Opening Argument – Michigan Voters Defy the Establishment

National Journal

A November 7 ballot proposal in Michigan drew passionate attacks from the Democratic Party, Big Business, unions, universities, the major newspapers, and religious, civic, and civil-rights groups. It drew tepid opposition even from the state’s top Republicans.

Among the attacks:

•"The proposal could have remarkably negative effects on … breast cancer screenings [and] domestic-violence shelters for women," editorialized The Detroit News.

•"It will immediately eliminate opportunities for women and minorities to have equal access to jobs, education, and contracts in Michigan," said a flier highlighted on the Web site of One United Michigan, the major establishment opposition group.

•It would "give [the state’s] universities, its local governments, its counties, and its state bodies the right to discriminate against blacks, Latinos, and women in violation of our federally guaranteed equal-rights protections," said By Any Means Necessary, the shorthand name of a more radical opposition group.

What is this horrible monstrosity? And why did Michigan’s voters adopt it by 58 percent to 42 percent after a campaign in which opponents outspent supporters by 4-to-1?

The Michigan Civil Rights Initiative, as supporters call it, amends the state constitution by outlawing racial discrimination against Asians and whites — as well as against blacks and Hispanics — in certain public programs. This is what Congress thought it had done in the 1964 Civil Rights Act before the courts went to work on it.

Witness for the Prosecution?

Slate.com

Imagine you are the world’s most powerful newspaper and you have invested your credibility in yet another story line that is falling apart, crumbling as inexorably as Jayson Blair’s fabrications and the flawed reporting on Saddam Hussein’s supposed WMD. What to do?

If you’re the New York Times and the story is the alleged gang rape of a black woman by three white Duke lacrosse players–a claim shown by mounting evidence to be almost certainly fraudulent–you tone down your rhetoric while doing your utmost to prop up a case that’s been almost wholly driven by prosecutorial and police misconduct.

And by bad journalism. Worse, perhaps, than the other recent Times embarrassments. The Times still seems bent on advancing its race-sex-class ideological agenda, even at the cost of ruining the lives of three young men who it has reason to know are very probably innocent. This at a time when many other true believers in the rape charge, such as feminist law professor Susan Estrich, have at last seen through the prosecution’s fog of lies and distortions.

The Times took its stand in a 5,600-word, Page One reassessment of the case on Aug. 25, written by Duff Wilson, a sportswriter responsible for much of the paper’s previous one-sided coverage, and Jonathan Glater. The headline was “Files From Duke Rape Case Give Details But No Answers.”

The Gitmo Fallout

Newsweek

David Bowker vividly remembers the first time he heard the phrase. A lawyer in the State Department, Bow-ker was part of a Bush administration "working group" assembled in the panicked aftermath of the September 11 attacks. Its task: figuring out what rights captured foreign fighters and terror suspects were entitled to while in U.S. custody. White House hard-liners, led by Vice President Dick Cheney and his uncompromising lawyer, David Addington, made it clear that there was only one acceptab

David Bowker vividly remembers the first time he heard the phrase. A lawyer in the State Department, Bow-ker was part of a Bush administration "working group" assembled in the panicked aftermath of the September 11 attacks. Its task: figuring out what rights captured foreign fighters and terror suspects were entitled to while in U.S. custody. White House hard-liners, led by Vice President Dick Cheney and his uncompromising lawyer, David Addington, made it clear that there was only one acceptable answer. One day, Bowker recalls, a colleague explained the goal: to "find the legal equivalent of outer space"–a "lawless" universe.

As Bowker understood it, the idea was to create a system where detainees would have no legal rights and U.S courts would have no power to intervene.

Opening Argument – Supreme Confusion

National Journal

"KENNEDY, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts II — A and III, in which STEVENS, SOUTER, GINSBURG, AND BREYER, JJ., joined, an opinion with respect to Parts I and IV, in which ROBERTS, C.J., and ALITO, J., joined, an opinion with respect to Parts II — B and II — C, and an opinion with respect to Part II — D, in which SOUTER and GINSBURG, JJ., joined. STEVENS, J., filed an opinion concurring in part and dissenting in part, in which BREYER, J., joined as to Parts I and II. SOUTER, J., filed an opinion concurring in part and dissenting in part, in which GINSBURG, J., joined. BREYER, J., filed an opinion concurring in part and dissenting in part. ROBERTS, C.J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part, in which ALITO, J., joined. SCALIA, J., filed an opinion concurring in the judgment in part and dissenting in part, in which THOMAS, J., joined, and in which ROBERTS, C.J., and ALITO, J., joined as to Part III."

