Convictions: Slate's blog on legal issues

Following an Infirm Administration, Debating Health Care at the National Constitution Center

Last night at the National Constitution Center in Philadelphia, it was my pleasure to moderate the Sixth Annual Templeton Lecture on Economic Liberty. The lecture endowed by Dr. John Templeton was one of the first endowed programs of this magnificent center, and it has become one of Philadelphia's most looked-for events. Consequently, it is now a considerable distinction to be selected as a Templeton lecturer or respondent. The quality of the scholars who have been selected speaks for itself: Bruce Ackerman, Richard Epstein, Thomas Merrill, and Walter Dellinger, to name only a few. Moreover, because the Templeton understands "economic liberty" in the same broad manner as Madison defined "property"-"as a man is said to have a right to his property, he may be equally said to have a property in his rights"-the Templeton platform has been devoted to topics ranging from campaign finance reform and free speech, to immigration and human work, to eminent domain and the domain of human liberty, to, last evening, health care and its responsible management.

Somewhat unusually, the recent program consisted of two public figures, former HHS Secretary Tommy Thompson, now Akin, Gump's health care expert, and former Senate Majority Leader Tom Daschle who is in a similar spot for Alston & Bird. Both men know their stuff. The program give-and-take was lively, as this summary in Daily Kos suggests, and the intelligent audience-a good portion from co-sponsor AARP-had many questions, including about the respective positions of Sens. McCain and Obama, for whom Thompson and Daschle became unofficial stand-ins (Daschle is, in fact, national co-chair of the Obama campaign).

McCain's idea of separating health insurance from the employment relationship in favor of individually acquired coverage is controversial. It is intended to impose cost discipline through consumer bargaining, though as pointed out last evening, it represents a sharp break from the status quo and might well leave families paying more out of pocket. (Thompson challenged that premise, but earlier in the program, it had been recited without dispute that the average annual health cost for a family of four-insurance, co-pays, etc.-ranges from $8,200 to $11,500 per year, which is significantly more than McCain's proposed tax credit of $5,000. In any event, Thompson thought the McCain plan needed to incorporate insurance pools to really net competitive pricing from insurance companies.) By contrast, Obama's program relies heavily on Internet technology efficiencies and a government accountability model mandating sufficient levels of coverage and the inclusion of uninsured children and those with pre-existing conditions.

Whatever the theoretical merits of McCain's or Obama's models, it rather quickly became clear that the audience's dissatisfaction with the existing health care system was framing the response. Americans like to proclaim or think they have the best health care system in the world, but the life expectancy, preventable disease, and infant mortality stats do not bear that out. Americans endure higher costs than any other comparable industrialized nation and lower quality by WHO standards-lower, at least, than the 36 countries that rank above the United States. This poor report card seemed to work more against the McCain position, at least last evening. Not even the energetic presentation of Tommy Thompson could rescue it-in part, one suspects, because McCain's plan leaves the uninsured, well, uninsured and those with pre-existing conditions uninsured (absent some government guarantee that is not well-explained).

McCain no doubt wants desperately to separate himself from the incumbent, but the missed opportunities of the Bush administration were clearly being visited upon his ideas. Both presenters portrayed an infirm health system, the symptoms of which were hardly a surprise, such as the long-standing, but now impending, Medicare bankruptcy. And in the private sector, Thompson illustrated the ripple effect of uncontrolled costs emphasizing how the cost of health care undermined the market positions of major U.S. industries. For example, Thompson compared GM's $1,725 per car health care burden with Toyota's $225.

While many difficult questions were answered, there seemed to be no answer for what accounted for the lack of accomplishment during the Bush years, and the nominee of his party is just stuck with it. It seems the sitting president did little to take up, for example, Thompson's own innovative wellness and electronic prescription ideas when he was HHS secretary, let alone contemplate the progressive measures being suggested by Daschle and Obama for portable and readily accessible health records and an elimination of the paperwork of a highly fractionated insurance market that allows providers to charge wildly different prices for the same procedure.

Daschle and Thompson were in strong agreement on the need to build wellness into schools and businesses, but they pointed out, if one eats in virtually any public school cafeteria today, you will be served the food groups that feed obesity and diabetes and other diseases. Aristotle's conception of a healthy body and a healthy mind, it's not. And in another obvious category of improving health and lowering costs, Thompson at one point also wondered aloud why nicotine was not regulated by the FDA.

The lecture underscored that economic liberty depends upon more than a free market when the market is ill-informed or shaped by policies more in defense of the economic preserves of the well-fixed-be they drug, tobacco, or health insurance companies-than the average family. Whatever accounts for the failed legacy of the incumbent, everyone is now paying through health care costs that are rising four times faster than wages.

