(Gay) Love Letters

What Happens When the Irresistible Force of Conservative Judicial Activism Meets the Immovable Object of Conservative Strict Construction?

Back when you were in middle school – we called it “junior high” in my day – if there was a boy or girl you liked and you wanted to find out if they liked you too, the standard procedure was to send one of your friends to ask him/her what they thought about you. Included was a note to give the other person if his/her response was positive. As your friend departed on their errand, they typically carried instructions from you not to tell the other person that you liked him/her or that you were the one really asking.

It was an attempt to make something happen that you wanted while remaining anonymous; you could reap the rewards if your crush said yes but you might avoid painful humiliation if they said no. Whether you were the petitioner, the object of affection, or the intermediary, it was all rather silly and embarrassing.

Even though we are adults now, things like this sometimes still happen in politics and government. The Supreme Court enters the picture as Vice-Principal in charge of discipline. The Justices need to decide whether, when somebody notices this clandestine note passing between amorous conspirators, they can read the missives too and maybe even share them with the rest of the class.

The case in question is Doe v. Reed.

In 2009, the state of Washington’s legislature passed a law significantly expanding legal rights and protections for gay couples. Fearing this as a springboard to legalizing gay marriage, a group called Protect Marriage Washington submitted petitions, signed by 138,500 Washington residents, calling for repeal of the new law to be placed on the ballot and subjected to a public vote.

Gay-rights activists asked to review the collected signatures in order to check for fraud. They cited Washington's Public Records Act, passed in 1972, as giving them the right to do so.

Protect Marriage Washington sued to block disclosure, contending that petition signers were entitled to anonymity under the Constitution. They pointed to harassment and threats against those who organized for Proposition 8 repealing gay marriage in California as well as one gay blogger in Washington, who called for names posted on the Internet to encourage the new law’s supporters to have “uncomfortable conversations” with petition signers.

A federal district judge issued a broad ruling barring the state of Washington from releasing the names of signers in this or any other petition drive. The Ninth Circuit Court of Appeals reversed this ruling. It reasoned that collecting signatures already occurs in public and free access to information is more in the public interest than protecting the privacy of certain political speech under the First Amendment.

Protect Marriage Washington appealed to the Supreme Court, which stepped in and temporarily blocked release of the names. As a result, the initiative to repeal the law went on the ballot with the identities of petitioners remaining private. The Supreme Court then granted review of the case at the first opportunity and expedited its hearing on the docket to assure a ruling during the current term.

Those supporting disclosure find claims of possible persecution from gay activists to be disingenuous. “Given our small numbers and the disadvantages we have faced over the years, and the decades and decades of harassment, and even death, it is more than ironic that petitioners would take the position that somehow it is they who are the victims and they who need protection,” says gay-rights activist Anne Levinson. She points to Justice Department statistics showing a consistent rise in hate crimes against homosexuals.

On the other hand, Larry Stickney, who served as campaign manager for Protect Marriage Washington, reports opponents bombarded his home with emails, telephone calls, and letters containing obscenities, threats, and other serious harassments.

“Mandatory disclosure laws don't inform voters; they squelch speech,” according to Dick Carpenter, Director of Strategic Research at the Institute for Justice. He conducted a survey in 2007 of more than two thousand citizens in six states, including Washington. He concluded that forcing people to comply with disclosure rules in order to exercise their First Amendment rights might result in many staying silent or uninvolved.

Carpenter found that while most people support mandatory disclosure in general, their support wanes when forced to consider personal costs. Fifty-six percent disagreed that disclosure of their identity should be a condition of signing a petition or donating to a ballot issue committee. Opposition grew to seventy-one percent when personal information disclosed included details such as name of employer.

The Supreme Court heard Reed this Wednesday. The conventional wisdom ran that conservative Justices were eager to flex some activist muscle again, just as they did on Citizens United, and the Court would overrule the Ninth Circuit, probably by a five-to-four vote.

Things seemed to shape up that way during oral arguments, with Chief Justice Roberts and Justice Alito sympathizing with lawyer James Bopp, representing the defendants, on the need for privacy and imagining all sort of slippery slope horrors resulting from public disclosure.

Grilling Bopp from the other side, liberal Justice Ginsberg crisply pointed out that Protect Marriage Washington sometimes sells its list of signatures for fundraising purposes. “So that would be the end of a person's privacy,” she concluded and wondered why this type of disclosure is Constitutional if the Washington Public Records Act is not.

Justice Stevens, after hearing Bopp’s argument that maintaining anonymity is in the public’s interest to ensure voter participation, asks, “Isn't there another possible public interest? Would it be legitimate public interest to say, ‘I would like to know who signed the petition, because I would like to try to persuade them that their views should be modified?’ Is there public interest in encouraging debate on the underlying issue?”

