Touching, and Touche-ing

Sandra Day O'Connor is retiring, and if I'm the first person you've heard it from, you need to expand your reading list a bit. Everybody under the sun is blogging about this, and saying essentially the same thing--the fight will be brutal, Democrats are essentially irrelevant to the process, Conservatives are laying down their red lines, abortion will be the sticking point, and Bush has zero incentive to nominate anybody remotely sane. More interestingly, Legal Fiction pines for McConnell (that's not the interesting part), but does a flip and then a reflip on Gonzalez. Neither, I think, will happen, though O'Connor retiring first might give McConnell a new lease on life.

I can't hardly wait for this.

But lo! The administration has announced that Bush won't be naming his nominee for another week! So there's still plenty of time for folks to give O'Connor the respect she deserves, right?

Enter my favorite player in the farce that is to follow, The Family Research Council. Here was their oh-so-respectful statement on O'Connor's tenure on the Court:

Washington, D.C. - Family Research Council thanks Justice O'Connor, the first woman on the United States Supreme Court, for her nearly twenty-four years of public service.

"The Family Research Council often found itself on the opposite side of her most controversial decisions," said Tony Perkins, president of Family Research Council.

"This past week Justice O'Connor sided with judicial activists and ruled against the display of the Ten Commandments on public property in two cases before the high court that have offended the values of a great segment of the American public.

"I am confident that President Bush will name a replacement for Justice O'Connor who has the same judicial philosophy as Justices Antonin Scalia and Clarence Thomas, as he indicated he would in his reelection campaign.

"The public is primed for the fight it will take to confirm a nominee. FRC can motivate significant grassroots support for the President's nominees. We will wage an unprecedented effort for a fair and prompt up or down vote through the mobilization of 20,000 churches across the nation, weekly conference calls in targeted states, the strengthening of the FRC team and activation of grassroots through www.frc.org"

The distilled version: "Thank you, you were an evil activist, let's replace you with someone radically opposed to your judicial philosophy, and we're mobilizing the troops right now to do it!"

Or as John Cole put it regarding a similar statement by James Dobson,

It couldn't be clearer. The statement wasn't "We would like to thank Sandra Day O'Connor for her service and look forward to an opportunity to participate in the debate over her successor," it was "Don't let the door hit you in the ass and bring on the rapture."

How sweet.

Oh, and a brief aside while we're on the subject. O'Connor was a legal pragmatist, while folks like Scalia or Thomas are idealists. As Eugene Volokh put it:

Justice Scalia described his jurisprudence as "The Rule of Law as the Law of Rules."

Justice O'Connor, a pragmatist, saw the work of the law as making law work.

If you believe, as I do, that law should transcend politics, then that is a far more relevant distinction for judges than liberal/conservative. Replacing the Court's foremost pragmatist with a rigid ideologue would constitute a radical shift--even if it appears on the surface to be merely moderate conservative to conservative.

Speaking of, there is an interesting discussion going on about how Democrats should frame O'Connor's tenure. Contra our Republican friends, everyone seems to agree that it should be respectful. The split is between Kevin Drum and Greg Saunders. The former thinks that instead of calling O'Connor a "moderate", we should instead use phrases like "thoughtful conservative." Placing O'Connor as the "center" would shift the judicial playing field way off to the right, hurting Democrats in the long run. The latter thinks that calling O'Connor a "moderate" will serve as a contrast to whomever Bush choices to succeed her--the public is a lot less likely to stand for a conservative replacing a moderate compared to a conservative replacing a conservative.

I fall with Drum, but for different reasons. I think calling O'Connor a "thoughtful conservative" will play out in two ways in the minds of voters. First, as Drum says, it will remind them that she is not us--that is, O'Connor is not the mainstream (which would put Democrats on the left fringe). This is rather believable, after all, most people know that O'Connor was a "swing vote" and thus opposed Democrats at least a fair number of times. But calling her a "thoughtful" conservative shows that Democrats are not opposed to the principle of opposition. It says "yes, we recognize that there are smart, fair, and intelligent conservatives, and we would welcome Bush's nomination of one." In addition to making Bush's (undoubtedly more conservative) choice look extreme ("Why couldn't he nominate someone like O'Connor? She's a conservative, but not like that lunatic Owens/Rogers Brown/Alito!"), it has the added bonus of dovetailing nicely with the "GOP gone power-mad" theme Democrats have been pushing for 2006--Democrats are sensible and looking for consensus, Republicans think that opposing their policies constitutes treason. Hmm...not too far from the truth, actually (at least for some Republicans).