Despite all this, few left the evening without hope, since onstage was tangible proof of good minds, freed of partisan label and special interests, working together to address a nettlesome problem. It was a reminder of the plaque that the Gipper used to regularly point to on his desk: "There is no limit to what a man can do or where he can go, if he doesn't mind who gets the credit."

That was indeed a healthy reminder.

And Elsewhere on Capitol Hill

For what it's worth, Bill Kristol was on Fox News Sunday claiming that "very soon," Sens. McCain and Graham would introduce national security court legislation in the wake of Boumediene. Kristol, of course, may be trying to create facts on the ground. All the same, Think Progress has a partial transcript and video. Here's the key passage.

KRISTOL: [Habeas for detainees] is totally uncharted waters. It's utterly unmanageable. And I think what it means is Congress has to step in now and specify, OK, if the court's going to make us do this, we need to set up a system of a national security court that can handle these trials.  And this has been proposed by Andrew McCarthy, the former federal prosecutor who tried the blind sheik in New York and has a very good book out on the problems of trying to do this through the federal legal system. ...

Senator Lindsey Graham is working on this.  And I think you will see Senator Graham, accompanied by Senator McCain, come to the floor of the Senate very soon, like next week, and say, We cannot let chaos obtain here. We can't let 200 different federal district judges on their own whim call this CIA agent here, say, ‘I don't believe this soldier here who said this guy was doing this,' you have to release someone,' or, ‘Let's build up—let's compromise sources and methods with a bunch of trials. I mean, it's ridiculous.

So Congress has to act. Senator Graham and Senator McCain are going to insist on action. It will be interesting to see what Senator Obama's response is if the serious legislative proposal is introduced to set up a way of doing this consistent with the Supreme Court decision.

"RobertsAlito" Is Not All One Word—The End of Judicial Activism as a Campaign Issue

Well, it looks like John McCain will have to stop using Roberts-Alito as if it were one word to describe his preferred type of judicially restrained nominee.

In recent disquisitions about judges, McCain has been trying to simultaneously shore up his conservative base without riling up his moderate friends. It's a difficult rope to walk without hanging oneself. Indeed, the conservatives have already noted a McCain tendency to flatter Roberts and Alito but to omit the more controversial (to moderates) Scalia and Thomas.

Now McCain has a new problem. Roberts and Alito are going different ways. What is a candidate trying to rely on the caricature of judicial activism to do?

Justice Alito has twice rejected the chief justice's willingness to allow government activities immunity from the jurisprudence of the dormant commerce clause that preserves an interstate market from economic protectionism (Kentucky Department of Revenue v. Davis this term and last term United Haulers v. Oneida-Herkimer Solid Waste Management Authority both thoughtfully discussed by Lyle Dennison on SCOTUSblog), and today these Reagan fraternity brothers are divided over an important age-discrimination case. Justice Alito took a lot of heat for carefully parsing the statute of limitation under Title VII last year, which denied a gender-discrimination lawsuit as being beyond the time permitted to sue (Ledbetter v. Goodyear). Roberts agreed with him on that one. Today, in Gomez-Perez v. Potter, however, Alito and Roberts divided again over an age-retaliation claim under the ADEA, with Alito allowing it.

The Alito opinion is a testament to meticulous statutory analysis, fully utilizing text and legislative history as well as situating the decision in the larger body of civil rights and employment statutes and precedent. It gives lie to the notion that Alito is pro-business or anti-employee, so prominently alleged during his confirmation hearing.  As his colleagues on the 3rd Circuit knew (and testified, contrary to the academic sniping), Justice Alito is simply pro-reading-the-law-carefully. That is not to say the chief justice doesn't read statutes well—it's just that his dissenting opinion today puts far more emphasis upon a speculation drawn from why the executive branch has separately treated retaliation claims for federal workers differently than can be found in the text and structure of the statutory regime.

What should not be lost, however, is that even as Alito and Roberts disagree, it is a disagreement that is both civil and broadly incorporating of respect for precedent and legislative history.

And what about Justices Scalia and Thomas—those great unmentionable ones to Sen. McCain? They separately dissented  in Gomez-Perez because of, among other reasons, one suspects, Justice Scalia's well-known dislike for any mention of legislative history.

