OPINION: The California Supreme Court Properly Decided the Case Involving Homosexual Marriage.

First published by BlogCritics, on 2 June 2009

The recent California Decision on homosexual marriage has little to do with homosexual marriage.

One of my former law partners was fond of saying, "we can argue about it or we can look it up." That notion applies to an evaluation of the California Supreme Court decision on Proposition 8: it is quite useful, in evaluating any court decision, to read or otherwise become reasonably familiar with what the court actually said.

There has recently been lots of discussion -- ostensibly related to the California case -- about whether homosexual marriage is a good or a bad thing. For whatever,  if anything, my opinion is worth, that sort of discussion serves a useful purpose, even if it has very little to do with the court case under discussion. There has been rather less discussion about California's Constitutional procedures, under which some ballot propositions may lawfully change the California Constitution and under which others may not. I think such discussion is also salutary, particularly in the context of the California case.

Here, the California Supreme Court was not faced with any questions about the goodness or badness of homosexual marriage; nor was it called upon to decide whether the procedures for Constitutional changes mandated by the California Constitution are good or bad. It had only one real question to resolve:

When Proposition 8 added Section 7.5 to the California Constitution providing that "Only marriage between a man and a woman is valid or recognized in California" did the measure, by virtue of the manner in which it was adopted, "constitute . . . a Constitutionally permissible change to the California Constitution."

The California Supreme Court did not attempt to offer opinions about whether marriage other than between a man and a woman is good or bad, socially acceptable, should be socially acceptable or anything else of that sort. Nor did the Court even remotely approach this possibly interesting question: Despite the new Constitutional provision, would California recognize a marriage between a gay man and a lesbian woman? Even if publicly and openly homosexual, they would still be a man and a woman. The issue was not presented, and there was little if any reason for the Court to consider it, if for no other reason than that the answer is obvious: such a union would be considered a marriage.

The Court said,

First, as explained in the Marriage Cases . . . our task in the present proceeding is not to determine whether the provision at issue is wise or sound as a matter of policy or whether we, as individuals, believe it should be a part of the California Constitution. Regardless of our views as individuals on this question of policy, we recognize as judges and as a court our responsibility to confine our consideration to a determination of the constitutional validity and legal effect of the measure in question. It bears emphasis in this regard that our role is limited to interpreting and applying the principles and rules embodied in the California Constitution, setting aside our own personal beliefs and values.

***

[T]he principal issue before us concerns the scope of the right of the people, under the provisions of the California Constitution, to change or alter the state Constitution itself through the initiative process so as to incorporate such a limitation as an explicit section of the state Constitution. . . . [The California Constitution] provides that once an amendment is proposed by either [of two defined] means, the amendment becomes part of the state Constitution if it is approved by a simple majority of the voters who cast votes on the measure at a statewide election. (Id., art. XVIII, § 4.)*

Previously, the California Supreme Court had invalidated a statute adopted by referendum. That statute purported to create a California statute defining marriage as only between a man and a woman; it did not purport to change the California Constitution, into which the Court had imported a right to marriage. Since the statute was inconsistent with the California Constitution as interpreted, the Court invalidated the statute. Proposition 8, unlike the earlier proposition, involved an amendment to the California Constitution. Like it or not, the difference is critical under California law; that may seem silly or perverse, but unless the procedures for amending the California Constitution are changed -- not by the Court but via the procedures provided for by the California Constitution itself -- that's where matters now stand and must stand.

All or most of the Californians who voted in favor of Proposition 8 may have been simple minded, bigoted perverts who hate homosexuals with a burning passion and were seized with an uncontrollable desire to harm them because to do so would enhance their own feelings of moral superiority. Interesting thoughts, perhaps, and arguably of some sociological significance; totally irrelevant, however, in the context in which the California Court rendered its decision.

There was no question whether an "amendment" had been properly proposed in Proposition 8. Hence, the question before the Court was whether it was actually an "amendment" as it purported to be or, instead, a "revision." Proposition 8, by virtue of the manner of its adoption, could "amend," but not "revise" the Constitution; the procedures for "revision" of the California Constitution are far more onerous than for a mere "amendment." (As noted by the Court, the California Constitution, ratified in 1879, has been amended more than five hundred times; the U.S. Constitution, ratified in 1788, has been amended only twenty-seven times. One likely reason for this is that the California Constitution is far easier to amend than is the U.S. Constitution.)

The amendment -- revision distinction, perhaps unique to California, goes far beyond mere semantics, and there was little if any valid basis for ruling other than as the Court did: that Proposition 8 involved merely an "amendment." Reviewing years of history and of judicial precedent, it was clear to the Court that an "amendment" is something which does not fundamentally change the form of Government; a "revision" is something which does. Under the Court's history and precedent-based analysis, it was clear that a definition characterizing some but fewer than all unions as "marriage" did not fundamentally change California's form of Government.

No questions of whether the California Constitution's provisions for changing it are silly or should be revised were before the Court. The Court had no authority to answer such questions, because it was bound by the California Constitution, and had no basis for considering such matters. Judges are not appointed to be philosopher kings, with the task of ruling a State or country as they wish; instead, they have quite circumscribed functions; they must not attempt to usurp the functions of the Legislative or Executive branches, or (as here) of the people, obnoxious though they may well be.

This case is significant in connection with the confirmation of Judge Sotomayor as a United States Supreme Court justice. I strongly suspect, but obviously do not know, that were Judge Sotomayor a California voter, she would have voted against Proposition 8. I also strongly suspect that, had she been a member of the California Supreme Court, she would have joined in upholding the Constitutional amendment embodied in Proposition 8, and that she would have done so regardless of her personal feelings about the rights of homosexuals. It is quite possible to to be strongly opposed to a law, as stupid or unfair, while simultaneously deeming it Constitutional. The ability of a judge to uphold a law which he finds personally obnoxious, or to strike down one even though he finds it pleasing, is highly important to our system of law. For a judge to put his personal feelings above his judicial obligations is anathema.

The California Supreme Court did not attempt to resolve any questions under the United States Constitution; such questions were not before it, and it could not have provided the ultimate answers in any event. I very strongly suspect that the U.S. Supreme Court will eventually have to decide these questions. At first glance, they probably include:

What might be the impact of the full faith and credit provisions of the U.S. Constitution, under which each State must generally give full faith and credit to the lawful actions of every other state? Is a marriage between (or among) homosexuals, recognized in Massachusetts, required to be recognized in California? Under the California Court's decision and the California Constitution as amended, it is not to be recognized.

