Lawyers At Their Worst II

Last Friday, I posted a link to, and critiqued in fairly broad strokes, the DOJ's memo defending the NSA eavaesdropping program. Courtesy of O'D, Mechelle and the New York Review of Books, here is a link to a letter by a group of "liberal" constitutional scolars (Tribe, Dworkin, etc.) responding to an earlier version of that same defense.

While I like the scholars' conclusion a lot more than DOJ's, I was disappointed by both the arguments and the writing.

For one thing, there are entirely too many "ly" words in this for my taste. Tribe et al. are very nearly as guilty of "arguing by adverb" as is DOJ.

For another thing, most of the memo is devoted to critiquing the very much secondary argument that the AUMF provides an exception to FISA. The real issue here is the Constitution and I would have expected a bunch of constitutional lawyers to focus on that rather than the far more technical issues of statutory construction. Moroever, rather than addresing the substance of the AUMF head on the "scholars" rely instead on such legal technicalities as this:

First, and most importantly, the DOJ's argument rests on an unstated general "implication" from the AUMF that directly contradicts express and specific language in FISA. Specific and "carefully drawn" statutes prevail over general statutes where there is a conflict. Morales v. TWA, Inc., 504 U.S. 374, 384-85 (1992) (quoting International Paper Co. v. Ouelette, 479 U.S. 481, 494 (1987)). In FISA, Congress has directly and specifically spoken on the question of domestic warrantless wiretapping, including during wartime, and it could not have spoken more clearly.

There are two problems with kind of argument. First, its highly technical nature deprives it of much force in a battle of Constitutional proportions. Surely, this is not a case that turns on canons of stautory construction. Second, this argument implicitly concedes that there is a "conflict" between FISA and the AUMF. One gets to the question of whether the specific controls over the general only if there is a conflict between the specific and the general. And, for there to be a conflict implies that the AUMF can plausibly be read to have authorized warrantless domestic eavsdropping. But if that point is conceded, then the entire statutory argument fails becuase, as DOJ points out, FISA itself contains an exception under which electronic survellience that would otherwise violate FISA can neverthelss be lawfully conducted if it is authorized by some other statute. In short, if the AUMF does, -- or can be read to -- authorize the NSA program then, there is no conflict between FISA and the AUMF. And, if there is no conflict, the canon of construction regarding the specific and the general has no relevance.

The point that one wishes the scholars had made is the much simpler one: a Congressional authorization "to use all necessary and approrpiate force" against the "nations, organizations or persons" who "planned, authroized, commited, or aided" the 9/11 attacks cannot be read to authorize domestic eavesdropping. An authorization to use force (to say nothing of an authorization to use only that force that is necessary and appropriate) does not expilictly authroize domestic eavesdropping. Thus, if this issue does turn on an issue of statutory construction, the "canons" that would be relevant would be those describing how to determine what (if any) requirments or authorizations are implicit in a Conressional act that does not explicitly speak to the question at issue. Traditionally, the lodestone of that inquiry has been Congressional intent, and I think it would be very difficult to demonstrate a Congressional intent, at the time the AUMF was passed, to authorize warrentless domestic spying. But, if one wants (as the scholars appear to want) to argue about stautory construction, it seem to me that this is the area one has to address rather than arguments over whether the specific controls over the general.

My third disappointment is the scholars' failure to address in any meaningful way the core Constitutional issues: (a) does Article II of the Constitution provide the President with the power to institute a program of domestic spying that is beyond Congress' power to control, and (b) if so, what (if any) limits on that power are imposed by the Fourth Amendment.

As to the first of these issues, the scholars offer only the following ipse dixit:

Congress plainly has authority to regulate domestic wiretapping by federal agencies under its Article I powers, and the DOJ does not suggest otherwise.

The latter clause in this sentence is just plain wrong. Not only does DOJ "suggest" that Article II provides the President with powers in this area that are beyond Congressional reach, that contention is actually the core of its entire argument: but for the AUMF, they argue, "the consitutionality of FISA . . . would be called into very serious doubt."

The first clause, marked by the telltale "plainly," presumes the answer to the very question to be decided.

