When's the last time the worse looking of the 2 major party candidates won the Presidency?

A question I raise in the comments to this morning's body fat post.

Here's a list of all the candidates through American history. I'd say the answer to my question is 1976. But Jimmy Carter had a big smile that people responded to, and Ford had reached the presidency via Richard Nixon, who was quite unattractive, and people saw Nixon through Ford. That is, I could wriggle out of conceding that the "last time" was as recently as 1976. But what's the point? We get stopped at the next notch, 1972. Nixon was distinctly less pretty than George McGovern. Nixon was also less pretty than Hubert Humphrey in 1968, not that Humphrey was at all cute. 1964 was also a clear case of the uglier guy winning, LBJ being perhaps the ugliest President ever, and Barry Goldwater looking quite good. One more step back and we get to 1960, the strongest case I remember seeing beauty boosting a candidate across the line. And everyone talked about it (and still talks about it).

It's interesting that after that 1960 beauty contest, we got our spate of the uglier candidate winning. Why? The ugliest man ascended to the Presidency after the assassination of the handsome idol, and it was not odd that he was elected shortly thereafter. It took almost 20 years for us to revert to choosing the handsomer man, but ever since — more than 3 decades — we've chosen beauty.

This year, the GOP has made a strong choice in the beauty contest. It's not clear who's handsomer. Of course, it's clear if we average in the VP component, but the VP beauty boost is an iffy proposition. It didn't work — at least not enough — for John McCain or John Kerry. But I'm thinking if only Gerald Ford had picked someone prettier than Bob Dole....

Yesterday, we drove past the new "Occupy Madison" encampment...

... which you can see in the first 10 seconds of this 14-minute video...



... and you can hang out with Meade and me for the rest of the drive if you want. You'll see some more of Madison and the University of Wisconsin and eavesdrop on us. It's not all politics, I assure you, at 2 p.m. on a beautiful Saturday.

ADDED: A couple extra videos for reference. Here's the awesome song "United We Stand" by Brotherhood of Man:



And here's one of the wonderful "I'm a Pepper" commercials from the 1970s:



Of course, you must know the Herman Cain "smoking man" commercial, and here's the take-off by the Huntsman daughters.

AND: 2 more references. Donald Rumsfeld:



And Little Edie:

"When I arrived back in 2001 I found 10,000 lawyers in the Department of Defense."

Says Donald Rumsfeld:

They're there at every level. We live in an enormously litigious society and the Congress contributes to that. As a result, there's practically no step that's made by anyone in the Pentagon and in the Department of Defense where they do not take into account the legal implications and consult lawyers about it....

There's a pattern in the department, at the top level, the chairman and the chief and the Joint Chiefs will recommend some rules of engagement for a certain circumstance. It will then be sent down the chain of command and it will get to the next command level, maybe the Combatant Commander, and the Combatant Commander will look at it, and then he will not want to violate it. So he might take a little tuck in it. And then it goes down to the next level. And it's got now it's in a country commander. And he looks at it and he doesn't want to break the rule so he takes a little tuck in it. You end up with four or five layers down there taking tucks and you end up with some rules of engagement that don't look like what the chairman of the Joint Chiefs or the Joint Chiefs of Staff or even the Combatant Commander intended. Now why is that? Well, it's fear. It's because of our litigious society. It's because of Congress overseeing things and having hearings.

Rumsfeld to Bush: "Commit to the LORD, whatever you do, and your plans will succeed - Proverbs 16:3."

And: "Open the gates that the righteous nation may enter, the nation that keeps the faith - Isaiah 26:2." Captions for Iraq war photos.

"Make the American people realize they are surrounded in the world by violent extremists."

Rumsfeld's "snowflake" memos.

Is the WaPo "running a story based off of selective quotations and gross mischaracterizations from a handful of memos -- carefully picked from the some 20,000 written while Rumsfeld served as Secretary"? Or does this story "shed light on [the] brusque management style" of "a defense secretary disdainful of media criticism and driven to reshape public opinion of the Iraq war"?

