The apologia by Kenyon College’s dean of admissions for her college’s policy of discriminating against female applicants in favor of promoting campus gender balance has raised hackles from traditional opponents of affirmative action and proponents alike. Closer to my regular reading lists, Laura of 11D also reacts.

My sense is that Ms. Britz’s argument, like most supporting affirmative action of any kind as an end in and of itself (or those justifying it in any terms other than as a narrowly-focused effort to redress past discrimination at institutions that engaged in such discrimination in the past), falls on its face, but that Kenyon—as a private institution—ought to be able to pursue whatever admissions policies it thinks are appropriate, no matter how misguided the college may be. Of course, whether or not taxpayers ought to subsidize those policies directly or indirectly, which they do at Kenyon and most other institutions of higher education in this country, is another question entirely…

Radley Balko, commenting on his field trip to Prentiss County, Mississippi:

There are lots of reasons to be upset by the Cory Maye case that have nothing to do with race. And I’ve tried to avoid injecting race into my own analysis of the case. But it’s impossible to visit the area and come away with any feeling other than that race pervades nearly every facet of life down there.

The failure rate on the bar exam appears to be rising, although the absolute number of individuals passing the bar seems to be nearly constant nationwide over time.

Multiple-choice question: which of the following explanations for this pattern is most plausible?

1. Although more students are graduating from law school today than a decade ago, they are nonetheless dumber, at least as measured by the bar exam.
2. Affirmative action is churning out large numbers of law school graduates who subsequently cannot pass the bar.
3. The body of knowledge necessary to practice law in America has substantially increased in the past decade, thus requiring greater knowledge by new attorneys; thus the bar exam has become harder.
4. The bar exam is designed to limit the supply of lawyers, not to test whether potential lawyers have sufficient knowledge to practice law.

Free hint: the bar exam is set by existing members of the profession who have a state-granted monopoly on the practice of law.

þ: Glenn Reynolds and Amber Taylor’s comments.

Orin Kerr links an Independent on Sunday article that claims the administration is planning to shut down the prison camp at Gitmo. Color me skeptical, to say the least.

Via email from FCS, a story on a professor at Suffolk University who apparently can’t work Fn-F4 (the internal/external display switch) on his laptop properly:

A Suffolk University professor is under investigation by university officials following accusations of alleged pornographic misconduct.

According to Emily Macdonald, a student in the class, [the professor] allegedly watched porn on his computer, which was unknowingly connected to a monitor that was behind him.

The class ended half an hour following the display, and the students never tried to intervene.

All sorts of intriguing questions arise here: was he multitasking at the time, both lecturing and watching Hung Jury 17 simultaneously? How does one “unknowingly” hook up one’s own computer to a monitor? Perhaps most importantly, from a pedagogical standpoint, did the porn in the background hurt or help students’ comprehension of the other material presented in class that day?

Update: The boss has additional thoughts on this matter.

Update (19 July 2007): At the request of the individual involved in this unfortunate incident and after some reflection, I have removed his name from this post; his identity was really not all that important to the point of this post.

Since I am off on an interview today, posting may be restricted to this linkfest:

• Hei Lun Chan of Begging to Differ dissects the NFL labor dispute to the bare essentials; if only he were as hot as Rachel Nichols, I might never need to watch ESPN again.
• Clint Ecker of Ars Technica reviews the Intel Mac mini for those who have not experienced for themselves the bliss that is Core Duo.
• The Solomon Amendment case was another 8–0 slam dunk for those right-wing extremists on the Supreme Court, and probably the right decision on precedent (in my mind, it would be hard to strike down the Solomon Amendment but uphold much of the Civil Rights Act of 1964); overall, I tend to agree with Will Baude’s assessment that policymakers (explicitly excluding, being the attitudinalist I am, the Court) on all sides of the issue are wrong. Baude also ponders the possibility that private universities might choose to divest themselves of their law schools to avoid any adverse effect should they chose to continue to bar military recruiters.

That’s all I’ve got for now.

Stephen Jessee and Alexander Tahk, two Ph.D. candidates at Stanford, have put together a website that attempts to estimate the ideological positions of Samuel Alito and John Roberts from their votes on the Supreme Court this term.

Perhaps the most interesting result thus far is that Roberts’ estimated ideal point (position in the unidimensional ideological space) is virtually indistinguishable from that of his predecessor as Chief Justice, William Rehnquist, although that is of course subject to change as more cases come along. (The Alito estimates seem to solely reflect the uninformative prior that Jessee and Tahk have placed on him thus far.)