Stevens’s take on the matter seems wholly in line with the Washington Public Records Act’s statement of purpose. “The people of this state do not yield their sovereignty to the agencies that serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may maintain control over the instruments that they have created.”

However, if the Court ultimately upholds the Ninth Circuit or at least finds that names of petition signers, although not necessarily contact information and other details, may be made public, it will be due to support from a seemingly unexpected figure – conservative Justice Antonin Scalia.

Bopp bewailed the results of public disclosure could include, “We’re all going to have to stand in public and announce who we're voting for and whether or not we're voting yes or no on this initiative. That's the way tyrannical governments control and do phony elections.”

Scalia countered him with a history lesson. “For the first century of [the United State’s] existence, even voting was public – you either did it raising your hand or by voice . . . So the country was acting unconstitutionally for a whole century before we adopted the Australian secret ballot? Do you really think that?”

Then Scalia takes it a step further. “The First Amendment does not protect you from criticism or even nasty phone calls when you exercise your political rights to legislate . . . You can't run a democracy this way, with everybody being afraid of having his political positions known . . . Running a democracy takes a certain amount of civic courage!”

Finally, Scalia asks Bopp a question that seems aimed in equal parts at his own Chief Justice. “Do you have any case in which we have held that the First Amendment applies to activity that consists of legislating or of adopting legislation? . . . [You] are asking us to enter into a whole new field where we have never gone before.”

It seems that Roberts, the conservative judicial activist, has finally dragged Scalia, the conservative strict Constructionist, somewhere he is unwilling to go – even in the name of opposition to gay marriage. And I might add that conservatives everywhere ought to be glad if Scalia holds the line on the continued Constitutionality of public disclosure laws in the twenty plus states that have adopted them.

Last November, Washington voters overwhelmingly rejected repeal of the new gay rights law, even with the petition signatures protected. If liberals pursue the next step and attempt to place legalizing gay marriage on the ballot, liberal groups along the lines of ACORN will collect those petitions. Given the deliberate fraud in which many conservatives believe such groups engage, a ruling by the Supreme Court on Reed protecting petitioners’ privacy in political speech today could make it all that much harder for conservatives to uncover liberal mischief tomorrow.

Wars consist of many battles and you have to be sure you do not seek to outlaw a weapon or strategy used against you in one battle that you might be able to use to your advantage in another. This is true in both love and politics/government.

Melting Pots and Crucibles

The New Arizona Immigration Law Was Ill-Forged and Needs Blunting

The United States of America is the Great Melting Pot of the world, as the old saw runs. A melting pot implies heat and anybody who has ever visited the Sonoran Desert knows it does not get much hotter than in southern Arizona. In spite of this, state officials found a way to raise the temperature there further by passing an extremely tough new immigration law last Friday.

The mainstream media has functioned as the chief thermometer. Linda Greenhouse, the Supreme Court/legal analyst for the New York Times, declares the law created a new crime of “breathing while undocumented” and transformed Arizona into a “police state.” Richard Cohen at the Washington Post characterized it as “bizarre, fueled by anger and a dash of bigotry.” His cohort Eugene Robinson unleashed a barrage of unflattering descriptors – “racist, arbitrary, oppressive, mean-spirited, unjust . . . an abomination.”

The law, which takes effect in late July or early August, makes it a crime to be in the U.S. illegally. It mandates state and local police to question people about their immigration status if there is any reason to suspect they are illegal. Arizona authorities can arrest immigrants unable to produce documents, jail them for up to six months, fine them $2,500, and then turn them over to federal authorities for deportation.

The vote on the new law strictly followed Party lines – all but one Republican Arizona legislator voted for it and every Democrat voted against it. Critics say it will inevitably lead to racial profiling against Hispanics, since almost all of the nearly half million illegal immigrants in Arizona are Mexican.

Those opposing the law include the American Civil Liberties Union, Democratic Represenative Raul Grijalva of Arizona, the nation’s largest Spanish-language newspaper La Opinión, the city of San Francisco and other California officials, and the Reverend Al Sharpton, all of whom call for non-cooperation and a boycott of Arizona tourism/goods in response.

Democratic Phoenix Mayor Phil Gordon branded the law “bitter, small-minded and full of hate.” Mexican President Felipe Calderon called it discriminatory and warned it would seriously strain trade between Arizona and his country. President Obama deemed the law “misguided” and worried it could “undermine basic notions of fairness that we cherish as Americans” and lead to “irresponsibility by others.”

The law’s chief supporters include Republican Arizona Governor Jan Brewer and Maricopa County Sheriff Joe Arpaio. Many view Arpaio’s tough immigration enforcement policies as a model for the law’s directives.