IN THE COMMENTS: Joel writes:

Let me see if I have this straight, we can get the memos of a defense secretary in a time of war before the administration he worked for is even out of office, but we cannot get the memos of the first lady 7 years after her administration is over?

"These letters, once released, would be published on the Internet and their authors discussed, even mocked, by bloggers."

An incredibly banal line in an argument leads to a really padded NYT story. If the judge had caved to this argument against releasing the letters written in support of Scooter Libby -- by Donald Rumsfeld, John Bolton, Paul Wolfowitz, etc. -- there might have been something worth going on about. But he didn't, so...

"In half a century, I have not seen a president so isolated from his own party in Congress..."

".. not Jimmy Carter, not even Richard Nixon as he faced impeachment." Says Robert Novak.

[N]ot many Republican lawmakers would speak up for Gonzales even if they were sure Bush would stick with him. He is the least popular Cabinet member on Capitol Hill, even more disliked than Rumsfeld was. The word most often used by Republicans to describe the management of the Justice Department under Gonzales is "incompetent."...

The saving grace that some Republicans find in the dispute over U.S. attorneys is that, at least temporarily, it draws attention away from debate over an unpopular war. But the overriding feeling in the Republican cloakroom is that the Justice Department and the White House could not have been more inept in dealing with the president's unquestioned right to appoint -- and replace -- federal prosecutors.

The I-word (incompetence) is also used by Republicans in describing the Bush administration generally. Several of them I talked to cited a trifecta of incompetence: the Walter Reed hospital scandal, the FBI's misuse of the USA Patriot Act and the U.S. attorneys firing fiasco. "We always have claimed that we were the party of better management," one House leader told me. "How can we claim that anymore?"

Painful.

"Say you're an average congressman. How do you react to President Bush's Iraq speech?"

William Kristol channels congressional thought processes:

You suspect, deep down, that he's probably doing more or less what he needs to do. We can't just click our heels and get out of Iraq--the consequences would be disastrous. And the current strategy isn't working. You have said so yourself. Last fall you called for replacing Rumsfeld. You've complained that there weren't enough troops. What's more, you've heard good things about General David Petraeus from colleagues with military expertise. So now Bush has fired Rumsfeld, put Petraeus in command, and sent in more troops. Maybe this new approach deserves a chance to work?

Is that what they really think? I'd guess they were thinking this new approach doesn't deserve a chance, because it's not going to work. In Kristol's account, the members of Congress go on to undercut the President's efforts for little reason other than their own political advantage.

Should judges accept amicus briefs from former judges?

Here's a conspicuous rejection:

A divided panel of the United States Court of Appeals for the District of Columbia Circuit, which will soon decide an important case concerning detainees at Guantánamo Bay, Cuba, rejected a friend-of-the-court brief submitted in the case by [seven retired federal] judges. Two former chief judges of the court were among those rebuffed....

“It certainly tells you,” Mr. Rivkin said, “how at least some of the D.C. Circuit judges feel about the anti-Bush-administration judicial activism by their former colleagues.”...

The two former chief judges on the brief, Abner J. Mikva and Patricia M. Wald, were appointed by President Jimmy Carter.

Mikva interviews that it's not political, it's personal: the judges are just mad at him for opposing those free vacations people like to give them.

Let's assume, though, that this was an actual legal opinion and not an abuse of power or a fit of spite. Isn't this a serious issue? Two legal experts take two sides:

Ronald D. Rotunda, a law professor at George Mason University, said it was an unexceptional application of a sensible policy.

“There is no particular reason why former judges should be able to leverage their titles in litigation,” Professor Rotunda said.

Stephen Gillers, a law professor at New York University, disagreed. “It’s more than petty,” Professor Gillers said of the brief’s rejection. “It’s unnecessary and insulting.”