Is any Federal right, properly applicable to actions by States under the Fourteenth Amendment, impermissibly abridged by the California Constitution as amended? This is a real bear of a question, and possibly raises the question of whether the Federal Government must itself recognize homosexual marriages for tax, social security and other purposes. Must it do so at all, or only for residents of States where homosexual marriage are recognized? Or must it do so for all homosexual unions, regardless of State recognition, to prevent an unconstitutional inequality as between its treatments of some "marriages" and others? These are questions looking for an answer.

There are probably other related questions which the U.S. Supreme Court will eventually be called upon to consider.


______________________________
*A substantial majority of the California Supreme Court agreed with the decision, each in his own words and each in his own way. Chief Justice George wrote the Court's opinion. Justices Kennard, Baxter, Chin and Corrigan filed separate concurrences, without offering any words explaining why they did so or in what respect(s) they may have disagreed with the Opinion. Justices Kennard and Werdegar filed separate concurrences disagreeing with some of the reasoning in Justice George's opinion, but agreeing with the result. Judge Moreno filed a concurring and dissenting opinion, disagreeing with most of the Court's reasoning and, except in one respect, with the result. Hence, there were six justices in the majority, and one not. In the Court's earlier marriage case, finding that the statute adopted through the referendum process violated the California Constitution as it then existed, Chief Justice George wrote the Court's opinion, in which Justices Kennard, Werdegar and Moreno concurred. Justice Baxter concurred part and dissented in part, along with Justices Chin. Justice Corrigan dissented in major respects.

Further Reflections on the Nomination of Judge Sotomayor to the U.S. Supreme Court

First published by BlogCritics on 28 May 2009

I hope that were I in President Obama's position, I would not allow questions of gender or ethnicity to sway my decision on whom to nominate to the Supreme Court. Fortunately for all concerned, I am not in his position and never shall be. This is not the first, and will most likely not be the last, instance in which gender and ethnicity were or will be significant factors. That does not make it right, but that's the way it is. Nor does past practice mean that a President must consider gender or ethnicity; that is a political question, an area in which he, ultimately, is the boss. Whether the Senate confirms or rejects a nominee is also a political question, and in that area the Senate is the boss.

Something quite different is true of judicial precedents.  As noted below, they demand adherence, and those established by superior courts must not be brushed off by inferior courts.

There are legitimate concerns about the nomination of Judge Sotomayor, and some which I consider ill considered. It seems unwise for those who oppose her to focus on grounds easily rejected. It would be far more useful to focus on questions of her judicial philosophy in a non-case-specific context, and on how that philosophy may affect her conduct as a Supreme Court justice.

I am particularly troubled by her unfortunate comment a few years ago that

"I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion . . . than a white male who hasn't lived that life."

I don't have any unique insight into what she may have meant, and I hope that she will be questioned during the Senate confirmation hearing until what she meant, and how it might affect her conduct as a Supreme Court justice, are clear. I doubt that she was merely saying that she hoped that a "wise Latina" would more often than not reach a better conclusion than a "white male" who had not been raised as an Hispanic on how best to prepare pollo asado. In the unlikely event that that is all she meant, her hope has been confirmed by my personal experiences; I can't prepare pollo asado worth a hoot.  However, it seems very likely that Judge Sotomayor meant a lot more there and in other statements, and I hope to find out what. Depending on what what is, it may well impact unfavorably (or favorably) on whether she should be confirmed.

Beyond that La Raza speech, there has some "buzz" about two Second Circuit decisions in which she joined her two colleagues on the panels but which she did not write. One is said to suggest that she does not value freedom of speech highly, and the other that she opposes the right to bear arms. My take is rather different. Both cases, regardless of whether she was involved in writing the opinions, show a steadfast adherence to precedent, which in my view is not only acceptable but absolutely necessary for a judge.  I shall attempt to support this thesis below, even though it involves unfortunately lengthy quotations from legal opinions which are, necessarily, somewhat complex.

In a per curiam (unsigned) opinion in Maloney v. Cuomo, (2d Cir. 2008) it was held that the Fourteenth Amendment to the United States Constitution could not, consistently with express Supreme Court decisions on the matter, be used to render a New York State Statute prohibiting the possession of nunchakus violative of the Second Amendment. The opinion notes,

The Second Amendment provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." U.S. Const. amend. II. The Supreme Court recently held that this confers an individual right on citizens to keep and bear arms. See District of Columbia v. Heller, 128 S. Ct. 2783, 2799 (2008). It is settled law, however, that the Second Amendment applies only to limitations the federal government seeks to impose on this right. See, e.g., Presser v. Illinois, 116 U.S. 252, 265 (1886) (stating that the Second Amendment "is a limitation only upon the power of congress and the national government, and not upon that of the state"); Bach v. Pataki, 408 F.3d 75, 84, 86 (2d Cir. 2005) (holding "that the Second Amendment's 'right to keep and bear arms' imposes a limitation on only federal, not state, legislative efforts" and noting that this outcome was compelled by Presser), cert. denied, 546 U.S. 1174 (2006).

Heller, a case involving a challenge to the District of Columbia’s general prohibition on handguns, does not invalidate this longstanding principle. See Heller, 128 S. Ct. at 2813 n.23 (noting that the case did not present the question of whether the Second Amendment applies to the states). And to the extent that Heller might be read to question the continuing validity of this principle, we "must follow Presser" because "[w]here, as here, a Supreme Court precedent 'has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to the Supreme Court the prerogative of overruling its own decisions.'" Bach, 408 F.3d at 86 (quoting Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989)) (alteration marks omitted); see also State Oil Co. v. Khan, 522 U.S. 3, 20 (1997). (emphasis added)

Hence, the Second Circuit per curiam opinion faithfully applied precedent established by an earlier Second Circuit decision as well as by the Supreme Court, properly leaving it to the Supreme Court itself to clean up whatever pig's breakfast the Supreme Court may have made of the Second - Fourteenth Amendment interaction in Heller.

Doninger v. Niehoff is a Second Circuit decision in which Judge Sotomayor participated as a member of the three judge panel. The opinion was written by another judge. There, it was held that the trial judge had acted within his discretion in refusing injunctive relief against a school district where a student had been denied an opportunity to become class secretary on account of unseemly language (referring to a school administrator as a "douchbag" and asking others to communicate on the subject with the administrator so as to "piss her off more") in a blog commenting on the actions taken by her school in delaying or canceling a concert, as well as due to other alleged misbehavior.

It has long been held that public school students have less in the way of First Amendment rights than do adults, and that their speech can be constricted where necessary or appropriate to preserve decorum and a proper learning atmosphere in those schools. Here, the trial judge decided that the student's conduct did disrupt, or could have disrupted, school activities.

