Tuesday, May 26, 2009

Just Don't Call it Marriage

The California Supreme Court issued a decision today in Strauss v. Horton and related cases, that will probably make everyone unhappy. But maybe people on both sides of this issue should feel at least partially vindicated. The Court upheld the validity of Proposition 8, which amends the State Constitution to read that only marriage between a man and a woman is valid or recognized in California. But at the same time, the Court recognized the validity of the thousands of same sex marriages performed in California between the time of the Court's decision last year finding a constitutional right to marry regardless of sexual orientation, and the voters' amendment of the Constitution last November preventing the state from recognizing a marriage between same sex couples.

Before the social conservatives declare victory, however, and before the social liberals get ready to burn down the courthouse, both sides might want to consider how narrow this decision really is. Both sides might then come to the conclusion that their glasses are half full. What the California Supreme Court actually decided was that Prop. 8 did not affect anybody's substantive rights at all. Nor could Prop. 8 take away the marriage designation from couples who were already validly married in California. Therefore, all Prop. 8 did was to say that you can no longer call a same sex union a marriage, except that you still have to call it marriage for the thousands of same sex couples who took advantage of the Supreme Court's ruling last year. For the future, the Court held that the state cannot deny any rights or benefits to same sex couples that are enjoyed by different sex couples. Or as the Court stated, "same-sex couples continue to enjoy the same substantive core benefits afforded by those state constitutional rights as those enjoyed by opposite-sex couples--including the constitutional right to enter into an officially recognized and protected family relationship with the person of one's choice and to raise children in that family if the couple so chooses--with the sole, albeit significant, exception that the designation of 'marriage' is, by virtue of the new state constitutional provision, now reserved for opposite-sex couples." (slip opinion at p. 92)

It is ironic that in order to save Proposition 8, the Court had to render it almost meaningless. On the other hand, if the Court had held that Proposition 8 had the fundamental effects that its opponents claimed that it had, the Court might have had to overturn Proposition 8 as an invalid attempt to revise, as opposed to amend, the Constitution. Therefore, nobody won, and perhaps nobody could have won.

Instead of getting outraged about this decision, maybe everyone should try to accept it for the time being. And even if this result doesn't seem to make much sense, and it is sure not to make sense for an awful lot of people on both sides of this issue, maybe that's not the Court's fault. Last year the Court interpreted the Constitution to find a fundamental right of all people to enjoy the benefits of marriage. The voters then amended the Constitution to prevent the state from conferring the title of marriage on same sex couples. But now the Court is saying that all the voters did was to prevent the use of the term "marriage" for same sex couples, and nothing more. As a result, nobody is getting everything they want, but maybe everybody is getting everything they need. Proponents of same sex marriage might try to console themselves with the words of Juliet: "What's in a name? That which we call a rose by any other name would smell as sweet." Perhaps we can think of a better name than civil unions for same sex marriage-like relationships. Meanwhile social conservatives may have to finally wake up to the reality that they have already lost this battle, and all they are holding onto is a name. And they will have to reconcile themselves to that.

Photo from Riverfront Times

Since When is Empathy a Bad Thing?

I always thought that empathy was the hallmark or a great lawyer, or a great judge. As Atticus Finch, the fictional inspiration for thousands of lawyers, said, in order to understand a man, you need to try standing in his shoes and walking around in them. It seems to me that this quality is absolutely essential to judging. A judge must try to understand the perspective of both sides of the issue before him. Indeed, the only way for a judge to try to remove his or her own biases, is to try to understand the case from the perspective of the litigants in the case. That is the meaning of empathy.

Empathy does not mean putting aside the law and trying to reach a pre-determined result. The best example of that I can think of is Justice Scalia's decision in the infamous Bush v. Gore. Anyone who thinks that only liberals are result-oriented should re-read that decision. Empathy also does not mean that you necessarily adopt the view of the widow or orphan in the case before you. Empathy means that you put yourself in the position of both of the litigants in the case. A good judge needs to be empathetic to the interests of business as well as the interests of labor, to the interests of the state as well as the interests of the individual. Being empathetic is not only critical to reaching a fair result, it is also essential to understanding the impact of court rulings on real human beings, which is another quality generally thought essential to judging.

