David Gregory, neatly tweaked...

... by Drudge (in Christmas colors):



The links are: "Did David Gregory Violate DC Gun Law On National TV?" and "Mocks NRA Chief for Proposing Armed Guards; Sends Kids to High-Security School..."

And here's the transcript for the whole interview. We watched it. Gregory was all heated up, eager to extract his sound bites from LaPierre, in the typical style of recent gun control debates I've seen, like this one between Bob Wright and Jacob Sullum. The one who wants gun control cranks up the emotion, and the gun control opponent stolidly stands his ground.

It's like they intended to make an implicit argument, premised on the question: This is what a human being is like; do you want people to have guns? The gun control advocate models the answer "no" (because people run on emotion and might do unpredictable, regrettable things). The gun control opponent models the answer "yes" (because people are stable and rational).

It's all about control: Do you think people are self-controlled or is government control needed? And now, I see this post is about to bust loose into a much more general set of observations about politics, and I don't want to do that. This is a blog post, the first of the day, and it needs to come to an end. So let me leave you with 3 brief bonus observations:

1. David Gregory was not appearing on "Meet the Press" as a gun control advocate. He's the moderator... some sort of "journalist."

2. If a new federal gun control program includes a buy-back of some newly banned "assault" weapons, it will be like Cash for Clunkers. I hated Cash for Clunkers.

3. The post-Newtown gun control advocates have been emphasizing the gun, rather than the person, on the theory that a person may have murderous impulses but if he doesn't have a gun, he won't be able to do as much damage. But in real life, if you had someone in you midst who was bent on murder, you would not think: Well, at least he doesn't have a gun. If he goes off, what's the worst he can do, maybe 4 or 5 kids, max?

"The founding fathers never envisioned the damage that could be done by a 24-hour news cycle."

"The media incentivizes killers by giving them attention, and they put innocent people in danger."

Clearly, we cannot sit by and hope this situation will improve. How many more deaths will it take before someone does something?

I know what you're thinking: Free societies are inherently messy. And what about the First Amendment?

I'm not suggesting we completely abolish the media. But perhaps we should curtail it. Isn't it time for some common sense media control?

It's time for a conversation and perhaps a commission... about common sense control....

Did Chief Justice John Roberts "lose his cool"?

I keep reading about this incident, invariably with the focus on the Chief's demeanor, causing me to suspect that the press is covering for the Obama administration again:

The chief justice accused the solicitor general’s office of being less than candid, by suggesting (as he read the government’s brief) that the secretary of labor in the Bush administration had changed her mind “upon further reflection” when that was not the reason at all. Instead, he corrected, it was “a new secretary now under a new administration” who had done so.

The chief justice scolded, “Don’t say the secretary is now of the view. It’s not the same person. You cite the prior secretary by name, and then you say, the secretary is now of the view. I found that a little disingenuous.”

You can listen to the interchange here, beginning at 29:00. Roberts sharply criticizes the government's lawyer, Joseph R. Palmore, for something that — it seems rather obvious — deserves criticism. I don't hear Roberts becoming inappropriately emotional, which is what "losing his cool" means.

Now, if you want to say Roberts is a hypocrite because his writing is equally disingenuous or worse, that's another matter. It's what Andrew Cohen at The Atlantic is doing in an item titled "The Nerve of John Roberts":

A little disingenuous. This from a judge who disappeared the scope of the Commerce Clause in the Affordable Care Act case.

Disappeared the scope? That's Cohen's way of referring to the identification of some limit on the scope of the commerce power, so that it didn't reach a private citizen's failure to purchase insurance. Congress has power under the Commerce Clause to regulate nearly everything else, which to Cohen's eye is no power at all. Unless it's everything, it's nothing. Disappeared!

This from a judge who gutted decades of First Amendment precedent in the Citizens United case after reaching out, unilaterally, to expand the scope of that campaign finance case.....

Yes, yes, roll out your list of Supreme Court decisions you wish went the other way. That's not in the same category as deceptively stating the facts of a case, which is simply not acceptable in lawyers' briefs. The Solicitor General's office disserved us. The Chief Justice called the lawyer on a deception and — with restraint — said he "found it a little disingenuous."

What I find disingenuous is the criticism of the Chief Justice. And after all he did for you upholding Obamacare! (He used the tax power instead of the commerce power).

But no thanks will be forthcoming. Pressure must be kept up. This is a big term for the Supreme Court — gay marriage (probably), affirmative action, the Voting Rights Act — and Roberts's vote may be required to reach what the media know are the right results. Roberts needs to know that any love for him is purely contingent. He's being watched.

Jerry Seinfeld almost critiques liberal thought.

