Did Chris Christie "sudden love-in" with Obama hurt Mitt Romney?

"Sudden love-in" is the Washington Post's terminology.

There is no professed motivation for Christie’s newfound feelings for the president, other than that the two men are now partners in a massive effort to rebuild his state. Asked about the election on “Fox & Friends,” Christie said, “I have no idea, nor am I the least bit concerned or interested,” adding: “If you think right now I give a damn about presidential politics, then you don’t know me.”

I want to say Chris Christie is saying and doing the right thing, not only morally and in his own political interest, but in the interest of Mitt Romney and the GOP. Saying it's not political and acting like politics are suspended, the best approach morally, happens also to be the best approach politically.

It's good politically because it's a vivid demonstration of devotion to public service and the capacity to rise about partisanship and do the things that need to be done.

Compare the Christie's interaction with Obama to the way Louisiana Governor Kathleen Blanco interacted with President Bush after Hurricane Katrina. Here's how Bush described some of it in his book "Decision Points" (at page 308-309):

The initial plan had been for me to land at the New Orleans airport, pick up Governor Blanco and Mayor Nagin, and survey the damage on an aerial tour. But on the Marine One flight from Mississippi, we received word that the governor, mayor, and a Louisiana congressional delegation were demanding a private meeting on Air Force One first.

The tone started out tense and got worse. The governor and mayor bickered. Everyone blasted the Federal Emergency Management Agency for failing to meet their needs. Congressman Bobby Jindal pointed out that FEMA had asked people to email their requests, despite the lack of electricity in the city. I shook my head. “We’ll fix it,” I said, looking at FEMA Director Mike Brown. Senator Mary Landrieu interrupted with unproductive emotional outbursts. “Would you please be quiet?” I had to say to her at one point.


I asked to speak to Governor Blanco privately. We walked out of the conference room, through a narrow passageway, and into the small cabin at the front tip of Air Force One. I told her it was clear the state and local response forces had been overwhelmed. “Governor,” I pressed, “you need to authorize the federal government to take charge of the response.”

She told me she needed twenty-four hours to think it over.

“We don’t have twenty-four hours,” I snapped. “We’ve waited too long already.”

The governor refused to give an answer.

Next I asked to meet privately with Mayor Nagin. He had spent four days since Katrina holed up in a downtown hotel. He hadn’t bathed or eaten a hot meal until he used my shower and ate breakfast on Air Force One. In a radio interview the previous evening, he had vented his frustrations with the federal government. “Get off your asses and do something,” he said, “and let’s fix the biggest goddamn crisis in the history of this country.” Then he broke down in tears. When I met him on the plane, Ray whispered an apology for his outburst and explained that he was exhausted.

I asked the mayor what he thought about federalizing the response. He supported it. “Nobody’s in charge,” he said. “We need a clear chain of command.” But only the governor could request that the federal government assume control of the emergency.

Maybe it makes you Mitt Romney supporters nervous to see Chris Christie working smoothly with President Obama. You need to visualize the alternative. Governor Christie is doing exactly the right thing.

Mitt Romney likes to portray himself as a Republican who can work "across the aisle," and Chris Christie is modeling that very behavior. Message: That's what Republicans do. That's a good message, speaking to the very moderates who might drift over to Obama if the Republicans created friction and rancor in the wake of the hurricane.

"It's like Charles Darwin and his theory is a saint. You can't touch it."

Some Louisiana citizens think the Louisiana textbook advisory panel isn't doing a good enough job of implementing the Louisiana Science Education Act of 2008.

The LSEA instructs educators to promote "critical thinking skills, logical analysis, and open and objective discussion of scientific theories being studied including, but not limited to, evolution, the origins of life, global warming, and human cloning." It also allows teachers and school districts to use "supplemental textbooks," which are just code words for creationist and pro-intelligent design materials.

Let's watch Obama's big speech.

7:06: He's laying out a "battle plan" to fight the leak at the bottom of the Gulf of Mexico. He's "deploying" the military.

7:08: What to do during the "siege." A decision has been made to speak in military terms. Of course, he's not the first President to ask us to think about a nonmilitary problem in military terms. The War on X... the moral equivalent of war....

7:12: To make sure this won't happen again, Obama is establishing a commission.

7:15: We need to "jump start" the "clean energy" future. There's "the potential" to create "millions of jobs" but "only" if we "act together." We need to do something big at the national level to make this happen. Some people say we can't afford this, but he's saying we can't afford not to do it. He's vague about what this will be. The only thing he won't accept is doing nothing. He won't accept the "paltry limits of conventional wisdom." So even though we don't "precisely know" what we need to do, we will do it. Like we did in WWII and in going to the moon. We'll do something. And it will have to be big, but we don't know what it is. Then he drops from that scarily high level of abstraction and the unknown to... shrimpers. Something about shrimp people. We must think BIG and... shrimpy.

7:20: And suddenly, it's getting religious. I think he's bringing this speech in for a landing, because... it's a bit prayer-like. There's a "hand" that will "guide us." And — yes — it is the end: "May God bless America."

7:26: Well, that was a terrible speech! When it wasn't grim and dreary, it was grandiose. But the grandiosity was so vague... and half-hearted. Oh! The malaise!

AND: Here's the text of the speech. This is the part that interested me most:

As we recover from this recession, the transition to clean energy has the potential to grow our economy and create millions of jobs -– but only if we accelerate that transition.  Only if we seize the moment. And only if we rally together and act as one nation –- workers and entrepreneurs; scientists and citizens; the public and private sectors.  

This is the anti-capitalist move. There is all this opportunity, but free enterprise and capitalism can't take advantage of it. We need a top-down, government-imposed scheme, he announces. He doesn't explain why. It's an article of faith.

Now, there are costs associated with this transition [towards energy independence].  And there are some who believe that we can’t afford those costs right now.  I say we can’t afford not to change how we produce and use energy....

This is such embarrassing cliché rhetoric: Some say we can't do it. I say we can't not do it.


