Professor Blinka started the lunch discussion with Arizona v. Gant, a 5-to-4 decision written by Justice Stevens and joined by Justices Scalia, Souter, Thomas, and Ginsburg (an odd confederation to say the least).  In Gant, the Court limited the scope of “search incident to arrest.”  The Court held that while police can conduct a warrantless vehicle search “incident to an arrest,” police can only search without a warrant and without consent if the arrestee is within reaching distance of the vehicle or if the officers have reasonable belief that “evidence of the offense of arrest might be found in the vehicle.” Arizona v. Gant 556 U. S. ____, 2 (2009).

After the discussion of the case, Professor Blinka suggested that one ramification of Gant is that law enforcement will likely put more emphasis on gaining consent to search vehicles, since arrest will no longer yield such access. Professor Blinka also left the lunch group with one question: why did the Court decide that it was appropriate to narrow the “search incident to arrest” rule in 2009, especially since the broader search rule had been in effect for nearly thirty years?

Professor McChrystal addressed the Court’s decision in Safford Unified School District v. Redding, 557 U.S. ___ (2009), another Fourth Amendment case. Unlike Gant, which was based on a police search, this case addressed the ability of public school administrators to strip search a minor student for contraband. In reaching their decision that the school administrator’s strip-search violated the student’s Fourth Amendment protection, the eight-member majority found that the intrusive nature of the search did not adequately correspond with a “substantial chance” of finding contraband in her underwear.

The 8-to-1 decision in Redding left Justice Thomas alone in dissent. In his dissenting opinion, Justice Thomas argued that the doctrine of in loco parentis (literally meaning “in place of the parent,” allows a third party to act with same authority that a parent would have) should be applied to allow school administrators to search a student’s person without any Fourth Amendment concerns whatsoever. Under this approach, not only would a strip search be constitutional, but so would a more drastic search of a student’s body cavities.

In Professor McChrystal’s closing remarks, he cautioned future practitioners about a broader issue of privacy— that in an age of Google searches, clients might want to limit their names from public record.  A Google search for the plaintiff in Redding results in nearly four million hits. And while Ms. Redding’s ordeal at school occurred six years ago this month, her name will always be attached to the school’s invasion of her privacy. However, had her lawyer petitioned the court for a pseudonym for the minor plaintiff, something that most courts would be likely to grant under the circumstances, she might have maintained more of the privacy that she fought so hard to protect.

The last case, Crawford v. Metropolitan Government of Nashville, discussed by Professor Secunda, reviewed the anti-retaliation provision of Title VII. This provision protects employees suffering from adverse employment actions (such as a demotion, change in pay, or termination) when the employee “participates” or “opposes” an unlawful employment practice. At the heart of the matter in Crawford was what type of employee conduct constitutes “opposition” to an unlawful employment practice. The Court, reversing the Sixth Circuit Court of Appeals, held that reporting sexual harassment was not needed for protection under the “opposition” prong of the anti-retaliation provision. Furthermore, applying an ordinary definition of “opposition” the Court held that the “opposition” prong of Title VII protected an employee’s cooperation with an internal investigation of sexual harassment when an employee gave a “disapproving account” of a supervisor’s conduct.

Professor Secunda noted that while the unanimous decision is good for employees that seek retaliation protection, the Court may have better helped such workers by addressing employee protection under the more frequently used “participation” clause.

MU-ACS sincerely appreciates the faculty members and students who gave their time for the event. All students are welcome to join MU-ACS events.

I knew very little about the organization before agreeing to do the run, and in my post-race googling I discovered that Justiceworks is a co-sponsor (along with the Portage County Bar Association and the University of Wisconsin-Stevens Point) of an upcoming symposium entitled Judicial Elections:  Navigating the Collision Course (note to lawyers: 7 CLE credits approved).  The conference will take place on September 17, 2009, and the lineup of presenters is impressive, including Bert Brandenburg, Executive Director of the national Justice at Stake Campaign; Thomas J. Basting, Sr., who served as President of the Wisconsin State Bar Association in 2007-08; and Wisconsin Supreme Court Justice Shirley Abrahamson.

The conference brochure promises that the program will “raise awareness about the significant issues confronting the State of Wisconsin in its judicial elections,” noting that

Over the past several years, the Wisconsin Supreme Court elections and other state judicial elections have depicted the concerns this conference intends to address, the battle between the First Amendment of the Constitution and free speech versus concerns of judicial independence and an individual’s right to due process.

The presentations look really interesting; for instance, Brady Williamson will give discuss recent US Supreme Court decisions including the June decision in Caperton v. A.T. Massey Coal Co., Inc., in which a split court held that a state supreme court justice’s failure to recuse himself from a case in which the defendant was a corporation, the board chairman and principal officer of which was a primary contributor to the justice’s campaign.  Other presentations will include a discussion of  ”The Role and Responsibility of the Media” with respect to judicial elections, and a panel discussion entitled “Approaches to Change–Caperton and Beyond.”

The time is ripe for discussion of Wisconsin’s judicial elections, particularly in light of Caperton, the full implications of which are not yet clear. As you probably know, perceived failings in Wisconsin’s system of judicial elections led the Wisconsin Supreme Court to appoint a Commission on Judicial Elections and Ethics in 1997.  Unfortunately, that Commission’s final report remains useful background reading for the upcoming symposium, because the problems discussed there persist, such as the tensions between maintaining  a sense of judicial impartiality and independence while also respecting the First Amendment.

As I read the text of President Obama’s speech, I find it hard to discern “socialist ideology” or even “paid political advertising.”  (Let us remember that pretty much everyone to whom his remarks are addressed is unable to vote!)  His remarks seem more “Republican” than not.  The themes of personal responsibility and hard work pervade the speech.  He says, “But at the end of the day, we can have the most dedicated teachers, the most supportive parents, and the best schools in the world – and none of it will matter unless all of you fulfill your responsibilities”? He exhorts students to avoid making excuses about their role in their education.  “[T]he circumstances of your life – what you look like, where you come from, how much money you have, what you’ve got going on at home – that’s no excuse for neglecting your homework or having a bad attitude. . . . That’s no excuse for not trying.” And he reminds students that success is hard work and that they should learn from their failures.  “[Y]ou can’t let your failures define you – you have to let them teach you.”

How could any parent find fault in such advice?  Is it simply because the messenger is from a different political party or is it something else entirely?  Barack Obama is the president of the United States.  A demanding job, to be sure, but also a job that is heavy with symbolism.  There shouldn’t be anything inherently political in the simple fact that the county’s figurehead wishes to press upon the country’s future – its school children – that they ought to do their best in school and work hard.

  We are very far removed from the time when the residents of a small New England town could gather together on an occasional basis and make communal decisions that governed their daily lives.  Today, members of congress are expected to use these forums to report back to their constituents, to answer questions and solicit concerns, and then to return to Washington, D.C. with a greater sense of the priorities of the voters.  This is not exactly direct democracy in action, along the classic New England model, but it is the closest that most of us can claim to actually participating in the machinery of our own government.

 At many of these town hall meetings, ostensibly intended to address the topic of health care reform, the proceedings have been anything but an exemplar of participatory democracy.  I am not referring to the “exaggerations and extrapolations” of the pending health care reform legislation that some attendees and some Republican opponents of the bill have espoused.  Trying to prove that something is a lie is like chasing your tail.  The task of separating truth from fiction is simply a never ending part of the human condition.  Nor am I particularly concerned over the shouting and the ill manners of many attendees.  I cannot think of any period in our nation’s history when politeness was the norm in political debate.

 Instead, my concern is with the future of democracy itself.  In 1922, in his book Public Opinion, Walter Lippmann presented a pessimistic view of the public’s ability to govern itself through our nation’s democratic process.  Three years later, he followed up his critique in the book The Phantom Public.  If anything, the sequel held out even less hope for the meaningful participation of the general public in the shaping of the government policies that have such a dramatic impact on their lives.

 Ideologically, Walter Lippmann was a difficult person to pigeonhole.  He began his journalistic career as an avowed liberal, and over his long life he supported and advised presidents of both political parties.  After his death, his books were reprinted by the “Library of Conservative Thought.”  He was Jewish, but he embraced the concept of natural law and wrote admiringly of the moral authority of Catholicism.  Ronald Steel, in his magisterial biography Walter Lippmann and the American Century, points out the “deep vein of conservatism running through [Lippmann’s] brand of liberalism.” (Steel, p. 233).

 Here is how Steel summarizes Lippmann’s central critique of the modern political process:

 Political science [had previously] focused on how decisions were made – by political parties, voting, the branches of government.  In Public Opinion, Lippmann went behind such mechanics to scrutinize the centerpiece of democratic theory: the ‘omnicompetent citizen.’  That theory assumed that the average citizen, being rational, could make intelligent judgments on public issues if presented with the facts. . . .

  Now, however, [Lippmann] had to abandon that faith. . . .  People see what they are looking for and what their education and experience have trained them to see. ‘We do not first see, and then define, we define first and then see,’ Lippmann wrote.  Since no man can see everything, each creates for himself a reality that fits his experience, in effect a ‘pseudo environment’ that helps impose order on an otherwise chaotic world.  . . . 

 Steel goes on to explain the connection that Lippmann made between his insights about human nature and the mechanical operation of the political process:

 . . . For most people, the world had become literally ‘out of reach, out of sight, out of mind.’  This posed no serious problem in a small community where the decisions each citizen had to make rarely went beyond what he could directly experience.  This was the world that the eighteenth-century fathers of democratic theory had written about.  But modern man did not live in that world.  He was being asked to make judgments about issues he could not possibly experience firsthand: the tariff, the military budget, questions of war and peace.  What was reasonable in a Greek city-state was impossible in a modern technological society.  The outside world had grown too big for the ‘self-centered man’ to grasp.  This posed a political dilemma, for classic democracy ‘never seriously faced the problem which arises because the pictures inside people’s heads do not automatically correspond with the world outside.’  They did not correspond for a number of reasons—stereotyping, prejudice, propaganda.  The result was to erode the whole foundation of popular government. . . .

 . . .  The Enlightenment conception of democracy—based on the assumption that every man had direct experience and understanding of the world around him—was totally inadequate to a mass society where men had contact with only a tiny part of the world on which they were being asked to make decisions.  What was possible in an eighteenth-century rural community was unworkable in great cities.  

Steel, pp. 180-182.

 Lippmann concluded, therefore, that the general public was incapable of directing the course of events on any rational basis and that it was folly to attempt this.  At best, the public had the ability to identify those persons or groups who were capable of making important decisions by either voting them in or out of power.  It is not so much that the members of the general public lack competence, it is that the general public lacks sufficient information with which to exercise any sort of rational thought process.

 Lippmann’s theories gave rise to the entire industry of public relations, they revolutionized the concept of advertising, and they greatly influenced every interest group who has since sought to influence the public’s desires and beliefs by “putting pictures in our heads.”  All of these forces in our society eschew rational argument in favor of molding opinion through the use of the symbols and the stereotypes that they believe the general public uses to understand reality.

By and large, the Republican Party has embraced Lippmann’s theories of political science more than the Democrats.  When Gary Wills wrote that Ronald Reagan asked the public to “reject historical record for historical fantasy” (Innocents at Home p. 387), or Henry Fairlie charged that Reagan offered voters an “escape from the present to the idyllic past” (Bite the Hand That Feeds You, p. 190), they were both marveling at Reagan’s ability to glide above the facts and connect with voters on a symbolic level.  One can interpret the political rise of Sarah Palin as a similar achievement.

 The Administration of George W. Bush unabashedly employed Lippmann’s theories of politics.  When reporter Ron Suskind quoted a senior advisor to President Bush speaking dismissively of the “reality-based community,” which embraced the illusion that solutions to problems arise from a study of discernible reality, the advisor was channeling Lippmann.  ”That’s not the way the world really works anymore,” the advisor told Suskind. “[W]hen we act, we create our own reality. And while you’re studying that reality — judiciously, as you will — we’ll act again, creating other new realities, which you can study too, and that’s how things will sort out. We’re history’s actors . . . and you, all of you, will be left to just study what we do.”  The main political sin of George W. Bush was not his attempt to manipulate reality, but his failure to successfully hide what he was doing.  

 While Lippmann’s genius has been universally recognized, there has always been a large contingent of liberals and progressives who have rejected his pessimistic conclusions.  For decades, they chose to focus instead on the expansion of the coalition of democratic interest groups– through the addition of women, minorities and the gay and lesbian community– as the key to enacting liberal legislative reforms.  More recently, liberal elements within the Democratic Party have seized upon technology, and the internet, as the key to building broader support for their agenda.  The “Great Health Care Debate” may finally convince these doubters that Lippmann was right all along.

