Many times in this Law Journal space I have found delightful reading in the form of engaging reviews, as well as books they led me to. So I share a trio of my own current late-night readings, the only connection being that all three books arrived in my life simultaneously as gifts from lawyer-friends.
The first is the positively spellbinding account of Baker v. Carr, the U.S. Supreme Court decision that next year will celebrate its 50th anniversary. The book, “The End of Equality: One Person, One Vote and the Transformation of American Politics,” is by two MIT political science professors, Stephen Ansolabehere and James Snyder.
The book divides chronologically into three parts, each marked by its own turmoil: the pre-Baker era, the Baker years (the case was fully argued twice in the Supreme Court), and the tumultuous sequelae in the half-century since March 26, 1962, as the debate over the proper judicial role in legislative redistricting rages on.
I read, of course, as a lawyer and citizen concerned both about the fundamental democratic principle of “one person/one vote” and about the role of the courts in securing our nation’s values and ideals.
And while all sides of those central questions are well ventilated in the book, I support the authors’ strong conclusion that the Supreme Court was right to step into the “political quagmire” (Justice Felix Frankfurter’s fear) it had for many years before Baker steadfastly shunned. We well know, however, that how best to resolve the true defense of equal voting rights—in other words, how to confront persistent inequities in our electoral system-—very much remains an open issue. As the authors conclude, “Each new generation inherits [the] mantle—the challenge to keep a healthy democracy.”
But to be frank, important as those issues are, in the additional role of a former Court of Appeals judge and chief judge, I most enjoyed the book’s chapters on the years Baker v. Carr lived at the Supreme Court, from the bitter controversy over the grant of certiorari to the ultimate release of the decision. (How well I remember similar “quagmires” at the Court of Appeals.)
Those years of building and unbuilding Baker coalitions were dotted by events that make the heart race, including changes in Court membership (like the rise of the tight Warren-Brennan friendship, both Eisenhower appointees); Justice Clark’s drafts moving from “Mr. Justice Clark dissenting,” to “Mr. Justice Clark concurring in part and dissenting in part,” to “Mr. Justice Clark, concurring”; and dissenting Justice Whittaker falling ill only days before the decision’s release, and having to drop off the case.
Through extensive personal interviews with former law clerks and attorneys on the case, as well as study of Supreme Court personal memos and other records, we are literally at the table and in the minds and private conversations of the key participants. Really fascinating.
The second gift that arrived on my desk was a “chapter book” (to use my granddaughter’s word), 21 separate chapters, compelling in an entirely different way. It’s called “Take the Witness: Cross Examination in International Arbitration,” edited by two respected international arbitrators, Larry Newman and Ben Sheppard. Having only recently myself entered the field, immediately I was drawn to the chapter on “hot-tubbing,” fearing that I had missed some great sport, despite 21 years as a commercial litigator and 25 years on the bench.
“Hot-tubbing,” by the way, means putting experts concurrently before the arbitrators to be questioned on their testimony.
Though the ultimate message of the 21 highly readable chapters is one familiar to litigators, “Be Prepared,” plainly what one is to be prepared for in international arbitration is vastly different from more customary litigation warfare. What a wealth of information and insight there is to be gained from this volume, whether one’s interest is in specific subjects (such as cross-examining intellectual property, finance or technical witnesses), or broader cross-cultural challenges, or simply tapping into the profound experience of authors who together have amassed centuries of experience in a dispute resolution milieu with its own distinctive traditions, tone and ground rules. There are good lessons here for both sides of the civil/common law divide.
And would you believe it, as I took periodic breaks from Baker v. Carr with chapters on cross-examination in international arbitration, yet a third gift arrived: Sherwin Nuland’s “The Art of Aging: A Doctor’s Prescription for Well-Being.” Again, highly recommended reading. I quibble only with the title. I would have much preferred something like “The Art of Growing Older,” in other words, wisening instead of wizening.
But, oh my goodness, what a terrific message at this critical juncture of my own life—indeed, I suspect, for all of us each day fortunate to grow older in a time of extraordinary challenge and opportunity. Dr. Nuland reminds us: “Whatever else aging may represent to us, it is first and foremost a state of mind.” Life’s “roadway is paved with uncertainties, and in this, too, each of us must find his or her own way, as we always have.” And best of all: “Those who continue to challenge themselves intellectually are likely to be those who maintain the capacity to do so.”
I think of a triptych as a set of three pictures, the two laterals subordinate to the central one. Clearly, Dr. Nuland’s message of maintaining a positive mindset is the centerpiece, accompanied on one side by sharpening skills to best serve clients’ needs in this constantly changing world, and on the other side by promoting the values that keep our democracy, and our profession, true to its core principles.
Judith S. Kaye, former chief judge of the State of New York, is counsel to Skadden, Arps, Slate, Meagher and Flom.