Oh, and to make things more interesting, Roberts-Alito split together from Thomas-Scalia in a second case, CBOCS West v. Humphries, implying a retaliation claim under Section 1981, a statute that deals expressly with race only. Thomas and Scalia have made a point of emphasizing that racial discrimination and retaliation for racial discrimination are not one in the same. Analytically, it is a sound point. Unfortunately, it is also a point that the court has rejected several times, and that precedent (right or wrong initially) is too embedded in the overall structure of civil rights law to be set aside, a point nicely highlighted by Emily.

Will the real judicially restrained judge please step forward? Using the canard of widespread judicial misbehavior is just not in the cards for John McCain. We are the better for it, and the independent-minded John McCain of 2000 would have agreed.

Re: Perhaps a "Lawyer's Lawyer" ...

Diane, we're in full agreement on the point that the nation would benefit from the appointment of a "lawyer's lawyer" to the Supreme Court. While I can think of a number of federal judges (and even a couple of law professors) who I think would do a fine job on the federal bench, I agree that a longtime practitioner would bring a degree of practical judgment and experience that would benefit the court (and the public as it attempts to follow the laws interpreted by the courts).

That said, after reading your post, I'm not sure how Chief Justice Roberts doesn't squarely meet your standard. His lawyering skills were widely admired by the bar; he had no ideological ax to grind; and his tenure on the court has been marked by collegiality, wit, and a refreshing writing style. What more would a "lawyer's lawyer" or "judge's judge" have to do, beyond what Chief Justice Roberts did in his practice and on the federal bench, to satisfy the standard you envision?

And given that John McCain—neither an ideologue nor a reflexive partisan—repeatedly invokes Chief Justice Roberts as one of his ideal judges, isn't there abundant cause to conclude that, if the electors choose McCain, then "the person whom voters entrust with the filling of federal judicial vacancies will give priority not to 'partisan political concerns,' but rather to 'dignity' and 'intellect,' ideally tempered with 'charming wit and sense of humor' "?

Two Courts, One Law

I'll get to Phil's McCain-Obama-and-the-courts question in a sec. But I first have to say that while I'm generally a big fan of David Savage's at the L.A. Times, there are parts of this latest piece that sound like they could've been written by Rush Limbaugh.

The McCain-Obama comments reflect a long-standing divide between conservatives and liberals on the role of the courts. Reduced to the simplest terms, conservatives say judges should follow the law, and liberals say they should ensure that justice is done.

Ugh. I appreciate the need to get this complex, age-old debate boiled down to within a journalistic word limit, but there's gotta be a better way. Of course both conservatives and liberals say judges should follow the law. Beyond that, and within the descriptive limits of the stereotyped terms, "conservatives" say that "following the law" means using the fewest possible interpretive clues to figure out what the law means (for statutes, text only; for the Constitution, at best, a guess at what the framers meant in 1789), and as a matter of practice they fill in any remaining areas of uncertainty (of which there are inevitably some in some cases) with broad ideological preferences—about the power of the government, the role of the courts, and the kind of society in which they want to live. "Liberals" believe "following the law" means looking to as many interpretive clues as might reasonably shed light on the text (legislative or other kinds of history, text and textual context, the purpose of the document, etc.). As a matter of practice, they, too, may fill in remaining areas of uncertainty with an equal and opposite set of broad baseline principles, including the principle that judges get to say what the law means.

There's no way around the problem of laws that are sometimes unclear. I think on balance the "liberal" approach to interpretation has a better chance at preserving the idea of "law" as having some sensible and identifiable meaning. But the reality also remains that vast swaths of the law are clear for both liberals and conservatives; that's why, among other things, not every dispute in the United States ends up in court. For those that do, there's also no way around the reality that judges will have baseline structural preferences and preferences about what they think "justice" would require in any given case. But I wouldn't deny (as many conservatives and some liberals do) that such preferences can matter, at least at the margins of judicial decision-making. That's why judges are politically appointed. That's why presidential appointments matter.

So what can we glean about McCain and Obama so far? I'd say that apart from some reassurance that the one reflects most conservative baseline assumptions, and that the other reflects most liberal baseline assumptions, not much. But to my colleagues who've watched this longer than I, I'd be pleased to stand corrected here.

A Tale of Two Courts

David Savage writes in today's Los Angeles Times about the deep divide between the Obama and McCain camps over what kind of judges should be appointed to serve on federal courts, including the Supreme Court. Savage boils down the issue to this:

Sen. McCain (R-Ariz.), in a speech two weeks ago, echoed the views of conservatives who say "judicial activism" is the central problem facing the judiciary. He called it the "common and systematic abuse ... by an elite group ... we entrust with judicial power." On Thursday, he criticized the California Supreme Court for giving gays and lesbians the right to marry, saying he doesn't "believe judges should be making these decisions."

