Wednesday, April 30, 2008

Is Obama's grandmother next?

Yesterday Barack Obama decided that he could, in fact, disown Jeremiah Wright. So much for his speech in Philadelphia being a singular event in American history that will be studied years from now.

But Wright said nothing over the weekend that he has not said before. What's changed?

The charitable explanation is the Obama has learned that his conservative critics - the ones that he said were raising distractions and taking Reverend Wright out of context - were right all along. The claims that the increasingly numerous outtakes from Wright's eruptions did not reflect the pastor's views or that Fox News somehow unfairly edited his remarks were destroyed by Wright himself. He decided to repeat most of them before a national audience in a way that made no attempt to hide his anger and smug moral arrogance. Maybe Obama's eyes were finally opened. Thus his statement that, perhaps, "I may not know [Wright]as well as I thought ...."

How to put this charitably?

It doesn't scan.

It is implausible to the point of impossibility that Obama could have had the type of relationship that he had with Wright and not know that the pastor (whose anthropology actually controls his theology) thinks that America is a god awful place that is in need of radical alteration. It is incredulous that Obama, over those twenty years, did not come to know that the man who he identified as akin to a father figure believes that our country's sins (which are hardly unique to the human condition)outweigh its virtues. Unless Obama was, as Kathleen Parker puts it, a "clueless naif," he had to be familiar with views that are, as he explained at the National Press Club, at the core of the "prophetic" call of the church that he headed and that Obama was part of for twenty years.

But even if he somehow managed to miss the essentials of Wright's world and spiritual view, he had certainly become aware of it by the time of the Philadelphia speech.

What has changed is that Wright wouldn't shut up. What has changed is that Wright suggested that the man he has known and counseled for twenty years distanced himself from his pastor, not because he disagrees, but for political reasons. This, was apparently the worst thing. "And what I think particularly angered me," Obama said, " was [Wright's]suggestion somehow that my previous denunciation of his remarks were somehow political posturing."

Obama apparently couldn't disavow Wright for suggesting that America brought 9/11 upon itself, couldn't disown him for spewing hate about the US deliberately addicting blacks to drugs and infecting them with AIDS, wouldn't denounce him for suggesting that our country is damned in the eyes of God, wasn't much moved by Wright's support for Louis Farrakhan and belief that Zionism is racism.

But Wright's decision that his beliefs (or ego) are more important than Obama's presidential aspirations? His suggestion that the man he has known so well is actually sympathetic to his world view? His refusal to go along?


Tuesday, April 29, 2008

Wright stuff is wrong for Obama

There seems to be a surprising consensus that Jeremiah Wright did not do his friend Barack Obama any favors with his appearances before the NAACP and National Press Club. He made it quite clear that the highlight reels of his sermons do not present his views out of context and that he is a man who believes that the United States is an imperialist nation that is a force for evil in the world and a fundamentally unjust place in which little racial progress had been made. He made clear, moreover, that these views are part and parcel of his theology and definition of church. It is inconceivable that anyone could sit in his church for any appreciable length of time or have more than a passing acquaintance with him without knowing this.

So what does this have to do with Barack Obama and how should he "handle it?" For a candidate like Obama, whose ascent to the national stage is so recent and about whom we know little, it's another bit of information about who he is. It's not, as I have said, that he shares all of Wright's more outrageous views. It's that his longstanding relationship with Wright - along with his privileging of Wright as a person who has, perhaps, had more influence on his public life than any other,implies a certain sympathy for Wright's crtitique of America. When you add this to the many other things - sdome of which Obama calls "distractions" - such as his voting record, overwrought rhetoric, condescension toward the unwashed ignorant of rural Pennsylvania, removal of a flag pin as a political statement, reference to Bill Ayers as just a "professor," etc., we see begin to see someone who is not the postideological candidate that he wants to say that he is. As we used to say, meet the new boss (same as the old boss).

This is important because, whether we think they should or not, voters respond to cues and shortcuts in choosing candidates. They are, public choice theory tells us, rationally ignorant about politics. No one vote matters much so there is little incentive for the average voter to acquire much political information. Although the left wants to say that the manipulation of these shortcuts is a right wing phenomenom, the fact is that both sides do it. Republicans, say the Democrats, are cruel martinets for the rich. They don't care about the earth and enjoy war. Maybe the charges that each side fling at each other reflect real differences (both sides claim that it does) and maybe they don't. (My sense is that they do but overemphasize and unfairly emotionalize them.)

We can argue about whether the use of these cues constitutes political "market failure" or results in voters choosing candidates other than those they would choose if they were fully informed. But the fact remains that candidates who have come to be widely viewed as overly internationalist or pacificist in foreign affairs, who are committed to high levels of government intervention in the economy and seen as champions of the social views of liberal elites lose Presidential elections. There are no recent exceptions.

So what can Barack Obama do about Reverend Wright? Nothing. Anything that he might say now won't be believed and probably justifiably so. What he has to do is work on the image that is being rapidly being formed because of things like Wright, et al.

What he should not do is complain about being treated unfairly. He's not and, even if he were, complaining will only make it worse.

Monday, April 28, 2008

A fairly substantial win for Voter ID

Today's Supreme Court decision in Crawford v. Marion County Election Board is largely good for those who want tougher laws aimed at detecting fraud in elections and reflects substantial deference to the legislature in determining the relative threat of fraud and in assessing - at least for the great run of voters - whether it justifies more stringent voting procedures.

The six justice majority was comprised of two groups of three who differed on the standard under which such regulations should be analyzed. Both strike me as fairly deferential although the standard adopted by the controlling opinion (Stevens joined by Kennedy and Roberts)leaves open the possibility of "as applied" challenges to voter identification laws.

It appears that such challenges, however, will have to show some substantial burden on a particular voter (or group of voters) that is more onerous than having to go and obtain a free ID. Although the record in Crawford showed very little in the way of actual fraud, the majority just doesn't seem to regard this as much of a burden upon the right to vote.

One caveat: The record in Crawford on the burden placed on voters by an ID requirement was extremely thin. Maybe plaintiffs who create such a record with respect to some subcategory of voters will fare better.

New Federalism goes every which way

Illusory Tenant wonders how the Wisconsin Supreme Court will rule in the case of Noesen v. Wisconsin Department of Regulation and Licensing. This is the one in which a pharmacist at K-Mart not only declined to participate in filling a prescription for oral contraceptives (K-Mart had made clear that he need not do so), he also refused to cooperate in it being filled by another pharmacist. The state Pharmacy Examining Board has reprimanded him and placed conditions on his practice.

