RICK SANTORUM AND ANTI-CATHOLIC BIGOTRY, AGAIN

Senator Santorum is at least consistent: according to published reports, he has accused members of his own party of being bigoted because they object to a judicial nominee because of his religious views. The report is from The Hill, here (via Howard Bashman).

Here's a quote from the article:

“This [concern about Holmes] is a classic example of religious bigotry that I thought did not exist in this country,” said Santorum, who is Catholic.

“I believe if that is the reason for anybody’s opposition, they need to think long and hard about one of the most fundamental issues in this country, and that is the freedom of religion.”

It could be that Santorum's words are quoted out of context, but as they stand they seem to argue that (1) it is impermissible to oppose a judicial candidate because that candidate has certain religious views, and (2) it is somehow inconsistent with "religious freedom" for Senators to oppose nominees because of their religious views. Neither position makes sense, even though they both may sound good in the abstract. It all comes down to which religious views one is talking about. We've been around this barn before. It is reasonable to suppose that someone whose religious beliefs include strong views of marital hierarchy will be influenced by those views, in the inevitably complex and underdetermined state of appellate litigation. Judges are partly nominated because they have certain views that the nominator believes will influence their judging. They may certainly be rejected because of estimations of the likelihood that their religious views will influence their judging, and that the results of that judging will disfavor a given Senator's constituents and supporters.

Freedom of religion does not mean "the freedom to have any and all views and then have everyone magically forget about those views when they are delegating responsibility to you." Sorry.

Ray Moore is certainly entitled to his views about the appropriate relationship between church and state. He believes that these views follow from his religious beliefs. Yet it would certainly be odd to accuse people who object to a hypothetical Ray Moore nomination as exhibiting "anti-religious bigotry." Bigotry is a word reserved for those who make illegitimate distinctions between people. I'm not a bigot if I choose the better kickball player to be on my team rather than the worse kickball player; I'm exercising sound judgment. Similarly, I'm not a bigot if I reject a person whose religious views seem to indicate that they will judge in a certain direction -- as judges on appellate courts always have the freedom to do (the "follow the law" line is not persuasive given indeterminacy at the appellate stage).

I'm not saying that Holmes is like Ray Moore; I have never met either of them, and I haven't studied Holmes's record in detail. If there is a distortion in the record, so be it. If Senator Santorum is trying to call attention to the fact that the nominations process is nasty and that peoples' views are distorted and taken out of context, fine. I suspect that he is going beyond that observation, however. Someone who actually believes and defends the view that God created men and women in such a way that the proper marital relationship is one of subordination -- someone who believes that is going to have a heck of a time navigating current equal protection jurisprudence, not to mention family law or a whole host of other areas that express a fundamentally different conception of the meaning of the marital relationship. If the goal (of Senator Santorum and those who support conservative judicial nominees) is to change those conceptions and make them more "Biblical," then, fine, that's the goal, and one should be honest with oneself, at least, about wanting judicial nominees who will express that conception from the bench. One should not be surprised when others object to actions that seem related to that goal, however.

Of course Senator Santorum is not surprised, actually; he probably expects objections. Indeed, calling someone a bigot is a substitute for bargaining and negotiation, often because such bargaining seems pointless or dangerous. It is indeed possible that Senators are influenced by interest groups who may be even more risk-averse with respect to their particular issues than Senators would be personally inclined to be. These groups may also have broader strategic goals than opposing a single nominee because of a well-founded belief that his or her judging will fall to the disadvantage of their constituents. But surely none of this is true only of interest groups with whom one disagrees or who happen to be influencing others in the Senate.

Tortoise DNA records volcanic eruption. Really cool. The BBC story is here.

WEEKEND EU CONFERENCE IN ROME

This weekend's meeting of EU leaders is going to highlight differences on several aspects of the draft constitution. Notable: voting rules, God, and the powers of the proposed EU foreign minister, as well as the question of what weight to give the existing draft (i.e., how much should it be changed). Read this article in today's Tagesspiegel, and this article in Le Monde.

