Convictions: Slate's blog on legal issues

What's Up, Doc? Why Is Jim Dobson Pretending Not To Understand Barack Obama?

Dr. Jim Dobson is a likeable man of wit and intelligence whom I have long admired for his support for the family.

Recently, however, he—and his national political director, Tom Minnery—undertook on Dobson's nationally syndicated radio program to engage in a hypercritical distortion of an influential and powerful presentation on faith (a "Call to Renewal") by Sen. Obama in 2006.

The radio criticism of Obama has a number of facets to it: Dr. Dobson apparently believes the United States is a Christian nation rather than a nation of many faiths. Historically and today, there are indeed more Christians in America than believers from other faith traditions, but what follows from this? Sen. Obama would suggest respect and appreciation for the influence of Christianity while also appreciating that there are people of other faiths, and of no faith, who are not to be treated as second-class citizens. Surely Dr. Dobson agrees, right? So what's the point?

Sen. Obama also quoted a number of Old and New Testament passages, including some dietary laws that governed the Israelites (like not eating shellfish) to make the obvious point that even if one strictly followed this dietary restriction as a matter of faith in one's own life, it could not simply be codified to bind people of other faith traditions—at least not without majority approval and a lot of angry shellfish eaters.

Dr. Dobson thinks this mocks the Bible, but it is merely underscoring that we have an obligation in the public square to speak in universal or accessible terms.

Obama also said Jesus' Sermon on the Mount is "a passage that is so radical that it's doubtful that our own Defense Department would survive its application." OK, I guess we could ask whether or not Jesus would think the purveyors of preemptive war to be "peacemakers," but again Dr. Dobson's point is more than a little obscure. And to assert that Obama "is dragging biblical understanding through the gutter," more than a little absurd.

Dr. Dobson also attacks Obama for his support for abortion rights. Like Dobson, I disagree with Sen. Obama here as well. But Dobson has mischaracterized the senator's view. Obama believes the woman herself must decide the abortion question. The senator acknowledges the decision to be a "profoundly moral one" and one he would advise a mother to make in favor of life and only after talking with her clergyman. In a meeting with me and other faith leaders a week or so ago, the senator reiterated that he is not "pro-abortion," and that he wants to "discourage" the practice by encouraging personal responsibility as well as enhancing adoption and comprehensive education that would reduce the number of unwanted pregnancies.

Could the senator do more? Sure, and he is open to reasoned argument. Dr. Dobson should make one. The senator's point: All of us as we speak across religious lines need arguments beyond what we accept as doctrinal teaching in our particular faith tradition. How Dr. Dobson misinterprets this to suggest that either Dobson or my religious view would be excluded from the public debate or that "we have no right to fight for what we believe" is a mystery.

There is nothing in Sen. Obama's speech to suggest any denigration of faith generally, Christianity specifically, or Dr. Dobson personally. Far from it. Indeed, the tone, content, and purpose of the speech were all quite the opposite and obviously so.

In Sen. Obama's speeches, it's not surprising to hear references to Lincoln and Martin Luther King and Frederick Douglass. Sen. Obama regularly touches my Catholic soul as well by showing a genuine knowledge of the work of Dorothy Day. In this, Obama tells his audiences that it is an "absurdity" to insist that morality be kept separate from public policy.

Don't misunderstand. Sen. Obama is not the equivalent of a televangelist, nor should he be. Having urged his liberal colleagues to see how much of American life is grounded in the Judeo-Christian tradition, Sen. Obama makes a request of conservatives like myself—namely, try to fully understand the liberal perspective on the separation of church and state. Not the infamous "wall of separation" that bizarrely mandates affirmative secularity disguised as neutrality, but the perspective, according to Obama, that separation more readily protects church from state than the opposite.

This sentiment, unlike the exclusionary view invented by the late Justice Hugo Black in the late 1940s, is as old and wise as Alexis de Tocqueville, who cautioned churches against aligning too closely with the state for fear of sacrificing "the future for the present." "By gaining a power to which it has no claim," Tocqueville observed, "[the church] risks its legitimate authority."

Sen. Obama's approach to faith is strong, but it is not exclusionary. He genuinely seeks to have his efforts bridge the religious and ideological divides on issues ranging from abortion to the importance of the American family to health care that respects the objections of conscientious religious believers to AIDS, climate change, and human rights.

Like all Americans, Dr. Dobson has every right to advocate public policy informed by his abiding Christian faith. I will be counting on him to continue to do so, but he will improve his chances of success by not pretending to lack the most basic understanding of democracy, which we all know he has, or by misreading and mischaracterizing the views of one of the country's most eloquent defenders of the importance of faith—maybe since George Washington opined that it was indispensable to the prosperity of the nation.

Following an Infirm Administration, Debating Health Care at the National Constitution Center

Last night at the National Constitution Center in Philadelphia, it was my pleasure to moderate the Sixth Annual Templeton Lecture on Economic Liberty. The lecture endowed by Dr. John Templeton was one of the first endowed programs of this magnificent center, and it has become one of Philadelphia's most looked-for events. Consequently, it is now a considerable distinction to be selected as a Templeton lecturer or respondent. The quality of the scholars who have been selected speaks for itself: Bruce Ackerman, Richard Epstein, Thomas Merrill, and Walter Dellinger, to name only a few. Moreover, because the Templeton understands "economic liberty" in the same broad manner as Madison defined "property"-"as a man is said to have a right to his property, he may be equally said to have a property in his rights"-the Templeton platform has been devoted to topics ranging from campaign finance reform and free speech, to immigration and human work, to eminent domain and the domain of human liberty, to, last evening, health care and its responsible management.

Somewhat unusually, the recent program consisted of two public figures, former HHS Secretary Tommy Thompson, now Akin, Gump's health care expert, and former Senate Majority Leader Tom Daschle who is in a similar spot for Alston & Bird. Both men know their stuff. The program give-and-take was lively, as this summary in Daily Kos suggests, and the intelligent audience-a good portion from co-sponsor AARP-had many questions, including about the respective positions of Sens. McCain and Obama, for whom Thompson and Daschle became unofficial stand-ins (Daschle is, in fact, national co-chair of the Obama campaign).

McCain's idea of separating health insurance from the employment relationship in favor of individually acquired coverage is controversial. It is intended to impose cost discipline through consumer bargaining, though as pointed out last evening, it represents a sharp break from the status quo and might well leave families paying more out of pocket. (Thompson challenged that premise, but earlier in the program, it had been recited without dispute that the average annual health cost for a family of four-insurance, co-pays, etc.-ranges from $8,200 to $11,500 per year, which is significantly more than McCain's proposed tax credit of $5,000. In any event, Thompson thought the McCain plan needed to incorporate insurance pools to really net competitive pricing from insurance companies.) By contrast, Obama's program relies heavily on Internet technology efficiencies and a government accountability model mandating sufficient levels of coverage and the inclusion of uninsured children and those with pre-existing conditions.

