Recently in Law Category

As you might be able tell from my sidebar, I've been watching a lot of Law & Order lately (all three series that play regularly), and one thing that I've found myself thinking in a number of episodes is that statute of limitations laws often serve injustice more than justice. A serial rapist will go free if they discover who he is one day beyond the five-year statue of limitations. Some crimes don't have a statute of limitations, but a five-year statute of limitations for rape sounds pretty unjust to me given how serious a crime rape is.

I had similar thoughts when we heard about the string of Obama appointees earlier this year who had committed federal crimes by lying on tax forms, sometimes for serious amounts of money, but it was long enough ago that there were absolutely no legal consequences or even requirements to pay up. It just strikes me as unjust. They're criminals, but it's illegal to prosecute them. They ought to be held accountable. So the law seems unjust.

Without doing any research on the history of statutes of limitations, I'd been having that thought. I never got around to exploring the justifications for such laws, though, but I finally did get an explanation on a Special Victims Unit episode (season 1 episode "Limitations") of why there are statutes of limitations. I'd seen this episode years ago, but I guess I hadn't been paying attention well or maybe wasn't raising the question, because a judge explains the original reasoning for such laws in an explanation for how he decides an issue:

The statute of limitations has a long history in common law. It exists to ensure that the defendant receives a fair trial, to make sure that the recollections of witnesses, if any, are fresh, to pressure the government to file charges in a timely manner, and so that, rightly or wrongly, accused citizens need not live their life in fear of the government pursuing them after a long delay.

There seem to me to be three arguments there.

The District of Columbia was ticketing people for parking in their own driveways, and apparently this was actually legal (at least there was a law that provided for this; I'm not sure whether the courts would find it constitutional). I don't know if this is still going on, but it sounded like a hoax when I first heard of it.

David Boies, Al Gore's lawyer in Bush v. Gore, and Ted Olsen, George Bush's lawyer from the same case (who was also Bush's first Solicitor General) are working together to try to get judicial declaration of same-sex marriage at the federal level. Olson, to be fair, is not advocating the kind of policy-preference right that more liberal lawyers and judges often see in the Constitution and that he has consistently argued against his entire career. His argument doesn't even assume that there is a right to marry. It just relies on the fact that our court system recognizes a right to marry and concludes that it ought to be applied to gay couples as well as straight couples if we're going to be in the business of applying such rights. (However, their argument does seem to assume that couples as couples and not just individuals have rights, or else it assumes what an Equal Rights Amendment would have provided but didn't when it never passed.)

Rep. Charles Rangel (D-NY) introduced a bill in the U.S. House of Representatives to reinstate the draft during the Bush Administration and then voted against the bill (almost no one actually voted for it, which was what he had expected). I thought it was strange when Republicans kept pushing a marriage amendment that they knew they didn't have enough votes to pass, but it's well beyond that to waste government time and money by pushing something you don't even want passing to begin with.

Jeff Bridges and Beau Bridges are brothers, and Lloyd Bridges was their father. Beau I can understand. But Jeff? I wouldn't have expected it.

All the miscreants who linked the phrase "miserable failure" to President Bush's biography had succeeded in making it the top website in Google for that expression. I was sure this was a joke when I first heard about it. It was pretty quick to verify, though. It had less skepticism when I heard that miscreants on the right had done the same with getting John Kerry's senate bio at the top of searches for "waffles".

Jeremiah Wright, whose heterodox, anti-white language makes him sound as if he doesn't think white people can be genuine Christians, actually has white members actively ministering in his congregation, sometimes even occupying leadership roles. (I don't think that excuses his rhetoric, which I think still counts as heterodox divisiveness, but he seems not to mean what he says.)

Philip Pullman wrote an entire scifi/fantasy series (His Dark Materials, whose first novel is The Golden Compass) out of an anti-religion and particularly anti-Christian agenda. When I first heard this, I thought it must be an exaggeration and that it probably just had some anti-religious elements throughout, but it turns out as the series develops that the agenda is far more central to the books than at first it appears. Pullman has even portrayed it as his remedy to the Narnia Chronicles, which he thinks call good evil and evil good. (I happen to think he failed in some crucial ways at what he was seeking to accomplish, but I wanted to post on that at some point separately, and I just haven't gotten around to it. Finishing up this post, which I started weeks ago but didn't have enough items to finish, has reminded me that I had wanted to do this, so maybe I'll get to it soon.)

Two days after his big announcement revoking President Bush's stem-cell policy, President Obama signed into law the big budget bill for the year, including a provision that prevented any funding from being used for embryonic stem cell research. I was especially skeptical about this, and it took me a long time and some hard Googling to find enough information to confirm it, but it does seem to have happened.

The Obama Administration's original discussion suggestions for his speech to school kids on September 8, 2009 really did ask kids to write about how they could help Obama, but they later changed it to ask about how they could be responsible. This was especially surprising given the actual content of the speech, which was mostly politically neutral. Why would they then ask how kids could help Obama when the thrust of the speech was just calling them to work harder in school and to be responsible? The original question therefore puzzles me a little unless he changed the speech too, which we have no evidence of (and the official explanation that the revision was what they had meant all along is completely implausible).

You can't help out your neighbor in Michigan by putting their kids on the bus for them every morning without a license to operate a daycare business.

I've been minimizing the discussion of race in my most recent posts about Judge Sotomayor's cases and statements about race, because I wanted to treat those issues together in one place, and it does involve both her speeches and her decisions, which would have required splitting up the discussion if I included it in those posts. So here are some thoughts on her speeches, judicial decisions, and recent statements about race and related issues.

As I've said before, I don't think there's any problem with thinking different people bring different things to interpretation of the law, and I don't think ethnic and racial differences are exempt from this. Someone who has been followed around in the store because of race understands discrimination and racism in different ways from how I do, since that hasn't happened to me that I'm aware of (and it hasn't happened to Sam when I've been around). But to assume that such a person will be a better judge goes too far, and that's exactly what the Sotomayor of the speeches claimed, even if she distanced herself from this in her testimony. What's odd about that is that she seems obviously right about some of the things she distanced herself from and yet wasn't willing to defend herself despite several senators attempting to do so.

There are ways she understands race and racism better than I do, because she's experienced it more from the perspective of someone being discriminated against or who has been followed around in a store. That might impact judging, because it allows someone to have a better understanding than someone who hasn't experienced such things. But what isn't often acknowledged by those making this point is that there are ways I understand racism and discrimination that someone who has more often been discriminated against might not understand. (I've made this kind of point before in a different context here.) For one thing, I've been around white people sometimes when no black people are around, and I know what white people talk about when only white people are around (it usually has nothing to do with race, but occasionally I have heard white people tell racist jokes and such things that they wouldn't say if they thought a black person might overhear). That's part of my experience, and it affects how I see racism and discrimination. Someone who is not white doesn't have that experience and has no first-hand knowledge of such facts.

I also have a third kind of experience from being in a mixed-race family, which includes experiences that most people of only one race don't have. For example, most same-race couples aren't going to have grocery store clerks assume they're not with each other. Most white people don't have family who aren't white, and thus they lack experiences of non-whites that I might have some understanding of. They don't have much experience attending black churches as family of one of the pastors, for instance. There are certain racial experiences that some white people can have that most white people don't have. That makes it hard to assume certain experiences just because of someone's race, which her statement does.

Which set of facts makes someone a better judge? The answer is neither. Both sets of facts could inform judges more about what our society is like, and a good, well-informed judge would welcome both sets of data. So I don't find her claim problematic when she says that a Latina judge's experience would provide experience relevant to judging and thus improve her judging in some ways from what it might otherwise be. I would also go as far as saying that, when a certain qualified judge comes from an underrepresented background, that background is likely to increase the quality of judging by adding the experiences of that underrepresented group to the data set the judges will consider. So having more Latina judges will make the judiciary better in one respect as compared with having one more white man on the judiciary, whose experiences may not (at least insofar as the person is a white man) add any further diversity to the pool of relevant experiences to inform interpretation of the facts that judges will hear.

But I don't think it follows that a Latina judge will be a better judge as an individual than a white man, merely because she is Latina, even holding all other things constant. That's what Sotomayor's statement actually says. I do find that inference troubling.

Since the Senate is going to be voting on Judge Sonia Sotomayor's nomination to the Supreme Court, I thought I might as well post my remaining thoughts on her. As I see it, there are three issues for senators to be considering in deciding how to vote in whether confirm her nomination. The first issue is to what extent they should consider ideology and to what extent they should defer to the president's choice. The second is the disconnect between some things she's said in the past and some things she's saying now and how we should think that will affect her decisions once she's on the Supreme Court. The one remaining kind of issue is simply what kinds of decisions she's made as a judge. [I should say that I left the race issue out of the last post, and I'm also not going to say much about it in this one, because I'm working on a separate post on that issue, covering both the speeches and decisions.]

One thing to keep in mind is what President Obama has repeatedly said in his discussions of judicial nominations. He estimates the percentage of cases where judges just apply the law to be 95% and then speaks of the other 5% as the ones to pay attention to. I think he's got his numbers way off about which cases are easy and would be unanimous, but he's right that it's the most difficult cases, particularly those involving constitutional issues, where we'll get a better idea of what's distinctive about a judge, and we need to look at those cases to get a good sense of how a judge will be on issues of tremendous importance. A lot of people have emphasized that the bulk of Judge Sotomayor's decisions are pretty moderate, but they don't acknowledge that the same was true of Chief Justice Roberts and Justice Alito when they were appellate judges, and senators in the Democratic Party didn't let that stop them from pointing to the few decisions they could find that they considered problematic. It's those controversial decisions that give some sense of how a judge might decide the controversial Supreme Court decisions that most people are most likely to care about.

I think her record does include some bothersome decisions about constitutional rights. For example, there's a worrisome opinion about free speech (see also the 1st update here). She ruled that a public school can punish a student for a blog post written off school grounds and not during school hours.

Her record also includes a number of cases where she has refused to consider constitutional objections against a law or government practice when a large number of people in looking at it have thought such an argument is at least worth discussing and many would argue is decisive. These involve (at least) the Second, Fifth, and Fourteenth Amendments with regard to gun rights (discussed below), property rights (i.e. search and seizure, also discussed below), and equal protection (which I'll discuss in more detail in a subsequent post). It's a serious worry that she thinks these issues are not worth an argument, as if there's no real issue to discuss, when a large majority of her critics, including several people on the Supreme Court in each case, would think there is indeed an issue. Her dissent in the voting rights case about felons (see below) is similarly brief and dismissive, but that's not a constitutional issue. I've heard people say that she's especially thorough in most of her opinions, so this does tell you something about her view on these issues. She doesn't think there's much room for debate on such straightforward issues that lots of people don't think are so straightforward or think are straightforward in the other direction.

The Senate Judiciary Committee voted almost along party lines yesterday to send Judge Sonia Sotomayor's nomination to the full Senate for a confirmation vote. Senator Lindsey Graham (R-SC) was the only Republican to vote in favor of her nomination. Two other senators, Senator Orrin Hatch (R-UT) and Senator Charles Grassley (R-IA), voted for the very first time in fairly lengthy Senate careers against a Supreme Court nominee. What's interesting about this is that this nominee's actual judicial record is probably more moderate than anyone else on President Obama's shortlist, and her decisions have been more moderate than several nominees Senators Hatch and Grassley have confirmed. So what's going on here?

I think there are two explanations. One has to do with our location in the history of the judicial confirmation process. The other has to do with the Two Sotomayors narrative that the Republican senators have been crafting. I've talked about the judicial confirmation process before (most recently here). I do think Republicans are getting frustrated that they've been letting Democratic judicial nominees sail through because of their commitment to give presidents deference, while Democrats have been blocking, filibustering, and voting against nominees who are as qualified and as ideologically-mainstream as the nominees Republicans have not opposed. Even some who are committed to showing presidents deference are going to moderate that commitment in such a setting if they think the judiciary is at stake because of the practical consequences of the two parties having different approaches to the amount of deference senators should give the president. This probably gives the second issue more weight than it might otherwise have, but I think it's at least a significant driving force in Republican resistance to Judge Sotomayor's nomination, even if they're not saying this in their explanations for their votes.

The explicit reason most of the Republican senators are giving depends on a running narrative from the Republican senators on the judiciary committee about the Sonia Sotomayor of her speeches and the Sonia Sotomayor of her decisions, and they want to know which one will appear on the Supreme Court if she's confirmed. Some of these differences are overstated, but some issues do raise a concern for many people. We might assume that a judge who has consistently ruled in an unbiased way in the majority of cases (which all sides agree is true of her) will continue to do so on the Supreme Court, even if she has expressed views in speeches that might seem at odds with that. It's been interesting to see some of the Democratic senators defending the speeches outright, while others have insisted on standing by her judicial record as a way of creating distance between her judicial decisions and her public statements.

Sotomayor herself has notably taken the second approach and backtracked from a number of things that she seems to have clearly endorsed in those speeches, emphasizing that her decisions have consistently applied the law and not interpreted it in light of the things the speeches seem to involve. She has articulated a view in her hearings on the relevance of foreign law to judging that sounds more like Chief Justice Roberts and Justices Scalia, Thomas, and Alito in their resistance to use of foreign law for interpreting U.S. law and the U.S. Constitution. Consider her written response to Senator Sessions' questions:

In my view, American courts should not rely on decisions of foreign courts as binding or controlling precedent, except when American law requires a court to do so. In some limited circumstances, decisions of foreign courts can be a source of ideas, just as law review articles or treatises can be sources of ideas. The Supreme Court's Eighth Amendment cases establish how the Court considers constitutional challenges to the death penalty, and I accept those decisions.

On the other hand, her speeches on the subject sounded more like Justices Stevens, Kennedy, Souter, Ginsburg, and Breyer, who have on several occasions used foreign law as a reason to consider evolving standards of decency or a new national consensus of policy preferences as reasons to take the U.S. Constitution and U.S. laws to mean something very different from what they originally meant and have meant for the entire history of interpretation (e.g. on what constitutes cruel and unusual punishment or how to interpret due process in the 14th Amendment).

In these cases she's right to say that there were other issues, so the appeal to foreign law doesn't determine the outcome by itself, but a lot of readers have come away from the opinions with the impression that foreign law was driving it to begin with, and the justices had to find some way to justify their policy preference rather than simply deciding things according to precedent or what the text of the Constitution requires. So what she says here seems to me to be at odds with what it seems to me that these decisions she cites favorably actually do. Also, her speech on this question expressed concerns about how the United States would be viewed if we were significantly at odds with international law on important issues. A judge could be concerned about how our laws are viewed as a step toward arguing for changes in the laws via legislative process, but this statement wasn't in a speech advocating that. It was in a speech advocating the use of foreign law to get ideas for what judges in the U.S. can do.

Given a difference between her opinions as a judge and her speeches as a private citizen, the distinction between appellate judges and Supreme Court justices might make all the difference in which one of those would appear on the Supreme Court. If her views from her speeches really are worrisome, and the only thing keeping her from enacting them is that she's bound by Supreme Court precedent and Second Circuit precedent in her current role, with a Supreme Court review always possible for any decision she renders, then she will be freed from those constraints on the Supreme Court. That's why the narrative of the Two Sotomayors is still compelling for many people as an argument against her nomination. It's no defense, if this is right, to point out that most of her decisions have been in terms of legal rather than policy arguments or to point out that she hasn't based her decisions on empathy but on the law.

I totally missed this. According to Dale Carpenter, the Obama Administration has endorsed all the conservative arguments against same-sex marriage. I wonder if that's a bit of an exaggeration, but it does seem as if one important argument that's roundly derided by most of my philosopher friends is present in the DOJ brief, and it's an argument that I think is exactly right (even if very unpopular among those who favor same-sex marriage).

The DOJ argues that it doesn't violate equal protection on sexual orientation grounds to fail to recognize same-sex marriage, because gay and straight people aren't getting different marriage rights as each other. Gay men are free to marry anyone of the same group that straight men are free to marry -- women. It's true that gay men can't marry other gay men, but neither can straight men. So any discrimination that's taking place isn't according to sexual orientation. Men of both orientations (gay and straight) are being treated equally. You might argue that it's unfair because one is able to marry according to their preference and the other isn't, but they are strictly speaking given the same marriage rights, and it isn't discrimination along sexual-orientation lines. There's a much better explanation of what's going on, which I'll get to in a moment. But I wanted to say that I'm glad someone left-of-center is acknowledging this, because it seems obviously true to me and seems completely the wrong way to argue that this is discrimination. (The DOJ apparently doesn't intend to argue that right now about marriage, though. The Obama position is pretty clear that there shouldn't be a federal-level recognition of same-sex marriage but that there should be a federal-level recognition of civil unions with all the civil rights that marriage would convey.)

I've seen all manner of twists of logic to try to resist this conclusion, but I don't know how you could get around it. It's not sexual-orientation discrimination to treat all gay men and straight men equally any more than Prohibition was discrimination against drinkers of alcohol. It simply wasn't. Everyone was prohibited from alcohol, not just drinkers. It certainly affects those who drink in a way that it doesn't affect those who don't, but that doesn't mean that drinkers were being discriminated against, since that would involve being singled out with a law that doesn't apply to others. Being singled out with a law that others don't care about isn't the same thing as being singled out with a law that only would apply to some people. Requiring people to wear motorcycle helmets doesn't affect me because I don't ride a motorcycle, but I'd have to wear a helmet if I were to ride one, so it's not discrimination against motorcycle riders.

Nevertheless, there's a discrimination argument that the DOJ brief doesn't acknowledge. In fact, there are two. I think these arguments are both also very obvious once you consider them, so it surprises me that they don't deal with them at all. Most people on the right on this issue don't accept these arguments, and I think there are things they can say in order to justify such resistance, but the claim in both cases does seem at least initially plausible to me.

One kind of discrimination involved with not allowing same-sex marriage is discrimination against couples on the basis of their being same-sex. The above argument is only about individuals. I don't think this would be discrimination against a gay individual, but you could much more easily argue that a couple who is same-sex is being discriminated against on the basis of their sexual orientation. Technically speaking, that's not right either. Two straight men could, in principle, decide to go against their sexual orientation and seek civil marriage. The discrimination here isn't really according to sexual orientation, then, but according to same-sex pairings vs. opposite-sex pairings. Treating a same-sex couple and an opposite-sex couple differently is discriminating against the couple who is being denied a privilege or right that the other couple is given.

(This gets immensely complicated in terms of the logic of it once you accept intersexual, transgender, or transsexual members of pairings, so I'm ignoring that for the sake of this argument. I don't think it affects what I'm trying to argue in any significant way, so I think for simplicity's sake it's not problematic to do so.)

The other argument is still about individuals but is not about sexual orientation at all. Denying a man the right to marry another man is discrimination if women are allowed that right. The same is true of denying a woman the right to marry another woman when a man can do so. But this isn't sexual-orientation discrimination. It's sex-discrimination. Men are given certain rights or privileges not given to women, and women have rights or privileges men don't have. This argument seems to me that it should be utterly obvious once it's made clear.

There's an ongoing debate about exactly what role senators should have in the process of confirming judicial nominees. The Constitution gives the President the role of appointing people to certain positions, including "Judges of the Supreme Court", but this role is qualified. It is to be done "by and with the Advice and Consent of the Senate".

At this point there are two main views about what that advice and consent is supposed to be. Some senators have consistently maintained that ideology can play a role. If a senator disapproves of the ideology or perceived ideology of the nominee, it's perfectly fine to vote against the person's confirmation. Other senators have consistently maintained the view that senators should give significant deference to the president, voting to confirm any mainstream nominee who is qualified enough, even if the person tends significantly to the other side of the political spectrum or to a contrary judicial philosophy.

There are reasons for each view. Deference to the president makes some sense. When we vote for president, we do so while knowing what sort of judges the candidate is likely to appoint. Anyone who voted for Barack Obama while thinking he would appoint judicial conservatives to the bench is an idiot. Anyone who voted for George W. Bush while expecting him to appoint liberal justices to the Supreme Court wasn't paying attention to the kinds of justices he said he admired and would appoint. Mistakes can happen (as with Justice Souter with Bush's father), but you shouldn't expect your preferences to be fulfilled with judicial appointments if you vote for someone for president who has opposite preferences. Senators on the other side might say that elections have consequences and that presidents are owed some deference due to the political process. On the other hand, elections have consequences. Senators are elected. They represent the preferences of their constituents, and isn't the function of senators in judicial appointments part of what you should consider when you vote for someone for that office? So even on the democratic process argument, you might think it cuts both ways.

But other considerations have been offered against giving presidents a lot of deference on judicial nominations. One problem is that you still need to decide when to defer and when not to defer. How far outside the mainstream counts as sufficiently outside? Chief Justice Roberts and Justice Alito were both presented by Democratic senators as being outside the mainstream of conservative thought on evidence that's actually pretty similar to the evidence being used to argue that Judge Sotomayor is not outside the mainstream of judicial thought. It turns out, then, that this view isn't really a coherent, unified position. It's not about whether to give the president deference but about how much deference to give the president.

No one wants the Senate to rubber-stamp whoever the nominee is no matter what, so qualifications must matter, but it's not clear the ideological considerations are really separate from qualifications. Some would argue that an ideology that's very extreme actually disqualifies someone from being a good judge, because a good judge would interpret the law accurately and fairly, and extremist judges of certain sorts do not. But according to a judicial conservative, liberal jurisprudence then counts as a lack of qualifications. Any nominee who is ideologically liberal in terms of judicial philosophy is not a qualified nominee, and senators can vote against them on that basis and call it a matter of the nominee not being qualified.

So I'm no longer sure that the distinction between qualifications and ideology really explains much in terms of what senators should pay attention to, at least not in any way that will be agreed upon by a significant number of senators. Several other considerations also might favor looking to ideology. Some have argued that too much deference to the president leads to extremist judges on both sides, since presidents will get away with as much as they can if the Senate just defers.

We start off with Senator Jon Kyl (R-AZ) today. The senators are going through their second round, limited to 20 minutes each instead of 30 (and most aren't using the full time either).

I'm only going to comment if anything new occurs. A lot of these second-round questions are simply rehashing what they've talked about before.

Kyl challenges her on Ricci. She says she decided the case based on Second Circuit precedent. That applies in the original hearing of the case. She voted on the case the same way in the en banc review, when the whole Second Circuit heard it. He wants to know why she voted not to hear it en banc, given that precedent wouldn't bind her at that point. The district court decision doesn't bind her, and the Second Circuit precedent doesn't apply. So he wants to know what bound her to decide the same way then.

She says the three-judge panel opinion she issued was now precedent, making the district court opinion precedent. He says the Supreme Court said there was no precedent. She says that was on whether the circuit court decision used the right standard. Two provisions of Title VII need to be assured to be consistent with each other. That issue was raised with them but not with her panel. The outcome she came to wasn't based on that. He's trying to get her to admit that she wasn't bound by precedent when it came to voting to hear the Ricci case en banc but did so vote, and he wants her to explain why in terms other than precedent, because precedent doesn't bind her at that point. She won't admit that, but as far as I can tell it's true.

He reads from Judge Cabranes saying that cases are not typically dismissed with summary judgments when they are of this import. She doesn't seem to have anything to say about that either. He says the nine Supreme Court justices all said it shouldn't have been a summary judgment. He says there were three tests: the one the appellate court used, the one the Supreme Court went with, and the one the dissent went with. But all nine of them said it shouldn't have been a summary judgment. She says she doesn't read the opinion that way.

Kyl turns to a speech discussed by Senator Hatch yesterday about justice for an individual in a district court and justice for society in an appeals court. But in the appeals court, it's still supposed to be about justice for the individual. It might have the effect of building reliance on rule of law and creating precedent, but the decision is supposed to evaluate based on the law on this case. She agrees. The legislature's contribution to policy is making law. When judges follow the rule of law, they create precedent that then have a policy impact, but it's not in the sense of making law the way Congress does.

Senator John Cornyn (R-TX) starts things off today. He's rehearsing the same worry about the different picture painted by her decisions as a judge and her public speeches, where the worry is that being less constrained on the Supreme Court would move her away from judging the way she has done on the Second Circuit and more like the picture she's presented in her speeches.

She says she stands by her words as she intended them but understands how people have taken them in a different way.

Cornyn moves on to the issue of the law being in flux. Why is the law indefinite? She says it's a matter of which legal cases apply. People bring cases because they believe precedents don't clearly answer the question at hand. They present facts that they say entitle them to relief under the law. Indefiniteness isn't about what the law is but how it's applied, and it leads people to believe it's unpredictable. Judges don't make law the way Congress does, but they apply law in new ways, as initiated by arguments of lawyers and not by judges themselves. Judges ensure the law applies to the facts, interpreted according to Congress's intent, being informed by precedents as applied to new facts.

A life experience as a prosecutor may help her understand things in a criminal case but not much in an anti-trust suit. Judges from a variety of backgrounds should increase public confidence because more issues will be addressed. It's not better addressed but it helps public confidence that all issues will be considered properly. She says in the particular paragraph she said we should ask the question as a possibility to think about. She wasn't answering it. She wasn't suggesting a difference in outcome, just a difference in process.