Thus concludes the nine-page summary ("syllabus") of the 132 pages of opinions — six in all, none winning the full assent of more than two justices — of the second big Supreme Court decision this week involving judicial superintendence of the political process.

This was the June 28 decision that rejected, 5-to-sort-of-4, a constitutional challenge to the Texas Legislature’s mid-decade partisan gerrymander of the state’s 32 congressional districts (holding No. 1) while ruling, by a differently constituted 5-to-4, that the Voting Rights Act requires redrawing one district to give it a Hispanic voting-age majority (holding No. 2).

Opening Argument – Where’s the Outrage?

National Journal

Back in 1998, when I was excoriating President Clinton for perjury and obstruction of justice, I had plenty of Republican company. This, my Republican friends and I agreed, was serious business.

But some Clinton-bashing conservatives have reacted rather differently to the alleged grand jury perjuries, lies to the FBI, and obstruction of justice for which I. Lewis (Scooter) Libby, Vice President Cheney’s former chief of staff, stands indicted.

These conservatives go beyond claiming that the evidence that Libby lied is weak — which is fair game, albeit unpersuasive (in my view) — to trivializing any cover-up as not very serious anyway. They remind me of the many Democrats who trivialized Clinton’s multiple perjuries and suborning of perjury as mere "lying about sex."

These days, the leader of the who-cares-about-perjury pack is The Wall Street Journal’s editorial page — the "Daily Diatribe of the American Right," as it was called in the headline of a 1989 American Lawyer piece (by me).

In 1998, The Journal saw criminal cover-ups — even of matters that were not themselves crimes — as a big deal. "The latest Clinton scandal involving Monica Lewinsky is titillating because of sex," The Journal editorialized then, "but it derives its legal and political importance from the issues of perjury and obstruction of justice."

Back then, other respected conservatives — Mary Matalin and William Kristol, for example — were even more emphatic about what Matalin called Clinton’s "perjury, suborning perjury, obstruction of justice, conspiracy." They have a far more dismissive view of the evidence of high-level lies underpinning the indictment of Libby and the near-indictment of Karl Rove.

Opening Argument – How Racial Preferences Backfire

National Journal

Most — if not all — of the nation’s leading law firms seek to become more diverse by using "very large hiring preferences" for African-Americans and smaller preferences for Hispanics. So most of their newly hired minority lawyers have relatively weak academic records that would have brought rejection had they been white.

But these preferences are at best a mixed blessing — and are often a curse — for their recipients. After a year or two on the job, most minority associates at big firms get less desirable assignments and less training than their white counterparts. Many become discouraged and embittered. Young black lawyers leave big firms "at two or three times the rate of whites."

These problems plague minority lawyers precisely because of the racial preferences that got most of them hired. By lowering the big firms’ usual hiring standards, large preferences bring "disparities in expectations and performance that ultimately hurt the intended beneficiaries."

These are among the conclusions copiously documented by Richard Sander, a UCLA law professor, in a 66-page article soon to be published in the North Carolina Law Review. It is laden with meticulous statistical analyses of six publicly available data sets, including surveys of thousands of law students and lawyers at various stages in their lives and careers.

Sander’s blockbuster article, "The Racial Paradox of the Corporate Law Firm," rejects the conventional wisdom that racism explains why most young black lawyers in large firms do not fare well, and why barely 1 percent of big-firm partners — compared with 8 percent of new hires — are black.

Opening Argument – Gay Marriage and the Estate Tax

National Journal

President Bush and congressional Republicans have spent the past week rallying their base by flogging proposals on the issues headlined above that seem extreme and indefensible to many of us independents.

On gay marriage, the "Marriage Protection Amendment" that Bush is pushing would bar not only activist judges but also the people and their elected representatives from ever allowing gay couples to marry. So states where public opinion may someday come to favor same-sex marriage would find their hands tied by the Constitution. This from the party that purports to champion states’ prerogatives in matters of local concern.

On the estate tax, Republicans (and some conservative Democrats) want Congress to abolish all taxes on inherited wealth, to the point of encouraging people who never work to live high on vast, untaxed bequests. This from the party that purports to champion work incentives.

The whole gay-marriage/estate-tax show is mainly symbolic, of course. The Marriage Protection Amendment has no chance of adoption. And the campaign for complete abolition of the estate tax has little chance. But if there is poetic justice in this world, the Republicans’ revealing choice of symbols will backfire by spurring independent swing voters to sweep them from power.

Gay marriage. Many religious conservatives see homosexual acts as sins. And many other people fear that gay marriage would somehow harm an institution that has been a cornerstone of civilization for thousands of years.

I disagree. In particular, the notion that gay marriage would tempt straight and monogamous people to become gay or promiscuous seems far-fetched. So does the idea that gay marriage — which would move not a single child from a traditional household to a gay one — would be bad for children.