There are due process and administrative law issues in the case, but I want to focus on Noesen's claim that the board's action impinged on his rights of conscience and free exercise.

There's irony upon irony here. IT has been a defender of New Federalism. If, in fact, the Wisconsin Supreme Court were to follow the standard adopted by the United States Supreme Court for analyzing this type of claim - a standard adopted in a decision written by none other than Antonin Scalia - Noesen would almost certainly lose (as IT believes that he should).

But in interpreting Wisconsin's right of conscience, the Wisconsin Supreme Court has chosen to go its own way. (The language in the state constitution is different from that in the federal, although that is not why the state supreme court has adopted from the federal test.) The tougher standard that it applies might make Noesen's case more of a horse race, but I suspect that he will still lose. If he had simply declined to fill the prescription and transferred it to someone else (which K-Mart would have permitted him to do), he might have a case. But he went too far.

Sunday, April 27, 2008

They gave the revolution. Nobody came.

Since we are back in the Day with Weather Man, I thought it appropriate to offer a rare TV appearance by the Beatles singing "Revolution" featuring John Lennon's controversial phrasing. If you're talking about destruction, you can count him "out ... in."

And, as I suggested before, one of the roles of people like Ayers and Dohrn is to allow a certain class of Boomer to fly their freak flags. They owe it to themselves.

Ayers and Dohrn aren't trivial

Last week's post on Bill Ayers and Bernadine Dohrn was in today's Best of the Blogs in the Milwaukee Journal Sentinel. Part of my fascination with this issue - actually most of it - has little to do with Barack Obama. Ayers and Dohrn were hired into jobs that are not easy to get notwithstanding that they had less than stellar qualifications. Bernadine Dohrn was hired as a clinician at a prestigious law school notwithstanding a thin resume (she had, after all, been busy waging war against society and hiding from the police) consisting of some time as a paralegal (she can't practice law) and a few years at some liberal advocacy organizations. Although she certainly has been an active - if very political - scholar and advocate since then, I can't help but think that the folks at Northwestern enjoyed a bit of outlaw frisson in hiring a radical gangster.

As for Obama, it is one of an increasing number of data points that suggest he is what his Senate voting record suggests he is but that he steadfastly denies - a fairly traditional left liberal. It's not a huge thing, but neither is it irrelevant.

I don't think that those who believe that Ayers and Dohrn should be treated as respected and responsible members of the community endorse the type of terror that Weather Man and the Weather Underground engaged in. But it's hard not to conclude that they seem willing to forgive it because they believe that the US - whether by the war in Viet Nam, racism or its economic system - in some sense provoked it and is, therefore, at least partially complicit. This may not, in the minds of these folks, excuse these crimes, but it seems to be sufficiently extenuating to warrant that terrorists, like Dohrn and Ayers, be forgiven even if they have not paid - or even apologized - for their crimes.

If you don't believe me, imagine Northwestern or the University of Illinois hiring an unrepentant bomber of abortion clinics. Would Barack Obama sit on a board with someone who called for - and appears to have engaged in - lynchings and now refuses to apologize?

If you follow me, then accepting Ayers and Dohrn as something other than the pariahs that they ought to be suggests something about those who are willing to do so. It isn't that those who accept Ayers and Dohrn are themselves terrorists or radicals, but that they hold a view of the world (and, in particular, of the United States) in which certain types of terror, while not justified, are substantially less repugnant than others.

That world view, if it is held by Obama, is relevant to whether he ought to be President of the United States.

Saturday, April 26, 2008

Soglin's false activism sighting

Paul Soglin wonders when I am going to criticize Justices Scalia and Kennedy for "judicial activism" based on comments that they made at oral argument in Davis v. Federal Election Commission. Davis involves a challenge to a provision in the McCain-Feingold Act that raises the contribution limits for candidates who face a an opponent who self-finances above a specified amount.

He is nice enough to quote from one my white papers and point out that it was funded by the Federalist Society. Perhaps, someday, he will disclose the funding of all of his activities as well.

Kennedy and Scalia expressed concern about Congress setting the rules for speech in federal elections. Soglin says that this amounts to activism because he, like many others, makes the mistake of equating activism with overturning statutes.Ordinarily I would not criticize a justice for an opinion that hasn't been written but the challenge to the "Millionaires' Amendment" in McCain-Feingold is not based on mere disagreement with Congress' "balancing of the interests involved."

Rather, the question is whether a distinction based upon the type of speech that a candidate is engaged in (here self-financing an election) runs afoul of specific textual provisions in the Constitution, i.e., the First and Fifth Amendments. In my view, these provisions should be interpreted in a way that roots the judicial task - to a substantial degree - in something other than the views of the judge on what constitutes good policy. But the constitutional text does place limits on the legislature and, in a part of my paper that Soglin does not quote, I point out that it is just as activist to ignore a constitutional restraint on the legislature:

Such a working definition, while far from perfect,
avoids a number of common traps. For example, judicial
activism is not synonymous with striking down statutes.
If a statute violates a constitutional command, then it
is a form of activism i.e., of making the rules, to let
it stand notwithstanding its inconsistency with the
people’s foundational document.
Does the millionaire's provision violate the Constitution? I haven't formed an opinion. I can imagine a set of circumstances in which a Congressional response to private speech may do so. Imagine, for example, that Congress decides that fundraising compromises the judgment of sitting legislators and decides to publicly fund only the campaigns of incumbents and to match whatever the challenger or those acting on her behalf have spent. I am skeptical, as well, of public financing schemes that match private dollars spent on a candidate during an election. The purpose seems to be to dissuade protected speech.

The responsive argument - that Congress is trying to "even the playing field" is problematic in the First Amendment context where we distrust regulation (the Constitution facially prohibits it) and might see Congressional regulation of elections as a bit like a hitter calling his own balls and strikes. There are, in fact, some odd anomalies with the Millionaires' Amendment.

Having said that, I am not sure that merely raising the contribution limit operates as a substantial restraint upon or deterrence to protected speech.

Thursday, April 24, 2008

We still don't need a weather man

How much should we make of Barack Obama passing association with Bill Ayers and Bernadine Dohrn. Would we care if a Republican candidate had sought support from David Duke, had a fundraiser hosted by Timothy McVeigh and had served on a board with Byron de la Beckwith.
What would we think if he described Bull Connor as just a "retired politician" who lived in the neighborhood" who did some bad things when the candidate was a child?