The court's opinion -- for Judges David B. Sentelle and A. Raymond Randolph -- is very short, little more than an invocation of a sentence in Advisory Opinion No. 72 of the U.S. Judicial Conference Committee on Codes of Conduct:

Judges should insure that the title 'judge' is not used in the courtroom or in papers involved in litigation before them to designate a former judge, unless the designation is necessary to describe accurately a person's status at a time pertinent to the lawsuit.

That opinion appears in full in Judge Judith W. Rogers's dissenting opinion, and you can see there that the concern was the appearance of partiality where a judge calls one lawyer "Mr." and the other lawyer "Judge," not any larger question about whether judges have a sufficient interest in the litigation to justify filing an amicus brief. In this case, here's how they phrased their interest:

Amici are retired federal judges who have dedicated their professional careers to our judicial system. The issue presented by these consolidated cases challenges the integrity of that system: may this Court sanction life-long detention in the face of credible allegations that the evidence upon which the detention is based was secured by torture?

Basically, the judges offer their judicial opinion. As the dissenting judge notes, the U.S. Supreme Court accepts briefs from former federal judges whose interest is solely a judicial perspective. In Hamdan v. Rumsfeld, there was a brief from former federal judges whose stated interest was only that they were former federal judges and had an opinion on the issues in the case.

If it is an established practice and since the motion to submit the brief was unopposed, it does seem "more than petty" and "unnecessary and insulting" to reject the brief. I might be willing to accept the idea that there is something deeply wrong with former judges submitting what are nothing more than judicial opinions to sitting judges, but with no substantial opinion explaining this position, Sentelle and Randolph have nothing.

ADDED: To stave off confusion and needless corrections, let me say that the usage of "interviews" above is Television Without Pity style slang. And you can consider me to be doing Courts Without Pity. And don't steal Courts Without Pity™ as name for your blog.

MORE: Three Volokh Conspirartors weigh in.

Eugene Volokh says:

[T]he reason that they are filing the brief is that they are hoping that their experience and past accomplishments will impress the judges and Justices who may consider the case, and will move those active judges to pay special attention to the arguments in the brief. (They may also hope that the public and the bar will pay such special attention as well.) But there seems to be nothing nefarious in that -- the whole point of having amicus briefs be signed rather than anonymous is so that the court may consider, for whatever it's worth, the identity of those making the argument as well as the contents of the argument.

Orin Kerr suspects that the retired judges are probably just allowing their names to be used on briefs they didn't work on and know little about. Maybe this should be discouraged, but it wasn't worth rejecting the brief.

Jonathan Adler writes to reject Mikva's charge that Sentelle and Randolph had a personal grudge: "I think it clear that Judges Sentelle and Randolph believed that Mikva and the other judges on the brief were inappropriately using their status as former judges in an effort to influence the case."

"Clearly, the worst day was Abu Ghraib..."

"... seeing what went on there and feeling so deeply sorry that that happened." -- Donald Rumsfeld, leaving office.

Why Bush (the Elder) cried.

Peggy Noonan says:

[N]o one who knows George H.W. Bush thinks that moment was only about Jeb....

Surely Mr. Bush knew--surely he was first on James Baker's call list--that the report would not, could not, offer a way out of a national calamity, but only suggestions, hopes, on ways through it. To know his son George had (with the best of intentions!) been wrong in the great decision of his presidency--stop at Afghanistan or move on to Iraq?--and was now suffering a defeat made clear by the report; to love that son, and love your country, to hold these thoughts, to have them collide and come together--this would bring not only tears, but more than tears.

She goes on to speculate about the younger Bush's feelings:

He has been shorn of much--his place in the winner's circle, old advisers. A man who worked for Richard Nixon reminded me the other night that when Nixon fired Haldeman and Ehrlichman, "he lost his asbestos suit." He lost his primary protectors and loyalists. President Bush is now without a similar layer. Old staffers gone, Rumsfeld gone, Cheney marginalized, Condi and Karen off representing. And the ISG. And the loss of Congress.