At one point in this comic conversation with Ricky Gervais (the new episode of "Comedians in Cars Getting Coffee"). This interchange comes after much talk about how the car Jerry's driving is a death trap, and Jerry has just quoted Gary Gilmore's last words ("Let's do it"), which made Ricky laugh and then get introspective:

I really think the death penalty is too depressing to even think about. I don't agree with it that the state can show that sort of form of violence.

Jerry advances the conversation in the conventional way:

What about abortion? Do you agree with that?

Ricky gestures at the stock response:

Yeah, but that's different. Isn't it?

And here's where Jerry almost does the critique of liberal legal analysis:

I guess you can just arrange things the way you like them... when you're rich, famous, like you.

Notice how he had to catch himself and re-orient himself liberally with that when you're rich, famous. The rich must be the problem. They think they can arrange the rules to serve all their interests.

And then the final "like you" is a lifeline to Ricky, who catches it, saying, "Yeah. Unlike you, who's just a guy with an old car going along the highway, laughing maniacally 'cause someone's fear was they're about to die. I should have said 'Let's do it' when I got in this car."

And Jerry is laughing maniacally, clutching the death-trap's steering wheel in helpless hilarity. Scene over. Moving on the the coffee portion of the show.

Side note: All you Althouse blog readers who used to live in Pelham Parkway — check out the signage at 4:37.

49% of likely voters want "strict legal interpretation" of the Constitution.

And only 21% think that's what we're getting. 60% think the Supreme Court is giving us the so-called "living" version of the document.

Male voters are more inclined to favor strict interpretation of the Constitution, while female voters prefer more legal flexibility and tend to see it as a living document. Most voters under 40 see the Constitution as a living document; most older voters think the Constitution should be strictly interpreted.

Why are women like younger folk and men like older folk? Strict/flexible — what's that about?

What, exactly, makes some people express beliefs in the value of flexibility — or is it "living" — and others in the value of strictness? It would be simplistic to think that women (and young people) are themselves loose and flexible, while men (and old people) are strict and inflexible, because we learn perhaps only what feelings superficially attract them and how they like to think about themselves. I'm tough and neutral/I'm nuanced and merciful. So you say.

Prompted by this forum discussion at Isthmus the other day, I (and Meade) took a quickie Myers-Briggs test. Interestingly, Meade and I got the same result. But I think the test is a bit absurd. The questions test how you think about yourself, not what you really are. Even if we were to accept that there are 4 dimensions of personality and only 2 ways to go within each dimension, you couldn't know where you really are. For example, in the 3d of the 4 dimensions, you can be "thinking" or "feeling." But I suspect the folks who ended up with "thinking" were at least as emotional in response to the relevant questions as those who got pegged as "feeling." What makes a person say yes to "You trust reason rather than feeling"?

"Reason" sounds right... but what drives you to answer the way you think is right? How soberly and clearly have you analyzed where you have put your trust — really, as you live your life? Putting the question that way makes me think the more reason-based person is more likely to answer no to "You trust reason rather than feeling" than the person in the grip of impulsive emotion. Of course, I'm a reason guy! Yeah, and you believe in the strict legal interpretation of the Constitution. So you say. But can I watch you do it? Can I look into your brain, Justice Scalia, and see the reason-gears turn independently of emotion?

Someone on the conservative side of the Supreme Court "wants us to know that they’re pissed off, and they want us to know why."

Orin Kerr deduces.

But why were they so pissed that they immediately leaked? You'd think these characters would have more self-control. I'd like to suggest that it was controlled. These smart guys think fast. They made a cold calculation. There's an effect they seek — they had a political strategy — and it's simply most effective if it's put in motion at the point when everyone's involved in trying understand what happened. That's my speculation. The speculation that they are not hotheads. Which would require changing Kerr's first "know" — in the quote in my post title — to "think."

Here's what Kerr says:

If you leak to [journalist Jan] Crawford with the spin that Roberts’ decision was illegitimate, and then the mandate opponents pick up that theme and run with it, perhaps that view will gain some traction in the legal world and will help out another challenge in the future. Or perhaps there’s a smoking gun that explains what Roberts was thinking that hasn’t been made public yet. Or perhaps the health care cases just made people act strangely. It’s hard to know.

Are Justices "people"? They live in such a ridiculous environment that it's hard to know what counts as strange. It's a strange way of life.

(And yet we trust them! Presumably, we trust them because they're following some process we regard as legal, even though we don't really believe they do, and we're reduced to complaining about how they don't or positing theories that legitimate something else that we think they might do but that we can't articulate in a form that actual people — people people — can swallow.)

"If they decide this [against ObamaCare] by 5-4, then yes, it’s disheartening to me, because my life was a fraud."

"Here I was, in my silly little office, thinking law mattered, and it really didn’t. What mattered was politics, money, party, and party loyalty."