He keeps focusing on how physiological differences could do this. He's missing the point. She wasn't talking about physiological differences but different experiences. If he thinks men and women or whites and blacks have the same experiences, there's not much hope for her to convince him of this.

He asks if anyone asked her about views on abortion, and she says no one asked her anything about any specific issue. He asks why the White House would then assure abortion rights groups not to worry, and she says she knows no reason. She follows the law on all issues she addresses, and her record shows it.

He asks about the head partner of her firm saying she'd be clearly on the pro-choice side, and she says she never talked to him about that issue or any other social issue. She's upheld the law as it stands in every case she looked at. She upheld the Mexico City policy that prohibited federal funds for foreign abortions. She doesn't think he's read her 17-year judicial history, because he's a corporate litigator, and corporate litigators only read cases relevant to their current cases. He said she had liberal instincts, and she thinks he must be thinking equal opportunity is a liberal view, and she had pursued that as a board member of the Puerto Rican Legal Defense Fund.

He wants to know why the court's opinion in Ricci was unpublished, denying the firefighters' claims without discussing them. She says the briefs were available to the other judges when they considered whether to review it en banc, so Judge Cabranes had access to that. She can't speak for his reasons why he chose to reconsider the case. The issues of the case weren't hidden from the other judges, though. 75% of circuit court judgments are by summary order. (Right, but this is a much more major question than most.) She cites the district court's long opinion as a need not to repeat all that.

So I guess I'll liveblog at least part of this today.

Senator Patrick Leahy (D-VT): Most of this seems to be about the best characteristics of judges and the role of the judge.

Sotomayor: As a judge, her role isn't to make law. Her role is to decide whether the law, as it exists, has principles that apply to new situations. That sounds pretty good to me, although people who say that might have a wide variety of how they carry it out, and some might see others as not doing that at all.

Leahy asks her about the Ricci case (the Connecticut firefighters who weren't promoted because not enough minorities did well enough on the test for promotion). He says it's "damned if you do, damned if you don't" case, but I didn't get the set of alternatives he presented. I suspect it's a false dilemma, but I need to look more closely at what he said to be sure.

She frames the issue as about the city certifying the test vs. finding a test that would measure effectiveness without the disparate impact. Was the decision of the city based on race or based on what its view of the law required it to do? Her panel concluded it was a lawful decision under established law and 2nd Circuit precedent. The Supreme Court applied a new standard and announced it as a new standard from a different law.

Now he asks about the "wise Latina" comment. She says she gave variants of the speech to several groups of young Latina lawyers to inspire them to believe their lives and experiences will enrich the legal system, because different backgrounds do. She wanted to inspire them to become anything they wanted, as she did. She thinks the words created a misunderstanding. She doesn't believe any ethnic, racial, or gender group has an advantage in sound judging. Every person has an equal opportunity to be a good and wise judge regardless of their background and life experiences. She says her words agree with the sentiment Justice O'Connor was trying to convey. Men and women are equally capable of being wise and fair judges. Judges disagree about legal outcomes in close cases. It can't be that one of them is unwise, despite the fact that some people think that. (Legal realism coming in?) She says her record shows that she first looks to what the law requires.

Leahy moves on to guns, making it clear that she recognizes the Supreme Court's Heller case establishing an individual right to bear arms when it comes to federal laws but not establishing anything about whether states can restrict gun ownership. (That is indeed what Justice Scalia's opinion says, and the circuit courts have split on that very issue, so it will face the Supreme Court soon enough.)

She says she has friends who hunt, and one godchild of hers is an NRA member. She recognizes the individual right under the 2nd Amendment as limiting the federal government rights to restrict firearm ownership. She does well explaining incorporation. The right doesn't apply to the states. Scalia didn't actually said that. He just said he's not commenting on that issue. She says she has an open mind on that issue. She'd follow Supreme Court precedent when it speaks directly on an issue, and she did in her Maloney decision where she took the view that [Second Circuit] precedent doesn't incorporate that right, but she'd hear the arguments open-mindedly if it came up on the Supreme Court [which doesn't have any precedent on the issue, but she didn't make that completely clear].

I've been listening to some of the senators' speeches at the confirmation hearings for Judge Sotomayor's nomination to the Supreme Court. I'm not going to live-blog these hearings, at least if that means updating every time I have anything to say, but I do want to record some thoughts on the senators' opening statements today, and I may comment on the questioning that begins tomorrow. I'm linking to senators' statements if they are online. Not all of them are (at least yet).

Senator Patrick Leahy (D-VT) spends a good deal of time explaining the racist questions at Justice Thurgood Marshall's hearing, the anti-semitic questions at Justice Louis Brandeis' hearing, and the anti-Catholic assumptions of the unnamed first Catholic nominee (who I believe was Justice William Brennan). He then explains that we're in a different era, and we're beyond that now. Why then does he encourage the Republican senators not to cave to the pressure of special interest groups who are caricaturing Judge Sotomayor unless he thinks the conservative opposition to her is racially-based, and we're really not in a different era? I'm not sure which groups he means, but I haven't seen any of that from mainstream opponents of Sotomayor. There are those who have called her a racist, but it's not racist to call someone a racist if you think the view they hold is racist.

Senator Jeff Sessions (R-AL) seems to be setting the tone of possible criticisms well without being defaming. He's raising worries about things she's said and opinions she's joined or written. It's nice having a real judicial conservative running the Republican side of the committee again. He's a bit worried about certain decisions and statements from her, but he's not being strident or unfair about it at this point. He's doing a better job than most politicians do at setting forth a conservative judicial philosophy. It's good that he's the ranking member, thanks to Specter's defection (which he's now paying the price for, since he's the lowest-ranked member of this committee besides Senator Franken, who has only been a senator for about a week). I do think he's going too far, though, with some of her statements.

Senator Sessions thinks her record is clear that she defends the view that it's ok for judges to be biased, and I don't think her statements really amount to that, particularly with her view that experiences can and should inform how judges interpret the world and apply the law. How I see the meaning of the law is surely affected by my experiences in life, and there might well be ways that someone with experiences being discriminated against according to ethnicity will have a different view from me about what counts as wrongful discrimination. What's wrong with Sotomayor's view is that she assumes the person who has been discriminated against more often is going to have the right view, because she says a Latina judge will be a better judge than a white man. That's not necessarily true, but it's not the same thing as saying that a Latina judge should favor Latina people in particular cases. She's biased about what sort of people she expects to be better judges, but that's not a bias in how she will view people coming before her court, and Sessions is being a bit unfair in treating the two as the same thing.

Senator Herb Kohl (D-WI) makes the case for considering her whole record and not just going by her decisions. He's making a lot of room for the Republicans to find places to criticize, but I think he's also trying to frame some ways she'll be able to respond to those criticisms. He and his fellow Wisconsinite Senator Feingold have always struck me as less partisan than the rest of the Democrats on this committee. That's true even though Senator Feingold is probably the most liberal member of the committee in his policy views (athough maybe that's changed with some new members).

Senator Orrin Hatch (R-UT) reads off a number of then-Senator Obama's criteria when he filibustered the nomination of Judge Janice Roberts Brown to the D.C. Circuit. He arguesconvincingly that those criteria should have led to approval votes for Roberts and Alito. One signal that he's considering voting against Judge Sotomayor's confirmation, when he has never done so in the past, is that he seems to be getting fed up with the disjunct between what Democratic senators have said about Republican nominees and the official standards they present. Another sign is that he went out of his way to point out that judicial philosophy can be a qualification, and he said that presidents only get some deference for their qualified nominees. He's opening up the door for a "no" vote, and I get the sense that he's at least open to voting against her nomination, despite what many have assumed.

One common complain on the left about conservative political views is that conservatives favor legislating morality. One thing they mean by this is the conservatives favor certain kinds of laws about certain kinds of issues that rely on a moral conception that differs from liberal moral views. For example, conservatives tend to favor laws that restrict abortion. Those who find abortion morally unproblematic complain that legislating morality is a bad idea, because legislators shouldn't declare what people should do on such issues.

I've always hated the expression, for a number of reasons, but one is that most laws legislate morality. Laws against murder enforce a moral standard that it's generally wrong to kill people. Laws against larceny enforce the moral standard that it's generally wrong to steal from other people. Laws against homosexual sodomy may pick out acts that not as many people think are wrong, but it isn't any more or less a legislation of a moral view than the uncontroversial laws that legislate morality.

It's another matter to restrict laws to outlaw harmful activity or to require consent for certain behavior that affects others. Some people mean just that when they say they oppose legislating morality. In other words, they oppose legislation against activities merely because those activities are morally wrong, and they require a further explanation of why they should be illegal: violation of consent or causing of harm. But harm and consent are moral reasons for favoring laws against such things, so it's still legislating morality. It may be that only certain moral reasons are the sort to justify laws, while others are not, but it's not entirely helpful to make this point by saying you oppose legislating morality. It's a confused way of making the point, and clarity would be served by making clearer distinctions among different aspects of morality.

To be consistent, such a view requires major revisions to our laws. We'd have to remove motorcycle helmet laws, unless it could be argued that the only purpose of such laws is to protect anyone who crashes with a motorcycle from greater liability for the greater amount of damage caused by not wearing a helmet. But that can be more easily achieved by holding those without helmets more liable for damage to themselves rather than fining them for not wearing a helmet. Helmet laws are designed to protect people from themselves, not to protect them from harming others. Even if we expand the legitimate class of laws to include such paternalistic laws, we'd still have lots of laws that might be called moralistic beyond harm to others, harm to self, and consent.

For example, laws against cannot be fully justified by the harm they cause to potential offspring or the fact that minors can't legally or morally consent. A brother and sister who want to have sex with each other can sterilize themselves to remove the possibility of harm to offspring, and they can consent if they're old enough. Why should we have laws against such sexual acts if the only issues that should affect legislation are harm and consent? One might argue that there's psychological harm from incestuous sex, but we don't outlaw everything that might cause psychological harm, and I think the argument that it causes harm might depend on the prior moral view that it's wrong to engage in incestuous sex. After all, there's a parallel argument that gay sex or even heterosexual pre-marital sex causes psychological harm. These are just a few examples. Our legal system would need some serious revision if we want to apply this approach to moral justifications for laws in any consistent way.

It occurred to me, though, that there's another reason the political left should generally resist speaking in terms of legislating morality. The left tends to favor a view of the role of judges that conservatives often call "legislating from the bench". Once you look at what's going on, you might even be willing to call it "legislating morality from the bench". Rasmussen conducted a poll during the election last fall that correlates views on the role of judges with votes for Obama and McCain. The question read: "Should the Supreme Court make decisions based on what's written in the Constitution and legal precedents or should it be guided mostly by a sense of fairness and justice?" 82% of McCain voters and only 29% of Obama voters took the first option, while 29% of McCain voters and 49% of Obama voters took the second option. For the record, President Obama himself has said that in the cases where the justices disagree strongly it should be the second option (but he strangely thinks this is only 10% of the cases that they disagree strongly, when it's a lot more than that).

Insofar as a judge's role is to interpret the law, the judge should indicate what the law means and enforce it even if the judge disagrees with the law. Justice Thomas exhibited such a role in his dissent to Lawrence v. Texas, the Supreme Court decision that banned laws prohibiting homosexual sodomy. Justice Thomas thought such laws were stupid. He wrote a separate opinion from Justice Scalia's dissent just so he could say that. It was a short opinion. His opposition to the majority wasn't because he thought it was a good idea on policy grounds to have laws against homosexual sodomy. It was just that he didn't think the Constitution prohibited such laws.

Insofar as a judge's role is to administer justice, on the other hand, it seems that the judge's obligation is to administer morality and enforce it in the cases where the law is not clear or is indeterminate, and what that amounts to is basically legislating from the bench, in particular legislating morality from the bench. If the standard liberal complaint is correct that it's bad to legislate morality, it becomes extremely hard for me to see how a judge should do exactly that by determining the just outcome when the laws don't settle what should be done. Even though this isn't strictly speaking legislation, it's equivalent to legislating in its effect, which is why the term "legislating from the bench" has seemed so apt to so many. It certainly does seem equivalent to legislating morality as far as I can tell, and it's a highly-regarded role for judges among those on the leftward side of the political spectrum. It gives me even less reason to be patient with those who complain about legislating morality.

Perhaps future-Justice Sotomayor's judicial inclinations on abortion will be tested relatively soon once she assumes Justice Souter's now-vacated (as of today) seat on the Supreme Court (pending her all-but-assured confirmation by the heavily-Democratic Senate). The 4th Circuit decided a case last week that considers the constitutionality of a Virginia abortion ban that in almost every respect is just like the federal law that the Supreme Court narrowly upheld in an opinion written by abortion swing-voter Justice Anthony Kennedy.

The federal law and the Virginia law differ in one respect. The federal law bans deliberate partial-births (defined by delivery up to a certain biological point) in order to kill the fetus. That procedure is outlawed as a method of abortion. The Virgina law bans one further thing. If a doctor is carrying out an abortion by another method, and the fetus happens to get past that point of delivery defined by the law as a partial-birth, it is a crime to kill it via any method. In other words, once the fetus reaches the point defined by the federal law as a partial-birth (whereby it's a crime to deliver the fetus to that point in order to kill it), it counts in Virginia as a crime of a similar level if the doctor goes ahead and kills the fetus whether the intention was to abort it that way or another way earlier in the process.

In other words, the difference between these two laws is that one does not criminalize deliberate attempts to kill the fetus after it reaches the relevant partial-birth stage as long as the doctor had planned to kill the fetus earlier but failed to do so. The other does criminalize that. Which law is more consistent? Surely the Virgina one. It criminalizes any killing past that point, whether there was an intention of killing beforehand or not. Compare the laws against disposing of an infant born from a failed abortion. The U.S. Senate unanimously supported such a law. It doesn't matter if the doctor intended to abort the fetus. If it got to the point where it would normally be illegal to kill it, the fact that it was born as a result of a failed abortion doesn't make it legal to kill it. This just extends the same sort of reasoning to the partial-birth abortion ban the federal government passed that the Supreme Court has declared constitutional. So it seems as if it's actually the logical implication of the federal law, even if the federal law didn't go this far. It basically relies on the principle, found in Judith Jarvis Thomson's famous 1972 paper defending abortion, that a woman doesn't have a right to the death of the fetus just because she has a right to be rid of it from her body.

The 4th Circuit vote was narrowly-divided 6-5 along lines that happen to correspond with the party of the presidents who appointed them. Judges don't often follow a narrow ideology reflecting exactly that of the president who nominated them, but in this case it did work out that way. One judge was appointed by President Clinton as a recess appointment and renominated by President George W. Bush as a courtesy (as presidents do from time to time for previous presidents of another party), but he really counts as a Clinton appointment, since Clinton appointed him initially. Those appointed by Presidents Reagan, Bush, and Bush signed the opinion that upheld the law. Those appointed by President Clinton signed the dissent (none remain from Carter and Obama's one nominee to that court hasn't been confirmed yet).

In effect, the Democratic appointees on the 4th Circuit Court of Appeals have endorsed the view that a woman not only has a right to be rid of the fetus but also has a right to its death if being rid of it most of the way doesn't kill it. Otherwise they have nothing to complain about if they're really following Supreme Court precedent (which does bind them). The dissent here strikes me as a pretty obvious case of ideology trumping the law, even granting all Supreme Court precedent as the law. I really hope that if the Supreme Court hears this case it will affirm the 4th Circuit judgment by a 6-3 margin. It will likely not get more than that since three justices remain who will likely seek to continue their opposition to laws like this, but I suppose it's barely possible even if extremely unlikely that Justices Stevens or Breyer will defer to precedent they didn't original support. But no one has any clue about Judge Sotomayor's views on this sort of issue. She could be well to the left of anyone on the Supreme Court for all I know, but it's certainly possible that she's even to the right of Justice Kennedy for all that she's written about the issue (which is basically nothing besides issues relating to the free speech of abortion protesters).

One of the problems with Facebook's latest version is that it's no longer possible to import blog posts and keep them comment-free while directing comments to the actual blog. So I've got Facebook friends who comment in Facebook on my blog posts, and those comment threads never appear on my actual blog. One recent comment thread on the Facebook import of this post led to my observing something that hadn't occurred to me before about some of the strange new dynamics of developments in how affirmative action is practiced.

There's an interesting phenomenon now of colleges having higher standards for Asian applicants than they do for white applicants in order to keep the numbers closer to where they want them to be. The diversity argument for affirmative action is now being used to justify discrimination against Asians. Since the diversity argument is the only one the Supreme Court has been willing to recognize as constitutional, none of the other arguments for affirmative action can be used to make this unconstitutional (e.g. remedying past discrimination, counterbalancing current discrimination at other levels of society, reparations for past mistreatment). That makes this perfectly constitutional in its justification, as far as the Supreme Court is concerned.

But I'm wondering if it's against the spirit of the Supreme Court's official stance. The diversity justification is supposed to support the favoring of sufficient diversity in the academic environment, not to ensure exact representation of each group according to any prejudged percentages. Unless the number of Asian students at the higher levels of higher education is so high that it's hindering diversity, I suspect the architects of current case law (Justices O'Connor and Breyer) would frown on admitting Asians at lower rates. It might look a lot more like the quota system that the Supreme Court has declared unconstitutional rather than giving underrepresented groups a leg up to make sure they have a seat at the table. They're already doing that with non-Asian non-white groups, and it's not as if whites need a leg up to have a seat at the table.

I'm thinking the same thing is true about the schools that are lowering standards to admit more male students, given that women are becoming a noticeable majority in higher education. It's not as if men are in danger of losing a seat at the table or as if diversity is really threatened at this point by some lower numbers of men in higher education. This seems to be motivated by a desire to have the number of each sex be closer to their representation in society at large. Doesn't that seem to be the spirit of quotas that the Supreme Court has consistently affirmed as unconstitutional? I'm pretty sure at least six of the current members of the Supreme Court would take that view, given what I've seen from them on previous opinions. But I've never heard of anyone even suggesting that someone initiate a lawsuit to challenge these practices on these grounds.

I came across a pretty good discussion of several of the bad arguments for and against Judge Sotomayor's nomination by Jonathan Turley. I recommend the whole thing, but one statement by him got my attention.

He says something that led me to compare an interesting phenomenon that arises with both Justice Thomas and Judge Sotomayor involving race. There are those who are happy that Judge Sotomayor is a Latina and will support her nomination for that reason alone, ignoring anything else. Then there are those on the left like Turley who would have preferred someone with more intellectual heft. On the right, there are those like me who are happy enough that Obama has nominated someone who by most reports will do little to move the Court to the left from where it currently is (and on some issues may well move it somewhat to the right, although on some issues we don't have any clue, and she could be far left for all we know). Then there are those on the right who have also pointed out that she's gotten some negative reviews in terms of her intellect, claiming that she's an affirmative action pick who is being chosen not because she's qualified but because she's Latina, sometimes even with the suggestion that she's unqualified.

So on both sides of the political spectrum we get objections that she's not an intellectual heavyweight. Turley is right to point out that this is not the same as saying she's stupid, as some have claimed these critics to be saying. Maybe some of them are, but Turley thinks she's quite smart but just not an intellectual heavyweight whose depth of understanding of the law and the historical background of the legal questions would shift legal opinion in significant ways, e.g. as Justice Scalia has done on the right and as Justice Brennan did on the left in the latter half of the 20th century. Such a statement is consistent with recognizing her intelligence as pretty high.

Then there's a third category. There are those who claim the statements about her intelligence are due to racism. She's Latina, so they must be assuming she's dumb. You find this on the right too, particularly when people criticize Justice Thomas. Senator Harry Reid, for instance, despite admitting to never having read an opinion by Jusice Thomas, was happy to spout off the general wisdom of the left that his opinions aren't very well-written, and I regularly see and hear comments about how he's not all that smart and just looks to Justice Scalia for guidance about what to do. Anyone who has spent much time looking at his opinions and anyone who has heard him speak would never hesitate to consider him to be a pretty intelligent person.

So what about the racist charge? Is it racist to say that someone is dumb when the person happens to be non-white? Of course not. Your reasons for thinking someone is unintelligent may be despite great reluctance to say such a thing of a non-white person in the public eye. You might genuinely think the evidence supports it, or you may trust the opinion of someone else who reported to you that someone is unintelligent. I think it's pretty immoral to call someone a racist merely because they happen to think someone who is non-white isn't very bright. There are, after all, people who aren't white who aren't that bright. I've tutored for some of the athletic teams at my university. Some of the students on those teams are very good academically, and others should never have made it into college. Some of those who never should have been accepted happen not to be white. They struggle to understand pretty basic philosophical concepts that most freshmen pick up pretty readily. It's racist to assume someone is dumb just because the person is black or Hispanic, but it isn't racist to conclude that someone who happens to be black or Hispanic is of low intelligence after becoming aware of actual evidence that the person is of low intellifence.

Nevertheless, I think there's something that these critics have right. I think there's a very strong presumption in individual cases of not accusing someone of wrongdoing or evil motives when there isn't strong evidence that they are ill-intentioned or doing wrong. Therefore, I think it's wrong to throw around racism charges for everyone who, for all you know, might be operating based on racist assumptions. Racist assumptions would explain how someone might conclude that someone who managed to graduate top of her class at Princeton University might be stupid. Racist assumptions similarly would explain how someone might say the same about the justice who managed to convince Justice Scalia to become more judicially conservative than he already was because of some pretty innovative and out-of-favor reasons that it hadn't even occurred to Scalia to consider. But to assume that racism is at work in any particular case violates the principle of charity that we ought to take in cases where we don't really know if someone is being downright evil in the way we're inclined to accuse them of being.

Such a strong presumption is for individual cases when we're ignorant of the details, perhaps even relevant ones about a person's inner life. That's consistent with recognizing that a claim is too ludicrous to be perpetuated so easily and frequently by people who should know better when we rarely see such claims about men who are nominated or serving on the Supreme Court. That might lead us to wonder if there is some kind of racist stereotype being perpetuated. In this case, I don't think it would be that Judge Sotomayor is being assumed by anyone to be unintelligent because she's Latina, but I wonder if some people among those who say this are more likely to believe such a claim when made about a Latina than they would if it were made about a man, especially a white man.

Back during the nomination hearings for then-Judge Samuel Alito, Senator Barack Obama defended his vote to filibuster Alito, for reasons that included the following reasoning:

I believe firmly that the Constitution calls for the Senate to advise and consent. I believe that it calls for meaningful advice and consent that includes an examination of a judge's philosophy, ideology, and record. And when I examine the philosophy, ideology, and record of Samuel Alito, I'm deeply troubled.

I have no doubt that Judge Alito has the training and qualifications necessary to serve. He's an intelligent man and an accomplished jurist. And there's no indication he's not a man of great character.

But when you look at his record - when it comes to his understanding of the Constitution, I have found that in almost every case, he consistently sides on behalf of the powerful against the powerless; on behalf of a strong government or corporation against upholding American's individual rights.

If there is a case involving an employer and an employee and the Supreme Court has not given clear direction, he'll rule in favor of the employer. If there's a claim between prosecutors and defendants, if the Supreme Court has not provided a clear rule of decision, then he'll rule in favor of the state. He's rejected countless claims of employer discrimination, even refusing to give some plaintiffs a hearing for their case. He's refused to hold corporations accountable numerous times for dumping toxic chemicals into water supplies, even against the decisions of the EPA. He's overturned a jury verdict that found a company liable for being a monopoly when it had over 90% of the market share at the time.

It's not just his decisions in these individual cases that give me pause - it's that decisions like these are the rule for Samuel Alito, not the exception.

When it comes to how checks and balances in our system are supposed to operate - the balance of power between the Executive Branch, Congress, and the Judiciary, Judge Alito consistently sides with the notion that a President should not be constrained by either Congressional acts or the check of the Judiciary. He believes in the overarching power of the President to engage in whatever the President deems to be appropriate policy. As a consequence of this, I'm extraordinarily worried about how Judge Alito might approach issues like wiretapping, monitoring of emails, or other privacy concerns that we've seen surface over the last several months.

In sum, I've seen an extraordinarily consistent attitude on the part of Judge Alito that does not uphold the traditional role of the Supreme Court as a bastion of equality and justice for United States citizens.

By that standard, now-President Obama should find the current president's nominee disturbing for the same reasons he found the last Supreme Court nominee disturbing, at least if he's going to be consistent. In fact, he should promote a filibuster.

If you live in the District of Columbia, beware of parking your car in your own driveway. Unless your entire vehicle fits behind the front of your house (or technically the front of your front step), you'll be subject to a $20 ticket for parking in your own driveway. [Hat tip: Ilya Somin]

What are you supposed to do if your driveway doesn't go back far enough to fit your vehicles behind your front step? Maybe they don't make any driveways in D.C. that go back only as far as the front of the house, but I would highly doubt that. If this really is the law, they need to change it.