 The town hall meeting experience demonstrates that many liberals continue to cling to the idea of an objective reality.  The Obama Administration approached the issue of health care reform as a process of rational decision-making, where a variety of interest groups would reach an accommodation based upon mutual self-interest.  While President Obama did not initially plan on using town hall meetings in order to promote health care reform, no one in his Administration seemed overly concerned over the prospect of the general public weighing in during the congressional recess.  Lo and behold, when the views of many of the attendees at the town hall meetings were solicited, these views revolved around death panels and the fact that any form of government sponsored health care is inherently evil (unless it is offered by Medicare or the Veterans Administration, both of which are sacrosanct).

Health care reform is too complicated an issue for any lay person to understand.  As a result, the general public falls back on the pictures in our heads to make sense of it all.  This facet of human nature makes us all vulnerable to powerful groups who gain and hold on to their power precisely because they are exceedingly good at creating those pictures.  Lippmann also recognized that when government policy gets too complicated for the average person to understand, it risks letting loose “all the submerged antagonisms within the state.” (Steel, p. 227). 

Corporate America, in contrast to the general public, participates in the legislative process quite successfully via the lobbying process.  It can afford to hire specialists with the knowledge and experience to direct legislative priorities and to influence the votes of legislators.  Without any real competition from a general public seeking to advance its own interests, it is clear that the legislative process has been captured by corporate interests.  Reform measures intended to address this imbalance, either by decreasing corporate influence through limits on campaign contributions or by increasing lawmaker independence through redistricting efforts, are too complicated themselves for the general public to understand.  If the general public cannot think rationally on the question of health care reform, what hope is there that it can rationally address a reform of the political process itself?

The fundamental question is whether we still have the capability to govern ourselves or whether we the people are destined to have our fates determined by elite interest groups.  Lippmann thought that the modern world was too complex for the former alternative.  He placed his hope in the education and morality of the elite, confident that they would act for the common good and not selfishly.  If that is where our nation’s best hope lies, then I am truly depressed.

We certainly could see much of the harm unfold on the news and talk shows. Professor Gates, a highly respected scholar, gets arrested in his own home by a white officer. He (and many others) believes he has been treated unfairly because of his race. The officer, who with his fellow officers, including an African-American, believes he was doing his job because he is investigating a possible home invasion and has a man, in his opinion, who is uncooperative and verbally abusive. And we have a highly respected president, who usually is extremely careful with his words, announce that despite the fact that he does not know all the facts, that the police acted “stupidly.” Then we went on to learn that Lucia Whalen, who called in the suspicious behavior at Dr. Gates’ home, is now receiving death threats and being called racist despite the fact that she never volunteered anything about race to the 911 operator. We can then imagine the harm to the Cambridge police department, the African-American community in the Boston area, the family members of everyone involved and then of course the harm to the thousands and thousands of others who experience the renewed pain of some bad police/community member relations all over this country. We have some political pundits characterizing all police as men and women who routinely engage in racial profiling (never acknowledging that never does an entire profession engage in bad behavior so that the “good cops” are thrown into the same description as the “discriminating cops.”) Those kinds of comments not only demoralize police departments but also devastate family members of law enforcement officers. We have once again publicly displayed acts of racism (a Boston officer writing a letter describing Professor Gates as “banana-eating jungle monkey”). We know that the wounds of racism and profiling in this country are justifiably deep and painful. And we have a president, who is trying to focus on our national health care crisis, in part because of his own words, being embroiled in these events. There is not a question in my mind that this was an opportunity for all of us to watch and learn a better way to move forward other than our continuous name calling.

Restorative justice practices involve people who have been harmed having the opportunity to be heard by those they believe played a role in harming them. In our MULS restorative justice program, we routinely have victims, or family members of victims of crimes of severe violence request a meeting with the perpetrators (including murderers, rapists, and robbers) so that they can tell them, across a table, how deeply they have been harmed by what the other person did. Unlike the White House meeting, these dialogues can often take up much of a day. A victim/survivor can describe the pain that was caused and the “ripple effect” of the other’s actions. The offender learns the depth and breadth of impact of his or her actions on a myriad of people. The dialogue then often continues so that the victim can ask the offender about his or her life and how it is that this person came to harm him or her. What life experiences brought the offender to that moment? Most offenders apologize for their behavior. (We do not conduct these dialogues unless the offender admits at least some of the alleged criminal conduct.) Hearing about people’s life stories humanizes them and helps us understand (but not necessarily approve) of why others have acted in a certain way. From that place of understanding, we, as community, can better find ways to move forward in a positive way.

On a very regular basis, our MULS Safe Streets community coordinators, Ron Johnson and Paulina de Haan, conduct restorative justice talking circles in Milwaukee’s central city with victims, neighbors, police, offenders, prosecutors, church members, offenders and other community members. I have watched these groups of people weep as a Milwaukee police officer describes finding a two year little girl with a bullet hole in her forehead and quickly picking her up. He told all of us that the little girl took her last breath in his arms and that her death has haunted him since that moment. He looked at the others in the circle and said, “I never go to a call for a shooting without taking her with me.” I believe that there is no one who was there that day that still believes that “all police don’t care.” On another occasion, we had a gang member describe that when he was 7 he was sitting on the kitchen counter watching his mother prepare the Thanksgiving turkey. All of sudden tires were screeching and he heard the sound of gun shots. His mother threw him down onto the ground and then fell dead in front of him with three bullet holes in her back. He then was placed with family members in the Chicago projects where he grew up in violence. No one will ever condone what he has done, but after the circle a police officer went up to him and told him that he now had a better understanding of how he got there. We have seen officers actually go out and help serious offenders find employment after they have heard the stories in the circle.

Finally one older African American man told his story of calling the police about shooting on his street. He told them that he would be sitting on his porch in his white shirt waiting for them. When police arrived, the police pointed guns at him and told him to get up and then lay down on the ground. It took quite some time for them to acknowledge (without apology) that he was the person that had called for help. The police in that room truly got to hear what that horrible experience was like for that older man. That story telling and more important listening (and truly hearing) by others brings much healing and new understanding to everyone in the room and hopefully more sensitivity in the future. What happens during these dialogues or circles is that everyone present learns more about people’s experiences and perspectives. Invariably, people will see that in our humanness we are all much more alike than different. We all have had terrible experiences in our lives (obviously some much worse than others). People who hear those stories will often ask themselves, “what would I have done under those circumstances?” or “how would I feel about what I have done if I had lived that other person’s life?” From that understanding we can build human bridges of understanding that help “good and progress come from the bad.”

I do have some regrets about the way the White House handled this dialogue. I wish they had asked Lucia Whalen to join the discussion. She was an integral part of what happened and may be the only one who appears to have done everything right. Her voice should have also been heard at that meeting. She could have told them that each of their actions has led to more people calling her a racist and accusing her of causing national turmoil. Although her actions of calling 911 certainly set this series of events into action, she was just being a good citizen and reporting a potential problem in her neighborhood. She never volunteered the race of the men she saw and in fact when asked told the dispatcher that she was not sure of their ethnicity. It would have been good for these three men (including the president) to hear how their actions in all of this have made her life very difficult.

I also regret that the White House did not get a trained neutral restorative justice facilitator to shape the discussion. As good as the president is at bringing people together, he was not neutral in this incident. He was friends with Professor Gates and his words had certainly contributed to the harm from the events, particularly to the Cambridge Police Department. Although the image of the men sitting around the table in the White House garden was a good one, it would have been helpful for us in the greater community to learn more about what each of them learned from the discussion. Professor Gates and Sergeant Crowley have indicated that they will continue to talk. Hopefully they will bring in the community into that dialogue.

When it is all said and done, it does not really matter who drank what beer. It does not matter who wore what to the meeting. But hopefully we all will learn from this high profile meeting at a round table (like a circle) that when people have caused harm to each other by having made certain choices or are in serious conflict, it is important for everyone to slow down, ratchet down the level of anger, accusations and name calling…from “racist, to immoral to stupid to evil to without conscience” and actually create an environment where people can have a meaningful dialogue about what has happened, how everyone sees the situation and how they and all of us can work together in a positive way to prevent future harm. If we can do that, then we are good students learning from that proffered “teachable moment.”

Republican Senators on the Judiciary Committee compared the ideal Supreme Court justice to a baseball umpire.  An umpire confines himself to calling balls and strikes without allowing his preference for one team or the other to influence the performance of his duties.  The umpire metaphor is designed to support the view that judges apply the law objectively and even handedly.

While the umpire metaphor expresses a commendable aspiration, one can’t help but wonder whether this is an attainable goal. 

Even on its own terms, the Umpire metaphor does not seem to accord with human behavior.  Baseball umpires are notorious for having different strike zones, and for applying strike zones inconsistently, in ways that affect the outcome of games.  There have been persistent calls for Major League Baseball to use machines that would call balls and strikes without error, much like the League adopted instant replay to correct mistaken calls by the officials.  If umpires are not perfect, is it fair to demand perfection from judges.   

 In fact, it is a good thing that judges do not all act alike, as if they were machines, and that our system of justice provides room for individualized discretion.  It is in our discretion that we express our humanity.  Judge Jose Cabranes (the “good Hispanic” on the Second Circuit, according to the conservative critique of the Ricci firefighters case) defended the individuality of the judging process in his 1998 book Fear of Judging.  He was writing in the context of the federal Sentencing Guidelines, and their attempt to limit the sentencing discretion of judges:

  “[W]e should start with the simple recognition that the Sentencing Guidelines are based on a fundamental misconception about the administration of justice: the belief that just outcomes can be defined by a comprehensive code applicable in all circumstances, a code that yields a quantitative measure of justice more easily generated by a computer than a human being.  We must recognize, in other words, that no system of formal rules can fully capture our intuitions about what justice requires.  The federal Sentencing Guidelines of today are based on a fear of judging: they attempt to repress the exercise of informed discretion by judges.  Instead, in the typical case, the judge is supposed to perform an automaton’s function by mechanistically applying stark formulae set by a distant administrator.  The unhappy consequences of such a system are borne by all participants in the sentencing process, including the judges themselves.  As one federal judge has put it, the Guidelines ‘tend to deaden the sense that a judge must treat each defendant as a unique human being . . . . [I]t is quite possible that we judges will cease to aspire to the highest traditions of humanity and personal responsibility that characterize our office.”  [p. 169]

 The Umpire metaphor should be rejected for the same reason: it is an attempt to appeal to the fear of judging.  The metaphor is designed to undermine any exercise of discretion by judges in the mind of the general public.  Most significantly, when a federal judge exercises their constitutional power to “say what the law is,” the general public will be primed to respond with resentment towards a judge who failed to act in accord with their expectations — despite the fact that these expectations were unrealistic in the first place.

 The Sotomayor hearings contained a second metaphor that was used to describe a Supreme Court Justice who is not objective.  The Wise Latina is a judge who incorporates her life experiences into her rulings from the bench, and who views the law through the lens of her own prejudices and beliefs.  The metaphor of the Wise Latina was created by Republican Senators in order to represent someone who possesses racial or gender grievances, who holds an ethno-centric world view, and who will choose winners and losers in the courtroom in order to redress past grievances and advance that view.  It was put forth in order to provide a negative contrast to the Umpire metaphor.

 The Wise Latina metaphor is actually a more honest description of what judges do than the Umpire metaphor.  Life experiences do influence how judges view facts and precedent.  However, the Wise Latina metaphor tells us nothing about how a judge should use their life experiences to inform their judgment whilst avoiding the danger of individualized bias.  Judge Sotomayor’s only sin was in admitting that as a federal judge she possesses a range of discretion that many people fear, and that in the case of life tenure judges this discretion is subject only to self-policing.  During the confirmation hearings, Senators Sessions and Kyl tried to argue that the Wise Latina metaphor provided a basis for predicting that Judge Sotomayor would favor ethnic minorities and women in her rulings on the Supreme Court, but they never made the causal connection between their descriptive metaphor and her future propensities.

 Not surprisingly, in her testimony Judge Sotomayor chose to embrace a third metaphor — one that is distinct from either the Umpire or the Wise Latina.  In describing her approach to the law, she put forth a vision of a Supreme Court Justice that I will call the Cabinetmaker.  As Judge Sotomayor described the job, a Supreme Court Justice is like a craftsman (or craftswoman) who takes the raw materials on the workbench (the particular facts of the case and the relevant precedent) and carefully joins them together into an opinion that is solidly constructed as to both form and function.  In so doing, the Cabinetmaker stays focused on the individual task at hand, and on serving the immediate needs of his customer, rather than on advancing some personal agenda to revolutionize home furniture design.  The result is a piece of furniture that reflects the cabinetmaker’s influences, but that does not substitute the cabinetmaker’s own taste for the client’s desires.

There is much to admire in the Cabinetmaker metaphor.  It demands that Supreme Court opinions adhere to an internal formal logic, and that they conform to the facts as found by the lower court and to prior precedent.  This metaphor therefore provides a prescriptive guide to judging.  It holds judges to an objective set of rules and it evaluates the judge’s performance on the basis of how closely they follow those rules.  Personal bias cannot be eliminated, but personal bias is not likely to overcome the formal rules of logic or to force a syllogism to arrive at a particular result.  Judges are more like craftsmen, akin to a cabinetmaker who is highly regarded for the fine construction of his furniture.  Poor craftsmanship will be obvious to most objective observers (my students will no doubt recall my in-class description of Roe v. Wade as a “wobbly three-legged stool”).