Now that potential opponents of President Obama's judicial appointments are intent on turning "empathy" into a bad word, what is next? How about compassion? Patience? Equanimity? How about justice itself? If you really believe that all that matters is the cold letter of the law, and no human feeling should play any part in judicial decision-making; if you think that we can somehow interpret the letter of a statute or the Constitution without giving any thought to how those interpretations will play out in the real world, then we should really try to find a way to create robots that can act as judges, and all of the human qualities which have repeatedly been invoked by great judges in history should fall by the wayside.

Friday, May 22, 2009

Chill Out, Rachel Maddow!

Some on the left are viewing the administration's recent decisions on national security issues--e.g., withholding additional photos of prisoner abuse, or maintaining some version of military tribunals--as some sort of betrayal. Others are angry that the president's economic policies have been too friendly to Wall Street, and insufficiently populist in nature. The impulse to hold the administration's feet to the fire, and to press for the left's agenda, is of course understandable, and no one should be faulted for advocating their political views. But is it fair to view every decision that does not toe the liberal line as an abandonment of principle, or a cause for anger? That would be the right response only if you judge the president's efforts by how many times he gives the "right" answer on some series of litmus tests. To judge the president that way, however, first of all would ignore the political reality that opposing views must sometimes be accommodated in order to proceed with the most important parts of your agenda. So, for example, Congress and the President let the opposition slip in an amendment to the credit card reform bill that would allow people to carry concealed weapons in national parks. They made a judgment that it was better to get the bill passed even with a provision that the majority does not support, than to create a fight that would delay the bill and slow down action on other bills.

Perhaps more fundamentally, judging the new administration on how closely it adheres to the left's preferred policy positions would also contradict the essence of the Obama campaign. While candidate Obama did express a series of policy preferences, the more important message of his candidacy was one of reconciliation and inclusion, of changing the nature of the political process to include all voices of the American people, and at the same time reducing the influence of special interests. Judged by the standard articulated in his own campaign, President Obama by definition cannot betray his supporters merely by compromising or even reversing some of his policy positions, so long as he does so for legitimate reasons, including valid national security concerns, and also including the need to accommodate other political views. The only way that President Obama could betray the principles on which his campaign was based would be for him to act in a heavy-handed, non-inclusive way; or for him to accommodate special interests in a way that is harmful to the best interests of the American people. Therefore, while people are entitled to be disappointed with some decisions, and are free to express their disappointment, they should not be so quick to view any decision they dislike as a betrayal.

(For a similar take on whether Rachel Maddow is going off the deep end, go to this post on Daily Kos.)

Wednesday, May 20, 2009

The Trouble with Democracy

Here is a nice analysis in the Los Angeles Times of why the ballot measures designed to deal with California's budget crisis went down to crushing defeat yesterday. The voters want the legislature to deal with this problem, and are rightly frustrated that they cannot. We resent being presented with a bunch of complicated propositions that represent a compromise solution. At the same time we voters have rigged the system to make it nearly impossible for the legislature to deal with the problem. So basically the voters want to have their cake and eat it at the same time. Or as the story reports, a poll found that "voters oppose cutbacks in 10 of 12 major categories of state spending, including the biggest, education and healthcare. Yet most voters were unwilling to have their own taxes increased, and they overwhelmingly favored keeping the two-thirds requirement for tax hikes."

Well, there you have the problem in a nutshell. We don't want to cut spending and we don't want to raise taxes. That's what the voters expressed very clearly yesterday, and now the ball is back in the legislature's court. Good luck.

Sidney Poitier

This morning I heard an interview on the radio with Sidney Poitier, who was promoting his autobiography. Poitier talked about the moment when his father sent him off to Florida to live with his brother, putting $3 into his hand and telling him to take care of himself. Looking at his father, Poitier could tell that his father was wondering whether he had given his son enough to be prepared to make his own way in the world. Poitier said that he ultimately decided that his father had given him more than enough, and he wasn't talking about the three dollars.