So said Yale lawprof Akhil Reed Amar to WaPo journ-o-list Ezra Klein, prompting National Review's Matthew J. Franck to turn the question around exactly the way I was going to before I saw that Matthew J. Franck already had:

If the Court goes 5-4 in favor of ObamaCare, will that be, you know, like, a totally okay, nonpartisan, statesmanlike decision?

But really how is a lawprof's life a fraud if it turns out that the Supreme Court is governed by politics, money, party, and party loyalty? As a lawprof myself, I see the Court as an object of study. Whatever it does, my work has meaning.

And looking back at what Professor Amar said, I now think he's being funny. I haven't seen his office, but I'm pretty sure it's damned posh — along with his salary — and not "silly" or "little" at all. Obviously, like any smart conlawprof, he knows that the real world of human beings interpreting the Constitution isn't pure, that human emotion, swirling with everything that affects human beings — politics, money, party, and party loyalty — must play its part. What would law — this law that supposedly matters — be without the human element?

It's inconceivable. Or if you could conceive of it — truly and honestly, without the impurities of humanity (and how would you, you being human?) — I think you would find it to be something alien, inhuman, and brutal, and you would never want to live under the regime called "the rule of law."

But Professor Amar, who is a political creature, with partisan and money-based preferencse of his own, plays the role of the Yale law professor, applying political pressure to the Supreme Court and to the larger political mechanism (which includes the 2012 presidential election).

Are you enjoying the theater?

"When in public, do you constantly feel overwhelmed with inexplicable emotions for which you can’t determine the reason?"

Question 1 on a list of 7 questions to test whether you are an "empath," which "is not simply another name for a Clairsentient, though many Clairsentients are indeed Empaths."

If you *are* an Empath, you will know this is you, you will not be saying “Hmm.. maybe… hmm…” If you feel (without hesitation!) these apply to you as I’ve just described, then also know there are ways of coping, and I’ll get into them in future articles. With a little self-awareness you can turn your curse into gift, especially when it comes to being able to ease the emotional and physical pain of others. For now, take consolation in the knowledge that you are not crazy!

For now... but then later, like tomorrow, go to the doctor.

Bonus political joke: These are the 7 questions President Obama uses to interview prospective Supreme Court justices." (Don't get my joke? Read this.)

142 legal secretaries surveyed and not one preferred working with a woman partner.

Why? Lawprof Felice Batlan elicited these comments:

• “Females are harder on their female assistants, more detail oriented, and they have to try harder to prove themselves, so they put that on you. And they are passive aggressive where a guy will just tell you the task and not get emotionally involved and make it personal.”

• “I just feel that men are a little more flexible and less emotional than women. This could be because the female partners feel more pressure to perform.”

• “Female attorneys have a tendency to downgrade a legal secretary.”

• “I am a female legal secretary, but I avoid working for women because [they are] such a pain in the ass! They are too emotional and demeaning.”

• “Female attorneys are either mean because they're trying to be like their male counterparts or too nice/too emotional because they can't handle the stress. Either way, their attitude/lack of maturity somehow involves you being a punching bag.”

• Women lawyers have “an air about them.”

The most obvious theme there is: emotion. It's the old: Women are more emotional. A secondary theme is: Women display the effects of the discrimination they've experienced. It's a complex mix, apparently.

Obviously, the secretaries' perspectives are subjective, and they themselves are women (95% of those surveyed were) so whatever is true of women — they're emotional/they're victims of discrimination — would, presumably, also be true of them.

California already requires its public schools to teach women's history and black history, so why not gay history?

There's a bill in the state legislature that has already passed the senate.

Advocates say that teaching about gay, lesbian, bisexual and transgender people in schools would prevent bullying and shatter stereotypes that some students may harbor. They point to several students who have committed suicide after being taunted by peers for being gay. But the bill has drawn vociferous criticism from opponents who argue that when and how to talk about same-sex relationships should be left to parents.

So the motivation behind forcing this study of history has little to do with history. It's about controlling behavior.

I have this idealistic belief that young people would behave better if they were respected as students, if the study of history would be premised on the value of studying history, and if, when history is studied,   historical principles determined the subject matter. 

A similar bill was approved by the Democratic-controlled Legislature in 2006, but vetoed by Gov. Arnold Schwarzenegger, who said that school curriculum should be left up to local schools. But there is a new governor now. And both supporters and opponents of the bill expect it will sail through the heavily Democratic Assembly and be signed into law by Gov. Jerry Brown, a Democrat who has been supportive of gay rights.

How much easier it is for a politician to sign a bill than for students to slog through political lessons year after year instead of learning what truly belongs in a history class. It's disgusting to compel young people to go to school and then to treat them like this.