 However, despite these advantages, the Cabinetmaker metaphor is likely to prove unappealing to judicial conservatives.  The Cabinetmaker metaphor accepts the status quo, and assumes that change in legal doctrine will be slow and incremental.  It treats all precedent equally.  It incorporates the doctrine of stare decisis and calls for judges to follow precedent in all but the rarest cases.  A cabinetmaker begins each day with the expectation that they will follow the same blueprint that they applied to the last cabinet.  They do not decide one day to stop making cabinets, and become violin makers.

 Originalism has a powerful hold on the minds of judicial conservatives because it is a theory that denies the legitimacy of non-originalist precedent.  Therefore, an originalist judge considers himself justified in refusing to adhere to precedent that he views as “wrongly decided.”  Before any prescriptive model of judging is acceptable to judicial conservatives, it must provide for a means of un-doing liberal precedent.  The judge as Cabinetmaker metaphor does not do this.  Therefore, judicial conservatives will embrace the Umpire metaphor and overlook its obvious defects.

 It would be folly to read too much into these three competing metaphors.  They do not arise from any sort of critical analysis.  The Umpire metaphor had its origin in a comment by Justice Roberts during his confirmation hearings.  The raw materials from which Senate Republicans constructed the Wise Latina metaphor came from the “stump speech” that Judge Sotomayor regularly delivered to various law schools.  The Cabinetmaker metaphor was chosen and emphasized by Judge Sotomayor in order to make her less threatening to moderate Republicans and therefore more likely to sail smoothly towards confirmation.

 None of these metaphors were put forward as a closely argued, carefully considered explication of a particular judicial philosophy.  Instead, they were used as simplistic tools to convey a particular message about what judges do to the general public.  During the course of the Sotomayor hearings, the media inflated the Umpire and the Wise Latina metaphors to the point where they seemed to represent the yin and the yang of theories of judicial process.  As a result, Judge Sotomayor’s Cabinetmaker metaphor came across as evasive.  By presenting a third alternative view of judging, the Cabinetmaker metaphor was perceived as an attempt to change the subject (which it was).   

 However, before we put these metaphors back onto the shelf, to be dusted off at the next confirmation hearing, we should pause to further examine the messages that these metaphors are sending to the general public.  Scientists who study the human brain tell us that metaphors have a powerful impact on the human mind.  This is because metaphors create the internal narrative that our mind uses to understand the exterior world.  Once our mind chooses to adopt a particular narrative, that narrative becomes one of the many “stories” that our brain applies to predict outcomes.

 The recent controversy over the arrest of Harvard professor Henry Louis Gates, Jr. is illustrative.  When we human beings hear the word “policeman,” our mind immediately applies an internal narrative that creates certain expectations of how a policeman should behave (catching criminals, helping victims, acting heroically).  When our brain receives information that a particular policeman has behaved contrary to our internal narrative (i.e., by behaving rudely towards a law abiding citizen), this creates a disconnect between the fact and the narrative that our mind tries to resolve.

 If the policeman narrative has a strong hold on our brain, then the contrary information will provoke an immediate negative emotion in our mind.   This is because this particular policeman did not behave in the way that our internal narrative tells us that a policeman is supposed to behave.  In order to avoid experiencing this negative emotion, our mind may reject the contrary information (the rude behavior didn’t happen) or, in instances where the original policeman narrative has only a weak hold on our brain, replace it with a different narrative (policemen are racists).  Scientists who study the brain tell us that this process occurs immediately, and without any conscious deliberation on our part.

Therefore, the metaphors put forth during the Sotomayor hearings will greatly influence the way in which the public understands how federal judges should behave.  If the public embraces the narrative of a federal judge as an Umpire, then it will expect judges to behave in a way consistent with that narrative.  Most significantly, the public will react negatively to a judge who does not behave in a way consistent with the expectations created by their internal narrative.  I assume that we would all agree that it is dangerous to generate public discontent with the federal judiciary for performing the very role envisioned for them by the Constitution.

 As academics, we try to explain what judges do in the courtroom on the basis of reasoned inquiry.  But our academic theories stand little chance of influencing public opinion if they run counter to the public’s chosen narrative of how judge’s should behave.  Law professors ignore the influence of metaphors at our own peril.

Here’s an example. Our own Senator Feingold asked her what the test is for incorporating provisions of the Bill of Rights into the Fourteenth Amendment: 

FEINGOLD: But what would be the general test for incorporation?

SOTOMAYOR: Well . . .

FEINGOLD: I mean, what is the general principle?

SOTOMAYOR: One must remember that the Supreme Court’s analysis in its prior precedent predated its principles or the development of cases discussing the incorporation doctrine. Those are newer cases.

And so the framework established in those cases may well inform — as I said, I’ve hesitant of prejudging and saying they will or won’t because that will be what the parties are going to be arguing in the litigation. But it is . . .

FEINGOLD: Well . . .

SOTOMAYOR: I’m sorry.

FEINGOLD: No, no. Go ahead.

SOTOMAYOR: No, I was just suggesting that I do recognize that the court’s more recent jurisprudence in incorporation with respect to other amendments has taken — has been more recent. And those cases as well as stare decisis and a lot of other things will inform the Court’s decision how it looks at a new challenge to a state regulation.

“What is the test” is a question that she could and should answer. Her response is “well, there’ll be one” and the recent jurisprudence is “more recent.”

Here is another response to a Feingold question.

FEINGOLD:

…

So, I’d like to hear your thoughts a bit on whether you see any common themes or important lessons in the Court’s decisions in Rasul, Hamdi, Hamdan and Boumediene. What is your general understanding of that line of cases?

SOTOMAYOR: That the Court is doing its task as judges. It’s looking, in each of those cases, at what the actions are of either the military, and what Congress has done or not done, and applied constitutional review to those actions.

Her understanding of the cases is that they were cases.

When Sarah Palin responded to questions by playing a game of Scrabble, folks wondered whether she knew what she was talking about. Here we assume – correctly, I suspect - that Judge Sotomayor is just taking the traditional evasion of Supreme Court nominees to a new level. When you have a 60 vote majority, it is how you play not to lose.

But does this vitiate the Senate’s “advise and consent” function? It may if we believe the hearings should be a vehicle through which it exercises that function. There is no way that anyone, based on these hearings, could know whether Judge Sotomayor is of Supreme Court or, for that matter, district court caliber. It’s an exaggeration, but only a bit of one, to say that, based only on the hearing, I don’t even know if I’d hire her as an associate.

Of course, her answers at the hearings are not all we know. She has a career to point to. She graduated from a top law school and worked as a prosecutor and at an excellent law firm She has functioned as a competent federal judge for many years.

Nor is it evident that hearings will lead to better consideration of a nominee. While all of the Senators’ questions are not incomprehensible or ill conceived, many are both. After all, hearings including interrogation of the nominee have not always been thought to be part of the confirmation process. Justice William O. Douglas, during his hearing in 1939, waited outside the hearing room and sent in a message asking if there were any questions. There weren’t. (There should have been.)

But this was during a time when people really did seem to believe that judging was a mechanical function and that the measure of a judge was pretty much limited to his objective qualifications. Justice Douglas, ironically, did more than most to step on that belief.

Given the fondness of the Congress (and the Senate in particular) for its prerogatives, I can imagine a desire for pushback. Professor Wasserman worries that it may take the form of impeachment when someone like Judge Sotomayor rules in a way that is inconsistent with what was said at the hearings. He says that such an effort is unlikely to get out of the House but that it would be an awful development. I agree.

The only real way for the Senate to pushback is to refuse to confirm someone who is insufficiently forthcoming at his or her hearing. But, in our current circumstance of relatively high political and legal division, its hard to imagine that either the Democrats or Republicans would place, depending on your view, institutional privilege or constitutional function, above a vote on the Court.

And that’s the real story behind this hearing. Quite apart from the affirmations to just “apply the law” or to embrace the lessons of one’s experience and in spite of the characterizations of Judge Sotomayor as a technician or an activist, everyone knows — or thinks they know — how she will vote on a variety of issues. Like Chief Justice Roberts and Justice Alito before her, that is why she was nominated. It is why she will be confirmed. Whether everyone was right will remain to be seen.

Cross posted at Shark and Shepherd.

But his view of politics as total war — something to be imported into nonpolitical walks of life — seems to be gaining currency. Earlier this year, One Wisconsin Now organized a phone campaign in which it urged its supporters to call and complain to a large local law firm about the pro bono work of one of its young associates. This young woman was apparently donating her time in support of Wisconsin’s marriage amendment. The objective was to use a law firm’s natural desire to avoid controversy and her economic vulnerability to shut her up and deny a party the legal representation of its choice.

Paul Soglin’s WMC Watch and full-court press for disclosure of donors to political conduits is concerned, at least in part, with a desire to place pressure on businesses that don’t behave politically in much the way that Epic Systems forced a contractor off WMC’s board.

Is there something wrong with this? Shouldn’t we all vote with our pocketbooks? Isn’t the personal political? 

The problem, it seems to me, is that this type of thinking absolutizes our political differences and destroys dialogue. We either shut up (withdraw from the battle) or escalate, turning debate into, as I said, total war.

This is increasingly the way that our political wars are fought. My law school classmate Robert George recently put it this way in the context of the debate over same-sex marriage:

An] insidious and brutal way in which many advocates of sexual liberalism deploy cultural power in the cause of redefining marriage is by depicting their opponents as bigots. Across the country, they have pursued a strategy of intimidation against anyone who dares to dissent from their position in a public way. Their appalling treatment of Carrie Prejean is merely one example. Their relentless personal attacks on her were designed to send a clear message to others who aspire to succeed in any area of public life, from beauty pageants to careers in journalism and politics: “If you oppose us, if you have the temerity to express support for the conjugal conception of marriage, we will smear you as a rube and a bigot, make your life hell, and do our best to ruin you.

As I noted at the outset, this isn’t a tactic limited to the political left. While I appreciate that this post could be seen as special pleading (I pretty much work with the trifecta of the betes noires to the left), I’d like to think that our common life would be a lot better and our political debates much more productive if we faced each other with a presumption of good faith and respect. I think we’d all be better off if we didn’t believe that the proper response to our political opponents was to search and destroy.

H/T Rick Garnett (as to George’s comments).

Cross posted at Shark and Shepherd.

 What follows is a deconstruction of my own op ed piece.  The final product as it appeared in the newspaper has its origins in the fundamentals of logic and rhetoric.  Law students, in particular, may be interested in the way in which I employ several classic techniques of persuasive writing in order to make my case.     

 Believe in Your Argument: It is not necessary to have an angel for a client, but it helps.  The most accomplished persuasive writing techniques will not hide the fact that your argument is a stinker.  My task is to persuade the reader that my belief – that Judge Sotomayor is a moderate jurist who should be confirmed to the Supreme Court-is one that they should adopt as well.  If I do not believe my own argument, I will not succeed in convincing the reader.  

 Know Your Audience:  My language is directed towards the non-specialist, so I consciously avoided legal technicalities.  Also, I assume that the average newspaper reader will be skimming the text rather than fully engaged in my arguments.  Therefore, I utilize simple and direct sentences as opposed to rhetorical questions or complex syllogisms that require greater concentration to follow.

 I also presume that a large segment of the public is already persuaded to either support or oppose the Sotomayor nomination.  This segment of the public is not likely to be swayed by my arguments.  Therefore, the tone and the specific arguments that I adopt are specifically designed to appeal to persuadable Republicans and/or wavering Democrats.  This leads to a focus on mainstream issues such as crime and away from “hot button” issues such as Affirmative Action.

 Establish Connection Between Reader and Subject Matter: Hispanics can be perceived as the “other” in our society, which immediately renders Hispanics as objects of suspicion or distrust in the media.  By opening with a Spanish phrase, I attempt to confront this perception by bringing it to the foreground.  However, I reveal that the Spanish phrase I invoke actually reflects a shared, non-threatening value (people should treat each other with common decency).  This invites the reader to focus on the commonalities between Hispanics and non-Hispanics, rather than on the differences.

 Maximize the Gender Gap:  Among my target audience, women are more likely to be open to persuasion given Judge Sotomayor’s position as the third woman nominated to the Supreme Court.  In my conversations with women about the nomination, I have noticed that the first subject that comes up is invariably the excellent qualifications of Judge Sotomayor.  Many women in the workplace feel that male co-workers ignore or minimize their qualifications, focusing on their gender rather than their talent.  These women will respond to arguments that Judge Sotomayor is being treated the same way.

 On the other hand, the “empathy” argument invoked against Judge Sotomayor plays on gender stereotypes.  Women are often portrayed in the media as nurturing and caring, and therefore not strong enough to protect society from threats such as violent crime.  At the same time, a fear of violent crime is often used as a rhetorical device to prevent wavering women voters from abandoning a political party’s preferred candidate (i.e., the Willie Horton example).