Whatever the theoretical merits of McCain's or Obama's models, it rather quickly became clear that the audience's dissatisfaction with the existing health care system was framing the response. Americans like to proclaim or think they have the best health care system in the world, but the life expectancy, preventable disease, and infant mortality stats do not bear that out. Americans endure higher costs than any other comparable industrialized nation and lower quality by WHO standards-lower, at least, than the 36 countries that rank above the United States. This poor report card seemed to work more against the McCain position, at least last evening. Not even the energetic presentation of Tommy Thompson could rescue it-in part, one suspects, because McCain's plan leaves the uninsured, well, uninsured and those with pre-existing conditions uninsured (absent some government guarantee that is not well-explained).

McCain no doubt wants desperately to separate himself from the incumbent, but the missed opportunities of the Bush administration were clearly being visited upon his ideas. Both presenters portrayed an infirm health system, the symptoms of which were hardly a surprise, such as the long-standing, but now impending, Medicare bankruptcy. And in the private sector, Thompson illustrated the ripple effect of uncontrolled costs emphasizing how the cost of health care undermined the market positions of major U.S. industries. For example, Thompson compared GM's $1,725 per car health care burden with Toyota's $225.

While many difficult questions were answered, there seemed to be no answer for what accounted for the lack of accomplishment during the Bush years, and the nominee of his party is just stuck with it. It seems the sitting president did little to take up, for example, Thompson's own innovative wellness and electronic prescription ideas when he was HHS secretary, let alone contemplate the progressive measures being suggested by Daschle and Obama for portable and readily accessible health records and an elimination of the paperwork of a highly fractionated insurance market that allows providers to charge wildly different prices for the same procedure.

Daschle and Thompson were in strong agreement on the need to build wellness into schools and businesses, but they pointed out, if one eats in virtually any public school cafeteria today, you will be served the food groups that feed obesity and diabetes and other diseases. Aristotle's conception of a healthy body and a healthy mind, it's not. And in another obvious category of improving health and lowering costs, Thompson at one point also wondered aloud why nicotine was not regulated by the FDA.

The lecture underscored that economic liberty depends upon more than a free market when the market is ill-informed or shaped by policies more in defense of the economic preserves of the well-fixed-be they drug, tobacco, or health insurance companies-than the average family. Whatever accounts for the failed legacy of the incumbent, everyone is now paying through health care costs that are rising four times faster than wages.

Despite all this, few left the evening without hope, since onstage was tangible proof of good minds, freed of partisan label and special interests, working together to address a nettlesome problem. It was a reminder of the plaque that the Gipper used to regularly point to on his desk: "There is no limit to what a man can do or where he can go, if he doesn't mind who gets the credit."

That was indeed a healthy reminder.

Two Courts, One Law

I'll get to Phil's McCain-Obama-and-the-courts question in a sec. But I first have to say that while I'm generally a big fan of David Savage's at the L.A. Times, there are parts of this latest piece that sound like they could've been written by Rush Limbaugh.

The McCain-Obama comments reflect a long-standing divide between conservatives and liberals on the role of the courts. Reduced to the simplest terms, conservatives say judges should follow the law, and liberals say they should ensure that justice is done.

Ugh. I appreciate the need to get this complex, age-old debate boiled down to within a journalistic word limit, but there's gotta be a better way. Of course both conservatives and liberals say judges should follow the law. Beyond that, and within the descriptive limits of the stereotyped terms, "conservatives" say that "following the law" means using the fewest possible interpretive clues to figure out what the law means (for statutes, text only; for the Constitution, at best, a guess at what the framers meant in 1789), and as a matter of practice they fill in any remaining areas of uncertainty (of which there are inevitably some in some cases) with broad ideological preferences—about the power of the government, the role of the courts, and the kind of society in which they want to live. "Liberals" believe "following the law" means looking to as many interpretive clues as might reasonably shed light on the text (legislative or other kinds of history, text and textual context, the purpose of the document, etc.). As a matter of practice, they, too, may fill in remaining areas of uncertainty with an equal and opposite set of broad baseline principles, including the principle that judges get to say what the law means.

There's no way around the problem of laws that are sometimes unclear. I think on balance the "liberal" approach to interpretation has a better chance at preserving the idea of "law" as having some sensible and identifiable meaning. But the reality also remains that vast swaths of the law are clear for both liberals and conservatives; that's why, among other things, not every dispute in the United States ends up in court. For those that do, there's also no way around the reality that judges will have baseline structural preferences and preferences about what they think "justice" would require in any given case. But I wouldn't deny (as many conservatives and some liberals do) that such preferences can matter, at least at the margins of judicial decision-making. That's why judges are politically appointed. That's why presidential appointments matter.

So what can we glean about McCain and Obama so far? I'd say that apart from some reassurance that the one reflects most conservative baseline assumptions, and that the other reflects most liberal baseline assumptions, not much. But to my colleagues who've watched this longer than I, I'd be pleased to stand corrected here.

Abortion and Same-Sex Marriage As None of the Government's Business

While it was Kelly's thesis that it is activist and not in keeping with principles of federalism for state judges to trump the people, it was professor Weisberg's nice counterpoint that as in many claims of activism, whether one favors the state court over the people (Gov. Schwarzenegger's position in opposition to an anticipated November initiative that would overturn the same-sex marriage case) or vice versa depends on whose ox is being gored. It is not really possible to say that one is more in keeping with federalism than another.

But that is not to say that the distinction between the state and the people is unimportant. The phrasing in the 10^th Amendment speaks of the "reserved [unenumerated power] to the states respectively, or to the people" for a reason. The phraseology illustrates that while the concept of federalism is typically associated with what is federal  (viz. national) vs. what is local, the separate reservation in the 10^th Amendment allows the people of a state to deny a delegation of their unenumerated reserved power to their state legislature. Indeed, the people may decide that no government entity—including themselves by initiative or referendum—should take a position on a given subject that has been so reserved.

This avenue for complete neutrality presents a possible common ground to defuse some of the rancor over abortion and same-sex marriage. Theoretically, it would be possible to declare both subjects as presently beyond the competence of government.

The California Supreme Court catches a bit of a glimmer of the potential for using neutrality as a reconciling device when it suggests that the California assembly might decide not to ascribe the sacred word marriage to any state license whether given to a heterosexual or homosexual couple. Rather, California state licenses might be called "civil unions" or "enduring unions," with the sacred affirmation of marriage being entirely reserved to nongovernmental actors to allocate in accordance with particular their religious traditions. Were California to follow that course, religious bodies would presumably then have less basis to argue that the civil law was affirming or honoring a relationship that cuts deeply against the revealed beliefs of those religions.