Most Arizona police departments officially oppose the law, saying it will deter them from other important work, reduce cooperation from Hispanics in solving crimes, and generally heighten tensions between police and the Mexican community. The law requires them to prosecute illegal immigrants with the same zeal and meticulousness as Arpaio or face civil lawsuits.

Then there are the citizens of Arizona, who multiple polls indicate favor the new law by a hefty sixty-five to seventy percent.

Their concern is understandable and driven by a combination of reasonable caution and reactive fear. Arizona has a huge Mexican population and its southern border has become a national gateway for both people and drugs to enter this country illegally. Local sentiments rose to a boiling point when illegal border crosser(s), possibly drug smugglers, shot rancher Rob Krentz on his property near the Mexican border this past March.

Many of the law’s supporters claim that, as much as anything else, it is a message to Washington concerning the Southwest’s desperation over lack of federal immigration reform. “We in Arizona have been more than patient waiting for Washington to act,” said Governor Brewer. “But decades of federal inaction and misguided policy have created a dangerous and unacceptable situation.”

“The loud voices denouncing ‘Arizona’ should understand that the results of the nation's failed immigration policies have come down on this state,” agreed an editorial in today’s Wall Street Journal.

Federal reform would be just fine with those opposing the law too. They assume that Obama and a Democratic-controlled Congress will produce far less draconian legislation. However, Howard Fineman of Newsweek reports Democratic Congressional leaders have told him that there is no chance the Senate will tackle immigration before the November mid-term elections and possibly not after, despite urging from Senate Majority Leader Harry Reid of Nevada. For its part, the House will not act until the Senate does.

This means if Obama wishes to go beyond rhetoric, his most likely action will be a federal lawsuit. To that end, he has already instructed the Justice Department to complete a review of the law's implications. Lawsuits by various other individuals and organizations are virtually inevitable.

Their potential success is a matter of debate among legal scholars. Kevin Johnson, Dean of the University of California-Davis Law School, believes Arizona and other states cannot grant local law enforcement the power to enforce immigration laws, maintaining the federal government alone has this authority. Johnson also feels litigants could point to violations of their Fourth Amendment protections against unreasonable search and seizure, given the broad authority granted to police in determining whom to question.

In 1982, the U.S. Supreme Court struck down a 1975 Texas state law denying access to public schools for the children of undocumented immigrants. The Court ruled such a law would impose “a lifetime hardship on a discrete class of children not accountable for their disabling status” and “threatens the creation of an underclass of future citizens and residents.”

On the other hand, a narrow five to four vote decided the Texas case at a time when the Court was far less conservative than it is today. Moreover, Gerald Neuman, a Harvard Law School professor, asserts Arizona could make a compelling legal argument that it has overlapping authority to protect its residents.

Apply enough heat and pressure to a melting pot and it becomes a crucible of democracy. This is what is happening in Arizona today. At its best, this nation has used the molten product of such crucibles to make new links for the chains that bind us together as One, making them stronger and longer lasting.

Alas, while its motives may be well-meaning it seems much more likely the new Arizona immigration law is forging a sword instead; one that only serves to drive apart honest, legitimate, cooperative people with every thrust used to combat genuinely illegal activities. Equally sad, Congress is either unable or unwilling to step up to its rightful role in this matter. Obama must now bring down the hammer of federal authority, not to create something admirable and lasting but rather to destroy or at least blunt the edge of a weapon too dangerous to allow one state to wield.

Repealing the Moon

While Understandably Disappointing to Some, Obama Makes the Right Call on Manned Space Exploration

President Obama’s recently announced plan and budget for NASA contains all sorts of goodies for space enthusiasts – nearly $1 billion more in 2011 than what the agency expects to spend in 2010; pledged extra funding to extend the life of the International Space Station through at least 2020; $170 million to replace the Orbiting Carbon Observatory, which was destroyed during a launch failure last year; $3.2 billion for science research grants and missions, including a potential successor to the Hubble Space Telescope; $146 million to support education and public outreach.

For critics, however, the only thing that mattered was Obama’s decision to scrap the Constellation program, with $9 billion already invested, and, along with it, a return to the moon by the U.S. in the next five years, as proposed by former President Bush. Instead, Obama opted for an alternative, known as the “flexible path,” that involves developing technologies for trips beyond Earth orbit but without any definite destinations or timelines.

Obama is not without vision in this area. He predicted the U.S. would develop a rocket capable of going beyond the moon by 2025, land on an asteroid, and send a manned mission into Martian orbit in the mid-2030s. Obama said he firmly believed he would see men land on Mars in his lifetime. His critics predicted the end of our return to the moon was pretty much the end of the world.

