael Randel, Location: House of the Academy Members 1 The Andrew W. Mellon Foundation; Patty Time: 6:00 p.m. Humanities Indicators Prototype Stonesifer, The Bill and Melinda Gates Launched 3 Foundation/Smithsonian Institution; Edward L. Ayers, University of Richmond Wednesday, Scholar-Patriot Award 5 May 13, 2009 Rumford Prize 6 Location: The George Washington University Stated Meeting–Cambridge Induction Ceremony: Challenges Facing a Global Society 12 Time: 5:00 p.m. What Is Missing in Medical Thinking? Projects and Studies 19 Speaker: Jerome Groopman, Harvard Wednesday, Medical School/Beth Israel Deaconess Fellowship Programs 32 March 11, 2009 Medical Center Stated Meeting–Cambridge Location: House of the Academy Academy Meetings Nanotechnology: Novel Applications Time: 6:00 p.m. Challenges to Public Universities 35 Speakers: Robert Langer, Massachusetts Robert J. Birgeneau, Mark G. Institute of Technology; Angela Belcher, Yudof, and Christopher F. Edley, Jr. Massachusetts Institute of Technology; For information and reservations, contact the Events Of½ce (phone: 617-576-5032; email: Judicial Independence Evelyn Hu, Harvard University 44 [email protected]). Sandra Day O’Connor, Linda Green- Location: House of the Academy house, Judith Resnik, Bert Branden- burg, and Viet D. Dinh Time: 6:00 p.m. The Invisible Constitution 59 and the Rule of Law Diane P. Wood, Laurence H. Tribe, Frank H. Easterbrook, and Geoffrey R. Stone The Nuclear Future 71 Richard A. Meserve, Robert Rosner, Scott D. Sagan, and Steven E. Miller A World Free of Nuclear Weapons 77 Sidney D. Drell, William J. Perry, Sam Nunn, and George P. Shultz Reflections: Three Moles 83 Paul A. Samuelson

Noteworthy 85

From the Archives 88

american academy of arts & sciences

2 Bulletin of the American Academy Winter 2009 Academy News

Academy Inducts 228th Class of Members

On October 11, 2008, more than 500 guests attended the Acad- emy’s 228th Induction Ceremony. The event celebrated the accom- plishments of the Academy’s 212 new members, who come from 20 states and 15 countries. Drawn from science, the arts and humani- ties, business, public affairs, and the nonpro½t sector, the class rep- resents 50 universities and more than a dozen corporations.

The Ceremony was preceded by a morning brie½ng, where new mem- bers learned about the Academy’s research projects and their influ- ence on public policy. Chief Executive Of½cer Leslie Berlowitz de- scribed the Academy’s long history of promoting useful knowledge and anticipating emerging issues before their importance is widely recognized.

Several leaders of Academy projects described their work on a wide range of issues, including the federal funding of science; the global nuclear future; America’s competing research, commercial, and mil- itary interests in space; the effects of corruption on an international scale; and U.S. policy toward Russia. The program also included Harvard economics professor Athey discussed the role of presentations of studies on the impact of mass incarceration; the search advertising platforms in the future of the economy. Repre- independence of the judiciary; communicating the role of the hu- senting the humanities, Emory University Provost, Executive Vice manities and culture; educating the world’s children; and security President for Academic Affairs, and professor of history and African on the Internet. Throughout the morning, speakers expressed grati- American Studies Earl Lewis described how storytelling shapes our tude and pride in the Academy’s capacity to bring fresh perspectives knowledge of the human experience. “The stories we tell, the stories to seemingly intractable problems. Speaking about the Humanities we listen to, mark the humanities and the humanist interest in a Indicators Project, which is securing data on the humanities, Francis lived experience. We are reminded that in stories we ½nd answers Oakley, President Emeritus of Williams College, declared, “All to what makes us who we are.” praise to the Academy not simply for taking the initiative on this project but also for demonstrating the tenacity needed to bring it The de½nition of a “good company” was explored by Indra Nooyi, to this preliminary conclusion.” Chairman and Chief Executive Of½cer of PepsiCo. “What is the en- during achievement of business?” she asked. Her answer was that President of the Academy Emilio Bizzi opened the formal Induction “companies must redeem a moral promise as well as yield a return Ceremony by recalling the Academy’s founding in the midst of the on capital.” They must recognize the inevitable link between busi- American Revolution and its role in bringing together scholars, civil ness and society and combine what is good ethically with what is leaders, merchants, and farmers to help shape the new nation. At the good commercially. Induction Ceremony, Chair of the Academy Trust and Vice President Louis W. Cabot announced Senator Edward M. Kennedy of Massa- Together the speakers captured the promise of the Academy to com- chusetts as the recipient of the Academy’s Scholar-Patriot Award in bine thoughtful analysis with determined action. recognition of his tireless advocacy on behalf of health care, educa- tion, science, and learning (see page 5 for the award citation). At a symposium on Sunday following the Induction Ceremony, nine distinguished scientists and policy experts discussed the conse- New Fellows representing the ½ve classes of Academy membership quences of the growing reliance on nuclear power. The program touched on the opportunities and challenges of their work and its featured panel presentations by Richard A. Meserve (Carnegie broader implications for society. James Simons, President and Found- Institution for Science), Robert Rosner (Argonne National Labora- er of Renaissance Technologies, described his love of mathematics tory), Richard Lester (Massachusetts Institute of Technology), with its complex vocabulary. Peter S. Kim, President of Merck Re- Scott Sagan (), and Steven Miller (Harvard search Laboratories, discussed his role in the search for an hiv vac- University). Sagan and Miller codirect the Academy’s Global Nuclear cine, using it to illustrate the frustration and hope inherent in bi0- Future project, which is generating a set of policy recommendations medical research.

Bulletin of the American Academy Winter 2009 1 Academy News

to ensure that the demand for civilian nu- clear power does not result in a correspon- New Fellows Reflect on Membership in the Academy ding increase in nuclear proliferation (see pages 71–76 for the speakers’ remarks). New members arrived at the House of the Academy in a state of anticipation, As part of the symposium, the Academy awaiting the morning orientation. Many vividly described the moment that news awarded the Rumford Prize, one of the na- of their election arrived: the flurry of congratulatory phone calls and emails from tion’s oldest scienti½c awards, to Sidney D. colleagues followed by the deepening realization they would be joining a member- Drell (Stanford Linear Accelerator Center), ship that included George Washington, Thomas Jefferson, Albert Einstein, Marian William J. Perry (Stanford University), Sam Anderson, and T. S. Eliot, among so many others. Nunn (Nuclear Threat Initiative), George P. Shultz (Stanford University), and Henry Richard Foster, a managing partner at Millbrook Management Group in New York, A. Kissinger, in absentia (Kissinger Associ- reflected on how the Academy’s values resonate with his own. “The Academy pro- ates, Inc.). Stephen D. Bechtel, Jr. (Bechtel vides us with a place to compare and contrast our mental models. I am really look- Group), Walter B. Hewlett (William and ing forward to being a member.” Flora Hewlett Foundation), Academy Presi- Many Fellows paused to study the framed letters of acceptance set along a wall in dent Emilio Bizzi, and Chief Executive the atrium. Anne Walters Robertson, a music professor from the University of Chi- Of½cer Leslie Berlowitz presented the cago, was thrilled by the range of people represented by the historic letters. She awards in recognition of the recipients’ on- was particularly moved when she found a beautifully handwritten letter by an ear- going efforts to reduce the global threat of lier Fellow she considered one of the greatest teachers of music composition in the nuclear weapons (see pages 6–7 for the twentieth century, Nadia Boulanger. award citations). In response, Drell, Perry, Nunn, and Shultz spoke about their decades “Election to the Academy is a great honor,” said Pablo G. Debenedetti, a professor in of experience confronting the nation’s most engineering and applied science at and an immigrant from Ar- dif½cult national security issues and their gentina. “It is a reminder of how great this country is.” work to prevent the spread of nuclear weap- ons (see pages 77–82 for their remarks). While many Fellows were eloquent about the role of the Academy in preserving free inquiry and encouraging interdisciplinary scholarship, they said they were Looking back on the weekend’s events, waiting for the day’s presentations to ground them in the institution’s speci½c pro- Jeffrey Victor Ravetch, a new Fellow and grams and reports. “I am looking forward to ½nding out more about how I might the Teresa and Eugene Lang Professor at contribute,” said Alan M. Leslie, professor of psychology and cognitive science at The , noted, “I am Rutgers University. delighted by the continuity the Academy presents. It provides an unbroken chain The responsibility of the scholar to inform public discourse and play a larger role in back to the founders of the country–and society was a recurring theme among Fellows. “It is very interesting to see that the it encourages the integration of the arts and American Academy deals with such diverse topics,” said Nikos K. Logothetis, a sciences, which is one of the underlying neuroscientist from Max-Planck-Institut für Biologische Kybernetik in Germany. strengths of this country’s democracy.” He was particularly interested in an Academy project about educating the world’s children.

Another source of excitement throughout the day was the simple pleasure of meet- ing exceptional people from such an array of backgrounds. “Although I was really interested in the presentations, particularly the ones on nuclear weapons and secu- rity on the Internet,” said Jorge Durand, a professor of anthropology at the Univer- sidad de Guadalajara, Mexico, “today is also an opportunity to meet people from diverse ½elds. The Academy is a unique place that brings us all together.”

2 Bulletin of the American Academy Winter 2009 Academy News Humanities Indicators Prototype Launched

In addition to the data, the Humanities Indicators includes essays that reflect on its ½ve parts: primary and secondary humanities ed- ucation, undergraduate and graduate education in the humanities, the humanities workforce, humanities funding and research, and the humanities in American life. These commentaries by William J. Reese (University of Wisconsin-Madison), Roger L. Geiger (Penn- sylvania State University), David Laurence (Modern Language As- sociation), Alan Brinkley (Columbia University), and Julie Ellison (University of Michigan) suggest the signi½cance of the data col- lected and point to areas where additional information is needed.

The Humanities Indicators Prototype was developed in collabora- tion with the American Council of Learned Societies, the American Academy of Religion, the American Historical Association, the American Political Science Association, Association of American Universities, the College Art Association, the Federation of State Humanities Councils, the Linguistic Society of America, the Mod- In 2002, the Academy’s Initiative on Humanities and Culture issued ern Language Association, and the National Humanities Alliance. its ½rst Occasional Paper, Making the Humanities Count–a study of the The Indicators is one result of a decade-long Academy Initiative on need for a systematic and sustained effort to collect data on the state Humanities and Culture, which was developed to understand and of the humanities in the United States. The Academy took up the advance the humanities. Other activities include a scholarly publi- challenge, and on January 7, 2009, it launched a prototype set of sta- cation on the post–World War II social forces that transformed tistics, the Humanities Indicators, available at www.HumanitiesIndi- cators.org. The website has already attracted over 325,000 visits from 38 countries.

In announcing the new online resource, Leslie Berlowitz, Chief Ex- ecutive Of½cer of the Academy, said, “this nation needs more reliable The Humanities Indicators Reveal… empirical data about what is being taught in the humanities, how they are funded, the size of the workforce, and public attitudes about Adult literacy in the United States is polarized. Among the ½eld. The Humanities Indicators is an important step in closing Western industrialized nations, the United States ranks that fundamental knowledge gap. It will help researchers and policy- near the top in the percentage of highly literate adults makers as well as universities, foundations, museums, libraries, hu- but it is also near the top in the proportion who have manities councils, and others to answer basic questions about the humanities, track trends, diagnose problems, and formulate appro- very low literacy. priate interventions.” She also expressed her appreciation to Norman K-12 humanities ½elds are suffering a dearth of well- Bradburn (National Opinion Research Council) and Steven Marcus (Columbia University), cochairs of the Humanities Indicators Ad- prepared teachers, even more so than math and science. visory Committee, and to John Brademas (New York University), In 2000, the number of middle and high school students Jonathan Cole (Columbia University), Gerald Holton (Harvard taught by a highly quali½ed history teacher was lower University), Robert Solow (mit), and Judith Tanur (State Univer- than any other major subject area. sity of New York at Stony Brook), who suggested and encouraged this collection of data. Postsecondary humanities faculty are more poorly paid than those in any other ½eld. They are also among the Modeled after the National Science Board’s Science and Engineering Indicators, the data set contains 74 indicators and more than 200 ta- ½elds with the highest proportion of part-time faculty. bles and charts, providing broad-based quantitative information In 2004, only 53 percent of humanities faculty were em- about areas of concern to the humanities community. The current ployed full-time, and half of all part-time teachers are prototype is based on existing data; in the coming years, the Indica- available for full-time positions. tors will expand to incorporate new data from an Academy-spon- sored survey of 1,500 colleges and university humanities departments.

Bulletin of the American Academy Winter 2009 3 Academy News the humanities as well as two issues of Dædalus, the ½rst on the evo- lution of the humanities disciplines (Spring 2006) and the second Selected Statements of Support for the on challenges facing the humanities within and beyond academia Humanities Indicators Prototype (Winter 2009).

The Academy is indebted to the William and Flora Hewlett Founda- The humanities are an invaluable source of enrichment in all tion for supporting the Initiative on Humanities and Culture and to our lives. The study of history, philosophy, languages, and lit- the Andrew W. Mellon Foundation for enabling us to create the erature deepens our understanding of the world as it was, as Indicators. it is in our own day, and what it may become for future gener- ations. I commend the Academy for its important contribu- tion to the nation in documenting the extent and quality of The Academy gratefully acknowledges the individuals who research and instruction in the humanities available in today’s helped to launch the Initiative for Humanities and Culture: society. It will encourage schools and colleges in communities Denis Donoghue, cochair Hans Gumbrecht across the nation to improve their curricula and enhance the Steven Marcus, cochair James Herbert education of all our students, and the nation will reap the Francis C. Oakley, cochair Walter B. Hewlett bene½t in the years to come. Patricia Meyer Spacks, cochair Thomas Hines Edward M. Kennedy Leslie Berlowitz, cochair David A. Hollinger United States Senate Rolena Adorno Gerald Holton College and university presidents, provosts, and deans, who Lee C. Bollinger Arnita Jones have long hoped for concise and accessible data on the human- Norman Bradburn Linda K. Kerber ities, will welcome the American Academy of Arts and Sci- John Brademas Alexander Nehamas ences’s Humanities Indicators Prototype. Not only does the John Bryan Mary Jo Nye prototype offer tremendous insight into the undergraduate Jonathan R. Cole Robert C. Post and graduate experience of students and faculty, it also offers W. Robert Connor Elihu Rose key datasets on the entire span of the educational experience, John D’Arms † Neil Rudenstine as well as the work our students will one day undertake. Among Gerald Early Frederick Schauer other things, these data will greatly enhance our ability both Dag½nn Føllesdal Richard Sennett to understand and anticipate the needs of incoming students Richard Franke Salvatore Settis and to prepare our students for work in the humanities. Henry Louis Gates, Jr. Robert Silvers Donald Gibson Robert M. Solow Lee C. Bollinger Philip Gossett Anne-Marie Soullière President, Columbia University Anthony Grafton Peter Stansky Now for the ½rst time we have a full, reliable set of data relat- Hanna Gray John Walsh, Jr. ing to some of the most important indices of behavior in the Stephen Greenblatt Rosanna Warren humanities ½elds. The website is clearly organized and easily † Deceased Pauline Yu accessible to users, and it should help us to understand the academic ½eld of the humanities in ways that have previous- ly been impossible to accomplish. It will help administrators across the humanities, and in the schools and higher educa- tion generally. It will also be of service to individual teacher- scholars and students. And best, from my point of view, it will facilitate the work of those of us who try to understand and influence humanities policy. Stanley N. Katz Director, Center for Arts and Cultural Policy Studies, Princeton University The Humanities Indicators Prototype is an important invest- ment in the future. Until we have a clear picture of the state of the humanities and the extent of humanities activity in this country, we will be seriously handicapped in our efforts to make a case for the impact of that activity. This report is a vital ½rst step in helping us to overcome that challenge. Esther Mackintosh President, Federation of State Humanities Councils

4 Bulletin of the American Academy Winter 2009 Academy News Scholar-Patriot Award

The American Academy of Arts and Sci- ences was founded by a group of patriots who devoted their lives to promoting the practical arts and sciences “to cultivate every art and science which may tend to advance the interest, honor, dignity, and happiness of a free, independent and virtuous people.” On October 11, 2008, the American Academy bestowed its Scholar-Patriot Award on Ed- ward M. Kennedy for his extraordinary ser- vice to the Academy, the community, and the nation.

Edward M. Kennedy For four decades you have been a ½erce de- fender of the ideals of opportunity, equity, and justice. Master of quiet collaboration and inspired oratory, you have achieved an unparalleled legislative record. Your efforts to insure quality education and health care for all Americans, including your leadership on the Americans with Disabilities Act, the State Children’s Health Insurance Program, and the Elementary and Secondary Educa- tion Act, have earned you the respect of men and women across the political spectrum. From your ½rst major bill on immigration reform to your recent call for a renewed com- mitment to community service, you have championed an open and inclusive society. To your family and the nation, you are a pro- ½le of courageous leadership, the guardian of a dream that lives on. The founding members of the American Academy were pragmatic visionaries, anticipating the needs of a young republic for both wise governance and fresh ideas. You follow in their footsteps as a Scholar-Patriot for our time. Asserting that “our future does not belong to those who are content with today,” you have ful½lled the Academy’s his- toric mission, translating knowledge into action and celebrating the life of the mind in service to the community, the nation, and the world.

Bulletin of the American Academy Winter 2009 5 Academy News The Rumford Prize

Established in 1839, the American Acad- emy’s Rumford Prize recognizes contribu- tions in the ½elds of heat and light. The en- dowment was created by a bequest from Benjamin Thompson, Count Rumford, who stipulated that the award be given for work that “in the opinion of the Academy, tends most to promote the good of mankind.”

On October 12, 2008, the American Acad- emy of Arts & Sciences bestowed the Rum- ford Prize on George P. Shultz, William J. Perry, Sam Nunn, Sidney D. Drell, and Henry A. Kissinger (in absentia) for their efforts to secure a world free of nuclear weapons. George P. Shultz William J. Perry Sage statesman and esteemed economist, you A scholar and defender of American ideals, have held four Cabinet positions, providing you have faced threats to the nation with steadfast leadership and trusted counsel to courage and resolve. Educated at Stanford ten presidents. Always faithful to the ideals and Pennsylvania State Universities, you of freedom, you confronted the forces of in- combined technical and political expertise tolerance and oppression beginning as a to become a leader in the defense industry. young Marine captain during World War II As an engineer, laboratory director, and Un- and later as the nation’s chief diplomat dur- der Secretary of Defense for Research and ing the . As Secretary of Labor, Di- Engineering, you fostered and applied tech- rector of the Of½ce of Management and nologies essential to national security. As Budget, Secretary of the Treasury, and Sec- Secretary of Defense during a period of pro- retary of State, you made negotiation and found transition at home and abroad, you quiet diplomacy the hallmark of your work. brokered peaceful, equitable resolutions to Whether you were restructuring the inter- crises around the world. In Haiti and the Bal- national monetary system or fostering co- kans, you aided the powerless and preserved operation between hostile superpowers, the nation’s reputation as a principled lead- your skill at the bargaining table ensured er in world affairs. Today, with joint appoint- the welfare of the nation and the security ments at the School of Engineering and the of future generations. Educated at Princeton Institute for International Studies at Stan- University and Massachusetts Institute of ford University, you advise established and Technology, today you are a Distinguished rising world leaders with wisdom drawn Fellow at the Hoover Institution of Stanford from a life of distinguished service. University, inspiring bipartisan action to ad- In government, industry, and academia, you have vance peace and international cooperation. taught us countless “lessons in leadership.” With For ½ve decades, you have kept your faith in a se- dedication, determination, and insight you stream- cure and prosperous America. As a leader in gov- lined the military, averted international crises, and ernment, industry, and academia you foresaw the reduced our nation’s nuclear arsenal. As we face challenges of the nuclear future. Your call for an the renewed threat of nuclear proliferation, you “Age of Diplomacy” and a redirection of nuclear are securing a safer international community by policy echoes your lifelong insistence upon a rea- adhering to the principle that “openness and trust soned exchange between adversaries and friends. are the essential tools of the art of peace.”

6 Bulletin of the American Academy Winter 2009 Academy News

Sam Nunn Sidney D. Drell Educated at the Georgia Institute of Tech- In the tradition of Einstein, Fermi, and Szi- nology and Emory University, you launched lard, you are a physicist who has reached be- your career in the Coast Guard as a defender yond your profession to become an impas- of the nation. And from your earliest days sioned advocate for arms control. With a on Capitol Hill, you worked to reduce nu- bachelor’s degree from Princeton Univer- clear dangers. Serving in the United States sity and a doctorate from the University of Senate for four terms, you became an influ- Illinois, you conducted pathbreaking re- ential voice in matters of national and inter- search in elementary particle physics and national security. During your chairman- quantum theory. You helped to found the ship of the Armed Services Committee, you Stanford Linear Accelerator Center and dealt with Cold War struggles and emerging continue to direct the long-term planning threats. Determined to advance the cause of of national accelerator laboratories. Recipi- nonproliferation, you cosponsored the Nunn- ent of our nation’s most prestigious scien- Lugar Cooperative Threat Reduction Pro- ti½c awards, you have used your technical gram, which has resulted in the deactivation expertise to provide sound guidance for our of over 7,000 nuclear warheads to date. Now, government. Einstein said, “politics is much as Cochairman and Chief Executive Of½cer harder than physics,” but you never wavered of the Nuclear Threat Initiative, and as Dis- in your determination to add scienti½c know- tinguished Professor at the Sam Nunn School ledge to public discourse. You are the con- of International Affairs at Georgia Tech, you summate adviser with a mission: to promote provide a bold vision for a world free of nu- nonproliferation while strengthening the clear weapons. nation’s nuclear defense. Dedicated to the defense of our shores since your You have shown by example that scientists have a earliest years of service, you have expanded the responsibility to acknowledge and to act on the range of your vigilance as technology has extend- implications of their work: to accept the “obliga- ed the reach of those with hostile intentions. You tion to try to help the government function.” By pursue a global response to a threat that respects upholding these principles, you have earned the re- no boundaries. Determined to win the “race be- spect of policy-makers, government leaders, sci- tween cooperation and catastrophe,” you have enti½c colleagues, and the public who look to you gathered together world leaders to steer a safer for wise counsel and informed judgment “in the course to the future. shadow of the bomb.”

Bulletin of the American Academy Winter 2009 7 2008 Induction

Cynthia Dwork ’08 (Microsoft Research) and Alessandro Arthur Levinson ’08 (Genentech) and Daniel Vasella ’08 Duranti ’08 (University of California, Los Angeles) (Novartis AG)

Xiaoliang Sunney Xie ’08 (Harvard University) and Marlan Lauren Dachs ’08 (S. D. Bechtel, Jr. Foundation), Elizabeth Scully ’08 (Texas A&M University) Bechtel, and Stephen D. Bechtel, Jr. ’90 (Bechtel Group, Inc.)

8 Bulletin of the American Academy Winter 2009 Academy News

John Guckenheimer ’08 () and Christopher Cummins Nikos Logothetis ’08 (Max-Planck-Institut für Biologische ’08 (MIT) Kybernetik) and Allison Doupe ’08 (University of California, San Francisco)

Tom Leighton ’03 (Akamai Technologies/MIT) and Paul Sam Nunn ’97 (Nuclear Threat Initiative), Scott D. Sagan ’08 (Stanford Sagan ’08 (Akamai Technologies) University), and Walter B. Hewlett ’99 (William and Flora Hewlett Foundation)

Bulletin of the American Academy Winter 2009 9 2008 Induction

Margaret Whitman ’08 (formerly eBay) and George P. Shultz ’70 (Stanford University) Bruce Stillman ’08 (Cold Spring Harbor Laboratory) and Arthur Levin- son ’08 (Genentech) with a group of new members before the morning briefing

Henry Arnhold ’04 (Arnhold and S. Bleichroeder Holdings, Inc.) Robert Rosner ’01 () and Richard Wilson and Nelson Kiang ’81 (Massachusetts Eye & Ear Infirmary) ’58 (Harvard University)

10 Bulletin of the American Academy Winter 2009 Academy News

Rodney Brooks ’07 (MIT) and Ruzena Bajcsy ’08 (University Larry Hedges ’08 (Northwestern University) and Jeffrey of California, Berkeley) Ravetch ’08 (Rockefeller University)

David D. Sabatini ’80 (NYU Langone Medical Center), John Katzen- Charles Geschke ’08 (Adobe Systems, Inc.) and John ellenbogen ’92 (University of Illinois at Urbana-Champaign), and Warnock ’08 (Adobe Systems, Inc.) Lino Tagliapietra ’07 (Murano, Italy)

Bulletin of the American Academy Winter 2009 11 Induction Ceremony

Challenges Facing a Global Society

On October 11, 2008, the American Academy of Arts and Sciences inducted its 228th class of Fellows and Foreign Honorary Members at a ceremony held in Cambridge, Massachusetts. Mathematician and hedge fund leader James Simons, biochemist and research laboratory president Peter S. Kim, economist Susan Athey, historian and university provost Earl Lewis, and corporate leader Indra Nooyi addressed . Their remarks appear below.

and the included angle of the other.” Please body knows, the answer to the second ques- note that the statement of these theorems tion is yes. required more concepts, such as even, angle, The choice of the questions one works on is and congruent. very important. First, one must believe that As time went on, more and more concepts a question’s answer may truly advance the were created, each requiring a careful de½ni- ½eld, perhaps settling other questions and, tion and always dependent on previous con- one hopes, giving rise to a host of new ones cepts. Sometimes these are generalizations, in which others will be interested. Second, as polygon is of triangle; other times they one must believe that he actually has a chance are specializations, as prime number is of integer. Over millennia the subject has ac- quired a vocabulary more vast and more in- What is it that drives some comprehensible than that of any other. Over- people to do mathematics in hearing a group of mathematicians at a cock- tail party is (briefly) interesting: each word the pursuit of knowledge so may seem familiar–group, ring, ½eld, oper- ator–but each has a meaning quite different abstract it can be communi- James Simons from what one might think, and in any event the content of the conversation is utterly cated to but a small group President and Founder, Renaissance Technologies opaque. Nonetheless, this is not jargon, in- of people? The only answer vented to give dignity to a familiar concept, but is the skeleton of the subject, on which I can give employs two words: Many of you may never have heard of the the muscles of theorems are hung. notion of “doing mathematics.” Yet every- mathematics is beautiful, one knows that mathematics is almost ubiq- These de½nitions may be short lived, used uitous, applied to everything from balancing only to avoid repetition within a paper, but and it is true. a checkbook to designing a bridge or engi- they sometimes stick, being such useful con- cepts that others beside their inventor are in- neering a ½nancial derivative. The mathema- to answer it. The ½rst is a matter of taste, spired to probe them more deeply. Thus the tics underlying each of these actions–arith- rather than of intellectual musculature, and skeleton grows, and the subject advances. metic, calculus, and probability, respectively quality of taste has been shown to vary wide- –was invented centuries ago. And, believe it Proving theorems is another matter. With ly among practitioners. The second, like or not, it is still being invented, at a rapid concepts in hand one strives to answer a many things, depends on self-knowledge pace. question, posed either by oneself or by an- and courage. other in the ½eld. These could range from, Doing math consists of two equally impor- The process of proving a theorem involves “are all odd numbers prime?” to “can every tant parts–de½ning concepts and proving immersing oneself in a cocoon of preoccu- Hermitian vector bundle with connection theorems. These play off against each other. pation, in which ideas are generated and re- over a smooth manifold be realized as the Two concepts we are all familiar with are jected, and formulae and pictures are imag- pull-back of the canonical bundle and con- integers and triangles. These concepts, of ined and contemplated (often without pen- nection over the classifying space, bu, un- course, have led to many theorems, such as, cil and paper)–all in a mental place tempo- der a smooth map of the manifold into bu?” “the sum of two even integers is even,” or, rarily insulated from the cares of the day. As almost everyone knows, the answer to “triangles are congruent if two sides and the This process may continue for weeks, included angle of one are equal to two sides the ½rst question is no; and, as almost no-

12 Bulletin of the American Academy Winter 2009 Academy News

months, even years, and can take place al- oping a vaccine for hiv/aids. And nothing most anywhere, from the ballroom to the more clearly illustrates just how frustrating bathroom and on the walk in between. –and humbling–that search can be. Such immersions are not continuous: some- times it is necessary to break out to teach a Back in 1984, Margaret Heckler, then Secre- class, do taxes, or even civilly respond to tary of the U.S. Department of Health and one’s spouse or child. But the tranquility of Human Services, optimistically declared, the cocoon is always beckoning, and one “We hope to have a vaccine ready for testing yearns to return. In little bursts (occasion- in about two years–yet another terrible dis- ally in big ones) progress gets made. At such ease is about to yield to patience, persistence, times one emerges in triumph. Often, how- and outright genius.” Secretary Heckler’s ever, the emergence is in frustration, as the optimism was premature. Indeed, we are still many years away from knowing how to damn thing just doesn’t come together. hiv Still, in the next hour, day, or week one goes develop an ef½cacious vaccine. back to the cocoon to try again, to test a new The classic approach to immunizing people attack. And so it goes, ending sometimes in against disease–administering a vaccine success, but often in failure. that elicits an antibody response from the body’s immune system–does not work for At the end you might ask what is it that drives Peter S. Kim hiv some people to do mathematics, preoccupy- . This approach protects against infec- ing themselves so fully as to often annoy President, Merck Research Laboratories tions caused by influenza, hepatitis B, and others, missing out on much that most oth- human papillomavirus, the agent that caus- es cervical . But it does not protect ers ½nd engaging, and doing this in the pur- hiv suit of knowledge so abstract it can be com- Ask any biologist why he or she was at- against . tracted to the ½eld and you are likely to hear municated to but a small group of people? The reason for this failure is fairly, and frus- about the hope that one’s work ultimately The only answer I can give employs two tratingly, simple. hiv is extremely ef½cient will lead to improvements in human health. words, famously linked by John Keats: at changing its outer shell. This trait enables It’s a hope rooted in optimism, but often mathematics is beautiful, and it is true. the virus to evade detection by the antibod- tested by failure. ies elicited with a classical vaccine. hiv is, Over the course of my career, I have been in a very real sense, a master of disguise. © 2009 by James Simons fortunate to participate in biomedical dis- The human immune system, however, has a covery both in an academic setting and in a second arm for ½ghting infection, called cell- research pharmaceutical company. While mediated immunity. Through this response, there are some obvious distinctions between the body produces what are known as killer the two environments, one fundamental as- T-cells, cells that kill other cells infected with pect is the same: more often than not, the viruses. Given the failures of the antibody process of discovery is a long, arduous jour- approach, the scienti½c community has spent ney, ½lled with many false starts, blind al- more than 15 years pursuing an hiv vaccine leys, and frustrating setbacks. based on the cell-mediated approach. Today I’d like to describe one such journey. To describe better why scientists pursued the It’s a journey that, despite more than two cell-mediated approach, I would like to take decades of dedicated effort by literally thou- a minute to explain the three stages of the sands of scientists, is seemingly no closer to disease, once a person is infected with hiv. an answer now than it was 20 years ago. In the ½rst stage, soon after infection, the Historically one of the most cost-effective virus undergoes explosive growth. Within a methods to improve human health has been matter of weeks, the amount of virus in the vaccination against infectious disease. Noth- patient’s blood–the “viral load”–skyrockets, ing is more important today in the world of as virus replication far outpaces the body’s vaccine research than discovering and devel- ability to combat it.

Bulletin of the American Academy Winter 2009 13 Induction Ceremony

Then, the body’s natural defenses begin to At Merck, we developed a vaccine based on Obviously, the results of the clinical trial were ½ght back. Within weeks, the patient’s viral this approach. In pre-clinical testing on rhe- deeply disappointing. What many thought load drops until the virus and the immune sus monkeys, our cell-mediated vaccine in- was the most promising path forward turned system reach what is essentially a stalemate. creased production of killer T-cells. It also out to be a discouraging detour. As dispirit- The virus is not eliminated; instead the pa- dramatically drove down the set point of the ing as the results are, however, the paradox tient’s viral load reaches what we call a set infected animals. is that they represent an accomplishment. point, a point at which it likely will remain Although the answer is not the one we de- The connection between these two results for many years. sired, we have obtained an answer nonethe- –more killer T-cells and a lower set point– less. I echo what Thomas Edison once ob- led us to think that we had found what is served, “I am not discouraged, because every called a correlate of immunity. In other I am con½dent that the wrong attempt discarded is another step words, our pre-clinical results strongly sug- forward.” founders of the Academy gested that there would be a correlation be- tween increased production of killer T-cells The history of vaccines, after all, provides would encourage us today, by the immune system and reduction of a numerous examples of long and dif½cult as they did more than 200 patient’s viral load. searches for success. It took scientists more than 40 years to develop a safe and ef½ca- Therefore, together with the National Insti- years ago, to apply our best cious measles vaccine, more than 50 years tutes of Health, we sought and received ap- for polio, and the search is ongoing, after proval to test the vaccine in 3,000 human vol- efforts to the betterment of more than 60 years, for a vaccine. unteers who are at high risk of hiv infection. It is far too early to stop the search for an And while few scientists saw this approach as the American people, and hiv vaccine. the ultimate hiv vaccine, many in the ½eld, the people of the world, myself included, expected that our vaccine To conquer hiv and other public health even in the face of seemingly would reduce the viral set point in infected challenges, basic research on truly novel individuals, which would improve their ideas must be funded and pursued. Encour- insurmountable barriers. health and reduce the risk of transmission. aging and funding creative and transforma- tive research, as called for in the Academy’s Such a result would have been the biggest As scientists, that is a call recent ARISE report, is absolutely essential. step forward in the search for a vaccine in We must continue our efforts, so that the two decades; it ½nally would have given us a we must continue to answer. best of science can discover and develop the promising place to start. Indeed, Merck com- hiv vaccine the world so clearly needs. mitted to invest hundreds of millions of dol- The length of time that stalemate lasts de- lars to scale up production of the vaccine and This Academy was founded with the express pends on the patient’s viral load. The lower move into the ½nal stage of testing if the vac- goal, among others, “to promote and encour- the viral load–the lower the set point–the cine showed even just a ten-fold decrease in age medical discoveries.” The founders of hiv longer it will take for to progress to the patients’ viral loads. Unfortunately, it did not. the Academy would undoubtedly be aston- aids third stage, full-blown . That’s why we ished at what we have discovered and learned Much to the surprise of many in the scien- believed with some con½dence that stimulat- over the past two centuries. I suspect they ti½c community, the cell-mediated approach ing the production of killer T-cells would be a would not, however, be at all surprised at did not have the expected effect in humans. very important breakthrough in the search how dif½cult the process of biomedical dis- Although the vaccine did stimulate the pro- for a vaccine. Based on our knowledge of covery remains. hiv, if the vaccine worked as expected, there duction of killer T-cells, as it had in monkeys, hiv would be two very favorable results. that increase did not prevent an initial Indeed, I am con½dent that they would en- infection. What’s more important, it did courage us today, as they did more than 200 First, a cell-mediated vaccine would lower not reduce the viral load of those in the trial years ago, to apply our best efforts to the bet- the set point, extending the lives of patients who became infected with hiv. terment of the American people, and the and giving them a better quality of life. And people of the world, even in the face of seem- As a result, we stopped the trial. We had not second, it would lower the rate of transmis- ingly insurmountable barriers. As scientists, discovered a way to stimulate the second arm sion, slowing the spread of the disease. Given that is a call we must continue to answer. the size of the hiv/aids epidemic, even a of the immune system to reduce the viral small decrease in the rate of transmission load. Neither had we con½rmed a correlate of could save countless numbers of lives. immunity that would have helped advance © 2009 by Peter S. Kim the search for a vaccine. In short, we were back to square one.

14 Bulletin of the American Academy Winter 2009 Academy News

stand the sometimes perverse incentives search advertising has grown to well over created by a regulatory and institutional en- $10 billion in annual revenue in the United vironment, and respond to them. But until States. Perhaps more remarkably, each month recently, many argued that markets could be over 10 billion individual auctions are held self-regulating. How do we know when de- among advertisers. Every time someone en- sign is needed? I don’t have the answers to ters text into a search box, an auction is held the current crisis, but I will say a little about in real time using standing bids that can be more manageable problems. entered into an order database and updated by advertisers at any time. Hundreds of Typically an actively designed market is most- thousands of advertisers have bids entered ly likely to add value when participants have on millions of distinct keywords. When a private information about their valuations phrase is entered by a user, advertisements for objects, and these are heterogeneous are scored for quality and expected clicks, across market participants; when the items bidders are ranked, and advertisers appear are unique or perishable; when the alloca- in order of the rankings. The highest posi- tion is complex or coordination is dif½cult; tions tend to get more clicks from users. when there are impediments to market pric- ing due to legal or ethical constraints (for Susan Athey example, organ donation or allocating stu- Whether we’ll have compe- dents to schools); or when the government Professor of Economics, Harvard University cannot commit itself not to intervene, as in tition among search engines the case of health, welfare . . . or bailing out in the future is an open ques- ½nancial institutions. Central to economics is the question of how scarce resources are allocated. Often, For thousands of years, people have recog- tion, and this is an issue of resource allocation takes place through de- nized that a seller of a unique or perishable vital importance for all of centralized transactions among individuals, item may ½nd it most effective to sell the governed by a generic set of legal constraints item via auction. Fish and flowers were his- society, given the important concerning property rights, contracts, and torically sold using open-outcry auctions, fraud–for example, farmers and customers where bidders announce successively higher role search engines play in go to a farmer’s market and exchange goods prices that they are willing to pay for an item. for money in a set of individual transactions. In modern times, auctions are the method determining what informa- However, some kinds of resource allocation of choice for selling natural resources, such tion people receive about pol- problems do not lend themselves to such a as oil, timber, and spectrum, as well as for decentralized and unstructured approach. procuring unique, made-to-order, or com- itics, culture, and commerce. Market design is a sub½eld of economics plex bundles of goods and services. Under that focuses on problems when decentral- ideal conditions, an auction gets the item into Early auction designs asked bidders to pay ized markets do not perform very well, and the hands of the buyer who values it the most. their bids for each click they received; but where actively designed institutions can im- My own passion for the design of auctions the ability to update bids in real time lead prove the ef½ciency or fairness of resource started when I studied timber auctions as an bidders to adopt automated bidding agents, allocation. The design of market institutions undergraduate at Duke University. I continue and bids moved in cycles. Bidders continu- also affects pro½t for the owners of resources to work on timber auctions today, helping ally outbid one another by a penny, with the and often for the market institution itself. governments design auction-based market- rankings of bidders reversing continuously until prices rose so high that it was no long- When do markets need to be actively de- places for timber that work well even when er pro½table. Then prices collapsed and the signed? Why don’t all markets just “hap- the government owns most of the timber land. cycle began anew, with many cycles taking pen”? The events of the past few weeks However, my most recent foray into auction place each day. New designs are more stable, have brought into sharp focus the crucial design concerns another brand-new kind of adapted from the economic theory litera- role of well-designed institutions. With 20/20 auction, this one less than 10 years old and ture about “second-price auctions,” and hindsight, it seems obvious that ½nancial designed not by economists, but by search now bidders pay the minimum bid required institutions require oversight when the engines like Google: auctions for slots in for them to maintain their positions, which government implicitly or explicitly insures which to display short text advertisements reduces the incentive for cycling. them; that the rules of the game matter; alongside the results returned by search en- and that individuals and ½rms will under- gines. In just a few years, the marketplace for

Bulletin of the American Academy Winter 2009 15 Induction Ceremony

Search engines, like the yellow pages, provide from advertising auctions is a driving force ments? If so, will rich and poor consumers advertisements alongside their unpaid “di- behind funding it, and a carefully designed receive comparable offers for services in ex- rectory.” Top-ranked advertisements, like auction can attract more advertisers and change for their information? How will pri- extra-large yellow pages ads, generate more consumers to the platform, thereby foster- vacy be safeguarded? What role will the gov- leads for the advertisers; they also help con- ing competition. ernment play? Firms will innovate in creat- sumers ½gure out which advertiser is most ing marketplaces for targeted advertising, The auction design is constantly evolving, likely to meet the needs of people who typed but society as a whole will participate in set- and there is an ongoing and close interac- the same search query that they did. Just as ting the ground rules for this next wave of tion between the academic literature con- the advertiser with a large yellow pages ad market design. cerning these auctions and innovations in might be a good place to call ½rst when your practice. All search engines actively run ex- toilet is overflowing at midnight, the adver- periments with the auction design and meas- tiser at the top of the search page may be a © 2009 by Susan Athey ure the results; academic-style corporate re- good bet for your investment of valuable search labs play an important role in this. I time in searching the Internet for an online am currently a visiting researcher at Micro- purchase. soft Research, where I am working with Mi- In the United States, three main ½rms, crosoft on its own auctions. It is a fantastic Google, Yahoo!, and Microsoft, currently playground for an auction designer, and the operate search advertising platforms. These opportunity to take research into practice is platforms have what economists call “indi- amazing. rect network effects”: the more consumers One reason that search advertising creates there are, the more advertisers join; and the so much value is that the advertisements are more advertisers there are available for the highly targeted: people are looking for what search engine to choose from, the better the the advertisers are selling. Highly personal- consumer experience can in principle be. ized advertising can be an enormous bene½t Competing search engines vie to attract con- to a consumer. Imagine if every advertise- sumer “eyeballs,” as well as advertising ex- ment you saw reflected your current needs penditures, to their platforms, and the plat- and interests! As advertising becomes better form with the most ef½cient auction will and better targeted, fewer advertisements are have an advantage at attracting users. At the wasted, and the value created by showing same time, search engines earn pro½ts from advertisements grows dramatically. Online the auction, and auction design (including advertising ½rms are amassing enormous the use of reserve prices) affects both how troves of data that can be “mined” to better much value is created and how much the predict what users will respond to, based on search engine extracts. Platforms then bid whatever information the ½rm has about the for the ability to provide search services, searcher. Particularly valuable data would such as search toolbars for publishers of on- include the searchers’ demographics, their line newspapers, with whom they share the searching behavior online, the content of revenue. This provides incentives for pub- their email, and, potentially, their ½nancial lishers and individuals to publish content transactions. all over the Web. It also enhances a virtuous circle, whereby the biggest platforms get big- A number of crucial questions about the fu- ger. Yet, despite that, competing platforms ture of this industry remain open. How ef- can coexist. fective will targeting technology be, eventu- Whether we’ll have competition among ally? Will users appreciate receiving target- search engines in the future is an open ques- ed ads, or will they attempt to shield their tion, and this is an issue of vital importance behavior from observation? Who will bene- for all of society, given the important role ½t from the individual data? Will consumers search engines play in determining what in- share in the advertising revenue, for exam- formation people receive about politics, cul- ple, receiving free high-speed Internet or ca- ture, and commerce. But if you want a com- ble television in exchange for allowing their peting search engine to succeed, the revenue information to be used to target advertise-

16 Bulletin of the American Academy Winter 2009 Academy News

for the Federal Writers’ Project, other New But scholars today seeking to use these ma- Deal programs, and state of½ces. Their re- terials bene½t from signi½cant advances in cordings made possible new insights into technology. Not only is the sound quality of what it meant to live as enslaved people, and the recordings considerably better than in powered a generation of scholarship begin- the 1930s, but now we can tag the informa- ning in the 1960s that provided glimpses in- tion digitally for easy retrieval. The sources to the inner worlds of African descended can be sorted, analyzed, remixed, and other- peoples in the United States. wise used in manners barely imagined three generations ago. We can data mine and elec- The list of American Academy of Arts and tronically reproduce. We can scan for visual Sciences members who made use of these expressions of body language, mood, and materials to inform their scholarship is con- signs of affection. Today, it is as easy to fo- siderable. An example is the print and audio cus on the technologies as it is the people collection edited by Ira Berlin and associates. captured by those technologies. It is here In Remembering Slavery, Berlin and team assid- that the fundamentals of humanities schol- uously probed what it meant to be human, arship and method make a difference.