Although I think the trial judge may have gone overboard, that does not mean that he abused his discretion. The Second Circuit opinion set forth the standard as follows:

We review the denial of a preliminary injunction for abuse of discretion. Id. at 24. Because Doninger seeks the vindication of First Amendment rights, however, "subject to the provision of Federal Rule of Civil Procedure 52(a) that '[f]indings of fact . . . shall not be set aside unless clearly erroneous,' we . . . make a fresh examination of crucial facts" and independently examine the record to do so.

During that process, the Second Circuit

assume[d] for the purposes of this appeal that Doninger met her burden of showing irreparable harm and proceed[ed] to address whether she also demonstrated a clear or substantial likelihood of success on the merits.

Then, the Court recited the substantive standards mandated by precedent:

[C]onstitutional rights of students in public school "are not automatically coextensive with the rights of adults in other settings," Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682 (1986), but must instead be applied in a manner consistent with the “special characteristics of the school environment," Tinker, 393 U.S. at 506. Thus, school administrators may prohibit student expression that will "materially and substantially disrupt the work and discipline of the school." Id. at 513. Vulgar or offensive speech — speech that an adult making a political point might have a constitutional right to employ — may legitimately give rise to disciplinary action by a school, given the school’s responsibility for "teaching students the boundaries of socially appropriate behavior." Fraser, 478 U.S. at 681. Similarly, so long as their actions are "reasonably related to legitimate pedagogical concerns," educators are entitled to exercise editorial control over school-sponsored expressive activities such as school publications or theatrical productions. Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988). Such controls "assure that participants learn whatever lessons the activity is designed to teach, that readers or listeners are not exposed to material that may be inappropriate for their level of maturity, and that the views of the individual speaker are not erroneously attributed to the school." Id. at 271. Finally, given the special nature of the school environment and the “serious and palpable” dangers posed by student drug abuse, public schools may also "take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use." Morse v. Frederick, 551 U.S. —, 127 S. Ct. 2618, 2622, 2629 (2007).

However, some of the student's relevant activities were via an internet connection at her home, from which she posted the offending blog. This was somewhat troubling to the Second Circuit, but in reliance on prior cases, it decided that

Applying the framework set forth in Wisniewski, the record amply supports the district court’s conclusion that it was reasonably foreseeable that Avery’s posting would reach school
property. Indeed, the district court found that her posting, although created off-campus, "was purposely designed by Avery to come onto the campus." Doninger, 514 F. Supp. 2d at 216. The blog posting directly pertained to events at LMHS, and Avery’s intent in writing it was specifically "to encourage her fellow students to read and respond." Id. at 206. As the district court found, "Avery knew other LMHS community members were likely to read [her posting]." Id. at 217. Several . . .[did] reach school administrators. See Wisniewski, 494 F.3d at 39. The district court thus correctly determined that in these circumstances, "it was reasonably foreseeable that other LMHS students would view the blog and that school administrators would become aware of it." Doninger, 515 F. Supp. 2d at 217.

In affirming the lower court's opinion, the Second Circuit noted:

Avery, by all reports, is a respected and accomplished student at LMHS. We are sympathetic to her disappointment at being disqualified from running for Senior Class Secretary and acknowledge her belief that in this case, "the punishment did not fit the crime." Doninger, 514 F. Supp. 2d at 202 (internal quotation marks omitted). We are not called upon, however, to decide whether the school officials in this case exercised their discretion wisely. Local school authorities have the difficult task
of teaching "the shared values of a civilized social order" — values that include our veneration of free expression and civility, the importance we place on the right of dissent and on proper respect for authority. Fraser, 478 U.S. at 683. Educators will inevitably make mistakes in carrying out this delicate responsibility. Nevertheless, as the Supreme Court cautioned years ago, "[t]he system of public education that has evolved in this Nation relies necessarily upon the discretion and judgment of school administrators and school board members," and we are not authorized to intervene absent “violations of specific constitutional guarantees." Wood v. Strickland, 420 U.S. 308, 326 (1975).

The decision followed precedent, and the judges did what they had to do; they may not have been overjoyed with the result, but could not legitimately change it.

There are aspects of Judge Sotomayor's judicial persona which concern me. The beliefs which she expressed in the La Raza speech are among those concerns. However, I have thus far found no case in which she allowed her emotions, or her "empathy," to prevail over the law or the facts. It strikes me that her judicial persona, as suggested by these two Second Circuit opinions, has not been successfully diminished.

Afterthought re 26 May 2009 Sotomayor Article

Afterthoughts

I began to write this article very shortly after reading early this morning that, according to the usual suspects, President Obama had selected Judge Sotomayor as his nominee to fill a vacancy on the Supreme Court. Unfamiliar with her record as a judge, I did such background research as I could in several hours, knowing that before my article had been published, there would be numerous others. I expected that some would be enthusiastically in favor of her nomination, that there would be others wildly opposed to it, and that there would be some which could be characterized as offering a sigh of relief which sounded rather like "ho hum" -- pretty much the view I expressed.

I was right. Unfortunately, most of the more exciting articles I read seem to reflect little understanding about how courts and judges function or about about how they should function. That bothers me. I have been in hospital operating rooms only twice (as far as I know) and then under anaesthesia most of the time. Could I reliably critique a surgeon based on something he may have said at a cocktail party or during a speech to a general audience? Based on the extent to which his social views and mine are at odds? Seems unlikely.

According to an article in the National Review -- a publication which I often find well worth reading,

In introducing Sotomayor, Obama said he valued "a rigorous intellect" and "a recognition of the limits of the judicial role," before pronouncing them both "insufficient." A justice must have been tested "by hardship and misfortune," Obama stipulated, so that he has "a common touch and a sense of compassion."

It’s as if he wants a justice who can break the tension in an oral argument about the intricacies of antitrust law with engaging sports banter. The "Would you want to have a beer with him?" test reasonably applies to a politician, but to a black-robed justice charged with interpreting the Constitution? Justice Clarence Thomas is delightful company. Does that make his opinions any better or worse?

That's silly. There is hardly time during an oral argument for anyone to engage in sports banter, and I have known quite adequate judges with whom I would have enjoyed having a beer and quite inadequate judges with whom having a beer would have been, well, "torture." Rush Limbaugh's comments appear to be even further off the mark. I very rarely listen to Mr. Limbaugh, but occasionally read some of his stuff. Sometimes, it amuses me and sometimes I agree with his basic views. Not this time.

Another writer, discussing the Ricci case, said:

In a background briefing at the White House this morning, Senior Administration Officials gave clues as to how they'll handle attacks based on this case. During her vetting, White House officials were very careful to avoid asking her about the Ricci case because, depending on both the Supreme Court's actions and her confirmation, it might end up before her again, one official told reporters.