He cites a bunch of modest ideas that have been suggested and says we should think about them, then says that we have to do something, even though you could take all those things together, impose them, and still not break what he calls our "addiction" to fossil fuel. He blathers about WWII and the moon landing -- as noted above --  and talks about "what has defined us as a nation": "the capacity to shape our destiny....  Even if we’re unsure exactly what that looks like.  Even if we don’t yet know precisely how we’re going to get there.  We know we’ll get there." That is so hopelessly grandiose and vague, and to keep us from looking at it too long and despairing, he's all: Look! Shrimp!

Each year, at the beginning of shrimping season, the region’s fishermen take part in a tradition that was brought to America long ago by fishing immigrants from Europe.  It’s called “The Blessing of the Fleet,” and today it’s a celebration where clergy from different religions gather to say a prayer for the safety and success of the men and women who will soon head out to sea....

It's the shrimp and religion combo platter. Yummy!

Frozen out.

Congressman Jefferson.

"Dogs are your friend... Not to say I don't like my chickens, but they are not my friend."

Cockfighting is now outlawed in every state in the union — as Louisiana caves to mainstream decorum.

"I am personally opposed to the death penalty, but I am also opposed to courts taking fundamental decisions away from American voters."

Says lawprof Neal Kumar Katyal, who is representing the state of Louisiana as it seeks to reopen the Supreme Court case Kennedy v. Louisiana:

Jeffrey L. Fisher, a law professor at Stanford who represented the defendant in the case, Patrick Kennedy, said “rehearing is completely unnecessary.” Military law does not apply to Mr. Kennedy, a civilian, Professor Fisher said, and Congress has not made child rape a capital offense for civilians.

Professor Fisher added that military law has long made rapes of both adults and children capital offenses in some circumstances. The innovation of the 2006 law was only to break out children as a separate category.

According to the petition filed Monday, the 2006 law is powerful evidence of the direction of public sentiment. “While Congress has not, as yet, applied the death penalty to child rape in the civilian context,” the petition said, “the recent trend (not to mention the general parity between military and civilian law today) indicates that it may very well do so, if given the opportunity.”

As I have already said, I think it is very important for the Supreme Court to rehear the case. The Court's analysis of "the evolving standards of decency that mark the progress of a maturing society" surveyed the law throughout the United States and drew conclusions without realizing that Congress, which represents all the states, had recently approved of the death penalty for the rape of a child (in a law applying to crimes in the military). From the now embarrassingly inadequate opinion:

Louisiana reintroduced the death penalty for rape of a child in 1995. See La. Stat. Ann. §14:42 (West Supp. 1996).... Five States have since followed Louisiana’s lead: Georgia, see Ga. Code Ann. §16–6–1 (2007) (enacted 1999); Montana, see Mont. Code Ann. §45–5–503 (2007) (enacted 1997); Oklahoma, see Okla. Stat., Tit. 10, §7115(K) (West 2007 Supp.) (enacted 2006); South Carolina, see S. C. Code Ann. §16–3–655(C)(1) (Supp. 2007) (enacted 2006); and Texas, see Tex. Penal Code Ann. §12.42(c)(3) (West Supp. 2007) (enacted 2007); see also Tex. Penal Code Ann. §22.021(a) (West Supp. 2007)...

By contrast, 44 States have not made child rape a capital offense. As for federal law, Congress in the Federal Death Penalty Act of 1994 expanded the number of federal crimes for which the death penalty is a permissible sentence, including certain nonhomicide offenses; but it did not do the same for child rape or abuse....

The evidence of a national consensus with respect to the death penalty for child rapists, as with respect to juveniles, mentally retarded offenders, and vicarious felony murderers, shows divided opinion but, on balance, an opinion against it. Thirty-seven jurisdictions—36 States plus the Federal Government—have the death penalty. As mentioned above, only six of those jurisdictions authorize the death penalty for rape of a child....

This crucial passage is junk now.

The Washington Post says the Supreme Court's mistake requires it to reconsider the ban on the death penalty for rape of a child.

It's absolutely right:

The majority determined that capital punishment for child rape was unconstitutional, in part because a national consensus had formed against it. As evidence, the court noted that "37 jurisdictions -- 36 States plus the Federal Government -- have the death penalty. [But] only six of those jurisdictions authorize the death penalty for rape of a child." Actually, only two years ago, Congress enacted a death penalty for soldiers who commit child rape, as part of an update to the Uniform Code of Military Justice (UCMJ). Irony of ironies: The court has cast doubt on the constitutionality of an act of Congress based on the erroneous claim that the statute did not exist....

The Supreme Court's legitimacy depends not only on the substance of its rulings but also on the quality of its deliberations. That's why we think the court needs to reopen this case -- even though we supported its decision. The losing party, Louisiana, still has time to seek a rehearing, which the court could grant with the approval of five justices, including at least one from the majority. The court could limit reargument to briefs on the significance of the UCMJ provision. We doubt the case will come out much differently; we certainly hope not. But this is an opportunity for the court to show a little judicial humility. Before the court declares its final view on national opinion about the death penalty, it should accurately assess the view of the national legislature.

The opinion doesn't cohere as written. The dissenting opinion doesn't cohere. It's an egregious mistake that throws all the reasoning out of whack. Fix it!

ADDED: Has the Supreme Court case ever used the expression "out of whack"? No. The word "whack" only appears once in the Supreme Court's cases, in a one-sentence rejection of jurisdition in a case called Whack v. Maryland, 450 U.S. 990 (1981).

Is it "out of whack" or "out of wack"? If you go by Google hits, you'll think it's "out of wack" — but that's "out of whack." "Wack" means crazy. It's a back-formation from "wacky." As a noun, it means "a person regarded as eccentric." "Whack," as a noun, is a "a sharp, swift blow." I know, it makes little sense to say the reasoning is out of a person regarded as eccentric or out of a sharp, swift blow, but trust me, the standard, idiomatic expression is "out of whack."