You make your own judgment on that. What I find - have always found - amazing is the way in which these two were welcomed into elite - much less polite - society. Ayers is an unrepentant bomber rewarded with tenure at a state university. Although Ayers has claimed to be misunderstood, he has yet to call himself the terrorist that he was. Dohrn, his partner in crime, once said the following about the Charles Manson murders:

"Dig it. First they killed those pigs, then they ate dinner in the same room with them, they even shoved a fork into a victim's stomach! Wild!"

Now she says it was a joke. Now she is a clinical professor of law at Northwestern. Now. in a fit of displacement, she calls America the monster. Asked whether he would do it again, Ayers recites poetry and wistfully describes his youth as a time when hope and history rhymed.

One would like a President - and an academy - that recognizes that vile behavior is redeemed by repentance and not by the ability to rationalize monstrous acts through pretty talk.

We can't all be Nino

There were many silly things said in our recent election for state supreme court. One was Justice Butler's claim to be a textualist in the mode of Antonin Scalia. Trust me, I do this stuff for a living. The idea that Louis Butler is anything like Nino Scalia is a laugh line.

Blogging lawyer Illusory Tenant seems to think that he has proven it to be so because, he believes, Scalia may take a similar approach to the scope of the Confrontation Clause in a case currently pending before the Supreme Court (Giles) as Butler took in a similar case decided by the Wisconsin Supreme Court (Mark Jensen). The idea is that the only exceptions to the right to confront a witness ought to be those that were recognized at the time of its adoption. Butler came to the conclusion - and so may Scalia - that a defendant's confrontation right is violated by the admission of hearsay from a witness who he is alleged to have killed unless there is proof that he killed the witness in order to silence her testimony.

We can argue about the desirability of such a distinction. It seems like an odd place to draw the line once we accept (as everyone seems to) that the confrontation right is not absolute. On the other hand, it places some boundaries on an exception that threatens to get rather large. Scalia's point - and one employed by Butler - is that desirability is not the question. Rather, we have to get at the actual meaning of the constitutional language without regard to what we think it ought to say.

The problem with drawing some larger conclusion from the Giles/Jensen example is that while this is - with imperfections - a consistent interpretive methodology for Scalia, it really isn't for Butler. Cases like DuBose and Knapp were not rooted in the original meaning of the constitutional language at issue. Jerrell C.J. certainly constituted an aggressive and extraordinary spin on the Court's supervisory power to compel a result that could not be rooted in the Constitution or statutes. It is very hard for a textualist to reach a decision like Dairyland Greyhound Park in which the court held that a constitutionalists amendment outlawing casino gaming actually permits a Governor to agree to its unlimited expansion on Indian reservations or to read our constitution's right to bear arms in the constricted manner that Justice Butler and a majority of the Court have adopted in order to preserve the state's broad prohibition on concealed carry.

In point of fact, those who supported Justice Butler and who, like IT, considered him to be one of the smartest judges in the country were generally not textualists and favored his reelection because they thought he was not either.

I have said nice things about Tom in the past and I mean them. But the point I made above is one which I think that most court watchers would agree with (although some would deny that what Scalia wants to do is possible). Patrick McIlheran understood that (he's an excellent journalist and did some great background interviews) and, in writing a column headed "No one here but us Scalias" turned the best phrase in a dreary campaign. To write as, Tom does that McIlheran's views are "absurdist fluff," "exceptionally silly, "manifestly supercilious" and "ill-informed scribblings" is not only adjectivally overdosed but thoroughly incorrect.

On the other hand, if what we want is more Scalias, I assume that Tom is looking for someone to run against Chief Justice Abrahamson.

Wednesday, April 23, 2008

Do the right thing?

Eugene Kane has an interesting description of Jeremiah Wright's church. It is, he says, the kind of church that "many black people attend to hear black preachers talk the way black folks talk when white folks aren't around." By that, I take it he means bitter attacks on the United States, broad accusations of white racism, and crackpot theories about AIDS, drugs and Pearl Harbor.

I am, by definition, not in a position to know what "black folks say when white folks aren't around." I would not presume that it is the type of dime store sociology that we have heard from Reverend Wright but Eugene Kane wants to tell me that it is.

Let's assume that he is right. Kane's implication is that we ought not to make much of it. He quotes his barber's comments that "white folks" won't vote for a "black guy" and are "just waiting to trip him up." The suggestion is that raising things like Wright and Ayers and
bitterland and on and on are all just efforts to "trip him up" and somehow illegitimate; part of white America's refusal to accept a black President.

Is that right? Even if, as Kane says, this is the way that "black folks talk when white folks aren't around," does that mean that white voters are behaving in a racist or otherwise improper manner if they decide that they don't like it? Is some measure of tolerance of that type of talk the price of racial reconciliation?

NY Times: Surrender is the high road

The New York Times editorial in the wake of Hillary Clinton's rather decisive victory in the Pennsylvania primary is just silly. Clinton has presumably taken the low road to victory by questioning Obama's readiness to be President in a dangerous world. This is so because ... why? Because it's not a dangerous world? Because Obama, by promising to talk to our enemies without preconditions and suggesting that he'd invade an ally, has raised some questions about whether he understands that it is? The Times is upset that Clinton has observed that we could "obliterate" Iran if it invades Israel. Do they believe it would be better if we told them that such action would be met with stern disapproval and a prompt UN resolution?

The Times believes that the candidates should focus on the policy positions that do not distinguish them. This reminds me a bit of a federal judge who once complained because we lawyers couldn't agree on jury instructions. God bless my opponent who explained that, if the judge gave his instruction, he would win and, if he gave ours, we would win.

The editorial is of a piece with the Obama driven narrative that we should only talk about what he wants to talk about. We should accept his self-definition and ignore any information that contradicts it.

That isn't going to happen. And it shouldn't.

Tuesday, April 22, 2008

Maybe, in order to win, Obama needs to get more votes

I haven't a clue what will happen in the Pennsylvania primary. It looks like Hillary will win, but perhaps not by the decisve margin that she is said to need. If so, Obama will declare victory and urge Hillary to withdraw.

