Doug Kmiec - Pepperdine Law School

Catholics & Obama -- A Matter of Faith Reconciled with Hope

Doug Kmiec — Sat, 20 Sep 2008 19:23:00 GMT

Douglas W. Kmiec

Chair and professor of Constitutional Law at Pepperdine University; the former Dean & St. Thomas More Professor of Law at The Catholic University of America and author of Can a Catholic Support Him? Asking the Big Question about Barrack Obama (Overlook Press),

In his review of my new book entitled Can a Catholic Support Him? Asking the Big Question about Barrack Obama (Overlook Press), Deacon Keith Fournier writes with the courage of his convictions that I have asked the wrong question, suggesting that the appropriate inquiry is whether Senator Obama ought to or should receive Catholic support? I have concluded that Senator Obama is indeed worthy of the support of conscientious Catholics. The Deacon dissents. Many of his points are unassailable and once again readers of this site are in his debt for the clarity of his thought. Nevertheless, in positing that the book asks the wrong question, the Deacon obscures the correct answer: namely, after proper discernment and with the right intent, Catholics are free to vote for Senator Obama in good conscience.

I offer these few comments in response to his. In what follows I quote the major argument passages from his essay and beneath in bold italics explain why at critical points the Deacon’s approach leaves much of our faith needlessly out of reach and applied only hypothetically. So let us begin with the heart of the matter: The Deacon argues: “It is immoral to vote in a manner which fails to protect innocent human persons from being unjustly killed.”

No, it is immoral to vote with that intent. This point is reaffirmed in the American Bishops’ splendid “Call to Faithful Citizenship,” where it is written: “A Catholic cannot vote for a candidate who takes a position in favor of an intrinsic evil, such as abortion or racism, if the voter’s intent is to support that position. In such cases a Catholic would be guilty of formal cooperation in grave evil. At the same time, a voter should not use a candidate’s opposition to an intrinsic evil to justify indifference or inattentiveness to other important moral issues involving human life and dignity.”

The Deacon continues: “Doug and his candidate are right to emphasize that we are our brother’s (and sister’s) keeper, but wrong to then exclude an entire class of brothers and sisters, the unborn, from the protections of the positive law.”

Yes, I am my brother’s and sister’s keeper, I am not, however as a private citizen, their legislator. In voting for a candidate who represents views affecting the totality of the social gospel, I cannot be assumed to materially participate or cooperate in any particular mistaken decision of that candidate – again, absent my intent to share in that mistaken view.

The Deacon then notes that I rely upon the recent letters of Archbishop Charles Chaput and Francis Cardinal George for guidance, and asserts in a rare moment of uncharacteristic intemperance that this reliance is “sophistry.”

Not so, I have relied upon these fine teachers of the faith in order to undertake the proper inquiry into whether there is proportionate reason allowing the choice of a candidate who has an alternative way of promoting human life other than a thus far futile, and in any event, insufficient effort to criminalize some, but not all, abortion practice.

Continuing, the Deacon observes: “Doug maintains that Senator McCain’s position in favor of the overturning of Roe v Wade is simply a ‘Federalist position’ and not a truly Pro-life stance. The Deacon concedes that McCain’s pro-federalism position is less absolute than the Deacon’s own based upon Catholic teaching, but he writes in apology for the weakness of the McCain position: “I know that the reversal of Roe opens up the field to securing protection of the children and will at least slow the shedding of innocent blood while we work on outlawing the act. I think (Doug) does as well but has backed himself into a corner.”

No, the corner we inhabit together as Catholics is one we were consigned to occupy by the Supreme Court’s mistaken jurisprudence and the larger culture’s hardness of heart. Part of the exercise of conscience we are called upon to make in terms of proportionality analysis as we vote necessarily includes an evaluation of which path is more likely to free us from that corner. In other words, we are asked as part of our proportionality inquiry to evaluate the likelihood of positive result in favor of life. Given the length of time Mr. McCain has exercised the levers of legislative power, is it not the least bit disturbing that during that entire almost 30 year period Senator McCain did not offer and actively champion a Human Life Amendment? Indeed, to the contrary, it was John McCain who previously stated: “I’d love to see the point where [Roe v. Wade] is irrelevant, and could be replaced because abortion is no longer necessary. But, certainly in the short term, or even in the long term, I would not support repeal of Roe v. Wade, which would force X number of women in America to undergo illegal and dangerous operations.”   Of course, Senator McCain’s change of view is to be welcomed, but let us then not overstate his bona fides as “pro-life,” at least not in the sense the Deacon himself has correctly articulated a position worthy of that title.

