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Was It the National Security Bureaucrats Who Forced Obama to Hold on to the Torture Photos?

Allow me to share some analysis about the way things work in Washington. President Obama's flip-flop on his agreement to turn over photographs of detainees being tortured by American soldiers is a message with broad and clear implications. Those who believe that the Obama Administration should expose and prosecute persons who committed war crimes should understand that it is not going to happen the way they would like, or as quickly, because Obama is having internal battles as well. His pullback is not occurring because he fears that Republicans will attack him (he knows they will); rather it is occurring because he needs the national security community behind him, and they fear they will be further embarrassed and humiliated if more information is revealed.

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Are We Civilized Enough to Hold Our Leaders Accountable for War Crimes? The World Is Watching

Remarkably, the confirmation of President Obama's Attorney General nominee, Eric Holder, is being held up by Texas Republican Senator John Cornyn, who apparently is unhappy that Holder might actually investigate and prosecute Bush Administration officials who engaged in torture. Aside from this repugnant new Republican embrace of torture (which might be a winning issue for the lunatic fringe of the party and a nice way to further marginalize the GOP), any effort to protect Bush officials from legal responsibility for war crimes, in the long run, will not work.

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It Is Now Absolutely Crystal Clear That Republican Rule Is Dangerous and Authoritarian

Republicans rule, rather than govern, when they are in power by imposing their authoritarian conservative philosophy on everyone, as their answer for everything. This works for them because their interest is in power, and in what it can do for those who think as they do. Ruling, of course, must be distinguished from governing, which is a more nuanced process that entails give-and-take and the kind of compromises that are often necessary to find a consensus and solutions that will best serve the interests of all Americans.

Republicans' authoritarian rule can also be characterized by its striking incivility and intolerance toward those who do not view the world as Republicans do. Their insufferable attitude is not dangerous in itself, but it is employed to accomplish what they want, which it to take care of themselves and those who work to keep them in power.

Authoritarian conservatives are primarily anti-government, except where they believe the government can be useful to impose moral or social order (for example, with respect to matters like abortion, prayer in schools, or prohibiting sexually-explicit information from public view). Similarly, Republicans' limited-government attitude does not apply regarding national security, where they feel there can never be too much government activity - nor are the rights and liberties of individuals respected when national security is involved. Authoritarian Republicans do oppose the government interfering with markets and the economy, however -- and generally oppose the government's doing anything to help anyone they feel should be able to help themselves.

In my book Broken Government: How Republican Rule Destroyed the Legislative, Executive and Judicial Branches, I set forth the facts regarding the consequences of the Republicans' controlling government for too many years. No Republican -- nor anyone else, for that matter -- has refuted these facts, and for good reason: They are irrefutable.

The McCain/Palin Ticket Perfectly Fits the Authoritarian Conservative Mold

During the 2008 presidential campaign, Senator John McCain and Governor Sarah Palin, the Republican candidates, have shown themselves to be unapologetic and archetypical authoritarian conservatives. Indeed, their campaign has warmed the hearts of fellow authoritarians, who applaud them for their negativity, nastiness, and dishonest ploys and only criticize them for not offering more of the same.

The McCain/Palin campaign has assumed a typical authoritarian posture: The candidates provide no true, specific proposals to address America's needs. Rather, they simply ask voters to "trust us" and suggest that their opponents - Senators Barack Obama and Joe Biden - are not "real Americans" like McCain, Palin, and the voters they are seeking to court. Accordingly, McCain and Plain have called Obama "a socialist," "a redistributionist," "a Marxist," and "a communist" - without a shred of evidence to support their name-calling, for these terms are pejorative, rather than in any manner descriptive. This is the way authoritarian leaders operate.

In my book Conservatives Without Conscience, I set forth the traits of authoritarian leaders and followers, which have been distilled from a half-century of empirical research, during which thousands of people have voluntarily been interviewed by social scientists. The touch points in these somewhat-overlapping lists of character traits provide a clear picture of the characters of both John McCain and Sarah Palin.

McCain, especially, fits perfectly as an authoritarian leader. Such leaders possess most, if not all, of these traits:

* dominating
* opposes equality
* desirous of personal power
* amoral
* intimidating and bullying
* faintly hedonistic
* vengeful
* pitiless
* exploitive
* manipulative
* dishonest
* cheats to win
* highly prejudiced (racist, sexist, homophobic)
* mean-spirited
* militant
* nationalistic
* tells others what they want to hear
* takes advantage of "suckers"
* specializes in creating false images to sell self
* may or may not be religious
* usually politically and economically conservative/Republican

Incidentally, George W. Bush and Dick Cheney also can be described by these well-defined and typical traits -- which is why a McCain presidency is so likely to be nearly identical to a Bush presidency.

Clearly, Sarah Palin also has some qualities typical of authoritarian leaders, not to mention almost all of the traits found among authoritarian followers. Specifically, such followers can be described as follows:

* submissive to authority
* aggressive on behalf of authority
* highly conventional in their behavior
* highly religious
* possessing moderate to little education
* trusting of untrustworthy authorities
* prejudiced (particularly against homosexuals and followers of religions other than their own)
* mean-spirited
* narrow-minded
* intolerant
* bullying
* zealous
* dogmatic
* uncritical toward chosen authority
* hypocritical
* inconsistent and contradictory
* prone to panic easily
* highly self-righteous
* moralistic
* strict disciplinarians
* severely punitive
* demanding loyalty and returning it
* possessing little self-awareness
* usually politically and economically conservative/Republican

The leading authority on right-wing authoritarianism, a man who devoted his career to developing hard empirical data about these people and their beliefs, is Robert Altemeyer. Altemeyer, a social scientist based in Canada, flushed out these typical character traits in decades of testing.

Altemeyer believes about 25 percent of the adult population in the United States is solidly authoritarian (with that group mostly composed of followers, and a small percentage of potential leaders). It is in these ranks of some 70 million that we find the core of the McCain/Palin supporters. They are people who are, in Altemeyer's words, are "so self-righteous, so ill-informed, and so dogmatic that nothing you can say or do will change their minds."

The Problem with Electing Authoritarian Conservatives

What is wrong with being an authoritarian conservative? Well, if you want to take the country where they do, nothing. "They would march America into a dictatorship and probably feel that things had improved as a result," Altemeyer told me. "The problem is that these authoritarian followers are much more active than the rest of the country. They have the mentality of 'old-time religion' on a crusade, and they generously give money, time and effort to the cause. They proselytize; they lick stamps; they put pressure on loved ones; and they revel in being loyal to a cohesive group of like thinkers. And they are so submissive to their leaders that they will believe and do virtually anything they are told. They are not going to let up and they are not going to go away."