Here's some history:

At one time, [whack] could mean a share in a distribution, a portion; this sense was originally thieves’ cant — Francis Grose, in his Dictionary of the Vulgar Tongue of 1785, has “Whack, a share of a booty obtained by fraud” (could physical violence have been involved in some cases?). British English has a couple of phrases that retain that sense. One is pay one’s whack, to pay one’s agreed contribution to shared expenses. Another is top whack, or full whack, for the maximum price or rate for something (“if you go to that shop, you’ll pay top whack”).

There are some other old figurative senses, including a bargain or agreement (which evolved out of the idea of a share), and an attempt at doing something (“I’ll take a whack at that job”). These are mostly American, and it was in the US that the sense you refer to first appeared, in the latter part of the nineteenth century. There seems to have been a phrase in fine whack during that century, meaning that something was in good condition or excellent fettle. (It appears in a letter by John Hay, President Lincoln’s amanuensis, dated August 1863, which describes the President: “The Tycoon is in fine whack. I have rarely seen him more serene and busy. He is managing this war, the draft, foreign relations, and planning a reconstruction of the Union, all at once”.) It doesn’t often turn up in writing, though, so there’s some doubt how widespread it was.

To be out of whack would then have meant the opposite — that something wasn’t on top form or working well.

What if federal law allows the death penalty for raping a child and the Supreme Court analyzed "evolving standards of decency" without noticing?

It happened!

A military law blog pointed out over the weekend that Congress, in fact, revised the sex crimes section of the Uniform Code of Military Justice in 2006 to add child rape to the military death penalty. The revisions were in the National Defense Authorization Act that year. President Bush signed that bill into law and then, last September, carried the changes forward by issuing Executive Order 13447, which put the provisions into the 2008 edition of the Manual for Courts-Martial.

Anyone in the federal government — or anywhere else, for that matter — who knew about these developments did not tell the court. Not one of the 10 briefs filed in the case, Kennedy v. Louisiana, mentioned it....

Dwight Sullivan, a colonel in the Marine Corps Reserve who now works for the Air Force as a civilian defense lawyer handling death penalty appeals.

Mr. Sullivan was reading the Supreme Court’s decision on a plane and was surprised to see no mention of the military statute. “We’re not talking about ancient history,” he said in an interview. “This happened in 2006.”

What an immense shame and embarrassment for everyone involved in this case — especially for all of the Justices of the Supreme Court!

McCain and Obama both criticized the Supreme Court for rejecting the death penalty for the rape of a child, but McCain points to the real distinction.

WaPo reports:

McCain emphasized that he would seek out Supreme Court appointees along the lines of Chief Justice John Roberts and Justice Samuel Alito, saying they're the kind of jurists who will rule in favor of crime victims.

"They will be the kind of judges who believe in giving everyone in a criminal court their due: justice for the guilty and the innocent, compassion for the victims, and respect for the men and women of law enforcement," he said. "In all of criminal justice policy, we must put the interests of law-abiding citizens first -- and above all, the rights of victims."...

While McCain noted that Sen. Barack Obama (D-Ill.) criticized [Kennedy v. Louisiana], he suggested that Obama would back the same kind of liberal justices who overruled the Louisiana law this month.

"More to the point, why is it that the majority includes the same justices he usually holds out as the models for future nominations?" he said. "My opponent may not care for this particular decision, but it was exactly the kind of opinion we could expect from an Obama Court."

This is exactly the point I wanted to see made. What is Obama's counterattack? From the WaPo piece:

Obama spokesman Tommy Vietor questioned why McCain would suggest only "an Obama Court" would produce rulings like the kind the Court just issued concerning child rapists, when the GOP senator backed four of the five judges who just ruled the death penalty was not appropriate for such crimes.

"Senator McCain voted for 4 of the 5 judges who supported this flawed ruling, which is why this attack is particularly disingenuous and nothing more than the same old Bush-style politics that the American people are tired of," Vietor said....

What's disingenuous is Vietor's argument. The role of the President and the role of a Senator are very different when it comes to Supreme Court appointments. The President's nomination identifies one person from the pool of possible nominees and therefore has a tremendous amount of latitude in searching for someone who he thinks will decide cases to his liking, who shares his ideology.

A Senator can only question this one individual and vote up or down. When someone with the qualifications of Anthony Kennedy, David Souter, Ruth Bader Ginsburg, or Stephen Breyer is nominated, it is very hard for a Senator to justify voting no, even if he would not have nominated that person. In fact, he should vote yes — out of an understanding of the President's role and respect for the people who elected that President.

Indeed, as I said at the time of his confirmation, it was outrageous to vote against the spectacularly qualified John Roberts:

As to those 22 Democrats who voted no, they have openly embraced an ideological view of the Court from which they can never credibly step back. For them, appointing Supreme Court Justices is a processes of trying to lock outcomes in place, and we shouldn't believe them if in the future they try to say otherwise.

Of course, Barack Obama was one of the 22.

A year ago, Obama talked about why he rejected John Roberts. Roberts said "he saw himself just as an umpire":

“But the issues that come before the court are not sports; they’re life and death. We need somebody who’s got the empathy to recognize what it’s like to be a young teenage mom.”

Obama said that 95 percent of cases can be judged on intellect, but that the other 5 percent are the most important ones.

“In those 5 percent of cases, you’ve got to look at what is in the justice’s heart, what’s their broader vision of what America should be."

If you really believe that about the cases that are determined by "heart," wasn't Kennedy v. Lousiana a heart case? Writing for the majority, Anthony Kennedy said:

It is an established principle that decency, in its essence, presumes respect for the individual and thus moderation or restraint in the application of capital punishment....

[We] insist upon confining the instances in which capital punishment may be imposed....

As it relates to crimes against individuals, ... the death penalty should not be expanded to instances where the victim’s life was not taken....

Surely, this is what Obama wants from a Justice. How can he credibly assert otherwise?