Mark in Mexico has a giant roundup, as does, of course, The Moderate Voice and Scared Monkeys.

Firing Back

I've noted before that I think Dave Kopel's argument in favor of guns for would-be genocide victims is very impressive--and this is coming from a definitive gun-skeptic.

Well, he's at it again, noting the recent gun confiscation round ordered by the Zimbabwe government. But this time, he's got a challenger: PrawfsBlawg guest blogger Kaimi Wenger. She notes that Mormon's had both guns and the right to use them in mid-19th century America, and that did little to stop the rampant anti-Mormon violence that occurred in the era. This strikes pretty close to the heart of Kopel's claims, since he is arguing that as an empirical matter, a disarmed population is a necessity for massive state-sponsored violence against a given ethnic group. The experience of the Mormons isn't true. And by the way, even if you don't buy and/or don't care about anything Wenger is saying, you should read her post anyway. It's a fascinating account of a chapter of American history I knew nothing about--and I consider myself a history buff. She also tells it well.

I'm sure that Kopel would argue that the presence of guns prevented the bloodshed from being worse than it would of--there wasn't, to be sure, a Mormon genocide. It's a good response, but Wenger's post still seems to keep some of its bite. I'm holding off judgment for now, but both sides are making stellar arguments.

UPDATE: Mark of Pseudo-Polymath points me to some more spectacular posts on the subject by Walloworld (see here and here) and Winds of Change. Great stuff all around.

Consuming the Next Generation

Yeah, it's a blatant rip off of Wonkette. Sue me.

In Van Orden v. Perry, Chief Justice Rehnquist wrote of the Court's First Amendment jurisprudence that "our cases, Januslike, point in two directions in applying the Establishment Clause." Going off that, Eugene Volokh wonders what other deities could be used in the same "Our cases, ___-like..." form.

He's opened up comments, but my contribution would be in such bad taste that I don't think it would stay there. But here it goes--if I were a lot more crass and a lot more pro-life, I'd say something like this:

Our cases, Cthulhu-like, have slaughtered innumerable unborn children.

But no, I would never say anything like that. Not a chance.

On Civility (Part 1?)

Brian Leiter just noticed my critique of his call to limit civility in public debates. Here was the offending quote:

As we have remarked previously, civility is the greatest gift one can bestow on the creationist conmen, the right-wing liars, and the religious bigots--not to mention the hordes of ignorant blowhards in the blogosphere. To treat their positions with civility is to already legitimate them. The consequence of doing so is now available for all the world to see: the intellectually and morally depraved state of public culture in America today.

In response, I argued that civility was an important part of our civic discourse and should not be tossed away so lightly. I also conceded that there was an outer limit to this position--Hitler, for example, and Leiter pounced:

What always strikes me in debates about "tone" and "civility" is that the critics, without fail, will abandon civility and adopt a harsh tone in the presence of the views that they deem "beyond the pale." Invariably, it turns out that they simply draw the line somewhere else (a good example is here--see the last paragraph, and the second comment), and that what really galls them is not the fact of my harshness and dismissiveness--they are equally capable of that when it comes to, e.g., Noam Chomsky or Ralph Nader or me--but rather that it is directed at the views they've been taught to take seriously, to think are serious, the views they've been led to believe are entitled to respect, even if one disagrees.

The following is the E-mail I sent Professor Leiter in response to his post:

Prof. Leiter,

Recently, you linked to my post which critiqued your call to limit civility in public discourse. I just want to clear up a few things.
[...]
First of all, I'm not among those who "dismiss" either Chomsky or Nader. Indeed, while I identify as a center-leftist (albeit one with some sympathies for radical left legal scholarship, Delgado, MacKinnon et al), Chomsky isn't someone I'd dismiss out of hand (that's not saying I agree with him--I don't--but he certainly doesn't fall into my exception to civility). In other words, I'm not part of the right wing attack machine--not all the critics are coming from that angle.

The other part of your attack is that I'm being inconsistent--with views I dislike, throw civility out the door, with views you do, of course it must stay. That's one way to interpret it, I suppose (although the extrapolation isn't really fair--where do you warrant that I object to your incivility only because I disagree with it? It is at least possible that I object to incivility in principle, and it's Hitler that is the "exception"). However, I would argue that all rules break down at the margins--every attempt to articulate cohesive sets of philosophical guidelines has found this. The margin--for me--is genocide. That is the end point at which the rules break down. But creating an exception such that I can stand opposition to genocidal policies and their perpetrators is a reflection of the logical extreme of the principle--it doesn't negate the principle
itself.

