Land of the Free, Home of the Brave

      The Gay Men’s Chorus of Washington was all set Saturday night [Dec. 18] for its seasonal frolic “Men in Tights: A Pink Nutcracker.” But artistic director Jeff Buhrman wanted to begin on a serious note.
      A few hours earlier, the U.S. Senate had completed congressional action on a bill to repeal the “don’t ask, don’t tell” policy on gays in the military. In honor of the occasion, Buhrman asked the audience at George Washington University’s Lisner Auditorium to stand and join in singing “The Star-Spangled Banner.”
      It was an “emotional moment,” one friend later commented on Facebook, to hear so many gay and lesbian Americans join in a celebration of their patriotism. When younger, my friend wrote, “I’d have been so proud to have served my country openly as a gay man. Instead, I had to serve with a portable closet by my side to hide in.”
      Not yet but soon, thousands of gay men and lesbians already in the military and many others eager to join will be legally free to make up their own minds whether to stay in or come out of the closet. The hard-fought, down-to-the-wire victory gives Gay America something to celebrate this holiday season. Overall, however, both President Obama and the Democratic-controlled Congress get only middling grades for advancing LGBT rights.
      Obama took office amid much optimism among LGBT Americans and their straight allies. He had campaigned on a platform that included repealing “don’t ask, don’t tell” as well as the Defense of Marriage Act (DOMA), the 1996 law that prohibits federal marital benefits for same-sex couples. He also backed the Employment Non-Discrimination Act (ENDA) to prohibit job discrimination on the basis of sexual orientation. And he favored amending the federal hate crimes law to include offenses aimed at gays or lesbians.
      With the Democratic-controlled Congress about to yield to divided government on Capitol Hill, only two of those items have been approved. Neither has yielded concrete results.
      The Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act became law in October 2009. But despite the recent flurry of news about gay-bashing and gay-bullying, the Justice Department has yet to invoke the law against any anti-gay offense.
      The “don’t ask, don’t tell” repeal itself provides that the 1993 law remains on the book for now until the Pentagon can prepare new regulations and training. Then the president, secretary of defense, and chairman of the Joint Chiefs of Staff all have to certify to Congress that repeal is “consistent with the standards of military readiness, military effectiveness, unit cohesion, and recruiting and retention of the Armed Forces.” Until then, openly gay or lesbian service members are theoretically subject to discharge.
      Gay rights organizations had high hopes for the job-discrimination bill as Obama and Congress started work in 2009. But the bill fell victim to other priorities, in particular health-care reform. As for repealing DOMA, the issue never made it past the starting gate in Congress.
      In their last-ditch effort to keep “don’t ask, don’t tell” on the book, Senate Republicans echoed anti-gay organizations in depicting repeal as a political payoff by the Democrats to “the homosexual lobby.” True, gay political organizations are predominantly Democratic. That is hardly a surprise given the Republican Party’s stout opposition to gay rights measures.
      For many gay and lesbian Americans, however, the issues are not political, but personal. Consider, for example, Lisa Howe, fired earlier this month as women’s soccer coach at Belmont University in Nashville, Tenn., after she told her team that she and her partner are expecting a child. Howe had previously kept her sexual orientation private, but thought she could share her good news with the team. ENDA might have allowed her to keep her job.
      With DOMA on the books, many same-sex couples are paying more in taxes or receiving less in federal benefits than their straight-sex counterparts even in the five states and the District of Columbia where gays and lesbians supposedly enjoy equal marriage rights. A federal judge in Massachusetts ruled the law unconstitutional on equal protection grounds this summer, but the Obama administration is continuing to claim that it is obliged to defend the law in court.
      Similarly, the administration had been defending “don’t ask, don’t tell” in court even as it was urging Congress to repeal the law. A federal judge in Riverside, Calif., ruled the law unconstitutional earlier this fall and went so far as to block its enforcement. The administration rushed to a federal appeals court to overturn the injunction. With the law still on the books, it will be interesting to see whether the case continues or is put on hold.
      With Obama set to sign the “don’t ask, don’t tell” repeal on Wednesday [Dec. 22], gay rights leaders are emphasizing that much has been accomplished and that much remains to be done. At least on Saturday night, however, hundreds of Washingtonians were proud to join the Gay Men’s Chorus as they raised their voices to sing of a rainbow flag that waves “o’er the land of the free … and the home of the brave.”

Trying to Avoid Bad Law in the WikiLeaks Case

     Hard cases make bad law, it is said. The U.S. government has a hard case to try to make against WikiLeaks founder Julian Assange for masterminding the biggest dump of classified government secrets in history. It will be up to the courts to try not to make bad law out of it.
     On the surface, of course, the case looks like prosecutor’s child play. Assange has boasted globally about possessing what he claims are 250,000 classified diplomatic cables from the U.S. State Department. Over the past three weeks, he has been publishing them on the WikiLeaks site for all the world to see.
     Confronted with such brazen flouting of the law, the government could hardly be expected to sit by idly, even given the Obama administration’s oft-stated commitment to transparency and openness. So no one should be surprised by Attorney General Eric Holder’s comment on Nov. 29, the day after the classified cables began appearing, that the government had “an active, ongoing criminal investigation with regard to this matter.”
     A closer look, however, makes clear that any prosecution poses difficult problems for the government. It would also carry an inevitable risk of infringing freedom of speech and freedom of the press not just for Assange but also for established news organizations and the public at large.
     The most obvious legal vehicle for prosecuting Assange would seem to be the Espionage Act. The 1917 law makes it a crime for anyone “having unauthorized possession” of information pertaining to national defense to publish or retain it if the information could be “used to the injury of the United States or to the advantage of any foreign nation”
     As soon as the law was mentioned, however, legal experts began pointing out the difficulties. Steven Vladeck, a law professor at American University in Washington, notes that the government has never successfully prosecuted anyone under the Espionage Act for receiving as opposed to leaking classified information.
     In the most analogous case, the government failed in prosecuting two lobbyists with the American Israel Public Affairs Committee (AIPAC) for obtaining classified military information and passing it along to Israeli officials. The government moved to dismiss the case in late April 2009 after the judge ruled the government had to prove that the two lobbyists knew the disclosure would harm the United States.
     Government lawyers may have had that ruling in mind when the State Department’s legal adviser, Harold Hongju Koh, warned Assange in advance of publication of the potential harms that could result. Koh’s letter, dated Nov. 27, claimed that disclosures would “place at risk” the lives of journalists, human rights activists, bloggers and others as well as “ongoing military operations” and “ongoing cooperation” with other countries.
     Maybe, but no conscientious court would accept the claimed dangers just on the government’s say-so. And to date the evidence of concrete harms is lacking.
     Admittedly, the United States has been embarrassed by some of the candid disclosures from diplomats in the field. But Assange claims to be redacting the cables before publication. In any event, host countries that would do harm to human rights activists must already be aware of their conversations with U.S. diplomats. And it is unclear that the State Department diplomats have been guilty of loose lips in regard to ongoing military operations.
     As an alternative, Justice Department lawyers are reportedly looking at the possibility of prosecuting Assange for conspiracy or trafficking in stolen property. That kind of prosecution would also present problems of proof. First is the conceptual difficulty of treating computerized copying as theft; the government, after all, still has everything that Assange claims to have.
     More significantly, the government might need to show that Assange was actively involved in the leak itself. The leaker is widely believed to be Bradley Manning, an Army private and intelligence analyst in Iraq, who has been arrested and charged with unauthorized disclosure of classified information. Perhaps Manning has given government investigators some inculpatory information about Assange, but if so it has not yet been disclosed.
     Even if Assange can be implicated directly in the leak, the government will have to walk a delicate line to avoid a prosecution that would criminalize the ordinary journalistic practice of ferreting out information that the government wants to keep secret. The government is contending that Assange is no journalist, but, as Vladeck suggests, Assange’s status as a journalist or not is not the issue. The First Amendment, after all, extends not only to established news organizations but also to pamphleteers, street-corner speakers, and, yes, Internet publishers of all sorts.
     Apart from these problems, the government will first have to get its hands on Assange, who was ordered released on bail today [Dec. 14] pending an extradition request from Sweden to face charges of sexual assault. It is unclear how either England or Sweden would respond to a U.S. extradition request for what courts in either country might view as a political issue instead of a true crime.
     Events may be coming to a head soon. Assange’s attorney, Geoffrey Robinson, is quoted as saying that the government has convened a federal grand jury in Alexandria, Va., and that an indictment may be imminent. If so, it will be only the first step in a hard case with grave risks for the government if it loses or the First Amendment if it wins.