The same could be true with regard to abortion. Here, the formulation would mean that if Roe were overturned, the matter would not be returned to the states or to the people in their initiative/referenda legislative capacity but would be reserved to the people solely within their own church and family structures. It would be within those nongovernmental communities that the people would decide whether abortion is a matter of individual liberty or the taking of human life. Obviously, as a practical matter, this would leave the abortion decision to a woman and her doctor as Roe itself does, but critically, the law would not then be giving any civil-law approval or constitutional edge favoring one side over the other. 

Would such reallocation of authority to the people outside of government be more accommodating of those who presently raise religious objection to abortion? Obviously, it does not put the full force of law behind stopping or curtailing the practice, but then it does not endorse it, either. The law would be entirely silent, leaving the people in their individually and voluntarily chosen communities to decide matters for themselves in accordance with their respective beliefs. That this would not be mere window dressing may be illustrated in the Catholic Church's own teaching, which, of course, is strongly against abortion. While the most preferred Catholic position is a construction of the Constitution that affirms the unalienable right to life for all persons from conception onward in the Declaration of Independence, the specific instruction of the church merely calls for the practice not to be "recognized and respected by civil society and the political authority," and admonishes its own believers to not exercise their free will to procure (or aid the procurement) of abortion.

The possibility of reserving sensitive questions over which the culture is deeply divided, and indeed, with respect to which there is insufficient consensus to justify either a positive law or judicial determination has more salience and potential for bridging even profound disagreement than the obscure 1791 formulation of states rights in the 10th Amendment may at first reveal.

A Tale of Two Courts

David Savage writes in today's Los Angeles Times about the deep divide between the Obama and McCain camps over what kind of judges should be appointed to serve on federal courts, including the Supreme Court. Savage boils down the issue to this:

Sen. McCain (R-Ariz.), in a speech two weeks ago, echoed the views of conservatives who say "judicial activism" is the central problem facing the judiciary. He called it the "common and systematic abuse ... by an elite group ... we entrust with judicial power." On Thursday, he criticized the California Supreme Court for giving gays and lesbians the right to marry, saying he doesn't "believe judges should be making these decisions."

Sen. Obama (D-Ill.) said he was most concerned about a conservative court that tilted to the side of "the powerful against the powerless," and to corporations and the government against individuals. "What's truly elitist is to appoint judges who will protect the powerful and leave ordinary Americans to fend for themselves," he said in response to McCain.

* * *

The McCain-Obama comments reflect a long-standing divide between conservatives and liberals on the role of the courts. Reduced to the simplest terms, conservatives say judges should follow the law, and liberals say they should ensure that justice is done.

The McCain campaign is sure to make this a major issue in its campaign because this issue plays well before the conservative base. The tried-and-true Rove formula calls for running on God, gays, and guns, and all three issues strongly correlate with the appointment of conservative judges. Given the California Supreme Court decision last week on gay marriage, the current U.S. Supreme Court case on gun control, and continuing skirmishes over the role of God in government and public life, the GOP will likely turn to this page in the playbook once again. Such is the conclusion of Jeff Toobin in this week's New Yorker: "McCain plans to continue, and perhaps even accelerate, George W. Bush’s conservative counter-revolution at the Supreme Court."

So what about the Democrats?  (Disclosure: I support the Obama campaign and have advised it on defense and veterans issues.) I think there may be an opportunity here. Sen. John McCain is an honorable public servant and war hero with great appeal to moderates and independents. To counter that, the Democratic party needs to remind voters that a McCain administration will appoint staunchly Republican judges of the type appointed during the last three Republican administrations. This issue should energize the Democrat base, and it should also give moderates pause before they side with McCain.

It's like the old quip my grandfather used to tell me: "There are only two kinds of judges: Republicans and Democrats."  Whom do you want on the bench?

Barack Obama Needs the Wright Stuff To Win—Don't Disown, Embrace Him!

But the perfect is the enemy of the good. Barack Obama's campaign has been all about showing us how to do good in an imperfect world. How to accept each other as we are, not how we would like each other to be.

Personally, I don't believe U.S. government is killing my African-American brothers by spreading a virulent disease. Nor would I characterize the actions of the United States in Iraq, which I think deeply flawed, as terrorist. But then, I have never felt entirely comfortable with any of the explanations for the murders of John F. Kennedy or Robert Kennedy or Martin Luther King Jr. Some things are unexplained in life, and sometimes, despite all evidence, we indulge our own narratives to see us through. In her thoughtful column in the Los Angeles Times, Rosa Brooks reminds us that there are significant numbers of black Americans who, because of the Tuskegee experiments where largely black sharecroppers served as human guinea pigs in public health experimentation, do not immediately see the Rev. Wright's comments about AIDS as paranoia.

Even if Sen. Obama is not prepared to rationalize the Rev. Wright's suspicions, he should forgive him. Yes, it's important to talk about the economy and health care and ending the war, but without reconciliation with the Rev. Wright, the campaign will be off-kilter. The Obama campaign has always been more about the Christian ethic of love of neighbor than wonkish policy. Whatever voice Jeremiah Wright used in his sermons, he successfully strengthened that aspect of Barack Obama's gifted personality. To disown or to separate from Jeremiah Wright is to distance himself from himself. It can't be done, and in any event, it's politically unwise.

Some have written that Jeremiah Wright is the missing father figure in Sen. Obama's life. I'm no psychologist, but that makes sense. I know at times I have embarrassed my sons. My father, who is nearing 86 and has all the endearing and frustrating qualities of that age, at times has embarrassed me. It is what fathers and sons do. Barack Obama might have known that if his Kenyan father had not left too soon. More importantly, it would have been easier for him to recognize that only the mean-spirited or small-minded seeking political advantage would insist upon a division between father and son.

No, Sen. Obama, you don't have to distance yourself from your lifelong friend to be elected president of the United States. It is wrong for any of us to ask you to do so, and it would be a mistake for you to yield. So, call him up. Invite him out to Indiana. Kick back together with the Hoosiers, and if you have the time, stop in to see another Father—Theodore Hesburgh, C.S.C., Notre Dame's president emeritus and inspirational civil rights leader.  The three of you are sharing a historic journey, and there's no good reason for anyone to sit at the back of the bus or be thrown under it.

John McCain's Democracy in America - The few, the wealthy, the well-connected

Once again, the Times is implicitly questioning Senator McCain's bona fides as a political reformer. Supposedly after his near-death ethics experience in the "Keating five" Savings and Loan scandal, the Senator has been careful to avoid according special privileges to the well-heeled.  There seem to have been exceptions, however, including a notable one for well-heeled "friend" who has also arranged for donations to Senator McCain's presidential campaign in excess of $250,000.

Today's profile by David Kirkpatrick and Jim Rutenberg of wealthy Arizona real estate developer Donald R. Diamond reveals that Senator McCain has been pivotal to Mr. Diamond's real estate success, much of it achieved by exchanging properties with the United States on very favorable terms. 

