Jews and Admissions Decisions

Really interesting article by Malcolm Gladwell in the New Yorker on how the Ivy League admissions decisions got how they are. Specifically, it notes how much of the current emphasis on "character" was designed specifically to reduce the amount of Jews on campus. A stellar example of how prevailing standards of "merit" are actually constructions to aid certain persons at the expense of others.

Link via Phoebe Maltz.

Romeo & Juliet

The Kansas Supreme Court just unanimously struck down as discriminatory a set of statutes which punished certain criminals convicted of homosexual statutory rape far more harshly than those whose crime was heterosexual. Basically, Kansas has what is known as a "Romeo & Juliet law," which reduces statutory rape sentences significantly if the perpetrator is under 19, the victim is either 14 or 15 (KS age of consent is 16), and there is less than a 5 year age difference between the older actor and the younger one. The Kansas law only applied to heterosexual cases. At bar, the perpetrator was sentenced to over 17 years in prison, when if the crime was heterosexual the maximum sentence would have been 15 months. The opinion can be found here.

The court struck down the law as having no "rational basis" for its existence. I dislike the rational basis test, both in of itself (I think that, under its terms, its far too easy to beat--when it is met normally the Court has to stretch a bit), and as applied to homosexuals (I think that the record clearly establishes that their cases deserve either "heightened" or "strict" scrutiny). I discuss this issue in far more detail in this post. But even still, I agree with Kip Esquire--this law is "indisputably unconstitutional." And the opinion text does a good job of dismantling many of the rationales the state might have for discriminatory conduct. Also, the fact that the opinion was unanimous, and came out of Kansas, should theoretically forestall accusations of judicial activism. We all know it won't, but I can dream, right?

Unfortunately, I will also note that this case is red meat for the right. Even under the best of circumstances, reducing a sentence on a statutory rape case lights up a bright, shining "critique me" sign for Christian conservatives. But worse, the criminal himself isn't a sympathetic character. Generally, R&J laws are there so that consensual sex acts between two actors of near-same age won't be prosecuted. While this case was consensual, the perpetrator has a criminal history of aggravated homosexual sodomy (no word whether those convictions were on consensual acts too). In fact, the opinion hints that the acts weren't quite consensual after all:

The State makes the same argument in a narrower fashion as applied to the facts of this case, stating the activity between Limon and M.A.R. was "less than consensual and more likely coercive." Where the State stipulated below that the sexual activity between Limon and M.A.R. was consensual, it cannot be heard to argue on appeal that Limon's actions were "coercive and predatory." We agree the wording in the stipulation that the oral sex between Limon and M.A.R. was "consensual" was a legal misnomer and a better term would have been "voluntary," but that distinction does not permit the State to back away from its stipulation at this stage of the case.

In any case, this at the very least isn't two innocent kids engaging in puppy love. The right will go wild over this.

Orin Kerr offers some interesting thoughts. He notes that the analysis in the case makes it ripe for a Supreme Court review. However, according to the news articles I've read, the Kansas attorney general does not plan to appeal, so the Supreme Court will have to wait for another day.

Little Brother

Sorry for the lack of posts. My younger brother is visiting me at college, so I've been spending time with him instead of you. Quality time is so important in today's environment, after all. Anyway, he leaves on Sunday. Expect light posting until then.

Things to look at until then:

Voter suppression amongst Katrina victims? Spencer Overton examines some odd machinations by FEMA.

Maggie Gallagher sums up her time on The VC. I'm a strong advocate for same-sex marriage, but she's a worthy foe. Eric Muller takes issue with at least one of the claims though.

Dan Solove takes on sploggers. They are, indeed, a menace to society (or at least, the blogosphere).

Kevin Drum plays at least partial defense on behalf of liberal hawks (like myself). The original attackers were Sam Rosenfeld and Matthew Yglesias in the American Prospect.

And if you're desparate for more: The First Carnival of the Femnists and Restless Mania both have plenty on the reading list.

Running About

I'm out of town for most of today picking my brother up at the airport. Posts, if any, won't be up until late tonight.

Perp Walk

An Arrest Warrant has just been issued for Tom DeLay, the Associated Press reports. This actually doesn't mean all that much--it's standard pre-trial procedure--but it does mean that DeLay will have to be fingerprinted and have a mug shot taken. I can't wait for that picture to show up on front pages everywhere.

Meanwhile, John Cole points to a separate Houston Chronicle story on a particular aspect of DeLay's defense strategy.

U.S. Rep. Tom DeLay's chief lawyer says he has no evidence that Travis County District Attorney Ronnie Earle participated in grand jury deliberations, despite having made that allegation in motions to dismiss DeLay's indictments.