Opening Argument – Dumb and Dumber

National Journal

Comes now Attorney General Alberto Gonzales, a man not known for legal acuity, with a threat to prosecute The New York Times and other news media for publishing leaks of classified information.

Gonzales, who launched a major investigation late last year into such leaks, claimed in a May 21 ABC News interview that Congress has made a "policy judgment" that in some circumstances journalists should be prosecuted for publishing classified information.

This assertion is misleading at best. The 89-year-old espionage law to which Gonzales was mainly referring was not intended to prosecute anybody for publishing anything and has never been so used. This is an administration that has not hesitated to leak classified information that makes it look good — but calls it criminal for others to publish leaks that make it look bad.

Its most bitter complaints have been aimed at the Pulitzer-Prize-winning disclosure by The New York Times on December 16 of President Bush’s previously secret, warrantless eavesdropping program. Some serious scholars see that program as violating criminal provisions of the Foreign Intelligence Surveillance Act. I don’t, because the murkiness of the legal issues may absolve Bush of criminal intent.

But exposing arguably illegal presidential activities is what the First Amendment freedoms of speech and press are all about. Bush is a shameless demagogue for denouncing as a "shameful act" the exposure of his own circumvention (if not violation) of FISA.

Someone should tell Gonzales and Bush that the relevant congressional "policy judgment" here — one shared by the Constitution’s Framers — is that the president is not a law unto himself.

Opening Argument – In Duke Case, a Rogues’ Gallery

National Journal

My rogues’ gallery does not (in all probability) include any Duke University lacrosse player. That’s because the available evidence leaves me about 85 percent confident that the three members who have been indicted on rape charges are innocent and that the accusation is a lie. (Some evidence was in my April 29 column; some is below.)

The gallery does include more than 90 members of the Duke faculty who have prejudged the case, with some exuding the anti-white racism and disdain for student-athletes that pollutes many college faculties.

The gallery also includes former Princeton University President William Bowen and civil-rights lawyer Julius Chambers. They went out of their way to slime the lacrosse players in a report on the Duke administration’s handling of the rape scandal — a report that is a parody of race-obsessed political correctness.

Many members of the national media have published grossly one-sided accounts of the case while stereotyping the lacrosse players as spoiled, brutish louts and glossing over the accuser’s huge credibility problems.

Then there is Mike Nifong, the Durham, N.C., district attorney who is prosecuting the case. In addition to the misconduct detailed in my April 29 column, he has shielded his evidence (if any) from public scrutiny while seeking to keep the rape charges hanging over the defendants by delaying any trial until next spring.

Nifong and a certain Durham police officer should themselves be under criminal investigation, in my view, for what looks like possible intimidation of a disinterested defense witness, a cabbie who had been transporting one defendant at the time of the alleged rape.

Am I prejudging the case myself? Yes, in that I have not yet seen all of the evidence. And yes, in that there could be an innocent explanation for the recent arrest of the cabbie by rape-case investigators under a two-and-half-year-old, apparently frivolous shoplifting warrant.

Opening Argument – More Racial Gerrymanders

National Journal

When conservative Republicans such as House Speaker Dennis Hastert and Senate Majority Leader Bill Frist jointly sponsor Voting Rights Act amendments with such liberal Democrats as Rep. John Conyers and Sen. Edward Kennedy, be suspicious.

They are steamrollering through Congress bipartisan legislation to renew for the next 25 years a much-misunderstood, largely anachronistic provision (Section 5) of the Voting Rights Act, including amendments that are driven by racial-identity politics and that would aggravate ideological polarization.

The amendments would turn back the clock on racial progress by requiring even more racial gerrymandering of election districts than under current law. And the extension of Section 5, as currently drafted, would perpetuate an extraordinarily punitive oversight regime that gives to federal political appointees and not-exactly-apolitical bureaucrats at the Justice Department unreviewable power to dictate state and local election rules in nine (mostly Southern) states and some other jurisdictions.

Why would broad bipartisan majorities of House and Senate incumbents want to do that? To help themselves win re-election, for starters. More specifically, Democrats are pandering to the demands of black and Hispanic politicians for safe seats and to the ideological obsessions of the civil-rights lobby, which still sees America as so steeped in racism that whites just won’t vote for minority candidates.

Never mind that Douglas Wilder, an African-American, was elected governor of Virginia in 1989; Bill Richardson, a Hispanic, was elected governor of New Mexico in 2002; Colin Powell might well have been elected president of the United States had he run in 1996; nine of the 34 Georgia officials elected statewide are black; and so on, and so on.