 By focusing on Judge Sotomayor’s “tough-on-crime” reputation, I anticipate and counter both the negative aspect of the “empathy” charge as well as a particular wedge issue of concern to many women.

 Appeal to the Reader’s Emotion: The piece makes a very clear and specific appeal to the emotions of the reader.  The words “shame” or shameless” are employed three times-twice in the opening paragraphs and again in the final paragraph.  The reader is asked to conclude that Judge Sotomayor is being subjected to unfair criticism, and to feel sympathy towards her.  

 Appeal to Authority: I do not expect the reader to believe my arguments based solely upon my own authority.  Therefore, I appeal to other sources of authority in order to support the point that Judge Sotomayor is a moderate judge.  I refer to objective reviewers of her record, and in fact there are many such objective reviews available on the internet (on SCOTUS Blog or from the Congressional Research Service).  I also consciously include a sentence that summarizes the results of a review of 100 opinions in which Judge Sotomayor participated involving race-based claims.  Used judiciously, numbers and statistics can impart an aura of objectivity to a piece of persuasive writing.  I also appeal to endorsements of Judge Sotomayor by national law enforcement organizations and by other appellate judges.        

 Do Not Dodge Your Opponent’s Best Argument: I do not find the “wise Latina” debate to be particularly interesting or significant.  However, given that those opposed to Judge Sotomayor’s nomination have made this the centerpiece of their campaign, it is necessary to raise and respond to this argument.  The most effective way to do this is to simply place her words back into the context from which they were severed.   I also try to turn the “empathy” criticism into a positive by invoking Judge Sotomayor’s empathy towards the victims of crime.  This signals to the reader that a judge’s empathy can benefit groups that are not defined along racial or gender lines, and that empathy can be a desirable attribute in a judge.

 Turn Your Opponents Rhetoric on Its Head:  The task of Judge Sotomayor’s opponents is to argue that she is an extremist and that the evidence supports this characterization of her record.  I argue that by opposing a true moderate, it is her opponents who are extreme.  I invite the reader to question the very ideological framework that conservative critics are using when they evaluate Judge Sotomayor.  If she is not acceptable to them, who is?

 Persuasive writing is a skill that is learned, and not a talent that comes naturally.  Go back and re-read the piece in light of this deconstruction.  By revealing the anatomy beneath my opinion piece, I hope that our students will understand why this is a skill worth developing.

 In her 1997 book American Scripture: Making the Declaration of Independence, historian Pauline Maier describes the events leading up to July 4, 1776 and points to multiple “other” Declarations of Independence issued by local legislative bodies earlier that year.  Declarations were issued in a variety of places, including Buckingham County (Virginia), Charles County (Maryland), and Natick, Massachusetts.  In most cases, these “other” Declarations took the form of instructions from the citizens of a particular geographic area to their elected representatives in the state legislature or in the Continental Congress.  After recounting the unjustified treatment of the colonies by the Crown, these documents authorize the peoples’ representatives to vote in favor of severing ties with England.  However, some of these Declarations take a different form, such as a judge instructing a grand jury on the source of their legal authority in the absence of a Royal Governor.

Virtually all of these “other” Declarations are similar in structure and content to the “real” Declaration of Independence drafted by Thomas Jefferson and the Committee of Five that was charged with explaining the reasons for the Revolution by the Continental Congress.  Critics of Ms. Maier have questioned whether it is accurate to characterize these written records as if they were in fact standalone Declarations of Independence from Great Britain.  There may in fact be a bit of hyperbole in Ms. Maier’s designation.

 It is nonetheless striking to observe how rapidly the general public in the colonies, spread across a vast and somewhat isolated territory, arrived at a common understanding of both the need to separate from Great Britain and the philosophical justification (morally and politically) for taking such a step.  At the close of 1775, most colonists still sincerely hoped to resolve their differences with the Crown and to remain a part of the British Empire.  More significantly, their elected leaders serving in the Continental Congress shared that hope.  By the time that Thomas Jefferson’s draft of the “real” Declaration of Independence was adopted in July of the following year, the public mood was decidedly in favor of independence. 

Is it possible that a spontaneous change of opinion swept across the colonies over the course of six months?  Admittedly, the publication of Thomas Paine’s Common Sense, and that pamphlet’s rapid circulation, did much to create a common framework for colonists to re-think their relationship with England.  However, there is also evidence that a larger plan was at work.  Maier’s analysis of the “other” Declarations of Independence reveals how a relatively small group of thinkers concluded that revolution was unavoidable and set out to move public opinion away from continued membership in the British Empire. 

 These “other” Declarations served two purposes in furtherance of this plan.  First, they united the general public around a similar factual chronology of abuses and around a similar legal justification that King George had broken his social contract with the colonies.  Second, the instructions transmitted to the elected representatives of the people put pressure on reluctant lawmakers to support independence.  Colonial assemblies where revolutionary spirit was the strongest adopted resolutions that had strikingly similar language, and these resolutions were then circulated among colonies that were dragging their heels.  When the Pennsylvania assembly refused to change its instructions, denying their delegates the authority to vote in favor of independence, the Continental Congress issued a veiled call on the people of Pennsylvania to topple their standing government and replace their legislators (which they did).  This sequence of events has all of the hallmarks of a coordinated modern campaign to generate “grassroots” support for a particular legislative objective.

 The “other” Declarations of Independence were clearly pieces of an overall strategy designed to lay the groundwork for a vote authorizing revolution, although the identity of the main architect of this strategy is lost in the mists of time (Maier sees John Adams’ fingerprints).   Hundreds of years later, Walter Lippmann would revolutionize the way that we understand politics by focusing on the means by which policymakers “manufacture” the consent of the general public.   Today we take for granted attempts by politicians to frame the public debate, to create a compelling narrative, and to otherwise define the way in which the general public will perceive a complex factual environment.  These are the essential components of building public support for government initiatives in a democracy.  Maier’s recounting of the history of the Declaration of Independence reminds us that these tactics are not modern inventions, but have an ancient pedigree.

George Orwell warned us of the need to be vigilant against the abuses of these tactics.  It is easy to be cynical about the perpetual motion machine of think tanks, “talking heads,” and press releases that is designed to influence what we believe and to mold our opinions.  History also shows how the tools of propaganda can be used to divide and oppress people.

However, efforts to mold public opinion can also be a very powerful force when harnessed in furtherance of an expanded public good.  The Civil Rights movement can be viewed in this context.  When the Continental Congress voted to adopt the “real” Declaration of Independence on July 4, 1776, it was the culmination of a concerted campaign to promote a radical expansion of human freedom.  The result was an achievement that we rightly celebrate this week.  Let the fireworks begin!

So said Woody Allen (as Isaac Davis in Manhattan) in response to the suggestion that a Nazi march was “devastated” by a mocking piece in the New York Times.

In Sunday’s  Times, there was an article about a group calling themselves “The Nationalist Socialist Movement – Springfield Unit.”  It has been allowed to participate in Missouri’s adopt-a highway program. Under the program, a group agrees to pick up trash along a stretch of roadside and, in return, a sign is erected at the onset of the “adopted” segment, acknowledging their participation. The Nazis apparently pick up litter in full regalia. 

What to do? Allen’s character suggested picking up bricks and baseball bats and going to “really explain things to them.” Let’s take that off the table.

There is no question that the Nazis have a right to participate. The Supreme Court has held that groups may not be excluded from such programs on the basis of their political beliefs. That case (also arising from Missouri) involved adoption of a highway by the Klu Klux Klan. State officials responded by renaming the road after Rosa Parks.

Legislators have proposed calling the highway on which the Nazis collect trash, the Abraham Joshua Heschel Memorial Highway after the prominent rabbi and philosopher.Although Heschel’s daughter is not happy with the proposal (and her wishes are entitled to great consideration), I sort of like it. Absent the preferred option, i.e., that such people not exist, there is something about having Nazis pick up the garbage on what is, symbolically, a Jew’s road. “Excuse me, there, Horst, but I think you missed that Toblerone wrapper. Be a good little Aryan and pick that up for me.”

I appreciate that people will look at the propriety of such a response in different ways. One argument would be, I suppose, that to do anything more draws attention to the Nazis. But fanatics have a way of drawing attention to themselves. I prefer to see honoring Heschel in the face of these jamokes as the wages of hatred. The Nazis are marginalized and Heschel, who barely escaped the charnel house, is honored.

But this is the faculty blog so let’s explore a legal point.

Over at PrawfsBlawg, Helen Norton  reprises an argument from one of her papers, suggesting that such programs are structured in a way that makes them a donation program in which the  state may or may or not acknowledge participation. In that case, she says, the “government speech doctrine, i.e., the notion that government’s speech on its own behalf is exempt from first amendment scrutiny, would apply. She may well be right.

But should there be a first amendment limit on government speech? Might there be circumstances (not this case, for sure, I’m just using it as a jumping off point) where the government’s speech overwhelms the speech of others in a way that raises first amendment concerns?

It’s easiest to imagine the possibility in the context of an election. Imagine that the government chooses to conduct a massive public education campaign on, say, the value of a single payer health care system in the midst of an election where the issue is highly salient and divides the parties and presidential candidates. What if massive resources are brought to bear in response to protected speech, e.g., in response to a candidate’s criticism of the administration’s policies with respect to the detention and interrogation of suspected terrorists captured abroad, the government launches a WWII style propaganda campaign?

Of course, such propaganda campaigns existed and are not generally thought to present constitutional problems. The idea is that the remedy for speech that the public does not like is political.

But what if the government uses its unmatched resources to skew the political process?

Or, better yet, let’s continue the intriguing discussion begun by Professor Fallone about the nature of our political divisions. There are some interesting observations in the readings he suggests (I’ve seen only the Lakoff book), but they also raise some interesting (at least to me) observations and questions.

I have not read Gary Will’s book, but I have, like many of the readers of this blog, thought and wrote about issues of federalism and the proper role of the state.  I agree with the idea that there is a “myth” about these matters, if he means to use the term in its true meaning as an explanatory narrative, rather than in its popular corruption as “false.”

That narrative reflects a rather serious body of thought that is not limited to the political right or to any particular view of the founding. The idea that the “local and voluntary” (the term “amatuer” is pejorative and trivializes the debate) can be preferable to the “centralized and mandatory” is an important aspect of Catholic social teaching (expressed in the notion of subsidiarity) and of the Calvinist notion of sphere sovereignty. Toqueville, an outsider, saw American associationalism as a valuable antidote to the potential for democracy to consume itself.

Of course, none of these perspectives argue that a central government has no role to play and part of the difficulty with using historically successful arguments for central government is that they do not imply that expanded government is always good. The need for expanded government to, for example, start a central bank or facilitate interstate commerce, means that calls for additional expansion of central government  are actually or even presumptively meritorious.

This suggests two observations about our current political divide. 

First, the arguments that we have about whether to shrink or grow the federal government (or government in general) is around a baseline that Hamilton and Madison or Lincoln could not have imagined. Indeed, modern conservatives argue that it is not the anti-Federalist vision we have abandoned, but the vision of the Federalists themselves.

Second, modern conservative have hardly argued for the abandonment of centralized government (Bush 43 was rather fond of it to the consternation of many of us) and have not — over the past 30 years — rolled back the role of the state. They have done no more than slow its growth.

The latter observation makes me wonder about the need for the Republican Party to reject vigilantism and secessionist movements. I am genuinely puzzled about how one could conclude that such things are even implicitly supported by mainstream conservatives.  I know that President George W. Bush has criticized the Minuteman who look for illegal border crossings as “vigilante-like” (therefore, I suppose, rejecting them) and I know that some Republicans (e.g., the relatively liberal Gov. Schwarzenegger) have expressed support for them. But, regardless of how one feels about immigration and border control (about which the GOP is divided), are they really vigilantes? My understanding is that they report violations of the law but do not attempt to enforce it. I can see the potential for trouble, but has there been any? Maybe I am underinformed on this.

As for secession, I know that Governor Perry of Texas made some suggestive remarks recently and the state legislature is considering the assertion of its sovereignty under the Tenth Amendment (not really a call for secession), but Texas is just like that, no? Always has been; always will be. (The Vermont secessionist movement has struck me as a movement from the left with no support.)

For another angle on some of the issues suggested by Will (and Lakoff), I would suggest Paul Rahe’s new book  Soft Despotism, Democracy’s Drift: Montesquieu, Rousseau, Tocqueville, and the Modern Prospect.

As for partisanship, I haven’t read the Brownstein book but much of what Ed reports seems sensible. I can’t agree, however, that Obama has begun with demonstrable bi-partisanship. I agree that he hasn’t satisfied all the wishes of his party’s left, but the handling of the stimulus bill was hardly bi-partisan and, I can tell you, that those of on the starboard are staggered by the actual and proposed expansion of the state over the past six months.

