"The Campus Rape Frenzy: The Attack on Due Process at America’s Universities"...

... is the title of the new book by KC Johnson and Stuart Taylor (who co-authored "Until Proven Innocent: Political Correctness and the Shameful Injustices of the Duke Lacrosse Rape Case").

They talk about the new book here (at Volokh Conspiracy):

Despite horror stories like the one at Amherst, the mainstream media has poorly covered the campus sexual assault issue. There has been a handful of good work (most notably this Emily Yoffe article in Slate). More typical, however, has been the approach of the New York Times, which has virtually ignored concerns expressed by civil libertarian organizations and cohorts of law professors about the campus system’s unfairness. To the contrary, in an article about Stanford the Times recently portrayed the university’s process — which uses the lowest possible standard of proof, bans direct cross-examination by accused students, and has featured panelists who have been trained to believe that is it a sign of guilt for an accused student to respond to an accusation in a “persuasive and logical” way — as unfair to accusers. The reason? The school’s one fair rule — that the three panelists must be unanimous to justify a finding of guilty....

As for the universities, the power of identity politics has generally worked in tandem with the schools’ financial self-interest in appeasing federal officials who have the power to exact huge financial penalties to incubate unfairness toward accused students....

I immediately downloaded this book to my Kindle because — after writing the previous post about massive donations to the ACLU — I wanted to see where the organization stands on due process in campus sexual assault cases. I'm interested in the ACLU's vigor in disappointing donors who suddenly love the organization because of one issue. I highlighted free speech in my post, but I'd also wanted to say something about this due process problem, and my casual Googling had not turned up a clear answer.

There's not much about the ACLU in this book. This is the main reference:

[D]uring George W. Bush’s presidency, a handful of cases (at the University of Georgia, the University of Colorado, and Arizona State University) involving highly credible sexual assault allegations against college football and basketball players kept the issue in the public eye. In each case, the accuser filed a Title IX lawsuit against her school, alleging that it had knowingly recruited potentially violent felons solely because they were talented athletes and it had thereby shown deliberate indifference to the well-being of female students. Each case ended with a denial of the university’s motion to dismiss, followed by a settlement, driven by a hailstorm of negative publicity, in which the university apologized for not doing enough to protect women on campus. The American Civil Liberties Union filed amicus briefs supporting the Arizona State and Colorado plaintiffs.

"I covered the confirmation hearings in 1991. HBO’s movie heavily edits history to favor Anita Hill."

Writes Stuart Taylor Jr.

Despite a surface appearance of fairness, “Confirmation” makes clear how it wants the hearings to be remembered: Ms. Hill told the whole truth and Mr. Thomas was thus a desperate, if compelling, liar. Her supporters were noble; his Republican backers were scheming character assassins.

This is consistent with how the media conveyed the story at the time and, especially, in the years hence. Yet immediately after millions of people witnessed the hours of televised testimony, polls showed that Americans by a margin of more than 2 to 1 found Judge Thomas more believable than Ms. Hill. Viewers of “Confirmation” were deprived of several aspects of the story that might have made them, too, skeptical of Ms. Hill. The most-salient of many examples....

Go to the link for the details.

I haven't watched the show. I'd have to force myself. I remember the original quite clearly and don't feel any urge to watch actors endeavoring to seem like the real people or to worry about how HBO is trying to manipulate us in the direction I would assume they'd manipulate us. For me, there's no entertainment value and no educational value. I'd rather see a documentary about sexual harassment and the American public mind in the 1990s, beginning with the you-just-don't-get-it scolding that was delivered over the high-tech-lynched body of Clarence Thomas followed by the it's-just-sex championing of the Democratic Party hero Bill Clinton. That was one hell of a transition.

Michael Lutz — a conspicuous critic of the John Doe investigation — dies by apparently self-inflicted gunshot wound.

The Milwaukee Journal Sentinel reports.

Here's my post from last October about Lutz:

I'm not surprised that [John Doe prosecutor John] Chisholm declines to answer [Stuart] Taylor's long list of questions, even though Chisholm did speak up in response to Taylor's original attack and seemingly went to some trouble in an effort to to impugn Michael Lutz. Lutz was Taylor's unnamed source for the article that depicted the prosecutor and his office as highly politicized and openly antagonistic to Governor Scott Walker.

The questions standing alone go a long way toward rehabilitating Lutz after the attack on his credibility and they also work to restate and emphasize Lutz's original charges against Chisholm. Taylor observes that Chisholm has generally denied that he had a political agenda, but that he doesn't seem to have denied the specific allegations that Lutz had made. This corresponds to what I wrote when I saw Chisholm's response:

Reading [Taylor's original attack and Chisholm's response], I'm thinking that Taylor raised suspicions that Chisholm and his lawyers and the Milwaukee Journal Sentinel have not adequately refuted. I want to see a specific statement from Chisholm that goes into the details, something more than expressions of outrage and denials that could be based on Chisholm's belief that he compartmentalized his prosecutorial decisionmaking and his personal political beliefs and husbandly tenderness.