I look at it a little differently. Obama has had six weeks to go head to head with her. He has overwhelmed her with cash. She has continued to be a singularly unattractive candidate persisting in embarassing lies about her visit to Bosnia and childhood affinity for shooting. If Obama can't beat her under these circumstances, he is a candidate with significant weaknesses. These weaknesses, moreover, seem to stem from an association with the worst of American liberalism that Hillary Clinton, of all people, is poorly positioned to exploit. (Although at least one commentator thinks that Obama will learn. I'm skeptical. He doesn't seem to think that he ought to.)

Maybe it doesn't matter. Maybe the prospect of a Republican win is just doomed by Bush's unpopularity or the fact that the election comes at the wrong place in the business cycle for the GOP. (I am not persuaded that the war hurts McCain.) We can be sure that, no matter what the economic reality, that the media will treat any economic slowdown as if we are on the brink of Depression. And there are, after all, polls that show Obama beating McCain in PA.

But don't Democrats have to be worried about a guy who can't put away such an empty suit? And no matter what the polls say about a race that hasn't started, it's hard not to conclude that Obama has left folks in places like Pennsylvania and Ohio unimpressed. You can make a fairly strong argument that, for a Democrat to win, Pennsylvania shouldn't even be in play. How do you get to 270 if, after McCain actually campaigns there, it's in the GOP column?

That being said, McCain has a tough road ahead. Our youth obsessed culture is not going to look kindly on a 72 year old candidate. Will McCain turn out to be Bob Dole? We are almost certainly going into some kind of slow down (one is rather overdue) and the credit crisis makes for good footage.

But I don't know that the blue tsunami that some of my liberal friends are already celebrating is going to happen.

Monday, April 21, 2008

Obama doesn't want to play?

During my stint on WMCS' Backstory segment, I was intrigued by the reaction to the manufactured controversy over the questions asked at Wednesday's debate between Barack Obama and Hillary Clinton. My co-panelists - and the fiercely pro-Obama listeners - thought it outrageous that people would still focus on Jeremiah Wright, the statement about "clinging to God and guns," Bill Ayers, etc. Obama's petulant complaints about the debates seem to reflect that. It's as if he is annoyed that someone would interrupt his speech-making.

My point was that no presidential candidate gets to control was is said about, or asked of, the candidate. Obama wants to portray himself as some type of post-ideological harbringer of unity and change that everyone will (or ought to) want, but we don't have to accept that. If we are constantly finding data points that suggest that he is an unreconstructed man of the left, we can point that out.

Part of the reaction by the WMCS panel and audience is to shrug their shoulders at that. They know its true and think its fine. They just don't want to talk about it because they perceive - probably correctly - that it won't help the cause. Thus, Eric Von says that Reverend Wright was "all right" (although Eric doesn't buy into the AIDS accusations) and Dave Berkman argues that small town white people are racists.

On a national level, Nora Ephron reminds us why these controversies matter with this post, suggesting that the Pennsylvania primary will be decided by "racist white men", all but apologizing for what she seems to regard as the redundancy of that description.

One reaction to a post like Ephron's will be to point to a double standard and ask whether "we can imagine" what would happen if she made such statements about, say, blacks or gays. That's fair, but it has gotten a bit like pointing out that cable news go crazy over missing blonde girls. Tell me something that I don't know.

What Ephron does is remind us of the catechism of the American Left. What Obama's association with Reverend Wright, refusal to wear a flag pin, condescending remarks toward rural Pennsylvanians, association with Bill Ayers, Senate voting record, oppostion to protecting infants who survive an abortion, etc. raise is the extent to which he shares that catechism.

Sunday, April 20, 2008

Interlude of old rock

When I was 8, I used to take guitar lessons at Biehoff's Music which was somewhere on North Avenue around, if I recall, 43rd Street. I wanted to learn to pay something by Manfred Mann. Maybe it was this:

My favorite English Invasion groups back then were the Animals and the Rolling Stones, but I also liked the Dave Clark Five who were, briefly, rivals to the Beatles:

An Inconvenient Pope

I have this working hypothesis that the unforgivable sins for boomers on the left are sexual.

To be judgmental about the sexual activities of others is unpardonable. This is what makes the Pope such a figure of scorn. The Vatican hangs on to this antiquated notion that we ought not simply do whatever feels good. It can oppose the war in Iraq, advocate a preferential option for the poor and oppose the death penalty, but it will still be seen as a force for reaction.

So the frequently querulous Mike Plaisted can't understand why the media would think it important that the Pope is in the US for the first time in 13 years. They are, he says, sucking up to 71 million Catholics (and millions more who are not Roman Catholic but regard the Bishop of Rome as a unique figure in Christianity). Why cover something that most of the country is intensely interested in ? Better to focus on the obsessions of a handful of secular leftists.

Benedict might do some challenging things like pray for Muslims at Ground Zero, but he also thinks that sex should be limited to marriage so let's ignore him. He can apologize for the church's blindness to clerical abuse, but he won't accept that homosexuality is an appropriate expression of God's gift of sexuality so he is dead to us.

Plaisted is so upset by the fact that the Pope won't countenance abortion that he has actually converted "the putrid Bill Kristol" to Catholicism. Kristol is Jewish, but facts shouldn't sully our stereotypes. The bad guys have to be everything that we think they are.

Mike trots out the old cliche that if men got pregnant, abortion would be a sacrament. For left liberals, abortion is a sacrament and the Pope is a heretic.

Ultimately, the larger problem may be that the Pope represents an alternative source of authority - something outside secular progressivism. I agree that's unsettling. Not all of us want to look.

Friday, April 18, 2008

Judge Sykes on judicial selection

For those interested in the coming debate over judicial selection, Judge Diane Sykes gave a thoughtful speech on the subject at yesterday's meeting of the Eastern District of Wisconsin Bar Association. I didn't hear the speech because of a prior commitment, but have read a copy and I believe it will ultimately posted to the Journal Sentinel's Proof and Hearsay website.

Judge Sykes is troubled, as was I, by the tone of the last election. She invites debate over judicial selection without expressly endorsing any particular method. I think that the key challenge of that debate is summed up in the following passage:

Elections operate as an external constraint on state judges’ job performance. There is no question that this weakens judicial independence—that’s the whole point. Independence and accountability are important, but conflicting, values. In choosing an elected judiciary, Wisconsin has accepted a reduction in judicial independence in order to achieve a greater level of judicial accountability.