McCain on the child rape/death penalty case. UPDATE: Obama's opposes the decision too!

"As a father, I believe there is no more sacred responsibility in American society than that of protecting the innocence of our children. I have spent over twenty-five years in Congress fighting for stronger criminal sentences for those who exploit and harm our children. Today’s Supreme Court ruling is an assault on law enforcement’s efforts to punish these heinous felons for the most despicable crime. That there is a judge anywhere in America who does not believe that the rape of a child represents the most heinous of crimes, which is deserving of the most serious of punishments, is profoundly disturbing."

UPDATE: So that was McCain's response, and Obama opposes the decision too:

"I have said repeatedly I think the death penalty should be applied in very narrow circumstances, for the most egregious of crimes... [But] I think that the rape of a small child, 6 or 8 years old, is a heinous crime, and if a state makes a decision that under narrow, limited, well defined circumstances, the death penalty is at least potentially applicable, that does not violate our Constitution."

So, Obama has (cleverly or sincerely) deprived McCain of an issue, it seems. And yet the most relevant question is Supreme Court appointments. You might think that it's rather predictable that Obama, given the opportunity to nominate a new Justice, will choose someone who would almost surely have joined today's majority. Ask him: You've said you oppose the Supreme Court's decision in Kennedy v. Louisiana, but does that mean you will try to pick Justices in the mold of Roberts, Scalia, Thomas, and Alito. See? You don't need to ask. You already know the answer. But don't be too confident that McCain would choose Justices who would have joined today's dissent. I wouldn't bet on that either.

"We cannot dismiss the years of long anguish that must be endured by the victim of child rape."

"It does not follow, though, that capital punishment is a proportionate penalty for the crime."

So writes Justice Kennedy in Kennedy v. Louisiana. Searching for "evolving standards of decency," Kennedy expresses concern about the sheer number of crimes that would be subject to the death penalty:

In reaching our conclusion we find significant the number of executions that would be allowed under respondent’s approach. The crime of child rape, considering its reported incidents, occurs more often than first-degree murder. Approximately 5,702 incidents of vaginal, anal, or oral rape of a child under the age of 12 were reported nationwide in 2005; this is almost twice the total incidents of intentional murder for victims of all ages (3,405) reported during the same period.

Why isn't the high incidence of child rape a reason to up the penalty so that fewer children will be raped? Now that the death penalty for child rape has been held unconstitutional, will we see the number of rapes increase?

With respect to deterrence, if the death penalty adds to the risk of non-reporting, that, too, diminishes the penalty’s objectives. Underreporting is a common problem with respect to child sexual abuse. ...

The experience of the amici who work with child victims indicates that, when the punishment is death, both the victim and the victim’s family members may be more likely to shield the perpetrator from discovery, thus increasing underreporting....

In addition, by in effect making the punishment for child rape and murder equivalent, a State that punishes child rape by death may remove a strong incentive for the rapist not to kill the victim. Assuming the offender behaves in a rational way, as one must to justify the penalty on grounds of deterrence, the penalty in some respects gives less protection, not more, to the victim, who is often the sole witness to the crime.... It might be argued that, even if the death penalty results in a marginal increase in the incentive to kill, this is counterbalanced by a marginally increased deterrent to commit the crime at all.

So isn't this the sort of balancing that is normally left to legislative choice? Kennedy says it's still a factor that the Court should take into account in analyzing whether the death penalty is constitutional.

ADDED: In dissent, Justice Alito (joined by the Chief Justice and Justices Scalia and Thomas) emphasizes the breadth of the decision:

The Court today holds that the Eighth Amendment categorically prohibits the imposition of the death penalty for the crime of raping a child. This is so, according to the Court, no matter how young the child, no matter how many times the child is raped, no matter how many children the perpetrator rapes, no matter how sadistic the crime, no matter how much physical or psychological trauma is inflicted, and no matter how heinous the perpetrator’s prior criminal record may be. The Court provides two reasons for this sweeping conclusion: First, the Court claims to have identified “a national consensus” that the death penalty is never acceptable for the rape of a child; second, the Court concludes, based on its “independent judgment,” that imposing the death penalty for child rape is inconsistent with “ ‘the evolving standards of decency that mark the progress of a maturing society.’ ”

AND: Alito notes that the Court's decision in Coker v. Georgia (invalidating the death penalty for the rape of an adult woman) created uncertainty and impeded the states development of the law and distorted the evidence of "consensus":

When state lawmakers believe that their decision will prevail on the question whether to permit the death penalty for a particular crime or class of offender, the legislators’ resolution of the issue can be interpreted as an expression of their own judgment, informed by whatever weight they attach to the values of their constituents. But when state legislators think that the enactment of a new death penalty law is likely to be futile, inaction cannot reasonably be interpreted as an expression of their understanding of prevailing societal values.

The majority is really imposing its own "evolving standards of decency" to the question, Alito says. In this context, he questions whether it is"really true that every person who is convicted of capital murder and sentenced to death is more morally depraved than every child rapist.""

Consider the following two cases. In the first, a defendant robs a convenience store and watches as his accomplice shoots the store owner. The defendant acts recklessly, but was not the triggerman and did not intend the killing. See, e.g., Tison v. Arizona, 481 U. S. 137 (1987) . In the second case, a previously convicted child rapist kidnaps, repeatedly rapes, and tortures multiple child victims. Is it clear that the first defendant is more morally depraved than the second?

(Wouldn't anyone voting with today's majority have voted with the dissent in Tison?)

... I have little doubt that, in the eyes of ordinary Americans, the very worst child rapists—predators who seek out and inflict serious physical and emotional injury on defenseless young children—are the epitome of moral depravity....

Alito elaborates the harm.

It's important that the majority also took the harm very seriously. This was not like Coker, where the Court was clueless enough to write, about the 16-year-old "adult" victim: "Mrs. Carver was unharmed."