Handicapping Kennedy’s Vote on Gays in the Military

      Thirty years ago, a young federal appeals court judge in California voted to uphold the Navy’s then-existing policy of discharging any service member who engaged in homosexual acts. The “blanket rule” was “harsh” in individual cases and perhaps “broader than necessary,” the judge wrote. But the Navy had “multiple grounds” for adopting the regulation, the judge concluded, including potential conflicts between homosexual service members and others who might “despise” or “detest” homosexuality.
      Three decades later, the fate of the military’s current “don’t ask, don’t tell” policy on gay service members may depend on whether Supreme Court Justice Anthony M. Kennedy weighs the balance between individual rights and military necessity the same way he did in 1980. Two days of hearings on the policy before the Senate Armed Services Committee [Dec. 2-3] left it uncertain whether Democrats who want to end the policy in the current lame-duck session of Congress can overcome a Republican roadblock led by the committee’s ranking GOP member, Arizona’s John McCain.
      Defense Secretary Robert Gates and Admiral Mike Mullen, chairman of the Joint Chiefs of Staff, both testified strongly in favor of repealing the 1993 law prohibiting openly gay men or lesbians from serving in the military. Along with principled reasons for their position, both men warned that the courts might force the military to scrap the policy overnight if Congress fails to act. As Gates put it, “Given the present circumstances, those that choose not to act legislatively are rolling the dice that this policy will not be abruptly overturned by the courts.”
      Republicans were unmoved. McCain, the decorated Vietnam War hero, seized on concerns from the Army and Marine Corps service chiefs to restate his own opposition to repeal, at least while U.S. forces are in combat in Afghanistan. For his part, Alabama’s Jeff Sessions, who serves on both the Armed Services and Judiciary committees, dismissed fears of a judicial reversal. Sessions said he was “absolutely convinced” the current Supreme Court would uphold “don’t ask, don’t tell” if the challenge reached the justices.
      As on so many ideologically fraught issues, any prediction about the court’s likely stance turns on Kennedy. The liberal justices — Ginsburg, Breyer, Sotomayor, and Kagan — can all be counted as potential votes to strike down the law as an unconstitutional discrimination against gay service members. But Chief Justice Roberts and his fellow conservatives — Scalia, Thomas, and Alito — seem likely to uphold the law.
      The coincidence of Kennedy’s encounter with the military’s earlier policy while serving on the Ninth U.S. Circuit Court of Appeals provides some clues as to his possible stance. But they are 30-year-old clues. Much has changed since then — in the nation, at the Supreme Court, and seemingly in Kennedy’s own judicial persona.
      Writing for the three-judge panel in Beller v. Middendorf, 632 F.2d 788 (CA9 1980), Kennedy opened by saying that the wisdom of the Navy’s policy was for “the political branches” to decide, not the courts. He rejected any procedural grounds for reinstating the three discharged sailors who brought the challenge and then moved to the harder question: whether the policy violated any liberty interest protected by substantive due process.
      Kennedy acknowledged what he called the “substantial academic comment” defending the choice to engage in homosexual conduct as a “fundamental right.” But he noted “substantial authority to the contrary,” including the Supreme Court’s summary decision in 1976 rejecting a constitutional challenge to anti-sodomy laws. Some regulation of consensual homosexual conduct might be subject to challenge, Kennedy continued, but the Navy had advanced sufficient reasons to uphold its policy under a rational-basis standard.
      As an intermediate appellate judge only five years on the bench, Kennedy may have had no other choice in the case. But his comments signaled solicitude toward gays that developed fully after he joined the Supreme Court. In 1996, he wrote the decision, Romer v. Evans, that struck down Colorado’s anti-gay rights initiative on the ground that it singled out gays for unfavorable treatment. And seven years later he again wrote for the Court in striking down state anti-sodomy laws. Kennedy’s broadly worded opinion in Lawrence v. Texas (2003) established the very right that he had not found in 1980: a constitutional right to consensual, homosexual conduct.
      Despite those rulings, Frank Colucci, a political scientist at Purdue University Calumet and author of Justice Kennedy’s Jurisprudence (University Press of Kansas, 2009), says it will be “very hard” for Kennedy to vote to overturn “don’t ask, don’t tell.” Hesitantly, Colucci thinks Kennedy likely again to uphold a policy defended on grounds of military necessity. But he also believes Kennedy “will ask the military to make the argument: what is the military necessity?”
      For that very reason, my own prediction is the opposite. The Pentagon task force’s report on “don’t ask, don’t tell” undermines any justifications offered for the policy, especially if the law is subject to heightened scrutiny in a post-Lawrence world. The court cases challenging “don’t ask, don’t tell” may not reach the Supreme Court soon. But when they do, the justice who wrote Lawrence seems an unlikely vote to deny the freedom established in that decision to men and women who put their lives on the line to defend freedom for the rest of us.

On the Death Penalty, Justice Stevens Regrets

      David Garland could hardly have wished for better luck than to have his new book on capital punishment favorably written up in the New York Review of Books by no less than a retired Supreme Court justice, John Paul Stevens. And for Stevens, the unsolicited assignment from the magazine’s editors gave him the chance to elaborate on his reasoning in concluding two years ago that the death penalty as it operates in the United States today serves no good purpose and should be abolished.
      Garland, a professor of law and sociology at New York University, is a little-known academic with a long list of titles on criminal law and sentencing. In Peculiar Institution: America’s Death Penalty in an Age of Abolition (Harvard University Press, 2010), the transplanted Scotsman seeks in part to explain the persistence of capital punishment in the United States at a time when the practice has been abolished in form or in practice in the rest of the West.
      From Stevens’ account — I have yet to read the book myself — Garland scrupulously avoids offering his own personal conclusion about the wisdom or morality of the death penalty. But Stevens says that Garland’s account fortifies the justice’s own view that the death penalty is “unwise and unjustified.”
      Garland’s book may profitably be read in tandem with an earlier work, The Death Penalty: An American History (Harvard University Press, 2002), by Stuart Banner, who is now a professor at UCLA Law School. Both depict capital punishment in the United States as infected with racism, historically and today, and beset these days with delays that all but negate the death penalty’s major stated purposes: deterrence and retribution.
      Apparently more than Garland, however, Banner shows that along with the persistence of capital punishment, the United States has a long tradition of opposition to the death penalty. Even before independence, some Northern colonies had narrowed the list of capital offenses from those in England. Abolitionist sentiment also dates from colonial times and grew after independence.
      Within the first years of the Republic, five states had abolished the death penalty for all crimes except murder. By the time of the Civil War, no Northern state provided capital punishment for any crime other than murder or treason. And Michigan in 1846 became the first state to abolish the death penalty altogether. Banner treats the decision as the start of a slowly emerging trend. Stevens faults Garland for treating it instead as idiosyncratic, the work of a few liberal reformers in the face of Michiganders’ general views.
      The death penalty continued to recede for a full century after the Civil War. New methods of execution were designed to be more humane: first, the electric chair; then, the gas chamber (and, now, lethal injection). Public executions disappeared. The number of executions fell over time. By the 1960s, abolitionists could see their goal within sight.
      The Supreme Court’s 1972 decision in Furman v. Georgia to invalidate all existing death sentences appeared to fulfill the abolitionists’ goal. As Garland relates, however, the backlash was strong and swift. By 1976, in Stevens’ first full year on the Supreme Court, two-thirds of the states had voted to reinstitute capital punishment.
      Stevens provided the critical fifth vote to uphold state death penalty laws as long as death sentences were not mandatory and jurors (or judges) had full discretion to consider all aggravating and mitigating factors in imposing sentence. Stevens’ hopeful expectation of a rational and equitable system of capital punishment was dashed by the Supreme Court itself. After the retirement of his fellow moderate Republican Potter Stewart in 1981, the court began to retreat from careful policing of capital cases.
      As examples, Stevens points to the court’s refusal in 1987 to act on the implications of a study showing death sentences imposed more often in cases with white victims than in those with victims of color. He faults the court for helping prosecutors block potential jurors with reservations about capital punishment. And he criticizes the court for reversing itself twice, in the span of only a few years, to allow the death penalty in felony-murder cases and to permit “victim impact” statements in capital sentencing hearings.
      In 2008, Stevens went public with his frustrations in a separate opinion in the decision, Baze v. Rees, that upheld the current procedure for lethal injection executions. With no convincing evidence of deterrence, and no legitimate interest in retribution for its own sake, Stevens concluded that it was time for “a dispassionate, impartial comparison” of the “enormous” costs of the death penalty compared to its dubious benefits.
      Garland casts doubt on the likelihood of such a debate. He views public support for the death penalty as a political and cultural phenomenon more than a considered legal policy choice — in effect, one battle in a broader culture war. Risk-averse politicians burnish their law-enforcement credentials by siding with public opinion.
      The Supreme Court has nibbled at the edges over the past decade by prohibiting the death penalty for juveniles or offenders with intellectual disabilities and in non-homicide cases. The rulings, two of them written by the moderate conservative Anthony M. Kennedy, hark to the previous tradition of narrowing capital punishment. But barring a further shift by Kennedy, the Roberts Court’s majority appears steadfast in giving states broad discretion to adopt what Garland provocatively calls this “peculiar institution.”