But Houston attorney Dick DeGuerin said there have been enough public comments by grand jurors in news media reports to raise suspicions that Earle may have violated laws in his efforts to indict one of the most powerful Republican politicians in the nation.

DeGuerin is seeking access to grand jury records to develop possible evidence of misconduct on Earle's part. He has subpoenaed records from two of his assistant district attorneys related to their dealings with three grand juries that investigated DeLay.

The article claims that DeGuerin has an uphill battle ahead of him if he wishes to press this point--leading me to think this is a PR move.

In other scandal news, Kevin Drum finds a story that says Bush is pissed at Karl Rove...for not doing a good enough job on the cover-up.

An angry President Bush rebuked chief political guru Karl Rove two years ago for his role in the Valerie Plame affair, sources told the Daily News.

....[T]he President felt Rove and other members of the White House damage-control team did a clumsy job in their campaign to discredit Plame's husband, Joseph Wilson, the ex-diplomat who criticized Bush's claim that Saddam Hussein tried to buy weapons-grade uranium in Niger.

As Drum notes, if true this proves a connection between this whole scandal and President Bush. It also, as Hilzoy of Obsidian Wings argues, gives lie to Bush's claims that he is serious about finding the roots of the leak. If the story is true (and according to Josh Marshall, the reporter who wrote it has very deep links with the administration), Bush knew about the source of the leak and collaborated in the cover-up.

But while Rove may be getting heat, many folks say it's Cheney that's truly in trouble. Eric Muller, Andrew Sullivan, and Michael Froomkin all are positing that Cheney will either be indicted or, in Froomkin's case, be at least an "unindicted co-conspirator" (which is what Nixon was in the Watergate scandal).

And finally, what does it say about the current administration that I can write a full-length post dealing with separate scandal stories about the Vice President, the President's top aid, the House Majority Leader (emeritus), without ever quoting a site like The Daily Kos and while letting about a dozens "minor" scandal-ers off without mention (Scooter Libby, Bill Frist, and Roy Blunt all jump immediately to mind).

The culture of corruption makes blogging too easy.

Merry Fitzmas?

For the most part, I've been pretty scrupulous in avoiding the Plame scandal (My co-bloggers at TMV are doing an excellent job covering the developments, here for the latest post). Not because I don't think it's important, but because the legal issues fly way over my head and I don't like talking about indictments and crimes and punishments when I have no idea what the relevant laws are or whether they've been breached. And I'm especially reluctant to do it when the subjects of the investigation are people like Karl Rove, whom I despise. I don't trust my own objectivity.

I'm also inclined to agree with John Cole: if Fitzgerald doesn't hand down any indictments (of major figures?), a significant portion of the left will implode in a spontaneous fit of outrage. We need to be careful not to put the cart before the horse.

But there is one thing that is absolutely true, and Publius of Legal Fiction nails it. If (keep that "if" in mind) a senior Republican official committed perjury in the process of outing an undercover CIA agent, a lot of Democrats will be gleefully waving Republican quotes from the Clinton era about how incredibly awful a crime perjury is, impeachable offense, etc etc.. Republicans will undoubtedly dredge up Democratic quotes from the same era dismissing perjury as a minor offense. Publius warns us to avoid getting caught up in this moral equivalency game:

I don't want the dialogue to get mired in the Swamp of Moral Equivalence (where both sides are always equally right and wrong) that seems to be a permanent template that people like David Broder project on to the world. Though I realize what I'm about to say has a "heads I win, tails you lose" ring to it, I think it's true. Under the hypothetical above, I think the Republicans get it wrong both times. And the reason is context. Perjury - like all things - must be viewed in context. I'm not saying that perjury is good - it's never good. But the question is not whether it's good (it's not), it's whether it is sufficiently bad to warrant impeachment or indictments of senior administration officials. And that depends entirely on context.

Clinton's perjury involved a private sexual affair. That's not to excuse it - it's only to say that it doesn't rise to the level of impeachment given the circumstances. If Clinton had committed perjury in the context of Travelgate or Somalia, that's an entirely different matter. And I would have said impeach his ass. That's because it would be perjury in the context of his public duties and responsibilities. Again, not good - just not sufficiently bad for impeachment.

Libby's perjury (if it exists) was in the context of an official DOJ investigation into an outing of a CIA agent. There was nothing private about it. If Libby lied about an affair or private past drug use under oath, I don't think that would warrant an indictment. It would be bad, but it wouldn't justify prosecution. Lying to the FBI about this particular investigation, however, is completely different. This is an investigation into Libby's public action as a public official with knowledge gained as a result of his public authority. There's nothing private about it. Perjury in this context is indictable. The public action undermined national security no matter how sketchy or partisan Joe Wilson is.