Shorter Tom Smith: I don’t know whether or not the president’s domestic spying program is actually, you know, legal or constitutional, but since members of Congress sometimes put electoral considerations ahead of the law, the concerns of the elected representatives of the people of the United States are to be completely dismissed, because a few executive branch political appointees (and I) think that the program initiated by their boss is somehow consistent with the Constitution under some sort of complete hand-waving, “anything goes” Article II doctrine that makes the court’s interpretation of the Commerce Clause in Wickard v. Filburn seem like a restraint on congressional authority.

Shorter Jeff Goldstein and Wall Street Journal editorial board: Separation of powers is for idiots.

One more thing: the first person to reply with “the Constitution is not a suicide pact” needs to come up with an argument, not a slogan.

Update: A perhaps-related post from Venkat at Begging to Differ.

Will Baude asks why President Bush asked for Congress to pass the line-item veto in last night State of the Union address. He advances six semi-plausible explanations for why Bush would have done so.

Let me propose a seventh (and far simpler) explanation: Bush wants Congress to pass a constitutional amendment that provides for the line-item veto. Yes, it is relatively unlikely to happen, but then again I don’t see the Supreme Court flip-flopping on Clinton v. New York (or letting Congress get away with weaseling around it) as any more likely.

Thomas Smith inquires:

Why would FISA provide for warrantless surveillance during wartime for 15 days only after a declaration of war? This is a very strange provision, if you think about it. There is no reason to expect that the first 15 days of a war would be when warrantless surveillance would be most useful. Or is the idea that in the event of a sneak attack, you might need to begin eavesdropping immediately, but 15 days would give you long enough to line up your applications to the FISA court? If so, that is certainly an outstanding example of Congressional stupidity. It almost seems that the 15 day provision is there to show that the President’s Article II power to surveil during wartime has not been entirely eliminated; that is, the 15 day provision has a kind of place holder feeling to it, more certainly than making any kind of practical sense.

It seems to me that the obvious explanation for the 15-day rule is the same as the explanation for the time-limit in the War Powers Act: it gives Congress enough time to decide whether or not to extend the authority beyond the statutory minimum (just as the WPA gives Congress the time to decide whether or not to continue to delegate its power to conduct military operations to the president). Since Congress apparently did not decide to suspend the FISA warrant requirement beyond the 15-day limit (i.e. on or before September 26, 2001), it is reasonable to conclude that Congress wanted the FISA warrant requirements to be followed beyond that date.

As an aside, I’m amused by conservatives running around treating Article II’s penumbras and emanations like a giant Neccessary and Proper Clause. In re Neagle ain’t exactly a presidential blank check, unlike McCulloch, for good reason. By all means, we should have a debate over presidential surveillance powers, but Smith et al. seem to be suggesting the blank check approach—what my fellow political scientist Steven Taylor, no liberal, has been hammering on for weeks as being completely unacceptable and incompatible with our system of checks and balances. If Democrats have been guilty of simplistic arguments—and they have—so too have defenders of the administration’s approach like Smith, whose basic argument boils down to either “trust us” or vague handwaving in the direction of broad discretionary executive powers that are thoroughly inconsistent with judicial conservatives’ approaches to other parts of the constitution.

Update: There’s more FISA stuff from Orin Kerr.

While talk of impeachment over the evolving NSA wiretapping scandal (and satellite scandals, like the “let’s assume all our Muslim neighbors are harboring nukes” scandal) may be a bit premature, a bit more “bitch-slapping” seems perfectly in order; Steven Taylor explains.

Incidentally, if the Democrats in 2001 and 2002 had paid half the attention to protecting our civil liberties that they did trying to protect union workers in the Homeland Security reorganization, they’d probably have a lot more credibility as presidential critics today.

Colby Cosh, on the uneasy relationship between social conservatives and the exercise of judicial review:

Can’t social conservatives tell the difference between judicial activism that expands the power of the state—like adding newly-invented “protected grounds” to discrimination law—and judicial activism that inhibits it?

Nah. What they care about is that the power of the state be used for their own preferred ends.

Like all good social science, it generalizes to both sides of the 49th parallel.

The UK has decided to keep records of virtually all vehicle movements in the country and retain the data for at least two years.

Steven Taylor, who pointed out the story, notes a transatlantic difference in attitudes:

Certainly, this underscores a key difference between European and American sensibilities: we are currently having a major debate over whether the NSA should ever listen in on the domestic end of an international phone call with a suspected al Qaeda operative, and the British are to keep records of where everyone is driving.