It seems very unlikely that she will participate in a future Supreme Court decision on the same matter, since (a) the Supreme Court will more than likely decide the Ricci case before Judge Sotomayor could possibly be seated on the Court and (b) if not, she would almost certainly recuse herself.

I don't much care whether Judge Sotomayor is Hispanic, Oriental, Black, White, female, male, Democrat, Republican, liberal, conservative, Roman Catholic, Protestant, Agnostic, Atheist, lesbian, from a well-off WASP family, put herself through college and law school unassisted by her parents, or whether she is "pro-choice" or "pro-life." Nor do I much care whether I agree with her perceptions of life, the universe and everything. Nor do I much care whether, if I were the President, I would have chosen someone quite different; I probably would have. We have a President, for whom I do not much care; he made his selection as was his function and, at this point, I can find no valid basis for the Senate to refuse to confirm it.

Dan(Miller)

The Envelope, Please . . . The Supreme Court Nominee is. . . Good Grief!

First published by BlogCritics on 26 May 2009

It was announced today (26 May 2009) that President Obama's nominee for the U.S. Supreme Court is Judge Sonia Sotomayor, who has been a judge on the prestigious U.S. Court of Appeals for the Second Circuit since 1998 (nominated by President Clinton). Before that, she had been a judge on the also prestigious U.S. District Court for the Southern District of New York since 1992 (nominated by President Bush the elder). Judge Sotomayor is an Hispanic, from the Bronx, and appears to be a "moderate" -- whatever that word means. She is, in any event, Constitutionally qualified (there being no Constitutional qualifications whatever), has ample judicial experience, and whether I or anyone else may agree or disagree with some of the opinions she wrote while on the Court of Appeals, her nomination to the Court should be accepted by the Senate, unless something unforeseen comes to light. The question for the Senate to answer is not whether someone else would have been a superior nominee. There are quite likely many others with whom I personally would feel a greater affinity (or, perhaps, "empathy"). Senate Republicans have said that they intend to deal with her nomination fairly, and I anticipate that they will do so. I trust that the Democratic Senators will do so as well.

According to an opinion piece in the New Republic, picked up by NPR, Judge Sotomayor is not the brightest star in the firmament. The author of that article states,

Over the past few weeks, I've been talking to a range of people who have worked with her, nearly all of them former law clerks for other judges on the Second Circuit or former federal prosecutors in New York. Most are Democrats and all of them want President Obama to appoint a judicial star of the highest intellectual caliber who has the potential to change the direction of the court. Nearly all of them acknowledged that Sotomayor is a presumptive front-runner, but nearly none of them raved about her. They expressed questions about her temperament, her judicial craftsmanship, and most of all, her ability to provide an intellectual counterweight to the conservative justices, as well as a clear liberal alternative.

The most consistent concern was that Sotomayor, although an able lawyer, was "not that smart and kind of a bully on the bench," as one former Second Circuit clerk for another judge put it. "She has an inflated opinion of herself, and is domineering during oral arguments, but her questions aren't penetrating and don't get to the heart of the issue." (During one argument, an elderly judicial colleague is said to have leaned over and said, "Will you please stop talking and let them talk?") Second Circuit judge Jose Cabranes, who would later become her colleague, put this point more charitably in a 1995 interview with The New York Times: "She is not intimidated or overwhelmed by the eminence or power or prestige of any party, or indeed of the media."

Her opinions, although competent, are viewed by former prosecutors as not especially clean or tight, and sometimes miss the forest for the trees.

Perhaps I am so pleased with the nomination to the Supreme Court of a judge with a reasonable amount of experience both as an appellate court judge and as a trial court judge that I am overly tempted to overlook these perceived flaws. I am, quite frankly, delighted that President Obama rejected the advice of some in his party to select a candidate from

outside the judicial monastery, somebody who has had some real-life experience, not just as a judge," said Vermont Sen. Patrick Leahy, chairman of the Senate Judiciary Committee. . . .

Sen. Arlen Specter of Pennsylvania, a Judiciary Committee member who last week switched from the Republican to the Democratic Party, suggested someone in the mold of a statesman or stateswoman, and said he could imagine a nominee who was not a lawyer, if that person had the right credentials.

I too can imagine the sort of candidate apparently favored by Senator Specter, and it gives me the willies. In any event, I am not very impressed by the perceived flaws of Judge Sotomayor, and see no basis in them for her rejection by the Senate.

Although I never had an opportunity to argue before the Supreme Court, I did argue a number of cases before the Court of Appeals for the D.C. Circuit and, prior to that, before the U.S. Court of Military Appeals. I had no problem with judges who were aggressive in asking questions, and indeed found their questions more often than not to be quite helpful: they let me know their specific concerns, and hence to focus on them. It is far better to know what matters concern the judges, and to address them specifically, than to waste the short time allotted for oral argument (normally fifteen or twenty minutes) by regurgitating arguments already presented in written briefs. It is not much fun to argue a case before a judge who gives no reason to assume that he is awake.  It was not unusual for some of the questions asked during oral argument to become a focus of an opinion.

True, many years of experience in doing the wrong things is not good experience. However, I see no overwhelming basis for concluding that Judge Sotomayer frequently did the wrong things.

In the recent Second Circuit decision, Ricci v. DeStefano, Judge Sotomayer appears to have written nothing. The context is adequately summarized in Wikipedia:

Eighteen white test takers who would have qualified for consideration for the promotions, including one who is part Hispanic, sued the city, alleging reverse discrimination. The federal district court ruled for the city (DeStefano). Upon appeal, the Second Circuit Court of Appeals initially affirmed the district court's ruling, but then added a per curiam opinion which recommended review by the US Supreme Court. The US Supreme Court agreed to hear the case.

Judge Sotomayor was on the Second Circuit panel which had initially affirmed the decision of the District Court; there is no reason to assume that she wrote the Second Circuit panel's unsigned opinion.

In an unusual short and unsigned opinion, a panel of three judges, including Sotomayor, adopted the district court judge's ruling without adding their own analysis.

Shortly thereafter, she agreed with the per curiam resolution noted above, that the matter should be bucked up to the Supreme Court.

This case has generated lots of debate, raising questions as to why Judge Sotomayor initially voted with two other Second Circuit judges to affirm the District Court decision, and why she did not then or thereafter grapple with the tough issues it presented. In the context of that proceeding, I think that the per curiam resolution in which she concurred was proper. In any event, avoidance of issues is not an opportunity she is likely to have as a Supreme Court justice.

