Economists, bow your heads:

A Guardian piece by Timothy Garton Ash declares that America is "on probation." I'll leave most of the piece alone. But one paragraph deserves comment:

The cold moral calculus of reckoning victim numbers against each other always feels inhuman: more than 100,000 Kurds killed by Saddam against perhaps as many as 10,000 Iraqi civilian casualties in this war, past v present, actual v potential, gulag v holocaust. What possible consolation are such statistics to Ali Ismail Abbas? Every loss of human life is infinite.

Just go read it:

Stuart Buck links to an interesting article on Selecting Supreme Court Justices by Tournament, and Solum's response. If you care about this stuff, go read them.

two quick replies:

re:DC Law Student: well, given that we aren't actually law students, how much can we complain about the "other" status? [resists English major impulse to capitalize that word. Other, end, and opine -- those are the words I will take with me from college. 2 of them I thought I knew before I came here, and the 3rd it took me a while (or the OED) before I was satisfied it existed as a word outside of Plato. I still find it a lazy word to use.]

re: catcalls: Not just attention, but the knowledge of a response, whether the blush, the quicken-ed the step, the curious-confused-pondering look of "is he whistling at me or at someone else?", the shaken head. Granted, it's not a verbal reply that gets the whistler anywhere, but it's still more reciprocation than an unnoticed, silent look receives.

No, I don't:

Just for the record, Will hasn't actually formed an opinion on whether government ought to be "in the marriage business", contrary to the assertions here. (UPDATE: A quick and gracious correction).

UPDATE: Then again, maybe I do. Sara's long post attacking Amanda seems to focus on the idea that once you have government stop recognizing marriage, you abolish it. I'm not quite sure why this should be so. The point isn't that marriage is "public as well as private" or that it is a "social institution". A large number of "public" "social institutions" get along just fine without asking the government to declare them so. A few come to mind: Churches, synagogues, mosques, drinking clubs, country clubs, scout troops, McDonalds franchises, poetry circles, and quliting bees. A gold star to whoever can think of the most that I didn't come up with.

Anyway, there might well be reasons to keep government in the business of recognizing marriages-- prenuptial agreements are one possibly reason, and custody is another. I'm sure there are many more. Furthermore, marriage has been a government institution for a long time, and an upheaval to the status quo that drastic should require some serious justification. (And I'd like to certify to Diotima-- how long have marriages been governmentally recognized? Since ancient Rome? The Middle Ages? The Stone Age? I'm really just wondering, and I assume you know).

But really, I doubt that the family would disintegrate if people could only be married in the eyes of their community, their friends, and their church, and not in the eyes of their statehouse. Contrary to what communitarians and civic republicans might have us believe, communities and governments really aren't the same thing, and most people know that. Vive la difference!

UPDATE: Kathleen says: Marriages were governmentally recognized in urban Rome, though weird in rural areas. In medieval Europe among the ruling classes, but not among the peasantry until about 1100 in England, and later elsewhere.

Dilution:

DC Law Student, whose name appears to be Scott, has a few interesting thoughts on the football-trademarkdilution thing. More importantly (and my real excuse for writing this) Scott (whose last name I don't know) has placed us on his blogroll without us ever asking him to or telling him who we were. This is a major step forward. Granted, he's stuck us in the "other" category, rather than the "good" category, but . . . baby steps.

Sp-ring is here, spring is here:

Amy Lamboley muses on catcalls. Not being a catcaller myself, I can't really shed light on why men do it. I think that Amy's right that it's a desire for attention, and I think there's something vaguely sexual about the desire for attention. This seems like a much more polite/civlized/inoffensive of the equally mysterious urge that causes some men to pinch the rear ends of women who they do not know (and after the pinching, are unlikely to get to know any better).

The New York Times runs an anti-Owen, pro-filibuster editorial that makes Sara Butler mad. I'll reiterate some thoughts, which may be old hat to you at this point.


1: I think Priscilla Owen would make a bad judge, but I confess I don't really know for sure. Therefore, I don't really mind having her filibustered. Even if I supported her, I wouldn't oppose the filibuster with the same tone of moral indignation. It's a political decision. If you don't like it, don't elect your Democrat. ("But!" I hear some of you cry, "I didn't vote for my Democrat; I voted Republican!" All the more reason your Democrat probably isn't listening to you)

2: The New York Times writes that "the filibuster is not a tool to be used lightly." Yes and no, in my opinion. I don't think there's anything sacrosanct about the number 51; we live in a constitutional republic, not a pure democracy, and I have no problem with Senatorial protection of large-minority concerns. The filibuster should be used with caution not because it is "anti-democratic" but because elected public officials who impose costs on the Senate in order to oppose policies popular with the majority do so at their own political risk.

