A collection of stuff from the web whose links I think will go bad, preserved for future reference.
Originally here:
A few weeks ago, the election map on Real Clear Politics looked like this:
And today is election day, and it looks like this:
Originally here:
Originally here:
At this point it remains unclear whether this action is condemned because it expresses a particular moral stance of the farmer toward other organisms or because something bad is being done to the flowers themselves.What is clear, however, is that Switzerland's enshrining of "plant dignity" is a symptom of a cultural disease that has infected Western civilization, causing us to lose the ability to think critically and distinguish serious from frivolous ethical concerns. It also reflects the triumph of a radical anthropomorphism that views elements of the natural world as morally equivalent to people.
The [Swiss] committee has . . . come up with few concrete examples of what type of experiment might be considered an unacceptable insult to plant dignity. The committee does not consider that genetic engineering of plants automatically falls into this category, but its majority view holds that it would if the genetic modification caused plants to "lose their independence" &mdash: for example by interfering with their capacity to reproduce.One Swiss scientist quoted in the editorial worried that "plant dignity" provides "another tool for opponents to argue against any form of plant biotechnology" despite the hope it offers to improve crop yields and plant nutrition.
Originally here:
Originally here:
May 2, 2008, 11:29 am
Obama: Voters Don’t Want Drama
By Jeff Zeleny
INDIANAPOLIS – Senator Barack Obama stood before dozens of his biggest contributors here today at a meeting of his national finance committee to outline the state of his candidacy as the Democratic nominating contest enters a final month of primaries.
Like all meetings with donors, the meeting on the 8th floor of a downtown Indianapolis office building was a private session. The group heard an update on April fundraising numbers from Penny Pritzker, the chairwoman of Mr. Obama’s national finance committee, as well as a report on Tuesday’s contests in Indiana and North Carolina.
For the contributors, many of whom flew here from across the country, it was a regular gathering. What was unusual, though, was that it was held directly down the hallway from where reporters were waiting for Mr. Obama to hold a morning news conference.
As Mr. Obama acknowledged to his contributors behind closed doors, and later as he spoke before the cameras, the campaign has been riding through a challenging stretch. First, a loss in Pennsylvania, which was anticipated, followed by an unusually personal episode with his former pastor, which was not anticipated.
“Obviously, we’ve had to fight through over the last week an awful lot of noise – that’s just a fact,” Mr. Obama told reporters. He added, “I think the American voters don’t want a whole bunch of drama. What they’re looking for is can you solve my problems?”
On the night of the Pennsylvania primary, as the Obama campaign plane flew here to Indiana, two of his leading advisers showed off their T-shirts that declared: “Stop the Drama. Vote Obama.” (It was, of course, an unspoken dig at their Democratic rival.)
But since that night, the Obama campaign has provided the lion’s share of the drama – particularly with the ongoing storyline of his former pastor, the Rev. Jeremiah A. Wright Jr.
“We’ve had a rough couple of weeks,” Mr. Obama said. “I won’t deny that.”
The campaign, once again, is striving to move the controversy over Mr. Wright’s offensive comments to the background. In the final days of the Indiana and North Carolina primary race, Mr. Obama hopes to press his economic message – particularly his opposition to a summertime suspension of the gas tax.
Even though he talked about that issue here again today – once again deriding the gas tax holiday as a “gimmick” – he also weighed in on another challenge he has faced: rebutting the suggestion that he doesn’t understand working Americans.
“I do think one of the ironies of the past two or three weeks is this idea that Michelle and I are elitist, intellectual pointy-head types. The fact is our lives more closely approximate the lives of the average voters than any of the other candidates,” he said. “We didn’t recognize the caricature that was being painted of us over the last couple of weeks.”
The question, of course, do voters?
End of Exhibit.
Originally here:
The Rev. Jeremiah Wright, explaining this morning why he had waited so long before breaking his silence about his incendiary sermons, offered a paraphrase from Proverbs: "It is better to be quiet and be thought a fool than to open your mouth and remove all doubt."