Of course, the NSA surveillance (which, admittedly, I have serious qualms about—indeed, even the FISA warrant process seems suspect, even though there is serious selection bias that plagues simplistic analysis of its statistics) is almost certainly considered by Europeans, including Britons, as yet more evidence of Bushitlerism.

Julian Sanchez gets to the heart of my thoughts about the New York Times story on the NSA’s spying on Americans/terrorists (depending on who’s doing the framing):

[W]hy on earth did the Times, apparently at the Bush administration’s request, sit on this story for a full year? The supposed reason for the request is that the revelation would threaten national security by tipping off terrorists. But… about what? About the fact that the government is seeking to wiretap suspected terrorist[s]? To whom does this come as news? We all know law enforcement can get secret wiretap warrants through a FISA court; the only reason to expect terrorists to change their behavior now that they know wiretaps are happening without warrants is if we think they’ve somehow broached the secrecy of the FISA courts. That seems unlikely—at any rate, unlikely to have been known about and still persisted for several years. So what kind of plausible difference to our national security could it make if terror suspects who know they might be targeted for eavesdropping with a warrant learn they might be targeted without one?

Good question. Meanwhile, Jeff Goldstein and James Joyner call for frogmarching of the leak culprits, since just what we need is another fake beltway scandal as the counterpoint to the Plame nonsense.

Orin Kerr:

[F]our years after the Patriot Act was passed, a meeting of everyone who thinks of the Patriot Act as actual legislation could be held in my kitchen.

Murray Edelman couldn’t have said it better himself.

Quaker at Crescat Sententia writes in commentary on this WaPo piece:

I honestly can’t think of a reason why the unanimous (!) staff recommendation would get overruled besides ideological opposition to the Voting Rights Act or a desire to see more Republicans in Congress. If anybody out there can think of better justifications, drop me a line; I’m all ears.

Perhaps the staff of the Civil Rights Division has been enforcing an interpretation of the Voting Rights Act that goes beyond the statutory requirements of Congress, and therefore has been making recommendations that do not enforce the VRA but implement something more stringent than the VRA. Thus, the political appointees at the agency felt an obligation to limit the review to the bounds of the statute, rather than the imagined law that the Civil Rights Division staff would like to see implemented. For example, the memo complains about partisan gerrymandering, yet partisan gerrymanders are not illegal under either the VRA or Supreme Court precedent (even if they probably ought to be).

After all, it is not beyond the realm of reason that young, bright attorneys might choose to join the Justice Department’s Civil Rights Division, and forego greater earning potential and prestige in the private sector, for ideological reasons.

Charles Franklin applies Zaller to the public’s reaction to the Miers SCOTUS withdrawal. Meanwhile, the post-Miers speculation centers on Samuel Alito and Michael Luttig, two potential nominees who are, in the words of Steven Taylor, “radically more qualified than Miers.” Then again, pretty much everyone who’s ever cracked the spine of a con law textbook probably falls in that category…

Bizarre parallelism thought of the day: ConfirmThem.com now has about as accurate a domain name as MoveOn.org (which hasn’t quite moved on from September 10, 2001 yet).

Thus ends the extent to which I care about the Miers nomination this week.

I think I speak for all Americans when I say, “Who?” In other words, I’m not “less than thrilled”, I’m just very, very confused.

Then again, if the point of the exercise was to downgrade the Supreme Court (or at least its image) from an assembly of legal minds reviewing the most important legal cases of the day to a nine-member superlegislature, appointed for life, that arbitrarily and capriciously overrules the decisions of elected officials on a regular basis, I can sort of see the point.

Via Hei Lun Chan: Chief Justice of the United States William Rehnquist is dead at the age of 80.

The interesting open question is whether Democrats on Capitol Hill will attempt to play games with the court’s composition (currently, there are four “liberals” and three “conservatives” on the Court) by delaying the Roberts vote into the Court’s October Term; presumably, the president could counter with recess appointments (or Republican senators could invoke the “nuclear option”). One hopes that both sides will resist the urge to further escalate the conflict over the court’s composition.

Timothy Sandefur tentatively says no. I tend to agree; however, Roslin’s decision to send Lt. Thrace (Starbuck) back to Caprica on a secret mission at the very least violated the military chain of command.

The proper response, however, is not a coup. In the grand scheme of things, Roslin’s action did not lead to the sort of imminent danger that would justify bypassing civilian procedures; presumably, the Quorum of Twelve can impeach and/or remove the president, or there is a civil judiciary that can exercise that authority.

The larger political mess is that Adama’s incapacitation has left Colonel Tigh holding the bag for this decision, and he neither has the wherewithal or the gravitas to resolve things the way Adama might have been able to do.