The immediate concern is that cancellation of Constellation could lead to potentially thousands of layoffs in the aerospace industry and ravage states that have traditionally been home to major NASA efforts, such as Florida and Texas. However, critics have been quick to stress larger, long-term effects, which they say include weakening national security and America’s prestige as a leader in space.

“This is a crippling blow to America’s human spaceflight program,” declared Republican Representative Pete Olson of Texas. This point of view gained traction when former astronaut Neil Armstrong, the first man to walk on the moon, added his voice to those objecting. Armstrong joined other Apollo era space veterans and former NASA officials in an open letter to the President.

“For the United States, the leading space-faring nation for nearly half a century, to be without carriage to low Earth orbit and with no human exploration capability to go beyond Earth orbit for an indeterminate time into the future, destines our nation to become one of second-rate or even third-rate stature.”

The decision to scrap Constellation came after an independent review, led by former Lockheed Martin CEO Norman Augustine, found the program was so over budget and behind schedule that it would probably never meet all of its objectives.

Obama insists the predicted job losses will not happen. In fact, Obama said his plan would add twenty-five hundred more than jobs to the Cape Canaveral region over the next two years than the Bush plan would have done. He also touted the promise of creating more than ten thousand jobs nationwide in the future by transitioning development of new space technologies to the private sector, using $6 billion from the federal government over the next five years as seed money.

“Nobody is more committed to manned space flight, the human exploration of space, than I am. But we've got to do it in a smart way; we can't keep doing the same old things as before . . . We will actually reach space faster and more often under this new plan, in ways that will help us improve our technological capacity and lower our costs.”

Current NASA Administrator, Charles Bolden, is enthusiastic. “It enables us to draw more strongly on the ingenuity of the commercial sector and create deeper ties with our international partners,” he told reporters.

“It was widely felt [inside and outside NASA] that Constellation was like an unguided missile, ignoring changing circumstances and blindly pushing ahead . . . There are cleverer and better strategies to achieve the same goals,” agrees James Oberg, a former NASA mission controller.

“It is time to get NASA out of driving trucks and back to exploring,” asserts Rick Tumlinson, author of Return to the Moon. “I want them to move on and let the rest of us follow to build new places for humans to live and work, creating new wealth and new hope for future generations . . . This new policy addresses the reasons we weren't able to hold and expand our beachhead on the moon once this feat was accomplished and why, forty plus years later, some of our children believe we never went.”

Although reaction to Obama’s decision among space insiders often split along generational lines, Armstrong’s lunar mission companion, Buzz Aldrin, wrote in the Wall Street Journal, “I think [Obama] made the right call. If we follow the President's plan, our next destination in space, Mars, will be within our reach.”

Yet the critics are adamant the private sector cannot successful take on this role from the federal government. “The President’s announcement, unfortunately, will do nothing to ensure America’s superiority in human space exploration or to decrease our reliance on [other nations] in the interim,” warned Republican Representative Ralph Hall of Texas, the ranking GOP member of the House Science and Technology Committee. Hall promised to propose legislation that would essentially keep Constellation’s Ares rocket program alive at the expense of emerging commercial launch ventures.

This is interesting talk from a man whose Party insists we cannot afford recently passed healthcare reform legislation. Those who say we lack the money in tough economic times to ensure all Americans have insurance seem to feel price is no object when it comes to the patriotic thrill of watching our astronauts bound across the lunar surface or tee up an extraterrestrial golf drive.

I thought Obama’s slow but thoughtful decision-making about troop increases in Afghanistan beat fist-waving whoops of “Bring ‘em on!” Likewise, his more recent decision to balance additional investment in fossil fuels to augment development of alternative “green” energy struck me as superior to shrill cries of “Drill, baby, drill!” In much the same manner, I see Obama’s decision regarding manned space exploration as far more reasonable and practical than the critic’s slippery slope argument that we cannot lead unless we dominate completely.

When choosing the best and most important ways to use government versus when to default to the private sector, I think Obama has his priorities absolutely correct when comparing healthcare to space. The current catchphrase is calling on Congress to "Repeal the bill!" I support repleaing the moon instead. On this, the fortieth anniversary of Earth Day, let us undertake to do something more direct toward the welfare of this planet – not to mention our country and its inhabitants – than taking awesome photos of it from lunar orbit.

Fission versus Fusion

The Bonds of Friendship Formed There May Be the Nuclear Summit’s Greatest Accomplishment

When you are considering things nuclear, a good rule of thumb is that fission is bad and fusion is good. Fission is the process leading to nuclear explosions and global annihilation. Even when contained in a nuclear power plant’s reactor, fission produces radioactive slag that takes millions of years to cool down to safe levels. Fusion, on the other hand, is the process powering every star in the universe, including our sun. Fusion means light, warmth, and countless songs – several of which are decent – about gazing up at starry nights.