Barack Obama's pastor would have been wise to continue to heed that wisdom.
Should it become necessary in the months from now to identify the moment that doomed Obama's presidential aspirations, attention is likely to focus on the hour between nine and ten this morning at the National Press Club. It was then that Wright, Obama's longtime pastor, reignited a controversy about race from which Obama had only recently recovered — and added lighter fuel.
Speaking before an audience that included Marion Barry, Cornel West, Malik Zulu Shabazz of the New Black Panther Party and Nation of Islam official Jamil Muhammad, Wright praised Louis Farrakhan, defended the view that Zionism is racism, accused the United States of terrorism, repeated his view that the government created the AIDS virus to cause the genocide of racial minorities, stood by other past remarks ("God damn America") and held himself out as a spokesman for the black church in America.
In front of 30 television cameras, Wright's audience cheered him on as the minister mocked the media and, at one point, did a little victory dance on the podium. It seemed as if Wright, jokingly offering himself as Obama's vice president, was actually trying to doom Obama; a member of the head table, American Urban Radio's April Ryan, confirmed that Wright's security was provided by bodyguards from Farrakhan's Nation of Islam.
Wright suggested that Obama was insincere in distancing himself from his pastor. "He didn't distance himself," Wright announced. "He had to distance himself, because he's a politician, from what the media was saying I had said, which was anti-American."
Explaining further, Wright said friends had written to him and said, "We both know that if Senator Obama did not say what he said, he would never get elected." The minister continued: "Politicians say what they say and do what they do based on electability, based on sound bites, based on polls."
Wright also argued, at least four times over the course of the hour, that he was speaking not for himself but for the black church.
"This is not an attack on Jeremiah Wright," the minister said. "It is an attack on the black church." He positioned himself as a mainstream voice of African American religious traditions. "Why am I speaking out now?" he asked. "If you think I'm going to let you talk about my mama and her religious tradition, and my daddy and his religious tradition and my grandma, you got another thing [sic] coming."
That significantly complicates Obama's job as he contemplates how to extinguish Wright's latest incendiary device. Now, he needs to do more than express disagreement with his former pastor's view; he needs to refute his former pastor's suggestion that Obama privately agrees with him.
Wright seemed aggrieved that his inflammatory quotations were out of the full "context" of his sermons -- yet he repeated many of the same accusations in the context of a half-hour Q&A session this morning.
His claim that the September 11 attacks mean "America's chickens are coming home to roost"?
Wright defended it: "Jesus said, 'Do unto others as you would have them do unto you.' You cannot do terrorism on other people and expect it never to come back on you. Those are biblical principles, not Jeremiah Wright bombastic divisive principles."
His views on Farrakhan and Israel? "Louis said 20 years ago that Zionism, not Judaism, was a gutter religion. He was talking about the same thing United Nations resolutions say, the same thing now that President Carter's being vilified for and Bishop Tutu's being vilified for. And everybody wants to paint me as if I'm anti-Semitic because of what Louis Farrakhan said 20 years ago. He is one of the most important voices in the 20th and 21st century; that's what I think about him. . . . Louis Farrakhan is not my enemy. He did not put me in chains, he did not put me in slavery, and he didn't make me this color."
He denounced those who "can worship God on Sunday morning, wearing a black clergy robe, and kill others on Sunday evening, wearing a white Klan robe." He praised the communist Sandinista regime of Nicaragua. He renewed his belief that the government created AIDS as a means of genocide against people of color ("I believe our government is capable of doing anything").
And he vigorously renewed demands for an apology for slavery: "Britain has apologized to Africans. But this country's leaders have refused to apologize. So until that apology comes, I'm not going to keep stepping on your foot and asking you, does this hurt, do you forgive me for stepping on your foot, if I'm still stepping on your foot. Understand that? Capisce?"
Capisce, reverend. All too well.
End of Exhibit.
Originally here:
Even as Hillary Clinton trails Barack Obama in pledged delegates, the popular vote, and number of states won, she has made it clear that she plans to stay in the race for the nomination. All of which brings me to this logical conclusion: It is time for Barack Obama to drop out.