For some commentary on the EU constitution, see the "brief reader's guide" from Deutsche Welle, and two posts at Crooked Timber (one and two) that are touched off by George Will's condescending editorial about the draft document. See also this critical account of the whole project by Josh Chafetz and Guglielmo Verdirame. I'm not well informed enough to say whether or not I think that the new constitution is a good one. Evaluating constitutions before they're enacted is a difficult business since so much depends on processes of implementation and the political forces that are poised to try their hand at it. And with the EU constitution, you have the additional difficulty (as Habermas and Derrida seem to be thinking of) of the currently doubtful status of the EU as a political community that is supposed to be able to withstand the domestic stress produced by sustaining a common foreign policy, for example.

GEORGE WILL

Hard to imagine that this is the same George Will, Mr. "Sail the Imperial Ship of State Right over those Pathetic French Lilliputians." From Aaron Brown, tonight:

[BROWN:. . .] Let me ask you that question. Absent the evidence of weapons, were those other reasons good enough reasons for the United States to wage a war?

WILL: I'm inclined to think not.

John Quincy Adams famously warned the United States against going abroad in search of monsters to destroy. That Saddam Hussein was a monster is universally recognized. However, he is not the only monster in the world. And the question is, you have to connect, it seems to me, an American national interest with the ancillary and dispensable virtue of getting rid of monsters. Otherwise, we'll be much too busy.

BROWN: It seems to me, the argument the administration makes now is, well, we'll see on the weapons. We're not sure. We'll see. But this guy was such a bad guy and he killed so many people and he was so destabilizing in the region that the world is, in fact, better off. Is the world in fact better off?

WILL: Oh, I think the world is better off, if you mean, by some normal utilitarian calculus, that we have subtracted more pain and added more pleasure to the world, certainly, the world is better off. The world would have been better off if we had intervened in Rwanda and stopped the genocide there. There are questions of the overstretch of our capacity to do this, however.

There is another side, and a more interesting, a more promising side to the administration argument. And that is, not only is the world better off because we're rid of him, but there will be a positive good. We will have a transformative, exemplary society built in Iraq, which will be the first pluralist functioning secular democracy in the world and it will be a benign contagion that will infect the world with our values.

That's a large leap. It's an act of faith. It may be true. If true, it's wonderful. If not, then, retrospectively, you have to say, the war wasn't the productive enterprise we hoped for.

Two things: One, on humanitarian intervention, seems to me like Will is changing his tune a bit. In March, he pushed the humanitarian case for war hard (see his comments on Iraqi kids, here). Now it's pretty clear that he doesn't really care about it. I'm not particularly concerned about whether or not George Will thinks humanitarian intervention is a good idea, but now at least I know to be on the lookout for the strategic use of this argument from him.

Two, it's a little bland to say that we "hoped" for something "productive" from the war. (Forget about the "we" for the moment.) Unless "hoped" means "whipped ourselves into a frenzy over the need to get rid of a 'gathering danger' that mortally threatened our security." I hope that it won't be sleeting when I go back outside. "We" were whipped into a frenzy over Iraq. And now the evidence that would justify that frenzy is pretty darn hard to find.

MORE: Thomas Nephew argues that my characterization of Will is unfair, here -- partly because he finds his position "uncomfortably close" to Will's. Thomas then takes the opportunity to engage in some characteristically serious reflections on the broader issue at stake, namely, the justifications for the war as such. Just as a clarification: I took Will's piece from March to be addressed partly to liberal interventionists, who presumably would be touched by this argument: "remember a picture of an Iraqi child, suffering the effects of the current policy of "containment." At any rate, check out Thomas's piece.

WOW

Read the BBC story, India reacts to landmark marriage ruling. The Calcutta high court ruled in favor of a woman who did not want to be forced to live with her in-laws.

HEADLINE OF THE WEEK

"Kiss leaves a void."