In short, little insight into what Judge Sotomayor may have thought in Ricci v. DeStefano can be gleaned from either of the concurring opinions in which she joined or, indeed, from the panel's unsigned opinion in which she joined and from which she did not dissent. During her confirmation hearing, she may (or may not) be questioned about these things; she may (or may not) answer those questions. Since the Ricci case will more than likely have been decided before she is elevated to the Supreme Court bench, she more than likely will not be in a position to participate in the decision there, from which she in any event would most likely be obliged to recuse herself. Whatever the Supreme Court's decision may be, she will be bound by it.

In Correctional Services Corp. v. Malesko, (2001), the Supreme Court unanimously held that one of her decisions as an appellate judge had erroneously extended precedent to allow recovery against a private corporation operating a halfway house under contract with the Bureau of Prisons. As noted by Chief Justice Rehnquist,

respondent is not a plaintiff in search of a remedy as in Bivens and Davis. Nor does he seek a cause of action against an individual officer, otherwise lacking, as in Carlson. Respondent instead seeks a marked extension of Bivens, to contexts that would not advance Bivens' core purpose of deterring individual officers from engaging in unconstitutional wrongdoing. The caution toward extending Bivens remedies into any new context, a caution consistently and repeatedly recognized for three decades, forecloses such an extension here.

All judges are occasionally "wrong" (i.e., disagreed with by a higher court) in their analyses of the law and/or of the factual record below, even the very best of them, and an admittedly cursory review of some of the opinions authored by Judge Sotomayor gives me no real cause for alarm. That I may agree with some of them and disagree with others does not set off any alarm bells; I can't off hand think of any judge with all of whose opinions I have agreed -- or, for that matter, disagreed -- even justices on the Supreme Court.

Another point to keep in mind is that as Justice Sotomayor, she will be in an excellent position to participate in the formulation of well reasoned analyses, for at least a couple of reasons. By the time that cases reach the Supreme Court, the arguments tend to be more focused than below. By then, the issues generally have been substantially narrowed and revolve about the question of whether the appellate court below screwed up by misapprehending the law or the facts of record, and accordingly whether it properly affirmed or reversed the trial court. These issues, more often than not, are reasonably well briefed by quite competent counsel accustomed to arguing cases in the rarefied atmosphere of the Supreme Court. Also, since selection as a law clerk to a Supreme Court justice is a bit of a plum, greatly sought by the best and the brightest, there is some comfort in thinking that Justice Sotomayor may have better assistance than she may have had even as a judge on the well regarded Second Circuit. And, of course, as one of nine Justices on the Supreme Court, the opportunities for collegial discussion of cases with brother (and, of course, sister) justices is likely to be a plus.

Supreme Court justices sometimes surprise both those who favored and those who opposed their appointments. Some have been viewed as too "liberal" and others as too "conservative," and as having all or some or none of the baggage associated with those labels.  Whether soon-to-be-Justice Sotomayor will turn out to be a surprise, and if so to whom, is anybody's guess.

Comments posted to Judicial Empathy and Experience Article

Thus far, more than two hundred comments have been posted to my 6 May 2009 article on empathy and judicial experience as criteria for selecting Supreme Court justices, published on this site and in the BlogCritics magazine. As of this morning, 12 May 2009, it remains the lead article in the politics section of BlogCritics magazine.

Copies of two comments I posted at BlogCritics in connection with the article are provided below:

Here is a link to an editorial in today's Boston Globe which points out, correctly I think, some of the reasons why the selection of a judge or justice on the basis of his particular empathies is a bad idea.

The oath required of Federal judges is as follows:

Each justice or judge of the United States shall take the following oath or affirmation before performing the duties of his office: "I, XXX XXX, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as XXX under the Constitution and laws of the United States. So help me God."

It is OK for a judge to be particularly empathetic toward whomever he pleases -- the rich, the poor, the powerful, the weak, persons of color or those not of color -- however, he must not allow his particular empathies to play a role in doing his duty as a judge. We all have particular empathies. It is all well and good for his particular empathies to be part of a judge's private persona, to be left outside the courtroom just as should be his preferences for Fords or Toyotas, for Methodists or Roman Catholics, or for any side on the abortion controversy.

Federal judges are appointed rather than elected, and serve essentially for life rather than for a term of years. They are not elected legislators, and no matter how badly they may think the legislators screwed up, it is their proper function to substitute their views for those of the legislators in very few instances: where the law is unconstitutional or conflicts irreconcilably with a subsequently enacted law. I can think of very few* other valid bases for unelected Federal judges, or nine (or five) unelected Supreme Court justices, to substitute their personal views for those of the elected Congress which enacted a law and for those of the elected President with whose signature it became law. Nor can I think of any valid reason for judges to anticipate and thereby to attempt to preempt the role of the Congress and of the President by "enacting" new laws on their own -- no matter how greatly they may feel the need for such legislation.

I realize that some judges do permit their particular empathies to play a role in their decision making processes. Some judges take bribes and some drive while drunk. While very unfortunate and probably illegal, that does not make such things OK or even commonplace. To elevate candidates' particular empathies to positions of critical importance in the selection as a judge -- or worse as a very powerful Supreme Court justice -- damages the entire concept of equal justice under law. For a judge or justice, once appointed, to be guided by the empathies on the basis of which he was appointed would be even worse. If he adheres to his oath of office and leaves his particular empathies outside the courtroom, the consideration of his particular empathies in the selection process becomes an exercise in futility; if he takes those empathies into the courtroom, he violates his oath of office and the rule of law is, to that extent, emasculated.

Roger -- it is true that potential judges and justices are sometimes asked their views on current topics of controversy. They usually do not -- and certainly should not -- provide answers, recognizing that such questions are improper and that to answer them fully outside the context of a particular case and controversy would limit their ability to decide subsequent cases on the basis of the law and the facts then presented.

Dan(Miller)

*There are some other instances as well. Courts can overrule administrative regulations where inconsistent with Congressional enactments, in effect or due to their mode of adoption. There are other similar instances. As far as I know, none detract from the points I am trying to make.

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An article in Slate prompted me to think a bit more today about the meaning of empathy, as it is there argued the word was used by President Obama. According to the article, "empathy" is not a code for something else. I have no idea whether it is a code word or is not. However, words themselves have meanings, and the interpretation placed upon the word in the article and there attributed to President Obama is interesting.

"Webster's defines empathy as 'the experiencing as one's own the feelings of another.' Obama, in The Audacity of Hope, described empathy as 'a call to stand in somebody else's shoes and see through their eyes.' To Obama, empathy chiefly means applying a principle his mother taught him: asking, 'How would that make you feel?' before acting. Empathy in a judge does not mean stopping midtrial to tenderly clutch the defendant to your heart and weep. It doesn't mean reflexively giving one class of people an advantage over another because their lives are sad or difficult. When the president talks about empathy, he talks not of legal outcomes but of an intellectual and ethical process: the ability to think about the law from more than one perspective.