Justice Kennedy does not gloss over the horrific harm to the child:

Petitioner’s crime was one that cannot be recounted in these pages in a way sufficient to capture in full the hurt and horror inflicted on his victim or to convey the revulsion society, and the jury that represents it, sought to express by sentencing petitioner to death....

An expert in pediatric forensic medicine testified that L. H.’s injuries were the most severe he had seen from a sexual assault in his four years of practice. A laceration to the left wall of the vagina had separated her cervix from the back of her vagina, causing her rectum to protrude into the vaginal structure. Her entire perineum was torn from the posterior fourchette to the anus. The injuries required emergency surgery....

[T]he victim’s fright, the sense of betrayal, and the nature of her injuries caused more prolonged physical and mental suffering than, say, a sudden killing by an unseen assassin. The attack was not just on her but on her childhood. For this reason, we should be most reluctant to rely upon the language of the plurality in Coker, which posited that, for the victim of rape, “life may not be nearly so happy as it was” but it is not beyond repair. Rape has a permanent psychological, emotional, and sometimes physical impact on the child.... We cannot dismiss the years of long anguish that must be endured by the victim of child rape.

Nevertheless, in Kennedy's view, capital punishment is not "proportionate" to the crime in light of "evolving standards of decency that mark the progress of a maturing society."

It is an established principle that decency, in its essence, presumes respect for the individual and thus moderation or restraint in the application of capital punishment....

[We] insist upon confining the instances in which capital punishment may be imposed....

As it relates to crimes against individuals, ... the death penalty should not be expanded to instances where the victim’s life was not taken....

[T]here is a distinction between intentional first-degree murder on the one hand and nonhomicide crimes against individual persons, even including child rape, on the other....

It's very hard to find any argument about the depravity of this criminal act. What I see in Kennedy's opinion is mainly opposition to the death penalty and a fear of expanding it into a new area where it would need to be constrained by the kind of "narrowing aggravators" that restrict the death penalty in murder cases. Kennedy is particularly concerned that the crime of child rape "will overwhelm a decent person’s judgment," that this crime — more than murder — will make juries irrational and arbitrary. In any case, he tells us, the process of juries evaluating aggravating factors is well established. It's one thing to accept that, quite another to extend the process into a whole new area.

So, for the death penalty and child rape, juries cannot be trusted, and legislatures cannot be trusted. This is one decision that the Court has seen fit to place in the judicial domain.

Supreme Court opinions today.

The best — and most exciting presentation, beginning at 10 ET — is the SCOTUSblog live-blog.

UPDATE: The Court limits the punitive damages in the Exxon case to $507.5 million. (The court below had awarded $2.5 billion). In Kennedy v. Louisiana, the Court rejects the death penalty for child rape (where "the defendants' acts were not intended to cause death").

AND: Here's the Kennedy opinion (PDF). (It's doubly "the Kennedy opinion" in that it's the name of the case and of the Justice writing it.) It's a 5-4 decision with a Roberts an Alito dissent, joined (predictably) by Scalia, Thomas, and Alito Roberts.

AND: Move the discussion of Kennedy to this new post.

Crist, Jindal, Romney.

Looks like McCain wants a governor for VP. Which one?

What do you think of Bobby Jindal?

Mr. Jindal, who was born in Baton Rouge, La., to a family that had just arrived there from the Punjab area of India, took office as Louisiana’s governor in January after serving three years in the House of Representatives. Mr. Jindal, who was born a Hindu but became a Roman Catholic as a teenager, campaigned for governor as a social conservative, opposing human embryonic stem cell research and abortion in any form and favoring teaching “intelligent design” in schools as an alternative to evolution.

But Mr. Jindal also has a reputation as a policy wonk, like the Clintons, with a specialty in health care issues. After graduating in 1991 from Brown University, where he majored in biology and public policy, and attending Oxford as a Rhodes Scholar, Mr. Jindal worked for the management consulting firm McKinsey and Company and was executive director of the National Bipartisan Commission on the Future of Medicare. He later served as secretary of the Louisiana Department of Health and Hospitals and in the Bush administration as Assistant Secretary of Health and Human Services for planning and evaluation.

Sounds great. The health specialty could work very well in the mix. But Jindal is only 37! That's 5 years younger than our youngest President... but old enough — in constitutional terms — to be President. I see fodder for jokes about how old McCain is. Their average age — 54 — seems ideal for a President. Downside: It would make it impossible to argue that Obama is too young to be President.

ADDED: Jindal turns 37 on June 10th.

"Scalia almost chortles. "Did you ever hear the expression 'hoist by your own petard?'"

Dahlia Lithwick describes the oral argument in Kennedy v. Louisiana, the case about the constitutionality of imposing the death penalty for the rape of a child:

[Jeff] Fisher, Kennedy's lawyer, gamely opens with the observation that Louisiana's effort to "reintroduce" the death penalty for rapists violates the "long-standing national consensus against it." It also offends a line of cases that require states to very narrowly define the class of offenders eligible for the death penalty. Justice Antonin Scalia interrupts him to ask how one might further narrow a class of "child rapists" and whether any rape of a child under 12 could fairly be described as not "particularly heinous."...

Fisher says that if you look at the pair of recent cases that banned capital punishment for mentally retarded offenders (in 2002) and juvenile offenders (in 2005), it's clear the social consensus is trending away from the death penalty. Then, Roberts jumps in to argue that the "evolving standards of decency" test should not be a one-way ratchet. Does this trend "only work one way?" he asks. "How are you ever supposed to get consensus moving in the opposite direction? … Do 20 states have to get together and do it at the same time?"

Scalia says this high bar against reversing the prevailing trend would put the court in the position of "prohibiting the people from changing their mind." And Roberts says the clear trend that matters is not the one Fisher points to but rather that "more and more states are passing statutes imposing the death penalty in situations that do not result in death." Scalia almost chortles. "Did you ever hear the expression 'hoist by your own petard?' The trend here is clearly in the direction of permitting more and more … capital punishment for this crime!"