Sen. Obama (D-Ill.) said he was most concerned about a conservative court that tilted to the side of "the powerful against the powerless," and to corporations and the government against individuals. "What's truly elitist is to appoint judges who will protect the powerful and leave ordinary Americans to fend for themselves," he said in response to McCain.

* * *

The McCain-Obama comments reflect a long-standing divide between conservatives and liberals on the role of the courts. Reduced to the simplest terms, conservatives say judges should follow the law, and liberals say they should ensure that justice is done.

The McCain campaign is sure to make this a major issue in its campaign because this issue plays well before the conservative base. The tried-and-true Rove formula calls for running on God, gays, and guns, and all three issues strongly correlate with the appointment of conservative judges. Given the California Supreme Court decision last week on gay marriage, the current U.S. Supreme Court case on gun control, and continuing skirmishes over the role of God in government and public life, the GOP will likely turn to this page in the playbook once again. Such is the conclusion of Jeff Toobin in this week's New Yorker: "McCain plans to continue, and perhaps even accelerate, George W. Bush’s conservative counter-revolution at the Supreme Court."

So what about the Democrats?  (Disclosure: I support the Obama campaign and have advised it on defense and veterans issues.) I think there may be an opportunity here. Sen. John McCain is an honorable public servant and war hero with great appeal to moderates and independents. To counter that, the Democratic party needs to remind voters that a McCain administration will appoint staunchly Republican judges of the type appointed during the last three Republican administrations. This issue should energize the Democrat base, and it should also give moderates pause before they side with McCain.

It's like the old quip my grandfather used to tell me: "There are only two kinds of judges: Republicans and Democrats."  Whom do you want on the bench?

Boy, That Doug Kmiec Is One Smart Cookie

Thanks, Orin, for replaying some of my greatest hits on the judicial role and the separation of powers. As I mentioned in my earlier posts on Sen. McCain's remarks, he and I are in large agreeement on the quality of Chief Justice Roberts and Justice Alito, and unlike him, I am willing to openly add Justices Scalia and Thomas—who seem rather expediently missing from the senator's listing of judicial exemplars. Even candidate McCain's likely opponent, Sen. Obama, has written openly that he is "not unsympathetic to Justice Scalia's position [on originalism]." One is tempted to say to Sen. McCain, "Yes, you can!" Have the courage of your convictions, man. That said, as I earlier wrote, Sen. McCain did have fine and unexceptional things to say about the judicial duty to observe the structural provisions of the Constitution.

But it still seems quite unwise and unfortunate for candidate McCain making his major speech on the judiciary to:

1. Lead with an unwarranted and unhealthy condemnation of the Third Branch, which candidate McCain described as "the common and systematic abuse of our federal courts by the people we entrust with judicial power." Common! (putting aside the good-faith efforts of extraordinary Democratic appointees like Merrick Garland and David Tatel, how "common" can the "abuse" be if there have been 20 years of Republican judicial personnel added to the federal bench since 1981?)

2. Attack the Constitution, itself, which I take it is what McCain means by systemic! Candidate McCain glancingly posits that the founding design of the Constitution leaves the court unchecked, when Article III clearly does not. This, unfortunately, reveals less understanding of the separation of powers than his rhetorical flourishes of praise for constitutional structure elsewhere in his text lead us to believe. 

3. Have as its real purpose slamming Sen. Obama's mistaken vote against John Roberts and Samuel Alito. Now, we are on to something, but instead of saying something new or helpful about the difficulty of constitutional interpretation, the names of these venerable public servants are trotted out like bumper stickers. Candidate McCain makes no effort, and since he was speaking at a university with a law program of some note, one might have anticipated one to engage the topic in other than partisan and time-worn fashion. It's not as if Sen. Obama's judicial philosophy is hard to find. It would, for example, appear much influenced by Stephen Breyer's theory of Active Liberty. While giving "reverence" to the founding design, Sen. Obama, like Justice Breyer, believes constitutional principle not to be "static," with its "general principles" promoting active democratic participation while at the same time capable of dealing with the 21st century realities of "NSA computer data mining, ... freedom of speech on the Internet," and the like.

It would be a fine debate worthy of the next national convention of the Federalist Society and the ACS to undertake a serious examination of the competing interpretative views of the McCain-Obama contest. As Orin points out, Sen. McCain and I apparently both thought originalist material was not sufficiently relied upon as applied to the facts of Roper v. Simmons. While that was a juvenile death-penalty case, it is interesting that Sen. Obama in the somewhat different contexts of "mass murder, and the rape and murder of a child" finds the death penalty to be warranted. Since this is an area of substantive agreement on a sensitive and controversial topic, candidate McCain might have used his academic address to make some genuine contribution to the debate by examining why in judicial reasoning, it's not just policy agreement that counts, but how one gets there.