I have to agree with Ilya Solin about this. I've yet to put together my thoughts on the Sotomayor nomination fully, but this is an important point that I wanted to say something about separately. Regardless of your view of the correctness of Sotomayor's statement that a Latina just should be a better judge than a while male judge, such a view is not racism.

I tire of making this point on the left-leaning race blogs that I sometimes check in on. Racism, in its primary sense, is a negative attitude toward people of another race. Other things that might be called racist are so in a derivative way because those things are connected with racist attitudes. Thus certain acts are racist because they typically stem from such attitudes, and certain institutions are racist because they have a lot of such atittudes and acts woven into their very fabric. Jorge Garcia has an excellent philosophical defense of this approach in "The Heart of Racism".

When you call someone a racist, it doesn't mean they have innocent motives but participate in social practices that inadvertently cause racial harm. It doesn't mean they merely have false views about race or about races other than their own. It doesn't mean you can get away with ignoring race the many white people can much of the time. It doesn't mean you avoid some of the difficulties some others face because of race. The most immediatel thing converyed when someone is accused of being a racist is that the person has a deep-seated racial animosity or opposition to those of another race or that the person has views that those of another race are inferior, and these views have a negative emotional or attitudinal component. There are certainly things that can be called racism that don't fall into that category, but they're derivative of this fundamental meaning, and when you call someone a racist it sends entirely the wrong message if what you mean is something other than the primary meaning, because that's what people hear in such an accusation.

So it irks me when I hear conservatives making exactly the same blunder. It's not reverse racism to have the view that a Latina judge is likely to have experiences that influence her judging in positive ways, experiences that a white male judge wouldn't have. Calling someone a racist for thinking experiences common to the women of one ethnic group might make someone a better judge than people not in that category is as bad as calling someone a racist for opposing affirmative action or for claiming that the Democratic Senators at Clarence Thomas' nomination hearing were racists because they were willing to do anything, even smear his name with accusations that they had plenty of evidence against, if that's what it would take to prevent his confirmation. Rush Limbaugh and Newt Gingrich have violated their own principles on this one. Limbaugh is a regular complainer about how the left issues racism charges in cases when such charges are not warranted. Yet that's exactly what he's doing here. I'm pretty sure Gingich shares that view, and yet he's also apparently called her a racist. Regardless of whether her view is true (and I encourage you to look at Tom Goldstein's analysis of her discrimination rulings, a post I'll try to comment on in more detail as soon as I can, before you come to a final judgment on her ability to be fair on such matters), it's certainly ridiculous to say that she's a racist for holding it.

1. I've been extremely busy. I'm teaching two summer classes and barely keeping up with them. Plus the kids have been sick, meaning some have been home and in need of more attention than normal. So I haven't had time to do much blogging. But I've got a few things I've been thinking about that I did manage to put in Facebook updates, which I might as well put here in lieu of anything that will take more time than I have.

2. Remember when Rosie O'Donnell outrageously called it a separation of church and state for President Bush to take the religious identification on the Supreme Court from three to give Catholics, making Catholic justices the majority? I just thought it was worth noticing that President Obama has nominated another self-identified Roman Catholic to replace another Protestant, and I've yet to hear any similar claims from Rosie O'Donnell (although I did hear that Christopher Hitchens is being consistent on this by finding it grave and troubling).

3. I heard a strange NPR story on the dangers of fracking. It took a little listening to discover that they meant this. It was hard to listen with a straight face. I don't know how the reporter got through it.

4. The Supreme Court could rule as early as Monday on a case Judge Sotomayor was involved in that could lead to some real fodder for criticism in her hearing. SCOTUSBlog has an excellent presentation of the issue and how it might go.

5. Once I get a breather I intend to look closely at some of the Sotomayor stuff that SCOTUSBlog has been posting since before her nomination even occurred. I haven't had time to comment on her nomination, but I'm not sure I would even know what to say just yet. Her actual opinions are kind of important, and most criticism so far has not focused on them but on some political speeches and interviews she's given.

Not really, but that's what Mother Jones wants you to believe. With "Supreme Court Upholds Pension Gender Gap" as a headline, they want to send the signal that the Supreme Court has considered the existence of a gender gap in who receives how much of a pension and deemed it just fine. That suggests the view that what the Supreme Court is about is results. We should evaluate them according to whether they decided cases that give us the right results. Several justices on the Supreme Court might be happy about such a description, but I'm sure that at least four of the seven justices in the majority in this decision would not, and I'd guess that most or all of the other justices would not approve of such a description (even if I happen to think it's true of some of them).

If you read the article, it actually undoes a lot of the damage from the headline. Authors of op-eds don't usually choose their own headlines, and I'm guessing that's what happened here, so I'm not blaming the author, whose article is largely accurate and doesn't really spin the facts too significantly. The issue before the court involved a 1978 law that makes it illegal to discriminate against women who take maternity leave when counting pension benefits, because standard practice at the time was not to count maternity leaves as time served when calculating how many years someone worked for the company. That law counted such a practice as discrimination, and it made it illegal to ignore the time a woman was not working if the reason was maternity leave.

The issue before the court was whether a maternity leave that occurred before that law was passed was similarly affected. The majority ruled 7-2 that the law was not retroactive, and thus when it was passed it did not suddenly pass on the features of future maternity leaves to past ones. In other words, it is not illegal now not to count the maternity leaves before this practice counted as discriminatory, but it is illegal now not to count the maternity leaves after the laws was passed.

So the majority ruled in this case that the law that makes this kind of discrimination illegal wasn't a retroactive law, i.e. it didn't make what people had done before the law was passed suddenly criminal when it had been legal before that. It also treated the discrimination the law prevents as occurring when the maternity leave was taken, not when the pension benefits are calculated. I haven't had time to research the law itself or the claims of either side in how to interpret it. I'm certainly open to Justice Ginsburg's dissenting argument that the majority interpreted the law wrongly. In fact, I'd probably lean that way just from what I've read in several accounts. I'd be a little surprised if the law was narrowly about how a company counts maternity leaves at the time they occur rather than about how a company should count previous ones when it calculates benefits much later. So if I had to guess my view on the legal question, I'd predict that I'd have strong inclinations to hear out Justice Ginsburg's argument, since it seems more likely to be correct from what I've seen.

This isn't to say that I agree with that as a policy matter. There are two kinds of fairness at odds here, fairness of outcome and fairness of granting someone credit only for what they contribute to the company. If you begin with a socialist conception of justice, you would consider any inequality of outcome to be unfair and immoral. On the other hand, a libertarian conception of justice would consider such a view to amount to stealing from those who actually contributed to the company for all the hours being counted in their favor. It may be unfair on one level that women can't help having to take time off from work for maternity leave, but it's also unfair on a differently level to count that time as work time when someone else actually put in more time working for the company and didn't get to have time off count. One might see that as discriminating in favor of women who take maternity leave against those who don't (including women and men). If all you care about is the just result, your views on such matters will enter in to the calculation of whether this outcome is just. One can take either view on that matter and still decide this case either way. (And I want to say that those views aren't mutually exclusive. You might think both kinds of justice are morally important. I in fact do, and I'm not sure how I'd sort that out in this kind of case. I would be open to being convinced by policy arguments either way if I were in Congress debating such a law.)

If the justices were using such considerations, I think a stronger case could be made that they simply upheld the gender gap. But the reasoning they actually gave was about legal matters. As I said, I might actually lean in the opposite direction on those legal matters (even if as a policy matter I think a case can be made either way in terms of whether we should have such a law to begin with). Nevertheless, it strikes me as strongly misleading to say this decision upholds the pension gender gap, for several reasons.

A U.S. District Court in California has ruled that it's unconstitutional for a public school teacher to say that creationism is superstitious nonsense. According to Supreme Court precedent going back to 1984, the Establishment Clause of the U.S. Constitution doesn't mean merely what it says (which is just that the government can't set up a state religion) but extends even to government employees saying something that a reasonable person might take to count as endorsement of a particular perspective endorsing or disapproving religion. Add to that the conviction that creationism is religion, and you get this result. This does seem to me to be a direct application of current Supreme Court precedent and the standard view of creationism as religion (which the Supreme Court has endorsed, at least in one instance of the use of the term and a U.S. appeals court has declared to be applicable to intelligent design as well, although that judgment is only legally binding in one of the three federal court districts of Pennsylvania, just as this current decision is only legally binding on one of four federal court districts in California). [For the record, my detailed evaluation of the last case is here.]

Now I don't happen to think this is the right result, for several reasons. For one, the term 'creationism' can mean a lot of different things. It could mean the view that the the Earth is 6,000 years old, more precisely known as young-earth creationism. Some hold this view because they believe scripture teaches it, in which case it counts as a religious belief. Others claim to find it taught by science, in which case their support for it is of the kind that should count as science, even if it's bad science. The Supreme Court has declared that since it is taught in scripture, and science the scientific reasoning being presented is not good science, it can't be of the kind that should count as science. That claim has always seemed wrong to me, and I think this result is exactly what follows when you take such a view. If it's not of a scientific kind, then deriding it as bad science is also not of a scientific nature but of a religious nature (even if it's against a religious view).

But the term 'creationism' can also mean simply that there's a divine being who created. That's often a religious belief. It can also be a philosophical conclusion of arguments that have been present throughout the entire history of Western philosophy and have been held alongside religious beliefs by some but independently of religious beliefs by others. Thomas Aquinas, for example, presented arguments for God's existence that did not rely one bit on any religious beliefs. Lots of thinkers have believed in a creator without thinking they have any religious obligations to that creator. So even that kind of creationism isn't clearly religious, although it often is. Intelligent design arguments fall into this category if they conclude with the belief in a divine creator (rather than a more open conclusion, e.g. merely that there is some designer, which could be aliens if we're talking about biological ID arguments rather than cosmological fine-tuning ID arguments).

When a teacher says that creationism is superstitious nonsense, absent a context, it's not clear what that teacher means. It's certainly not obvious to me that it's a derision of particularly religious elements in any particular one of these things creationism can mean. But I do suspect that most people saying something like this aren't going to be sensitive to any of the distinctions I've just outlined, and they probably do intend to think of creationism as a religious teaching. Given some of the other statements this particular teacher made, I think this is especially likely in this case.

 

Check out how the justices voted in this Supreme Court decision that was handed down a couple weeks ago. Arizona v. Gant reflects a division on search and seizure rights that doesn't fall on normal lines. Here is oneway of conceiving of the ideological differences on the Supreme Court:

The More Extreme Conservatives: Justices Scalia and Thomas
The More Moderate Conservatives: Chief Justice Roberts and Justice Alito
The Moderate: Justice Kennedy
The More Moderate Liberal: Justice Breyer
The More Extreme Liberals: Justices Stevens, Souter, and Ginsburg

The lineup for this case:

Majority: Justices Stevens, Scalia, Souter, Thomas, and Ginsburg
Dissent: Chief Justice Roberts, Justices Kennedy, Breyer, Alito

That places the more extreme conservatives and more extreme liberals in the majority and those more moderate in the minority.

Note also that this is a 5-4 decision, so don't let it be said that all the 5-4 decisions are the four conservatives vs. the four liberals with Justice Kennedy as the deciding vote. This sort of division is much more common than you might have thought.

Maybe I haven't been following the calls for torture investigations closely enough, but it seems to me that there need to be two things that I'm not seeing for me to be convinced that the people issuing such calls are sincere about the issue and not just pursuing a politically-motivated witch hunt.

1. Speaker of the House Nancy Pelosi, Senate Majority Leader Harry Reid, and a number of other congressional Democrats were involved in discussions with President Bush and other administration officials when all this was actually going on, and they seem to have given their approval of whatever actually took place with official sanction. Or at least they voiced no objections. That's what I keep hearing. But I have heard very little about anyone seriously suggesting that they be investigated. The only reason I can think of for that is that they're Democrats. Someone with more information than I have should feel free to correct me on this if I've got the facts wrong, but it's very hard to see this as a movement to correct for mistaken policies and hold those responsible accountable unless all who were responsible are going to be investigated.

2. As far as I've been able to discern, the U.S. military has long used techniques like waterboarding in training their special forces to be able to withstand harsh interrogation techniques. My understanding is that they train them in techniques that are uncontroversially torture. Yet President Obama continues President Bush's claim that the U.S. doesn't torture. Those who accept it from Obama but didn't from Bush need to account for this, and if they think these procedures are immoral in principle then they ought to be consistent and issue a call to hold accountable those responsible for torturing our own troops, including any at high levels who knew about this and allowed it. (I suspect that would be all the presidents for at least as far back as Jimmy Carter, the earliest president still alive.) Again, it's possible that I don't have all the facts on this, and I'd be happy to receive corrections on this, particularly if you can back it up with sources I'd be likely to trust. But what I read of the very memos that everyone's getting all excited about now (even though they say almost nothing that we didn't already know) seems to confirm that this has been going on with our own troops.

I don't think this shows us one way or the other whether these policies are legal, morally justifiable, or worth pursuing an investigation about (and I see those as three somewhat independent issues). I actually think those issues are more complex and difficult to navigate than either side wants to acknowledge. See my 2004 post and then my 2007 pair on the moral and linguistic issues. (I can't say that I'd agree with everything in those posts now, though.)

But it doesn't seem to me that most of the people who are actually raising a big stink about this are doing so for consistent, principled reasons unless they're willing to apply it to the above two cases. (That doesn't mean they're all hypocrites, because they might not see the inconsistency and might be willing to adjust their behavior if they did see it, or perhaps they have arguments for differential treatment of the different cases, although I'm not sure what those would be.)

Most tests I find to determine how closely one might align with which Supreme Court justices are fairly superficial and don't base their calculation on very many issues. They also usually focus on general issues that don't always line up well with the actual cases that we have justices' votes on. I've found one that's a lot better, although it does have a few problems still. This one is mainly focused on actual cases, although its reliance on mostly hot-button political issues, while providing some familiarity for those who aren't heavy court-watchers, probably skews the results, whereas one that included more mundane issues might lead some to side with justices whose views they disagree with on hot-button political issues.

I have a few comments on the test before I get to my results and question-by-question analysis and explanations. This quiz gets most of the issues right and in some places makes finer distinctions between views than most. As far as I can tell, almost all of the questions (with one exception I can detect) are based on actual votes of justices rather than expected views or general tendencies. I do see two problems, though, and they are substantial.

One is that it does still oversimplify in a few places. It seems to ask questions about the result, which fails to capture the various reasons justices might go for that result. Thus an originalist who supports originalist reasons for a certain result might be on the same side as a non-originalist who picks the same side for living constitutionalist reasons. Someone indicating that choice then gets both names associated with them, and that's unfortunate. I found a lot of these cases put me on the same side as justices whose reasoning I don't support. Most people aren't going to read the cases or even summaries of them, either, and thus they will be going fully on policy preferences. Some justices do that anyway unashamedly, and sometimes the ones who seek not to do that will smuggle policy preferences in without admitting it. But if I want to see if I'm like a certain justice, I should see if I agree with the justice's reasoning, not whether the outcome is the one I'd prefer if I were in a legislative body. Making this quiz result-based masks the real differences between the justices, treats policy outcomes as the only issue of dispute, and thus skews the results.

Some of the questions themselves are not framed correctly at all. For instance, on #10 it asks if suspected terrorists who aren't U.S. citizens have any constitutional rights, and everyone on the Supreme Court would say yes to that. But that issue has never been before the Court. So what's it doing here? What they probably meant to ask is whether they have some specified set of rights (e.g. habeas corpus and related rights to use U.S. courts to challenge their imprisonment, which the Supreme Court did disagree on). On several questions, I thought the question asked about a more minor matter of disagreement than what the main dispute in the case was about. In a few cases, I thought the opinions were so splintered that it wasn't really a good case to ask such a broad question about, as if your view on the issue of the question would tell you much about how much your reasoning or preferences are like those of any particular justices.

But, all that being said, this is still one of the better tests matching your answers to legal questions with justices who voted on those cases, so I thought it was worth spending some time seeing where I really come out, and I decided to look at some of these cases I was less familiar with in more detail to try to overcome some of the problems in how the questionnaire is conducted. Now on to my results and analysis.

A lot of people have been making a lot of the fact that Obama didn't say the exact oath required by the Constitution until last night. I've heard several constitutional scholars on NPR saying this was nonsense, because the Constitution is clear that the term of the new President starts at noon on January 20, and it doesn't matter if the oath is said at all. My understanding, given that, was that the oath was constitutionally required but not a condition of the presidency beginning. It was just something Obama needed to do, just as the VP is constitutionally obligated to break tie votes in the Senate, and even if he did it late he did it. But his term starts before the oath in any case.

[Update: See comments.] Then I went and actually read the relevant portions of the Constitution. I'm not sure it's all that clear who was president between noon on Tuesday and last night when he said the oath properly. I'm not saying that he wasn't president, but it's not clear if he was or in what sense he was if he was, and it's not clear if anyone was legally allowed carry out the duties of the President. Here are the relevant stipulations in the Constitution:

1. The previous president's term ends on Jan 20 at noon. There's no indication in that amendment about the next president's term beginning at that time, despite claims by several constitutional scholars I heard on NPR that it does say such a thing. So Bush was clearly no longer President, but that amendment says nothing about who, if anyone, was.

2. Article 2 does specify the oath to be said. It says the new President must say it "Before he enter on the Execution of his Office". It seems pretty clear that Obama couldn't enter on the execution of his office, whatever that means, until he said the oath or affirmation that follows (I believe to accommodate Quakers, it gives the option of swearing the oath or simply affirming it). So he was violating the Constitution if he was executing his office before Wednesday night if the oath he said isn't the same oath the Constitution requires.

3. Article 2 goes on to say: "In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected."

It's not entirely clear to me if the last clause "until the Disability be removed, or a President shall be elected" applies grammatically only to the bit about someone provided for by law (or in the actual case an amendment providing the line of succession declaring it to be the Speaker of the House) or if it also applies to the first part about the Vice President. I first thought the latter, since otherwise the election of a president doesn't remove the vice president from office when it would remove someone lower in the line of succession. That would be weird, and I can't see how the wording could have intentionally meant that. So that looks like any vacancy or inability of the president to perform duties (such as Obama being constitutionally prohibited from entering the execution of his office) would make the VP President or someone down the line of succession if there is no VP. But it could be the former, if there's a need to fill the gap with no elected officer to step in, and the former case is when an elected VP can take over, and there's no need for an election to fill the gap.

Biden had already been sworn in by noon on Tuesday, so presumably he was VP already at noon. I don't see any argument that he couldn't have been VP just because Obama hasn't sworn the oath, and this would be true even during the short intervening time between noon and an oath normally taken in the proper way just afterward. So on the assumption that an inability to enter into the execution of his office means he was not yet President, I think there's an argument that Biden was at least acting President, then, if Obama was not President. I don't think there's any reason to think Pelosi was, as some have claimed, and it's certainly not possible that it was Bush or Cheney. I think there's even an argument that Biden was acting President if Obama was President but couldn't carry out his duties as President because he hadn't entered the execution of his office. [But this may not be so if he hadn't said the Presidential oath, in which case no one could act as President. He had said the VP oath, but that probably isn't sufficient.]

4. But there's even one more puzzling factor. The article 2 paragraph I quoted does have that bit at the end "until the Disability be removed, or a President shall be elected." The Disability was clearly removed when they did the oath properly last night, so there's no question that Obama is now President in every important sense. But on the assumption that he wasn't President when he didn't get the oath right, there's still the election to account for if the last clause applies to the whole sentence and not just the case of a line of succession below VP. The condition says "or a President shall be elected". A President was elected by that point. What does that mean? Is it an argument that Obama really was President, even if Biden was Acting President?

There are several steps in this are unclear enough to me that I wouldn't be very sure about them, but there's a plausible case for that, unless Biden would have had to say the oath himself intending it to be for the acting presidency, in which case no one was acting as President in the intervening time. The line of succession specifies who takes on the Presidency in the event of a vacancy or inability to perform the duties. But it doesn't say they immediately become President. In fact, Pelosi would have to resign from the House to become Acting President, which she would never do for a temporary lapse because then she couldn't return to her House position as a Representative (although the House could re-elect her as Speaker even if she's not a member of the House, as far as I can tell; they've just never done that). The same would be true of Senator Bird, who is next in line, with his Senate seat, except that he could be reappointed to the Senate by his governor (although I believe he'd lose his seniority because of a gap in service and thus lose his status as President Pro Tempore). There's no condition of resigning from a cabinet position, though, and there's no specification that cabinet positions end at noon on Tuesday. In fact, some departments are now actingly-headed by Bush appointees who didn't resign, since a number Obama's appointees have not yet been confirmed. So presumably Condoleeza Rice, if she'd taken the oath to be Acting President, could have been Acting President given that Obama and Biden hadn't taken the Presidential oath and that Pelosi and Bird hadn't resigned from Congress. There's never any way such a thing would happen when none of the people higher in the line of succession were dead or incapacitated in any way but due to technical legalities, but I think that's the legal possibility.

It's funny how an argument that I thought was crazy after listening to some pretty confident constitutional scholars actually appears to have some merit, but I'm very hesitant to take it as far as many have and say that Obama wasn't President in any sense in that intervening time. I do hope he redoes anything he signed during that time if he wants to make sure they are legal (although some of them I'd probably be happier for them not to be law, so maybe I should be careful what I wish for).

When I read that Batman was suing WB for the use of the name 'Batman', I was sure I was reading a wrongly-timed April Fools joke. But apparently it's true. It's not what you'd think, though. A Turkish town called Batman has sued Warner Brothers for using their name. I'm not entirely sure why D.C. Comics isn't their target, since they've clearly been using the name for far much longer.

One justification for disallowing bans on same-sex marriage is that it's seen as discrimination to prevent same-sex couples from marrying. [In this post I'm not considering under what circumstances discrimination is wrong and when it's perfectly ok. The moral issue isn't my interest here. I'm just looking at whether it's discrimination, leaving aside the moral issue of whether such discrimination is ok. It's ok to discriminate against black people when casting a part in a play for a character that was written as a white racist. But it's still discrimination, just a perfectly legitimate kind. I'm interested in the legal implications here, not the moral ones.]

Whether a practice or act counts as discrimination depends on some assumptions. Two key issues are (a) who is being discriminated against and (b) on what basis.

Consider Loving v. Virginia, the Supreme Court case that overturned bans on interracial marriage. The Supreme Court ruled that the Equal Protection clause of the 14th Amendment prevents states from treating individuals of different races differently when it comes to who they can marry. If a man is black, he couldn't marry a white woman in Virginia, but if he'd been white then he could have. That's discrimination against individuals along race lines.

Restricting marriage to same-sex couples isn't quite parallel. It doesn't discriminate against individuals according to sexual orientation. A gay man has the same rights as a straight man. He can marry an unmarried woman who is of age or who otherwise satisfies the requirements for marriage (parental consent or whatever). Both can marry women, and neither can marry men. Similarly, a lesbian has the same rights as a heterosexual woman. Both can marry men, and neither can marry women. That's not discrimination according to sexual orientation, since people of both sexual orientations (holding sex constant) have exactly the same restrictions. The law is equally applied to gays and straights.

But it is discrimination against couples. Same-sex couples are not allowed something that opposite-sex couples are allowed. Does a couple have the kind of legal status to serve as a party in this kind of legal question? My suspicion is that it would be a major innovation in our legal system to treat a couple as a legal entity. I'm not sure that's the best strategy for same-sex couples to try if they want to make headway on this issue, but it is the easiest way to end up with a discrimination claim on the basis of sexual orientation.

I've long thought that the most promising case that bans on same-sex marriage are discrimination is to ignore sexual orientation entirely and to focus on a different basis of discrimination. Men are being discriminated against on the basis of their sex by not being allowed to marry people women are allowed to marry, and women are being discriminated against on the basis of their sex by not being allowed to marry people men can marry. If you ignore sexual orientation, as many social conservatives want to do, then this complaint gets a footing. Of course you have to think any discrimination on the basis of sex is wrong or explain why this particular one is if others aren't, which puts you back to square one if you want to draw a negative moral conclusion, but I'm ignoring that in this post.

Legal scholar Steven Calabresi, in a generally accurate discussion of what Obama could do to change the federal courts, offers the following very strange argument:

This raises the question of whether Mr. Obama can in good faith take the presidential oath to "preserve, protect, and defend the Constitution" as he must do if he is to take office. Does Mr. Obama support the Constitution as it is written, or does he support amendments to guarantee welfare? Is his provision of a "tax cut" to millions of Americans who currently pay no taxes merely a foreshadowing of constitutional rights to welfare, health care, Social Security, vacation time and the redistribution of wealth? Perhaps the candidate ought to be asked to answer these questions before the election rather than after.