But there is very little to laugh about here. As Lithwick notes, the rape for which Kennedy received the death penalty was truly horrible. Kennedy weighed 300 pounds and the child was 8.

I'm glad to see that Justices Alito and Ginsburg brought up the feminist themes that I noted in this earlier post on the case. Lithwick writes:

Justice Samuel Alito quotes a line from [the 1977 precedent] Coker opining that "life is over for the victim of the murderer. For the rape victim, life may not be nearly so happy as it was." He asks, incredulously, is that "something that would be written today?" Ginsburg adds that the attitudes toward rape that animated Coker—that women were the property of their husbands or fathers and were "spoiled" after a rape—have "no parallel with child rape." There was a lot of race and gender bias under the surface of the Coker case that isn't immediately present in this one.

"We have the abiding conviction that the death penalty... is an excessive penalty for the rapist who, as such, does not take human life."

So wrote Justice White in Coker v. Georgia, and this week, the Supreme Court takes up the question whether the death penalty could nevertheless be constitutional when the victim is a child.

Those facts alone are a powerful argument that executing someone for rape would violate the Eighth Amendment prohibition against "cruel and unusual punishment," argue lawyers for Louisiana death row inmate Patrick Kennedy. The 43-year-old Kennedy was convicted of raping his 8-year-old stepdaughter in 1998 in an assault so brutal that the girl required surgery.

Coker was decided in 1977, just before Americans began to focus very seriously on how harmful rape really is, and White's recounting of the facts reflects the culture of that earlier era:

While serving various sentences for murder, rape, kidnaping, and aggravated assault, petitioner escaped from the Ware Correctional Institution near Waycross, Ga. on September 2, 1974. At approximately 11 o'clock that night, petitioner entered the house of Allen and Elnita Carver through an unlocked kitchen door. Threatening the couple with a "board," he tied up Mr. Carver in the bathroom, obtained a knife from the kitchen, and took Mr. Carver's money and the keys to the family car. Brandishing the knife and saying "you know what's going to happen to you if you try anything, don't you," Coker then raped Mrs. Carver. Soon thereafter, petitioner drove away in the Carver car, taking Mrs. Carver with him. Mr. Carver, freeing himself, notified the police; and not long thereafter petitioner was apprehended. Mrs. Carver was unharmed.

Mrs. Carver was unharmed. It's hard to imagine any American judge today ending that paragraph with that sentence.

It took Chief Justice Burger in dissent (joined by Justice Rehnquist) to tell us that Mrs. Carver, whom Justice White called an "adult," was only 16.

"Phony, academic-sounding verbal junk... trying to talk like effete characters from Victorian novels...."

I've been ignoring this Dick Cavett thing in the NYT that's been sitting at the top of the most-emailed list for days, but now I'm reading it. I don't want to delve into Cavett's earnest opposition to the war — he's lambasting Petraeus – but there's some discussion of language that interests me:

In addition to his own pedantic delivery, there is his turgid vocabulary. It reminds you of Copspeak, a language spoken nowhere on earth except by cops and firemen when talking to “Eyewitness News.” Its rule: never use a short word where a longer one will do. It must be meant to convey some misguided sense of “learnedness” and “scholasticism” — possibly even that dread thing, “intellectualism” — to their talk. Sorry, I mean their “articulation.”

No crook ever gets out of the car. A “perpetrator exits the vehicle.” (Does any cop say to his wife at dinner, “Honey, I stubbed my toe today as I exited our vehicle”?) No “man” or “woman” is present in Copspeak. They are replaced by that five-syllable, leaden ingot, the “individual.” The other day, there issued from a fire chief’s mouth, “It contributed to the obfuscation of what eventually eventuated.” This from a guy who looked like he talked, in real life, like Rocky Balboa. And there’s nothing wrong with that.

Who imposes this phony, academic-sounding verbal junk on brave and hard-working men and women who don’t need the added burden of trying to talk like effete characters from Victorian novels?

And, General, there is no excuse anywhere on earth for a stillborn monster like “ethnosectarian conflict,” as Jon Stewart so hilariously pointed out....

Petraeus’s verbal road is full of all kinds of bumps and lurches and awkward oddities. How about “ongoing processes of substantial increases in personnel”?

Try talking English, General. You mean more soldiers.

It’s like listening to someone speaking a language you only partly know. And who’s being paid by the syllable. You miss a lot. I guess a guy bearing up under such a chestload of hardware — and pretty ribbons in a variety of decorator colors — can’t be expected to speak like ordinary mortals, for example you and me. He should try once saying — instead of “ongoing process of high level engagements” — maybe something in colloquial English? Like: “fights” or “meetings” (or whatever the hell it’s supposed to mean).

I agree. So did George Orwell in "Politics and the English Language," which Cavett really ought to have cited.

Anyway, last night I was reading the most atrocious sentence, written by (the highly acclaimed blogger) Josh Marshall:

Some of it is likely equally demagoguable, but shows up some of the tendentious misconstruals of what he said.

Talk about phony, academic-sounding verbal junk and trying to talk like an effete character from a Victorian novels! "Demagoguable" and "misconstrual" are not even words. I'm not saying you can't coin a word, but coin something less ugly. (I mean, those are the Wisconsin and Louisiana quarters of word coinage.) "Likely equally demagoguable"... "tendentious misconstruals"... ugh! That's misconscrewed. Makes me want to demagag.

***

But the actual substance of Marshall's post is excellent. I was going to say, after reading Cavett's post, that we tend to find language especially irksome when we are irked by the message. But Marshall's post is something I would like to link to uncritically. He's found a 4-year-old clip of Barack Obama saying something very close to what he said this week about bitter small-towners:

A big win for Obama in Virginia.

And the Republican race is too close to call. On MSNBC, Chris Matthews is saying that would-be McCain voters switched to the Democratic race and voted for Obama.

