Pro Bono

Ahh, Justice Thomas

2004-06-18T18:41:10Z

As may have been expected, I was somewhat dissapointed by the ruling in the Newdow, Pledge of Allegiance case. For a moment, I believed that the Court would have the guts to make such a monumental decision, and finally grant those of us who do not adhere to the tenets of an orgnanized religion, equal rights.

Whatever the case, the Court did provide a very legitimate rationale for its exercise in Judicial Restraint. Nevertheless, I was fascinated by Justice Clarence Thomas' concurring opinion.

As everyone who has kept up with the news over the last year knows, the lower court decision came from the Ninth Circuit. Conservative attack dogs in the White House, on the Hill, on Faux News and elsewhere lambasted the decision as yet another example of Judicial activism by a biased court. For instance, President Bush, labeled the opinion as "ridiculous." Senator Hatch called it an "outrageous example of judicial activism and overreaching," and later, said that it "further place[d] the Ninth Circuit out of the mainstream of both American law and culture." He further stated that the decision "clearly demonstrates why the Supreme Court overturns this Circuit's opinions more often than any other Circuit."

Enter Clarence Thomes. Before he went on to argue that the Pledge is constitutional because the Establishment Clause should not apply to the states(a laughable pronouncement of itself), Thomas' opinion discusses how the issue should be resolved under the Court's current precedents. He examines Lee v. Weisman, 505 U.S. 577 (1992), which held that the Establishment Clause prohibits "coercive" state action relating to religion. After establishing this, Thomas "conclude[s] that, as a matter of our precedent [i.e., Lee v. Weisman], the Pledge policy is unconstitutional." Slip op. at 5. This does not present a problem for Thomas because he believes that Lee v. Weisman was wrongly decided. See id. Nonetheless, his analysis is extremely significant for our understanding of the lower court's decision to hold the Pledge unconstitutional.

This is so because many conservatives consistently praise Justice Thomas as the prototype of an ideal jurist. President Bush has said ad nauseam that he wants to fill the bench with more judges like Thomas. Hatch is another one of Thomas' greatest fans, and routinely champions him as an ideal "strict constructionist."

Lo and behold, the ideal conservative jurist concluded in Newdow that the Ninth Circuit was right. As anyone remotely familiar with our legal system knows, lower courts have absolutely no power to overrule Supreme Court precedent. The Court has also warned lower courts on repeated occasions that it should avoid attempting to guess whether certain Supreme Court precedents are no longer favored by the Court. Thus, if Supreme Court precedent dictates that a Court reach a particular outcome, lower courts must apply that precedent and arrive at that outcome. When the Supreme Court exercises its power of judicial review, it may decide to abandon its precedent, but if the lower court's decision was consistent with then-existing precedent, it would be disingenious to call the decision wrong, little own "ridiculous" or "outrageous." Furthermore, to follow Supreme Court precedent is not "out of the mainstream". At least according to Thomas, that's all the Ninth Circuit did in Newdow: follow existing Supreme Court precedent and properly strike down the Pledge on that basis.

Wiser words were never spoken...

2004-06-02T19:42:26Z

This is an excellent reflection by Leon Wieseltier of The New Republic. Few people have articulated my position as well as Mr. Wieseltier does in this piece.

"This is wartime, which is no time to be soft. The terrorists are tough, and so we must be tough. I am feeling tough, and toughly I feel also that too many children are being killed by the right side in this war, by my side, by Americans and by Israelis, in whose actions I am differently and willingly implicated. It is not all the same war, of course, unless one accepts the Bush administration's reduction of all our enemies into one enemy, a simplification better suited to sermons than strategies. The operation in Rafah was, I think, a foul mistake, but Israeli soldiers in Gaza are more obviously protecting Israel from terror than American soldiers in Iraq are protecting America from terror. Anyway, both armies are increasingly taken up with "force protection," which is not a justification of war but a consequence of war, and an ominous measure of the distance that separates them from their political objectives. But, as I say, I am suddenly haunted, and perhaps I should be ashamed of the suddenness, by the images of the dead children. Whatever the precise numbers of the dead Iraqi children in Mogr al-Deeb and the dead Palestinian children in Rafah, they are too high. ("How many dead children is too many is a question often asked by Palestinians and Israelis," James Bennet wrote in The New York Times, in the most ethically scrupulous piece I have read in a newspaper in years, "but it shows no hint of being resolved.") I was not taught by any of my traditions to look away from such developments. A war that asked for a quickening of conscience cannot now ask for a relaxing of it. I understand that this makes me no longer trustworthy among the "warriors" in town, but all I can say is that the injury to trust has been mutual."