If Clinton had the good of the Democratic Party in mind, she would have given up her bid the day after the Mississippi primary, which Obama won by 25 points. The delegate math was as dismal for her campaign then as it is now, even after Pennsylvania, and she was facing down a six-week gulf before the next election.
But Hillary Clinton isn’t going to drop out. There simply isn’t a function in her assembly code for throwing in the towel.
Obama, on the other hand, is fully capable of it. And if he’s really serious about representing a new kind of politics, now is the time for him to prove it in the only meaningful way left. Moreover, were he to play it right, dropping out now nearly guarantees that he’ll be elected president in 2012. Here’s the roadmap:
Obama drops out next week, stating that although he could almost certainly win the nomination by fighting it out until the convention in August, he is simply not willing to drag the party through a battle that will cripple its chances against John McCain. He then pledges to help support Sen. Clinton in her bid — with full knowledge that she will not take him up on the offer.
In one stroke, Obama will regain his messiah creds by making the ultimate sacrifice for the good of the party. His followers will be furious. The mere mention of Clinton’s name will provoke unspeakable acts. They will abandon Clinton in numbers sufficient to hand McCain the election in November.
Losing the presidency again after eight years of Bush will ruin the Democratic Party. It will become obvious that Clinton’s decision to stay in the race was the turning point in the election. The base will turn its wrath on party leaders like Howard Dean and Nancy Pelosi, who failed to push Clinton out. Obama, as the de facto head of the party, will broker negotiations to install new leaders loyal to him.
McCain will be eminently more beatable in 2012. Demographics will continue to shift in Obama’s favor as his 14- to 17-year-old supporters come of voting age. Anyone foolish enough to challenge Obama for the nomination — and don’t rule out Clinton — will go nowhere. Obama’s utopian vision for a Democratic party unified around him will be complete. QED.
End of Exhibit.
Originally here:
The reactions to Barack Obama’s widely celebrated Philadelphia speech have generally fallen into two categories.
First, and most obviously, we’ve been deluged with rapturous and emotional responses, as sometimes tearful commentators described the address as a life-changing, history-making, barrier-busting, altogether unforgettable experience. To TV producer Norman Lear, “Obama reached for the stars. And he found them.” On MSNBC, Sally Quinn hailed the speech as one of the greatest in all human history, then later retreated to proclaim it merely “the greatest in 45 years.” Andrew Sullivan expressed similar enthusiasm, and delivered the verdict that “this searing, nuanced, gut-wrenching, loyal and deeply, deeply Christian speech is the most honest speech on race in America in my adult lifetime. It is a speech we have all been waiting for for a generation.”
More analytical comments from political insiders evaluated the speech in a practical perspective, admiring Obama’s deft effort to minimize the damage to his candidacy from the widely-condemned, outrageously anti-American comments by his long-time “spiritual mentor,” Pastor Jeremiah Wright. In this regard, the Senator clearly attempted to end the argument by changing the subject — deflecting questions about his twenty-year involvement in a radical Afro-centric church by broadening the discussion to cover four hundred years of race-relations in America. While even the most cynical observers acknowledged the talk’s soaring ambition and lucid prose, they divided on whether it would achieve its principal purpose by closing the book on the Wright controversy and restoring momentum to the Obama campaign.
Both of the common reactions to the Philadelphia speech — either praising it for its emotional and inspirational impact, or analyzing it in terms of its strategic political consequences — fail to come to terms with its substance, or to recognize the more troubling elements in the address. Barack’s big moment features content that is shamelessly manipulative, blatantly misleading, deliberately deceptive and even dishonest.