Were there blue fist signs in the office and other expressions of support for unions and antagonism to Walker? What was the extent of participation in the protests? Did Chisholm speak openly about his wife's feelings in the context of the case? Taylor's article created a strong motivation to respond on that level, and neither Chisholm nor his lawyer provided that response.

So I'm pleased to see Taylor taking this approach — with far more detailed questions —and I'll reprint Taylor's questions below:

1. In a September 12 article by Dan Bice, the Milwaukee Journal Sentinel said that Mr. Leib “said Thursday that Lutz had left a message threatening to kill Chisholm and his family in the past year. He did not provide audio of the voice mail.” Was this an accurate and complete report of what Mr. Leib said to Mr. Bice, and of what Mr. Chisholm told Mr. Leib?

2. Mr. Lutz has said in response that while he may have used harsh or even inflammatory words, he never said anything that he intended or that Mr. Chisholm interpreted to be a threat to harm anyone. Does Mr. Chisholm challenge this statement by Mr. Lutz?

3. If Mr. Chisholm does challenge it, how does he explain his failure either to prosecute Mr. Lutz or to report him to appropriate authorities for making a death threat, which would have been a crime?

4. And what, if any, steps did Mr. Chisholm take to protect himself and his family from Mr. Lutz? Armed guards? Moving his family to a safe location? Having Mr. Lutz tailed? Anything at all?

5. Mr. Lutz has explained the alleged death threat roughly as follows: He feared on the basis of one or more phone conversations that his best friend and former police partner, Jon Osowski (also the brother of Mr. Chisholm’s wife) was in trouble, and perhaps suicidal, so that he (Mr. Lutz) requested help in urgent phone calls to the Chisholms, expressing increasing and agitated concern, and possibly saying something that might be twisted out of context as threatening. Finally, Mr. Lutz has said, says, Mr. or Mrs. Chisholm or both went out into the night to help Mr. Osowski. Does Mr. Chisholm deny the accuracy of this account?

6. Mr. Lutz has also said that Mr. Chisholm has played the recording for him and that the two of them “laughed about” the episode the next day. Does Mr. Chisholm deny this?

7. In light of the evidence that is now available, will Mr. Chisholm or Mr. Leib or both retract and apologize for accusing Mr. Lutz of making a death threat?

8. If not, will you repeat that you believe that Mr. Lutz made a genuine death threat, and thereby show that you are not concerned about possible liability for libeling Mr. Lutz?

That ends the set of questions about the "death threat," so the numbering goes back to 1:

1. As far as I know, neither Mr. Chisholm nor anyone else has ever suggested a motive for Mr. Lutz to lie about Mr. Chisholm. Do you maintain that he had a motive to lie and, if so, what was it?

2. Mr. Lutz has said that his motive for making allegations of bias against Mr. Chisholm was and is that “I don’t like what he has done in regard to political speech that he disagrees with.” I am not aware that anyone has challenged the truthfulness of this statement. Do you challenge it?

3. Mr. Lutz has said that at least before this September, he had been friends with John and Colleen Chisholm for more than a decade. Do you deny that?

4. He has added that has visited the Chisholms’ home several times and gone to dinners, after-work functions, and other outings with one or both of them over the years. Do you deny that?

5. He has also added that he gave $200 in August for a Chisholm campaign fundraiser. Do you deny that?

6. When Mr. Lutz went into private practice, Mr. Chisholm wrote a memo (of which I have a copy) to him dated July 27, 2011, saying that his service “has been exemplary,” that his “dedication and hard work … have proved to be invaluable,” and that “I am extremely grateful for the service you provided.” Do you deny that?

7. In a previous letter of recommendation (of which I have a copy), in November 2007, Mr. Chisholm wrote that Mr. Lutz had been “one of the best investigators in the Milwaukee police department” and had “removed some of the most dangerous offenders from the streets of Milwaukee” while combining “a remarkable memory with unceasing hard work and courage.” Do you deny that?

8. Mr. Lutz has said that in late 2010 or early 2011, he heard Mr. Chisholm and others in the DA’s office express anger at the newly elected Scott Walker, who Mr. Chisholm said had backed away from an agreement to support statewide stepped pay raises for DA’s and their assistants. Do you deny that?

9. Mr. Lutz has added that Mr. Chisholm complained that Mr. Walker had “lied to my face” about stepped raises. Do you deny saying anything like that?