I would nominate McCain's "Joe the Plumber" as a new poster-boy of the authoritarian followers. He is a believer, and he has signed on. On November 4, 2008, we will learn how many more Americans will join the ranks of the authoritarians.

Frankly, the fact that the pre-election polls are close - after eight years of authoritarian leadership from Bush and Cheney, and given its disastrous results -- shows that many Americans either do not realize where a McCain/Palin presidency might take us, or they are happy to go there. Frankly, it scares the hell out of me, for there is only one way to deal with these conservative zealots: Keep them out of power.

This election should be a slam dunk for Barack Obama, who has run a masterful campaign. It was no small undertaking winning the nomination from Hillary Clinton, and in doing so, he has shown without any doubt (in my mind anyway) that he is not only qualified to be president, but that he might be a once-in-a-lifetime leader who can forever change the nation and the world for the better.

If Obama is rejected on November 4th for another authoritarian conservative like McCain, I must ask if Americans are sufficiently intelligent to competently govern themselves. I can understand authoritarian conservatives voting for McCain, for they know no better. It is well-understood that most everyone votes with his or her heart, not his or her head. Polls show that 81 percent of Americans "feel" (in their hearts and their heads) that our country is going the wrong way. How could anyone with such thoughts and feelings vote for more authoritarian conservatism, which has done so much to take the nation in the wrong direction?

We will all find out on (or about) November 5th.

Bush May Be Forced to Explain Destroyed CIA Torture Tapes


By my count, there appear to be no less than ten preliminary investigations underway, following the revelation that the CIA destroyed at least two sets of videotapes (containing hundreds of hours of footage) of "advanced interrogation" techniques being employed in terrorism investigations. In fact, every branch of government is now involved.

Within the Executive Branch, according to news reports, the CIA's General Counsel and Inspector General are investigating. The Department of Justice is investigating. On Capitol Hill, both the Senate and House Intelligence Committees are investigating. In addition, the House Committee on Oversight and Government Reform is inquiring as to whether the Federal Records Act has been violated. And Senator Joseph Biden, chairman of the Senate Foreign Affairs Committee, has made preliminary inquiries as well.

The Bush Administration has shown that it is not very good at investigating itself, so no one should hold their breath for the outcome of either the CIA or Justice Department investigation. And Attorney General Mukasey has dismissed an independent special counsel inquiry as very premature. The Democratic-controlled Congress could get to the bottom of all this, but one should bear in mind that our elected representatives have yet to get to the bottom of the political firing of U.S. Attorneys (although, to be fair, they did get former Attorney General Gonzales to resign). Today, Congress suffers from a degenerative spinal malady, and while they can bark, they appear unable to bite.

There are three court orders that may have been violated, but one in particular strikes me as a very serious problem for the CIA. Accordingly, we may well be in the unique situation in which a pending civil lawsuit might flush out some answers, and the federal judiciary might thus embarrass the other branches into actually taking meaningful action. I say "might" because the Bush Administration thinks nothing of stiffing federal court judges who seek information, and they probably figure they can tap-dance for the federal judiciary - along with all the other inquiries -- until they are out of Washington on January 20, 2009.

Nevertheless, the situation in the United States District Court for the Southern District of New York, as a result of Freedom of Information Act requests by the American Civil Liberties Union, could well force the Bush Administration's hand. An order holding the CIA in contempt of court might get the Administration's attention.

The ACLU's Lawsuit, and the Order that the CIA Produce Documents

When word of mistreatment of detainees surfaced, the ACLU filed a Freedom of Information Act request targeting the CIA and others on October 7, 2003 and May 25, 2004, seeking records concerning the treatment of all detainees apprehended after September 11, 2001 and held in U.S. custody abroad. This, of course, would mean not only in Guantanamo but in the secret prisons in Eastern Europe operated by the CIA.

Not surprisingly, the government stiffed the request, so the ACLU filed a lawsuit in June 2004 in the U.S. District Court for the Southern District of New York. The case ended up in the courtroom of Judge Alvin K. Hellerstein. On September 15, 2004, Judge Hellerstein ordered the CIA and other government departments to "produce or identify" all responsive documents by October 15, 2004.

The CIA claimed that some of the relevant documents were the subject of an inquiry by the CIA's Office of the Inspector General, so its attorneys requested a stay of the judge's order and an extension of time to comply with the request for other documents. In February 2005, Judge Hellerstein denied the CIA's request for a stay, but he did not enforce the stay immediately when the CIA moved for the judge to reconsider his ruling based on additional evidence from the CIA's Director - as the CIA entered a full-court press to prevent the ACLU from getting anything.

This stalling action had been playing out, when news of the destruction of the tapes became public. Now, in the action before Judge Hellerstein, he ACLU has moved to hold the CIA in contempt of court, based on the Judge's September 15, 2004 ruling. It is difficult to see why the CIA is, in fact, not in contempt, given the nature of the FOIA request and the judge's order.

Motion to Hold the CIA In Contempt

On December 6, The New York Times reported that the CIA had destroyed two videotapes of CIA detainees who were being subjected to "aggressive interrogation techniques" - more commonly called torture. The Washington Post soon reported that the destruction of the tapes had occurred in November 2005. CIA Director Michael Hayden publicly acknowledged that destruction, and soon confirmed this statement under oath in testimony to the House and Senate, saying that the destruction had occurred before he became Director.

Passing over who did what and why to focus on the situation in Judge Hellerstein's courtroom, on December 12, of this year the ACLU filed a motion to hold the CIA in contempt of court. The ACLU makes a powerful case that the CIA violated Judge Hellerstein's order of September 15, 2005 - issued before the CIA's apparent destruction of the tapes.

The Court's Order required the CIA to "produce or identify all responsive documents." Those not produced had to be identified. Classified documents were to be "identified in camera [that is, only to the court] on a log produced to the court." Recall, too, that the FOIA request sought information on the handling of all but a few detainees, who were within the United States.

It is well- and long-established law that a court order of this nature requires that the party preserve all information possessed that is responsive to the request. Thus, the CIA was obligated to preserve the tapes even if they were hell-bent on fighting in court to deny them to the ACLU. And as this litigation proceeded, Judge Hellerstein's later orders only served to reinforce that obligation, as a string of precedents makes clear.

What Is Next?


In addition to holding the CIA in contempt for destroying tapes that were subject to an FOIA request that surely reached these videos, the ACLU has also requested that the CIA provide some public disclosure of the facts surrounding the destruction of this material. In addition, the ACLU has requested permission to take depositions of those involved, under oath, and has requested that the court issue a further order barring the CIA from destroying, removing, or tampering with other records that are the subject of the ACLU's FOIA request. Finally, the ACLU is seeking costs for its expenses and such other relief as the Court may deem appropriate.