Let me offer two historical examples. The Earl Lewis The stories we tell, the ability to build a nuclear bomb is not the same as feeling compelled to detonate it. Provost; Executive Vice President for Academic stories we listen to, mark Piloting a massive aircraft is not the same Affairs; Asa Griggs Candler Professor of History the humanities and the as using it to destroy the lives of thousands and African American Studies, Emory University of innocents. In both examples, we need humanist interest in a lived greater insight into human motivation and It is a real pleasure to say a few words about behavior. We need an understanding of cul- the humanities and share my love of fashion- experience. Here, the past ture, language, history, religion, and world- ing an understanding from the fragments of and present remind us of view. We need stories. We need to analyze lives. When we think of the humanities, we them in form and structure. We need to often think of, among other disciplines, phi- what it means to be more pause and posit, “Why? Why? Why?” Ulti- losophy, literature, history, religion, culture, mately, technological advancement requires language, and the ways in which we as indi- than a collection of cells. a humanist perspective to understand fully viduals ½t into, make use of, and move for- its importance. The stories we tell, the sto- ward larger and more complex institutions We are reminded that in ries we listen to, mark the humanities and and organizations. Today, I want to touch on stories we ½nd answers to the humanist interest in a lived experience. those topics by talking about stories. All of Here, the past and present remind us of what us have stories: some stories are apocryphal; what makes us who we are. it means to be more than a collection of cells. some we share with only a few friends; a few We are reminded that in stories we ½nd an- we hope no one else knows anything about. swers to what makes us who we are. If you Stories chronicle the ways in which we are even for those whom others had seen as ever listen to or read a slave narrative, and human. chattel. From the stories they captured, we the next time you hear a selection from the see how ordinary people emerged in mind, StoryCorps project, think about what is in In the days before small batteries powered body, and soul to reveal consciousness, free a story. equally small tape recorders, a now forgot- will, and poetic genius, despite legal limits ten army of ethnographers moved along our on every aspect of their lives. nation’s highways and byways to capture the © 2009 by Earl Lewis simple words of ordinary citizens who had Fast forward to today, and to another attempt experienced slavery. The human recorders to let ordinary Americans tell their stories. had to listen hard for rhythm, diction, ca- The project is called StoryCorps, and many dence, and meaning. That some did so bet- of you have heard radio vignettes on your ter than others goes without saying. Some local public radio station. It is the largest of those taking notes were black; others were project of its kind since the 1930s, and as in white. Some had early audio recorders; many the 1930s, the casual listener or reader will took notes longhand and transcribed them hear tales of hope and despair, love and heart- later. Most listened carefully and reproduced break, beauty and pain, triumph and defeat, the comments according to the dialects they humor and tragedy: all of what it is to be heard or imagined they heard. They worked human.

Bulletin of the American Academy Winter 2009 17 Induction Ceremony

every company, of course, by de½nition sup- This is no longer true. There are companies plies a product that people want. Life is, in that have taken years to recover from a sin- some small way, enriched by the work done gle instance of unethical practice. In due by business. course, they ½nd it dif½cult to recruit the best staff. Young people today want to know But believe me, none of these reasons is spe- that they are working in a good company. cial enough to warrant this award. Compa- Our new recruits pose a stringent test that nies are linked into society inevitably, and I we have to pass. think we need to lead this argument just a bit further. I like to think that it is in the If PepsiCo’s ethical position is not aligned process of advancing the idea of “the good with our commercial position, then both company” that I may have come to the at- will suffer. The future of our company is in tention of the Academy. It is a deceptively the marriage of what is good ethically and simple idea: that a company must redeem what is good commercially. a moral promise as well as yield a return on This is not the occasion for a parade of ex- capital. It is not enough, in my view, simply amples from PepsiCo and how we live up to to comply with the existing rules and regu- this exacting standard. Let me simply say lations in pursuit of the maximum return that we have tried to embed the notion of Indra Nooyi to shareholders. If that is your approach, it a good company in everything we do. will prove to be self-defeating. Chairman and Chief Executive Of½cer, PepsiCo This age has been one in which nation-states Business, of course, makes have seen power slowly migrate. Open mar- Ladies and gentlemen, it is with great hu- kets are changing the world, and in that con- mility and no little pride that I stand before a direct contribution to the text, companies have become what Robert you today to accept this accolade on behalf Lowe, the founder of Limited Liability, once of myself and Class V of the Academy. When health of society. It is an called “little republics.” They have gained a I reflect on the distinguished members of power they never sought. The task is to ex- the Academy and the remarkable men and engine of growth and a ercise it responsibly. women who are being honored on this occa- It is, I hope, for the responsible exercise of sion, I am truly humbled. source of employment. that power that I stand before you today. It Indeed, this honor has forced me to reflect Our livelihoods would be is a great honor, I am overwhelmed, and I on the nature of what I do in leading my com- less prosperous and more cannot thank you enough. pany, PepsiCo. The accomplishments of the vast majority of members of the Academy onerous if it were not for the are impressive and clear. When scientists © 2009 by Indra Nooyi expand the frontier of knowledge, this is ingenuity of entrepreneurs. clear. When public servants help those in need, it is clear indeed. When writers change our understanding of the world, again, it is The modern company today lives in a world clear. So with no false modesty, I have won- crisscrossed with networks of governments, ngo dered about my own contribution. What is s, transnational agencies, and other the enduring achievement of business? In companies. That complexity is compound- what way do I stand shoulder-to-shoulder ed by the fact that we operate in very many with my fellow inductees today and with all more countries than ever before, selling into of the distinguished people who have come very many more different cultures. And all before us? the while, the scrutiny of global media means that any error is put up to the light almost in Business, of course, makes a direct contribu- an instant. tion to the health of society. It is an engine of growth and a source of employment. Our It has always been the case that a company livelihoods would be less prosperous and guards its reputation for probity with great more onerous if it were not for the ingenu- zeal. But there was a time when mistakes ity of entrepreneurs. The ½scal base of all would pass unnoticed. Once won, it took a nations would be depleted were it not for lot to tarnish the reputation. the contributions made by business. And

18 Bulletin of the American Academy Winter 2009 Projects and Studies

At a morning brie½ng for new members, held on October 11, 2008, leaders of current Academy projects presented updates on their work. Their remarks appear below.

ARISE: Advancing The purpose of the Academy’s The project’s study committee, out. Here are some indicators of set Initiative is to identify areas chaired by Nobel laureate and what lies ahead for young scien- Research in Science of concern in science and tech- President of the Howard Hughes tists. First, the average age of the and Engineering nology policy where the Acad- Medical Institute Thomas R. recipient of the ½rst competitive emy’s influential voice can make Cech, included scientists and National Institutes of Health Neal Lane a difference. Our ½rst study fo- science-policy experts from ac- grant is over forty-two years. Malcolm Gillis University Professor, cused on the modes used by fed- ademia, industry, government, Many young people are ½nding Senior Fellow at the James A. Baker eral agencies to fund research. and the private sector. I served that by the time they get their III Institute for Public Policy, and We chose not to address how on the committee. A headline ½rst competitive grant and have Professor in the Department of Phy- much money ought to be spent– for the report might read: “If this a chance to do anything with it, sics and Astronomy at Rice University. a lot has been said about that country really expects to stay in the tenure clock has run out. This matter–but rather how the funds a leadership position in the next is terribly wasteful in terms of the should be allocated. The objec- century, we need to invest in the talent and money invested by the As cochair of the Academy’s tive was to complement the ½nd- people and the ideas to make that federal government, by univer- Initiative for Science, Engineer- ings of the National Academies’ happen.” It ½ts well with the sities, and, sometimes, by the ing, and Technology (set), I report, Rising above the Gathering Academy’s motto: Cherishing parents and spouses who sup- would like to discuss a report we Storm, which dealt with the need Knowledge, Shaping the Future. port these young investigators. recently issued on the need to for additional federal investment Another indicator, the success develop funding policies and in scienti½c and technological I would like to tell you briefly rate for ½rst-time applicants (and programs to support early-ca- research and education by the what we had to say about each now I am still talking about Na- reer scientists and high-risk, po- federal government and other of these topics and what we felt tional Institutes of Health) has tentially high-reward or trans- policy actions to lower existing should be done. In the case of declined from 86 percent in 1980 formational research. The report, barriers to innovation by U.S. early-career investigators, it is to 28 percent in 2007. The Nation- entitled ARISE: Advancing Research industry. The Academy study obvious why they are important: al Science Foundation has had a In Science and Engineering, has re- identi½ed issues that the commit- they are the future and they face similar experience. Too much ceived widespread attention in tee felt were important no mat- ever-increasing barriers that are time is spent preparing grant government and in the media. ter what the funding levels were. much higher than those many of us faced when we were starting proposals and, if rejected, the

Selected leaders of current Academy projects: front (left to right): Robert H. Legvold (Columbia University), Patricia Meyer Spacks (University of Virginia), Francis Oakley (Williams College), Bruce Western (Harvard University); back (left to right): David Clark (MIT), John D. Steinbruner (University of Maryland), David E. Bloom (Harvard School of Public Health), Steven E. Miller (Harvard Kennedy School), Neal Lane (Rice University), Robert I. Rotberg (Harvard University), Leslie Berlowitz (American Academy), Jesse H. Choper (UC Berkeley School of Law), Scott D. Sagan (Stanford University)

Bulletin of the American Academy Winter 2009 19 Project and Studies second and third amendments ing to work, don’t put it in your A number of actions have been change, nuclear power–the most to the original proposals. That proposal, because it won’t get taken: we don’t take credit for proven large-scale alternative to time could be spent more pro- past the reviewers.” If America them, but they do dovetail with fossil fuels–looks more attrac- ductively on research. is to remain competitive in the what we are talking about. The tive and even more necessary new global environment, we National Institutes of Health has than in the past. Rapid expan- The arise report makes a num- must address this issue through made signi½cant changes to en- sion of nuclear power may be ber of recommendations to fed- special programs focused on hance and improve its peer-re- necessary if greenhouse gas eral agencies, foundations, and bold research ideas, a strength- view system. nih has also an- emissions from use of fossil fuel universities, including the cre- ened peer-review system, and nounced a new program of ½rst are to be signi½cantly reduced. ation of target grant and seed greater support for the program grants to support high-risk, funding programs for early-ca- All of this momentum toward of½cers who are making key de- high-reward research called the reer scientists as well as recon- nuclear power leads many peo- cisions. These program of½cers eureka program. In addition, sideration of promotion and ple to believe that we are on the need to be active in the research the National Science Foundation tenure policies. In addition, the edge of a so-called nuclear re- community, attending confer- has developed a transformative report advocates for the system- naissance. But what are the im- ences, visiting laboratories, and research initiative. atic tracking of demographic plications of the nuclear world staying current in the ½eld. As data about grant applicants on into which we seem to be head- many of us who have worked in The next steps are implementa- a government-wide basis: the ing? How can the bene½ts of federal agencies know, the tion. Many ½ne reports are writ- current non-standardized track- nuclear power be obtained while budgets to support these activi- ten and end up on the shelf. So minimizing the risks and poten- ties have been squeezed over the we need to spread the word, ½nd- tial problems associated with If this country really years and are simply too small. ing anybody who will listen. A new executive branch of govern- nuclear technology? How can a expects to stay in a Now some of you may be asking ment and a new Congress are world in which nuclear technol- yourselves, “Why is this Acad- about to take of½ce. We are ac- ogy is both more abundant and leadership position emy focusing on these issues?” tively working to ensure that more widely spread be safely This is a very good question. We this report will be part of the managed? Moreover, the spread in the next century, think this study is an excellent transition material for the new of nuclear power has inherent we need to invest in example of something this Acad- administration and that it will weapons implications, given the emy can do by building on its have a signi½cant impact in the dual-use nature of many of the the people and the multidisciplinary membership, years to come. sensitive nuclear technologies. including ½elds and professions How can the risks of nuclear ideas to make that that reach far beyond science, proliferation be contained as engineering, and research. More- nuclear power spreads? These happen. over, the Academy’s acknowl- The Global Nuclear are the big questions we are ad- edged status as a neutral party Future dressing in our project. ing hinders efforts to determine without an ideological agenda– With generous support from how well we are supporting not beholden to government or Steven E. Miller the William and Flora Hewlett younger scientists. We also sug- corporate funders–gives us a Director of the International Secu- Foundation, we are conducting gest that federal agencies and special credibility. rity Program at the Belfer Center for this study under the auspices of universities pay special attention Science and International Affairs at the Academy’s Committee on to women and their childbear- Since June, when the Academy Harvard Kennedy School. International Security Studies. ing needs. released the report, there have been a number of outreach ef- Three strands of work are being In my view, the question of sup- forts. We have sent the report to The global nuclear order is pursued through commissioned port for high-risk, high-reward more than 6,000 academic, gov- changing before our eyes. Exist- research and a series of work- research is less straightforward, ernment, industry, and founda- ing nuclear power programs are shops. First, there is the ques- but based on our discussions at tions leaders as well as to mem- being expanded while elsewhere tion of safety and security: the federal agencies and our inter- bers of the media and, of course, around the world there is a big need to ensure that future nu- views with people in the research all of our Fellows. We’ve been on appetite for adding nuclear pow- clear facilities meet desirable community, it is clear that many the Hill, and committee mem- er to the energy mix. The upsurge standards of safety and security years of tight budgets and con- bers have conducted brie½ngs at of interest in nuclear power is to minimize the risk of accident servative thinking within fund- a number of government agen- driven in part by growing global and of terrorist abuse. This con- ing agencies have created a bias cies. There have been more than energy demand and serious wor- cern is particularly evident in against potentially transforma- 135,000 hits on the Academy’s ries about long-term fossil fuel the case of nuclear newcomers, tive research. Scientists, both website that includes the full text costs. Further, in many places places that currently have a de- young and established, are often of the report and a summary of concerned about global climate clared appetite for nuclear pow- told, “If you don’t know it’s go- the ½ndings.

20 Bulletin of the American Academy Winter 2009 Academy News er but do not have an existing le- have weapons implications be- tions about what arrangements The Global Nuclear gal, technical, or regulatory in- cause the spent fuel rods contain in the future may be best for frastructure for managing nu- plutonium, and, if separated, they limiting risk. Future clear power. can help produce a bomb. One ½nal point: we held our ½rst Scott D. Sagan A second strand of work centers conference here at the Academy The third strand of our work Professor of Political Science and on the management of the nu- in May 2008. Participants includ- deals with the international Codirector of the Center for Inter- clear fuel cycle. At the front end ed a remarkable set of interdis- nonproliferation regime by ex- national Security and Cooperation of the cycle, we are dealing with ciplinary, and even inter-profes- amining the adequacy of exist- at Stanford University. fuel supplies, various multilat- ing arrangements for enforcing sional, individuals such as physi- eral schemes, and problems of the separation between civilian cists, political scientists, econo- nuclear power and nuclear weap- mists, nuclear engineers, mate- Our project on The Global Nu- If you think that ons programs. Even if you think rial science specialists, and in- clear Future is still at a very early that the mechanisms now in dustry specialists. At that meet- stage of development. Here I will nuclear power sim- place are adequate for today’s ing, a representative of the nu- lay the groundwork by discussing challenges–and many experts clear power industry showed a very briefly the global status of ply has to be part of do not think that is the case–we slide consisting of concentric nuclear weapons and nuclear want to consider whether these circles. He put question marks power development today, and the mix for address- arrangements will be adequate in the inner circles and explained how this influences the frame- ing global climate for a future in which there may they represented the challenges work for our project. The three be many more nuclear power re- that he saw for the global expan- ½gures presented below provide change, then success- actors spread across many more sion of nuclear power. The two a graphic display of both succes- countries with a much larger bur- biggest challenges were ½nancial ses and challenges that we face. fully addressing the den of transparency and inspec- and technical constraints that Looking at nuclear weapons pro- tion imposed on the internation- inhibit the ability to expand nu- liferation in Figure 1, there is nonproliferation al order. clear power as rapidly as might be desired. both good and bad news. His- challenges related to The failure to meet that challenge torically, the number of nuclear the expansion of nu- could impinge dramatically on On the outside ring were prob- states has been steadily rising, the prospects for utilizing nucle- lems that, in his view, have been although not as rapidly as many clear power is a real ar power in the future. A non- solved, including physical secu- predicted in the 1960s. Indeed, proliferation catastrophe will rity–the antiterrorism problem there have been a number of im- imperative, not only have enormous ripple effects on –and the nonproliferation prob- portant nuclear reversals, states the global nuclear power indus- lem. He maintained that we have that acquired nuclear weapons from a security point try. And if you think, as many in- standards, we have rules, and we and then gave them up. Belarus, of view, but from an creasingly do, that nuclear power are following the rules. His com- Ukraine, and Kazakhstan inher- simply has to be part of the mix ment created an interesting dia- ited their weapons after the col- energy and climate for addressing global climate logue because those who deal lapse of the Soviet Union. They change, then successfully ad- with proliferation said, “No, you later were persuaded to ship them change point of view dressing the nonproliferation don’t understand, these are the back to Russia where some were challenges related to the expan- biggest problems,” while the put into storage, and others were as well. sion of nuclear power is a real representatives from industry dismantled. The materials in imperative, not only from a se- argued, “No, we’re dealing with some of the dismantled weapons fuel assurances. Above all, we are curity point of view, but from those as effectively as we can.” from the Soviet stockpile were trying to discourage the spread an energy and climate change It was clear that the people in downblended and then shipped of the kind of technologies that point of view as well. that room do not talk to each to the United States for use in are proving so troublesome in the other nearly as often as they nuclear power plants; much of case of Iran: if you get national All three strands of our work are should. We all get “stove piped” the energy in the state of Illinois, enrichment capabilities, you in- driven by the belief that we are into our own professional disci- for example, is produced from herently are providing a weapons entering a world that will be to plines and our own sub½elds but nuclear materials that originated option for that state. At the back some large degree unlike the nu- the Academy’s project offers us in Soviet nuclear weapons. South end of the fuel cycle, we have a clear past. There will be more the opportunity to cross those Africa also had a small number of waste disposition problem. These players, more reactors, more boundaries. nuclear weapons but gave them wastes are very long-lived, hard challenges, and also more risks up just before the collapse of the and dangerous to handle, and and worries that we will attempt Apartheid regime, keeping its costly to deal with, but they also to hold at bay with recommenda-

Bulletin of the American Academy Winter 2009 21 Project and Studies

concerned that Syria is secretly Nuclear Proliferation: Status concealing its nuclear weapons development work.

In the more complicated Figure 3 I show the number of states that have developed nuclear power and/or nuclear research reactors and therefore have some experi- ence in dealing with nuclear tech- nology. Some of the research re- actors use highly enriched ura- nium, although the global clean-

Number of States up program is trying to switch all of them to low enriched ura- nium in order to reduce terrorist risks, since highly enriched ura- nium can also be used for a bomb. Year This ½gure also shows countries that are engaged in uranium en- Nuclear Weapons States Figure 1 richment or plutonium reproces- sing, either of which produces serious proliferation and secu- rity risks. If you enrich low-en- Nuclear Exploration and Reversal riched uranium to fuel a power plant, for example, you can eas- ily also make highly enriched uranium for nuclear weapons. In addition, the spent fuel rods coming out of a power reactor have plutonium in them, and if you have an ability to reprocess, you can turn that plutonium in- to weapons-grade material for a nuclear bomb. One serious prob- lem we face in a world of expand-

Number of States ing nuclear power, and demand for nuclear fuel, is how to con- trol the fuel cycle so that more and more states do not develop enrichment and reprocessing Year plants, which would make such NNWS Exploring Nuclear Weapons states “latent” nuclear weapons Figure 2 powers.

In Figure 3 you can see that the highly enriched uranium in a fa- Figure 2 shows over time which world. Indeed, this ½gure had to gap between countries that are cility called Pelindaba under full states started developing nuclear be amended just in the last year using nuclear research reactors iaea (International Atomic En- weapons, when they did so, and when we discovered that Syria or power reactors for civilian, ergy Agency) safeguard inspec- when they ended their weapons was secretly starting a nuclear legitimate, treaty-acceptable tions. This positive disarmament programs. This ½gure provides weapons program but refusing purposes and those that have record is heartening, but should only an of this hidden to inform the iaea and creating nuclear weapons is very signi½- not lead us to ignore how many history of proliferation attempts, disguises for its reactor. The key cant. Our project focuses on how others states have started but not because governments often try Syrian facility was attacked in the best to maintain that gap and completed their own nuclear to keep any nuclear weapons re- summer of 2007 by the Israelis, potentially increase it. weapons programs. search secret from the outside and iaea investigators remain

22 Bulletin of the American Academy Winter 2009 Project and Studies

Most specialists predict at least terials falling into the hands of Reconsidering the serious threat with preemptive some continued global growth terrorists or new countries drop- attack rather than by relying on of nuclear power, and most pre- ping out of the treaty and using Rules of Space deterrent effects. That intention dict some degree of spread of their new technology and new has been most explicitly stated nuclear power to new countries, understandings to develop nu- John D. Steinbruner in our space policy, where a series states that may not have highly clear weapons? What kinds of Professor of Public Policy and Direc- of of½cially pronounced docu- developed regulatory systems or new cooperative arms control tor of the Center for International ments formulate an aspiration advanced security programs to measures could be negotiated to and Security Studies at the Univer- to utilize space for national ad- prevent theft or diversion. Ex- reduce these risks? The Global sity of Maryland vantage and deny a similar capa- perts disagree, however, on the Nuclear Future Initiative is de- bility to any other country. This rapidity and ultimate level of signed to bring together schol- violates established legal rules, his project is examining the growth in nuclear power for both ars and practitioners from both T and it is not feasible for technical global security implications of economic and environmental the nuclear power and nuclear U.S. policy in space. In recent reasons: the massive capital costs weapons nonproliferation com- years, the United States has made for the construction of nuclear munities to answer these impor- It is in America’s a disproportionate investment reactors are all frontloaded, for tant questions. in military capability, creating interests to initiate example, and some countries’ a global power capacity that no publics are highly opposed to negotiations designed other country can match or is nuclear waste storage. At the anywhere close to matching. In very time that the interest in speci½cally to prohibit terms of military operations, we nuclear power is increasing really are in a league by ourselves. around the world, however, we interference with have great challenges with the Under the Bush administration, space assets, to set nonproliferation treaty (npt). this established advantage has How can we best ensure that as been associated with the implied a rule against that, nuclear power expands around intention to build a degree of su- the world, it does not inadver- periority suf½cient to allow the and, more generally, tently increase the danger of ma- United States to eliminate any to convey reassurance regarding the respon- Nuclear Latency? sible use of U.S. mili- tary capability.

and economic reasons, which are well reviewed in the ½rst of several monographs issued by our project. Physically and eco- nomically, we are not going to be able to dominate space in the way these documents claim.

The extensive effort to pursue

Number of States this aspiration, however, will re- inforce signi½cantly the capac- ity to engage in highly intrusive long-range attack capability, re- sulting in a new dimension of military capability with signi½- Year cant implications. That emerg- Nuclear Weapons States Reactor Activities ing capability is likely to be of Figure 3 concern to other governments, China in particular, and could in-

Bulletin of the American Academy Winter 2009 23 Project and Studies duce preparations to attack U.S. Countering Corrup- Congo, Laos, or Burma can be destroying the fabric of Nigerian space assets, thereby creating a traced clearly to the quality of society. Papua New Guinea, one threat to those assets that would tion in Nation-States leadership in these countries. of the most corrupt places in the not otherwise exist. world, and Russia are the subject Robert I. Rotberg Our project at the Academy is of the other case studies. The preparing a book that describes Our assets in space are very valu- Director of the Program on Intrastate book, now in the editing stage, the problems of corruption in able, and very vulnerable. In this Conflict and Conflict Resolution at will be a valuable resource for the world. It analyzes its causes, situation, we argue that it is in Harvard Kennedy School and Presi- scholars in international devel- prescribes remedies, and con- America’s interests to initiate dent of the World Peace Foundation opment, international relations, negotiations designed speci½cal- cludes with a number of critical and comparative politics. ly to prohibit interference with case studies of how corruption space assets, to set a rule against This Academy study represents affects security and the global that, and, more generally, to con- a bold attempt to assess the enor- order. There are chapters on the vey reassurance regarding the mous impact that corruption is changing nature and character U.S. Policy toward responsible use of U.S. military having worldwide. Almost noth- of corruption, including a discus- Russia capability. ing strangles growth in the de- veloping world more than cor- Many of you may be aware that This Academy study Robert H. Legvold ruption, yet the World Bank did for 30 years the United States– not regard it as a serious issue un- represents a bold at- Marshall D. Shulman Professor alone in the world–has refused til the 1990s. Peter Eigen, who is Emeritus of Political Science at to negotiate on this subject; in involved in our project, almost tempt to assess the Columbia University fact, we have refused to contem- single-handedly brought corrup- plate even discussing an elabo- tion out of the closet in 1991–1992 enormous impact ration of the rules of space. If For four years, the Carnegie when, after leaving the World you can imagine climbing up that corruption is Corporation has funded impor- Bank, he founded Transparency and viewing the scene from some tant work in Russian studies and International. Nothing keeps having worldwide. emotionally detached perspec- on international relations in- people hungry more than cor- tive, this is bizarre behavior on volving the areas surrounding ruption. Nothing keeps people in Almost nothing our behalf, especially since we the Russian state. Recently the the developing world unhealthy have an overwhelming interest Carnegie Corporation grew im- and ill-educated more than cor- strangles growth in establishing protective rules patient with the lack of serious, ruption. Nothing causes more for our assets. It indicates that in the developing systematic, long-term, and conflict in the world, particularly there is a serious problem in our broad-visioned thinking about in the developing world, than world more than political system in determining the U.S.-Russian relationship, corruption. Nothing undercuts our real interests. which in fact has become the good governance more than cor- corruption. victim of years of fragmentary ruption. And nothing undercuts thinking that focuses on only a security more than corruption. sion of corruption and human limited but important range of rights and the relation between Think for a moment about Con- issues, such as horizontal prolif- corruption and health and edu- go, Nigeria, Somalia, Burma, even eration, loose nukes, or oil and cation. We also consider corrup- Russia. The killings in the Niger gas in the Caspian Sea area. For tion in the traf½cking of humans, Delta may be largely the result of many people, Russia was no long- drugs, and arms as well as corrup- corrupt practices in Nigeria. Look er an issue that required serious tion and terrorism and the im- at what happened in Burma dur- thought. pact of corruption on the prolif- ing the cyclone. One of the prin- eration of weapons of mass de- Within the last year, however, cipal elements behind corruption struction. Russia has again become central is greed–a motivating force that to U.S. foreign policy. In response, is certainly evident in the devel- The book examines the impact the Carnegie Corporation wanted oped world but which seems to of leadership on multinational to launch a national effort to re- be more prevalent in new socie- corporations and on how corpo- examine U.S. foreign policy to- ties than in some older ones. One rate leadership deals with cor- ward Russia, and the question reason may be the kind of leader- ruption. There are several case became where to locate such a ship that begets good governance. studies. We have two chapters study. As I became involved in The difference between Botswana on Nigeria, one focusing on how the project, it seemed to me that and Singapore, where there is its people regard corruption; and the ideal location would be the little corruption, and Nigeria, a second on how corruption is American Academy for the rea-

24 Bulletin of the American Academy Winter 2009 Academy News

sons that Neal Lane outlined ear- need to develop a more effective sues surrounding the relation- The Challenge of lier. It is a national organization, policy that encompasses the dif- ship; and a third, six-part semi- a neutral organization, and an ½cult questions that lie ahead: nar at the Center for Strategic and Mass Incarceration independent organization. Above from nonproliferation and nato International Studies on the eco- in America all, it is rich in human resources membership for Ukraine or Geor- nomic dimension of the relation- representing a diversity of ½elds gia to missile defense in Europe ship. In addition, former U.S. Bruce Western and professions. around Poland and the Czech Ambassador to Russia James F. Professor of Sociology and Director Republic. Other issues include Collins is coordinating conver- In terms of the project itself, we of the Multidisciplinary Program in oil, gas, and energy, and the dy- sations with other former am- set two basic tasks for the parti- Inequality & Social Policy at Harvard namics within the Eurasian land- bassadors on the issues of struc- cipants. The ½rst was to do some- Kennedy School mass, including the critical Is- ture in U.S.-Russian relations. thing that U.S. foreign policy has lamic southern front. These con- The ½ndings of these groups will not done through all the admin- cerns must be embedded in a be used by a steering group, or most of the twentieth cen- istrations since the collapse of F strategic dialogue that addresses which will design a basic docu- tury, imprisonment in America the Soviet Union, and which the framing issues of European ment that addresses the two was very rare. The incarceration think tanks, task forces, and com- nuclear security, energy securi- tasks outlined earlier, as well as rate was 100 per 100,000, mean- missions have not accomplished a series of more speci½c docu- ing that just one tenth of 1 per- –namely to situate Russia in the ments designed to inform the cent of the population was be- context of overall U.S. foreign What is the relevance administration and Congress. hind bars on any given day. So policy priorities. What is the rel- of Russia to the ½ve why should the Academy con- evance of Russia to the ½ve or six The outreach has already begun. vene a group of social scientists, most important international is- or six most important I have worked with the Russian lawyers, and policymakers to sues currently facing the United government and with the Russian study incarceration in America? States? To what degree is Russia international issues Embassy in Washington; with The answer lies in the tremen- indispensable on any of these is- the Foreign Relations Commit- dous growth of the prison and sues? In what cases is coopera- currently facing the tee in the Senate; with key people jail population in this country tion with Russia desirable? In United States? To within the administration, par- since the 1970s. That population what cases is it essentially un- ticularly at the State Department; has grown every single year for necessary? There are very few what degree is Russia and with both presidential cam- the last 35 years, until today the areas in which Russian coopera- paigns. I am also working with incarceration rate stands at tion is unnecessary, including the indispensable on any the new Hart-Hagel Bipartisan about ½ve times its historic rebuilding of the alliance with Eu- Commission on U.S. Policy to- average. In fact, the incarcera- rope, with whom we have a di- of these issues? ward Russia. Outreach is critical tion rate in America is the high- vide in terms of how we are go- because it is going to require a lot est in the world, exceeding that ing to deal with Russia and its of hands to deal with the chal- ty, and mutual security in and of Russia and some former So- neighbors. lenge of redesigning this policy. around the Eurasian landmass. viet republics and the Republic In this effort, I believe that the Our second purpose is to design And we need to act in a way that of South Africa, which are the Academy project is essentially a policy that is comprehensive, will serve the country, not sim- nearest competitors. the bellwether for what will hap- coherent, and well-integrated ply by providing a new adminis- pen nationally. What is the signi½cance of this tration with policy recommen- across issue areas. Again, U.S. historically high rate of incar- dations, but by helping to stim- policy has not done this. The I would hope that if this project ceration? The average level of in- ulate a reconsideration of our task is dif½cult conceptually, succeeds even marginally, it will carceration is perhaps less impor- Russian relations within con- and in policy circles, it has not inspire reconsideration of other tant than its distribution across gressional committees, the me- seemed worth the effort given essential elements in U.S. foreign the population. Although impris- dia, and world affairs councils. the down-graded status we as- policy, including the U.S.-China onment is very rare in the general signed to the Russians. relationship, our interactions To undertake its work, our proj- population, about 15 percent of with the world of Islam, and, of In order to build some perspec- ect established three working men born since the late 1970s will course, questions of global gov- tive on where we want the U.S.- groups: one at the Carnegie Mos- go to prison at some point in their ernance that are now being driv- Russian relationship to be ½ve cow Center, where a 12-part semi- lives if they have never attended en so forcefully by the current years from now, we need to step nar examined the security dimen- college. For young, non-college national and international ½nan- back from the current climate, sions in U.S.-Russian relations, educated African American men, cial crisis. which has been deteriorating for including areas of potential nu- 35 percent will go to prison at the last three or four years, and clear cooperation; a second in some point. And among young particularly since the Russian- Washington with a six-part semi- black men who have dropped out Georgian War last summer. We nar centering on the broader is- of high school, 70 percent will

Bulletin of the American Academy Winter 2009 25 Project and Studies have prison records. So the ex- married, but if they do, they are country, from all the social sci- At the same time, the relation- perience of young adulthood has extremely likely to get divorced ence specializations, and from the ship between the Court and Con- been transformed by the growth or separated. Employment and professions as well. The breadth gress became very contentious in incarceration rates in the Unit- marriage are extremely impor- of the Academy’s membership because of the politicization of ed States, and the effects of this tant, because criminologists ½nd will also allow us to enlist artists the judiciary attributable to the transformation have been con- that they are two key stepping- and humanists in our investiga- growing controversy over abor- centrated overwhelmingly among stones on a path out of crime. If tion–a novel experience for me, tion and the judicial con½rmation those who have never been to col- incarceration is undermining certainly, and for many in the process in the Senate. A group lege, and among African Ameri- people’s economic prospects group. of scholars from political science cans in particular. and disrupting family life, the and law, the Supreme Court cor- The prison is a vivid symbol of expansion of the penal system respondent of the New York Times, both social order and social fail- may indeed be a self-defeating and several judges, including one The prison is a vivid ure. Something fundamental has strategy for crime control, be- who also served as a ½ve-term changed about its role in Ameri- cause we are undermining the member of Congress and as symbol of both so- can society, and we suspect some- conditions that promote crimi- White House counsel, thought thing fundamental has changed cial order and social nal desistance. within American society as a con- failure. Something There is solid evidence that the sequence. Those of us involved This project contri- growth of the prison population in the study are grateful to the fundamental has has produced real gains in pub- Academy for the extraordinary butes to our under- lic safety and contributed to forum that it provides to exam- standing of the con- changed about its falling crime rates, particularly ine this issue. role in American through the 1990s. Poor com- cept and practice munities that supply most of the society, and we nation’s prison population are The Independence of judicial indepen- also most exposed to the risks of suspect something serious violence. Given its con- of the Judiciary dence, which is so vi- siderable social cost, though, I tal in our democracy. fundamental has think we need to understand Jesse H. Choper the extent to which prison re- changed within Earl Warren Professor of Public it important to have a neutral duces crime. We also need to ask Law at UC Berkeley School of Law arbiter, such as the Academy, whether prison may undermine American society convene several off-the-record, public safety in the long run by closed door sessions to assess the as a consequence. returning to society large num- This project, now called The deteriorating relationship. A bers of young men with few pros- Independence of the Judiciary, number of Supreme Court jus- If we think that the astonishing pects, broken families, and the originated in 2002 as a study of tices–as many as ½ve at one of rate of incarceration that prevails stigma of a prison record. Congress and the Court. In the our meetings in Washington– today is simply due to very high early 1990s, the U.S. Supreme The Academy is playing a vital as well as several lower court rates of crime among young men Court had begun invalidating a role in addressing these ques- federal judges and Capitol Hill with little schooling, we have to series of federal statutes on the tions. The statistics I have quot- leaders, such as Charles Schumer remember that this level of incar- ground that Congress lacked the ed point to a deep crisis in our of New York, Christopher Shays ceration is entirely new. Prison constitutional authority to enact poorest communities, but the of Connecticut, and Howard Ber- has only become a normal part them. The Violence against situation is largely unknown ex- man of California, participated of the life course for low-educat- Women Act was one; another cept to a small group of research- in these meetings. We supple- ed young men over the last 10 concerned the application of ers. When Leslie Berlowitz ½rst mented the sessions with a series years. Researchers working on several federal statutes–includ- came to me with the idea of con- of lectures and panel discussions the problem are also ½nding–as ing the Americans with Disabili- vening a group to study mass in- on broader topics affecting judi- you might expect–that a prison ties Act and the Age Discrimina- carceration in America, she pre- cial independence: the career record brings a whole array of tion in Employment Act–to sented the opportunity for a paths of judges, their compen- diminished life chances. Men state of½cials, such as state uni- broader public conversation sation and bene½ts, and the con- coming out of prison have a high versity faculty. This was the ½rst about what has largely been a ½rmation process. risk of contracting an infectious time since the end of the New subterranean issue. The conven- disease and have extremely low Deal that the Court had actively When we initiated this project, ing power of the Academy has earnings and high rates of job- rejected the work of one of its the Court was thwarting Con- allowed us to draw together the lessness. They are unlikely to get coordinate branches. gress, but as our study evolved, best researchers from around the