Steven Pinker caught the dilemma nicely:

"The psychology of taboo is not completely irrational. In maintaining our most precious relationships, it is not enough to say and do the right thing. We have to show that our heart is in the right place and that we don't weigh the costs and benefits of selling out those who trust us. If someone offers to buy your child or your spouse or your vote, the appropriate response is not to think it over or to ask how much. The appropriate response is to refuse even to consider the possibility. Anything less emphatic would betray the awful truth that you don't understand what it means to be a genuine parent or spouse or citizen....Unfortunately, the psychology of taboo is incompatible with the ideal of scholarship, which is that any idea is worth thinking about, if only to determine whether it is wrong."

And a dilemma it is. We all accept that there are certain ideas that should be rejected out of hand--but we simultaneously agree that to do so is not consistent with scholarly norms. It would take a smarter man than I to resolve the problem. But in the mean time, I think we can safely draw a line between Creationists and Nazis. Not because Creationists are right, or even making a reasonable argument. I simply think the rules change from the case of fringe "scientists" to that of advocates of mass murder.

It was the "who" more than the "what" that provoked my post. Thus far, we have managed to keep incivility contained to the very small group of extreme, radical evil. Creationists, for all their faults, are not in this category. I recognize the value of treating them such, but I fear for the Pandora's Box. Letting incivility become the norm, rather than the exception, strikes me as deeply dangerous to
civic cohesion and principled debate.

I hope you continue to read The Debate Link in the future. Leiter Reports has been on my blogroll for some time now--and it will continue to stay there. One disagreement does not a war declaration make. I'm sure we will clash again--indeed, I hope so. I also hope that we can do so in the spirit of discussion and open mindedness that I think we both agree is essential to a functioning polity.

Sincerely,

David Schraub

The Debate Link: http://dsadevil.blogspot.com

Leiter seems to think, contra me, that the civility/incivility line is drawn between the "hard" questions and the "easy" ones. The "hard" questions include complex interpretations of Nietzsche and Foucault. The "easy" ones include "Was the U.S. justified in invading Iraq?" Leiter admits that "those who can't tell the difference between the two kinds of questions" pose problems--but of course, it is a flaw that occurs only in other people. For example, my cultural background relating to genocide has made the question of whether the US was "justified" in invading Iraq a relatively "easy" one, but in the opposite direction of Leiter (whether or not the reasons given for invading were right, proper, or moral is another question, and one I probably fall much closer to Leiter on). Given the intense dispute over the issue, I am inclined to err on the side of humility, and not be so confident in my own convictions that I assume my opponents do not deserve the time of day. I will argue both passionately and respectfully with those who disagree--and hopefully persuade them to my side (and also hopefully be honorable enough to recognize a good point or a flaw in my reasoning when I hear it). I remain unconvinced that Leiter's line is superior--either strategically or morally, than mine.

Leiter also hints that the shouter method is more likely to persuade people than a rational, dispassionate argument. This may be so--indeed, in my more pessimistic moods this constitutes one of my key objections to democracy as a panacea. However, I think that biting into this temptation will put Democrats and Liberals in a battle they cannot win. Subject of a follow up post, perhaps.

Forgotten But Not Gone

I didn't actually watch Bush's speech, though I did run through the written text of it. Standard boilerplate, nothing too flashy. Oxblog gives his insta-reaction to it. Key quote: "Is it me, or does Bush sound a little defensive? Remember, that comment is coming from someone who agrees with 99% of what Bush is saying."

What caught my eye, though, was that Mr. Adnesik apparently thought Bush was going to speak on Darfur. I looked for it--nada. One might be inclined to give Bush the benefit of the doubt on this--Darfur relates only tangentially to the War on Terror (and even less so given this administration's statecentric bias). However, it has been months since I have heard a peep about Darfur from any major political or media figure. It appears it has entirely dropped off the radar screen.

It is very rare that Bush has the attention of all the news networks like this. Had he used this moment to definitively state "not on my watch," it might not have moved the US to action--but it may have struck a blow against the apathetic indifference to genocide that is currently hovering over the American populace. The news media has already decided that Darfur has lost its shock value (apparently genocide only is meaningful to America for as long as it continues to strike our conscience. Out of sight, out of mind). Those who have not already been convinced of the need for action let their eyes glaze over when they read the few tenacious voices which still speak on the subject. There are so few people who America has to at least hear, if not listen to. The President is one. Are there others?