10. Mr. Lutz said the following in a May 20, 2012 email to an unidentified person, a copy of which he gave me, while saying that it accurately described a conversation he had with Mr. Chisholm in or about March 2011: When “I was a Special Prosecutor in the DA’s office and [Wisconsin Supreme Court] Justice [David] Prosser approached me to do a [pre-election] video spot about how the decision authored by him about the guy who shot me was a very important ruling for Police officers in general, DA Chisholm … stated that he couldn’t allow me to do it and he wants to stay as far away from these Republicans as he can.” Do you deny saying anything like that?

11. In the same email, Mr. Lutz added that Mr. Chisholm “went on to say how he knows that Act 10 would eventually end up in the [Wisconsin] Supreme Court and didn’t want Prosser to decide on the case.” Do you deny saying anything like that?

12. Also in the same email, Mr. Lutz added that roughly eight months after this conversation, Mr. Chisholm’s “liberal block of DA’s, 80% of them, are actively campaigning, emailing, and even verbally bashing Walker at charging conferences.” Do you deny that?

13. Mr. Lutz has said that Mr. Chisholm told him that his wife, Colleen, a teacher’s union shop steward, had been repeatedly moved to tears by Gov. Walker’s policies regarding public employee unions. Do you deny saying anything like that?

14. Mr. Lutz has said that Mr. Chisholm told him that his wife “frequently cried when discussing the topic of the union disbanding and the effect it would have on the people involved.” Do you deny saying anything like that?

15. Mr. Lutz has said that Mr. Chisholm told him that he felt that it was his “personal duty” to stop Gov. Walker from curbing public employee unions. Do you deny that?

16. Mr. Lutz has said that Mr. Chisholm told him that his wife had joined public demonstrations by one or more unions against Walker’s policies in 2011. Do you deny saying anything like that?

17. Mr. Lutz has said that Mr. Chisholm made most or all of the statements numbered 10 through 16 above while the two of them (and perhaps one or more others) were speaking in Mr. Chisholm’s personal office in or about March 2011. Do you deny that?

18. Mr. Lutz has said that in the first half of 2011 (roughly), many of Mr. Chisholm’s subordinates were very strongly opposed to Walker and his union-curbing policies. Do you deny that?

19. Mr. Lutz has said that a number of subordinates of Mr. Chisholm joined public protests in 2011 against Walker’s policies. Do you deny that?

20. Mr. Lutz has said that some Chisholm subordinates hung images of blue fists on their office walls in 2011. Do you deny that?

21. I believe that Gov. Walker’s Act 10 and perhaps related legislation or policies caused cuts in take-home pay for Mr. Chisholm and his subordinates, as for other unionized public employees, in part by requiring them to pay for previously free or inexpensive health insurance, pensions, and perhaps other benefits. Do you deny that?

22. The cuts in take-home pay for Mr. Chisholm and/or some of his subordinates were roughly 10 percent or more. Do you deny that?

23. One or more of Mr. Chisholm’s subordinates will be entitled under current law to a pension in excess of $1 million each. Do you deny that?

24. Mr. Lutz told me that Mr. Chisholm told him that as a result of Act 10, Colleen Chisholm’s union local disbanded and that she was very upset about this and the effect it would have on members and former members. Do you deny that?

25. The impact of Mr. Walker’s polices on the Chisholms’ finances also included whatever pay Mrs. Chisholm had previously received from her union. Do you deny that?

26. I have reason to believe that Mrs. Chisholm had been receiving more than $20,000 a year in gross compensation from the union. Do you deny that?

27. I have been told that after I published some of Mr. Lutz’s allegations without identifying him, the DA’s office developed a list of people who might be my source. Do you deny that?

28. I have also been told that there were as many as 10 or 12 people on that list. Do you deny that?

29. I have also been told that Mr. Lutz was not on that initial list. Do you deny that?

Stuart Taylor Jr. advances his John Doe investigation story by publishing his long list of questions to the prosecutor John Chisholm.

I'm not surprised that Chisholm declines to answer Taylor's long list of questions, even though Chisholm did speak up in response to Taylor's original attack and seemingly went to some trouble in an effort to to impugn Michael Lutz. Lutz was Taylor's unnamed source for the article that depicted the prosecutor and his office as highly politicized and openly antagonistic to Governor Scott Walker.

The questions standing alone go a long way toward rehabilitating Lutz after the attack on his credibility and they also work to restate and emphasize Lutz's original charges against Chisholm. Taylor observes that Chisholm has generally denied that he had a political agenda, but that he doesn't seem to have denied the specific allegations that Lutz had made. This corresponds to what I wrote when I saw Chisholm's response:

Reading [Taylor's original attack and Chisholm's response], I'm thinking that Taylor raised suspicions that Chisholm and his lawyers and the Milwaukee Journal Sentinel have not adequately refuted. I want to see a specific statement from Chisholm that goes into the details, something more than expressions of outrage and denials that could be based on Chisholm's belief that he compartmentalized his prosecutorial decisionmaking and his personal political beliefs and husbandly tenderness.