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[E]mpathy"at least as Obama has used the word"decidedly does not mean favoring only the poor, women, or minorities in every dispute. Again quoting from The Audacity of Hope: "Empathy … calls us all to task, the conservative and the liberal, the powerful and the powerless, the oppressed and the oppressor. We are all shaken out of our complacency. We are all forced beyond our limited vision."

Pretty words, no doubt; but what does all of this mean? To the extent that it means understanding and properly considering all facts in a case which are relevant under the law, then I have no problem with it. Should the feelings, or the factual situation, of an impecunious widow about to be evicted from her pitiful hovel due to the non-payment of the agreed upon rent be relevant under the operative statute, then clearly those facts and feelings should be given due weight and possibly decisional significance. To the extent that they are not relevant under the statute, they should be given no weight at all, no matter how badly the judge may feel about it or how greatly he may feel the widow's suffering. That is the function of a very different branch of Government.

Assume a statute stating, "any person renting real property who shall fail to pay the rent due under and according to the terms as set forth in the rental contract to which he is a party shall, upon proper request and the presentation of relevant evidence to a court of competent jurisdiction, be evicted from said property forthwith." I know of no such statute, but assume with me that it is the law pursuant to which a judge must decide a case. The judge then has no discretion to consider the widow's personal situation, her feelings, or whether he would have written the statute differently had he had the opportunity to do so. He cannot properly put himself in the shoes of either the landlord or the tenant. He cannot properly put himself in the shoes of counsel for the plaintiff or for the defendant, no matter how badly either might feel were his client to lose the case. He simply has no warrant to rewrite the statute, to ignore parts of it, to supplement other parts in his judicial capacity, or to be guided by how he would feel were he on the other side of the bench as plaintiff, as defendant, or as counsel for either; or to "experience as . . .[his] own the feelings of" such others. To act upon such a empathetic experiences in his judicial capacity would violate his oath if he had taken an oath comparable to the one taken by Federal judges.

Legislators do have not only the discretion but also the obligation to think before they legislate, and when the implementation of a statute produces outcomes which they find offensive, to do something about it -- by repealing or modifying the statute, albeit prospectively. The electorate also has not only the discretion, but also the obligation as well, to see to it that their legislators do so. It is the function of a judge to apply statutes as written, not to make up for the all too often sloppy work of legislators or of the voters who employed them.

Judges and legislators are very different species, and to wish them to behave as though they were the same or even nearly so, or to perceive of their functions as the same or nearly so, grossly distorts the separation of powers and functions embedded in the U.S. Constitution. Judges are not called upon to "do good" according to their empathies or other lights; they are called upon to rule upon the disputes before them justly, in accordance with the statutes authored by others.

Dan(Miller)

Should Appointment to the Supreme Court Hinge on Empathy?

First published on BlogCritics on 6 May 2009

The United States Constitution is silent as to the qualifications of Supreme Court justices. An illiterate ninety year old citizen of North Korea suffering from senile dementia and on life support could, consistently with the Constitution, be nominated by the President and approved with the advice and consent of the U.S. Senate. Fortunately, that seems quite unlikely to happen; in any event, there being none, this article is not about the Constitutional qualifications of Supreme Court justices.

Recently, President Obama indicated that in deciding upon a nominee to replace Mr. Justice Souter, he will look most closely at those who are unusually empathetic, probably toward whatever groups he has in mind. I assume that's what he means, because most everyone is empathetic toward someone or some group, but most have more empathy toward some than toward others. I assume that he will not look for someone with great empathy toward the Klu Klux Klan or even Tea Party proponents.

President Obama is being urged to lean more toward "empathy" than experience by some of the higher-ups in his party.

Some of the senators who will conduct confirmation hearings for Justice David Souter's replacement think it's time for a nominee who hasn't served on the federal appeals court. For all nine of the current justices, the appeals court was a final stepping stone to the Supreme Court.

"I would like to see more people from outside the judicial monastery, somebody who has had some real-life experience, not just as a judge," said Vermont Sen. Patrick Leahy, chairman of the Senate Judiciary Committee.

It appears that President Obama feels much the same way:

He has indicated that he wants a candidate who has a less traditional résumé, in order to bring diversity to a high court now filled entirely by former appellate court judges.

As White House press secretary Robert Gibbs put it, Obama is looking for "somebody who understands how being a judge affects Americans' everyday lives."

Not really coming to grips with the idea of "empathy," Oliver Willis in an article in Huffington Post and probably elsewhere, opined that President Obama should nominate a "liberal," more than likely meaning "leftist," and with sufficient Democrats in the Senate, his appointee will be approved.

We need someone who is solid as a rock on civil rights, right to choice, limits on corporate power, and an overall progressive viewpoint on the Constitution, our laws, and the overall role the court has to play.

My gut says that President Obama understands all this, and the last 100 days have led me to believe that at the end of the day his choice will fit the bill.

Thomas Sowell, writing here and here  as well as elsewhere, disagrees.

That President Obama has made "empathy" with certain groups one of his criteria for choosing a Supreme Court nominee is a dangerous sign of how much further the Supreme Court may be pushed away from the rule of law and toward even more arbitrary judicial edicts to advance the agenda of the left and set it in legal concrete, immune from the democratic process.

Before attempting to discuss the impact of "empathy," and left-right orientation versus judicial experience, it seems useful to attempt to define the rather different jobs of lawyers, of academic types, of Federal appellate court judges and of Supreme Court justices. Surely, we need to have some idea of what these folks are expected to do in order to decide what their qualifications should be.

Much of the work done by the Supreme Court is quite similar to the work done by other Federal appellate courts. The main difference is that the Supreme Court can overturn the decisions of lower Federal (and sometimes, State) courts, while only the Congress and the President, acting together, can nullify a decision of the Supreme Court. The Supreme Court can overrule its own past decisions, but rarely does so directly. Unlike decisions of the lower courts, Supreme Court decisions become, at least for a while, the "law of the land." Although a decision by, for example, the Court of Appeals for the Fifth Circuit, becomes the law of the land in so far as all lower Federal courts within the Fifth Circuit are concerned, it does not bind the Federal courts in the other circuits. One of the fundamental reasons for the Supreme Court to take a case is a split among the Federal circuits; when it does so, what it says, provided it is not "dictum" (extraneous language unnecessary to its decision) binds the Federal courts in all circuits. The Supreme Court thus can have far greater impact on the United States as a whole than can any other court in the land.