What makes acountability so salient is differences in opinion about the role of the judiciary. Judge Sykes observed:

Broadly speaking, it is a struggle between interpretivist and noninterpretivist judges. Labels are tricky, but to generalize, the former try to decide cases by reference to neutral principles and sources of interpretation that operate to limit judicial discretion: the text, structure, and history of the constitution and laws, precedent, and traditional rules of legal interpretation. This approach tends to be more restrained in the use of judicial power and therefore more sensitive to separation of powers and the prerogatives of the other branches of government. On the other side of the philosophical divide are those judges who subscribe
to a more expansive view of the judicial role and see the law as a malleable instrument through which judges should try to achieve the “right” or “best” or “just” result. These judges are more inclined to look behind the language and structure of the law, more willing to modify traditional interpretive methods, and less inclined to defer to the other branches of government. This struggle has obvious consequences for judicial politics.

I missed Judge Sykes' speech because I attended an address by former Attorney General Ed Meese at Marquette University Law School. General Meese focused on the politics and tone of Senate confirmation of federal judges, noting the way in which battles over the nominations of Bob Bork, Clarence Thomas, Sam Alito and even John Roberts departed from historical practice. They became battles over ideology because, since the Warren Court, ideology in judging matters.

Judge Sykes notes that "[i]t is not impossible to elevate the level of discourse and still articulate the philosophical differences that may exist between judicial candidates so that the public understands what’s at stake." "Drawing these philosophical contrasts," she says, "does not require playing on voters’ fears or hitting them between the eyes with images of bloody knives, dead bodies, empty swings, and mug shots of child molesters."

I would add that it can be done without referring to judicial nominees as racially insensitive or indifferent to the needs of ordinary people because they do not believe that it is their prerogative to shape policy in a way preferred by their critics.

Nor is the debate served by denying that these differences exist.

Thursday, April 17, 2008

Finding judicial activism

I understand that those of you in Madison will be able to catch Chief Justice Abrahamson on Sly's radio show discussing judicial activism at 10:30. I am going to miss it because I have to be on a panel at the Eastern District Bar Association discussing the impact of the United States Supreme Court's opinion in Bell Atlantic v. Twombly on pleading standards under Rule 8(a) of the Federal Rules of Civil Procedure. Hopefully someone will live blog it.

I have heard the Chief's take on judicial activism. She thinks its a slur. She denies its existence.

But let's look at Justice Stevens concurrence in Baze v. Rees, yesterday's decision holding that lethal injection does not violate the Eight Amendment. Readers of S&S know that I oppose the death penalty, although I do not think that the Constitution forbids it. Stevens expresses the view that the death penalty is unconstitutional. He marshalls (disputed) evidence in support of his critique but, in the end, says that his own judgment is the measure of what the constitution requires:

In sum, just as Justice White ultimately based his conclusion
in Furman on his extensive exposure to countless
cases for which death is the authorized penalty, I have
relied on my own experience in reaching the conclusion
that the imposition of the death penalty represents “the
pointless and needless extinction of life with only marginal
contributions to any discernible social or public purposes.
A penalty with such negligible returns to the State [is]
patently excessive and cruel and unusual punishment
violative of the Eighth Amendment.” Furman, 408 U. S.,
at 312 (White, J., concurring).

Justice Stevens goes on to note that the Court has held otherwise and, under its precedents, the execution methods before the Court are not unconstitutional. Thus, he concurs in the judgment, although presumably he would vote to declare the death penalty unconstitutional were the issue to be presented.

The point is the approach that he takes to interpretation of the Eighth Amendment, essentially making his own sense the sense of the Constitution. Interpretive methods such as this, which maximize judicial authority and discretion, are what we mean when we discuss activism and restraint.

If a bracing rejoinder to this, Paul Cassel recommends Justice Scalia's concurrence in Baze. He directs to the following from Scalia:

Purer expression cannot be found of the principle of rule by judicial fiat. In the face of Justice Stevens' experience, the experience of all others is, it appears, of little consequence. The experience of the state legislatures and the Congress-who retain the death penalty as a form of punishment-is dismissed as “the product of habit and inattention rather than an acceptable deliberative process.” Ante, at 8. The experience of social scientists whose studies indicate that the death penalty deters crime is relegated to a footnote. Ante, at 10, n. 13. The experience of fellow citizens who support the death penalty is described, with only the most thinly veiled condemnation, as stemming from a “thirst for vengeance.” Ante, at 11. It is Justice Stevens' experience that reigns over all.

I take no position on the desirability of the death penalty, except to say that its value is eminently debatable and the subject of deeply, indeed passionately, held views-which means, to me, that it is preeminently not a matter to be resolved here. And especially not when it is explicitly permitted by the Constitution.

Tuesday, April 15, 2008

Tom Joad in western PA

One of the more interesting things about the reaction to Obama's latest fit of candor is the question of whether Americans are - or should be - bitter? How accurate is Obama's grapes of wrath portrayal of America in general and small town America in particular?

The loss of jobs to foreign competition is not new. Last month, the Reddess and I went to the Bruce Springsteen concert and heard his old song "My Home Town, treating that very subject. I used to sing that song to my son at bedtime when he was about 2He's expecting his second child in July. Maybe I should start singing it to little Aidan and Caleb.

Obama says that we've lost jobs and they have stayed lost as if we have weathered 25 years of high unemployment. The opposite is true. Since about 1983, we have generally had high growth, low unemployment and low inflation. If your town had a textile mill, it's probably gone but the next town over may have a Mitsubishi or Dell plant. Such is life. The alternative is stagnation.

We can make the argument about inequality and the Democrats want to talk endlessly about a handful of people who are extravagantly compensated. Obama is only going to roll back the tax cuts for the top one percent. Wonderful. There is, relatively speaking, a handful of spare change to be had.

There certainly has been a move away from well compensated lower skill employment. But nostalgia for an era when a person could graduate from high school and get a well paid union job fastening bolts on an assembly line is a longing for something that, to the extent that it ever existed (and it never did for most), has been long gone and won't come back. It was largely an artifact of a post-war era when America's economic competition had been devastated by the war. Globalization and technology seem to have put an irreversible end to that.

By almost all measures of consumption and quality of life, the average person has a lot more than she did thirty years ago. While we currently may be entering into a slow down, it comes after a rather lengthy expansion. While there is a credit crunch and a weak housing market,it is an extremely small percentage of folks who are in default on their mortgages or facing foreclosure.