Were there blue fist signs in the office and other expressions of support for unions and antagonism to Walker? What was the extent of participation in the protests? Did Chisholm speak openly about his wife's feelings in the context of the case? Taylor's article created a strong motivation to respond on that level, and neither Chisholm nor his lawyer provided that response.

So I'm pleased to see Taylor taking this approach — with far more detailed questions —and I'll reprint Taylor's questions below:

Stuart Taylor Jr. responds to the attack on his source for the story about the political atmosphere in the office of the John Doe prosecutor.

This follows up on something discussed on this blog a week ago in "John Doe prosecutor John Chisholm objects to what Stuart Taylor Jr. said about his anti-Walker vendetta" and "Did Stuart Taylor Jr. misidentify his unnamed source for his article impugning the motives of the John Doe prosecutor?"  In that second post, I'd said:

It's not just that the source (as revealed by [Milwaukee Journal Sentinel's Daniel] Bice) seems pretty untrustworthy. What bothers me most here is that Taylor would pass him off as a "longtime Chisholm subordinate" and "former staff prosecutor in Chisholm’s office" if he was a short-time, unpaid, paper-shuffler. Taylor needs to weigh in.

Stuart Taylor now weighs in with "Decorated Wis. cop says he paid dearly for blowing whistle on DA’s crusade against Gov. Walker":

Did Stuart Taylor Jr. misidentify his unnamed source for his article impugning the motives of the John Doe prosecutor?

Here's yesterday's post, "John Doe prosecutor John Chisholm objects to what Stuart Taylor Jr. said about his anti-Walker vendetta." Taylor called his source a "longtime Chisholm subordinate" and "former staff prosecutor in Chisholm’s office":

Stuart Taylor quotes his unnamed source as saying "it was surprising how almost hyper-partisan [Chisholm] became." And:

Chisholm “had almost like an anti-Walker cabal of people in his office who were just fanatical about union activities and unionizing. And a lot of them went up and protested. They hung those blue fists on their office walls [to show solidarity with union protestors] … At the same time, if you had some opposing viewpoints that you wished to express, it was absolutely not allowed.”

Now, we have the Milwaukee Journal Sentinel's Daniel Bice purporting to reveal Taylor's source as a former police officer and current criminal defense attorney, who worked as an "unpaid special prosecutor for 5 1/2 months in the county office in 2011 [and] spent most of his time filling out grant applications for the community prosecution program."

John Doe prosecutor John Chisholm objects to what Stuart Taylor Jr. said about his anti-Walker vendetta.

Taylor quoted an unnamed source, a former prosecutor, who claims to have heard Chisholm speak of having a "personal duty to stop" Governor Scott Walker:

[The] longtime Chisholm subordinate [says that] Chisholm told him and others that Chisholm’s wife, Colleen, a teacher’s union shop steward at St. Francis high school, a public school near Milwaukee... "frequently cried when discussing the topic of the union disbanding and the effect it would have on the people involved … She took it personally."

The Milwaukee Journal Sentinel says Chisholm "denied... that his two secret probes ... were motivated by a political vendetta arising out of his wife's profession as a public school teacher." I'm not seeing the text of Chisholm's denial — only the newspaper's paraphrase — but to say that the probes weren't "motivated by a political vendetta" (the Sentinel's words) is not to deny that he spoke of his wife's frequent crying and his concern for her in a way that made listener's feel that he had a personal and political mission.

One could talk about one's wife's feelings, express great concern for her pain, and still believe that you were capable of excluding your personal sentiments from your professional decision-making. Rightly or wrongly, you could think you were doing the compartmentalizing that ethics require. Rightly or wrongly, your co-workers might judge you to be failing to compartmentalize. What was true?

Chisholm's lawyer gave the newspaper text that it prints in its (presumably) original form:  "The suggestion that all of those measures were taken in furtherance of John Chisholm's (or his wife's) personal agenda is scurrilous, desperate and just plain cheap." That's just a passionate — some might say desperate — statement of outrage that asserts nothing factual. And note the word "all." That leaves the possibility that some of those measures were part of a personal agenda. Lawyers. You have to watch out for them, and when you have the advantage of seeing their original texts, you have a decent chance to see where they are hedging. The lawyer wants you to notice the very interesting words "scurrilous, desperate and just plain cheap." Refocus on "all," and you'll see how little the lawyer is saying.

Stuart Taylor quotes his unnamed source as saying "it was surprising how almost hyper-partisan [Chisholm] became." And:

Chisholm “had almost like an anti-Walker cabal of people in his office who were just fanatical about union activities and unionizing. And a lot of them went up and protested. They hung those blue fists on their office walls [to show solidarity with union protestors] … At the same time, if you had some opposing viewpoints that you wished to express, it was absolutely not allowed.”

