The Return of Robert Bork

In an article in Monday's Washington Post about the search for a successor to retiring Supreme Court Justice John Paul Stevens, Robert Barnes and Anne E. Kornblut report:

John Payton, president of the NAACP Legal Defense and Education Fund, said there is another way to interpret the president's remarks: that Obama is looking for someone who would show some deference to "the legislative branch's prerogative in making laws that they think are for the benefit of the country."

Am I the only one struck by this as a description of Robert Bork?

Distorting the Record at the University of Virginia

Talk about intellectual dishonesty! In the age of Google, it is truly remarkable that anyone would make a statement in print -- and in the Washington Post, no less -- that is so easy to disprove.

Last week in the Post's Metro opinion section, Karin Agness wrote about student protests over the choice of federal Judge J. Harvie Wilkinson to be the University of Virginia's commencement speaker. This past Sunday, Amelia Meyer explained some of the reasons for those protests against Wilkinson, a Charlottesville resident who sits on the bench of the Fourth Circuit Court of Appeals in Richmond:

Wilkinson's arguments against gay marriage were made clear in an article he wrote for The Post in 2006. The thrust of his argument was that matters of family law shouldn't be dealt with constitutionally. But he further argued against the very idea of gay marriage, writing, "Marriage between male and female is more than a matter of biological complementarity. . . . Without strong family structures, there will be no stable and healthy social order, and alternative marriage structures might weaken the sanction of law and custom necessary for human families to flourish and children to grow." It is this statement with which a number of U-Va students take issue, rightly seeing it as a threat and an insult to many gay students and advocates.

Meyer had to work extra hard to take Wilkinson's words out of context and misrepresent what he said. That's because Wilkinson's original article, appearing in the Washington Post on September 5, 2006, was an argument against banning gay marriage through amendments to either the federal or state constitutions. His point was precisely the opposite of what Meyer claims it was.

Wilkinson said, in part:

To constitutionalize matters of family law is to break with state traditions. The major changes in family law in the 19th and 20th centuries, such as the recognition of married women's property rights and the liberalization of divorce, occurred in most states at the statutory level. Even the infamous bans on interracial marriage were adopted nonconstitutionally by 35 states, and by constitutional amendment in only six....

Is it too much to ask that judges and legislatures acknowledge the difficulty of this debate by leaving it to normal democratic processes? In fact, the more passionate an issue, the less justification there often is for constitutionalizing it. Constitutions tempt those who are way too sure they are right. Certainty is, to be sure, a constant feature of our politics -- some certainties endure; others are fated to be supplanted by the certainties of a succeeding age. Neither we nor the Framers can be sure which is which, but the Framers were sure that we should debate our differences in this day's time and arena. It is sad that the state of James Madison and John Marshall will in all likelihood forsake their example of limited constitutionalism this fall. Their message is as clear today as it was at the founding: Leave constitutions alone.

Wilkinson was writing in the midst of the debate in Virginia over the so-called Marshall-Newman Amendment, which appeared on the ballot in the fall 2006 election. (It passed and made it unconstitutional for same-sex couples to marry in Virginia.) For a conservative jurist to go on the record against that amendment (as well as the Federal Marriage Amendment favored by President George W. Bush) when being silent would have been the more prudent course (politically speaking) does Judge Wilkinson great honor.

It does him great dishonor when people like Meyer lie about the record. It says a lot about Meyer's dishonesty that she is willing to distort the record when it is so easy, as they say, to go look it up. I don't know whether to be more disturbed by Meyer's intellectual dishonesty or by her intellectual snobbishness -- that is, her thinking that readers of the Washington Post are too stupid to see through her editorial sleight-of-hand.

It is noteworthy that, in her piece, Agness was identified by the Post as

a law student at the University of Virginia and founder and president of the Network of Enlightened Women, a national organization for conservative college women.

The Post did not identify Meyer beyond her name. So, for the record, let's note that she describes herself on her Facebook page as a member of the UVA class of 2009 and as "very liberal" in her political views. She also says she is a fan of both the Colbert Report and the Human Rights Campaign. Not that there's anything wrong with that -- but let's make sure that the record is complete as well as, pardon the expression, set straight.

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George ♥ Rudy?

Is the nomination of former federal judge Michael B. Mukasey to be the new U.S. Attorney General an implicit endorsement of the presidential candidacy of Rudy Giuliani by George Bush?