Misleading Comparisons. At several points in his talk, Obama directly equates the controversy over the Reverend Dr. Wright to the dispute over remarks by Geraldine Ferraro suggesting that the candidate wouldn’t be a leading presidential contender if he were white. After lamenting the fact that “the discussion of race in the campaign has taken a particularly divisive turn,” the Illinois Senator notes that “on one end of the spectrum, we’ve heard the implication that my candidacy is somehow an exercise in affirmative action….On the other end, we’ve heard my former pastor, Reverend Jeremiah Wright, use incendiary language to express views that have the potential…to widen the racial divide….” Later, he pushes the same equation between comments by Ferraro and the unhinged sermons by Wright. “We can dismiss Reverend Wright as a crank or a demagogue, just as some have dismissed Geraldine Ferraro, in the aftermath of her recent statements, as harboring some deep-seated racial bias.”
The comparison between the two firestorms amounts to a slick but unfair attack on Geraldine Ferraro and, by implication, her candidate, Hillary Clinton. No one in either campaign has defended the enraged remarks by Jeremiah Wright (“God d---n America!” or blaming the government for deliberately creating the AIDS virus) as legitimate or worthy of serious debate, but many responsible politicos and pundits agree with Ferraro’s observation that his race played an essential role in Barack’s rise. Moreover, Wright’s comments reflect a long, consistent career of impassioned hostility to the “white power structure” that runs “the U.S. of KKK- A,” while no one had ever before accused the reliably liberal Ferraro of racial animus of any kind.
An even worse comparison involved Barack’s exploitation of his own grandmother (who is still alive) to make a political point. Regarding his on-going relationship with his former pastor, Obama sonorously declares: “I could no more disown him than I can my white grandmother, a woman who helped raise me….but a woman who once confessed her fear of black men who passed by her on the street and who on more than one occasion has uttered racial or ethnic stereotypes that made me cringe.”
This wretched analogy should make all of us cringe: there’s no arguable equivalence between his grandmother’s very private kitchen-table remarks (no matter how insensitive) and the very public and thunderous sermons of a famous clergyman addressing thousands of his congregants and later selling his hateful remarks on DVD. There’s also a world of difference between breaking with a blood relative whose home you occupied as a child, and creating distance with a religious mentor you selected as an adult. No one gets to choose his grandmother, but we do choose our pastors, priests and rabbis. Obama’s selection of Wright as his guide and guru says something profound about his judgment and outlook, while his connection with his grandmother reflects only the accidents of his birth and upbringing.
Distortion of Wright’s Afro-Centric Theology. In his address, Obama many times references the “comments,” “remarks” or “statements of Reverend Wright that have caused such controversy.” He speaks of “the snippets of those sermons that have run in an endless loop on the television and You Tube” as providing the basis for “the caricatures being peddled by some commentator….”
Regarding this claim that revulsion to Wright emerged from a few randomly “cherry-picked” declarations, Pastor Frank Pina, a dynamic church leader who heads a vibrant multi-ethnic congregation in Everett, Washington, sent me an insightful e-mail.
“What I heard coming from Rev. Wright was not just a phrase taken out of context, but a philosophy,” he wrote. “And if you listen to all the different controversial statements, the GD America Sermon (not just a few statements) pretty much sums up the philosophy. And the way the congregation responds lets us know that the philosophy is not just the pastor’s, but the church’s. The point I’m trying to make is that making an inflammatory statement (or two) is not the same as a church’s or pastor’s philosophy. And if Obama didn’t know the pastor’s philosophy after being a member of the church for over 20 years…it speaks to the lack of judgment he has.”
Even the most cursory examination of the character of Wright’s congregation, Trinity United Church of Christ in Chicago, demonstrates that Reverend Pina’s point is both valid and powerful. The website for the congregation begins with an introductory paragraph under the heading, “About Us,” that unequivocally proclaims: “We are an African people, and remain ‘true to our native land,’ the mother continent, the cradle of civilization.”
For many years, the next paragraph (recently removed due to the Wright controversy) appeared on the website and shamelessly explained: “Trinity United Church of Christ adopted the Black Value System….We believe in the following twelve precepts and covenantal statements. These Black Ethics must be taught and exemplified in homes, churches, nurseries and schools, wherever Blacks are gathered.” Those “precepts and covenantal statements” include, “Commitment to the Black Community” (Number 2), “Disavowal of the Pursuit of ‘Middleclassness’” (Number 8), “Pledge allegiance to all Black leadership who espouse and embrace the Black Value System (Number 11) and “Personal Commitment to embracement of the Black Value System.” (Number 12).