On Waterboarding, Bush Memoir Less Than Complete

      In his final weeks in office, President George W. Bush was beset with what he describes in his memoir Decision Points as a “flood” of pardon requests submitted by people who “pulled me aside” to special plead for some friend, family member or former colleague. At first “frustrated” and then “disgusted,” Bush resolved “that I would not pardon anyone who went outside the formal [Justice Department] channels.”
      It is a good story, but — as the New York Times reporter Charlie Savage notes — “incomplete.” In fact, as Savage wrote on the Times’ blog The Caucus, Bush granted a batch of 20 pardons on Dec. 23, 2008, including at least four who went outside the Justice Department channels.
      As with the self-enhancing version of his pardons policy, so too with Bush’s description of one of the most momentous of his decision points: his personal authorization for CIA and military interrogators to use “waterboarding” on suspected terrorists. The four-page account (pp. 168-171) so oversimplifies the events before and after Bush’s directive as to be at the very least “incomplete” — and, for any lesson-drawing purposes, simply wrong.
      Bush traces the origins of the CIA’s “enhanced interrogation techniques” to the capture in March 2002 of Abu Zubaydah, purportedly a close associate of al Qaeda leader Osama bin Laden, and his initial questioning by FBI agents. As Bush tells it, the FBI interrogation ran dry and the CIA proposed to take over in a secret location with additional techniques. “At my direction,” Bush writes, “Department of Justice and CIA lawyers conducted a careful legal review.” That review found all the techniques constitutional and lawful. Even so, Bush ruled out two that “went too far,” but approved the others, including waterboarding.
      To Michael Scharf, a law professor at Case Western Reserve University in Cleveland who has studied and written extensively on the issue, the account hardly begins to tell the story. In Scharf’s account in a law review article and his forthcoming book, Shaping Foreign Policy in Times of Crisis, it was not Bush, but Vice President Dick Cheney and his lawyer, David Addington, who drove the legal review — determined to find the interrogation techniques lawful.
      Cheney succeeded by the bureaucratic ploy of cutting out potential opponents. As Scharf explains, the interrogation program was classified “need to know” instead of merely “top secret.” The effect was to keep the plan from the top lawyers of each of the military services and, most significantly, the State Department’s legal adviser, the office most expert in interpreting the U.S.-signed treaties banning torture. The “careful” legal review that Bush describes was, in Scharf’s words, “completely one-sided.”
      Unmentioned by Bush, the memos upholding the techniques — and twisting the previous view of waterboarding as torture — have been rescinded. Whatever its legal basis, Bush credits the waterboarding and other of the torture-like techniques used on Zubaydah with breaking his resistance. CIA interrogators supposedly gained pivotal information that led, eventually, to the capture of 9/11 mastermind Khalid Sheikh Mohammed in March 2003. And KSM provided information “vital to saving American lives” that “almost certainly would not have come to light without the CIA’s enhanced interrogation program.”
      Nowhere does Bush mention the later downgrading of Zubaydah’s importance. In court filings, the government now disclaims any allegation that Zubaydah is a member of al Qaeda or played a role in the September 11 or other attacks on the United States. Nor does Bush acknowledge the sharp dispute about the supposedly invaluable intelligence gained from the enhanced interrogation techniques.
      The most telling refutation comes from former FBI agent Ali Soufan, who helped interrogate KSM for three months (March-June 2002) before the CIA took over. In successive op-ed articles in the New York Times in April and September 2009 and comments elsewhere, Soufan labels the puffed-up accounts of the intelligence gained from the enhanced interrogation techniques as “false claims.” He says that KSM was providing “actionable intelligence” under traditional techniques and notes that KSM has boasted of providing false information to later interrogators. As for Zubaydah, Soufan similarly says no intelligence was gained that was not or could not have been gained from regular interrogations.
      As with waterboarding, Bush is incomplete in describing some of the administration’s other post-9/11 legal policies. He describes his early decision to treat the Guantanamo detainees as outside the protections of the Geneva conventions (pp. 166-167) with no mention of the State Department’s position that in fact they were covered by the U.S.-signed international accords. He describes the creation of the “military commissions” to try Guantanamo detainees (p. 167) with no mention of the departures from the procedures for regular military tribunals. And after acknowledging the Supreme Court’s decision in Hamdan v. Rumsfeld (2006) striking down the military commissions, Bush claims that Congress solved the problem with legislation passed later that year (pp. 177-179). But he does not mention of the court’s later ruling, Boumediene v. Bush (2008), that found unconstitutional the critical provision in the law to limit judicial review of the reconstituted military commissions’ decisions.
      Bush’s acknowledgment of having authorized waterboarding has prompted calls from human rights groups, including Amnesty International and the American Civil Liberties Union, to prosecute him for violating U.S. law against torture. An administration that has already given a pass to the lawyers who wrote the torture memos is hardly likely to take on a former chief executive. But the American people still deserve the complete torture story — and they have gotten nothing close to that from Bush’s first-person account.

Mixed Reviews for First Post-Citizens United Election

      The United States has just completed its first, post-Citizens United national election. Total cost: $4 billion, including nearly $300 million from independent groups that benefited from the Supreme Court’s decision freeing corporations and unions to spend unlimited sums in political campaigns. The reviews are decidedly mixed.
      “We’ve just seen our first $4 billion election, and it wasn’t pretty,” says Arn Pearson, vice president for programs at Common Cause, the granddaddy of campaign finance reform groups. “I don’t think anyone believes voters were better served as a result.”
      To the contrary, says Bradley Smith, chairman and co-founder of the deregulatory Center for Competitive Politics. “By most standards, this was one of the most issue-oriented campaigns ever,” Smith says. More races were competitive, he says, challengers were well-funded, and voter turnout was up.
      As for independent expenditures, they amounted to less than 10 percent of the total, Smith points out. “Corporate and union spending did not drown out individual spending,” he says. There were “more voices, more people participating,” Smith says. “That’s a good thing.”
      The clashing views show that no one has changed positions since the Roberts Court Jan. 21 decision in Citizens United v. Federal Election Commission to wipe out the century-long ban on direct corporate spending in federal elections. Like the Roberts Court’s conservative majority, Smith and other critics of campaign finance regulation view the ruling as a victory for the First Amendment. Like the liberal dissenters, Common Cause and other campaign finance reform groups say the decision will make elected officials all the more beholden to moneyed special interests, especially corporations.
      The critics are especially concerned about what they calculate as about $138 million spent by independent groups with no obligation to disclose their donors. “It’s difficult to quantify the impact of that anonymity,” says Shelia Krumholz, executive director of the Center for Responsive Politics (CRP). “Anonymity has to be public enemy number one.”
      One group stands out for the critics: Crossroads Grassroots Policy Strategies (Crossroads GPS), created by Bush White House political guru Karl Rove as an affiliate of American Crossroads, the so-called “Super PAC” that he helped found with former Republican National Committee chairman Ed Gillespie. As a political action committee, American Crossroads is subject to disclosure requirements, but Crossroads GPS is outside campaign finance laws because electioneering is (purportedly) not its “primary activity.”
      Together, the two groups spent nearly $39 million in the congressional races, but Crossroads GPS is not disclosing the donors for its $17 million share of that amount. It spent big on some key races, according to CRP, either to oppose Democratic candidates or support GOP contenders. Some spending paid off: $4.4 million in the Illinois race won by Republican Mark Kirk and $1.1 million in the Kentucky contest won by Republican Rand Paul. But some did not. The group invested $3.5 million in trying to defeat Democratic senator Patty Murray in Washington and more than $2.25 million in seeking to oust Senate Majority Leader Harry Reid in Nevada.
      Smith, who had two years to put his deregulatory views into practice as member and chairman of the Federal Election Commission (FEC), scoffs at the disclosure issue. Critics talk about “the shadowy group founded by Karl Rove and Ed Gillespie,” Smith says. “How shadowy is that?”
      “All of the ads have to identify who paid for them,” Smith notes, “but they don’t have to identify who gave the money to the organization that paid for them.” Some people want more disclosure, Smith acknowledges, “I don’t see that there would be a lot more gained if there were,” he says.
      The election included some good news for critics of out-of-control campaign spending. The two most prominent profligate spenders went down to defeat in campaigns financed from their own pockets: Republican Meg Whitman, who spent $140 million running for governor of California, and GOP hopeful Linda McMahon, who spent $50 million in Connecticut’s Senate race.
      Independent spending, on the other hand, does appear to have been effective in helping tilt some pivotal contests, according to a report by Public Citizen, the Nader-founded advocacy group. It found that the winning candidate enjoyed a nearly 3-to-1 advantage overall in unregulated third-party spending in 58 out of 74 party-shifting congressional races. Prime examples were the Illinois and Pennsylvania Senate races, contests won by Kirk and Pennsylvania’s Pat Toomey after outside groups poured millions into opposing Democratic nominees ($8 million in Illinois, $5.3 million in Pennsylvania).
      Disclosure laws are the next target of campaign finance deregulators. In Citizens United, the Supreme Court upheld disclosure requirements, with only Justice Clarence Thomas dissenting. Even if broad constitutional challenges are rejected, the Crossroads GPS example illustrates the gaps — critics call them loopholes — in existing law.
      At a post-election forum, Common Cause reiterated its stance for broader disclosure and for some form of public campaign financing. And it calls for a constitutional amendment if necessary to overturn Citizens United. The decision, Pearson said, “cannot stand.”
      To Smith, now a law professor at Capital University Law School in Columbus, Ohio, the complaints are nothing more than “whining.” The elections, he says, “were not a catastrophe.” As for Citizens United, “more and more people will say we can live with this.”