Theoretical physicists have had a tough time combining quantum mechanics – which explains how atomic particles and sub-particles interact across very small distances – with Einstein’s theory of general relativity – which explains how larger bodies interact across longer distances. Luckily, that which holds true at the micro-level seems equally applicable at the human and political macro-levels. There is a common set of principles for the infinitesimal and the international. The same rules governing quarks also apply to quorums – although admittedly both appear to be acting randomly.

President Obama hosted an international summit, attended by forty-six world leaders and heads of international organizations, dedicated to the reduction of nuclear material stockpiles. Obama sought to convince others the greatest joint threat facing us is nuclear terrorism.

The summit produced some successes. The group drafted a declaration and work plan that all the attendees signed. Some nations, such as Ukraine, Mexico and Canada, announced their intention to give up highly enriched uranium altogether. The U.S. and Russia just signed a major agreement to dispose of sixty-eight tons of weapons-grade plutonium – enough to build seventeen thousand nuclear warheads.

Yet perhaps the greatest breakthroughs at this summit were the personal friendships that Obama appeared to forge or strengthen with foreign heads of state and senior diplomats.

This is far from an insignificant accomplishment. Although Obama entered office promising to change the “go it alone,” cowboy unilateralism practiced by former President Bush and abhorred by much of the world and although he often drew huge crowds during overseas visits, a sense of unease and disappointment has sometimes suggested itself in his inability to form personal bonds with his counterparts.

In some ways, the usual Obama style was still on display at the summit. The President took on a professorial lecturing tone at times. In other cases, he pushed for participatory inclusion, calling on leaders to speak their thoughts frankly about matters under consideration. He even formally bowed again to Japanese Prime Minister Yukio Hatoyama.

However, he also engaged in more one-on-one physical contact, slapping backs, kissing cheeks, and holding twelve separate private meetings with various leaders. Such personal diplomacy is “quite important,” according to British Foreign Secretary David Miliband.

“When Obama stands up and says ‘My friend Dmitry Medvedev’ or ‘My friend Nicolas Sarkozy,’ he's right, and that's important,” Miliband explained. “He's made a number of friends of world leaders, and I think that's a testament to why so many arrived to take part in this.”

For example, German Chancellor Angela Merkel consented to a kiss on each cheek from Obama at the first meeting. I recall Merkel recoiling and running across a room to escape from Bush when he attempted an impromptu should massage on her at a similar summit.

In fairness, there were some naysayers along this line. Washington Post editor Jackson Diehl noted that, in a seeming snub, President Mikheil Saakashvili of Georgia got no private face time with Obama, despite his loyalty to Obama’s foreign policy, and President Ilham Aliev of Azerbaijan, another ally, did not even receive an invitation to the summit. Diehl wondered if this was a crass attempt by the Administration to ingratiate itself with Russia.

For his part, Charles Krauthammer summarized all the standard criticisms of the event. He griped that how to deal with (potential) nuclear rogue nations, such as North Korea, Iran, and – per Krauthammer – Pakistan, was not even on the table. He fussed at the lack of talk about punishing Syria, which has supplied Scud missiles to Hezbollah. He scoffed that the summit’s mandates are non-binding and voluntary.

Yet after his private meeting with Obama, Chinese President Hu Jintao used the word “sanctions” for the first time when discussing how to deal with Iran’s nuclear program. Obama said Hu had assured him that China would participate in drafting sessions at the United Nations on strong sanctions against Iran. Chinese Vice-Foreign Minister Cui Tiankai later agreed that while China prefers diplomatic solutions, it is “open to ideas” on other ways to deal with Iran.

During his address to the summit, Obama pointed out that while the U.S. is ready to assume leadership in nuclear security, we neither want nor are able to be the sole, unilateral police force for the world on this issue. In the end, all nations must voluntarily cooperate to the extent that they genuinely wish to protect the safety of their citizens from terrorist attacks.

Obama endorsed a suggestion by French President Nicolas Sarkozy to create an international court that would try states providing nuclear technology or materials to terrorist organizations, saying it merited further consideration. Interestingly, I suspect those most vocal about criticizing the “non-binding” nature of this summit would also object most loudly were such a court to demand U.S. citizen(s) turned over to their jurisdiction, if discovered at such activities.

An anonymous European diplomat may have summed it up best when he spoke with reporters about Obama’s role at the summit. “I mean, he did get forty-six leaders to Washington on a boring issue. That's pretty good.”

Diehl’s and Krauthammer’s colleague, David Broder, posits, “The Obama Presidency will be an era of substantial but deferred accomplishments” and welcomes having “a President whose vision extends beyond the duration of his own term of office.”