Aside from the issue of whether Obama meant to be saying the Constitution should be amended to change this (See this post and its comments for discussion of what Obama really meant), I find this argument extremely strange. The Constitution gives provisions for when it can be amended. If I swore an oath to uphold it, one of the things I would be upholding would be the legitimate amendment process that the Constitution specifies. A president could come along and advocate an amendment to the Constitution that changes it in extremely significant ways, but as long as due process for amending is followed it doesn't seem as if anything has been done to undermine the Constitution. What's been done is to undermine the moral principles behind why the Constitution is as if currently is, but it's not a violation of the oath to uphold the Constitution if you use the Constitution's own method of amending it to propose a change that's pretty drastic. It itself envisions that possibility.

Commenter Mafarmerga couldn't understand why I think the decision in the Dover, PA trial in Pennsylvania was grossly incompetent, so I thought I'd catalogue my reasons in a separate post.

I should note for the record that I'm not questioning whether the result of the decision was right, and I'm not commenting at all on some matters in the case (such as the ridiculous disclaimer they wanted to put on the textbooks). I'm merely pointing out that many of the arguments the opinion presents are not just bad but complete howlers. They're not the sort of thing that reasonable people can disagree about, and there are plenty of arguments that I do put in that category, including some on issues I have a very firm view on (such as abortion). To be in that category, you have to begin from different moral premises or different views of rights or justice. Many of the views defended in this opinion are simply unreasonable. Only an irrational or ignorant person could defend them. They involve misstatements, misrepresentations, ignorance of the history of philosophy, and simply fallacious inferences. I wouldn't give them a passing grade on a philosophy exam. I'll number my points to keep them separate in my mind as I go.

1. Jones says a reasonable student would see teaching ID as an endorsement of religion because religious people have said similar things. But this argument is pretty insufficient. It's true that so-called scientific creationists have talked about gaps in evolution, and one version of ID can be thought of as explaining things unexplained by evolution. But that doesn't mean ID is the same thing as scientific creationism, and it doesn't mean ID is religion. That's just a non sequitur.Saying there are unexplained things in a scientific theory isn't endorsement of religion just because one religion-derived view with scientific language uses a similar argument. You could never arrive at creation science unless you started with the assumptions of certain way of reading Genesis, a particular religion. ID requires neither a particular way of reading a particular religious text or any particular religious views at all. There's a huge difference.

2. Jones accepts John Haught's claim that design arguments are religious, citing Thomas Aquinas as someone who held the view. Yet Aquinas would be the first to insist that his design argument is not remotely based on religious revelation. He distinguishes between general revelation and special revelation, and he says you can't know special revelation is true apart from faith. You can know general revelation is true just by using reason. His design argument is the Fifth Way, and the Five Ways are five of his arguments for the existence of God starting from general revelation, using reason as available to anyone without the use of faith. The argument is much older than Aquinas anyway. It goes back to Plato at least, who does not use it to support any religious beliefs, and Xenophon puts it in the mouth of Socrates, who was put on trial for rejecting the religion of his time. Whatever Socrates was up to was more properly philosophical.

3. He makes much of the fact that Aquinas notes that the designer is the same being most people call God. Aquinas doesn't say that step of the argument can be known by reason, at least if that means concluding that this being has all the characteristics of God as revealed in scripture. Each argument he gives offers one or a few divine attributes as demonstrable, and then he concludes that you can know by reason that a being with many of the divine attributes exists. He doesn't think you can show that God is a Trinity or that God is of one essence with the human being we call Jesus. He does think you can show a necessarily existent, omnipotent, omniscient, perfectly good being who explains all the contingent things found within the universe, who designed things at some level in order to explain the purposed appearance of things. That happens to be true of the being he believes in by faith, and he thinks they're the same being, but he doesn't argue for this based on religion. His arguments aren't religious arguments. It's simple historical ignorance on Haught's part to claim that they're religious, assuming Jones represents Haught fairly to begin with.

I've tried hard to make sense of Barack Obama's various statements, stumbles, votes, and explanations related to abortion. With many of them, I haven't succeeded. I've come to the conclusion that he simply hasn't thought hard about the issue and that he's grossly unaware of many of the important background facts, both about the legal background and the general philosophical conversation about this important issue. I wanted to put my conclusions together in one post, with links to some of the places where I've spent more time on the details for some of these things.

1. Obama misunderstands Supreme Court precedent so badly that he thinks it prohibits using the word 'person' for a prematurely-born infant. Supreme Court precedent does prohibit certain kinds of laws from restricting abortion, but it never does so by defining the moral status of a fetus (it simply ignores that issue as if it's unimportant) or by declaring anything about which human beings count as persons. I've discussed this issue at length here, with some followup discussion here, and those who were defending him in the comments didn't seem to me to have anything that really helped.

2. Obama misunderstands Supreme Court precedent so badly that he thinks he can require the kinds of exceptions to abortion that his voting record shows he insists on (and the Supreme Court has consistently required) while saying that mental health exceptions only mean diagnosed mental illnesses. This is not how pro-choice politicians opposing laws without mental health exceptions have based their opposition, and it's not how the Supreme Court has taken it. Any mental distress or psychological harm counts as a legitimate exception, according to Roe v. Wade, Doe v. Bolton, Planned Parenthood v. Casey, and pretty much all abortion decisions the Supreme Court has rendered where it's come up. (The only exception is the one instance since the 80s when the conservatives have won the day, the second time the Supreme Court heard a case on a partial-birth abortion ban. The removal of the mental health exception there applies only to one method of late-term abortion and not to all late-term abortions.)

What's interesting about this is that it pulls Obama (1) to the left of the Supreme Court on the first issue, to the point of refusing to support a law that requires doctors to comfort and care for born infants who happen to be premature enough that it's unlikely but possible that they'll live and (2) to the right of the Supreme Court on the second issue, to the point of refusing to accept the limit on abortion restrictions that the Supreme Court has imposed, that any psychological trauma, even if not a diagnosed mental illness, can justify an abortion no matter what other circumstances occur (including bans against exactly that instance of abortion). So far there's no inconsistency.

But what Jan Crawford Greenburg points out is that Obama is on record opposing what he's been saying in #2. It's not just that he's on record saying it but has flipped to oppose it. He's currently supporting legislation that opposes his current position in #2, and he's promised that it will be a top priority upon assuming the office of president. The Freedom of Choice Act would basically remove all state and federal restrictions on abortion at any time and for any reason. Is Obama just talking out of both sides of his mouth? Or does he really not understand how badly he's mucked things up on this issue?

Posted by Jeremy Pierce on July 20, 2007 3:15 PM

Matthew Franck notes that on one of Barack Obama's exam questions from when he was teaching law, he asks whether an equal protection challenge can be brought against a law requiring states to be color-blind. Franck says he knows of lots of people who think the equal protection clause requires states to be color-blind, but he hasn't encountered a serious argument anywhere that such laws violate the equal protection clause. I haven't either, but I don't read law reviews. Still, such an argument isn't hard to imagine, and I think it's actually a sound argument.

The equal protection clause entitles people of all races to equal protection of the laws. The laws therefore need to be able to rely on the distinction between members of one race and members of another if they are to ensure that each race is equally protected by them. Therefore, color-blind laws, which disallow the state from paying attention to race, violate the equal protection clause.

It sounds like a pretty good argument to me. As a policy issue, I don't mind restricting affirmative action in universities to class rather than race, or at least ensuring that the standards aren't lowered as much as they are. There's a significant argument that the way affirmative action is typically practiced in that setting (as opposed to in the workplace, which is a very different matter) seems to me to harm the people it's intended to help, given that admissions officers already go out of their way to promote diversity (so there's no discrimination to combat at that level), and it means accepting people who won't be able to do as well and then will appear less good when they graduate than they would at a lower institution with much higher grades and more time for extracurriculars. There are other negatives too, but that's the one that seems decisive to me. I think it's much better to work at the high school level and below to help kids do better in school, to care more about school, and to think of college as something worth doing.

But I can't see how it could be good to ban affirmative action by not allowing a state to recognize racial distinctions in any way. That sort of law is not just bad policy. It really is unconstitutional because it prevents enforcement of the equal protection clause.

Remember that Born-Alive bill that requires an additional doctor present at an abortion to keep any survivor of an abortion alive? Back in February, I wrote about Barack Obama's insistence on not passing such a law in Illinois, finding it at best puzzling given his party's wholehearted passing of the law in the U.S. Senate, with people like Barbara Boxer and organizations like NARAL endorsing the law.

As I said in my previous post, I don't think it's fair to call Obama a supporter of infanticide (as distinguished from abortion) because of this. At the same time, I don't see any consistent justification for opposing the law, and his own official reason didn't hold up. He said it was because the federal version had a neutrality clause that stated that the law takes no stance on the issue of the moral status of the fetus, while the Illinois law had no such clause.

At the time, it seems that Obama himself had held up a neutrality amendment in committee, so he was the one to blame for the laws not being similar in that way, and that's no reason not to pass the law if you do support the federal one. I concluded that either he didn't really support the federal law (and was thus lying about his views) or he was just inconsistent in the various things he's said without any sense of really believing anything clear on the matter.

Now it seems Obama actually did put the neutrality amendment before his committee. But then he and all the other Democrats on the committee voted against putting the amended law before the whole Illinois Senate. So, again, I'm not sure what to make of this. Is this another example among many of him simply lying about a past position that embarrasses him politically because it's far to the left of the mainstream, hoping no one would catch up with him on it? Or is there some way to put together what he's said with this revelation? I suppose he could have forgotten what his reasoning at the time was, but it's been an issue in the campaign long enough that he should be thinking it through and preparing a response that fits with the actual Senate records.

What possible motivation could he have had to pass this amendment and then still vote against the bill? It's not just inconsistent with what he's been saying happened. I'm not sure it's even internally consistent. What would be the point of voting for the amendment (an amendment that I'm pretty sure the Republicans had added) and then voting against the amended law? Was there some other amendment to the law that his party, who was in the majority on the committee, somehow couldn't get away from the law? That sounds unlikely. But if it was something in the law proper, then why would he say he would have been fine with the federal version?

According to Justin Taylor, Obama had also defended his past actions by saying "there was already a law in place in Illinois that said that you always have to supply life-saving treatment to any infant under any circumstances...." (See the 8/12 JT comment here.) He cites a David Freddoso book that says that's factually incorrect. Perhaps Obama misunderstood the law, so he may not have been lying, but if that's right then he at least hadn't done his homework, which as a legislator he ought to have been doing. This is second-hand information, so I'm open to correction on this, but I think if these things are right, then this piece of Obama's past that already reflected very badly on him is probably at least a little worse than it had seemed.

Remember that ad used against Harold Ford that portrayed him as a philanderer in the 2006 Senate elections? Since Ford is black and the woman in the ad was white, a lot of people concluded that Tennessee voters were intended to draw the connection that this black boy was fooling around with their white womenfolk. I don't think there's any way to prove it in that case, but it sure was a lot more plausible as a possible play on racist sentiment than this current one.

So the McCain campaign comes along and compares Barack Obama to the substanceless Britney Spears and Paris Hilton. Criticize the McCain all you want for its insinuation that Obama is like them, but please don't pretend that it's like the Harold Ford ad, as the New York Times editorial board does. The comparison is revealing, about those making it anyway, but it's logically invalid. I knew some people were touting it about, because someone on NPR mentioned it only to give a pretty decisive argument against it. Nevertheless, I'm a bit surprised to see it being endorsed by the NYT editors on their blog. That's pretty prominent for what I had thought was a position on the extremes.

There was no insinuation whatsoever in the ad that Obama is getting it on with these women. There was no suggestion at all that he's after white women. The ad compared Obama with these women, suggesting that he himself is like them, not that he's doing something with them. Even granting the premise that the anti-Ford ad is playing on racist fears of intermarriage, there simply is no argument that the McCain ad is remotely in the same ballpark. The ad criticizes Obama, but being black should not make remove someone from the possibility of criticism, even unfair criticism, especially in politics at this level. Criticism, even unfair criticism, is not the same thing as racism, and it's not the same thing as attempts to make use of others' racism. This is, in effect, the NYT editors' argument:

1. The anti-Ford ad had a black man and a hot white woman in it, and that was playing on racist fears of intermarriage.
2. The anti-Obama ad has a black man and hot white women in it.
3. Therefore, the anti-Obama ad is playing on racist fears of intermarriage.

It's not hard to see that the argument is logically invalid. There are any number of explanations for why an ad can have a black man and hot white women. The one offered in premise 1, even if it's true, is not the only one or even a remotely plausible one in this case. The ad portrays these white women as moronic celebrities, not as potential lovers for Obama. The point is absolutely clear to anyone with any political sense, and many pundits have criticized the ad in a way that recognizes its point without adding nonsense to it.

So why is the New York Times editorial board making it out to be racism? I have two theories. Either may be false, but I can't think of another, so I'm assuming one is true. Either (a) they're really, really stupid and can't see how fallacious this comparison is or (b) really, really immoral and want to make McCain look like a racist when they know there's no evidence in this ad that he or anyone in his campaign is. The first is uncharitable about their intelligence, and the second is uncharitable about their motivations, so the principle of charity can't help us out. There is no charitable explanation of their behavior.

If it's the latter explanation, then we have good reason to think this constitutes criminal defamation of character. If they know full well that they're lying to make him look like a racist, then it's legally prosecutable as libel. Perhaps they're not directly motivated by wanting him to look bad so much as to defend Obama's recent claims that the McCain campaign would use racist attacks by pointing out just such an attack, but I don't think that matters legally. They know they're lying about something that they know will defame his character. As I understand the law, that's sufficient for criminal defamation, and Wikipedia seems to confirm that judgment. On the other hand, they could believe the above argument is actually a good one, but then they'd be much dumber than you'd expect for people as highly educated as they are.

On Thomas Aquinas' view of natural law, law is written into the fabric of the universe. On one level, everything that happens is part of divine law, since God's plan of providence includes every single event that happens across all time. Aquinas calls this eternal law. On a second level, certain things are good for us or bad for us according to our nature, according to what kind of thing we are and what would make for contributing to our welfare and the internal purpose within us as organisms and as God's creations. That's the natural law. Then human beings can issue legitimate rules that fit with what's best for us and seek the general welfare. If it meets all these criteria, then it's a human law. If it's issued by someone without care for those it includes or if it's not for the general good or reasonable, then it's a real law. Otherwise, it's just a rule. He's got high standards for when a purported human law really is a law.

One of the aspects of this that I hadn't seen until this summer, when I covered a more extensive part of his treatment of this in what's called the Treatise of Law (but is really just a section of the Summa Theologiae, and he gave it no such title) is that he also allows for custom to generate laws. When he introduces the notion of legitimate authority to make laws, he says there are two ways this can happen. One way is that someone (singular or plural) God has placed in care over a group issues a rule that really is for the common good. The other way is that people issue a regulation over themselves. In contemporary times, we hear that and think he's talking about democracy. He surely knew of the ancient democracies, since he education would have included quite a bit about the ancient world. But that turns out not to be his primary concern when he says this. He actually means custom.

We have lots of rules by custom rather than by what we ordinarily call law. I'm pretty sure there were men's and women's restrooms before there were any laws about who can go in which in public buildings. If I'm wrong, there are lots of examples that are like that. It's not illegal in the U.S. to call people ordinary insults, but it's often immoral, and it's against custom if it's a certain kind of insult or a certain kind of context (in the middle of a job interview, say). We as a society have standards not to do things that aren't illegal. They're just frowned on, and you get ostracized or socially penalized if you do them.

What I found interesting about Aquinas on this subject is that he thinks this can go the other way too. If a certain action is worth prohibiting for the common good and is made a law (a genuine law) but then becomes against the common good, what was a law becomes merely a rule. But what about when no one follows a law, and those in authority tolerate such behavior? The movie theater in the mall near us hasn't allowed backpacks in the theater since a little after the September 11 terrorist attacks in 2001. At least that's their official policy. But no one enforces it, and lots of people don't keep it. I think Aquinas would see that as custom determining what the real human law is, and I think that's a very interesting view. It also has implications for speed limit laws in a jurisdiction where the police don't stop people for going 5 over or 10 over, and everyone drives that fast because they know where the threshold for being stopped is. On Aquinas' view, it's as if the law really is where they practice it as being, not where it's written to be. (Of course, all this depends on the custom's practice being consistent with the common good. If not, then custom couldn't modify written law in this sort of way.)

David Bernstein raises some good questions about how the FLDS case has been handled. But he quotes an op-ed that seems to me to be dead wrong:

You've ruled the existence of five girls between 16 and 19 who were pregnant or had children was evidence of systematic abuse, even though in Texas 16-year-olds can marry with parental consent. You've ruled young toddlers are in "immediate" danger because of their parents' beliefs or what might happen 15 years from now, not because anyone abuses them.

Excuse me, but unless these girls were the first wife of the father of their children, they weren't married. Texas allows parents to consent to marriages of their children when they're 16. They don't allow parents to consent to non-marital sex with a dude who's already married to someone else but wants to have a pretend wife in addition. That's not marital sex, since they're not married. Since the men are already married, there's no marriage the parents could have consented to, and that makes it rape. Automatically. The girl can't consent, and the parents can't consent to an illegal marriage. The legal question ends right there. This is child abuse.

Someone might try to argue that the law doesn't track with the right answers to such questions when you're talking about what counts as abuse morally speaking. But that's not the issue here. What matters is whether it's legally abuse, and it's legally rape if the man in question is already married to someone else and thus can't have gotten genuine consent to a legal marriage from the girl's parents.

It's hard to resist commenting on what GatoRat says in the comments:

Several of those old girls already have children. If a fifteen-year-old is pregnant with her third child, were the first two immaculate conceptions?"

It is correct to point out that there were clearly pre-16 cases. It is not correct to confuse immaculate conception with virginal conception. I don't see how the idea of a child being conceived without original sin is relevant at all to this discussion.

I wanted to write up a careful argument about this, but I've got enough things to blog about that take time that I'll just post this now with a question. A couple weeks ago Eugene Volokh pointed out a case where two lawyers' insistence on attorney-client privilege allowed someone to go to prison for 26 years. They knew their client had done it, but someone else was tried, and they couldn't bring the information forward by the ethical standards of their profession. It sounds as if they would have come forward if it had meant saving his life but not in the case of a very long time in prison.

Is this a case where the prevailing ethical norm is just wrong? Is attorney-client privilege isn't worth allowing someone to go to jail for 26 years (as it turned out; it was a life sentence, but they didn't know if their client would even die before the innocent guy who was convicted, so it could have been the rest of his life for all they knew). Perhaps this is just a case where you have a moral obligation to break the ethical rule of the profession and take the consequences of disbarment. A lot of commenters on the post seem to think that, anyway. If so, it's a nice case of a very strong prohibition on something that nonetheless is not absolute. (Even on the view of these lawyers, there was at least one exception, the case of capital punishment. But if there are more exceptions, then I think it's a nice case of a difference of degree making an ethical difference.)

In a recent case, the California Supreme Court affirmed a 1955 law that requires teachers to have proper credentials, even if they're homeschooling their own children. Some conservatives are up in arms. But it's important for conservatives to locate their criticism properly.

As far as I can tell, this was a judicially conservative decision. The law in California is that teaching requires certain qualifications. The only question was whether you can find a right in the Constitution to homeschooling, and they concluded not, which is actually a more judicially conservative position. See Eugene Volokh for more details.

Now I'm open to a judicially conservative argument that this case was wrongly decided, but I've been seeing people upset merely because of its being a bad policy decision. Well, don't complain to the court. Complain to the people who wrote the law to begin with (except they're probably dead), and seek to get the law changed. That's the normal process for this kind of thing, and it's not conservative to expect a court to find new rights in the Constitution that conservatives would prefer to have constitutionally guaranteed. This is a case of conservatives expecting judges to enact their policy preferences, which is the very thing conservatives usually complain about and call judicial activism when they see liberals doing the same thing.

Barack Obama's opposition as an Illinois State Senator to the Born Alive Infant Protection Act has been making the rounds, with a lot of people overstating their case on both sides. Some conservatives are taking this as a sign that Obama thinks infanticide is morally ok, and some liberals are acting as if his approach is what any supporter of keeping abortion legal before viability should say. I'm not sure either is true, but I'm also not sure this reflects well on Obama.

Here is the law. It says that if a baby is born alive, whether by intended delivery or by failed abortion, it is legally a person, a human being, a child, and an individual. It counts as born alive only if it is completely removed from the mother (ignoring an umbilical cord connection, which does not count as a sufficient connection according to this law). Partial-birth abortion is thus not ruled out, because a partial birth is not a complete removal of the fetus. As long as the birth has not fully taken place, this law threatens no actual abortion rights.

Obama's reason for not supporting this ban is not because he thinks it's ok to kill a born fetus. As far as he's said, he does not actually support infanticide (and he didn't vote against the law; he just voted present, although that in itself was part of a strategy devised by Planned Parenthood of Illinois to protect pro-choice politicians from voters seeing how pro-choice they are). For his actual words, see comment 9 here. What he says is that he worries about the logic. Here is what seems to me to be his argument:

1. The Supreme Court has declared laws banning abortion before viability to be unconstitutional.
2. There is no difference between the moral status of a fetus inside its mother before viability and the moral status of a born baby at the same developmental stage.
3. Therefore, banning the killing of a born baby at this stage is morally tantamount to banning abortion at a pre-viability stage. (from 2)
4. Therefore, the law is unconstitutional. (from 1 and 3)

This argument does not amount to supporting infanticide morally. It is merely an argument based on the constitutional issue. According to Supreme Court precedent, this law is unconstitutional, and thus it's pointless to pass it. He gives no moral argument against the ban, just a pragmatic one. So from this speech alone it's impossible to get any clear support for infanticide.

Nevertheless, I think this is a terrible argument. The first premise is clearly true. I would argue that the second is also true. I see no difference in the intrinsic moral status of the fetus merely because it is contained within someone or is separate. However, I don't think 1 and 3 guarantee 4. There's no legal reason why morally inconsistent laws can't occur. You can ban something that's morally equivalent to something else that's unconstitutional to ban, as long as the first thing isn't unconstitutional to ban. But the real problem I have with the argument is his inference from 2 to 3.

The standard pro-choice argument is not that a mother has a right to kill a fetus growing within her. Only the most extreme abortion-choice proponents hold such a view. The standard view is that a woman's right to control her body is morally more important than whatever rights a fetus might have. That argument allows for a fetus to have some sort of moral status such that killing it would be prima facie wrong, even if the bodily rights of the mother outweigh that. What this means is that the standard pro-choice argument does not accord a mother the right to the death of the fetus. If it survives removal, her rights have been satisfied. That means the moral status of the fetus is what kicks in to determine what you should do in such a case, and this law settles that question. It does not threaten the woman's bodily rights, at least not according to the standard justification of abortion rights.

I've been teaching capital punishment for the last week in my ethics class. There are two main arguments for the death penalty, and I see them as relatively independent of each other. Retributivism is the view that the death penalty is the only just punishment for premeditated murder because it is the only punishment that's proportional to the crime. A life was taken, and that is so serious that no other punishment matches up with what the murderer deserves. This sort of argument rarely occurs in public policy arguments, in my experience, even though it's the argument with much stronger philosophical support historically. I think that's probably because our culture has moved away from liking the idea that we deserve anything bad when we do wrong. Most people do accept a kind of retributivist justice when they get robbed of something they think they've earned. They just don't want to extend retributivist arguments against wrongdoing.

So death penalty advocates have often relied on deterrence claims in recent decades. The only problem is that studies aiming to establish whether capital punishment deters any potential murderers from killing have been fully inconclusive. The ones with the strongest conclusions have tended to be the ones with the least credibility. The weaker the conclusion, the fewer problems critics have been able to find. This is so in both directions, and many people familiar with the literature have concluded that we can't know whether capital punishment deters, and that has left philosophers defending the death penalty trying to establish why we should retain capital punishment even if we can't show that it deters. A couple of those arguments are, I think, quite brilliant. One takes a form of Pascalian-style wagering based on the potential rewards if you bet on deterrence and win vs. if you bet on it and lost, compared with what happens if you bet on non-deterrence and ban capital punishment. There are difficulties with these arguments, but I find it fascinating that people would go to such lengths to defend the deterrence value of capital punishment because studies on deterrence are inconclusive, when the historic justification for the death penalty doesn't assume any deterrence at all.

That was the state of play a few years ago. It's pretty much how all the ethics books dealing with the question leave things. It amazed me, therefore, to see that The New York Times highlighted a dozen studies in the last few years that conclude that the death penalty does deter murders, from as many as 3 to 18 murders per execution. This article was published in November. I only heard about it because Joe Carter linked to it. I didn't save a link to it at the time and had to do some careful Google searching just to located it again. I didn't see other reports of it in that searching.

