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Nixon and Clinton and Bush

Sunday, December 14th, 2003

It is hard to find three more personally different individuals that served as president than Richard Nixon, Bill Clinton, and George W. Bush. Nixon was a deeply flawed individual whose sense of inferiority over his humble beginnings fueled not only the healthy ambition of the poor, but paranoia about the conspiracies of political opponents. Whereas Nixon’s humble origins formed a morose and taciturn adult, Clinton’s wrong-side-of-the-tracks childhood gave rise to a gregarious adult perhaps a little too concerned about what others thought of him. Bush was the child of privilege, a frat brother who was not as serious as he should have been as a young adult and apparently had a substance abuse problem. Nonetheless, all of them managed to exercise sufficient self discipline and political astuteness to become president. There are many angry and driven individuals who have not become president. Nixon did. There are many “bubbas” who have not avoided dissipation by their appetites and not risen to the presidency. Clinton did. There are many earnest children with impeccable political pedigrees who have gotten close, but have never become president. Ask Al Gore about whether familial destiny is sufficient?

These three presidents share a political fate that distinguishes them from many others who served in the office. They seem to have incited a deep and visceral animosity on the part of their political adversaries. This hostility is not born of the normal competitiveness of political differences. Jimmy Carter had the same political ideology as Clinton, but even people who opposed Carter politically never seemed to detest him with the fiery intensity devoted to Clinton. Reagan was not only a Conservative, but he was “Mr. Conservative.” No person who is more Conservative could have been elected. The Left opposed him politically, even tried to ridicule him, but few apparently hated him with the visceral distaste associated with Nixon and now Bush.

Indeed, from an objective standpoint this animosity seems oddly misplaced. As flawed as Nixon was and in spite of illegal activities, he was about as Liberal in his policies as his political opponents could have hoped for. He proposed and helped pass environmental legislation like the Clean Air and Water Acts and instituted the Environmental Protection Agency. Nixon bowed to organized labor and helped create the Occupational Safety and Health Administration (OSHA). He expanded affirmative action into the racial spoils system so many Liberals now embrace. In foreign policy, Nixon, the great anti-communist, began a rapprochement with the Soviet Union with the policy of Detente. Who else could have recognized Communist China and forged a more open relationship with it? Even, or should I say especially, the French appreciated Nixon.

Clinton also was about as Conservative as Republicans could have hoped for from a Democrat. Clinton was a “New Democrat” who quickly realized the futility of national health care legislation, declared the age of big government over, and to the anger of true-believing Liberals, joined with a Republican Congress to pass successful welfare reform.

Bush too is a moderate man by nature who generally seeks to get along. He has allowed Congress to spend like the metaphorical drunken sailor, yielded to Edward Kennedy on education reform, and just passed the largest expansion of Medicare in a generation. He is hardly engaged in a Conservative counter revolution.

Unfortunately for all three, they pressed the wrong political buttons and were forever cast in irrationally ideological terms. Early in his career as a young Congressman on the House Un-American Activities Committee, Nixon investigated the Liberal Alger Hiss. Hiss was ultimately jailed for perjury. Many on the Left believed that Nixon created evidence to help convict Hiss. For this belief, Nixon was never forgiven. The fact that the poised and debonair Hiss was brought down by the uppity Congressman from California added a touch of Left-wing elitism to the anti-Nixon fervor. To cast this in contemporary terms, just imagine the rancor if even years from now Kenneth Starr, the special counsel appointed to investigate the Clintons, runs for political office.

Clinton and Bush, fairly or unfairly, earned animosity by the circumstances of their election. Clinton was elected in a plurality caused by the third party candidacy of Ross Perot who siphoned votes primarily from the incumbent President George Bush (Bush I). For some, Clinton really did not have legitimacy. Similarly, George W. Bush was narrowly elected earning the requisite number of electoral votes while not achieving a popular majority. Add to this the intervention of both the Florida and US Supreme Courts, and the animosity level intensified. Over the last three years, the sore of Bush hatred has festered.

Ironically, the hatred of Nixon, Clinton, and Bush by their political adversaries shield them from criticism within their own political parities, protecting them from their more extreme elements. This allowed Clinton and Nixon to garner the support of moderate voters. Of course, there were grumblings within their own parties about shifts to the center, but these complaints were suppressed by the natural tendency of people to rally around their leader when under assault. The consequence of conspicuous hatred on the part of their political adversaries energized Nixon and Clinton supporters and afforded both Nixon and Clinton comfortable reelection victories. Nothing compels future events to mimic past ones, but it will be interesting to see whether the same scenario plays out next fall for Bush.

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Disciminating Against Religioius Instruction

Sunday, December 7th, 2003

James G. Blaine was a Republican Speaker of the House of Representatives in the late 1800’s who tried to amend the US Constitution to forbid the states from funding “sectarian” institutions. At that time the term “nonsectarian” did not carry the connotation of “secular” as it does now. The Protestant majority believed that “sectarian” described groups out of the Protestant main stream. Many were concerned that state funds might indirectly aid Catholics who were establishing their own schools to avoid the Protestant-centric instruction common at the time. Blaine’s amendment to the US Constitution managed to pass in the House, but then died when if failed to garner the super majority required in the Senate. Nonetheless, Blaine used his political influence to urge some states to pass similar amendments and to insist that as new states enter the union they attach Blaine amendments to their constitutions.