In deciding the cases before them, Federal appellate courts are charged with resolving at least some of following issues:

Factual Matters.

Appellate courts rarely overturn the fact findings of trial courts except when those findings are egregiously inconsistent with the record below, are based on things erroneously admitted in evidence, or fail to take into account things improperly excluded from evidence.

The Meaning of the Statute or Statutes Involved:

Many appellate cases involve some element of statutory interpretation. Some statutes are clear on their face, and some are not. In the absence of appropriate clarity, a court must decide what the statute was intended to mean when enacted. There is some latitude here, but not much; that latitude does not properly extend to consideration of what the statute would probably mean if more recently enacted, or what it should say were it to be passed now. To divine the meaning of a statute, courts look at its history and at what other courts have said it means. If one reasonable interpretation would raise a serious question of its constitutionality and another reasonable interpretation would not, a court will generally prefer the latter: Constitutional issues are generally sought to be avoided to the extent possible. Sometimes, a court will have to decide whether a statute was applied consistently with its legislative history, otherwise reasonably and, occasionally, "fairly." Occasionally, it is also necessary to determine whether the statute was applied in an unconstitutional way.

Constitutional Issues.

There may be some automobile mechanics who would prefer to rebuild an engine than merely to replace the spark plugs, because they can earn more money that way. If they earned the same amount of money, the great majority would probably prefer simply to change the spark plugs, even if they might enjoy the challenge of an engine rebuild. Few of the vast number of cases arriving for appellate review raise substantial Constitutional issues, and there are fewer in which such issues cannot be got around; that is what courts generally try to do. However, when Constitutional issues are squarely presented and have to be decided, they try to do so. It is in such uncommon cases that the judicial philosophies -- and now, possibly, the empathies -- of the judges may come into play.

The criterion I consider most important for a Supreme Court justice is experience, as an appellate court judge. All of the current justices served as Federal Court of Appeals judges; I do not know of any recent prior justice who did not serve a similar apprenticeship. The Supreme Court is not a suitable place for the sort of on-the-job training which would be essential for a new justice lacking experience as an appellate court judge. In my view, it is an even worse place for on-the-job training than the White House. At least the President has cabinet members and others to advise him, and at least some of them have relevant experience. A Supreme Court justice has only his clerks to do his grunt work. He can discuss cases with them and with his brother justices. Beyond that, he is pretty much on his own. Without appellate court experience, a justice would most likely be lost. For one of the nine justices of the most powerful court in the country, lost is a bad place to be.

I do not think that experience other than as an appellate court judge is adequate. Even extraordinarily broad, lengthy and excellent experience as an advocate is not very helpful; indeed, it can be harmful, since the functions of judges and of the attorneys practicing before them are very different. Attorneys representing clients have an ethical obligation to do their best to present compelling arguments for the views of the law and of the relevant facts most favorable to the private (or, some cases, public) interests of their clients. They come to a case with their minds made up as to the desired result. It is not their function to ponder whether the greater good for humanity might result were the other side to win.

Unlike attorneys functioning as advocates for their clients, judges and justices do not have clients whom they have an ethical duty to represent as best they can. Their proper function is to uphold the law, regardless of
whether as legislators they would have voted for or against it. They also have an obligation to follow legal precedent as established by the judges at courts superior to their own. If a superior court has held that a statute is unconstitutional or otherwise unenforceable, they are bound by that decision, like it or hate it. One of Thomas Sowell's excellent articles linked above and also here points to the views of one of our better justices, Oliver Wendell Holmes.

After voting in favor of Benjamin Gitlow in the 1925 case of Gitlow v. People of New York, Holmes said in a letter to a friend that he had just voted for "the right of an ass to drool about proletarian dictatorship." Similarly, in the case of Abrams v. United States, Holmes' dissenting opinion in favor of the appellants characterized the views of those appellants as "a creed which I believe to be the creed of ignorance and immaturity."

Mr. Justice Holmes did exactly what, in my opinion, an unelected Supreme Court justice should do. He did not attempt to usurp the proper functions of the elected Congress or of the elected President by legislating to substitute his views of the world for theirs.

Nor, in my view, is academic excellence likely to be adequate preparation in the absence of experience as an appellate court judge. It is one thing to teach about the law, quite another to practice law as an advocate, and as noted above, practicing law is quite different from being a judge. Many law professors have profound knowledge of specialized areas of the law and of legal philosophy. Neither is adequate. By analogy, a professor of aeronautical engineering may know all that there is to know about wing design and how to achieve maximum engine thrust without increasing engine weight or fuel consumption. Indeed, he may know how to design an entire airplane. That does not mean that he would be a desirable pilot to fly a large commercial aircraft full of passengers from Washington, D.C. to Denver, Colorado; for that, an experienced airline pilot with years of experience as a copilot would be desirable. An aeronautical engineer with experience of that sort might become a good pilot, but there is no particular reason to assume that he would. Unlike an academic or an aeronautical engineer, the guy flying the airplane needs be make very important split second decisions, and the only way of which I am aware to learn that skill is through training in the real world environment.

A good judge is first and foremost a good technician. So is a good surgeon. It is not the function of a judge or of a surgeon to decide what to do based on his empathies or how he may feel about the class of persons whose dispute he is resolving or whose life is in his hands. It is the function of the elected Congress to decide whom the laws it passes should benefit or harm, and it is the function of the elected President to sign or to veto those enactments. Then, it is up to the unelected courts to decide whether the laws as enacted comport with Constitutional and other requirements, without regard to personal views as to their wisdom.

We all hope that all Supreme Court justices will be wise, insightful and diligent in their jobs. Although I would prefer President Obama to appoint a "conservative," I would much prefer a "liberal" with substantial experience as an appellate court judge to a "conservative" lacking such experience.

Excessive Pride Goes Before a Fall

First published on BlogCritics on 1 May 2009.

I like my lawyer costume, because I am comfortable wearing it and because it permits me to pontificate on things from a different perspective than do many others on this site. I recently did so in an article focusing on the legal aspects of "torturing" terrorists to gain information needed to avoid future terrorist attacks.

The Law is a wonderful thing, often a creature of logical coherence and beauty. It allows reasonable people to live together with minimal friction. It also allows reasonable people to have realistic expectations as to the consequences of their actions. Those expectations involve a basic concept of fairness and, in Western societies at least, a reasonable understanding that obedience to The Law will keep one safe from excessive Governmental abuse. It is not reasonable to expect that a meter maid will shoot one for failing to put coins into a parking meter or that a policeman will cut off one's head for attempting to walk across a street in the middle of the block; or even riddle one with bullets for committing the sin of adultery in a field somewhere. One need not live in constant fear that the Government will behave inconsistently with The Law, even when one fails to do so oneself. The laws and the Constitution are designed to provide rights to all, good and bad, and more often than not, do so.