3: I still don't approve of the Times's misplaced furor against Jeffery Sutton. I can't tell whether they are angry because (they believe!) he holds legal views that are less protective of the disabled than the Times is, or because he won a lot of his cases, so his views are now correct.

Another thought: Why are the Democrats filibustering judges when the Republicans didn't filibuster Clinton's judges? Part of the reason, of course, is that the Republicans didn't have to; they had a majority in the Senate for most of Clinton's reign. But I also wonder if Republicans make more convincing villains. I'm not sure about this, and I'm certainly not anti-Republican (nor am I anti-Democrat), but I'm trying hard to imagine people getting as worked up about Breyer as they do about, say, Scalia. What do you say? "This man thinks that when interpreting statutes, we should listen to legislative intent!" It just doesn't have the same ring as "This man thinks that there is no constitutionally protected right to have unmarried sex in one's bedroom." Now, that doesn't say much about their actual jurisprudence, but it's just hard to imagine working up quite a moral fervor against a Democratic candidate for the bench. Not that the Republicans didn't manage to work up plenty of fervor against the Clintons . . .

So what is a voter to do? Go find a law student, law professor, lawyer, or judge that you trust (or me, who is none of those things :-) and ask them what you should think about Owen and Estrada. If you find your senator is drastically straying from what you think ought to be done, and that outweighs whatever things about your senator that you do like, vote for somebody else. But let's get rid of the tone of moral approbation; It's a matter of political capital. When democratically elected representatives take highly-visible stances on political issues of high salience, feel free to disagree. Tell people you disagree. But if you can't convince the requsite supermajority, move on, at least until November 2004.

Whew. I'm done fulminating. I'll try to avoid the filibuster-thing unless some major news or particularly awful piece of rhetoric comes up.

If it's broke . . .:

Matthew Yglesias is discovering what P.J. O'Rourke has known for quite some time:

The Democrats are the party of government activism, the party that says government can make you richer, smarter, taller, and get the chickweed out of your lawn. Republicans are the party that says government doesn't work, and then get elected and prove it.

Too Modest:

Matthew Yglesias proposes a judiciary reform-- the requirement of terms of service on lower courts before a judicial appointment to a higher court. S.C. justices must have X years of appellate experience, Appeals judges must have X years of trial court experience, etc. He doesn't propose this too seriously, so I don't want to devote too much time to flaw-finding. Here are the problems that come to mind. If any seem unclear, let me know and I can flesh them out.

1: The jobs are different-- the philosophical consistency and political wisdom necessary to serve on the high court simply isn't necessary in trial court.

2: Overblocking-- this creates strong encouragement for parties to block brilliant but strongly partisan folks on the other side of the aisle from even getting onto the trial court (to stem their progress before it gets too far, or before majorities change, or before it is too late). And let is be clear about something-- a trial judge's opinion of Roe v. Wade doesn't matter a whit.

3: The record isn't much good-- Similarly, a judge's lower court opinions aren't always much help in assessing how they'd rule. A trial court judge who struck down a cross-burning statute last year under R.A.V. v. St. Paul doesn't demonstrate his opinion that hate speech ought to be constitutional, merely his understanding that R.A.V. says that it is constitutional. It won't help against "stealth conservatives," and might encourage lower court judges to make their own assessments about when the law is wrongly decided. That's not their job, and is a pain in the neck for the rest of the judiciary.

4: Out with the professors-- Yglesias notes that the system would be opposed by solicitors general, law professors, and the like. Maybe that should be points against it, not for it, as a reader a suggests. It seems to me that the Justices on the Court who have come from Law Schools are no worse than the others, and possibly better.

5: Wasting time-- do we really want the finest judicial minds (those eligible for the S.Court, who are-- whatever one thinks of them-- damn smart people) wasting their talents in trial court rather than serving as solicitors general and law professors? Seems to me like the latter is a far better use of their waiting time. Being a Trial Court judge is a really hard job, don't get me wrong, but it requires different skills (hard work, research, self-reliance) than being on a higher court, which is a little more philosophical.

The Worst of the Worst?:

Erwin Chemerinsky has what How Appealing calls "A pedestrian write-up" of VA v. Black here at Findlaw. Chemerinsky lauds the court for reaching a good decision (bleh), but seems to ignore what I had thought was the biggest criticism of Black, a principle from R.A.V. v.St. Paul.

