Convictions: Slate's blog on legal issues

Obama and FISA

Hey a question: Why is Obama silent on the FISA agreement (unless I missed something)? He has spoken out about Guantanamo, most recently in favor of the Supreme Court's decision this month allowing the detainees there to file habeas appeals. So he's not utterly unwilling to talk about difficult questions of law and national security. Is the problem this time that the deal is being styled as a bipartisan agreement, and he doesn't want to step on it by saying otherwise? Plus just not worth the political capital? Any other less obvious explanations, or thoughts about what he should do?

UPDATE: Obama just put out a statement calling the bill "a marked improvement over last year's Protect America Act." More:

"It is not all that I would want. But given the legitimate threats we face, providing effective intelligence collection tools with appropriate safeguards is too important to delay..." 

So yes, bipartisan agreement, best we can do for now. Etc. 

Yet Another California Primary

While much of the country trains its eyes on South Dakota and Montana tomorrow, California voters also will go to the polls.

According to my 23-page "Official Voter Information Guide" and my 40-page "Sample Ballot and Voter Information Pamphlet," I'm to choose candidates for four partisan offices (ranging from Congress to county committee) and two nonpartisan offices (judge and county supervisor). Then I'm to ponder two competing state ballot propositions (Ban eminent domain? Or not?), and one county ballot measure (Taxes, anyone?). Missing, for the first quadrennial year in memory, is a choice among candidates for president. It's thus as good a time as any to ask whether moving the presidential primary up to Feb. 5 was a good idea.

For the GOP, it might've been a smart political move. Sen. John McCain trounced his competitors in California that day, and he clinched the nomination not long afterward. The Democrats are another story. Sen. Hillary Clinton won by eight points, but victory in California did not deliver her the nomination. What's more, in the interim four months, Californians changed their mind: Were the election held now, polling indicates, Sen. Barack Obama would carry California by 13 points. For Democrats at least, California's primary once again seems not to matter.

But forget politics for a moment. It cost at least $51 million to hold that early, extra primary. How many California taxpayers do you suppose would say it was worth the expense?

Perhaps a "Lawyer's Lawyer" or "Judge's Judge" for the High Court

It's disappointing that neither presumptive presidential nominee names John Paul Stevens as the type of justice whom he'd like to nominate to the U.S. Supreme Court.

This is not to say that Stevens, a Republican appointee, belongs in every pantheon of GOP judges. Nor is it to say that Stevens, at times now called the leader of the court's liberal wing, belongs in every Democratic pantheon. It is, rather, to recall that in 1975, a U.S. president did well to select a justice based on legal acumen, with little regard for ideological bent. Stevens was the quintessential post-Watergate appointee. The Chicago native had not been active in partisan politics. His credentials were impeccable. As I've detailed here, he: was awarded the Bronze Star for having helped decipher the Japanese code during World War II; graduated top of his class from Northwestern University School of Law; clerked for Justice Wiley B. Rutledge; had a respected career as a name partner in an antitrust litigation firm; was chief counsel of an investigation that uncovered corruption in Illinois' Supreme Court; and had served on the U.S. Court of Appeals for the 7th Circuit since 1970.  Sen. Charles H. Percy, R-Ill., reminded his peers at the 1975 nomination hearings that five years earlier he'd called Stevens "a lawyer's lawyer"; now, he assured them, Stevens was "a judge's judge."

Stevens' positions on issues played little role in his selection. Case in point: Even as Stevens' nomination was under consideration, states were petitioning to lift the death-penalty moratorium in place since Furman v. Georgia (1972). Yet neither President Gerald R. Ford nor any senator asked him his views on capital punishment, publicly or privately. (Stevens—who within months of joining the high court would cast the essential vote in Gregg to allow some revised death-penalty statutes—has said that at the time he did not know how he would answer the question.)