And yet the president presents himself each day in his chesty way, with what seems a jarring peppiness.

Why hasn't the ordeal registered on George W. Bush's face? His foes would, I think, say it's a sign of his idiocy. He's too shallow and witless to have processed the information. His fans must think it's depth of character (if not divine inspiration). Peggy says:

It is part of the Bush conundrum--a supernal serenity or a confidence born of cluelessness? You decide. Where you stand on the war will likely determine your answer. But I'll tell you, I wonder about it and do not understand it, either what it is or what it means. I'd ask someone in the White House, but they're still stuck in Rote Talking Point Land: The president of course has moments of weariness but is sustained by his knowledge of the ultimate rightness of his course . . .

If he suffers, they might tell us; it would make him seem more normal, which is always a heartening thing to see in a president.

But maybe there is no suffering.

Maybe he outsources suffering. Maybe he leaves it to his father.

I haven't heard an "outsourcing" joke in a while. Not that that's really a joke. It's nothing all that special for parents to suffer for their children. Once our children are not babies anymore, we have to release them into the world and see what happens. It's a dangerous thing about having children. It's like having a second body that can experience pain, but you can't control what that body does. You can't avoid that pain. But your suffering as a consequence of what happens to them doesn't save them from pain. It may make it worse. Didn't you refrain from telling your parents things that would only make them feel bad? If your parents are deceased and something bad happens to you, don't you think about how they didn't have to suffer the pain of knowing that? So it's a joke-like end to a column that raises a serious question: Why hasn't wartime presidency ravaged GWB the way it ravaged Lincoln, LBJ, and Nixon?

IN THE COMMENTS: Some excellent answers to that last question. Sean says:

Repeating what others have said, George Bush is a child of privilege. People like that (I am one) never worry, because we are Fortune's children. Roosevelt wasn't ravaged by WWII.

And Ed serves up the red meat for the conspiracy theorists.

"The memo will be spun in the usual ways; the best thing is to read it for yourself."

Says John Hinderaker of the Rumsfeld memo -- leaked and published in the NYT. Exactly. Read the memo yourself: here.

IN THE COMMENTS: Steven B says:

My conspiracy theory: The memo is a fake. I've read several different places that Rumsfeld despises acronyms, never uses them, and doesn't allow them to be used in documents he reads or dictates.

Ruth Anne says:

Stephen B: If your acronym theory is correct, here's another one that crept in, "Korean Katusas"

Katusa is an acronym for Korean augmentee to the U.S. Army.

Is that true about Rumsfeld and acronyms?

MORE: By the Sea writes:

I worked on Secretary Rumsfeld's personal staff for three years and at least the writing style is consistent with his. He does use acronyms, and especially in snowflakes, those nasty things that come drifting down from his office that ruin your chances of going home on time.

All I can say is based on writing style, it seems authentic.

"Through the long, bloody summer and fall of 1864, the South had hung on only because of the belief that the North might tire of the conflict."

"But Lincoln did not tire. Instead, he doubled the bet--and won the war," writes William Stuntz (via Instapundit).

Of course, he's talking about Iraq:

Why do insurgent gangs, who have vastly smaller resources and manpower than the American soldiers they fight, continue to try to kill those soldiers? The answer is, because they believe they only have to kill a few more, and the soldiers will leave. They need not inflict a military defeat (which would be impossible, given the strength of the American military)--all they need to do is survive until American voters decide to throw in the towel, which might happen at any moment.

The proper response to that calculation is to make emphatically clear that the fight will not end until one side or the other wins, decisively

Much more at the link. Stuntz's main point is that people -- like Rumsfeld -- who apply the principles of business to war are making a profound mistake.

"Is he stepping down? You bet. Does he admit defeat? Not by a long shot."