I had just dropped off my two fourteen year old kids at school and told them that they should take the subway and bus home from school by themselves. I have shown them how to do it, but they have never gotten home on their own before, and they are not too crazy about the idea. I told them that because of the thoughtless way that we drive everywhere, the Maldive Islands are sinking into the sea, and their inhabitants are being forced to look for a new country to live in. And I have been trying to persuade them of how exciting it should be for them to be able to navigate the city on their own. I'm not sure my arguments were having any impact.

We can never be sure that our kids are prepared to make their own way in the world, but hard as it sometimes is, and even nowadays when they don't always seem to value independence, we have to let them go anyway.

Friday, May 15, 2009

California Headed for Disaster Again

We have a bunch of truly awful propositions on the ballot next week, but if we don't support them, the state appears headed for even worse short term disaster than already exists. Conservative commentators, like my friend Hugh Hewitt, are saying that a no vote will demonstrate the people's rejection of tax and spend government. The trouble with that theory is that a lot of more liberal analysts, like Calitics, are also calling for a no vote. The polls show almost all the propositions, except the most trivial one cutting legislators' pay if they can't pass a budget, headed for probable defeat.

The governor is attempting to scare people with the contingency plans for dealing with this budget shortfall, and people should be scared, because these plans will entail some real pain. It is hard to see how anyone will benefit by cutting the budgets of schools and hospitals and prisons, and no one should be cheerful at the prospect of having to make such cuts.

Having lived through what was essentially a bankruptcy for New York City in the 1970's, I remember what it was like when city services all went to hell, and the city was unsafe, dirty, and basically non-functional. But what ultimately saved New York City was that people were forced to get together and agree on a plan that required that sacrifice be spread fairly among all of the players. The unions had to take pay cuts; people had to accept even fewer services; and everyone had to pay more taxes. Felix Rohatyn still likes to talk about his glory days saving New York City from ruin, and how the lessons learned at that time can be applied today. And I think he's probably right about that.

Unfortunately in California right now, everyone would rather play the blame game, or perhaps it is a game of chicken, rather than sit down at the table in a cooperative manner and do what is necessary to get the state fiscal house in order. The Democrats close their ears when talk comes to service cuts, and the Republicans close their ears when the talk turns to tax increases. So I almost think it might be necessary for these propositions to fail on Tuesday, and for the fiscal sky to fall in, before all the players will be motivated to sit down and agree on a serious package of BOTH service cuts and tax increases that will be necessary to bring the budget back into balance. That said, I'm still not sure I am ready to vote on Tuesday knowingly to cause a disaster on Wednesday.

Thursday, May 14, 2009

Another Lesson on How to Make Change

Often, it is the symbolic gesture that creates the most impact. Take President Obama's choices of what commencement invitations to accept this spring. He could have soaked up adulation at any Ivy League school, but passed up such opportunities, and instead chose to speak at Arizona State, Notre Dame, and the Naval Academy. Obama took the risk of controversy and protests at these schools, in order to reach out to conservative elements of academia. Instead of ignoring the controversy at Arizona State about whether he had accomplished enough to merit an honorary degree, Obama cleverly worked that theme into his speech, telling the students that both he and they still have much left to achieve. Here is what he said:

"I come here not to dispute the suggestion that I haven't yet achieved enough in my life. I come to embrace it; to heartily concur; to affirm that one's title, even a title like President, says very little about how well one's life has been led - and that no matter how much you've done, or how successful you've been, there's always more to do, more to learn, more to achieve.

And I want to say to you today, graduates, that despite having achieved a remarkable milestone, one that you and your families are rightfully proud of, you too cannot rest on your laurels. Your body of work is yet to come."

So here is further evidence of the president's political genius. If people wonder why health care reform seems likely to pass this year, it will be because messages like these help melt opposition away.

By contrast, George W. Bush notably missed opportunities to reach out to opponents. Although he did give a commencement address at Yale in 2001, that was his alma mater and therefore had to treat him politely. Otherwise, he tended to stay close to his base. Here are some other schools where George W. Bush gave commencement addresses:

Furman University
Miami-Dade College
Notre Dame
Coast Guard Academy
Ohio State University
Texas A&M
West Point
Calvin College
US Air Force Academy
US Naval Academy
Oklahoma State University

Does this mean that the liberal elite institutions will always be ignored at graduation time, regardless of whether the Democrats or Republicans are in power?