Taylor got a response from Chisholm's lawyer. He called it "baseless character assault" and "inaccurate in a number of critical ways" — without, Taylor says, specifying what the inaccuracies were. He won't say it was nothing but lies. The hedging is obvious: "inaccurate in a number of critical ways." Which ways?! Were there blue fist signs hanging on the walls? Did people in Chisholm's office participate in the protests? Was there a fanatical, anti-Walker atmosphere in the office? Which part is inaccurate? Was it anti-Walker but not quite "fanatical"? Did some but not "a lot" protest? Were blue fists hung up in the office but not by so many people that it's fair to say "They"? I don't know, and given the pressure to be specific, the generic objection implies that there is something there.

The Milwaukee Journal Sentinel quotes "an attorney with Democratic ties who defended clients caught up in the Doe probe" who says that "he saw no evidence of political bias or union support in their dealings with Chisholm and his office" and that "he didn't observe signs with a blue fist." Would the unnamed defense lawyer even have been in the part of the office where the unnamed former prosecutor saw the blue fists? That the prosecutors behaved in a professional manner in their dealings with the defense lawyers doesn't say much about how they behaved behind the scenes, which is what Taylor's source purports to tell us about. If there really was an anti-Walker vendetta, the prosecutors would have known they had to hide it.

The Sentinel quotes another defense attorney, one who allows his name to be used, who also says he didn't see the union signs, but "he might have missed them." And "I never saw any blue fists but I saw a lot of red faces," which is funny, but I'm not sure what it means. Was he saying that the prosecutors seemed unprofessionally inflamed by a mission?

Reading these 2 articles this morning, I'm thinking that Taylor raised suspicions that Chisholm and his lawyers and the Milwaukee Journal Sentinel have not adequately refuted. I want to see a specific statement from Chisholm that goes into the details, something more than expressions of outrage and denials that could be based on Chisholm's belief that he compartmentalized his prosecutorial decisionmaking and his personal political beliefs and husbandly tenderness.

Were there blue fist signs in the office and other expressions of support for unions and antagonism to Walker? What was the extent of participation in the protests? Did Chisholm speak openly about his wife's feelings in the context of the case? Taylor's article created a strong motivation to respond on that level, and neither Chisholm nor his lawyer provided that response.

UPDATE: The MJS purports to reveal the source, discussed in a new post.

"The Many Ways in Which The New Book About the Duke Lacrosse Case is Wrong."

A Stuart Taylor Jr. article at The New Republic (about the book "The Price of Silence: The Duke Lacrosse Scandal, the Power of the Elite, and the Corruption of Our Great Universities"). Excerpt:

Sensational smears based on false information aside, the absence of new evidence does not deter [William D.] Cohan from seeking to spin his own tendentious characterizations of old evidence—often contradicted by other evidence elsewhere in the book—into dark Nifongesque innuendos of sexual assault, or "something."

"If States Don't Set Up Insurance Exchanges, Will 'Obamacare' Implode?"

Stuart Taylor Jr. explains the glaring problem with the federal exchanges. I'll just quote his parting shot:

And in the perhaps unlikely event that the dispute over the powers of federal exchanges reaches the Supreme Court, would Chief Justice John Roberts -- having made his uneasy peace with "Obamacare" in June -- have the stomach to resume hostilities based on a legal analysis that even lawyers find hard to follow?

The stomach to resume hostilities? I would not assume that Roberts "made peace" with Obamacare. He may believe he delivered a wound that escaped notice but will prove fatal.

As I said a month ago:



ADDED: "It's a slow-motion topple. We just haven't seen it go down yet":

"The Shame of the Universities."

An alternate title that would work for 2 recently published books, according Michael Barone. (Both are books I've blogged about before: Greg Lukianoff's "Campus Censorship and the End of American Debate," and Richard Sander and Stuart Taylor's "Mismatch/How Affirmative Action Hurts Students It’s Intended to Help, and Why Universities Won’t Admit It.")

Via Instapundit, whose own "Shame of the Universities" book is referred to in Barone's article.

The "mismatch" argument against affirmative action.

Explained by Richard Sander and Stuart Taylor Jr.:

The mismatch effect happens when a school extends to a student such a large admissions preference — sometimes because of a student's athletic prowess or legacy connection to the school, but usually because of the student's race — that the student finds himself in a class where he has weaker academic preparation than nearly all of his classmates. The student who would flourish at, say, Wake Forest or the University of Richmond, instead finds himself at Duke, where the professors are not teaching at a pace designed for him —  they are teaching to the "middle" of the class, introducing terms and concepts at a speed that is unnerving even to the best-prepared student.