And don't tell me that the gay rights movement genuinely belongs in a history course. Let that topic be integrated into history courses to the extent that they truly belong in a history course, not because some politicos wanted to score points or because their emotive constituents feel that there's an epidemic of bullying and suicide and it can be cured by making heroes out of Harvey Milk and his ilk.

“It is very basic to me that people dislike and fear that with which we are less familiar,” said Mark Leno, who sponsored the bill and is one of the first openly gay men elected to the State Senate. Students who come to view their fellow classmates as regular members of society, rather than misfits, will find that “their behavior changes for the better,” Mr. Leno said.

Leno just intuits cause and effect. "It's very basic to me" isn't a good enough foundation for a law that appropriates and exploits millions of hours of the time of other human beings. I could just assert that it's very basic to me that when young people are compelled to spend day after day, year after year, under the control of adults cranking out what sounds like state indoctrination, that they will rebel against authority. And then where's the good behavior you had your warm heart set on?

ADDED: Shouting Thomas cites "South Park":

The parents in that series are all veterans of the 60s, and they think that rebellion ended with them. They think that all of the issues of authority versus kids were solved when they were adolescents. So, they are constantly astonished to discover that their kids think they are pompous windbags preaching bullshit. Their kids are rebelling against them.

Click through to see what Shouting Thomas thinks about bullying.

"On Justice Samuel Alito: Conservatives Can Have Empathy Too!"

The Wall Street Journal law blog acknowledges this Emily Bazelon piece.

This reminds me of what I wrote (in a NYT op-ed) when Bush first nominated Alito. Describing 2 cases in which he "displayed a sensitivity to the needs of adherents of minority religions" that was missing from the Supreme Court decision that, as a lower court judge, he had to apply, I went on to say:

Yes, chances are that a Justice Alito will please conservatives more often than liberals.... Still, [liberals] should give serious study to his record; they may discover that there are varieties of judicial conservatives, just as there are varieties of political conservatives, and that Samuel Alito is not Antonin Scalia.

Speaking of conservatives and empathy, Rush Limbaugh monologued about that last week:

By itself, what does sitting around caring about something accomplish? Now, if it motivates you to do something that's an entirely different thing. I find that most people, particularly people on the left, want plaudits, they want gold stars, they think of themselves as superior people just because they care....

I don't worry about things that I have no control over. I used to, big time. I can't tell you the shackles I had on myself worrying about all kinds of stuff. I was worrying about what might happen next year if I did this or did that. There was nothing more paralyzing in my life than to worry about stuff I had no control over. And in the process, I actually limited what I could control.

"[W]hat Judge Vinson decides on the constitutional issues is, as a technical legal matter, irrelevant."

From aca litigation blog (which has an excellent collection of documents from the litigation over the Patient Protection and Affordable Care Act):

The most intense week of news coverage for ACA-related litigation will only become more heavily so tomorrow, as Judge Roger Vinson (N.D. Fla.) will hold a hearing on the parties' respective motions for summary judgment in Florida v. HHS. As with Judge Hudson's decision Monday in Virginia v. Sebelius, what Judge Vinson decides on the constitutional issues is, as a technical legal matter, irrelevant. His judgment will undoubtedly be appealed, and appellate review of legal questions is de novo.

Such contempt for what the district judge does — "as a technical legal matter, irrelevant." But nontechnically, there's a "political dimension" — and that matters.

[T]he more federal judges who invalidate the ACA (or a substantial portion thereof), the more traction and legitimacy those arguments gain. This not only affects current political debates about modifications to the ACA, but it also alters the context in which the Supreme Court will ultimately decide the constitutional questions. In short, the atmospherics--though only atmospherics--are important.

So district judges only matter in the dimension where they don't really belong: politics? Oh, and influencing the Supreme Court — or "alter[ing] the context" in which the Supreme Court operates? Is that not a legal matter? Or... it's a legal matter but not a technical legal matter? There's technical law and there's atmospheric law?

The district judge — in this view — doesn't have any real power. He's more like a journalist — or a law blogger — fogging up the atmosphere with feelings about what the answer ought to be — some sort of miasma that might coalesce into a context.

***

This ties back to our discussion earlier in the week — here and here — about attempts to shape legal opinion by laughing at arguments — trying to create a social context in which smart people — and the people who want to look or believe they are smart — somehow just know that they're not supposed to take certain arguments seriously.

Who needs technical law when you can do atmospheric law?

"By the time this thing would reach the Supreme Court Obama's going to have amnesty. He's s going to have all these brand-new Democrat voters."

Rush Limbaugh rails against the federal court decision preliminarily enjoining the Arizona immigration law:

The judge is a Clinton appointee, Susan Bolton, and I remember, after it was reported or learned that she was a Clinton appointee, I remember everybody said, "Ah, but this woman, she's not a political judge. She's really not partisan judge. She's a fair judge." Oh, yeah, right. Right, right, right, right....