As to the role of the Forth Amendment, the scholars and the DOJ are in a "does too/does not" kind of an argument. DOJ says that the NSA program falls within the "special needs" exception to the warrant/probable cause requirment; the scholars say it does not. While I want to believe the scholars, DOJ actually does a far better job of arguing the point. After all, as DOJ points out, the courts have approved warrantless and indeed suspicionless searches of drivers at sobriety checkpoints and of students engaged in extracurricular activities. If these types of situations fall within an exception to the Fourth Amendment, why not warrantless eavesdropping in an effort to prevent another 9/11? To me, this is actually an argument against the Constitutionality of those other types of searches rather than in favor of the the NSA program. However, if you agree that sobriety checkpoints and mandatory drug testing for student athletes do not violate the Fourth Amendment, then it is a little hard to argue that warrantless eavesdropping is barred given the significantly greater governmental interests involved. In any event, if such an argument can be made, it certainly was not made by the scholars.

But by far the biggest disappointment, though, was the scholars' failure to even mention the implications of the DOJ argument. If DOJ is right and Article II does give the Presdident eavesdropping powers that are beyond Congressional (or presumably judicial control) what happens? To me, this is by far the most compelling reason for rejecting the argument, for if the President has any power that is beyond the control of either of the other Branches the whole concept of checks and balances among three co-equal branches would appear to be in grave danger.

Perhaps my alarm at this prospect is due to the fact that I am missing something obvious to the scholars, steeped as they are in Constitutional law and history. Perhaps, the alarm is justified and the scholars failed to discuss this issue becuase they can not believe the Administration is making the argument that it seems to me quite clearly to be making. Perhaps this issue was a victim of the fact that the letter was written by a committee. In any event, though, for a group of men and women such as this to write a rebuttal of the Administraion's claims without even reaching the implications of those claims is a disappointment. The scholars appear, at least, to have become so throughly engrossed in the leaves and branches that they cannot see even the tree, let alone the forest.

The Money Machine

Exxon Posts Record Profit: $10.7 billion for the 4th Q and $36.1 billion for the year. That' $3 billion per month. That's $100,000,000 per day. And that is profit.

What Happens In Vegas . . .

Just got back from 3 days in Vegas with a bunch of (male) friends. Apart from a bloody 25 minute stretch at the craps table it was a lot of fun. However, I have been repeatedly reminded that Vegas trips are not "blog-worthy." So the rest I leave to your collective imaginations.

Why Not Change It Then?

Gonzales' speech at Georgetown University yesteday got a fair amount of press coverage. The certerpiece of the speech was apparently a claim that "the requirements of a secret intelligence court are too cumbersome for rapid pursuit of suspected terrorists."

I am skeptical. But let's assume that is true. Isn't the remdy for that problem to go to Congress and have the law amended rather than simply ignoring it based on some trumped up legal theories that are both baseless and (if accepted) extraordinarily dangerous? Laws have a nasty way of being inconvenient at times. Where that inconvenience truly does interfere with effortts to protect the nation's security, I am aware of few (read no) instances in which Congress has refused to amend the law to address the problem. But to just arrogate to oneself (even when that self is the President) the power to simply ignore the law is to deprive the law itself with any meaning as a constraint on Presidential action. To me that is a far greater long term risk than any risk posed by terrorism.

The Coming Re-Alignment: Part II

Back in September, I wrote (somewhat hopefully) of a "coming realignment" in American politics. The basic premise was this:

The American electorate can, I believe, be broken down into three roughly equal groups. First, there are the traditional "liberals," more properly referred to as "progressives," who form the base of the Democratic Party. For these people, the political imperative is to assist the underprivileged, and they believe government programs are the best or at least only available instruments for furthering that goal. Second, there are the proto-libertarians who have, at least traditionally, formed the base of the Republican Party. These people believe that the best, maybe even the only, way to effectively help the poor is through economic growth and that economic growth and even freedom demands small government, low taxes, and low deficits. Finally, and newly come upon the scene, there are the social conservatives: those for whom the political imperative is to further and if necessary enforce a particular moral code. On issues other than morality, this group is amazingly diverse, including everything from ultra-progressive Minnesota DFLers to ultra-conservative John Birchers. But for all of them, morality now trumps any other domestic issue. The Republican Party has achieved its current political dominance by keeping most of the proto-libertarians within the Party while adding the social conservatives.