One such amendment is incorporated in the constitution of the State of Washington. It is far more restrictive than the US Constitution and explicitly states that “No public money or property shall be appropriated for or applied to any religious worship, exercise for instruction, or the support of any religious establishment.” The question the US Supreme Court is taking up in the case of Locke v. Davey is whether the prohibition is written so broadly that it infringes on the “free exercise” clause of the First Amendment.

This case began when Joshua Davey was granted the Promise Scholarship by the State of Washington. The scholarship was granted on the basis of academic excellence and need. The scholarship was valid for any field of study save one, the study of theology taught from a religious perspective, {\it i.e.,} instruction that “resembles worship and manifests a devotion to religion and religious principles in thought feeling, belief, or conduct.” The limitation on the scholarship was consistent with the state constitution and relevant state law. Davey was forced to forego the scholarship. Nonetheless, Davey was convinced the restrictions violated his First Amendment rights. If Davey were willing to fudge a little on his course of study, he probably could have managed to study the courses he wanted to and still retain the scholarship. Instead of sacrificing his integrity, he sued.

Davey lost at trial. However, the Ninth Circuit Court of Appeals, the notorious Circuit Court famous for striking down the use of “under God” in the Pledge of Allegiance and the Circuit Court with dubious distinction of having its decisions overturned by the US Supreme Court more frequently than any other Circuit Count, surprisingly ruled in favor of Davey. Wanting to retain the prohibition against the use of scholarship funds for religious study, the State of Washington asked the Supreme Court to review the case. The case is now under consideration.

The question boils down to whether Washington’s Constitution is so restrictive that it violates the US Constitution’s free exercise clause of the First Amendment. Case law is clear. If state law is more restrictive of individual liberties than US Constitution, state law must yield.

The previous jurisprudence of the Supreme Court suggests that any law that makes any classification based on religion must pass strict scrutiny. In Rosenberger v. University of Virginia, the Court found that the University of Virginia could not deny funds to a student religious group when it granted funds to other student groups. Indeed, treating religious groups differently in this case was tantamount to stigmatizing religion, when government’s role should be one of neutrality. The Court concluded that no reasonable person could conclude that the funding of the student led group constituted an endorsement. Will they draw a similar conclusion in the Locke v. Davey case?

The case if full of ironies. The American Civil Liberties Union (ACLU), which usually beats its chest about the necessity of tolerance for minorities, in its amicus curie brief before the Court is siding with the State of Washington and the Blaine Amendment originally motivated by intolerance of Catholics. It suggests that the ACLU position is more reflexively anti-religious than based on a principled understanding of the First Amendment. On the other hand, Conservatives who are usually sympathetic to state autonomy are seeking to use the Federal Courts to override state action. It sometimes seems that the arguments about state versus federal rights is based less on a thoughtful theory of federalism, on more on whether the state or federal government happens to be on the favored side the issue.

Not surprisingly, Court handicappers believe the case might hinge on the vote of Sandra Day O’Connor.

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Bush’s Infuriating and Ennobling Moral Clarity

Sunday, November 23rd, 2003

In the popular fictional epic The Lord of the Rings, four Hobbits or Halflings, venture forth from the Shire and help usher in a new age by playing an indispensable role in the defeat of the evil forces of Mordor. However, when they return to the Shire they find that it has fallen under the tyranny of thugs and ruffians. After a few feeble attempts at resistance, the Hobbits who had remained in the Shire had been intimidated and demoralized. They were demoralized in the sense of being disheartened and having lost confidence in their ability to stand up in defense of themselves and their homes. They were also literally “de”-“moralized” in the sense of loosing their moral bearing, of not appreciating the difference between good and evil enough to understanding there are some values worth risks to personal safety.

When Frodo, Sam, Merry, and Pippin finally returned to the Shire they brought with them not only the fighting skills they acquired during their quest, but a confidence and moral integrity that informed and underpinned their unwillingness to be bullied or intimidated, to be forced to work in the service of thugs, or to yield their personal freedom. They brought with them the most precious treasure of their adventures: moral clarity. Ultimately, the four organized their fellow Hobbits to expel the “Chief” and his minions.

J. R. Tolkien, of course, was not writing geopolitical epic, but a morality tale of good and evil, about the temptations of evil and the ease of acquiescence to malevolence. Nonetheless, he illustrates important themes about the nature of evil, applicable to whether dealing with the Dark Lord of Mordor, 20th century Nazism, or 21st century Islamofascism. Perhaps the most important realization is that moral clarity is necessary for triumph over evil.

President George Bush’s most important virtue is his moral clarity; a clarity that is infuriating to his adversaries whose moral vision has blurred into shades of gray. Bush’s clarity is not fathomable to opponents whose fiery red passions for good have faded into the soft pastels of “getting along.” In his November 19th speech at White Hall Palace, the President explained that terrorist attacks, particularly against civilian targets are “…part of the global campaign by terrorist networks to intimidate and demoralize all who oppose them.” In this context, Bush probably used the word demoralize in the sense of dishearten, but demoralization in the sense of a loss of moral clarity is perhaps a more apt description.