That surprises me, because this is huge if these studies turn out to be well-founded. It changes the whole debate about the second justification for the death penalty, and apparently it's changed the minds of a number of important figures, including Cass Sunstein, a well-left-of-center law professor who had been completely opposed to the death penalty. I haven't seen these studies, and I'm not sure I'm qualified to evaluate them fully even if I did see them, but I do know some people have criticized them, although that tells us very little. Some people will criticize anything that gives a conclusion they don't like. I'm going to be looking out for further developments on this. I don't think those who support the death penalty should abandon retributivism, but if the death penalty does deter that's worth knowing about, because those who aren't retributivists might be basing their whole evaluation of the death penalty on this one question.

Snopes debunks the "E-ZPass used for determining who is speeding" myth.

I've heard this one several times, as far back as a decade ago, but I haven't ever seen someone explain why the police can't use this kind of system to catch speeders. It's nice to see someone presenting the facts, but even this debunking doesn't mention one reason why this would never work. A traffic officer needs to be involved in catching speeders to verify who is driving the vehicle. Otherwise, an owner of a vehicle who happens to have several other family members who drive the vehicle could get a speeding ticket for what another driver did, or even worse you could get ticketed for what your friend does while driving your vehicle.

This may well be an irresolvable problem with trying to use anything like E-ZPass to catch speeders. Even with cameras, you couldn't be sure that it was one rather than another of a set of identical twins or two family members who look similar. They can send you a bill if your vehicle goes through an EZ-Pass lane when it's not supposed to (although the one time I did that I was told I'd get a bill and never did), but they can't touch your driving record without being sure it's you, for the same reason you can't get convicted of a traffic offense if the police officer doesn't show up in court to testify that you're the one they stopped.

In my post on some moral issues related to torture, I said I was planning another post on legal issues. As I've been thinking about what I wanted to say, I've realized that I don't really have anything to say about the legal issues. I don't know much about what the laws related to this issue actually say, and I don't have a clear proposal of what they ought to say other than the very general things I wish could be true of laws on this. The issues that I had really wanted to say something about are actually linguistic, not legal. I wanted to say something about the word 'torture' and why I think it's unfortunate that so much has focused on what falls under that term.

Here's the problem, as I see it. We've got a law (or treaty or something) that uses the word 'torture'. It then says torture is disallowed, or at least disallowed under certain circumstances. Part of the legal debate is whether cases of detainees in the war on terrorism count as falling under the law in question, and part is whether these techniques count as torture even if the detainees do fall under it. I have nothing really to say toward answering those questions, at least nothing that hasn't already been said ad nauseam. What I want to say is that it's unfortunate that those are the questions being debated.

Suppose you're a government official responsible for making decisions about what interrogation techniques are allowable and when. You're presented with this meaningless law that says we can't torture that doesn't tell you what counts as torture. In that case, it seems as if you have to figure out which cases count as torture according to what the English word means. It's plausible that one piece of evidence in figuring that out would come from interviewing the public about what they think counts as torture, since their use of the term is what makes it mean what it means to begin with. I think a number of philosophers of language would resist this, because we don't always know internally what factors in the world influence what our terms mean, but leave that worry aside. Suppose this would help us determine what counts as torture.

I don't think the actual case is like that. It's well within the realm of possibility that what legally counts as torture doesn't line up with what the English word 'torture' means, because the laws and codes dealing with torture often define it or give examples to declare which techniques legally count as torture. That means giving cases and asking if the cases seem like torture doesn't help. Besides, I don't think the opposition to some of these techniques really wants the law to be as vague as simply equating legally-defined torture with whatever the word means in English. They want lists of disallowed techniques, not some sense that the word in the law just means exactly what the word means. Laws like that are usually bad laws, because it's hard to enforce something without specific stipulations.

It's also within the realm of possibility that the legal definition of torture, which again might not line up with the popular meaning of the term in ordinary English, might actually diverge in meaning in different contexts. In particular, different kinds of laws might deal with different sets of things called torture. Is what counts as torture in a context of declared war against another country going to line up with what counts as torture in the war on terrorism? It's obvious that such a context shift doesn't change what the English word means. But if the legal definition doesn't line up with the meaning of the English word, why should we expect the same legal definition in both contexts?

This leaves us with a problem. How do we determine what legally should count as torture, given that it doesn't have to be whatever the English word means and it doesn't even have to be the same in all contexts? Here is my proposal. Stop discussing which techniques are allowed absolutely, because imaginable circumstances might allow some techniques that aren't allowable in less severe circumstances. The issue isn't whether we can list the techniques we do or don't allow. What matters is putting a system in place that can safeguard the process so that extreme methods are not used except in very extreme situations.

I'm not the sort of person to come up with ideas on what those safeguards are. I have no special background in law or the military. But I do know ethics, and I do know language, and what I'm seeing coming from the opponents of waterboarding and other techniques doesn't seem to me to fit with what seem to me to be the best ways of looking at the ethical and linguistic issues. The debate shouldn't be about what the word 'torture' in English includes, as if we can think about the technique and just intuit that it counts as torture. It also shouldn't be about blanket generalizations. It should be about putting specific procedures in place that should be followed in non-emergency situations to safeguard what kind of technique can be used, with another set of procedures in emergencies that will allow for on-the-spot decisions that can be allowed more leeway but still with serious repercussions if a subsequent evaluation leads to serious questions about what was done given what was known, what could be known, and what could be expected to be known.

Now a lot of the comments people have made on my first post have come from worries about abuses by those who would torture immorally for their own reasons and those who could give too much benefit of the doubt to those who would commit such abuses. That's a problem. But it's also a problem if we end up with a too-tight restriction when the extreme case occurs. What I would like is a safeguard system that can avoid both problems.In hard moral cases there isn't always a solution that gives you everything you might want. It does seem at least in principle possible for someone especially good in that kind of intelligence to come up with something that could do that (or at least end up with something in that direction). So I think it's possible that we're working with a false dilemma: restrict the interrogators more than the status quo does, or defend the insistence of the current administration that extreme techniques ought to have some place in extreme cirtcumstances. Couldn't there be a system of safeguards that moved toward achieving both aims?

The New Jersey Supreme Court has ruled unanimously that doctors are not liable for giving inaccurate information to women seeking to have an abortion. Justice Barry Albin wrote the opinion, which says:

On the profound issue of when life begins, this court cannot drive public policy in one particular direction by the engine of the common law when the opposing sides, which represent so many of our citizens, are arrayed along a deep societal and philosophical divide.

First of all, this gets the issue compltely wrong. There's no debate whatsoever among actual doctors and scientists about when life begins. It begins at conception. Period. There are some who frame the issue in terms of when life begins, but they do so at odds with science. Those who claim that life does not begin at conception or that there's any serious scientific debate over when life begins are opposing science. People like to complain about the Bush Administration or social conservatives being anti-science, and this seems like such a clear case of the very thing those people complain about. If it's anti-science to suppress or deny controversial but nonetheless dominant views in the scientific community, then it's certainly anti-science to deny and suppress the universal position of all scientists that biological life begins at conception.

Now there is a debate over when moral rights begin. Some tie that question to what they call personhood, and then they define personhood in terms of capacities that only develop later on. They thus conclude that a fetus has no moral worth, and anything can be done to a fetus without any moral worries. That is a controversy, and people disagree about it, including scientists. But it's not a scientific question at all. It's a philosophical question about what sort of living being has moral status and is the subject of rights and moral worth. This particular doctor did not speak to such matters but simply told the woman who was asking whether the baby was already there, "Don't be stupid; it's only blood." When a nurse later told the woman that parts of the baby were still inside, she wondered how something that's only blood could have parts still there. The doctor lied to her, and she had depended on him for accurate information to inform her moral decision.

U.S. Supreme Court Justice Anthony Kennedy took a lot of heat from supporters of abortion rights in his recent opinion overturning lower court decisions that had declared partial-birth abortion bans unconstitutional. One thing many had complained about was that he had put quite a bit of effort into arguing that women are often not given accurate information about what the abortion process consists of and what is actually true of a fetus at the stage in question (6-7 weeks). Many complained that he was portraying women as stupid, ignorant, and in need of men to make their decisions for them. I haven't read the opinion closely, so it's consistent with what I know about the opinion that he did use language that comes across this way. But the general point does not require such a view of women. The general public is disturbingly ignorant on many matters, including scientific information relevant to moral questions. That this is so with abortion is demonstrated by this NJ case.

Doctors and pro-choice advocates who abuse their positions and take advantage of that ignorance by lying to women, as this doctor did, especially when they stand to gain financially or in any other way from such abortions, are doing something that in any other domain of medical science would be punishable by law. But abortion is the sacred cow that doesn't seem to require being treated like any other medical procedure. That was Justice Kennedy's main point, and I think this case demonstrates that his rhetoric, whether it was as anti-woman as people claim or not, is directed at a real problem that, even on pro-choice principles, ought to be addressed. Unfortunately, the NJ Supreme Court doesn't seem to recognize that. Fortunately, South Dakota and Illinois have similar cases that might end up differently, which would give the Supreme Court the opportunity to resolve the split among circuit courts.

A little while ago I had lots of things to say about the judicial nominee battle going on in the Senate and the claims by some of the Democratic senators, most prominently Senator Schumer, about the process of confirming the newest two Supreme Court justices. I didn't have the time to type up any of my thoughts, and it feels a bit late now. However, one thing I did want to say something about is the interesting reversal of roles that we see when the Senate shifts leadership and each party complains about the tactics of the other side. See Jan Crawford Greenburg's post here for some nice examples.

You might classify the views on such matters in terms of two pure positions. One is the view Senator Chuck Schumer (D, NY) has been consistent in holding (although his application of it leaves much to be desired, in my view). According to him, there is absolutely nothing wrong with expecting nominees to violate the current norm among judicial nominees not to comment on potential future cases or on issues one expects might come before the court one will be seated on. In the Roberts and Alito hearings, he pressed for details on whether they believe certain rights are established in the Constitution, whether they would be willing to overturn certain precedents, whether they thought particular cases were wrongly decided, and so on. They refused in many of these cases to go beyond the standard they both believed to have been presented by now-Justice Ginsburg's nomination process a decade-and-change earlier. Their reasoning is that commenting on what may be central to forthcoming cases will threaten their perception as unbiased judges, since those whose cases will be heard will think the justices' minds are already made up and will not give them a chance. But this is not the reasoning of the other pure view on such matters.

The alternative view is not merely that there is a convention among judges not to engage in such prediction out of fairness to parties in future cases. The alternative pure view is that it is simply not the business of the Senate in confirming judicial nominees to engage in partisan politics. That is for the president to be concerned with, since it is his election that determined who would nominate judges for any vacancies. The Senate's role is merely to safefuard the president's choices against serious corruption and ethical issues and to ensure that the nominees are qualified to carry out the tasks required of them. Deference is given to the president's nominee. The primary objection to this view is that the Senate is also an elected body, and they are elected for partisan reasons to present partisan considerations for or against what the Senate might do, including for or against judicial nominees in their role of advising and consenting. It is thus within their authority to question nominees who are both qualified and not corrupt simply because they disagree with the nominee on issues of legal philosophy.

I think the latter issue is an interesting debate in constitutional interpretation. The Constitution's text merely says that the Senate will advise and consent to the president's nominees. It doesn't give a reason why. It doesn't indicate what process the Senate will engage in before giving their consent or their advice. It doesn't say if the advice and consent are different stages of a two-step process. Those things are all not in the text of the Constitution but are in the Senate's current practice of carrying out this role. I don't know anything about the legal background to this sort of thing and whether English common law explains it. I don't know anything about the debates in the constitutional committees over this language and what light that sheds on it. I don't know anything about whether the federalist papers explain what some of the founders were thinking of as they argued for this kind of wording. In short, I am woefully unqualified to have much of a view about what the Constitution really means by saying this. If I were to go by what I take from it merely by reading the words, I'd be inclined to think that the Senate ought to give advice to the president and then confirm whoever the president selects.

Ilya Somin nicely clears up some confusions about what's commonly called the unitary executive. There are two issues: the scope of executive power and its distribution. The unitary executive view is that the president's authority over the executive (an intra-executive issue) is absolute. I would have thought this to be absolutely clear in the Constitution, but apparently some disagree. A separate issue is about the scope of executive power. How much authority does the executive has with respect to the other branches (an inter-branch issue)? In other words, unitary executive allows the president sovereign control over what happens within the executive branch, but this other view sees the executive power as expansive in a way that many find controversial. The problem is that many people keep calling the latter view by the term "unitary executive".

Somin says:

As Alito explains, one can consistently support a unitary executive with a narrow range of powers (which is roughly my position). One can also consistently support a unitary executive with very broad, almost unlimited powers (John Yoo's view, and also that of the Bush Administration). You could - also consistently - endorse a nonunitary executive with broad powers. The latter was the position of liberal Democrats during the New Deal and for many years afterwards, when they endorsed both broad executive power and the creation of numerous executive agencies outside presidential control.

Is there an example of someone who both denies the unitary executive and thinks the executive has a limited role? Given that both positions serve to limit the president, perhaps hardly anyone seeks to try both ways at doing so, but I'm curious whether someone has tried.

I've finally gotten back to continuing my series at Right Reason with Religious Motivations in Politics. Given the Augustinian framework I've already presented, Christians have a motivation to seek the good of our neighbor around us by participating politically based on what we believe to be good, which does in part come from religious motivations. The post spends most of its time responding to objections that this is immoral because it forces a moral view on those who don't have it and that a secular society (or a religiously plural society) should not allow such a thing.

As I was posting my latest post in my Christianity and Politics series at the conservative philosophy blog Right Reason, I thought it might be nice to put together a post here linking to all the posts in the series. I will update this post as I add posts there. Posts 7 and 8 are tentatively titled, and I may even restructure what I hope to cover in remaining posts.

1. Introduction: Christian and Politics (Guest Blogging)
2. Augustine on Civil Government: The Two Cities
3. Augustine on Civil Government: Two Further Preliminaries
4. Augustine on Civil Government: Authority
5. Augustine on Civil Government: The City of God and Compromise
6. Christian Political Political Participation
7. Religious Motivations in Politics
8. Religion and the First Amendment

Jan Crawford Greenburg has a nice post looking at some of the overblown rhetoric about the last Supreme Court term. Much of the criticism of this last term, from both legal scholars and legal reporters, has been wildly inaccurate, conveniently forgetting important details and drastically misrepresenting the reasoning of the majorities. This is true from both the left and the right, but I'm in agreement with her that there really has been a pretty strident panic on the left. What's particularly strange about it is that it's a reaction to a few small steps in a direction opposite of what the Warren Court and Rehnquist Court had virtually made seem inevitable, and those who have come to see the pretty radical direction of the post-FDR Supreme Court as guaranteeing leftward movement eternally have now recognized that when Republican presidents actually appoint conservative judges it has an effect.

The reality is that the five-person majority isn't remotely monolithic. Justices Scalia and Thomas are originalists. They insist on giving arguments from the original meaning of the law in question or relevant section of the Constiotution. In Thomas' case, later judicial decisions that he thinks were wrongly decided have little value in interpreting what the Supreme Court should say. Scalia is much more inclined to allow precedent to have some value given that it throws the legal system into disorder if you overturn precedent willy-nilly. But he's still somewhat resistant to such moves. They don't agree on everything, not even in theory, but they tend to argue on the basis of original meaning (Scalia usually in terms of what an informed audience at the time would have understood, while Thomas usually seeks to discover the original intent of those who came up with the language in question. Often these will lead to the same result.)

But Justice Kennedy is more results-oriented. He has principles, but they are moral and political principles, not legal principles. He overturns laws and precedents when he thinks a moral issue is at stake. He rarely gives arguments based on original meaning or original intent unless he's trying to garner votes from Scalia and/or Thomas. He cites precedent when he thinks it will get him votes from other justices. But the parts of his opinions that seem to do the most work for him (i.e. the ones that use the strongest language and argue about how high the stakes are) are the kind of thing you'd expect to see in a political election or a congressional debate. They aren't legal arguments. Many of his principles are conservative, often moderately conservative, but some of them are clearly in line with the liberal wing of the Court (e.g. on whether abortion in general should be legal, whether the government can take your property so a developer can build a Wal-Mart, on the rights of gay people to have sex, on detainee rights and executive power).

Then there are the two newest justices. Chief Justice Roberts and Justice Alito are definitely conservative, and they have usually agreed at least in part on the results with Justices Scalia and Thomas and often enough with Justice Kennedy to frustrate Justices Stevens, Souter, Ginsburg, and Breyer. But they are a different kind of justice. They are conservative not in the sense of going for politically conservative results whenever it suits them (as Kennedy would do if he were more morally and politically conservative than he is) and not in the sense of sticking with the original meaning of the law in question or the Constitution. They give much a higher place to precedent.

From 2008 Central:

Tancredo is trying to keep the immigration issue alive. At his news conference Wednesday, he unveiled an immigration bill that would crack down on employers who hire illegal immigrants and limit citizenship to children born to at least one parent who is also a U.S. citizen or lawful resident.

Wait a minute. Wouldn't that be unconstitutional? From the 14th Amendment:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

He isn't proposing an amendment. He thinks it would be constitutional to do this. How so? I had to Google around to find his explanation, but here it is. He relies heavily on "and subject to the juridiction thereof", claiming that children of illegal immigrants aren't subject to the jurisdiction of the United States. I can think of lots of things that the contrast between those under U.S. jurisdiction and those not could come to, but the idea that children of illegal immigrants are not under U.S. jurisdiction is one of the least likely. Doesn't it raise problems for enforcing laws if illegal immigrants aren't under U.S. jurisdiction? Then why would their children not be?

Update: This post is about Tom Tancredo and the constitutionality of his proposal. Comments should be about that.

Marty Lederman raises an interesting inconsistency argument against two opinions the Supreme Court handed down yesterday, both touching on free speech and both written by Chief Justice Roberts. If you want to read the opinions themselves, they are Morse et al v. Frederick and Federal Election Commission v. Wisconsin Right to Life, Inc. Here are the quotes Lederman compares:

From Wisconsin Right to Life: “Because WRTL’s ads may reasonably be interpreted as something other than an appeal to vote for or against a specific candidate, they are not the functional equivalent of express advocacy,” the Chief wrote. In defining what qualifies as “express advocacy,” "the court should give the benefit of the doubt to speech, not censorship."

From Morse: ''The message on Frederick's banner is cryptic. But Principal Morse thought the banner would be interpreted by those viewing it as promoting illegal drug use, and that interpretation is plainly a reasonable one.''

I think the key would be to distinguish between different contexts for the two statements. If the context, the kind of case, and the circumstances of when it might be ok to act on the speech in some way differ in the right ways, then there's no inconsistency. In the school case, the issue wasn't whether it was a criminal act to say it. It was whether the school had the right to make a rule against it and thereby punish him in a non-legal way. It could outlaw that kind of speech within certain contexts, the Court concluded.

The other case didn't involve disciplining a student in a school for violation of a speech code or some such thing. It was about whether certain actions violate a law prohibiting a certain kind of speech.

I can understand why someone would think the burden of proof is much higher for establishing that someone has broken a law than it is for establishing that someone has broken a school speech code.

The other issue is that express advocacy seems to be a narrower concept in the Chief's mind, and there's no such narrower concept at work in the Bong Hits case.

I haven't read the opinions, so I don't know what Chief Justice Roberts would actually say, but I think I can make sense of why someone might view both cases differently even though both involve free speech. An interesting question is whether the dissenters, who also took opposite views on the two cases, can also provide a justification for wanting to restrict free speech in the campaign finance case while allowing it in the school case. They probably can, but I haven't read the opinions, and I haven't given it much thought.

I do think it's noteworthy that when people make such inconsistency claims they often forget to apply them to both sides. If conservatives favor restricting abortion but oppose animal rights, that has equal potential for inconsistency as favoring animal rights but opposing fetal rights. If conservatives have to explain how it's consistent to oppose abortion but favor the death penalty, then liberals who oppose the death penalty but favor legal abortion also need to explain how those positions are compatible. In any these cases, there isn't necessarily an actual inconsistency, but the charges are often made without considering that the opposite views might also have the same potential inconsistency.

This week, we're supposed to hear from the Supreme Court on a couple cases involving race-based assignment to elementary schools in order to ensure diversity at all schools (as opposed to race-based assignment of elementary schools in order to ensure segregation). I'm not sure yet that I have a view on the case. I plan to read the opinions carefully when they appear. I rarely do that. I think I've only read two Supreme Court opinions straight through when they appeared, and those were the sodomy and affirmative action decisions in the summer of 2003. But both were issues I was teaching about that summer, and I have particular interest in both issues because I regularly focus on both in ethics classes. This will be another case that draws my interest, but in this case I'm nowhere near as sure of what I think. I do think there's a difference between these cases and the segregation cases, but I also think there might be worries about how these programs work in the details. I may very well end up having mixed feelings about whatever the ruling is.

But here's one argument from Ed Whelan of Bench Memos that I cannot come close to endorsing, at least in its current form:

And how many American parents believe that any four-year-old should be forced to endure two daily 90-minute bus rides for any reason, much less in order to satisfy some social engineer’s rigid vision of racial balance?

I can understand that one more white kid in a white-dominated school is unfortunate in some ways, and I can understand concluding that it's not so bad that it's worth a 90-minute bus ride twice a day. But "for any reason"? What about a severely autistic kid who simply doesn't talk who needs a full-day pre-school program with none available in the entire county, and the closest one turns out to be one of the best in the entire region? And it's not fully 90 minutes. It's more like 75 (although it really is more like 90 for the other kid who rides his bus). And what if the kid actually enjoys the ride? I can't think of any better situation for my four-year-old than this, and it's unfortunate that the country can't keep paying for him to do it next year because of ridiculous state law requiring all kids his age to go to kindergarten regardless of any needs for further intensive pre-school services first.

This isn't really more than a quibble with his language, which could have been easily made to accomodate this sort of thing. If he hadn't spoken in such an absolute, he might have been accurate about most Americans' views. Even people who value diversity in education (and I'm certainly one of them, and I think it's ideal to have it at the earliest stages) may not think it's worth a 90-minute bus ride twice a day. But I think it's worth emphasizing a largely true generalization here. The more absolute you make a statement, the less likely it is to be true, especially when you're dealing with political issues, which are usually more complex than other issues (and especially more complex than either side of most debates will admit). I don't know very many Americans who, when presented with our situation, would think that we're immoral for sending Isaiah from Syracuse to Utica and back five days a week. The previous program he was in basically stalled his development right after he'd begun asking for things occasionally and using context-appropriate words occasionally (and then stopped right when he went to the half-day program), and he was making progress in this new program within a couple weeks of going there (and now is asking for things regularly, both with pictures and with actual words). Helping a four-year-old who is stuck whining and pointing to be able to ask for things with verbal language (never mind the other ways they've helped him out, which are fairly significant) is certainly worth the bus ride to another county, and even if he didn't like the bus ride I'd say that.

I've seen the following argument several times in recent months:

1. Hate crime laws make a penalty more severe only because of a different intent.
2. If you increase the penalty for a crime merely because of the motive, you are criminalizing a motive, i.e. a thought.
3. Therefore, hate crime laws are really criminalizing people's views and thus are thought crime laws.

The result is that a number of conservative organizations have been resisting hate crime laws and calling them thought crimes. Family Research Council is one group that has been doing this. When Congress had a bill on hate crimes in front of them, they were sending daily emails calling the bill a thought crime bill. I thought it was inaccurate to label it that way at the time, and I'm even more convinced of it now after reading Eugene Volokh's post from a few weeks ago on the subject. Volokh points out that we do this sort of thing all the time, and no one has any qualms about it. Treason is a thought crime, on this view. If I stole a government document in order to destroy it for the fun of it, it wouldn't be treason. But if I did it to sell it to North Korea or Iran, it might be treason. Also, murder or manslaughter can differ in terms of intent, as can different degress of murder from each other and different degrees of manslaughter from each other. Intent is extremely common as a means of distinguishing between different kinds of crimes with different penalties. Even less controversial discrimination laws can distinguish between different penalties (or whether a crime has even been committed) according to intent.

If those things count as thought crimes, then we shouldn't be opposed to legislating against thought crimes. But I think it's probably better to recognize that none of these things counts as thought crimes. A thought crime would be thinking something without doing anything further and then being arrested merely for having the view.

I haven't said anything about whether there are good reasons to favor or to resist including sexual orientation as specially protected in terms of hate crimes. I think there are reasons offered on both sides that have some merit. But it's silly to oppose these laws simply because they treat two murders or assaults as different according to motive. It's true that both are assaults, but they do have different moral factors that apply to them. One is a worse assault. At the same time, we don't always recognize morally important issues as affecting what kind of crime someone committed or even whether they committed a crime. I'd love to try to think through (at some point, not today) which factors count as legitimate ones in terms of motive. But ruling it out merely because it does involve motives is at best ignorant of how law generally works in this country with regard to different motives for the same act.

According to this story, James Dobson is on the pragmatist side of the pro-life camp, favoring the incrementalist approach to restricting abortion and thus earning the ire of those who think it is immoral to endorse any law or judicial decision that allows any abortion. His praise for the recent Supreme Court decision upholding the partial-birth abortion bad, and his endorsement of that ban to begin with, count as such pragmatist incrementalisms. After all, the ban only bans some abortions, and Justice Kennedy's opinion upholds the legality of abortion in most cases.