Also, as I note in the book in evaluating proportionality, the Church has directed that we exercise our conscience, giving primacy to the issue of life while also considering with due regard and moral weight of the totality of Catholic social teaching. Some individual bishops have given further guidance to their parishioners. For example, while I will not repeat here the full treatment of this important issue from the book, I would like to especially point out to the reader, the rigorous analysis of Archbishop Charles Chaput who writes that a proportionate reason “would be a reason we could, with an honest heart, expect the unborn victims of abortion to accept when we meet them and need to explain our actions -- as we someday will."   This is, as my commentary observes, a powerful statement, but fairly taken on its own terms, I doubt that I could legitimately explain to unborn victims either support for Senator McCain’s claimed ‘pro-life’ position or the Democratic platform reforms of Senator Obama to address the dire social and economic conditions of their mothers.

The McCain approach -- no matter how many hems and haws the Deacon wishes to insert -- is only truly pro-federalism (which is not only not reliably pro-life, but given the tragic example of international practice, might even facilitate in a radical state abortion mandates that because of the reversal would no longer be checked by the women’s individual autonomy right the Court articulated in Roe).

Since I have to make a decision between those incomplete positions if I am going to participate in the political process, I would much more prefer Senator Obama's efforts to directly intervene for the better in the life of an expectant mother now than the remote possibility that after 35 years, the next president may appoint someone new to the Supreme Court of the United States who in turn – in a case not yet filed, not yet accepted for review, not yet briefed and not yet argued -- might be able to persuade four of the other existing justices to overturn, against the principles of stare decisis, the decision in Roe, and then further persuade the individual legislatures of the 50 states and their governors to sign into law protections for human life. In my judgment, the position represented by Senator McCain in the 2008 election represents such an inconceivable chain of events that unborn victims could legitimately ask how could an honest heart ever have expected anything favorable to human life to come from it.

The Deacon then makes this claim: in the book, “Doug vacillates between acknowledging the existence of objective moral truths which should govern human behavior and contending that someone could deny their existence, claim that such a denial is a ‘deeply held religious belief’ and we should form our positive law to accommodate them under some misguided understanding of religious liberty and pluralism.”

Quite honestly, I do not “vacillate.” To the contrary, I state unequivocally, “The humanity of the unborn child to me and every geneticist on the face of the planet is patent. It is the natural law from which no human being can or should want to escape. Try escaping from your nature, it’s uncomfortable, and downright, dangerous. Think you can fly without a para-glider or similar device from the top of the Santa Monica Mountains along the Pacific; think again. Arm-flapping will be your last aerobic exercise.

“Can it be said that natural law is an obligatory part of the American Constitution? You bet, except that, with the possible exception of Justice Thomas, there is not a single Justice prepared to say so. Natural law is not Catholic law; it is universal; it is timeless; and it is what Thomas Jefferson anchored the new American Republic upon in the Declaration of Independence – self evident truths derived from the ‘Laws of Nature and Nature’s God.’ Only one problem: not everyone sees the truth of the unborn child the same way, and in the American democracy, majority rules.”

Now the Deacon may wish to say the majority cannot overrule those natural law presuppositions, and that is a fine point of philosophy and moral reality. It is, however, to lose touch with political reality, which was acknowledged by John Paul II in the Gospel of Life and by His Holiness Benedict XVI in instruction he gave before his elevation to the seat of St. Peter. We are to “promote life and work within the existing political and legal reality.” To just engage in systematic theology or philosophic discourse loses sight of the unborn children, we might actually – right now, this day -- save by improving the life circumstance of expectant mothers – which, by the way, is the experience of all those who have donated time at crisis pregnancy centers as well as the formal conclusion of studies by Catholics in Alliance for the Common Good and Catholics United both showing significant reductions in abortion through economic support.