It is still not clear whether the West and other liberal democracies will be able to summon the moral confidence and courage to overcome rather than attempt an accommodation with Islamofascism, an accommodation doomed to failure. Perhaps, we are culturally exhausted after a world war against Nazism, a forty-year marathon struggle against global Communism, to have much moral energy left to confront the challenge of Islamofascism. Unfortunately, we are seeing signs of a flagging of moral fortitude and only a flaccid moral consensus.

While self-criticism and self examination remain important and salutary elements of free societies, when there is more anger by some on the Left that Bush did not manage to acquire full United Nations sanction for the liberation of Iraq, than relief for release of the Shiites and the Kurds from ethnic and religious oppression, we must recognize a loss of moral clarity.

We know now that formerly trusted news sources like the BBC deliberately misrepresented the progress of the Iraq War, and CNN guiltily concedes that it withheld information about Iraq in order to gain access to the regime. When at the same time neither organization focuses on the 150 newspapers publishing in freedom now in circulation in Iraq, we must recognize a loss of moral clarity.

When protesters bravely confront American and British police, while not venturing to the streets of Baghdad and Kabul (or even the streets of Washington and London) to protest bombing of civilians, we must recognize the loss of moral clarity. Where are all the human shields on the Left who vowed to protect Iraqis with their persons? Why are these human shields not standing in front of United Nations or Red Crescent installations in Iraq?

When civilians are deliberately targeted by Islamofascists and American arrogance or globalization is blamed, we must recognize a loss of moral clarity. Islamofascists are deathly afraid of Western democracies because they know that given a choice, Muslims like others will embrace freedom and modernity. Do we recognize the same truth?

In many ways, Britain and the United States are out of moral step with (actually several strides head of) much of the rest of Europe who have forgotten the moral underpinnings of their freedom and consequent affluence. France and Germany have smugly embraced realpolitik as if it were a sign of maturity and statesmanship. They engage in desperate accommodation with illiberal forces while paying lip service to human rights. By contrast as Bush explained, “The United States and Great Britain share a mission in the world beyond the balance of power or the simple pursuit of interest. We seek the advance of freedom and the peace that freedom brings.” Where some see arrogance, others seem moral clarity, humble and modest in the assumption that freedom is not just the privilege of a few. France and Germany have been demoralized in both senses of the word.

President John Kennedy in a different context once proclaimed, “Let every nation know, whether it wishes us well or ill, that we shall pay any price, bear any burden, meet any hardship, support any friend, oppose any foe, in order to assure the survival and the success of liberty.” The fact that this assertion which underpinned US Cold War fortitude would now be considered by many to be an arrogant self assertion of American values of liberty evidences a loss, particularly on the Left who once embraced Kennedy, of moral clarity.

Fortunately, in the past leaders there arose leaders like President Franklin Roosevelt and Prime Minister Winston Churchill in World War II and President Ronald Reagan and Prime Minister Margaret Thatcher in the Cold War who were able to instill a sense of courage and commitment to liberal ideals. Their efforts were sufficient to overcome doubt and lassitude. It is still an open question whether Bush and Prime Minister Tony Blair will be able to duplicate the success of their predecessors. Their meeting last week confirms their commitment to protect the West from terrorism by expanding the empire of liberty. We might have thought that the assault of September 11 would have washed away self doubt and uncertainty about the necessity of routing out the forces of terror. However, time has attenuated indignation and certainty. The question is whether Bush and Blair can now lead their countries and bring the rest of the world with them on their quest.

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Imperial Judiciary Decides on Religious Instruction

Sunday, November 23rd, 2003

Constitutional democracies and their associated individual liberties can be buttressed by the force of written law, but ultimately the people and those who are entrusted with leadership in democratic institutions must respect individual liberties. No dam of written words can stand indefinitely against the perpetual force of individual and collective actions undermining individual liberties. The problem is that it is natural for human beings to desire outcomes some so badly that they rationalize ignoring individual rights. Honoring the rights of others rests on a respect and tolerance for the capacity of others to decide for themselves, even when we disagree. Tolerance can only be a virtue if practiced with respect to activities with which there is strong disagreement.

This natural tendency to ignore individual liberties in the pursuit of what some consider laudable goals accounts for the erosion of Fourth Amendment protections in pursuit of the War on Drugs and the sacrifice of First Amendment protections at the altar of campaign finance reform and abortion rights. To this we can now add circumscription of religious freedom in pursuit of the gay rights agenda.

Denver District Court Judge John W. Coughlin is probably a nice enough fellow who, I imagine, fancies himself as a compassionate modern-day Solomon adjudicating thorny issues. However, there are places that not even judges should intrude and Coughlin has taken it upon himself to control the religious instruction a parent provides her child.

It all started about eight years ago when Dr. Cheryl Clark adopted a little girl to raise with her lesbian partner Elsey McLeod. In 2000, Clark converted to Christianity and left the relationship, leaving the disposition of the child a point of conflict. Since Clark had been the only one to officially adopt the child, it would seem that McLeod had no parental rights whatsoever. Clark voluntarily offered visitation privileges, but McLeod sued for joint custody.