This judge has not ruled on the law. There is no racial profiling. We didn't make a [big] deal of it because we figure a judge is gonna look at the law, not the stupid media in making her decision. But she listened to the media. She had to ignore the high bar that was not met in staying the law. This underscores why Sonia Sotomayor should not be on the Supreme Court. This underscores why Elena Kagan should not be on the Supreme Court, because they are activists. They have no judicial temperament, judicial experience, they're not judges. Well, Sotomayor pretended to be one on TV, I guess, but she's not....

This is all reacting to the sudden news of the opinion, which he hasn't read. It's 36 pages long, and "there's no way that I'm going to be able to go through all 36 pages prior to the program ending, but I know what went on here":

[The judge has] bought the notion there was racial profiling and discrimination and all this happy horse manure that's part of the American left these days. So that's pretty much it. I guess the judge is saying it's not in the public interest for Arizona to try to defend itself from an invasion. I don't know how you look at this with any sort of common sense and come to the ruling this woman came to. But, she didn't. She's a leftist and she made an activist decision, not a judicial decision. 

So... Judge Bolton just looks at the hot-button issue and emotes without attending to the text that should govern her opinion... asserts Rush Limbaugh as he takes a glance at the news of the decision and let's his feelings flow.

To quote Rush, out of context, from the middle of that rant: "Nothing, nothing in the media is real.  There is nothing real.  Media is not real. [Political ideology] is not real. It's all spin; it's all fake; it's all lies."

"Harvard Law students are not in the 'pursuit of truth.' They’re not scientists. They’re not researchers."

"They’re law students and legal academics. I presume that everyone there is manifestly unqualified to evaluate the scientific evidence one way or the other. It’s rebuttable. If they show me their scientific creds, I’ll listen. Until then, STFU."

So says a commenter over at Volokh, provoking are great response from Volokh:

Now if these comments just complained about people who write definitive-sounding op-eds or blog posts about subjects they know nothing about, I wouldn’t be responding to it here. But of course the author of the e-mail wasn’t writing an op-ed aimed at persuading the public. She was continuing a conversation with a friend. The recommendation is that non-scientists who don’t know much about the subject shouldn’t even discuss it....

[W]hat a narrow, stultifying notion of education that is. Read quietly, on your own, with no discussion with others who are interested in the subject, until you become knowledgeable enough. Only then should you feel authorized to discuss it. Only then will we be “sympathetic” should you be publicly pilloried for your e-mail to a friend that raises the question — because only then could we say that “actual science is being foreclosed” by the condemnation of you.

The law school classroom experience requires students to discuss complicated and sensitive subjects in front of other students. How on earth are we going to be able to do that if the students think there's a terrible risk in saying the wrong thing — or the right thing the wrong way?

The way most people actually educate themselves effectively, it seems to me, is very different. They get interested in a subject. They talk to friends about it. They read some more. They talk some more about their readings, perhaps especially with people who are also learning about the matter. Their friends might help correct their errors. Enlightenment might emerge in a conversation when it didn’t emerge in mere reading.

Yes. Exactly. Human culture emerges as people interact with each other. Life would be very different if it was all about reading and studying. In fact, this is why we value diversity in the classroom, so that different kinds of individuals will converse and react. We will get to a better understanding of things that way.

Now, part of that really is seeing and feeling what makes other people angry. This conversation that is so valuable can't be bland and emotionless. Emotion is a part of reasoning and learning. But what does the group do to itself? What should the law school classroom (or any classroom) be like? There is an ideal level of interaction that includes ease and care in the expression of ideas and the response to what other people are saying. I want students to debate and even argue, to get excited and even angry, but not to the point where the exchange breaks down.

Back to Volokh:

That’s supposed to be one of the joys of intellectual life. It’s supposed to be one of the advantages of life in a university, where you can find classmates who — like you — have intellectual interests beyond your narrow field of study.

My law school, the University of Wisconsin, prides itself on interdisciplinary study. We encourage students (and faculty) to import other fields of study into working within law. We like the cross-fertilization and don't see the academic disciplines walled off from each other (with the walls staunchly guarded by the experts). Do you think law should be aridly academic? Do you think cases should be argued and decided by people who are intensely specialized in the study of legal texts? If you think you do, I don't think you'd keep thinking that if we had a way to run the experiment and see the results.

Back to Volokh:

Some of the people who learn about the subject may end up working on it professionally. People with Ph.D.s in physiology and membrane biophysics might write prominent books on anthropology and geography. Computer programmers who get interested in law, and who spend years talking to their friends about policy questions unrelated to their formal educations, might become lawyers. 