26 Bulletin of the American Academy Winter 2009 Academy News

Congress sought to exert its pow- Project on the State of the Judi- data deprivation. That is to say, It was in the hope of dispelling er over the judicial branch by ciary at Georgetown University even when those of us concerned the fog of confusion and misin- considering measures such as Law Center. These perspectives with the humanities try to under- formation that seemed to shroud prohibiting federal judges from contribute to our understanding stand the signi½cance of what we humanistic endeavor, whether traveling to meetings at govern- of the concept and practice of do by placing it in some larger in relation to what was going on ment expense and from citing judicial independence, which is context or seeing it from some in higher education, or in our foreign law, for example. At one so vital in our democracy. broader perspective, we ½nd, schools, or in American society point, a group called “jail for alas, that we lack the supportive at large, that the Academy, un- Judges” sponsored referenda in interpretative tools provided by der the aegis of its Initiative for several states that would have The Humanities the systematic gathering, assem- the Humanities and Culture, imposed criminal liability on Indicators Project launched an ambitious effort to judges for rendering “wrong de- The Humanities build a humanities data infra- cisions.” None of them, at least Francis Oakley structure paralleling the 30-year- as yet, has passed. Indicators Prototype, old series of Science and Engineer- Edward Dorr Grif½n Professor of ing Indicators published by the It was apparent that our project the History of Ideas and President a comprehensive National Science Foundation. would bene½t from a wider- Emeritus at Williams College The ½rst fruit of this complex ranging discussion that would portfolio of statistics and demanding undertaking, reach the public. We focused on which has been prosecuted by a many of these issues at a joint When the Academy launched in the humanities ½ne team ably led by Norman meeting of the American Acad- its Initiative for the Humanities Bradburn of the National Opin- emy and the American Philo- and Culture in 1998, one of the based on existing ion Research Center, is sched- sophical Society held in April ½rst questions those involved data, is intended uled soon for release to educa- 2007 in Washington, DC. Re- had to face was this: Why it is tional leaders, policymakers, and tired Supreme Court Justice that those of us involved in the to inform decision- the American public at large. It Sandra Day O’Connor and Chief humanities seem to ½nd it so is the Humanities Indicators Proto- Judge of the State of New York very hard to convey to others making by educators type, a comprehensive portfolio Judith Kaye participated in the the signi½cance of what we do, of statistics in the humanities panel on the Independence of or its importance for the nation- and national policy- based on existing data, intended the Courts. In fall 2008, the Acad- al well-being, or even the status makers alike. to inform decision-making by emy published an issue of Dæda- and current condition of the var- educators and national policy- lus on the theme of judicial inde- ious ½elds of humanistic endeav- bly, organization, analysis, and makers alike. pendence. The volume contains or to which we severally bring dissemination of the type of an impressive array of essays by so passionate a commitment. The Prototype, which encompas- pertinent empirical data long such eminent jurists as Supreme Not an issue, of course, or set of ses some 74 indicators and over since made available to our col- Court Justices O’Connor and issues, susceptible in all its for- 200 accompanying tables and leagues in the natural sciences. Breyer, Chief Justice of the Su- midable complexity to resolu- charts, focuses on ½ve subject preme Court of California Ron- tion via any single or simple For the humanities, perhaps sur- areas: 1) primary and secondary ald George, Chief Justice of the mode of approach. Part of the prisingly, such data–concerning education in the humanities; Massachusetts Supreme Judicial problem may well be that we matters as fundamental as the 2) undergraduate and graduate Court Margaret Marshall, Chief ourselves do not fully under- number of students enrolled na- education in the humanities; Justice of the Arizona Supreme stand what it is that we do, why tionally in courses devoted to 3) humanities workforce; 4) hu- Court Ruth McGregor, and Chief we do it, or why it might be as the humanities–we found were manities funding and research; Judge J. Harvie Wilkinson of the important as we instinctively either altogether lacking, or were and 5) humanities in American U.S. Court of Appeals for the take it to be. And part of the rea- inconsistently assembled, hard life. Interpretative essays by such Fourth Circuit. Linda Green- son for that particular failure of to access, poorly disseminated, scholars as Alan Brinkley of Co- house, formerly of the New York understanding, or so those of us unwittingly ignored, and routine- lumbia University have been Times, congressional leaders involved in the Initiative came ly underutilized. As a result, gen- commissioned for each subject such as Senator Charles Schumer, quickly to conclude, was that eralizations made about the hu- area, and they will provide com- and several prominent legal the humanities, whether in the manities, whether critical or sup- mentary on the data collected, scholars and political scientists primary and secondary school portive, have tended to be char- as well as on data not currently also wrote for the issue. The col- sector, or at the undergraduate acterized by a genial species of available but of potential value lection is a compilation of essays and graduate levels, or, for that disheveled anecdotalism, punc- to users. In relation to this last drawn from meetings organized matter, in American life at large, tuated unhelpfully from time to point, and in addition to compil- by our project and papers pre- have long suffered from a debil- time by moments of cranky but ing existing data, the Academy, pared for conferences sponsored itating and protracted case of attention-catching dyspepsia. in collaboration with such hu- by the Sandra Day O’Connor

Bulletin of the American Academy Winter 2009 27 Project and Studies

manities organizations as the that the nation’s book-reading The of the dwelt heavily on the late nine- American Council of Learned rates are well above those of teenth and early twentieth cen- Societies and the National Hu- many European nations, among Humanities turies. In other words, individ- manities Alliance, has launched them Italy, France, and Germany, ual writers selected different a Humanities Departmental Sur- though they still fall below those Patricia Meyer Spacks pieces of history. All, however, vey in order to gather new data. for Britain and Sweden. Similarly, Edgar F. Shannon Professor of demonstrated how disciplines The results of that survey will that at 21 percent the United English Emerita at the University had changed and continue to also become available before the States has one of the world’s of Virginia change in outline and in sub- end of this calendar year and highest percentages of highly stance. will be incorporated into the literate adults. Unfortunately, rank Oakley has just told you When I was President of the Humanities Indicators Project. that is balanced by the fact that F about one of the important on- Academy, I did a good deal of a higher percentage of Americans going projects in the humanities, traveling around the country, As I describe this great effort, I (again 21 percent) demonstrate and I want to tell you about an- meeting with groups of Fellows have a sinking feeling that it may very poor literacy skills than do other. The Academy has support- in various places. More than come across as dull old stuff, the people in any other Western in- ed humanistic activity for a long once a scientist asked me one enervating rattle of some very dustrialized nation. In effect, our time, through one alleged crisis or another version of the same dry bones indeed. Maybe so. But literacy pro½le turns out to be after another. We helped to found question: Exactly what do the I would wager that no one who alarmingly bipolar. has had the experience, while try- the National Humanities Center humanistic disciplines do? They ing to assess the health of human- And so on. It will take a while to in North Carolina. Fellows of the seemed to have the impression istic studies nationwide, of ½nd- assess the measure of understand- Academy testi½ed in support of that what we mainly did was ar- ing himself or herself caught in ing we can expect to squeeze out the establishment of the Nation- gue over meaningless subjects. a cross½re of sweepingly negative of this ½rst round of Indicators al Endowment for the Humani- attack and outraged by undisci- and the degree to which they can ties. And, more recently, our Exactly what do the plined response and bereft of any provide the needed foundation Visiting Scholars Program has easy access to the array of factual for a national humanities policy helped to support young aca- humanistic disci- data needed if one is to make that treats the academic and the demics in the humanities. what I believe tends now to be public and nonpro½t domains as plines do? A new But the enterprise I am most ac- called (sometimes disparaging- part of a single whole. But the tively involved with at the mo- ly) a “reality-based” assessment promise, I ½rmly believe, is great. collection, entitled ment, and the one I want to dis- –I would wager that no one who All praise, then, to the Academy cuss, is a collection of essays on “Reflecting on the has been in that position is likely not simply for taking the initia- the humanities that will be pub- to feel anything other than grati- tive on this project but also for lished in the Winter 2009 issue Humanities,” con- tude for the assistance that the demonstrating the tenacity of Dædalus. It is part of a series Indicators will serve to make so cerns larger issues needed to bring it to this prelimi- of Academy writings about the readily available. nary conclusion. In order to do complex situation of the human- about the function- Let me give but one illustration. that it had to succeed in generat- ities. In 2006, David Hollinger It comes from the “Humanities ing unparalleled cooperation be- edited a volume called The Hu- ing of the humani- in American Life” section of the tween humanities organizations manities and the Dynamics of In- Indicators. So far as the posses- and social scientists. And its suc- clusion since World War II, a col- ties in society. sion of those literacy skills nec- cess in so doing speaks to its lection of essays about the influ- essary for successful high school unique convening power and its ence of previously excluded de- The essays that we are editing completion goes, it seems that demonstrated track record of mographic groups on the struc- now focus quite directly on what the United States at 54 percent commitment to the humanities. ture and values of academic in- the humanities do. Only two of comes in near the middle of the All praise, too, to the broad group stitutions. Subsequently I edited the contributions concentrate international rankings behind of donors and foundations who an issue of Dædalus consisting of on speci½c academic disciplines. such countries as Sweden, Cana- were far-sighted enough to sup- essays on the histories of human- Most of them concern larger is- da, and Australia, but ahead of port the initiative, not least istic academic disciplines. A piece sues about the functioning of such other industrialized coun- among them the William and by Steven Marcus on the human- the humanities in society. The tries as Britain and Germany. Flora Hewlett Foundation, the ities collectively went back to new collection, entitled Reflecting But for those Americans prone Andrew W. Mellon Foundation, classic times. Gerald Early, writ- on the Humanities, which Leslie to a species of cultural pessimism the National Endowment for ing about African American stud- Berlowitz and I are coediting, is or, perhaps more accurately, cul- the Humanities, and our distin- ies, started just after the Civil intended to provide a kind of se- tural masochism, it may come as guished Fellow John P. Birkelund. War. The essay on philosophy quel to the volume published un- something of a surprise to learn

28 Bulletin of the American Academy Winter 2009 Academy News der the auspices of the Mellon Universal Basic and What we need is a ing basic and secondary educa- Foundation in 1997: What’s Hap- Secondary Education tion of quality to all the world’s pened to the Humanities? That pro- concrete blueprint children. vocative group of statements I have been working on this proj- took a largely negative view of David E. Bloom for achieving univer- ect with Academy Fellow Joel the condition of the humanities Clarence James Gamble Professor of Cohen, who has a base at both at its historical moment. Our Economics and Demography and sal basic and second- Rockefeller University and Co- Dædalus issue is rather more Chair of the Department of Global ary education. Poli- lumbia University. Over the cheerful, although it too calls Health and Population at the Har- years, Joel and I have bene½ted attention to immediate prob- vard School of Public Health cymakers and busi- from the unflagging support and lems. It considers a broad range encouragement of Leslie Berlo- of perplexities in essays and in ness leaders under- n 1990, delegates from 155 witz, and we have had outstand- shorter notes. The contributors I countries met in Jomtien, Thai- ing assistance from various Acad- to the volume include the head stand that global land, and pledged to achieve uni- emy staff, especially Martin Ma- of a major foundation, a nonac- versal primary education by the education is not what lin, Helen Curry, Alice Noble, and ademic philanthropist who has year 2000. In the years following Paul Karoff. The project has re- generously supported the human- it could be and that that famous meeting, respectable ceived ½nancial support from ities, a university president, a educational advances were made, the Academy, the William and former college president who is the de½cit is highly but it became absolutely clear by Flora Hewlett Foundation, and a sitting next to me right now, a the year 2000 that the goal of uni- number of generous individuals. provost, and the director of a consequential. versal primary education was no- humanities center. They write where close to being achieved. From the start, our focus has been about matters ranging from the school. Two hundred seventeen So the international community not on advocacy but rather on digital humanities to recent million children of secondary- took a page out of our academic taking careful and critical stock trends in funding. Several of school age are projected not to playbooks and very graciously of what we already know and them make productive use of be enrolled in secondary school granted itself a no-cost exten- what we still need to know, and information emerging from the in 2015. That is nearly one in three sion. That extension took the blending it with as much fresh Indicators that Frank told you of the world’s secondary-school- form of the Millennium Devel- and out-of-the-box thinking as about. They consider the human- age children. opment Goals, in which world possible. ities and social change, the future And then we have the ugly news, leaders pledged to achieve uni- We began by dividing our task of the so-called public humani- which involves educational dis- versal primary education by 2015. into reasonably manageable ties, and the role of the humani- parities. I am referring here to Now we are in striking distance components, and we recruited ties in liberal arts colleges as well disparities in both educational of that 2015 deadline, and we see experts to lead research efforts as some disciplinary questions. access and educational quality a picture that appears simulta- in a number of areas. We sur- Caroline Bynum, writing about between the wealthy industrial neously good, bad, and ugly. rounded these experts with work- what’s happening in history now, countries at one extreme and ing groups that included people offers a bold proposal for con- The good news is that the world countries mainly in sub-Saharan from a wide range of geographic, fronting two kinds of crises: that has continued to make progress Africa and South Asia at the institutional, and disciplinary in academic publishing and the on the primary school enrollment other. I am also referring to dis- backgrounds to review and com- more amorphous one that pres- front. parities within countries, espe- sures academics to accomplish ment on their work. The bad news is that it is becom- cially those between female and ever more in ever less time. In one ing increasingly apparent that the male children, which tend to be The project’s components in- of the notes, Kay Shelemay argues world will not meet the 2015 goal. especially pronounced at the clude the nature and informa- for understanding certain kinds Even if enrollment rates continue secondary level. tion content of education data; of performances as acts of hu- to grow at the pace they did be- the history of efforts to achieve manistic interpretation. In recognition of both the chal- tween 1990 and 2000, an estimat- universal education and the like- lenge and the promise of provid- ed 118 million primary-school- ly consequences of achieving it; Points of view as well as focus ing a quality education to all the age children will not be enrolled the meaning and measurement vary widely within this collec- world’s children, the Academy in school in 2015. That represents of educational quality; the poli- tion, but all the writing demon- began the ubase project in 2001. one in six of the world’s primary- tics of achieving universal edu- strates and asserts the vitality of ubase is an acronym that stands school-age children. And the cation; and the costs of reaching the humanities. I hope you will for Universal Basic and Second- shortfall with respect to second- that goal. read this issue of Dædalus and ary Education. The aim of this that it will excite you too about ary education is even more strik- rather ambitious project is to ex- With respect to cost, as just one the humanities now. ing, despite growing recognition plore the rationale, the means, example of a key project ½nding, of the economic, social, and po- and the consequences of provid- estimates made by Paul Glewwe, litical importance of secondary

Bulletin of the American Academy Winter 2009 29 Project and Studies

Meng Zhao, and Melissa Binder sal Basic and Secondary Education, Securing the Internet tween the social issues and the suggest an upper limit of an ad- edited by Joel Cohen and Martin technical issues, we found that ditional $70 billion per year for Malin. It will be published by as Public Space there had not been much work all children to receive a decent Routledge in 2009. The book done. And so in fact it was time primary and secondary school consists of a series of essays that David Clark to call for a fresh cycle of research. education. At one level, this explores the economic, political, Senior Research Scientist at the While we were deciding how to seems like a rather modest sum. civic, and personal goals of edu- Computer Science and Arti½cial formulate and scope our effort, It is less than one-seventh of the cation. Intelligence Laboratory at the we learned that the Alfred P. U.S. government’s annual mili- Massachusetts Institute of Our hope at this point is that this Sloan Foundation had asked the tary budget, and it is only one- Technology project will lead to more than just Academy to look at the relation- fourth of the foreign aid goal of publications, as the dominant is- ship between the scientist and 0.7 percent of the $37 trillion of sue seems to be changing from ur study began with a rec- the citizen, and had posed a ques- gross national income of the de- O whether to do something in the ommendation by Fellow Tom tion that I would frame as fol- veloped countries. On the other ubase arena to what to do and Leighton that the Academy as- lows. The usual assumption with hand, it is a formidable amount, how to do it. sess the state of security on the respect to scientists and citizens since foreign aid is substantially Internet. I knew that a number is that the citizen does not under- below the 0.7 percent target, es- What we now need, and what we of studies and presidential advi- stand the scienti½c issues as well pecially in the United States plan to develop in the next phase sory committee reports had ex- as the scientist, so the role of the where sentiment in favor of in- of the project, is a concrete blue- amined this issue, and they gen- scientist is to educate the citizen. ternational aid seems to be dry- print for achieving universal ba- erally took two forms. One sort When science develops some- ing up by the hour. sic and secondary education. of study argues, in varying tones thing that might have harmful Policymakers and business lead- The American Academy has of shrillness and almost equal effects, such as genetically modi- ers understand that global educa- been an ideal home for this proj- ineffectiveness, that the sky is ½ed food or particle accelerators tion is not what it could be and ect. It has enhanced our capacity falling, something bad is about that produce little black holes, that the de½cit is highly conse- to convene outstanding working to happen, and someone should scientists should evaluate the quential. What they increasing- groups, with representation from do something. The second sort risks and the bene½ts, explain ly want to know is what we need across disciplines and profes- involves developing research them, and give comfort to the to do to remedy the de½cits and sions. It has provided neutral agendas that are left under-fund- citizen. The Sloan Foundation disparities. With this in mind, a territory for discussion and an ed. I did not think that the Acad- said that the conversation should new phase of ubase will con- integrity and independence that emy should repeat either of these be a two-way exchange. Scientists sider how to meet the challenge add to the gravity of what we approaches. need to listen as well as educate. of implementation, which is es- produce. And it is also, as you sentially a matter of design, lead- When I was asked to participate The Academy is exploring this can see, a great meeting venue. ership, management, coordina- in this study, I proposed that the point of view through a series of Our work to date has come to tion, and funding. We are hoping Academy take a different ap- workshops in different areas, in- fruition partly in the form of to rely on many of you for help proach. The Academy, with its cluding the impact of genetic bi- two books. The ½rst of these is with the next phase of ubase. broad fellowship, was an ideal ology and the threat of dangerous Educating All Children: A Global setting to examine the security pathogens. We decided to have a Agenda, which I coedited with As a segue to this next phase, we problem not simply as a techni- workshop on the Internet, and in Joel Cohen and Martin Malin, are assembling a small blue-rib- cal issue but as a sociotechnical particular on the relationship be- and which was published by mit bon advisory committee that will problem that arises from the tween the citizen and the Internet. produce by early 2009 a white Press in 2006. The book lays out deep embedding of the Internet paper containing a highly acces- At that workshop we looked at the justi½cation for universal in society. However, this ap- sible summary of our conclusions some speci½c examples of the re- basic and secondary education: proach involves a problem of to date, with a key objective to lationship between the citizen the moral, ethical, and humani- scope. If you de½ne the scope promote a deeper engagement and the Internet. Let me describe tarian justi½cation; the interna- too broadly, you ½nd yourself in among U.S. policymakers in the one example, namely, the issue tional law justi½cation; the social the previous panel where we were idea of ubase. Tentatively en- of how the Internet manages justi½cation; the political justi½- talking about corruption, Niger- titled educate, the paper is identity and privacy. You may cation; and the economic justi½- ian scammers, and the Russian using the arise report that Neal have seen a New Yorker cartoon cation. And the book argues that ma½a: you are boiling the ocean. Lane described earlier as its mod- with two dogs: one is typing on ubase is, in general terms, not So we struggled in this space and el. Please stay tuned for further a keyboard and turns to the other impossibly out of reach. realized we needed to de½ne the and says, “On the Internet, no updates. project more narrowly. But as we one can tell you’re a dog.” Real- The second book is International tried to identify people who had ity is not quite like that. In some Perspectives on the Goals of Univer- thought about the interplay be- respects I would say that on the

30 Bulletin of the American Academy Winter 2009 Academy News

Internet we have issues of iden- Right now the Inter- have the right to keep others remind you that you as users and tity that are completely back- from looking at what you do? we as designers are all active wards, which is to say that when- players in this process. There are net in the United I am an engineer. I build things. ever you want some signal of almost no design decisions we The National Science Founda- identity, you don’t have it, but States is a creature take in this space that are value- tion has challenged the network when you want some privacy, neutral. So who should educate? research community to describe you don’t have that either. of the private sector. Who should listen? Who should the type of Internet we should decide? Attribution of security attacks is There is currently a have in ½fteen years. This involves a serious problem on the Inter- people building things. But what Right now the Internet in the net. Your computers are being movement in place, should we build? And who should United States is a creature of the attacked all the time. Unless your driven by the United have a seat at the table to speak private sector. Different countries computer is up-to-date with all to the design? The question that have very different answers to its patches, it is quite likely that Nations, to take the Sloan has asked applies here. my questions. There is currently somebody has penetrated it and How should the point of view of a movement in place, driven by is using it to send spam in your Internet away from the citizen (the user) be heard? the United Nations, to take the name or perhaps to attack some Internet away from the United Who listens to you if you have other computer in Estonia or the United States in States in order to save it. Which opinions about the Internet to- Georgia. It is important to real- is the right path to build the In- order to save it. day? Your elected of½cials listen ize that if someone tried to ½g- ternet that we, whoever we are, if you bother to tell them you are ure out who had launched the would want to have? The history Which is the right upset about something. The Fed- attack, you would be identi½ed of the Internet and its impact on eral Trade Commission listens, as the attacker. Somebody is pre- path to build the society from a variety of perspec- and it also listens to people who tending to be you when they send tives will be among the topics advocate for the citizen, such as spam from your computer or use Internet that we, discussed at an Academy confer- consumer advocacy groups. your computer to attack some- ence on The Public Good: The Im- whoever we are, There are corporate players that one else. And it is not only that pact of Information Technology, to care; companies like Google or they pretend to be you. They pre- be held in Mountain View, Cali- would want to have? your isp want to produce prod- tend to be your bank or the gov- fornia, on February 28–March 1, ucts that you want. They want to ernment or your employer, and 2009. If any of you will be in the You should be sure to check if persuade you that they are treat- they send you email–called area, we cordially invite you to your mail service has the right ing you well with the products “phishing”–that says: “It’s ter- join us. to read all of your email. they have. The set of “experts” ribly important that you send us who do (or should) listen to the your password.” So here is a question for you to citizen is much broader than ponder. Perhaps your isp or your © 2009 by Neal Lane, Steven E. On the other hand, while you just “scientists.” mail service has made a commit- Miller, Scott D. Sagan, John D. cannot tell who is pretending to ment not to reveal anything Let me conclude by returning to Steinbruner, Robert I. Rotberg, be you, other people are moni- about you in a way that can be the question I posed earlier. If Robert H. Legvold, Bruce West- toring you closely. Folks want to traced back to you personally there was a company that you ern, Jesse H. Choper, Francis correlate information about ev- (ignoring such issues as sub- decided to trust, can you imag- Oakley, Patricia Meyer Spacks, erything you do. They want to poenas that can be ½led by the ine a world in which you would David E. Bloom, and David build a pro½le of what you like, recording industry to ½nd out if let that company look at every- Clark, respectively and, to get to the point, what you are hosting copyrighted mu- thing you do in exchange for sort of advertising you might sic). If your service has made a showing you ads, but only ads like to see. I don’t know whether commitment not to release any that were so wonderful you any of you bother to read your of this information, should you wanted to watch them? By the isp’s privacy policy, which is object to the fact that it may be way, you might have to watch buried someplace in the ½ne building pro½les of you? That is them. The remote control on print of your service contract. a complicated question, and I your TiVo might not skip over But in most cases your isp or its think it exempli½es the issues ads, because your TiVo is insert- business partner can track every that arise when you look at the ing those ads. But they might website you go to in order to pro- complex relationship between give you the TiVo for free, and ½le your interests and desires. the citizen and all the activities it would only be ads you wanted Google can track every search and technology that make up to see. Can you imagine wanting that you do. the Internet. Who decides if you that world? I use this example to

Bulletin of the American Academy Winter 2009 31 Fellowship Programs

Visiting Scholars Program

Last fall, the 2008–2009 class of Visiting Scholars began their residency at the Acad- emy. Drawn from a broad range of public and private universities across the nation, the scholars represent the ½elds of Ameri- can history, art history, anthropology, com- parative literature, history of science, politi- cal science, and religion. Founded in 2002, under the leadership of Chief Executive Of½cer Leslie Berlowitz, the Visiting Scholars Program offers postdoc- toral students and untenured junior faculty in the humanities, social sciences, and pol- icy studies the opportunity to combine in- dependent research with active involvement in Academy activities. Former Academy Pres- ident Patricia Meyer Spacks chairs the pro- gram, mentoring the scholars on their writ- ing, career choices, and publications plans and leading their formal presentations and informal discussions. Seated: Academy CEO Leslie Berlowitz and Chair of the VSP Patricia Meyer Spacks Throughout the year, Visiting Scholars con- Standing, 2008–2009 Visiting Scholars: Erez Manela, Daniel Foster, Rocío Magaña, Louis Hyman, tribute to Academy programs; participate in David Singer, Thomas Stapleford, Victoria Solan, and Michael Pasquier forums that bring together members of the surrounding academic, business, and cultur- al communities for discussions of timely The Academy is grateful to the Director of 2008–2009 Visiting Scholars scholarly and social issues; and attend lec- the Harvard Humanities Center, Homi Bha- tures on topics ranging from reading poetry bha, and Executive Director, Steven Biel, for Daniel Foster–Assistant Professor, Depart- to the global nuclear future. They also meet providing the scholars with access to Har- ment of Theater Studies, Duke University. regularly to present their research to col- vard’s research facilities. We are indebted to Ph.D., University of Chicago; B.A., St. Johns leagues and interested Academy members. the Academy’s University Af½liates and to College. Field: Comparative Literature. The They critique each other’s chapters, papers the following foundations for their contin- Transatlantic Minstrel Show: British Romanticism prepared for professional meetings, and job ued support: The Annenberg Foundation, and American Blackface. A history of blackface talks. From time to time, Fellows working The Cabot Family Charitable Trust, The Vir- minstrels as a movement bringing together on Academy projects join the scholars in ginia Wellington Cabot Foundation, The scholarship and art, parody and emulation, residence, and program alumni are invited Haar Family Endowment, The National En- social mis½ts and social reformers, black and to continue their participation in Academy dowment for the Humanities, and The Carl white, England and America. conferences and events. and Lily Pforzheimer Foundation. Louis Hyman–Ph.D., Harvard University; Over the last seven years, the number of ap- B.A., Columbia University. Field: History. plicants to the Visiting Scholars Program has Debtor Nation: How Consumer Credit Built Post- increased to approximately 175 annually. In war America. An analysis of the political and 2008, they represented over 60 public and pri- economic institutions, consumer behaviors, vate institutions in 27 states. The program’s and legal framework that converged, by the success is reflected in the teaching and re- 1970s and 1980s, to bring about a major per- search appointments of the alumni schol- sonal debt crisis with deep implications for ars; in their numerous articles and reports American society. in scholarly journals, newspapers, and gen- eral-interest publications, both in print and online; and in a growing number of books.

32 Bulletin of the American Academy Winter 2009 Academy News

During the past year, a number of Fel- lows have graciously agreed to serve as reviewers for the Visiting Scholars Program, and we are deeply apprecia- Rocío Magaña–Ph.D., University of Chica- Victoria Solan–Ph.D., Yale University; B.A., tive of their advice and guidance. go; B.A., California State University, Fresno. Oberlin College. Field: Art History. Healthy Field: Anthropology. Bodies on the Line: Life, Design: Modernist Architecture in Los Angeles in Joyce Appleby, University of California, Death, and Authority on the Arizona-Mexican the 1920s. An examination of health and the Los Angeles Border. An examination of the complex so- American house within the context of twen- Steven Biel, Harvard University cial, economic, moral, and political space tieth-century California architecture, focus- David Bromwich, Yale University that constitutes the U.S.-Mexico border and ing on the persistence of seemingly antimod- Bruce Bueno de Mesquita, Stanford the tension among securing the border, pro- ern, folkloric, or homeopathic elements University/New York University curing the safety of those who try to cross it among proponents of some of the most Albert Carnesale, University technologically advanced and aesthetically illegally, and managing the bodies of those of California, Los Angeles who die in the attempt. forward-looking design in America. William Chafe, Duke University Erez Manela–Associate Professor of Amer- Thomas Stapleford–Assistant Professor of Thomas Cook, Northwestern University ican History, Harvard University. Ph.D., Yale Liberal Arts, Notre Dame University. Ph.D., Frederick Crews, University Harvard University; B.A., University of Del- University; B.A., Hebrew University, Jerusa- of California, Berkeley lem. Field: History. The Eradication of Small- aware. Field: History of Science. Home and Jonathan Culler, Cornell University pox: An International History. A study of the Market: Women, Economics, and the Study of World Health Organization’s Global Small- Consumption, 1910–1960. An exploration of Frank Furstenberg, University pox Eradication Program that provides in- the discipline of home economics in univer- of Pennsylvania sight into the history of the Cold War, post- sities and government agencies, focusing on Nathan Glazer, Harvard University colonial international relations, the role of the work of female social scientists and their John Mark Hansen, University transnational organizations in globalization, influence on the understanding of modern of Chicago and the development of modern medicine consumption. Neil Harris, University of Chicago and international public health. (Spring 2009) Chair of the Visiting Scholars M. Kent Jennings, University Michael Pasquier–Ph.D., Florida State Uni- of California, Santa Barbara versity; B.A., Louisiana State University. Program Robert Jervis, Columbia University Field: Religion. Catholic Creole Frontier: Reli- Patricia Meyer Spacks–President of the Jacqueline Jones, University of Texas gion and Colonialism in the Lower Mississippi Academy, 2001–2006. Edgar F. Shannon at Austin Valley. An analysis of religion in the frontier Professor of English Emerita, University of Carl Kaysen, mit society of the Lower Mississippi Valley, illu- Virginia. Ph.D., University of California, Ber- Alice Kessler-Harris, Columbia strating the impotence of state-sponsored keley; M.A., Yale University; B.A., Rollins University Roman Catholic of½cials in controlling the College. She is a scholar of eighteenth-cen- Philip S. Khoury, mit religious beliefs and practices of European tury literature and culture whose work en- missionaries and settlers, displaced Native compasses issues of identity and selfhood, David Lake, University of California, San Diego Americans, and free and enslaved persons privacy, gossip, and feminism. Her most re- of African descent. cent work is Novel Beginnings: Experiments in William McFeely, David Singer–Assistant Professor, Massa- Eighteenth-Century English Fiction, an account James Olney, Louisiana State University chusetts Institute of Technology. Ph.D., Har- of the diverse forms and themes that con- Bruce Redford, Boston University tributed to the development of the eigh- vard University; B.A., University of Michi- Bruce Russett, Yale University teenth-century novel. gan. Field: Political Science. International Fi- Howard Schuman, University nance within Families: Migrant Remittances in of Michigan the Global Economy. An examination of mi- Kenneth Silverman, New York grant remittances that will contribute to our University understanding of the ½nancial implications mit of immigration, the influence of global capi- Eugene Skolnikoff, tal flows on government policy-making, and Paul Sniderman, Stanford University the dilemmas facing U.S. policy-makers as Werner Soll0rs, Harvard University they consider immigration policy, foreign James Stimson, University of North aid, and ½nancial deregulation. Carolina

Bulletin of the American Academy Winter 2009 33 Fellowship Programs Hellman Fellowship in Science and Technology Policy

Established in 2007 as part of the Academy’s Initiative for Science, Hellman Fellows are assigned to one or more of the Academy’s on- Engineering, and Technology, the Hellman Fellowship encourages going research projects under the Initiative for Science, Engineer- scholarship in science policy. The fellowship is open to early-career ing, and Technology, including Alternative Models for the Federal professionals with training in science and engineering who want to Funding of Science; The Global Nuclear Future; Scientists’ Under- transition to a career in policy or to acquire experience working on standing of the Public; Science and the Liberal Arts Curriculum; science-policy issues. While in residence, Hellman Fellows work Securing the Internet as Public Space; and Reconsidering the Rules with senior scientists and policy experts on national and interna- of Space. tional policy issues related to science, engineering, and technology. The Academy is grateful to the Hellman Family Foundation for The program supports and guides individuals with training in sci- establishing and supporting this fellowship. The Academy is also ence and engineering who want to develop expertise on science- grateful to the individuals who served on the fellowship review policy issues; increases the number of science-policy professionals board: Susan Graham, University of California, Berkeley; Brigid who are engaged in substantive discussion of science and engineer- Hogan, Duke University; John Katzenellenbogen, University of ing research questions, with a broad understanding of their social Illinois at Urbana-Champaign; Carl Kaysen, MIT; Richard A. implications; and expands the scale of Academy projects and stud- Meserve, Carnegie Institution for Science; and Robert Nerem, ies focused on the challenges facing scienti½c research and science Georgia Institute of Technology. education.

2008–2009 Hellman Fellows

Kimberly J. Durniak–Ph.D., Dorit Zuk–Ph.D., Molecular Molecular Biophysics and Bio- , Weizmann Institute of chemistry, Yale University; B.A. Science; B.Sc., Tel-Aviv Univer- and B.S., University of Pittsburgh. sity. She came to the Academy Working in the laboratory of after spending a year at the Na- Thomas A. Steitz at Yale, she tional Institutes of Health, where studied the process of gene ex- she was an American Association pression and used X-ray crystal- for the Advancement of Science lography to solve the structure (aaas) Science & Technology of the bacteriophage t7 rna Policy Fellow. Before that, she Polymerase during a crucial step was the Editor of the journal in rna synthesis. During her Molecular Cell. She is a member time at Yale, she was a McDougal of the Education and Profession- Fellow in the Graduate Career al Development Committee of Services Of½ce and worked as a the American Society of Biochem- liaison with the New York Acad- ists and Molecular Biologists emy of Sciences to provide career (asbmb). She is also serving workshops for fellow graduate as a Program Of½cer for Science students. Policy at the Academy.

34 Bulletin of the American Academy Winter 2009 Academy Meetings

Students pass through Sather Gate, the south entrance to the UC Berkeley campus. Photo courtesy of the Univer- sity of California, Berkeley.

Challenges to Public Universities Robert J. Birgeneau, Mark G. Yudof, and Christopher F. Edley, Jr.

This presentation was given at the 1935th Stated Meeting, held at the University of California, Berkeley, on December 2, 2008.

America’s higher education system of pri- Public teaching and research universities vate and public universities is the envy of the educate 75 percent of the nation’s college- world. Within this dual system, America’s going population. In fact, the ten leading public universities were created to serve the public research and teaching universities in public good by providing excellent educa- the country now educate more than 350,000 tional opportunities to the entire population. students, a ½gure that has grown by 50,000 Today we clearly recognize that public uni- over the past thirty years.1 By contrast, the versities are pivotal in realizing society’s po- Ivy League educates about 1 percent of the tential for opportunity, social justice, and student body in the country. Public univer- prosperity. For public universities to con- sities are important, ½rst and foremost, be- tinue to meet these goals, two key questions Photo: John Blaustein must be addressed. First, who are the students 1 This talk, which was given at the American Acad- Robert J. Birgeneau we are educating, and what ½nancial chal- emy of Arts & Sciences meeting at UC Berkeley on lenges do they face? Second, in the compe- December 2, 2008, is based upon a comparison of Robert J. Birgeneau is Chancellor of the University tition with private universities for funding ten leading public universities that include Berke- of California, Berkeley. He has been a Fellow of the and faculty, what challenges do public uni- ley, Colorado, Florida, Illinois, Michigan, North American Academy of Arts and Sciences since 1987. versities confront? Carolina, Rutgers, Texas, Virginia, and Wisconsin from 1978 to 2008.

Bulletin of the American Academy Winter 2009 35 Academy Meetings cause they provide an outstanding education to large numbers of people who go on to play leadership roles in all sectors of society in this country (see Figure 1). Compared to private universities, the student bodies of public universities tend to be dom- inated by undergraduate rather than gradu- ate students. For example, mit has about 4,200 undergraduate students and they com- prise 40 percent of the student body. In con- trast, the University of California, Berkeley, has about 25,000 undergraduates and they comprise 70 percent of the student body. Thus, although public universities share with their private counterparts a dedication Figure 1 to both undergraduate and graduate educa- tion, the primary mission of public institu- tions is to educate large numbers of under- graduate students. Some public universities–among them Berkeley, Rutgers, Texas, and the University of Illinois at Urbana-Champaign–choose to focus their mission on educating in-state students. At Berkeley, approximately 90 percent of our undergraduates are Californi- ans. Another group of public universities– including Colorado, Michigan, and Virginia –enroll large numbers of out-of-state stu- dents, and so their student body pro½les tend to look more like those at private uni- versities (see Figure 2). The factors driving public universities to enroll large out-of- Figure 2 state undergraduate populations are diverse. Unfortunately, a signi½cant factor appears to be state disinvestment in public educa- tional institutions. This is especially trou- bling because the presence of large numbers of out-of-state students may have unfortu- nate social consequences for the makeup of a university’s student body, as I will discuss below. Public universities that focus on in-state students generally aspire to have student bodies that reflect their states’ demograph- ics. Thus, as demographics change, student populations should change too. In 1978–1979 California was more than two-thirds Cau- casian, as was the student body at Berkeley. In 2007–2008, 44 percent of Californians were Caucasian, and 37 percent were His- panic. At Berkeley in that academic year, Figure 3

36 Bulletin of the American Academy Winter 2009 Academy News however, only 31 percent of the undergradu- ate body was Caucasian. Hispanic students, 3 percent of the undergraduate body in 1978, had increased to 12 percent. African Ameri- can students remained at 3 percent. This rather dramatically illustrates the challenges of achieving ethnically and racially repre- sentative undergraduate student bodies. Achieving economically representative stu- dent bodies has been somewhat easier, at least within the University of California sys- tem. One measure of this success is the num- ber of University of California undergradu- ates who receive Federal Pell Grants, which are reserved for students whose family in- come is under $45,000 per year. Berkeley– indeed, the entire University of California system–takes great pride in the remarkably Figure 4 high percentage of its undergraduate stu- dents who receive Federal Pell Grants. Even more remarkable, one-sixth of Berkeley’s undergraduate body, 4,000 students, comes from families whose income is $20,000 per year or less (see Figure 3).

Public universities with a high percentage of in-state students tend to have a higher percentage of Pell Grant recipients than do public universities with large numbers of out-of-state students. A key challenge for public universities as they attempt to ful½ll their missions is the trade-off between ad- mitting ½nancially disadvantaged in-state undergraduate students and well-to-do out- Figure 5 of-state students.

A fundamental responsibility for the Univer- sity of California and for public universities parts of California, such as the Bay area, be- students when they graduate is $7,000. At generally is to guarantee accessibility. If you cause of the very high cost of living in those present this ½nancial aid system works well, are quali½ed to attend the University of Cal- areas. at least for students from genuinely poor fam- ifornia, Berkeley, then we must make it pos- ilies. How will affairs look in ten years? As- Suppose your family income is $20,000 a sible for you to attend Berkeley. The Univer- suming consistency among the state’s ½nan- year; in California, especially, this means sity of California system has a ½nancial aid cial aid policy, the federal government’s ½- that your discretionary resources are extra- policy that ensures that this is not an empty nancial aid formula, and the University of ordinarily limited. To attend Berkeley, the promise. This, in turn, explains the large California’s fee policy, the $8,200 contribu- total cost of which is about $26,200, you will number of extraordinarily talented students tion required in 2008 projects to $16,700 in have to provide $8,200 on your own. This is from very poor backgrounds within the 2018 (see Figure 4). It is dif½cult for me to referred to as the “self-help level.” The uni- University of California system. All Univer- imagine writing a letter to a student from a versity will provide you with a grant–not a sity of California students are expected to family whose income is $20,000, saying, loan, but a cash grant–for the $18,000 bal- contribute to their educational costs from “Congratulations, you have been admitted ance. Your self-help contribution likely will both work and borrowing. Their parents are to UC Berkeley! We are going to do what- come from a combination of work-study and also expected to contribute, and the paren- ever we can to enable you to attend Berke- loans. You will graduate with relatively low tal contribution is calculated using a formula ley, but over the next four years, you will be debt: about $14,000, the average for Berke- provided by the federal government. Unfor- responsible for contributing $66,800 on ley students from low- and middle-income tunately, the federal formula, which is based your own.” families. The average debt for all Berkeley on a national average, does not work well in

Bulletin of the American Academy Winter 2009 37 Academy Meetings

How can we avoid such a scenario? Should we freeze fees? In fact, this is exactly the wrong thing to do. As illustrated in Figure 4, if fees are frozen, the student self-help con- tribution actually increases to $18,300. In- stead of having to provide $66,800 over four years, the hypothetical student from a fam- ily earning $20,000 per year will have to pro- vide $73,200, a higher proportion of which will be debt. This counter-intuitive result occurs because of the way in which the Uni- versity of California redistributes fee income. Currently, one-third of the undergraduate fee income is redistributed as ½nancial aid to students from ½nancially disadvantaged families. As fees rise, more money becomes available for ½nancial aid. Freezing or reduc- Figure 6 ing fees only reduces the resources available to help ½nancially disadvantaged students.