The point remains: The McCain speech unfairly attacked the good-faith service of the Third Branch generally; asserted in cursory fashion constitutional flaws that were not shown by the senator to exist; and took a snarky, partison swipe at his likely general-election opponent, whose writing contains a similar concern to that raised by Sen. McCain, that too often "Republicans no less than Democrats ... [have] asked the courts to overturn democratic decisions ... that they didn't like." Sen. Obama, whose judicial philosophy pays heed to originalist principle but does not rest there, openly questions whether his party "in [its] reliance on the courts to vindicate not only our rights but also our values ... had lost too much faith in democracy."

A small amount of research by candidate McCain's talented legal-advisory group would find both points of interpretative disagreement, within intriguing overlaps as well as points of accord with Sen. Obama. Wrestling with that reality would have been an interesting and honest talk. Indeed, that would have been the kind of talk someone interested in not being politically confused as offering only a third George W. Bush term might have been most anxious to give. Instead, candidate McCain chose only to warm over the tired commentary of the past, even that given by a tired old professorial soul like myself, while adding his own unique signature of political diviseness, constitutional mistake, and gratuitous insult to those who are presently serving on the bench. Frankly, I like my version better, and a new, substantively honest discussion of the important role of the courts in our constitutional system would have been the best of all.

Questioning Doug Kmiec on the McCain Speech

Doug, I'm interested in learning more about your criticism of Sen. McCain's speech. In particular, I'm curious about the differences between what Sen. McCain said in yesterday's speech and your own well-known criticisms of the federal bench and the Supreme Court in the past.

For example, in a 2005 column for the Los Angeles Times, you wrote that today's federal bench has been warped by the view that judges should decide cases not based on law but on their personal preferences. You suggested that we must begin to restore the proper view of judging in which judges actually follow the law (what you described as "the only faithful way for a judge to discharge his or her duty"):

For the last half a century, law students have been taught that cases are not decided on the basis of formal, authoritatively adopted rules and principles but on the basis of a judge's cultural and social intuitions. 'Legal realism,' as it is called, turns judging into a matter of force or will (personal preference) rather than the exercise of reason, the method called for by Alexander Hamilton in the 'Federalist Papers.' When judges disregard Hamilton's advice, they inject politics into judicial judgment and invite it into confirmation proceedings. Restoring an understanding of the law and the Constitution as text, rather than as jumping-off points for ideological excursions, is an uphill battle, yet it is the only faithful way for a judge to discharge his or her duty.

Source: Douglas W. Kmiec, "Judges: The Law Is the Law," June 26, 2005, Los Angeles Times.

You've also suggested that the next presidential election will prompt a choice between judges who are "faithful" to the law and those who will "corrupt" the law with the "specious" idea that law is politics. As you put it, "During the immediate years following the next presidential election, there are likely to be one or more vacancies that will either secure the bench as a faithful exponent of law or corrupt it by the specious idea that there is no meaningful distinction between law and politic."

You've also criticized some of the same cases that Sen. McCain targets in his speech on pretty much the same grounds as does McCain—that they are raw exercises of will. Here's what you wrote about Roper v. Simmons, the juvenile death-penalty case that Sen. McCain singles out for criticism:

The problem with the U.S. Supreme Court's decision last week banning the execution of minors is that it was based, when you get right down to it, only on the personal beliefs of five justices and buttressed by the opinions of people who live in other countries. That's no way for the court to decide. Supreme Court rulings must be based on the Constitution, not on what the justices believe or on the vagaries of "world opinion."

The court's decision fans the flames of a long-standing dispute over how the Constitution is to be viewed. Should it be treated as an enacted law — that is, something to be fairly interpreted and evenhandedly applied — or is it an open-ended document for the court to interpret as it sees fit? The first methodology is democratic self-government; the second — in which an elite body is invited to impose binding pronouncements about how the rest of us are to live — is something else.

Source: Douglaw W. Kmiec, "Whose Constitution Is It Anyway?," March 6, 2005, Los Angeles Times.

Maybe I'm missing something, and I don't want to play "gotcha."  But to my ears, the new John McCain sounds rather similar to the old Douglas W. Kmiec.

