Those are important words, and they are echoed by these:

“Ours is a promise that says government cannot solve all our problems, but what it should do is that which we cannot do for ourselves -- protect us from harm and provide every child a decent education; keep our water clean and our toys safe ; invest in new schools and new roads and new science and technology. Our government should work for us, not against us.  It should help us, not hurt us.  It should ensure opportunity not just for those with the most money and influence, but for every American who is willing to work.  That's the promise of America -- the idea that we are responsible for ourselves, but that we also rise or fall as one nation; the fundamental belief that I am my brother's keeper; I am my sister’s keeper.  That's the promise we need to keep.  That's the change we need right now.”

Those are the words of Barack Obama accepting the nomination for President of the United States.   Their resonance with Catholic teaching is self-evident.  Can a Catholic Support Him?

As a matter of faith, yes.  As a matter of hope, unquestionably.

John McCain is a well-intentioned man. As I write on this Memorial Day week-end, one cannot help but admire his service and love of country. But long-ago patriotism and good intention alone are not enough to meet the economic concerns of the average working person in the United States. 

The American economy has soured; gas prices are intolerable for minimum-wage workers and constraining of freedom of movement for us all. For the first time in our adult lives, many will not be traveling this weekend to visit family, and it will not be by choice. Fair or not, McCain is saddled as he makes his case to the voter with the economic consequences wrought by the incumbent president. A President from the energy industry who never bothered in his eight years in office to formulate a responsible energy policy and who now  begs for Saudi oil from sheiks who proclaim unlimited supply  at their over the barrel price. 

The Iraq war whatever its original objective lumbers on at staggering costs without a definition of success or purpose. Some months ago, it was calculated that the war is costing $720 million a day or $500,000 a minute, according to the work of Nobel Prize-winning economist Joseph E. Stiglitz and Harvard public finance lecturer Linda J. Bilmes.  The money spent on one day of the Iraq war could buy homes for almost 6,500 families or health care for 423,529 children, or could outfit 1.27 million homes with renewable electricity, according to the American Friends Service Committee.

This week John McCain had a pleasant meeting with Silicon Valley executives who are some of the best and the brightest entrepreneurs in this country and who are naturally anxious to have corporate investment credits and a continuation of the Bush tax cuts on capital gains. The Senator was quick to reassure this assemblage of talent that his administration would have this highly compensated group foremost in mind. There is little denying that high-end tax reductions have benefited the affluent in sometimes staggering, if not unconscionable, ways. It is of course also true that the magnitude of wealth enjoyed at the top of our economics spectrum produces a disproportionate share of the revenue for the government, a fact that McCain often repeats.  But given the government’s profligate expenditures on war, why again should a middle income or average taxpayer be cheered by an increase in what the government spends? 

Yes, lowering tax rates at the top and on investment do yield additional job opportunities, but do they pay a family wage? Or are the vast bulk of these new jobs insufficient to cover the cost of a mortgage now in default, past due college loans for oneself and one's children, the ever increasing cost of transportation, or possibly under Senator McCain's plan, even the cost of health insurance that as he sees it no longer should be provided through one's employer? McCain's health plan decouples health insurance from the employment relationship shifting the cost substantially if not entirely to individuals. McCain does propose a personal tax credit of $2500 for individuals and $5,000 for families to subsidize the acquisition of private insurance, but there are several notable problems.

First, there is no existing individual health insurance market capable of providing such coverage. It is estimated that the administrative costs of individual policies are three times that of employer-based policies. In addition, the new arrangement would be especially costly, if available at all, for older Americans with pre-existing conditions. Right now, when insurance is purchased through employers these greater insurance risks are mixed into the larger employer pool and thus offset by the healthier and younger members of an employer’s workforce. This would disappear under the McCain structure. Conceivably, state insurance regulation could mandate coverage of those with pre-existing conditions or create insurance pools that could even out the premium expense across a larger number of individuals. 

But this is not McCain's plan. He is banking on a deregulation of the insurance industry that would free insurers of even existing state regulation.  McCain proposes to allow health insurers to sell in every state any policy approved in any state. The least regulatory state would thus govern them all.

Clearly, Senator McCain is putting great faith in the free market to supply insurance products at the best combination of price and coverage. There's no reason to doubt this principle of economics for those who can afford it. For people up in age or in poor health or of a modest income, however, there is good reason to believe that the market will by the rational principles of economics declare them to be uninsurable.   

John McCain during the primary confessed not to have a strong grasp of economics. That turns out not to be entirely true. John McCain and his advisers well understand how the economic system works for those who are capable of investing in it. For millions of average Americans, however, just trying to support a family, John McCain appears to lack an understanding of their economic plight, and by what he proposes, any empathy for it.

This will be my last essay for the “talking justice” blog. Like those Americans who have run short of resources to stay afloat, NPR’ s justice talking apparently lacks the wherewithal to sustain this forum of commentary. I hope my occasional contributions have met the high and intelligent standard that is associated with National Public Radio and its coverage of public events.

The GOP has its nominee.  Why can't the Democrats get one?   Here's a proposal for those anonymous Democratic super-delegates from a primary-weary nation: just agree that whoever has the lead in the popular vote at the end of the primaries is the Democratic candidate. Then in the boldest possible campaign finance and voter-turn-out reform ever envisioned, hold the national election on Labor Day. Congress sets the election date by statute, why wait until November or vote on a work day?

The Bush administration is out of gas and unnecessary life and resources are being lost in an unjustified war.   General Petraeus has been given “all the time he needs” to ponder over how to explain not reducing the number of troops in order to maintain the success of the surge -- success being defined as reducing the number of troops that had been increased to enable the reduction that at the end of the pondering likely cannot be undertaken lest success be lost.

After six interminable weeks of Pennsylvania, the primaries are telling us less and less. An extended general election campaign will just yield more cable talk about “flag pins” and the umpteenth replay of Mrs. Clinton dodging those “snipers” disguised as welcoming children in Bosnia.

Mrs. Clinton who had high negatives at the beginning of the campaign (much of which is related to whom she is, well, related) continues to receive high negatives, but uncomfortably, her scorched-earth primary campaign strategy has finally succeeded in raising negatives for Senator Obama -- some of which is apparently race-based.

Hillary Clinton supporter and Pennsylvania Governor Ed Rendell blurted out: "There are some whites who are probably not ready to vote for an African-American candidate.”   The comment is deeply disturbing.

The Democrats -- nay, Americans -- don’t need a revival of racial or gender politics, yet, if the conventions follow the present trajectory of the ever-nastier primary campaign, they are headed exactly in that direction. Call them off. Of course, then, there would still be an unfinished nominating task for both parties -- the vice presidency?

No problem. Concede Colin Powell to be the universal answer. He is in both parties anyway, and he would be a handy to have around whoever wins. Toss in Mitt Romney as Treasury Secretary and have both sides agree to appoint Justices to the Supreme Court on the basis of talent and integrity, and we’d be off to a good start.

So let the Hoosiers, the Tar Heels and all the rest have their fun right through June 3, but as a nation, let's save ourselves from an over-extended electoral conversation that will only waste the time, money, and goodwill the next president will need to govern.