Some of Stevens' opinions have drawn the ire of Democrats on the left, others of Republicans on the right. Yet the Republican president who appointed him wrote in 2005:

...  I am prepared to allow history's judgment of my term in office to rest (if necessary, exclusively) on my nomination thirty years ago of Justice John Paul Stevens to the U.S. Supreme Court. I endorse his constitutional views on the secular character of the Establishment Clause and the Free Exercise Clause, on securing procedural safeguards in criminal case and on the constitution's broad grant of regulatory authority to Congress. I include as well my special admiration for his charming wit and sense of humor; as evidence in his dissent in the 1986 commerce clause case of Maine v. Taylor and United States, involving the constitutionality of a Maine statute that broadly restricted any interstate trade of Maine's minnows. In words perhaps somewhat less memorable th[an] "Shouting fire in a crowded theater," Justice Stevens wrote, "There is something fishy about this case."

He has served his nation well, at all times carrying out his judicial duties with dignity, intellect and without partisan political concerns. Justice Stevens has made me, and our fellow citizens, proud of my three decade old decision to appoint him to the Supreme Court. ...

One hopes that the person whom voters entrust with the filling of federal judicial vacancies will give priority not to "partisan political concerns," but rather to "dignity" and "intellect," ideally tempered with "charming wit and sense of humor."

("Continuing" disclaimers, interposed here but not always to be repeated: First, as previously noted here, I had the privilege of serving as a law clerk to Justice Stevens in OT 1988 and am at work on a biography of him. Second, it''s been my privilege to give his campaign volunteer advice on international law and human rights; however, no one has consulted me on judicial selection.)

Judge Bait

David, you ask whether Obama or Clinton will reply to McCain's attack on those beloved bugaboos, activist judges, and, if so, what they should say. I agree, Doug, that throwing the "activist" insult back at Alito and Roberts, as Howard Dean did, is lame. Based on the Obama and Clinton campaigns' responses to my own efforts to report on the candidates' views on appointing judges, and Charlie Savage's, I'd say that each of them if nominated will come up with a decent response. Many of the moving parts are there: concern about executive overreaching, Guantanamo, police power run amok, employee rights, women's rights, the promise of equal protection, a general sense that courts should at times be a refuge for the disadvantaged. What I fear is that the Democratic candidate won't figure out how to make the composition of the courts a rallying cry in the way that McCain is already doing. Republicans are just mostly better at this. Their voters get what's at stake. I'm not sure what it would take for Obama or Clinton to get the same kind of purchase. Thoughts?

In the Philadelphia debate last month, I liked the substance of Obama's answer about the D.C. guns case: He likened the relationship between gun regulation and the right to bear arms in the Second Amendment to zoning ordinances and the protection against takings in the Fifth Amendment—in other words, you can have a constitutional right, and the state can also set reasonable limits on that right. I was annoyed, though, that both he and Clinton made a point of not taking a position on the merits of the case. They said they hadn't read the briefs. Please. Whoever is nominated had better figure out a good response to the court's ruling on the D.C. gun ban when it comes down in June. Because whatever the ruling, it has the potential to make trouble for the Democratic candidate and to make hay for McCain.

Remembering Harold, Thinking About Barack

90 percent of white voters in Chicago, including ward bosses, turned their back on the Democratic Party. The atmosphere of the city became divisive and hostile in ways that would be difficult to imagine ... a quarter century later.

... It became a campaign of slurs, accusations, charges and counter-charges, and a contest dominated by the issue of race. ...

polling and race

A new poll that shows that 16 percent of Pennsylvania white voters who were asked whether “the race of candidate was important” said yes—80 percent saidno.   Of those who answered “yes” 54 percent said they’d support Obama in the general election—27 percent said they’d defect to McCain and 16percent said they’d stay home on election day and polish their guns, cuddle up with their bibles and nurse their bitterness. 

The New York Times says that this means “Obama’s race could be a problem in the general election.”  First reaction: a hearty “no duh”.   Butlet’s also unpack those poll results and ask what they really tell us.    Of course his race will repel, well, racist voters, of which no one doubts there are some.  But before we conclude that 16 percent of Pennsylvania whites are racists, notice that of the 16 percent who said race mattered, 54 would support Obama, which suggests that for some Obama’s race is a plus.  But what about those that won’t support him—about 7 percent?  All racists? Isn’t it at least possible that some won’t support him despite, rather than because of his race?