How this is resolved depends on one factor: Judge Hellerstein. Doubtless, the CIA will respond with papers proclaiming its innocence, and no doubt denying that it was aware of the destruction. However, this is where the Judge himself - if he does not give the ACLU discovery powers - may demand that the CIA tell him what they have been up to, given his clear prior orders.

As I have written before, judges appointed by Republican presidents tend to throw cases that might embarrass Republican presidents out of their court, as quickly as they can figure out how to do so. Federal judges appointed by Democratic presidents, fortunately, do not tend to cower when either Republican or Democratic presidents are involved. A judge ends up with a case like this through a random selection procedure; in this case, the CIA happened to draw a Judge it cannot intimidate, which makes it interesting.

More on Judge Alvin K. Hellerstein, Who Issued the Videotapes Order

Judge Hellerstein was appointed to the federal bench by President Bill Clinton in 1998. An editor of the Columbia Law Review during his law school years, he started his legal career in the Judge Advocate General (JAG) Corps of the Army in 1959-1960. An experienced litigator with a prestigious New York City law firm, he is a highly-respected judge. He works hard, is fair, and is savvy.

He is also a nightmare for the CIA in a case like this, because on June 3, 2005 he ordered the release of four videos from Abu Ghraib, along with dozens of photographs - not withstanding an effort of the government to suppress this material from ever becoming public.

Judge Hellerstein appears to have no tolerance for torture. Unlike his former colleague and now-Attorney General Michael Mukasey, who still is not clear that waterboarding is torture, one does not have the sense that Judge Hellerstein suffers from such confusion. While Judge Hellerstein is going to appropriately protect the sources and methods of the CIA, if any judge is going to get to the bottom of this destruction of these records quickly, this is the judge.

Torture by a Different Name

Last week, George W. Bush gave a speech admitting, for the first time, the CIA's secret detention program. A fuller description of the kind of torture comitted in this detention program is contained in John le Carre's new novel. Called The Mission Song, the novel includes an extended description of torture that takes up several pages of text.

President Bush spared the nation such excruciating details. He spoke vaguely and euphemistically of an "alternative set of [interrogation] procedures" - "tough" and "necessary" tactics that made uncooperative detainees talk.

Although he was conspicuously reticent about the methods used, he spoke at length about the results. In defending the CIA's approach to interrogation, he gave a detailed, though suspect, listing of detainees captured, testimonies obtained, and terror plots foiled.

Anyone familiar with the methods that the CIA has been employing, knows that Bush defended torture. Numerous intelligence officials have leaked information about abusive tactics to the media, and former CIA detainees like German citizen Khalid el-Masri have spoken out about them.

It was an ugly speech, and one made at a profoundly opportunistic moment. Most cynically of all, perhaps, was that the President justified his administration's use of "alternative" methods as part of a "struggle for freedom and liberty." We're "fighting for the cause of humanity," he reminded his audience at the speech's end, seemingly oblivious to the contradiction between means and ends.

Torturous Methods

President Bush was able to deny that the U.S. uses torture because his working definition of the term is so indefensibly narrow. Although the Administration did finally repudiate its 2002 claim that only interrogation methods that caused pain equivalent to that associated with organ failure constitute torture, it still defends methods that cause severe pain.

Last year, for example, former CIA director Porter Goss endorsed water-boarding, a form of mock execution in which the victim feels he is drowning. Goss called it a "professional interrogation technique," implicitly lending support to leaked allegations that the CIA has subjected a number of detainees to the practice.

Bush did not mention water-boarding in his speech, nor did he mention any other specific abusive practice. He explained that if he were to do so, it would help the terrorists learn how to resist questioning. But this explanation is nonsense: The tactics are known and the terrorists already expect them.

What probably kept him quiet about the specifics was either the political risk of going too far, or - one hopes -- a modicum of propriety. It is one thing to consider abuse in an abstract and euphemistic way, but another thing to defend its specific manifestations -- the brutality, the pain, and the damage to the human spirit. Few Americans would feel proud if they had to witness the interrogations that took place at secret CIA prisons; even many veteran CIA agents were appalled.

But by leaving the details unsaid, Bush omitted a crucial part of the story. At least when law professor Alan Dershowitz defended torture, he had the honesty to describe exactly what he was proposing (a sterilized needle under the fingernails was his favored technique).

President Bush wants it both ways: to justify torture, and to pretend that he's not.

The President's Draft Legislation

Besides defending past CIA practices, President Bush's speech had very specific ends. He closed his address by pressing for legislation that would reinstate the military commissions struck down by the Supreme Court, and decriminalize forms of abusive treatment of detainees.

The details of the draft legislation he is proposing may seem tedious, but the end result is of enormous concern. Not satisfied with upending the rules by itself, the Administration now (spurred by Supreme Court losses) wants Congress to help it.

But to call the tribunals that Bush is advocating "military commissions" is nearly as euphemistic as calling torture "alternative procedures." Military lawyers have disowned them, and penal experts all over the world have expressed dismay.

Whatever the president might argue, torture and kangaroo courts are not going to solve the problem of terrorism.

Legalizing Warentless Wiretapping

New legislation that would rewrite the rules governing foreign surveillance wiretaps is making its way through the Senate Judiciary Committee. The legislation's content is predictable: The GOP-controlled Congress is giving the President essentially what he wants, by approving his NSA wiretapping program.

What's surprising, however, is that it appears Committee Chairman Arlen Specter - previously a critic of warrantless wiretapping - is fully on board with the legislation. Based on his public statements, the key to Specter's support is his belief that the legislation sets up a meaningful judicial review of the whole wiretapping program, as well as of the President's authority in this area.

But the proposed legislation seems to do the opposite of what Specter says he intends. Far from ensuring meaningful judicial review of the President's power to engage in warrantless wiretapping, it seems the proposed legislation all but ensures judicial approval of the NSA wiretapping program -- even if the President continues to ignore the FISA court process that he now claims he is willing to honor.

Of course, the proposed legislation raises a host of profound questions. But for present purposes I will limit my consideration to the way it subtly (or perhaps not so subtly) changes the basic constitutional questions that will face a court when the program, under the new statute, is ultimately reviewed.

The Controversial Program, and Specter's Prior Position

The Bush Administration's program of secret warrantless wiretaps has been controversial ever since it was first revealed. Critics charge that the Administration violated the Foreign Intelligence Surveillance Act (FISA) by bypassing the secret FISA Court -- which Congress established more than 30 years ago as the exclusive vehicle for authorizing foreign surveillance wiretaps.

In defense, the Bush Administration has claimed that the President's inherent constitutional power to fight the war on terror justified the bypass of Congress' legislation, and thus of the FISA Court.