It appears Senator McCain helped Mr. Diamond acquire, among other properties, Fort Ord, the former military base in the extraordinarily beautiful Monterey California.  When the deal ran into trouble, Senator McCain assigned an aide who facilitated matters with the Pentagon and sped things up.  Mr. Diamond described by Senator McCain as "a close personal friend" was of course grateful -- well, to a point. 

Referring to the help he received from Senator McCain and about which he bragged to local officials would allow them to "get through some of the red tape in dealing with the Army," Mr. Diamond felt more or less entitled.  In a startling, yet revealing, comment Mr. Diamond contended  "I think that is what Congress people are supposed to do for constituents. When you have a big, significant businessman like myself, why wouldn't you want to help move things along?  What else would they do?  They waste so much time with legislation."

In the various endorsements of Mr. Diamond used to intervene with other government officials, John McCain calls his friend -- and it would seem modern-day commentator on American democracy -- "a citizen's, citizen" -- yeah, he's a veritable Alexis de Tocqueville. 

So here's hoping that Pennsylvania will not be afraid to nominate someone for president of the United States who at least promises with some plausibility to roil the existing order that passes itself off as congressional ethics.

Resolving Obama's paradox – constructively meeting the abortion “clash of absolutes”

There is a paradox at the heart of Senator Obama's presidential campaign. Senator Obama is campaigning one way -- as a figure who transcends the old, tired politics of division -- and has voted almost entirely the other -- as reliable, down the line member of his party.   This anomaly has been noted by the New York Times and one can expect that it will be regularly pointed out by Senator McCain. Asked to explain, Candidate Obama -- with some plausibility -- has pointed out that many of the votes he has been asked to cast in the U.S. Senate are deliberately ideological, aimed more at political statement than practical resolution. 

Fair enough, but perhaps now that the Senator's campaign has run somewhat aground thanks to a "bitter" verbal misstep and the heckling of George Stephanopoulos and Charlie Gibson, it might be wise, especially on the eve of the Pennsylvania primary, for the prospective President Obama to supply a good-faith illustration of how he might achieve common ground and build bridges over the religious and cultural divides of the past.

There is no better topic for doing this than abortion.  This is a topic of profound religious and philosophical divide, properly called by my friend Laurence Tribe as a "clash of absolutes."   

For the last several days the leader of the Catholic Church has extolled his flock in America and all Americans "to set aside all division" to work for a conception of freedom built upon the truth of the human person.  The Jewish community in America is once again keeping Passover commemorating the great Exodus of the Israelites from slavery to freedom.  In the arc of these historic and traditional Judaic Christian moments both celebrating authentic freedom could there possibly be a better time for Senator Obama to demonstrate a tangible manifestation of the unity of purpose upon which he has been standing throughout the campaign?

How?

By embracing a proposal equivalent to what the leaders of his own counsel of advisors have already endorsed: the so-called 95-10 legislation. This idea satisfies neither side of an absolutist clash completely - how could it and still be common ground? - yet  it strives for a 95% reduction in abortion over 10 years, not by legal mandate that would contradict the Senator's belief that this decision must remain that of the mother, but instead by ensuring that no woman faces such decision without having already had the benefit of responsible information about abstinence and contraception. In the event of a pregnancy, the proposal would supply objective information about fetal development, the proper guidance of a parent if the prospective mother is a minor, and the public's assurance of necessary economic support to carry the pregnancy to term, and if it be the mother's informed choice, the adoption of her child.

No doubt the Senator will want to put his own distinctive mark on such legislation, but for now, it is the general endorsement of the idea that is important -- since it conveys what many in the Keystone State and beyond truly wish to believe; namely, that behind the eloquence of leadership is a person prepared to lead - yes -- even before "day one."

Rx for OLC: Pursue Integrity not Investigation

I am not sure I disagree with the implications of colleague Phillip Carter's note about the next administration undertaking a war crimes investigation of the incumbent, but were the question put directly:  Should President Obama launch yet another legal investigation into the alleged war crimes of the Bush administration?

The answer -- absent clear evidence of a criminal intent to subvert the law well beyond what even the most severe Bush critic alleges -- is "no."   That seems to be the answer Senator Obama wisely supplied.

Far more important for the United States is having a president who will observe the scope of the presidential office, the rule of law as written, and who reaffirms what the international community has already said - water-boarding is torture.  In a perfect world, it would've been nice if the Office of Legal Counsel had said all that at the beginning, but it didn't, and it is perfectly understandable why an intelligent man like Attorney General Mukasey has wanted to get on to other things. All of the prudence in the world commends the next president to do the same.  

Of course, it is important to ensure that objective legal advice will again be given the next Attorney General by the Office of Legal Counsel, and the best way to ensure that is by appointing a person of independence and stature to that position.  Harvard's Laurence Tribe, Columbia's Thomas Merrill, Northwestern's John McGinnis, and UC Davis' Vik Amar readily come to mind from academic ranks.  And there are multiple possibilities from among appellate judges: Merrick Garland of the D.C. Circuit and Mike McConnell of the Tenth Circuit just to give two obvious examples appointed by different presidents of different political parties.

The point is: integrity is not a partisan commodity and the giving of objective legal advice more often than not depends upon that quality being freely mixed with a level of maturity that has seen history repeat itself and the courage, when warranted, to say "no."

Obama fires a shot across the bow of the Bush administration's lawyers

Will Bunch, columnist for the Philadelphia Inquirer, asked Sen. Barack Obama about the question we've been batting around for the last week or two on Convictions -- whether some Bush administration officials might face a criminal investigation or prosecution for ordering certain detention and interrogation practices.  Sen. Obama has made his opposition to torture and the administration's detention regime a recurring point in his campaign speeches.  (Full disclosure: I am a volunteer adviser for the Obama campaign on defense and veterans policy.) However, this response to Mr. Blunt goes further:

What I would want to do is to have my Justice Department and my Attorney General immediately review the information that's already there and to find out are there inquiries that need to be pursued. I can't prejudge that because we don't have access to all the material right now. I think that you are right, if crimes have been committed, they should be investigated. You're also right that I would not want my first term consumed by what was perceived on the part of Republicans as a partisan witch hunt because I think we've got too many problems we've got to solve.  [emphasis added]

So this is an area where I would want to exercise judgment -- I would want to find out directly from my Attorney General -- having pursued, having looked at what's out there right now -- are there possibilities of genuine crimes as opposed to really bad policies. And I think it's important-- one of the things we've got to figure out in our political culture generally is distinguishing betyween really dumb policies and policies that rise to the level of criminal activity. You know, I often get questions about impeachment at town hall meetings and I've said that is not something I think would be fruitful to pursue because I think that impeachment is something that should be reserved for exceptional circumstances. Now, if I found out that there were high officials who knowingly, consciously broke existing laws, engaged in coverups of those crimes with knowledge forefront, then I think a basic principle of our Constitution is nobody above the law -- and I think that's roughly how I would look at it.