Thanks to the 20th amendment we have to bide our time with the incumbent until January 20, 2009, but there's no reason we can't get a head start on a much needed transition that would really have us ready for day one. 

Douglas W. Kmiec

Recently the New York Times lauded Senator Obama for his “profile in courage” in addressing, as the Times  put it, “race and religion, the two most toxic subjects in politics.”    I, too, commend the Senator, and indeed, his intelligent appraisal helped convince me to endorse Senator Obama for the presidency, even though it requires me to absent myself from my natural home in the Republican party, and ethically requires (in light of my Catholic faith) that I state unequivocally that I find the Senator’s position on abortion to be unacceptable and intrinsically wrong. 

At some point, I hope to raise the abortion issue with the Senator to explore where common ground may exist to reduce this practice which takes innocent life. It deserves to be asked whether a fully informed woman would choose abortion in a culture that better honored her own dignity and affirmed the linkage of sexual intimacy with a mature willingness to welcome new life or one that actually organized work to respect, not subordinate, the family.

In this comment, however, I wish simply to take issue with the Times  and others praising Senator Obama’s speech on race at the National Constitution Center by gratuitously caricaturing an earlier moment of great eloquence in the 2008 campaign – Governor Mitt Romney’s thoughtful remarks on “Faith in America.” It seems as if some favoring Senator Obama believe the way to build him up is to tear another down. Thus, the Times  editorialized that Obama “was as powerful and frank as Mitt Romney was weak and calculating . . . .” This is not only substantively false, it is also a means of discourse that is, well, frankly, mean-spirited, and directly contrary to Senator Obama’s general campaign approach of seeking to heal division, rather than abet it. 

More importantly, it obscures that Senator Obama and Governor Romney have much agreement on the significance of faith to public discourse.   Consider these comments from Senator Obama: “a sense of proportion should guide those who police the boundaries between church and state.”  “Not every mention of God in public is a breach of the wall of separation. Context matters.” For this reason, he continues, “it is doubtful that children reciting the Pledge of Allegiance feel oppressed or brainwashed as a consequence of muttering the phrase 'under God'.” Drawing upon a sense of history and the importance of faith in American life, Senator Obama concludes that “having voluntary student prayer groups using school property to meet should not be a threat, any more than its use by the high school Republicans should threaten Democrats. “People are tired of seeing faith used as a tool to attack and belittle and divide.” 

Those are Senator Obama's words -- indeed, prayer, -- and they run in tandem with – not in opposition to -- the insights of Governor Romney who stated: that “Americans tire of those who would jettison their beliefs, even to gain the world.” The American proposition does not require the shedding of religious distinctiveness, said Romney. “Each religion has its own unique doctrines and history. These are not bases for criticism but rather a test of our tolerance. Religious tolerance would be a shallow principle indeed if it were reserved only for faiths with which we agree.” In words that are anything but “weak and calculating,” Romney boldly observed that “Freedom requires religion just as religion requires freedom. Freedom opens the windows of the soul so that man can discover his most profound beliefs and commune with God. Freedom and religion endure together, or perish alone.” In recounting his own personal journey of faith, Obama likewise recalled how he could engage in community organizing in behalf of the poor, but without faith he would always remain "apart and alone."  Faith did not mean said Senator Obama that one was without doubt, but it does mean hearing God's Spirit beckoning him.”

It is unhelpful and misleading to create an artificial division between Obama and Romney on the issue of religion in order to admire Senator Obama’s call for unity on matters of race.  In this regard, it was not surprising that Obama would reference the Gospel to point us in the right direction. Romney did too.

Douglas W. Kmiec

chair and professor of constitutional law, Pepperdine University

To leave Iraq with honor requires having acted honorably while there.  Unfortunately, that wasn’t on the “to do” list.  As disclosed this month, a long-buried, RAND corporation report for the Army found post-invasion planning to have been assigned to a Pentagon that didn’t want it and a State Department and National Security Council that were either side-lined or ineffectual.  “There was never an attempt to develop a single national plan that integrated humanitarian assistance, reconstruction, governance, infrastructure development and postwar security,” the report said.    

Back in late 2005, RAND’s report was unwelcome news for an administration trying to convey an upbeat assessment of “victory” -- which of course explains why the public is only reading the study now.  Managing the news substituted for handling the real problem.  As RAND observed, “Building public support for any pre-emptive or preventative war is inherently challenging, since by definition, action is being taken before the threat has fully manifested itself.  Any serious discussion of the costs and challenges of reconstruction might undermine efforts to build that support.”  Translation: if we actually added up the cost in lives and treasure in advance, we might not have been so quick to accept the invasion’s weak justification.

But that was then.  How do we go about leaving Iraq with honor now?  There is no honor to be found in the endless political argument over whether there ever was a credible basis for intervening or a justification for an ill-fitting new form of government or any explanation for an extended occupation that has precipitated an intolerable level of daily insurgent attacks. No, the only responsible course is to pick up the task of rebuilding that RAND prescribed three years.  For a fraction of the hundreds of billions of dollars the president has requested for the continuation of the military occupation, it would be possible to build economic and social infrastructure in the most honorable, humanitarian sense – namely, courts, clinics, schools, businesses and homes in abundance.  

While the political leadership in Washington has been in default, in subtle and important ways individual military personnel have taken up the face-to-face regeneration of  the Iraqi civil order that the Pentagon shunned.

Take for example, Major Mike -- a graduate of Pepperdine Law School. A few years ago, he sat comfortably and safely in my class with the usual T-shirt and backpack putting up with his professor’s meandering Socratic dialogues. Today, he is deployed in the disorienting and dangerous Fallujah. His responsibility is to steer the Fallujah judiciary toward the rule of law. Here’s what he wrote me recently: "We met with the Chief Judge, and two of his investigative judges to try and figure out why more criminals are not successfully convicted. The judges advise us to ‘think like an Iraqi.’"

That’s the rub -- thinking like an Iraqi means relying upon what we taught him to see as unreliable and subjective evidence. Writing in the fairest (but nevertheless distinctly U.S.) terms, Major Mike says "[t]he Iraqi system favors testimonial and demonstrative evidence over real evidence." In America, we insist on fingerprints, gunshot residue, photos of the crime scene; in Iraq, the judges want mini-stage plays or re-enactments which not only would not be considered evidence in the United States, but would often be ruled prejudicial.

Nevertheless, crime in Iraq is as frighteningly real there – and as tragic there – as it is in any American venue. Major Mike recounts the case of insurgents "who kidnapped a 14 year-old-boy, beheaded him, then sent the video of the killing to his father. His father was the former head of one of the local police agencies. Because coalition forces gave the boy some gifts (probably soccer balls), the insurgents thought he was working with us."

Of course, he wasn’t, and Major Mike senses deeply how, rules of evidence aside, the human heart cries for justice. So it is no surprise when the "judge informs [him] that they want Iraqi legal techniques . . . Not American laws."   This, of course, is the opposite of his assignment which is not to walk in Iraqi shoes, but to fit those stubborn Iraqi feet into American wing-tips.  To his credit, at least by the lights of his old professor, though perhaps not his immediate commander, he thinks “Iraqi law for Iraqis ...hmm what a great idea.”