Personally, I would not trace the rise of partisanship to the last twenty years but to the last forty or so. The Sixties threw up a great deal of social conflict and LBJ  roiled it through his ambition about what government could accomplish. He fought a war he didn’t want and embarked on a domestic attempt to remake society, drawing fire from both the right and the left. Politicians have both exploited these divisions and become compelled to take one side or the other. For an interesting take on how this divided and limited the Democratic Party, see  Mark Stricherz’ Why the Democrats are Blue: Secular Liberalism and the Decline of the People’s Party.

I have read substantial parts of the Lakoff book and Lakoff, of course, has gone on to a cottage industry in telling liberals how he thinks they ought to speak to the American people. His thesis is, of course, phrased in ways a liberal would love. I fail to see, for example, that “obedience to authority” is at the heart of conservatism. Indeed, a huge part of the conservative view is to opposition to the extension of certain forms of authority; particularly that authority (i.e., the state) which asserts its will by compulsion.

But still I think he has something of a point. His thesis reminds me of Michael Barone’s characterization of Democrats and Republicans as, respectively, the Mommy Party and the Daddy Party. A more foundational way of viewing the divide is suggested in Thomas Sowell’s A Conflict of Visions: Ideological Origins of Political Struggles. For Sowell, the difference is not in our minds but in our anthropologies. One side has an “unconstrained” and ambitious view of human nature, emphasizing humanity’s  potential and perfectibility, and the possibility of rational planning for social solutions. The other side’s perspective on the nature of persons is more constrained , tending to see humanity as  unchanged, limited and dependent on evolved social processes. 

This suggests that we will continue to fight and probably should. What we disagree about matters. But it also counsels that we remember what we are not fighting about. We disagree less about what is good than we do about how to achieve it.

It also suggests that our differences are matters of emphasis and degree. Improvement is possible. Improvement is difficult. Life is paradoxical and we – both right and left – have something to say to one another.

But now, to paraphase Joe Swanson, I’m giving myself diabetes.

My summer project was to seek an answer to this mystery.  I chose three books to read that I thought would provide some insight into the ideological fault lines that seem to run through every facet of our daily lives (and indeed seem to run through this very blog).  What follows are the lessons that I have learned.  I suppose other readers might draw different lessons.  My recommendation is that you read these books for yourself.

My first goal was to understand why the “big government” charge persistently leveled by Republicans against the Obama Administration seems to resonate with some people, but not with others.  Some clues are provided by Gary Wills in A Necessary Evil: A History of American Distrust of Government.  Writing some ten years ago, Wills documents the origin and growth of the arguments against “big government” and in favor of individualism and local control over the course of our nation’s history.  Over time, he argues, these disparate strands of thought have coalesced into a more general anti-government creed.  The specifics of this creed – the belief that amateur, local and voluntary conduct creates greater public well being than professional, centralized, and mandatory regulation — resembles the political philosophy currently espoused by many of President Obama’s critics.

Wills locates the roots of the anti-government attitude in some of the myths surrounding our nation’s founding (i.e., that the Revolutionary War was won by amateur minutemen rather than by the more regimented Continental Army).  He also makes the observation that anti-Federalist rhetoric on the meaning of the Constitution is often accepted unquestioningly as an accurate statement of the meaning of the text.  In addition, Wills identifies several disparate strands of American thought that combine with both myth and an ambiguous constitutional text in order to form a more comprehensive anti-government philosophy.  He identifies these strands as being comprised of nullifiers, seceders, insurrectionists, vigilantes, withdrawers and disobeyers.  Wills points to examples of these types on both the left and right side of the political spectrum (including, for example, Vietnam-era student protesters).

While all of these aspects of anti-government ideology have deep roots in our nation’s history, they are nonetheless inconsistent with what I consider to be the two central characteristics of modern America.  A nation governed upon these principles cannot enjoy either a truly nationwide market in goods and services or a global military presence.  Both of these characteristics are dependent upon the existence of a centralized and effective federal government.  In fact, this was the main premise of the Federalist Papers.  A small federal government, or one that is purposefully rendered inefficient or weak, can be attained only at the expense of these characteristics.

Within recent memory, many Republican leaders embraced the ideal of a centralized, specialized and efficient federal government as necessary in the realm of foreign affairs in order to confront a) the menace of Communism and b) the threat of extremist Islam.  Is it any surprise that the voting public would go one step further and accept the idea that a centralized, specialized and efficient federal government is also useful to confront the potential collapse of the nation’s economic system, or the dysfunctional health care system?

In fact, the anti-government posture is a dubious choice as the defining ethos of the Republican Party in the Age of Obama.  In every circumstance, from the anti-Federalists, to the Confederacy, to the Vietnam protesters, the anti-government position has ultimately lost the debate for the hearts and minds of the broader population.  This is not a roadmap for electoral success.  Moreover, when the Republican Party does succeed in recapturing control of the federal government (as it inevitably will), the Party may find it difficult to govern whilst riding the tiger of anti-government fervor that it currently embraces.

Future electoral success may require the leadership of the Republican Party to confront and reject at least one segment of this anti-government ideology: explicitly repudiating vigilantism in favor of strict law and order, for example, or repudiating any and all secessionist movements as unconstitutional.  I am not suggesting that Republican leaders explicitly support either of these two branches of anti-government activity, but merely that they have failed to definitively distance the ideology of the Party from them.  Only by selectively pruning the underpinnings of the overall anti-government movement will the Republican Party be able to grow back to its former levels of support.    

I would like to believe that the ideological chasm between the two major political parties can be bridged.  World War II, the Communist threat, and the Civil Rights movement managed to unite conservative Democrats and liberal Republicans for decades, and led to many bi-partisan legislative achievements during the Sixties and Seventies.  Yet over the last 20 years our nation has become increasingly divided along partisan lines.  What happened?  The easy answer is that conservative Democrats and liberal Republicans don’t get elected in meaningful numbers anymore.

Ronald Brownstein tells the story in a book that has obviously spent some time on Barack Obama’s nightstand: The Second Civil War: How Extreme Partisanship Has Paralyzed Washington and Polarized America.  To those who view partisanship as the natural state of American politics, Brownstein offers a rebuke.  We did not get where we are by accident.

“Good government” reforms, such as the elimination of the congressional seniority system, actually served to diminish the influence of moderates by directing committee assignments to loyalists.  The public also began to hunger for more sharply defined differences between the political parties.  After a “stay the course” consensus in Congress that persisted through the middle of the Twentieth Century — maintaining but not radically expanding the federal bureaucracy instituted by the New Deal — voters lost the ability to differentiate between Democrats and Republicans.  This restlessness played to the advantage of candidates that drew stark ideological distinctions with their opponents.  Finally, the eroding legacy of the Civil War had an impact, as a new generation of Southern voters chose to identify with the Republican Party rather than to follow their parents in rejecting the Party of Lincoln in favor of conservative Democrats.

Today, an elected representative who consistently toes a partisan party line is guaranteed important committee chairmanships, the lack of a primary opponent (and therefore virtually assured re-election from a gerrymandered district), and a fountain of campaign contributions from outside groups with narrowly defined special interests.  In contrast, an elected representative who votes their mind, with the result that their votes cross party lines on more than a modicum of occasions, gets none of these advantages.  Is it any wonder that independent thought is in such short supply in Washington?

None of these trends are new, but Brownstein charts their growth and development so clearly that it is impossible to conclude that our nation currently enjoys a healthy democracy.  It is therefore encouraging that President Obama began his Administration with a demonstrable effort at bipartisanship.  The President has also thus far turned a deaf ear towards the extreme liberal wing of his party, which daily calls on him to use the Democratic majority to ram their priorities through Congress.  For example, I am personally disappointed at his cautious expansion of federal support of stem cell research, while the gay and lesbian community is expressing its own increasing frustration with the Administration.

President Obama’s long-term success is tied to his ability to resist satisfying his own supporters.  However, lest we be too optimistic, Brownstein’s book documents how previous presidents (for example, Franklin Roosevelt) also began their presidencies with a good faith effort at bi-partisanship only to abandon that policy over time.

The most depressing explanation for why Democrats and Republicans disagree is that it is all in our minds.  In his book The Political Mind, George Lakoff argues that human minds are wired differently.  Progressives exalt empathy as the highest moral value: caring for others and acting on that care.  Conservatives exalt obedience to authority as the highest moral value: personal responsibility and discipline allow us to obey the rules that lead to happiness.  It is the battle between competing moral systems, rather than an attention to rational arguments or logical reasoning, that determines the political choices we make.  Rather than remain locked in a fight to the death, where we refuse to recognize the legitimacy of our opponents’ definition of morality, Lakoff urges all of us to call a truce and explicitly include both of these moral frameworks as equally valid aspects of the policy debate.  If we do so, he believes that the public might choose to pursue empathy as the highest value in some policies while simultaneously choosing to pursue obedience as the highest value in others.  Lakoff thinks that the public will eventually recognize the futility in seeking to impose one value system in all cases to the exclusion of the other.

Would this work?  I believe that Lakoff underestimates another essential characteristic of the human mind: our competiveness.  The will to win is a strong one, even if the cost of victory is our own destruction.  Ultimately, we fight because it is in our nature.  

I like the Times because of the breadth of its news coverage.  As someone who spends a fair amount of time in opinion journalism, I faithfully read the Op-Ed pages. What is published there is — I don’t know how else to say it — increasingly embarassing.

I’m not talking about Maureen Dowd, who seems to have retreated into an interior world that I, at least, find largely incomprehensible.  I have a broader concern.

Recent columns by Paul Krugman and Frank Rich suggest that mainstream conservatives (not your odd nutters) and, in particular, Fox News fed (Krugman) or enabled (Rich) – not “directly” but certainly — recent murders committed by Scott Roeder, who shot abortionist George Tiller, and James von Brunn, who killed a security guard at the Holocaust Museum. (Von Brunn, an anti-semitic racist socialist and 9-11 truther is hard to characterize as left or right, but he is definitely crazy.) 

Krugman and Rich complain about harsh words (references to Tiller as a killer) or hyperbole. Rich complains of a former GOP official who, Rich (not quite accurately) implies wants to call Obama a fascist. Both complain of a Fox News host who demonstrated a silly credulity (”I can’t debunk them”) about rumors of government concentration camps before he actually did debunk them through analysis of aerial photographs.

 A grip is called for. The notion that Roeder and von Brunn would have quelled their inner demons if only a few TV personalities had been more temperate or responsible is far from obvious. If we are to blame the pro-life movement for Roeder, then why not blame the left for Carlos Bledsoe, whose wrath at the American military and our polices in the middle east led him to kill a military recruiter the day after Roeder killed Tiller. In both cases, I would have hoped that some sense of intellectual responsibility and balance would caution restraint.

It would be one thing for Krugman and Rich to call upon participants in the public debate to act more responsibly or even to suggest that Fox News shouldn’t give a forum to Glen Beck. There is nothing wrong — and much that is right — with calling for civility and intellectual integrity in public discourse. If it were possible to read the Krugman and Rich columns as simply calls for greater responsibility in public debate, I’d sign up. But that’s not what’s going on here.

First, the only incivility and extremism that seem to bother Krugman and Rich are on the right. There are no enemies on the left.

If you show me Bill O’ Reilly, Rush Limbaugh, and Tom Tancredo, I’ll see and raise you Howard Dean (who has said he “hates” Repuplicans because they are “evil” and who sat quietly on national television in the face of accustations that 9-11 was a false flag operation) and  Al Gore ( who accused the President of treason and whose  claims about the otherwise serious issue of global warming  are embarrassing exaggerations). If you want media figures, I might offer the archly melodramatic and syntactically odd Keith Olberman (”you, sir, have  –  of all that is decent and holy –  taken leave and are — truly, sir –  the worst person in the world”) and Michael Moore. 

Rich cites what sure sounds like a tasteless joke about shooting Nancy Pelosi and Harry Ried. The joke, he says was told by a ”radio host’” in, “of all places,” Dallas (invoking an important bit of the JFK assassination mythos) and Rush Limbaugh “fill-in.”* Certainly he knows former Air America host Randi Rhodes repeatedly joked about shooting President Bush. Certainly he knows that Wanda Sykes recently joked about wanting Limbaugh to die for his “treason” in the presence of a laughing (I hope from embarassment) Barack Obama.

There are a host of others who seem to believe that George W. Bush shredded the Constitution, instituted a police state, lied so people could die, ushered in theocracy, and rigged the 2004 election. I could go on. It seems no less vitriolic and no less pervasive.

I could, in fact, even include Paul Krugman and Frank Rich in the litany. To cite a few examples, Krugman recently referred to Bush as “evil” and earlier this year implied that opposition to government spending was racist.  Rich associated the Bush administration’s tactic in the war on terror with the Gestapo.