Although facing greater ½nancial challenges in the future, ½nancially disadvantaged Cal- ifornians currently are relatively well covered through the University of California ½nancial aid system. The present-day challenge is for the middle class. To understand that chal- lenge, we might look at Harvard, which last year announced that it would begin provid- ing ½nancial aid to all students from families with annual incomes at or below $180,000. Harvard students with family incomes up to $180,000 are expected to contribute no more than 10 percent of their family income toward their Harvard education. At Berkeley, because ½nancial aid–driven by the federal guidelines Figure 7 –cuts off at about $90,000, a student with family income of $100,000 would receive a grant of zero dollars. Thus it is less expensive a wide margin. Among our group of ten pub- fee income with state appropriations reveals for a family whose income is $180,000 to lic universities, at the top is North Carolina, that, in constant dollars, public university send a son or daughter to Harvard than for followed by California, Florida, and Illinois. funding per student has increased by about a family whose income is $100,000 to send At the bottom is Colorado, where state fund- 35 percent over the past 30 years (see Figure their child to Berkeley or any other University ing per student is less than $1,000 (see Fig- 7). Although we feel like we are becoming of California campus. This is a fundamental ure 6). Thus, at least until 2008 the Univer- poorer and poorer, that is actually not the challenge that we must address for the mid- sity of California system was well-funded case. So why do public universities feel that dle class going forward (see Figure 5). compared to most state university systems. we are becoming impoverished despite ris- So, the news for students is mixed; it is good Some systems have been able to offset par- ing total incomes? tially the progressive disinvestment by their for students from low-income families now We feel poorer because compared with pri- state governments by continuously increas- but looks threatening in the future; it is work- vate universities we, in fact, are less well re- ing fees. For example, while student fees at able for middle-class students wanting to at- sourced–most especially in our endow- Berkeley are $7,600, at the University of tend Harvard and many other well-endowed ments. This is the bad news about public Michigan fees for in-state students are private universities but considerably more university funding. Our endowments, or around $12,000, the highest among top dif½cult for those in the University of Califor- relative lack thereof, place us at a signi½cant public universities. Of course, Michigan’s nia system. The news is also mixed for pub- competitive disadvantage with respect to in-state fees are still low compared to those lic university ½nancing. Across the country, private universities. Overall, public univer- of private universities, where fees are typi- state appropriations per total student head- sities have low endowments, in good part count at leading public universities vary by cally $35,000–$40,000. Combining student

38 Bulletin of the American Academy Winter 2009 Academy News

dowment income alone grew rapidly past the funding per Berkeley student in the mid- 1990s. This disparity between Harvard and Berkeley is representative of the disparity that generally exists between private and public universities, a differentiation that has changed the competitive situation in a fundamental and, in my opinion, permanent way. This is true even in today’s greatly de- preciated investment markets. As another, rather dramatic example, last year the in- come from Stanford’s endowment, assum- ing a 5 percent payout, exceeded our state appropriation at Berkeley by nearly $300 million.

Figure 8 Many people would still like to believe that in due course the State of California will pro- vide funding to the University of California commensurate with the endowment-derived income of the great private universities. My opinion is that this is not going to happen, at least not in the foreseeable future. Therefore, we must devote considerable energy to de- vising new ½nancial strategies that are mul- tidimensional, that will enable us to continue to offer the kind of facilities and faculty sala- ries necessary for us to be able to compete effectively and provide our public university students the education that they deserve.

Public universities are the conduits into mainstream society for an extraordinarily large number of highly talented people from ½nancially disadvantaged backgrounds and Figure 9 the key to the American dream of an increas- ingly better life for the middle class. In order to ful½ll our commitment to the public good, because we simply realized too late the from their endowments are extraordinary, we have an obligation to offer through pub- prospective importance of endowments. comprising a signi½cant fraction of their lic higher education the opportunity for the Private universities have long understood operating budgets. This allows these insti- same quality of education that is available at the importance of raising large amounts of tutions to pay high faculty salaries, provide the very well-½nanced and ½ne private uni- money for endowment, as opposed to rais- new faculty generous start-up packages, versities. Maintaining access and excellence ing funds for immediate expenditures, and and make available copious graduate fellow- in offering great public higher education is investing those funds well. Public institu- ships. An interesting way to think about the the foremost challenge that universities like tions, in the main, missed this, thinking that ½nancing of public universities is to trans- Berkeley face. the state would always take care of them. late the state funding into an equivalent en- Today the largest public university endow- dowment and to compare the income from ments are at Michigan, Virginia, Berkeley, this “endowment” with the income private and Texas (see Figure 8). Berkeley’s endow- universities derive from their endowments ment, large in comparison to that of most (see Figure 9). In 1995, the payout from Har- other public universities, is nonetheless vard’s endowment alone exceeded Berkeley’s dwarfed by the endowments of many lead- state funding. This is in absolute dollars, not ing private universities, especially Harvard, normalized per student. Harvard has far few- Princeton, Yale, and Stanford. The resourc- er undergraduates than does Berkeley. Thus, es that these top private universities derive the funding per Harvard student from en-

Bulletin of the American Academy Winter 2009 39 Academy Meetings

and off the vision of that generation of lead- ty-½rst century. This is the great irony of ers. Today, with talk of consumption goods countries–from Saudi Arabia to South Korea and the privatization of higher education to Singapore to, increasingly, China–attempt- and an unwillingness to address the capital ing to emulate the American example of in- and operating needs of the University of vesting in world-class public higher educa- California, I have the sense that the univer- tion: The example to which they are looking sity is viewed less and less as a public good. is eroding in the very place it originated.

Earlier this year I spoke at a conference; my This erosion is indisputably evident in Cali- theme was that “Knowledge is the oil of the fornia. If you compare the amount of money twenty-½rst century.” The conference took Bob Birgeneau and the other University of place at King Abdullah University, Saudi California chancellors had in 1990 to spend Arabia’s new $10 billion research institu- on each of their students with the amount tion. The Saudis believe the key to their fu- they have today–taking into account infla- Mark G. Yudof ture is emulating the American example, tion and the increases in enrollment that which is mostly the California example, of have occurred over that nearly twenty-year Mark G. Yudof is President of the University of investing in world-class research universi- period–you ½nd that Bob and the other California system. He has been a Fellow of the ties. Will their experiment work? I don’t chancellors have 40 percent less money. American Academy of Arts and Sciences since When you have 40 percent less money, how 2001. do you pay staff higher wages? For that mat- Today, with talk of con- ter, how do you compete for the best profes- Investment in human capital drives pros- sumption goods and the sors? Build expensive laboratories? Deal perity and economic growth, not only in with retirement plan issues? How do you America but around the world. The business privatization of higher deal with earthquake damage? In 2007, the community often says we need a friendly state cut its funding of the University of Cal- business climate, we need low taxes. But the education and an unwill- ifornia by $113 million, to $3 billion. State truth is that the investment in human capi- ingness to address the cap- money is crucial because it provides the tal, the preparation of the workforce, the funding for such core areas as the humani- ability to have great scientists and engineers ital and operating needs of ties and social sciences, areas that generally and others discovering things in their labo- do not have supplementary income streams– ratories is critical. Relatively high-tax states the University of California, the physician practice plans, national labo- with relatively high investment in human ratories, and substantial research grants that capital can do very, very well, as states like I have the sense that the help fund the hard sciences portion of the Massachusetts and California historically university is viewed less and budget. In addition to the state’s $113 mil- have demonstrated. A low-tax state with lion cut, the University of California had low investment in human capital might get less as a public good. to absorb another $100 million in costs for a new Toyota manufacturing plant, but the things that are going up in price, either be- really high-end enterprises that have multi- cause of inflation, higher enrollment, in- plier effects and engage people’s intellects know. Ten billion dollars is a lot of money, creased maintenance on buildings, or any will still be dif½cult to land. but the Saudis still have to recruit the neces- of a number of other dif½cult to control sary researchers, technicians, and other staff. expenses. California understood this when the Master When I met with the Saudi oil minister, he In my view, the model for support of public Plan for Higher Education was developed told me, “Mark, I agree with you that knowl- universities in America is broken. While ex- under the leadership of Pat Brown and Clark ledge is the oil of the twenty-½rst century, ceptions can be found–North Carolina has Kerr. The plan provides for universal access, but, all things considered, it’s better to have had an extraordinary history–they general- the extremely high quality that you ½nd at oil and knowledge.” (I thought, well, I can’t ly only underscore what is wrong with the the University of California, a tiering effect, really argue with that. Wealth does have a system: for example, Virginia and Michigan, and substantial investment in the infrastruc- way of helping you over the bumps you en- which look to nonresident students paying ture and operating cost of the university. counter while waiting for your knowledge very high tuition and fees as a source of rev- And that commitment is up in the air today. to kick in!) California is in great danger of becoming a enue. The future in California–with its bud- relatively high-tax, relatively low–human The Saudis–and others in South and East get de½cit running to the tens of billions of capital investment state, a formula that will Asia–are trying to emulate a type of invest- dollars and its political system seemingly not protect the great investment that has ment in public research universities that is having great traumas over generating the been made in the University of California. more characteristic of the California of the compromise needed to deal with such a To some extent, we are living off the invest- 1960s and 1970s than of California, or any- huge shortfall–does not appear to offer any ments that started in the 1960s and the 1970s where else in the United States, in the twen- relief for public higher education. Nor do I

40 Bulletin of the American Academy Winter 2009 Academy News anticipate a quick turnaround in the economy I invite the federal government to consider cheap. I remember my daughter took me to and thus a quick resolution of the University taking on a new role in the funding of higher Old Navy one year. She felt I wasn’t cool; I of California’s funding woes. Even if some education: investment in the physical infra- thought I was. She said I needed new clothes. things do go our way, the University of Cali- structure of public universities. If America So I ended up buying some shirts at $6 and fornia would still likely be looking at multi- is going to build bridges–which are undoubt- $7 apiece. Shortly thereafter, on my way to ple years before budget cuts were reversed. edly important–or levees–also important– see a member of Congress, I had my annual or highways or other things, then why not shoeshine and was shocked to realize it cost In my view, the model for also build classroom buildings? Why not more than the shirts I had bought. The rea- build scienti½c laboratories, engineering son, of course, was that the job of making support of public universi- buildings, and so forth? Doing so would my shirt had gone overseas. The job of shin- provide an immediate economic stimulus, ing my shoes is less easily exportable–as are ties in America is broken. employing electricians and bricklayers and most jobs in medical care and education, two plumbers, as well as architects and engineers, of our most pressing economic issues in terms The question then becomes “What do you glaziers and so on. Such an investment would of cost. As such, we will never achieve the do if the model is broken?” One of things also have intermediate and long-term pay- educational equivalent of the $6, foreign- we try to do is educate Californians–and, offs. The University of California faces the made shirt. And, given the successes we have frankly, I’m more interested in Californians predicament of not having the operating achieved with public higher education in in general than in individual legislators–as to funds today to service the debt that it needs this country, we should not want to. why the University of California is important to service in order to take care of the facili- One of the great challenges for higher edu- even if they do not have a child at this insti- ties it has and the facilities it needs. Not only tution or a family member who works there. cation is going to be reexamining the model The University of California is important to that has produced so much success. I believe all Californians because of the quality of med- I invite the federal govern- only the faculty can do this. Ten, twenty, ical care it delivers; because of the research ment to consider taking on thirty years from now, what will the model it conducts in such key areas as alternative be? Will it involve more technology? What energy, climate change, and new materials; a new role in the funding of other innovations can we use? How can we because of its support for and involvement preserve quality while responding to a very in the cultural life of the state; because it is higher education: investment dif½cult ½nancial climate? Higher education a public good. And so we should try to do a is not, after all, like the paper factory in Min- better job, reverse the diminution of the in the physical infrastructure nesota that once employed 1,000 people and bright star of public universities. of public universities. now, because of technology, has eight em- ployees running the entire factory. Technol- Second, we may need to rethink the federal ogy in higher education has not provided do public universities seem like a logical role in higher education. Historically the that sort of substitutionary leverage. By and place for federal investment, but that invest- federal role has comprised two tracks. The large, our learning takes place in classes with ment can occur without getting the federal ½rst is indirect funding of universities through really ½ne teachers interacting with students, government so deeply involved in university direct grants to students; for example, Pell reading papers, and all the rest of it. The business that it is telling universities whom Grants and, before that, GI Grants. The idea question is how can we preserve the best of to admit, what courses to offer, whom to hire, behind the grants–which really amount to that model while still moving forward? a voucher system–is that the money goes and the like. with the student rather than directly to the The third thing we can do is to achieve busi- university. The student is admitted to eligible ness ef½ciencies. So far at the University of universities, chooses one, and plunks down California we have cut over 500 positions in a piece of paper that is the equivalent of a the of½ce of the president, saving about $60 check from Uncle Sam. The second track is million, and we are looking for more ways federally funded research. After World War to cut. We now have accountability systems II the United States witnessed a revolution so we can answer the questions “What sort in the ½nancing of research as universities of year did you have? Are your students do- became the nation’s primary research labs ing well? Do your faculty win awards? How for all sorts of purposes. is the research enterprise going?” More can be done in this area too. At bottom, however, universities are labor-intensive enterprises, and labor in this country does not come

Bulletin of the American Academy Winter 2009 41 Academy Meetings

compelling way once expressed our grand, Shouldn’t the aspiration collective aspirations for the place of public higher education in the life of this state. toward which we try to What has happened to those aspirations? move the broader public Consider that during the last thirty years only one campus has been added to the Uni- be the grander one of versity of California system–at Merced–and only one campus has been added to Califor- ensuring that everyone nia State University–at Monterey. During the same period, however, California added have a postsecondary twenty-two new prisons. Over the last thirty education or training years, the total enrollment in California high- er education has grown by 22 percent, but in that leads to a degree or Christopher F. Edley, Jr. just the last ½fteen years California’s prison Christopher F. Edley, Jr. is The Honorable population has grown by 73 percent. certi½cate with value in William H. Orrick Jr. Distinguished Chair and The notion of a universal entitlement to ed- the marketplace? Dean of UC Berkeley School of Law. He has ucation has roots reaching back to Plato, who, been a Fellow of the American Academy of Arts in the Republic, talked about broad education An analogy can be drawn to what we are now and Sciences since 2007. but for the narrow purpose of training philo- experiencing in healthcare. Medicare and sopher kings and elites. The Talmud teaches Medicaid were established in 1965 so that that in the middle of the ½rst century c.e., Whether I am wearing my hat as an aca- the elderly and the very poor were entitled Joshua ben Gamla, the high priest of Judea, demic bureaucrat or my hat as a policy wonk, to basic healthcare. Although we have wit- established compulsory religious education the basic challenge facing public higher ed- nessed endless battles over the scope of cov- for children in every village. The idea stuck– ucation–speci½cally the public research uni- erage, the cost, and the complex regulatory although poor Joshua kept his job for only a versity–seems to be getting the public to be- environment for Medicare and Medicaid, we year or so. Today we take for granted that lieve that this enterprise matters. In meeting have arrived at the cusp of a moment when compulsory education will be provided to that challenge we will need to tackle four ob- universal access to healthcare may be estab- pre-K children through students age 16–18, stacles that stand in the way: aspiration, le- lished at last in the United States. How we got depending upon the state. gitimacy, affordability, and elitism. from 1965 to this moment may be instructive The question for our future is, what is the ap- as we de½ne the aspiration for higher educa- The basic challenge facing propriate aspiration? Given the changes in tion in the generation ahead. our economy, is it not time to think about public higher education–spe- universality and entitlement not just for thir- Legitimacy teen years (pre-K through grade 12) but for at ci½cally the public research least ½fteen years? Shouldn’t the aspiration The challenge of legitimacy is one of inclu- university–seems to be get- toward which we try to move the broader sion–or the lack thereof: the under-repre- public be the grander one of ensuring that sentation of poor and minority students at ting the public to believe that everyone have a postsecondary education or our top institutions of higher education. training that leads to a degree or certi½cate Only 3 percent of the students at the top 150 this enterprise matters. with value in the marketplace? And that high American colleges and universities come school should prepare you for that post-sec- from the bottom quartile of the income dis- tribution. Three percent! And only 10 per- Aspiration ondary experience? That early childhood learning and elementary and secondary ed- cent come from the bottom half of the in- Clark Kerr, the twelfth president of the Uni- ucation should support children in achiev- come distribution. If you were to walk the versity of California, once quipped that the ing their full potential? That equity is criti- campus of one of these 150 institutions, you central role of a university administrator was cal? That there should be no gerrymander- would be twenty-½ve times more likely to “providing parking for faculty, sex for stu- ing or color-coding of opportunity? Our as- meet someone from the top income quartile dents, and athletics for alumni,” which neat- piration should not just be, “Please save our than someone from the bottom income quar- ly, if facetiously, captures the misplaced as- university’s budget,” but should also encom- tile. Higher education cannot have legitima- pirations of so many with a stake in higher pass the broader enterprise of explaining that cy as an engine of opportunity if it is exclu- public education. Kerr, of course, presided we have reached the stage in our advanced sionary, or even perceived as being exclu- over the original California Master Plan for society, our advanced economy, in which sionary. Higher Education, which in its elegant and this broader aspiration of universality and attainment must be de½ned and pursued.

42 Bulletin of the American Academy Winter 2009 Academy News

Nationwide, 15 percent of community college torted image of a traditional market–as it Those of us who wish to students are Latino, and 13 percent are black. should be, in my view. But the investing In California, however, Latinos account for public, acting collectively through govern- proclaim and advance the 28 percent of community college students, ment, is still left with the question, Should and blacks for 8 percent. Something in the we purchase a Chevy or a Cadillac? A Mazda proposition that elite public operation of the higher education system, in- or a Maserati? A hybrid or a Hummer? The cluding the pipeline to it, is sorting minority knee-jerk response among higher education higher education has a role students out of the better postsecondary op- leaders is, “Well, the diversity of our institu- to play in the broader system portunities. Furthermore, the community tions is one of the great strengths of the college system–the postsecondary oppor- American system.” They are correct, but of public higher education tunity in which most blacks and Latinos who that response implies the need for a diversity pursue postsecondary education ½nd them- of ½nancing strategies for that product. Oth- face a special challenge. selves–is generally acknowledged to be bro- erwise, the affordability problem will persist. ken. Broken in the sense that the vast major- I never wanted to be an academic adminis- ity of students leave community college with- Elitism trator–it’s a ridiculous job. When your al- out having achieved even a certi½cate, much ternative is being a professor and doing what- The Berkeleys of higher education have a less an associate’s degree or transfer to a ever you want . . . So when Berkeley ½rst special problem. When the Supreme Court four-year institution. If majorities of the came after me, I said “No” several times. heard oral arguments in the University of black and Latino students nationwide in But then I ½nally had lunch with the search Michigan af½rmative action cases in 2003, postsecondary education are in community committee. Their second question–after Justices Scalia and Thomas said, more or colleges and community colleges are not “Why do you want to be dean?” to which I less, “You claim that diversity is a compel- working, what does that say about who will replied, “I don’t think I do.”–was, “What ling interest for your university, but you also be in the middle class ½fteen years from now? do you think is distinctive about the mission tell us that by being selective, by being elite, The very legitimacy of higher education de- of an elite public law school?” That was a it makes it dif½cult for you to get the diver- pends upon whether it is inclusive. great question, one I had never thought sity that you think is so important. Well, why about. While a Harvard professor I never do you have to be so selective? Why do you wanted to be a dean–why would I want to Higher education cannot have to be so elite? Just make a choice. You spend my time polishing the flatware? But know, if diversity is so important, just focus have legitimacy as an engine the question asked of me by the Berkeley on being diverse; don’t focus on being so search committee made me start thinking elite. Leave the elite business to the private of opportunity if it is exclu- about whether there should be something sector.” sionary, or even perceived distinctive. Otherwise, why bother? What For many folks in elite higher education, this would be the point of an elite public univer- as being exclusionary. surely seemed like a preposterous proposi- sity whose only distinctive feature is its tion, but the issues it raises deserve consid- “eliteness?” The future of our institutions Affordability eration. The fact is, few public institutions cannot be secure without a compelling an- compete with the elite private colleges and swer to that simple question. The question of legitimacy cannot be disen- universities. Few states have made the deci- tangled from the question of affordability. sion to invest in a Berkeley, a ucla, a uc My boss, Berkeley Chancellor Robert Birge- San Francisco. That a polity should choose © 2009 by Robert J. Birgeneau, Mark G. neau, addresses quite well how this issue as a matter of public investment to try to Yudof, and Christopher F. Edley, Jr., looks to the student. But what about afford- compete with Harvard, mit, and Stanford respectively ability from the standpoint of government? is not obvious. After all, most states have Think about it this way: You’re the govern- chosen not to do so. Thus, those of us who ment. You’re going to purchase this service wish to proclaim and advance the proposi- –higher education–for the people. How tion that elite public higher education has a much should you be willing to pay? What role to play in the broader system of public should the cost be? The higher education higher education face a special challenge. market is far from perfect; it bears little re- This case can be made, but it is not an obvi- lationship to the neoclassical microeconomic ous case, and we must attend to it with great paradigm (no matter what the antitrust di- care, paying special attention to the related vision at the Department of Justice might challenges of affordability, legitimacy, and like to believe). The system of subsidies, tax aspiration. expenditures, and so forth is like a badly dis-

Bulletin of the American Academy Winter 2009 43 Academy Meetings

Judicial Independence

Sandra Day O’Connor, Linda Greenhouse, Judith Resnik, Bert Brandenburg, and Viet D. Dinh Welcome and Introduction by Richard L. Revesz, Martin Lipton, and John Sexton

This panel discussion was given at the 1931st Stated Meeting, held in collaboration with New York University School of Law and Georgetown University Law Center on November 6, 2008, at Tishman Auditorium, New York University School of Law.

U.S. Supreme Court in Washington, D.C. (1935) Photograph © Dennis Degnan/Corbis.

Welcome

It is a great pleasure to welcome you to this happens at the law school, Justice O’Connor wonderful event, which we are cosponsor- is here. I’ll give you only two examples in the ing with the American Academy of Arts and interest of hearing from Justice O’Connor Sciences and the Georgetown University Law herself. On September 28, 2001, the law Center. I am very grateful to my colleagues, school celebrated the groundbreaking for Alex Aleinikoff, Dean of the Georgetown Furman Hall, our wonderful academic build- Law School; Meryl Chertoff, Director of the ing that now houses half our classrooms, Sandra Day O’Connor Project on the State our clinical programs, our lawyering pro- of the Judiciary at Georgetown; and Leslie grams, and many important administrative Berlowitz, Chief Executive Of½cer of the of½ces. That was an important day and Jus- American Academy, for coming together tice O’Connor was here. It meant an enor- Richard L. Revesz tonight to create this terri½c event. mous amount to us, and she spoke passion- ately and persuasively about the important Richard L. Revesz is Dean and Lawrence King It is a great honor to welcome Justice Sandra role of lawyers and legal education in the Professor of Law at New York University School Day O’Connor back to the law school. It new world that we would have to construct of Law. He has been a Fellow of the American seems that whenever something very good Academy of Arts and Sciences since 2007. after the 9/11 disaster.

44 Bulletin of the American Academy Winter 2009 Academy News

My second example: Our Institute for Judi- judicial decision-making. To help educate cial Administration has played a very impor- the public about judicial independence, Jus- tant role in the training of judges in this tice O’Connor established the Sandra Day country, both at the federal and state levels, O’Connor Project on the State of the Judici- and has, I think, on average trained about ary, which is housed at Georgetown Univer- two-thirds of new federal district-court sity Law Center. It is my honor to serve on judges. In October 2006, the Institute was the Project Steering Committee, and I espe- named the Dwight Opperman Institute for cially want to acknowledge Justice O’Connor Judicial Administration in honor of Dwight and to thank her for her very important work Opperman, a trustee of the law school who in this area of judicial independence. had been involved with the Institute since Now it’s my pleasure to introduce another its inception in the 1950s. Justice O’Connor Fellow of the Academy, John Sexton. John was here again and talked about the impor- clerked with Chief Justice Warren Burger tance of judicial independence, a topic that Martin Lipton and is a former Dean of the nyu School of we’ll come back to today. Martin Lipton is a Founding Partner of Wachtell, Law. He is the Benjamin Butler Professor of It is ½tting that since retiring from the Su- Lipton, Rosen & Katz and is Chair of the Board Law and the ½fteenth President of New York preme Court, Justice O’Connor has devoted of Trustees of New York University. He has been University. a signi½cant amount of time and energy to a Fellow of the American Academy of Arts and promoting the cause of judicial indepen- Sciences since 2000. dence, which she has persuasively argued is increasingly under attack. Welcome It is now my privilege to introduce the Chair- man of the Board of Trustees of the Univer- On behalf of the University and of the sity, Martin Lipton. Marty graduated from nyu American Academy, I’m delighted to add School of Law, and the history of the my welcome to all of our distinguished transformation of the law school during a speakers and guests. The American Acad- period of about 50 years is tied very closely emy has been exploring issues facing the to the roles that Marty played in making that courts for a number of years. Using its un- happen. He and his other founding partners paralleled ability to convene some of the at the law ½rm of Wachtell, Lipton, Rosen & keenest minds in the nation for careful re- Katz, all of them alumni of our law school, flection and non-partisan independent started one of the great institutions of Ameri- study, the Academy has advanced our un- can corporate law. Marty, from the beginning, derstanding of the judicial system during John Sexton was involved in creating the structure that a time of change and challenge. John Sexton is ½fteenth President of New York would make it possible for the law school to University and the Benjamin Butler Professor become a leading academic institution. He The topic of judicial independence is not of Law. He has been a Fellow of the American eventually became Chair of the Board of only critically important, it is also quite Academy of Arts and Sciences since 2001. Trustees of the law school and then was ele- complicated. And to help us better under- vated to his current position as Chair of the stand the issues and appreciate what is at Introduction University’s Board. Thank you, Marty, for stake, we are about to have the pleasure of being here with us today, as you are on so hearing from an extraordinary group of le- many other special occasions in the life of gal scholars and practitioners. Everyone in The formal life of Justice O’Connor is well the law school; we’re extraordinarily grate- this room understands that a fair and impar- known to all of us: a graduate of Stanford ful to you. tial judiciary is a cornerstone of our system and its law school, editor of its law review, of government. Today, there are critical chal- a county attorney, a civilian attorney in the lenges to the independence of our courts. Quartermaster Corps, and then an assistant They come in the form of increasingly parti- attorney general in Arizona. For six years she san judicial con½rmation processes, calls for was in the Arizona State Senate, becoming the impeachment of federal judges when ac- the majority leader and the ½rst woman in tivists disagree with judicial decisions, and the country to hold such a high legislative unprecedented Congressional intrusion into position. Later she became a superior court

Bulletin of the American Academy Winter 2009 45 Academy Meetings judge, then a judge for the Arizona Court of In many ways, Justice O’Connor has done Appeals. She had served in all three branches the most important work in her life invisi- of government well before I ½rst heard her bly, person by person. To those of us who name in October term 1980, when I was have been privileged to come to know her clerking for Warren Burger. In my class on and her magni½cent love affair with her hus- the Supreme Court and religion, with fresh- band, she is a model of personal “I thou love” men here at nyu, I described the day that for every married couple; she certainly was all 32 of us who were clerking at the Court for our family. And for others who don’t get that year were called down to the east room to know her as well, or as intimately, she still of the Court. In came Justice Stewart to ex- is a model person by person. I’ll close with a plain to us that that would be his last term. story to illustrate. I remember as the weeks unfolded hearing My wife Lisa, our daughter Katie, and our Chief Justice Burger speak in glowing terms son Jed were with me for that conference in of this woman from Arizona. Florence. Jed was the gofer. Lisa sprained Sandra Day O’Connor My class here and the concomitant class I’m her ankle and had to come home, so Katie, Sandra Day O’Connor served as an Associate teaching on Sundays in Abu Dhabi on the then seven, was a host. She, this little girl, Justice of the U.S. Supreme Court from 1981 same subject, Religion and Politics Through stood next to me as the vans with the jus- until her retirement in 2006. She has been a the Eyes of the Supreme Court, know that I tices came up the long, tree-lined road that Fellow of the American Academy of Arts and view the 25 years between 1981 and Justice brought them to the main villa. I said, “Now, Sciences since 2007. O’Connor’s retirement as “The O’Connor when the justices get out, you just curtsy Years” at the Court, certainly in the area of and say ‘Buon giorno; welcome to La Pietra.’” the intersection of religion and politics in Little Katie said and did just that as Justice That was quite an introduction. I hope society. In many ways, Justice O’Connor O’Connor got out of the van. In her own mag- many of you have had the privilege of meet- shaped the court during those years. She ni½cent way, Justice O’Connor embraced ing Katie. She’s pretty grown-up now, but shaped this law school, seen by many as the this little girl. Justices Ginsburg and Breyer what a wonderful girl she is and what a won- place that gestated a more ecumenical and were there too, and Justice Ginsburg spent derful youngster she was. expansive view of the law. We called it here a lot of time with Katie over the three days. Thank you so much, President Sexton, for the Global Law School Initiative, but the But it seemed Justice O’Connor’s hand was your introduction. John Sexton’s work as an idea, in fact, was Justice O’Connor’s. It was always in Katie’s hand. educator, both here at nyu and through all an idea that was born when she spoke here When Katie came home, she brought with of his other activities, like the Urban Debate in the early 1990s at a faculty lunch, and it her Justice O’Connor’s cardboard name League, has set a very high bar for individual was an idea that caught my attention as a card from the conference. She put it on her commitment to civics education. I want to product of the ecumenical movement from desk, and when she got to the third or fourth thank Dean Revesz and the law school for a very earlier time in my life. It was an idea grade and had to pick a person from all of hosting this event. I remember Dean Revesz that, as it began to incubate, Justice O’Connor history to be and to present a biography, she when he was a law clerk for Justice Thurgood was always here to support. chose Justice O’Connor. A friend came over Marshall; he looked a little younger in those The very ½rst conference held at nyu’s mag- and saw this card on Katie’s desk and asked days, I think. ni½cent villa in Florence, Italy, in 1994, was a her about it. Katie, now about nine, said, John Sexton mentioned some of the events conference that Justice O’Connor organized “Oh, Justice O’Connor, she’s a friend of that have been held here. For several years, with us for justices of four Supreme Courts– mine. She’s invited me to come down to members of our Court met with members of four Constitutional Courts, more appropri- Washington, and we spent a lot of time to- Russia’s Constitutional Court, and we got to ately: the Constitutional Courts of the Unit- gether. And there was this other Justice, Jus- the stage where we really could communicate ed States, Germany, Italy, and the then new- tice Ginsburg, and she was very nice, too.” with some of them pretty well. I remember ly established Russian Constitutional Court. Finally she said, “I didn’t spend a lot of time lots of meetings. Now that has stopped, and As we, those twelve justices and about eight with Justice Breyer, so I can’t tell you what we are becoming strangers with the Russian nyu professors, sat in La Pietra, the Russian he’s like.” In that way, Sandra Day O’Connor, Federation. It’s a tougher relationship, and Constitutional Court wrestled with its own person by person, made it possible for peo- whether they would entertain the possibility Marbury v. Madison: the constitutionality of ple, the young Katies of the world, to think of restoring some of those meetings, I don’t the invasion of Chechnya and whether Yelt- that anything is possible for them. And Katie know; but I think it’s worth exploring. We sin had acted constitutionally. It was wonder- still lives with the tremendous con½dence certainly had some good meetings here. ful to hear the twelve justices at the confer- that this great woman instilled. ence wrestle with the issue of judicial inde- Thanks so much to the American Academy It is my great, great privilege to introduce to pendence in that context as opposed to the of Arts and Sciences, a distinguished group. you Justice Sandra Day O’Connor. context in which we will discuss it tonight. You probably know that John Adams helped

46 Bulletin of the American Academy Winter 2009 Academy News found the Academy, and at the time that he said, “By gobs, we’ve made a mistake. This A signi½cant percentage of did that, he was also trying to write a consti- man does not deserve to hang.” tution for the state of Massachusetts. It has In one sense you could say that Judge Bean our state-court judges are some pretty forceful language about the im- was independent. He did whatever he liked, portance of judicial independence. The Mass- elected for a term of years, and often he was guided purely by monetary achusetts Constitution, thanks to John Ad- concerns. But that’s not what I mean when I ams, says, “It is essential to the preservation and they are elected in par- talk about judicial independence, and I don’t of the rights of every individual to be tried think it’s what John Adams had in mind ei- tisan campaigns that have by judges as free, impartial, and independent ther. I mean somebody, a judge, who’s con- as the lot of humanity will admit.” So what strained by what the law says and requires, become increasingly expen- did John Adams have in mind when he ref- and a judge who’s independent from exter- erenced an independent judiciary more than sive, unwieldy, and nasty. nal influences. Of course, a judiciary that’s two centuries ago, back when the notion of subject to strong external influences is not a judiciary with power to secure and protect Such destructive campaigns just a thing of the distant past. We’ve seen certain fundamental rights was a pretty rad- evidence of that all around the globe. And erode the public’s perception ical idea? Judicial independence as a concept while our federal judges in this country re- doesn’t lend itself to very precise de½nition, ceive appointments for good behavior, a sig- of the judiciary because it’s and maybe the easiest way to understand it ni½cant percentage of our state-court judges is to look at settings where it did not exist. dif½cult to believe that judges are elected for a term of years, and they are elected in partisan campaigns quite often– can remain neutral when Judicial independence as a campaigns that have become increasingly they so often have to think concept doesn’t lend itself to expensive, unwieldy, and nasty. Such de- structive campaigns, I think, erode the pub- about the popularity of their very precise de½nition, and lic’s perception of the judiciary because it’s dif½cult to believe that judges can remain opinions and who it was that maybe the easiest way to neutral when they so often have to think about the popularity of their opinions and donated to their campaigns. understand it is to look at who it was that donated to their campaigns. You hear horror stories of lawyers going to Or consider the Massey Coal case from West settings where it did not exist. trial in Texas, which is a state that has elec- Virginia, where the justice who cast the de- tions like I described, and the ½rst thing they ciding vote to overturn a $50 million verdict I grew up in the Southwest, born in El Paso, do is to ½nd out how much the lawyers on the against Massey Coal Company had received and went to school there. In the late 1800s, other side have already given to the judge. more than $3 million in campaign contribu- Judge Roy Bean ran his courthouse out of a If they can ½nd that out, then they have to tions from the company’s owner while the saloon in west Texas, not too far from the match it or exceed it, or they don’t go to trial. appeal was pending in the court. The U.S. Lazy B Ranch. Everyone in Roy Bean’s court, What kind of a system is that, and why do Supreme Court is currently looking, I be- from defendants to jurors to lawyers, was we want to tolerate that kind of thing in our lieve, at a cert petition in that case that raises expected to buy drinks during each one of country? I don’t know. It isn’t dif½cult to the question of whether at some point the his frequent recesses. If you didn’t buy a see how corrupting that money, which is in- due process clause requires a judge to recuse drink, the judge would hold you in contempt jected into these campaigns, can become. himself or herself when the perception of of court and you would be ½ned the cost of After being elected to the Illinois Supreme bias is so strong. I don’t think that a litigant a drink. The saloon-turned-courthouse had Court in 2004, after a judicial election in giving a $3 million contribution to a judicial a big sign in front of it that read, “Law West which the candidates spent more than $9 candidate’s campaign is what John Adams of the Pecos.” And just above that sign was million combined, Justice Lloyd Karmeier had in mind when he envisioned judges who another one that read, “Ice cold beer.” I asked, “How can people have faith in the were as impartial and independent as the would have hoped, at the very least, that the system when such obscene amounts of will of humanity would admit. law would have gotten top billing on the money are used to influence the outcomes marquee, but it didn’t: he was selling ice We can do better than that in this country, of the elections?” And he was the one who cold beer and law, in that order. In one typi- and thanks to some of you who are in the won the race. You can only imagine what cal case, Judge Bean sentenced a young man social sciences, there’s a growing body of the losing candidate might have said after- to hang, only to discover later that the man empirical research that demonstrates how ward–probably nothing we would want to had over $400 in a bank account. When these campaign contributions and judges’ repeat in public. Judge Bean learned that, he sensed that fear of reprisal for making unpopular deci- there might be some pro½t in leniency and sions do, in fact, have an effect on judicial

Bulletin of the American Academy Winter 2009 47 Academy Meetings decision-making. I encourage those of you tated a valuable conversation that resulted in the social sciences to continue collecting in insightful discussions about this subject. and reviewing the empirical data that dem- There was also a series of lectures and panel onstrate the effects that campaigns like that discussions that focused on other topics re- have on the judiciary. lated to the judiciaries: career paths of judg- es, judges’ compensation and bene½ts, and The judiciary’s authority and legitimacy rest the con½rmation process. really on public trust and the agreement of the public in general to abide by rulings of The project developed and so did the rela- the courts. We can’t afford to have a judicial tionship between Congress and the federal system that is perceived as being corrupt, judiciary. The relationship, in fact, turned biased, or otherwise unethical. Judges, after around, and just as the Court had challenged all, don’t have any real means of enforcing Congress earlier, Congress began to chal- most of their rulings: our gavels aren’t that lenge control of the judicial branch, includ- big, and we can’t swing them that hard. Our Linda Greenhouse ing limitations on the ability of federal judg- courts rely on the other branches of govern- es to travel and efforts to prohibit federal Linda Greenhouse is the Knight Distinguished ment and the public to follow and acquiesce judges from citing foreign law, an effort of Journalist in Residence and Joseph M. Goldstein in the rulings made by the courts, and it’s which, I would assume, Justice O’Connor Senior Fellow in Law at Yale Law School. For somewhat amazing how the other branches took a rather dim view. nearly 30 years she covered the U.S. Supreme of government normally through the years Court for “The New York Times.” She has been have abided by and enforced court rulings, a Fellow of the American Academy of Arts and whether it was President Eisenhower who The American Academy Sciences since 1994 and serves as a member of sent the 101st Airborne to Little Rock, Arkan- the Academy’s Council. started a project on the in- sas, to ensure that the schools were integrat- ed after Brown v. Board of Education and Coop- dependence of the judiciary er v. Aaron, or whether it was President Nixon, It was my pleasure, along with Meryl Cher- who sealed his own fate and turned over in- toff, to put together the Fall 2008 issue of back in 2002. Originally criminating tapes and documents in response Dædalus, focused completely on the topic of called Congress and the to the Supreme Court’s decision in United judicial independence. As Justice O’Connor States v. Nixon. While we have been fortunate said, this is an educational effort; it’s an out- Courts, the project grew out to have a judicial system that is generally re- reach effort. It’s to get people talking and to spected, it should not be taken for granted. have a sophisticated conversation about what of a perception on the part sounds on the surface like a very simple issue. Statutes and constitutions don’t protect ju- Of course everybody’s for judicial indepen- of many people that the dicial independence, people do. And while dence; but as we probe deeper, it’s a compli- we are not at the stage where protestors relationship between the cated and challenging subject. might overrun the U.S. Supreme Court building like they did in Zimbabwe not too The American Academy started a project on Supreme Court and Con- long ago, the time to address the concerns I the independence of the judiciary back in gress had run off the rails. have described is now, before those con- 2002. Originally called Congress and the cerns become so large we can’t solve them. I Courts, the project grew out of a perception hope we can help educate all Americans in on the part of many people that the relation- All of these issues bene½t from public con- this country on what we mean by judicial ship between the Supreme Court and Con- versation and scholarly inquiry, and that’s independence and, particularly, explain why gress had run off the rails. The Court was what brings us together this evening. This it matters–because it does. I hope that in striking down a series of federal civil rights meeting occurs, as I mentioned, in conjunc- time we can persuade some of the states statutes on the grounds that Congress lacked tion with the publication of the Fall 2008 is- that still hold partisan elections to develop a the constitutional authority to enact them; sue of Dædalus, the quarterly journal of the somewhat better forum of judicial selec- it was a freighted situation. So the Academy American Academy, on this theme. It con- tion, similar to that which the esteemed formed a committee to look at how it could tains essays by each of our speakers, as well framers of our Constitution developed serve its historic role, in this context, as a as a number of eminent scholars, practition- when they met in Philadelphia so long ago. neutral arbiter to examine the many dimen- ers, and judges. sions of the relationship between Congress The issue of Dædalus draws from two com- and the Court. There was a series of private, plementary and ongoing efforts to examine closed-door meetings among the various judicial independence today, to de½ne it in stakeholders–Supreme Court justices, key its historic context, assess its current func- players on the Hill–and the Academy facili- tion, and address the perception that it is

48 Bulletin of the American Academy Winter 2009 Academy News currently under attack. The American Acad- emy of Arts and Sciences, under the auspices The degree to which we take for granted of its project on The Independence of the the concept of judicial independence makes Judiciary, has held several meetings that it worth looking, briefly, at the history of have brought together scholars, public of- judges, going back hundreds of years. Adju- ½cials, and state and federal judges. Essays dication is an ancient practice, long predat- in the issue by Senator Charles Schumer, ing democracies. Medieval and Renaissance Judge J. Harvie Wilkinson III, Chief Justice rulers put on spectacles of justice in which Ronald M. George of California, Chief Jus- judges took center stage. But while sover- tice Margaret H. Marshall of Massachusetts, eign powers relied on judges, it was not be- and Professors Judith Resnik and Robert cause judges were independent actors. Post are drawn from those sessions. One way to catch a glimpse of these tradi- tions is through looking at the imagery put The Court was striking Judith Resnik deliberately into town halls, Europe’s ½rst civic buildings, where court sessions were Judith Resnik is the Arthur Liman Professor of down a series of federal held. Hence, I invite you to look at a few such Law at Yale Law School. She has been a Fellow paintings. The ½rst image comes from the civil rights statutes on the of the American Academy of Arts and Sciences diptych of 1498 called The Justice (Judgment) since 2001. Her comments draw from an essay of Cambyses, a painting by Gerard David that grounds that Congress published in “Dædalus,” Fall 2008, on “Interde- can today be found in the Groening Museum. pendent federal judiciaries: puzzling about why lacked the constitutional But it once hung in the town hall of Bruges & how to value the independence of which judges,” in what is now Belgium. The left panel of and from a forthcoming book, “Representing Jus- authority to enact them. the diptych, Arrest of the Corrupt Judge, shows tice: The Rise and Decline of Adjudication as at the far back a tiny vignette of a man in a Seen from Renaissance Iconography to Twenty- The Sandra Day O’Connor Project on the red robe (a judge) taking a bribe (a bag of First Century Courts” (co-authored with Dennis State of the Judiciary at Georgetown Uni- money). In the foreground, one can see that E. Curtis and to be published by Yale University versity Law Center held conferences in 2006, judge taken from the seat of judgment; he is Press in 2010). 2007, and 2008 that drew the attendance of being arrested. In the Flaying of the Corrupt six sitting Supreme Court justices and hun- Judge, which is the right panel of the diptych, dreds of scholars, business and political the judge is being flayed alive. leaders, and representatives of the nonpro½t The reproductions do not sector. The essays in the volume by Justice do justice (if I may borrow O’Connor and Justice Breyer are drawn from that word) to the actual the ½rst two of those conferences, as are those paintings, which are larger by Chief Justice Ruth V. McGregor of Ari- than life and gruesome in zona, Professor Kathleen Hall Jamieson and their brightly colored de- Bruce W. Hardy, Professor Viet Dinh, Pro- tails–even hundreds of fessor Stephen Burbank, Professor Bert Bran- years later. The story’s denburg, Professor Roy Schotland, Professor denouement can be found Vicki Jackson, and Professor Charles Geyh. in the background of the The result is a collection of diverse perspec- Flaying, where another tives from those who study the question of small vignette is provided. judicial independence as scholars and those who live it as judges, a contribution to a con- versation as old as the republic and as current as today’s news. That is the background of what brings us together. Arrest of the Corrupt Judge, left panel of the diptych The Justice ( Judgment) of Camby- ses, Gerard David, 1498, Musea Brugge, Belgium. Copyright: Musea Brugge, Groeningemu- seum. Image reproduced with the permission of the copy- right holder.