But, the proto-libertarians aren't all that happy with the arrangement. Being libertarian, they are pretty tolerant on social/moral issues. Moreover, the social conservative desire to see government take on an ever expanding role in enforcing morality is fundamentally at odds with the central premise of proto-libertarianism: that government governs best when it governs least. For this reason, I do not think that the current Republican coalition can endure.

I had a conversation this weekend that made me think I might be right about this.

I have a friend who has been a Republican since he was in high school and who has been very active in Republican politics for a number of years. I was at a party with him on Saturday, and he said something startling: he wanted to run for Congress so that he could vote articles of impeachment against Bush. "I am," he reminded me, " a Goldwater Republican." I said that I knew he had been at least, and I had been wondering where the heck he had been for the last several years. Apparently, he is back.

He told me he was pulling together materials and was going to write an article, so I will wait for a fuller explanation. However, I think I already know the basic outlines. He came, (belatedly I think) to a realization that the Republican Party as it is presently constituted is a genuine threat to things he values even more than tax cuts and maybe even more that defense against terrorism. I suspect that the NSA eavesdropping program was the straw that broke the camel's back. But, now that the "good soldier" role has become intolerable, I am sure there is much more to it than that.

We'll see. I really do hope he writes the article.

Lawyers At Their Worst

The Justice Department came out today with an "unclassified" version of its defense of Bush's power to eavesdrop on domestic communications without judicial oversight. It's an embarrassment. As you skim through it (it's looooong, and its length is itself an indicium of how tenuous its arguments are) keep in mind the truism that when a person (and especially a lawyer) tells you over and over again that something is "obvious," or "clear," or "well-recognized," or "conclusively demonstrated," etc., etc., the exact opposite is invariably true. Adjectives and adverbs are not the tools of legal or even rational argument; they are a substitute for it. When you haven't got much authority, use an adverb. When you haven't got any authority, use a lot of them.

If you believe the memo's hysterical characterization of the dangers posed by al Queda, you might want to believe that the memo describes what the law actually is. But, before you go there, ask yourself this question: If the memo is right, is there anything that is forbidden to the President? If the memo is right, the only constraints are those of the President's own conscience. The memo relies heavily on this, arguing that the eavesdropping is reasonable because it is confined to contacts with persons having links to al Queda. One might justifiably be skeptical of such a claim. But even if is true, that is simply a limitation that the President has imposed on himself. Given the legal rationale advanced, there is nothing that does or could require him to observe such a limitation. He can, quite literally, do whatever he wants, at least so long as he can say that it has some bearing on the war on terror. That, to me, would be a scary proposition even if I had a great deal of confidence in the conscience of this particular President (which I do not, of course). However, even if you do, think about this: we are, if this memo gets accepted, establishing a precedent -- in fact a Constitutional principle -- that works as well for all subsequent Presidents as it does for Bush. Just think of the fun that Nixon -- to say nothing of a President along the Joe McCarthy lines -- would have with that.

There is one obvious irony in this that I cannot help but note. The very people who excoriate courts for finding individual rights in the "penumbras" formed by the Constitution's explicit provisions have no problem at all granting to the government vast powers that appear nowhere in the literal language of the Constitution. Reproduced below, for your reading pleasure, is Article II of the Constitution, in its entirely. As you will see, it has but three sentences that have even the remotest connection to this dispute. They are in red. Two of these are referred to frequently in the memo; the third is ignored. If any of you find in these three sentences an intention to grant to the President the sorts of powers he now claims to be so far "inherent" in his office that any act of Congress impinging on those rights would be unconstitutional, please let me know.

Article. II.

Section 1.

The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representatives from each State having one Vote; a quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.

The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

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

The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:--''I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.''

Section 2.

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to Grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Section 3.

He shall from time to time give to the Congress Information on the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

Section 4.

The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

The Onion Gets It Right -- Again

There is lots of breathless coverage of bin Laden's latest missive. But the Onion was the one that got it right -- back in 2001.

We are entirely too worried about bin Laden in particular and terrorism in general. That is not to say that we should forget about either. I want bin Laden captured or killed as much as anyone. And terrorism is unquestionably something we need to try to contain, control and ultimately eliminate, not just here but world-wide. But cancer, handguns and automobiles all kill a lot more people in than bin Laden or terrorism ever will. Indeed, in the pantheon of threats to American lives, terrorism ranks well below all three of these (and many, many others) and bin Laden himself is lost in the rounding.