Major Mike has learned far more than we could teach him in the classroom. He now knows there is more than one way to reach a reasoned conclusion.   Were his country to learn this too, it would be closer to finding the path toward an honorable exit. 

Professor of Constitutional Law, Pepperdine University; Chair of the Courts and the Constitution Committee of Romney for President

 The latest Rasmussen telephone survey finds Mitt Romney with a lead in Florida’s Republican Presidential Primary. John McCain and Rudy Giuliani are close behind in what may develop into a three-man race. It’s Romney at 25%, McCain at 20%, and Giuliani at 19%. Romney has picked up seven points over the past week while McCain and Giuliani each inched up a point. Huckabee is way back, falling to 13%.  These percentages likely understate Romney's strength now with Thompson dropping out after his disappointing showing in South Carolina.  Romney and Thompson, as the debates revealed, agreed far more than they disagreed, and key supporters of the "Law & Order" Senator are now making their way into the Romney fold.

Why the focusing of interest on Governor Romney?

In part, it is momentum. While finishing second in the early contests in Iowa and New Hampshire, Romney is today the frontrunner in delegate count, with wins in Michigan, Nevada and Wyoming. Florida is also the first true Republican primary, where independents and cross-over delegates cannot game the system – a fact that was an indispensable help to McCain in New Hampshire and South Carolina. Even more importantly, with the steep dive in the financial markets, the nation’s attention has turned to the economy, and Romney is the only candidate of either party with a substantial history of successfully addressing economic challenges. 

 Change is more than a slogan.

 Governor Romney also quickly moved to demonstrate that expertise by proposing an economic stimulus plan that would lower taxes on individuals, reduce taxes for businesses and help homeowners through the current housing crisis. The plan is far meatier than that proposed by President Bush or any of Romney’s Democratic rivals and addresses both short and long-term objectives.   For Romney, change is more than a slogan, and a slumping DowJones supplies an opportunity for him to give concrete illustration of capabilities honed at the Harvard business school and as a turnaround whiz in the public and private sectors.

Here’s the plan in broad-strokes. With respect to individuals, Governor Romney would permanently reduce the lowest income tax bracket, permanently eliminate payroll taxes on seniors and make middle-class savings tax free.   Romney thus aims the stimulus where it is most likely to have an immediate impact. Given the origin of the economic distress in the housing sector, it also makes perfect sense to expand the Federal Housing Administration (FHA) loan portfolio, adjusting limits to allow larger loans to homeowners. Having witnessed the hardship of Michigan unemployment, the Governor is mindful that real investment, not temporary hand-out, is the best long-term antidote, and to that end, he sensibly calls for an immediate 100% expensing of equipment for two years and permanently reduce the corporate tax rate.

  The Complete Record Answers His Critics

While a pair of Northeastern economists have recently questioned Romney’s economic bona fides, Romney’s resume includes too many notable successes, such as rescuing the debt-ridden Salt Lake City Olympics and helping to set up office supply retail-store chain Staples Inc. which employs about 70,000 people, to be fooled by statistical sleight of hand. Premised more on guestimate than hard numbers, job growth tallies are notoriously slippery – some would say subject to manipulation – but it is undeniable that Massachusetts won a credit-rating upgrade during Romney's term as governor for the first time since 2000.  

 Romney, himself, freely concedes that the liberal Democratic legislature in Massachusetts gave him a hard time as he pursued free market means to bolster a lagging state job market. Nevertheless, the direction of Romney’s proposed reforms was “encouraging,” according to the more balanced appraisal by the Club for Growth. His record on trade, school choice, regulations, and tort reform all indicate a strong respect for the power of market solutions. The report found his deregulatory initiatives to be “impressive,” even as he often had to “clash with the knee-jerk anti-business Legislature over his attempts to ease Massachusetts’ regulatory burdens. Though some of his largest undertakings were ultimately crushed by liberal opposition, Governor Romney deserves praise for attempting to change the relationship between government and private enterprise for the better.”

Hope is more than rhetoric.

 Perhaps the best measure of Romney’s economic savvy is his own record of achievement in the private sector when not weighed down by the obstructionist policies of partisan power. When Romney was asked to return to Bain & Company in1990, the firm was facing financial collapse. As CEO, Romney managed an effort to restructure the firm’s employee stock-ownership plan, real-estate transactions and bank loans, while increasing fiscal transparency. Within a year, he had led Bain & Company through a highly successful turnaround and returned the firm to profitability without layoffs or partner defections. Romney’s 14 years at Bain Capital yielded an average annual internal rate of return on realized investments of 113 percent.

Romney won in Michigan and Nevada telling voters he would “fight for every job.” Apparently, he knows how to win those scraps, as during Romney’s tenure in private business, he helped found, acquire, or invest in hundreds of companies including Staples, Bright Horizons Family Solutions, Brookstone, Domino's, Sealy Corporation and The Sports Authority.

The polls are showing Romney breaking into the lead in Florida – with good reason.

Romney’s commitment to law even in times of war

Douglas W. Kmiec

Chair and Professor of Constitutional Law, Pepperdine University; Constitutional Legal Counsel to President Reagan and the first President Bush, Professor Kmiec has volunteered to assist Governor Romney with legal issues.

There is probably no more important executive power topic than the relation between law and war. For example, Chris Matthews asked Governor Romney whether he would need the authorization of Congress to take military action against Iran’s nuclear facilities. Soundly, the Governor responded that his overriding consideration as President of the United States would be to do what is "in the best interests of the United States to protect us against a potential threat." However, because the Governor also commented that " he would consult legal counsel on the range of his available authority," he has been taking some flak.

This criticism is wholly unwarranted. The decision to go to war ought not to be made lightly or without the full benefit of the collaboration of both political branches, and whenever feasible, consultation with our allies. This is precisely what the Governor said. As much as possible, he said, "you want to have the agreement of all the people – leadership of our government as well as our friends around the world as those circumstances are available." The judiciousness of that statement should be applauded worldwide. In itself, it illustrates how Romney, unlike some other candidates, refuses to engage in bellicose rhetoric for the purpose of pandering for votes. But do not be misled, Romney’s no nonsense business acumen makes him no international pushover. For example, Romney has forcefully elaborated on how – by not making concessions to the buffoonery of the present Iranian power structure – the premise of Matthews question could be successfully met without military intervention.