Can a Federalist Society Guy Be for Obama?

This seems to be on the mind of many of my friends since my endorsement of the senator.

Frankly, given the nonpartisan, always-open-to-debate approach of the society, I saw no necessary incongruity, but then, sometimes I have been known to miss entire cities looking at a map.

So here's the thing: Taking Sen. Obama's expressed desire to transcend petty party division to be entirely genuine (please accept that as a given and don't wrestle with the premise) and believing the values of separated powers and federalist structure to be essential toward achieving good outcomes in matters of foreign policy, economy, and the environment (same stipulation), why is it not possible to see these timeless principles as being of service to either Democrat or Republican? The question has special relevance for folks like me who in the past operated on the largely mistaken supposition that there would be overlap between Federalist Society values and a Republican political administration.

Not wanting to be snookered again, I await your counsel.

Home Rule in the Breach

David, your point about home rule is well taken, but even in cities with broad home rule, local authority is often quite limited.

Two examples from the city that knows how (but still can’t, as it happens).

California cities have very broad home-rule powers—among the most generous in the nation. But the courts often interpret ambiguous state laws as implicitly preempting local ordinances. San Francisco voters passed a handgun ban by initiative in 2005. Unlike Washington, D.C., which is at least getting the chance to test its ban against the Second Amendment, San Francisco just has its ban invalidated in state court as preempted by a state firearms regulation. The state laws the court relied on are actually silent as to local regulation—they’re laws that establish statewide regulation of firearms. The courts found that these laws occupied the field and implicitly prohibited the local regulation.

Another example of aggressive preemption hobbling local government: San Francisco’s attempt to provide for universal health care for local residents has run into federal preemption problems in court. The city wants to extend its existing coverage provided through SF General Hospital and a network of local clinics to all residents who don’t already have coverage. But it also wants to be sure employers don’t just drop health insurance and dump their employees on the city in response. So it’s added a mandate that most employers either offer coverage or pay a fee to contribute to the city health-care plan. This is not a regulation of employee benefits—the city isn’t making anyone provide health-care benefits. It’s just making those who don’t offer coverage to pay the fee (or better put, it’s making every business pay a fee for local health care and exempting those business that provide coverage for their employees) in order to ward off the free-rider problem. But this initiative is being challenged as preempted by ERISA, which regulates employee benefits and preempts almost any state of local law in the field. Is San Francisco’s ordinance even within the field of employee benefits, or is it just a fee levied on local businesses (which the city is otherwise entitled to levy) coupled with a city-provided service? A broad interpretation of field preemption will kill the city’s health-care initiative.

Now you might think the city has no business trying to mandate universal health care—it’s not really a local issue, right? But consider this: The city already operates a large health-care system because, as a consolidated city and county, it’s responsible for public health care for the indigent. The city discovered that it spent a fortune treating poor people in the ER of SF General for conditions that really should be treated cheaply in routine doctor's-office visits. So it set up a network of free neighborhood clinics to provide preventative and routine care in order to keep those people out of the ER. At this point, the city already has a health-care network in place. But what about people who have jobs and aren’t indigent but who still don’t have health care? When they get really sick, they wind up at SF General, too. So the city wants to cover them in the clinics. This led to the push for universal health care and to the contested employer fees.

I’m not at all certain this is good policy. It’s possible that, as the small-business owners and restaurant owners argue, the mandate will put people out of business and make everyone worse off. Restaurants have gotten together and decided to tack a fee onto every bill to cover the costs of the new health coverage. They want the consumer to know why they’re paying extra for their five-course tasting menu and wine flight. Maybe the extra costs will drive away consumers and put the marginal restaurant out of business. Maybe it will even destroy the foodie culture here and consign us all to have to eat at Red Lobster and Outback. But isn’t this just the kind of local effect we should expect a city to be sensitive to and adjust to? And mightn’t it be a good idea to let a local government experiment with universal health care to give Hillary Clinton and Barack Obama some actual information to work with when they argue about it?

These aren’t home-rule issues, but they are examples of how we hobble our cities from doing what cities ought to do—experiment with new policy ideas that might not occur to legislators or bureaucrats at the state or national level—or might not get past the special interests there.

Not Just Women's Work

Sen. Clinton may or may not be the next Democratic nominee for president. But her candidacy represents to many voters a positive statement in favor of gender equality.

I've cast my lot with Sen. Obama, but if he fails to cross the finish line, I bet it will have less to do with the overheated statements of his pastor or his bowling than with the fact that—however much the Clintons together generate suspicion or should be eliminated on the democratic (small “d”) “no second rides” theory—Mrs. Clinton is still, well, a woman and more than a few citizens (myself included) think having a woman president long overdue. 

Why overdue? 

Because, frankly, I have three daughters among my five children and it would be salutary if they would be less subject than my wife’s generation to arbitrary gender-based impediments as they reach toward their aspirations. For more than 30 years now, I’ve watched highly talented women law graduates face the same overly rigid law-firm and corporate structure that somehow pretends not to know that many (not all) women have a desire to both practice their chosen profession and parent. I’m all for the free market, but the market has been treating families as if they were a free good, and just as “the tragedy of the commons” despoils the commonly held air and water, corporate elevation of its bottom line over family well-being shortchanges the family—and us all.

Men, of course, too often silently shrug this off as if it were none of their business, perhaps even thinking again silently (since openly would yield a cold stare or litigation) that gender-based distinctions are not arbitrary impediments at all but simply the rational economic calculus applied. Of course, we men know it's darn hard to do parenting and professional work at the same time, which is, of course, why most of us don’t attempt it. So it came as no surprise when, lo and behold, a recent Canadian study by Jean E. Wallace and Marisa C. Young proved the obvious that women with children are less “productive” than women without children.

As I indicate in additional commentary on this study, and as Emily Bazelon has noted, “productive” is in scare quotes because the study measured productivity in accordance with the dreaded billable hour, which persists in making law practice a modern form of well-paid slavery, rather than service—which, digressing just for a moment, the practice might have a chance of becoming yet again were flat or contingent fees the more standard means of law-firm accounting. In any event, apart from the severe damage the billable hour does to the sheer enjoyment of legal work, it is not a perfect measure of productivity, since obviously some people can get a lot more done in a small amount of time than others, and women are often superb multi-taskers.