Bulletin of the American Academy Winter 2009 49 Academy Meetings

The son of the corrupt judge, now the new judge, is forced to sit on his father’s skin. I have used a spectacular example from Bruges but this scene is not unique to that city’s town hall. Rather, paintings of it were in many town halls in cities around Europe.

Move forward a hundred years plus to Gen- eva, Switzerland, to 1604 to the huge mural Les Juges aux mains coupées, by Cesar Giglio, which was displayed in the Salle du Conseil (Council Chamber) of the town hall. A detail of the mural shows judges with their hands cut off, along with text from Exodus 23:8: “Thou shalt not accept gifts for a present blinds the prudent and distorts the words Flaying of the Corrupt Judge, of the just.” right panel of the diptych The Justice ( Judgment) of About 50 years later, in 1655, architect Jacob Cambyses. van Campen’s magni½cent Town Hall (now called the Royal Palace) opened in Amster- dam. Inside, one room is called the Tribunal (Vierschaar), where death sentences were pro- nounced. Public spectators and defendants alike saw elaborate carvings there, including The Judgment of Brutus, by the sculptor Artus Quellinus. The Roman envoy Brutus ordered his own sons to death for treason. Another carving features The Blinding of Zaleucus.Za- leucus was a judge whose son violated the laws of the state, a crime that carried the punishment of gouging out one’s eyes. In- stead of taking out both of his son’s eyes, Zaleucus took out one of his own as well.

Works such as these (again, commonplace Les Juges aux mains coupées, Cesar Giglio, circa 1604, Salle du Conseil (Council Chamber), Town Hall of Geneva, Switzerland. Photograph reproduced with the per- in civic buildings) help me make a ½rst point: mission of Le Centre d’Iconographie Genevoise. Thanks to Ursula Baume-Cousam, the judicial role then was conceived to be Cäsar Manz, and Livio Fornara for help in obtaining permission to reprint. dependent, not independent. These exem- plary allegories instructed judges to serve as loyal servants of the state and showed, fur- thermore, that enforcing the state’s law came at personal pain. Misbehave and you would be flayed alive or lose your limbs; be loyal to the state even if it means sending your own children to death or to dismemberment.

Why were these images set out? Rulers cre- ated rituals and spectacles of power aimed at providing instruction to the public watch- ing from the streets or inside these state buildings. Public proceedings were aimed at underscoring the authority to make and enforce laws. But as Michel Foucault has taught us, those who produce rituals and spectacles cannot control the consequences Detail, Les Juges aux mains coupées. of what is seen. The people who watched

50 Bulletin of the American Academy Winter 2009 Academy News

Exterior of the Town Hall (Royal Palace) of Amsterdam, Architect: Jacob van Interior of the Tribunal (Vierschaar) on the ground Campen, 1648–1655, Amsterdam, the Netherlands. Photograph reproduced floor of the Town Hall (Royal Palace) of Amsterdam, with the permission of the Amsterdam City Archives. the Netherlands. Photograph reproduced with the permission of the Amsterdam City Archives. moved from being passive spectators to ments. The second was the obligation to ren- and attend the said courts, and hear and be becoming more active, more watchful ob- der judgment in public. Rites, R-I-T-E-S, be- present . . . at all and any such trials . . . that servers–to understanding themselves as came rights, R-I-G-H-T-S, of public access justice may not be done in a corner nor in having some power to sit in judgment of those to courts as judges moved from servants of any covert manner.” A century later, this imposing judgment. Over the course of cen- rulers to independent actors authorized to commitment was reiterated in 1777 in the turies, as they saw these rituals of power and sit in judgment of the state itself. Constitution of Vermont that read: “All as republican and democratic precepts grew, courts shall be open, and justice shall be im- To explain some of this, I need to switch they began to make claims on the state. partially administered, without corruption from artwork to texts and cross the Atlantic or unnecessary delay.” The seventeenth, eighteenth, and nineteenth to the United States. One example comes centuries saw two parallel and related devel- from the laws of West New Jersey in the 1670s. State constitutions also lead the way on judi- opments pertinent to our discussion. One was As that document reads: “That in all publick cial independence; Massachusetts provided the growth of the idea of judges as impartial courts of justice for tryals of causes . . . any for tenure for its judges. That point became and specially situated employees of govern- persons of the Province may freely come into central in 1789 to Article III of the U.S. Con- stitution, the icon of the federal system, which enshrined this new conception of judges, protected from being ½red (life ten- ure) and with salaries not to be diminished. (Our current judges remind us that what is missing is the lack of even cost-of-living in- creases.)

Now let’s move to the twentieth century. The European Convention for the Protec- tion of Human Rights and Fundamental Freedoms from 1950 and the International Covenant on Civil and Political Rights of 1966 both avow that independent judges and open courts are necessities. In 1996, the new constitution for South Africa made the same commitments.

The Judgment of Brutus [or Brutus], Artus Quel- The Blinding of Zaleucus [or Zaleucus], Artus A fast summary of three points from the Quellinus, circa 1655, the west wall of the Tribunal. linus, circa 1655, the west wall of the Tribunal. past 500 years is in order. First, the role of Photograph copyright: Royal Palace Foundation Photograph copyright: Royal Palace Foundation of Amsterdam. Thanks to Professor Eymert-Jan of Amsterdam. the judge was once to be subservient. Sec- Goossens for help in obtaining this image and ond, public rituals were used to instill this permission for its reproduction.

Bulletin of the American Academy Winter 2009 51 Academy Meetings idea in both judges and public spectators. Third, over time public practices became a springboard for rights, as participants laid claim to procedural fairness, to democratic precepts, and as persons employed by the state grew to understand themselves as able to sit, independently, in judgment, even sometimes of the state itself. These ideas are reflected in constitutional texts that, time and again, link open courts and independent judging. As Jeremy Bentham explained in the mid-1800s, publicity was “the very soul of justice.” The judge, while presiding at a trial, was “on trial”– watched and assessed by an audience. From the baseline of politi- cal ideas in Renaissance Europe, that is a pret- ty radical endowment of authority in “we the people.”

With the enhancement of democratic norms Chart 1. Article III Authorized Judgeships: District, Circuit, and Supreme Courts: 1901, 1950, during the twentieth century, demands for 2001 adjudication have soared. Only within the last 150 years have all of us in this room be- come full “juridical persons,” recognized as rights holders, able to sue and be sued, to testify in court, to vote, to be members of all professions, and to sit in judgment as jurors and judges. Democracy has endowed us all with this new stature and new rights, en- abling new opportunities to bring claims to court. One way to capture this point is to look at the growth in life-tenured federal judges. In 1901, as we see in Chart 1, author- ized life-tenured judgeships in the federal system numbered just over 100 around the entire United States. By 2001, that number had grown to more than 850.

But even that increase was insuf½cient to meet the needs. Judges, lawyers, Congress, Chart 2. Authorized Trial-Level Federal Judgeships in Article III Courts (nationwide, 2001) and the courts, working cooperatively, in- vented new kinds of judges for the federal system authorized through a variety of stat- ceedings before Article III, magistrate, or judges nor magistrate and bankruptcy utes. Two groups, magistrate and bankrupt- bankruptcy judges, a good estimate is that judges who work in federal courthouses. cy judges, do not have life tenure or guaran- about 100,000 such proceedings occur year- Instead, some are “administrative law teed salaries; instead, they are creatures of ly throughout the United States. judges” (aljs) chartered under the Admin- statutes and given ½xed and renewable terms. istrative Procedure Act and others may be In contrast, consider the volume in federal First chartered in 1968 and 1984 respectively, hearing of½cers who can be general employ- administrative adjudication. From available their numbers also have grown such that by ees of a particular agency. Their number data on proceedings in four federal agencies 2001, together they too were about 850, and (more than 4,700 as of 2001) far outweighs –Immigration and Naturalization Services, thus a cohort of a size comparable to the the 1,600 plus, which represents the com- the Social Security Administration, the Board trial level life-tenured judges (see Chart 2). bined set of magistrate, bankruptcy, and of Veterans Appeals, and the Equal Employ- Article III judges (see Chart 3). All of these judges are a vital part of activi- ment Opportunity Commission–we esti- ties in every federal courthouse around the mate that more than 700,000 evidentiary At this, the beginning of the twenty-½rst United States. Taking as one measure the hearings occur yearly. Who are the judges century, we in the United States have many times when witnesses testify orally in pro- for those proceedings? Not life-tenured documents making textual commitments to

52 Bulletin of the American Academy Winter 2009 Academy News

pay no attention or too much attention to courts. Some issues (sex offenders, for ex- ample) are singled out and become major vehicles of education about “the courts.”

Much more needs to be said but it is time to conclude. To do so, I want to pick up a theme introduced by Justice O’Connor. Texts like Article III of the U.S. Constitution, state con- stitutions, the South African Constitution, or the International Covenant on Civil and Political Rights are terri½cally important, yet none is suf½cient to create judicial inde- pendence. The challenge is building a cul- ture of commitment to independent judges, and then spreading it from our most visible federal and state judges to those other judg- es working in less visible, but incredibly im- portant settings–where, in fact, the bulk of the adjudicatory procedures in the United States takes place. Chart 3. Numbers of Authorized Judgeships in Federal Court Houses and in Agencies (as of 2001) My own view is that both courts and legisla- tors should insist on public processes as part independent and impartial judging and to judicial elections. In the case of judicial ap- of the structural protections for all these open and public courts. Yet hundreds of pointments, some groups try very hard to in- kinds of judges. Our law ought to reflect thousands of federal agency proceedings do fluence those decisions as well. Several or- that judges can’t be reassigned or ½red, nor not occur in large public buildings, but in of- ganizations are famously involved–the Na- should we support provisions that permit ½ce buildings that are neither inviting to tional Council of Manufacturers, the Cham- them to hear witnesses and render judgments street traf½c nor easily located even by those behind closed doors or to outsource and de- in search of attending. Moreover, we have Our law ought to reflect volve their work to closed settings. Of course, had examples of “judges” (such as those who privacy concerns may be brought to bear but staff the immigration courts) reassigned that judges can’t be reas- we should reject a general presumption that when their bosses in the Department of Jus- the public be excluded. tice appeared not to like some of the deci- signed or ½red, nor should sions that they were making. We need to nurture the public dimensions we support provisions that of adjudication because they are part and In shifting business away from life-tenured parcel of judicial independence. Judges have judges to administrative judges, Congress did permit them to hear witnes- (appropriately) substantial powers, disci- not provide and the Supreme Court has not plined and legitimated through their obliga- (yet) insisted that the rights we associate with ses and render judgments tions to do a great deal before the public eye judges–open trials, public access, robust in- behind closed doors or to and to explain their judgments. Indeed, ad- dependence–go all the way down the judi- judication is itself a democratic practice cial food chain to lower echelon judges work- outsource and devolve their shaping our understanding of government. ing in these lower echelon administrative Participants are required to treat each other courts. And we can see that this lack of pro- work to closed settings. with dignity and respect, and members of tection matters. Judges are no longer flayed ber of Commerce, the Federalist Society, and the public, as an audience, can be engaged alive but they have been reassigned or ½red. the American Trial Lawyers. Thus, we need observers, sometimes moved to seek to Further, focusing only on the risks to judges to understand that a variety of different as- change laws or procedures given what they coming from the executive or legislative sociations, ngos, and the like could be ei- have seen. branch misses an important development ther friends or foes of judicial independence. In sum, and as I argued in the Dædalus vol- during the twentieth century. “Repeat play- Another shift over the twentieth century has ume that this symposium celebrates, we er litigants”–from the Department of Jus- come from the media whose powers have have many judiciaries. By pluralizing the tice to corporations and interest groups– been ampli½ed through technological devel- concept, we can take all of “our” judges into focus on courts and on how to affect selec- opments. Media have a huge impact on our account. We need them to be independent tion processes. Some of them contribute knowledge about courts; many judges and because we are very dependent upon them. enormous sums to campaigns when there are lawyers complain about how various media

Bulletin of the American Academy Winter 2009 53 Academy Meetings

ads, and questionnaires. The people who are The most expensive election occurred in bringing this about want to make courts ac- Alabama, where the two opponents togeth- countable to interest groups and partisans er raised a total of at least $3.8 million; this instead of the law and the Constitution. ½gure, too, will probably climb. A group Justice O’Connor has described them as be- based in Virginia–not in Alabama–wanted coming political prize ½ghts, and I think that to influence that election so it put in another is very apt. $800,000 of its own on behalf of one of the candidates, who I believe won in a squeaker. Since 1999, state supreme court justices, for So, according to what we are hearing, that example, have raised in excess of $150 mil- influence may well have been decisive. lion, often from the very people who appear before them in court. Fifteen states have smashed their spending records. tv ads are Voter turnout in judicial threatening public con½dence in impartial Bert Brandenburg courts. Questionnaires that judges receive races is often very low, and, on the campaign trail on hot button issues, Bert Brandenburg is Executive Director of the Jus- therefore, voters are easily like abortion and same-sex marriage, essen- tice at Stake Campaign. He was director of public tially seek to intimidate judges into comply- affairs and chief spokesperson for the Department swayed by pressure and ing with political demands: check-the-box of Justice under Attorney General Janet Reno. justice, as it were–Are you with us or are you partisanship. against us? Voter turnout in judicial races is often very low, and, therefore, voters are easi- As I mentioned, $17 million was spent on tv What I would like to do is give you a ly swayed by pressure and partisanship. For ads in this year’s campaigns, some of which quick guided tour (and ½ll out a little bit of example, two years ago in Dallas County, we can see now. [Editor’s Note: Brandenburg what Justice O’Connor was beginning to Texas, 19 Republican judges were turned out played several TV ads for state judicial races. The talk about) of threats to our state courts in simply because they had an R by their name text of those ads is included below.] particular. They, of course, are our work- and it happened to be more of a Democratic [From Wisconsin] houses, for all the glamour that the federal Party year. courts and rock stars like Supreme Court Meet Mike Gableman. He wanted to be a Public con½dence is ebbing. Three in four judge, but he had a few problems. Burnett Americans believe that these campaign con- There is now a new politics County needed a judge, but Gableman tributions influence judges’ decisions; 80 lived 290 miles away. An independent of judicial elections featuring percent of business executives agree. Even panel recommended two ½nalists, but he scarier to me is that nearly half of state judges didn’t make the list. He even missed the money, ads, and question- agreed with that statement–that campaign application deadline. But weeks before the contributions are affecting decisions in the naires. The people who are selection, Gableman hosted a fundraiser courtroom. In addition to the fear of what for Governor Scott McCallum and gave this does to justice and the judges’ decisions, bringing this about want to him $1,250. Guess who McCallum picked? it has a palpable effect on the quality of can- Gableman. Tell Mike Gableman we need make courts accountable to didates who are willing to run if races are higher ethical standards for our judges. going to be this way. interest groups and partisans [From Wisconsin] So what happened in 2008? I would say it’s instead of to the law and been another tough year. In states that elect Unbelievable. Shadowy special interests the Constitution. their supreme court, we saw 23 seats contest- supporting Lewis Butler are attacking ed in 13 states, and the ½nal pre-election dis- Judge Michael Gableman. It’s not true. closures (a ½gure certain to go up as we get justices get. State courts handle something Judge, district attorney, Michael Gableman in more reports) showed that the candidates like 98 percent of our legal proceedings in has committed his life to locking up crimi- had raised in excess of $29 million. That’s America, and more than 85 percent of our nals to keep families safe, putting child almost identical to the ½gure raised at the state judges in America have to face an elec- molesters behind bars for over a hundred same point in 2006. Estimated spending on tion of one kind or another, either a compet- years. Lewis Butler worked to put crimi- tv ads, which are becoming the way you itive election against an opponent or a re- nals on the street, like Rubin Lee Mitchell, now run for state supreme court, totaled $17 tention race in which a judge can be either who raped an 11-year-old girl with learn- million, a little bit more than 2006 (that is, kept or ½red. And these judicial elections, ing disabilities. Butler found a loophole. by the way, thanks to almost $5 million that which used to be relatively tame, are under Mitchell went on to molest another child. was spent on state supreme court ads in just growing pressure. There is now a new poli- Can Wisconsin families feel safe with one week on the run-up to the 2008 election). tics of judicial elections featuring money, Lewis Butler on the Supreme Court?

54 Bulletin of the American Academy Winter 2009 Academy News

[From Alabama] In politics, information is the lifeblood of ing on two of the ½ve superior-court races what a voter needs to make an informed there exceeded $500,000 for circuit-court Here, outside Washington, D.C., there’s a choice. But in terms of educating the public, seats. bank account with half a million dollars given how low-pro½le these races are, and One other interesting trend worth noting is from the likes of the gas and oil industry. given how little information people have that the voters in a few counties around the That money is paying for the ad you see when they go to vote, if these ads are the United States had a chance to vote on a dif- here. Should we have judges like Greg mainstay of the diet, they’re the equivalent ferent way of selecting judges. Merit selection Shaw? It sounds nice, but the half million of what French fries are to nutrition in terms and retention systems–a screening commit- dollars paying for it doesn’t come from of the ability to make an informed choice. tee up front and then retention elections on Alabama. So when you see the ad, ask We saw examples this year of special-inter- the back end–which many states have, are yourself, “What do the likes of the gas and est support itself becoming a core issue in often seen as a desirable alternative to the oil industry want from our court?” judicial elections. Chief Justice Taylor, de- Wild West of contested elections. But they’re scribed as the “sleeping judge,” lost his elec- [From Michigan] very hard to enact from a political stand- tion, which came as a surprise. Part of his point. They cut against the populist grain: Newspapers call Diane Hathaway unqual- defeat was attributed to a different set of ads America does like to elect its judges. Signi½- i½ed for the Supreme Court. Remember attacking him for being too close to business cantly, perhaps in reaction to what’s been the low sentence Hathaway gave a sex interests. I would add as well that I’ve heard going on over the last decade, we saw several predator that targeted a minor? There’s credibly that the allegation that he fell asleep counties this year embrace merit selection, more. Hathaway gave probation to a man in the courtroom may well be a lie. (The ad who was arrested in camouflage paint in one case rejecting an effort to do away while carrying a loaded AK-47. His web with it, in other cases actually enacting it in page praised terrorists and declared his What we see increasingly is very conservative counties in Missouri and own personal jihad. Probation for a terror- that the courts are vulnera- Alabama. ist sympathizer? We’re at war with terror- What was also signi½cant this year, compared ists. Diane Hathaway, out of touch. ble to whatever the political with two years ago, was what was not on the [From Michigan] wind of the year is. ballot. There were no statewide referenda aimed at weakening the courts or compro- One story’s a fairy tale, the other’s a night- mising them as fair and impartial arbiters. mare. The fairy tale, Sleeping Beauty. The was a reenactment.) And if that is indeed There was a proposal two years ago in South nightmare, the sleeping judge, Cliff Taylor. the case, we may have someone who was es- Dakota called Jail for Judges, which essential- Judge Taylor fell asleep several times in sentially ousted because of what somebody ly would have done away with judicial im- the middle of our argument. How could could make up and put on a television ad. munity, destroying the ability of any judge he judge based on the facts when he was The chief justice in Mississippi lost his seat to be able to do his or her job and not be sued asleep? Taylor was voted the worst judge this year for being tied to business interests for making a decision. It was defeated deci- on the state supreme court and fellow as well, and the justice in West Virginia who sively two years ago, and we were pleased to judges called for an investigation of Taylor you saw in the last ad also lost in the primary see it has not come back, because the public for misconduct and abuse of power. The because he was linked to a particular business rejected it so decisively. sleeping judge, Cliff Taylor; he needs a executive he vacationed with in the French wakeup call. Riviera. These photos came out and his ca- Looking ahead to the next cycle, two years reer was over. from now, there will be more meltdown con- [From West Virginia] tests. Candidates from 16 states are sched- What we see increasingly is that the courts uled to contest 35 supreme court seats; in 10 On the French Riviera, where the rich and are vulnerable to whatever the political states there will be multiple races, with sev- famous play, Spike and Don spent a very wind of the year is. What happened in Dal- eral justices up at the same time. We usually pleasant day. While together, the time las County, Texas, two years ago just hap- see this as a signal that interest groups will they were spending, a matter of millions pened again in Harris County, which is where get more value for their dollar if they jump in court was pending. Now, when Massey Houston is. Twenty-two out of 26 experi- in. There is, however, growing interest in ½rst won their appeal, it was Spike’s vote enced, Republican circuit-court judges were measures to address the problem. I men- that sealed the deal. Justice is blind, but swept off the bench because of a straight tioned merit selection; several states are you can see Spike showed bad judgment in ticket Democratic vote. We are also seeing looking at moving there. In addition, any hearing this plea. Spike has recused, but signs that the runaway spending that we state that elects judges can consider public what will it take for the justice himself to track mostly at the state supreme court level ½nancing of their judicial races so that judges admit his mistake? You decide how this is continuing to trickle down to more local don’t have to dial for dollars from the people story ends. Is justice for all or just between judicial races. We’ve heard one report that who are going to appear before them. There’s friends? in Los Angeles, for example, combined spend- also growing interest in recusal as a possible

Bulletin of the American Academy Winter 2009 55 Academy Meetings solution. Nonpartisan voter guides can help However, one only needs to repeat the phrase people get the information they need to make again to see the corresponding danger with the kind of nutritious choice I mentioned judicial independence. That is, we want our before. And campaign conduct committees judges to be guardians of the law, but what if can help temper some of the campaign con- they act outside the law? Then we become a duct that judges feel increasingly pressured government of men again–not the popular, to engage in, or that interest groups inflict elected men, but rather the men and women on some of these races. who inhabit the judicial role. That’s what complicates the discussion, a discussion I will close by echoing what’s becoming a we’ve had since the beginning of the Repub- theme here in terms of the importance of lic. Public criticism of judges has endured independent courts. Courts can only be im- over many centuries, starting with the presi- partial if they are suf½ciently independent. dency of George Washington and coming to The American people, just as the framers of even this last Congress. Many painful exam- the Constitution, want judges to be indepen- Viet D. Dinh ples in the last decade or so tend to suggest dent and accountable. This is always messy Viet D. Dinh is Professor of Law and Codirector that ours is a new phenomenon of attacks on and complicated because, as Justice O’Con- of the Asian Law and Policy Studies Program at judges, yet one only has to look to a few pages nor described, everyone has different de½- Georgetown University Law Center. of history to see that this phenomenon has nitions of independence; Roy Bean had his a long vintage. And despite all that, we can own. There are different de½nitions of ac- be optimistic because, after all, our republic countability at work, too. We know we want thrives and our judiciary survives. But our judges to be accountable, but to whom are I will end our discussion by returning to job to do today, and I hope enduringly, is to they accountable? The risk is that they won’t what Justice O’Connor started with, namely help our judges make sure that we are indeed be accountable to the law and the Constitu- the essence of judicial independence and a government of laws and not of men. tion; that the pressures building up on them why it is so important in our constitutional will make them accountable instead to par- structure. The de½nition of the rule of law Since one sees the double edge of judicial in- tisans, interest groups, and special-interest in our country, that we are a government of dependence, one cannot exclude public crit- pressure. I don’t expect the Academy neces- laws and not of men, has often been repeat- icism of judges altogether. Rather, one wants sarily to take up this issue at its 1932nd meet- ed since Marbury v. Madison. Justice Marshall to channel constructive criticism into im- ing. I hope, though, it won’t be another 2,000 proving the work of judges and thereby mak- meetings before you come back to this, be- The essence of the role of ing more robust the form of independence cause it’s absolutely true, as has already been judicial review and the judi- that we want to protect–that is, indepen- said, that the life of the courts depends upon dence from external factors, but faithfulness strong support and people standing by them, ciary is to ensure that ours is to the Constitution and the role of judges. even if they disagree with the courts’ deci- Chief Justice William Howard Taft put it sions. This country has had a rather good a government of laws and this way: “Nothing tends more to render run in that regard. However, as we have seen judges careful in their decisions and anx- overseas, without vigilance that support can not of men. iously solicitous to do exact justice than the erode. consciousness that every act of theirs is to borrowed the de½nition from the Massachu- be subject to the intellectual and intelligent setts Constitution. There’s a much lengthier scrutiny of their fellow men and to their derivation from ancient times, but one can candid criticism.” The question, then, is see that that is the essence of the role of ju- how do we determine what is valid criticism dicial review and the judiciary: to ensure and what are invalid threats to judicial inde- that ours is a government of laws and not of pendence? I’ll explore this by asking three men. When one looks at the phrase, one sees questions: How are judges criticized? Why immediately why we need to protect the in- are they criticized? And by whom are they dependence of judges: So that they are not criticized? subject to the external pressures of men and women and the rest of our population. And First, the how. I hope it is commonplace, or so that our Constitution and the law are the at least generally agreed, that verbal assaults, ultimate safeguards of our liberty, not just the personal attacks, ad hominem invectives are whims and passions of any particular move- out of bounds. We can criticize, but at the ment or temporal majority–what Madison same time one has to recognize that simple called tyranny of the majority. That’s what but effective communication of valid criti- the Constitution is there to protect. cism is constructive. Once you take out the

56 Bulletin of the American Academy Winter 2009 Academy News illegitimate forms of criticism–which, un- that it bespeaks an incorrect judicial frame- cause judges would change their ways–I fortunately, make up the majority of the criti- work? Even then I do not think it is valid to think judges, lawyers, and scholars recog- cism that we see today–the real issue then launch a public campaign on that type of er- nize that those forms of criticism are illegit- becomes the why of people’s criticism of ror because that’s exactly why the political imate–but because over time, if repeated judges, not necessarily the how. I think that checks on the judiciary are there–the nomi- and if repeated effectively, those illegitimate if we accomplish nothing more, if we elimi- nation and con½rmation processes and all forms of criticism erode public con½dence nate from the public discourse those out-of- of the other types of checks that are in our in the judicial role and, more insidiously, bounds forms of communication we have Constitution. One can indeed have a valid affect the way judging works because it’s no gone a long way. But the intellectual conver- debate about the jurisprudential framework; longer independent of the general political sation continues. mine happens to be that text, history, and process. structure should be the sole criteria for deci- What is a valid criticism? I think in this re- sions related to judicial decision-making. More directly, however, the kind of criticism gard one has to consider for what exactly Others–many of my colleagues in the acad- to which judges respond and the real, imme- we are criticizing judges. Are we criticizing emy–disagree with that, looking for more diate threat to judicial independence comes judges simply for being wrong in a particu- expansive sources of interpretation. That is not from the mass media or from the general lar case? Is that valid in a way that should a valid intellectual debate; that is not cause population, but rather from political and le- begin a general public discourse? Think, for for personal attacks upon judges. gal elites because they know how to criticize judges where judges hurt. They know how The kind of criticism to When, then, is criticism of the judiciary and to make arguments and couch them in terms judges valid? For what reasons? I think at of judicial activism, in terms of the lack of which judges respond and some point judicial decision-making can be fealty to the judicial role, or in terms of fail- so far out of bounds (this is a rarity) that it ure to follow the Constitution. We elites (I the real, immediate threat calls into question the judge’s fealty to his do not mean that pejoratively) know how to to judicial independence judicial oath–in essence that he has failed criticize judges in ways that are designed to the judicial role and the exacting standards be effective, we hope, in forcing them to comes not from the mass of judging. That kind of action, which threat- change their behavior. It is that type of criti- ens the structure of our government and un- cism that brings the greatest danger to judi- media or from the general dermines the limited role of the judge (so cial independence, to the actual indepen- that we ensure that we are a government of dence of the judges and how they decide population, but rather from laws, not of men), deserves criticism. When cases, because it comes with that kind of political and legal elites judges act outside of their role and respond elite criticism by scholars, lawyers, sena- not to their internal intellect and their fealty tors, and presidents and is an implicit threat because they know how to the law, but rather to external pressures that the judge may not be elevated to the of whatever type–monetary, political, or next judicial position if they so desire, or in to criticize judges where even personal policy preferences–in those the extreme, may be censured or impeached. rare cases, criticism is not only valid, but is I think that type of elite criticism has a much judges hurt. demanded of the political process and of an greater effect on the everyday behavior of engaged democratic polity–which leads to judges simply because it hits judges where example, of Judge Baier’s famous decision the question of criticism by whom. they hurt most. with respect to the Fourth Amendment search and seizure that was of such celebrat- Unfortunately, many missteps come from In our failure to activate these reforms lies ed controversy a decade-and-a-half ago. I criticism by the mass media and the general the greatest danger, both in terms of actual think that kind of criticism is not valid for population. I think you can tell from Bert’s threats to judicial independence and also the type of public discourse in which democ- representative ads that legal concepts, the residual threats to the legitimacy and re- racy should engage. That’s exactly what the question of the judicial role, and the juris- spect that the judiciary rightly should hold appellate process is for, in order to ensure prudential framework of a judge are not con- in our constitutional Republic. that mistakes, if made and upon recognition cepts that are easily communicated through that they were made, will be corrected in due mass medium and through general, popular course by the litigants and other judges, or political activism. Rather, results are com- in Judge Baier’s case, by the judge himself municated, and the population simply fo- once he recognizes the error in law. cuses on what I consider to be illegitimate reasons for criticizing a judge or a decision– What about if a decision is not only wrong for example, simply because it is wrong or with respect to a particular case, but so you disagree with the result. That type of wrong that one would consider it to be out mobilization carries with it a signi½cant of jurisprudential bounds–that is, so wrong danger of thwarting the judicial role, not be-

Bulletin of the American Academy Winter 2009 57 Academy MeetingsNews

Sandra Day O’Connor We have learned through the years that I hope that the American Academy of Arts perhaps there’s a better way to select state- and Sciences will maintain some kind of in- My perspective over the years on judicial court judges, and that is to return to an ap- terest in this issue, because it matters. The elections is that, at the federal level, we have pointive system, probably headed by the judicial branch is a critically important a process that works fairly well: the President governor, who gets suggestions for nomina- branch, and we want to have all of our courts nominates the federal judge, and the Senate tions from a chosen committee. States that staffed by judges who are decent and honor- gets to conduct what inquiry it wants to con- have turned to that kind of system have able. The question is how are we going to duct. In the case of Supreme Court justices, tended to set up a statewide commission, get it, and I thank you for listening and be- it turns out to be quite a show. We see it on comprised of a number of citizens of that ing part of ½nding the answer to that ques- national television, and there are days of state and sometimes including lawyers tion. questions that go on. But that’s an excep- (sometimes not), that receives applications tional court and an exceptional situation. from people who would like to be a judge. Most federal judges at the district-court The commission reviews applications, in- level, and even at the appellate-court level, terviews the applicants, considers carefully © 2009 by Richard L. Revesz, Martin are not subjected to the same degree of the quali½cations, and then provides a list Lipton, John Sexton, Sandra Day questioning. of people that the commission thinks are O’Connor, Linda Greenhouse, Judith quali½ed for appointment should the gover- Resnik, Bert Brandenburg, and Viet D. The judicial branch is a nor choose to make an appointment. That’s Dinh, respectively a pretty good system. Most systems like this critically important branch, involve setting up periodic elections, which ensure that judges at the state level all serve and we want to have all of for a term of years. (No state provides for lifetime appointment of judges.) At the end our courts staffed by judges of a term, many of the states that allow ap- who are decent and honor- pointment of state judges then let the judges’ names go on the ballot to give voters a chance able. The question is how to determine whether or not they want to are we going to get it. retain a judge. As a voter you need to have a little informa- tion about the judge, and some states have I am more concerned with what is happen- done something that I think is quite helpful, ing in the various states. As I told you at the gathering information year in and year out outset, the framers of the Constitution met in the courtrooms from all of the people who and tried to ½gure out a better form of gov- were in contact with the judge. Every juror, ernment, and they did: I have to say I think every litigant, every witness, every person we have been very blessed in this country in the courtroom is invited to ½ll out a form with what they designed. They did not envi- and leave it with the bailiff at the court, not- sion the election of judges; judges were ap- ing the things that the person wants to note pointed. And every one of the colonies, later about the judge. Was the judge polite? the states, followed a similar pattern. They Courteous? Did the judge appear to know provided for appointment of judges at the the law and communicate it well? Were state level with some kind of con½rmation there problems and, if so, what? These ma- process in the legislature or other scheme as terials are collected over a period of time, they devised it. It wasn’t until President An- and then at the time of a retention election drew Jackson came on the scene that states an election of½ce tabulates all of this. They began to move to a system of electing state also include evidence of disciplinary proceed- judges. Jackson had some populist tenden- ings, if any, that might have been brought cies, I think, and he tried to spread them against the judge. This seems to work pretty across the country. well because the voters then have some ba- sis on which to make a fair judgment. I think we’d be better served if more of our states would use a similar system.

58 Bulletin of the American Academy Winter 2009 Academy Meetings Image © Charles Smith/Corbis. The Invisible Constitution and the Rule of Law

Laurence H. Tribe, Frank H. Easterbrook, and Geoffrey R. Stone Diane P. Wood, Moderator This panel discussion was given at the 1932nd Stated Meeting, held in collaboration with the Chicago Humanities Festival on November 8, 2008, at Northwestern University School of Law.

The theme of this year’s Chicago Humani- Laurence Tribe addressed this question, as ties Festival is “thinking big,” and we have well as many others, in his recently released planned an interesting panel discussion on book, The Invisible Constitution. He is the Carl the big idea of the rule of law. I thought that M. Loeb University Professor at Harvard I would begin with a word about the rule of Law School, where he has taught since 1968. law. In recent years, there has been a much Before joining Harvard’s faculty he served more searching discussion about this con- as law clerk to Justice Matthew Tobriner at cept than ever before. What does it really the California Supreme Court and to Associ- mean? Some people think it has both a sub- ate Justice Potter Stewart at the United stantive and a procedural component. From States Supreme Court. He also directed the a substantive standpoint, a society that re- Technology Assessment Panel at the Na- spects the rule of law is one in which open tional Academy of Sciences. His scholarly Diane P. Wood and transparent laws are applied impartially works are far too numerous to list, but they and equally to everyone. From a procedural include, in addition to the book he will be Diane P. Wood has been a Judge of the U.S. Court standpoint, the rule of law requires what discussing today, such publications as Abor- of Appeals for the Seventh Circuit since 1995. A for- Americans tend to call due process; that is tion: The Clash of Absolutes and God Save This mer professor of international legal studies, Associ- to say, the right to the opportunity to be Honorable Court: How the Choice of Supreme ate Dean at the University of Chicago Law School, heard before an impartial decision maker. Court Justices Shapes Our History. Professor and Deputy Assistant Attorney General in the An- You can ½nd de½nitions in many places, but Tribe also has had a distinguished career as titrust Division of the U.S. Department of Justice, the ideas remain constant: no one is above an advocate before the Supreme Court; he she is now a Senior Lecturer in Law at the Univer- the law; all citizens have certain obligations has contributed frequently to congressional sity of Chicago Law School. She has been a Fellow and certain rights. Our panel will begin by hearings; and he has served as a consultant of the American Academy since 2004. considering where the rule of law ½ts within to the drafters of many constitutions around our broader constitutional structure. the world.