A simple thought experiment can clarify the questionable nature of the ideology of Jeremiah Wright’s church. Try replacing the word “black” in the material above with the word “white,” and you’d see a perfect definition of the spiritual approach of the “Aryan Nations” or “Christian Identity Movement” or other neo-Nazi fringe groups.
Could the American people truly accept a President who chose long-term affiliation with an organization that says that “Black Ethics…must be taught” and requires “Personal Commitment to embracement of the Black Value System” --- not the American Value System, or the Universal Value System, or, pointedly, even the Christian Value System.
Obama’s church publicly and unapologetically promoted a “Value System” based on racial identity, not common heritage or American patriotism.
The additional “10-point Vision” of Revrend Wright (still featured on the church website) specifies “A congregation with a non-negotiable COMMITMENT TO AFRICA.” Nowhere in the “10-point Vision” or the “twelve precepts” or the 25 course offerings for religious education or in any other church materials do the organizers of Trinity mention anything at all about loyalty to the United States of America, or service to the nation that hosts the church, or gratitude to the amazingly benevolent society that has embraced one of the congregation’s members as a leading presidential candidate.
If Joe Lieberman had affiliated for twenty years with a synagogue that never offered prayers for America and its government (as nearly all Orthodox Jewish synagogues do, in fact), but instead emphasized a “non-negotiable COMMITMENT TO ISRAEL,” wouldn’t voters have questioned his outlook and judgment when he ran for Vice President?
In his speech, Obama suggests that his fellow citizens recoiled against Reverend Wright only because they failed to understand that his bitter rage stemmed from centuries of oppression and injustice. “The fact that so many people are surprised to hear that anger in some of Reverend Wright’s sermons simply reminds us of the old truism that the most segregated hour in American life occurs on Sunday morning.”
Does Obama decry, or encourage, that segregation? If he condemns it, then why would he maintain a long-term commitment to a purposefully segregated, race-based congregation that elevates a mystical sense of “blackness” above Christianity, Americanism or common humanity?
Changing the Core Message of His Campaign. In all the ecstatic praise for Obama’s speech, there’s been little comment on the way the talk signals a dramatic, permanent, and possibly fatal alteration of his race for the presidency.
Until today, the Illinois Senator enjoyed spectacular success with his determination to run as the first-ever “post-racial” candidate for the White House.
He refused to allow himself to be pigeon-holed as “the black candidate,” and tirelessly emphasized his desire to unify the nation (“We’re not red states or blue states—we’re the United States of America!”). His campaign succeeded in large part because he implicitly promised to move our society beyond the long and tragic centuries of racial agitation and pain. Yes, he won overwhelming support in the black community, but he also drew huge majorities in states like Iowa, North Dakota, Idaho and Utah, with miniscule populations of African-Americans.
For more than a year, Obama has been offering a weary nation an irresistible deal. As Hoover Institution scholar Shelby Steele observed in his superb book A Bound Man, Barack represented the ultimate “bargainer” in a long history of African-American leaders who became popular by suggesting they could reduce white America’s burden of guilt. By generally avoiding discussion of race or race relations, Obama suggested that in supporting his candidacy, Americans could finally escape from the hurts and resentments of the past.
Here’s the deal, he seemed to say: if you elect me, we can at last put an end to all the lectures and breast-beating about our brutal racist history. When I stand on the steps of the Capitol building and take the oath of office as your president, that very act will put an end- forever- to the idea of African-Americans as second-class citizens. Rather than endless recriminations and accusations, we’ll all stand together as equals in the eyes of God and the U.S. Constitution.
Millions of Americans — including some conservatives who should have known better — rushed to take that deal, and embraced Obama’s candidacy.