Wednesday, May 13, 2009

Try Somalia

Here is a persuasive video on the evils of socialism and the joys of living in a country with an unfettered free market and a non-functioning government. On the other hand, you could get cholera in a place like that.

Friday, May 8, 2009

Say It Ain't So, Joe

According to Time, even Joe the Plumber might be quitting the Republican party. As I discussed in a post written just before the election, Joe the Plumber was the perfect symbol for the Republican Party during the campaign. Having completely failed to convince most voters that the Republican record, or its plans, would benefit the average American, the McCain campaign latched onto one guy who was deluded enough to believe that Republican economic plans would make him better off than what the Democrats were proposing. McCain's argument was simple: maybe I can't make the case to you directly, but this guy is stupid enough to buy it, so you should listen to him! (My analysis of McCain's argument during the campaign against Obama's tax plan is here.)

Now, if even Joe the Plumber is no longer buying it, the Republican Party may be in real trouble trying to sell the working class on the idea that the Republican alternative would make people better off.

Thursday, May 7, 2009

The Incredible Shrinking Republican Party

Why would Rush Limbaugh be so willing to suggest that Colin Powell join Arlen Specter in abandoning the Republican party? Can the Republican Party really afford to lose such distinguished members and still remain a nationally important party? Perhaps Rush Limbaugh really believes, as Barry Goldwater did, that in their hearts, most Americans feel that he is right. I keep hearing Republican spokespeople saying that the majority of Americans are conservative, or that a large proportion of Americans are unhappy about the direction of change (or the change of direction) in Washington. Based on election results, this would seem to be wishful thinking on their part. To give Limbaugh and his followers more credit, perhaps they believe that by narrowing their focus and regrouping into a core band of die-hard true believers in their principles, the Republican Party will come back in a stronger and more dynamic way. Or perhaps Limbaugh is just enjoying the current void in Republican leadership, making him an even bigger frog in an ever-smaller pond.

One would think the more logical strategy would be for at least some Republicans in Congress to try to reach out to the administration in power and exert some influence in exchange for support of some policies. Several Republican governors (including mine) have adopted this strategy and it may be paying off for them. But most Congressional Republicans come from safe districts, and seem to feel no pressure to support any Democratic programs. That means the Republicans will continue to keep their appeal narrowly focused on their base. That strategy can only work if the new administration's policies are perceived to be complete failures. Rush Limbaugh has already publicly stated that that is what he is hoping for.

Wednesday, May 6, 2009

Not too much change on the Supreme Court

As this analysis on my other blog makes clear, people should not be getting too excited about President Obama's upcoming opportunity to make his first Supreme Court appointment. Replacing David Souter, who generally voted with the Court's more liberal members, is not likely to shift the balance of views of the Court. What we should be solely focused upon is the caliber of person to be appointed. Sadly, however, because most commentators are not qualified to opine on issues of constitutional law and interpretation, or of judicial quality and character, and because the politics of the Court will not change as a result of this appointment, what we are going to see instead will be far too much attention paid to superficial characteristics such as the gender and ethnicity of the candidates, and very little on the real issues.


Why do we so enjoy seeing the self-righteous defenders of conventional morality fall victim to their own indiscretions? Should we not recognize that all of us are sinners and none of us lives up to our own ideals? Or do many of us like to take advantage of every opportunity to knock conventional morality off its pedestal? Or are we just happy to have the excuse to post salacious pictures on our websites?

For anyone who has not been following the news, the photo is of Miss California, Carrie Prejean, who gave the "wrong answer" to a question about gay marriage at the Miss USA pageant, and thereby became a hero and spokesperson for traditional marriage advocates.

In the interest of fairness, here is the poor girl's statement:

"I am a Christian, and I am a model. Models pose for pictures, including lingerie and swimwear photos. Recently, photos taken of me as a teenager have been released surreptitiously to a tabloid website that openly mocks me for my Christian faith.

"I am not perfect, and I will never claim to be. But these attacks on me and others who speak in defense of traditional marriage are intolerant and offensive. While we may not agree on every issue, we should show respect for others' opinions and not try to silence them through vicious and mean-spirited attacks."

And for another cute story on the subject of hypocrisy, this one about my old law professor Antonin Scalia, go here.