Bulletin of the American Academy Winter 2009 59 Academy Meetings

Following Professor Tribe will be Chief Judge Returning to Professor Tribe, in the preface ping on his conversation did not invade any- Frank Easterbrook of the United States Court to The Invisible Constitution, he states that thing. Moreover, the law had previously es- of Appeals for the Seventh Circuit. Chief much of what we understand as part of the tablished that, in order to have a search or Judge Easterbrook began his distinguished Constitution does not appear in so many seizure within the meaning of the text of the legal career as a law clerk to Judge Levin words in its text. In fact, he compares it to Fourth Amendment, you must have a physi- Campbell of the United States Court of Ap- the Dark Matter that holds the universe to- cal invasion of a constitutionally protected peals for the First Circuit. He then joined gether. So it is my privilege to turn the floor place. In overruling those decisions requir- over to Professor Tribe so that he can explain ing physical invasion, the Court stated that to you exactly what he means by that and what Mr. Katz was trying to exclude when he A society that respects the how it relates to the rule of law. went into that transparent telephone booth rule of law is one in which was not the unwanted eye but the uninvited ear and that it was a violation of his justi½- open and transparent laws able expectations of privacy that made this are applied impartially and a search and seizure. The problem the Court confronted was how equally to everyone. to decide what expectations of privacy are justi½able. If it is a descriptive rather than a normative matter, you could have the gov- the Solicitor General’s Of½ce, where he ernment putting up billboards everywhere served ½rst as an Assistant to the Solicitor saying “Big Brother is listening, watch out.” General and later as Deputy Solicitor Gen- There was only a single line in the opinion– eral of the United States. In 1979 he became I tried to persuade Justice Stewart and the a member of the faculty of the University of Court to expand this discussion–that hinted Chicago Law School, where he was named that you don’t ½nd these justi½able expecta- the Lee and Brena Freeman Professor of Law, tions of privacy in the Fourth Amendment and where, like me, he continues to teach Laurence H. Tribe but rather in something that surrounds it, today as a Senior Lecturer in Law. He, too, indeed in the First Amendment. The Court has a lengthy and wide-ranging list of publi- Laurence H. Tribe is the Carl M. Loeb University said that in a society that has come to rely cations and has written extensively in the Professor at Harvard Law School. He has been a on the ubiquitous role of electronic commu- ½elds of antitrust and corporate law, coau- Fellow of the American Academy since 1980. nications, through the telephone in this case, thoring The Economic Structure of Corporate freedom of expression would be unduly Law with Professor Daniel Fischel, and Secu- shrunk if people knew that Big Brother rities Regulation. From 1982–1991 he was an It is a privilege and a pleasure to talk with might overhear anything they said on the editor of the Journal of Law and Economics. you about my book and about how some of its themes relate to the rule of law. A number telephone. That is what made the expecta- Finally we turn to Geoffrey Stone, the Ed- of friends have asked me how long I have tion of privacy in this case justi½able. So it ward H. Levi Distinguished Service Profes- been working on this book. I would love to was a matter of connecting the dots between sor at the University of Chicago Law School, have said “Oh, just a few months,” but the the Fourth Amendment and its protection where he has been a member of the faculty truth is about forty years. In the meantime, of people, places, effects, and houses, and since 1973. Over the years, Professor Stone I have published a treatise on the American the First Amendment and its protection of has served as both Dean of the Law School Constitution as well as other books and arti- freedom of expression. and Provost of the University. Before com- cles, helped write a number of other consti- I hadn’t really generalized that into a method ing to the Law School, he clerked for Judge J. tutions, and argued a number of cases, but –I was only 25 at the time. I have been work- Skelly Wright of the United States Court of this book has been on my mind from the ing on it for a while since, but what I have Appeals for the District of Columbia Circuit, time I began clerking for Justice Stewart at come to think is that much of what is in the and then for Associate Justice William J. the Supreme Court. Constitution can be best understood only Brennan, Jr. of the United States Supreme by connecting the dots between provisions Court. Professor Stone also has many books Katz v. The United States, the case involving like the First Amendment and the Fourth to his credit; he has focused primarily on electronic eavesdropping on someone in a Amendment, looking at the lines between constitutional law and the First Amendment. telephone booth, which was decided in 1967, them, connecting those lines, in turn, with Most recently, he has authored Top Secret: triggered it all for me. The government’s ar- the provisions protecting liberty generally, When Our Government Keeps Us in the Dark; gument stressed that the telephone booth forming the resulting triangle, and looking War and Liberty: An America Dilemma; and was transparent, so anyone could have seen at the geometric structure of the Constitu- the award-winning Perilous Times: Free Speech what the individual involved was saying. tion. I call that the Geometric Method of in Wartime from the Sedition Act of 1798 to the Someone could have read his lips. Since he Constitutional Construction. War on Terrorism. wasn’t seeking privacy, electronic eavesdrop-

60 Bulletin of the American Academy Winter 2009 Academy News

There is also something that I have come to ods of the system. In other words, the system me too much discretion,” to which the re- call the Geological Method. That is, if you cannot fully describe all that is true within sponse of the Senate Judiciary Committee ask why the Fourth Amendment protects it, and I think no ½nite document can fully was, “It’s not up to you to erase from the justi½able expectations of privacy in some describe within its terms everything that Constitution something that you think is places more than others, for example in a one would need to know about its meaning. dif½cult to understand.” It may sound laugh- home, you are inevitably drawn to conclude able but the judge was brilliant and had a that it is because the Constitution presup- Much of what is in the Con- point. In some ways it was unfortunate that poses an important value in the autonomy his views were caricatured, but I do think of what goes on within the home–of course, stitution can be best under- that he missed the point that everything in not absolutely. One could beat someone up the Constitution, however hard to read, has inside the home and thereby trigger a power- stood only by connecting the to be taken seriously, even if it tells you that ful public interest, but unless there is some there is stuff out there in the Dark Matter special sanctity to the substance of what dots between provisions like that is not speci½ed in the language of the people do consensually in private within the First Amendment and document. their homes, it makes relatively little sense In addition to meta-principles, there are to have the procedural protections of the the Fourth Amendment, particular principles that most of us take to Fourth Amendment. One digs beneath the be constitutionally fundamental, such as textual protection of persons and homes looking at the lines between the principle of one person, one vote. They against unreasonable search and seizure by certainly cannot be derived in any meaning- what I have come to call the geological meth- them, connecting those lines, ful way from the language; rather, they im- od that looks at the underlying presupposi- in turn, with the provisions plement underlying values of participatory tions and foundations of what is in the writ- democracy that the Constitution, as a whole, ten rule of law. protecting liberty generally, is thought to contain. The Equal Protection Now, the choice between, on the one hand, forming the resulting triangle, Clause, for example, is a rather unlikely the geometric method, the geologic method, home for the one person, one vote principle, and several others that I describe in the book and looking at the geometric especially when you apply it to the House of and, on the other hand, a more constrained Representatives of the United States, where linguistic approach in which one looks at structure of the Constitution. the principle of equi-populous districts cer- the plain meaning of the rules in black and tainly cannot be derived from the Fourteenth white as written in the Constitution is not There are at least two sets of constitutional Amendment’s equal protection clause since left entirely to the imagination because part principles that in this sense are necessarily it applies only to the states, not to the fed- of the text is a provision telling us that the invisible. First there are what I would call eral government. Nor can it plausibly be de- text is not all there is. The Ninth Amend- meta-principles: principles about how to rived from the Due Process Clause of the ment says that the enumeration of certain read the rest of the document. The Ninth Fifth Amendment. Justice Hugo Black in rights in the Constitution shall not be con- Amendment is the primary example in the Wesberry v. Sanders purported to derive it strued to exclude the existence of other Constitution itself. It says that the enumera- from the language essentially stating “the rights reserved to the people. Here is an im- tion of certain rights shall not be construed Congress shall represent the people.” On portant reminder that what you see on the in a certain way; it is a direction to you, as that basis, you might say that there is a tex- face of the written document is by no means the reader, whether you happen to be a judge tual basis for the principle of one person, all there is. It is a way of saying there is more like Judge Wood or Judge Easterbrook, or a one vote, but you would be fooling yourself. here than meets the eye. Even if that language scholar like Geoffrey Stone or me, or an or- There is nothing in that language, or plausi- were not there, I argue that any ½nite docu- dinary citizen, a member of Congress, or a bly inferable from it, that leads you to the ment purporting in a purposive way to chart member of the executive branch. Anyone rule of one person, one vote. The rule is le- a course for a nation through imposing cer- who has taken an oath to uphold the Consti- gitimate solely because it is plausibly con- tain rules and constraints and constituting tution is instructed about how to read it, tained in the invisible Constitution. certain institutions is inherently incomplete. and my ½rst claim is that no set of instruc- Take another example: the Anti-Comman- I draw an analogy to Gödel’s Incomplete- tions about how to read a document can be deering Principle that prevents Congress– ness Theorem in the ½eld of mathematical complete because if the Ninth Amendment even if it is acting within its substantive au- philosophy, in which–to reduce an incredi- says a certain thing, you might then ask, thority, for example, to regulate commerce bly brilliant and complicated issue to some- “Well, how are we to read that?” Judge among the states–from using that power to thing very straightforward and simple–it Robert Bork, when he was nominated to compel states to exercise their sovereign au- turns out that any axiomatic system that is the Supreme Court, didn’t do himself much thority to pass or to enforce certain laws, as rich enough to include even the elementary good with the Senate when he said, “Well, in the Brady Gun Control Law, which com- operations of arithmetic must include true the Ninth Amendment is a mere ink blot. I pelled local law enforcement of½cers to do theorems that are not provable by the meth- can’t read it. It’s too indeterminate. It gives

Bulletin of the American Academy Winter 2009 61 Academy Meetings background checks for the federal govern- minate her pregnancy, the conservatives, no There are particular prin- ment when people wanted to purchase guns. less hypocritically, said, “The Constitution When the Supreme Court in a ½ve-four de- doesn’t mention abortion; it doesn’t men- ciples that most of us take cision said that this action violated the Anti- tion birth control.” Of course it doesn’t! It Commandeering Principle, it was quite can- doesn’t mention states’ rights, either, or the to be constitutionally fund- did about the fact that it couldn’t locate that Anti-Commandeering Principle. principle in the text. Rather, it was, as the amental. They certainly The point of my book is to show that the in- Court put it, implicit in the tacit postulates visible Constitution is an equal opportunity cannot be derived in any of the Constitution. The liberals on the Court, mystery. It is not simply something that lib- who dissented from that decision and, in erals invoke when they want to protect re- meaningful way from the fact, accused the majority of making things productive freedom, or that conservatives up because there was nothing in the text language; rather, they im- invoke when they want to protect states’ that could justify the Anti-Commandeering rights. It is an intrinsic feature of any consti- Principle, were being hypocritical in ad- plement underlying values tution, and in particular one like ours, and a vancing that accusation because there is feature that we should be debating. of participatory democracy similarly nothing in the text that justi½es What are the fundamental core principles that the Constitution, as a The Ninth Amendment on which we as a nation agree? I think we actually agree that there are limits, not just whole, is thought to contain. says that the enumeration those speci½ed in the Constitution, on how far government can reach into the bedroom, ing of something like freedom of speech is of certain rights in the into your personal life, into the body. The desperately indeterminate. That is why the reason a decision like Roe v. Wade is so in- Court divides ½ve to four in cases like those Constitution shall not be tractably dif½cult and controversial is not striking down laws punishing so-called “flag construed to exclude the that the underlying right isn’t written down; desecration,” to take just one particularly it is, rather, that the task of deciding how controversial illustration. The text, in any existence of other rights much protection to give to the unborn, when event, commands the process of inferring concern for the survival of the unborn clash- something beyond the text, and that is my reserved to the people. es with the exercise of that underlying right, point about the Ninth Amendment. Here is an important is fundamentally and profoundly imponder- Surely, among the most basic of the postu- able. Some people maintain that, because lates not written down in the Constitution is reminder that what you the task is so dif½cult, it should not be per- our commitment to living under the rule of formed by courts; we should have a differ- law. You will hear from Judge Easterbrook see on the face of the writ- ent rule in each state; it should be up to the and perhaps others on the panel about the legislatures. But my book is not about the dif½culties inherent in elaborating that con- ten document is by no question of when courts should intervene. cept. As Judge Wood has already pointed means all there is. Even if we took courts out of the business out, it usually refers to broadly applicable altogether, we would have to remember that systems of predictable rules that are fairly the Constitution speaks not only to the judi- uniformly applied. That is one idea. Second, what amounts to an Anti-Commandeering ciary but also to the legislature. If you were there is the idea that the executive branch of Principle invoked by the liberals in the realm a lawmaker asked to pass a law that said the government is bound by the rule of law. of personal life. The principle that there are “Women cannot drink more than one glass That is an idea that is not necessarily implied limits on the ability of the government to of wine a week when they are pregnant be- by the ½rst idea but can be traced largely to take hold of your life and determine how cause there is a fetus inside,” you would the Magna Carta in 1215. Third, both the ex- you will lead it, what a woman may do with have to ask yourself, even if you were not ecutive branch and the legislature are bound her body when she’s pregnant, what we will acting under the shadow of judicial inter- by a principle of judicial review that was ar- do in terms of how we raise our children, is vention, whether such a law is consistent ticulated most powerfully in Marbury v. Madi- not stated in the Constitution, yet there tends with the underlying postulates of our Con- son. It is the idea that one needs an indepen- to be very broad agreement that it is a prin- stitution about the limits of government dent judiciary to put teeth in the way the ciple implicit in our constitutional order. intrusion into personal liberty. rule of law binds the government, although When the liberals relied on that principle in Now, many may object that, in sharp con- there are disputes about the degree to which decisions like Griswold v. Connecticut, involv- trast to the ideals of the rule of law, this pro- judicial interpretations should be binding ing the right to use birth control, or Roe v. cess of inferring structure is far too indeter- on the other branches. And the rule of law Wade, involving the right of a woman to ter- minate. Well, it is also the case that the mean- goes beyond these several dimensions.

62 Bulletin of the American Academy Winter 2009 Academy News

I want to close by suggesting a more positive and other rules for decoding. Anyone who dimension of the rule of law. One of my fa- lectures you about the “plain meaning” of vorite cartoons from The New Yorker maga- texts, including statutes and constitutions, zine shows people who look like they’re pil- is playing word games rather than engaging grims on what could be the Mayflower. Gaz- in thoughtful discourse. ing contemplatively at a distant shore, one It does not take a deep understanding of Wit- of them says to the other, “Religious freedom tgenstein and other linguistic philosophers is my immediate objective, but my long-term to see that meaning lies in how words are goal is to go into real estate.” The cartoon- heard by an interpretive community; no text ist’s “original intent” was probably to give is internally complete. For any modern in- a cynical inflection to the American dream terpreter of eighteenth-century texts, the and the Constitution’s project of securing problem of incompleteness is compounded the blessings of liberty to ourselves and to by the fact that the interpretive community our posterity. However, the hidden struc- Frank H. Easterbrook in which the words were recorded no longer ture of the cartoon’s caption, I think, lies exists. We don’t think or hear words exactly deeper: it lies in its recognition that nega- Frank H. Easterbrook is the Chief Judge of the like people in an agrarian community of 1787 tive liberty ultimately requires a positive edi- United States Court of Appeals for the Seventh did and thus cannot be con½dent that how ½ce of law, like the edi½ce of public law that Circuit and a Senior Lecturer at the University creates an institution such as private prop- of Chicago Law School. He has been a Fellow erty, and ultimately the edi½ce of public law of the American Academy since 1992. How can there be a rule of that creates the possibility of meaningful freedom. law if the Constitution has The title of this meeting, “The Invisible I explored that theme in 1989 with the help Constitution and the Rule of Law,” starts many invisible clauses, dis- of a very brilliant law student in an article we with the title of Professor Tribe’s new book,1 wrote together called “The Curvature of but the punch is in the “rule of law” portion. cernible only to judges, pro- Constitutional Space: What Lawyers Can The usual meaning of this phrase is decision Learn from Modern Physics.” He was prob- by rule announced in advance, and after an fessors, and other members ably the most impressive law student I have opportunity for a hearing on any material ever had and certainly the best research as- contested facts.2 How can there be a rule of of the legal elite? sistant. You might have heard of him; his law if the Constitution has many invisible name is Barack Obama. When he takes the clauses, discernible only to judges, profes- we hear words reflects their actual meaning. oath in January, it will be administered by sors, and other members of the legal elite? Still, we do know that, from the outset of another very brilliant former student of Then there is no law knowable in advance. our nation, the living interpretive commu- mine, John Roberts. I think the rule of law Isn’t it time to acknowledge that the Em- nity saw in the Constitution more than its will be a bit safer. peror has no clothes? The question brings words. They deduced from the supremacy to mind the doggerel: “Yesterday upon the of the Constitution over statutes that there stair / I met a man who wasn’t there. / He must be judicial review (which is to say that wasn’t there again today. / Oh how I wish a judge won’t take on faith other persons’ he’d go away.”3 view that their deeds are valid)–and I add, as does Professor Tribe, that every govern- Despite the strangeness of phrases such as mental actor must ensure that the Constitu- “invisible Constitution” or “unwritten Con- tion prevails over other competing sources stitution,” I agree with Professor Tribe that of law.4 The original interpretive commu- much of our Constitution is unwritten. In- nity deduced a system of intergovernmental deed, much of any writing is unwritten, be- immunities–states can’t tax federal enti- cause no text contains its own dictionary ties, nor can the federal government tell the states how to use their own powers. The en- tire understanding of political sovereignty 1 Laurence H. Tribe, The Invisible Constitution (Ox- lies in constitutional structure rather than ford; New York: University Press, 2008). in particular clauses.

2 See Antonin Scalia, “The Rule of Law as a Law of Rules,” University of Chicago Law Review 56 4 (1989): 1175. Frank H. Easterbrook, “Presidential Review,” Case Western Reserve Law Review 40 (1989–1990): 3 William Hughes Mearns, “Antigonish” (1899). 905.

Bulletin of the American Academy Winter 2009 63 Academy Meetings

But what follows from this? Surely not that popular with the majority. A judge can try And, for what it is worth, I can assure you if some important matters depend on struc- someone accused of shooting at the Presi- that judges have far too many cases to think ture rather than text, then judges today may dent without fear of removal if the judge deeply about any of them.7) impute new rules to the old text.5 One ought rules for the defendant–for fear of removal Before addressing the question of how the not to say “the Constitution contains the would make it impossible for the accused to Dark Side of Tenure is best controlled, I word ‘liberty,’ which is vague, so judges can have a fair trial. want to say a few words about whether this do anything they want in its name.” For that But tenure, like the Force in Star Wars, has a has been a serious problem. The press and approach would negate the main feature of dark side–and, as with the Force, the dark the Senate Judiciary Committee concen- the written Constitution: that new problems side is self-indulgence. Tenure frees a judge trate on a few social issues, such as abortion are to be resolved through the institutions from today’s passions, the better to enforce and capital punishment, and you read much of a representative democracy. the law–and paradoxically tenure also frees about 5–4 decisions with “liberal” and “con- The phrase “Rule of Law” often goes with a judge from the law, the better to enforce his servative” blocs. Newspapers have taken to the phrase “A government of laws and not own view of wise policy. Judges sometimes identifying judges by the party that appoint- of men.” It is helpful to remember the ori- ed them (“Easterbrook, a Reagan appoint- gin of that phrase. It comes from Article 30 ee”), just as they identify senators by party of the Massachusetts Constitution of 1780, From the outset of our (“Durbin, D IL”). Scholarly studies show which reads: “In the government of this nation, the living interpre- that a judge’s imputed ideology matters to Commonwealth, the legislative department his voting. shall never exercise the executive and judi- tive community saw in the Judges, like others, see the world through the cial powers, or either of them: The execu- perspective of their lives and beliefs, and they tive shall never exercise the legislative and Constitution more than its have what Justice Holmes called their “can’t judicial powers, or either of them: The judi- helps.” They may justly be censured when cial shall never exercise the legislative and words. They deduced from they fail to try to control the effects of their executive powers, or either of them: to the the supremacy of the Con- beliefs. But it is quite wrong to say that judges end it may be a government of laws and not regularly fail in this effort at self-control. of men.” stitution over statutes that The Supreme Court chooses fewer than 100 Ask yourself why federal judges have life there must be judicial review cases every year from a menu of more than tenure. It is not so that they can play the role 9,000 applications. The cases it hears are the of Guardians, a la Plato’s Republic. Plato hated and that every governmental most dif½cult that our legal system has to of- democracy; our Constitution embraces fer. Yet year in and year out it decides about democracy and holds representatives on actor must ensure that the 35 percent of them unanimously. That ½gure short leashes. Senators, with six-year terms, has been stable for almost 60 years,8 even have the longest; Representatives face the Constitution prevails over though the size of the legal system as a whole people every two years. After all, it was the other competing sources has been growing, and the Court correspond- problem of non-removable people making ingly has become more selective. (Sixty years important decisions that led to the Revolu- of law. ago the Court heard roughly 1 in 5 of those tion of 1776! in which the litigants sought review; today Tenure is a curious institution in a democ- yield to this temptation. This leads to a be- it is 1 in 90.) That the Justices agree unani- racy. The Jacksonians tried to wipe out ten- lief that judges are politicians in robes, which mously in a large fraction of the legal sys- ure even for the judiciary, and in some states in turn makes the selection process political, tem’s most contentious cases shows that they succeeded. Tenure’s justi½cation is to which leads to an increase in the risk that enforce the Rule of Law–to protect people we will get politicians in robes, like it or not. 7 Frank H. Easterbrook, “What’s So Special from the mob and to make political compro- How do we keep tenure for the bene½ts it About Judges?” University of Colorado Law Review 61 mises more stable.6 Judges with tenure can brings, yet retain a Rule of Law against the (1990): 773. enforce freedom of speech and the rights of pull of tenure’s Dark Side? Equivalently, 8 enemy combatants, even when these are un- See Frank H. Easterbrook, “Agreement Among how do we ensure the bene½t of tenure for the Justices: An Empirical Note,” Supreme Court the application of law to fact, while curtail- Review 389 (1984); William M. Landes and Richard ing the tendency of tenure to change the A. Posner, “Rational Judicial Behavior: A Statisti- 5 People usually say that judges recognize “rights,” cal Study,” University of Chicago Working Paper, but every right for A is a limitation on B; it is bet- meaning of substantive rules? (The pull of April 2008. (Landes and Posner give a ½gure of 30 ter to say “new rules” rather than “new rights.” the Dark Side is often abetted by the acad- percent by de½ning a decision as unanimous only 6 emy and the editorial pages, which extol if there is a single opinion joined by all Justices. See William M. Landes and Richard A. Posner, The percentage rises if we count as unanimous de- “The Independent Judiciary in an Interest-Group the supposed wisdom and dispassion of judges–but that is just a plea for Plato’s cisions in which there are no dissenting votes, and Perspective,” Journal of Law and Economics 18 any Justices who write separately accept the same (1975): 875. Guardians rather than an unruly democracy. general rationale as the principal opinion.)

64 Bulletin of the American Academy Winter 2009 Academy News they do very well indeed at elevating law over Now let’s look beyond the Supreme Court. as I have stressed, the meaning of a text lies politics.9 A careful study of all decisions by the U.S. not in the drafter’s head but in the way a text Courts of Appeals, over many years, con- is understood by an interpretive community. Take this from another perspective. Ask, for cludes that the political party of the Presi- Claims of newly discovered meaning are each possible pair of Justices, how often they dent who appointed a judge (as a proxy for necessarily admissions to changed meaning. agree and how often they disagree. Most ideology) explains about 6 percent of all ob- (This is also why the interpretive approach pairs agree about 75–80 percent of the time; served disagreement–and that there is rare- known as imaginative reconstruction is un- Justices who the press depicts as identical ly any disagreement to observe.11 The other suited to tenured deciders, even though it (Scalia/Thomas, Ginsburg/Breyer) disagree 94 percent of disagreement comes from am- may be ½ne in a classroom. If we don’t know in about 20 percent of cases.10 That must be biguity (in statutes and other sources of law), how the old interpretive community under- driven by law, not ideology. And the highest plus doubt about which side’s version of stood the actual text, we assuredly can’t rate of disagreement is only 41 percent (that’s events best approximates the truth. My know what it would have thought about a how often Justices Thomas and Ginsburg sense of matters, after 24 years of judicial problem never put to it.) disagree). Because about half of all disagree- ment is law-driven, the portion attributable Another consequence is that a judge must to different views of the world must be no Genuinely ideological dis- insist on a level of certainty that is adequate more than half. Since we are looking at soci- to any assertion of power to have the last ety’s most contentious issues, that’s pretty agreement among judges is word.12 Recall why we have judicial review. low. Judges do well at enforcing law rather It is because the Constitution is law, and su- than ideology, even when the temptation is rare. The Rule of Law is by perior to statutes. When the Constitution is greatest. far the most powerful factor not law but just an aspiration, when rules evolve, then judges must honor the Consti- You read from the newspapers about 5–4 in judicial decisions. tution’s two means for handling ongoing splits, which are roughly 20 percent of the disagreements: Political decisions by the docket, as if the very fact of division shows national government, and respect for the that politics must be at work. Not at all. Sup- service, is in accord: Genuinely ideological fact that each state may choose a different pose Justice Scalia were cloned and the Court disagreement among judges is rare. The Rule solution. Robert Nozick argued in Anarchy, populated only with those clones. (If that of Law is by far the most powerful factor in State, and Utopia that the best way to organ- makes you uncomfortable, mentally clone judicial decisions. ize society when individual preferences dif- Justice Ginsburg instead.) You might think What do we make of the disagreement that fer is to allow many different solutions, as that this court would decide all cases 9–0, remains? Some is irreducible; some can be long as each solution’s effects are felt only but you would be wrong. The fact that the curtailed by reminding judges that the price by those in the local jurisdiction. Judges Justices were very similar would change how of tenure is tight control on the discretion must be exceptionally wary about enforcing courts of appeals rule, and which disputes that the actor possesses. If you can’t ½re the what they see as a national consensus; that would be worth taking. When selecting 1 of referee in a football game, you make abso- contradicts the federal system that repre- 90 cases for decision, an all-Scalia or all-Gins- lutely sure that the rules are clear and con- sents the heart of our national organization. burg court would ½nd many issues that are trolled by someone other than the referee. hard for Scalia or for Ginsburg; and when rul- The less a person is subject to control by the ing, this all-Scalia court would issue a lot of threat of removal, the more important it is 5–4 decisions, with some 7–2 but still many to insist that the person use speci½c rather 9–0. But the existence of 5–4 decisions than general rules–for the more general a would not show that ideology controls; it rule or standard, the greater the role that the would show only that for any interpretive Dark Side of Tenure can play. theory it is possible to ½nd hard cases. One consequence is that judges must be very suspicious of claims that some rule has lain 9 There has been much ado in the press about a undiscovered for a long time and is only now supposed “pro-business tilt” of the Court in re- being understood. An assertion that the cent years. Yet most of these decisions are unani- mous, as are many employment-discrimination people living at the time of a text’s adoption cases that go against employers. Most of these did not really understand its meaning, but decisions resolved conflicts among the circuits, that we do, is almost certain to be false. For yet the Justices agree more among themselves than the circuit judges do with each other.

10 These numbers come from tables maintained by the Supreme Court’s Reporter of Decisions. 12 See Frank H. Easterbrook, “Abstraction and Essentially identical ½gures can be found in the 11 Frank L. Cross, Decision Making in the U.S. Courts Authority,” University of Chicago Law Review 59 statistical section of the Harvard Law Review’s of Appeals (Palo Alto, Calif.: Stanford University (1992): 349. See also “Textualism and the Dead November 2008 issue. Press, 2007). Hand,” George Washington Law Review 66 (1998): 1119.

Bulletin of the American Academy Winter 2009 65 Academy Meetings

crats are more likely to disagree with judges countable must be taken quite seriously. On appointed by Republicans than they are with the other hand, judges have life tenure for a judges appointed by Democrats. That align- reason, and it is a reason rooted deeply in ment is consistently demonstrated. More- the fundamental philosophy of the American over, looking at the entire array of cases un- constitutional order. Although our system is derstates this effect, because the effect is par- based in large part on the idea of democracy ticularly evident when we examine ideologi- and “majoritarianism,” it is also based on the cal cases, especially in areas where control- recognition that majorities are not always ling precedents are unclear. In those cases, wise or tolerant or respectful of difference in such areas as abortion, af½rmative action, or calm or level-headed. There are circum- and religion, there is a well-documented cor- stances in which majorities predictably do relation between judicial behavior and po- bad things–things that are, in fact, incom- litical af½liation. patible with the larger values and aspirations of our society. Geoffrey R. Stone But I do not ½nd this troubling. The process Geoffrey R. Stone is Edward H. Levi Distinguished of judging necessarily involves judgment, One of the truly magisterial achievements Service Professor at the University of Chicago Law and when the precedents are unclear and of the American Constitution, particularly School. He has been a Fellow of the American there is no unambiguous statute to dictate as it has evolved over time, is the recognition Academy since 1990. the outcome, judges will bring to bear their that judges with life tenure are suf½ciently own understandings of the proper role of unaccountable to prevailing majorities, and courts and judges, the proper relationship (hopefully) suf½ciently dedicated to the rule One of the points that Professor Tribe of law, that they can provide an invaluable makes in his book is that among the list of Among the list of fundamen- check on majoritarian abuse. In my view, fundamental principles that are part of the then, judicial abuse of life tenure isn’t a pri- invisible Constitution–that are not rooted tal principles that are part mary concern. The greater danger would be speci½cally or expressly in the text–is the the absence of judicial review. In my view, rule of law. As both Judge Wood and Profes- of the invisible Constitution without judicial review–and life tenure– sor Tribe indicated, the precise content of judges would not have played the critical the idea of the rule of law is not perfectly –that are not rooted speci½- role they have played in helping to maintain well de½ned, although it calls forth values cally or expressly in the text– an essential balance in our constitutional such as consistency, neutrality, evenhanded- system. ness, nonpartisanship, following the rules, is the rule of law. adhering to general principles, and appeal- I want to give a couple of illustrations of the rule of law, some positive, some negative, ing to those general principles as a source of among government institutions, and the particularly in the judicial process, but also reason and guidance. There is a broad con- proper way in which one goes about inter- in the executive process. First, there is the sensus that those are positive values. They preting the Constitution. The differences Nixon tapes case, which arose out of the are important to our legal system and to our among judges on these issues do, in fact, cor- Watergate controversy. In that case, the constitutional order, and it would be hard to relate with political af½liation in our society, Supreme Court held that the President was get an argument these days that the rule of and there is nothing illegitimate or insincere not above the law and that he therefore law is a bad thing. or disingenuous about the fact that those could be compelled to turn over tape record- disagreements exist. They are an inevitable Now, I want to comment on some of Judge ings of his conversations, despite the claim product of the fact that judgment involves Easterbrook’s statements about judges, their of presidential immunity. What is striking something more than simply asking a com- behavior and ideology, and life tenure, in about that decision is that it was endorsed puter a question. So, for the most part, I agree terms of the rule of law. I agree with Judge by justices from both political parties, look- with Judge Easterbrook that this is not a se- Easterbrook that, for the most part, judges ing to principles of the rule of law, consis- rious problem in our judiciary, although it follow the rule of law. They seek to be even- tency, neutrality, and accountability that has been the subject of a great deal of schol- handed, neutral, and nonpartisan. They seek went beyond any partisan political interests. arly inquiry in recent years. to follow general principles and precedents. Even more impressive, though, was Presi- As a result, the degree of agreement among I do disagree with Judge Easterbrook, how- dent Nixon’s compliance with the Court’s judges, even judges appointed by presidents ever, on the question of life tenure. Certain- ruling. Despite the consequences to him of different political parties, is pretty high. ly, he is right to note that there are dangers and to his presidency, he acted in accord On the other hand, it is also true, as Judge in the arrogance that can come with life with the rule of law. Although he disagreed Easterbrook noted, that there is a meaning- tenure and in the notion that one is not ac- with the Supreme Court decision, he under- ful correlation between the party of the pres- countable to anyone else for a decision. The stood that it was his responsibility under ident who nominated a particular judge and temptation to act lawlessly if one is unac- the Constitution to act in conformity with it. the judge’s votes. Judges appointed by Demo-

66 Bulletin of the American Academy Winter 2009 Academy News

But adherence to the rule of law should not Part of what made Bush v. Gore such a peri- it often propagated and attempted to imple- be taken for granted. For example, after lous case for the Court was that there was ment those policies in secret– where secrecy Brown v. the Board of Education, many South- little time for the justices to deliberate. Or- was not dictated by the circumstances, was ern states refused to comply with the rule of dinarily, judges don’t have to decide cases not consistent with the rule of law, and was law, insisting in effect that Brown v. Board of instantly. They have time to think, to argue, intended to circumvent the rule of law and Education was itself an abuse of judicial au- to reason, and eventually, in their own good to avoid democratic accountability. The se- thority and a violation of the rule of law, a time, to reach a decision. Bush v. Gore was crecy invoked by the Bush administration in position Nixon could easily have taken, but unusual in part because the time frame was its promulgation of the nsa electronic sur- chose not to take. dictated not by the Court, but by the consti- veillance program, its use of secret prisons, tutional demands of the election process. and its approval of torture was not designed Another example of judges acting in conform- The justices had to decide the case extreme- to protect national security. Rather, the in- ity with the rule of law is the Paula Jones case, ly quickly, and they were therefore unable to tention was to insulate the executive branch which involved President Clinton, a case, I overcome their biases. This is a good exam- from public scrutiny and to shield it from should say, in which I was one of the lawyers ple of a case where I think the rule of law did the checks and balances that the Constitu- who represented President Clinton in the tion assigns to Congress and the Supreme Supreme Court. We lost nine to zero. I be- Court in enforcing the rule of law. Indeed, lieve that subsequent events proved that we The precise content of the when the Supreme Court ½nally had the op- were right and that the Supreme Court was portunity to evaluate the constitutionality wrong, but the important fact is that, despite idea of the rule of law is of many of these policies, in cases like Hamdi, the political party of the presidents who ap- not perfectly well de½ned, Rasul, and Hamdan, its basic position in hold- pointed those nine justices, they all (erro- ing the actions of the Bush administration neously) thought they understood the re- although it calls forth values unconstitutional was not so much that the quirements of the rule of law and reached a policies themselves were unconstitutional, decision regardless of their individual polit- such as consistency, neutral- but that they had been promulgated and im- ical preferences. Again, that is to the credit plemented without regard for the rule of of the Court, and a good example of the jus- ity, evenhandedness, non- law. They were judgments where Congress tices acting in a way that furthered their com- partisanship, following the should have played a role, and where the mitment to principle and to the rule of law. Court should have had an opportunity open- In a less inspiring illustration, involving the rules, adhering to general ly to evaluate the constitutionality of the 2000 presidential election, I think it is fair principles, and appealing to government’s programs. to say that at every level–from the polling Finally, I agree with Judge Easterbrook that of½cials who held up ballots to look for hang- those general principles as the idea of the rule of law is vague, open-end- ing chads to the Florida Supreme Court, from ed, lacks clear meaning in speci½c circum- the Florida legislature to the Supreme Court a source of reason and stances–and that this is not a problem. Our of the United States–there was very little Constitution is about debate, deliberation, con½dence on the part of the American peo- guidance. judgment, discourse, argument, and reason. ple that anyone involved in that dispute act- These processes are fundamental to the ed in accord with the rule of law. In the case not work. That is not to suggest, by the way, American constitutional system, and they of Bush v. Gore, the justices voted in a way that I think there was a necessarily right or make us who we are. that concurred perfectly with what most wrong answer in Bush v. Gore; it is, rather, people understood to be their personal po- that I think the ideological dispositions of litical preferences. There is good reason to the justices determined their votes. Discussion believe that the rule of law was not, in fact, The ½nal examples I want to give relate to followed. But in defense of the Court, I want Laurence H. Tribe: some of the actions of the Bush administra- to say that at the time that decision was pend- tion over the past eight years. The rule of With respect to these nine to nothing deci- ing, among all of my legal colleagues, every- law involves not just courts; it also involves sions such as the one Professor Stone men- one I knew believed that the right decision executive branch of½cials, as illustrated by tioned in which he believes the Court was in Bush v. Gore was the result that correlated Nixon’s compliance in the tapes case. In my unanimous but wrong, I can unfortunately with the election of his or her preferred can- view, the Bush administration was repeat- think of a couple of decisions that I have won didate for president. This was really inter- edly guilty of arrogance and de½ance of the nine to nothing in which I have come to esting, because it showed the power of dis- rule of law in ways that are deeply troubling. think the Court might well have been wrong. tortion and bias when the law is ambiguous, This is true not only in the sense that the As Chief Judge Easterbrook pointed out, one when there is no controlling precedent, and, Bush administration adopted unlawful poli- can infer very little from either close division more importantly, when there is no oppor- cies–although there are, in my view, clear or unanimity; even a court of clones would tunity for real reflection, which I think is es- examples of that–but also in the sense that often ½nd something about which to dis- sential to the rule of law.