McCain Injudiciously Attacks Judges and the Constitution; Dems Wrongly Attack Obama's Ideal

In covering John McCain's effort to win friends with the conservative base by praising Chief Justice Roberts and Associate Justice Alito (which I agree they deserve, not because they are reflexively conservative, but because they are jurists who are admirably dedicated to an objective appraisal of the law as written), the national media missed the big, and more troubling, story: McCain wrongly attacked both the Constitution and Article III judges.

McCain's claim that there is "systemic abuse" of the federal judicial office is an occasion not to praise him but to ask his apology for the overwhelming legions of federal judges who serve with distinction and at modest pay often without acknowledgment. To say that McCain meant only to single out the few who defy text, and who justly warrant and receive reversal, is to overlook the intemperate sweep of the McCain condemnation of the Third Branch. In his obvious effort to, well, pander, Sen. McCain did a disservice to these public servants and, as I earlier wrote, falsely assailed the Constitution for a flaw that does not exist, and insidiously undermines public trust in the fairness of the judicial process. Let McCain's overbroad and unrefined words speak for themselves:

There is one great exception in our day, however, and that is the common and systematic abuse of our federal courts by the people we entrust with judicial power. ... With a presumption that would have amazed the framers of our Constitution, and legal reasoning that would have mystified them, federal judges today issue rulings and opinions on policy questions that should be decided democratically. Assured of lifetime tenures, these judges show little regard for the authority of the president, the Congress, and the states.

This is not straight talk; it is calumny.

The Democratic response issued by DNC Chairman Howard Dean was scarcely better. Dean's feeble, and partisan, tit-for-tat effort to paint the chief justice and Justice Alito as "activists" is so thin that it makes one want to engage in the practice for which Dean is most famous: scream. Dean's response, which shows no appreciation for the solid points Sen. McCain did make about the importance of observing the constitutional structure, illustrates a serious problem for presumptive nominee Barack Obama: Sen. Obama may want to bring his party to a higher, more noble plane where reason is recognized not to be bounded by its red or blue origin, but the leadership of his party apparently still wants to fight in the gutter.

McCain Speech on Judges

John McCain's Democracy in America - The few, the wealthy, the well-connected

Once again, the Times is implicitly questioning Senator McCain's bona fides as a political reformer. Supposedly after his near-death ethics experience in the "Keating five" Savings and Loan scandal, the Senator has been careful to avoid according special privileges to the well-heeled.  There seem to have been exceptions, however, including a notable one for well-heeled "friend" who has also arranged for donations to Senator McCain's presidential campaign in excess of $250,000.

Today's profile by David Kirkpatrick and Jim Rutenberg of wealthy Arizona real estate developer Donald R. Diamond reveals that Senator McCain has been pivotal to Mr. Diamond's real estate success, much of it achieved by exchanging properties with the United States on very favorable terms. 

It appears Senator McCain helped Mr. Diamond acquire, among other properties, Fort Ord, the former military base in the extraordinarily beautiful Monterey California.  When the deal ran into trouble, Senator McCain assigned an aide who facilitated matters with the Pentagon and sped things up.  Mr. Diamond described by Senator McCain as "a close personal friend" was of course grateful -- well, to a point. 

Referring to the help he received from Senator McCain and about which he bragged to local officials would allow them to "get through some of the red tape in dealing with the Army," Mr. Diamond felt more or less entitled.  In a startling, yet revealing, comment Mr. Diamond contended  "I think that is what Congress people are supposed to do for constituents. When you have a big, significant businessman like myself, why wouldn't you want to help move things along?  What else would they do?  They waste so much time with legislation."

In the various endorsements of Mr. Diamond used to intervene with other government officials, John McCain calls his friend -- and it would seem modern-day commentator on American democracy -- "a citizen's, citizen" -- yeah, he's a veritable Alexis de Tocqueville. 

So here's hoping that Pennsylvania will not be afraid to nominate someone for president of the United States who at least promises with some plausibility to roil the existing order that passes itself off as congressional ethics.

Clinging to Guns and Religion—No Apology Needed

As Melinda Henneberger notes, Sen. Obama is being accused of displaying a profound misunderstanding of so-called Midwestern or small-town values based on a recent comment. The senator explained how voters—angry and demoralized by their economic circumstance and the inability of politicians to improve rather than worsen their plight—"cling to guns or religion or antipathy to people who aren't like them."

With due respect to the good people in Melinda's hometown of Mount Carmel and with fond remembrance of my two decades in South Bend, Ind., I doubt anyone in those places is offended until Clinton and McCain ride into town and rile them up with falsehood and fear.