But when war is unavoidable, what about all the law talk and the consultation with lawyers? Is this faithful or inconsistent with our constitutional expectations for a president? The answer is quickly found by even the most cursory examination of the constitutional convention of 1787. War was not to be exempted from the rule of law in our constitutional design. The founders created a constitutional system in which the war power was consciously divided between the president and the legislature. It was anticipated that the president would and should be able to respond with dispatch largely in the context of sudden attack. Beyond that, the framers wanted to give the political branches – the president and the legislature together – as much flexibility as they would need to meet the unforeseen. In this respect, the founders deliberately changed the phraseology from to "make" war to "declare" war, recognizing, as implicit in Mr. Matthews’ all too realistic question, that external forces could force a war upon the United States without its desire. That said, should war come, the president would be able to take unilateral action to meet it, recognizing that he would have an ultimate obligation to affirm the licitness or legality of war by seeking a legislative declaration. Contrary to popular belief, the declaration itself was not synonymous with a categorical requirement of pre-authorization. Rather, such declaration – whenever sought and given – would be affirming of the lawfulness of the actions that had been taken or were to be taken yet.

The fact of the matter was that the founders didn’t really want to put war making power in the hands of either the president or the Senate. As George Mason articulated, he "was against giving the power of war to the executive, because not safely to be trusted with it, or to the Senate, because not so constructed as to be entitled to it. He was for clogging rather than facilitating war but for facilitating peace." Given that admonition, President Washington declared neutrality in the conflict between England and France, and every successor President, before breaching the peace or neutrality, must take seriously that his oath is to "preserve, protect and defend the Constitution of the United States," which of course is just a long way of expressing an obligation to comply with the law.

Then and now, genuine peace is the aim of the United States. But the premise of Mr. Matthews’ question was that the President of the United States was confronted by a nation with nuclear capacity that had anything but peace on its mind. This is a question not to be glibly answered, for it is more difficult than even the founding generation could anticipate. It involves neither a sudden attack nor a consciously deliberated decision to go to war in an extended, conventional sense. The whole point of preemption is avoidance of an extended war. That said, modern conflicts like Iraq give reason to doubt the ability to surgically preempt in many instances, and in any case, it is seldom clear where preemptive action will lead. In the constitutional convention of 1787, Roger Sherman noted that "the executive should be able to repel and not to commence war." Is a preemptive war, an act of repelling or an act of commencing? President Romney wisely would not rush head long into such conflict, at least not without seeking to discern from the best minds – of legal, foreign affairs and military capability – whether it was "in the best interests" of his nation.

Shakespeare in Henry VI said: "the first thing we must do is kill all the lawyers." This passage is given several different interpretations. As a lawyer, law teacher, and former legal counsel to two presidents, I remind people that one view of this admonition often surprises people who are used to modern day lawyer jokes. Arguably, the speaker in Shakespeare’s play (Dick the Butcher) was not making this recommendation in order to improve society, but to destroy it. For all of their faults, and there are many, lawyers do have the ability to check the abuse of power and in so doing to ensure that the civilized world does not rush headlong into chaos.

It was this thought that lay behind Governor Romney’s entirely appropriate debate response. Candidates too willing to disregard the obligations of the law, be it the law of the Constitution or of our international agreements, do us no favor, and indeed may endanger our very safety. Indeed, Governor Romney’s response is as old as the union itself. To be sure, in this over legalized world, the notion of consulting with lawyers to know the scope of authority against a terrorist force that is the very antipathy of law has an odd resonance. Indeed, in a radio interview, my former colleague in the Reagan administration Ted Olson who has now signed on with Rudy Giuliani, opined that "this whole issue of consulting with lawyers" reminded [him] that "you need to be ready to act and without having to go get a legal opinions."

That’s a curious comment coming from Mr. Olson, former head of the Office of Legal Counsel and Solicitor General of the United States, and who has devoted a good deal of his life to writing legal opinions to presidents about the scope of their war power. On this, I could cite multiple examples, but perhaps it’s enough to make reference to Mr. Olson’s October 30, 1984 memorandum outlining in excruciating detail the legal authorities of the President and the Congress in times of war. As Mr. Olson wrote, "on a number of occasions during this Administration, this Office has provided both written and oral legal advice to . . .the President and the National Security Council" regarding matters of war, including especially the War Powers Resolution. This was so even though no president has ever formally conceded the constitutionality of the resolution, and some have outright denied its constitutionality. Nevertheless, the duty to obey the law, or at least to be informed by what other responsible actors in the democracy believe is the law, prompted Mr. Olson to write multiple legal opinions in connection with the deployment of United States Armed Forces in Lebanon, the provision of military assistance and intelligence to our allies in Central America, the deployment of sophisticated radar aircraft in Chad and in the Sinai, responses to an armed attack on our armed forces in the Gulf of Siddra, the deployment of troops to Grenada, and in various other circumstances." Indeed, it was Mr. Olson’s intent in his October 1984 memorandum, as he put it, "to summarize the highlights of that advice . . . to provide guidance to you and to our respective successors in future analyses of [war related problems]."

Mr. Olson’s exposition of the legal questions pertaining to military engagements was thorough and responsible, and his initiative in leaving a summary of those matters for his successors, including myself, who relied upon his good advice in advising both President Reagan and the first President Bush in several matters of a military nature, including executive authority as it related to Iran Contra and strategies leading up to the capture of Manuel Noriega, is much to be applauded. What is to be regretted is the tendency of some presidential candidates just to look and sound like a tough, as if, upon assuming the presidency in a time of war, law does not matter.

It is sometimes said that Lincoln needed to go beyond the law to save it. Perhaps, in extremis that is so. Yet, Lincoln would likely have been the first to concede that Presidents operating outside the law when making the awesome decision to commit the lives of their citizens to war are to be regretted, not revered.

An earlier version of this essay was prepared for the Catholic News Service

Douglas W. Kmiec

Sunday began in its usual way in our town of Malibu, California along the Pacific Ocean -- except oddly there was no power. High winds this time of year in southern California often knock down power lines, and this proved to be the case again. What was not expected was that the loose power line would dangerously arc and trigger a massive fire in Malibu Canyon. Within minutes the fire was racing toward the ocean, as if in defiant challenge of the sustaining sea, itself.

I relish quiet Sunday mornings.

Teaching an adult religion class later in the day, it was thus not surprising for me to think of the battle between fire and water raging outside in spiritual terms. The furious passion of sin taking on the cleansing and cooling water of baptism, I speculated.

Satan, it seemed, had come to Paradise again. Standing in its way on one side of the canyon road he had chosen was one of the most expensive mansions in the community perhaps in all the nation – literally built in the style of a castle upon a majestic hillside. As man’s creations go, it seemed an impenetrable fortification. It would be lost in minutes. Next up for the devilish fire, lay Pepperdine University, a Christian university situated upon one thousand steeply sloping acres overlooking the Pacific.

Many students are attracted to Pepperdine by brochures that make higher education in this setting seem more aligned with surfing and leisure than Socrates and serious intellectual effort. The brochures aptly reflect Pepperdine’s campus beauty, but they understate her inner goodness.  I think, the wretched old deceiver has himself been fooled. Little did the malevolent blaze realize that just the day before the canyon fire, the university community had turned out in great number to consider the social justice of Nobel laureate Dr. Muhammad Yunus, founder of the Grameen Bank of Bangladesh, whose creative, micro-lending has helped bring hope to small shopkeepers and craftsman creating, as the university put it, "the spark of personal initiative and enterprise necessary to pull themselves out of poverty."