Despite these wonders, The Law is sometimes very frustrating and there are contexts in which it simply cannot function as one would wish. I shall now remove my Lawyer costume and try to talk about defending against those who are completely outside the law as we know it, who present a very real danger personally, to lawful society and to civilization in general.

Some have probably heard of Krav Maga,, a personal self defense system developed in Israel for her commandos and now gaining popularity worldwide for civilian self defense. As I understand Krav Maga, it teaches that in defending oneself in a violent context, such as a street attack by a mugger or a rapist, or in a home invasion by armed burglars, to take every possible advantage even if in a more civilized context to do so would be "unfair." Outside the civilized context, there are no rules of fair play. On defense, one strikes as quickly as possible where it hurts the most, going for the eyes or other highly vulnerable body parts. The idea is to put the attackers on the defensive and to disable them, as quickly as possible. The only rules are to disable attackers efficiently and quickly, and to keep from being hurt oneself; the Marquess of Queensberry probably would not approve, nor would Emily Post. Were I to put my lawyer costume back on for a moment, I would pontificate that only proportionate force should be used, and that no unnecessary harm should be caused to one's attackers. However, I took that costume off when I started this article, so will say nothing of the sort.

Permit me to relate some recent events here, in Panama, which have brought home -- literally -- and forcefully, to me the idea that there are contexts in which it is unwise if not suicidal to be either polite or "fair." In our quite remote, rural and otherwise tranquil area, we have not yet had any problem of the sort described below, and I of course hope that we never will. It would nevertheless be extremely foolish not to prepare for the worst, and we are doing so as best we can.

Within about ten kilometers of our small farm, several homes have been broken into at night -- between two and four in the morning is the preferred time for that sort of thing. Here is an e-mail my wife wrote about these events and which was picked up by a blog site in Panama City, some 450 KM to our east. The burglars apparently are armed and pretty savvy; they would likely be classified as sociopaths. They typically use some kind of air-borne drug blown in through an open window to disable the residents. Then, they -- generally several of them -- break in, rape any reasonably attractive woman or girl not menstruating at the time, and steal things. Thus far, they have killed no one. There have been three such incidents recently. Many people in our immediate area are having difficulty sleeping at night, and in some cases someone stands watch at night, just as one would do on a boat out in the open ocean. Out in the open ocean where we sailed, the principal concern involved only the normal hazards of the sea; violent criminals were never a problem.

There is virtually no police protection at all here for various reasons, including that the nearest police facility is more than half an hour away and does not have a car. Efforts have been made to get them a car or a motorcycle. Even with a vehicle, they probably wouldn't have sufficient gasoline to go far. Donations for gasoline have been solicited. Getting the police to respond at our place until well after everything interesting had ended would be impossible.

There have been community meetings with the Mayor of the District and a meeting has been scheduled with the Governor of the Province. Even though Gringos have not, thus far, been victims of such attacks, the local Representante visited us and the very few Gringos living here, to make sure that we were aware of the situation. All seem seriously concerned and quite sympathetic. Unfortunately, they lack the resources necessary to take effective steps to deal with the problem.

We have four large dogs and one small dog, who sleep in our house and can be counted on to bark loudly and ferociously should someone approach. We think and hope that they would be as energetic in attempting to protect us as we would be in attempting to protect them. They sleep in our bedroom, not only because we enjoy their company, but also because these burglars typically throw poisoned meat to distract and kill dogs roaming outside. We also have multiple security lights, a well locked gate, and are sufficiently distant from the road that our house cannot be seen. We are getting a shotgun, a process which takes several months if the laws are followed. In addition to our dogs, we now have an air pistol, two pepper spray canisters, and a spray bottle full of ammonia. I keep my walking cane and the air pistol on my bedside table. The spray canisters and ammonia bottle are on my wife's bedside table. We would not be the least hesitant to use any or all of these things were we attacked, and it would be silly to wait until it could be determined with certainty whether the burglars are, as others have generally been, armed. The purpose would be to disable the attackers, as quickly as possible; with a shotgun, I would aim for the body and not be at all particular where the pellets struck. I am not a marksman, and making a choice between killing and missing is not an option. I would shoot to kill. While some or all of this may be viewed as paranoid, our paranoia is shared by the other residents of our small community.

Another non-option would be to try to sit down and reason together with such people; to understand the problems which drove them to attack us, to understand the pitiful circumstances which may have driven them to misbehave, and to show them the true light. This might, but probably would not, cause them to die of laughter. Far more likely, they would respond by killing me and raping and then killing my wife.

I think that an analogy can properly be made to terrorists who fly aircraft into buildings full of people, who bomb buildings full of people, who lob missiles into civilian areas full of people as in Israel, and who otherwise spread deadly havoc. They do not "play" by any rules to which we are accustomed, and more than likely are quite happy to rely on the fact that we like to follow the sort of rules which they do not. Nor is there any readily available police force to call upon for assistance; 911 calls to the United Nations are not answered quickly, if at all, and even then only eventually and with deliberations, resolutions and at best ineffective sanctions.

In recent days, the United States has been preoccupied with the tales of "torture" and other very unpleasant things done to prevent more terrorist attacks. We have apparently decided that we are in a boxing match in which we must, to preserve (or perhaps regain) our moral virginity, adhere to the Marquess of Queensbury's rules when our attackers adhere to no rules whatever save one -- to kill us and to disrupt our affairs to the greatest extent possible. Our moral outrage at those who would try to protect us has been great and doubtless very comforting to some -- including to those who seek to kill as many of us as possible; toward the latter, there seems to have been far less moral outrage.

To seek "exceptionalism" by touting one's extraordinarily superior morality in the face of very real and life threatening dangers at the hands of those who adhere to extraordinarily different moral codes, and who seek their own "exceptionalism" through deadly terror attacks, strikes me as suicidal. The United States is and has long been a good and law-abiding country. In her dealings with other good and law abiding countries, she should continue to be good and law abiding. However, she is now facing, and has faced for several years, dangers which are quite different from any encountered before. She is currently engaged with neither a good and law-abiding country as an opponent, nor for that matter, even a country in many cases. She faces in macrocosm what my wife and I personally face on a far smaller and quite personal scale. A difference is that the United States has already been attacked, and we have not yet been.

In dealing with terrorists who are trying very energetically to kill us, we should not be so piously stuck up about our beloved moral superiority that we fail to fight them on something approaching comparable terms. To fail to do so evidences the type of pride which goes before a fall, possibly a fatal fall.