It's the whole "which is worse, lying about sex or selling weapons to terrorists in Nicaragua" point. Again, I hesitate to prejudge prior to the indictments coming down. But on a moral level (which exists apart from the legal case), there is a significant qualitative difference between what Clinton did and what Libby (or Rove or Cheney) is accused of doing. We should not tolerate attempts to equate the two.

Amazing Grace

The VC and De Novo (among others) note this story about that Charlie Daniels classic, "The Devil Went Down to Georgia." Basically, the song was in a High School Band's marching arsenal until a certain Robert McLean complained about a presumed asymmetry. Mr. McLean claimed that if the song was about God (the specific example given was "Amazing Grace") the band director would be fired for breaching the Church/State wall. Chastised, the school pulled the piece.

Now, I consider myself a church/state fire-breather. I believe that both Lee v. Weisman and Santa Fe Ind. Sch. Dist. v. Doe were properly decided, believe that "under God" is unconstitutional in the pledge, and if I had my druthers we'd replace "In God We Trust" with our original motto, "E Pluribus Unum." When I was in 5th grade, a bunch of my friends and I expressed concern to our choir director that our winter performance was almost exclusively made up of Christmas songs (they added one Chanukah song for variety). So yeah, I take this stuff seriously.

I went to Walt Whitman High School, a very liberal school smack in the most liberal city (Bethesda) in a very liberal county (Montgomery County, Maryland). Support for the separation of Church and State is, I guarantee you, far, far higher than it is in Prince Williams County, Virginia.

My junior year, our band played what could only be described as a gorgeous rendition of "Amazing Grace" (Frank Tichelli, arr.). It was the warm-up piece for our competitions (HS band competitions feature one warm-up and two adjudicated pieces, plus one attempt at sight-reading). I had no protest whatsoever. In fact, I was thrilled to play such a wonderful song that just seemed to soar and fall with a rare intrinsic passion. That song was and remains one of my very favorites, and I still listen to it regularly on my iPod.

So basically, I think that Mr. McLean has a skewed perception of what us evil separationists actually advocate for. I have no quarrel with playing a song with religious roots, if it was chosen for its artistic merit (as this one clearly was), just as I had no problem studying the Bible as a piece of literature in my AP Literature class. I know of no person of any political persuasion who would argue differently. The moral of the story is that folks like McLean need to get their facts straight. They protest policies that nobody actually supports. If they could just look past the Pat Robertson style demonizations of the liberal atheists and secularists (or in my case, the Jews--we kind of get grouped in with secularists for the purposes of this debate) to what kind of educational policy we actually want, both sides might be able to find some common ground. I'm not saying there wouldn't be disagreements--there would be. But whether or not "Amazing Grace" should be performed would not be one of them.

Intimidation or Association?

Maggie Gallagher (guest-blogging at The Volokh Conspiracy) brings back up an old issue in the Massachusetts gay marriage debate. Some pro-gay marriage advocates are posting the names and addresses of people who have signed a petition against gay marriage online. This information is part of the public domain, but obviously this action makes it a lot more public. I first blogged on the topic here and much of the argument applies here (obviously, the problems I had with Ms. Barber's particular post should not be cross-applied to Ms. Gallagher's).

A few facts need to be gotten straight. Ms. Gallagher says that this is "a bid to discourage anyone from signing the petition." This isn't actually true--the stated goal of the organization is so that gay and gay-friendly voters know who their political opponents are in their neighbors so that they can foster a dialogue with them. Put this way, it seems far more benign--indeed, perhaps something positively beneficial to a democratic polity. Do we not want more political engagement and discussion between voters? Absent intimidation, I have difficulty seeing how this is a bad thing.

In any event, the particular problem Ms. Gallagher has is not with the list itself (she passes that without comment), but rather with a particular person who says that he would not hire anybody who's name is on the list. In other words, economic retaliation. She asks if this gives anybody "the creeps."

I'll admit that it does give me pause. But I also do not consider it to be an open-and-shut question. The idea that people can refuse to patronize those who support causes one finds to be abhorrent or immoral is pretty well-accepted in American politics. Focus on the Family and other such groups have called for boycotts of Ford, Disney, and Procter & Gamble, among other companies, because of perceived pro-gay policies. Many liberal groups have eschewed Nike products because of Sweatshop labor. And undoubtedly, the reverse is probably true as well: it seems clear that at least some people choose affirmatively to buy from a given company because s/he believe the company is aligned with his/her values. Is this any different? To some extent, economic revolt is one of society's greatest tools to rectify corporate and/or social injustices.