Specter put himself on record long ago as a skeptic when it comes to such claims. Indeed, as recently as last week, Specter continued to hound the Administration over its handling of the warrantless wiretap issue. Though sharp questioning, Specter got Attorney General Alberto Gonzales to admit that President Bush had personally intervened to scuttle an internal Department of Justice review of the controversial program.

The legislation that's pending in the Judiciary Committee - touted as a compromise - is meant to resolve the issue, and to quiet those who would make an issue out of Bush's aggrandized view of his own power. The proposed law has been touted as a compromise between the Administration and its critics - one that purportedly has Bush acquiescing in the need to have the FISA Court approve foreign intelligence wiretaps.

In fact, this legislation is no compromise. It aims to render the Executive's compliance with FISA voluntary - and that's Attorney General Gonzales's interpretation, not just my own. It also aims to ensure that no meaningful judicial evaluation of the Bush program will ever take place.

Under FISA, as noted above, the FISA Court is the one-and-only authority for granting permission for foreign intelligence wiretaps; circumventing the FISA Court is illegal, and indeed, a federal crime.

But under the new legislation, this would no longer be the case. Instead, the Executive branch could authorize its very own wiretapping, of its own accord.

To this effect, the proposed legislation adds an explicit disclaimer that the legislation "shall not be construed to limit the constitutional authority of the president to collect" foreign intelligence. And it expressly permits foreign intelligence wiretapping not only as authorized by FISA, but also "under the Constitution" - a clear reference to the President's purported independent power to surveil, which the Administration claims stems straight from our founding document.

This language does something anyone who's been reading the news can see: It incorporates and restates the President's argument regarding warrantless wiretapping - that he has the right to do it, and that this right comes from the Constitution -- instead of in any way backing off from it.

Is it really in any sense a "compromise" if the President can bypass the FISA Court any time he feels like it? Separately, Bush has pledged to seek the FISA Court's permission for future wiretaps. But that pledge is not part of the law, and thus it's a pledge that can be broken or reversed without public notice. What if the President changes his mind - and does so secretly? Surely the Administration may be tempted to route its slamdunks to the FISA Court, and keep its dicey surveillance, in close cases, for in-house authorization, purportedly under the Constitution.

In addition, this language also does something that only those who follow constitutional law may fully appreciate: It tries to control the reviewing court's view of the issue (as well as making sure that this review is not that of the Supreme Court, which recently has been clear about the limits to executive power, but of the FISA court instead).

Here's how the legislation tries to stack the deck in favor of the President's program, ensuring it gets upheld when it gets reviewed in court:

In both Hamdi v. Rumsfeld and this year's Hamdan v. Rumsfeld, the Supreme Court has rebuffed the Bush Administration's claims to broad inherent Executive Power to decide how to treat detainees from the war on terror. And - crucially for our purposes -- in both cases, the Court has reaffirmed the time-honored thinking governing claims of Executive authority in the field of foreign affairs: the analysis that Justice Robert Jackson laid out more than fifty years ago in the "Steel Seizure case," Youngstown Sheet & Tube v. Sawyer.

In Youngstown, the Court invalidated President Truman's attempt to nationalize the steel industry to avoid a potentially crippling labor strike during the Korean War - on the ground that Truman's plan was contrary to Congress's expressed view of Executive Power to intervene in labor disputes.

Jackson concurred in the decision - but the Supreme Court has since enshrined his concurrence into law, most recently in Hamdi and Hamdan. (Some boosters of the Administration thought that in these cases, the Court might back off from, or reframe, the Youngstown test. But they were dead wrong; instead, the Court embraced it - and embraced it generally, not only in the context of detainees.)

Under the Youngstown analysis, the President's powers over foreign affairs fall into three categories, depending on the actions of Congress:

First, when the President acts "pursuant to an express or implied authorization of Congress," his power is "at its maximum."

Second, when the President acts "in the absence of either a congressional grant or denial of authority," the Executive acts in a "zone of twilight" in which Congressional silence may, in effect, "enable, if not invite" independent presidential action.

And third, when the President "takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb."

Under the current state of the law, it is readily apparent that Bush's warrantless wiretapping program fits into this third and most problematic category - where the President's power is at its "lowest ebb." After all, in FISA, Congress gave the FISA Court the exclusive power to authorize foreign intelligence wiretaps and it made it a federal crime to circumvent the court's exclusive authority.

The proposed legislation, however, brazenly attempts to catapult warrantless wiretapping out of the third category, and into the first (or, at worst, the second) - with a little sleight-of-hand. After all, the new law expressly authorizes the President to act outside the FISA framework to the extent he can do so "under the Constitution."

The idea, then, is that if Congress says in the legislation that the President can violate FISA, then a Congressionally-forbidden action is neatly flipped -- converted into an expressly-Congressionally-permitted action under Youngstown.

There is an exquisite circularity to all this. Under Youngstown, the President's authority depends on Congress's expression of its will: Has it spoken to permit him to act, kept silent, or spoken to forbid him to act? Under the new legislation, Congress expresses its will by saying it is not limiting the president's constitutional authority - an authority whose force is, under Youngstown, itself defined by Congress's expression of its will!

Will the sleight-of-hand work with the FISA Court (assuming the legislation's bid to designate the FISA court as the exclusive court here indeed works)? Perhaps, and perhaps not.

On one hand, Congress will surely have spoken to this issue, if this bill has passed - and Youngstown says federal courts must listen when Congress speaks, giving Congressionally-blessed Presidential action only weak scrutiny.

On the other hand, though, on matters of constitutional law, the Supreme Court's opinion, as expressed in its precedent, trumps that of Congress - and thus the FISA Court may give little weight to a Congressional attempt to enshrine in a statute what is, in light of Supreme Court precedents like Hamdi and Hamdan, as well as Youngstown itself, a misreading of the Constitution.

Put another way, even if Congress says in a statute that surveillance comes within the President's constitutional powers, that doesn't necessarily make it so.

That brings us, finally, back to Specter.

According to Specter, the beauty of the new legislation is that the Administration, in a supposedly monumental concession, has agreed to let a federal court "consider the [secret wiretapping] program as a whole and make a decision on" its legality.

But what good does federal court consideration do, if the legislation itself has rigged the Youngstown analysis decisively in the President's favor?

Specter, by all accounts, is a very smart man. Is he betting that the reviewing court will simply put Congress' constitutional judgment aside, and look to precedents like Hamdi and Hamdan instead? If so, he may be untroubled by the carve-out for constitutionally-grounded secret surveillance powers, simply because he's confident the Court will hold the President has none.

Or does Specter read the bill as what it purports to be - a rubber stamp of the President's program, and an attempt to force a federal court to rubber-stamp the rubber stamp? If so, is he simply reversing himself because of some kind of political calculation, or re-calculation?

If Congress wants to endorse what Bush has been doing, it should do so honestly and not pretend that it is setting up a genuine judicial evaluation of the President's power to do what he's been doing. And if Specter has changed his mind, he ought to say so.