Jon Rowe on the right to privacy:

I’m more concerned with the Griswold line of privacy/liberty cases in general than Roe in particular. Abortion deals with the moral question of whether and when a fetus is a human being with civil rights, and obviously government has a legitimate interest in protecting the life of innocent
human beings.

Lawrence and Griswold, on the other hand, deal with what consenting adults do behind closed doors. And that certainly is none of government’s business and proscribing such is not a legitimate function of government.

I give an exercise to my Business Law students every semester on Roeand Casey and I can attest that many ordinary, average folks don’t understand these cases; they think that if Roe were overruled, automatically all abortions would be illegal. No, it just means that states would decide the issue and certainly many states would indeed illegalize abortion (Alabama, and a few other southern and Midwestern states). But many states, particularly in the Northeast, would retain the legality of abortion. If someone from one of the illegal states were really desperate for an abortion, all they’d have to do is travel to one of the many states, like NJ, Mass, Conn., where abortion would remain legal.

Finally, I’m not saying that I’m in favor of overturning Roe or Casey; I’m just noting that if Roe were overturned, it wouldn’t mean the end of all abortions in the US and that in many states, probably most, abortion would remain legal.

Except for the “all they’d have to do is travel” argument (I could see some particularly conservative states attempting to criminalize interstate travel to obtain an abortion, particularly without spousal consent), and the open question of how many states currently have abortion statutes on the books that would presumably go into effect again if Roe were overturned, I’m pretty much in agreement.

Mind you, it’s possible that if I did have a uterus I might feel differently about this. And, as a matter of public policy (rather than a matter of constitutionality), I think that further restrictions on abortion would be a bad idea.

Incidentally, Jon has moved to Jason Kuznicki’s Positive Liberty along with Timothy Sandefur and Ed Brayton; I look forward to seeing good things from these folks.

Just in: the nominee to replace Sandra Day O'Connor on the Supreme Court is John G. Roberts, a member of the United States Court of Appeals for the District of Columbia Circuit. Orin Kerr, at least, is very impressed with the selection; I don’t know that much about Roberts myself, but he seems to have quite an impressive resume. Despite Kerr’s assessment that Roberts is respected by both Republicans and Democrats, Steven Taylor predicts a fight nonetheless.

Meanwhile, SayUncle is quite disappointed that Roberts doesn’t have a vagina—at least, none that we know of.

The Supreme Court nominee is going to be announced tonight by President Bush, according to various news outlets. I won’t bother repeating the speculation seen elsewhere, although I might have something substantive to say once the nominee is announced.

þ: OTB and many others.

John Fund has an Opinion Journal piece explaining the unusual marriage of conservatives and minority interest groups who are upset with the Supreme Court’s 5–4 ruling last month in Kelo v. New London:

In 1954 the Supreme Court declared in Brown v. Board of Education that racial segregation in public schools was unconstitutional. But that same year it also ruled in Berman v. Parker that government’s power of eminent domain could be used to seize property in order to tear down “blighted” areas.

It soon became clear that too often urban renewal really meant “Negro removal,” as cities increasingly razed stable neighborhoods to benefit powerful interests. That helps explain why 50 years later so many minority groups are furious at the Supreme Court’s decision last month to build on the Berman precedent and give government a green light to take private property that isn’t “blighted” if it can be justified in the name of economic development.

As always, the State of Mississippi (no stranger to “Negro removal”—ask Emmitt Till or Medgar Evers) is front-and-center as an example of eminent domain abuse:

Martin Luther King III, a former president of the Southern Christian Leadership Conference, says that “eminent domain should only be used for true public projects, not to take from one private owner to give to another wealthier private owner.” In 2001 he joined with the free-market Institute for Justice (which represented the Kelo plaintiffs) to stop the state of Mississippi from uprooting homeowners to make room for a Nissan truck factory. After he compared the state’s actions to “a giant stepping on a grasshopper,” public opposition to the taking mounted. The state finally announced that Nissan had come up with a way to redesign its facility so that the homeowners wouldn’t have to leave.

Fund’s example might have been slightly strengthened if he knew that the families being uprooted by Nissan were black, in a county rapidly being transformed into lily-white suburbia due to outmigration from Jackson.

Meanwhile, it’s good to see the Clarion-Ledger recognizing what side its bread is buttered on. Quick quiz: one of these things is not like the other; identify it.

But, without eminent domain, there could be no public works: no streets, highways, parks, public lands, city, county, state or federal land and water projects or, more locally and recently, for example, here in Mississippi, no Nissan automotive plant.

Because we all know that car companies can’t afford to buy their own land…

þ: Glenn Reynolds.