Read the whole thing. It's odd that these observations are surfacing so late in our experience with affirmative action, but there's a new case pending in the Supreme Court, which creates an occasion for elaborating the policy pros and cons. I remember discussions about affirmative action, back in the 1980s, in which any attempt to make this argument would provoke a sharp rebuke.

With striking uniformity, university leaders view discussion of the mismatch problem as a threat to affirmative action and to racial peace on campuses, and therefore a subject to be avoided. They suppress data and even often ostracize faculty who attempt to point out the seriousness of mismatch.

It's a painful thought, that you are hurting the people you meant to help. The urge to repress ensues. It's much easier to justify imposing a disadvantage on the people you decided could bear the burden. That's something academics have long felt comfortable discussing openly.

Will the Supreme Court affirmative action case force the presidential candidates to talk about...

... a subject both of them would prefer to avoid? The oral argument is October 10th.

“I’ve got to believe at this point in the campaign neither the president or Governor Romney is going to want to give a quote on any of this,” said Richard Taylor, a business diversity advocate and former Massachusetts transportation secretary under Romney. “If I was preparing either candidate for the debate, this would be on the checklist, … but I don’t think either campaign will be anxious to talk about it.”...

“It took three long years to pull [a federal government policy statement on the use of race in education] out of the Obama administration. It was only after we pestered and cajoled them that they finally got it out,” John Brittain, a civil rights activist and law professor at the University of the District of Columbia, said in an interview soon after the document was released. “The administration had a paralysis of analysis. …. Overall, the Obama administration just has a reluctance to take on race and equality, and when they do so everything is so carefully sanitized and scrubbed to make sure it’s the least offensive thing possible.”

There’s almost no chance that Romney would take a strong stance against affirmative action, according to Stuart Taylor, a veteran legal commentator and author of a new book on the policy.

... “No major national political figure has attacked affirmative action publicly since 1996 or before. It’s kind of remarkable. The Republicans who during the ’90s for a while were seeing some political profit in attacking affirmative action given the polls, don’t do it anymore.”

So both candidates — like many Americans — exhibit a bland, uncommitted acceptance of the long-term practice of affirmative action, and they don't want to have to talk about it in crisp, clear terms, looking at all the arguments for and against, and scrutinizing the constitutional texts and precedents. But that's exactly what the Supreme Court must do and will do on October 10th.

"It's comforting that liberals now understand that there are worse things than having a divided Supreme Court disagree with your position."

"I understand that supporters of Judge Sotomayor are claiming that she has been 'vindicated' by the fact that four dissenting judges in Ricci adopted something resembling the position she took when the case was before her. It's comforting that liberals now understand that there are worse things than having a divided Supreme Court disagree with your position. During the Bush years, when a divided Supreme Court would strike down this or that Bush anti-terrorism measure, some liberals were quick to declare the president 'lawless.' They did so despite the fact that there was little precedent on the subject, and such precedent as there was often supported the Bush administration's position. Fortunately, liberal commentators seems to be 'growing in office.'"

Quality snark from Power Line, which links to this Stuart Taylor piece explaining why, in fact, the 4 dissenting Justices were not on the same page as Sotomayor:

[E]ven Justice Ruth Bader Ginsburg's 39-page dissent for the four more liberal justices quietly but unmistakably rejected the Sotomayor-endorsed position that disparate racial results alone justified New Haven's decision to dump the promotional exam without even inquiring into whether it was fair and job-related.

Justice Ginsburg also suggested clearly -- as did the Obama Justice Department, in a friend-of-the-court brief -- that the Sotomayor panel erred in upholding summary judgment for the city. Ginsburg said that the lower courts should have ordered a jury trial to weigh the evidence that the city's claimed motive -- fear of losing a disparate impact suit by low-scoring black firefighters if it proceeded with the promotions -- was a pretext. The jury's job would have been to consider evidence that the city's main motive had been to placate black political leaders who were part of Mayor John DeStefano's political base....

[W]hile Ginsburg at least required the city to produce some evidence that the test was invalid, the Sotomayor panel required no such evidence at all. Its logic would thus provide irresistible incentives for employers to abandon any and all tests on which disproportionate numbers of protected minorities have low scores.

"Koh's writings—especially when exaggerated—will add to charges from the right that Obama is a closet socialist."

Stuart Taylor Jr. and Evan Thomas examine Harold Hongju Koh, Obama's choice for the top legal adviser to the State Department.

Excerpt:

Koh argues that American law should reflect "transnational" legal values—and that in an interconnected world it inevitably does to some extent already. In his writings, Koh has campaigned to expand some rights guaranteed by the U.S. Constitution—and perhaps shrink some others, including the First Amendment's guarantee of free speech—to better conform to the laws of other nations. He has, for instance, pushed for a more expansive view of what constitutes "cruel and unusual punishment" under the Eighth Amendment. Koh's views are in tune with—if bolder than—those of a majority of the Supreme Court on some issues....