Much has already been made of the fact that Bush passed over "insiders" who were close to his circle or formerly part of his administration (such as former Solicitor General Ted Olson) in order to choose the largely unknown Mukasey. As the Washington Post reports today:

Mukasey would be the latest in a string of key Bush appointments that come from outside Texas or the president's inner circle and seem less ideological than some of his previous appointments.

Less is made of Mukasey's longstanding ties to Rudolph Giuliani. One has to scroll down far into the AP article on the nomination to find this:

Mukasey, a partner at New York-based law firm Patterson Belknap Webb & Tyler, is also a close friend to former New York Mayor Rudy Giuliani, a Republican. He is stepping down as an adviser to Giuliani's presidential campaign, on which he served as part of an advisory committee on judicial nominations.

Even that revelation is incomplete. Writing in the New York Sun, Joseph Goldstein notes this background:

For decades, Judge Mukasey has been a close friend of Mayor Giuliani. He worked beneath Mr. Giuliani both at Patterson Belknap and at the U.S. attorney's office in Manhattan. It was Mr. Mukasey who swore in Mayor-elect Giuliani in 1994 and 1998. Along with Mr. Olson, Judge Mukasey currently advises the Giuliani campaign on judicial matters. Judge Mukasey's son, Marc, is a partner in the New York office of Mr. Giuliani's law firm, Bracewell & Giuliani LLP.

Given his close ties to Mr. Giuliani, Judge Mukasey has faced teasing from friends who have told him not to get too comfortable back at his firm given the prospect of a Giuliani presidency, a source said.

Given the wide range of qualified, potential Attorney General nominees -- including some lawyers who might be advising John McCain, Mitt Romney, or Ron Paul -- is Bush's choice of Mukasey meant to send a signal to GOP activists about the president's preference for the top of the ticket in 2008?

eDisharmony?

News from (where else?) California notes that a lesbian, fresh from the break up of her long-standing relationship, has sued the matchmaking company eHarmony.com because it did not allow her to seek another woman as a partner through its services.

The AP reports:

Linda Carlson said she tried to use the Internet site in February to meet a woman but could not based on her sexual orientation. When Carlson wrote to eHarmony to complain, the company refused to change its policy, according to the lawsuit filed on her behalf in Los Angeles County Superior Court.

The lawsuit claims that by only offering to find a compatible match for men seeking women or women seeking men, the company was violating state law barring discrimination on the basis of sexual orientation.

"Such outright discrimination is hurtful and disappointing for a business open to the public in this day and age," Carlson said in a statement.

For its part, eHarmony gives a perfectly reasonable explanation for why it is unable to serve gay or lesbian clientele: It is simply not set up for it:

"The research that eHarmony has developed, through years of research, to match couples has been based on traits and personality patterns of successful heterosexual marriages," a company statement said. "Nothing precludes us from providing same-sex matching in the future, it's just not a service we offer now based upon the research we have conducted."

In a way, Carlson's suit is parallel to a vegetarian suing a butcher shop for not selling tofu. Or an airline for not offering ocean cruises.

More than that, though, Carlson is excruciatingly shortsighted. If she prevails in her suit -- and, given that she filed the suit within the Ninth Circuit Court of Appeals geographic reach, she may well do so -- then gay-oriented dating and matchmaking services (like gay.com or myPartnerPerfect.com) will have to accept straight clients on an equal basis with gay clients. That will dilute their purpose and make them less safe and inviting for the very people they are intended to serve.

As legal analyst Walter Olson (who presides at Overlawyered.com) told San Francisco Chronicle columnist Debra Saunders:

Olson noted that Carlson has "a much better chance with existing dating services." But she is suing, Olson noted, because diversity and tolerance have come to mean, "It's not just that you get the choices you want, but also choices you don't approve of have to be taken away."

And: "Diversity in theory is the enemy of diversity in practice."

This case also has parallels to the Supreme Court's 2000 decision in Boy Scouts of America v. Dale. In the arguments leading up to that ruling, Gays and Lesbians for Individual Liberty contributed an amicus curiae brief that said, in part:

Gay organizations often seek exclusively gay environments. There are exclusively gay social and activity clubs, web sites, retreats, vacations, and alumni and professional organizations. Lesbian organizations and institutions, in particular, often seek to limit membership and participation. Many lesbian bars and clubs bar all men, straight men, or unaccompanied men, and many women's music festivals exclude men. Sometimes organizations have no explicit policy excluding straight people, but their names indicate that they are meant to be gay organizations, e.g. Federal Gay Lesbian or Bisexual Employees. Finally, while many organizations do not insist on an exclusively gay membership, there would be resistance to leadership by heterosexuals. For instance, gay people certainly would not wish to force a group like Parents and Friends of Lesbians and Gays to accept as a leader someone who was also active in Parents and Friends of Ex-Gays, a group that counsels that gay people should try to become heterosexual.