Of course, we could argue about which of these charges are “true.” Maybe (despite the conclusions — often very critical in other ways – of I don’t know how many investigations),  Bush was not merely mistaken about weapons of mass destruction in Iraq and did not simply mishandle the available intelligence, but actually lied. It could be that George Tiller did kill babies. One would expect that a substantial number of, for example, Roman Catholics think so, even if they don’t think he should be shot for it.  Perhaps Obama’s policies have made us less safe or expanded the state in ways which threaten liberty. It might turn out that Bush’s aggressive policies toward terrorism have no readily ascertainable stopping point and, for that reason, threaten liberty even as the Administration did not, like the Gestapo, drag thousands of citizens off into the night, never to he heard from again. 

We could assume the mantle of objectivity, tug on our chins and conclude — reluctantly, of course — that while both sides cross the line,  our side crosses it less. We could suggest, as Krugman and Rich want to, that the short-circuited on the right are more prominent than the faded on the left.

To that I invoke the old theological caution about being wary if you find the Christ you were looking for. I can’t see that incivility and irresponsibility have any particular political cast. They are human and not ideological vices. Howard Dean was and is the chairman of the Democratic Party. While Rush Limbaugh is the left’s designee as Head Republican, it is Al Franken who has actually (maybe) been elected to the Senate. 

Of course, to say that there is a problem with incivility and irresponsibility on the left does not excuse the same things on the right — even if Krugman and Rich can’t bring themselves to mention it. Flawed messengers don’t necessarily trump the message.

But Krugman and Rich have not limited themselves to criticism of a few intemperate conservatives or even to a call for responsible conservative outlets to unburden themselves of a few bad apples.

Krugman says he can see no difference (if there ever was one) between mainstream conservatism and what he calls “the black helicopter crowd.” He elides the irresponsibly goofy (there are concentration camps in Indiana) with the strident (the Obama administration seeks to serve socialist ideals or is a  false prophet.) The latter examples may be exaggerations or over the top, but they are hardly expressions of hate.

For Rich, conservatives are “irrationally fearful of the fast-moving generational, cultural and racial turnover Obama embodies – indeed, of the 21st century.” Of course, he may not mean to apply this hackneyed cliche to  all conservatives. He’s strategically ambiguous on that. Still the suggestion is that opposition to Obama (even as he allows opponents the right to express their ideological differences) is based in fear and irrationality and is even on the wrong side of history. (But I won’t refer to Hegel because he might think I was calling him a Communist.)

If there were any doubt about his intent to paint with a broad brush, Rich thinks it is beyond the pale for National Review and other conservative outlets to criticize Sonia Sotomayor for views that even the President thinks were poorly stated and that a majority of Americans find deeply problematic even if they ultimately conclude (and this remains to be seen) that they are not representative of her judicial philosophy. Citing an unflattering caricature on the cover of National Review (Rich must not look at many political magazines),  this criticism of Judge Sotomayor is, he says, ”an aggrieved note of white victimization only a shade less explicit than that in von Brunn’s white supremacist screeds.”

Words fail. They really do. My own view (which I plan to address in a separate post) is that Sotomayor’s remarks are not racist (even if her references to innate racial and ethnic differences make one rather uncomfortable). But neither are they innocuous. They should be taken seriously and, if they are, they raise some  rather substantial questions about her perspective on the role of the courts.  Reasonable people will differ on how those questions should be answered. Some may applaud her views while others may regard them as disqualifying. But raising these questions and criticizing the judge’s views are hardly the equivalent of endorsing The Protocols of the Elders of Zion.

Both Krugman and Rich seem to think that Scott Roeder has validated the Department of Homeland Security’s unnuanced and nonspecific charge that “the right”   might engage in violence. The report, because it offers no suggestion of who these extremists might be other  than that they are “antigovernment” or “opposed to abortion” or  to the Administration’s policies on  “immigration and citizenship, the expansion of social programs to minorities, and restrictions on firearms ownership and use” — implies — with just enough wiggle room to back away - the same group libel indulged in by Krugman and Rich. 

Rich wonders why conservative leaders don’t denounce “the hate,”  apparently forgetting that everyone to the right of oncoming traffic fell over themselves to denounce these crimes. But let me catch up on the denouncing. Beck’s  temporary agnosticism about concentration camps was ridiculous.  Speculation about whether Obama is “really” a Muslim and demands for his birth certificate are loopy (as I have heard many conservative commentators say). Those people in the audience at campaign rallies who called Obama a traitor and terrorist were wrong to do so. While I disagree with President Obama about many things, he loves his country and is a man of peace (or whatever else you call someone who is not a terrorist.) Many conservatives have been too promiscuous with charged labels just as many progressives were when Bush was in office.

The former GOP official referred to by Rich, Saul Azusis, is a good if somewhat extreme example. He actually said that Obama was not a fascist (give him points for that!) but that certain of his policies were “economic fascism.” I understand (as Rich apparently does not) that fascist economic policy was corporatist and statist. I appreciate that Obama, after a jump start in the last months of the Bush administration, has aggressively moved in that direction. But the f word connotes a lot more than command economics and centralized economic planning. Beyond that, these were far more comprehensive in 1939 Berlin than what we have seen — or are ever likely to see – in 2009 Washington. Godwin’s Law remains good counsel.

But here’s what I wonder. I wonder why people of good will on the left don’t disassociate themselves from the attempt by Krugman and Rich to define their political opponents as the Other –  indeed to do just what Krugman and Rich accuse the right of doing.

But these columns were just published. Perhaps they will.

*The joke was told by someone named David Feherty (actually a CBS golf analyst) who has also called for the death penalty for pro-lifers. It was apparently meant to demonstrate the hostility to Ried  and Pelosi among military personnel that Feherty claimed to observe when touring   in Iraq. Connecting the joke to Limbaugh’s show furthers Rich’s argument that extremism is part of mainstream conservatism. While he creates the impression that the joke was told on Limbaugh’s air, it was actually published in D Magazine.  

** The cover poked fun at Judge Sotomayor for calling herself “a wise Latina” portraying her as a Buddha figure. It was mocking. Depending on how we feel judges should be portrayed, it may have been in bad taste. It was not racist.

Cross posted at Shark and Shepherd.

You know (or I’ll tell you) the basic facts. Massey has an important case before the West Virginia Supreme Court -  an appeal of a $ 50 million verdict against it and in favor of Caperton and others. Massey’s CEO makes independent expenditures in the amount of $3 million in support of candidate Brent Benjamin. Benjamin wins and so does Massey – by a 3-2 vote with now Justice Benjamin in the majority.

The Supreme Court held, in a 5-4 decision, that Benjamin’s failure to recuse himself violated Caperton’s due process rights. So what’s the problem?

As Chief Justice Roberts argued in dissent, this could be a hard case that makes bad law. Heretofore, the circumstances in which the due process clause might compel a recusal have been fairly limited. The Caperton majority announces a broader right, suggesting that recusal may be compelled when, viewed objectively, a judge is unlikely to be neutral or there is an unconstitutional “potential for bias.”

The question becomes how aggressively this standard will be applied. In the context of this case, the Court identified the controlling principle as requiring recusal when a contributor with a personal stake in a case “had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judges the judge’s election campaign when the case was pending or imminent.”

But is that it? What if the contributor is an interest group, say a business association or the teacher’s union? What if the group is not a party to the case, but has a general interest in or has taken a position on the outcome? What if the alleged problem is not a contributor at all, but a judicial candidate’s announcement, not of how she would decide a particular case, but of her general judicial philosophy or world view?

In Wisconsin, there have been calls for Justices to recuse themselves in just those circumstances. Justice Annette Ziegler has been criticized for failing to recuse herself in a case where an independent group who supported her election was not a party, but had filed an amicus brief. Justice Michael Gableman has been asked to step aside in a criminal matter because he – and groups supporting him – said he was tough on crime. (If that works, there will literally be no one who has ever had a contested race who can sit on a criminal case.)

Both results seem inconsistent with the Court’s precedent in other areas. Independent groups have a right to speak as do judicial candidates. It would seem inconsistent with those cases – and perhaps the very idea of judicial elections – to make recusal the price of speech.

The other interesting feature of the case was the dispute between the majority and the dissent over the need for a clear standard. As is often his wont, Justice Kennedy’s formulation of the basic due process mandate is broad and susceptible of application in a large number of cases. It maximizes judicial discretion. Chief Justice Roberts was sharply critical, listing 40 substantial questions left unanswered by the majority opinion.

I found the video impressive for various reasons. The President of course comes across as photogenic, genuine, and articulate. My goodness, he did not muff a single word! He also is a superb ideologue. In discussing the Sotomayor nomination, he skillfully invokes the importance of hard work, the rags-to-riches myth, the notion of a neutral rule of law, and assorted other staples of the dominant ideology. The President also assures us that the nominee herself is not an ideologue. The disavowal of ideology might in itself be the video’s most ideological ploy.

Andrea and her coauthors offer a humorous, but also disheartening, review of media coverage from the 2008 election that typecast Clinton and Palin into their respective roles.  They also discuss social scientific research suggesting that the double bind arises from deeply entrenched gender stereotypes.  They conclude more hopefully, however, with suggested strategies for professional women to minimize the harmful effects of the double bind.

The second paper, “Women at the Bargaining Table: Pitfalls and Prospects,” presents some of these suggestions in more detail, with particular attention to the implications for teachers of negotiation. 

Here is the abstract:

Research evidence across a number of disciplines and fields has shown that women can encounter both social and financial backlash when they behave assertively, for example, by asking for resources at the bargaining table. But this backlash appears to be most evident when a gender stereotype that prescribes communal, nurturing behavior by women is activated. In situations in which this female stereotype is suppressed, backlash against assertive female behavior is attenuated. We review several contexts in which stereotypic expectations of females are more dormant or where assertive behavior by females can be seen as normative. We conclude with prescriptions from this research that suggest how women might attenuate backlash at the bargaining table and with ideas about how to teach these issues of gender and backlash to student populations in order to make students, both male and female, more aware of their own inclination to backlash and how to rectify such inequities from both sides of the bargaining table.

The first paper appears as a chapter in Rethinking Negotiation Teaching: Innovations for Context and Culture (2009), while the second is published at 25 Negotiation Journal 233 (2009).

As we await word on the nomination of Justice Souter’s replacement on the Supreme Court, many observers are wondering whether the change in personnel will make any difference in the Court’s jurisprudence.  The consensus seems to be that the direction of the Court will not change significantly.  Depending upon whom President Obama nominates, however, there is one area where Justice Souter’s replacement may make a difference.

Twice in our nation’s history, we faced periods when the presidency and Congress changed hands from one political party to another, and the victorious party embarked on an ambitious legislative program, only to be frustrated in their efforts by a Supreme Court dominated by holdovers from the prior regime.  The first time this happened was in 1801, when the Republicans (as they were then called) routed the Federalists led by John Adams.  Thomas Jefferson and his fellow Republicans took power only to clash with John Marshall and other Federalist judges.  The second time this happened was in 1932, when Franklin Roosevelt and the Democratic Congress passed the legislative program they called the “New Deal” only to have a Supreme Court dominated by Republican appointees strike down important elements of that program as unconstitutional.

Are we currently experiencing a third such period of conflict — where the Supreme Court will frustrate and delay the legislative priorities of the two political branches under the control of the Democratic Party?  On most subjects, the answer is “no.”  On issues such as civil liberties, separation of powers, and federal vs. state authority the Roberts Court does not seem to have a majority bloc capable of consistently advancing conservative principles.  This is primarily due to Justice Kennedy’s frustrating refusal to be pigeonholed into any clear ideological camp, preferring instead to chart a middle course of narrow, fact-based rulings.  With Justice Souter’s retirement, it appears that the Court will remain one vote shy of a consistent conservative majority.

 However, there is one subject area where the potential exists for a showdown between a solid conservative majority of the Justices and a more liberal Congress and President:  the area of civil litigation to enforce economic rights.  Faced with pervasive insecurity among the general public concerning its economic future, the Democratic Congress will be tempted to create new legal rights in matters of employment, financial markets, and health care.  Whether these rights are effectively enforceable in the courts will turn on seemingly mundane questions of civil procedure.

In recent years, the Supreme Court has construed the enforceability of congressionally created rights quite narrowly, and in ways that have limited the ability of aggrieved individuals and businesses to sue.  There seems to be a bloc of five Justices that views civil litigation in the federal courts as unduly expensive and too easily abused by the plaintiffs bar.  In several recent cases this bloc has frustrated the attempts of Congress to enlist the federal courts in the enforcement of congressionally created economic rights.

Justice Souter voted with the majority in many of these cases, such as Tellabs, Inc. v. Makor Issues & Rights, Ltd., (strictly construing pleading standard in securities fraud litigation); Credit Suisse Securities v. Billing, (holding antitrust claims subject to dismissal where securities claims are available); and Bell Atlantic Corp. v. Twombly, (importing the heightened pleading standards of securities fraud into antitrust law).  These and similar cases can be criticized as intruding into the province of the jury, by allowing federal judges to dismiss cases on the pleadings where the judge considers the factual allegations implausible but a jury might disagree.  One notable exception to this voting pattern is Ledbetter v. Goodyear Tire & Rubber Co., where Justice Souter dissented from the majority’s less than empathetic holding that the statute of limitations in a pay discrimination case brought under Title VII begins running the very first time that the plaintiff receives disparate pay.