There are all sorts of indications that we have lost our sense of perspective about terrorism:

We are willing to knowingly kill innocents based on a hope that "senior members of Al Queda" are intermingled with them. We are willing to countenance our government spying on us in the hope that this will prevent a new terrorist plot from maturing. We are willing to tolerate "black camps", kidnapping and torture. We are willing to hold hundreds, perhaps thousands of people indefinitely in what amount to concentration camps without charge or trial and, indeed, without any meaningful opportunity to challenge the basis for their detention. Our government tells us that it does all of this outside the Country precisely because this allows them to operate outside the jurisdiction of our courts and indeed our laws. Yet we say nothing. Indeed, at some level we seem to applaud their cleverness. And, when the courts ever so delicately do provide a forum for such challenges, we amend the law to deprive the courts of jurisdiction. We have a President who has baldly asserted that laws passed by Congress and signed by previous Presidents do not constrain his power so long as there is a nexus to the war on terrorism. Indeed, he claims that even laws which he himself signed do not provide constraints. We are in the midst of the greatest attack on our civil rights and liberties and our system of government since at least the Civil War. Yet we are for the most part accepting, feeling like the abandonment of everything we value and believe to be "special" about the United States is something, like airport security lines, that we have to accept because of the threat of terrorism.

Ladies and gentlemen, the price is just way, way too high. Terrorism just is not that great a threat. You are far more likely to get struck by lightning that you are to be a victim of a terrorist attack.

9/11 was unquestionably a wake-up call. Despite what in hindsight were clear warnings, we had complacently assumed that terrorism was something that happened somewhere else. We now know how pathetically naive that was, and we needed -- need -- to alter our behavior and security procedures to reflect that fact. But the nature of the response needs to be proportionate to the nature of the threat, and our government has done us a grave disservice first by greatly exaggerating the nature and extent of the threat and then, having convinced us that the threat is both dire a pervasive, persuaded us to stand idly by (indeed even to cheer) while the government betrays every ideal we have in order to respond to that threat.

We are in the midst of a mass hysteria not unlike the hysteria that gave rise to the internment of Japanese Americans and the Army-McCarthy hearings. Actually, the current hysteria is worse, since the threats posed by Japan in the 1940's and by Russia in the 1950's and 60's were far more significant than the threat posed by terrorism today.

Terrorists are unquestionably trying to attack us, and, if they succeed, Americans will die. But Americans are dying all the time from a host of evils too numerous to mention. We can and should battle to prevent all of those deaths. But we should not in the process abandon our ideals or our liberties. Some things are worth dying for.

Go back and read that Onion piece again and ask yourself if it isn't a whole lot closer to the truth than what you hear daily from Bush, O'Reilly and Taranto.

We need to get a grip.

"Covering" Differences

There were a bunch of things in Sunday's New York Times that caught my interest and on which I had originally set out to write yesterday. But then I got carried away on the Alito thing and ran out of time. But here's another one of them:

There was a long article in the Times Magazine by Kenji Youshino, a Yale law professor, on the pressure that society puts on minorities to hide or "cover" characteristics of their minority status over which they have some control. See"The Pressure To Cover." Youshino argues that the triumph of the American Civil Rights movement over the last 40 years has been to thoroughly discredit status-based discrimination. Today, it is not only illegal to discriminate against people because of their race, ethnicity, religion, gender or handicap; there is now a near universal acceptance that such discrimination is wrong. This is not to say that people no longer discriminate on these bases. However, it is to say that few people will any longer admit to doing so. Such status-based discrimination is just no longer acceptable in polite society, and those who retain such discriminatory impulses (all of us to some degree or another) recognize, for the most part at least, that acting on those impulses violates what has become a well-established cultural norm.