But now, at a decisive point in the race, the candidate has abruptly changed the bargain.
Rather than promising less race consciousness, he now insists we need more. Instead of bidding to lead a post-racial — or at least a post-racist—America, Obama’s speech tells us we must go back to picking at the old scab.
Actually, Barack was right the first time: putting race aside, affirming our common Americanism and humanity, can serve to heal old divides. Obsessing on racial divisions, focusing on “blackness” or “whiteness,” perpetuating the eternal cycle of grudge and guilt, only intensifies the fever associated with the nation’s most menacing disease.
Bill Clinton also believed that we needed more talk about race, and as president he participated in a series of televised “public dialogues” (amounting to tiresome gripe fests) that achieved nothing at all other than underlining Slick Willie’s enlightenment and compassion.
If the Obama campaign follows up on his over-praised speech and makes intensified race-talk into a new national priority, he may well destroy his chances of winning the presidency. The most “progressive” wing of the Democratic Party could celebrate prospect that a President Obama would get countless opportunities to deliver more lectures on slavery, Jim Crow, oppression, and race differences.
But less politically correct Americans may prove notably less eager to seize the chance for additional solemn scolding sessions like the one they just heard in Philadelphia. Most voters, black as well as white, feel weary and wary of the destructive cycle of accusation and apology, so that Obama’s new implied promise of a presidency of endless race-based agitation may well constitute an offer that we easily can refuse.
Michael Medved, nationally syndicated talk radio host, is author of 10 non-fiction books, including The Shadow Presidents and Right Turns.
End of Exhibit.
Originally here:
JB Originally here:
Stopping the Justices from voting before they know the answer –
Following the oral argument in Heller, people have been having a good old time making fun of the Justices and their pretty transparent political motivations. Dahlia Lithwick's amusing account of the oral argument is one of her best.
Although I enjoy making sport of the Justices as much as anyone, the question of whether the 2nd Amendment protects an individual right, including a right to self defense, is not that difficult, at least to me. The framers of the 14th amendment assumed that it was one of the privileges or immunities of citizens of the United States. And if a right is a privilege or immunity of citizens of the United States, it hard for me to conclude that it does not bind the United States as well as the individual states.
Now, as a unreconstructed liberal (I'll show you pictures of my bleeding heart), I don't particularly like this result. But it follows sufficiently strongly from other commitments I have about the Constitution that I must accept it.
That's how I come out on the case, but of course, none of the Justices is likely to reason the way I do. So what do I think of their approaches and rationalizations, which were vividly on display at yesterday morning's oral argument?
It's very easy to make fun of the Justices both liberal and conservative in their attempts to grapple with this case. Indeed, it is pretty obvious that, faced with a case of virtually first impression, with almost no precedents to work with (and the only significant precedent, Miller, easily distinguished) they are being pulled to conclusions by their political priors. The conservatives have dropped all pretense of judicial restraint and federalism, and the liberals have suddenly been reading from Felix Frankfurter's hymnal (which is a pretty good trick, considering that he was a secular Jew).
This troubles me far less than perhaps it should, because it is pretty much par for the course on every contested social issue that comes before the Court.
I am not shocked, shocked, that gambling is going on here.
In fact, the likely result in this case is a pretty good example of how living constitutionalism works in practice. The Supreme Court is a multi-member body whose decisions in close cases tend to be resolved by the median or swing justices, whose identity (and position at the median), in turn, is produced by successive judicial appointments. Meanwhile social movements, interest groups, and political parties vie with each other to influence popular beliefs about the Constitution. Partisan entrenchment plus social movements plus shifting popular attitudes and shifts in constitutional culture eventually get reflected in judicial decisionmaking using vague texts. (
Dahlia has complained that this is what you get when the court doesn't intervene for long periods of time-- social movements, or what she prefers to call "special interest groups" take over. Actually, this is what you get whether or not the Court intervenes for long periods of time. We could tell much the same story with reproductive rights, or the women's movement, or the gay rights movement. It would simply involve interest groups — now more generously called "social movements" — that Dahlia and I like better.).