The previous case had held that the state cannot content- or viewpoint- discriminate among unprotected speech. That is, when speech is intimidating, obscene, inciting, etc., the government cannot ban only a certain category of that speech. And indeed Chemerinsky writes "Nor can the government outlaw the most powerful ways of expressing those opinions."

But he misses an exception offered in R.A.V., which is odd because it is just the exception that the court latched onto in Black. When a particular threat is a "particularly virulent" member of its type, when the thing that is wrong with it is its threatening nature, then the state may single out the most threatening of threats. that is precisely banning the "most powerful ways of expressing those (threatening) opinions". Thus Chereminsky missed what I had thought was the biggest controversy in VA v. Black-- the question is not whether the state may criminalize cross-burning that intimidates; I had thought it clear that they could. The question (which the court answered "yes") was whether the state could criminalize only cross-burning and not other intimidation. Chereminsky doesn't discuss this, probably because he thinks the decision is "right," but is uncomfortable with the idea that a government could decide to criminalize all "intimidating" stars-of-David. Which it can now, under Black, so long as it finds that the Mossad uses the symbol and has a history of particularly terrible violence.

Whither Roe?:

(Via Eugene Volokh): Jeff Jacoby blasts John Kerry (Diotima and I have already been there) for claiming that his express policy against nominating anti-Roe judges is not a "litmus test."

But he concludes with, "Roe v. Wade is not going to be the last word on American abortion law any more than Dred Scott v. Sanford was the last word on the rights of blacks. . ."

Why not? I mean, he might be right and all-- he's a professional journalist and no doubt has some special knowledge about the world that I don't. Butit's not manifestly obvious that the "basic holding of Roe" as retained in Planned Parenthood v. Casey, is going anywhere. Many henny-penny types like to claim that Roe hangs by a single vote (perhaps alluding to the 5-4 majority in Sternberg v. Carhart), but I don't think that's the case. Kennedy has repeatedly displayed a commitment to stare decisis in this area. Overturning "Roe" would require both him and O'Connor to be replaced by Justices ready to overturn thiry years of history.

Now, this might happen. But it's not manifestly obvious a priori. Many people thought that Dred Scott would be the last word, after all, and they could have been right. In the short run, at any rate, I don't think Roe is going anywhere. Maybe you disagree, like Jacoby, and I'd love to hear the argument, but I'd like to hear . . . an argument. (sorry there are no links for the cases above; maybe I'll do it later).

The Lousiana state legislature is in session; whenever it sits, it can be counted on to make the local paper a more interesting read. Bill would make it harder to get divorce. Yup. It's supported by Concerned Women for America, and it would eliminate no-fault divorce. Under this bill, divorce would require marital counseling or certain grounds--abuse, felony conviction, abandonment, adultery.

Now, Louisiana has already attacked the divorce culture once before recently. Since the Covenant Marriage Act in 1997, couples have had the option of chosing a marriage liscense that does not permit no-fault divorce. The terms include: 6 months of pre-marital counseling; the above grounds for divorce; a year or two of separation (the longer time if there are children). It hasn't proved too popular. In 1999, 609 of the 41,343 marriages were Covenant. Were this bill passed, everyone would be subject to that style of strict divorce without the requirement for counseling or ability to opt-out, but they'd still have Vegas. First, I think this is a bad idea.

But next, why does the government care so much about marriage and divorce? What if it just threw up its hands and said look, the law and the IRS will treat all adults the same as individuals, marriage is not a civil status, we're getting out of this idea of liscencing it. Justices of the peace no longer pronounce "man and wife" because it would be as nonsensical as a j.p. performing a baptism. Civil unions and common-law marriages would likewise fall by the wayside. If your pastor, preach, rabbi, calls you married in his eyes, then you're married in his eyes. If you want your father, favorite aunt, or friend to do the same, then talk to that person and work it out.

What would be the harm in that? What would result? Could it be worse than Married By America?

I can't see this system really affecting the relationships of parents and children. Insurance companies and other entities that recognize spouses might start referring to "the person and the person's designated significant other, an adult, named at the signing of the contract or amendment to it" -- the market economy would still choose to recognize whatever people wanted to call their marriage. A living will could still designate a person to make medical decisions for you. And as for the messiness of divorce: since the state doesn't recognize divorce any more than it does marriage, pre-nuptial agreements would become quite common because those would still be enforceable.

Not so bad, eh, to make marriage a purely private matter?

(Note: Amanda Butler is not Will Baude-- ed.)