The Campaign That Iowa's Justices Might Have Won

      Jeffrey Neary drew the ire of social conservatives in 2003 when, without realizing, the Sioux City, Iowa, judge signed a divorce decree for a lesbian couple who had moved to the state after having formed a civil union in Vermont. Iowa did not recognize same-sex marriages at the time, so Neary revised the court document to show that he had dissolved the couple’s civil union.
      Anti-gay activists saw Neary’s action as judicial activism and mounted a campaign to defeat him in the next election in 2004. Neary fought back, as reporter Greg Schulte of the Des Moines Register recalled in a story this year. Neary borrowed money and recruited two attorneys, one Republican and one Democrat, to run his campaign in the retention election, where voters cast “yes” or “no” ballots on keeping a judge in office.
      Neary survived, with 59 percent of the vote. But, as he told Schulte during what proved to be a successful effort this year to defeat three of the state’s supreme court justices, the experience had an effect. For two years afterward, Neary said, he found himself looking over his shoulder when making decisions. “You did ask yourself,” the judge recalled. “Who’s going to care about this decision?”
      With much more at stake this year, Chief Justice Marsha Ternus and two of her colleagues, David Baker and Michael Streit, all but sat on the sidelines as anti-gay groups targeted them for defeat because of the Iowa court’s 2009 decision recognizing same-sex marriages in the state. The three justices organized no campaign for themselves and turned aside requests for interviews. Only in the final weeks did Ternus “go public” in semi-earnest with civic club-type appearances touting the importance of judicial independence. But the speeches were no match for the no-holds-barred campaign against the justices.
      Operating under the name Iowa for Freedom, the campaign against the justices spent upwards of $800,000, about $700,000 of the amount from out of state, according to Adam Skaggs, a lawyer with the Brennan Center for Social Justice at New York University Law School who followed the campaign. Financing came from such anti-gay national groups as the American Family Association, Family Research Council and National Organization for Marriage.
      Without direct help from the justices, an in-state group that called itself Fair Courts for US raised about $400,000 to counter the campaign, according to Skaggs. But it bought no television or newspaper advertisements even as the anti-gay group was running TV and newspaper ads and organizing a highly visible bus tour in Iowa’s rural areas.
      The justices stuck to the no-campaign stance even as polls in September and October showed that one or more of them were in trouble. The Register’s poll in October showed that 44 percent of respondents were planning to vote against at least one of the justices. Only 37 percent said they were in favor of retaining all three. By contrast, polls a year earlier had shown Iowans were essentially split down the middle on the gay marriage issue itself.
      In the final days before the Nov. 2 voting, thousands of Iowans received robocalls at their homes urging a no vote on all three. Defeating the justices, the recorded messages said, would “send a clear message that we are taking back control of our government from political activist judges.”
      The campaign worked. All three justices were defeated on Nov. 2 by roughly 55-45 margins. Leaders of the campaign claimed a victory against a court that had overstepped its bounds. The state’s gay rights leaders acknowledged the setback while noting that the court’s pro-gay marriage ruling still stands.
      Iowa is one of 16 states that use judicial retention elections, the so-called Missouri plan named for the first state to adopt the system. No appellate justices had been defeated since Iowa adopted the system in 1962, but over the years Iowans had ousted four trial-level judges, all because of character or temperament issues.
      As Neary’s experience in 2004 showed, a judge need not tie his hands behind his back when an ouster effort forms. Indeed, as Skaggs notes, even as the Iowa justices were going down to defeat, the chief justice in neighboring Illinois was surviving a comparable campaign because of his vote to strike down a law limiting damages in medical malpractice cases.
      To counter the business-backed campaign against him, Chief Justice Thomas Kilbride raised $2.5 million to defend his seat. He won, with more than 60 percent of the vote. “The lesson for judges in the country,” Skaggs says, “is if we want to keep our jobs, we’re going to have to campaign like any other politicians, particularly in retention elections.”
      That lesson for judges will be an unwelcome one for judicial independence advocates such as retired Supreme Court Justice Sandra Day O’Connor, who has been warning of the dangers of judicial elections. But only nine states dispense with judicial elections altogether. For better or worse, judges in the rest of the country serve in an electoral system — partisan or nonpartisan races or retention elections.
      Could the Iowa justices have won? “Probably,” says Skaggs. “They didn’t fall short by that much of a margin.” But they chose the high road in the campaign — and paid for their high-mindedness with their jobs. The cost to judicial independence could be even greater if judges in future campaigns take the same approach.

Justices Still Saying No to Cameras in Courtroom

      Anyone following the contentious arguments over immigration policy is in for a real treat on Monday: a carefully organized debate, broadcast nationwide on C-SPAN (9 AM PDT), over Arizona’s controversial new law aimed at cracking down on illegal aliens.
      The participants will be two experienced lawyers: John Bouma, chairman of a big Phoenix-based law firm, representing Arizona, and Edwin Kneedler, a deputy U.S. solicitor general for the federal government. The forum will be a federal courtroom in San Francisco before a three-judge panel of the Ninth U.S. Circuit Court of Appeals.
      One month later, the U.S. Supreme Court on Dec. 8 will be the forum for a similar debate over an earlier Arizona law that seeks to raise the penalties, for workers and employers alike, of hiring undocumented aliens. On that day, however, the only members of the general public who will be able to hear the arguments in real time will have to line up hours beforehand to claim one of the coveted 300 seats inside the courtroom.
      Thirty years after the Supreme Court gave a green light to television coverage of state court trials, the court continues to close its doors to cameras. Whatever other courts may think about this no-longer-newfangled medium, the justices will have none of it, at least not yet.
      The resistance continues despite the justices’ awareness of the interest in the issue across in the street in the U.S. Capitol. The Senate Judiciary Committee in June approved a bill (S. 446) that would require the court to allow television coverage of oral arguments. A companion resolution (S. Res. 339), approved by the same, bipartisan 13-6 vote, would skirt separation-of-power issues by expressing “the sense of the Senate” that the court should allow TV coverage.
      Both measures were sponsored by Sen. Arlen Specter, the Pennsylvania Republican-turned-Democrat now in the final months of his 30 years in the Senate. Specter has been dogged on the issue for years and has raised it at confirmation hearings for Supreme Court nominees.
      With their confirmations at stake, Supreme Court nominees profess open-mindedness on the subject. “I don’t have a set view on that,” the future chief justice, John G. Roberts Jr., told Specter during his confirmation hearing in September 2005. “It’s something that I would want to the listen to the views of — if I were confirmed — to my colleagues.”
      Less than a year later, however, Roberts had listened to his camera-shy colleagues and come around. “There’s a concern about the impact of television on the institution,” Roberts said in July 2006 to a conference of federal judges. “We’re going to be very careful before we do anything that might have an adverse impact.”
      In fact, the justices are not unanimous on the subject. Stephen G. Breyer says cameras will “inevitably” come to the court. Like Breyer, two other justices — Samuel A. Alito Jr. and Sonia Sotomayor — supported television coverage when they were serving on federal appeals courts.
      The newest justice, Elena Kagan, voiced enthusiastic support for the idea in her confirmation hearing in June. “I think it would be a terrific thing to have cameras in the courtroom,” Kagan said. “When you see what happens there, it's an inspiring sight.”
      With David H. Souter gone — he promised that television cameras would come in over his dead body — the avowed opponents on the court number three: Antonin Scalia, Anthony M. Kennedy, and Clarence Thomas. Kennedy fears some unstated negative effect on the court’s “dynamic.” Thomas too says it would be bad for the court without saying how. For his part, Scalia simply mocks the idea of open government by saying that the court’s arguments should not become fodder for “entertainment.”
      Despite those views, the court opened the term with what seemed to be a major step into media sunshine. The court announced that audio recordings of oral arguments would now be available on the court’s Web site by the end of the argument week. Previously, recordings were available only through the National Archives after the end of the term.
      The move turned out, however, to be a head-fake. Without saying so, the justices at the same time discarded the practice of making arguments in major cases available on the same day. That practice, which originated with Bush v. Gore in 2000, had allowed radio and TV news outlets to air expanded, same-day coverage of big cases just when the public was paying close attention.
      Ostensibly, the justices wanted to skirt the problem of deciding which cases warranted same-day release. The effect, however, has been to eliminate any news media interest in excerpting arguments a few days after. One suspects that at least some of the justices are pleased with that result.
      With a lame-duck congressional session approaching, a coalition of open-access groups led by the American Civil Liberties Union is urging Congress to move on the issue after the election. “Allowing cameras to broadcast Supreme Court arguments will bring a crucial part of our government’s proceedings to the vast majority of the American public for the first time,” says Michael Macleod-Ball, the ACLU’s legislative chief of staff and First Amendment counsel. With many other issues demanding lawmakers’ attention, however, the prospects for action this year seem very slim.

Remembrances of Things Past, Best Forgotten

      “The past is never forgotten; it’s never even past.”

— William Faulkner

      Clarence Thomas is a Supreme Court justice with a long, but selective, memory. Apparently, the same is true of his wife, Virginia Thomas, who made front-page news this month not only as a Republican/Tea Party activist but also as a loyal spouse seeking vindication for her husband nearly two decades after accusations of sexual harassment nearly derailed his appointment to the high court.
      In interviews and in his memoir, My Grandfather’s Son, Justice Thomas can recall slights as far back as his childhood. But he conveniently forgets the role that his unappreciated Yale law degree and the Republican Party’s racial politics played in advancing his career from Senate staffer to head of the Equal Employment Opportunity Commission (EEOC) and eventually as the second African American to serve on the Supreme Court.
      Similarly, Ginni Thomas apparently still feels the pain from having listened in October 1991 to law professor Anita Hill accuse her husband of sexual harassment while she worked for him at the EEOC. But in her bizarre voice mail message this month [Oct. 9] asking Hill to recant, Ginni Thomas conveniently forgets that Hill’s accusation before the Senate Judiciary Committee was buttressed by significant, if admittedly circumstantial, corroborating evidence.
      The recapitulation of evidence by two reporters-turned-columnists who covered the hearing — Ruth Marcus of the Washington Post and Bloomberg’s Ann Woolner — provides a good reminder that this is no “he said, she said” swearing contest. Yes, as Marcus writes, only Thomas and Hill can know “the full truth” of what happened between them. But Marcus and Woolner both make clear that this is a “he said, they said” swearing contest with the weight of the evidence supporting Hill’s explosive accusation.
      Hill, then in her mid-30s at the University of Oklahoma’s College of Law and now at Brandeis University, had more to lose than to gain from coming forward, reluctantly, with her allegations against Thomas after the presumed close of his confirmation hearing. Under oath, she testified that while working as Thomas’s assistant at the EEOC, he made a variety of sexually provocative and tasteless remarks to her, including the infamous reference to a pubic hair in a Coke can. Thomas, also under oath, vehemently denied the allegations and provocatively labeled himself as the victim of a “high-tech lynching.”
      Thomas’s supporters then and now point to the difficulty of proving a negative. It was also difficult, of course, for Hill to prove an affirmative about events that only the two of them witnessed. But corroborating evidence was in fact produced. Two of Hill’s friends, Ellen Wells and Susan Hoerchner, testified that Hill told them about the alleged sexual harassment in 1982. John Carr, a boyfriend in a long-distance relationship in 1983, also testified that Hill told him of the alleged conduct. And Joel Paul, a law professor at American University, testified that when the school was recruiting Hill in 1987, she cited sexual harassment as the reason for her resignation from the EEOC.
      As Woolner points out, prosecutors often use evidence of “outcry” to support rape accusations in a criminal case. In addition, another of Thomas’s employees at EEOC, press secretary Angela Wright, told the Senate staff that he had pressured her for dates, to the point of an uninvited late-night appearance at her apartment. She did not testify publicly because the then-Senate Judiciary Committee Chairman Joe Biden limited testimony to Thomas’s conduct in the workplace. Biden also ruled out as an invasion of privacy any evidence about Thomas’s reported interest in pornography.
      As Marcus recounts, journalist-authors found more supporting evidence afterward. Jane Mayer (now at the New Yorker) and Jill Abramson (now news managing editor of the New York Times) include in their book, Strange Justice, accounts from two others at the EEOC of similar pubic hair/Coke can remarks. In their biography, Supreme Discomfort, the Washington Post’s Kevin Merida and Michael Fletcher quote a college classmate of Thomas’s as describing “an almost identical episode.”
      History must judge the episode as inconclusive. Thomas won confirmation, with several pivotal senators saying before the 52-48 vote that they had to disregard the allegations as unproven. With interest renewed by Ginni Thomas’s phone call, however, one more corroborating witness has emerged. Lillian McEwen, a now retired government lawyer who dated Thomas for five years in the 1980s, told the Washington Post that Thomas constantly sized up female employees as “potential partners.” In the interview and in a forthcoming memoir, McEwen also describes Thomas as avidly interest in pornography.
      Ginni Thomas has previously called on Hill in interviews to recant and apologize, but the phone message at Hill's office unnerved her enough to turn it over to campus police. Ginni Thomas’s motivation is unknown, beyond her stated belief that it was time for Hill to pray about doing the right thing; she reportedly canceled some scheduled media interviews last week, avoiding questions. In his memoir three years ago, Justice Thomas again denied wrongdoing and depicted the accusations as a politically motivated attack on him as a black conservative.
      Hill and many of us who covered the hearing believe with her that she has nothing to apologize for. Hill’s supporters have been forced to get past it, but for Clarence and Ginni Thomas the past is not forgotten; it is not even past.