But even assuming that there is reason for bitterness (you can always imagine a set of circumstances that you might prefer), the real problem with the Obama comment is that it effectively tells people that they don't know what's good for them. Are you concerned about social issues? Well, you shouldn't be. What's the matter with Kansas - and what's the matter with you?

I still think it's a Democrat year, but I'm beginning to imagine what an Obama implosion might look like.

Sunday, April 13, 2008

Shark on dead tree

My latest column was in today's Crossroads section.

What's the matter with Obama?

If Barack Obama fumbles away the Democrat year, it will be hard to say when the fatal mishap occurred. Part of losing a campaign that you ought to have won comes from mistakes and revelations that cohere. It wasn't just the Willie Horton ad or the picture of him looking silly in a tank or his inability to answer a provocative question of what penalty would be appropriate for someone who killed his wife that doomed him. It wasn't the dirty tricks of Lee Atwater - or of anyone else. The problem was that these events were consistent with many others that created a sense of Dukakis as a sheltered and naive theorist who couldn't be trusted with leadership in a dangerous world.

Obama wanted to run as a post-political uniter, as a New Man of American politics. He's quickly becoming an Old Lefty. This is reflected, not so much in his policies,a although it is there (more taxes, more government, economic isolationism and foreign policy capitulation). It's in the little glimpses that we get of him.

That's why the Wright matter will have legs into November and his comments about the "bitter" hoi polloi of rural Pennsylvania is a serious gaffe of the type identified by Michael Kinsley (i.e., when a politician inadvertently says what - at least in my version - he believes to be true.)

Obama's riff on these benighted folks is of a piece with Thomas Frank's undeservedly celebrated "What's the Matter with Kansas." It's grounded in an elitism that says no one could really care about abortion or immigration or marriage or the right to bear arms because, well, none of the smart set does. It can't fathom how these poor fools won't at the offer to have someone else's money in exchange for a vote.

There may well be nothing wrong with Kansas, but that doesn't even occur to Thomas Frank.

Or, it appears, to Obama.

Friday, April 11, 2008

Policing classroom speech

John McAdams posts about an incident in a Marquette classroom in which an instructor is alleged to have criticized a student for being racially insensitive under circumstances where the posited lack of sensitivity is far from clear. Tom Foley wonders why people take John seriously and doesn't like the post, apparently because he reads it as making a claim about racial profiling.

What interests me is how you deal with this type of thing. There are students who think that their academic freedom is supressed by the statement of views that they find offensive. I think it is the instructor's job to disabuse them of that notion. While personal attacks and unadulterated hate ought not to be permitted, too much cocooning does not prepare young people for the world.

On the other hand, there is no point in permitting a discussion to deteriorate into competing claims of offense and students are not always precise in the framing of their arguments.

In the incident in question (and we may not know what really happened), there was apparently a discussion of the way in which overcriminalization can lead to disrespect for the law. If this overcriminalization is felt more heavily in minority communities, then, it would seem to follow, disrespect for the law may be higher in minority communities. This is one of the challenges of broken windows policing. New Milwaukee police chief Ed Flynn, who supports that approach, also argues that it will not work if the cops are seen as an occupying force.

The student in question seemed to be making the point that the officer on the street feels the brunt of this disrespect, citing a case in which some officers were called racists by a group of hispanics who had been pulled over.

If the report is accurate, the instructor and class jumped on him for offering this example, with the instructor ultimately requesting that he apologize.

A better way to handle this may have been to clarify the students comments by restating it in a way that removes any unintended insinuation and asking him to buy into it before inviting response. There is, of course, a danger of censorship in that but, if the facts are as reported to John (the instructor rebuffed his attempt to get her side of the story), then it appears clear that the kid wasn't trying to say that "all hispanics disrepect the police" and it would have been pedagogically sound to help him out.

Wednesday, April 09, 2008

Political gnosticism

Bruce Murphy says that there is a paradox in the pattern for voting in the Supreme Court race. The area with the most severe crime - Milwaukee County - voted for the candidate that was criticized for being more sympathetic to criminal defendants while those area with less crime - e.g., the counties surrounding Milwaukee voted for the candidate who was - although he was also criticized for being lenient toward criminal defendants - was probably perceived to be less sympathetic.

I think the campaign was about more than crime. Both sides criticized the other candidate as "soft on crime" and I think that the claims made by the Gableman camp came to stand in for the type of cue that we normally get from partisan affiliation. He was the "conservative" and the public is smart enough to know that, at the level of the supreme court, ideology matters even if they don't always understand how it matters.

In that sense, there really is no paradox in the fact that Butler carried heavily Democratic areas. He was perceived as the "liberal."

But Murphy's claim of a paradox in attitudes about crime is nevertheless valid. I think his explanation that residents of high crime areas are "more likely to know someone who has run into trouble with the police or is unjustly accused, and thus more likely to value those “loopholes” that our constitution established to protect the innocent" requires some evidence.

Another hypothesis is that black voters in particular have come to associate calls for "law and order" with racial insensitivity. Some of the reasons for this are valid (cops can act like a occupying force) and some are not (politicians stoke resentment over these issues).

Murphy says that those in low crime areas are "removed from the harm done by erroneous convictions or police brutality" and that "[i]t’s easy to support getting tough on all those bad people you’ve never met, and harder perhaps to see the value of constitutional protections for an accused criminal."

Again, I'd like to see some evidence that attitudes on these issues do differ among these populations. But even if they do, another hypothesis might be that those in high crime areas come - not to accept it - but to see it as inevitable; as the way that things are. They don't really think it can be different - nothing in their experience suggests this - and so are not attracted to those who claim to be able to make it so. Indeed, the fact that communities can come to believe that public safetly is impossible and that this actually contributes to further crime and disorder is one of the tenets of the "broken windows" approach to law enforcement.

Murphy's "paradox", though, should be attractive to those on the left. We all like to think that the position or canidate that we favor arises from our superior understanding. Gnosticism is not just for religion.

Monday, April 07, 2008

More supreme court post-mortem

A couple of reactions to two posts from liberal bloggers on the recent Supreme Court race. First, Ben Brothers makes some sense. In recent days, both the outgoing incumbent Justice Louis Butler and Chief Justice Shirley Abrahamson were were quoted as saying that there is no such thing as a "conservative" and "liberal" justice. These statements are implausible on their face. They would require one to believe that all of the ideological energy behind both judicial elections and appointments to the bench are expended in vain.