As with most universities, of course, students come to Pepperdine for many reasons – a highly personal curriculum in the undergraduate school is structured around the great books placing students in conversation with the authors of the finest literature and learning. The Law school where I am privileged to teach has a top-ranked dispute resolution program that strives to remind a culturally litigious society that it is better to forgive and resolve than further stoke dispute.

There are many excellent teachers at the university, but this challenging Sunday, the faculty of greatest note would wear yellow slickers and helmets and heavy boots. These "visiting faculty" came on red trucks and often from great distances. But they came with only one lesson plan: "love thy neighbor." Miraculously, the firefighters steer the blaze away from thousands of much relieved students, and thousands more anxious parents watching frightening news reports at great distance.

Of course, like the devil himself, wildfire seldom rests in one place very long. Monday morning, as this was written, the fire is now three miles south of the university on the ridge line above our house. Your essayist is taking a short break from joining his neighbors on rooftops spraying water at an inferno from a garden hose. A humorous sight? Perhaps. An inconsequential gesture. Hardly. This devil of a fire is no match for neighbors in mutual aid of one another. Oh yes, it may take one or more of our houses, but in the Latin, "Omnia vincit amor" (Love conquers all)." Translated in the email I just received from a colleague who has lost his home, "Our home is a total loss. But God is more than good and we shall rebuild."

 Or as the late pontiff, John Paul II reminded us, "In the end, love will be victorious! Let everyone be committed to hastening this victory." So, excuse me now, I have to go resume my place on the hose line.

Douglas W. Kmiec

*An earlier version of this essay appeared in the Wall Street Journal, p. A21, September 19, 2007.

The nomination of Michael B. Mukasey to be Attorney General of the United States has met with almost uniform praise. One dissident is Washington lawyer Bruce Fein, who has been an outspoken opponent of the conduct of the war on terror by President Bush. Fein argues in a recent column for Slate (September 19, 2007) that Mukasey will prove to be "a reliable echo of the monarch like theory of government celebrated by Mr. Bush and Vice President Dick Cheney." Fein asserts that Mukasey "lacks the independent political base, national stature, or philosophical convictions necessary to resist the inevitable White House clamor to subordinate the Constitution to expediency."

Even as a highly partisan assessment, Mr. Fein is mistaken. Judge Mukasey has his own national stature and a well articulated philosophy of law, including the law of presidential power, that is anything but monarchial in nature.

In terms of reputation, or stature, Judge Mukasey is known as a no-nonsense judge who has little patience for cross-examination that does not stay on topic. A Yale law graduate, Mukasey has ample experience as a federal prosecutor, in private practice, and for 18 years (a half dozen of them as Chief Judge demonstrating important managerial capability) on one of the busiest federal courts in the land – the southern district of New York, which gets more than its share of complex securities and corporate cases, along with the usual docket of federal criminal prosecutions.

And philosophy? Andrew McCarthy, a former assistant US attorney who appeared before the Judge numerous times gives a first-hand assessment that directly rebuts Fein’s hearsay speculation. McCarthy prosecuted Sheik Omar Abdul Rahman and 11 other jihadists (who had plotted to strike the United Nations, the FBI’s lower Manhattan headquarters, various military installations as well as the Lincoln and Holland tunnels).   In a thoughtful essay on Mukasey in the National Review Online, McCarthy reports that in the conduct of trial, Mukasey "carefully crafted insightful opinions on the proper balance between national security and civil liberties, permitting the government to introduce the full spectrum of its evidence but holding it rigorously to its burden of proof and its ethical obligations; managing a complex litigation over defense access to classified information; and developing jury instructions that became models for future national security cases."

But don’t just take the prosecutor’s word, criminal defense lawyers from Donna Newman (who represented Padilla) to the late William Kunstler (who represented defendants in the Abdul Rahman case) praised Mukasey’s fairness. Said Newman, "I admire him greatly." When Kunstler and the defendants complained that FBI agents were leaking information to the press to bias the case, Mukasey was blunt: "in my day, whoever did this would have been afraid for his or her job," he said. "If it doesn’t stop, then I’m going to start asking people in those agencies, and every agency and office involved in this prosecution, to start submitting statements under oath. . . .It may be that the only power I have to stop [the leaks] is the power of embarrassment, but I’m going to use it."

Overall, well before the nation had its attention focused on terror on 9/11, Judge Mukasey threaded the legal needle in early terrorism cases, distinguishing himself in the words of his appellate reviewers as a man of "extraordinary skill and patience, assuring fairness to the prosecution" and defendant alike.

All that said, Fein’s observation that the Judge does not have an independent political base is true, and it warrants closer examination. Prior to his nomination, the Judge was not a close associate of the president, and given the cloistered nature of judicial work, he was not out building a political constituency of his own. What does this lack of a presidential relationship mean for Judge Mukasey’s potential success as Attorney General? This requires a bit of history.

The office of Attorney General was created by an isolated paragraph in the Judiciary Act of 1789:

"There shall be appointed," said the Act, "a person, learned in the law, to act as attorney-general for the United States, who shall be sworn or affirmed to a faithful execution of his office; whose duty it shall be to prosecute and conduct all suits in the Supreme Court in which the United States shall be concerned, and to give his advice and opinion upon questions of law when required by the President of the United States, or when requested by the heads of any of the departments . . . ."  

It is widely assumed that Mukasey inherits a Department in some considerable disarray, with vacancies at the top of almost all the divisions and suspicion and frustration among the career ranks. But at least, he inherits a Department. Edmund Randolph, the first Attorney General, had to get along all by himself (the Department of Justice not being created until 80 years later). While Mukasey will be forced to take a considerable pay cut from the private practice he has enjoyed since leaving the bench in 2006, he’s certainly better off than Randolph, who had to make do with a half-salary. But Randolph had an initial advantage Mukasey lacks: he was well known to the President. George Washington had utilized Randolph’s legal counsel numerous times before he assumed public office. Despite rose garden oratory, Bush doesn’t really know Mukasey, and therein as Fein implies, lies a challenge to effectiveness.

Indeed, some of the most effective Attorneys General in modern times have been close associates, even kin, of the President. Thirty-five year old Bobby Kennedy assumed the role for his brother, and by many accounts acquitted himself well, giving pivotal advice resolving the Cuban Missile Crisis, aggressively pursuing organized crime, and laying the framework for the early federal civil rights legislation. Likewise, close friend and California legal advisor, Edwin Meese, for whom I worked, had the ear and total confidence of President Reagan. The seamlessness of this relationship gave birth to a strengthening of efforts to reduce both the demand and supply sides of the illegal drug trade, a substantial reform of the antitrust policies to coincide with other deregulatory steps to spur a then-sputtering and inflated economy, a revival of respect for the separation of powers and the interests of the states, and a judicial selection effort that underscored fidelity to text and a restrained judicial role. It was Meese’s careful screening that led to the nomination to the federal bench of men and women of Mukasey caliber, including Mukasey, himself in 1987.