This is merely the inverse formulation of Obama's positive message to not fall prey to politicians of either party who seek support by dividing us. Instead of seeking peace, we have a president and his first cousin barely removed perpetuating an unnecessary war. Instead of addressing the poverty or immaturity or insufficient learning that can lead a young woman to terminate a pregnancy, partisans on both sides mystify us into thinking the next Supreme Court justice (so long as she is "our" nominee) will make it all better. Instead of working to limit crimes of violence by strengthening families, the polemicists of old politics construct the myth that when Madison penned "well-regulated militia," he meant ample home arsenal. Instead of honoring people of faith whose gospel motivates them to teach or ladle in soup kitchens or staff hospitals and nursing homes, candidates gratuitously stoke racial and religious hatred by constant replay of a minister's overheated rhetoric.

Now, having stirred up intense hate and suspicion toward each other, the message of Sen. McCain is: Cling to those hates, my friends. Woe be to anyone who would have the hopeful audacity to tell you to stop. Why, says Mrs. Clinton, you should have known all along that anyone who tells you, "Yes, you can" is a fraud. You know you can't. Insist on your right to see yourself as a victim. Don't vote your freedom—vote for me!

No, Sen. Obama, no apologies needed. When you call upon us to set aside divisions based on faith, you do not dishonor religion but rebuild its immunity from political manipulation. Like Pascal, you are reminding us that faith is "of another order which surpasses all the rest in depth and height."

It's a good reminder even if it did prompt Mrs. Clinton to reminisce about how her father taught her to shoot when she was a young girl in the Chicago suburbs. "Incoming!"

The Endorsement Follows the Covenant—Why I Endorse Sen. Obama

Douglas W. Kmiec

So many kind and thoughtful people have taken the time to write or comment upon my recent endorsement of Sen. Barack Obama for president asking for additional explanation that it has become impossible to answer each individually, so with great respect, but far less time than I would like, please accept these supplemental thoughts as an expression of gratitude to all who wrote in agreement or disagreement, and with civility.

As many know, I was first attracted to government by Ronald Reagan, who lives in my memory as a great leader and an inspiring communicator. Sen. Obama has these gifts as well, but of course, mere rhetorical flourish without defensible substance would be worth little. Is there more to Sen. Obama? I believe there is. President Reagan often said his proudest achievement was making America feel good about itself again. Sen. Obama is trying to give us genuine reason—good reason—to have that feeling again. Indeed, he may have already partially succeeded. Having taught several generations of students over 35 years, I have never seen young people more alive and interested in the political process. His witness is encouraging them to look to civic and public involvement as a way of finding their own purpose—a purpose that they intuitively want to be in service to others.

How else do I perceive Sen. Obama restoring the American ideal?

By saying to the world, we intend to hold ourselves to international standards of decency and justice. (I note that Sen. McCain picked up part of this theme yesterday in a speech here in Los Angeles—good for him. Sen. Obama's influence is resonating well beyond me and my students.)

By honoring the memory of those who died on 9/11 (and the 4,000 men and women of our armed forces who have perished in Iraq) with the honest assessment that our national safety is not enhanced by fighting the wrong war at a tremendous cost of life and resources.

By saying to the average working person in America, your work matters, and it will be compensated at a family wage; your retirement will be safeguarded from corporate fraud and manipulation—be it by cooking the books a la  Enron or the legal abuses of a shadow banking system that by profligate lending practice has precipitated the mortgage meltdown and the bail-out of Bear-Stearns.

By recognizing that we create our own immigration problem by failing to fix an immigration system that neither safeguards national security nor permits genuine unmet labor needs to be filled on unexploited terms.

By saying to a nation of consumers that happiness is not found in mindless consumption and that we have an obligation to better stewardship of the environment and to develop alternative sources of energy—for our own health and well-being and that of our children and grandchildren—and, of course, as a matter of national security as well.

By saying to his fellow candidates for president in both parties, let's end the name-calling; the politics of division based on race—understanding that we have had enough of black anger pitted against white resentment, that we indeed must say to those who seek office on those divisive terms, "Not this time."  It is better for us to understand that failing schools are failures for all concerned—whether you're the student graduating without knowing how to make change or the customer who is shorted.

By understanding the significance of faith as a source of meaning in the life of our nation and our individual lives; that religion and freedom depend on each other (something, by the way, both the senator and Mitt Romney said just in slightly different phraseology). Freedom is enhanced by the "habits of the heart" and virtue nourished by religion, and at the same time, religious faith only matters if it is not coerced. None of us is entitled to have our personal faith enacted into law, but we can expect the law to accommodate, not grudgingly at the point of a lawsuit, but empathetically as a matter of good will and common sense all religious practices that do not endanger the public order.