"Is the country going to miss the way he acted smarter than everyone else and often preempted media questions by interrogating himself as a rhetorical device? Sort of -- the way you might miss your father's spankings."

Losing Donald Rumsfeld -- the style perspective.

I always enjoyed his rhetorical style, but some people haaaated it. Like Calvin Trillin:

[H]e has been amazed at Rumsfeld's ability to be at once brashly know-it-all and disarmingly homespun. "It was a wonderful mixture of arrogance and 'Aunt Harriet' language" like goodness gracious, Trillin says. "I don't think anybody can match that."

... Trillin writes that Rumsfeld conducted his press briefings "as if trying patiently to explain the obvious to a class of slow third-graders. (Might you prefer to be briefed by someone less arrogant and condescending? Yes. Do we always get what we want? Of course not.)"

I like sharp, colorful characters on the public scene. But if you don't approve of what someone is doing, too much style is irritating as hell. Presumably, the new guy will present a blander image, part of the whole new program of making everybody feel better about everything.

Will the new guy do anything different? We shall see.

I'm back.

Hi, everyone. I'm back from Washington, with a class to teach in a couple minutes, but I just wanted to drop a post here in case you wanted to start talking about the Rumsfeld resignation, the knife's edge split in the Senate, what the task for the Democrats is now, and other post-election things.

UPDATE: Class is over. Now, I'd really like to see what you folks have been writing. I have over 400 unread comments. Time to speed read.

"It is not the presidency that 'won.' Instead, it is the judiciary that lost."

John Yoo has a new piece about the new military commission law, which Bush signed on Tuesday:

The new law is, above all, a stinging rebuke to the Supreme Court. It strips the courts of jurisdiction to hear any habeas corpus claim filed by any alien enemy combatant anywhere in the world. It was passed in response to the effort by a five-justice majority in Hamdan v. Rumsfeld to take control over terrorism policy. That majority extended judicial review to Guantanamo Bay, threw the Bush military commissions into doubt, and tried to extend the protections of Common Article 3 of the Geneva Conventions to al Qaeda and Taliban detainees, overturning the traditional understanding that Geneva does not cover terrorists, who are not signatories nor "combatants" in an internal civil war under Article 3.

Hamdan was an unprecedented attempt by the court to rewrite the law of war and intrude into war policy. The court must have thought its stunning power grab would go unchallenged. After all, it has gotten away with many broad assertions of judicial authority before. This has been because Congress is unwilling to take a clear position on controversial issues (like abortion, religion or race) and instead passes ambiguous laws which breed litigation and leave the power to decide to the federal courts....

This time, Congress and the president did not take the court's power grab lying down. They told the courts, in effect, to get out of the war on terror, stripped them of habeas jurisdiction over alien enemy combatants, and said there was nothing wrong with the military commissions...

The law goes farther. It restores to the president command over the management of the war on terror. It directly reverses Hamdan by making clear that the courts cannot take up the Geneva Conventions. Except for some clearly defined war crimes, whose prosecution would also be up to executive discretion, it leaves interpretation and enforcement of the treaties up to the president. It even forbids courts from relying on foreign or international legal decisions in any decisions involving military commissions.

Read the whole thing. I think Yoo overdoes it describing what a rebuke this is to the Supreme Court. The analysis in Hamdan relies heavily on the lack of congressional support for things the Executive was doing, so it makes sense to see the new legislation as providing the legislation the Court thought was needed -- responding to Hamdan, not slapping back at it. The question is: How will the Court respond now that the moderate ground for opposing the President is gone? To preserve the courts' role in the face of the new statute will take something more like what Yoo calls "cater[ing] to the legal academy, whose tastes run to swashbuckling assertions of judicial supremacy and radical innovations."

Iraq talk: victory, appeasement, fear.