I tried this thought experiment: if asked whether the sex of the candidate is important, I would answer “yes” because I think all things being equal it would be great to have a woman President.  But sex is not enough to convince me to support Clinton over Obama—I support Obama despite his sex and because of his other virtues.  Truth be told, alot of people I know-- including a lot of feminists--are pretty sick of Hillary Clinton, Bill Clinton, even Chelsea, who, unlike her parents really hasn’t done anything to deserve their contempt, and they'd probably have it in for Socks the cat too if he turned up on TV.   Now I suppose some of them mightwell answer a poll: yes I think sex is important (I’d love to have a woman President--just not Hillary Clinton)---and no if Hillary is the nominee, by gum I’ll vote for McCain, or Ralph Nader, or stay home on election day and cuddle up with a cold martini and my warm, fuzzy Northern Californian sense of superiority.  And the Times would take that answer as evidence of voter sexism.  I imagine some Clinton supporters are beginning to feel equally irritated with Obama as this nasty campaign drags on.  So maybe a lot this polling data is evidence of the costs of a protracted fight for the nomination, rather than inveterate racism on the part of voters.  

Another piece of potentially misleading poll data: Clinton supporters are much more likely to defect to McCain or stay home if Obama is the nominee than Obama supporters are to defect or stay home if Clinton wins.  Isn’t is possible that this result is skewed by the fact that Clinton is losing and Obama looks like the inevitable nominee?  If my candidate is poised to win, I can afford to be magnanimous: “of course Hillary Clinton is a fine candidate and if she were to win (but of course she won’t) I’d support her energetically.”  But if my person is losing, I might start to get a tiny bit, well, bitter.  And maybe I’d even say things like “if that old school, politics-as-usual beltway insider steals the nomination in a brokered convention with her insider connections and underhanded politics—well, I’ll be dammed if I vote for her!  I’d rather have Attila the Hun (or JohnMcCain) than continue the corrupt Clinton dynasty!”  You haven’t heard alot of this because Obama is the presumptive nominee, but post-Pennsylvania you’re already hearing rumblings of defections to the Green party among Obama supporters should Clinton get the nomination.  

When Barry Became ... Baruch?

For your latest entry in the seemingly non-stop barrage of fawning Barack Obama major-media coverage, look no further than Newsweek's latest cover, which offers "When Barry Became Barack."

All very interesting, I suppose.  But while Newsweek's on the subject, I'd be interested to learn about "Baruch Obama."  That's the version that Eleanor Kerlow repeatedly used in Poisoned Ivy, her 1994 review of Harvard Law School's troubled late-1980s, early-1990s days.

Perhaps one of my Convictions colleagues -- or one of our readers -- can clear this up for me:  Did Barack actually go by "Baruch" at some point in time?  If so, why did he change it to "Barack"?  The Newsweek piece never mentions "Baruch."

I suspect that, in fact, he never used the name "Baruch," and that Kerlow made a mistake.  (In the 1990 volume of the Harvard Law Review, for example, he's listed as "Barack Obama.")  Then again, I've long thought that Kerlow's entire book was a mistake.
 

Was Obama a Law Professor?

Both the Clinton campaign and our comrades at Trailhead are complaining that Barack Obama was, in fact, never a law professor.

Well was he?  Sorry Trailhead, but it's not so clear-cut. To see why requires a quick visit through the mists and mysteries of academic culture.

Obama was a "senior lecturer" at Chicago.  When I was a lowly "visiting professor" at the University of Chicago, there were a number of "senior lecturers." Most were former professors who had other, usually very fancy jobs, and therefore taught less. The list included my old boss Judge Richard Posner, along with Judges Frank Easterbrook and Diane Wood, and I believe Dennis Hutchison. As the list suggests, being a senior lecturer isn't exactly like being the janitor. In fact, its sort of surprising that Chicago gave Obama that title.