By contrast, Clinton Attorney General Janet Reno, whose legal credentials were impeccable, was often thought to lack necessary access to the President. President Clinton’s third choice when the first two had confirmation difficulty, Reno is remembered for missteps that led to the deadly Branch-Davidian siege, but also for the expansion of the independent counsel’s inquiry into matters related to Monica Lewinsky. Depending on your political perspective, the latter was either a profile in courage or an abuse of process that provoked an unwarranted impeachment process.

Of course, to Senator Leahy and the Democrats, and even some Republicans like Senator Specter, exasperated by the inability to obtain the answers they demanded from Mr. Gonzales, Judge Mukasey’s lack of Texas pedigree or longstanding presidential friendship is almost certainly a plus. Leahy, who has flirted with the idea that the Justice Department should be the equivalent of an independent agency, will certainly see Mukasey’s lack of prior history with George Bush as a strength.

Frankly, it can be, and at this moment in time, likely is. Whatever the complete motivation for the selective dismissal of U.S. Attorneys, either the firings themselves or the public controversy surrounding them has seriously eroded public confidence in whether the legal framework is being evenhandedly applied. Robert Jackson who served as Attorney General to FDR before being named to the Supreme Court is famously remembered for his admonition to U.S. Attorneys that they have "more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. . . .While the prosecutor at his best is one of the most beneficent forces in society, when he acts from malice or other base motives, he is one of the worst." Mukasey could scarcely find a better opening text for his confirmation proceeding than Jackson, and upon assuming office, could likewise use it to reaffirm the U.S. Attorney guidelines that prosecutions are rarely to be countermanded by Washington, except to ensure "uniformity of policy and action."

Forthright commitment to these rule of law principles should rightly banish prescriptions to formally make the Attorney General an independent agent. President Carter floated that idea post-Watergate only to have his Attorney General, Griffin Bell, opine that any law restricting the removal of the attorney general by the President would be unconstitutional and promote unaccountability. "Because laws are not self-executing, their enforcement obviously cannot be separated from policy considerations," wrote Bell. This is the consensus view of academic study as well. Scholar Nancy Baker who has done a comprehensive study of the office quotes former Attorney General Elliot Richardson and William Saxbe as arguing that too high degree of insulation of the Attorney General’s office from politics could create a tyrannical bureaucratic monster. In the end, the Attorney General more than any other executive officer must combine a personal and professional commitment to the law and the Constitution with a measured degree of sensitivity to the political constituencies represented by the Department’s own civil service personnel, the House and Senate Judiciary Committees, the federal courts, the bar and the legal academy, and yes, of course, the President.

Can Mukasey bring us back to this straight and narrow path without a long-standing relationship with the president he intends to serve? Yes, because he has something even more important: integrity and intellect. In public essay, and from the bench, Judge Mukasey has given considerable thought to needed reforms aimed at the greatest immediate threat to the civil order: terrorism. In particular, Mukasey has demonstrated a nuanced understanding of the capability of Article III courts to deal with detainees. Some say the shortness of time will make Mukasey only a place-holder, but the times do not permit that luxury. We have dealt with terrorism in fits and starts, sometimes on war-footing and sometimes through the lens of criminality. It may well be both or neither, and whether it is a specialized national security court with more flexible rules of evidence or something else, it is a reasonable bet that Mukasey will counterbalance any defendant limitations to access to classified information with adherence to a rigorous burden of proof and the observance of ethical standard.

Of course, beyond terrorism, there is dealing with an increasing rate of violence in urban settings, jump-starting fair-minded civil rights enforcement that addresses both invidious electoral exclusion and voter fraud, the perennial problem of drug abuse, disparate sentencing and new challenges posed by identity theft and the thieving of intellectual property. That should easily fill out the rest of the Judge’s hours. The notion that the forthcoming hearings ought to rehearse past grievances would be a mistake. There is serious work to be done and a serious person has stepped forward who can do it, if we let go of the partisan past that Mr. Fein seems too anxious to re-litigate.

Douglas W. Kmiec

Chair & Professor of Constitutional Law, Pepperdine University

The cover story of the August 2007 ABA Journal is a provocative article by lawyer and novelist Scott Turow entitled "The billable hour must die."

This is an article long overdue since it raises an undeniable truth about modern, especially large firm, law practice: namely, hardly anyone finds it satisfying as it is presently structured – neither lawyer nor client.

For new lawyers, the billable hour represents the mockery or de-construction of most everything that attracts a person to law school. Most law teachers know this ugly secret since many of us are refugees from the dispiriting nature of modern practice. And having found happiness in the academy, we uneasily take the calls of our top recent graduates when they confront the dismal realities of life employed by mega-firm.

Students are attracted to law study out of various motivations including making a good living, of course. Yet, it is fair to say that many were swept into the rigorous analytical training by idealism, a sense of history, a fascination with politics or public policy, or a simple desire to be of tangible to service to their fellow man who may have the aspiration of a new venture or simply be confronted with one of life’s unwanted difficulties, from accident to divorce. Notwithstanding the heavy handed instructional techniques of Professor Kingsfield portrayed in Turow’s best-selling novel One L, legal education does a reasonably decent job of matching the intellectual expectations of incoming students. The same cannot be said for large firm practice.

In the first year, students find a method of instruction far more active and challenging than that which they have encountered in college or graduate school. Faculty regale classes with the background stories of everyday legal dispute as well as the great struggles over civil rights and economic liberty. The study of the constitution is often in sync with the front page of the New York Times. Clinical programs engage students early in the human satisfaction of solving the problems of the elderly or the indigent or the handicapped. Trial and appellate practice programs entice students with the elegant gambits of the adversarial system and its unique search for truth. Pretty heady stuff. And the study, while arduous, is compatible with the lives of family and friend with which they entered. Yes, there are moments of busy-ness, "all nighters and what not," but these are small, short-lived trade-offs for the substance supplied.

The first tentative steps into practice also affirm student expectations. Students following their first year frequently volunteer for courts or public agencies, or work for modest hourly amounts in small practices. These opportunities give the theory of legal education, needed practical insight, and the students return for the second year of study rejuvenated with a sense of their own utility.

But then, with the advent of second year, and large firm, on-campus recruiting, a dark shadow lurks. Suspicions are raised. Returning 3Ls report both of their generous summer adventures and compensation, but also of encountering young lawyers in large law firms who at far too early an age are burnt out and disillusioned. Throughout the subsequent summer dance of recruitment, 2L summer associates see, but somehow do not fully comprehend, the plight of those who preceded them.  Wooed at fancy clubs and ballparks, the summer recruits see little point in hanging around those unfortunates who seem chained to their desks.  Of course, the pleasantries of the summer will fade soon enough; the law firm spider awaits the law student fly.

Now, of course, it is hard to shed an abundance of crocodile tears for partners and associates who are so handsomely compensated. Yet, as Turow writes, life is increasingly "a highly paid serfdom – the cage of relentless hours, ruthless opponents, constant deadlines and merciless inefficiencies."