"But what about the death of Israeli children at the hands of Palestinians? I resent the question for its assumption that sympathy is compromising, a moral deformation, a kind of infidelity; that decency should accept political direction; that you can be sickened by Palestinian children with guns or by Palestinian children in shrouds, but you cannot be sickened by both. Still, the question deserves an answer. Of course one's own dead mean more than the other's dead, but the other's dead cannot mean nothing. The primacy of the obligation to one's own, the natural solidarity of the same, the love that precedes principle: These fundamental attainments of human association should not be taken to suggest that moral consciousness is essentially tribal. Indeed, the knowledge of our own mystic bonds is what enables us to imagine the mystic bonds of others. Since we are particular in our affections and our affiliations, we can understand particularity of affection and affiliation in general. A general understanding of particularity: That is a fine definition of universalism, and there are no escapes from universalism, except willed ones."

"The quandaries of humaneness in wartime exploded into scandal in Israel last week, when Tommy Lapid, the minister of justice, reported on the radio that at a meeting of the Cabinet, at which he opposed the demolition of more Palestinian homes in Gaza, he had remarked that "I did think, when I saw a picture on the TV of an old woman on all fours in the ruins of her home looking under floor tiles for her medicines--I did think 'What would I say if it were my grandmother?'" Lapid's grandmother perished in the Holocaust, and so the denunciations began. Lapid, it was said, had compared Israelis to Nazis, which is to say, he had committed the mortal sin of moral equivalence. His words were certainly fierce, but they came from his heart and not from his head; and their origins in his heart do not embarrass them. Plainly Lapid does not believe that he sits in a government of Himmlers. He merely took pity on an old woman in a catastrophe because she reminded him of an old woman in a catastrophe. If no adversity can be likened to the Jewish adversity of the 1930s and 1940s, then all the instruction about the moral centrality of the Holocaust will have the perverse effect of stripping the Holocaust of its moral centrality, since it will no longer serve as a reference point in the analysis of contemporary evil. (The view that Omarska was not Auschwitz was partly responsible for the idleness of the Clinton administration during most of the Bosnian genocide.)"

"It is past time to apply a little mental pressure to the doctrine about "moral equivalence." Intelligent reflection about policy and history proceeds by analogies. These analogies are always made with respect to an attribute of an object or an event, never to the entirety of it. Otherwise things could be validly compared only to themselves, and we would learn nothing. Some analogies will be right and some will be wrong, but none will be perfect. The wrong ones must be criticized, but generally not as a form of blasphemy or treason. Most of the right-wing heresiologists who scream "moral equivalence" at the sight of an inconvenient similarity intend mainly to shore up their own thinking or to shut down the thinking of others. (They had no compunction about comparing Saddam to Stalin.) And what is compassion, if not an exercise in moral equivalence? The care that we feel for people other than ourselves is the result of regarding us all, the subjects of our concern and ourselves, under a single and highly general description, which is the description of the human. There is no way to pursue justice without believing in the moral equivalence of all men and women. The idea that small-town Americans can bring democracy to small-town Iraqis is also a version of this belief. But everyone has their preferred equivalences, just as everyone has their preferred corpses."

"There is a lot of talk of toughness in Washington now. After Abu Ghraib, conservatives are warning of a weakening of will. Sherman on war is frequently adduced. "War is a terrible thing," Brit Hume manfully declared the other day, "and terrible things happen in war on all sides." At the Palm they are agreeing that it is time to finish this thing. But it is the task of soldiers to finish this thing, and it is the task of citizens to consider this thing. This war was not just an act of will, it was also an act of mind: It was launched for reasons, arguments, values. If the conduct or the course of the war appears to defy those reasons, those arguments, or those values, there will be a necessary quarrel, and it will not be entirely a political quarrel, and it will be the task of officials to justify this thing. The theory of just war is not the theory that it's just war."