Volokh himself is that computer programmer. Jared Diamond is the biophysicist.

I think the lesson here is that we should want to experience our full humanity and to understand and respect and help each other as full human beings. This is an idea that completely harmonizes with the rejection of racism.

Is Judge Alvin K. Hellerstein too empathetic about the 9/11 lawsuits?

The NYT channels criticisms of a federal judge who has involved himself in judging the fairness and adequacy of settlements in non-class action lawsuits. (In a class action, the judge is required to determine that a setttlement "is fair, reasonable, and adequate.")

The NYT article portrays the 76-year-old as having lost his bearings:

The struggle over control of the settlement has underscored two different, but not necessarily contradictory views of the judge: the compassionate jurist driven by a sense of social responsibility and with a wealth of experience with victims’ suffering, and the aggressive judge unwilling to cede ground on cases he has shepherded for years...

“This is history for him,” said Arthur Miller, a professor at New York University School of Law who specializes in federal procedure. “This is an awesome responsibility. He wants to be the person who brought peace to this entire situation. He would not be human if he didn’t feel a personal interest in this.”...

Donald A. Migliori, a lawyer for survivors in airline-related cases whose settlement amounts were reduced, said that such intervention was unusual in a non-class-action suit. “It’s a very frustrating thing for lawyers,” he said. “He’s guided by a concept of fairness that’s not in the law.”...

... John Feal, who works as an advocate for the 9/11 workers through his FealGood Foundation, counters that Judge Hellerstein himself has emerged as a ground zero hero.

“The judge is now like Elvis in the 9/11 community,” he said. “For years these guys have been neglected, and now there’s someone who cares.”

Harvard 3L Stephanie Grace writes "I absolutely do not rule out the possibility that African-Americans are, on average, genetically predisposed to be less intelligent" — and is publicly reamed.

... at her law school, on the internet, and in the press. Grace's statement came in email sent to 2 friends, who'd had a private conversation about affirmative action. She felt a need to extend her remarks. And at some point the email got out on the internet, and all hell broke loose:

“Here at Harvard Law School, we are committed to preventing degradation of any individual or group, including race-based insensitivity or hostility,’’ [Martha Minow, dean of Harvard Law School] wrote in a message to Harvard’s law school community.

Minow said she had met with leaders of Harvard’s Black Law Students Association on Wednesday to discuss the hurt caused by Grace’s e-mail....

... Minow called the incident “sad and unfortunate’’ but said she was heartened by the student’s apology. She added: “We seek to encourage freedom of expression, but freedom of speech should be accompanied by responsibility.’’

(Via TaxProf, who collects a bunch of other links on the story, including links that will get you to the full text of the email.)

Grace has apologized. Of course, she's sorry now. "I am heartbroken and devastated by the harm that has ensued. I would give anything to take it back." Note the passive voice: "the harm that ensued." A  new way to say I'm sorry you were offended. She also says "I understand why my words expressing even a doubt [that African-Americans are genetically inferior] were and are offensive." She's learned something: This is a subject where you can't play with ideas and speculate. People get very angry, and the speaker had better be ready to deal with it.

Did Dean Minow handle this the right way? One question is: Why does the dean even get involved with something one student said in private email? If the answer is because the Black Law Students Association came to her and demanded a response, then maybe the question should be why did the  Black Law Students Association go to the dean for help? Why didn't the students all just argue and debate and express themselves to each other? These are Harvard students. Law students. Why not dig in and have it out and show your stuff? Why go to the nearest, biggest authority figure? Stephanie hurt me!

Here's the full text of Minow's message. (By the way, Martha Minow's father was FCC chairman Newton Minow, the man who called television "a vast wasteland.")

This sad and unfortunate incident prompts both reflection and reassertion of important community principles and ideals. We seek to encourage freedom of expression, but freedom of speech should be accompanied by responsibility. This is a community dedicated to intellectual pursuit and social justice....

Law school is a community with shared ideals. One of the ideals could be: When a student makes a point that contains what you think is an outrageous statement, unless she's been actively insulting to you, you should engage her in debate and not not expose her to a public trashing. And don't bring the dean into the fray as your champion. More from Minow:

As news of the email emerged yesterday, I met with leaders of our Black Law Students Association to discuss how to address the hurt that this has brought to this community. For BLSA, repercussions of the email have been compounded by false reports that BLSA made the email public and pressed the student’s future employer to rescind a job offer. 

I was going to say that "the hurt" to Grace and her reputation was much greater than the hurt to those students who only read the email. It's not as if she shouted ugly words in their face. But now I see that the BLSA students had reason to worry that they were the ones who would look bad because they were believed to have overreacted and taken some nasty revenge. Minow may have been activated by the need to clear their reputation.