Confirming as it does that we men are not particularly helpful when it comes to making the family-work balance possible, it’s tempting to hide the Canadian study under the rug. That's not to say that husbands don't lend moral support to our personal spouse's effort at not forgetting those grueling years of law, business or medical training as she is singing the alphabet song for the 15th time or is driven to the edge by the "see and say" machine. Some men—especially guests on Oprah—do this and more. It's just that—if we're honest—kicking doors open for women generally at the office has not been high on our to-do list—what with foreign outsourcing and all. In fact, according to the Canadians, men may be giving family-friendly benefits a bad name. Things like flexible hours were found to have a negative impact on a man's productivity while working at odd hours didn't affect a woman's productivity one whit. Men, it seems, tend to use these flexible hours to goof off, while women use them to finish drafting the merger agreement while waiting interminably in the doctor's waiting room.  Second, men with babies at home work overtime. Go figure. Third, even when men attempt to do more of the parenting, they're not that very good at it. The study found that men who have a stay-at-home partner get a lot done, whereas women who have stay-at-home husbands don't receive any particular advantage from it.

None of this is particularly encouraging for those of us who believe the workplace—still dominated by men, of course—has a special obligation to accommodate the needs of the family as an irreplaceable cultural building block. Indeed, one “unexpected”—though perhaps not surprising—finding given the above pattern is that women without children work the hardest of all, including men. It's bad enough that men are seemingly misusing the flex benefits; just think what the male senior partners will rationally deduce when the word gets out that the hardest worker bee in the hive is the childless queen. To quote the researchers themselves, the obvious way for women “to balance work and family is to reduce their family commitments, which may be accomplished by having fewer or no children.” Yes, that's one way, but it is also a prescription for cultural suicide.

We like to think work is for the benefit of men and women and not the other way around. At least, the last time I checked this was the right order of things. The reverse proposition—that we live to rack up billable hours—would be bleak indeed, though that is pretty much the life of a young associate at any major law firm in the United States. To have a chance at getting our priorities straight, I suggest some changes in employment practices, nondiscrimination, and tax law, but would being family-friendly violate Equal Protection? 

Possibly to a justice who doesn’t think child-rearing an important or compelling state interest. But who’s in that group? Surely Justices Ginsburg and liberal-thinkers like John Paul Stevens and David Souter wouldn’t want the law to be construed in a way that narrows a woman’s choices. Since under existing law pregnancy (or “pre-birth child care”) cannot be a basis of discrimination against women, why should care delivered “post-birth”?  It would make no sense for either Justice Thomas, who flirts with natural law, or Justice Kennedy, who is often its modern source—worrying as he does about the ability of folks to “define their own place in the universe”—to object to giving a public tax subsidy or telling public employers not to discriminate against working mothers. If the limitation extended to private employers, Justice Thomas might drop a footnote telling us again how much he misses the original understanding of the commerce clause, but he has let similar measures go through biting his stare decisis tongue. Those in the law-as-umpire (“just callin’ em as we see ‘em”) group, the chief justice and Justices Scalia and Alito, might raise a judicially-restrained eyebrow at these innovations, but it would be perverse if those who oppose an unfettered abortion right were to go out of their way not to understand the relevant customs and traditions that underlie the “liberty” of the Fifth and 14th Amendments as family-friendly. And if these measures promote a more “active liberty”—and expanding opportunities for women does, one would think (though I confess the whole “active liberty” concept still is a tad elusive)—Justice Breyer should also be satisfied. In any event, any law is certain to be drafted gender-neutrally, using terminology like "primary caregiver" (though everyone will know that category will still mostly be women).

The presidential candidates like to talk about change. It is time we explore new employment relationships that don’t reflect 19th-century attitudes that undervalue home and family to the detriment of us all.

Which Is Worse? Racism, or Sexism, or Asking Which Is Worse?

Plenty of wags have compared Hillary Clinton to a zombie or the Terminator—she claws her way back to her feet and limps on when any mere mortal would be long dead. But the real reanimated corpse of this election is the contemptible question of whether sexism is worse than racism. This crude and divisive inquiry will not die, no matter how many times it is doused with the holy water of common decency and no matter how many times the wooden stake of good sense is driven through its heart. So I’m under no illusions that my attempt here will prove to be a magic bullet.

Judith Shulevitz’s post on "XX Factor" last week was the latest version of this question that I’ve seen (and far from the worst), but this question has become almost obligatory in any race- or gender-conscious discussion of the election. For instance, in her New York Times op ed, Gloria Steinem insists, “I’m not advocating a competition for who has it toughest,” but a scant four paragraphs earlier she declared a winner, asserting that “gender is probably the most restricting force in American life, whether the question is who must be in the kitchen or who could be in the White House.”

I want to convince you that the racism vs. sexism query is one that should never be posed much less dignified with whatever could possibly pass for an answer. It’s conceptualism at its nadir. (It has all of the futility of kids arguing over whether Superman or Spider Man would win in a fight, but with none of the charm.) Worse yet, the question, by its nature, invites the most base form of competition for victim status: Like a bad cultural studies conference where the most subordinated of them all gets to speak first, this question suggests that the people who labor under the more severe type of identity-based oppression somehow, by virtue of their victimization alone, deserve special priority—first question after the keynote, first grab at the coffee and Danish table, maybe even first dibs on our political loyalties.

And while wallowing in the worst of 1990s-style identity politics, it ignores one of the few valuable lessons 1990s identity politics had to teach: namely that social identities are situational and not essential, that how and whether race and gender are important depends on context. Typically when the question has been put, it has evoked some thin one-sided evidence as to why one or the other is worse for Clinton or Obama (Clinton has to put on makeup and worry about the color of her pantsuits/ Obama can’t go on the attack without sounding like a black thug), augmented by a long litany of gender or race grievances that don’t have much to do with the narrow question at hand (slavery, Jim Crow, job discrimination, racial profiling, segregation, the Tuskegee experiment, the Jena 6/ rape, pornography, anti-abortionists, sexual harassment, prostitution, the glass ceiling, lazy and macho husbands, dry cleaners who charge more for blouses than shirts), the sheer tedious length of which is meant to overwhelm all arguments to the contrary, leaving only one conclusion: Sexism (or racism) is worse.

Of course it’s true, as Shulevitz asserts, that “a woman seeking higher office faces obstacles that a man does not face, no matter what the color of her skin.” But this doesn’t suggest that gender is the greater obstacle generally—only that gender poses distinctive obstacles. It’s also true that a black person seeking higher office faces obstacles that a white person doesn’t face, no matter his gender. If (for God knows what reason) we were to take seriously the narrow question—who has it worse, Clinton because of sexism or Obama because of racism?—we’d need to consider all of the racially or gender-specific disadvantages each has experienced and somehow try to compare them.

And there are distinctive advantages to be considered as well: Geraldine Ferraro was right to say that Obama wouldn’t be a front-runner but for his race, but right only in the most banal sense: Candidates for high office are elected, in large part, based on the voter’s perception of their “character,” and that perception is derived in large part from biography; Obama’s includes the fact that he’s black. And of course many people are especially excited about the prospect of a black president. So, too, Hillary Clinton would not be a front-runner but for her gender—plenty of people are excited about her candidacy primarily because of the prospect of a female president. There’s nothing scandalous about this—race and gender are salient in our society, and the symbolism is relevant in a politician. But how could we know “which is worse?” without somehow performing this complex and context-specific cost/benefit analysis? No one has even tried to make such an accounting—and for good reasons—but that’s what one would need to do in order to make any sense of the “which is the greater obstacle” question. 