SEX DISCRIMINATION CASE IN INDIA

If you're interested in this July's decision in the India Air hostess sex discrimination case from the Indian Supreme Court, it should be available at this link. I've also posted a cleaner copy of the opinion here. I haven't studied the opinion in detail, but the thrust of the argument by the Supreme Court seems to be that the earlier retirement age for women was the result of labor negotiations and thus outside of the proper area of constitutional concern with sex discrimination.

I'm not exactly sure how Indian case names work, but I'd probably cite this as Air India Cabin Crew Association v. Yeshawinee Merchant, after the names of the first parties listed on both sides.

I'm thinking of ways to incorporate a comparative perspective in my civil liberties and supreme court courses next semester, so I'll be adding selected cases as I get to them. In the meantime, if anyone has any suggestions on good, free, online resources (preferably in English, although German -- and to a lesser extent, French and Spanish -- are fine as well), please let me know!

MORE: Read also this article, "The Sexist Maharaja: Air India's history of discrimination against stewardesses," from New India Press.

DAVID COLE

David Cole is pretty cool. Read this WaPo article on his recent anti-book-party party. It's a shame that more book parties aren't like his. (Thanks to Anita for the reference!)

JOSH CHERNISS

Josh Cherniss has some very kind things to say about my thoughts about teaching and he adds some thoughtful reflections on his own experiences (no permalinks, but his main page is here).

He refers us to Max Weber's "Science as a Vocation" for some thoughts on teaching. I agree. I'd add: whatever you think about Leo Strauss -- and the straussian conspiracy stories that Josh has taken time to discuss, with acuity -- you can do worse than thinking about the following lines from "Liberal Education and Responsibility," lines hat have always struck me as an expression of the seriousness of teaching and the approach I should take to it:

Once [. . .] a student asked me whether I could not give him a general rule regarding teaching. I replied: "Always assume that there is one silent student in your class who is by far superior to you in head and in heart." I meant by this: do not have too high an opinion of your importance, and have the highest opinion of your duty, your responsibility. (9)

Even people who disagree with my particular understanding of the "duty" of teaching would probably have to agree that the assumption that someone in the classroom is just flat out better than you are is an important check on the vanity that Weber argues is the occupational hazard of being a professor.

ESCONDIDO

The Escondido Public Library has apparently got a blog, here, and they've got some pretty good links, actually.

SUPREME COURT AND PRIVATIZATION IN INDIA

Earlier this month, the Supreme Court of India ruled that the government could not privatize state-owned oil industries without specific authorization from parliament. Read a Financial Express article here, and today's Times of India editorial, here, which discusses some of the ongoing repercussions of the ruling. Business press commentary on the decision has been critical of the Court. Tomorrow, the Cabinet Committee on Disinvestment will be meeting to discuss the future course of disinvestment in light of the Supreme Court's recent action.

The case is Centre for Public Interest Litigation Petitioner versus Union of India and another Respondents. Haven't found a free, full-text copy of the opinion yet.

MORE: I have posted a full text of the opinion here. You can also go to JUDIS and search for it yourself by case number.

MEMORIES

Greetings to those coming here searching for Orioles v Yankees playoff fan interference. And if you think about this issue, you're left with three choices: condemn it when it happens to your team but don't condemn it when it happens to your opponents, say that a bad call is a bad call is a bad call and wrong no matter when it happens, or say that it may be unfortunate when your team gets screwed, but that's the way the game is played and it will all even out in the end somehow. It's really hard to hold to the second line; since we also have incredible abilities to define "bad call" in ways that we find retrospectively congenial, the second line often develops into the first (or at least a reasonable observer could think so). The first is hypocrisy and should probably be avoided. The third is more consistent and probably the most humanly possible approximation of a sensible approach to the issue. Plus, it requires, at least, that the hope that "things will even out in the end" is not a pipe dream. There has to be alteration of winners and losers, and there has to be a process that produces alteration. If there's no alteration, then bad calls are really only the tip of the iceberg.

Draw out the analogy to politics (and the courts) and you can see what I'm getting at here.

HASEN'S MOVE

Rick Hasen's superb Election Law Blog has moved; you should follow:

http://electionlawblog.org/

BAUER, COURT-CUSSER, ETC.