The Deacon correctly observes that he “could never be accused of being what (Doug) now rejects as a “Republican Faith Partisans” (RFP’s).” “Like him, the Deacon continues, “I might be considered a ‘Reagan Democrat,’ at least in the sense that I left the Democratic Party when it abandoned children in the womb and I voted for Ronald Reagan. . . . The problem is that many Catholics do not know the Social teaching of their Church or have wrongly allowed ‘experts’ on the ‘left’ or the ‘right’ to interpret what it is for them.”

Amen, brother. You are indeed not an RFP, since this shorthand applies to those who do not write with courage and insight, as I described your work in the book acknowledgements, but those who instead ply the trade of demonizing and denigrating their political opponents, and worse, those who unfairly and mistakenly portray voting for Senator Obama as a sin contrary to faith and morals. It is, as you noted at the outset, not the calling of the Church to tell us how to vote and you and I join in the expectation that everyone from bishops to priests to fellow parishioners will not use in terrorem tactics denying Communion, threatening the denial of Communion, pronouncing in public press without pastoral counseling the demand that Catholic office holders go to confession, or otherwise being manipulated by those who have learned to win elections by setting red against blue, and who care little if at all, about the full social teaching of the Church.

And what is that teaching? It is not well discussed in the general church since it has been arbitrarily closed off to many by those who insist on putting out fraudulent voter guides that list the reversal of Roe as a nonnegotiable demand to be fulfilled prior to any consideration of family wage, just war, environmental stewardship, or the reasoned welcome and treatment of the immigrant family. RFPs – Republican Faith Partisans – thus take the carefully nuanced and balanced teaching of the Church, including its just call to give life primacy, and derive from it only their own electoral success paid for by a “pro-life” label without meaningful result; the skewing of the tax code in favor of the affluent and in disregard of the dignity of human work (John McCain over the last decade has voted against a modest increase in the minimum wage at least 8 times, yet he is foresworn to keep “the Bush tax cuts” whose target audience is more concerned with compensation packages in the millions of dollars, than the minimum wage); and a war without justification or even well-conceived military objective costing us $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.

The costs of war and failed, nay untried, diplomacy are great. Perhaps it is those costs that prompted George W. Bush to veto, and his protégé John McCain to sustain, the disapproval of extending (SCHIP) which had sent more than six million children from low income families to the doctor, cutting the number of uninsured children by one-third. No one has even begun to calculate the cost of John McCain’s drastic proposal to dismantle the present health care relationship with employers and to tax the value of health care to employees. There is reason to be leery, however, of McCain’s prescription of the same principles of deregulation that he brought to the financial markets for which we are paying dearly today, and a predicted increase in the numbers of uninsured will pay tomorrow.

Deacon Fournier is a splendid teacher of the faith.   Reflecting upon that faith, he concludes: “Truly good governance begins with the smallest governance, the family and should give priority to the principle of subsidiarity. We were made for one another and we find our human fulfillment only in giving ourselves to the other. Then there is that other vital principle, a principle of social charity called solidarity, which insists that we are “our brothers (and sisters) keeper.”

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.

The Memorial Day Economics of John McCain -- Can the Average American Afford Him?

Doug Kmiec — Sat, 24 May 2008 03:03:00 GMT

John McCain's economic policies this memorial day are definitely high-end. Are they out of reach for the average American?...(read more)

Call off the Conventions!

Doug Kmiec — Thu, 24 Apr 2008 03:32:00 GMT

The primaries have been endless and they are revealing less and less. Worse, they reviving the old politics of division. Should we shorten the general election campaign to get on with the business of governing? It's more possible than you may think....(read more)

Faith & Obama

Doug Kmiec — Mon, 24 Mar 2008 03:14:00 GMT

Those who praise Senator Obama's intelligent and unifying remarks on race ought to do so without employing partisan and disunifying caricature. ...(read more)

Leaving Iraq with Honor?

Doug Kmiec — Sat, 23 Feb 2008 05:18:00 GMT

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...(read more)

With the Economy in a Tail-spin, Florida Looks to Romney

Doug Kmiec — Tue, 22 Jan 2008 04:47:00 GMT

On the morning of January 22, 2008,the DowJones initially fell over 400 points, and as it did, Mitt Romney's presidential fortunes skyrocketed. Hope is good; experience is a plus; but a proven ability to meet times of challenge is the best....(read more)

Law & War

Doug Kmiec — Fri, 23 Nov 2007 16:10:00 GMT

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.