ADDED: MSNBC is reporting that Obama took 90% of the black vote in Virginia and 48% of the white vote. If you split the white vote by sex, Obama gets a majority of the men (55%), and Hillary's got the white women (58%). Obama is strong with under 40 voters (66%), independents (62%), those making over $100,000 (61%), and those with a postgraduate education (58%). Olbermann's muttering: "Good grief, he won white men... 55%..."

MORE: Olbermann: "And Obama beat her with the... beat the women... ... beat her in women voters." Later: "And the results are in. NBC news has projected that Senator Barack Obama of Illinios will be the projected winner, uh, hence the use of the word 'projection' 3 times in one sentence."

AND: Tim Russert: "The white, ethnic, blue-collar Democrat is voting for Obama in Virginia and Maryland. What does that mean for Wisconsin — places like Milwaukee and Green Bay? And what does that mean for Texas and Pennsylvania?... It's an indication that his coalition is broadening in a big way tonight."

PLUS: Nice to see Obama's Madison speech is on TV. The Kohl Center is packed full, with an overflow room. The announcer said it seats about 17,000, but that is when it's set up for a basketball game. For a speech, there is a lot more seating on the floor.

ALSO: Obama gave a good speech, though he muffed his first effort at saying Mayor Dave's last name (which I won't even attempt to write... just say "Mayor Dave" and leave it at that). Nice Madison touches: birthplace of progressivism, etc.

The Obama speech ends, and MSNBC takes us to John McCain's speech, already in progress. I think he sounds great and don't really understand why people say he's a bad speaker. He's got real passion and sounds like he means it (and then some). (And I liked when he called that CNN reporter "jerk." It seemed affectionate and good-natured.)

So anyway, the speech ends, and that goofily stuffy Keith Olbermann goes "John McCain, speaking after his 3 victories in the Potomac primaries tonight from Alexandria, Virginia, to the tune of 'Johnny B. Goode, instrumental only..." And no sooner does he get those words out then the incredibly familiar guitar opening to the song is over and we hear Chuck Berry singing "Deep Down in Louisiana..."

Olbermann's haplessness seems like a comedy routine. He wraps his windbaggery up by saying that the rule has to be "always speak before, not after Barack Obama," which makes Chris Matthews giggle and me fume. McCain was good! Obama had the usual Obamatude, but nevertheless, let's keep our wits about us: It was within the range of human capacity. A god did not walk into the Kohl Center tonight.

And that Olbermann has some nerve knocking McCain whe he (Obermann) flubs and garbles every sentence he wanders into and struggles to find a way out of.

Obama's big night: "We won North, we won South, we won in between."

Obama wins Washington, Nebraska, and Louisiana. Wide margins everywhere. And — as the quote above says — impressive geographic distribution. Those who would point to Hillary Clinton's consistent lead in the national polls need to remember that the Electoral College determines who wins in the end, and extra votes in California and New York are useless. And neither is popularity in states that will surely go Republican in any close race.

Here's an interactive Electoral College map. You'll see the swing states are beige, and you can pick a year and see who won the various states in past elections. Now, here's a map showing which states Obama and Clinton have won so far. Obama has strong appeal — or Hillary is unappealing — in the nation's midsection. Is a picture of Obama's electability emerging?

We were just talking last night about what the superdelegates can fairly do with their power. One argument is that they must vote to produce the result that would obtain if there were no superdelegates.

But isn't it fair for them to look at who can take the party to victory in the end? Isaac Chotiner argues:

Think of it like this: you are a superdelegate or party boss. You have been undecided but now must choose between two candidates with roughly equal numbers of delegates. Most of all, you want to win in November, which is now only three months away. And while one of your two choices is consistently beating the Republican nominee in polls, the other is consistently losing.

Chotiner hasn't gotten to the point where he sees that it's the Electoral College that matters, but his main idea is that superdelegates will be influenced by data about who's more likely to beat the Republican nominee.

Yesterday, I linked to Chris Bowers, who made this threat:

If the Democratic Party does not nominate the candidate for POTUS that the majority (or plurality) of its participants in primaries and caucuses want it to nominate, then I will quit the Democratic Party... [If the] "super" delegates nominate someone for POTUS other than the person who received the most support during Democratic primaries and caucuses, then I fail to see any reason to continue participating in the Democratic Party. If the Democratic Party is not a democratic institution, then to hell with the Democratic Party.

Well, he sounds angry, but what exactly is the standard?

A 1% lead or more in pledged delegates from all 50 states and every territory. If it falls in between the plus or minus 1% range, I'll cut some lack. Otherwise, none.

So, fine, he's not looking at a national poll or going on the numbers of voters/caucus-goers. This shows some sensitivity toward the electoral map. But he's not taking into account any subtleties of who has support in the states that will be hard-fought in the general election. He throws in the territories, which have no electoral votes, and he doesn't have a good way — as far as I can figure out — to deal with the botched process in the big swing states of Michigan and Florida.

It seems to me that the superdelegates are in a position to account for some complex considerations of democracy as it plays out in our peculiar electoral process. The only reason to lock the superdelegates into a formula the way Bowers wants is that you don't trust them to think in a sophisticated way about legitimate factors. You're afraid of the politics that will go on behind the scenes. I understand that fear, but so will the superdelegates. The check on behind-the-scenes deals and corruption is that they will know the people will be hypervigilant and easily outraged.

ADDED: Here's the way Barack Obama puts it:

My strong belief is that if we end up with the most states and the most pledged delegates from the most voters in the country, that it would be problematic for the political insiders to overturn the judgment of the voters. I think it is also important for superdelegates to think about who will be in the strongest position to defeat John McCain in November and who will be in the strongest position to ensure that we are broadening the base, bringing people who historically have not gotten involved in politics into the fold.

See? He's pushing a subtle, multi-factored approach that serves him well. I assume Mrs. Clinton will do the same. The linked article quotes her saying:

Superdelegates are, by design, supposed to exercise independent judgment. But, of course, if Senator Obama and his campaign continue to push this position, which is really contrary to what the definition of a superdelegate has historically been, I will look forward to receiving the support of Senator Kennedy and Senator Kerry.