He notes, however, that such an approach is not without risks. “For a nation whose culture has produced a psychology demanding instant gratification, this politics of deferred satisfaction is something not easily learned.” Obama’s rapid rise to power is symptomatic of the very thing his goals and governing style seeks to transform. Broder worries that Obama “could be cut off by the voters before any of his hopes are realized.”

Regardless of this, Obama is demonstrating he possesses the innate abilities and is learning the skills necessary to bring about real change, if given the chance. This is a positive sign. Quantum mechanics demonstrates that miniscule changes on very small scales can have profound impacts on the larger universe. I hope this will be the case for Obama when it comes to nuclear security and his Presidency as a whole.

Quantum mechanics also teaches that the mere observation of an event is sufficient to change its outcome. Crap! I hope I didn’t just blow it for him.

Even Stevens

Another Liberal Pick for Obama But Not an Easy One

When retired Justice Souter decided to leave the Supreme Court last year, everyone assumed President Obama would not face a big political fight in naming his replacement. While no one doubted Obama would pick a liberal jurist, Souter was also a liberal. Thus, the Court’s all-important ideological balance was not at stake.

The Senate confirmed Obama’s pick to replace Souter, federal judge Sonia Sotomayor, and did so relatively quickly. Yet her confirmation process led to a surprisingly wide and vociferous amount of criticism. Although the bulk of her decisions demonstrated no worse than left of center jurisprudence, conservatives seized upon one decision overturned by the Supreme Court and several out-of-context provocative remarks made at speaking engagements to present Sotomayor as a wild eyed, far left liberal, out to disembowel the Constitution.

Her recommendation by the Senate Judiciary Committee received only one Republican vote. Her final confirmation by the full Senate (68 to 31) garnered only nine Republican votes. If Obama would not give them an uber-liberal candidate, the GOP was determined to spin that candidate to show how “dangerous” the new President could be.

What is more, all this protest came when Obama’s approval ratings were high. All came before healthcare reform legislation drove Republican Congressional leaders into fits of apoplectic dissent and caused Senator John McCain of Arizona to declare the President could expect nothing but opposition for the rest of this year.

Thus, one can only wonder what difficulties Obama may face in naming an acceptable replacement for Justice John Paul Stevens, the Court’s oldest member, who announced his retirement last Friday. Like Souter, Stevens is unquestionably liberal, so an Obama pick will not shift the Court’s balance. Nonetheless, the task before Obama is fraught with difficulties.

Announcing what he would look for in a nominee, Obama declared, “I'll seek someone in the coming weeks with . . . an independent mind, a record of excellence and integrity, a fierce dedication to the rule of law and a keen understanding of how the law affects the daily lives of the American people. It will also be someone who, like Justice Stevens, knows that in democracy powerful interests must not be allowed to drown out the voices of ordinary citizens.”

Several of those qualities are fighting words for conservatives. Senate Minority Leader Mitch McConnell of Kentucky has already warned, “Americans can expect Senate Republicans to make a sustained and vigorous case for judicial restraint and the fundamental importance of an evenhanded reading of the law.”

Presumably, McConnell is seeking to curb judicial activism in the manner practiced by the liberal Warren Court of yesteryear, as opposed to . . . oh, say . . . the conservative Roberts Court of today. Conservatives continue to deem judicial activism a uniquely liberal tendency. Their claims carry less and less weight in light of a string of Supreme Court decisions over the past decade but they make them just as loudly and assertively.

In looking for qualities that Obama should continue in a replacement Justice, many have mentioned that Stevens is liberal, that he is the only former veteran currently serving on the Court, and that he is its only remaining Protestant. Yet, as the Washington Post’s Harold Meyerson points out, these factors pale in comparison to Steven’s role as the “lead opposition to the galloping judicial overreach of the Court’s conservatives.”

In many important cases – perhaps best known are Bush v. Gore and, more recently, Citizens United v. Federal Election Commission – Stevens’s scholarly but blistering dissents have been as noteworthy as the Court’s majority opinion.

Susan Estrich, a prominent Los Angeles attorney who clerked for Stevens in the late 1970s relates a recent conservation she had with her old boss in which she noted he seemed to have become both more liberal and more intransigent in forging compromises/alliances over his tenure. She asked him why he had changed. Stevens wearily replied he had not changed at all – the Court had changed.

What a replacement for Stevens really needs is not necessarily a loyal liberal voice so much as the intimidating intellect and prolific writing skills that Stevens always embodied. Someone who can conceivably forge coalitions with the liberal Justices as well as Justice Kennedy, the Court’s swing vote, to stand against Chief Justice Roberts and the conservative junta of Justices Scalia, Alito, and Thomas.