The Supreme Court’s willingness to impose procedural hurdles on litigants would seem to spell trouble for any future Congress that seeks to expand consumer or economic rights through the use of civil litigation. The Roberts Court seems to see itself as a defender of the scarce time and resources of a federal court system overburdened by litigation of dubious utility.  Certainly the Court’s recent rulings in business cases serve to undermine liberal concepts of notice pleading.  However, because Justice Souter often provided a fifth vote in these cases, it is possible that his replacement might provide the crucial vote to reverse this trend.

I am very excited to undertake my duties as Faculty Blogger for the month of May. My colleagues have done an outstanding job in making the Marquette University Law School Blog a “go to” destination for ideas and information about law, politics and society. They have demonstrated an inspired vision of how technology can bring the Marquette community together, and the inaugural year of the blog has been an unqualified success. This makes their apparent lapse in judgment in inviting me to serve as Faculty Blogger for this month all the more surprising. I will try my best not to embarrass anyone.

Arthur Brooks of the American Enterprise Institute had an interesting op ed in the Wall Street Journal on April 30 entitled “The Real Culture War is Over Capitalism.” You can find it on the Journal’s website. His key quote: “Advocates of free enterprise must learn from the growing grass-roots protests [like the “tea parties”], and make the moral case for freedom and entrepreneurship.” I agree with his central point, which is that free market conservatives have made the mistake of assuming that capitalism is a good in and of itself, and have failed to make the case that free markets have moral ends. Is it in fact demonstrable that free market capitalism leads to the greatest economic benefit to the greatest number of Americans, a utilitarian standard with its roots in the classical Greek conception of government? Alternatively, can free market advocates demonstrate that the best way to preserve and promote the dignity of human beings is through a marketplace unfettered by regulation or government oversight, a standard that comes from Catholic social teaching? Shouting “Socialism!” at every government intervention in the market is not enough.

The last several years have seen increasing disparity in the distribution of wealth among the population, the accumulation of crushing debt by many households (often from medical expenses), and a domestic labor force that has gotten the message that it is replaceable with overseas and undocumented workers. For many Americans, faith in the “invisible hand” of Adam Smith has not been rewarded. They are willing to try something else. They want to see the economic gains from a growing economy shared in a more equitable fashion, they want the cost of their health care to stop eating an ever growing proportion of their income, and they want a measure of job security.

In political terms, the Republican Party has created its own “brand” as a no tax-small government party. They have succeeded in differentiating their product just as sure as Crest has differentiated itself from Colgate as a brand of toothpaste. But voters are like consumers in the supermarket. If they don’t think your product is working, they will try a different brand.

Did you see this article in the New York Times this morning, about the 300 women protesting a new law that would give men in the Shiite minority community virtually complete control over the lives of their wives?  The NYT describes the law this way:

The law, approved by both houses of Parliament and signed by President Hamid Karzai, applies to the Shiite minority only, essentially giving clerics authority over intimate matters between women and men. Women here and governments and rights groups abroad have protested three parts of the law especially.

One provision makes it illegal for a woman to resist her husband’s sexual advances. A second provision requires a husband’s permission for a woman to work outside the home or go to school. And a third makes it illegal for a woman to refuse to “make herself up” or “dress up” if that is what her husband wants.

And the protest itself:

The women who protested Wednesday began their demonstration with what appeared to be a deliberately provocative act. They gathered in front of the School of the Last Prophet, a madrassa run by Ayatollah Asif Mohsini, the country’s most powerful Shiite cleric. He and the scholars around him played an important role in the drafting of the new law.

“We are here to campaign for our rights,” one woman said into a loudspeaker. Then the women held their banners aloft and began to chant.

The reaction was immediate. Hundreds of students from the madrassa, most but not all of them men, poured into the streets to confront the demonstrators.

“Death to the enemies of Islam!” the counterdemonstrators cried, encircling the women. “We want Islamic law!”

The women stared ahead and kept walking.

A phalanx of police, some of them women, held the crowds apart.

As a refugee law professor, dramatic confrontations like this one always lead my thoughts back to the legal definition of “refugee,” and the absence of  ”gender” among the enumerated categories of persecution.  For instance, the U.S. defines “refugee” as a person “unable or unwilling to return to . . . [his or her home] country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion . . . .” I have considered thearguments, legal and practical, against trying to add “gender” to the Refugee Convention’s definition as a separate ground.  But I think I disagree.  For that reason and so many others, it seems like time to revisit the convention and protocol that established the international definition of “refugee.”

Back to the main point, the courage of these Afghani women is inspiring. And the NYT article suggests that the law change might possibly be halted before becoming enforceable.

Cross-posted at feministlawprofs. ]]> http://law.marquette.edu/facultyblog/2009/04/15/brave-afghani-women-protest-law-change/feed/ 2 http://law.marquette.edu/facultyblog/2009/04/13/more-thoughts-on-marriage/ http://law.marquette.edu/facultyblog/2009/04/13/more-thoughts-on-marriage/#comments Mon, 13 Apr 2009 18:52:25 +0000 Richard M. Esenberg http://law.marquette.edu/facultyblog/?p=4703 Sean Samis has posted a lengthy response to my post expressing “different” thoughts on the Iowa decision on same-sex marriage. I thank him for his response and, while I think he has got it wrong, he’d get a great grade for his efforts in my Law & Theology seminar or Wisconsin Supreme Court class and so he deserves a response. Given the length of the remarks that I am about to make, I once again thought it better to post separately.

I have come to believe that the underlying presumptions of proponents and opponents of same-sex marriage are almost ontological in their differences about the nature of the law and the way in which it shapes and is shaped by society. We are all hard-wired now days to think of constitutional law as, largely, the mediation between the “rights” of individuals and the “demands” of the state. The former are seen as radically subjective, while the latter are the sum of their legal incidents. The former are not to be judged, and the latter are often examined for their “fit” without regard for their interaction with extralegal norms and institutions.

We also are steeped in an almost eschatological view of the law in which we see the claims of some new “discrete and insular minority” as analogous to those advanced during the civil rights movement and somehow validated by an Hegelian move toward “equality” and progressivism.

I understand the attraction of those assumptions, but they are not universally shared and do not underlie the arguments against same-sex marriage. This makes it hard — or so it seems to me — for proponents of same-sex marriage to see the point that opponents are making. We are speaking in a way that cuts against the grain of much of postwar legal and political theory.  As a consequence, much of what I have seen in debates on the issue are charges of religious zealotry, bigotry and, as in Varnum, “irrationality.” I congratulate Mr. Samis for trying to steer clear of these.

The other interesting thing in the academic literature on same-sex marriage is the degree of agreement between the right and the left regarding the consequences of same-sex marriage. They believe that it will change marriage profoundly, only differing as to whether this is a good or bad thing. Yet, at the level of popular discourse, proponents of same-sex marriage deny — even claim to be puzzled by — the very results  that theorists of their position expect and desire.

Mr. Samis says that he had hoped (really?) that I would offer “the reasons that same-sex marriage should be banned, but alas it was not to be so . . . .” Of course, he need not be -– probably will not be -– persuaded by those reasons, but my post expressly distinguished between the differences that justify the state’s distinction of same-sex relationships with respect to marriage as a matter of equal protection and those arguments that say it should not redefine marriage as a matter of policy.

The former dispose of Varnum. I am fairly confident that Mr. Samis did not learn in Con Law 2 that, in this context, “all one needs show is that the right at issue satisfies some legitimate purpose and avoids significant harms” (and I’ll assume that he did not really mean to claim that this is some test for the recognition of constitutional rights or for application of the equal protection guarantee).  Nor do I believe that the analogy to forms of speech that serve different purposes but that, nevertheless, each deserve constitutional protection is apt. There is a difference between defining the express constitutional protection of speech and the application of the equal protection guarantee. The latter does look for similarities between classes, but the heart of the matter is not the similarities but the distinctions. What are the differences between classes and how do they justify differential treatment?

Mr. Samis claims to agree with me on the “purposes” of marriage. I think he does not. What I said is that marriage involves (we hope) the union of two people who love each other and commit to mutual support. Mr. Samis would argue that these are sufficient reasons to extend civil marriage to relationships that exhibit these characteristics. As important as these relationships may be to the people who are in them and as admirable as these people may be, I don’t.

While love and commitment may explain much about why people marry, it does not tell us why the state recognizes civil marriage. Any number of relationships might satisfy the first two requirements, but we don’t allow the participants to marry.

The reason that we allow civil marriage does have to do with channeling potentially procreative relationships into a certain context. It is to communicate the norm that sexual relationships between men and women ought to take place within a marital relationship and that this relationship should be governed by a set of expectations that, whether we acknowledge it or not, are designed and have been developed to facilitate the care of any children that the relationship might create. It assumes — in fact, insists — that children have a right to be – are best off if they are — raised by their biological mothers and fathers.

This is why the charge of “discrimination” on the basis of sexual orientation is unhelpful. While it would certainly be irrational to discriminate on the basis of sexual orientation in, say, hiring law professors, it is not irrational to do so when it comes to marriage. The state acted to encourage certain types of heterosexual relationships (married ones) over others (cohabitation and casual sex) because a man and woman who sleep together might make a baby.

But two men or two women cannot do so. Because of that, the state simply does not have the same reasons to create and encourage a marriage-like status for same-sex couples. It does not have the same interest in structuring their sexual relationships.

I am fully aware of and have spent much time responding to the argument that this cannot be so because we allow men and woman who cannot or will not procreate to marry. That argument is wholly beside the point. For the most part, we cannot know which ones these will turn out to be and it would be intrusive on individual privacy (as well as, in many cases, impossible) to try to find out.

More fundamentally, channeling nonprocreative heterosexual relationships strengthens the norms of conjugal marriage. In fact, if we channeled –- or regarded as equally desirable — heterosexual relationships outside the marital norm whenever a couple could not — or intended not to have — children, we’d actually weaken the marital norm for heterosexual couples, as we have done with no-fault divorce laws and other manifestations of the sexual revolution.

Nor am I much moved by the argument that, having weakened the marriage norm and the value of fathers as fathers in other ways, we are no longer in a position to insist upon it. While it’s true that we no longer criminalize adultery and fornication (and should not), that doesn’t undercut the cultural norm that marriage is trying to preserve. While it’s true that we have weakened the marital norm and weakened fatherhood through liberalized divorce law and more generous attitudes toward out-of-wedlock births and nonmarital relationships, that has come at a cost — one that has been devastating among the poor. Mr. Samis may be right -– unfortunately, he is right — that society has sent the the message that fathers as fathers do not matter. But I would rather rail against the darkness than conclude that we must now live in that long night.

The decline of the marital norm and fatherhood has resulted in enormous human misery. There is nothing in our social policy — not the decline of unions, not free trade, not welfare reform, not the imagined scaling back of government over the past 30 years — that has harmed the poor more. While that doesn’t mean we should or can go back to 1959, it is foolish to ignore the harm and see only the benefits.

There is a much better point for proponents to make here, although they rarely do so. Why, they might say, wouldn’t trying to channel same-sex relationships into marriage help underscore the norm as well? Why might it not help the children (admittedly very few) that are raised by same-sex couples. If gays and lesbians want to commit to the norms that have evolved to restrain and channel heterosexual relationships, why not encourage it?

Here is where we get Burkean. Marriage is a fundamental institution that has been weakened (by no fault of gays and lesbians) at great social cost. The practical problems of the very small number of same-sex couples who would marry (and the almost infinitesimal number of children who would be raised by them –- particularly under circumstances where both partners could have parental rights) can be addressed in other ways. In other words, there is great risk and relatively little need — unless you are compelled by a desire to, as same-sex marriage proponent Andrew Koppelman says, “sanctify” gay and lesbian relationships. To say, incidentally, that this is tantamount to a claim that amounts to no more than “society isn’t ready” strikes me as an extraordinary assertion of hubris and ignores the past fifty years of the social history of marriage.

Nor am I simply alluding so some unknown and unspecified threats. The difficulties with the “no harm” argument are many. The redefinition of marriage would underscore the “close relationship” model of marriage which, as Mary Ann Glendon of Harvard and other scholars have noted, ineluctably weakens the norms of conjugal marriage by loosening the social (if not legal) strictures on individual choice in matters of sexuality and family structure. Remember marriage — at least our traditional conjugal model — absolutely does “endorse” the relationships to which it applies. In fact, it must endorse them because its very purpose is — at least for men and women — to encourage them as opposed to other forms of relationships.

If you don’t believe me (or her), read what the theorists of genderless marriage have to say. They believe that it will advance the close relationship, as opposed to the conjugal, model of marriage. They say that it will change the public meaning of marriage. As one of them noted, “the right wing gets it.” Of course they count this change as a good thing. I do not.