Judge Coughlin expanded a legal doctrine usually reserved for abandoned or neglected children who have been cared for by a third party. Clark declared that McLeod was a “psychological parent” who was entitled to share custody and equal parenting time. This decision represents an interesting issue in its own right. A principled extension of Coughlin’s jurisprudence would confer equal parental rights to a live-in boyfriend who neither sires nor adopts a child. However, for our purposes here, let us concede McLeod’s parental rights, regardless of serious reservations concerning the legal principle applied.

Given that McLeod and Clark have radically divergent religious views, Coughlin granted Clark authority over the young girl’s religious instruction. Coughlin overstepped his authority when he instructed that Clark, “make sure that there is nothing in the religious upbringing or teaching that the minor child is exposed to that can be considered homophobic.” Clark’s order was a presumptuous and vague injunction preventing Clark from exercising her First Amendment religious privileges. “Homophobic” itself is a problematic term. The term suggests fear but has been pulled and stretched to apply to anything that does not strictly conform to the gay rights agenda.

It is not uncommon in divorce cases for judges to constrain a custodial parent from disparaging the other parent. There is no indication that Clark made a point of disparaging her former partner, but even if she had, the restriction on religious instruction exceeds the judge’s constitutional authority. Consider the logic of the principle Coughlin is applying. If one parent divorces another for infidelity, does that mean that the custodial parent cannot attend or provide religious instruction to the child in a church that honors religious prohibitions against infidelity, lest the non-custodial parent would be indirectly cast in an ignoble light? If a non-custodial parent is a soldier, does that give a judge the authority to instruct a custodial parent to not attend a pacifist church? How far will judges like Coughlin go in deciding upon the specific religious doctrines that are suitable for instruction?

This case is on appeal. The US Constitution can only protect us to the extent that government institutions, particularly the Courts, honor constraints on arbitrary government power. Judge Coughlin’s ruling is an example of a good person yielding to the temptation of conforming to popular prejudices.

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Dealing with Combatants in Guantanamo

Sunday, November 16th, 2003

One sometimes wishes that the Left would lavish a proportional amount of attention on the 11 million prisoners suffering under Fidel Castro as the warden of an entire island as they do to the 660 prisoners held at the US Base in Guantanamo, Cuba. In the last Administration, the Left glowed with smug satisfaction when the only one forced by the United States to enter Cuba was a young boy at gun point. But that was another issue for another time.

What is the appropriate way of dealing with individuals captured on the battlefield in Afghanistan and now detained at Guantanamo? The laws of war were agreed to in an age when powers, especially European powers, fought pitched battles between groups of soldiers. The rules specifying the treatment of captured combatants arose in a context of a clearer separation between soldiers and civilians.

Soldiers are afforded immunity from normal civil laws against killing and destruction. In exchange for this immunity, they are also liable to be the indiscriminate targets of other soldiers. Under the rules of war, civilians are also protected. They are not normally the objects of attacks. This is not to say that civilians are never killed, but under the rules of war, they are not to be the deliberate objects of aggression. When these two categories get blurred, risks increase for both soldiers and civilians, particularly civilians. If captured, soldiers become liable for criminal sanctions. If civilians are viewed as combatants then the dangers to those civilians that do not participate in aggression grows as it becomes more difficult for regular soldiers to distinguish combatants from civilians.

Nonetheless, over time it has become clear that some civilians do join in battle as irregulars. This was a particular problem in the US Civil War when the distinction between civilians, militia members, and soldiers blurred. Even regular soldiers were not always properly uniformed. According to Daniel Moran of the Center for Contemporary Conflict, the Union under the direction of Columbia University law professor Francis Lieber formulated the “Lieber Code.” “It declared that civilians who had organized themselves into `free corps’ in order to resist advancing Union forces should be treated as combatants, even if not in uniform. Clandestine violence by individuals remained subject to summary justice, however, as did any form of civilian resistance once an occupation had been established. ”

This distinction has been recognized and given international sanction in the Geneva Accords, Convention III Relative to the Treatment of Prisoners of War, (1949). Not only are uniformed soldiers to be accorded prisoner of ware status, so too are journalists and service personal, like truck drivers who service the soldiers.

“Members of other militias and members of other volunteer corps ” [when captured are to be treated as prisoners of war] … “provided that such militias or volunteer corps, including such organized resistance movements, fulfill the following conditions:

  • that of being commanded by a person responsible for his subordinates;
  • that of having a fixed distinctive sign recognizable at a distance;
  • that of carrying arms openly;
  • that of conducting their operations in accordance with the laws and customs of war.”

The Taliban soldiers and members of Al Qaeda have clearly not conformed with the last three conditions and have probably forfeited their right to prisoner of war status.

There really are two choices for the US. The Guantanamo detainees are either civilians or combatants, legal or not. If we treat them as civilians they would have to go through the judicial process and be prosecuted as criminals. This option would have two down sides. It would impose a large prosecutorial burden on the US. Were the US to impose punishment on what others might see as prisoners of war, it could also open the US for criticism. If captured, our soldiers might then be treated as criminals rather than combatants. So the continual treatment of these detainees as prisoners of war, perhaps indefinitely, would seem to be the appropriate course. Of course, there are some other issues. Under prisoner of war status for these irregulars, is the US required to make an accounting of prisoners and to whom? There is no formal government to make a report to. Could such an accounting provide important intelligence to Al Qaeda that relies exclusively on intelligence and deception?