The general principle that underlies this norm is an agreement that it is wrong to discriminate against a person for things the person cannot change. (Note: religion is the one exception to this, since technically a person is able to change his religion, but that exception is explained by our shared commitment to freedom of religion). Gay Rights is still an active issue precisely because there is, as yet, no agreement on whether sexual orientation is or is not a matter of choice. Of course, homophobia is not at bottom a result of an intellectual distinction between choice and non-choice any more than race discrimination was (or is). Prejudice of all sorts springs first from the guts, not the head. However, when it comes down to defending or justifying discrimination, the only "principle" on which we can fall back is that of choice. That is, while we all agree that it is wrong to discriminate against a person because of what he is, we generally feel that it is OK to discriminate against him because of what he does.

Youshino wants us to re-think the second half of this distinction. He argues that, at least in some cases, individual actions are a form of self-expression and that where that self-expression is linked with the person's status, it is arguably no more valid to discriminate based on those actions than it is to discriminate based on the status itself.

He offers a number of examples, but two should suffice for our purposes.

1. A black woman employed as a stewardess for an airline wanted to wear her hair in "corn rows", but this violated an airline policy against hairdos comprised entirely of braids. The woman sued, arguing that the policy was racially discriminatory. She lost.

2. Youshino, who is gay, received the following (perhaps friendly) advice when he first arrived at Yale: " 'You'll have a better chance at tenure if you're a homosexual professional than if you're a professional homosexual." Youshino understood the speaker to mean that, since he was himself gay (and openly so), he would be better off professionally if he devoted his teaching, research and writings to areas of the law other than Gay Rights.
   

These two examples present very different types of situations in that the first is a is a case of de jure "discrimination" whereas the second presents a much more subtle case of unspoken, even unacknowledged "bias". But, in both kinds of cases, Youshino argues, the underlying impetus is an implicit desire by the organizations at issue (the airline or Yale) to discourage actions that tended to emphasize or call attention to the person's minority status. He agrees that some discrimination based on action is justified. For instance, no one would argue that it is or should be either illegal or immoral to discriminate against arsonists in interviewing candidates for a job in the fire department. But Youshino argues that the action vs. characteristic distinction is often not enough of a justification. The question he wants us to ask in each case (both as courts and as people) is "why?" Why did the airline want to prohibit women from wearing their hair in corn rows? Why should a gay law professor be encouraged to devote his professional life to issues other than those surrounding sexual identity? More generally, he poses the question thusly:

[The "New Discrimination," as he calls it,] does not aim at groups as a whole. Rather, it aims at the subset of the group that refuses to cover, that is, to assimilate to dominant norms. And for the most part, existing civil rights laws do not protect individuals against such covering demands. The question of our time is whether we should understand this new discrimination to be a harm and, if so, whether the remedy is legal or social in nature. . . .

This distinction between being and doing reflects a bias toward assimilation. Courts will protect traits like skin color or chromosomes because such traits cannot be changed. In contrast, the courts will not protect mutable traits, because individuals can alter them to fade into the mainstream, thereby escaping discrimination. If individuals choose not to engage in that form of self-help, they must suffer the consequences.

I have to admit that I was shaking my head at this whole line of argument. The very idea of a "new discrimination" was appalling enough, since we continue to have trouble enough with the old. More important, his theory conjured up a whole new and nearly infinite universe of minority-based "entitlements" that would serve to only further exaggerate the "identity politics" that have led in no small part to the polarization of our society. "What is so wrong," I wondered, "with asking people to conform a bit, even if society has no good reason for the standards to which they are asking people to conform? After all, a shared set of standards and norms is the glue that makes us a society as opposed to an agglomeration of individuals. We should not have to have a rigorous justification for everything we ask of the members of our society." I was so far disgusted with the argument that I was about to quit reading when I came to this statement:

[W]e must shift away from claims that demand equality for particular groups toward claims that demand liberty for us all. This is not an exhortation that we strip protections from currently recognized groups. Rather, it is a prediction that future courts will be unable to sustain a group-based vision of civil rights when faced with the broad and irreversible trend toward demographic pluralism. In an increasingly diverse society, the courts must look to what draws us together as citizens rather than to what drives us apart.

The thing that "draws us together" in Youshino's view is our shared commitment to liberty.

For me, "liberty" is the magic word. Liberty is, indeed, the correlative to tolerance: no one can ever be free unless others are willing to tolerate some level of interference with their own freedom of action. Indeed, at some level, the invidiousness of discrimination has less to do with "equality" than it does with liberty. For instance, read literally, the Supreme Court's conclusion that "separate is inherently unequal" is simply wrong. Separate schools can be made equal. What is wrong with segregation is less a matter of inequality than it is of one group imposing unreasonable limitations on the liberty of another. Suddenly, I was ready to give Youshino's argument more thought -- at least enough more to get me through the rest of the article.