I agree that all children cannot be raised by their biological father and mother. Sometimes the ideal is not possible and we should not let the perfect be the enemy of the good. Divorce is sometimes the best of bad choices and adoption is an attempt to take lemons and make lemonade. But we don’t — at least not yet — marry people with the expectation that they ought to get divorced and thereby impair or eliminate the relationship between a child and her mother or (usually) father. Same-sex marriage necessarily sends a message that it is perfectly fine for children to lack a father or to lack a mother.

Will expanding marriage to same-sex couples have no impact on the norms of marriage itself? Perhaps, but it strikes me as unlikely and, once again, the more sophisticated proponents of same-sex marriage do not believe that. Thus, the Ontario Court of Appeals, in mandating same-sex marriage, expressly demanded that its incidents be changed to accommodate same-sex couples, suggesting that it might require the recognition of (at least) tripartite forms of parental rights since, even if Heather has two daddies, she will also have a mommy. Others have suggested modification of norms and legal rules regarding financial interdependence and the presumption of marriage. Still others have argued that the sexual exclusivity that is a norm of conjugal marriage need not be –- and perhaps should not be –- an expectation of genderless marriage.

This shouldn’t be surprising. To believe otherwise is to believe that sexuality is nongendered in the sense that a relationship between two men or two women is likely to be the same — save for some physical details — than one between a man and a woman. If the norms of marriage developed from a need to bridge the sexual divide between men and women – which is itself a function of the fact that sex makes babies — then why would we expect partners in other forms of relationships to develop — or at least to experience in the same way — the same norms and expectations? There may be much about homosexual relationships that are the same, but it also makes sense to think that there will be much that is different.

Nothing I have said here implicates religion or morality. In fact, it’s probably more rooted in evolutionary biology. To extend marriage to relationships that cannot produce children and whose participants, as a result, are unlikely by evolution or socialization to see them in light of norms and expectations that grow from the nature of relationships that are potentially procreative, seems likely to change them.

It is not an adequate response to say that, well, “I don’t see how your homosexual marriage can affect my heterosexual one.” As Maggie Gallagher writes, that is a sound bite and not a serious thought. Of course, it may not, just as your neighbor’s no-fault divorce did not cause your parents to break up. (Incidentally, Helen Alvare recently wrote an excellent piece in the Stanford Journal of Law & Public Policy demonstrating the way in which arguments for no-fault divorce track those now made for same-sex marriage.)

The consequences that concern me are not an immediate impact on individuals, but a change in cultural understanding — and eventually the law — that would occur over time and in ways that are almost impossible for us to see today. Proponents can shake their heads, praise “progress,” condemn “reaction,” and denounce fear-mongering, but the law of unintended consequences has held up rather well.

If we are concerned by the practical (mostly financial) problems facing same-sex couples that cannot be remedied by private agreement, then I think a better approach would be reciprocal beneficiary schemes.

My take on same-sex marriage begins with my personal experiences with same-sex couples, and homosexuals in general.  If the law treats them like second-class citizens, and my experience shows me that this is just not right, then I look to the law to make sense of why this treatment must be so.  And I cannot find the justification.

The first time I met someone I knew to be gay was in the Navy.  I met many during my service.  On our boat, the presence of gay sailors was open and notorious, and no one cared.  They did their jobs and stood their watches; nothing else mattered.  It was the same on shore.  

Another personal experience was with a particular couple.  Before my wife Tara and I were married, we were acquainted with another unmarried couple.  They were middle aged; one had chronic health issues.  They had been together for many years and took good care of each other.  It was obvious in everything they did that they were devoted to each other; that they were in love.  They were also good friends to us.

Any successful relationship between two people living out their love to each other is a good example to all.  It didn’t matter that our friends were unmarried, and it didn’t matter that they were two men.  We were unmarried by choice, still sorting through the implications of marriage.  Our friends were unmarried too, but not by choice.  Their commitment to each other was certain.  Day by day they lived out the vows they weren’t permitted to give legally—“for better or for worse, till death do us part.”  In this they did far better than many ‘traditional’ couples.  If they were guilty of a sin, it was by no means the worst: the sin of unregulated love.

Rather than harm our relationship, our friends’ good example, like those of our parents, gave us the confidence to make that lasting commitment to each other too.  Tara and I did marry—almost 22 years ago.  In our marriage, money, career, children, illness, Law School, these have challenged us.  Whom our neighbors married—or even if they were married—has never been a concern. 

So, after some 30 years of acquaintance with persons I knew to be gay or lesbian, my conclusion is “what IS the big deal?”  I try to understand the arguments for prohibiting same-sex marriages, but to me, they just don’t hold water. 

·         Marriage is for procreation.  Once maybe, but not for a long time.  Since before the Constitution, marriages between people who cannot or will not have children were considered just as legitimate as those resulting in a pack of children.  (I grew up in one of those packs.)

·         Marriage is the cornerstone of society, culture, civilization.  No argument there, but that does not preclude same-sex marriages from contributing to the stability of our culture.

·         Marriage is traditionally between a man and a woman only.  Well, not really.  But, setting polygamy aside, is it legitimate to deny personal liberties on the basis of tradition alone?  Adherence to tradition is voluntary, but the imposition of tradition is oppressive.  

·         Same-sex marriage threatens family values.   Which values are those?  Marital fidelity?  Nope.  Raising your children to be good persons?  Nope.  Keeping your family healthy and safe?  Nope.  Which one did I miss?

·         A majority of Americans oppose same-sex marriage.  I suppose so.  I know a majority opposed racial equality too.  And inter-racial marriage.  At one time a majority opposed abolitionism and enfranchising women and Catholic Presidents.  Fortunately our framers understood that individual rights (such as equal protection) are not subject to the fickle will of the majority.

·         The Framers of our Constitution didn’t intend to legalize same-sex marriage.  Probably true.  They also probably didn’t intend to legalize semi-automatic fire-arms, political action committees, NATO, law school blogs, Social Security, or Medicare. And they probably didn’t realize that sexual orientation, left-handedness, and many other character attributes are not choices, but characteristics imposed on people by both nature and nurture.  In any event, why do we suppose that the Framers intended our evaluation of this problem be cabined by their evaluations?  Unlike many modern Americans, the Enlightenment generation who founded our Nation had a deep faith in progress and intellectual development. They honored the traditions that served them well, and spurned the rest.  If they thought picking and choosing acceptable, why can’t we?

So, needless to say, I was gladdened to see that the Supreme Court of Iowa unanimously ruled on Friday that a statute prohibiting same-sex marriage violates the Iowa Constitution.

Critics have not been quiet, of course.  “While I respect an individual’s right to live his or her life as they see fit, decisions like this are better left in the hands of legislators and governors.”   (RNC Chairman Michael Steele)  Government should not tell you how to run your business, but it should be able to tell you who you should marry?  Why?

Rep. Steve King (R-IA)  condemned the decision, saying Iowa may become a “gay marriage Mecca.” In this depressed economy, when Iowans see the kind of money that people spend on marriages, they may start advertizing their new marital opportunities.

“It’s, quite frankly, a disaster.”  (Brian English, spokesman for the Iowa Family Policy Center).  This is an odd disaster: no one injured, no property damage, no harm of any kind.   This is the kind of disaster we need more of.

I am sure there are other rationales for prohibiting same-sex marriage, but they all seem to be different versions of arguments from tradition, or from religious practices, or from personal philosophies about law or culture.  Some may appear persuasive—until you think of the good people who are relegated to second-class citizenship because of tradition, state-sanctioned religious views, or personal philosophies.  The bottom line is that if my neighbors were two married men, it would not affect my marriage at all.  If they had a dog that barked a lot, that would matter much, much more.

One of the things I am wondering about is campaign rhetoric in judicial elections. We all hate it, but why?

I have been thinking about it through the lens offered by one of my favorite law school professors, Duncan Kennedy. He said that there were two species of error in the way that non-lawyers think about the law. One is lay cynicism — the idea that judges do whatever they want to and that judging was just politics by another name. (There was, of course, a sense in which Duncan believed this — probably still does — but it was at a structural rather than decisional level.) 

One of the things that I think we hate about many judicial campaign ads is that they appeal to this lay cynicism.

The adverts excorciate an opponent for siding with criminals or corporations. They promise that candidate Joe Brown will support law enforcement and “keep us safe.” They criticize a judge for enforcement of, say, the Fourth Amendment on behalf of a bad guy and illustrate the point with an empty swing or a dead body. We don’t like the ads because they take an overly consequentialist view of the judicial role and mislead the public about the way in which the law might constrain the discretion of a judge and that broader interests may compel a result that, viewed in isolation, seems wrong.

But what some critics of this type of campaigning call for appeals to lay naivete – the idea that  judging is a technocratic process in which political and philosophical differences are unimportant. Judges are technicians and legal acumen is all that matters. Judicial elections, they say, ought to be about qualifications, experience, and endorsements.

This, in my view, is just as misleading. Those of us who consider ourselves “in the know” on the matter of judicial decisionmaking know that political and philosophical differences do matter. To pretend that they are not there is to see the law as Holmes’ brooding omnipresence in the sky — something the cognoscenti know (or think they know) that it is not.

So how should judicial candidates conduct themselves? More to come.

Cross posted at Shark and Shepherd.

Much of the attention following yesterday’s decision in Siefert v. Alexander focuses upon the invalidation of prohibitions against judges or judicial candidates belonging to political parties and endorsing partisan candidates for office. That part of Judge Crabb’s decision seems to me, given the balance between regulatory interests and the protection of speech struck by the United States Supreme Court in Republican Party v. White, to be clearly correct.

And not, in my view, very momentous. Many judges have prejudicial partisan affiliations and, in highly salient elections, it is not hard for the public to discern whether a  candidate is a Republican or Democrat.  In fact, one could argue that allowing candidates to claim partisan affiliation is a relatively efficient way to provide pertinent information to voters in campaigns where discussion of the issues is difficult and often cramped by legal and customary restrictions.  It’s not that we expect judges to rule in whatever way their party wants (although, as Judge Crabb points out, the prior partisan affiliation of federal judges is strongly correlated with voting patterns), but that partisan affiliation may tell us something (admittedly broad and general) about a candidate’s judicial philosophy.

More significant, it seems to me, is that part of the decision striking down the Code of Judicial Conduct’s prohibition against the personal solicitation of funds by judges and judicial candidates.

This represents a sea change in the nature of judicial campaigns and may further dissuade lawyers from running for judge. Judge Crabb at least implicity recognized that — observing that the restriction may have had the “quaint” intent of protecting judges from the indignity of dialing for dollars -  but found this insufficient to justify the restriction. (Caution: following the link will take you to some rather raw language.)

But posited state interests in preventing actual or apparent corruption have been far more likely to justify restrictions on campaign conduct, and restrictions on contributions have been far more likely to be sustained.  It is not clear to me that prohibiting personal solicitation represents the same type of restriction on communication as a prohibition on identifying one’s partisan affiliation (or, as in White, one’s position on certain issues of public interest).  Nor am I sure that it is unreasonable for a state to conclude that personal solicitation of funds by a judge or judicial officer represents a substantial risk of actual or apparent corruption that is not presented by solicitation through a judicial committee.

* An homage to one of the greatest television series of all time.

Cross posted at Shark and Shepherd.

But, as important as that may be to me, the larger issue is more interesting. The National Catholic Reporter has put up a story on comments by Catholic University historian Leslie Woodcock Tentler who criticizes the recent emphasis of many Catholic bishops on abortion and contrasts it with earlier treatment of social welfare policies and artificial contraception. Dr. Tentler argues that bishops in the first half of the twentieth century “didn’t push a single-issue approach to politics” and “spoke a pragmatic rather than a religious or doctrinal language” that “consistently framed the debate in terms of values that nearly all Americans shared.”

Dr. Tentler’s purpose was not only descriptive, but prescriptive. She seems to believe that a more multi-faceted episcopal role in politics communicated through something like Rawlsian public reason is preferable to the more sectarian privileging of life issues that we see today.

While I am not enthusiastic about clerical pressure on politicians, let me play, to use an inapt phrase, the devil’s advocate. It is not clear to me why bishops ought to invoke their authority and credibility as religious leaders to engage in broad political advocacy using secular arguments. As Dr. Tentler concedes, early twentieth century promotion of what Protestants called the social gospel (which, she says, sounds socialist to a 21st century Republican) “mostly ignored the wealth-generating capacity of the market and policies that might support this.”

Just so. Theology can tell us what values to pursue. One cannot be a Christian and be indifferent to the plight of the poor.

But theology cannot tell us what will best serve those values. There is no reason to believe that bishops will understand the “pragmatics” of social and economic policy by virtue of their episcopal authority. Nor is their any particular reason to believe that they further their pastoral role by engaging in secular argument about public policy.

Life issues may be different – at least when the overriding value is a particular view of the nature and sanctity of human life rooted in revelation and theological reasoning.

Seen in this way, the current episcopal emphasis on abortion (if that’s a fair description) is a more modest position than the earlier approach that Dr. Tentler describes.