A troubling event and its reverberations can offer an opportunity to increase awareness, and to foster dialogue and understanding. 

Minow tries to be even-handed and control the fallout. She frames it as a teaching moment. But what has everyone learned?

"When we have a terrorist attack, the Democrats always ask, 'What did we do to provoke it? Why do they hate us?'"

"Have you heard, any of them, ask the same for something they've imposed on us?  Have you heard the Democrats once ask, 'Why are they mad at us?  We need to understand their rage!'  We have to understand the rage of people who killed 3,000 Americans in terrorist incidents.  We're told, 'We have to understand the people in this country, minorities and whoever else, unhappy with whatever.  We gotta understand their rage. We have to expect it. We have to allow for it.'  Well, how come the anger that we feel, the Democrats aren't interested in understanding?  Why do they not ask, 'Why are they so mad?'" 

***

The Democrats immediately shifted into the theory that anger over the bill is simply not allowed. They merged that anger with actual violence, and they took whatever reports and threats of violence they could find and, in turn, merged them with the anger over the bill.

***

Can we identify neutral principles about anger and violence? How much free expression of anger do we accept in our opponents? When will we listen to it as part of a valuable debate? When do we stigmatize it as part of a system of violence? If the answer to the last question is whenever it serves our political interests to do so, then we are making propaganda.

Linda Greenhouse peers into the psyches of the Supreme Court Justices to predict what they'll say about the constitutionality of the health care bill.

She predicts the decisional path in the brains of the judges will be determined by deep instincts about the states and the federal government:

The architects of the Rehnquist federalism revolution....

Go to the link for some detail on what Greenhouse likes to call the "federalism revolution."

.... were Chief Justice William H. Rehnquist and his fellow Arizonan, Justice Sandra Day O’Connor (Chief Justice Rehnquist was actually from Milwaukee, but he decided during his Army service in North Africa that he liked the air of the desert rather than the cold and damp of the Great Lakes.) They were Westerners to whom the notion of states’ rights came naturally.

But Chief Justice John G. Roberts Jr. is not William Rehnquist, and Justice Samuel A. Alito Jr. is not Sandra Day O’Connor. John Roberts has made his career inside the Beltway ever since coming to Washington to clerk for Rehnquist. As for Sam Alito, I don’t believe that apart from a brief part-time gig as an adjunct law professor, this former federal prosecutor, Justice Department lawyer and federal judge has cashed a paycheck in his adult life that wasn’t issued by the federal government. Nothing in their backgrounds or in their jurisprudence so far indicates that they are about to sign up with either the Sagebrush Rebellion or the Tea Party.

Chief Justice Roberts appears particularly in tune with the exercise of national power. 

Here, Greenhouse notes 2 dissenting opinions —Massachusetts v. Environmental Protection Agency, where Roberts would have saved the EPA from the state's lawsuit to force it to deal with global warming, and Gonzales v. Oregon, where Roberts would have let the United States attorney general keep doctors from prescribing the suicide drugs that were authorized by Oregon law.

Finally, Greenhouse aptly observes that even some of the Justices who favor the states in federalism decisions lose their nerve when they are confronted with "issues that people really care about." Chief Justice Rehnquist balked when he got to the Family and Medical Leave Act (in Nevada Department of Human Resources v. Hibbs) — and that case was only about whether an employee of a state could get back pay when the act was violated, not the more momentous question of whether the act was constitutional or could bind the state.

So now we have a monumental new law. Can we really imagine the Supreme Court thwarting it?

John Roberts is an acutely image-conscious chief justice, as watchful and protective of the Supreme Court’s image as he is of his own. I find it almost impossible to believe that this careful student of history would place his court in the same position as the court that has been rewarded with history’s negative judgment for thwarting the early New Deal.

But the Supreme Court got cold feet about standing up to the will of the democratic branches of government right after Franklin Roosevelt won a big landslide election in 1936. The health care reform law followed an election that wasn't about health care reform at all. The main thing people were thinking about when they voted for Obama in 2008 was the dramatic economic crisis. There were also the 2 wars and amorphous hopes for a post-racial America.

The 2008 election cannot be read as a mandate for health care reform, especially not for the aspect of it that is challenged in the current lawsuits: the  individual mandate to buy health insurance. That could not possibly have been foremost in the voters' minds. First, during the campaign, Obama spoke emphatically against it. And second, even after a year of talk about the reform, people don't really understand what the individual mandate is going to be.

There isn't a big majority of Americans who are counting on being compelled to buy insurance. There isn't even a majority — even a thin majority — of Americans who favor the health care reform as a whole, and this is even before they need to confront something that is probably going to shock and distress a lot of people who haven't studied the text of the law and have simply trusted that the government is about to give them the good things they need.