Such threats are far from theoretical; at least one anti-gay group has already sued a gay parade for the right to participate and protest... For gay organizations that wish to keep consistent the ideological perspective of their leaders, and for lesbians and gay men who want to preserve spaces that are exclusively lesbian or gay, a decision in favor of the Boy Scouts will protect their ability to maintain and control their expressive associations. (pages 24-25; numerous footnotes omitted)

At bottom, one has to wonder why Linda Carlson would seek to find a partner through an organization that admittedly was ill-prepared to provide the best service for her. Wouldn't it make more sense for her to take advantage of one of the numerous web sites or social clubs that cater specifically to lesbians?

Twenty or thirty years ago, when there were limited possibilities for gay men and lesbians seeking social or romantic connections -- that is, before there was an Internet -- Carlson's disappointment at being turned down by eHarmony, and her subsequent reaction, might have made some sense. In today's world of virtually limitless possibilities, her litigiousness raises genuine questions of motive. One doesn't have to be a cynic to see that.

Update: Thanks to GayPatriot and Overlawyered.com for linking to this post!

Virginia Appeals Court Says, Obey the Law

The Virginia Court of Appeals on Tuesday told lower courts that their job is to apply the law, not make it up as they go along, in a stern rebuke to activist judges.

According to Overlawyered.com:

Reversing a lower court, the Virginia Court of Appeals "ruled Tuesday that Virginia state courts had a constitutional obligation to defer to the rulings of Vermont courts in a child custody dispute involving two lesbian partners who had entered into a Vermont civil union." (Jurist, Nov. 28; opinion in PDF format). The ruling will come as no real surprise to those who've read previous posts in this space (Aug. 26, 2006; Dec. 16 and Aug. 15, 2004). Some social-conservative commentators had unwisely applauded the efforts of Liberty Counsel, a misnamed Religious Right litigation strike force, to help client Lisa Miller evade the jurisdiction of a Vermont court order ordering visitation rights to former partner Janet Jenkins.

Michael Hardy explains the ruling further in today's Richmond Times-Dispatch:

Lisa Miller-Jenkins, the mother impregnated by sperm from an anonymous donor, won her battle in a Virginia court to deny her former partner, Janet Miller-Jenkins, rights granted under Vermont law that recognized their civil union there in late 2000.

But the three-judge Virginia panel said yesterday that the federal Parental Kidnapping Prevention Act trumped the trial court's ruling on behalf of Lisa Miller-Jenkins.

In November 2003, Lisa Miller-Jenkins filed a complaint in a Vermont trial court to dissolve the civil union and determine visitation and other rights.

"By filing her complaint in Vermont, Lisa invoked the jurisdiction of the courts of Vermont and subjected herself and the child to that jurisdiction," Judge Jere M.H. Willis Jr. emphasized.

The court reversed the subsequent decision of a Frederick County judge giving Lisa Miller-Jenkins sole custody of the girl. The judge mistakenly relied, it argued, on Virginia's Marriage Affirmation Act, which voids same-sex unions.

"This case does not place before us the question whether Virginia recognizes the civil union entered into by the parties in Virginia," the court said. "Rather, the only question before us is whether, considering the [federal law], Virginia can deny full faith and credit to the orders of the Vermont court regarding custody and visitation. It cannot."

Here's the message for judges -- in Frederick County or elsewhere -- who want to legislate from the bench: Don't do it.

Wilkinson: Keep Marriage Out of Constitutions

A highly respected conservative jurist who sits on the Fourth Circuit Court of Appeals in Richmond has put himself on the record in opposition to amending constitutions -- whether federal or state constitutions -- to define marriage.

Charlottesville resident and University of Virginia alumnus (he graduated from the Law School in 1972 and later taught there) Judge J. Harvie Wilkinson, who was nominated to his current position by President Ronald Reagan in 1984, has an op-ed piece in today's Washington Post that outlines his argument against "constitutionalizing" marriage.