Dobson's difficulty is that he was treating what he saw as pragmatism among those who could vote for Rudy Giuliani against Hillary Clinton as thoroughly immoral, something he could never see himself doing. His reason seems to me to be parallel to the reasoning of those who are currently critizing him for being too pragmatist on these other issues. So is he consistent in taking these very different attitudes to things that some will treat both as pragmatist compromise.

I criticized Dobson's stance on the first issue, and for exactly the same reasons I want to say that he's taking the better approach on this second issue. But because I think the same reasons matter n both cases, I'm wondering if he can consistently treat the two cases as different in a way that justifies his vastly different language about each. Is there some principled reason why he could take what many would see as a pragmatist line on abortion laws and judicial decisions while calling someone immoral for taking a similar stance on which candidates to vote for? I'm not sure what such a principle might be. I can't think of any crucial difference between the two issues that helps distinguish them in the way he needs.

In a discussion on the Trinity, Trent Dougherty at Prosblogion rasies the question of whether President Bush is his own president. There's a sense in which Bush is the president of those who voted for him, i.e. they (at least at one point) identified with him as the person they wanted to be president. There's a broader sense in which he's the president of every U.S. citizen, i.e. he's the president who governs over them. That's the sense Trent has in mind. In that sense he is Ralph Nader's president as much as he is James Dobson's.

But is he his own president? Trent thinks yes, and I agree. Mike and Dale in the comments say no, and they offer two reasons. First, he can't pardon himself, which means he doesn't have that particular authority over himself. Second, he's not under his own authority, because as the top executive he's not under anyone's authority. I've adapted what follows from my comment on that post.

For my initial thoughts on the recent Supreme Court decision Gonzales v. Carhart, see here. Since that post, I've had a chance to see a lot more of the commentary that's ensued, and I wanted to highlight a couple responses I've seen to the aftermath, first on the claim that this is a religiously-motivated decision and second on the actual constitutional issue at stake. The first point comes from Rick Garnett here, in response to a post by Geoffrey Stone at the Huffington Post. The key quote from Stone is:

What, then, explains this decision? Here is a painfully awkward observation: All five justices in the majority in Gonzales are Catholic. The four justices who are either Protestant or Jewish all voted in accord with settled precedent. It is mortifying to have to point this out. But it is too obvious, and too telling, to ignore. Ultimately, the five justices in the majority all fell back on a common argument to justify their position. There is, they say, a compelling moral reason for the result in Gonzales. Because the intact D & E seems to resemble infanticide it is "immoral" and may be prohibited even without a clear statutory exception to protect the health of the woman.

By making this judgment, these justices have failed to respect the fundamental difference between religious belief and morality. To be sure, this can be an elusive distinction, but in a society that values the separation of church and state, it is fundamental. The moral status of a fetus is a profoundly difficult and rationally unresolvable question. As the Supreme Court has recognized for more than thirty years, when the fundamental right of a woman "to determine her life's course" is at stake, it is not for the state -- or for the justices of the Supreme Court -- to resolve that question, and it is certainly not appropriate for the state or the justices to resolve it on the basis of one's personal religious faith.

Now consider Garnett's response:

It is true that the majority included “moral concerns” – like the public interest in promoting “respect for life” – among the “legitimate government interests” that could justify the federal ban. It is not clear, though, why we should regard these concerns, or the view that human fetuses are moral subjects whose lives have value, as any more “religious”, and therefore suspect, than our nation’s fundamental commitment to the view that all human beings are moral equals, regardless of race, and should be treated as such in law. For a judge to identify such concerns as a permissible basis for legislating – given the fact that, in the Court’s view, the law did not impose an “undue burden” on the abortion right – is not to attack church-state separation or to substitute revelation for the will of We the People.

As I've argued many times in the past (see especially here), there is no rational basis for the claim that pro-life convictions are mere religious dogma, because such assertions ignore a fairly rich philosophical framework that often lies behind such convictions. But what's particularly silly about Stone's claim is that one of the five justices in the majority in this case voted to uphold the basic right to abortion in 1992 and insists in this opinion that he sees himself still affirming that. If he's spouting forth Catholic doctrine in the guise of a legal opinion, how did he end up affirming what his church denies? Still worse, if Stone is serious about this he should worry about Kennedy's votes on capital punishment cases, since the Roman Catholic Church opposes the death penalty. I haven't heard anyone complaining about the church-state line being transgressed there. Even worse, the mainline Protestant denominations and Reform Judaism congregations of the four minority justices are officially pro-choice, and I don't see anyone complaining about their violations of church and state in voting in a way their religion happens to support.

I haven't had anything to say about the Supreme Court's upholding of the federal ban on partial-birth abortion in Gonzales v. Carhart, largely because a lot of what I've wanted to say would have taken a lot more time than I've had. But over the weekend I managed to put together some of my thoughts on the main issue.

It seems to me that the left-leaning are seeing this as a monumental move away from long-standing precedent. 1973's Roe v. Wade got it right in securing a right to abortion, was upheld in large part in 1992's Planned Parenthood v. Casey, and was applied accurately in 2000's Stenberg v. Carhart, when state bans on partial birth abortion were overturned. The right-leaning, on the other hand, are seeing it as a narrow ruling that makes a baby step toward possibly restricting abortion further, but it's just a small step, even if it's in the right direction. When all is said and done, I think both attitudes get something right but also get something important wrong.

It's true that this isn't much compared to what pro-lifers want, which is one psychological explanation for seeing it as a narrow ruling. It also actually is a narrow decision in one sense. The way Justice Kennedy words the opinion, it does not explicitly overturn any previous Supreme Court decision. It does not reconsider the right to abortion. It does not overturn the prior decision on state laws, which it still takes to be unconstitutional because they lack an exception for the life of the mother. It forms a distinction between this law and prior ones. Thus it seems from Justice Kennedy's opinion that nothing in the prior decisions would have had anything to say about had the law existed when those cases were decided.

But that picture isn't entirely true. Casey's famously vague "undue burden" standard has regularly been taken to include a health exception and not just a life exception. That's certainly how Stenberg took it. But then Kennedy hadn't signed on to the majority opinion in the latter case. He voted with the minority (i.e. with Chief Justice Rehnquist and Justices Scalia and Thomas). Jan Crawford Greenburg has a fascinating account of why. Apparently he thought Justice O'Connor had betrayed him by taking Casey in that direction. He didn't think he'd signed on to that when he switched his vote to join her in that case, thus putting her in the majority.

What we see now in this case is what he thought he was agreeing to in Casey. That's why he thinks this is fully in step with the Roe and Casey precedents. But it's not true that it doesn't overturn something in Carhart v. Stenberg. It overturns the requirement for a health exception, and that's quite significant, even if the majority opinion doesn't seem to recognize that it has done that.

Jan Crawford Greenburg has a fascinating piece in the Wall Street Journal called The Truth About Clarence Thomas [hat tip: SCOTUSblog]. It recounts some of what she learned about his first term or two on the Supreme Court from the records of other justices, especially Justice Harry Blackmun. I think this pretty much destroys the last vestiges of several of the common myths about Justice Thomas, e.g. "Justice Thomas is stupid", "Justice Thomas is simply Justice Scalia's lackey" (some would even call him his slave), "Justice Thomas doesn't have any original thoughts", "Justice Thomas' opinions aren't intelligent or well-written", "Justice Thomas isn't smart enough to ask questions during oral arguments", and so on. I've long wondered how much of this is buried racism that isn't allowed to come out with political liberals but is tolerated when it comes to conservatives, but I'm sure that even if it is it's not the sort of racism the person is aware of. I've blogged about some of these issues before here, here, and a series I started here but regrettably haven't gotten around to finishing yet. [Update: See also here.]

It turns out that, according to Justice Blackmun's notes, the first year with Justice Thomas on the court changed things drastically. He'd vote in conference as a lone dissenter, but then when the other justices saw his opinions several of them would change their vote and sign on to his dissent. This is especially true of Justice Scalia, which means it's more true that he was Justice Thomas' lapdog than the reverse, although neither is really true, and a more accurate description would just be that Thomas had just convinced Scalia with arguments that Scalia's original vote was wrong.

Oh, and as for oral arguments, apparently he's got a philosophical conviction against asking questions during oral arguments. He thinks it's the lawyer's job to present the case without much interruption. He considers it a violation of his oath to do otherwise. I simply thought he was the sort of person who takes a while to digest things over the long term but not quickly on his feet, something true of some of the best philosophers I know. But he's actually deliberately holding back for principled reasons.

Judge Robert Armstrong in California has ruled that a law against disrobing in front of a minor applies only to men and not to women, even though no mention of gender occurs in the law. How could that be? It says "exposes his person". [See also here for further details. Hat tip to How Appealing for the last link. I found the story initially from a Google search for something entirely different.]

Now I'm a strong defender of inclusive language, as anyone who has been reading my blog for very long should know, but this is pretty stupid. Just because most of the English-speaking world now does not speak the way this law was constructed does not mean that the law as written means to include men by the pronoun 'his'. Either the judge doesn't know that anyone has ever used grammatically masculine pronouns for gender-indeterminate or gender-unknown people, or this is strict constructionism gone wild. Originalists distinguish themselves from strict constructionists for reasons much like this. No original reader of the law would have interpreted it like this, and the writers of the law surely didn't mean it this way. But if the strict meaning of the literal text is what counts, regardless of what anyone at the time would have understood it to mean, then you get this kind of thing. It strikes me as being in the same category as insisting that there is too milk in the fridge and thus you don't need to go to the store to get more, then pointing at a tiny puddle of milk in the bottom of the vegetable crisper to demonstrate this claim.

Dahlia Lithwick seems to think Justice Scalia's comments in the following quote offensive. Interestingly, there's no explanation at all of what is supposed to be offensive. Here is his comment (via Orin Kerr, who gives the broader context and says some similar things to what I'm about to say):

We have a case involving standing which says that -- you know, the doctrine of standing is more than an exercise in the conceivable. And this seem to me an exercise in the conceivable. Nobody thinks your client is really, you know, abstaining from tequila down in Mexico because he is on supervised release in the United States, or is going -- is going to apply having been deported from the country for criminal offenses, he is going to apply to come back -- and look, these are ingenious exercises in the conceivable. This is just not the real world.

I can think of several reasons someone reading this quote out of context might think it offensive, but I'm having trouble seeing how any of them is both (1) a good interpretation of the justice's words and (2) offensive in the right sort of way to justify the way Lithwick describes the offense.

Jack Balkin argues that originalism is consistent with a living Constitution, in a very interesting way. See the summary by Randy Barnett, and read the whole paper (follow the links from Barnett's post) if you want to look at the details.

Once you distinguish between original meaning and original application, you can say you're an originalist about original meaning but not original application. The terms of the Constitution mean what they originally meant, but how that is applied in new contexts will change. An example would be that the original application of the equal protection clause obviously did not include things like affirmative action because the people who authored it did not see that language applying to such things (see here for why), while the language itself may actually have implied something that its authors wouldn't have wanted to apply it to. So the living Constitution is when the applications change.

This strikes me as along the same lines as what Justice Alito was saying at his hearings back when he was still Judge Alito. I'm not sure if it's Alito's own view, but it's interesting to see Balkin willing to adopt a form of originalism, since he has been a strong critic of the kinds of originalism that Justices Scalia and Thomas hold (which are distinct from this kind). One irony of this is that the affirmative action discussion I just linked to doesn't follow from this new form of originalism that Balkin has identified. Balkin's argument against the Scalia-Thomas-Rehnquist view of affirmative action is that the original application of equal protection does not include things like what affirmative action now is. But of course that's irrelevant if original application isn't what determines the meaning of constitutional language.

I was sitting in the law school library one night a couple years ago, and a law student asked me if I could remind her the names of the Supreme Court justices. Bear in mind that this was before Roberts and Alito. The Supreme Court at the time had been the same people since something like 1993. This particular law student had probably been in junior high when President Clinton had appointed Justice Breyer. When she found out that I wasn't a law student, a law professor, or a lawyer but merely a philosopher, and yet I could name them off in like three seconds, she was feeling a little Bashful.

Speaking of which, have you heard about the latest poll purportedly showing that the seven dwarfs are more famous than the Supreme Court justices? I've seen it several times now, but most people aren't noticing what Mark Liberman at Language Log has picked up on (see the links within that post, since it doesn't say much itself). It's good reading in general to see how misleading polls can be, indeed how misleading they can be designed to be. Suffice it to say that there's little to be trusted about this poll. It has all the hallmarks of manipulative poll-spinning.

I'm no fan of the flag-burning amendment Congress just tried to pass, but Senator Robert Byrd (D-WV) has a very strange argument against it. He says the amendment flies in the face of 1st Amendment freedom of speech. Well, yes, at least on standard readings of the 1st Amendment. I do think burning a flag is a stupid and wasteful way to make any point, but I think free speech has enough value that those who think they're saying something by burning a flag should be allowed to do so. But my reasoning for this is based on the value of free speech. It's not based on the first amendment. It makes no sense to argue against amending the Constitution by appealing to the Constitution. Byrd's complaint would be like arguing against the repeal of Prohibition by saying that Prohibition was in the Constitution. The 21st Amendment most definitely flies in the face of the 18th. But then that was the point. So too with this. Of course it flies in the face of something that its goal is to limit. I liked what Byrd had to say about why the gay marriage amendment was stupid, and I think there are similar arguments that work here, but this particular argument is pretty lame.

Most of the other things he says in this speech are ok, but I have to note another mistake that Senator Leahy also made recently. Senator Byrd at least acknowledges one amendment that limited individual freedom (the 13th), but he misses several of the others I listed in the above-linked post, most notably Prohibition. Perhaps he just meant currently valid amendments. Still, I think the others I listed are most plausibly taken as limitations on individual rights (notwithstanding some commenters' arguments to the contrary).

On NPR this morning, they had a brief segment on the current gay marriage debate. I don't support this amendment, for reasons on at least four levels, most of which I've covered so many times before that I don't want to go into it all again right now. But even if you fully opposed this amendment, it doesn't do to say false or misleading things in order to support that view. Senator Patrick Leahy was quoted on NPR this morning saying that this amendment would be the first time in U.S. history that we would amend the Constitution to limit individual rights. I'm not sure what he's talking about, because I count six times that amdenments have done exactly that.

13th Amendment, Section 1: "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."

That sounds to me like a limiting of individual rights. I would have a right to own slaves if the 13th Amendment were not in effect. I do not have such a right due to that amendment. The 13th Amendment thus limits my individual rights.

14th Amendment, Section 3: "No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability."

This takes away the individual right to hold certain offices among those who have committed certain offenses. That's an individual right that the amendment removes.

Eugene Volokh discusses some problematic sexual assault policies at Gettysburg College and Antioch College regarding what counts as consensual sex. The most striking element to me comes toward the end of the post. It looks to me as if Antioch College's sexual assault policy leads to a fascinating infinite regress. Apparently you need explicit verbal agreement to count as consent. Yet they also prohibit non-consensual sexual communication. That means you can't even ask someone verbally if they want to have sex unless they first consent to your question. So you need to ask them if you can ask them a question about sex, but before that you need to ask them if you can ask them if you can ask them a question about sex, and before that you need to ask them if you can ask them if you can ask them if you can ask them a question about sex. That means you could never even get going with asking the question, which means consensual sex is impossible, and thus sex is in effect outlawed. Antioch College is the new Bob Jones University.

South Dakota has now passed an almost complete ban on abortion. Four other states are doing similar things. Pundits are agreed that this is an attempt to force the Supreme Court to revisit Roe v. Wade. I have to register my complaint that this is an utterly stupid and potentially counterproductive move from a pro-life point of view. There are five people currently sitting on the Supreme Court who voted to uphold the central holding of Roe v. Wade (while completely gutting its justification) the last time it came up. There's no guarantee that any change will take place in membership of the court before these cases could come before them. If that happens, these states will just have put one more nail in the coffin of the idea that Roe could easily be overturned. The more times a decision is upheld, the stronger the precedent becomes, and South Dakota and these other states may well be setting events in motion to strengthen the standing of Roe v. Wade. Chief Justice Roberts and Justice Alito both affirmed this principle at their hearings, and Justice Scalia seems to treat precedent in this standard way as well in many cases. Only Justice Thomas would consider this irrelevant.

There have been several comments assuming Justices Ginsburg or Stevens would be gone by the time these cases come before the court, but even if that's so (and there's no guarantee of it) we have no idea if they would be replaced by people who would overturn Roe. If Hillary Clinton appoints their replacements, you can be sure they would vote to uphold it no matter the merits. She has said numerous times that she wouldn't appoint anyone who wouldn't promise to uphold it (though perhaps an argument for recusal would then be warranted). But what's worse is that we don't really even know if Justice Alito or Chief Justice Roberts would overturn Roe. Many on both the left and the right are assuming they would, but they both hold precedent in high regard. They both seem to be particularists and not as much originalists (though I think Alito is more of one), which means the individual facts of the case are primary. Alito in particular advocated a slower process of limiting Roe as the best method for serving pro-life interests. I admit that this was twenty years ago, but it says something about how he might approach a case like the ones these lawmakers are seeking to raise.

But there's a third possibility that might be even worse for those who want Roe overturned. The case might come before the court as it stands, and the four conservatives on this issue might try to convince the others not to hear the case because they don't want a further precedent on Roe. The majority might give in, thinking it's not worth the bother to repeat what they've already said several times. What we'd then end up with is a precedent on not even hearing cases that challenge Roe, and then it will be that much harder to get a case to the Supreme Court once there is a conservative majority on abortion.

So what are these state legislatures thinking? Or are they simply not thinking? It doesn't serve the pro-life cause in any way to do this sort of thing in our current situation.

Eugene Volokh presents a paradox about blackmail in response to a letter someone sent a senator who was planning to vote for Alito that threatened to reveal that the senator was gay unless he voted no, a pretty despicable act (whether the senator is gay or not). The paradox is as follows.

1. Free speech rights allow me to publish embarassing information about someone (in many cases).
2. There's nothing immoral or illegal about asking for money in exchange for a service (in most cases).
3. But when 1 and 2 are combined, we call it blackmail and make it illegal. How can it be that the combination of two legal acts could make something illegal?

As I said in the comments on Eugene's post, there is a moral issue that comes in once you combine the two issues. That issue is what we call coercion. It's not coercion to make an offer to do something positive for someone if they do something for you. If they turn you down then you are no worse off. If it's wrong, it would have to be on other grounds. But if someone threatens you with a negative consequence if you don't do something for them, you are indeed worse off if you turn them down. That undermines the consent of your doing the action and thus puts it in a category with coercion. It's not coercion in the sense of being forced to do something with absolutely no choice, but it's like being forced to choose between a negative consequence and doing the unawanted action. That's indeed what happens when someone puts a gun to your head, so it's coercion in that exact sense. You can risk taking the bullet and not do what they ask, but it's a huge risk. The greater the risk, the greater the coercion.

As a non-lawyer, I can't comment on the legal issues, but that's the moral issue that makes combining 1 and 2 immoral while 1 alone or 2 alone is at least less immoral or even not immoral (depending on the circumstances, perhaps). These are the sorts of moral issues that laws often rely on. So I don't know if it's really counts as a paradox, or at least if it does then it's one that's easily solved.

Every now and then Senator Robert Byrd (D-WV) does something that really impresses me. When I disagree with him, it's usually quite strongly (e.g. his insane claim that preemptive war never happened before G.W. Bush and that just war theory could never countenance preemptive self-defense). Yet he has these moments when I really wish he were representing me instead of the two senators from NY who rarely say or do anything I agree with. Senator Byrd's statement in defense of Judge Alito's confirmation is one of the best I've seen so far.

He takes the Republicans on the judiciary committee to task for grinning and not asking any questions (which I have to say, in their defense, was only the case after the first round; most of them asked hard questions the first time around and only proceeded to rebut their colleagues' arguments after they had exhausted their serious questions). He takes the Democrats on the judiciary committee to task for making the confirmation of a judge an issue of partisan politics rather than relying on the judge's qualifications and character, though he acknowledges that those go back to President Washington's nomination of John Rutledge. By implication, he takes a strong departure from some Democrats on this issue who were challenging exactly his character in a way that Byrd clearly sees as illegitimate, because he concludes with praise for Alito as an honorable man.

In the last week two very different sources seem to be saying the same thing. Small restrictions on abortion at the state level have significantly reduced the number of abortions in this country. In an article at the Heritage Foundation site, University of Alabama political scientist Michael New has addressed one problem in arguments for this conclusion. It's unclear if laws restricting abortion cause a drop in abortions or an underlying factor explains both the drop in abortions and the election of those who would pass such restrictions. In this case that underlying factor might be a value change in the populace. New's study compares laws that pass (and thus reflect the value change) but get overturned by courts (which don't reflect value changes) with laws that pass and remain on the books. It turns out that, even taking into account value change, there is enough of a decrease in the number of abortions to justify thinking that abortion restrictions do reduce the number of abortions.

Dawn Johnsen, law professor at Indiana University and former lawyer for the Clinton Administration official and NARAL, complains at Slate about exactly this effect. She thinks the senators have focused on entirely the wrong question at the Alito hearings. We shouldn't care so much about whether he would vote to overturn Roe outright. What we should care about is whether he will continue to allow such ridiculous restrictions as Sandra Day O'Connor has allowed in the past, e.g. allowing parents to have some role in the weighty moral decisions of their morally immature children, not allowing people to make such a grave choice in the spur of the moment except in emergency situations, ensuring that women who seek abortion have been made fully aware of all the options, and restricting a procedure that my pro-choice Norwegian friend (who is extremely liberal on any ethical issue you can name) calls the most vile procedure he's ever heard of.

Senator Feingold just explained his vote against Judge Alito's confirmation. I have appreciated the efforts of this senator to consent to nominees he very strongly disagrees with, but it seems this time he wasn't willing to do that. One of his primary arguments seemed to me to be really strange, though I think his line of questioning at the hearings should have led me to anticipate this. He said the Constitution guarantees that no one can be deprived of life without due process. Then he complained that Alito doesn't want to admit that someone who is actually innocent has a constitutional right not to be killed. Alito's response to this was quite clear and, I think, right. The Constitution guarantees that someone's life won't be taken without due process. It doesn't say that anyone has a right not to be killed if due process is followed, and that's true even if the person is actually innocent. If someone is convicted of a crime they didn't commit, provided that due process was maintained, no constitutional rights have been violated. People can be convicted while actually innocent, and the Constitution guarantees only due process, not the inevitability of actual innocence carrying the day. Feingold's position is completely unworkable. How can there be a constitutional right to something that is virtually impossible to guarantee in any significant way? The only thing I could think of is that Feingold didn't understand what Alito was saying, because he doesn't seem to me to be the type to misrepresent someone deliberately.

But what he said next made me question even that. He went on to pretend that Alito didn't admit to his recusal mistake upfront, a common meme among the Democratic senators during the hearings but one that is patently false given that Alito's first response was that it was a mistake, before he went on to speculate about the explanation for his mistake.

I was following along with Kate Michelman's testimony at the Alito confirmation hearings, thinking her story presents a fairly hard case for the pro-life position. She and her three girls were abandoned by her husband, and she was forced to go on welfare. She then discovered she was pregnant and after much soul-searching decided to get an abortion. She had to sit before a committee who asked her offensive questions before she could be permitted to have an abortion, and they then required her to find the husband who had abandoned her and ask his permission to have an abortion, a truly demeaning situation to be in. I had no problem seeing what she was saying as a strong consideration for allowing abortion (not that I'm convinced that even in her case it's morally ok, but perhaps it's a reason for legally allowing it in such cases).

But then she just went loopy. She claimed that Alito had no consideration for people like her in his Casey ruling. She said that he would have forced people like her to do exactly the sort of thing she had to do before Roe. But people like her weren't involved in the law in question. She was abandoned by her husband. In those cases, spousal notification was clearly not required by the law in question. It was explicit about that. She also ignores the distinction between spousal notification and spousal permission. She was forced by law to get permission from her husband who had abandoned her. The law Alito said would not have created an undue burden simply required a woman to tell her husband that she was doing it. He wouldn't have to agree that it was right. He wouldn't have to give her permission. As far as the law was concerned, he could forbid it, and she could still have the abortion. Isn't it slander to make morally evaluative claims of someone in a public forum based on misrepresentations of the facts? Whatever her situation as a young woman was, if she's so unconcerned about the truth that she'll cover it over for the sake of political results then in this context she's going to have a hard time retaining my sympathy. She undermines her whole story designed to earn sympathy when she demonstrates how far she is willing to go in service of evil. Someone can have a hard time earlier in life, but it doesn't justify false testimony.