Greenhouse tries to patch this hole in her argument:

Midweek polls showed the public already rallying around the new health care law. That trend is likely to accelerate as people realize that the law’s benefits belie the scare stories — just around that time that the state challenges are likely to reach the Supreme Court. It won’t require a summa cum laude in history from Harvard to be able to tell history’s wrong side from its right.

So Chief Justice Roberts and the others are going to want to surf the wave of history... that wave that we're still watching for.

"For me, it's always been taking the facts of the case and applying them to the law."

Said former Wisconsin Supreme Court Justice Louis Butler, testifying before the Senate Judiciary Committee yesterday, in a hearing on his nomination to the federal district court here in the Western District of Wisconsin. He is, in what has become typical confirmation hearing ritual, asserting his faithfulness to the law and attempting to quell charges of judicial activism.

But isn't that quote interesting? In the established liturgy, judges aver that they apply the law to the facts. For example, Sonia Sotomayor said: "The job of a judge is to apply the law... The judge applies the law to the facts before that judge."

Butler, however, said, "For me, it's always been taking the facts of the case and applying them to the law." He said that he would apply the facts to the law. Now, I don't for one minute believe that he meant to flip the ritual phrase around. I think if he were confronted with the point I'm making here, he would immediately switch the words back to the liturgical form used by Sotomayor and countless others:  "The judge applies the law to the facts before that judge."

Think what it would mean to apply the facts to the law. You begin with the factual context of the case. That is the part you know. Then, you must find the law through the use of the facts. Imagine a judge who really believed that the facts determine the law. Read this important interchange from the Sotormayor hearings:

KYL: Let me ask you about what the president said -- and I talked about it in my opening statement -- whether you agree with him. He used two different analogies. He talked once about the 25 miles -- the first 25 miles of a 26-mile marathon. And then he also said, in 95% of the cases, the law will give you the answer, and the last 5 percent legal process will not lead you to the rule of decision. The critical ingredient in those cases is supplied by what is in the judge's heart. Do you agree with him that the law only takes you the first 25 miles of the marathon and that that last mile has to be decided by what's in the judge's heart?

SOTOMAYOR: No, sir. That's -- I don't -- I wouldn't approach the issue of judging in the way the president does. He has to explain what he meant by judging. I can only explain what I think judges should do, which is judges can't rely on what's in their heart. They don't determine the law. Congress makes the laws. The job of a judge is to apply the law. And so it's not the heart that compels conclusions in cases. It's the law. The judge applies the law to the facts before that judge.

KYL: ... [H]ave you ever been in a situation where a lawyer said I don't have any legal argument to me, Judge, please go with your heart on this or your gut?

SOTOMAYOR: Well, I've actually had lawyers say something very similar to that. (LAUGHTER) I've had lawyers where questions have been raised about the legal basis of their argument. I thought one lawyer who put up his hands and said, but it's just not right. (LAUGHTER) But it's just not right is not what judges consider. What judges consider is what the law says.....

KYL: ... Have you always been able to have a legal basis for the decisions that you have rendered and not have to rely upon some extra-legal concept, such as empathy or some other concept other than a legal interpretation or precedent?

SOTOMAYOR: Exactly, sir. We apply law to facts. We don't apply feelings to facts.

Wouldn't a judge applying the facts to the law do what President Obama said he thinks a good judge will do?

I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a case book. It is also about how our laws affect the daily realities of people's lives — whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation.

I.e., apply the facts to the law.

Senator Grassley: Sotomayor "doesn't have a clear role of what the Supreme Court is."

Doesn't have a clear role of what the Supreme Court is?

He can't talk right, but he has a vote, and he's voting against Sonia Sotomayor.

Grassley said his vote in part is based on second thoughts he has had about Souter, confirmed in 1990.

"I can say my vote for him is probably the only vote for 11 or 12 Supreme Court justices that has come back to haunt me from time to time," Grassley said. "I think Judge Sotomayor's very lukewarm answer that she gave me left me with the same pit in my stomach I had as a result of my vote for Souter."

Pit in my stomach? Oh, good lord, he really can't talk right. From Common Errors in English:

Just as you can love someone from the bottom of your heart, you can also experience a sensation of dread in the pit (bottom) of your stomach. I don’t know whether people who mangle this common expression into “pit in my stomach” envision an ulcer, an irritating peach pit they’ve swallowed or are thinking of the pyloric sphincter; but they’ve got it wrong.

So, Sotomayor either does or does not make judicial decisions emanating from empathy and Wise Latina experience, and Grassley feels his decisions in his stomach and when they feel like the part of a fruit that he shouldn't have eaten — or when he's haunted — he votes no.

Does anybody have a clear role about anything anymore?