To confuse matters further, the title "lecturer" is almost certainly borrowed from the English title, which refers to what Americans would call an "associate" or "assistant professor."  In that sense, the term "lecturer" can be sometimes be something of a synonym for "professor." One lectures, the other professes.

But what about the difference in rank or standing? There is a difference. At most schools, the term for the job Obama had is called "adjunct professor," or sometimes "visiting assistant professor" or "clinical professor." In one sense people with these jobs are law professors—in the sense that they profess the law. It is also true that students in the class call them "professor." Doubtless Obama's students called him "Professor Obama."

But on the other hand, an adjunct is not a full-time professor, though he or she might have been so once. Nor has the adjunct or visiting assistant professor or clinical professor gone through the exact same filters required to be a "tenure-track" professor. Yet they do go through some important filters.  You can't make a ham sandwich into a law professor.

So where does this lead us?  To my mind, it makes for a tempest in a teapot, for two reasons.

First, while academics do care an awful lot about these things, the details may matter much more to insiders than outsiders.  At the hospital, there are clerks, interns, residents, and actual attending doctors, but for simplicity's sake we call them all "doctor," even if they are doctors of various qualification. Similarly, I'm certainly not a blogger by occupation, but during this post I am.  If Obama had said he was a tenured professor, that would be an outright lie. But if a clinical or adjunct claims to be a law professor, fair enough.

Second and more crucially, context makes a difference.  When Obama was in the classroom, he was a law professor. But if he says, I spent these years as a law professor—that's not true. So its fair to say that while he was in the midst of teaching, Obama was a professor, even if he wasn't actually a professor by occupation.

By this standard, Obama's Web site puts it correctly: "he returned to Chicago to practice as a civil rights lawyer and teach constitutional law. And in the speeches, he ought say,

"I taught constitutional law, which means unlike the current president I actually respect the Constitution...."

Hitchens on Obama: Reactions?

Kenji, thanks for the props last week—looking forward to continuing our conversations here and elsewhere.  Since we basically agree on the Obama speech, I wonder what you thought of Christopher Hitchens' characteristically energetic denunciation of same.  As you can guess from my previous posts, I think he was wrong to argue that the speech was nothing more than a cynical political ploy—there were safer ways for Obama to deal with the Wright scandal and he chose one that was, by and large, courageous and honest. But do you think Hitchens did make a few fair points as to the poisonous relationship between race, religion and politics?   Such as:

1. Obama almost certainly did choose the “controversial” Rev. Wright in order to gain street cred in the poor and segregated black communities of Chicago.  Whether this was nothing more than cynical political calculation or a combination of that and a sincere and laudable desire to learn more about the mores and attitudes of a community he felt connected to by race but had had little exposure to is debatable (I think it’s the latter).  But having done so, he had to let a lot of crazy and incendiary talk slide and now it’s come back to haunt him: He can’t defend Wright because some of what Wright says is indefensible, and yet he won’t renounce Wright because the community that Wright (to some extent) represents is one that Obama genuinely cherishes and cares about. I don't blame Obama for this, but isn't it too bad that "street cred" in the black community comes from alliances with demagogues like Wright?
2. Isn’t Hitchens right to bemoan the tight interweaving of black political activism and religion, as epitomized by the so-called “liberation theology” of which Rev. Wright is a practitioner? Isn’t it bad for the black community and for civil rights struggles that so many black political leaders and intellectuals are either ministers or speak in the cadence and use the logic of religion (I’m thinking of Jesse Jackson, Al Sharpton and Michael Eric Dyson—all ministers—but also of people like Cornel West who one would think was a minister from listening to him, so completely has he mastered the charisma of the black preacher)?  Hasn’t being dazzled by what Max Weber would call the "charisma" of the preacher, the magical thinking of scriptural analogy and the habit of turning political conviction into  religious dogma kept black political thought mired in a destructive mind set of grievance and indignation? Yes, yes, I know people will rejoin: "what about the Reverend Martin Luther King Jr.?" but perhaps he was the exception that proves the rule? Or perhaps the desire to imitate MLK has led too many black leaders to exaggerate the most conspicuous, but perhaps not the most important, aspect of King’s persona—that the charismatic man of faith.
3. The upshot: It’s not race but religion that should worry us with respect to the Obama/ Wright connection. Obama is no racial demagogue, but demagoguery is an ever present risk for someone who relies as much as Obama does on charisma in direct imitation of the revivalist preacher. Obama is wise and intelligent enough to offer us sound policy based on reason and analysis, but he too often defaults to “inspiration” when faced with tough questions (this is the real importance of Hillary Clinton’s infamous “it takes a president” comments several weeks ago, and one of the few instances where I have agreed with her in a dispute with team Obama.)  If we are to realize the ambition that so many of us think Obama’s candidacy represents—not to get beyond race but to find a new and more productive way of engaging it—then don’t we need to move beyond religious, mystical and so-called “prophetic” approaches to what are, in the final analysis, social policy questions?  