This leads me to suspect that when people ask whether sexism or racism is the greater obstacle in the context of Clinton vs. Obama, what they really care about is whether sexism or racism is the bigger social problem (since the evidence cited so often goes to the latter inquiry and not to the former) and therefore whether it would do more good or be more profound, in some overall cosmic sense of “good” or “profound,” to have a female as opposed to a black president. It’s understandable that someone who has spent her life fighting sexism, like Ms. Steinem or Ms. Ferraro, would find it tempting to pose (and answer) this question. But this is precisely the kind of unresolvable moral question, shot through with self-interest, that epitomizes the worst of late 20th-century identity politics. That kind of question has ruined more potentially successful activist organizations, academic conferences, college seminars, and political movements than all of the agents provocateurs J. Edgar Hoover could have imagined in his soggiest of wet dreams. And it will ruin the Democrats as well if we let it.

One last thing: If it seems that right now the people most insistently posing this unfortunate question are feminists, that’s simply because Hillary Clinton is losing. If Obama were losing, you can be sure you would hear similar carping from racial activists. (Close your eyes, and you can almost hear it now: “The white power structure will always protect its own in the end. …”  “Race is still the greatest oppressive force. …” etc., etc.)

Obama: Law Professor or Resume Fluffer?

According to our colleagues at Trailhead the Clinton campaign has questioned whether Obama lied when he claimed to be a law professor at U of Chicago.   Formally his position was Senior Lecturer. In a way this is almost too silly to merit a response: when you’re taking aclass from someone employed by a university you almost certainly call that person “Professor.”  Q. E. D.   But it is true that law schools make scores of fine distinctions between faculty members, in part because university rules reserve certain titles for people who have passed faculty committees that evaluate scholarly merit.  So technically, the Clinton folks are right— “Senior Lecturer” is not synonymous with “Professor,” and inside the ivory tower people care a lot about such titles, just as in the ancien regimes of Europe a Viscount who claimed to a Count was a fraud; a Baronet who passed himself off as a Baron would have been taken to task by those with a legitimate claim to that status.

During my twelve years at Stanford (first as an Assistant, then an Associate, then a Full and now a Chaired Professor of Law if you care about such things) many Adjunct Faculty, Visiting Lecturers, Senior Lecturers, Teaching Fellows and Scholars-in-Residence have referred to themselves as “Professors” when dealing with the media and the general public and no one, to my knowledge, has thought that honor or honesty required us to correct the technical misimpression. 

The Endorsement Follows the Covenant—Why I Endorse Sen. Obama

Douglas W. Kmiec

So many kind and thoughtful people have taken the time to write or comment upon my recent endorsement of Sen. Barack Obama for president asking for additional explanation that it has become impossible to answer each individually, so with great respect, but far less time than I would like, please accept these supplemental thoughts as an expression of gratitude to all who wrote in agreement or disagreement, and with civility.

As many know, I was first attracted to government by Ronald Reagan, who lives in my memory as a great leader and an inspiring communicator. Sen. Obama has these gifts as well, but of course, mere rhetorical flourish without defensible substance would be worth little. Is there more to Sen. Obama? I believe there is. President Reagan often said his proudest achievement was making America feel good about itself again. Sen. Obama is trying to give us genuine reason—good reason—to have that feeling again. Indeed, he may have already partially succeeded. Having taught several generations of students over 35 years, I have never seen young people more alive and interested in the political process. His witness is encouraging them to look to civic and public involvement as a way of finding their own purpose—a purpose that they intuitively want to be in service to others.

How else do I perceive Sen. Obama restoring the American ideal?

By saying to the world, we intend to hold ourselves to international standards of decency and justice. (I note that Sen. McCain picked up part of this theme yesterday in a speech here in Los Angeles—good for him. Sen. Obama's influence is resonating well beyond me and my students.)

By honoring the memory of those who died on 9/11 (and the 4,000 men and women of our armed forces who have perished in Iraq) with the honest assessment that our national safety is not enhanced by fighting the wrong war at a tremendous cost of life and resources.

By saying to the average working person in America, your work matters, and it will be compensated at a family wage; your retirement will be safeguarded from corporate fraud and manipulation—be it by cooking the books a la  Enron or the legal abuses of a shadow banking system that by profligate lending practice has precipitated the mortgage meltdown and the bail-out of Bear-Stearns.

By recognizing that we create our own immigration problem by failing to fix an immigration system that neither safeguards national security nor permits genuine unmet labor needs to be filled on unexploited terms.

By saying to a nation of consumers that happiness is not found in mindless consumption and that we have an obligation to better stewardship of the environment and to develop alternative sources of energy—for our own health and well-being and that of our children and grandchildren—and, of course, as a matter of national security as well.

By saying to his fellow candidates for president in both parties, let's end the name-calling; the politics of division based on race—understanding that we have had enough of black anger pitted against white resentment, that we indeed must say to those who seek office on those divisive terms, "Not this time."  It is better for us to understand that failing schools are failures for all concerned—whether you're the student graduating without knowing how to make change or the customer who is shorted.

By understanding the significance of faith as a source of meaning in the life of our nation and our individual lives; that religion and freedom depend on each other (something, by the way, both the senator and Mitt Romney said just in slightly different phraseology). Freedom is enhanced by the "habits of the heart" and virtue nourished by religion, and at the same time, religious faith only matters if it is not coerced. None of us is entitled to have our personal faith enacted into law, but we can expect the law to accommodate, not grudgingly at the point of a lawsuit, but empathetically as a matter of good will and common sense all religious practices that do not endanger the public order.

And should he be elected president, by saying to his co-equal branches, I understand this is a constitutional system, and I have an obligation to use power wisely and not look for every opportunity to expand it or use it foolishly, as in the dismissal of my own U.S. attorneys with little thought and even less justification.

Will the election of Sen. Obama accomplish all these things?

Perhaps not, but like the Gipper used to say to us: If not us, who? If not now, when? Many of our allies are watching us, and while we should never pursue a course to win the approval of others, when the course we have followed proves not to be true, we must change direction if we are to have any hope of reaching our proper destination. The sentiment reported by those who live and work in capitals around the globe is that Sen. Obama's successful campaign to date, in itself, has signaled to the world that—well, to pick the Reagan phrase again—it is "morning in America" because

•       the America they knew as an ally committed to peace and freedom and not hazy, ill-conceived forms of pre-emptive war is back;
•       the America they thought was the gold standard for the rule of law is back;
•       the America that could recognize its own shortcomings, be it racial or gender inequality, and right itself was back.