Gary Bauer has an op-ed in today's WaPo on why the FMA is a good idea, here. Note the subtle shift in the word "liberty" that occurs in the piece.

I WAS TRYING TO THINK OF AN ANALOGY LIKE THAT. . .

Ted Barlow already did. If you haven't seen it, go here. While there, go here.

QANTARA

The latest issue of Qantara is up. Highlights include two articles on the German Constitutional Court's recent hijab decision, here and here.

DER FREISCHWIMMER

Keep your favorite German politicians above water after the "ship of state" sinks, here.

Someone with good Flash skills has got to make one of these for the Bush administration.

BILL O

Gosh. Sounds to me like, "Back in the day, Al Franken probably would have been challenged to a duel, and he would have lost." (At least I think that's what Bill O'Reilly means.) What a great argument for justifying a frivolous lawsuit. Considering that duelling has generally been considered incompatible with democracy and sound government, even in the nineteenth century. Oh well.

ASHCROFT'S REACTIONS

BTW, if you haven't watched Ashcroft's press briefing, it's here (RealPlayer). Scroll forward to about 14:20.

MORE: Video from C-Span. (Sorry for the earlier omission!)

FALSTAFF

He's popularly known as a Svengali, but is Rove perhaps instead the Falstaff to Bush's Prince Hal?

Maybe we'll see if the President has got it in him.

MOTIVATED REASONING

There's been a lot of rhetoric recently about the supposed depravity of "Bush haters," even from some who claim to have castigated "Clinton haters," although I haven't done the research to know if they're playing straight. But I don't see why "Bush hating" is any more interesting a phenomenon than "Bush loving," which manifests itself in reflexive habits of defending the administration against charges of wrong-doing. For a particularly fine example, see Jonah Goldberg's comments on the Plame affair, here. "Bush loving" is the same thing as "Bush hating," with respect to the truth of what is being asserted -- the signs are just reversed, if you will.

In a different context, Harold Spaeth and Jeffrey Segal write:

[I]f human beings have an unlimited capability, it is the ability to rationalize our druthers. We ought never underestimate our talent for motivated reasoning. (Majority Rule or Minority Will, 43).

I'm not sure that I agree with Spaeth and Segal on judicial behavior, but this seems to me to be a generally good observation about political commentary -- especially commentary that runs in the well-worn grooves of punditry. This is not a big secret, of course (with respect to my own motivations as well), but there is something fascinating in the spectacle of it all.

LINKS

Today, Calpundit gives a synopsis of the state of the Plame story.

Jim Joyner comments on a good article on the (mis)use of reserve forces.

Howard Bashman calls our attention to yet another 9th Circuit case where the liberals lost. I'm beginning to wonder whether or not the "liberal 9th Circuit" line is of the same kind of quality as the "liberal media line": useful for organizing purposes (see the comments here in particular), but not a particularly useful description of the subject under description. (Regular readers will know that I find "cussing the court" to be an political phenomenon worthy of interest and study, partly because of what I suspect are asymmetrical partisan distribution[s] of gains resulting from it.)

Yesterday, Rick Hasen gave an outline of the CA recall post-election timetable. The bottom line: in a close race, expect recounts. It might not be pretty.

And for a little fun, Logic Monkey jerks your brain out of its self-imposed tutelage, sort of. [MORE: All right, Logic Monkey has gone off on this anti-public school, pro Pope John Paul II thing. Fair enough. But the syllogism games are fun.]

Trogdor. Just watch it.

EXCHANGES

Over the weekend, while I was in Bethesda visiting Anita, I went to a wedding. The groom was an exchange student with me way back in the late 1980s, on the Congress-Bundestag Youth Exchange Program, a government-funded program that sends high school students to live in Germany, with host families, typically for their junior or senior year. My year in Berlin was a life-forming experience.

Fifteen years later, in a little town in the Shenandoah Valley, a friend of mine from that year got married. He is now an Air Force medic. He has kept in touch with his host family; they were there this weekend. Another former exchange student from our group also flew in for the wedding. She now runs a fruit farm with her husband in Oregon.