The NYT observes that President Bush's most recent Iraq speech used the word "victory" 12 times, a word he's avoided for months. The same article also notes that he did not use the concept of "appeasement" to knock his political adversaries, as Dick Cheney and Donald Rumfeld each did earlier in the week.

Meanwhile, the Democrats are working on getting us to see through their frame:

“After six years,’’ said Representative Rahm Emanuel of Illinois, chairman of the Democratic Congressional Campaign Committee, “they’ve got only fear to sell.’’

Another Democrat, Senator Barbara Boxer of California, called the Bush speech “a long repetition of old messages and rhetoric to scare the American people’’ and said she would push for a Senate vote calling on the president to replace Mr. Rumsfeld.

The Times doesn't specifically call attention to this as a language ploy, even though the quoted text comes right after the discussion of "victory" and "appeasement."

Time on Hillary.

Time has a huge article on Hillary Clinton and the hot news that she wants to be President. I thought this paragraph was interesting:

[S]he is not as insulated as she once was on the left, which is far angrier than it used to be. Some liberals say they will not forgive her support for the Iraq invasion or, even worse, her refusal to recant that vote. When Hillary addressed the liberal group Campaign for America's Future in June, she was booed. And everyone there knew whom Kerry meant when he said, at the same conference, "It's not enough to argue with the logistics or to argue about the details. It is essential to acknowledge that the war itself was a mistake." Hillary of late has made a point of stepping up her criticism of the Bush Administration, to the point of calling for the ouster of Defense Secretary Donald Rumsfeld. And in a neat bit of Clintonian triangulation, she distanced herself from pro-war Senator Joe Lieberman even as her husband campaigned for him. But the hard truth is, she doesn't have much wiggle room. National security is the toughest test for a Democrat, particularly for a woman and especially for a woman so associated with feminine causes like child care and education. Her chief strategist has a grim assessment of what Hillary is up against on that front. The country may be ready for a woman President, Bill has privately told friends, but the first one to make it is more likely to be a Republican in the Margaret Thatcher mold.

Or one that Hillary could have been if she hadn't tried to shake off the hawkish image she'd been working on most of the time she's been in the Senate.

And check out how much of the article is about Bill Clinton. His name is mentioned more than 25 times! When Hillary runs, we'll be endlessly talking about Bill, comparing her to Bill, wondering what Bill thinks of her, how much Bill would sort of be President again, etc.

The Supreme Court turns Padilla away.

Gina Holland reports:

"In light of the previous changes in his custody status and the fact that nearly four years have passed since he first was detained, Padilla, it must be acknowledged, has a continuing concern that his status might be altered again," Kennedy wrote... "That concern, however, can be addressed if the necessity arises."

Deborah Pearlstein, director of law and national security at Human Rights First, said: "This is a warning shot for the administration. It would be hard for the administration not to see it that way."

Pearlstein said the court may have given away the outcome of a second case arising from its strategy in the war on terror. Justices heard arguments last week in an appeal by a foreign terrorist suspect facing a military commission on war crimes charges at Guantanamo Bay, Cuba. Justices seemed skeptical of the government's arguments.

I'd like to see some more explanation of Pearlstein's theory. Is it just based on last week's argument, or is it an inference from today's vote? If the latter, I don't see it. Three justices wanted to hear the case: Souter, Ginsburg and Breyer. Stevens could have provided the fourth vote needed to grant certiorari, but he joined the Kennedy opinion. Gina Holland called that a "surprising... unusual alliance." Isn't the simplest explanation that Stevens is predicting what the Court would do with Padilla's case, perhaps based on what he already knows about the outcome of the Guantanamo case (Hamdan)?

Some commentary:

Orin Kerr: "Some will try to look for significant signs in the fact that both Stevens and Chief Justice Roberts joined Kennedy’s opinion, but I don’t know if that is justified."

Steve Vladek: "Justice Stevens?? It was his dissenting opinion two years ago that concluded that Padilla's case implicated 'nothing less than the essence of a free society.'"