The same forces that produced (what I regard) as the likely result in Heller produced Lawrence v. Texas and every other case that liberals like myself admire. Indeed, the very same weather vane, Anthony Kennedy, will be the deciding vote.
These forces produce constitutional doctrine that stays roughly in sync with the vector sum of forces in the national political coalition. If the court gets too far out of line, it will eventually correct itself through new appointments and new decisions.
If you don't like the result in Heller, it's because you don't like a country dominated by political conservatives who have influenced political culture for the past generation, and who have sufficient political clout that they have been able to staff most of the federal judiciary and a majority of the positions on the Supreme Court.
Living constitutionalists like me can make fun of the Supreme Court all they like, and believe me, I'm happy to throw in my share of zingers. But we should recognize that we are making fun of the same forces that produce decisions that keep the Constitution in line with changing attitudes. In this particular case, they are changing attitudes that most liberals like myself do not like. Well, that's constitutional politics. If you don't like the living Constitution you get, you really should be working harder to get the national politics you like, because that's pretty much how the Constitution changes over time. Living constitutionalism isn't just a set of positions about interpretation, it's a process of argument and persuasion that gets worked out in politics and is eventually reflected in law. The engines of living constitutionalism gave us Lawrence, now they give us Heller; that is how the game is played. As they say about those Powerball jackpots, you can't win if you don't play.
Heller's opportunity to put Law over Politics
A proposal for reversing the internal operations of the Supreme Court of the United States.
Douglas W. Kmiec
Heller has already been identified as a test of the fidelity to precedent and restraint of the Roberts Court. That following oral argument, it seems possible if not likely that the Justices will disregard or minimize the significance of the militia clause of the Second Amendment and decide that there is a right of self defense that nowhere exists in the present text of the Constitution presents a unique challenge to that reputation. Putting aside whether that is or is not a defensible constitutional outcome, it is institutionally important for the outcome to be arrived at by means other than mere assertion.
When the Justices assemble around the table in the Chief’s outer office to decide D.C. v. Heller, they will follow the usual practice of voting on the outcome first and only then researching to justify and explain the outcome. With due respect to the Court’s tradition, that methodology is backwards. It is also subversive of public confidence in the Court. In a difficult case, like Heller, where the historical materials, linguistic analysis, and constitutional considerations are plentiful and largely being examined conscientiously for the first time, it is all the more important for the Court to follow the scientific method of doing the research and writing first before deliberation and vote. Reversing the process would have the benefit of: avoiding the appearance of elevating politics over law by actually avoiding the temptation to substitute politics for law. By engaging in the difficult work of legal research and analysis of existing text, history, and precedent before any of the members of the Court are asked to reach an ultimate determination, the Court can increase the odds of writing coherently and with greater unity. Those witnessing this morning's oral argument know that task will be difficult. The analytical strands and possibilities from the meaning of the English Bill of Rights of 1689 to Mr. Madison's expectations of draftsmanship to the deficiency (or not) of precedent, to the nature of trigger locks require Herculean effort to assemble into a proper answer. If they were fully candid, I venture the Justices would concede that at this moment they possess at best a tentative conclusion. Why vote before a fulsome examination of the law by reference to a complete exposition of what one member of the Court would offer as the most honest and defensible constitutional judgment? No one would buy a common appliance not knowing if it could be constructed to perform its intended task. Why ask Justices to accept opinions that have yet to be fully formed?
Who would write the opinion if a preliminary vote were not taken first for purposes of assignment? Quite simply, the Justice next in line for a writing assignment who is fully up to date with his or her work. Once and for all, the residual politics of confirmation would be set aside and only Court administration would govern. Yes, this would deprive either the Chief Justice or the senior associate justice, most often, John Paul Stevens, of the right of assignment, but that deprivation would be in pursuit of a higher order good to which I venture both the Chief Justice and Justice Stevens would subscribe: the elevation of the rule of law and the strengthening of the respect for the Court as an institution.
End of Exhibit.
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