The principle at issue here could not be more fundamental: It is that of our Constitution's system of checks and balances. If Congress is going to indeed allow the President unilateral surveillance powers, and if it is even going to try to stop any federal court from standing in the way, then the public should know.




Will Brown Go Down?

Last week, the Supreme Court granted review in two cases involving the use of race in pupil placement in public schools. Though the cases themselves hail from Jefferson County, Ky., and Seattle, Wash., the court's eventual decisions will directly affect hundreds of other school districts across the country that use race in some fashion in determining which students will attend which schools.

The decisions will also go a long way towards revealing whether our newly reconstituted court will be changing from the moderately conservative course it has charted on race issues for the last two decades. And, as I will explain, they will help define the court's take on the highly contested legacy of Brown v. Board of Education.

Brown v. Board of Education is surely the most important legal decision of the 20th century. Its holding alone -- declaring unconstitutional the state-mandated racial segregation of public schools -- was momentous. But its meaning was larger still: Brown stands as a huge milestone in the long American journey to overcome the original sin of slavery and redeem the founders' promise of equality for all.

Although Brown generated enormous controversy and furious backlash in some quarters when it was first decided, the decision (if not every aspect of its analysis) has, by now, become almost universally accepted as constitutional gospel.

But for all its importance, and for all the praise it now receives from public officials and aspirants to judicial office, Brown's historical legacy is still very much in flux. After more than 50 years, we are still rethinking and reshaping what we believe Brown actually means -- both as a legal precedent and, more broadly, as the foundation stone for our constitutional commitments on the issue of race.

The leading commentator on Brown, Richard Kluger, described the opinion's moral and historical significance as "nothing short of a reconsecration of American ideals" -- rightly so. Yet we are still working out which ideals, exactly, the decision actually champions.

I remember my constitutional law professor, Burke Marshall (who had been head of the Civil Rights Division in the Kennedy administration) putting the following questions to me:

Does Brown mean only that states cannot require blacks and whites to go to separate schools?

Or, when Brown says that separate educational facilities are "inherently unequal," is it mandating some form of actual integration by creating a right for black school children to attend a racially mixed school?

Or, did Brown mean something in the middle? Did it mean that, on the one hand, states had to remedy their own affirmative acts of segregation by affirmatively eradicating the effects of past segregation, but, on the other hand, government did not otherwise have to provide for racially balanced school systems?

Or, alternatively, is Brown, when read against the backdrop of America's tragic history of race relations, best viewed as calling for a "color-blind" Constitution -- one in which government may basically never use race as a factor in its decision making, even when the government is seeking to help minorities instead of stigmatizing them?

Every one of these positions can be plausibly defended as a way to interpret Brown. In this sense, Brown is something of a Rorshach test for one's views about the nation's complicated history of racial oppression, and its attempts to rectify the consequences of this past.

Now, the new Roberts court -- as deeply divided about this issue as about any other, and including two new justices -- is about to take this test again.

The facts of the cases before the court

The first case, from Kentucky, involves what is known as a "managed choice" plan -- one in which the school district actively seeks to maintain racial balance in its schools. Jefferson County, Ky., which once ran a segregated system, administers its managed-choice system in a way that takes into account student-parental choice, while also ensuring that each of its schools maintains a minority enrollment of between 15 percent and 50 percent. The district as a whole is made up of roughly one-third minority students.

The second case, which comes from Seattle, Wash., involves an "open choice" plan. Under this plan, parents get to choose which school to send their children to. But when schools are oversubscribed, the school district uses certain "tie-breaking" factors to determine which applicants will actually get to attend the school of their choice.

Under some circumstances, those factors include race. Specifically, if an oversubscribed school is racially imbalanced -- meaning that the school's racial balance departs by more than 15 percent from the minority-majority balance of the district as a whole -- then the race of the applicant may be considered in the district's school placement decision.

Seattle's race tie-breaker can effect both white and minority students. A white student might be moved out of a school that had disproportionately few minorities, despite that student's preference, and by the same token, a minority student might be moved from a disproportionately minority school, despite the student's own choice.

The Jefferson County and Seattle programs survived constitutional challenges in the lower federal courts. Both the U.S. Court of Appeals for the Sixth Circuit (in the Jefferson County case) and the U.S. Court of Appeals for the Ninth Circuit (in the Seattle case) ruled that the respective placement programs did not violate the Equal Protection Clause of the Fourteenth Amendment.

Applying the rigorous test the Supreme Court mandates when governmental programs that use racial classifications are at issue, the two circuits deemed their respective programs "narrowly tailored" to advance "a compelling governmental interest."

In reaching this conclusion, the lower courts were applying the test with special attention to the Supreme Court's 2003 decision in Grutter v. Bollinger. There, a narrow majority of justices approved the University of Michigan Law School's affirmative action in admissions program and held that the government has a compelling interest in the societal and educational benefits that flow from diversity in the classroom.

As the Sixth and Ninth circuits recognized, the Jefferson County and Seattle plans sought to advance much the same kinds of interests that were involved in Grutter. In the view of the school districts, diversity in schools improves the critical thinking of students, improves race relations in the community and creates a healthier body politic by inculcating tolerance and other positive values in a new generation.

Neither the Sixth Circuit nor the Ninth Circuit saw any reason to second-guess the empirical and experiential views of these local educators about the compelling benefits of diversity. And, indeed, the court in Grutter had recognized the appropriateness of deferring to such local judgments.

But -- and it's a major " but" -- Grutter was a 5-4 decision in which Justice Sandra Day O'Connor, now retired, wrote the majority opinion. Her swing seat on race issues is now occupied by Justice Samuel Alito, who in the past has expressed quite conservative views on these matters, including a strong aversion to affirmative action. As a result, when the court hears the Jefferson County and Seattle cases, the Grutter-based principles that guided the lower courts will themselves be up for grabs.

Which brings me back to Brown and its legacy. It may be that Brown was never intended to require states to create and maintain integrated schools. And, to be sure, Brown stands as a cautionary tale about the government using race as a factor in its decision making.

But can it really be that the Constitution should be interpreted as preventing government officials from voluntarily seeking to maintain integrated schools, especially when they do so in a way that gives no racial preference and creates no racial stigma?

This is the point underlying a powerful opinion written by Ninth Circuit Judge Alex Kozinski, concurring in the decision upholding the Seattle plan. As Judge Kozinski correctly observes, the effort to maintain racial balance in public schools does not come with the poison that ordinarily infects the use of race by government. There is nothing about these plans that is designed to oppress racial minorities, as the pre-Brown apartheid system did. Nor do the pupil placement systems give one racial or ethnic group an edge over any other. Nor do the programs promote segregation of the races, which can be an evil in itself.