The dying continue to wait in vain for their champion...who will rise to answer their call?

Religious Heckler's Veto

I'm still in the process of organizing my thoughts on the Van Orden and McCreary cases, so this post isn't a direct commentary on them. Rather, I wanted to opine on a critique Eugene Volokh (cross-posted to SCOTUSblog) had of the court justifying striking down the display of the 10 commandments on the grounds it was "divisive." He argues that empirically, the court's striking down of state-sanctioned religious displays has caused more divisiveness than the display itself. Ergo, the Court's logic gets hoisted by its own petard, if it really cared about ending religious strife, it would not hand down rulings that go against the sentiments of the religious majority.

It's a crafty argument, but, like Sanford Levinson, I still think it's wrong. It seems to me that such a position is the equivalent of a religious "heckler's veto." If we accept that governmental religious displays do cause some amount of religious division (leaving aside whether it is more or less than that in the aftermath of a court case), then the problem is that religious persons are reacting badly (dividing) over the court's refusal to allow them to divide. Any controversial case is going to promote some negative reactions--backlash is predictable when the court sides with the minority over the deeply held views of the majority. However, to vest the majority with this sort of power would to strip the court of its status as a counter-majoritarian check. If minority rights can be ignored whenever the majority cries loud enough, the "rights," so to speak, become non-existent. Professor Volokh's formulation echoes eerily of claims by southern racists that the court's decisions fostered more racial strife than if they had just left well enough alone. True or not, it really doesn't follow that the cause of racial tranquility would have been furthered had Brown never been decided. Indeed, one could argue that in virtually any case where an unpopular minority is granted protections that prevent the majority from acting as it otherwise would, the amount of outcry that follows the opinion would outweigh the outcry before it. This is simple mathematics--there are more members of the majority than the minority, and thus more persons to be aggrieved when their side loses. However, in the long term, reconciliation and stability are served in a community that makes tolerance its modus operandi, not a benevolent exception (I want to stress, by the way, that I am not casting any negative motivations upon the good Professor. Indeed, he specifically disclaimed that he was offering any sort of "vision" of First Amendment jurisprudence. I'm merely following the argumentative path he lays out to, what seems to me, its logical conclusion).

The other objection I have to Professor Volokh is that I think that, in the short-term at least, religious strife will be enhanced regardless of which side the Court rules for--so long as the court takes the case. This is because of the structure of our system--it's called "adversarial" for a reason. Court cases take things out of the realm of political debate, with all of its compromises, alliances, and shifting principles, and distill it down to simple X v. Y. Obviously, Courts can and do often craft compromise rulings, but the overarching framework is one of winners and losers (or sometimes, partial winners and partial losers).

On an empirical level, it would appear that the strife comes in when religion is pushed out by legal decree. But the history of religion clause litigation suggests this perception is skewed. Since the past 40 years have given strict separationists far more victories than defeats, if it is just legal decisions that cause strife, it might appear that it is strict separation that is the cause. Furthermore, since there are few cases that seek to add religion where it was absent, the inverted scenario cannot be tested. However (and this is just a sentiment I get), it seems to me that when religious groups win, the result is not tranquility at all; rather, Christian groups see the rulings as green lights for a more aggressive pursuit of their interests. This is just as "divisive" as when they lose and claim victimization. Hence, I disagree with, e.g., Listless Lawyer when he claims that "religious divisiveness" (and the culture wars in general) are products of the courts--or more accurately, the opinions and rulings of those courts. Instead, the courts are merely the most high profile (and high stakes venue) where these battles are played out.

Such a view is pessimistic on my part, because it offers little hope for short-term reconciliation in the culture war. If religious groups win, they press the attack, if they lose, they cry prejudice and counter-attack. Either way, the division remains--a product of a legal system which encourages participants to view themselves as combatants (and which, especially in constitutional law, is uniquely high stakes, winner-take-all).

I would continue to argue, though, that it is unfair to blame the victims of state-sponsored religious messages for the refusal of the religious majority to abide by or accept the constitution. Such a view turns constitutional law on its head--minorities, especially those who have little political support to begin with, already have enough trouble getting on the judiciary's radar screen, to be shackled with an inherent disadvantage from the start would make a mockery of the protections our bill of rights purports to afford. As Justice O'Connor so eloquently put it, we "don't count heads" when it comes to constitutional rights.