It also doesn't justify an entire career focused on making abortion an absolute right no matter the circumstances but trying to promote that through a public face that spekas mostly of hard cases like her own. This instance of serious misrepresentation of the facts behind some serious moral issues is not just an isolated case with Judge Alito. This is the standard pattern of most pro-choice activists, and her testimony is simply one example of the sort of deception usually involved in that movement as a whole. I'm not questioning her motives. I think her desire is generally good but misguided. What she places of highest value is something that I think is of lower value than the right to life. But that's a disagreement on a moral question. People can disagree on those. What angers me is that her public argument is usually to bring out her difficult case as if it's a reason for allowing abortion-on-demand and a reason to criticize anyone who seeks (or even allows, as in this case) any restrictions on abortion in any circumstances. That's intellectually dishonest.

The ABA committee is on now, saying they had evidence that in 1992 Alito did have Vanguard on his recusal list. Something happened between 1992 and 1993. Kennedy's inference that he never had it on his list wasn't just unfounded. There's evidence against it. It's not clear why the 1993 list says it was taken directly from the 1992 one, when the 1992 list had it and the 1993 one didn't. They're also telling Kennedy that Alito admitted at the outset that it was a mistake, which Kennedy has all along been claiming that Alito hasn't done. He still doesn't see the compatibility between admitting something is a mistake and explaining why it happened.

I've updated my Concerned Alumni of Princeton post. I had well over 1000 hits yesterday, many hundreds just for that post, which led me to make sure my current views on it are recorded in that post. It includes what's become clear to me since the hearings started, since I wrote it before they had begun.

If you want to follow the hearings and don't have access to a TV with CSPAN or a radio with NPR, see SCOTUSblog. Their liveblogging is usually either at the top or right near it. They're continuing through the current portion. I don't know if they intend to cover the whole hearings.

1:07 Leahy wants reassurance that Alito would be a check and balance. He was concerned about his criticism of independent counsel law. There are other legitimate issues, but those are the ones he's really concerned about. Specter says there have been about 18 hours of him answering some 700 questions. There are differences of opinion about the comprehensiveness of his responses. They'll resume at 2:30 with the ABA report and then the 3rd Circuit judges. Right now they're adjourning to discuss the FBI background report. I'm not likely to pay much attention to anything from here on except if I'm in the car and can't blog anyway, so this should end my liveblogging of the hearings. My concern has been to understand Alito himself from his own mouth, and that's now concluded.

1:05 They're going to move into executive session now, which they do at this time with every nominee. Specter is explaining that this is routine. Leahy wants to close up with some thoughts while Alito is still present.

1:03 If the system is broken, and people's lives are at stake, doesn't that give more deference to these people? Alito says it's a lot at stake, but he can't add to the record. Asylum seekers often testify in another language, sometimes one where it's hard to get a translator. The quality of transcripts is often really bad. Sometimes we send it back in that case if it's too hard to say anything. Sometimes mannerisms and facial expressions mean something different in their cultures. Congress needs to address these bigger problems, though, not appeals judges.

1:01 Someone refused to serve in the military in Guinea. They beat and raped his wife and burned down his house. Alito dissented and said he should be sent back to Guinea. There were several other cases like this where Alito was in the minority. Judge Posner has criticized our courts on this issue. Why do you consistently rule on the government's side? Alito says he has ruled in favor of asylum seekers. Durbin says no dissents in favor of them. Alito says Posner is right. These aren't always handled well. A court of appeals judge has to follow the legal framework Congress has given. We have to accept factual findings by judges unless no reasonable fact finder could come to a contrary opinion. That's a tough standard to follow. A judge could disagree but not have much choice if a reasonable person might agree.

12:56 Alito said he was concerned that a minor had been searched, but there's no rule against searching a minor. That would be bad, because drug dealers would then hide their drugs and firearms on drugs. The warrant could have been drafted better, but police officers work under time pressure. They're not complicated commercial documents, according to the Supreme Court.

10:55 Kohl wants him to say whether he'd be at the center of the court. He says he'd be like he's been on the court of appeals. He should just point out that this line of questioning is irrelevant, but he's too nice. Specter calls a break until 11:10. I guess I'll be picking up with a new post then. I was hoping this would be done before lunch, but I know Feinstein and Durbin both plan to go. Schumer is present, so he might intend to ask more too. I didn't see Feingold, but he may want to ask some more questions.

10:53 Do you see yourself as filling the role she's filled as being at the center of the court? Kohl equates calling them as you see them with looking sometimes to the left and sometimes to the right. Alito says no one can duplicate the way anyone else works, but we can emulate great jurists of the past, trying to do what they've done well. He says he'd try to emulate her in the ways he's just described. He wouldn't think he could equal her in those ways, but he'd emulate her conscientious, dedicated way of going about her duties.

10:51 How will you be different from O'Connor? How are you not like her? How will she be remembered? Alito: She'll be remembered with great admiration, a pionerring figure and an inspiration for many who have pursued legal and other careers. She's been very dedicated, meticulously devoted to the facts of each case. It's important that we look to the details of each case. I'd emulate her dedication to the case-by-case process of adjudication.

10:49 Kelo now. It's a precedent of the course with all that entails, though Alito wouldn't have decided that way. Private property is an important consideration. Do you agree with Justice O'Connor's dissent? If it were to come before me, I'd have to consider if there's a reason not to follow the new precedent that grew out of an earlier precedent. That question could go one way or the other, but decisions are presumptively to be followed. If I got beyond it, I'd have to go through the whole judicial process that ensures that cases are decided in the best way.

10:46 Alito: If I'd been writing the Constitution knowing what I know now, I'd choose either a long term but a term limit or a life term. Those options would be the best.

10:44 Should judges have term limits or age limits, or should they serve as long as they wish? (That's a false dilemma. You can have ways to disqualify a judge without setting arbitrary limits irrespective of the judge's abilities to continue to carry out a judge's function.) Alito says the Constitution says federal judges have life tenure. State courts can have term limits, and many do. If you had a short term, it would be like an elected judiciary with those advantages and disadvantages. If you had a long term, it would be more like what it is with those advantages and disadvantages.

6:37 Coburn is now done. They're trying to figure out what to do now and the rest of the week. Senator Biden wants 20 minutes. Senator Feinstein and Senator Durbin want 10 more. Specter says those will be tomorrow. Then he says he wants to do third round questions tonight. Leahy is arguing for doing them tomorrow so they can look through the transcript. It looks as if they're just saving it all for tomorrow. They'll start at 9:00 tomorrow with some uncertainty about who will go in addition to those three and how long they will take.

6:31 Coburn lists the statistics on choices to have abortions. Most are convenience. 3% are health issues, including Down's Syndrome. It's not a health issue but a convenience issue. Our policy isn't consistent, and that's damaging. There's legitimate disagreement about rape, incest, malformations, and so on. But decisions are based on expediency.

6:28 Alito: The first is tort law. Decisions are made by state legislatures, or perhaps it's common law through state courts. There are different approaches to doing that. The second is Roe having to do with the 4th, 5th, 14th Amendments made at the federal level. Coburn: How is that logical? Alito: The tort situation is left for development under state law. States have taken different approaches expressing the legislature's decisions, as long as they comply with the Constitution. Supreme Court decisions establish precedent on how we apply the Constitution.

6:25 Coburn: If I hit a pregnant woman with a 36 week fetus, and the fetus dies, I can be held accountable for that death. We value that as a life. If the woman terminates the fetus, no law stops it.

6:24 Alito says things like that have a bearing in the stare decisis phase. Courts should always be receptive to information. There's no such thing as bad knowledge. Then they need to decide how it affects how the legal standard gets applied in the particular case.

6:22 24 weeks is now easily viable. That used to be very rare or unheard of. How does the court take into account questions about technology? Also, alive = brain wave and heartbeat. Why not consider alive when that occurs? Should that play a role in the decision of the courts?

6:21 Coburn has delivered over 4,000 babies. His grandmother came into existence because of rape. He raises a question about the health of women. When? At the time or later? We know it has health consequences. Twice as likely to commit suicide. Twice as likely to have alcholism or drug addiction. I missed the third thing he said.

5:39 Now we've got a 15-minute break. Two senators have requested a third round. He didn't say who, though I think they're both Democrats. Three senators remain in the 20-minute round before that (Durbin, Brownback, Coburn). They'll resume at 5:55 with Senator Durbin. I'll start a new post for that.

5:38 That's not likely to be the case with one person, one vote. (I think one problem here is that Schumer and co. are confusing the principle itself and how it's applied. The principle is settled. How it's applied isn't. With abortion, even the principle is not settled in the public mindset, and cases challenging aspects of Roe are being filed all the time. The two seem to be in agreement on this.

5:34 When does a nominee feel more constrained about when to talk about views and when not to? The more accepted an issue is in society, the more free a nominee feels to talk about it. Is the issue open? Do people strongly disagree? Brown v. Board is a commitment to equal justice under the law. Virtually all Americans embrace this. Alito says he doesn't expect someone to ask that to be overruled. That's not a realistic possibility. But continued attempts to address the abortion issue will come up and are coming up.

5:31 Cornyn reads Cass Sunstein in favor of Alito. It includes a statement that Alito doesn't endorse the originalism of Scalia or Thomas (though Sunstein gets Thomas' view wrong; he doesn't endorse original understanding either but rather original intent).

5:28 Do you feel like your a clone of Scalia, Thomas, or Bork? Are you your own man who comes to your own conclusions based on careful study, experience, and the law. Alito: I am who I am. I'm not like any justice on the Supreme Court now or in the past. No jurist is equal to any other jurist. My record shows that. It's 15 records and over 4,000 cases long. Most of those cases go no further.

5:25 Cornyn apologizes for inadvertently referring to Alito as Scalia, under the influence of the joke nickname Scalito. He says that's a bad joke, because he's no clone of Scalia and is an independent person.

5:23 Cornyn is on now. The statistics up to 3pm today give him a higher rate of answering questions than Ginsburg did at her hearing.

5:19 Schumer doesn't understand how someone could be proud of membership in an organization that he later doesn't remember. (Perhaps it's because the lack of memory only came later?)

4:04 Alito says members of Congress are elected to make laws. Members of the judiciary are appointed to interpet and follow the law. Specter calls a recess until 4:20. Next up is Senator Feingold. I'll pick up with a new post for that.

4:01 Sessions quotes Roberts on overreaching by courts undermining respect for law. Alito agrees that it can have that effect. The functions are different. It's undemocratic if an unelected branch of government makes decisions rather than interpretations.

4:00 Alito agrees that the so-called inferior courts are totally the creation of Congress.

3:55 Sessions is harping on judicial activism, i.e. overturning statutes passed by states or simply redefining what the text means. That's overreaching. He goes through the definition of marriage, the Kelo takings case, the pledge of allegiance, and several other hotbutton issues.

3:53 Sessions gives quote after quote in favor of Alito as not an ideologue. One said that left-wing idelogues will of course not see him as unbiased, but liberals and conservatives alike who are not ideologues do.

3:48 We're now on to Senator Sessions. He says there's very little mud on Alito. He's #4 among 98 appellate judges in terms of his independence. His rulings for asylum seeker and a few other areas I missed are higher than most other judges. On civil rights, his critics have cherry-picked. His panels were unanimous 90% of the time. They were 100% of the time when Democratic appointees were on his panels.

3:43 There's been a common law right to refuse medical treatment. It's battery if that's refused. The Supreme Court assumed that to be a fundamental due process right, but the case they're discussing didn't see a violation of that in Virginia's regulations about what needed to happen first before someone could be taken off life support. In a case about assisted suicide, they determined no right to that. Some concurring opinions indicated that medical technology changes or empirical evidence might change things.

3:41 Terry Schiavo makes her first appearance in the proceedings. He thinks there are constitutional issues, jurisdictional issues, and statutory issues. Congress specifies the jurisdiction of the lower courts, and that can be changed by laws. If it's a constitutional right, then federal courts get jurisdiction.

3:39 She says it's very difficult to prove wetlands become navigable. You could strike down all sorts of environmental laws on technicalities, and that would be catastrophic. I'm not sure I follow how that's relevant to what he did.

1:06 They've officially recessed and now are going back on when they should quote each other and respond to each other. It's best for the other person to be there. (The problem is that Coburn was up during his time, and Durbin wasn't there.) Durbin can respond to Coburn, but Coburn can't leave the meeting he's in. They can deal with this once both are present. They're breaking for lunch now until 2:00. I'll pick up in a new post at that point. Senator Biden should be next.

1:00 Grassley chairs the finance committee, so it's not surprising he's getting into issues of finance that I don't understand. They're talking about the false claims act. I've missed enough details that I can't really say more.

12:54 OK, my friend has moved on. He just wanted to stop in for a few minutes while visiting from out of town. It doesn't sound as if much new came up during the first half of Grassley's time. We're on to some judicial philosophy issues about how often to use legislative history. Alito says he's often used it for statutory interpretation, but the text of the statute is most important. Sometimes all you need is the language of the statute itself. Ambiguities can be resolved by looking to legislative history, but it requires caution. One member of Congress on the floor doesn't necessarily reflect the view of Congress as a whole.

12:44 Grassley is on now. A friend just showed up at the door, so I'm not paying much attention now.

12:39 Kennedy wants to disrupt the hearings to vote on subpoenaing some records about CAP that won't say anything at all about Alito. Specter says he'll consider it but won't interrupt the hearings. He takes umbrage at Kennedy telling Specter what he has received.

12:35 Kennedy says ROTC was a dead issue in the 1983-1985 period. The only statement his staff found during that time said it was on campus and popular again. Alito says it continued to be a controversy among faculty who wanted it removed. There was controversy over course credit, which ROTC required and ROTC leaders' relation to the faculty.

12:33 Alito points out that he didn't even identify with most of those things. He wasn't the son of an alumnus or a member of an elite eating club, etc. If he saw those, he wouldn't have identified with them. He did get upset over the ROTC issue. It was offensive that it was beneath Princeton to have an ROTC unit on campus.

12:30 Kennedy lists more things and says something that Napolitano's claim contradicts about CAP's official view. Alito said he was unaware of any of this until recently.`

12:27 Kennedy reads a quote from an article by some member of CAP who published an article in a publication CAP put out. Alito says he wouldn't have been part of the organization if he thought they stood for that. He doesn't and never has endorsed any of that.

11:18 Alito says his court debated this issue. Alito argued that they should do it. It would be a useful education issue. The majority disagreed. It's a little different on the Supreme Court. It would be presumptuous to talk about it. One justice said a TV camera would make it into the Supreme Court over his dead body (Specter says that was Souter). Specter asks if he'll keep an open mind. Alito says he will, despite the position he took on the 3rd Circuit. Specter calls for a 15-minute break. Senator Leahy will pick up after the break. I'll start a new post, as has been my practice at each break.

11:15 Specter moves on to cameras in the Supreme Court. The court has made decisions on all sorts of important subjects. Who has the right to die, who has the right to life, who will be president, what Congress can do and how it can reason. Congress sets the size of the court, when terms start, time limits on habeas corpus, speedy trials, and so on. He mentions that Breyer and Scalia on TV makes a good show. A lot of people are interested in the Supreme Court. Alito's picture is on the front page of every paper. Brit Hume listened to the Anita Hill hearings while at a baseball game.

11:12 New legislation takes away from the court the jurisdiction to determine habeas corupus for detainees. He cites O'Connor's opinion that everyone has that right. Another has to do with combatant status. This might come before the court, but Specter wants to know what factors are relevant to maintaining equilibrium on these issues. Alito says there are important principles in reviewing any legislation that someone contends has altered jurisdiction. One precedent says you can't take it away unless the statute makes it clear that that removal was intended. It can't be taken away by implication. He says another that I didn't quite follow.

11:08 Specter asks about some specific tests, and Alito says there's still litigation on this. It could come before the court. Specter asks where a particular standard came from. Alito says the court tried to find a standard to remedy violations of the 14th Amendment while retaining the remedial element of section 5 of the 14th Amendment. (I'm not sure if they're getting the amendments right here. I'm pretty sure he said 15th before and 14th now.) There's still some ferment in this area, and it will come up in future cases. Specter says he's also addressing the current Supreme Court and telling them that they've been calling Congress school children.

11:05 Alito says this isn't a mathematical or scientific formula to give certain results in certain situations, but many tests of the court are like this. Section 5 of the 15th Amendment gives Congress some power to pass certain laws regarding this, but some interpret it to be a narrow authority. Scalia thinks it's not beyond actual violations of the 15th Amendment. No prophylactic measures based on moral authority. He bases this on the historical origins of the 15th Amendment.

7:10 The hearings should continue tomorrow at (I think he said) 9:30. Assuming Cornyn is done, Senator Durbin will start things off tomorrow with Senator Brownback and Senator Coburn wrapping things up for the first round through the 18-senator lineup. Each senator goes down to a 20-minute time limit for the second time through. My brief calculations show that they can finish the second round tomorrow if they devote roughly the same amount of time to the whole proceedings. Then I assume Thursday will begin the testimony from others, and that will probably take two days if the Roberts hearings are indicative.

7:04 Specter ends the proceedings for the day. He says something about the endurance of the Alito family for staying through the whole thing when almost everyone else had emptied out by then. He notes that Mrs. Alito smiled at the "stopped beating your wife" reference. Alito responds that that was because they didn't ask if she'd stopped beating him. Everyone laughed, and Specter told him to insert more of that subtle sense of humor many people had been talking about that they'd seen little of so far.

6:58 Cornyn moves onto O'Connor's broad view of presidential power to hold prisoners without charging them in a terrorism context. Scalia dissented. His overall point continues. If O'Connor is in the mainstream, then so is Alito.

6:55 They've been summarizing some facts about the response to Roe. It was criticized heavily among legal theorists before Alito's statement in 1985. Casey overturned almost the whole thing except the central holding, replacing the trimester approach and the reasoning with an undue burden standard. I don't think this line of discussion went anywhere except to say that nothing Alito has said is necessarily out of the mainstream.

6:50 Cornyn now moves on to an O'Connor quote that Roe is on a collision course with itself. He brings in Alito's preferred earlier course that the administration put together an approach based on that very O'Connor opinion. Alito says certain provisions could be challenged on their own terms. [I missed most of what he proceeded to say.]

6:47 Cornyn points out that the machine gun case was ruling against the government for the little guy. Alito says the government didn't make the case they needed. [I missed something here about another case that involved a similarity to O'Connor.]

4:39 Sessions goes back to the strip-search case. The question is whether the police were liable for civil damages. There was probably cause, and the magistrate accepted that and appropriated what was in the affidavit. Alito says he thought it was reasonable for the officers to take that as fulfilling what the affidavit asked for, given the context and the specific request. Specter has called for a break until 4:55. If I'm able, I'll resume with a new post for the fourth set of questions, which should begin with Senator Feingold.

4:34 Decisions of foreign courts isn't helpful to determine readings of our own Constitution. We have our own judicial precedents and traditions. Other decisions won't help except from the perspective of political science. It's worth looking at in that sense, but it's not helpful in interpreting our Constitution.

4:31 Activism is not following the judicial role. It's not a conservative or liberal thing. It's not activism to strike down a law that's unconstitutional. That's been settled since Marbury v. Madison two centuries ago. Sessions agrees that it isn't, as long as it's faithful to the Constitution.

4:30 Some joking about salaries: Can the president cut your pay? The president can't. Congress can't, either. They can increase it, though. Sessions' point is that the executive doesn't have absolute power here. [I had to run upstairs to find a runaway, so I missed what I think was the serious part of this discussion.]

4:25 Sessions has moved to Roe. Alito says he opposed a frontal assault on Roe. Reagan's position was that it was wrongly decided. They didn't follow Alito's proposal, and the Supreme Court rejected their argument. Alito ruled that HHS could? couldn't? fund abortions, because he thought the law required it. If he'd been implementing an agenda to uphold any abortion regulation that came along, he wouldn't have voted that way. I lost something here.

4:19 I missed more, but he's now talking about how easy it is to prove that a gun has been transported in interstate commerce. Sessions says Congress could put that in the statute as an element of the offense, and that would meet constitutional muster. If it doesn't have that, it can't meet the standard of beyond a reasonable doubt.

1:03 They're recessing until 2:15. What I've heard (while moving from room to room) from Kyl's questions hasn't been too probing. Kyl still has 20 minutes left. I expect to begin a new post when they return, assuming I've found the bear by then, but I have to run an errand in between, and it's possible they'll resume before I'm back.

12:59 I missed little bits while trying to find a stuffed bear that seems to have disappeared, but Kyl is now on asking about foreign law. Alito says judges can look at how treaties are applied in other countries. A contract involving people in New Zealand might need to look to New Zealand contract law. It's not helpful in interpreting our Constitution.

12:49 Biden: O'Connor is more prepared to give the benefit of the doubt to the employee in cases like this, but you're more prepared to give the benefit of the doubt to the employer. The test she set is like yours, but if she'd been in your spot she would have been with your ten colleagues. Alito: Those colleagues didn't apply that standard. They thought pretext was sufficient, and I disputed that.

12:47 Alito says it gets into a technical Supreme Court question. There were three circuit court camps on this. Alito was in the middle camp on the issue. O'Connor agreed with Alito's analysis on the issue that pretext is sufficient in most cases but not all. If the reason given by the employer is incorrect, that's a reason for a jury in most cases but not all, and this is one of those "not all".

12:45 Another case. Someone was forced to quit after she'd brought a discrimination claim. Her employer had said "I'm going to hound you like a dog for bringing this discrimination claim". The jury concluded she was forced out because she was being discriminated against. 10 our of 11 judges agreed. Alito didn't. Alito said an employer may choose not to disclose real reasons for animosity. It might be based on sheer personal antipathy, which is legally ok. How do you distinguish that from subtle discrimination?

12:42 Biden: The person who had the job before recommended her and couldn't understand why they didn't hire her. Alito: They had somewhat different qualifications, and reasonable people could prefer either over the other.

12:39 Biden: What people do now is not discriminate because someone is black, Jewish, or a woman. Now they wait until they have someone else to hire and then hire them instead. The corporation set the rule up so they couldn't do this. The supervisor who doesn't want to work with a black woman can't then look around as much as they want before telling someone she wouldn't be promoted. Alito: But both of these candidates were from within. There was no evidence that they didn't want to hire her and thus kept looking around. Nothing like that was presented us in that case.

11:04 Now we're just repeating what Alito has said before about the limited role of the judge. From what I've been able to tell while trying to pull together clothes for the kids to wear to school, I think he's saying this even better than Roberts did, but the content is nothing new or especially noteworthy. Specter orders a 15-minute break so that I can get the kids dressed. I'll pick up with Senator Kennedy's questioning in a new post.

10:57 Hatch asks for cases when Alito voted against executive powers. He mentions one related to racial discrimination in the selection of a jury and another murder case with the executive denying habeas corpus due to racial bias. Hatch interrupts after a few cases to say that any tencency can be found in 5000 cases with selective appeal to the evidence. Everyone has cases that members of the Senate will disagree with.

10:52 Certain sorts of cases come with clearance sheets. He usually thinks about recusal issues then, and he indicates which cases he would need to recuse himself from. This case didn't have that sort of step. (I got a little distracted and missed the reason why, but there seem to be two kinds of cases he's talking about.) He was dismayed when he discovered that there was a recusal notice after the case was decided. He didn't think he'd been required to, but his personal policy would have led him to. He wanted to make sure the person involved didn't think she'd gotten anything less than a fair hearing, so he recommended that the decision be vacated. After that he wrote up his own forms for such cases and instructs his law clerks to prepare a clearance sheet and look for potential reasons to recuse himself, taking great measures to make sure he doesn't vote on a case without having that form filled out. In the case in question, no financial benefit was at stake, no recusal was legally required, and he did recuse himself once the issue was raised. Hatch points out that a similar issue came up with Breyer, and he and Senator Kennedy supported Breyer on it. He also mentions opinions from top ethics experts that Alito did nothing wrong. (Hatch also mentions that the new panel of judges in this case ruled the same way Alito and the other two with him in the original hearing for the case had ruled.)

10:45 On to the recusal issue. Hatch reads quote after quote from people about Alito's integrity. Over 300 judges, lawyers, and other members of the legal community testify to his excellent integrity. He asks him to respond to the charge. Alito says the rules are very strict for federal judges, and he went beyond the letter of the rules so that questions couldn't even be raised. He would do some things different now, but it isn't because he violated an ethical standard. He didn't go beyond what the code of standards requires in this one case, and he says he normally would have and would do so if he had to do it over again.

Factcheck.org tackles an anti-Alito ad making three misleading claims. The three issues are the strip-search case that I've mentioned before, his statement 20 years ago that the Constitution doesn't prevent the right to abortion, and discrimination case that didn't have enough evidence to demonstrate deliberate discrimination, which is all the law can do anything about. I have to wonder if their writeup is correct in its description, though. They say there's a lot of background that would lead many people to interpret the facts in a more positive way, but they say the claims of the ad are technically true. Are they?