Yet that requirement may be tough to meet in a world where conservatives have redefined moderates as the new progressives. When Republican Senator Orrin Hatch of Utah declares, “I have hopes that President Obama will at least try to appoint somebody who will get a huge bipartisan vote,” that is conservative code for “no liberals need apply.”

If Obama is truly interested in appeasing Republicans after healthcare reform, this mandate cuts out a number of the most intellectually brilliant possibilities to replace Stevens, such as Stephen Carter, Jonathan Turley, Harold Koh, Charles Ogletree, Leah Ward Sears, Laurence Tribe, and Cass Sunstein. Although the White House strongly denies it, the conventional wisdom among pundits is that Obama is already down to a “B List” of three, consisting of U.S. Solicitor General Elena Kagan as well as federal judges Diane Wood and Merrick Garland.

Court watchers have long guessed the Obama Administration is grooming Kagan as an eventual nominee. The two most likely objections to be raised about her are her complete lack of judicial experience – although some, including Obama it is said, see this as more advantage than liability – and her sympathy towards gays serving in the military. On the other hand, the White House already knows she can pass a Senate confirmation. The thirty-one Republican Senators who opposed her for Solicitor General are no more than those who voted against Justice Sotomayor.

Everyone agrees Wood would face the most contentious confirmation hearings. As the National Review declares, “No judge . . . is more extreme than Wood on abortion.” Two of her rulings have been sufficiently defiant of any abortion restrictions as reasonable to earn her crushing overturns from the Supreme Court. Conservatives are sure to use this to brand Wood an activist judge, much as they did with Sotomayor. On the plus side, Wood is in harmony with Obama on many important issues and she is acceptable to his liberal base.

Garland is the surprising locus in this particular triangle. Respected and liked by all, his personality is nonetheless somewhat unassuming and even bland. Most classify him as a moderate versus a liberal in his jurisprudence, making him the popular choice among Republicans. Many see this as the most likely reason for his sudden rise to prominence among the candidates. However, Obama’s liberal base might revolt at his selection. Replacing a solid liberal like Stevens with a moderate strikes them as still another movement of the Court to the right, albeit a minor twitch.

Of course, much of what analysts are saying about Garland today was applied to Stevens himself when former President Ford nominated him. After the controversy of his pardon for Richard Nixon, Ford was desperate for a respected but inconspicuous nominee to buoy his approval ratings or at least halt their sinking.

Obama has been throwing his share of bones to Republicans of late but always on his own terms. What is more, he is more likely to risk a short-term political fight in an already hostile environment over something with as lasting an impact to his legacy as a Supreme Court pick. I expect Garland will be held in reserve and offered only if Democratic Senators prove too reticent to risk their election chances over further Republican charges of being “out of touch” with voters.

Obama may even dare to reach back up to his “A List” of candidates in order to assure a strong intellect/personality to match liberal judicial views. Given Steven’s important role on the Court, this could end up of paramount importance. Whatever Obama’s final decision, rather than a slam-dunk it seems replacing a liberal with a liberal proves a thorny problem when it comes to Supreme Court Justices – even Stevens.

Bully Pulpit

The Tragic Case of Phoebe Prince Demands a Strong Response

It is time to preach an old-fashioned sermon about bullying. Studies suggest that bullying in schools happens once every seven minutes on playgrounds and once every twenty-five minutes in class. A study funded by the U.S. Justice Department announced on March 1 that the percentage of children who reporting physical bullying over the past year had declined from nearly twenty-two percent in 2003 to under fifteen percent in 2008.

This is good news yet it stands in ironic contrast to stories like those of Phoebe Prince, a fifteen year-old high school student who committed suicide this past January after enduring three months of unrelenting stalking and harassment by a group of nine fellow students in the town of South Hadley Massachusetts. Her case is far from unique.

Individuals subjected to persistent abusive behavior, such as bullying, frequently suffer from long term emotional and behavioral problems, including loneliness, depression, anxiety, low self-esteem, increased susceptibility to illness, and sometimes suicide, according to Mona O’Moore of the Anti-Bullying Centre at Trinity College in Dublin. An estimated fifteen to twenty-five children commit suicide every year in Great Britain due to bullying.

Most of the bullying experienced by Prince occurred on school grounds – directly in front of a faculty member who neither intervened nor reported it, in at least one case. The victim’s mother also had alerted administrators to the problem. The natural response, in such cases, is to blame the school and seek punishment for the adults running it.

This is perfectly valid, in my opinion, if only because it produces results. Marlene Snyder of Clemson University’s Institute on Family and Neighborhood Life notes that anti-bullying programs are most effective “in schools where adults really understand how detrimental this conduct can be and have made a conscious effort to bring these numbers down.” A 1995 study published in Education Canada found that schools where administrators were committed to addressing the problem cut bullying in half.