At the heart of the slavery of large firm practice is the expectation that associates will bill somewhere in the range of 2200 hours. If you do the math, that figure is over six hours billed for every day of the year. As every new associate knows, even that extraordinary time investment understates the actual time spent. Neophyte lawyers understand the limits of their knowledge and often discount, even before partners do, the hours reported on time sheets out of the sheer embarrassment of not wanting one’s inexperience so openly displayed. Whatever the true figure, this billable hour expectation necessarily means little if any time for family, church, and community. And as Turow also illustrates, there is little opportunity for the kind of pro bono work that "nourishes the soul" or at least fulfills the sudden legal needs of relatives who waited until there was a lawyer in the family.

Turow does not call for lawyers – and he focuses on litigators since that is what he knows best – "to band together to abandon hourly billing." Frankly, it’s not clear why not. The case is overwhelming against it. As indicated above, the dispiriting effect on new lawyers is patent. Beyond that, the hourly billing structure puts clients and lawyers on opposite sides. The model rules admonish lawyers not to undertake representation that involves a concurrent conflict of interest and Turow wonders why the hourly billing system hasn’t been fingered as an Exhibit A. Clients can waive conflicts, but only upon full disclosure, which Turow rightly speculates on this subject is seldom provided. Asks Turow, "who ever says to a client that my billing system on its face rewards me at your expense for slow problem-solving, duplication of effort, featherbedding the workforce and compulsiveness – not to mention fuzzy math."

Hourly billing also complicates gender equity. By virtue of their disproportionate commitment to the upbringing of children, women lawyers are more willing to challenge the insanity of excessive hourly billing. That candor is usually rewarded not with male empathy, but with odd gender stereotyping that suggests only women care about work-family balance. Relatedly, large firm billing practice gives little concession or acknowledgment to the fact that a good deal of legal work need not be done in an expensive office, but thanks to technology, can be accomplished at remote sites, including one’s home.

What’s needed of course, beyond the candor of saying that the large firm billing system is broken, are alternative billing models for the delivery of legal services. These are elusive, as neither lawyer nor client at the inception of a relationship really have a good idea of what is likely to be encountered in the resolution of any particular problem. Hourly fees reconcile that difficulty, even if they ignore that the ABA model rules encourage consideration of multiple factors in the calculation of fees beyond time spent.

Again it’s not clear what the precise billing alternative is, and the point of this essay, like Turow’s, is to invite some serious thinking on the topic. Perhaps the only answer will turn out to be a regulatory prohibition of hourly billing as unprofessional and intrinsically prone to conflict of interest and lawyer-client dispute. If that is to be the conclusion, it would not be farfetched to contemplate an adjustable flat fee. Such a fee would combine a reasonable estimate of the value of the work modified either way for unexpected problem or ease of resolution. Whatever alternative is devised, no one should understate the need for such alternative to meaningfully confront and moderate greed, itself, whether on the part of associates succumbing to ridiculously generous starting salaries or partners addicted to astronomical and ever higher equity profits. It is understatement to suggest that it is increasingly hard to reconcile these sums to clients as a realistic measure of the legal services delivered. "Dear Brutus" was surely right that the fault is in us, but lawyers know that one of law’s purposes is to address such human imperfection.

As Turow writes, we need to move toward "something better than dollars times hours [since] we’ve created a zero-sum game in which we are selling our lives, not just our time." For the good of ourselves, our clients, and our profession, we should recognize that price as too steep.

Douglas W. Kmiec

Chair & Professor of Constitutional Law

Pepperdine University

_____________________

Watching my twin daughters recently graduate from high school and their older sister from law school provoked moments of achievement and pride, but also a fair amount of puzzlement – which, frankly, was not present when my sons marched across similar platforms a few years back.

Are the opportunities awaiting my daughters and the young women of America as they complete college and professional school as great as those available to young men? And if they aren’t, is it because the marketplace knows these highly intelligent – but female – graduates actually have more in mind then just getting a job – namely, raising a family? In over thirty years of law school teaching, this is a quandary posed repeatedly by female law graduates. The answer from many businesses or law firms has been a silent shrug.

The indifference may not long be sufficient. Whether or not Hillary Clinton crashes through the political glass ceiling, the plea to rethink the organization of society to better accommodate work and family seems more determined in the present generation. This is a cohort of young people described by Thomas Friedman of the "World is Flat" fame as "the Quiet Americans," who he said nevertheless seek to "venture into the world either to repair it or do business with it."

Evening out the female disadvantage in the culture has been the subject, of course, of varying, and often highly controverted, prescriptions. Justice Ginsburg, for example, opined just a few weeks ago that if women did not keep unrestricted access to abortion, they would be reduced to "second class citizens." The Supreme Court had previously justified the abortion right squarely on the need to facilitate women’s "social and economic life in the nation." This is an understandable sentiment coming from Justice Ginsburg, a brilliant jurist, who, when she graduated from Columbia in 1959 was spurned by Felix Frankfurter for a clerkship on the Court upon which she now sits and found the door closed to her at a dozen New York law firms. Yet, aside from its deeply troubling moral conundrums, abortion’s availability hardly seems up to its billing. It may unburden a certain number of women from an ill-timed pregnancy, but ultimately, it doesn’t really accommodate work and family, so much as snuff out one in favor of the other.

Other legal avenues seem likewise inadequate or confused. Take the revival of the unsuccessful Equal Rights Amendment of the 1970s. The key sentence is twenty-three words in length, reciting that "equality of rights under law shall not be denied or abridged by the United States or by any State on account of sex." The Amendment last time came within three states of the required three-fourths for ratification. Now renamed the Women’s Equality Amendment, the proposal has several hundred sponsors in the Democratic Congress, who want to send it back to the States for approval. But everything about this constitutional addendum is contested, from what it will now take to approve it to its meaning.

Some argue that the previous state approvals are still valid highlighting that it took 203 years to pass the 27^th Amendment limiting congressional pay raises; others deny it, pointing out the ERA last time was made expressly subject to approval within a seven year period that was extended to ten, and it still failed. Many of the amendment’s current boosters want to start from scratch, but then, what does it mean. Phyllis Schlafly made a career of opposing the earlier measure, positing that it would put women in ground combat, abolish single-gender outfits like the girl scouts, and even take social security survivor advantages from widows. These same arguments are back, but like the legal debate about abortion, all of this yammering seems several formal leagues removed from the question of career and children that women remain uniquely called upon by our culture to confront.

While equal pay is mandated by several federal statutes, it hardly seems a reality when women still make less than 80 percent of a man’s wage for the same work. Laws are laws, but the marketplace finds its own way to identify what we’re willing to pay for – and at the moment, we are willing to ante up for full-time work, but not the value women – since Cain popped Abel with that rock – have been giving to families out of simple, uncompensated love.

The late John Paul II wrote: "the mentality which honors women more for their work outside the home than for their work within the family must be overcome." A very nice sentiment, of course, which captures the irreplaceable social value of the family – Cain notwithstanding – to reductions in violent crime, child poverty, and illiteracy. Of course, it’s another comment from a man, and it curiously leaves out why men, too, should not be honored more for their family activity.

It’s unclear to me how my daughters, or yours, are going to navigate these issues, but I know this, on their success, ours depends.