Harvard Law Profs

2004-06-02T12:33:04Z

This is something interesting I stumbled upon yesterday.
http://www.iraq-letter.com

Ah, the Texas Religious Right

2004-05-21T14:59:23Z

An interesting set of links sent to me by lefkoabby.
http://www.tfn.org
http://www.tfn.org/religiousright.htm

The British Conservatives...

2004-05-21T14:53:26Z

I found this article interesting. http://news.independent.co.uk/world/middle_east/story.jsp?story=522568
Nice to see conservatives who are not drunk on the cheap jingoism that permeates the American establishment.

So they're at it again

2004-05-07T17:17:05Z

http://www.biblicalrecorder.org/content/news/2004/5_4_2004/ne040504aproposed.shtml
The link above sounds somewhat frightening. Wonder is these people have any idea of what they're doing to their children.
The article reads:
"The Southern Baptist Convention (SBC) may consider a resolution next month urging parents to pull their children out of public schools and educate them either by home schooling or sending them to Christian private schools."

"The resolution urges all officers and members of the Southern Baptist Convention 'to remove their children from the government schools and see to it that they receive a thoroughly Christian education.'"

More on Kristi Leigh

2004-05-07T11:49:09Z

Here is perhaps Kristi's masterpiece (http://www.bgnews.com/vnews/display.v/ART/2004/04/14/407cbcab5daf3?in_archive=1). Now, I'm perfectly aware that there is a large contingent of ignoramuses at every campus, but like Professor Leiter says, teaching such archaic nonsense to kids should be criminal. And people wonder why Japan and other nations are beating us in Math and in the sciences. With notions like those expoused by Ms. Leigh, how can we even compete?

Another gem from the BG "Christian" News

2004-05-07T02:39:14Z

Kristi Leigh is at it again (http://www.bgnews.com/vnews/display.v/ART/2004/05/03/4095bc8cf26ff). Not only has she taught us that evolution is a myth, that the Bible is infallible, and that supporting John Kerry is tantamount to treason, but now she tells us that those of us who support a woman's right to choose are murderers. Of course, she provides us with numerous statistics, which she neglects to cite. She also starts with a blanket condemnation on abortion, and then goes on to frame her argument against partial birth abortions, which would be ok, had her thesis been that partial-birth abortion is wrong.

Apparently, torture is OK for Andrew Sullivan

2004-05-07T02:32:33Z

Check out this gem by Mr. Sullivan (http://www.andrewsullivan.com/index.php?dish_inc=archives/2004_04_25_dish_archive.html#108334842154821104).
Apparently, Mr. Sullivan has some inside scoop into what went on in the prison, since he dismissed the barbarous behavior that took place in there as "mock" torture.
UT Professor Brian Leiter does a great job of tearing him appart in this post (http://webapp.utexas.edu/blogs/archives/bleiter/001220.html)

Oh those principled conservatives

2004-05-07T01:33:26Z

So all week, conservatives have been up in arms, barking their usual nonsense about how liberals hate America, and how Bush is G-d. What sparked a particularly vicious campaign against those of us to the left of Hitler this week was this cartoon by Ted Rall (http://www.ucomics.com/rallcom/2004/05/03/). The outrage, OUTRAGE expressed by conservatives reached new levels though, when Bill "I'll yell at you and pretend like somehow screaming constitutes an argument, and by the way, illegal aliens are a threat to national security" O'Reilly and the usual furries of the right (National Review, Sean Hannity, Faux News) turned the ""controversy"" into an attack on the left for not condemning Mr. Rall.
As to whether the cartoon is tasteless, no doubt. However, as Alan Wirzbicki wrote in this (http://www.tnr.com/doc.mhtml?i=express&s=wirzbicki050604) New Republic article, the poison being spewed by the right is a tad pharisaical, since they have been notoriously quiet when one of their own loonies says something stupid (As in everytime Rush Limbaugh opens his mouth).

Ahh, Freedom

2004-05-07T01:20:24Z

I bet these Iraqis (http://www.salon.com/news/feature/2004/05/06/images/index.html) are sure glad we liberated them from that evil dictator. Just imagine a country without due process, where torture and abuse was a part of everyday life of prisoners.