Rational?

The Kennedy/Kerry filibuster is the tactical best play for the Dems. It will appease the liberal base - the Dem senators "fought." It will give several Dem Red State senators the opportunity to split their votes: no to Alito but also no to filibuster. And it will certainly fail, so will not bring on the nuke option, thus preserving the filibuster to fight another day.

This false filibuster also increases the probability of Chaffee voting against Alito...

Immature Dissent On Display

Georgetown University Law Center recently hosted a speech by Attorney General Alberto Gonzales in which he defended the controversial NSA wiretapping of American citizen's phone calls with Al Qaeda members. The actual speech and the panel debate that followed were considered and informative. They gave an encouraging impression of Georgetown's commitment to discussing difficult issues in a mature, thoughtful manner. In stark contrast, the student protest during the Gonzales speech was an immature intellectual spasm that did nothing more than embarrass the Georgetown Law student body on a national stage.

It may seem cliché that as the president of the Georgetown Law Center Federalist Society, I would respond negatively to a protest by liberal students against George W. Bush’s Attorney General. On the other hand, I do not support much of the Bush administration’s conduct in the war on terror. For the last year and a half I have worked for Georgetown Professor Neal Katyal on the Hamdan case, challenging Bush’s use of military tribunals at Guantanamo Bay. I also probably agree with the protestors that the Bush administration’s actions in this warrant-less wiretapping are a violation of the Foreign Intelligence Surveillance Act- and maybe the Fourth Amendment.

My agreement with the protestors’ underlying policy position only increases my dismay at their conduct. By standing with their backs to Alberto Gonzales, by holding up a sign with a misquoted Benjamin Franklin statement (which CNN.com decorously labeled a “paraphrase”), by stomping out like petulant children with their black hoods on - the students embarrassed themselves, their cause, and the Law Center. Rather than showing Georgetown Law as a school where different opinions are respected - they made it seem like a place where people have made up their minds and will turn their backs on anyone who dares disagree.

Merely disagreeing with the administration does not give good reason to act disrespectfully. The school invited Judge Gonzales as a guest to our campus and he addressed us on one of the most pressing issues of the day. Many students do not agree with what he had to say- that is unexceptional. The school regularly brings left-leaning speakers to campus with whom I strongly disagree. When those speakers come, I listen respectfully and then challenge them on the facts and on the law. That is the mature and rational approach that we have been taught in Georgetown Law classrooms. We have not been taught to turn our backs and walk out of speeches simply because we do not like the message.

One question really bothered me after I saw the protest- what reasons could lead otherwise intelligent people to act in this manner? My best guess is that there is a romantic/symbolic connection to the protests of the past- when brave dissidents fought against racism and a system that did not allow their voices to be heard. These modern protestors adopted the 1960s civil disobedience paradigm without understanding the predicates that made those protests necessary. They do not understand that the reason that people turn to civil disobedience is precisely because they cannot get the same respect that Gonzales willingly offered by coming to Georgetown and by having his speech rebutted by a panel that challenged and dissected his position after he spoke.

Consider what occurred here- the Attorney General of the United States came to a predominantly liberal/hostile law school to put the administration’s argument in front of the people- just as he should in a free, democratic country. As he spoke, he knew that the next voice would be perhaps the most articulate and powerful advocate of civil liberties in the United States today, Professor David Cole. This is how the system is supposed to work.

Professor Cole, perhaps out of loyalty-but also, I hope, a little out of embarrassment for the students- praised the protestors: “I am proud of the very civil, civil disobedience that was shown here today.” Unfortunately, there was nothing in these students’ conduct that should have made him proud. Cole sat on the stage, listened respectfully, responded carefully and convinced some listeners that his position was the correct one. The protestors convinced no one of their rightness of their cause. Their masked, martyr-like appearance, with their dramatic (if misquoted) poster contrasted poorly with the carefully parsing of the FISA statute and the arguments about the extent of the President’s Article II powers that the panel discussed after the walk out.

The protestors styled themselves as heirs of dissidents of the past- but no one wanted to drag them away, no one considered turning water hoses on them, no one tried to run over them with tanks- no one cared about their empty gesture. They were turning their backs and walking out of exactly the kind of event that all those protestors of the past were demanding- an open dialogue where the powerful had to come to them- a dialogue where they could voice their reasoned disagreement with the authorities’ conduct in front of their fellow citizens.

Of course, the protesting students were well within their rights to act as they did. It is their constitutional right to use their symbolic speech to disrespect the Attorney General, to embarrass Georgetown Law Center and to marginalize their own opinions. As a person who probably agrees with them on this issue and as a Georgetown Law student, I wish they had not done it. Not only did they trivialize their point of view, but they showed themselves as closed-minded, disrespectful and immature. It was not the image of Georgetown Law students I wanted broadcast on a national stage.

this article has also been published at watchblog

14th Amendment Human Being

A concise, non-legal, non-religious essay on human embryos and human rights, here.

What is a feminist?

This probably will not change views, as Roe hits 33, but establishing facts is crucial to clear thinking.

They're Onto Us...

This Slate writer makes a few good points. But I don't think that 1) Senate Democrats will listen, or 2) she gives them any useful political or jurisprudential advice.

Once you've conceded that members of the Fed Soc are not bigots or even closet bigots, then one must find another politically sexy vehicle of attack. What? No clue. Abortion is not really a clear winner (less and less so...) and most liberal jurisprudential positions are unpopular political losers: expansive view of Court powers; facile redefinition of constitutional terms (for instance using foreign law); social engineering from the bench.

And intellectual opposition to originalism and judicial restraint is increasingly scarce: how will Democrats put into action her suggestion to address the implications of federalist jurisprudence?

Suggestion: give up and, with wise heads such as Akhil Amar, join the debate.

Scalia is the funniest justice....