Were his writings to become policy, judges might have the power to use debatable interpretations of treaties and "customary international law" to override a wide array of federal and state laws affecting matters as disparate as the redistribution of wealth and prostitution. He has campaigned to write into U.S. law the United Nations "Convention on the Elimination of All Forms of Discrimination Against Women," signed by President Carter in 1980 but never ratified by Congress. A U.N. committee supervising the treaty's implementation has called for the "decriminalizing of prostitution" in China, the legalization of abortion in Colombia, and the abolition of Mother's Day in Belarus (for "encouraging woman's traditional roles"). In 2002 Senate testimony, Koh stressed that these reports are not binding law, and he dismissed as "preposterous" the notion that the treaty would "somehow require the United States to abolish Mother's Day." Still, the reports are very much part of the "transnational" legal process that Koh celebrates.

"How smart is it for a woman with such a bad reputation for truthfulness and veracity to put those character traits at the center of the campaign?"

Stuart Taylor, Jr. asks the classic I-thought-you-were-supposed-to-be-smart question of Hillary. He notes her ridiculous citation of Obama's "I Want to Become President" kindergarten essay and proceeds to enumerate the Clintonian dishonesty:

Gennifer and Monica. ... Although well aware of her husband's philandering history, Hillary backed his squishy denials, famously asserting on "60 Minutes" that she was not "some little woman standing by her man like Tammy Wynette." More deceptively, she suggested to ABC's Sam Donaldson that Bill's contacts with Flowers were just an example of how he loved to "help people who are in trouble" and "listen to their problems."

"Hillary's words uncannily foreshadowed her insistence six years later to ... a White House aide that Bill had 'ministered' to [Monica] Lewinsky because she was a troubled young woman," Sally Bedell Smith writes in her fine new book about the Clintons, For Love of Politics. Hillary has continued to insist that she believed what she said about Lewinsky. But friends and former aides have told Smith and others that she knew her husband was lying all along.

Travelgate. ... [H]er statements were contradicted by evidence, including a long-concealed memo to McLarty and a written chronology prepared by White House aide David Watkins that came to light years later....

While saying that no provable crime had been committed, Robert Ray, who had succeeded Kenneth Starr as independent counsel, reported in October 2000 that Hillary's statements had been "factually false" and that there was "overwhelming evidence that she in fact did have a role in the decision to fire the employees."

Cattle futures. ... Hillary's first explanation (through aides) of this extraordinary windfall was that she had made the investment after "reading The Wall Street Journal" and placed all the trades herself after seeking advice from "numerous people." It was so preposterous that she soon had to abandon it.....

Removal of Vince Foster documents. ...

Castle Grande. .... Castle Grande was a sewer of sham transactions... Hillary told federal investigators that she knew nothing about Castle Grande. When it turned out that more than 30 of her 60 hours of legal work for Madison Guaranty involved Castle Grande, she said she had known the project under a different name. A 1996 Federal Deposit Insurance Corp. report said that she had drafted documents that Castle Grande used to "deceive federal bank examiners."...

Billing records. ....

Taylor lays it out crisply.

First, fire all the law clerks.

Stuart Taylor Jr. and Benjamin Wittes think the Supreme Court Justices have too much free time -- what's with O'Connor taking 28 junkets in '04 and publishing 3 books in 4 years? -- and it's making them arrogant. (Link for subscribers to The Atlantic... or use this link, which is good for 3 days.)

Eliminating the law clerks would ... make them more “independent” than they really want to be, by ending their debilitating reliance on twentysomething law-school graduates. Perhaps best of all, it would effectively shorten their tenure by forcing them to do their own work, making their jobs harder and inducing them to retire before power corrupts absolutely or decrepitude sets in.

No justice worth his or her salt should need a bunch of kids who have never (or barely) practiced law to draft opinions for him or her....

Justice Harry Blackmun’s papers show that, especially in his later years, clerks did most of the opinion writing and the justice often did little more than minor editing, as well as checking the accuracy of spelling and citations. Ginsburg, Thomas, and Anthony Kennedy reportedly have clerks write most or all of their first drafts—according to more or less detailed instructions—and often make few substantial changes. Some of O’Connor’s clerks have suggested that she rarely touched clerk drafts; others say she sometimes did substantial rewrites, depending on the opinion.

There’s no reason why seats on the highest court in the land, which will always offer their occupants great power and prestige, should also allow them to delegate the detailed writing to smart but unseasoned underlings. Any competent justice should be able to handle more than the current average of about nine majority opinions a year. And those who don’t want to work hard ought to resign in favor of people who do.

I heartily agree!

"The claims that Alito is a 'far-right activist' are laughable, except to far-left activists."

Stuart Taylor weighs in on the treatment of Samuel Alito. (Via How Appealing.)