Lady Justice’s Blind Eye Toward Prosecutorial Misconduct

      Tea Party types who want to strike a blow against governmental abuse and constitutional violations need not travel to Washington, D.C., to find a target for their protests. They can go instead to the nearest state or federal courthouse, where prosecutors are quite likely to be committing negligent mistakes or willful misconduct far more often than commonly acknowledged.
      The incidence of prosecutorial misconduct is unknown and unknowable. Even more than police, prosecutors commit their wrongdoing — most commonly, withholding evidence from defense lawyers — behind closed doors. This much is known: The few offending prosecutors who are caught are rarely punished in any meaningful way.
      These conclusions reflect long-held beliefs among defense lawyers, civil libertarians and many criminal justice experts. They gain confirmation now from two critical studies: a six-month investigative project covering federal prosecutors by USA Today and a decade-long review of state cases in California by the Northern California Innocence Project at Santa Clara University Law School. Both find statistical evidence of prosecutorial wrongdoing, often linked to wrongful convictions, with hardly any of the errant D.A.’s suffering any form of punishment.
      The two studies were published in September just as the U.S. Supreme Court was preparing to hear arguments in a notorious case of prosecutorial misconduct, Connick v. Thompson. John Thompson spent 14 years on death row in a Louisiana prison — and came within hours of execution — for a murder that he did not commit. He was convicted in part because a prosecutor knowingly withheld crucial evidence from the defense lawyer, evidence that the prosecutor was ethically and legally obliged to turn over.
      Now freed from prison, Thompson wants some compensation for the years of freedom that the criminal justice system wrongfully took from him. But the Supreme Court has made it virtually impossible to sue an individual prosecutor. Prosecutors are immune for any official actions directly related to a criminal trial. In any event, the trial prosecutor, who surreptitiously removed forensic evidence from the storage room, died a few years back. He had confessed his misconduct to a colleague, but had taken no other action to right his wrong.
      With personal liability foreclosed, Thompson instead is trying to hold the New Orleans district attorney’s office itself responsible for failing to train assistant D.A.’s properly about the so-called Brady rule. The rule, established by the Supreme Court in Brady v. Maryland (1963), requires prosecutors to turn over any potentially exculpatory evidence to the defense.
      Thompson’s federal civil rights lawsuit runs into an obstacle. The Supreme Court's decision in another case, Monell v. Dep’t of Social Services of New York (1978), allows a municipality to be held liable for a constitutional violation by one of its officials only if the plaintiff proves “deliberate indifference” on the municipality’s part. In Supreme Court arguments on Oct. 6, the justices got tied up in knots over the question of whether a single egregious instance could show “deliberate indifference.” They also pressed the former inmate’s lawyer to specify exactly what training the district attorney’s office should have been required to provide to new prosecutors.
      Legally, it may be a close case. In real-world terms, it is not. New Orleans’ longtime district attorney, Harry Connick Sr., appears to have fostered a lopsided attitude toward Brady in the office: Disclose nothing unless you absolutely have to; don’t worry about being called on the carpet for withholding. The training manual for the office actually misstated the Brady rule.
      Impunity for Brady violations and other prosecutorial misconduct appears to be the rule in other jurisdictions. In the USA Today package, reporters Brad Heath and Kevin McCoy documented 201 federal criminal cases since 1997 in which judges “blasted prosecutors for ‘flagrant’ or ‘outrageous’ misconduct” such as “hiding evidence,” “lying to judges or juries,” or breaking plea bargains. (Disclosure: Heath is a former student of mine at Georgetown University Law Center.)
      The Justice Department’s internal watchdog investigates such cases: 42 in 2001, 61 last year. But the department refuses, on privacy grounds, to say whether any of the prosecutors was punished. Using state bar records, however, Heath and McCoy found that since 2001 only one federal prosecutor has been suspended even temporarily from law practice because of misconduct. In the flagrant example they used to start the story, the federal prosecutor who concealed unfavorable information about the government’s major witnesses got a slap on the wrist: a one-day training session on ethics.
      In the California study, the Santa Clara law school project combed state appellate court decisions from 1997 through 2009 and identified 707 cases in which courts “explicitly found that prosecutors committed misconduct.” The vast majority of convictions (548) were nevertheless upheld: no harm, no foul, apparently.
      More troublingly, an examination of state bar records found public disciplinary actions against only 10 state prosecutors during the period, only six of them for trial-related violations. As Professor Kathleen Ridolfi and visiting journalist Maurice Possley conclude, judges, prosecutors, and the California State Bar are “casting a blind eye to prosecutors who place their thumbs on the scales of justice.”
      The Supreme Court could play a role in changing the lax attitude toward errant prosecutors, but the justices’ questions in Thompson’s case point in the opposite direction. One more sign of the justices’ solicitude toward government attorneys came today (Oct. 18) when they agreed to hear former Attorney General John Ashcroft’s appeal in a case, Ashcroft v. Al-Kidd, testing whether he can be held individually liable for alleged misuse of the federal material witness statute during the post-9/11 roundup of hundreds of wrongfully accused individuals.

No First Amendment Exception for Military Funerals

      A cardinal tenet of First Amendment law teaches that any regulation of speech or the press is likely to deter some forms of expression on the legal side of the restriction. This “chilling effect” requires that executive officials, legislative bodies, and, above all, courts take care to regulate First Amendment-protected expression only with lines that are either so clear or so stringent that speakers will not risk punishment by accidentally straying across them.
      Supreme Court justices seemed to have forgotten this teaching during parts of the arguments last week (Oct. 6) in the case that pits the family of a deceased U.S. serviceman against the pastor and other members of the fundamentalist Westboro Baptist Church of Topeka, Kan. Driven by the emotions of the case, the justices appeared to be looking for a way to rule against the Rev. Fred Phelps and his family member congregants for demonstrating at Matthew Snyder’s funeral to voice their belief that U.S. war deaths are divine punishment for America’s tolerance of homosexuality.
      Snyder’s father, Albert, won an $11 million award from a federal court jury in a suit against Phelps and his church for, among other claims, intentional infliction of emotional distress. The judge cut the award down to $5 million, including $2.9 million in punitive damages, but the federal appeals court in Richmond, Va., threw the case out on First Amendment grounds.
      Hearing Snyder’s appeal, the justices left no doubt about their disgust with Phelps’ tactics. They recoiled at Phelps’ targeting of a Marine killed at age 20 in Iraq only to be vilified at his funeral as an evil doer. “God hates you,” one of the Phelps’ signs read. Another: “You’re going to hell.”
      The Supreme Court’s rule in the case, however, will be the rule not only for the Westboro Baptist Church but also for other unpopular speakers in the future. As Phelps’ lawyer-daughter Margey Phelps put it, Snyder was asking to punish the Phelps’ “little church” because “they came forth with some preaching that [he] didn’t like.”
      The court faced an analogous situation some 50 years ago when Alabama courts were using libel suits by public officials to punish civil rights groups and national news media for agitating or writing about conditions in the racially segregated South. The New York Times faced so many trumped-up libel suits in Alabama that the newspaper pulled its reporters from the state for a while to avoid being served with papers in the cases.
      The Supreme Court stopped the litigation-driven intimidation in its tracks with one of its most important First Amendment rulings ever: New York Times v. Sullivan. Under the ruling as later expanded, a public official or public figure can recover damages for libel only if the defendant published or uttered a false, defamatory statement knowing that it was false or with reckless disregard as to its truth or falsity. That strict rule, the justices said, was necessary to afford the breathing space that the First Amendment requires.
      The temptation in Snyder’s case, of course, is to think that military funerals could be carved out as one small exception to what the court in Times v. Sullivan called the “profound national commitment” to “uninhibited” debate on public issues. The actual facts in Snyder’s case belie that solution, however. Albert Snyder did not actually read any of the signs at the funeral, in part because Phelps’ group was standing 1,000 feet away from the entrance to the church — as approved by the local police. Phelps actually read the signs only afterward; it was also afterward that he saw the Phelps’ Internet production that depicted Matthew Snyder as having been raised in a godless home.
      Even if the facts supported the jury’s verdict, however, the military-funeral exception is one the First Amendment cannot comfortably countenance. Anti-war activists might choose to protest at military funerals that service members are dying in vain in an unjust war. Free speech would suffer if the courts were free to punish such a protest because the message is upsetting to the survivors. Justices complained to Margey Phelps that other venues were available for the church’s protest and that the funeral was picked solely to maximize publicity. As Phelps aptly responded, all speakers want maximum exposure for their message — and are entitled to seek just that.
      In her questioning, Justice Elena Kagan, the court’s newest member, emphasized the inevitable subjectiveness of the tort of intentional infliction of emotional distress. As one of the elements, the plaintiff must prove “outrageousness” on the defendant’s part. That ill-defined term would invite jurors to impose liability on speakers simply because they dislike the speaker’s point of view.
      The law is not powerless to protect the sensitivities of the families of the fallen. Maryland’s legislature is one of many that have enacted laws requiring protesters to keep a minimum distance away from a military funeral. As long as the speech-free zone is not too extensive, those are probably constitutional. Targeted, individual stalking also may be punishable either civilly or even criminally. But the ruling that punishes the Phelpses today may punish more worthy speakers tomorrow. As Justice Oliver Wendell Holmes Jr. put it 80 years ago, the First Amendment requires “freedom for the thought that we hate.”