However, there are instances when holding schools culpable does not go far enough. When truly severe bullying has occurred, punishment must include the bullies themselves, even if they are “children.”

There is a tendency to view bullying as normal, youthful high jinks – with responsibility for preventing such behaviors from getting out of hand resting entirely with supervising adults. This is due to several common misconceptions about bullying and bullies.

First, there is the myth that bullies attempt to dominate others because they secretly feel ashamed, inadequate, and/or insecure. Extensive studies published in the Journal of Interpersonal Violence and School Psychology Review failed to identify a characteristic profile for bullies. While some do suffer from low self-esteem, others are genuinely arrogant and narcissistic, with prejudicial views of their victims, and still others bully out of envy and resentment toward victims.

Whatever their motivation, bullies consistently feel little empathy for their victims and show little remorse about bullying.

The second myth is the bully as a person who favors brute force to solve problems or get their way because they possess limited intelligence. René Veenstra, a Sociology Professor at the University of Groningen in the Netherlands, just completed an extensive study, published in the journal Child Development, that found bullies shrewdly target socially awkward victims who are unpopular in the bully’s own peer group. This not only helps ensure the bully remains in the group’s favor but also decreases the likelihood bystanders defend victims or report the bullying.

In short, bullies are smart enough to avoid detection by turning peers into enablers without them realizing it.

A third myth portrays the bully as a larger, older child who physically pounds on their younger, smaller victims – detectable/observable with relative ease by adults. In fact, bullying is essentially a secret crime. One study found teachers detected and intervened in only four percent of the bullying incidents observed by researchers. Bystanders and the victims themselves usually keep quiet, either out of fear of revenge by the bully, fear of peer disapproval, or the belief that adults cannot help them.

Moreover, physical bullying becomes less common the older children become. Among teens, bullying more often takes the form of verbal and emotional abuse, including passive but devastating acts of exclusion, such as shunning.

All of these myths factored into the case of Phoebe Prince. She was a new student at South Hadley, not to mention a recent immigrant from Ireland, but her problems really only began when she had brief sexual encounters with two popular senior boys, one of whom was a star on the school football team.

Whether she broke up with them or they with her is inconsequential to what resulted. However, it is unsurprising the ringleaders of the group that tormented her to suicide consisted of these two boys and their girlfriends. Prince lost her life because she ran afoul of the wrong clique.

The abuse she suffered in response from them was systematic and prolonged. It was beyond teasing and insults, beyond “normal girl drama,” beyond even cruelty. Prince regularly suffered threats and acts of violence against her. It was the work of thugs.

Elizabeth Scheibel, the local District Attorney, came to the same conclusion. Rather than focus on school authorities, whose inaction she deemed “troublesome but not criminal,” Scheibel went after the bullies themselves. She has charged the teens involved with felonies carrying stiff penalties.

The two boys face statutory rape charges. Although authorities presume the sex between them and Prince was consensual, they were both over sixteen while she was under sixteen and this is all that is required under Massachusetts law. They, their girlfriends, and two other girls also face charges of “violation of civil rights, with bodily injury resulting.” Three other, younger girls face lesser delinquency charges.

Some in South Hadley applaud these moves but many others are vociferous in their dissent. While they support efforts to prevent further bullying, they do not wish to see blame assigned for Prince’s death.

It is only natural that parents would wish to protect their children from prosecution as well as family and friends supporting them in that effort. Other parents may join them because they fear the same thing happening only too easily to their own children. Other citizens of South Hadley may enter in simply out of civic pride, hating to see their town and schools demonized.

It is natural but unacceptable. Middle class, heartland America must own up to the ugliness that lies within all of us, even our children. Nobody wants to see a young person’s future ruined but the teens that drove Prince to her death were already living ruined lives – punishment and other interventions by society are their only hope of getting their lives back. The life of their victim is beyond recall.

As a parent, I have told my own children not to let bullies draw them into their pointless cycles of violence. I urge them instead to tell me or their teachers or some other adult about what is happening. The trust this requires on their part commands that we take some actions beyond apologizing away anti-social behavior and those who commit it. Just because we should not raise our fists in retribution as individuals does not mean we cannot punish when acting as a group.

District Attorney Scheibel is herself a product of South Hadley. A longtime friend remembered to Emily Bazelon of Slate magazine how, as a child, Scheibel once beat up a bully who was picking on her younger brother. Sadly, sometimes the only way to deal with aggression is to shove back. The trick is to make sure the right individuals are doing the shoving. We need more laws like Massachusetts’s anti-bullying laws and more prosecutors like Scheibel who are unafraid to use them.