Endorsing Obama

Today I endorse Barack Obama for president of the United States. I believe him to be a person of integrity, intelligence, and genuine good will. I take him at his word that he wants to move the nation beyond its religious and racial divides and that he wants to return the United States to that company of nations committed to human rights. I do not know if his earlier life experience is sufficient for the challenges of the presidency that lie ahead. I doubt we know this about any of the men or women we might select. It likely depends upon the serendipity of the events that cannot be foreseen. I do have confidence that the senator will cast his net widely in search of men and women of diverse, open-minded views and of superior intellectual qualities to assist him in the wide range of responsibilities that he must superintend. 

This endorsement may be of little note or consequence, except perhaps that it comes from an unlikely source: namely, a former constitutional legal counsel to two Republican presidents. The endorsement will likely supply no strategic advantage equivalent to that represented by the very helpful accolades the senator has received from many of high stature and accomplishment, including most recently, from Gov. Bill Richardson. Nevertheless, it is important to be said publicly in a public forum in order that it be understood. It is not arrived at without careful thought and some difficulty.

As a Republican, I strongly wish to preserve traditional marriage not as a suspicion or denigration of my homosexual friends but as recognition of the significance of the procreative family as a building block of society. As a Republican and as a Catholic, I believe life begins at conception, and it is important for every life to be given sustenance and encouragement. As a Republican, I strongly believe that the Supreme Court of the United States must be fully dedicated to the rule of law and to the employ of a consistent method of interpretation that keeps the court within its limited judicial role. As a Republican, I believe problems are best resolved closest to their source and that we should never arrogate to a higher level of government that which can be more effectively and efficiently resolved below. As a Republican and a constitutional lawyer, I believe religious freedom does not mean religious separation or mindless exclusion from the public square.

In various ways, Sen. Barack Obama and I may disagree on aspects of these important fundamentals, but I am convinced, based upon his public pronouncements and his personal writing, that on each of these questions he is not closed to understanding opposing points of view and, as best as it is humanly possible, he will respect and accommodate them. 

No doubt some of my friends will see this as a matter of party or intellectual treachery. I regret that, and I respect their disagreement. But they will readily agree that as Republicans, we are first Americans. As Americans, we must voice our concerns for the well-being of our nation without partisanship when decisions that have been made endanger the body politic. Our president has involved our nation in a military engagement without sufficient justification or a clear objective. In so doing, he has incurred both tragic loss of life and extraordinary debt jeopardizing the economy and the well-being of the average American citizen. In pursuit of these fatally flawed purposes, the office of the presidency, which it was once my privilege to defend in public office formally, has been distorted beyond its constitutional assignment. Today, I do no more than raise the defense of that important office anew, but as private citizen.