Bulletin of the American Academy Winter 2009 67 Academy Meetings agree. I want to make a comment about some better than the folks back then did;” rather, Question of the things that Chief Judge Easterbrook they’re saying that the principle that was mentioned about these “invisible clauses in propagated is a principle which, by the very Do you agree with the premise that the most the Constitution” supposedly discernable generality of the terms in which it was cast, important or one of the most important solely to the legal elite–that is clearly not was meant to have an evolving meaning. tasks of a President is the appointment of what I had in mind, not the obscure, invisi- Neither the invisible Constitution nor the Supreme Court justices? ble clauses, but rather the dramatic ones. idea of an evolving Constitution rests on the Frank Easterbrook: notion that some special elite privileged to Why do we agree upon principles that you be alive today understands what was meant It seems like it would be one of the impor- need not be a member of any elite to recog- better than those at the time did. tant things that a President does, and there nize? Take the principle that the states may is no question that if you imagine a Supreme not secede from the Union; we do not need Frank H. Easterbrook: Court consisting of nine Anthony Scalias to read Wittgenstein for that! You won’t ½nd I always worry when Professor Tribe or other versus nine William Brennans, American it written in ink in the parchment of the Con- of my friends talk about the living Constitu- law and American society would look very stitution; you’ll ½nd it written in blood in a tion or the evolving Constitution. If you are different over an extended period. But I think lot of places like the Gettysburg battle½eld. not evolving, you are no longer ½t for duty. I it is actually one of the least important things The fact that many of these principles are think it is not only important to understand a President does, for the reasons that should not written down is simply the beginning that legal principles continue to evolve–that be evident from my comment. When you get of the end of wisdom. is what democracy is for–but that it is also important not to overstate the role of courts If you look around the Neither the invisible in bringing about the security of people’s Constitution nor the idea “life, liberty, and property,” as the Fifth world, what is really impor- Amendment has it. If you look around the tant is the rule of law prin- of an evolving Constitution world, what is really important is the rule of law principle–the idea that the government ciple–the idea that the gov- rests on the notion that some is conducted in a regular way, that it engages in hearings before putting you in prison, that ernment is conducted in a special elite privileged to be there is an availability of review by someone alive today understands what with tenure to test the application of the law regular way, that it engages to you, but not necessarily the availability of in hearings before putting was meant better than those a hearing to test the validity of the law. If you look at the legal systems of the United States, you in prison. at the time did. Canada, and France, the United States has a system of judicial review with which you are I think any assertion that the interpretive familiar. In Canada, there is a Supreme Court a broad convergence in personal rights and community in 1789 or in 1868 (to take the that will make constitutional decisions, but liberties across countries with very different rati½cation dates of most of the Constitu- it can be overridden by Parliament; this is judicial structures, very different means of tion and of the Civil War amendments) did the Notwithstanding Clause of the Canadian appointing justices, it is hard to locate that not understand the meaning of something– Constitution. In France, the legal system can- convergence in the identities of particular but that we do–is almost certainly false. not make constitutional decisions on any people on the Court. What is important is The view of most people who believe in law once it had been adopted. And yet, if that anybody appointed to the Court be an what they call the “living Constitution” is you go to Canada or France, you will ½nd adherent of the rule of law in the sense of rather that the meaning was elastic. For ex- that they have fundamentally the same lib- procedural regularity, publicly announced ample, the authors of the Fourteenth Amend- erties as we do, not because of the details of rules, and accurate application of rules to ment, though they did not expect that it constitutional structure but because these the facts of a particular case. These are what would be used to strike down racial segrega- are all democratic countries and they all ad- the Western democracies have in common; tion, meant that the subordination of one here to what I have de½ned as the basic fea- it is not the details of who is on the Supreme group by another through the legal system tures of the rule of law, including review of Court. was wrong. They left open the question of application by a tenured judiciary. Although Geoffrey R. Stone: what would constitute such subordination. there are particular features to America’s In 1954, the Court said, “We understand that structured judicial review, when we look to Let me dissent just a bit from that proposi- the social meaning of segregating people by the Western democracies I mentioned, we tion. Take the recent decision by the Court law is the subordination of one race to an- see a convergence of rights among them, in the case of Boumediene et al. v. Bush concern- other.” By that they were not saying, “We even though the systems are fundamentally ing the rights of Guantanamo Bay prisoners. know what was meant by Plessy v. Ferguson different. The Court held that the writ of habeas cor-

68 Bulletin of the American Academy Winter 2009 Academy News pus cannot be suspended by Congress with- Frank H. Easterbrook: current Court and yet was appointed by a out some adequate substitute, in the absence Republican, and there are big differences of the very special conditions mentioned in I think Boumediene is one of the least relevant between Justices Scalia and Thomas, even the Constitution. A majority opinion au- decisions in the history of the Supreme though they both purportedly follow a thored by Justice Anthony Kennedy stated Court. I don’t think anybody dies because of somewhat similar methodology and were that it is impermissible to create a legal black Boumediene, nor was the dispute in that case both appointed by Republican presidents. hole within which no law applies, in which between the rule of law and a black hole. The the rule of law cannot be enforced by habeas actual dispute in that case was whether the Frank H. Easterbrook: Detainee Treatment Act of 2006 provided corpus. It was a ½ve-four decision and the The political party of the appointing Presi- procedures that were adequate substitutes dent is historically a very rough proxy for for the Great Writ. The Detainee Treatment what a justice will do on the Court. Approxi- The path of a nation that Act provides for a plethora of hearings, fol- mately 20 percent of the voting on the Court lowed eventually by review in the D.C. Circuit. relies heavily on judicial re- can be chalked up in one way or another to view to protect certain basic something that probably aligns with what Question many people call ideological. That is a sig- freedoms is very different ni½cant percentage given the fact that these I wonder if it isn’t a little misleading to dis- are all very dif½cult cases, but it is not sur- from the path that would be cuss this question of the rule of law along prising and not particularly regrettable. The the statistical lines that Judge Easterbrook idea that Courts of Appeals would construe followed in another society. laid out in his discussion of how many times statutes in generally liberal or conservative justices on the Supreme Court and judges on ways when the Supreme Court is generally dissents were vigorous. The one by Justice the appellate courts disagree. That perspec- liberal or conservative suggests that they are Anthony Scalia said that the majority in this tive assumes that Democratic Presidents will not following the rule of law, because there decision is guilty of murder because a num- always appoint similar-viewed justices and were many statutes that were enacted from ber of terrorists are going to go out and kill so will Republicans. It leaves out all the nu- liberal times. Title VII of the Civil Rights people as a result of this decision. Chief Jus- ances of the political forces of the time that Act of 1964 is a genuinely liberal statute, but tice Roberts wrote a more moderate opinion may lead to centrist or less centrist judges. if the Court goes conservative it doesn’t but joined the Scalia thinking. If Justice Ste- In terms of Courts of Appeals statistics, it mean one should turn around and trim back vens or any of the other justices in the ma- seems to me that most of our appeals judges on Title VII. That’s not honest interpreta- jority were to leave, I submit it would make do a very good job of following the directions tion. The idea that a Court of Appeals should a very great difference whether the President of the Supreme Court, so when the Court follow the trends of the Supreme Court rather was John McCain who said during the cam- takes a conservative turn, for example, Courts than make their best estimate, on a particu- paign that Boumediene was one of the worst of Appeals across the country have taken a lar statute, is, I think, not compatible with decisions in the history of the Court, or conservative turn, regardless of the particu- the rule of law. Barack Obama who said it was one of the lar backgrounds of their judges on those ap- best decisions in the Court’s history. Whether peals. I wonder if you can comment on over the entire arc of history we would be whether that is a correct observation. Question worse off if we didn’t have a system of strong In light of the rule of law, can you explain judicial review is too large a question for any Laurence H. Tribe: the signi½cance of the unitary executive pe- of us to answer. The path of a nation that re- I can comment briefly on the latter point be- riod of constitutional justi½cation and also lies heavily on judicial review to protect cer- cause a professor who used to be at the Uni- the signi½cance of signing statements? tain basic freedoms is very different from versity of Chicago Law School and is now the path that would be followed in another happily a colleague of mine, Cass Sunstein, Laurence H. Tribe: society. To say that France and Canada man- has done a comprehensive study of all Court In terms of signing statements, it’s good for age with very different systems isn’t to say of Appeals decisions since 2000 and reached the President to give a signal to the country; that if you ripped judicial review out of our the conclusion–rather distressing to him, it advances transparency for the President system, we would be just ½ne; it is to say that to me, and to many others–that there is an to say “I’m signing this, and it’s ambiguous, if you redid our history entirely, made us enormous correlation between how judges and here’s what I think it means,” or “I’m more French or more Canadian in many on those courts vote and which political signing it because on the whole it doesn’t other respects, then maybe we wouldn’t be party they belong to in areas where the Su- merit veto but I can think of three or four worse off, but you have to be much more of preme Court has left substantial room for applications in which it would be unconsti- a psychic and a historian than I am to evalu- disagreement. I certainly agree that there tutional.” I would rather be warned about ate the plausibility of that proposition. I think are nuances; it’s not all captured by which that in advance than to be confronted later, the burden lies on Chief Judge Easterbrook party’s members are nominated: Justice so the suggestion that signing statements to defend it, if that is genuinely his view. Stevens is the most liberal member of the

Bulletin of the American Academy Winter 2009 69 Academy Meetings are evil and Congress should be able to get law and suggest that it now means something by President Eisenhower at the time of the rid of them is fallacious. That’s why Barack very different from what Congress intended. U-2 controversy and had continued on auto- Obama declined to promise never to use Did the President faithfully execute the law pilot until 1975. Statutes had been passed signing statements when John McCain said he signed into existence or bastardize its both before Eisenhower’s directive and later “I’ll never use a signing statement.” The un- meaning at the same time he signed it? And that made this, let’s just say, problematic. derlying idea that the President cannot be then there’s the question of whether a Presi- The question for Attorney General Levi was interfered with by Congress and, in fact, that dent who signs a statement binds his suc- whether to ask a grand jury to indict the the President is necessarily immune from cessor. The answer to that is clearly no, but people who were carrying out programs legislative restriction when it comes to exe- it was part of the controversy. established by the President of the United cuting the law is itself a novel and problem- States and assured by the Justice Depart- atic theory that has never gained general ac- ment to be valid. It was a subject of agoniz- ceptance. Among its implications, if prop- Question ing debate for Levi, for his staff, for many erly understood, is that John McCain was members of the Justice Department. There I would like to follow up on Professor Stone’s actually right when he said he could ½re the was a widespread belief that the legal opin- reference to instances where an administra- head of the sec, because the statute purport- ions validating this program were unreason- tion may have circumvented the rule of law. ing to give independence to the head of the able but that it would be unjust to put these I know that Cass Sunstein has made certain sec is unconstitutional under the “unitary people in jail. Levi thought that no prosecu- statements about not criminalizing the pub- executive” theory. The reason is that the tion should be brought, but he chose to con- lic service, but I would like to get the panel’s statute prevents the flow of power directly sult with Judge Grif½n Bell, who President views on whether or not it would be impor- to the one President we have; the whole al- Carter designated as his incoming Attorney tant to prosecute instances of circumvent- phabet soup of independent agencies is a vi- General. Bell agreed with Levi, and the Jus- ing the rule of law by this administration in olation of the unitary executive theory. tice Department issued a public report stat- the new administration. ing its view on why the practice was illegal, Frank H. Easterbrook: Geoffrey R. Stone: why it couldn’t continue, and why any fu- I agree completely with Professor Tribe about ture repetition of it would be criminally pro- My own view is that public of½cials should signing statements. Those people who object- secuted. It seems to me that the Levi was be held accountable for acting in conform- ed to President Bush’s signing statements wise in that respect, as in many others. ity with the law, and if they, in fact, violate objected to the substance of what he was as- the law then there is reason to hold them ac- serting, not the fact that he was telling peo- countable, either through impeachment or ple what he believed. With respect to the © 2009 by Diane P. Wood, Laurence H. through criminal prosecution or otherwise. unitary executive, it seems very important Tribe, Frank H. Easterbrook, and Geoffrey On the other hand, it is important to recog- to distinguish claims made by some who use R. Stone, respectively nize that public of½cials are often acting in the phrase to assert that the President is areas where there is a great deal of ambigu- above statutes. The Constitution does say ity about what the law requires, and, as a that the President shall faithfully execute matter of general policy, we don’t want to the law of the land. Some people who use make public of½cials so intimidated about the term “unitary executive” are referring to the consequences of their actions, particu- Article 2 of the Constitution: the President larly given the fact that a subsequent admin- is the top of the organization, and you can’t istration might accuse them of violating the insulate him from the people lower down in law merely because they disagree with their that organization. Senator McCain could policy. Although it is appropriate to hold ½re the head of the sec not for any consti- public of½cials accountable, that authority tutional reason but because that’s what the should be exercised with a great deal of at- statute says. The statute says that any Presi- tention to the need to prevent public of½cials dent can designate a new chairman of the from becoming too wary about enforcing sec. their responsibilities while they have power. Geoffrey R. Stone: Frank H. Easterbrook: One of the ambiguities in the controversy I agree completely with Professor Stone. I over signing statements is whether the pur- can’t discuss current circumstances but I can pose is merely to inform the public and the give you a brief story. It was discovered that Congress that this is what the President the Postal Service was opening mail that was thinks the law is, or whether it is an asser- being sent to the Soviet Union and reading tion of authority by the President to rewrite the contents. It had been directed to do so the intended and understood meaning of the

70 Bulletin of the American Academy Winter 2009 Academy Meetings

The Nuclear Future

Richard A. Meserve, Robert Rosner, Scott D. Sagan, and Steven E. Miller This panel discussion was presented at the 1929th Stated Meeting, held at Harvard University on October 12, 2008. At this meeting, Richard Lester, Professor of Nuclear Science and Engineering at mit, also spoke. His remarks will appear in a forthcoming publication.

Cooling Towers. Photograph © W. Cody/Corbis

We are in a time of great change in the have a nuclear power plant have come to the nuclear world, a period termed by some as a iaea to explore the possibility of construct- nuclear renaissance. The Nuclear Regulatory ing a plant. He assessed that 12 of those coun- Commission has received applications for tries are very serious about proceeding. The 26 new nuclear power plants, and more ap- interested countries include the United Arab plications are expected. The reactors may Emirates, which is clearly going to go for- not all be built, but the applications show ward; Thailand; Vietnam; the Philippines; the high degree of interest in new construc- Nigeria; Poland; Belarus; and many others. tion in the United States. There are also ex- tensive construction programs either under- In one sense, this is a great opportunity. We way or planned in China, Japan, Korea, Rus- need to ½nd carbon-free sources of energy sia, the United Kingdom, and elsewhere. in order to respond to the grave challenge of climate change. Nuclear power now provides Richard A. Meserve But really the most interesting dimension of the renaissance is the large number of coun- 16 percent of the world’s electricity, and it Richard A. Meserve is President of the Carnegie tries that do not currently have a nuclear would be a wonderful thing, from the per- Institution for Science and former Chairman of power plant and have expressed an interest spective of climate change, if we were able the U.S. Nuclear Regulatory Commission. He has in building one. Senator Sam Nunn and I to develop nuclear energy further. But that been a Fellow of the American Academy of Arts were in Vienna about 10 days ago at a meet- is not to deny that there are other challenges and Sciences since 1994 and serves as a member ing in which the Director General of the In- that must be confronted–among them, the of the Academy’s Council and Trust. He is a mem- ternational Atomic Energy Agency (iaea) need to build and operate these nuclear pow- ber of the Executive Committee of the Academy’s mentioned that 50 countries that do not now er plants safely. Countries with experience Global Nuclear Future Initiative.

Bulletin of the American Academy Winter 2009 71 Academy Meetings with nuclear power have learned that it is regime. Iran is proceeding with enrichment, necessary to have a whole infrastructure in which gives it the technological capability order to achieve safe operations–an infra- to produce highly enriched uranium. And of structure that includes an educational sys- course, we must view these changes in the tem, technical capabilities, a competent and overall context of a complete lack of progress independent regulator, licensees who are fo- in recent times on disarmament. cused on safety, and so forth. Some of the We thus are in a world with the possibility countries considering nuclear technology of great bene½t and great importance of nu- do not have such an infrastructure. clear power because of climate change, but great challenges as well. We face the prospect, We need to ½nd carbon-free if we don’t handle this well, of a world in sources of energy in order which more countries have nuclear weap- ons– not a desirable state of affairs for any- Robert Rosner one. to respond to the grave chal- Robert Rosner is President of UChicago Argonne, lenge of climate change. This is the context in which the Academy llc; Director of Argonne National Laboratory; has launched its Global Nuclear Future Ini- and William E. Wrather Distinguished Service tiative, which has the basic purpose of ex- Professor at the University of Chicago. He has There is a waste challenge that must also be ploring how to get the bene½ts of nuclear been a Fellow of the American Academy of Arts confronted. Spent fuel needs to be handled power while diminishing, to the extent pos- and Sciences since 2001. He is a member of the in an appropriate way so as to protect cur- sible, the corresponding risks. Approaching Executive Committee of the Academy’s Global rent and future generations from the long- this problem appropriately necessarily in- Nuclear Future Initiative. lived radionuclides that are created by reac- volves people concerned about proliferation tor operations. Adequate security must be issues from the academic world and from achieved as well. More reactors in more the national laboratories. But to deal effec- It is clear that nuclear energy is getting a places mean more target sets for terrorists. tively with the problems, we need to bring second wind on a worldwide basis, albeit the notion of a nuclear renaissance, at least Another consideration, and an important in a much wider group of participants: the as applied to the United States, remains far one, is the impact of nuclear development licensees and vendors of reactors; regula- from realization. I think it is also fair to ob- on proliferation. In this context, reactors tors; and, most importantly, people from serve that the United States is playing an in- themselves are not the problem. The prob- the countries seeking to build nuclear power creasingly limited role as new countries are lem is that, as more countries need nuclear plants. It is important to have a discussion turning to nuclear energy for the ½rst time. fuel, there will be an inevitable demand for with the people we seek to influence at a very Now the obvious question: why is this so? enrichment services. This means that the early stage. The Academy has the unique technology for enrichment could become capability to convene people across a broad more widespread. The same technology spectrum of disciplines and from all over The notion of a nuclear ren- used to produce low-enriched fuel for nu- the world, to get all of the stakeholders to clear reactors can be used to produce highly approach these problems together, and to aissance, at least as applied enriched uranium, a weapons-usable mate- try to ½nd a path to a safer world. Our panel to the United States, remains rial. There also is the possibility that some this morning will set the backdrop for this of these countries may proceed with repro- new Initiative. far from realization. cessing–raising the possibility, if they use today’s reprocessing technology, that they The international situation does vary from will produce separated streams of plutoni- country to country, and it is a combination um. Plutonium, of course, is also a weapons- of four main drivers: 1) increasing energy usable material. and water demands, driven in large part by So we have a cluster of proliferation-related increased expectations for living standards issues that must be confronted in a changed in the developing world; 2) economics, or nuclear world. We have to approach these insurance against future price exposure issues in the context of a frayed internation- driven by strained energy supply, fossil fuel al nonproliferation regime. The North Ko- price fluctuations in deregulated markets, reans have already produced separated plu- and, of course, the cost impacts of climate tonium and it is proving very dif½cult to considerations; 3) security of the energy bring them back into the nonproliferation supply; and 4) global climate change and worrying about how to increase carbon-free

72 Bulletin of the American Academy Winter 2009 Academy News base power. The terms of the discussion on human infrastructure to operate plants in a for us to simply chase after them–we need a possible nuclear renaissance here in the safe way and to deal with the disposition of to go around them and invest in a complete- United States are really very different from the spent fuel afterward. There are the is- ly revolutionary technology. We do need in- what they are abroad, so that is something sues of the Nuclear Nonproliferation Treaty vestments on the research and development that we are going to have to keep in mind. (npt), too. front here in the United States for Genera- For example, it is certainly true that within tion IV reactors, advanced safeguard tech- The national lab directors, about two years the United States the issue of climate and nologies, and advanced nuclear fuel cycles. ago, organized themselves into the National global climate change is a main driver for Lab Directors Council, of which I serve as There is also the issue of international en- rethinking the nuclear future, but that is chair. Ten of these labs (there are 17 labs to- gagement. It has been shocking to me per- not necessarily the case abroad. tal in the Department of Energy system) sonally to see the extent to which we have What are the obstacles retarding growth? participate in one way or another in nuclear lost the edge in engaging internationally. There is the issue of ½nancing. The cost of power considerations. The Council has re- Part of that, of course, is the fact that we a new nuclear plant today is a fair fraction cently written a white paper addressed to the have lost the technological lead, and in that of the total market capitalization of the Secretary of Energy on the use of nuclear respect, there is some question of whether companies that are likely to want to build people will pay effective attention to us if them. For a company basically to bet its fu- we are not perceived as technically compe- ture–which is what it really amounts to– The essential ingredients of tent. on a new nuclear plant is, of course, very any regime that takes reviv- Main drivers in the near term include the problematic. There is the issue of human near-term expansion and life extension of capital. We need to revive the discipline of ing nuclear power in the plants, ½nancial support for new orders, and nuclear engineering, both for designing and cost-effective technical improvements for building new plants and for operating them United States as its goal in- existing plants; an interim solution–interim safely and ef½ciently. Also related to human storage–for used nuclear fuel; and, ½nally, a capital are the stringent quality demands for clude rebuilding the nuclear much more robust nonproliferation regime, construction of new nuclear plants as well enterprise by rebuilding the which is a technical as well as political issue. as the supporting infrastructure. This is a areva lesson that has been learning in Fin- manufacturing base and the These considerations are largely well-known land, that it is not enough to go in and take and understood by people within the tech- an existing construction trades workforce, necessary science and tech- nical and policy communities. But I think it accustomed to building apartment complex- nology infrastructure, and is also unfortunately true that implemented es or other kinds of power plants, and ex- public energy policies today, both here and pect them to work effectively building new training the next generation abroad, have been largely at odds with these nuclear plants. areva has in part overrun considerations; it is one of the tragedies that its construction budget for the ½rst of the of scientists and engineers to we are facing. Given the urgency imposed Finnish plants precisely for this reason. by climate change, by strong increases in carry out the research and energy demand worldwide, and by concerns There is the issue of infrastructure and sup- related to energy security, I think it is high ply chain. The industrial infrastructure, not development. time that public policy and our technical only in the United States but worldwide, is understanding of the nuclear energy chal- really quite limited and cannot presently power that discussed what we view as the lenge align. I think this is indeed the intent support a renaissance, including, for exam- essential ingredients of any regime that takes of our meeting and our discussion. ple, the ability to make large reactor vessel reviving nuclear power in the United States forgings for the plants themselves. Further- as its goal. These include rebuilding the nu- more, new countries that are looking at nu- clear enterprise by rebuilding the manufac- clear power plants often do not have the sup- turing base and the necessary science and porting infrastructure, including the elec- technology infrastructure, and training the tric grid, to sustain plants in this sort of giga- next generation of scientists and engineers watt range. The other issues are spent fuel, to carry out the research and development. nuclear waste disposition, nuclear licensing, It is one thing to try and replicate the French and public acceptance. Public acceptance is and the Japanese; it is another to think in not talked about much elsewhere, but I think truly revolutionary ways. Our foreign com- it will be the main issue for the United States. petitors have a huge investment in present The issue of international safety standards infrastructure, the infrastructure necessary will depend on the countries that are inter- to support Generation III reactors, includ- ested in a nuclear renaissance providing the ing the reprocessing. It would not be smart

Bulletin of the American Academy Winter 2009 73 Academy Meetings

which only true believers in their organiza- can disagree on what the balance is between tion could survive and reach a higher plateau these two options. But I want to make two of moral standing. The founder of Aum Shin- points here. One, in a rare moment of can- rikyo was not able to get nuclear weapons so dor, then-President Pervez Musharraf said he developed biological weapons, using an- he knew about A.Q. Khan passing things on; thrax unsuccessfully. He ½nally had to settle indeed, in his memoirs Musharraf writes: for the sarin chemical attacks in the Tokyo I received a report that some North Ko- subway in 1995. rean nuclear experts had arrived at krl My central point here is that we should rec- [Khan Research Laboratory] and were ognize that nuclear terrorism is not just an being given secret brie½ngs. I took it seri- Al-Qaeda problem. We should assume that ously. The head of our isi [intelligence other terrorist organizations in the future service] and I called A.Q. Khan in for Scott D. Sagan will seek to steal materials to make nuclear questioning, and he immediately denied weapons, and we must therefore maintain the charges. No further reports received, Scott D. Sagan is Professor of Political Science and the highest standards of security for facili- and we remained apprehensive. Codirector of the Center for International Security ties worldwide. Increased security should be and Cooperation at Stanford University. He has a top priority for any facility that produces or Nuclear terrorism and elicit been a Fellow of the American Academy of Arts uses highly enriched uranium (heu), since it and Sciences since 2008 and serves as Coleader of is easier to make a primitive nuclear devise exports of nuclear materials the Academy’s Global Nuclear Future Initiative. from heu than from other weapons-grade materials. But all plants and related facili- or technology are serious I will be speaking this morning about two ties will have to have improved security in problems today and will be, serious problems: nuclear terrorism and the future. elicit exports of nuclear materials or tech- The second point I want to make is that we I believe, even more daunt- nology. These are serious problems today and already have seen problems of illicit export will be, I believe, even more daunting in the of materials, with, for example, the A.Q. Khan ing in the future if new states future if new states develop power plants, network out of Pakistan. We know that of½- develop power plants, ura- uranium enrichment, or plutonium repro- cials at the Khan Research Laboratory (krl), cessing facilities–new states that lack strong led by A.Q. Khan, developed a network of nium enrichment, or pluto- regulatory systems, security cultures, and international actors who made an offer to have serious internal terrorist problems. Iraq (after the invasion of Kuwait but before nium reprocessing facilities. The danger of nuclear terrorism will be with the Desert Storm War of 1991) to give Sad- us for a long time and we must reduce the dam Hussein both a bomb design and centri- Is this complicity or is this negligence? I ar- risks to as low a level as possible. We need to fuge technology. Saddam Hussein actually gue that, at a minimum, there was such an turned down that offer, thinking that it was acceptance of corruption in Pakistan, that remember that Al-Qaeda is not the only ter- cia rorist organization that has sought nuclear a plant. But Libya did accept A.Q. Khan’s it could be called institutional complicity. weapons; nor is it likely to be the last. We offers for centrifuges and a bomb design. We When the Pakistani government does not know that Osama Bin Laden issued a fatwa found both in materials discovered in Libya react when a senior laboratory of½cial be- claiming that it was moral under Islamic in 2003. The bomb design found in Libya comes a millionaire and buys many proper- principles to target innocent civilians and he was of a relatively primitive model based on ties at home and abroad, this goes beyond called for the acquisition of nuclear weapons. a Chinese weapon, but disturbing evidence negligence. When the President simply ac- We know that Pakistani nuclear scientists now exists that more advanced designs have cepts the word of A.Q. Khan, instead of his met with Bin Laden in Afghanistan prior to been found on some of the computers of Eu- own intelligence reports, that goes beyond the 9/11 attacks. But not everyone remem- ropean members of the A.Q. Khan network. negligence. Indeed, in Islamabad a number We know that centrifuges were given to of years ago I was given a brochure that the bers that other terrorist organizations in the krl past had similar ambitions. European left- North Korea (we don’t know whether the scientists used to give to people selling wing radical terrorists reportedly attacked a bomb designs also were passed on), and we dual-capable equipment that they said was U.S. military base in Germany in the 1970s, know that centrifuges were given to Iran, perfectly ½ne, perfectly legitimate for civil- trying to steal nuclear weapons from our but, again, we don’t know the details about ian use. But on the brochure’s cover, in the stockpile. The Aum Shinrikyo penetrated the bomb design. background, there is a missile with A.Q. Khan standing in front of it. A.Q. Khan’s il- the Russian military, getting Russian soldiers What there is still great debate about is how licit sales activities were not a well hidden to join their organization, and seeking access to assess the cause of this. Was this negligence secret in Pakistan, and indeed A.Q. Khan to nuclear weapons because they believed on the part of the Pakistani government, or advertised that he was getting away with that an apocalypse would create a world in was it complicity? Reasonable people, I think, quite a bit.

74 Bulletin of the American Academy Winter 2009 Academy News

When I talked to members of the Strategic If we look at the recent past, it is hard to avoid Plans Division in Rawalpindi, Pakistan, a a somewhat gloomy answer. It has been a bad number of them said, “Well, we’re solving decade for the npt system. If you go back this problem. We are adding more security almost exactly 10 years, the Indian and Pak- guards on our forces.” And yet one of the istani nuclear explosions undermined the problems with the A.Q. Khan force was that belief that a strong norm against nuclear ac- the security guards were corrupt. They were quisition had been established. It had been a paid off; they had a so-called insider threat. long time since anyone had openly acquired Most people assume if you add more secu- nuclear weapons, and the thought was that rity guards, even if each one of them is only this had become almost taboo. Suddenly this partially reliable, you automatically will be- idea was punctured, and since then, of course, come more secure. But, as I demonstrated in North Korea has also openly acquired nu- my article “The Problem of Redundancy clear weapons. Problem” from the journal Risk Analysis, if Steven E. Miller you assume that at least one of them is the Steven E. Miller is Director of the International Are we adequately equipped insider who could cause a problem, adding Security Program at the Belfer Center for Science more security guards may actually result in and International Affairs at the Harvard Kennedy to manage effectively this less security. School. He has been a Fellow of the American new nuclear universe into I will conclude by noting that we need more Academy of Arts and Sciences since 2006 and than better defenses, and we need more than serves as Coleader of the Academy’s Global Nu- which we are heading? better guards: we need better thinking and clear Future Initiative as well as a member of the institutions to deal with physical security Academy’s Committee on International Security We have also had, over the past 10 years and and reduce the risk of illicit exports. In Sep- Studies. more, a series of three protracted nonprolif- tember 2008, former Senator Sam Nunn and eration crises, none of which has been suc- Director General Mohamed El Baradei of the cessfully addressed. One was Iraq. The ½nal iaea wins What you have heard from my colleagues announced the formation of , on this panel is that we are heading into a result was war, which did reduce the prolif- the World Institute for Nuclear Security, for new nuclear world, one that is going to in- eration risk, but at a price that was enormous corporations to share best practices. The and in a way that no one would regard as a iaea volve more nuclear technology and more has a severely underfunded but im- nuclear power that will spread more widely desirable management technique for coping portant effort to try to create standards across more countries and regions, including with nonproliferation challenges. We have around the world, and the American Acad- many where it has never been present before. had nearly 20 years of crisis with the North emy is starting a study of alternative ways of New actors and players will be relevant to Koreans over their nuclear aspirations, and measuring or assessing security globally in our thinking about the safe, constructive we are still in the midst of that melodrama. terms of physical security and the risk of il- use of nuclear power. In the context of this The outcome is uncertain, but the result so licit exports. Because increased security is evolution, new kinds of problems will arise, far is that North Korea is now a nuclear- ultimately about developing new ideas, armed state. It has tested a or at least new priority will be given to prob- npt sharing knowledge, and creating better in- lems that were regarded as lesser in the past, and has withdrawn from the –the ½rst stitutions, and not just a matter of more like nuclear terrorism and the problem of il- state ever to do so–creating, in my opinion, guards and fences, we need the kind of work licit nuclear supply. a whole series of unfortunate precedents. that the American Academy has started And we are still midstream in an ongoing though its Nuclear Future Initiative. Are we adequately equipped to manage ef- Iranian crisis, in which Iran has been per- fectively this new nuclear universe into which sistent in pursuing enrichment technologies we are heading? The main international that, whatever its intentions, will give Iran regulatory mechanism is something that is the technical capability to produce weapons loosely called the npt regime, which is a set material in the future if they choose to do of rules and institutions that have grown up so. Each of these examples is a tangled tale; over four or ½ve decades, centered on the but the underlying point is that the cumula- Nonproliferation Treaty, heavily reliant on tive effect of the system’s failure to resolve the International Atomic Energy Agency, successfully any of these major challenges and with a lot of supplementary rules and to the regime calls into question the ade- institutions like the Nuclear Suppliers Group. quacy of the nonproliferation system in How good is that regime in the face of the coping with the most important tests. It is kinds of challenges that we anticipate com- really the determined proliferators that we ing down the pike? have to deal with if the regime is going to be effective.

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We have also seen over the past decade the some eyes, today–going to cope effectively The Academy’s Global Nuclear Future Initia- almost complete collapse of the multilateral down the road with a much bigger challenge? tive asks what can we do to strengthen the arms control process. All of the ancillary regime, to make it more effective, and to give The general lesson is that the npt regime is agreements that were meant to buttress the it greater capacity to cope with the new nu- built on two contradictions. First, it is meant npt regime, like the Comprehensive Test clear world into which we are heading. That to prohibit nuclear weapons for almost all Ban Treaty or the Fissile Material Cut-off is the debate to which we are hoping to con- signatories while legally codifying the nu- Treaty, have been either stuck or stalled, tribute. clear weapons status of a handful of nuclear thwarted or stymied, so there is no real powers. The solution in the Treaty was Arti- progress, motion, or action on any of them. cle VI, in which the nuclear ½ve promised to We also witnessed in 2005 the complete fail- © 2009 by Richard A. Meserve, Robert Ros- npt work in good faith toward nuclear disarma- ure of the Review Conference, an in- ner, Scott D. Sagan, and Steven E. Miller, re- npt ment. There is ample evidence to suggest ternational gathering of members that spectively that large segments of the npt community convenes every ½ve years and often provides are growing frustrated with what they per- the opportunity to address constructively ceive as the failure of the nuclear weapon problems of global concern. But due to the states to live up to their Article VI obligations. collision between, especially, the United The Article VI controversy has been trou- States and others, but more generally be- blesome in the past but may be even more dif½cult to manage in the future as dis- We have had, over the past gruntlement mounts and patience wanes. 10 years and more, a series Second, the npt is meant to prevent nuclear proliferation while promoting the spread of of three protracted nonpro- nuclear technology. The magic wand to make that possible is Article III of the npt, which liferation crises, none of calls for safeguards, inspections, and trans- parency. You are entitled, as a non-weapon- which has been successfully state signatory to the Treaty, to the full pan- addressed. oply of nuclear technology, so long as it is under safeguards and supervised by the iaea system. What I fear we may be seeing tween the West and the rest, we failed in 2005 is the slow-motion death of the safeguards to reach an agreement even for an agenda for regime, because it doesn’t cope with covert the conference, much less any kind of con- programs. It wasn’t intended or designed structive result. To all these woes it is neces- for that, but covert programs are a big part sary to add the startling revelations about of what we are worried about. In the context the A.Q. Khan network, which was a funda- of dual-use technologies–very much the mental challenge to the regime because it realm of the Iran crisis–judgments about involved a sub-state actor that was willfully intentions are absolutely decisive, but safe- and intentionally seeking to subvert and cir- guards give no de½nitive insight on Iranian cumvent the international constraints on intentions. We can only tell what their tech- nuclear technology around which the npt nological capacities are, and in conditions regime is built. of suspicion and hostility, even technically adequate inspections may be politically in- These were a series of body blows to the suf½cient. In the current crisis over the past regime. It hasn’t failed or collapsed, but the four or ½ve years, Iran has been the most regime is struggling to cope adequately with heavily inspected party in the history of the the current tests in front of it. Now we look iaea system. Its declared facilities have been to the future and imagine a world in which under comprehensive, full-scope safeguards, there are many more nuclear power reactors and I venture to say neither the United States and much more widely spread sensitive nu- government nor most other governments clear technology and ask, is the current sys- have been wholly reassured by that fact. tem–barely adequate, even inadequate in

76 Bulletin of the American Academy Winter 2009 Academy Meetings

Condensation Cloud of a Nuclear Blast. Photograph © Hulton-Deutsch Collec- tion/Corbis A World Free of Nuclear Weapons

Sidney D. Drell, William J. Perry, Sam Nunn, and George P. Shultz These remarks were given on the occasion of the awarding of the Rumford Prize to Sidney D. Drell, William J. Perry, Sam Nunn, George P. Shultz, and Henry A. Kissinger (in absentia) at the 1929th Stated Meeting, held at Harvard University on October 12, 2008.

Thank you very much for this award. To me, lenge to prevent a nightmare of that sort an academic scientist, this award from the from occurring. This opened a second track distinguished American Academy is a great in my career and led to my forming working honor indeed. Benjamin Thompson–Count bonds and friendships with political scien- Rumford–established this prize to recognize tists and government leaders, such as my fel- contributions to advancing our understand- low honorees here today. I want to recognize ing of nature, and with particular emphasis the importance of the American Academy on understanding light and heat, which, in and its committee on International Security the words of the Academy, can be very broad- and, in particular, the leadership of my good ly interpreted. Early in my career as a theo- and longtime friend Paul Doty in helping retical physicist, my primary goal was to me form such bonds. make such contributions; but over time I Today I am being honored for contributing realized that I could not escape the reality Sidney D. Drell to an effort not to advance our understand- that progress in nuclear science made back ing of heat and light, but to get rid of the Sidney D. Drell is Senior Fellow at the Hoover In- in the 1920s and 1930s had led to terrifying means of creating here on earth explosions stitution at Stanford University and Professor of new dangers to the very survival of our civi- that produce such monstrous quantities of Theoretical Physics Emeritus and Deputy Direc- lization on a global scale. I am speaking of heat and light and other forms of energy that tor Emeritus at the Stanford Linear Accelerator nuclear weapons, of course, capable of un- they could destroy us all. Since this initiative Center. He has been a Fellow of the American imaginable destructiveness. Increasingly, I presents technical as well as political chal- Academy of Arts and Sciences since 1971. found my scienti½c work drawn to the chal-

Bulletin of the American Academy Winter 2009 77 Academy Meetings lenges, and Count Rumford was a physicist and convince skeptics that our vision is not who was also interested very much in gun- a flight of fancy, but a practical goal. We powder and in various forms of armaments have been encouraged by strong and broad in general, I guess it is reasonable to conclude international support. that awarding this prize this way ½ts appro- There are also, of course, some who have pro- priately in the guidelines as the Count set tested that our initiative is not only futile, but them down to the Academy. even unwise and dangerous, a distraction The only way I know to get rid of the means from a policy of nuclear deterrence. After of creating devastatingly destructive explo- all, the United States and the former Soviet sions that pose a threat to our civilization is Union relied on nuclear deterrence to navi- to dismantle and destroy all nuclear weap- gate successfully through the perilous years ons. Realizing the vision of a world free of of the cold war. Against what seemed to me nuclear weapons is precisely the goal of our to be insurmountable odds, not one of the William J. Perry program. It is the vision that President Ronald many thousands of existing nuclear weapons Reagan and General Secretary Mikhail Gor- was detonated in military combat, although William J. Perry is the Michael and Barbara bachev brought to their remarkable summit there were numerous opportunities to do so. Berberian Professor at Stanford University, with in Reykjavik, Iceland, in 1986. Although they But it would be dangerously wrong to draw a joint appointment at the School of Engineering comfort from that achievement. Relying on and the Institute of International Studies. He is a The only way I know to get nuclear weapons for deterrence is becoming Senior Fellow at the Hoover Institution, a Senior increasingly hazardous and decreasingly ef- Fellow at the Freeman Spogli Institute for Interna- rid of the means of creating fective in a world with an accelerating spread tional Studies, and Codirector of the Preventive of nuclear know-how, weapons, and mate- Defense Project, Institute for International Stud- devastatingly destructive ex- rial. Today we are teetering on the edge of a ies. He has been a Fellow of the American Acad- new and more perilous nuclear era, facing a emy of Arts and Sciences since 1989. plosions that pose a threat growing danger that nuclear weapons, the most devastating instrument of annihilation to our civilization is to dis- or the last few years, working to reduce ever invented, may fall into the hands of those F nuclear danger has taken up most of my who do not shrink from mass murder on an mantle and destroy all nu- time; indeed, it has become a top priority unprecedented scale. With the spread of ad- in my life because I believe that the gravest clear weapons. vanced technology and renewed internation- danger facing the world today is a terror al interest in nuclear technology for civil group detonating a nuclear bomb in one of failed to close the deal–recall that in 1986 power generation, the threat of such a catas- our cities, and that this danger is not remote. the Berlin Wall still stood and we were still trophe looms more and more likely. It is also because my experiences during the in the midst of the cold war–Gorbachev and What will it take to prevent such a catastro- cold war have conditioned me to be especial- Reagan did start down the path of reducing phe? First, a sense of urgency that was lack- ly sensitive about the dangers of nuclear the sizes of these bloated nuclear arsenals. ing when two bold leaders, Reagan and Gor- weapons. To make this point, I will share However, without a vision of a world free of bachev, at Reykjavik posed the challenge to one experience from the most dangerous nuclear weapons, the nations of the world escape the trap of nuclear deterrence. It is period of the cold war, when I was the Un- have not pursued, with the intensity and the lacking still today. And second, strong lead- der Secretary of Defense for Research and boldness that the times require, the measures ership, with the United States at the helm Engineering. that could reduce nuclear dangers that we but with partners, to create and inspire that face. No doubt, rekindling or realizing the During the summer of 1978, I was awoken at sense of urgency. This means forging an ef- vision will be a very dif½cult goal to achieve. three o’clock in the morning by a phone call fective international effort to implement a It will require nothing less than a new deal from the watch of½cer at the North American set of practical steps to prevent the prolifer- between states that have nuclear weapons Air Defense Command. As I sleepily picked ation of nuclear weapons. My fellow hon- and those who, for now at least, have volun- up the telephone, the general got right to the orees, 35 other endorsers, and I proposed teered to forgo them. Progress will require point. His computers were indicating 200 such a set of steps in a Wall Street Journal op- cooperation on a global scale between na- icbms on their way from the Soviet Union ed of January 2008, “Toward a Nuclear-Free tions with very different economic and stra- to the United States. I immediately woke up. World.” And just as rekindling the vision of tegic aspirations as well as forms of gover- That was a false alarm, but the general had Reykjavik will be essential for these steps to nance. We recognize this in our program only 15 minutes to reach that judgment. He be broadly accepted as fair and urgent, the and have proposed a series of steps that we called me in the hopes that I could help him steps themselves are essential to achieve that consider both practical and necessary for the determine what had gone wrong so that he vision of a world free of nuclear weapons. United States to take, together with other would have a good explanation when he There is a lot of work to do. Thank you again nations in the world, to begin the journey briefed the President the next morning. for this honor.

78 Bulletin of the American Academy Winter 2009 Academy News

That call, of course, is engraved in my mem- On the ½rst visit, I went to the control cen- All of this is happening in parallel with the ory; but it is only one of three false alarms ter and observed a practice countdown, and emergence of catastrophic terrorism: 9/11 that occurred during my tenure in of½ce, after that unnerving experience, I then ob- made real to the United States, indeed the and I do not know how many more might served the removal of the ½rst batch of war- world, just how catastrophic terrorism could have occurred in the Soviet Union. So the heads. On my second visit, I observed the be. But a nuclear bomb detonated in one of risk of a nuclear catastrophe was never aca- removal of the ½rst batch of missiles, and on our cities would dwarf 9/11 in its catastrophic demic to me. my third I joined the Ukrainian and Russian effects. It is impossible to overstate the hu- defense ministers in pressing the buttons man, social, economic, and political catas- Ironically, during that same period I was re- that blew up one of the silos. Then, in the trophes that would result from such a deto- sponsible for the development of our coun- summer of 1996, I returned to Pervomaysk nation, and it must be the priority of all na- try’s nuclear weapons. In my tenure, I super- for my ½nal visit. I went with the Ukrainian tions to work seriously to prevent that out- vised the development of the B-2 bomber, and Russian ministers to the site where the come. The nuclear powers have a special re- the mx missile, the Trident submarine, the silos had previously been, and together we sponsibility in that regard, and I believe that Trident missile, the air-launched cruise mis- planted sunflowers at that site. the United States must lead the way. One sile, the ground-launched cruise missile, and important way for our new president to the sea-launched cruise missile. While I saw demonstrate American leadership is by em- clearly the risk in building this deadly nuclear The gravest danger facing bracing the goals of our nuclear security arsenal, I believed at the time it was necessary project. to take those risks in the face of the threats the world today is a terror of the cold war. But after the cold war ended, group detonating a nuclear Since the initiation of this project last Janu- I believed that it was no longer necessary to ary, I believe that we have turned a corner in take those terrible risks, and that we should bomb in one of our cities– dealing with the nuclear danger. More than begin to dismantle this deadly cold war a century ago, Victor Hugo wrote, “More legacy. and this danger is not remote. powerful than the threat of mighty armies is an idea whose time has come.” I believe My ½rst opportunity to act on this belief During my term in of½ce, we dismantled that working to eliminate this deadly nuclear came in 1994, when I was invited by Presi- about 10,000 nuclear warheads in the United legacy is an idea whose time has ½nally come, dent Clinton to become the Secretary of De- States and in the former Soviet Union, and but I also believe that it will take decades to fense. As the Secretary, my ½rst priority was we helped three nations go from being nu- achieve the ½nal goals of the project. Thus to begin to dismantle the cold war nuclear clear powers to non-nuclear powers. This we must train a new generation of security arsenal. The greatest immediate danger was was the ½rst time since the dawn of the nu- specialists to carry on the task as we retire that the nuclear weapons in Ukraine, Ka- clear age that proliferation had been reversed, from the scene. All of the members of our zakhstan, and Belarus would fall into the hands and I thought we were well on the way to nuclear security project are in their 70s and of terrorists. The tools that I had available containing the deadly nuclear arsenal of the 80s, and friends ask us why we are still work- to deal with this were the start Treaty, in cold war. Since then, though, the efforts to ing on security projects. I work every day at which Secretary had played a reduce the nuclear danger have stalled, and Stanford with young security specialists, key role; the Nunn-Lugar program, in which even reversed. Both Russia and China are and I will happily pass the baton to them Senator Sam Nunn had played a key role; and now developing new nuclear warheads. The when I retire from the scene. But I’m not the cooperation of Russia. My major concern start Treaty expires in 2009, and there ready to do that just yet. Indeed, when asked was the nuclear arsenal in the Ukraine. When have been no further treaties to dismantle why I am still teaching, why I am still taking the Soviet Union collapsed, Ukraine inherit- nuclear weapons. The United States has not red-eyes to Washington, and why I do not ed all of the nuclear weapons then on its soil. yet rati½ed the Comprehensive Test Ban retire to some pleasant grove, I reply with At the time, they had more nuclear weapons Treaty, signed more than 12 years ago. India words inspired by Robert Frost: than the United Kingdom, France, and China and Pakistan have gone nuclear. A.Q. Khan combined. Worse, they were going through The woods are lovely, dark, and deep. has covertly sold Pakistan’s nuclear tech- a period of social, economic, and political But I have promises to keep, nology to an unknown number of nations. turbulence. Fortunately, the Ukrainian gov- And miles to go before I sleep, North Korea has built a small quantity of ernment made a courageous and enlightened And miles to go before I sleep. nuclear weapons and tested one of them. decision to give up their nuclear weapons, Iran is developing the capability to produce and using the Nunn-Lugar program, we as- nuclear fuel, which, if completed, would give sisted them in the dismantlement process. it the option of building nuclear weapons With permission of the Ukrainian president, within a few months. If Iran and North Ko- I personally supervised the dismantlement rea proceed on their present path, there is a of their nuclear weapons, visiting four times real danger of a veritable cascade of nuclear their primary icbm base at Pervomaysk, proliferation. which at the time had 700 nuclear warheads, all aimed at targets in the United States.