We should blind ourselves to these nuances, Judge Kozinski wisely counsels. Under the Lexington and Seattle plans, individual white and minority students alike may be disappointed in their ultimate school assignment. But in creating these disappointments, school officials are placing no value on one race or another. They are simply seeking to ensure that their schools bear some racial resemblance to their communities as a whole, while recognizing the important truth that we all benefit from developing an ability to interact with those who come from different cultural and racial backgrounds than our own.

Those who advocate a kind of purely color-blind Constitution that would prohibit the Lexington and Seattle programs often quote Martin Luther King Jr.'s famous dream about a nation in which his children would be "judged by the content of their character and not by the color of their skin." Fair enough.

But that wonderful speech had another image in it. King also dreamed of day when little black boys and girls would join hands with little white boys and girls as brothers and sisters. This was a dream, I would argue, that had its birth in Brown.

It is no secret that our public schools remain, as a practical matter, largely segregated -- notwithstanding Brown and all the progress that has been made with respect to racial equality. It would be a tragedy if the Supreme Court abandoned King's dream by prohibiting elected officials from bringing kids of every color to every schoolyard, so that the hand-holding of the next generation may begin.

Torture in the Court

After threatening a veto, the Bush administration has finally acquiesced to the passage of the McCain Amendment, aimed at protecting detainees in U.S. custody from torture and other abuse. The measure, named for its sponsor, Senator John McCain, is likely to pass Congress this week and be signed into law.

That's the good news.

The bad news is that the McCain Amendment was part of a larger package that takes some dismaying steps backward in the treatment of detainees. Think of the Detainee Treatment Act of 2005 as McCain plus anti-McCain: protection plus protection-stripping. Think of it, in other words, as a self-contradictory political compromise.

Via provisions that bar detainees from bringing suits against torture and abuse, the bill stops them from enforcing the very rights that the McCain amendment is supposed to protect. And it undercuts the McCain protections in another important way, as well: by permitting statements obtained coercively to be relied upon in quasi-judicial proceedings.

The United States has never before legally endorsed the use of testimony obtained via torture or other coercive methods. But in a worrying precedent, the new detainee bill implicitly allows review boards at Guantanamo to rely on such evidence in determining whether prisoners should be classified as "enemy combatants."

The bill's language on this question is somewhat oblique. It does not specifically state that statements obtained coercively are admissible before combatant status review tribunals. Rather, it provides that the review boards, in reaching a decision on the status of a detainee, should consider whether statements supporting that decision were obtained under coercion.

If the statements were obtained coercively, the boards are instructed to assess the "probative value" of those statements.

The bill's reference to the probative value of statements obtained coercively - i.e., through torture or other abuse - points to a well-known problem: When torture is used, the resulting testimony is unreliable: people will often say anything to stop the abuse.

But the bill does not definitively bar statements obtained under torture or other abuse. Instead, it leaves open the possibility that a review tribunal will find that a statement obtained coercively is nonetheless reliable. And by leaving the possibility open, it indicates that such statements may be used.

Waterboarding for Testimony

News headlines over the past eighteen months have made it clear that there is nothing hypothetical about the scenario that the bill envisions. Many detainees in U.S. custody have been physically abused; some have been tortured, and a few have apparently been beaten to death.

And yes, some of the terrorism suspects in U.S. custody have talked. Khalid Sheikh Mohammed, whom the 9/11 Commission called "the principal architect" of the September 11 attacks, was allegedly subject to waterboarding, a form of simulated drowning, while in CIA custody. His statements, said to be voluminous, have probably already been by combatant review boards.

Statements by him and by other detained al Qaeda suspects will also likely provide much of the factual basis for the military commission prosecutions.

So why not allow such statements, if the court or administrative body takes their origins into account? First, as mentioned above, statements obtained under torture are untrustworthy. A court or administrative body might be tempted to rely on them in the absence of opposing evidence, but the risk of a wrongful outcome is high.

Second, their use in court and administrative proceedings is illegal under international law. Article 15 of the Convention Against Torture, a treaty that the United States has ratified, requires that governments ensure "that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings." (The treaty has an exception, however, for the statement's use in the trial of the person accused of committing the torture.)

But most importantly, torture is abhorrent to fundamental values and its use in judicial proceedings shames a democratic state. Just two weeks ago, Britain's highest judicial body forcefully reaffirmed this notion, ruling that evidence obtained under torture may not be relied upon by British courts. Unsurprisingly, several of the law lords hearing the case referred directly to U.S. practices at Guantanamo Bay.

As one law lord explained, the use of torture "corrupts and degrades the state which uses it and the legal system which accepts it."

"Torture is not acceptable," another law lord stated categorically. "This is a bedrock moral principle in this country."

Until recently, one would have thought that it was a bedrock moral principle in ours, as well.



Trusting the Torturers

"Trust but verify," Ronald Reagan once said, describing his approach to Soviet arms reduction efforts. The unspoken corollary to his admonition was that promises alone are worthless.

But even empty promises are tempting when the recipient wants to believe them. And so it is with the U.K. government, which has been making arrangements for the return of security suspects to countries that practice torture. Last week, the British signed an agreement with Jordan that affirmed that deportees to the latter country would not be mistreated. It is believed to be negotiating with nine other countries, including Egypt and Algeria, to obtain similar pledges.

Still reeling from recent terrorist attacks, the U.K. is seeking easy ways to deport foreigners perceived as security threats. But its zeal to be rid of unwanted guests should not blind it to the dangers of its current approach.

Jordan, like Egypt and Algeria, is a country in which prisoner abuse is a serious risk. The "Memorandum of Understanding" that the U.K. and Jordan signed last week will not fix this problem. Nor should such paper assurances convince the British government that any deportees it sends to Jordan will be safe.

"Diplomatic Assurances"

International law establishes an absolute prohibition against torture. The prohibition includes, specifically, an obligation not to send a person to a country where he or she is at risk of ill-treatment.

At present, despite some recent improvements, the risk of torture in Jordan remains real. In its 2004 report, the National Center for Human Rights, an official body, stated that it had logged more than 250 prisoner complaints alleging torture or ill-treatment. Last September the Center announced that a detainee had died in Juwaida Prison as a result of torture.

The "diplomatic assurances" that the U.K. just obtained -- Jordan's formal guarantees that it will treat returned persons in accordance with its human rights obligations -- do not obviate this risk. Diplomatic assurances have already been tried by several other European countries. The record so far gives few reasons to believe that they work.

Reviewing the recent use of diplomatic assurances in Sweden, Austria, Germany and Turkey, among others, Human Rights Watch found them to be ineffective in preventing torture. In an April 2004 report, the organization detailed cases where persons returned based on diplomatic assurances were in fact tortured or ill-treated.