Article I, Section 8 of the US Constitution grants Congress the power “To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations.” They should exercise this authority. Although the Administration would certainly balk at any formal procedure for dealing with the irregular prisoners of war that might limit their discretion, Congress should statutorily spell out procedures for dealing with such irregular prisoners. The military has obviously been working out an ad hoc set of procedures. Statutory measures would protect the military from charges of arbitrariness and emphasize American commitment to the rule of law.

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More Pieces in the Puzzle of Pre-War Iraq

Sunday, November 9th, 2003

Oscar Wilde once claimed that “The past is of no importance. The present is of no importance. It is with the future that we have to deal.” No observation could be in greater error. The past provides a context to understand the present and the present is our only opportunity to change the future. This is what makes a recent article in the Washington Post about what Iraqi captives are saying about pre-war Iraq so interesting.

Apparently former Iraqi deputy prime minister Tariq Aziz has been spilling his guts to American interrogators now that the US has removed Aziz’s family from Iraq for protection. Of course, whatever Aziz says now must be carefully weighed against independent sources of information. He may still have reasons to not tell the entire truth. Nonetheless, what Aziz has been saying goes a long way toward helping to understand the thinking of the Iraqi regime before the war.

For example, given Bush’s obvious determination to resort, if necessary, to the military option in dealing with Iraq, why was Iraq not more forthcoming with respect to UN inspectors? Given how difficult it has proven to search out weapons of mass destruction after the war, Saddam Hussein could have averted a war by allowing unfettered inspections and by providing complete documentation of WMD programs. What ever happened to the anthrax that the Hussein regime acknowledged that it had?

One reason may be that Hussein did not take the prospect of military action from the US seriously enough. According to Aziz, the French and the Russians, through back channels, had assured the Iraqis that they could stop an US military action through the UN Security Council. At the same time that the French were assuring American Secretary of State Colin Powell they were serious about holding Iraq to its obligations under UN resolutions, the French were undermining both the UN and the US. We can only wonder how different Iraq may have behaved if instead the French and the Russians had consistently warned Hussein that this time he really had to fully comply with the UN resolutions. How differently would have Hussein acted if he realized that his back was truly against the wall? It is also possible that Hussein was so self-delusional that even if the French had provided better advice, he would have ignored it.

Even on the eve of the war, when US military action was imminent, Hussein was assured his regime could survive. According to Aziz, the French were certain that the US would begin the war, like Gulf War 1991, with a prolonged air campaign. If Hussein could just hold out against the air assault, the French and the Russians could broker a cease fire. Indeed, when the land assault began, Hussein was convinced that it was simply a diversionary tactic and did not commit troops from the north to the defense of Baghdad. It seems that both the US and the Iraqis were ill-served by the French.

It is also unclear from Aziz’s interrogations the quantities of WMD Iraq possessed before the war. However, Aziz did suggest that Hussein was less concerned about the chemical WMD stockpiles because he could always recreate them so long as he maintained the infrastructure to do so. This perspective is lent credence by the fact that laboratories suitable for this have been discovered by David Kay and his team of inspectors. Hussein was intent on acquiring what was, from his perspective, more difficult to obtain than WMD. Hussein wanted long range missiles. He was perhaps negotiating with the North Koreans for the appropriate technology. Kay investigators have found considerable evidence of Hussein’s efforts to obtain long range delivery systems.

Slowly the pieces of the Iraq puzzle are coming together. There are still large gaps. Indeed the unknown gaps in the puzzle are probably larger than the areas that have been fully fully assembled. Incrementally, day-by-day we can expect to learn what was going on in Iraq before the war. Learning about pre-war Iraq puts us one step closer to dealing with the Iraq of the present, an Iraq that is not yet freed from its tyrannical past.

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The Supreme Court by the Numbers

Sunday, November 2nd, 2003

Statistical analysis has been successfully applied to all manner of social issues from demographics to economics. The Oakland Athletics and the Boston Red Sox have even demonstrated that breaking baseball down to the numbers can help compensate for a limited player payroll. It is also possible to misapply statistical analysis to mislead. Sometimes this is done in error, sometimes with a deliberate intention to deceive. Public opinion polls are perhaps the most common way to lend a patina of statistical certainty to partisan persuasion. Joel Best has even written a book, Damned Lies and Statistics: Untangling Numbers from the Media, Politicians, and Activists. Hence, when someone successfully and honesty applies information theory to a political question it deserves special attention.

In June of this year in an article in the Proceedings of the National Academy of Science , Dr. Lawrence Sirovich of the Department of Biomathematical Sciences at the Mount Sinai School of Medicine attempted to mathematically characterize decisions by the second William Rehnquist Court. This Court is comprised of the members since the last appointment to the Court of Stephen Breyer in 1994 by President Bill Clinton. Sirovich included in his analysis only those decisions for which there were nine clear separate decisions. Some cases are just issued “by the court” with no delineation of the vote. In other cases, one judge may have recused himself or herself. In still other cases, judges may split their decision with respect to different parts of a case. In all, he retained about 70% of the cases.