Marty Lederman: "[E]vidently Justice Kennedy was not prepared to give either side of the Court the necessary assurance of his views on the merits; this might explain, for example, Justice Stevens's decision not to provide the fourth vote..."

Tung Yin delves into the technical question of whether the case is moot, because Padilla originally asked to be brought to trial and the government has proceeded to do exactly that.

I agree with Justice Ginsburg that the case falls within the "voluntary cessation" exception to the mootness doctrine. The exception is designed to prevent a party from creating mootness by changing its behavior, when it would be able to return to its old ways after it has extricated itself from the litigation. But the question in Padilla was whether to grant cert, and the Court has discretion.

As Kennedy writes: "Whatever the ultimate merits of the parties' mootness arguments, there are strong prudential considerations disfavoring the exercise of the Court's certiorari power." That is, we don't need to say whether we could hear the case if we wanted to, because we don't want to.

Under the circumstances in this case, the government is unlikely to go back to its old behavior. Kennedy makes a point at the end of saying that the courts will be monitoring the government and should act quickly if Padilla's status is changed again.

But why isn't he interested in judicial review of the government's treatment of Padilla in the past?

That Padilla's claims raise fundamental issues respecting the separation of powers, including consideration of the role and function of the courts, also counsels against addressing those claims when the course of legal proceedings has made them, at least for now, hypothetical.

This is the standard reason judges give for requiring a real controversy. It's what you say after you've decided to avoid the case when you've got discretion to hear it. Compare Ginsburg's opinion:

This case, here for the second time, raises a question "of profound importance to the Nation," Rumsfeld v. Padilla, 542 U.S. 426, 455 (2004) (STEVENS, J., dissenting): Does the President have authority to imprison indefinitely a United States citizen arrested on United States soil distant from a zone of combat, based on an Executive declaration that the citizen was, at the time of his arrest, an "enemy combatant"? It is a question the Court heard, and should have decided, two years ago. Ibid. Nothing the Government has yet done purports to retract the assertion of Executive power Padilla protests.

So take your pick: It's a very important question, so we should answer it; or it's a very important question, so we shouldn't answer it.

"The institutional vanity and intellectual slovenliness of America's campus-based intelligentsia...."

So begins George Will's column on the Solomon Act case (Rumsfeld v. FAIR):

On Monday Roberts's shredding of the law schools' arguments included a tartness that betrayed impatience with law professors who cannot understand pertinent distinctions.

See what you get when you write a crisp, clear opinion? Columnists portray you as impatient and tart. Damn it, Will! Roberts is writing well. Are you so used to flabby, obfuscatory court opinions that you think they're a way to show that a justice takes the arguments and his job as a judge seriously?

Well, Will would like to think that we professors are just lost in a world of our own, but the truth is that we've put a lot of effort into enforcing standards of nondiscrimination in our law schools, and we don't like to have to sacrifice that for the sake of the military's Don't-Ask-Don't-Tell policy.

Recruiters are obviously not components of law schools; they are outsiders on brief visits for a limited purpose. "Nothing about recruiting," Roberts wrote, "suggests that law schools agree with any speech by recruiters." Besides, "We have held that high school students can appreciate the difference between speech a school sponsors and speech the school permits because legally required to do so, pursuant to an equal access policy." Then, Roberts's tartness: "Surely students have not lost that ability by the time they get to law school."

The law schools and faculties earned that sip of the chief justice's vinegar by bringing this case to court. The professors deserved -- no, let us just say they needed -- better legal advice than they were able to give themselves.

Will is being obtuse. People make the best arguments they can, once they've decided to litigate. The decision to litigate is not based solely on the strength of the arguments. It's wrong to bring a completely unfounded claim, but there is a worthy tradition of making difficult new arguments, even when the chances of losing are high, when one believes important principles are at stake, as the law professors did here.