If someone presents a judge's decision as ruling to approve X, when he finds X legal but morally reprehensible, I think it's simply a false claim. He's not voting to approve it if he thinks it's morally wrong. He might be voting to allow it. What's more accurate is that he was voting to rule that the law allows it. Saying that he voted to approve it is just not true. More obviously, if they present him as having voted to make X easier, and all his vote would have accomplished if it had been successful was to retain the status quo, then the claim is false. He didn't vote to make it easier. Furthermore, it sounds like a purpose statement, and that statement of purpose is false if he didn't intend to make discrimination easier, which his opinion shows he didn't. Only the abortion statement is technically true. Both other claims are not just misleading but outright false.

Stuart Taylor examines the claim that Judge Alito is outside the mainstream, concluding that he's well within both the general American mainstream and the legal/judicial mainstream. [Hat tip: SCOTUSBlog]

William Wainwright has updated his Stanford Encyclopedia of Philosophy article on Jonathan Edwards, originally authored in 2002. Most Edwards fans don't look at his philosophy as much as other aspects of his work, so I very much appreciate when a philosopher takes an interest in the first great American philosopher. Wainwright has done a lot to motivate thinking of Edwards as up there with the great early moderns, and I have to agree. Edwards and G.W. Leibniz are by far my favorite early modern philosophers. Edwards anticipated both Berkeley and Hume in interesting ways.

Brooksilver at The Lord of the Blog Rings has a nice post about Christian parables within The Lion, the Witch, and the Wardrobe. I'm beginning to realize how little I remember from those books. I must have been 10 or so when I read them. I highly recommend his blog as a whole, by the way. I discovered it during his recent hiatus when he wasn't posting anything, but he's been a good friend for years, and I intend to read everything he posts now that he's back to blogging.

Two more pictures of the kids: Isaiah prim and proper and Sophia's underwear hat

Eugene Volokh posts about the judicially inactivist decision declaring that the Constitution doesn't talk about parental rights over what public schools can say to students whose parents send them to public school. I blogged about this before. Now the House of Representatives has joined the conservatives in California who pursued the judicially activist result here, even though there's nothing at all in the Constitution that guarantees such parental rights. Yet they call the decision itself activist. I think Volokh is right that 'judicial activism' for these people just stands for results they disagree with. The historical content no longer remains if this counts as judicial activism. I don't think this is true of originalists as a rule, as some have complained, but it's certainly true of many who vote for conservative politicians to get judges who will favor certain results but then say they oppose judicial activism.

Eugene Volokh has a nice article about Judge Alito on free speech and free exercise.

It's interesting in two ways. It shows that his differences from some of the justices he's being compared to (most notably Scalia but also Rehnquist), and it shows how the usual categorizations of the justices on the 1994-2005 Rehnquist court don't easily map onto the tendencies on these issues. Scalia is a moderate on free speech, while Thomas and Rehnquist are on opposite ends. Souter is on the same end as Thomas. Breyer is on the same end as Rehnquist. The standard categories or liberal, conservative, and moderate have completely failed us in predicting free speech votes on the Supreme Court.

I came across an interesting except from Abraham Lincoln on the meaning of "all men are created equal", from his debates with Douglas. I got this from a comment here. There seem to be a few typos, but I'm leaving it as the commenter had it.

Justice Taney, in his opinion in the Dred Scott case, admits that the language of the Declaration is broad enough to include the whole human family, but he and Judge Douglas argue that the authors of that instrument did not intend to include Negroes, by the fact that they did not at once, actually place them on an equality with the whites. Now this grave argument comes to just nothing at all, by the other fact, that they did not at once, or ever afterwards, actually place all white people on an equality with one or another. And this is the staple argument of both the Chief Justice and the Senator, for doing this obvious violence to the plain unmistakable language of the Declaration. I think the authors of that notable instrument intended to include all men, but they did not intend to declare all men equal in all respects. They did not mean to say all were equal in color, size, intellect, moral developments, or social capacity. They defined with tolerable distinctness, in what respects they did consider all men created equal -- equal in "certain inalienable rights, among which are life, liberty, and the pursuit of happiness." This they said, and this meant. They did not mean to assert the obvious untruth, that all were then actually enjoying that equality, nor yet, that they were about to confer it immediately upon them. In fact they had no power to confer such a boon. They meant simply to declare the right, so that the enforcement of it might follow as fast as circumstances should permit. They meant to set up a standard maxim for free society, which should be familiar to all, and revered by all; constantly looked to, constantly labored for, and even though never perfectly attained, constantly approximated, and thereby constantly spreading and deepening its influence, and augmenting the happiness and value of life to all people of all colors everywhere. The assertion that "all men are created equal" was of no practical use in effecting our separation from Great Britain; and it was placed in the Declaration, not for that, but for future use. Its authors meant it to be, thank God, it is now proving itself, a stumbling block to those who in after times might seek to turn a free people back into the hateful paths of despotism. They knew the proneness of prosperity to breed tyrants, and they meant when such should re-appear in this fair land and commence their vocation they should find left for them at least one hard nut to crack. I have now briefly expressed my view of the meaning and objects of that part of the Declaration of Independence which declares that "all men are created equal.

This quote is interesting in a number of ways. It serves to distinguish between original meaning and original application, which is why the commenter brought it out in a discussion of those. (For what seems to me to be the right take on those issues, see Larry Solum. The hat tip on all of this goes to Randy Barnett.)

Especially while the Miers nomination was still in play, but still occasionally since then, I've been hearing a mantra from judicial conservatives, and I'm trying to figure out what it means. The line is that a Supreme Court nominee needs to have a comprehensive theory of judicial interpretion. Otherwise, we're going to have someone without any judicial principles who will simply legislate preferred social policies from the bench. See, for instance, Kenny Pearce. I agree with most of what he says, actually, but I'm trying to figure out what counts as a comprehensive theory of judicial interpretation.

Kenny's example is Justice Scalia, whose vote is thoroughly predictable due to having a clear judicial philosophy, while Justice O'Connor has been the opposite. I'm not sure predictability is necessarily a sign of a clear judicial philosophy. Someone might be predictable precisely because they do favor a certain set of outcomes and base their decisions solely on such considerations. Some do accuse Scalia of not being truly consistent with his comprehensive judicial philosophy when he doesn't want to be (which I think is at least a worry with his affirmative action position). But he does have an official one, however consistent with it he may or may not be in practice. So it's not having one that's important. It's following one. And it's not just following any old one, because it would be a comprehensive judicial philosophy to say that we should simply uphold all lower court holdings. What matters is having a good judicial philosophy, not just having any old comprehensive view.

Nonetheless, I'm interested in the question of what it is to have a comprehensive judicial philosophy and why that's even necessary. Does Judge Alito, for instance? He seems not to be an originalist, anyway, at least not in the absolutist way that Justices Thomas and Scalia claim to be. Chief Justice Roberts flatly denies that he's one. Maybe these two are just more honest about other principles that enter into their decision, but the question I have is whether you need to have a comprehensive theory that goes only on some central standard like original meaning or original intent, taking such a principle as absolute. Both would say that they pay attention to a variety of factors. Roberts denies that he has such a comprehensive theory. I'm wondering why this is bad, for one. I'm not even sure it's right to deny it the status of a comprehensive judcial theory, either.

James Dobson has announced the details of his conversation with Karl Rove about the Harriet Miers nomination. Most of those details are things that have since been publicly revealed, and Dobson wasn't willing to share them the details of a private conversation without permission. We now know about her evangelical faith, her extremely conservative and pro-life church, her past pro-life donations and organizational aid, and her attempt to get the American Bar Association to abandon its pro-choice stance. There was nothing about how she would vote on particular cases and nothing about her attitude toward Roe v. Wade itself. He doesn't think Rove has even talked to her about that.

What was most interesting to me is the piece of information that hadn't been made public that Rove has now given him permission to reveal. He says there was a short list of potential nominees, and Miers was on it. She wasn't on some lower tier list. But the short list got narrowed down in two ways. One was that Bush really did want a conservative woman on the court, something I would defend from those who think her sex is irrelevant. It's surely irrelevant for most issues coming before the court, merely procedural issues or those flowing directly from a judicial philosophy arrived at in ways not tied much to gender. But there are ways women's voices have been not as prominent that having more women on the Supreme Court can help remedy, and there is some moral motivation to want to increase women's representation in spheres where they are underrepresented, including on the Supreme Court. So I see no reason why Bush shouldn't consider women more strongly. There should be no guarantee of specific seats on the Supreme Court for women, but we know Bush isn't thinking that way. He initially nominated Roberts for O'Connor's spot. If he's only going to get two appointments to the Supreme Court, however, he apparently feels pretty strongly about trying to get one of them to be a woman. I see no problem with that at all.

The other way the list got shortened is from people telling Bush they weren't interested. We knew already that Edith Clement took herself out of the running. It's even possible that Bush asked her before asking Roberts, and she turned him down. After Chief Justice Rehnquist died, she made it public that she wasn't interested in being nominated for the Supreme Court. According to Rove, not a few other top candidates did the same thing, citing the political environment, not wanting to put themselves and their families through the spectacle that would almost certainly arise. If the short list was narrowed down to just women, and most of them took themselves off, with Miers remaining, it explains a good deal more about why Miers was the pick, even if Bush had really wanted people like Priscilla Owen, Edith Jones, or Janice Rogers Brown. This revelation doesn't answer all the questions or respond to all criticisms raised against Bush for nominating Miers, but I think, if you put it together with some of the other arguments I've been making, you end up with very little to say in criticism of Bush, particularly if you keep in mind that there most likely wouldn't have been 50 votes in the Senate to remove the filibuster permanently for judicial nominees and almost certainly wouldn't have been 50 votes in the Senate to confirm someone who has explicitly indicated a desire to overturn Roe v. Wade, which most of the people conservatives have wanted for this appointment have done.

I just had an eerie realization about one possible direction the Miers nomination might go in. James Dobson has received private information that he says he probably shouldn't know. Senators Arlen Specter and Patrick Leahy have indicated that they would be willing to call him as a witness at the hearings to get that information out of him. I wonder if that's a good idea. It's clear that this piece of information is reassuring to Dobson that she'll vote the way he wants. It's not at all clear that it's what Specter and Leahy suspect it is. They seem to be thinking of it as some simple statement that she's made in the presence of Rove or someone he knows about how she would vote in particular cases. What's more likely is that it's a general perspective sort of thing that doesn't indicate how she would vote in particular cases but gives a strong inkling that it would be in a very conservative direction. Given what I'm about to say, I really hope it's just that.

What's just possible is that it's some very private piece of information that Senator Specter and Senator Leahy might not want to force out into the open if they knew what it was. It might well be about some past experience she had with abortion, maybe even way back in her youth before her evangelical and political conversions, and her current attitude about it is that she wishes abortion had never been legal for it to have been an option. Or maybe it's about someone very close to her in a way that affected her deeply, but the information doesn't make sense as an explanation for why it might somewhat reassure Dobson unless he had to explain some very personal details. Maybe Rove wasn't supposed to know this piece of information himself but passed it along in the interest of getting some key conservative leaders behind the nomination. I don't even want to think about any such possibilities, but I got chills when I realized that the way Dobson described it could just as easily mean something like this as it could something like what Leahy and Specter have in mind.

If they're wrong, and my fear is correct, then these senators might be about to do something that would undermine the very right to privacy that they so loudly base their view of the legal right to abortion on to begin with. This could be a dangerous direction to push, particularly from pro-choice senators. I hope it's just some general perspective thing that doesn't guarantee a particular vote on any case but makes a certain tendency likely. If it's not, and something very personal like this, then whoever ends up calling Dobson to the stand is really going to regret it.

People often uncarefully refer to the originalist view of constitutional interpretation (endorsed most clearly by Justices Scalia and Thomas on the Supreme Court) as strict constructionism. Most careful proponents of this view detest this term, because what it seems to convey is exactly what they don't hold. They don't think that every phrase should e taken in some hyper-literal way. This issue is pretty much parallel to those who claim to take the Bible literally in everything it says but then they don't take Jesus to be a literal door, Jesus' parables to be stories of historical events, and God really to have physical nostrils that flare up when he's angry. Being an inerrantist simply does not mean taking the Bible literally in all it says, and being an originalist about the Constitution does not mean taking every construction in as strict a way as possible. Originalism takes each construction to mean what it would have been understood to mean by an intelligent but ordinary person of the time familiar with legal issues and the background of British law. That doesn't mean taking everything hyper-literally, because such strict constructions will not turn out to match how the ordinary person would have heard it. As I've been thinking about the "advice and consent" clause, this has become quite clear. When you take that clause in a strict constructionist manner, it doesn't mean at all what the original understanding of it would have been.

One element I didn't really get into in my criticism of attacks on the Harriet Miers nomination was the cronyism charge. It seemed rather elitist to me to suggest that she was unqualified simply because she didn't have academic or judicial experience, but I didn't have any carefully formulated thoughts. Beldar has more explicitly connected elitism and the cronyism charge. I pretty much agree with everything he says, except maybe the part about metaphysics being bad. I can't very well say something like that about my own line of work. I was going to write up a long post saying some of the things Beldar says, but Beldar says it better. I'm becoming more and more convinced that anyone criticizing this nomination on the grounds of cronyism has no argument or is simply making some sort of error either in what constitues cronyism or in the facts about Miers.

I suggest Eugene Volokh's much healthier (I mean healthier than the elitist ones Beldar criticizes) list of qualifications for a Supreme Court Justice, and I think President Bush is in a better position to judge whether Harriet Myers has many of those qualities than anyone else.

Note: This post accidentally appeared for a few minutes yesterday when it was incomplete. I apologize to those who use newsreaders to read my blog who had it appear and then disappear. One person even sent a trackback during that brief window, and I don't know how making the post a draft again before returning it to published status will affect that link. As of yesterday, I hadn't finished the last few paragraphs, and I hadn't put in links to some of what I was citing. I lost some of the links I was going to use and had to spend some time this morning finding them again. I've edited a few other parts as well.

The Senate Judiciary Committee voted Thursday to send President Bush's nomination of John Roberts for Chief Justice of the United States to the full Senate. In expressing his opposition, Senator Joseph Biden (D, MD) basically claimed that we elect our Supreme Court justices. Biden also said, "I'm unwilling to take the constitutional risk at this moment in the court's history." This is from the man who at Clarence Thomas' nomination hearings, and more recently at the hearings for Alberto Gonzales' nomination as Attorney General, said that in his view the advise and consent function of the Senate, as instituted by the Constitution, was for senators to judge whether a nominee was qualified and not whether the nominee was ideologically on the correct side. That's the job of voters when selecting a president who would make such nominations. He understood that other senators had different views and encouraged them to vote according to their conscience, but he thought of advising and consenting as giving advice to the president beforehand and simply investigating to see if the nominee is indeed qualified. Apparently that only applies when he wants it to. So while Biden is worried about a yes vote threatening the Constitution, all the while he's violating his senatorial responsibility according to the very interpretation of the Constitution that he had explained something like eight months ago to defend a yes vote on an unpopular nominee.

In the last day of their questioning of Judge John Roberts in the Senate Judiciary hearings for his confirmation as Chief Justice of the United States, Senators Kennedy, Biden, Schumer, and to some extent Feinstein spent a good deal of time talking about why they thought they were rolling the dice with him. Schumer in particular expressed something clearly that all four of them were getting at in their final speeches. Schumer started by saying that he didn't expect Roberts to go against his stated intentions not to comment on cases that might come before the Court. He said he had hoped for a little bit more on Roberts the man, how Roberts as a person feels about certain sorts of things. Kennedy had accused Roberts of being mean-spirited due to certain of the views that he argued for as a lawyer representing the government position. Biden, Schumer, and Feinstein had insisted that they didn't have enough information to judge his character. Yet, on every issue their evidence that they didn't have a grasp of his character, it was because they didn't know what his view was on issues that concerned them. After hearing this all morning, Lindsay Graham stepped in to challenge the assumption behind all this talk about where Judge Roberts' heart lies.

What follows is Graham's speech, taken from the WAPO transcript:

John Roberts began his answers to questions from senators this morning, responding to Arlen Specter, Patrick Leahy, Orrin Hatch, Ted Kennedy, Chuck Grassley, and Joe Biden. Jon Kyl should be starting things off again at 2:30. My oveall impession is that he's extremely well-prepared, and those who are trying to corner him are having a very difficult time of it. Ted Kennedy was a lot nicer and much more fair than I expected (based on how he's treated other Bush nominees in recent years), though Arlen Specter did have to step in a few times to tell him to let the judge answer the question. If there was any loser in this morning's proceedings, it would have to be Joe Biden, who was just plain rude and needed to be reprimanded more than once by the committee chair. He called the nominee "Man!" in a way that really sounded morally condescending to my ear. Three times in a row he refused to let Roberts answer the question he had just asked, all the while complaining that he hadn't answered the question. If you interrupt someone before they finish answering, it's pretty stupid to claim that they were being evasive in not answering.

As far as I can tell so far, the only trouble spot for Roberts has been some memos he wrote 25 years ago that he doesn't now agree with that represented his employer's position and how best to approach defending such a position. Biden and Kennedy in particular have been pressing him on these issues, but Biden's got a stronger claim, I would say. There is some first-person language that at first blush sounds as if it's Roberts's own view, and and he was saying that he never endorsed some of the things he was recommending in those memos to be argued to support the official administration positions. Ultimately it matters little if he now doesn't believe something he might have believed then, but my suspicion is that Biden is trying to push an impression of dishonesty.

I wanted to point out an interesting article at the Baltimore Sun on legalizing prostitution. The author makes a fairly good case, at least from a utilitarian point of view, that prostitution should be allowed simply because fighting it is a waste of time:

...Legalizing prostitution would not be a moral endorsement of paid sex, any more than the First Amendment is a moral endorsement of supermarket tabloids. It would just be a recognition of the right of adults to make their own choices about sins of the flesh - and of the eternal futility of trying to stop them.

Before he continues his crackdown, Mayor Daley might reflect on the wisdom of one mayor of New Orleans. "You can make prostitution illegal in Louisiana," he said, "but you can't make it unpopular."

The hat tip for this goes to Gadfly's Muse, who argues, in part:

Those who are sometimes called strict constructionists call it judicial activism when a judge first enumerates a right that is not explicitly formulated in the Constitution. The standard liberal response to this is that the 9th Amendment allows for rights that are not enumerated in the Constitution. Thus there are rights that are not listed, and therefore it's not judicial activism for a judge to proclaim what they are. This seems to me to be a fallacious move.

The 9th Amendment acknowledges the existence of rights that the Constitution doesn't enumerate. It doesn't say what they are. It's an interesting case of indeterminacy in law, because it declares that something is true while not filling out any details at all about what it makes legally true. So the right for gay people to engage in sodomy, for instance, is not in the Constitution on the grounds that the Constitution admits that there are some rights that aren't enumerated. The Constitution doesn't just leave it open that there are rights that it doesn't cover. It says that there are such rights. That's what's wrong with what some conservatives say. The rights explicitly in the Constitution aren't the only ones we have. Still, the Constitution doesn't say what those rights are, so it is going beyond the Constitution to claim that some purported right is one of the ones the 9th Amendment might refer to. It's therefore judicial activism.

Eugene Volokh distinguishes between discrimination because of someone's religious action and discrimination because of someone's non-religious actions based on one's own disapproval of that action for religious reasons. If I refuse to hire a Muslim, that's illegal. If I fire someone for eating pork, when the pork eating is for a religious ritual of some sort, then it's illegal. In this case, a woman ate pork on the grounds of the Muslim company she worked for. She didn't do it for religious reasons, though. She was just eating pork. It was entirely secular. Volokh says there's nothing illegal about that, because no one's religion is being discriminated against. It's a secular action that's being discriminated against, and he says that's legal (as long as it doesn't also discriminate against the person for being part of a different protected group, e.g. a racial group).

Two things surprised me here. One is that it isn't agaisnt the law to fire someone for being gay. He's a little uncareful here, because he's talking about actions, and being gay isn't an action. It's a state of being. Engaging in gay sex is an action, so if I fire someone for having gay sex there's nothing illegal about it. He thinks it may still be immoral, but the law can't stop me. I didn't think it was legal anymore to refuse to allow someone to rent from you simply because the person is gay, but perhaps it still is. Second, isn't this structure really easy to abuse? It's hard to argue that eating pork is required by one's religion, and having gay sex is also at least non-obligatory in every religion I've ever heard of, but religions can form easily, and lots of practices that might be a good reason for someone not to want you working for them but that are legal can then be declared part of the religion. I don't like how easily this can lead to discrimination charges if someone wants to go to the effort to sue over something they can concoct a religion to require.

What do you do when road signs lead to flat-out contradictions? Is there a way to know which one trumps the other? I've encountered the following situation more than once. When you have a two-lane (on each side) road, with a turning lane and one lane continuing, there's always the issue of whether you need to stop before turning right from the turning lane. If there's a stop sign, then you must stop of course. If there's a single light for the straight lane and none for the turning lane, then you need not stop. If there's a yield sign, you need not stop. If there are two lights, one for each lane, and the turning light has a red/green arrow, then you go by the light. If there are two lights and the turning light just matches the other one, then you have to stop before you turn right if it's red. What if there's a yield sign and a double light, and you come up to the light when it's red? The double light clearly indicates that one of the lights is for the turning light, and when it's red you have to stop before turning right. But then there's the yield sign. Doesn't that mean you don't have to stop if you're turning unless there's someone coming? The import of this is that you have a legal obligation to do something but that there's also a law telling you that you don't have that exact legal obligation. Right?

There's been a lot more on Justices Thomas and Scalia voting together, which I blogged about before. Volokh has a list of which pairs of justices vote agree the most in their endorsement of opinions. Scalia and Thomas are seventh in the list. Six other pairs of justices are more likely to agree than those two are. Four of those six pairs are more likely to be considered liberal. Two are conservative-moderate pairs (Rehnquist with O'Connor and Rehnquist with Kennedy). The most likely to agree are Souter and Ginsburg, 12% more likely to agree than Thomas and Scalia.

Will Baude at Crescat Sententia wonders why there's such a persistent myth that Clarence Thomas is a lapdog for Antonin Scalia and never expresses independent thought. Eugene Volokh has wondered about this before and also notices that these recent war on terror prisoner cases show about as strong a disagreement between the two as between any justices. Both wonder why this myth persists. Baude expresses his wonder at it even more strongly:

Usually, when a clearly-wrong belief persists like this one does, there is some sort of memetic explanation-- some reason that the belief is convenient, or that people who do not share it are unlikely to prosper, or some reason that the wrong belief has a particular advantage in replicating itself. But I can't think of any such explanation here.

Well, I can, and I would have thought it obvious.

On the Supreme Court issue, even moderates should prefer Bush to Kerry. So says Doc Ock, anyway. History shows that Republicans have more recently tended to appoint hardcore conservatives (Rehnquist, Scalia, Thomas), true moderates (O'Connor, Kennedy), and hardcore liberals (Souter, Stevens) to the Court, while President Clinton was able to get exactly the hardcore liberals he wanted (Ginsburg, Breyer) through on the first try. So Bush is likely, if history is any guide, to lead to a more balanced court than Kerry would, assuming any justices die or retire during the next presidential term. Given that it's already a left-leaning group, the call for balance leads to erring on the conservative side anyway.

I'd prefer myself to see Stevens replaced by someone like Scalia, and then I'd be happy, whereas balance would be something like replacing Stevens with someone like Kennedy. So I can't say balance is what I really want, but I see balance as better than what we now have or what would happen if Kerry got to appoint anyone.

Is publicly advertizing one's wish that someone had killed the president tantamount to threatening to kill him? If so, some protestors just committed a felony. On a very different note, La Shawn Barber has the proper Christian response to this.

Volokh furtively places a headline about religious fanatics over a post about the National Council of Churches' advocacy for environmental concerns. He waits until the end to bring it back to the headline's subject, but he's absolutely right. If it's wrong to use religious motivations to support laws, then it's wrong for the National Council of Churches to be a voice amid those that should influence law. I think this is a reductio of such a principle. The founders advocated laws against murder on the basis of religious principles. Is that wrong? Whatever the Constitution requires in religion-state relations, it doesn't require the absence of religious considerations in people's motivations for laws. Yet there's a double standard when conservative religious groups advocate laws, since no opposition ever surfaces with liberal religious groups that do so.

Update: Oops. I forgot the link. Here it is.

Bill Poser at Language Log argues that the words 'under God' in the pledge of allegiance are indeed unconstitutional, as the 9th Circuit court ruled in 2002. It's now going before the Supreme Court, so it will be making the rounds once again. His main point is that it "violates the freedom of religion of those who do not believe in God or who do not consider the United States to be a nation under God." Now I don't see any reason why we need to have those words there. Their origin in the pledge is a little suspect. I don't see how it's persecution of Christians to remove them. Removing them doesn't harm Christians' liberty in any way, and not everyone who wants them removed hates Christians. Still, I'm not sure how having some words in a statement violates anyone's freedom.