Bulletin of the American Academy Winter 2009 79 Academy Meetings

many with the head of U.S. Air Force, Europe. cal challenges. We have taken aim at those The general explained that in the event of war, challenges by laying out a number of steps, he had only a couple of minutes to launch which I believe are doable even though they all of what were known as quick-reaction are very dif½cult. We cannot reduce the nu- aircraft, or they would be destroyed. These clear threat without taking these steps. We planes and forward bases were the ½rst tar- cannot take these steps without the cooper- gets for the Soviets because they would de- ation of other nations. We cannot get the liver the ½rst nuclear weapons to strike the cooperation of other nations without the Soviet Union, or at least that is what the So- shared vision of ending these weapons and viet Union anticipated. The fact that the fate their threat to the world. of mankind rested on the shoulders of only Many people’s reaction to the vision of a a few people on each side who had only a few world without nuclear weapons comes in moments, as Bill Perry described, to decide two parts. On the one hand, most people Sam Nunn whether to launch nuclear weapons made a say, “Boy, that would be great”; on the other, lasting impression on me. I pledged to my- “We simply can’t get there from here.” But Sam Nunn is Cochairman and Chief Executive self then that if I ever had a chance to work there is hope. In the 1990s, under Bill Perry’s Of½cer of the Nuclear Threat Initiative, Distin- on the problem, I was going to tackle it. guished Professor at the Sam Nunn School of capable leadership as the Secretary of De- International Affairs at the Georgia Institute of fense, we made a deal to buy highly enriched Technology, and Chairman of the Board of the I believe that the greatest uranium from Russian warheads that were Center for Strategic and International Studies. danger we face is the possi- aimed at the United States, blend it down, He has been a Fellow of the American Academy make it into nuclear fuel, and use it in our of Arts and Sciences since 1997. bility of a catastrophic nu- power plants. Today, after a number of years working on that program, we have made tre- clear attack by a terrorist mendous progress. If you think about it, ap- am deeply grateful to be here today and I proximately 20 percent of the electricity in to receive this wonderful honor from the group that does not have a the United States is supplied by nuclear pow- Academy. When you look at the history of er; 50 percent of the nuclear fuel that goes the Academy and its contributions to the return address and therefore into that nuclear power is supplied by high- expansion and enhancement of knowledge, ly enriched uranium that has been blended it is truly awesome and humbling. And when is unlikely to be deterred. into low-enriched uranium and made into I think of receiving the Rumford Prize along- Today the cold war is over, but we face new nuclear fuel that 20 or 25 years ago was in side George Shultz, Bill Perry, and Sid Drell, nuclear dangers. I believe that the greatest warheads aimed at the United States. So three of our nation’s most effective and bril- danger we face–Bill just said this, and I agree when you look at the lights in this room or liant leaders, somehow I am reminded of the with him completely–is the possibility of any other room in America, theoretically Camelot character by the name of Mordred, a catastrophic nuclear attack by a terrorist 10 percent of those light bulbs are fueled by of whom Lady Guinevere once observed, group that does not have a return address material that was in the form of weapons “The only thing I can say for him is that he and therefore is unlikely to be deterred. As aimed at America in the 1970s and the 1980s. is bound to marry well, because everybody those of us being honored today have point- Swords to plowshares: we have hope. is above him.” I am honored to be an appren- ed out, the accelerating spread of nuclear tice in this group of, what shall I say, mature When I think about the goal of a world free weapons, nuclear materials, and nuclear leaders. of nuclear weapons, to me it is like a very know-how has brought us to a nuclear tip- tall mountain. It is tempting and easy to say Secretary Dean Atchison–George Shultz ping point. Indeed, we are in a race between we can’t get there from here. It is true that will identify with this, I’m sure–was once cooperation and catastrophe. today our troubled world cannot even see asked to de½ne foreign policy. He thought a I frequently ask myself two questions: the the top of the mountain. But we can see that moment and replied, “Foreign policy is one day after a nuclear attack on one of the cities we are heading down, not up; we can see damn thing after another.” I realized at a rel- of the world, what would we wish we had that we must turn around, that we must take atively young age that nuclear weapons were done to prevent it? And why aren’t we do- paths leading to higher ground, and that we not just another thing, but that indeed they ing it now? In our Wall Street Journal article, must get others to move with us. I am pro- held hostage the future of mankind. I was we call for building a solid consensus for re- foundly grateful to the Academy for telling a 24-year-old lawyer for the House Armed versing reliance on nuclear weapons glob- the world through this Prize how urgent it is Services Committee on a three-week Air ally, as a vital contribution to preventing for the survival of humanity that we stop our Force trip to Europe when the Cuban Mis- their proliferation and ultimately ending descent and ½nd paths up the mountain to- sile Crisis broke out. During that period, their threat to the world. We are all keenly ward a world free of nuclear weapons. while the world held its breath, our delega- aware that the quest for a world free of nu- tion met at Ramstein Air Force Base in Ger- clear weapons is fraught with many practi-

80 Bulletin of the American Academy Winter 2009 Academy News

fort to reduce the number of nuclear weapons had all of the close calls that Bill Perry out- that each side held. In the course of the dis- lined so dramatically, that deterrence–the cussion, Reagan and Gorbachev found them- ability to wipe each other out–kept the selves agreeing on the desirability of elimi- peace. It was pretty tenuous. nating nuclear weapons altogether. considered it immoral to think that we de- fend ourselves that way, but people thought There were no leaks from the Reykjavik meet- that it worked. The Wall Street Journal piece, ing because we were quite open about every- as I see it, jolted people. Since the end of the thing that happened. When I got back to cold war, people had gone to sleep on this is- Washington, Margaret had arrived. sue, and they now saw what had been hap- She summoned me to the British Ambas- pening. As Sam puts it, we are going down sador’s residence, and I learned about a verb the mountain, toward a situation of great in the British language. Remember that danger. People suddenly perceived that, and Margaret used to carry a hard handbag all George P. Shultz now they are interested. the time. Well, in the British language, there George P. Shultz is Thomas W. and Susan B. Ford is a verb “to be handbagged.” And I really I think also–and this is a lesson for moving Distinguished Fellow at the Hoover Institution at got handbagged. She said, “George, how ahead–people were struck by the series of Stanford University. He is Chairman of the JP- could you sit there and allow the President steps that were outlined in the article: they Morgan Chase International Council, Chairman to agree to eliminating nuclear weapons?” I saw the task not just as a great idea, but as of the Energy Task Force at the Hoover Institution, said, “Margaret, he’s the President!” “Yes, something that might actually be achieved and Chairman of the mit Energy Initiative Ex- but you’re supposed to be the one with his because there was a roadmap of things that ternal Advisory Board. He has been a Fellow of the feet on the ground, keeping things stable.” could be done and that were seen as doable. American Academy of Arts and Sciences since 1970. “But, Margaret, I agreed with him.” Her re- I think, too, there may be an instinctive re- action was more dramatic than most, but it action, at least by people who work on the was the general reaction in Washington: subject, to improve our stance as we think share with my colleagues gratitude to the I that this was a crazy idea. ahead to the Nonproliferation Treaty review Academy for this award; it is a great honor. and other such efforts. In a way, saying non- But as Sam just said, it is also a way of calling proliferation puts you in a defensive stance: attention to the urgency of our program. And I believe we are not nearly as you are trying to defend against something in that respect, I welcome and applaud the well-prepared as we should to stop it. I think what we perhaps have Academy’s continuing interest, demonstrat- achieved, or are in the process of achieving ed through its own programs focused on in- be to conduct, steadily and if we can go forward with this, ½ts that old ternational security and the global nuclear saying, “the best defense is a good offense.” future. with people of high stand- This puts us on the offensive; we are for By this time in the program, what more is ing, the kind of imaginative something. Within that framework, you can there to say? Well, I have thought of two talk about nonproliferation in a much more things. First, I am struck by the contrast be- global diplomacy we need. convincing way. At any rate, I can’t help but tween the reactions of people to what hap- notice the difference in reaction between pened at Reykjavik and to the initiative that Reykjavik and now, and it is very heart- Now, 20 years or so later, the reaction to our we have launched. I want to talk about that warming. op-ed in the Wall Street Journal is entirely dif- and ask, why the difference in reaction? ferent. Yes, there are some people who don’t We have published a book that reprints the Second, I would like to discuss some of the like the idea; but, interestingly, most people full transcript of the conversation at Reyk- implications of moving ahead for the status think that the steps we outline in that article javik between Reagan and Gorbachev (and a of our diplomatic capability, and the way it will move us toward a safer world. The posi- few words by me and Shevardnadze, but the should be conducted. tive reaction has been astonishing. By this two leaders totally dominated the discus- In Reykjavik we were in a tiny room in Höfdi time, something like three-quarters of the sion). A wonderful scholar at Stanford, David House. At one end of the table sat President former secretaries of state and defense and Holloway, dug around in the Hoover archives Ronald Reagan; at the other, General Secre- national security advisors have publicly come and found, amazingly, the instructions the tary Mikhail Gorbachev. I had the privilege on board, and we have had all sorts of indi- Politburo gave to Gorbachev, including all of sitting beside President Reagan, and my cations from people in other countries of of his red lines, as he went to Reykjavik. counterpart, Soviet Minister of Foreign Af- their interest. It has been quite heartening. That document is also reprinted in the book. fairs Eduard Shevardnadze, sat beside Gen- I read it and said, “Boy, do I wish I’d had that So I ask myself, why the difference in the re- eral Secretary Gorbachev. There we were for document before the summit.” action? First, during the height of the cold two full days, talking about a huge range of war, people were convinced, even though we My second topic is: what about implications issues, but with the main emphasis on an ef- for the future, as far as our diplomacy is con-

Bulletin of the American Academy Winter 2009 81 Academy Meetings cerned? There are lots of things that need take full-time jobs in government; that’s to be done, but what about our diplomacy? probably out of the question. But in my ex- First, I would say that I believe we are ill- perience, if you have an important mission equipped; we are not nearly as well-pre- and ask scientists to come and work at it pared as we should be to conduct, steadily part-time or give it a burst of attention, they and with people of high standing, the kind are anxious and willing to do it. We have to of imaginative global diplomacy we need. identify the Sid Drells of this world. There The Secretary of State or the Secretary of aren’t very many Sid Drells, but there are Defense can’t do everything. You need re- lots of people who can be extremely helpful. ally able people, and they need a support There is no point in sending a person who group that is strong. We need a bigger For- doesn’t have deep scienti½c training out to eign Service. We need to try to get some of negotiate on these issues, because the in- those wonderfully skilled people, who are trinsic content of the issues requires some- retiring at alarming levels just when they are one who understands them from the inside at the height of their powers, to come back. out. That’s another attribute of our diplo- macy that needs to be developed very strong- I don’t think you really can ly. It is an interesting, somewhat ironic de- velopment that the most eloquent spokes- get anywhere in negotiating man for improving our diplomatic capabil- ity right now turns out to be the Secretary of on this issue without work- Defense, Bob Gates, who talks about this all ing alongside high-powered the time. He realizes how important it is. These are some impressions on reactions to scienti½c people. It has to be Reykjavik, then and now, and some thoughts about the kind of effort we must make to a joint enterprise, which has improve our diplomatic capability in order to be built right into our to support a president if he decides to go forward with this. It is wonderful to see that diplomacy. both presidential candidates have, to some extent, endorsed this program. I hope who- ever loses will support the winner in going And we need to make it inviting for political forward. It is sometimes said to us as au- appointees to come in. When I was in of½ce, thors of the Wall Street Journal piece, “Isn’t it I had the likes of Paul Nitze, John White- nice that this initiative is bipartisan?” And head, Mike Armacost, Roz Ridgway, Chet we all say, “Really, it’s not bipartisan, it’s Crocker, and Max Kampelman. You need to nonpartisan.” This is not a Republicans-ver- have big people like that. You can send them sus-Democrats subject. It is a subject to be to a head of government anywhere and they debated among Americans on its merits, are listened to, not just because they are rep- and it should go forward on those merits. resenting the United States, but because they That’s the way we work at it. are Paul Nitze. Those heads of state know that when a representative like that comes Once again, thank you for the honor, and home, everybody is going to listen to what thank you for the opportunity to talk to this he has to say, so it is worth talking to him. distinguished group and to listen once again We have to strengthen ourselves dramati- to my colleagues. I always learn from any as- cally compared with where we are right now. sociation with these gentlemen. I don’t think you really can get anywhere in negotiating on this issue without working alongside high-powered scienti½c people. It © 2009 by Sidney D. Drell, William J. Perry, has to be a joint enterprise, which has to be Sam Nunn, and George P. Shultz, respec- built right into our diplomacy. I don’t mean tively by that that we should aspire to attract lots of high-powered, top-notch scientists to

82 Bulletin of the American Academy Winter 2009 Reflections

Three Moles

Paul A. Samuelson

In that 1945 springtime, as one of the few John (Jack) Edsall, a biochemist at Harvard, mathematical social scientists in the Radia- was the oldest of us three. Next came Robert tion Laboratory at the Massachusetts Insti- (Rob) Morison, physiologist, M.D., and tute of Technology (mit), I was sounded head of biology for the powerful Rockefeller out for the job of writing the history of the Foundation. (Rob and his brother, my mit Los Alamos nuclear bomb project–a para- colleague Elting Morison, were cousins of doxical offer since of½cially I couldn’t know Harvard historian Samuel Eliot Morison.) I, that there was such a project. But no matter: not yet thirty, was the most junior, but I was wild horses could not have drawn me to that, the one most conversant with the mathemat- or any, history job. Postwar macroeconomic ical branches of the social sciences. challenges were already keeping me awake Throughout it was made clear to one and all at night. that we three were to be solely helpers in However, a second challenge arose that I drafting and in arranging and recording in- felt I could not, in good conscience, refuse. terviews of myriad viewpoints. We ½nished Paul A. Samuelson Vannevar Bush, former Vice President of our part of the job within a couple of months, my own mit, had become Roosevelt’s vir- I think, but the three of us learned a lot that Paul A. Samuelson, a Fellow of the American tual czar for science. To map out the govern- went beyond what we knew about the Ivy Academy since 1942, is Institute Professor of ment’s peacetime organizations for science, League or the Big Ten. There was much to Economics Emeritus at the Massachusetts based on lessons learned during World War learn about labs at at&t, ibm, Mayo, West- Institute of Technology. He was awarded a II itself, Bush was formulating the basic doc- inghouse, Brookings, or United Shoe Ma- Noble Prize in Economics in 1970. ument that became Science: The Endless Fron- chines. We learned that at President Robert tier. Advising Bush was a stellar committee Hutchins’s University of Chicago, my un- of representative eminent scientists, includ- dergraduate alma mater, never were equal After Easter 1945, within the World War II ing I. I. Rabi from Columbia and elsewhere; percentage pay raises ever given. In terms of research labs, conviction grew that Hitler’s Oliver Buckley, head of the prestigious Bell 1945 dollars, a tenured woman full professor defeat was just around the corner. Under- Labs; and wunderkind Edwin Land, a Harvard in classics might have a $3,900 salary, while standably, hopes for a return to peacetime dropout who pioneered Polaroid, where or- a physicist-chemist might have a $70,000 academic life began to emerge. Canny guys ganic chemist Bob Woodward had just syn- salary, a vast difference traced, partially, to within the Of½ce of Strategic Services and thesized quinine. how much of a chemist’s consulting earn- intelligence units knew that Germany, after ings accrued to the university itself. its Stalingrad defeat, could not hope to win A member of and secretary to Bush’s com- mit the war. In the Paci½c, after the Battle of Mid- mittee was my colleague, Rupert Mac- On Bush’s advisory committee there was a way, Allied code breakers had made certain Laurin, son of Richard MacLaurin, the for- diversity of opinions: cautious, conserva- mit that Japan, too, could not win its war. But mer President of who in 1916 converted tive, activistic. (Bush himself never met per- Main-Street Yanks and Brits, almost up to what had been Boston Tech into the modern sonally with his committee’s deliberators.) the last gunshots, could still fear the worst. Massachusetts Institute of Technology. Ru- For brevity’s sake, I’ll focus on the main (As a dramatic example, Joseph Schumpeter, pert, a dynamic go-getter who earned the split in scientists’ views and in academic ad- my Austrian Harvard mentor, isolated in ½rst Harvard Business School PhD in eco- ministrators’ views. nomics (and who was the ½rst to ski over Cambridge, Massachusetts, from Decem- Many persons, maybe most, were impressed the Andes), knew that as a non-scientist he ber 7, 1941 to August 1945, when the nuclear with how much had been accomplished dur- would need to recruit a knowledgeable staff bombs fell on Japan, could still believe until ing the war in governmental scienti½c agen- of helpers. Three of us were picked as scriven- very late that Hitler was winning the war.) cies: early radar at the National Bureau of ers to the secretariat and, thus, indirectly to Standards; operations research at mit and Bush’s scienti½c advisors and potentially to the Air Force; underwater sound research at Bush himself.

Bulletin of the American Academy Winter 2009 83 Reflections

Harvard; research in the Radiation Labora- in no sense movers and shakers: Yankee inal treatise that changed economics and tory at mit; physics research in labs at Chi- Vannevar Bush was not one to be swayed by won a Nobel Prize for me. Nor, fortunately, cago, Columbia, and UC Berkeley; and the ribbon clerks’ syllogisms or dreams. Causa- did they abort my planned career program Los Alamos project. There was cryptology tion went the other way; we scriveners ad- to alter postwar introductory textbooks. research, too, but this was hush-hush. justed toward what might become feasible. After half-a-century and a score of revisions, Samuelson’s ECONOMICS still survives as By contrast, a minority on the committee Our own views, in retrospect, were less than one of the best sellers (now especially to a with strong libertarian views feared these perfect. We were a bit fearsome that non-uni- million Chinese readers). accomplishments, lest the camel of govern- versity laboratories might grow stale and non- ment take over the whole tent. Two reputa- innovative in the absence of university teach- Summing up, ideologies do play a role in ble presidents of great universities (who can ers and students; nih and rand think evolving scienti½c development. I dare to be nameless) favored dividing whatever bil- tanks proved us to have been overly skeptical. hope that a science with both a libertarian lions the federal government would allocate Milton Friedman and an eclectic centrist A reader may say the nation got much that to science in strict proportion to state and Paul Samuelson is all the better for its was needed because it was all an obvious county populations. Equal-sized geographi- diversity. “lay-down hand.” Yes, maybe. But let me cal counties in, say, Massachusetts and rural mention that my longtime Harvard friend, South Dakota should have the same dollars Willard Van Orman Quine, arguably one of © 2009 by Paul A. Samuelson to “spend on science.” Otherwise, they al- the three greatest logicians of the twentieth leged, certain pushy New York City scholars century, wrote in Dædalus in 1974 that, to with sharp elbows would end up with the paraphrase, all those dollars of federal aid to lion’s share of federal grants. (Remember science and scholarship had (net!) a negative that notions of political correctness change effect on the advancement of science! Go a lot every half century, and I have softened ½gure. Though both MacLaurin and I were their language.) whelped in Schumpeter’s entrepreneurial At another extreme, a committee member innovation workshop at Harvard, we under- like Edwin Land favored U.S. merit grants to estimated the burgeoning of Silicon Valley support university dropouts, like Land him- and venture-capital innovational productiv- self had been and what Bill Gates was later ity centers. to be. Deductive logic cannot prove or disprove As the only living survivor of our trio, how policy propositions. Speaking for myself, I should I describe the rather eclectic middle- am glad that I was drafted for a couple of of-the-road policies we three came to hope months for duties on this new frontier, for? The best policies of what the Edsall- where my specialized training and aptitudes Morison-Samuelson trio actually hoped for could be useful. As I sum up in memory did come to be realized–fortunately real- those months devoted to postwar scienti½c ized–by what Science: The Endless Frontier institutions, I must suspect that my per-hour recommended, including, prominently, contribution to the good society was acci- Pentagon support for technical innovations; dentally near to my lifetime maximal do- National Institutes of Health (nih) for gooding. broad medical research; National Science Maybe through my many writings and advis- Foundation for soft-money grants to appli- ing to Congress, the Federal Reserve, presi- cants in physics, biology, and in the more dents, and voters over the years I have been metric branches of such social sciences as a useful citizen. Those end-of-war weeks with psychology, mathematical statistics, and Jack and Rob delayed only a little my writing econometrics; and nasa. It should be Foundations of Economic Analysis (1947), a sem- stressed, however, that the three of us were

84 Bulletin of the American Academy Winter 2009 Noteworthy

As of press time, several Fel- Lawrence Summers (Harvard Other Awards Morton M. Denn (The City Col- lows of the Academy have University): Director of the lege of New York) is the recipient National Economic Council James S. Ackerman (Harvard Uni- of the 2008 Founders Award of been invited to serve in sen- versity) was awarded the Golden the American Institute of Chem- Cass Sunstein (Harvard Law ior roles in President Barack Lion for Lifetime Achievement by ical Engineers. School): Administrator of the La Biennale di Venezia. Obama’s administration: Of½ce of Information and Reg- John E. Dowling (Harvard Uni- ulatory Affairs Robert Axelrod (University of versity) received the Paul Kayser Ashton Carter (Kennedy School Michigan) is among the recipi- International Award in Retina Harold Varmus (Memorial Sloan- of Government, Harvard Univer- ents of the Wilbur Lucius Cross Research from the International Kettering Cancer Center): Cochair sity): Under Secretary of Defense Medal. Society for Eye Research. of the President’s Council of Ad- for Acquisition, Technology and (Rockefeller Logistics, Department of Defense visors on Science and Technology Leon Eisenberg (Harvard Univer- University) is the recipient of the sity) was presented with the in- Paul Volcker (New York City): Steven Chu (University of Cali- 2009 augural Ibor Award from the Chair of the President’s Economic fornia, Berkeley; Lawrence Berke- from the National Academy of World Psychiatric Association. ley National Laboratory): Secre- Recovery Advisory Board Sciences. tary of Energy Mostafa El-Sayed (Georgia Insti- Charles L. Bennett (Johns Hop- tute of Technology) was awarded Richard C. Holbrooke (Perseus, Select Prizes and Awards kins University) was awarded the the Ahmed Zewail Prize in Mo- llc): Special Envoy to Afghani- 2009 Comstock Prize in Physics lecular Sciences. stan and Pakistan by the National Academy of Sci- ences. Stanley Falkow (Stanford Uni- John Holdren (Woods Hole Re- Nobel Prizes, 2008 versity) is the recipient of the search Center; Kennedy School Leo L. Beranek (Boston, MA) was 2008 Lasker-Koshland Special of Government, Harvard Univer- Physics awarded the 2008 Vladimir Kara- Achievement Award in Medical sity): Assistant to the President petoff Award by Eta Kappa Nu. Science. for Science and Technology, Di- Yoichiro Nambu (University of Chicago) Mina J. Bissell (Lawrence Berke- Martin Feldstein (Harvard Uni- rector of the White House Of½ce ley National Laboratory) was of Science and Technology Policy, versity) is the recipient of the Chemistry awarded the Medal of Honor for and Cochair of the President’s 2008 Butler Award, given by the Basic Research by the American New York Association for Busi- Council of Advisors on Science Martin Chal½e (Columbia Uni- Cancer Society. and Technology versity) ness Economics. Peter Robert Lamont Brown Andrea Ghez (University of Cal- Elena Kagan (Harvard Law Roger Y. Tsien (University of (Princeton University) was School): Solicitor General California, San Diego) ifornia, Los Angeles) was named awarded the 2008 Kluge Prize a 2008 MacArthur Fellow. Alan B. Krueger (Princeton Uni- for Lifelong Achievement in the versity): Assistant Secretary of National Medal of Science, Study of Humanity. He shared Herbert Gleiter (Institut für Treasury, Economic Policy 2007 the prize with Romila Thapar Nanotechnologie) is the recipient (Jawaharlal Nehru University in of the 2008 Von Hippel Award (Broad Institute; Mostafa El-Sayed (Georgia Insti- New Delhi). of the Materials Research Society. Massachusetts Institute of Tech- tute of Technology) nology; Harvard University): Co- Theodore Lawrence Brown (Uni- Richard J. Goldstone (Constitu- chair of the President’s Council Leonard Kleinrock (University versity of Illinois at Urbana- tional Court of South Africa) is of Advisors on Science and Tech- of California, Los Angeles) Champaign) has been awarded the recipient of the MacArthur nology the 2008 Harry and Carol Mosher Award for International Justice, Robert Lefkowitz (Duke Univer- given by the John D. and Cather- sity) Award of the American Chemi- Jane Lubchenco (Oregon State cal Society. ine T. MacArthur Foundation. University): Administrator of Bert W. O’Malley (Baylor College Robert Greenstein (Center on the National Oceanic and Atmos- of Medicine) Thomas C. Bruice (University of pheric Administration. California, Santa Barbara) was Budget and Policy Priorities) is Charles P. Slichter (University of awarded the 2008 Linus Pauling the recipient of the Heinz Award Daniel Meltzer (Harvard Law Illinois at Urbana-Champaign) Medal of the American Chemi- in Public Policy. School): Principal Deputy Coun- cal Society. sel to the President Andrew J. Viterbi (University of Lars Peter Hansen (University of Chicago) is the recipient of the dla Southern California) Luis Caffarelli (University of cme msri George Mitchell ( Piper): Texas at Austin) received the 2008 Group- Prize in Special Envoy to the Middle East 2009 Leroy P. Steele Prize for Innovative Quantitative Applica- Christina Romer (University of National Medal of Technology Lifetime Achievement from the tions. California, Berkeley): Chairper- and Innovation, 2007 American Mathematical Society. Russell Hemley (Carnegie Insti- son of the Council of Economic Paul Baran (Novo Ventures, Inc.) Susan Carey (Harvard University) tution for Science) is the recipi- Advisers was awarded the 2009 David E. ent of the 2009 Bridgman Award, Anne-Marie Slaughter (Prince- Rumelhart Prize. given by the International Asso- ton University): Director of the ciation for the Advancement of Of½ce of Policy Planning, De- High Pressure Science and Tech- partment of State nology.

Bulletin of the American Academy Winter 2009 85 Noteworthy

John G. Hildebrand (University Galen Stucky (University of Cal- Arthur Levitt (Carlyle Group) Non½ction of Arizona) was elected a 2008 ifornia, Santa Barbara) was pre- has been appointed to the Board Fellow of the Entomological So- sented with the Department of of Trustees of Westport Country Henry J. Aaron (Brookings Insti- ciety of America. Defense’s Advanced Technology Playhouse. tution) and Leonard E. Burman Applications for Combat Casu- (Urban Institute). Using Taxes to Susan Band Horwitz (Albert J. D. McClatchy (Yale University) alty Care Award. Reform Health Insurance. Brook- Einstein College of Medicine of has been named President of the ings Institution Press, December Yeshiva University) was awarded Twyla Tharp (Twyla Tharp American Academy of Arts and 2008 the Medal of Honor for Clinical Dance Company) is among the Letters. Research by the American Can- recipients of the 2008 Kennedy Peter Ackroyd ( London Times, Bruce S. McEwen (Rockefeller cer Society. Center Honors. United Kingdom). Poe: A Life Cut University) was named to the Short. Doubleday/Talese, January David M. Kennedy (Stanford Anne Treisman (Princeton Univer- Scienti½c Advisory Board of Al- 2009 University) is among the recipi- sity) is the recipient of the 2009 lostatix llc. ents of the Wilbur Lucius Cross University of Louisville Grawe- Daniel Barenboim (Chicago Sym- James E. Rothman (Yale Univer- Medal. meyer Award for Psychology. phony Orchestra). Music Quick- sity) was appointed to the Board ens Time. Verso, November 2008 Edward M. Kennedy (United Laurence H. Tribe (Harvard Law of Directors of Introgen Thera- States Senate) was awarded the School) is the recipient of the peutics, Inc. Larry Bartels (Princeton Univer- Medal of Honor for Cancer 2009 Outstanding Scholar Award sity). Unequal Democracy: The Po- Nicholas Stern (London School Control by the American Can- from the American Bar Founda- litical Economy of the New Gilded of Economics and Political Sci- cer Society. tion. Age. Princeton University Press, ence) was appointed Trustee of April 2008 Laura L. Kiessling (University of Edward O. Wilson (Harvard Uni- the British Museum. Wisconsin-Madison) is among versity) is the recipient of a Life- Michael Bloomberg (Of½ce of Patty Stonesifer (Bill & Melinda the recipients of the Wilbur Lu- time Achievement Award from the Mayor, New York City). Do Gates Foundation) was elected cius Cross Medal. the National Council for Science the Hard Things First (and Other Chair of the Board of Regents of and the Environment. Bloomberg Rules for Business and Neal Lane (Rice University) was the Smithsonian Institution. Politics). Perseus/Vanguard, Feb- awarded the Public Welfare Med- William Wulf (University of Vir- ruary 2009 al of the National Academy of ginia) received the Award for Dis- Sciences. tinguished Public Service from Select Publications John Bogle (The Vanguard the Institute of Electrical and Group, Inc.). Enough: True Mea- George Lucas (Lucas½lm Ltd.) is Electronics Engineers in the sures of Money, Business, and Life. the recipient of the Art Directors United States. Poetry Wiley, November 2008 Guild’s Outstanding Contribution to Cinematic Imagery Award. Lucille Clifton (St. Mary’s Col- Alan Boss (Carnegie Institution lege of Maryland). Voices. Boa, of Washington). The Crowded Peter Matthiessen (Sagaponack, New Appointments November 2008 Universe: The Search for Living NY) won the National Book Planets. Basic Books, February Award for ½ction for The Shadow Johnnetta Cole (Bennett College) Geoffrey Hill (Cambridge, United 2009 Country. has been named Director of the Kingdom). Selected Poems. Yale National Museum of African Art. University Press, March 2009 Paul Brest (William and Flora Richard A. Meserve (Carnegie Hewlett Foundation) and Hal Institution for Science) is the re- William Dally (Stanford Univer- J.D. McClatchy (Yale University). Harvey (William and Flora cipient of the 2008 Philip Hauge sity) has been named Chief Sci- Mercury Dressing. Knopf, Febru- Hewlett Foundation). Money Abelson Award of the American entist and Vice President of Re- ary 2009 Well Spent: A Strategic Guide to Association for the Advancement nvidia search of . J.D. McClatchy (Yale University) Smart Philanthropy. Bloomberg of Science. (University of and Stephen Yenser (University Press, November 2008 Margaret Murnane (University California, Berkeley) has been ap- of California, Los Angeles), eds. Paul Brest (William and Flora of Colorado at Boulder) has been pointed Vice President of Discov- Selected Poems by James Merrill. Hewlett Foundation), Sanford named a National Security Sci- ery Research at Genentech, Inc. Knopf, October 2008 Levinson (University of Texas ence and Engineering Faculty Jan Ake Gustafsson (Stockholm, at Austin School of Law), Jack Fellow by the U.S. Department Sweden) was appointed to the Balkin (Yale Law School), Akil of Defense. Fiction Scienti½c Advisory Board of Bio- Reed Amar (Yale Law School), Emiko Ohnuki-Tierney (Univer- novo, Inc. Aaron Appelfeld (Ben-Gurion and Reva Siegel (Yale Law School). sity of Wisconsin-Madison) was University of the Negev, Israel). Process of Constitutional Decisions: Yuan T. Lee (University of Cali- named to the John W. Kluge Cen- Laish. Schocken, March 2009 2008 Case Supplement. Aspen fornia, Berkeley) has been elected ter’s Chair of Modern Culture. Publishers, Inc., August 2008 President of the International Louis Auchincloss (New York (Johns Hopkins Council for Science. City). Last of the Old Guard. Bruce Cain (University of Califor- University) was named a 2008 Houghton Mifflin, December nia, Berkeley), Todd Donovan Lawrence Lessig (Stanford Uni- MacArthur Fellow. 2008 (Western Washington Univer- versity) has been appointed Di- sity), and Caroline Tolbert (Uni- Louise Erdrich (Minneapolis, Choon Fong Shih (National Uni- rector of Harvard University’s versity of Iowa). Democracy in the Minnesota). The Red Convertible: versity of Singapore) received Edmond J. Safra Foundation Cen- States: Experiments in Election Re- Selected and New Studies, 1978– the Ted Belytschko Applied Me- ter for Ethics. form. Brookings Institution 2008. Harper, January 2009 chanics Award. Press, June 2008 Elie Wiesel (Boston University). A Mad Desire to Dance. Knopf, February 2009

86 Bulletin of the American Academy Winter 2009 Academy News

Keith Christiansen (Metropoli- Loren Graham (Massachusetts Thomas Nagel (New York Univer- William Julius Wilson (Harvard tan Museum of Art). Duccio and Institute of Technology) and sity), ed. A Brief Inquiry into the University). More than Just Race: the Origins of Western Painting. Jean-Michel Kantor (Institut de Meaning of Sin and Faith with “On Being Black and Poor in the Inner Yale University Press, February Mathématiques de Jussiu, Paris, My Religion” by John Rawls. Harvard City. Norton, March 2009 2009 France). Naming In½nity: A True University Press, March 2009 Theodore Ziolkowski (Princeton Story of Religious Mysticism and Carl Djerassi (Stanford Univer- Mike Nichols (New York City), University). Mythologisierte Gegen- Mathematical Creativity. Harvard sity). Four Jews on Parnassus–A Twyla Tharp (Twyla Tharp wart: Deutsches Erleben seit 1933 in University Press, March 2009 Conversation: Benjamin, Adorno, Dance Company), Mitsuko Antikem Gewand. Wilhelm Fink Scholem, Schönberg. Columbia Francine du Plessix Gray (New Uchida (London, United King- Verlag, January 2008 University Press, October 2008 York City). Madame de Staël: The dom), John Lahr (The New Yorker), Theodore Ziolkowski (Princeton First Modern Woman. Atlas, Octo- and Andre Gregory (New York Wendy Doniger (University of University). Minos and the Mod- ber 2008 City; London, United Kingdom). Chicago). The Hindus: An Alter- erns: Cretan Myth in Twentieth- Performance: Richard Avedon. native History. Viking/Penguin, James S. House (University of Century Literature and Art. Oxford Abrams, October 2008 March 2009 Michigan), Robert F. Schoeni University Press, June 2008 (University of Michigan), George Richard E. Nisbett (University of Gerald Early (Washington Uni- A. Kaplan (University of Michi- Michigan). Intelligence and How to versity in St. Louis) and E. Lynn gan), and Harrold Pollack (Uni- Get It: Why Schools and Cultures Harris (Atlanta, Georgia; Fayet- versity of Chicago). Making Count. Norton, February 2009 We invite all Fellows and teville, Arkansas). Best African Americans Healthier: Social and Eco- For eign Honorary Members American Fiction, 2009. Bantam, Ronald Numbers (University of nomic Policy as Health Policy. Rus- January 2009 Wisconsin-Madison). Galileo Goes to send notices about their sell Sage Foundation, January to Jail and Other Myths about Science recent and forthcoming pub- Marian Wright Edelman (Chil- 2008 and Religion. Harvard University lications, scienti½c ½ndings, dren’s Defense Fund). The Sea Is Ada Louise Huxtable (New York Press, March 2009 exhibitions and performances, So Wide and My Boat is So Small: City). On Architecture: Collected and honors and prizes to Charting a Course for the Next Gen- Hilary Putnam (Harvard Univer- Reflections on a Century of Change. eration. Hyperion, September 2008 sity). Jewish Philosophy as a Guide bulletin@ama cad.org. Walker, November 2008 to Life: Rosenzweig, Buber, Levinas, Robert Engle (New York Univer- Gwen I½ll (weta, Arlington, Wittgenstein. Indiana University sity). Anticipating Correlations: A Virginia). The Breakthrough: Poli- Press, January 2009 New Paradigm for Risk Manage- tics and Race in the Age of Obama. ment. Princeton University Press, Felix Rohatyn (fgr Associates). Doubleday, January 2009 February 2009 Bold Endeavors: How Our Govern- Ha Jin (Boston University). The ment Built America, and Why it Must John Hope Franklin (Duke Uni- Writer as Migrant. University of Rebuild Now. Simon & Schuster, versity) and Alvia J. Wardlaw Chicago Press, November 2008 February 2009 (Museum of Fine Arts, Houston). Collecting African American Art: Nicholas deB. Katzenbach Richard Rose (University of Ab- The Museum of Fine Arts, Houston. (Princeton, New Jersey). Some erdeen). Understanding Post-Com- Yale University Press, February of It Was Fun: Working with RFK munist Transformation: A Bottom 2009 and LBJ. Norton, October 2008 Up Approach. Routledge, January 2009 Henry Louis Gates, Jr. (Harvard Thomas Keneally (Avalon Beach, University). In Search of Our Roots: Australia). Searching for Schindler: David O. Sears (University of How 19 Extraordinary African Amer- A Memoir. Doubleday/Talese, California, Los Angeles), James icans Reclaimed Their Past. Crown, October 2008 Sidanius (Harvard University), January 2009 Shana Levin (Claremont McKen- Margaret Levi (University of na College), and Colette Van Laar Henry Louis Gates, Jr. (Harvard Washington), Susan Stokes (Yale (Leiden University, the Nether- University) and Donald Yacovone University), James Johnson (Uni- lands). The Diversity Challenge: (Harvard University), eds. Lincoln versity of Rochester), and Jack Social Identity and Intergroup Rela- on Race and Slavery. Princeton Knight (Duke University). Design- tions on the College Campus. Rus- University Press, March 2009 ing Democratic Government: Mak- sell Sage Foundation, December ing Institutions Work. Russell Sage William H. Goetzmann (Univer- 2008 Foundation, September 2008 sity of Texas at Austin). Beyond Eric J. Sundquist (University of the Revolution: A History of Ameri- Lawrence Lessig (Stanford Law California, Los Angeles). King’s can Thought from Paine to Pragma- School). Remix: Making Art and Dream. Yale University Press, tism. Basic Books, March 2009 Commerce Thrive in the Hybrid January 2009 Economy. Penguin Press, October Anthony Grafton (Princeton Uni- 2008 Murray Weidenbaum (Washing- versity). Worlds Made by Words: ton University in St. Louis). The Scholarship and Community in the Leon F. Litwack (University of Competition of Ideas: The World of Modern West. Harvard University California, Berkeley). How Free is the Washington Think Tanks. Trans- Press, March 2009 Free? The Long Death of Jim Crow. action Press, September 2008 Harvard University Press, Febru- ary 2009

Bulletin of the American Academy Winter 2009 87 cêçã=íÜÉ ^êÅÜáîÉë

This year marks the bicentennial of the birth of Charles Darwin, the British naturalist whose work on and the origin of species sparked intense debate. In 1860, Louis Agassiz, a zoologist and geologist, and Asa Gray, a botanist, par- ticipated in a series of meetings at the American Academy on Darwin’s Origin of Species. Agassiz presented arguments in favor of divine creation and Gray defended the variability of species as proof of adaptation. Darwin was elected a Foreign Honorary Member of the Academy in January 1874. His letter accepting his election is among the Academy’s archival treasures.

Letter to the Secretary of the American Academy from Charles Darwin, February 20, 1874, acknowledging his election as a Foreign Honorary Member.

Feb. 20, 1874

Down, Beckenham, Kent.

Sir

I beg leave to acknowledge your letter of Jan. 28 in which you announce to me that the American Academy of Arts & Sciences has conferred on me the distinguished honour of electing me a Foreign Honorary Member. I request that you will return to the Academy my most sincere thanks for this honour, & I remain Sir Your obedient & obliged servant

Ch. Darwin

88 Bulletin of the American Academy Winter 2009