The Liberal Lions Who Overstayed Their Welcome

      Brennan and Marshall. Their names were linked while on the Supreme Court and remain lastingly connected years after their deaths. William J. Brennan Jr., the affable Irishman and architect of the Warren Court’s most important decisions. Thurgood Marshall, the gruff African American crusader against racial segregation and first of his race on the Supreme Court.
      Democratic presidential contenders — Al Gore in 2000, Barack Obama in 2008 — cited Brennan and Marshall as the models for their possible Supreme Court nominees. Liberal advocates regularly lament the lack of a comparable liberal on the court today.
      Marshall’s work in directing the litigation strategy leading up to Brown v. Board of Education has already been lionized in several creditable biographies. Brennan’s life and work are now being told in a new, exhaustive biography: Justice Brennan: Liberal Champion by Seth Stern and Stephen Wermeil. (Disclosure: Stern, a Congressional Quarterly reporter, and Wermeil, a professor at American University’s Washington College of Law, are colleagues and friends.)
      The Brennan biography, written by Stern and based on Wermeil’s extensive interviews with the justice and access to his voluminous files, is touching off a new round of debate over the Warren Court’s burst of liberal activism from the late 1950s until Warren’s retirement in 1969. Today’s conservatives answer criticism of the Roberts Court’s reversals of precedent by likening them to the Warren Court’s.
      The comparisons are inapt, as this biography makes clear. With Brennan the mastermind behind the scenes, the Warren Court overturned old and poorly reasoned precedents that had allowed systematic injustices to go uncorrected. No one today would seriously argue against the decision in Baker v. Carr (1963) to use federal judicial power to establish the “one person, one vote” principle in legislative redistricting or the ruling in Gideon v. Wainwright (1962) to require appointment of counsel for indigent defendants in state criminal cases.
      History has already judged those rulings and many other activist decisions of the Warren era as both necessary and beneficial. Eight months after the Roberts Court’s ruling in Citizens United, it is reasonable to predict that history’s judgment on freeing corporations to spend unlimited sums in political campaigns will be, at best, ambiguous.
      The Brennan biography, however, supports a different line of criticism of both him and his fellow liberal Marshall. Both justices arguably stayed on the court too long.
      By the mid-1970s, Brennan the private conciliator was becoming the public scold. His dissents were becoming, as he acknowledged later, “much too sharp and acid.” For years, Brennan had made a point of taking new justices under his wing — helping orient them and laying the groundwork for gentle persuasion in future cases. But not long after Sandra Day O’Connor joined the court in 1981, Brennan made the unseemly and unwise decision to mock one of her early opinions in his dissent.
      As for Marshall, Brennan privately considered his performance a disappointment. “What the hell happened when he came on the Court, I’m not sure,” Brennan is quoted as saying, “but he doesn’t seem to have had the same interest.” As with Brennan’s dissents, Marshall was an occasional scold in the justices’ internal deliberations — sometimes addressing his colleagues as “massa” in a deep slave dialect, according to the book.
      Both men had health problems in the late 1970s, but both chose to stay on the bench. Brennan was persuaded in part by his family, who wondered what he would do with himself in retirement. Although unmentioned in the book, Marshall is famously reported to have bluntly rebuffed an inquiry from the Carter White House about his possible departure.
      With a Democrat in the White House and a Democratic majority in the Senate, either or both of the justices might have retired with an expectation of a compatible successor. Both stayed on for a combination of personal and institutional reasons; their contributions over the next decade are in some sense negligible. Brennan lived long enough to see his successor, David H. Souter, emerge as an often likeminded justice; Marshall regretted his successor, Clarence Thomas.
      The episodes buttress the arguments made for the proposal to modify justices’ tenure by limiting their active service on the court to 18 years. As previously suggested here (“Supreme Court Tenure: Too Much of a Good Thing?,” March 2, 2009), the proposal would promote healthy turnover at the court and defuse confirmation battles somewhat by reducing the stakes (the risks) of each new appointment. Despite support from a range of legal experts, however, the proposal is a dead letter politically. Neither party wants to give up the chance for a president to appoint a justice — a Roberts or a Kagan — who can serve for decades.
      In his farewell letter this year, John Paul Stevens offered a mild apology to his fellow justices for his 34-year tenure. “If I have overstayed my welcome,” he wrote, “it is because this is such a wonderful and unique job.” Stevens was both sharp and collegial to the end, but his example is the proverbial exception that proves the rule. Age and wisdom may sometimes go hand in hand, but sometimes the better part of wisdom may be recognizing when they do not.

Judging Roberts: A Wide Strike Zone for Business

     Chief Justice John G. Roberts Jr., former Reagan and Bush I administration lawyer and former corporate attorney, won Senate confirmation in 2005 after promising that he had no “agenda” for the Supreme Court. But five years later, no one should be surprised that Roberts and the court he leads have regularly favored business interests in the legal issues that business counts as high priorities.
     Numbers help tell the story. Among 53 cases over the past five years where the U.S. Chamber of Commerce has participated, Roberts voted for the Chamber’s position 70 percent of the time, according to an analysis by the consumer-oriented Constitutional Accountability Center. In the 17 closely divided cases, Roberts batted 90 percent for business. By way of comparison, the four liberal justices (Stevens, Souter, Ginsburg, and Breyer) voted for the Chamber in the mid-30 to mid-40 percent range; Sotomayor was slightly lower, but with a small sample in her single term.
     Roberts’ votes have helped give business victories in such areas as preemption, arbitration, securities fraud, and civil litigation. Business interests use preemption to rein in states that have more consumer-friendly state law or regulations than the federal government. They want courts to enforce take-it-or-leave-it arbitration contracts to force workers or consumers into a stacked dispute-resolution system and shut them out of courts. And business has worked tirelessly for decades to try to limit the ability of investors to recover for losses due to securities fraud or for consumers to be fully compensated for injuries from unsafe products.
     In contrast to the overturned precedents discussed here last week [“Judging Roberts: Riding Roughshod Over Precedent”], Roberts and fellow Bush appointee Samuel A. Alito Jr. have not changed, but only fortified, the court’s orientation on these issues. “The Rehnquist Court was quite a good forum for business,” Maureen Mahoney, a corporate lawyer and former clerk to Chief Justice William H. Rehnquist, remarked at the end of Roberts’ second year as chief justice. “The Roberts Court is even better.”
     Preemption cases remain somewhat hard to predict. Truckers and medical device manufacturers won preemption cases, but the court in 2008 rejected efforts by drug makers and tobacco companies to escape state court suits for inadequate warnings about their products. Roberts, however, has been consistent. With one exception in his first term, Roberts has always backed federal preemption, whether in the majority or in dissent.
     On arbitration, the Roberts Court has continued the general pattern of rejecting efforts by workers or consumers to escape arbitration clauses in employment or purchase contracts. Some rulings have been by lopsided margins, but two significant decisions in 2010 came on 5-4 votes that pitted the Roberts-led conservatives against the liberal bloc.
     The Rehnquist Court dealt investors a blow in 1994 by rejecting any “aiding and abetting” liability for securities fraud; the 5-4 ruling blocked a suit against a bank that had, unknowingly, helped further the fraudulent conduct. The Roberts Court took that ruling one step further in 2008 by freeing a company from securities fraud liability even if it had knowingly participated in the misconduct. The 5-3 vote was mostly along ideological lines; Alito was recused.
     The Roberts Court has been somewhat more generous in interpreting federal job discrimination laws. In particular, it has actually widened protection for employees claiming retaliation for complaining about alleged discrimination. But one major ruling in 2009 made age-discrimination suits much more difficult to win. And the famous Ledbetter ruling in 2007 would have narrowed employers’ liability for pay discrimination but for the law Congress passed to overturn it.
     Roberts pledged in the confirmation hearing that he would just call balls and strikes and let the political branches decide the rules of the game. But he dissented in 2007 when the liberals plus Kennedy read the Clean Air Act to require the Environmental Protection Agency to regulate “greenhouse gases.” And when Congress required the EPA to use the “best technology” available to “minimize” fish kills at electric power plants, Roberts joined the majority decision in 2009 to allow the agency to retreat from that standard by adopting a cost-benefit analysis. The decision could have saved electric utilities billions but for the Obama administration’s reversal of the Bush administration rule.
     One big company that did save billions thanks to a Roberts Court decision is Exxon, which won a 5-3 decision in 2008 cutting a $2.5 billion punitive damage award for the Exxon Valdez oil spill by more than 80 percent to $500 million. Here, the Roberts Court itself defined the strike zone by using its power over federal maritime law to impose a 1-to-1 ratio of punitive to compensatory damages. True, the liberal Souter wrote the decision, but Roberts and three fellow conservatives provided the other votes.
     The Chamber of Commerce prevailed in 64 percent of the cases counted by the Constitutional Accountability Center: not a bad batting average. That number includes the business community’s biggest win: the Citizens United decision in January freeing corporations to spend unlimited sums in political campaigns. After five Roberts Court years, Mahoney remains a fan. The Supreme Court, she told the Chamber of Commerce-sponsored preview of the coming term, is “the best court” in the country for getting what she called “a fair hearing” on business-related issues.