One other person from our group who has been tracked down: Greg, one half of the Oakland-based Moore Brothers. Check out their music, here.

If you know anyone who is currently in high school, tell them to apply for this program.

GOELZHAUSER

Moved, here. Unfortunately, archived posts on his old site seem to have vanished. . .

HOWDY

Here are a few new links to check out:

A House Divided (collection of political news stories)

I'll Think About That Tomorrow (thoughts on teaching lit to undergrads?)

Attorney-at-Arms (a grumpy liberal lawyer)

das musste mal gesagt werden, oder? (in German, obviously)

The 2004 Philippine Elections (and so much more!)

Relationship Exit Strategies (for those with a taste for Canadian family law from a somewhat, well, instrumental perspective)

Privacy Digest (!)

BAILEY AND ME

Bailey and I both say hello.

SAY HI TO BAILEY

Bailey says hello.

WOW

Circle the wagons, folks, and fire at will.

What does it matter if Wilson has written for The Nation? What does it matter if former Republican image-crafter and PR man Clifford May thinks Wilson is credible? Whom does NRO think they're kidding?

Sorry for the strong statement here, but this is the kind of trash that makes me think that I should become a monk and never speak about politics again. Shameful. Via atrios.

MORE: NRO seems to be slow today, so here's part of the piece:

On July 11, I wrote a piece for NRO arguing that Mr. Wilson had no basis for that conclusion — and that his political leanings and associations (not disclosed by the Times and others journalists interviewing him) cast serious doubt on his objectivity.

On July 14, Robert Novak wrote a column in the Post and other newspapers naming Mr. Wilson's wife, Valerie Plame, as a CIA operative.

That wasn't news to me. I had been told that — but not by anyone working in the White House. Rather, I learned it from someone who formerly worked in the government and he mentioned it in an offhanded manner, leading me to infer it was something that insiders were well aware of.

I chose not to include it (I wrote a second NRO piece on this issue on July 18) because it didn't seem particularly relevant to the question of whether or not Mr. Wilson should be regarded as a disinterested professional who had done a thorough investigation into Saddam's alleged attempts to purchase uranium in Africa.

What did appear relevant could easily be found in what the CIA would call "open sources." For example, Mr. Wilson had long been a bitter critic of the current administration, writing in such left-wing publications as The Nation that under President Bush, "America has entered one of it periods of historical madness" and had "imperial ambitions."

Aside from the despicable argument that none of the questions about Plame matter because Wilson was a regime critic, note that Mr. May should probably reveal to the Justice Department the name of his source, per the White House's current line that journalists should pass on information related to officials who blow the cover of CIA operatives.

MY POLITICAL VIEWS

There is a discussion going on via the Law and Courts discussion list about whether or not professors should take positions on controversial issues in the classroom. Probably the question is best phrased as how one ought to reveal one's own political beliefs: tentatively, straightforwardly or in an opaque fashion (I'm ruling out "combatively" because such a position is probably related to a failure of pedagogical imagination). Even attempts to scrupulously avoid revealing one's own views will end up revealing something about one's own views; really attentive students will pick up clues no matter how hard you try -- if you're doing anything interesting in the classroom, that is.

I have had students who were not clear on my political positions by the end of a semester with me. I have always considered that kind of student confusion to be a good thing, or at least evidence of a kind of neutrality that should be the scholarly and pedagogical goal. Students deserve first and foremost an open forum within which they can develop their own capabilities. One necessary pedagogical faith is, I think, that it is good -- part of any defensible account of human flourishing -- for individuals to develop their capacities to reason, reflect, defend one's own views in an articulate and respectful manner, and to listen and respond to the views of others. Students don't get smarter by thinking what I think; they get smarter by figuring out what they think. A classroom in which there is no opportunity to respond to competing views because the professor has stifled debate is a classroom in which less development is taking place. That is a failed classroom. And to the extent that it helps to stifle debate and discourage dissenters from taking controversial positions, expressing one's views destroys one aspect of the forum.