As Human Rights Watch has explained, diplomatic assurances are based on trust, and on trust that itself lacks a firm basis. Governments in states where torture is practiced almost always hide the problem, denying its existence. Where such official assurances are unreliable as a general matter, they will probably also be unreliable in any given case. And it defies common sense to presume that a government that routinely flouts its binding obligations under international law can be trusted to respect those obligations for reasons of diplomatic courtesy.

The Agiza Case

The case of Ahmed Agiza and Mohammad al-Zari is instructive. In December 2001, the two men were expelled from Stockholm to Cairo even though the Swedish authorities had previously determined that the men had a well-founded fear of persecution if returned to Egypt. The government ordered their expulsions based on assurances from the Egyptian authorities that the men would not be subject to the death penalty, torture or ill-treatment, and that they would receive fair trials.

It was subsequently revealed that the men were handed over to U.S. operatives at Bromma Airport in Stockholm; hooded, shackled, and drugged; placed aboard a U.S. government-leased plane; and transported to Cairo. They were held in incommunicado detention for a full five weeks before the Swedish ambassador to Egypt visited them.

The men have credibly alleged that they were tortured and ill-treated in those five weeks and that the abusive treatment continued even after Swedish diplomats began monitoring them. A classified Swedish government report from January 2002 indicated that the men told the Swedish authorities about this abuse, but the Swedish government took no action and in fact omitted these allegations from its public reporting on the cases.

While al-Zari was finally released from prison without charge, Agiza was put on trial in April 2004. (He had been tried in absentia in Egypt in 1999 and sentenced to 25 years of hard labor.) The trial was conducted in a special military court, and the proceedings were flawed by serious violations of the right to a fair trial. In the course of the proceedings, Agiza told the court that he had been tortured in prison and requested an independent medical examination, which the court denied.

The Swedish authorities were denied access to the first two of the four trial hearings, and did not take action on Agiza's claims that he was tortured. But they did finally acknowledge that Agiza's trial was unfair.

In May, the U.N. Committee Against Torture ruled that Sweden had violated the ban on torture by expelling Agiza to Egypt. The committee concluded that the procurement of diplomatic assurances from Egypt, which included no mechanism for enforcement, were insufficient to protect against the manifest risk of torture.

"Prompt and Regular Visits"

The Memorandum of Understanding that the U.K. signed with Jordan purports to have a mechanism for post-return monitoring of detainees. It includes a provision for detainees to have "prompt and regular visits" from a representative of an independent body nominated by the two countries. And it stipulates that such visits "will include the opportunity for private interviews with the returned person."

But this monitoring mechanism provides little additional safeguard against abuse. First, it should be noted, neither Jordan nor the U.K. has any incentive to expose violations. Jordan, of course, could be implicated in torture or ill-treatment, and the U.K. could be implicated in violating the prohibition against returning people to a country in which they face torture.

Second, it is difficult to ensure that detainees will feel confident enough to report any abuse. Terrified prisoners often do not report mistreatment because they may have to face their torturer as soon as the prison visitor leaves.

And perhaps most importantly, the agreement lacks an effective mechanism to secure compliance. It does not establish a penalty for failure to abide by its terms, nor does it even provide that the abused prisoner would be returned to the U.K.

As an agreement based on trust, it reflects wishful thinking where, instead, a healthy skepticism is appropriate.

A Black Robe of Her Own

The news that Sandra Day O'Connor, rather than William Rehnquist, will be the first Supreme Court Justice to retire on President Bush's watch, complicates the calculus for naming a successor. O'Connor's retirement leaves Ruth Bader Ginsburg as the only woman on the high court. And while one female Justice may have seemed sufficient when President Reagan took the historic step of naming O'Connor in 1981, today it is difficult to see why the Court should not, like the country whose laws it interprets, consist of roughly equal numbers of men and women.

Accordingly, President Bush and the Senate will likely feel some pressure to name a woman to fill O'Connor's seat. Is that pressure legitimate?


The considerations are complex, but we can find considerable guidance in some of the legal opinions Justice O'Connor herself has written.

The Long History of Naming Justices for Reasons Besides their Legal Acumen

Although the idea that the Supreme Court should reflect the gender diversity of the nation as a whole may be of recent vintage, the broader notion that criteria other than that of a candidate's legal acumen may be relevant, is as old as the American Republic. Most obviously, party politics has been a constant factor in judicial nominations and confirmation battles.

The Democratic-Republican Party of Thomas Jefferson campaigned constantly against the Federalist judges named by the predecessor administration of John Adams. Indeed, Jefferson's party tried--albeit with limited success--to change the law by naming Justices who would side with Jefferson's own more constrained view of national power.

President Franklin Delano Roosevelt was unable to persuade a Congress controlled by his own party to pack the Court by increasing its membership. Nevertheless, he had little difficulty transforming the law by appointing Justices in the ordinary course of over three terms in office.

And of course, party politics continues to matter a great deal to this day. No one expects President Bush to nominate a Democrat (unless he picks a mere nominal one like Zell Miller). It has long been true that Presidents and Senators alike consider party affiliation and ideology in, respectively, nominating and confirming judges.

There is, to be sure, an important difference between considering, on the one hand, politics and ideology, and on the other hand, factors like gender, in naming judges:

Politicians proudly and legitimately aim to fill the courts with judges who share their approach to interpreting the Constitution and the nation's laws. Although competition between ideological adversaries may lead, on average, to some measure of ideological diversity on the courts, no politician consciously strives for such diversity. We would be surprised indeed to learn of a conservative Senator who said to himself: "There are enough conservatives on the Court; I'll only vote for a liberal" (or vice-versa). In contrast, while ideological sameness is a goal openly sought, these days no one would openly seek a court made up of Justices alike in gender, race, or religion.

Thus, diversity considerations are importantly different from political ones. Yet diversity considerations, too, have a long pedigree. For most of American history, the key axis of diversity was regional. Presidents paid attention to the balance of Northerners and Southerners, Easterners and Westerners. (Former Supreme Court Justice William O. Douglas titled his autobiography "Go East, Young Man," and it made clear that his record as a public servant in Washington, D.C. was shaped by his early years in the state of Washington, on the other side of the continent.)

Ethnic and Racial Identity

In the Twentieth Century, as regional identity became relatively less important, ethnic, racial, and gender identity assumed greater significance in society, and thus in judicial politics.

Thus, for many years there was an unofficial "Jewish seat" on the Court. (Two members of the current Court--Ginsburg and Breyer--are Jewish, but neither appears to have been chosen with religion especially in mind. While Breyer formally occupies what had been regarded as the "Jewish seat," his immediate predecessor in it was Harry Blackmun, a Methodist.)