Judging Roberts: Running Roughshod Over Precedent

     It has been five years this month since Judge John G. Roberts Jr. went before the Senate Judiciary Committee seeking confirmation to be chief justice of the United States. Roberts won senators over with his legal knowledge, smooth demeanor, and personal charm. He also promised, if confirmed, to respect precedent, forswear any “agenda,” strive for fewer divided rulings, and decide cases like an idealized umpire — calling balls and strikes according to a strike zone defined by others, not by him.
      The chief justice, of course, is not subject to reconfirmation. But if he were called on to answer for his record, how would Roberts be judged based on the promises he made in September 2005? Not that well.
      Most troublingly, the Roberts Court has run roughshod over important legal precedents, not just in its ruling in January to free corporations in political campaigns but in many other ideologically divided decisions beginning as soon as Roberts’ second term. And most of those rulings fit with a consistent agenda of favoring corporations over workers and consumers and of narrowing individual rights.
      As a nominee, Roberts stressed the importance of following precedent —the legal principle known as stare decisis — in promoting both stability and evenhandedness. “I do think that it is a jolt to the legal system when you overrule a precedent,” Roberts said. A judge should consider overruling a prior decision, he said, not because of personal disagreement, but only because of special factors such as the unworkability of the rule or the need to adapt to new circumstances.
      Roberts has paid no more than lip services to those caveats as chief justice. By my count in The Supreme Court Yearbook, the Roberts Court has expressly overruled precedents eight times in Roberts’ five terms: somewhat above the historical average of about one such decision per year. In at least half a dozen other decisions by my count, the court has bent precedent so badly as to approach an overruling.
      Admittedly, two of these rulings were unanimous: an 8-0 ruling in 2006 favoring patentholders that tie an unpatented item to their patented product and a 9-0 decision in 2009 changing the procedure in constitutional rights suits against government officials. And in another 2009 decision, the court strengthened individual rights by limiting the authority of police to search a vehicle after arresting the driver. Significantly, Roberts was among four dissenters in that case.
      The other overruling cases all came on 5-4 votes that pitted the conservative majority (Roberts, Scalia, Kennedy, Thomas, and Alito) against the liberal bloc (Stevens, Ginsburg, Breyer and either Souter or in the most recent term Sotomayor). In 2007, the court buried a nearly century-old antitrust precedent that made it illegal for a manufacturer to dictate to retailers a minimum price for its product. In an otherwise insignificant case, the court decided that a missed deadline for filing a notice of appeal — in this case, because of wrong information from the court — requires dismissal of the appeal, no exceptions permitted.
      Among the more controversial rulings, the court in 2009 trashed a Burger Court precedent by allowing police to initiate an interrogation of a suspect without notifying his or her lawyer. As Justice Stevens noted in dissent, the new rule gives a criminal suspect less protection than a defendant in a civil suit, who cannot be questioned by the opposing lawyer without notice to counsel.
      The Citizens United campaign finance decision in January drove a huge loophole through a century-long rule barring corporate spending in federal campaigns. In a concurring opinion, Roberts sought to justify the majority’s decision to overrule two precedents, the most recent from 2003. Roberts posited a new and troubling justification for overruling prior decisions: “when a precedent’s validity is so hotly contested that it cannot reliably function as a basis for decision in future cases.” In effect, this criterion invites what Roberts said five years ago is impermissible: overruling a past decision because of personal disagreement.
      The court finished its term in June with its decision to use the post-Civil War Fourteenth Amendment to extend the newly created Second Amendment individual gun right to state and local governments. That ruling explicitly overturned decisions from the late 19th century, written with the Fourteenth Amendment still in recent memory. And it built on the 2008 decision in the Washington, D.C., Heller case that itself rejected a 70-year-old precedent rejecting an individual right under the Second Amendment.
      Among the bent precedents is the 2007 decision upholding a federal ban on so-called “partial birth abortions.” The ruling rode past the Roe v. Wade requirement that abortion regulations include an exception if necessary to protect a woman’s health. In the same, tumultuous term, Roberts led the court in rejecting many voluntary school integration plans and reducing to insignificance a central provision of the McCain-Feingold campaign finance law on election-time TV advertising. Other decisions significantly narrowed high school students’ free speech rights and taxpayers’ ability to challenge government actions on Establishment Clause grounds. All came on 5-4 votes in a term with the highest percentage of one-vote decisions ever in the court’s history.
      Dissenting in the school integration case, Justice Breyer added a tart comment from the bench that applies all the more three terms later. “It is not often in the law that so few have so quickly changed so much,” Breyer said. With Roberts so young and the conservative majority so often so entrenched, the prospect is for more jolting changes ahead.

Judging Roberts: Running Roughshod Over Precedent

     It has been five years this month since Judge John G. Roberts Jr. went before the Senate Judiciary Committee seeking confirmation to be chief justice of the United States. Roberts won senators over with his legal knowledge, smooth demeanor, and personal charm. He also promised, if confirmed, to respect precedent, forswear any “agenda,” strive for fewer divided rulings, and decide cases like an idealized umpire — calling balls and strikes according to a strike zone defined by others, not by him.
      The chief justice, of course, is not subject to reconfirmation. But if he were called on to answer for his record, how would Roberts be judged based on the promises he made in September 2005? Not that well.
      Most troublingly, the Roberts Court has run roughshod over important legal precedents, not just in its ruling in January to free corporations in political campaigns but in many other ideologically divided decisions beginning as soon as Roberts’ second term. And most of those rulings fit with a consistent agenda of favoring corporations over workers and consumers and of narrowing individual rights.
      As a nominee, Roberts stressed the importance of following precedent —the legal principle known as stare decisis — in promoting both stability and evenhandedness. “I do think that it is a jolt to the legal system when you overrule a precedent,” Roberts said. A judge should consider overruling a prior decision, he said, not because of personal disagreement, but only because of special factors such as the unworkability of the rule or the need to adapt to new circumstances.
      Roberts has paid no more than lip services to those caveats as chief justice. By my count in The Supreme Court Yearbook, the Roberts Court has expressly overruled precedents eight times in Roberts’ five terms: somewhat above the historical average of about one such decision per year. In at least half a dozen other decisions by my count, the court has bent precedent so badly as to approach an overruling.
      Admittedly, two of these rulings were unanimous: an 8-0 ruling in 2006 favoring patentholders that tie an unpatented item to their patented product and a 9-0 decision in 2009 changing the procedure in constitutional rights suits against government officials. And in another 2009 decision, the court strengthened individual rights by limiting the authority of police to search a vehicle after arresting the driver. Significantly, Roberts was among four dissenters in that case.
      The other overruling cases all came on 5-4 votes that pitted the conservative majority (Roberts, Scalia, Kennedy, Thomas, and Alito) against the liberal bloc (Stevens, Ginsburg, Breyer and either Souter or in the most recent term Sotomayor). In 2007, the court buried a nearly century-old antitrust precedent that made it illegal for a manufacturer to dictate to retailers a minimum price for its product. In an otherwise insignificant case, the court decided that a missed deadline for filing a notice of appeal — in this case, because of wrong information from the court — requires dismissal of the appeal, no exceptions permitted.
      Among the more controversial rulings, the court in 2009 trashed a Burger Court precedent by allowing police to initiate an interrogation of a suspect without notifying his or her lawyer. As Justice Stevens noted in dissent, the new rule gives a criminal suspect less protection than a defendant in a civil suit, who cannot be questioned by the opposing lawyer without notice to counsel.
      The Citizens United campaign finance decision in January drove a huge loophole through a century-long rule barring corporate spending in federal campaigns. In a concurring opinion, Roberts sought to justify the majority’s decision to overrule two precedents, the most recent from 2003. Roberts posited a new and troubling justification for overruling prior decisions: “when a precedent’s validity is so hotly contested that it cannot reliably function as a basis for decision in future cases.” In effect, this criterion invites what Roberts said five years ago is impermissible: overruling a past decision because of personal disagreement.
      The court finished its term in June with its decision to use the post-Civil War Fourteenth Amendment to extend the newly created Second Amendment individual gun right to state and local governments. That ruling explicitly overturned decisions from the late 19th century, written with the Fourteenth Amendment still in recent memory. And it built on the 2008 decision in the Washington, D.C., Heller case that itself rejected a 70-year-old precedent rejecting an individual right under the Second Amendment.
      Among the bent precedents is the 2007 decision upholding a federal ban on so-called “partial birth abortions.” The ruling rode past the Roe v. Wade requirement that abortion regulations include an exception if necessary to protect a woman’s health. In the same, tumultuous term, Roberts led the court in rejecting many voluntary school integration plans and reducing to insignificance a central provision of the McCain-Feingold campaign finance law on election-time TV advertising. Other decisions significantly narrowed high school students’ free speech rights and taxpayers’ ability to challenge government actions on Establishment Clause grounds. All came on 5-4 votes in a term with the highest percentage of one-vote decisions ever in the court’s history.
      Dissenting in the school integration case, Justice Breyer added a tart comment from the bench that applies all the more three terms later. “It is not often in the law that so few have so quickly changed so much,” Breyer said. With Roberts so young and the conservative majority so often so entrenched, the prospect is for more jolting changes ahead.