Sept. 11 and the radical Islamic ideology that it represents is a continuing threat to our safety, and the next president must have the honesty to recognize that it, as author Paul Berman has written, "draws on totalitarian inspirations from 20th-century Europe and with its double roots, religious and modern, perversely intertwined. ... wields a lot more power, intellectually speaking, then naïve observers might suppose." Sen. Obama needs to address this extremist movement with the same clarity and honesty with which he has addressed the topic of race in America. Effective criticism of the incumbent for diverting us from this task is a good start, but it is incomplete without a forthright outline of a commitment to undertake, with international partners, the formation of a worldwide entity that will track, detain, prosecute, convict, punish, and thereby stem radical Islam's threat to civil order. I await Sen. Obama's more extended thinking upon this vital subject as he accepts the nomination of his party and engages Sen. McCain in the general campaign discussion to come.

Obama & Teachable Moments

So Where Is Colin Powell?

The Republicans have a problem: John McCain.

Oh, he's a military hero and all, and despite a wife who seems to lurk over him—well, everywhere (Spitzer could have used such a mate)—he is our courageous, if economically unschooled, nominee. I say "our" since I am still counting myself a Republican so long as I'm not the last guy in the party who believes in a constitutionally limited government; the defense of all individual rights, civil and economic; and a balanced budget (ha, ha, ha, ha). It's not at all clear to me that McCain is for those things, but I know this: He is the only nominee capable of withstanding physical torture should the next president be taken hostage.

Of course, except for a handful of Navy Seals, few of the rest of us are up to the mental torture of Bush III (or is it WW III?) once we have deployed all those troops that we don't have a la south Korea all over the planet—for how long is it? A hundred years? A thousand?

A nominee whose main calling cards are making the Bush tax cuts permanent, chatting up the surge, and telling long-unemployed Michigan auto workers to forget about working ever again wins the vote of Steve Forbes, General Petraeus, and maybe Mitt Romney, who benefited from McCain's confession of economic dunceness but who would have every Mormon right to sit on his hands if he wants to.

The fact is average Americans never saw the tax cut (or if they did, they don't remember it), the surge works about as well as duct tape, and the economy could use someone who might actually be willing to reduce, not aggravate, the trillions already borrowed and spent for unfunded entitlements like Social Security and an unjust war. Of course, the IRS stimulus check is in the mail (well, once I fire up the TurboTax it will be), and it will no doubt arrive just in the nick of time to buy something frivolous, like a tank of gas.

Yes, the GOP is in great shape. As the defeat of the Republican offered up to succeed the eminently forgettable, one-time Majority Leader Dennis Hastert for the safest of safe House seats in the country revealed, the public can hardly wait to send an electoral thank you. Who wouldn't be grateful for an administration that sullied America's international standing, bungled us into a tragically costly war, and accomplished little other than the firing of its own U.S. attorneys without cause just to prove—well, hey, it's the president's constitutional prerogative to act foolishly.

So, Democrats, take your time. Call each other names, play the race card and the gender card. You're not missing anything important. The only chance the Republicans have of winning any district outside Orange County, Calif., (if that) is to track down Colin Powell. Not because he's black necessarily—though that's helpful when you're likely competing against a Lincoln-esque, Kennedy-esque, Martin Luther King Jr.-esque guy who could teach Benjamin Disraeli a thing or two about political speechifying. FYI, Geraldine Ferraro, it was Disraeli who pointed out that "eloquence is the child of knowledge." So, yes, Mrs. F, whatever was the point of your racial swipe, Obama would still have merited the public's attention. In any event, Powell is the best bet for VP since he had the presence of mind to keep the Persian Gulf War within its internationally imposed limit, to reject (or at least resist) virtually all of the overstated claims associated with the "war on terror" that put us on the wrong side of the Geneva Conventions, and, well, Bush effectively fired him—which, is surely the best credential of them all.

Good luck, Democrats, fielding your own dream team. We've got ours—well, half of it at least, if Alma Powell's cool with it. Maybe we could keep Cindy McCain from making those fascinating faces behind John long enough to make the case.