He richly deserves the praise that he has received from colleagues and friends across the political spectrum for his powerful mind, intellectual honesty, and fairness.

The American people will figure this out. Any effort to filibuster Alito seems very likely to fail, and likely to backfire against Democrats.

That's what I've been saying too.

Alito will try as hard as anyone -- and far harder than O'Connor -- to be intellectually honest and analytically rigorous, and to keep his political preferences out of his legal rulings. He will therefore disappoint the most passionate political conservatives and horrify many liberals.

The notion of an apolitical justice may seem preposterous to academics and journalists who see judges as politicians in black robes, and view their opinions and citations as camouflage for preconceived ideological agendas. But Alito's opinions show that he takes the ideal of judicial restraint very seriously. Both conservative and liberal colleagues confirm this.

I devoutly hope so.

The Court and the real world.

Stuart Taylor argues in the September Atlantic that lack of any real world legal experience has led the Supreme Court to make head-in-the-clouds decisions that make trying cases, doing business, and running the government terribly difficult for the rest of us. (The link is for subscribers, but for the next three days you can get to it here.)

Now that Sandra Day O'Connor has announced her retirement, how many remaining justices have ever held elected office? How many have previously served at the highest levels of the executive branch of government? How many have argued big-time commercial lawsuits within the past thirty-five years? How many have ever been either criminal defense lawyers or trial prosecutors? How many have presided over even a single criminal or civil trial? The answers are zero, zero, zero, one, and one, respectively. (David Souter was a New Hampshire prosecutor once upon a time, and later served as a trial judge.)

The Court fusses around producing ten opinions and 140 pages of inconclusive nattering about a couple of Ten Commandments displays. Meanwhile:

[A]ccording to Michael Greve, the head of the American Enterprise Institute's Federalism Project, this Court has "resolutely refused to tackle the inconsistencies and absurdities that, after decades of neglect, afflict nearly every area of commercial litigation." One reason, Greve argues, is that with the exception of Justice Breyer, "the Court has absolutely no idea what business litigation in America now looks like."

I'm not convinced the background of the Justice is what would make a difference. After all, as Greve notes, it's Breyer, not Souter, who brings practical common sense to the table. (Though, ironically, it's Breyer's vote that made the two 10 Commandments cases go in opposite directions.) I realize there's a push in some quarters to get President Bush to pick a person with political experience to replace Justice O'Connor, but I'm very wary about that. You're not just importing political experience into the Court, you're introducing one individual politician, with the particular set of political commitments that got him (or her) elected.

Chaos without the filibuster?

In The Atlantic, Stuart Taylor writes from the imaginary perpective of post-election 2008 and sees disaster for the Republicans -- all following from abandoning the filibuster:

The Republican Party's stunningly swift swoon from controlling the presidency, the House, and the Senate to losing all three is rooted in what conservatives saw not long ago as their greatest triumph.

That was the use of an unprecedented parliamentary power play in April 2005 to ban filibusters of judicial nominees and the subsequent takeover of the Supreme Court by Bush-appointed justices bent on rolling back decades of liberal precedents....

With Democrats thus neutered, the Senate narrowly confirmed in near-party-line votes all of Bush's choices to succeed Rehnquist, O'Connor, and Stevens. Once on the Court, the three new justices allied with Antonin Scalia and Clarence Thomas to form the most cohesive, conservative majority bloc in seven decades....

[T]he specter of a conservative Republican steamroller taking over the judicial as well as the executive and legislative branches—and then engineering sudden, sweeping change in previously settled interpretations of the Constitution—eclipsed debate over the individual merits of the Court's decisions. A lot of voters found the whole business scary.

Stuart's nightmare scenario has the Court suddenly overruling all sorts of cases -- bringing back "The Constitution in Exile" and so forth. Is the filibuster all that keeps us from tumbling into a chaotic, frenzied remaking of constitutional law? Supreme Court nominees would still need a majority vote in the Senate, and surely at least some Republican Senators would worry about extreme Justices, if for no other reason than the effect it would have on the party's future. The new Justices themselves would be wary about excessively disrupting settled expectations. And don't be so sure that Justices Scalia and Thomas would not see the value of adhering to precedent. In what is regarded as one of Thomas's most extreme federalism opinions, his concurring opinion in United States v. Lopez (which struck down the Gun-Free School Zones Act), Thomas wrote:

Although I might be willing to return to the original understanding, I recognize that many believe that it is too late in the day to undertake a fundamental reexamination of the past 60 years. Consideration of stare decisis and reliance interests may convince us that we cannot wipe the slate clean.

So Stuart's scenario strikes me as the opposite of David Brooks' overly rosy prediction of how things would play out if Roe v. Wade were overturned (which I critiqued here). Stuart's exaggerated picture does not adequately take into account how other players in the system would respond at each step.