The Malibu Fire -- Maybe the Devil is in the Details

Doug Kmiec — Mon, 22 Oct 2007 22:50:00 GMT

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.

Mukasey: Integrity & Intellect are of greater value than Presidential Friendship*

Doug Kmiec — Fri, 21 Sep 2007 23:06:00 GMT

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.

Free the Slaves of Large Firm Practice – A Call for Alternative Business Models to the Billable Hour

Doug Kmiec — Fri, 24 Aug 2007 02:53:00 GMT

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.

Women, Work & Family – What do we Value?

Doug Kmiec — Sat, 23 Jun 2007 18:42:00 GMT

Douglas W. Kmiec Chair & Professor of Constitutional Law Pepperdine University In a recent column for Forbes magazine, I sought to further a national conversation on whether, and how, businesses (including law firms, of course) meet (or ignore) the...(read more)

Equality’s Defeat: How Abortion Disserves Equality

Doug Kmiec — Tue, 24 Apr 2007 02:59:00 GMT

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.

The Roberts Court, Taxpayers, and Religion

Doug Kmiec — Fri, 23 Feb 2007 21:12:00 GMT

Next week the Roberts Court will hear argument in Hein v. Freedom from Religion Foundation. In Hein, taxpayers claim that the President misused generally appropriated funds to sponsor conferences in which faith-based social service providers were given greater attention than competing entities. In a closely divided en banc ruling, the Seventh Circuit found standing even though the Court’s previous cases only allowed exceptional taxpayer standing where the challenge was to a legislative exercise of the spending power, not a complaint about the executive use of generally appropriated funds. While focused on jurisdiction, the case has landmark potential. This is especially true if the Court is signaling a long-term willingness to re-examine whether the very rules of constitutional litigation have been used to manifest hostility toward religious faith.

The First Amendment was intended to protect individual religious freedom from manifestations of religious favoritism be they in the form of a national church or legally coerced belief or practice. Mistakenly, in the late 1940s, the Supreme Court gave that Amendment a different meaning that prompts not accommodation, but exclusion of religious belief. Specifically, the court held that government must remain strictly neutral between religion and no religion. This is a rather odd proposition for a nation whose first president highlighted the extent to which "religion [was] an indispensable support . . .to political prosperity." I n its foundational document, America acknowledged a Creator and rights derived from being "created equal." In the words of Justice William O. Douglas our nation’s "institutions presuppose the existence of a Supreme Being."

Our institutions do, but no individual American is compelled to agree. That is indeed the genius of America – a corporate acknowledgment of the transcendent coupled with complete individual freedom on the same question. And the ingenuity of holding the possibility of two inconsistent thoughts is largely harmonized by keeping the Establishment Clause focused on its original concern with government coercion. When the Court misconstrues the Clause in the 1940s into maintaining neutrality between religion and no religion, a governing principle consistent with our nation’s foundation is lost. The analytical slide that follows becomes, for some justices, a misbegotten public obligation to affirmatively establish a secular state.

It is perhaps sad enough that some members of the Court have understood the Constitution as imposing an obligation to root out all public religious reference, but this mistake became compounded by a parallel ruling in the 1960s that threw open the federal courthouse door to encourage just about anybody to complain. As mentioned, the general rule is no taxpayer standing. Taxpayers make their case in the legislature, not court. The standing requirement is an important one because otherwise courts would merely become a second legislature, where those unhappy with the policy choices made by elected representatives could have another, unauthorized crack at it. Courts are intended to settle discrete disagreements or controversies, to interpret the law, and not to remake it. To ensure that courts stay within this proper role, a litigant in the usual case must demonstrate a specific, concrete injury traceable to the party being sued and capable of being remedied by the court. Not surprisingly, merely being distressed or disapproving of some government policy is not sufficient – at least , that is, unless one is objecting to religion