Although not routinely described in these terms, there now appears to be an African-American seat on the Court. President Lyndon Johnson named Thurgood Marshall as the first African-American Justice in 1967, and when Marshall retired in 1991, the first President Bush named another African-American, Clarence Thomas, to succeed him.

Given Thomas's very brief tenure as a federal appeals judge, many commentators dismissed Bush's description of Thomas as "the best qualified" person for the job as mere hyperbole--a transparent fiction designed to cover up the fact that a President who officially opposed the use of racial preferences for most jobs, was resorting to one in picking a Supreme Court Justice. (The fiction was doubly necessary because Thomas himself was an outspoken critic of race-based affirmative action.)


Nonetheless, there is a sense in which Thomas really was the best qualified person for the job, at least from the perspective of the first President Bush. Understanding the sense in which this was true will shed light on the question of whether the current President Bush can legitimately treat gender as a qualification for the successor to Justice O'Connor.

We might begin by asking why race-based affirmative action is controversial in most contexts. The answer appears straightforward: If someone applies to be a carpenter, accountant, or cook, the applicant's race would appear to have no relevance to the job. We can judge the applicant's qualifications by the quality of his or her work. Giving a preference for members of traditionally disadvantaged minority groups--however justifiable as a response to past discrimination or on other grounds--represents a departure from the generally accepted principle that the job should go to the person best able to perform it.

In some jobs, however, race is not simply an added extraneous factor that distorts the otherwise meritocratic process. Race can be a qualification in itself.

Consider, for example, the job of a police officer whose beat consists of a largely African-American community that is distrustful of the police because of a history of racially charged incidents. Police officers who are able to gain the trust of the community will do a better job of keeping the peace and apprehending lawbreakers than will officers whom the community distrusts. Thus, if--as will frequently be the case--African-American officers more readily gain the trust of the community, then race will be, or at least legitimately may be, a qualification for the job.

How Judging is Like Policing

So, is being a judge more like being a carpenter or like being a police officer? Interestingly, different judges and Justices would likely give different answers.

Justice Thomas calls himself an "originalist." So does Justice Scalia. They believe that statutes and constitutional provisions should be construed by figuring out what the people who enacted them thought they meant. Now, if that's the job of a Justice, it's hard to see how race or sex could be relevant. To be qualified to be a Justice, one needs to be skilled at reading historical materials. Considerations of race or sex would simply be extraneous politics.

But most Justices are not thoroughgoing originalists, and certainly Justice O'Connor was not. Justice O'Connor thought the original understanding of any authoritative text was certainly an important starting point, but she typically considered also how that text might have changed over time through its application to new circumstances. She also acknowledged what originalists often deny: that where the law is unclear, Justices make value judgments.

Justice O'Connor never argued that her job was to substitute her values for those of Congress, the states, or other elected officials. Quite to the contrary, she sometimes chided her fellow Justices for doing just that, as in her dissent earlier this year in Roper v. Simmons. There, she argued that the majority had presented insufficient evidence of a national consensus that Americans deemed the juvenile death penalty "cruel and unusual."

Accordingly, for Justice O'Connor--as for the Justices with whom she disagreed in Roper--the task was not simply to enact her own values into law by judicial fiat. In construing a Constitution that limits majority rule, but does so through often open-ended language, Justice O'Connor tried to "channel" the deepest values of the American people--abstracted from the will of any ephemeral local, state, or national electoral majority.

Seen in this light, racial, ethnic, and gender diversity on the Court begin to look very much like qualifications for the job, rather than extraneous considerations. For it only stands to reason that nine men and women from different ethnic, religious and racial groups, from different parts of the country, and with different experiences, will do a better job deliberating about the values most deeply held by "We the People," than will a monolithic group.

Justice O'Connor's Own Warning: Appearances Matter

Yet if the Court should, on balance, reflect the diversity of the American people, there nonetheless remains something distinctly troubling about the idea that a retiring African-American Justice must be replaced by a new African-American Justice, or that a woman must replace a woman.

In the 2003 case of Grutter v. Bollingera 5-4 decision that could well be overruled following the confirmation of Justice O'Connor's successor--the Court upheld the University of Michigan Law School's program of race-based affirmative action in student admissions. Writing for the majority, Justice O'Connor found that the school had a compelling interest in a diverse student body. At the same time, however, she reaffirmed a longstanding prohibition on strict quotas or set-asides. Race could be a "plus-factor," but not the decisive factor, she emphasized.

As critics of this distinction have long noted, it is highly manipulable. If a sufficiently large plus is granted for race, then it becomes a de facto quota.

Nonetheless, Justice O'Connor adhered to the distinction between quotas and plus factors on the ground that, to quote her 1993 opinion in Shaw v. Reno, "appearances do matter." There, writing for a five-Justice majority consisting of herself and all the Justices who would later dissent from her opinion in the University of Michigan case, Justice O'Connor invalidated a bizarrely-shaped voting district that had been drawn with the clear purpose of maximizing the number of African-American voters contained within it.

Although Shaw and later cases allowed some consideration of race in the drawing of district lines, for Justice O'Connor, the obvious use of race--whether in admissions quotas and set-asides, or in the creation of voting districts--was beyond the pale.

Why? Among other reasons, because when race or sex is the obvious controlling factor in some decision--whether to admit a student to a law school class or to place a voter in one district or another--then the people who are the objects of the decision come to see themselves simply as representatives of their race or sex.

Hence, Justice O'Connor's opinion in the University of Michigan case approvingly described the school's goal of admitting a "critical mass" of minority students, which would ensure that no student would feel as though he or she spoke (or was compelled to speak) for the entire group.

What does all of this mean for the President's decision whether to nominate a woman to succeed Justice O'Connor? The answer is unclear.

On the one hand, it is widely rumored that not a single woman's name appeared on the short list of candidates whom President Bush was considering nominating to the Court in the event that the Chief Justice retired. Under these circumstances, to nominate a woman would reinforce the troubling notion that O'Connor's is a "woman's seat."

On the other hand, failure to name a woman to the seat vacated by Justice O'Connor would mean that Justice Ginsburg would be the only woman on the Court, inevitably leading her seat to be regarded as the "woman's seat." It would then take even longer to achieve rough gender balance on the Court.

Perhaps the best solution is something like the compromise suggested by Justice O'Connor in the University of Michigan case. Noting that race-based affirmative action was never meant to be a permanent feature of university admissions, and that twenty-five years had elapsed since the Court had first approved the practice, Justice O'Connor expressed the expectation that in another twenty-five years, racial preferences would no longer be necessary.

So too, perhaps in the appointments context we should focus on the long term. We should hope and expect that by 2030, if not earlier, the Court's membership will consist of roughly equal numbers of men and women, rendering any talk of a "woman's seat" archaic. That would be a fitting legacy of Justice O'Connor's distinguished career.

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