Sirovich then considered two possible models of the court: an “omniscient” court and a “platonic” court. In the omniscient limit each judge knows the appropriate outcome and all nine judges arrive at the same decision. All court decisions are then 9-0 judgments. In the opposite, platonic limit, all the cases are extremely close and the likelihood of each judge voting a particular way is 50%. There is no way to predict which way a judge will vote on a platonic court. Of course the real statistics lie somewhere in between these extremes.

Nonetheless, it is remarkable that 47% of the Rehnquist Court’s decisions are unanimous 9-0 judgments, reflecting a tendency to an omniscient court. If the issues in this many cases are so clear that the Court has no difficulty arriving at a unanimous conclusion, it is a shame that these cases have to be adjudicated by the Supreme Court.

Not surprisingly justices have ideologies and perspectives that force them, like grapes, to group into bunches. It is no secret that Justices Antonin Scalia and Clarence Thomas concur 93% of the time. Of course, this includes the 47% of the time that all the Justices agree. This common Scalia-Thomas agreement has led to some off-color jokes about how Thomas does not think for himself. However, we hardly ever hear about the 90% of the time that Justices Ruth Bader Ginsberg and David Souter vote together. Is anyone asking whether Ginsberg, who is a junior member of the Court with respect to Souter, is not up to her position and just relying on the guidance of Souter in her decisions? Of course not.

Given the overwhelming number of times that justices agree with one another, it would be unfair to characterize any justice as “extreme” or “out of the mainstream.” Justice John Stevens is by far the justice most likely to march the path of a lone dissenter. This is hardly evidence that Stevens is, depending on your perspective, a bold independent thinker or a dangerous maverick. He was the lone dissenter 23 times out of 377 cases. Rehnquist, Scalia, and Thomas were sole dissenters only three times a piece.

If all decisions were 9-0 judgments, having nine justices is redundant. A single justice could perform the same job with equal skill. If the judges acted independently, we would still require all nine judges to arrive at the same set of results. The correlation of decisions by judges, Sirovich suggests, would require only 4.5 to 5 independent judges. This result is a mathematical one, not a practical recommendation.

The composition of the Court and potential Court appointments have been the object of much consternation on the part of the political Left and the Right. Democrats in the Senate are willing to sustain a filibuster in order to pour sand in the Bush judge appointment apparatus. It is the lower court judges that Bush is submitting now that may provide potential Supreme Court justices in the future. What Sirovich makes clear is that there are statistically few cases that contribute to this rancor. Nonetheless, it is those high-intensity cultural issues like abortion, affirmative action, the proper roles of religion and the state — cases that do not have much of a statistical impact on raw decision numbers — that drive our perception of the Court and individual justices.

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One Nation Under God

Sunday, October 26th, 2003

A government, almost by definition, cannot help but endorse religion; a religion, at least, that is defined broadly enough. Religion is an explanatory world view or perspective on meaning based on essentially improvable axioms. Christians, Jews, Muslims, Buddhists, and even atheists arrive at their positions based on faith. Political systems, too, have their faith components and the two are subtly related and even interdependent.

The United States is a particularly instructive example since its establishment was not the result of the gradual accretion of tribal groups, but rather of a self-conscious political decision on the nature of man. The beliefs behind the decision to institute a new country are explicitly embodied in the Declaration of Independence. The document asserts on faith “…these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” This assertion by the Founders was undoubtedly informed by their experience. These truths were so obvious to them that they believed them “to be self-evident.” It was certainly the product of an emerging political philosophy, but the Declaration was also a statement of faith about the nature of man. In a very fundamental sense, the Declaration of Independence is a religious document underpinned by those articles of faith. For a government to pass on its political beliefs to children and to nurture the acknowledgment of these articles of political faith are, in a broad sense, religious enterprises.

Indeed, the Founding Fathers explicitly asserted that the acceptance of the notion that God grants rights was essential to the long-term stability of the country. Thomas Jefferson asked rhetorically “can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are of the gift of God? That they are not to be violated but with His wrath?”

Moreover, the Founders believed that those governments that did not honor the inherent rights of man would ultimately suffer and that there was a Providence that was calling Americans to a higher moral and political duty. In 1776, George Washington wrote in his general orders, “the peace and safety of the Country now depends, under God, solely on the success of our arms.”

Abraham Lincoln at Gettysburg, consciously believing that the carnage of the Civil War was perhaps retribution for the sin of slavery, vowed that “this nation under God shall have a new birth of freedom, and that government of the people, by the people, for the people shall not perish from the earth.”

What then do we make of the First Amendment’s proscription that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” as it applies to the recent case taken up by the Supreme Court to determine the whether students reciting the words “under God” as part of the Pledge of Allegiance violates the Constitution?