And should he be elected president, by saying to his co-equal branches, I understand this is a constitutional system, and I have an obligation to use power wisely and not look for every opportunity to expand it or use it foolishly, as in the dismissal of my own U.S. attorneys with little thought and even less justification.

Will the election of Sen. Obama accomplish all these things?

Perhaps not, but like the Gipper used to say to us: If not us, who? If not now, when? Many of our allies are watching us, and while we should never pursue a course to win the approval of others, when the course we have followed proves not to be true, we must change direction if we are to have any hope of reaching our proper destination. The sentiment reported by those who live and work in capitals around the globe is that Sen. Obama's successful campaign to date, in itself, has signaled to the world that—well, to pick the Reagan phrase again—it is "morning in America" because

•       the America they knew as an ally committed to peace and freedom and not hazy, ill-conceived forms of pre-emptive war is back;
•       the America they thought was the gold standard for the rule of law is back;
•       the America that could recognize its own shortcomings, be it racial or gender inequality, and right itself was back.

I am not quite as prepared as the readers of the foreign press to be quite this rejoicing this early. This is especially true since I disagree with Sen. Obama, the partisan elected official, in many, many ways. But his having campaigned not as a partisan but as a unifying force, my endorsement is best seen as a public acceptance and friendly reminder of the covenant his campaign is making. Like a restriction running with the land, the endorsement follows the covenant. If the covenant is breached in campaign or in office, the endorsement will be renounced more loudly than it was given. In short, I am counting on Sen. Obama the president to keep Sen. Obama the presidential candidate's word—namely, that he intends to pursue policies aimed at transcending the politics of hate and division. 

That, for example, on abortion, which I know to be a grave moral evil and that I understand Sen. Obama to see as a matter already legally settled, that he will nonetheless work to reduce the incidence of the practice by what he has stressed—the importance of families and churches conveying the importance of "having young people show reverence toward sexuality and intimacy."

That on the definition of family, we will not undermine the significance of responsible procreation for the long-term health of the nation even as we work to end invidious discrimination and misunderstanding toward homosexuals in our society.

That when there are calls for government involvement, the first thought won't be the bigger the government the better, but rather the very thoughtful questions Sen. Obama has already raised during his campaign such as: When should government intervene? And what can it usefully do? 

And especially because—in his precampaign partisan role—he voted against two individuals who I know to be the very definition of "impartial judge" that we will work together to keep politics out of the courts; that just as some states have successfully developed merit systems for judicial appointments, both parties will stop seeing the judicial branch as the ideal placement for those who will advance our favored political philosophy regardless of the law as written.

Let me end this already too long explanation by saying my endorsement is not about animosity toward John McCain or Hillary Clinton. I was a McCain backer in 2000, and as the father of five, including three daughters who are pursuing professional lives, I respect Mrs. Clinton's desire to break the glass ceiling.

It's just that their public moments—like mine—are past. John McCain's understanding of warfare and national security is an extension of "the greatest generation," but it is no disrespect to say that just as "shock and awe" did not prevail in Iraq, Sen. McCain's conceptions of military deployment are ill-suited to meeting the far more nimble and insidious nature of the present terrorist threat. Again, his most recent address suggesting a "league of democracies," while not without its difficulties in terms of running the risk again of only dealing with our friends, shows a glimmer of the independently minded, pre-Bush McCain, and I urge him to continue to develop thoughts that take him beyond outworn models of base deployments that we cannot afford and that in some circumstances provoke more than secure.

And Mrs. Clinton is to me not advantaged, but disadvantaged, by her previous time in the White House. The ranks of capable, intelligent, well-prepared women who could serve as president are long and deep. In all seriousness, and with apologies to the Adams and Bush families, as I understand democracy, we ought not to return to those quarters someone who—directly or indirectly—will merely attract the ideas and personnel of the past.

Taking a leave of absence from my GOP home was not my first choice. As Ronald Reagan said, he didn't leave the Democratic Party; it left him. I feel the GOP left me. Some do not see the trajectory from Romney to Obama as plainly as I do, and it would take an equally long letter to elaborate, and I will spare every reader who made it this far that burden. Let me just say, Gov. Romney well understood the significance of family, faith, and fiscal responsibility. In too many ways, the present administration was the most fiscally irresponsible of our lifetime, prayed aloud but ignored the teachings of faith to seek peace and pursue war only when warranted and, in so doing, jeopardized the well-being of every family in America. I love my family, my faith, and my country too much to entrust the next four years to any candidate who would stay upon a course that has been so badly misdirected.

My gratitude, again, to all who have written.