In "Hands Off Constitutions: This Isn't the Way to Ban Same-Sex Marriage," Wilkinson (pictured, seated at Mr. Jefferson's house at Monticello, in the photo on your right) writes:

The Framers meant our Constitution to establish a structure of government and to provide individuals certain inalienable rights against the state. They certainly did not envision our Constitution as a place to restrict rights or enact public policies, as the Federal Marriage Amendment does.

Ordinary legislation -- not constitutional amendments -- should express the community's view that marriage "shall consist only of the union of a man and a woman." To use the Constitution for prescriptions of policy is to shackle future generations that should have the same right as ours to enact policies of their own. To use the Constitution as a forum for even our most favored views strikes a blow of uncommon harshness upon disfavored groups, in this case gay citizens who would never see this country's founding charter as their own.

Wilkinson, who was widely touted as a potential successor to Sandra Day O'Connor upon her retirement from the U.S. Supreme Court, notes -- correctly, in my opinion -- that proposals to insert marriage into constitutions are not in keeping with either federal or state constitutional and legal traditions:

To constitutionalize matters of family law is to break with state traditions. The major changes in family law in the 19th and 20th centuries, such as the recognition of married women's property rights and the liberalization of divorce, occurred in most states at the statutory level. Even the infamous bans on interracial marriage were adopted nonconstitutionally by 35 states, and by constitutional amendment in only six.

Where is the threat that justifies so radical a break with our constitutional heritage? State courts in Georgia, New York and Washington have recently rejected invitations to follow Massachusetts and find a right to same-sex marriage in their constitutions. The great majority of state court judges -- more than 80 percent by some counts -- are subject to election in some form and unlikely to overturn state legislatures on so volatile a matter as same-sex marriage. States have numerous tools that enable them to reject objectionable marriages from other jurisdictions -- tools that have long been the basis for refusing to recognize marriages involving polygamy, incest, and underage or mentally incompetent parties.

While Judge Wilkinson does not say so outright, it seems fair to infer from his concluding paragraph that he, like hundreds of thousands of other Virginians, plans to vote "no" on the proposed Ballot Question #1 in this November's election. (That ballot measure does much more than simply define marriage. Its complexity can be read in full at the State Board of Elections web site.) Wilkinson ends his article by saying:

Is it too much to ask that judges and legislatures acknowledge the difficulty of this debate by leaving it to normal democratic processes? In fact, the more passionate an issue, the less justification there often is for constitutionalizing it. Constitutions tempt those who are way too sure they are right. Certainty is, to be sure, a constant feature of our politics -- some certainties endure; others are fated to be supplanted by the certainties of a succeeding age. Neither we nor the Framers can be sure which is which, but the Framers were sure that we should debate our differences in this day's time and arena. It is sad that the state of James Madison and John Marshall will in all likelihood forsake their example of limited constitutionalism this fall. Their message is as clear today as it was at the founding: Leave constitutions alone.

Conservatives -- particularly conservative Republicans, like Lieutenant Governor Bill Bolling and Attorney General Bob McDonnell, who have been rather vocal (if not particularly persuasive) in their support of the proposed Marshall/Newman Amendment to George Mason's Virginia Bill of Rights -- will have to come to grips with Judge Wilkinson's principled argument against constitutionalizing marriage law. They might sputter out a response, but they are unlikely to match his deliberateness and erudition. Other conservatives and Republicans have already shown their willingness to listen to reason on this issue.

In his article, Judge Wilkinson goes a long way toward answering the question that good, solid conservatives ask every time they are confronted with a serious issue of public policy: "What would Ronald Reagan do?" I hope that voters on November 7 ask themselves the same question before they push the "Cast Ballot" button.


Update: As one might expect, Judge Wilkinson's article is eliciting a lot of commentary among bloggers. Some posts I have seen (and there are surely others) include comments from Vivian Paige, Dale Carpenter at the Volokh Conspiracy, Delta Mike at the Virginia Progressive, and J. Sarge at New Dominion, F. T. Rea at SlantBlog, Steve Minor at the SW Virginia Law Blog, A Shot of Southern Comfort, The Midwestern Gentleman, and Glenn Reynolds at Instapundit. Meanwhile, somehow I missed an op-ed in yesterday's Richmond Times-Dispatch by a former Republican legislator on the economic consequences of the proposed amendment.

Another Update: GayPatriotWest, traveling in the great American Southwest, links to this post and mentions his own personal acquaintance with Judge Wilkinson while he (GPW) was a student at UVa Law School. Milwaukee-based blogger and law student Steve at Eminent Domain also has a comment, as does Andrew Sullivan, who calls Wilkinson's article "sane and smart."