This doesn't mean that liberal and conservative justices merely vote in accordance with their policy wishes. All judges - at least since Bill Douglas left the Supreme Court - view themselves as constrained in some way by the law. One of Justice Butler's occasional indulgences when he believed that the law compelled an undesirable result was to write an essay on why the law was wrong. We can argue about the propriety of that sort of thing but it does tend to illustrate that even someone with a fairly expansive view of his role did not regard it to be unlimited.

Justice Butler was also quoted as saying that "[w]hen they say 'activism,' that's just a pejorative people throw out when they disagree with your decision but they can't or won't explain why ...." Of course, that is a pejorative in of itself. Some of us explained in great detail why we disagree and that the essence of our disagreement often had to do with the need to reconcile judicial review with democratic rule - something that a few scholars argue can't be done. The point that we made was that the court had adopted rules about equal protection, views of its supervisory authority, methods of statutory and constitutional interpretation and approaches to empirical evidence that expanded its discretion in a way that impinged upon the prerogatives of the other branches of government.

When Brothers suggests that these arguments are not well taken because conservative judges are more likely to strike down laws or overrule precedent, he is at least engaging the argument rather than saying that we shouldn't have it. (For a variety of reasons beyond the scope of this post, the stats he cited don't support his side of it; but that' another matter.)One of the burdens of some of the stuff I wrote and said during the campaign was to illustrate that philosophy matters. The belief of some that we ought to pick the judge with the better resume is, in my view, wrong. There may have been a time in our legal culture when that was true but it is not today.

Brothers wants to have that debate about philosophy. Good for him.

Paul Soglin, however, wants to chase the Bildeburgers. John Fund writes a piece extolling, as one might expect a conservative to do, the results of last Tuesday's elections. Soglin wants to follow the money.

It really isn't hard. Given the impact of the court's decisions, people who are affected by them want to be heard. Those who believe that they are better served by a liberal court - the plaintiff's bar, casinos, WEAC, etc. - spent money to influence the election. Those who feel that they are better served by a conservative one - business, the pro-life community, etc - did the same thing. I would argue that the conservative groups were largely defensive. They were more concerned that the court not interfere with the political processes than it reach any particular substantive result. But even if you don't buy into my characterization, it's not hard to figure out who was playing and why.

Maybe it would be better if this did not happen. I would suggest to you that a court adopting a more limited view of its authority is going to attract less attention than one that wants to change the face of the state.

Sunday, April 06, 2008

Sunday songs

It's Sunday and time for some paleo-rock. We've had a bitter election. Our nerves are frayed and, even if our side won, we feel a bit disillusioned.

So here are Jackson Browne and Bruce Springsteen performing my dog's theme song (he's seen it all):

And for a mixture of resignation and hope, I leave you with An American Tune:

Saturday, April 05, 2008

John Fund knows the law

I am quoted in John Fund's column in this morning's Wall Street Journal. I knew there was a reason that I liked that guy.

Friday, April 04, 2008

Shark on TV

I will be on Charlie Syke's Sunday Insight at 10. If for no other reason, tune in to see James T. Harris perform his winners and losers.

Thursday, April 03, 2008

The tragedy that wasn't

Ann Althouse says that the Wisconsin Supreme Court election was not a tragedy. Voters, she says, are reacting to the fact that judges are ideological.

I agree with a qualification. Judges are ideological although not quite in the sense that legislators and the executive are. For example, I am pro-life but the constitution does not require the state to restrict abortion.

This is because everyone recognizes that there are some limitations on judicial discretion and part of the problem with the Wisconsin Supreme Court is that it approached a series of high profile cases in a way that suggested that are not many,

But even after that, there are questions on which reasonable judges may differ and, in these cases, differences of philosophy (which can be related to, although are not identical to, political ideology) may matter.

The ads were mostly (although not all) nonsense that hinted at these differences but the election wasn't simply a product of the ads. It was a product of the court's recent direction and Justice Butler's perceived role in that movement.

Right before the election, the blogger formerly known as Illusory Tenant related the story of his piano student. He had learned about a variety of cases from listenting to Charlie Sykes and, IT conceded, a good portion of what he had learned was fairly accurate. (My sense is that the overwhelming majority of what Charlie said was accurate.) But, or so I gather from the post, IT swung him over to Butler by advancing a set of arguments in favor of Justice Butler's approach to these matters.

The moral of the story (one that Tom/IT did not draw)was that people did get some accurate information and that, unlike his coverted piano student, don't buy into this view of the role of the courts. Rejecting that view is not a product of a lack of understanding. I understand it but largely reject it. We ought not presume that voters are incapable of the discernment that we credit to ourselves.

One of the problems with the Butler campaign was that it never tried to do what IT did with his piano student. Rather, it tried to pretend that he was what he is not. This is very hard to do in politics even in a low interest, low turn out election. I don't think that voters came to believe that Louis Butler is indifferent to victims or had no business representing criminal defendants. They did get the message that he is more liberal on these issues than other members of the court and that is accurate.

In response, Butler said that he has ruled for widows and orphans, an unusually frank appeal to judicial activism. A mistep - polls show that voters don't like judicial activism. The GWC tried to slam the jail house door harder than anyone else, stepping on the Butler's campaign's complaints about such ads and legitimizing them. In the end, it didn't have enough to move the public's (accurate) perception about the differences between the candidates on these issues.

Across the blogosphere, folks on the left are what doing what they have done for my entire adult life when they lose. They convince themselves that they - and the public - got hosed.

Perhaps that is why they continue to lose.

Wednesday, April 02, 2008

Not quite a post mortem

There are some things that are going to require public discussion in the wake of our recent Supreme Court election, but now is not the time to do much more than note them. I know that I get readers across the political spectrum here and, for those who supported Justice Butler, the morning after your candidate is defeated is tough. You lost. You're angry. You're not interested in a discussion of the issues that arise in the wake of an election.

But a few things.

First, it is not uncommon to blame a defeat on the other side's perfidy. We should have won, but they cheated. This reaction is almost always wrong. Not that the voters always get it right, but there is usually some substantive reason why one side or the other wins an election. In this case, I think what happened was a reaction to what has been going on at the court. I think through all the nonsense, something of that got through.

Second, there are people who believe that this should not have happened. For them, judicial independence means decisional independence. Fred Kessler essentially said this last night on WPR in support of his amendment to appoint the Supreme Court. I have mixed feelings on this issue, but, when we appoint judges, there is, at least now, no such thing as decisional or ideological independence. Fred's proposal shifts the politics to another forum. It doesn't eliminate it.