No Day in Court for Victims of Official Torture

For wherever the common law gives a right or prohibits an injury, it also gives a remedy by action.

Blackstone, Commentaries on the Law of England (1765-1769)

* * *

For every wrong, a remedy: the principle is as old as Blackstone. But five victims of post-9/11 torture conducted or colluded in by the United States government had the door to the courthouse slammed in their faces last week. And the ruling by a federal appeals court came at the behest of the Obama administration, which had seemingly promised to turn the page on the detention and interrogation policies pursued for eight years under President George W. Bush.
      With acknowledged reluctance, the federal appeals court in San Francisco last week [Sept. 8] upheld an effort by the United States government to dismiss a suit by five foreigners seeking a remedy for what was from all that appears their wrongful apprehension by the United States and subsequent torture by U.S. forces or at the hands of foreign governments with U.S. connivance. The reason: the story of their abusive mistreatment might lead to the disclosure of “state secrets” that national security supposedly requires to be kept, well, secret.
      The five men sued not the United States, but a private airline, Jeppesen Dataplan, a Boeing subsidiary, which was identified in a sworn deposition as the Central Intelligence Agency’s charter company for the so-called “extraordinary rendition” of suspected enemy combatants. Without waiting for Jeppesen to respond, the Justice Department filed a motion to dismiss the suit on the grounds of the state secrets privilege. This controversial judicial doctrine has been invoked as often as not to avoid embarrassment to the government, not to protect real government secrets.
      Under wraps, the government told at least some of the secrets of the plaintiffs’ detention and interrogation to the judges of the Ninth U.S. Circuit Court of Appeals. Among a panel of 11 judges, six were sufficiently persuaded to dismiss the torture victims’ suit. The five dissenting judges argued the case should proceed with the plaintiffs allowed to make their case on the basis of information already publicly known. Under the dissenters’ view, the government could seek to limit the evidence in a trial, but not prevent the trial altogether.
      News coverage of the ruling, Mohamed v. Jeppesen Dataplan, Inc., has glossed over the plaintiffs’ stories. They bear repeating, at least in summary form. Their allegations are as yet untested in court, but many of the details have been acknowledged — by other governments, if not by the United States.
      Lead plaintiff Binyam Mohamed, an Ethiopian and legal resident of Britain, was arrested in Pakistan and transferred to Morocco, where he was held for 18 months and subjected to “severe physical and psychological torture” that included scalpel cuts all over his body, including his penis. Later, he was transferred to a CIA “black site” prison for more abusive treatment and eventually to Guantanamo for five years before being released to Britain.
      Among other plaintiffs, Ahmed Agiza, an Egyptian, was arrested while seeking asylum in Sweden and returned to Egypt, where he was beaten and subjected to electric shock; he was eventually tried in an Egyptian military court and, after a six-hour trial, sentenced to 15 years in prison. Abou Elkassim Britel, an Italian of Moroccan origin, was arrested in Pakistan and transported to Morocco, where he was beaten and threatened with sexual torture; he was convicted of terrorism-related charges on the basis of what he contends was a false confession and sentenced to 15 years’ imprisonment.
      Plaintiffs Bisher al-Rawi, an Iraqi, and Farag Ahmad Bashmilah, a Yemeni, both say they suffered mistreatment at the hands of U.S. authorities in Afghanistan and — in Bashmilah’s case — in a CIA prison. Both are now free: al Rawi was returned to the United Kingdom, where he is a legal resident; Bashmilah was convicted of a “trivial” crime in Yemen and released on the basis of time served.
      Those stories are worth telling here because, if the government gets its way, they will not be told in court. Indeed, as the plaintiffs’ lawyer, American Civil Liberties Union staff attorney Ben Wizner, noted, “To date, not a single victim of the Bush administration's torture program has had his day in court.”
      Candidate Barack Obama appeared to promise a changed attitude on the issues. As president, however, he has done no more than to end the discredited practices. He has given the victims no redress nor taken steps to ensure that the full story of post-9/11 torture be told. Indeed, despite a promise to invoke the state secrets privilege sparingly, Attorney General Eric Holder personally approved use of the privilege in this case to bar the trial altogether.
      In its ruling, the Ninth Circuit suggested non-court remedies for the plaintiffs, including reparations by the government and a full congressional investigation. For its part, the ACLU promises an appeal to the Supreme Court. The prospects of an appeal, however, are not good; the justices rejected a similar appeal last year. As for the appeals court’s suggestions, they would come, if at all, only after more time has passed — recalling another legal maxim: “Justice delayed is justice denied.”

Dishonoring America's Promise of Religious Freedom

. . . but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”

(U.S. Constitution, Art. VI, cl. 3)

      The Framers could hardly have been clearer, but political history has made short shrift of their effort to create what in 21st-century parlance would be called a non-sectarian state. Over more than two centuries now, every president of the United States has been a Christian — and as a practical matter required to profess as much.
      Still, nothing in American history provides a precedent for the extraordinary episode over the past weekend [Aug. 28-29] in which a radio and television commentator with no known theological training went on national television to depict the sitting president as a bad Christian. For that is what Americans who did not spend Sunday morning in church got if they watched and listened to Glenn Beck attack President Obama for what Beck called the president’s devotion to “liberation theology.”
      In Beck’s telling (on “Fox News Sunday,” under relatively friendly questioning from his fellow Fox-man, Chris Wallace), Obama is wrong about how to achieve salvation. Beck says that instead of seeing salvation as requiring an individual relationship with God, the president views salvation through the collectivist lens of “liberation theology.”
      “You see, it's all about victims and victimhood; oppressors and the oppressed; reparations, not repentance; collectivism, not individual salvation,” Beck said. “I don't know what that is, other than it's not Muslim, it's not Christian. It's a perversion of the gospel of Jesus Christ as most Christians know it.”
      Perversely, Beck’s critique of Obama’s supposed religious views came by way of an apology for his previous description of Obama as a “racist” with a “deep-seated hatred of white culture.” So, now, instead of seeking to estrange Obama from his followers on the unacceptable basis of race, Beck chooses religion instead. And he did so in the context of the widely shared view among Republicans and conservatives that Obama is actually a Muslim.
      Beck’s religion-based attack came one day after he presided over his self-styled “Restoring Honor” rally in Washington, which drew an impressive if not overwhelming crowd stretching from the steps of the Lincoln Memorial to the Washington Monument. The three hours of speeches were largely clear of political divisiveness, but in their overt Christianity — to the exclusion of other faiths — they carried the taint of sectarianism.
      It is worth recalling that for 170 years, it was a recognized fact of political life that the president must also be a Protestant: no Catholics need apply. John F. Kennedy broke that barrier, but only after satisfying a “religious test” that he would not take his Catholicism into the Oval Office when making political decisions.
      The country today is more religiously pluralistic and in some ways more religiously tolerant than ever before. Joe Lieberman’s religion was of course remarked when Al Gore selected him as the Democratic nominee for vice president in 2000 and the first Jew ever to run on a national ticket of a major party. But Lieberman’s religion never amounted to an issue in the campaign.
      The country’s religious pluralism definitely has its limits. Could a Jew be elected president today — or in your lifetime? The odds are no better than 50-50. Can a Muslim be elected to Congress without controversy? No, as Rep. Keith Ellison, the Minnesota Democrat, learned when he took the oath by swearing on a Koran instead of the Christian Bible.
      And one need go no further than the pages of the week’s newspapers to know that religious divisiveness is spiking these days. Exhibit No. 1: the debate over the proposed Islamic center to be built in lower Manhattan, a few blocks from “Ground Zero.” Even if one grants the particular sensitivities of some Americans to siting a mosque — one of the planned uses of the center — so near to the epicenter of the Sept. 11 attacks, there is also exhibit No. 2: the apparent torching of construction equipment at the site of a planned mosque in Murfreesboro, a town in Tennessee hundreds of miles from New York City.
      Beck’s understanding of “restoring honor” to America had no room for an appeal for tolerance for those who do not share his Christian faith, no room for denouncing the acts of intolerance and even violence against Muslim Americans. As a Mormon, Beck should know better. Mormons themselves were and still are depicted as un-Christian by many Christians, who see them as worshiping a false savior other than Jesus.
      Beck’s rally was at the same site, and on the same date, as the historic “March on Washington for Jobs and Freedom” in 1963. Among the great anthems of the civil rights movement was “We Shall Overcome” with one of its refrains celebrating “black and white together.” On the dais that day, and in the audience, Christians and Jews were conspicuously united in a cause truly dedicated to “restoring honor” in the United States.
      Sadly, Beck’s rally did not appeal to that unifying sentiment. There would have been honor indeed had he done so, but little real honor in its absence.