At the same time, like most tools it is one that can be used for good or evil. One can easily think of a southern shop owner in the 1960s, sympathetic to civil rights, but one who knew that if he served black customers, his white clientele would evaporate and go bankrupt. I won't pretend that this dilemma does not exist. It seems intractable to notate where ones rights as a free economic actor end and intimidation begins.

At the same time, one thing it clearly isn't is "terrorism," to quote the title from this wrong-headed and hyperbolic post. Worse, it seems to badly mischaracterize the pro-gay marriage position:

The battle for marriage is a battle for the future of our country. Those seeking homosexual marriage seek to hijack the family by reducing marriage to a sexual institution. Thus sex will have been exalted above the needs of children. When we refuse to honor marriage by making it a matter of sex, not love, we put children in harm's way. The exaltation of sex puts children in harm's way in one other manner as well: we destroy millions of them for the sake of unconstrained sexual activity through abortion.

For all the talk on how liberals are all about sex, sex, and more sex, it always seems to be the conservatives who bring it up. The liberal argument for gay marriage has two broad strokes to it. The first is that marriage is the uniting of two people who love each other and that it is unjust to exclude homosexuals from the institution. True, this unity probably will include sexuality, but like in any healthy marraige it will by no means be limited to it. The conservative obsession with gay sex seems more a product of a reflexive revulsion rather than any actual advocacy by marriage-equality advocates. The second, though, is expressly predicated on the best interests of children. This argument plays within the reality of children who are being raised by gay couples, and asks what is in their (the children's) best interests. The answer is clear: a stable environment where their parent's are in a socially sanctioned relationship and are backed by the state's full and unequivical support. It is clearly not that the state try to pretend these children exist, or worse yet, that these children should be stripped from their families in placed in a "better" heterosexual home. Such a belief is not "for the children," rather, it privileges a particular social ideology over the needs of individual children. To caricature the pro-equality movement as omitting the needs of children is a parody at best, and at worst it attacks the speck in gay couples' eyes while ignoring the log in its own.

New Debate Resource

Via the PrawfsBlawgs discussion of the debater/professor link, I came across a new site by Lindsay Harrison, former debater at Greenhill HS and currently a Law Lecturer at the University of Miami. Her site is designed to give HS policy debaters some guidance on the legal implications of the cases they're running, but I'm sure it can be used by debaters of all stripes (or indeed, anybody else).

One of her early posts focused on the limits of congressional power. There was one section that was confusing to me however:

There is an important limitation on legislation passed pursuant to Section 5 of the 14th Amendment. If the Supreme Court has held that a right does not exist, Section 5 cannot be the basis for a statute passed ostensibly to enforce such a right. The Supreme Court has stated, "Section 5 legislation reaching beyond the scope of § 1's actual guarantees must be an appropriate remedy for identified constitutional violations, not an attempt to substantively redefine the States' legal obligations." [Nevada Department of Human Resources v.] Hibbs, 538 U.S. 721, 728 (2003) (quotation omitted). By way of example, since the Supreme Court has stated that there is no right to be free from traffic stops made without probable cause, Congress could not pass legislation banning traffic stops made without probable cause since it lacks the authority to enforce a right that does not exist.

In comments, I asked the following (edited slightly for clarity):

At least as you're describing it, this seems to conflict with the precedent set by Geduldig v. Aiello, 417 U.S. 484 (1974) and how it was essentially overruled by statute via the 1978 Pregnancy Discrimination Act. If freedom from discrimination against status of pregnancy is not a right under the 14th amendment, then it seems that congress could not have passed the PDA making it a protected status. I can think of a few distinguishing characteristics between that case, and the example you give, but it seems that these events put a significant wrinkle in the claim you make.

This isn't an area of law I claim to know very well, but I was always under the impression that there is at least a limited amount of wiggle room between the "floor" of what the constitution absolutely requires, and the "ceiling" by which congress can expand those protections beyond the baseline. So Pregnancy is not an inherently protected class, but congress, pursuaint to its power under the 14th amendment, can make it one. Of course, there is almost definitely some outward limit to what congress can do under the 14th amendment. But turning back to Harrison's example, could congress respond to cases proclaiming that there is no right to be free of an unreasonable search and seizure in a traffic stop by (for example) passing a law claiming that automobiles are private spaces and thus are contained within the limitations of the 4th amendment? Or, that any search and seizure must be reasonably be expected to yield additional information/evidence about the act that provoked suspicion in the first place? Would these laws be unconstitutional exercises of congressional power (putting aside from whether they're wise policy)?

Explanation about why I'm foolish and ignorant would be much appreciated.