The Ninth Circuit Court of Appeals recently ruled in the favor of a father seeking to protect his daughter from the words “under God” as recited as part of the Pledge. It has long been recognized that people cannot be compelled to recite the Pledge. Parents can arrange to have their children opt out of the Pledge. However, this father is a devout atheist and demands further protection. He does not want his daughter to be embarrassed by being singled out for not reciting the Pledge. Now there is a question as to whether the father has standing to sue. The custodial mother and daughter have no objection to reciting the pledge and indeed are far more embarrassed by the father’s legal jihad, but let us leave that aside for a moment. Does asking students to recite the phrase “under God” as part of the Pledge violate the establishment clause?

The Supreme Court has long held that ceremonial evocation of “God” does not rise to the level of “establishment.” Is that the case we would wish to make here? Do we wish to argue that the words “under God” constitute just a throw away phrase used for rhetorical flourish but not having a real significance? If that is what we think, then why are we upset at the possibility that “under God” might be stripped from the Pledge?

At that time the First Amendment was written the Founders were trying to prohibit the national government from “establishing” a religion in the conventional sense of supporting churches and clergy. They wanted to prohibit Congress from declaring an official religion and supporting associated institutions financially and with other special privileges. Since then, the incorporation doctrine has extended this constraint to state governments as well. However, the original understanding of the clause did not include denuding the public square or even public discourse of religion. Indeed, does not the deliberate exclusion of religion from the public square constitute an endorsement of a non-theistic view of the world?

The thesis here is that governments have a right and obligation to teach and instill those principles necessary for its propagation. This is particularly true of governments based upon the inherent dignity of man, even if some find that dignity in a belief in God while others may find a different, less sacred, route to that conclusion. These precepts are part of a larger concept of religion that governments can not help but endorse. The phrase “under God” in the context of the Pledge means that our rights are not simply a convenient convention but a bedrock tenet of our collective faith. The phrase “under God” represents a conviction that we are called upon to meet our civic obligations.

Yes, the phrase “under God” is an endorsement of a religion, a civic religion whose precepts overlap what we generally consider religious faith. But it is the conventional, more all encompassing religion and religious institutions, the Founders did not wish us to formally establish. The pledge with the phrase “under God” is no more unconstitutional than the Declaration of Independence or the Gettysburg Address.

For an excellent discussion of the legal and ethical issues involved, much of which informed this article, the reader is directed to “Under God: The History of a Phrase,” James Pierson, The Weekly Standard, pages 19-23, October 27, 2003.

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Civilizing Young Males

Sunday, October 19th, 2003

There are forests leveled by the mountains of sociological literature confirming what most people have intuitively known for quite a long time: Children who grow up with a mother and father fair better, on average, than children who are not so blessed. Part of the value of having parents of two different flavors is that men and women tend to bring two contrasting views of the world to their children.

If this were the Sixties, we would talk about the Yin and the Yang. This is a more grounded age less enamored with half-understood Eastern philosophy. We can, therefore, generalize that fathers tend to teach the competitive traits: a willingness to test oneself against others, a recognition of the value of strength, and poise under pressure. The traditional feminine perspective is more nurturing; more concerned about nesting, more attuned to grooming, dress, and accommodating other people’s feelings.

Of course, these are generalizations. There are Moms who teach their children how to throw a curve ball or drill a soccer ball into a net, while instilling a cutthroat competitiveness as fierce as any father could. There are Dads who read their children poetry and find just the right curtains for their kid’s room.

If all goes well, balanced children are produced. However, many young males typically need additional civilizing. Some young men, particularly, men without wives, tend to live sloppy undirected lives, eating out of pizza boxes, with clothes strewn about in unwashed piles, and the television perpetually tuned to ESPN. A walk through dorms on a college campus will confirm the observation that, as a rule, boys are less civilized than girls.

It is generally the job of young women to complete the job begun by boys’ mothers and finish the civilizing process. The charm of this civilizing process is behind the appeal of the campy Bravo channel show Queer Eye for the Straight Guy. The show begins with a young unkept fellow living alone in an apartment with a goal shared by most young men to impress a girl. The fellow genuinely wants to make a good impression, but has never acquired the social skills to do so. His apartment is dirty and unappealing. His clothes are comfortable but not fashionable. His hair is generally disheveled and he has not really acquired good grooming skills. He has not yet realized that being a gentleman and having good manners really means making the people around you feel comfortable. Even if he has recognized this, he has not quite figured out how to go about being a gentleman.

Each week, five gay men come to the rescue of some young straight man. Of course, the show takes advantage of the gay stereotype of being more fashion conscience. One fellow is an interior designer and helps create an inviting space out of a grime-filled dingy apartment. Another takes the young rube for a haircut and provides general grooming instructions. Our third gay hero takes the young straight man shopping for flattering cloths. A fourth instructor provides dating instructions, for example when to buy a small gift to impress a girl. The final gay fellow is an expert cook teaching the young man how to prepare a dinner for his girl friend or how to order for her in fine restaurant.

There are a number of reasons the show has grown in popularity. The “fab five” display a genuine concern for the prospects of their makeover candidate. What many fail to appreciate is that they are embarked on a fundamentally conservative enterprise: the civilizing of young males in society. The five gay men are fulfilling a traditionally feminine role in this context. One is reminded of the metaphor in Ernest Hemingway’s The Sun Also Rises where the steers are put in with the bulls to settle them down.