In Flast v. Cohen 392 U.S. 83 (1968), the Supreme Court disregarded these settled principles and sauntered off in its own direction. Curiously, Flast held that taxpayers had standing to challenge the use of funds under the Elementary and Secondary Education Act of 1965 that provided educational assistance in mathematics, reading and other subjects to public and religious school alike. While the lower court had found no standing based upon the general rule, Chief Justice Earl Warren propounded the view that standing could be found to challenge legislative expenditures insofar as they were applied to religious schools. Giving only lip service to the importance of standing to ensure both that the litigants before the Court had a sufficient stake in litigation to undertake proper argumentation and to keep the Court from disregarding the separation of powers, the Chief Justice invented a two-part standard that satisfied neither of those considerations. First, taxpayers had to establish a logical link between that status and the type of legislative enactment attacked, "as it will not be sufficient," wrote Warren, " to allege an incidental expenditure of tax funds in the administration of an essentially regulatory statute." Second, taxpayers must also establish a nexus between that status and the precise nature of the constitutional infringement alleged. In particular, they must show that the statute exceeds specific constitutional limitations on the exercise of the taxing and spending power and not simply that the enactment is generally beyond the powers delegated to Congress by Art. I, 8.

As Justice Harlan in dissent thoughtfully pointed out, neither of the Flast factors did anything to differentiate an Establishment Clause taxpayer case from any other taxpayer case. The requirements were at best makeweights, both could be easily fulfilled and both were off point in terms of keeping the court focused on the resolution of specific disputes. It was not as if, Harlan pointed out, that the complaining taxpayer under the two factor test would get a refund if he prevailed. "The taxpayer cannot ask the return of any portion of his previous tax payments, cannot prevent the collection of any existing tax debt, and cannot demand an adjudication of the propriety of any particular level of taxation," illustrated Harlan. "His tax payments are received for the general purposes of the United States, and are, upon proper receipt, lost in the general revenues." Moreover, there was nothing more specific or limiting on the spending power about the Establishment Clause than other constitutional provisions, such as Due Process or Equal Protection. Said Harlan, "I can attach no constitutional significance to the various degrees of specificity with which these limitations appear in the terms or history of the Constitution."

Will the Roberts Court undo the Flast mistake? Possibly. The case could be resolved narrowly simply by the modern precedent that differentiates executive from legislative expenditure. But this would leave the anomalous Establishment Clause taxpayer standing untouched. That would be unfortunate. The exceptional Establishment Clause standing doctrine has drawn the Court into disputes over the evenhanded inclusion of religious schools in federal grant programs and all manner of challenges to religious holiday displays and the after hours use of empty school classrooms by student religious clubs. To the extent that there is disagreement about these matters they should be resolved in the political process. Religious divisiveness is heightened, not lessened, by empowering one side to run into Court brandishing an exclusionary interpretation of the Establishment Clause. As Oliver Wendell Holmes remarked, the Courts are not the only defenders of the Constitution, as the other branches of government "are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts."

Nor does this mean that no case could be heard by the Court. Obviously, where a taxpayer or any other citizen is coerced or disadvantaged by a prescribed imposition under law of a religious belief or practice, standing would exist. Similarly, as Justice Harlan pointed out, it is a different case if a challenge is brought to a tax specifically designed for the support of religion. This was the Virginia tax opposed by Madison in his famous Memorial and Remonstrance in favor of religious freedom. Finally, although this is its own knotty issue, Congress retains some degree of authority to authorize public actions where there is a bona fide factual injury.

The Roberts Court has shown a special interest in standing and maintaining the jurisdictional integrity of the judicial function. Daimler Chrysler v. Cuno, 126 S.Ct. 1854 (2006). It should not understate that special interest here. It is illogical to retain a standing exception that distorts the role of the Court, props up an historically inaccurate interpretation of the Establishment Clause, and was largely a filler insufficiently connected to the structural importance of the separation of powers. And lest it be forgotten it also undermines one of President Bush’s best ideas – the allowance of religious a charities and other faith-based organizations to compete on equal terms in the delivery of social services. Often, a religiously-affiliated shelter or anti-addiction program is a more effective means to address spousal abuse or drug or alcohol addiction, and there is no constitutional reason to keep those in need of these services from coming freely to them.

The door opened to spurious, exceptional taxpayer standing in Flast ought to be closed.