Ha ha. It's an old quote. (Both Kennedy and Kerry have declared their support for Obama.) That was mean! Anyway, I look forward to seeing how she puts it to adapt to the changing circumstances.

ADDED: I misread the Clinton quote, which isn't old. It's a sound witticism.

A senator grovels.

Are you pleased?

I hate seeing people publicly humiliated for the sexual things they do in private. But the government is criminally prosecuting a woman, Deborah Jeane Palfrey, for what it says was a prostitution ring. These are federal charges, and the senator, David Vitter, has some responsibility for the laws that make this prosecution possible.

Vitter situates his misdeed in the realm of religion and private morality:

"This was a very serious sin in my past for which I am, of course, completely responsible"...

"Several years ago, I asked for and received forgiveness from God and my wife in confession and marriage counseling... Out of respect for my family, I will keep my discussion of the matter there -- with God and them. But I certainly offer my deep and sincere apologies to all I have disappointed and let down in any way."

Oh, well, if God has forgiven him...

Palfrey can't say God has forgiven her and walk free. In fact, Vitter's statement hurts Palfrey because it strongly implies that Palfrey was doing what she's accused of. Vitter's confession -- intended to move us to mercy -- links him to criminal activity, but only she is facing criminal punishment.

Shouldn't the expiation of Vitter's sins wait until he has introduced a bill that would create a federal right to engage in the business of prostitution? It's not a matter to be resolved within the realm of church and family as long as Palfrey is being prosecuted.

UPDATE: James Taranto links here and asks:

How would advocating the legalization of prostitution expiate Vitter's sins? Prostitution is illegal because it is wrong, not the other way around. The reason we have laws at all is not so that "good" people can impose their will on "bad" people, but because everyone has the capacity to do bad things. Thus it's not surprising that moralists sometimes turn out to be hypocrites. They are moralists because they are closely acquainted with the temptation to do wrong.

Taranto isn't reading me carefully. I'm not talking about what Vitter needs to do to expiate his sins. I'm talking about what Vitter needs to do to make it only an issue of sin. My point is -- quite clearly -- that as long as Palfrey is incapable of treating this as a matter between herself and God, it is not morally logical for Vitter to claim that capacity for himself. He must first take whatever action he can to put Palfrey in the same position he wants for himself. Vitter is a member of Congress, and Palfrey is being prosecuted under federal law. He cannot morally turn away from her plight while he holds power.

ANOTHER UPDATE: James Taranto responds to my response:

Althouse's original words were: "Shouldn't the expiation of Vitter's sins wait until he has introduced a bill that would create a federal right to engage in the business of prostitution?" It would take a careful reader indeed to conclude that Althouse is not referring to "what Vitter needs to do to expiate his sins."

Indeed, we expect careful reading here on Althouse. When you see a concise and puzzling sentence, remember to pause and think deeply -- especially if you want to write about it!

Anyway, the argument is illogical on several levels. For one, the crime Vitter is thought to have committed, patronizing a prostitute, is different from the crimes with which Palfrey is charged: racketeering and conspiracy. (Prostitution is under state and local jurisdiction.) Does Althouse think Vitter should introduce legislation to decriminalize racketeering and conspiracy?

No, I think he should -- as I wrote -- introduce a bill that would create a federal right to engage in the business of prostitution! Congress has the power to do that under the Commerce Clause, and it would preempt the state law that currently criminalizes prostitution. The conspiracy and racketeering laws would remain intact, but the state law they draw on would no longer include a crime of prostitution. See? Nothing permanently puts prostitution "under state and local jurisdiction." It can be federalized.

Further, the idea that Vitter is getting off easy seems to have it backward. The proper comparison here would be not to Palfrey but to others situated similarly to Vitter -- i.e., those who may be incriminated by Palfrey's phone records. Among this group, Vitter is being singled out for humiliating attention owing to his status as an elected official. However much Vitter might like to treat this as a matter "between himself and God," it is also a matter between the news media and Larry Flynt and the voters of Louisiana and political junkies and voyeurs all over the world.

I didn't say Vitter "is getting off easy." In fact, I feel sorry for him. I am simply objecting to his announcement that it's a private matter in the realm of family and religion. And I don't see why Taranto thinks he can simply announce what the "proper comparison" is. Palfrey faces prison. It is a very serious matter for the government to take away a person's freedom. Why should Vitter be able to say it's no concern of his? He was part of the same illegal behavior that she is being prosecuted for. He holds a position of legislative power. I'm saying that if he wants to say that the wrong he did is something to be dealt with exclusively as a private matter, he's morally obligated to use the power he has to make prostitution a private matter for her too.

I realize the media are slavering over this too. I'm not saying that's right. But it doesn't absolve him of his wrongs. As for the comparison to other clients who have less to lose from exposure -- it is always the case that getting accused of wrongdoing has an impact on your life that depends on the particularities of your life.

The death penalty for the rape of a child: "Short of a first-degree murderer, we can think of no other non-homicide crime more deserving."

Yesterday, the Louisiana Supreme Court issued an opinion upholding the death penalty for the rape of a child under the age of 12.

The U.S. Supreme Court, ruling on a case from Georgia in 1977, held that the death penalty for rape violated the Eighth Amendment protection against cruel and unusual punishment. But the high court said repeatedly that its ruling applied only to adult victims....

In Tuesday's 62-page opinion, Justice Jeffrey Victory ... wrote that the Louisiana law meets the U.S. Supreme Court test requiring an aggravating circumstance — in this case the age of the victim — to justify the death penalty.

As early as 1996 the court had said that the law was constitutional, ruling in pretrial matters in other cases. Tuesday's ruling was the first time it upheld an actual death sentence for someone convicted under the law.

Patrick Kennedy is the only person in the United States on death row for rape.