I am not quite as prepared as the readers of the foreign press to be quite this rejoicing this early. This is especially true since I disagree with Sen. Obama, the partisan elected official, in many, many ways. But his having campaigned not as a partisan but as a unifying force, my endorsement is best seen as a public acceptance and friendly reminder of the covenant his campaign is making. Like a restriction running with the land, the endorsement follows the covenant. If the covenant is breached in campaign or in office, the endorsement will be renounced more loudly than it was given. In short, I am counting on Sen. Obama the president to keep Sen. Obama the presidential candidate's word—namely, that he intends to pursue policies aimed at transcending the politics of hate and division. 

That, for example, on abortion, which I know to be a grave moral evil and that I understand Sen. Obama to see as a matter already legally settled, that he will nonetheless work to reduce the incidence of the practice by what he has stressed—the importance of families and churches conveying the importance of "having young people show reverence toward sexuality and intimacy."

That on the definition of family, we will not undermine the significance of responsible procreation for the long-term health of the nation even as we work to end invidious discrimination and misunderstanding toward homosexuals in our society.

That when there are calls for government involvement, the first thought won't be the bigger the government the better, but rather the very thoughtful questions Sen. Obama has already raised during his campaign such as: When should government intervene? And what can it usefully do? 

And especially because—in his precampaign partisan role—he voted against two individuals who I know to be the very definition of "impartial judge" that we will work together to keep politics out of the courts; that just as some states have successfully developed merit systems for judicial appointments, both parties will stop seeing the judicial branch as the ideal placement for those who will advance our favored political philosophy regardless of the law as written.

Let me end this already too long explanation by saying my endorsement is not about animosity toward John McCain or Hillary Clinton. I was a McCain backer in 2000, and as the father of five, including three daughters who are pursuing professional lives, I respect Mrs. Clinton's desire to break the glass ceiling.

It's just that their public moments—like mine—are past. John McCain's understanding of warfare and national security is an extension of "the greatest generation," but it is no disrespect to say that just as "shock and awe" did not prevail in Iraq, Sen. McCain's conceptions of military deployment are ill-suited to meeting the far more nimble and insidious nature of the present terrorist threat. Again, his most recent address suggesting a "league of democracies," while not without its difficulties in terms of running the risk again of only dealing with our friends, shows a glimmer of the independently minded, pre-Bush McCain, and I urge him to continue to develop thoughts that take him beyond outworn models of base deployments that we cannot afford and that in some circumstances provoke more than secure.

And Mrs. Clinton is to me not advantaged, but disadvantaged, by her previous time in the White House. The ranks of capable, intelligent, well-prepared women who could serve as president are long and deep. In all seriousness, and with apologies to the Adams and Bush families, as I understand democracy, we ought not to return to those quarters someone who—directly or indirectly—will merely attract the ideas and personnel of the past.

Taking a leave of absence from my GOP home was not my first choice. As Ronald Reagan said, he didn't leave the Democratic Party; it left him. I feel the GOP left me. Some do not see the trajectory from Romney to Obama as plainly as I do, and it would take an equally long letter to elaborate, and I will spare every reader who made it this far that burden. Let me just say, Gov. Romney well understood the significance of family, faith, and fiscal responsibility. In too many ways, the present administration was the most fiscally irresponsible of our lifetime, prayed aloud but ignored the teachings of faith to seek peace and pursue war only when warranted and, in so doing, jeopardized the well-being of every family in America. I love my family, my faith, and my country too much to entrust the next four years to any candidate who would stay upon a course that has been so badly misdirected.

My gratitude, again, to all who have written.  

Constitutional, Yes, but a Really Bad Idea

Two thoughts in response to Marty's provocative questions:

First, I think having a relatively independent DNI probably is manageable constitutionally. We already have, after all, an FBI director who is appointed for a term of years that does not coincide with that of the appointing president. While the DNI is higher up the food chain, I suspect the office could be structured so as to look pretty similar. The more formal one makes the DNI's independence—in other words, the harder his removal is for the president to effectuate—the more difficult the question becomes. But at a minimum, it should be possible to create an office with a term of years and a strong norm against removal for reasons other than misconduct.

All of which seems to me a perfectly dreadful idea, and I'm frankly a little bewildered by its attraction for the people most offended by the intelligence policies of the current administration. After all, having a long-term occupant of that office would ensure continuity across administrations in an area in which there is simply no political consensus as to the proper posture of the executive branch. If you imagine it existing now, it would allow Bush to appoint Obama's DNI. The reason the FBI director's term of years is defensible is that Americans basically agree on the apolitical nature of the investigative function and want to insulate it from the shifting political winds. A similar consensus,  I suppose, exists for much intelligence collection and analysis. But no such consensus exists for a lot of intelligence policy over which the DNI has charge. Would we really want Bush to appoint Obama's point person on warrantless wiretapping, renditions, and interrogation? 

An Obama administration would presumably handle a lot of things within the DNI's purview differently from a Bush administration. And the Republican who runs against Obama four years from now, should Obama win in the fall, would presumably criticize and promise to change Obama's intelligence policies. If we make the DNI's position apolitical, we greatly reduce the capacity for political debate over and change in intelligence policy.

On "Endorsing Obama"

Doug,

In a word: Welcome.

Passports, Privacy & Politics

CNN says the blogosphere is abuzz with news of the Obama passport story, so I feel somehow obliged to make it true.  Trouble is, I'd always figured most lawyers should have way more questions than answers at such an early point in such a story.  So what could we possibly have to contribute? 

 For what it's worth, here's what I got.  According to the U.S. State Department website, the Passport Services division maintains U.S. passport records for passports issued from 1925 to the present. "These records normally consist of applications for United States passports and supporting evidence of United States citizenship, and are protected by the Privacy Act of 1974. Passport records do not include evidence of travel such as entrance/exit stamps, visas, residence permits, etc., since this information is entered into the passport book after it is issue[d]."  On the law, violation of the relevant Privacy Act provisions (like willful disclosure of protected agency records) can subject the violator (provided he/she's an "officer or employee of an agency") to criminal fines up to $5,000, or a civil action by the individual.  So assuming contractors count as agency employees within the meaning of the statute (and I wonder whether there's case law here), I could imagine finding statutory violations under these circumstances.  And boy does it look bad. 

The thing is, while I'm certainly pleased such personal records are protected from disclosure, and am appalled at the thought of politically motivated snooping, I don't get what could be of such great interest in a passport file to warrant the trouble?  It seems hard to picture someone successfully using Obama's Social Security number in any kind of identity theft scheme.  Does someone seriously think he might be lying about his citizenship?  Or does "imprudent [read cat-killing] curiosity" by poorly trained contractors ring true? 

Anyone care to buzz back?

Obama on Wright and Race