Does America have any diplomats? -- what a real change of course in Iraq might look like

Doug Kmiec — Sat, 13 Jan 2007 22:57:00 GMT

It is a New Year and the nation is getting back down to business. In recent weeks, we have witnessed the departure of two men with very different effects on the world . A long, fond farewell for the healing Gerald Ford occurred both before and after a shrugged good riddance to the divisive Saddam Hussein . Meanwhile, President Bush pondered what to do in Iraq for the last month and came up with the same old answer.

In 2003, I supported the war -- strongly . It could still be supported today if it had any hope of accomplishing its principal objective -- stabilizing the region. It doesn’t.

Nothing has replaced the original justifications for intervention, and those are now stale. Hussein’s execution for his war crimes balanced the scales for his dozen years of disregard of UN resolutions. There was no connection between Al Qaeda and Iraq – how ever much we wanted to find one. In 2007, we know the jumble that is insurgent terrorism lacks even this thin veneer of explanation.

What then possesses the president to "stay the course"? He may think it necessary to defend the presidency, but this would be confusing cart for horse. The president having made an initial case for war, deserved – past tense – the full range of legal authority to win it. Wrongly, he did not always get it. The Supreme Court in the year just concluded was deeply mistaken to short change him, by giving credence to nonexistent habeas claims for the enemy or by de-constructing the president’s well conceived system of military commissions. Congress was right to almost immediately reverse the court. Did the president’s actions prevent another 9/11? Who can say? Who would not have wanted those actions to be taken to find out?

But it is 2007 and defending presidential means for an end unobtainable by conventional military force makes little sense. Whatever Hussein’s motivations for bluffery, he is history’s footnote. And as for our humanitarian intervention – well, the insurgency has long since wiped out the humanity of our assistance.

Unlike many of his war critics, I remain admiring of the President. I am especially fond of his plain-spoken manner. He is not himself, however, when he employs "surge" to mean "escalation." That this is the meaning of his current plan can be seen in the advice of two voices underlying it – retired General Jack Keane and AEI Scholar Fred Kagan. Keane and Kagan know military strategy and they counseled the President that nothing less than 30,000 additional troops for no less than a year and a half had any meaningful chance of securing Baghdad, let alone Iraq.

And what would these fresh troops – and the redeployed existing forces – be doing? Keane and Kagan redefined the mission to American-supplied, sector by sector protection of the capital city. Why the president thinks this sufficient for victory is mysterious. At a minimum, it seems far less than bringing stability to a region and light years away from all the bravado of exporting democracy.

This is asking far too little for far too much blood and treasure. It has all the appearance of saving face. If it were to succeed, and Keane and Kagan wisely make no promises, at best this military escalation would open the door to "diplomatic, political, economic and reconciliation initiatives," wherein Keane and Kagan more or less concede lies the real hope for regional stability.

One can readily agree that diplomatic initiative – multi-national initiative – is where genuine peace is to be found. This should have been the centerpiece of the President's plan. Secretary Rice's present post hoc, "listening tour" is anemic by comparison. Where the U.S. has had a constructive role in other hot spots, such as Serbia and the Balkans, we have acted in concert with other nations within the rubric of a multi-national entity like NATO. That is the wiser course here as well. Instead of planning how to "clear" and "hold" Baghdad neighborhoods, as Keane and Kagan recommended, the President should Have been working over the holiday season to assiduously lower the American military profile as a precursor to diplomatic effort that might very well not be subject so much to our direction, as participation.

When Keane and Kagan write: "the United States faces a dire situation in Iraq because of a history of half-measures," one suspects that without political constraint, they might advocate an escalation well beyond 160,000 or so total troops. As the highly negative reaction to the President's proposal reveals, this is unacceptable to the American public. Of course, that was a fact made plain in mid-November. The Baker-Hamilton report put exclamatory punctuation at the end of that electoral sentence.

It is difficult to admit error for any of us. How ever well-intentioned the initial intervention in Iraq may have been thought to be, and how ever noble the sacrifice made for those original intentions shall always remain, the time for America to walk through the diplomatic door is now. The President may call making an Iraqi exit a "defeat," but that is only so if a major diplomatic effort aimed at Europe and the Middle East fails to convince the world community that we all have a stake in eliminating a terrorist breeding ground. If the United States has to eat french fries to open that discussion, it is better than eating crow and a more prudent course of action than repeating the Vietnam-era practice of burning the village to save it.