Abortion Puts the Burden on Women to Satisfy Corporate America When It Should be the Reverse

Douglas W. Kmiec

Caruso Family Chair & Professor of Constitutional Law,

Pepperdine University 

Gonzales v. Carhart is a faithful application of the Casey precedent, reaffirming that the States "retain a critical and legitimate role in legislating on the subject of abortion. . . . The political processes of the State are not to be foreclosed from enacting laws to promote the life of the unborn and to ensure respect for all human life and its potential." In this sense, Carhart is not "alarming," as claimed by Justice Ginsburg in dissent. It merely vindicates the balance that had been struck in Casey and that had been troublingly disregarded in Stenberg v. Nebraska.

In the highly charged and over politicized environment in which we live, it may be vain to hope that the contending sides will now concede the constitutionality of a prohibition of the partial-birth practice as common ground in what Professor Laurence Tribe thoughtfully described some years ago as "a clash of absolutes," but it is that. The Roberts Court, and Justice Kennedy in particular, should be praised for writing no more broadly than necessary to allow the contending sides to stand upon that ground.

The dissent, however, posits that the different result in Carhart turned solely upon the different composition of the Court. This is most unfortunate. A Court dedicated to persuading its fellow citizens of the importance of the rule of law does itself, and its nation, a disservice when it mocks the very principle it asks the populace to honor. Putting aside the defiant aspects of Justice Ginsburg’s dissenting call for the Court to set aside the Carhart precedent at the earliest possible moment, her reflections upon the relationship between abortion and equality warrant careful analysis.

In a thoughtful essay for the Los Angeles Times (April 20, 2007), Professor Cass Sunstein of the University of Chicago noted correctly that Justice Ginsburg in her dissent in Carhart sought to re-anchor the abortion right on equality rather than liberty or privacy which has been the originally claimed basis for the right in Roe and Casey. Professor Sunstein observes that, "for Ginsburg, this alternative understanding of the right to choose has concrete implications." Moreover, Professor Sunstein thinks the new equality rationale for abortion is "powerful," and he wishfully anticipates that it may yet become a the majority view.

Why is shifting the abortion justification to equality powerful or advantageous? Professor Sunstein writes: "It means that any restrictions on the abortion right must, at a minimum, protect a woman's health. It also means that no such restriction can be justified on the paternalistic ground that women might turn out to regret their choices or are too fragile to receive all relevant information about medical possibilities." These propositions are undoubtedly correct. A state law that endangers a woman’s health would fail the rational basis standard let alone the heightened scrutiny associated with gender classifications. Yet, Carhart does not deny a health exception, it merely states that the case for it must be made in specific application.

Moreover, there is nothing in Justice Kennedy’s opinion in Carhart that assumes women are "too fragile" to digest accurate descriptions of abortion procedures, and if there were, that would violate equality. In truth, Justice Kennedy is respecting – not subjugating – the judgment of the woman when he posits that if she is properly informed, she would be less likely to choose abortion. There is no necessary identity between a woman choosing to have an abortion and intelligence. Indeed, it is the state’s assumption that the rational woman will forgo an abortion when she has all the facts. Said Justice Kennedy: "the State’s interest in respect for life is advanced by the dialogue that better informs . . . expectant mothers . . .of the consequences that follow from a decision to elect a late-term abortion."

Nevertheless, Professor Sunstein says that "for supporters of the right to choose, the sex equality argument has considerable advantages over the privacy argument. Much more than the right to privacy, the ban on sex discrimination is firmly entrenched in constitutional doctrines." Yes, it is tenable to see doctrinal formulations prohibiting invidious gender distinctions as more sure footed than the penumbral privacy claim, but does this actually confer an advantage on the supporters of abortion? All that the ban on gender discrimination entrenches is the requirement that the state articulate an "exceedingly persuasive justification" for drawing a distinction along gender lines. Whether or not one believes the fetus is an unborn child and a human person, one would think that Casey’s acknowledgment of a state’s interest in protecting life from conception might well satisfy that "entrenched" standard of review.

This still leaves the issue of whether men and women are similarly situated with respect to pregnancy. Basic principles of equal protection require that those who are alike or similarly situated be treated in like manner; they do not require collapsing or disregarding actual gender differences. Professor Sunstein addresses this matter of gender difference in this fashion: "True, men cannot become pregnant, and it is tempting to think that, for that reason, abortion restrictions cannot possibly create a problem of discrimination. But perhaps this argument has things backward. In our society, isn't there an equality problem if laws target only women's bodies and leave men's bodies alone?" It’s not clear what Professor Sunstein means by this singular "targeting of women’s bodies." In one sense, given the differences between men and women’s bodies, it arguably is little more than a restatement of the question are men and women different? If they are, it is not gender discrimination to treat them differently.

Yet, both Professor Sunstein and Justice Ginsburg are onto something important. It can only be grasped, however, if the claimed link between abortion and equality is broken. Justice Ginsburg is mistaken to indulge the legal premise that equates the equal citizenship of women with the continued availability of a cruel and inhuman abortion practice. The source of the inequality is not the unavailability of a given abortion procedure, but the failure of social or work environments to simultaneously accommodate the birth of a child and a women’s professional or other market skills. Ginsburg puts the whole burden of accommodation on the woman. Her attempted re-framing in the dissent of the abortion precedents from being anchored upon liberty and privacy to equal protection does not solve this. Abortion does not make women the equal of men; abortion makes women different from women and men.

No woman's equal citizenship should be made to depend upon the availability of a particularly heinous method of abortion or a woman's willingness to undergo it. The real truth of Justice Ginsburg’s (and derivatively Professor Sunstein’s) equality insight is this: women, but not men, are disadvantaged by society and in the economic marketplace by pregnancy. The solution, however, does not lie in putting a heavy thumb on the scale in favor of terminating pregnancies, which disregards the state interest in life, but in reforming the culture and the marketplace. A culture or marketplace that indirectly coerces women to forgo having children, or when they conceive them to abort them, is a marketplace and a culture that does indeed have matters backward.

Justice Ginsburg is highly intelligent. Despite brilliance and erudition, she was turned away early in her legal career by Felix Frankfurter for a Supreme Court clerkship and a dozen New York law firms. Matters have improved for women law graduates, but by how much? Justice Ginsburg may be as frustrated as my women law graduates continue to be. Year after year, far too many corporations and law firms do very little to meaningfully structure work environments to make it possible for a woman to fully participate in the economic and social life of the nation without having to beg for special treatment, or, as is implied or even explicit, in Justice Ginsburg's equal citizenship remark, to face a choice between work and family that men do not have to face. If a woman seeks to give birth to a child, is it not long past time that corporate and professional America honor that by recognizing that women, unlike men, have the capacity to contribute greatly to every intellectual endeavor and uniquely to the building up of civil society by giving birth and playing an irreplaceable and often predominant role in the upbringing of children?

With all due respect to Justice Ginsburg and Professor Sunstein, it is not archaic stereotype to recognize that women are not the equal of men when they surpass them in having the capacity to bring forth children and have a career. It is wrong to structure the law and society so that women must deny one capacity or the other. That is the ultimate denial of choice.