In the end, I don't think this is a useful legal distinction in any but the most extreme cases. There are unquestionably some cases where the organizational interests furthered by a prohibition on individual conduct are so insignificant (or even non existent) as to make the prohibition's imposition on individual liberty seem plainly wrong. The dreadlocks case would seem to be one good example of such a case. The airline policy wasn't really objectionable because it was unequal. It was objectionable because it was silly. In other cases, the interests of the individual are so strong that they are sufficient to overcome even some level of (arhgualbly) legitimate state interest. Consensual, private sexual relations between homosexual adults is one such example, and the Supreme Court has now struck down such prohibitions using a liberty-based analysis. Another is presented by one of the examples Youshino provides: a young woman, who was known to be a lesbian at the time she was hired by a state attorney general's office was subsequently fired when her employer learned that she and her partner had had a religious "commitment ceremony." The attorney general argued that this could have interfered with her ability to enforce state laws against homosexual marriages. In fact, I do not think that is a worthwhile or valid "interest" to begin with, but even if it is it is so ephemeral as to be an inadequate justification for the burdens the policy placed on the liberty interest of the woman.

But these are the easy cases, and the problem, at least in law, is that once you get away from the distinction between being and doing, it is very hard to figure out where to stop. If the woman in the airline case was entitled to wear cornrows, on what basis would we allow an employer to prohibit another person from wearing a bone in her nose.

Since a liberty-based analysis is necessarily a balancing of the liberty interests of the individual against the organizational interests in rules that apply to everyone, there are a nearly infinite number and gradations of respective interests, and the subjectiveness of any "weighing" of such conflicting interests makes this an area in which I do not wish to see the courts venture in any but the most egregious cases --i.e. really important individual liberty interests vs. really silly or non-existent institutional interests.

However, as a way of looking at our own relationships with people it does have some potential. When an employer makes rules, it ought to ask itself -- and perhaps its employees -- whether this rule actually has any legitimate purpose other than to demand conformity. If it does not -- and such rules frequently do not -- then maybe the rule should not be adopted, even if it would not be illegal.

To his credit, I think, Youshino reaches essentially the same conclusion. While he does see a role for the law in extreme cases, he also acknowledges that:

The primary solution lies in all of us as citizens, not in the tiny subset of us who are lawyers. People confronted with demands to cover should feel emboldened to seek a reason for that demand, even if the law does not reach the actors making the demand or recognize the group burdened by it. These reason-forcing conversations should happen outside courtrooms - in public squares and prayer circles, in workplaces and on playgrounds. They should occur informally and intimately, in the everyday places where tolerance is made and unmade.

What will constitute a good-enough reason to justify assimilation will obviously be controversial. We have come to some consensus that certain reasons are illegitimate - like racism, sexism or religious intolerance. Beyond that, we should expect conversations rather than foreordained results - what reasons count, and for what purposes, will be for us all to decide by facing one another as citizens. My personal inclination is always to privilege the claims of the individual against countervailing interests like "neatness" or "workplace harmony." But we should have that conversation.

Such conversations are the best - and perhaps the only - way to give both assimilation and authenticity their due.

Even here, though, I have my doubts. It all sounds so warm and fuzzy to imagine ourselves all having such "conversations." But who has time for that? And, moreover, is it really reasonable to expect such conversations to result in agreement? Human nature just does not work that way. The more likely outcome, I think, is increased hostility as some people's self-expression is approved and others' is not, for reasons that those denied will almost inevitably find "inadequate." At some point, I think, even if the effect is to constrain an individual's "self actualization" (my LORD I hate that word) we need in the name of efficiency if nothing else to grant employers and other organizations the right to be arbitrary at least in cases where the liberty individual liberty interests at stake would commonly be considered insignificant.

Alito's March to Confirmation -- And Why I Can Live With It

The Senate Judiciary Committe hearings on Alito's confirmation to the Supreme Court ended this week, and the consensus seems to be that, despite much hand-wringing on the Left, he is a shoo-in for confirmation. Unfortuantely, that apparently will not prevent either side from bombarding us with polemics over the next few weeks.