Although the series unapologetically plays on gay and straight stereotypes and it is clear that the producers have the unstated intention of portraying stereotypical homosexual behavior in a favorable light, the series works because it transcends it own propagandistic goals and features real human warmth and humor. The first attempt to feature homosexuality on a ongoing television series fell flat. Ellen Degeneres’s sitcom was too clumsy, preachy and actually mean-spirited. It died a merciful death. NBC’s Will and Grace that features homosexual characters is frankly too vulgar to be seen as anything but shameless exploitation.

Now in the interests of reciprocity, there should be a show Straight Eye for the Queer Guy where five straight guys help a stereotypical gay fellow learns to appreciate some traditionally male activities. There could be a sports counselor who helps with appreciating sports; a cuisine guy who teaches the gay student how to brew hot chili or to barbecue; a fashion advisor who explains the convenience of jeans, T-shirts and sweatpants; a cultural guide who takes the gay fellow hunting to appreciate primal urges at dominance, and interior design consultant who help our gay student purchase large-screen televisions and foosball games.

It is apparent that good humor and open friendliness has an audience

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A Hero and Some Villians from the California Recall

Sunday, October 12th, 2003

The California recall of Davis and the election of Arnold Schwarzenegger may prove to have significant political import. These events may mark the resurgence of a moribund California Republican Party after former Governor Peter Wilson led it to long-term minority status. Alternatively, they may mark only a temporary success for Schwarzenegger and prove that celebrity can prop the prospects of an individual, but it is not sufficient to buttress the structure of a political party. Part of the outcome will depend upon whether improved national economic performance in the next 18 months alleviates California’s particularly acute budget shortfalls. In the short term, we can find some heroes and villains.

Hero Nominee: Susan Estrich. No one can claim that Susan Estrich is not a political partisan. Certainly, as the national head of Governor Michael Dukakis’s presidential campaign, she would not assert that claim. Estrich is now a self-described Liberal commentator on Fox News. Moreover, Estrich is a rape victim and this experience has motivated her to lobby for laws protecting rape victims and workplace protections of women. She has specialized in sex discrimination law for years. Estrich had every professional and political motivation to use for political advantage charges against Schwarzenegger for fondling and perhaps assaulting women. Instead, Estrich took the intellectually honest stance of agnosticism with respect to the charges until the evidence was better vetted and anger at the political exploitation of the issue by an obviously partisan Los Angeles Times.

If Schwarzenegger was indeed guilty of being a sexual predator and had perhaps even crossed the line to illegality, such information is a legitimate topic for news coverage. Estrich agrees, but believed that given that the Los Angeles Times had been working on the story for seven weeks, last minute revelations smacked of a political hack job. True or false, Schwarzenegger had no real chance to respond late in the campaign. Estrich explained:

“What this story [the L.A. Times expose] accomplishes is less an attack on Schwarzenegger than a smear on the press. It reaffirms everything that is wrong with the political process. Anonymous chargers from years ago made in the closing days of a campaign undermine fair politics.”

It is theoretically possible that the timing of the charges leveled in the L.A. Times, falling just days before the election, was a coincidence of the investigative process. But given the paper’s editorial stance and the tenor of coverage, that possibility strains credulity.

As it happened, the stench of unfairness wafting up from the L.A. Times articles repulsed those for whom the issue of womanizing might have been dispositive. The L. A. Times was too ham-handed and its last minute revelations backfired. Attack politics lost.

Hypocrite Nominee: California feminist groups. The same feminist groups who overlooked charges of groping and even rape against former president Bill Clinton by women who were willing to be identified, suddenly became indignant about the mostly anonymous charges of sexual harassment against Schwarzenegger. The California chapter of the National Organization of Women fumed against Schwarzenegger, “Your behavior was not playful, it was illegal, it was sexual harassment.”

When questioned about the difference between the behaviors of Clinton and Schwarzenegger, Patricia Foulkkrod of Codepink explained,

“The difference was that Clinton was so brilliant. If Arnold was a brilliant pol and had this thing about inappropriate behavior, we’d figure a way of getting around it. I think it’s to our detriment to go on too much about groping. But it’s our way in. This is really about the GOP trying to take California in 2004 and our trying to stop it.”

In other words, Schwarzenegger’s crime was his party affiliation. It is all about party and not about ideology. If Schwarzenegger had been a Democrat, any poor women who were groped or assaulted could be sacrificed in the higher interests of the sisterhood. Schwarzenegger’s pro-choice position, though he is against partial birth abortion and for parental notification, was not sufficient protection against verbal harangues by NOW and other feminists groups.

It is possible that had the campaign lasted longer, Republicans who had complained how Clinton’s behavior, setting aside for a moment his alleged crimes of perjury and obstruction of justice, might have defended Schwarzenegger out of political expediency. We don’t know. The campaign was too short. The charges were not fully vetted. Indeed, Schwarzenegger’s background might have prevented him from obtaining the Republican nomination had there been a primary. In addition, many of the more Conservative Republicans voted for Tom McClintok not for Schwarzenegger. Hence, the California feminist groups can put the trophy of hypocrisy on their mantel. It will likely be displayed there for at least a few election cycles.

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