Third, this is not to say that there weren't all sorts of problems in the campaign. The tone was ugly - on both sides. It was often cringe-worthy. But the idea that this is caused by money or third parties or "the right" is silly. It is part of our political culture and, if I can be permitted, bloggers who call the other side "deranged," "one-trick caged orangutangs," "WMC stooges" and "racists" might do well to reflect on that. Eliminating money from the process won't stop venemous political converation, it will just make sure that no one hears it. In judicial elections, that will simply mean that incumbency amounts to an appointment for life.

Fourth, we are now going to see cures that are worse than the disease. To the extent that they are constitutional, the bills pending in the state Senate would do nothing to change anything. They won't accomplish what they want to and, if they did, they would completely undermine the rationale for judicial elections. Appointment would be a more rational choice.

Judicial speech police aren't any better. The WJCIC was poorly conceived and executed. But even if it hadn't been, it would have been the flop that it proved to be. Part of it is that it can't be heard above the noise. Part of it is that it doesn't need to be. People understand that negative ads are exaggerations and they take them with a grain of salt. But the back and forth of these ads often tells them something as well. I'd prefer we all chose to play by a more civil set of rules, but the fact that we don't doesn't necessarily mean that the public can't or isn't discerning about the candidates' mudslinging.

Fifth, I don't know that anybody ran a good campaign here. It's hard to argue with a campaign that did something that no one has done for over 40 years but, in this instance, I think that Gableman gave Butler an opening that he might otherwise not have had. But the Butler campaign didn't believe that its preferred message would work so they didn't take it, choosing instead to fight a battle that they couldn't win. Even if they had chosen otherwise, I think the third parties supporting Butler would have made it difficult. GWC, in particular, adopted a brain dead strategy that probably hurt Butler far more than it helped.

One last note. I didn't endorse anyone (yeah, I contributed you can look it up) and tried to limit myself to issues that I thought were important. I talk about that stuff when there isn't an election and will continue after the election. I have consistently said that Justice Butler is an honest and intelligent jurist.

Because I did not endorse, I did not have much to say about Mike Gableman and I won't now either. I've met the man twice at different functions - a talk at MULS and a political dinner - and had one semi-lengthy discussion with him. He is a decent and intelligent man. He'll do fine.

Tuesday, April 01, 2008

One more thought about judicial activism

From my piece last fall in WI Interest

State v. Jerrell C.J.,involved an appeal from an adjudication of delinquency for armed robbery, party to a crime. The juvenile appellant argued that his confession was involuntary and the court agreed, ordering that it be excluded. But it did much more than that. Although not necessary to decide the case before it, the court decreed that, from now on, all custodial interrogation of juveniles be electronically recorded. Any evidence obtained from unrecorded custodial interrogations will be excluded.

Recording these interrogations may be a good idea. (I happen to believe that it is.) But the court based this new rule, not on the notion that unrecorded interrogations are unlawful or unconstitutional, but by exercising its superintending authority to “tackle” what it deemed to be the “false confession issue.”

The majority maintained that it was not mandating law enforcement practices, but fashioning a rule of evidence. In its view, the police presumably remain “free” to record or not record these interrogations as long as they do not insist upon actually prosecuting juveniles who confess to a crime.

Justifying such regulation because it is implemented through a rule of admissibility (and, therefore, can be called a rule “governing the courts”) establishes a principle with no obvious stopping point. Could the court, for example, exclude the admissibility of all consumer contracts unless they were formed with an array of extrastatutory “notices,” “cooling off periods” and court-mandated disclosures—justified as a “rule of evidence” on the proof of unconscionability or lack thereof? Might a more conservative majority adopt a rule excluding all uncorroborated allegations of racial discrimination in the interest of “tackling the false accusation” issue?

The bottom line is this: There are a variety of issues to be concerned about in today's vote. You can make it about campaign advertising. You can make it about resumes. You can make it about who is touger on crime.

But it is also about this. It's about the role of the judiciary.

Another thought on judicial activism

We are often concerned about the imperial Presidency and the lack of any effective limitation on executive power. Much of the concern about the Bush administration;s claims of executive authority relates not to what it has done, but what a President with the type of power that he claims might do.

We also worry about an activist judiciary and we argue about this or that case. But what we should also be focused on is the authority that a court claims to have. Since Louis Butler joined the Wisconsin Supreme Court, a majority has stakes some extraordinary claim to judicial power.

In Ferdon v. Patient's Compensation Panel, the Court struck down certain limits on damages in medical malpractice cases. Those limits may or may not have been a good idea. That's not the most important thing about the case.

The court acted in reliance on the state constitution's guarantee of equality or,as it has come to be put, equal protection of the laws. The federal constitution has a similar guarantee. The court said that the law discriminates between the more and less severely injured. (There is a huge problem with that way of looking at it; but that's beyond the scope of this post.)

These guarantees are important but they present a problem for judges and lawyers. The state treats people differently all the time. I can practice law while many of my readers can't. But some can practice medicine and I can't. Those who are under 16 can't get a drivers license. Those who earn over a certain amount pay higher tax rates. Kids that can't get good grades and high ACT scores don't get into UW. The list is endless and government could not possibly treat everyone equally.

To address this courts have developed a multi-tiered level of analysis for equal protection. Distinctions based on things like race which you know to be almost always invidious get what is called strict scrutiny. The state can't do it unless the distinction is necessary to achieve a compelling interest. Other distinctions that are similar but not quite as suspect get a heightened, but not so strict, form of scrutiny.

Every thing else gets what is called "rational basis" scrutiny. The state can make a distinction - say cut off a tax break for those earning over $ 100,000 - as long as there the state's has a legitimate objective that has a rational relation to the distinction.

The Ferdon majority said that the distinction created by the malpractice caps are subject only to rational basis scrutiny but announced that it would now apply what it called "rational basis scrutiny with bite."

It then went on, for pages and pages, to discuss disputed studies about the impact of malpractice damage caps and concluded, essentially, that they were not a good idea. It was one of the more brazen usurpation of legislative authority that I have ever seen. As Judge Sykes said in her Hallows lecture, the court’s new “rational basis with teeth” standard does is "transform judicial review into an exercise in political policy judgment, leaving more room for judicial displacement of legislative judgment." I can imagine few statutes upon which reasonable people differ that would not now be vulnerable to equal protection challenge.