Schumer has apparently said that a filibuster is still a possibility, but a comet striking the Capitol in the next month is also a "possibility" and the latter seems to be the more likely of the two. In order to keep faith with their own "base," Schumer, Lieberman, Kennedy, et al. may make a stab at a filibuster, but it seems very unlikely that any such effort will amount to much given lackluster support for a filibuster among Democrats themselves. Diane Feinstein has already come out against a filibuster; Harry Reid and Patrick Leahy are thoroughly non-commital; and Senate staffers are apparently putting out the word that a filibuster is "very unlikely." There is also precious little support for a filibuster in the major liberal media. Indeed, the Washington Post has explicitly endorsed confirmation and theLA Times has at least implicitly done so as well. The New York Times is still a hold-out in this regard, arguing that Republican Senators who support abortion rights -- exactly those who would have to defect en masse to make a filibuster feasible -- should vote against Alito. But even the NYT appears to recognize that confirmation is a foregone conclusion and stops well short of urging a filibuster.

While I could not entirely escape the reporting on them, I intentionally ignored the hearings themselves, convinced that both the questions and answers would be thoroughly unenlightening on the substance and boring as theater. I gather from reading the post mortems (a particularly good one of which was Charles Isherwoods' in today's NYT Week In Review) that I was right on both counts.

But there was another reason as well. I don't think Judge Alito's confirmation is all that important.

There is a lot of sturm and drang out there right now about how Alito's ascension to the Supreme Court is, as the LA Times puts it, " likely to have an immediate impact in the areas of abortion, religion and the death penalty . . . [as well] as election campaigns and the environment." The New York Times, in the editorial linked above, argues that " there is every reason to believe that [Alito] will vote to overturn Roe v. Wade when the opportunity comes," as it may well even this term, since the Court already has two abortion cases on its calendar for this year.

It is certainly possible that such predictions will come true. But I doubt it. And, even if they did, that possibility holds nowhere near the terror for me that it apparently does for some people. On the abortion issue in particular, I think the importance of Roe v Wade is vastly overblown. (See this earlier post for a fuller discussion of this issue.) Indeed, while I am a firm supporter of abortion rights (at least in the first half of a pregnancy), overruling Roe would not end such rights (at least outside Kansas and Utah) and the ability to actually have a debate on this issue would be like lancing a boil. So, even if the NYT is right about Alito and abortion, that fact is not really all that much of a concern for me even though I would be opposed to any such decision.

But, abortion aside, I think the opposition to and concern about Alito's impact is vastly overblown.

First, I don't think radical changes in the law are likely and I certainly don't think they are imminent. For one thing, there are too many constraints to allow any one Justice -- or even a combination of Justices -- to rapidly make radical changes in the law. Stare decisis is one of those and the need to assemble a majority among the nine members of the Court is another. But most important of all is the humbling effect of having the final word on matters of enormous importance to the Country. It is easy to be a radical when your radicalism doesn't matter. It is far harder to endorse radical change when what you decide instantly becomes the law of the land. In any but the most ideologically committed, the weight of such responsibility imposes a powerful imperative to "go slowly."

Alito does not strike me as an idealogue. Yes, he tends to believe that the Constitution should be given the meaning that it had for the drafters and that, where that meaning no longer meets current exegencies, the remedy is to amend the Constitution rather than ask the Court to change or expand on the original intent. But, by the way, so did Sandra Day O'Connor. As she famously told the Senate Judiciary Committee in 1981: ''I do well understand the difference between legislating and judging. As a judge, it is not my function to develop public policy.'' Yet for all of that, Justice O'Connor is now a viewed by the Left as the near apotheosis of "the good Justice":

"I hope the president will select someone who meets the high standards that she set and that can bring the nation together, as she did," Sen. Edward Kennedy, D-Mass., said on the day O'Connor made her retirement announcement.

"We hope the president chooses someone thoughtful, mainstream, pragmatic -- someone just like Sandra Day O'Connor," said Sen. Charles Schumer, D-N.Y., on the same day.