I have known several excellent professors who were able to articulate their own views in a way that did not stifle debate. Generally the way to do this is to present one's views in a tentative manner, as theses or thoughts or observations that are contestible and up for debate. Even better is to dissimulate slightly and present your views in the form of the views of a third person whose positions are then up for discussion. But if you want to present your own views as your own views, do so with the appropriate humility and sense of distance that you would bring to the views of (other) folks on the syllabus.

The problem of revealing one's political views in the classroom raises a related question that has been bothering me for some time: how appropriate is it to reveal one's political views on a blog? Generally I have figured that those students who take the trouble to read what I've written here are going to be self-confident enough to speak their mind in class regardless of whether or not they think I agree with them. At least I hope that that is the case. I try to create an atmosphere in the classroom in which students feel comfortable expressing a wide variety of views; many of my best students most assuredly do not agree with me, know that they do not agree with me, and are willing to defend their views in the classroom in a spirited and articulate manner. I love that. It's part of the reward of teaching.

So, here's a plea: if you're in one of my classes and you're reading this, please consider the following. Even your teachers need to vent sometimes. And if something here bothers you, let me know! Tell me why you think I'm wrong. You won't be the first. And if you want to test it out, phrase your question in the following manner:

I've heard it said that X [X = something that directly contradicts what you're saying]. What do you think?

I'll appreciate it. And you might even be right!

MORE: This post doesn't really get at the issue, I know. The narrow issue is as follows: should a professor reveal that he or she is in favor of the Federal Marriage Amendment in the context of a course on civil liberties? The particular professor in question is a well-respected conservative at an ivy league school; the discussion emerged somehow (haven't followed up yet) out of a reaction to this editorial by David Brooks on conservatives in university life. Let me offer the following imperfect thoughts, based on my experiences teaching at a school in which many of the most articulate students are politically conservative:

In the question of pending political expressions of disapproval of gays and lesbians, it is necessary for the classroom to be a forum for the expression of views by both those who are directly affected by such actions and those who would defend the actions (and those who would ultimately vote for representatives who defend such actions). There is no getting around the fact that there are many politically powerful groups and individuals who want to withhold public expressions of approval for gays and lesbians, and many who would actually prefer to punish them criminally. My sense of their arguments is that they work best as unarticulated beliefs, even beliefs that are explicitly in opposition to the views espoused by liberal intellectuals. Force the arguments into the light of day, and force those who would defend those arguments to confront the fact that they will be harming people whom they know, people who are willing to say that they are being harmed. It will take articulate defenses of the rights of gays and lesbians in the form of non-first-person professorial arguments to make other students think. And if no one is willing to articulate arguments against things like the FMA, then the professor should do it. If the professor's own views prevent that from happening, then there is a failure of pedagogical will. A tolerant atmosphere does not mean an atmosphere that is free of conflict; rather, it means an atmosphere in which individuals are better able to be heard than they might be in the harsh glare of the political process.

MORE: See also Josh Cherniss's thoughts here (scroll down for post).

THE GOOD OLD DAYS

Remember the good old days of the independent counsel statute? Read WaPo here (via Atrios).

The lesson: in politics, never complain about methods. Just use them to your advantage, later. That requires taking the long view, which is, of course, hard (the political discount rates being much more severe than those that operate in capital markets).

MORE: Jeff Cooper disagrees, with a link to this post by Greg Greene. I'm not saying that it would be a good idea to revive the statute. I'm saying that it would be nice to have it around now and then allow Republicans to kill it for being used in a partisan fashion. Plus if political time horizons were longer, potential abuses of such statutes would be rarer because there would be more of a fear that such methods could be used by one's political enemies in the future. But time horizons are not long, so I haven't really said anything interesting here. . .

I'M NOT SURE WHAT THIS MEANS

Brock Sides reports on the peculiarities of an unnamed blocking software, using Oxblog's blogroll, here. This site isn't personal, clubby, "alternative," lifestyles-ish, or, apparently, interesting enough to be blocked. Hmmm.