In short, there is not nearly so much difference between O'Connor's and Alito's judicial philosphies as one might assume by reading the press releases. Nor, it seems to me, is there all that much difference in temperment. Alito is no Bork (thank God). He is not even a Thomas. He shares with O'Connor an appealing humility, a willingness to be open-minded, and dare I say it, a principled pragmatism that I find reassuring. As O'Conner's own history demonstrates, funny things happen to such people once they reach the Supreme Court.

In this regard, a 1981 NYT Op-Ed piece by Anthony Lewis on Sandra Day O'Connor seems as apt today with respect to Samuel Alito as it did then, no doubt, with regard to Justice O'Connor. I quote at length becuase I think it is well worth reading:

"I do well understand the difference between legislating and judging,'' Sandra Day O'Connor told the Senate Judiciary Committee as her confirmation hearings began. ''As a judge, it is not my function to develop public policy.'' And last week, when the Senate voted 99-0 to approve her nomination to the Supreme Court, President Reagan expressed his pleasure in a statement praising her judicial philosophy as ''one of restraint.''

Those are the pieties that are likely to surround any Supreme Court appointment nowadays. The conservatives who hold political power often speak of the need for judicial restraint, for strict construction of the Constitution, for judges leaving policy decisions to legislators. The dramatic element in this nomination - the first appointment of a woman to the Court - did not at all change the talk about desirable judicial philosophy.

But Justice O'Connor, as she now goes to work in that great marble palace on Capitol Hill, will find that the pieties do not get her very far. She no doubt knows that already. It is hard work interpreting the fundamental law of this country, and what is hard about it is that there are no formulas for decision. A few examples, new and old, will indicate how unhelpful the jurisprudence of a confirmation hearing is in deciding actual cases.

[Examples omitted]

The point is really that phrases such as ''equal protection'' cannot be defined by formulas. Much of the Constitution consists of concepts - ''due process,'' ''interstate commerce,'' ''unreasonable searches'' - that can only be given meaning in concrete cases. And the American system from the beginning has given the defining function to judges.

Because the Constitution is the supreme law of this country, and because its grand words acquire meaning in lawsuits, judges do make policy. There is no way for them to escape that burden. Whether they hold segregation constitutional or unconstitutional, judges make policy.

Some judges are by temperament less bound by precedent, readier to apply the Constitution in novel ways. That was true of the old conservatives on the Supreme Court who erected fences around property - who held minimum wage laws and restrictions on child labor unconstitutional, for example. It was true of the late William O. Douglas in his expansive views on freedom of speech.

But those abstract phrases of the confirmation hearing do not have much to do with what either conservatives or liberals seek in a Supreme Court justice. They are really interested in a nominee's substantive values: how she feels in her heart of hearts about the values of free speech, official secrecy, fair procedure, state power, religious freedom and so on.

The strange thing is that those ultimate truths are seldom known before a Supreme Court justice goes on that bench. Years ago a member of the Court remarked: ''In this job a man is reduced to the irreducible minimum.'' That is to say, the justice has to peel off all those layers of convention, of views expressed to go along with some faction or friend, and find out who he is inside; who she is. The process is about to begin with Sandra Day O'Connor, and it will be far more interesting to watch than her clever fencing with senators.

I want to repeat that last thought becuase it seems to me fundamental:

" 'In this job a man is reduced to the irreducible minimum.' That is to say, the justice has to peel off all those layers of convention, of views expressed to go along with some faction or friend, and find out who he is inside; who she is. The process is about to begin with [Samuel Alito] and it will be far more interesting to watch than [his] clever fencing with senators."

The thing that gives me comfort about Alito is that I sense that he is, at his core, a decent man. And, when the crucible that is the Supreme Court forces him to "to peel off all those layers of . . . views expressed to go along with some faction or friend and find out who he is inside," I suspect that we are likely to end up being as comfortable with him as we have become with Justice O'Connor. This is not to say that we will agree with everything he does. Far from it. But it is to say that he, like O'Connor before him, is likely to be seen as an intelligent, thoughtful, responsbile, and fully integral voice in the ongoing debate that is the essence of democracy. I can ask no more of a nominee.

DeLay Interrupted

Well, I guess I have to say something about the demise of Tom DeLay. But the only thing that comes to mind is this: it couldn't have happened to a more deserivng guy.

Oh, and there is also this: I told you so!