Justice Kennedy and gay rights

As I begin typing this, the Supreme Court is in the middle of oral argument in Obergefell v. Hodges, the gay marriage case. You can follow the progress of the argument at Scotusblog.

Personally, I am not opposed to changing the definition of marriage to encompass same-sex unions. I consider this a low-risk accommodation to the reasonable desires of a large segment of our fellow Americans.

But a change of this magnitude is not without risk — some of it foreseeable, some not — and the decision to assume the risk should be made by voters, not judges. I see no respectable argument for the proposition that it’s unconstitutional for states to adhere to a definition of marriage that has prevailed throughout recorded history, i.e., one that precludes same-sex unions. That the such an argument seems seems poised to carry the day at the Supreme Court tells me how wrongheaded constitutional analysis has become and how big-headed the Court is.

After Obergefell v. Hodges, constitutional analysis is likely to become more misguided still. That’s because Justice Anthony Kennedy is expected to cast the vote needed to render unconstitutional state laws that adhere to the (until recently) universal concept of marriage as between a man and a woman.

Yesterday, the Washington Post wrote a piece about Kennedy’s views on gay rights. It quoted several of his statements in landmark cases where he found in favor of the gay cause.

The quote that caught my eye was this one: “[T]imes can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress.” Kennedy delivered the quote in explaining the decision in Lawrence v. Kansas, which struck down a Texas ban on homosexual sex.

I should note that, strictly speaking, this quote doesn’t apply to the ban on same-sex marriage. Unlike the Texas law at issue in Lawrence, the ban at issue now doesn’t forbid or require individual conduct. The ban can be viewed as unfair, but it would be quite a stretch to find it “oppressive.”

Nonetheless, the Kennedy quotation captures, I think the spirit that likely will cause him to find bans on same-sex marriage unconstitutional. Accordingly, it deserves scrutiny.

In context, Kennedy was saying that the framers of the Constitution did not know, and could not be expected to know, all possible components of liberty. Therefore, they could not have been expected to include or envisage gay sex as part of the liberty they were guaranteeing.

But the contemporary residents of states like Texas are not limited by the prejudices of the 18th Century. They are the part of the “later generations.”

If “later generations” become convinced that, as a matter of protecting liberty or simply as a matter of accommodating one’s fellow Americans, states should stop banning same-sex marriage, the ban will cease to exist. The process seems to be well underway.

Kennedy’s quotation doesn’t explain why judges should accelerate the democratic process. But it may provide a psychological explanation for why Kennedy wants to do so.

Kennedy’s statement reveals, I suspect, his concern with how today’s laws will be viewed tomorrow and, more to the point, how his opinions will be viewed. Such a concern is problematic. First, what reason is there to believe that judges are capable of figuring this out? Second, and more fundamentally, why is this a legitimate function of the judge?

I understand why judges would try to discern how a law (or constitutional provision) was viewed in the past, i.e., by those who enacted it. To an “originalist,” this is an essential function of the judge. But why is it relevant to try to discern how a law will be regarded tomorrow?

The left has long argued for a “living Constitution.” Kennedy’s approach seems to push this one step further. Call it the “soon to be living, I think, Constitution.”

Kennedy’s statement, in sum, can be viewed as giving away his concern for how history will regard him. The concern is a normal one for Supreme Court Justices to have. But it’s not a legitimate basis on which to decide cases.

The prospect that the age-old definition of marriage will be toppled based, in effect, on the opinion of one un-elected individual who seems intent on being a step ahead of history (as he projects it) suggests to me that, without any real consent by the polity, our system has evolved into farce if not tragedy.

A timely message from Iran

Omri Ceren provides this email update on today’s developments in the Persian Gulf, reported in this brief Reuters story:

It’s been a busy two hours, but some clarity is starting to emerge about the Iranian seizure of a cargo vessel in the Strait of Hormuz. The vessel is the M/V Maersk Tigris and sails under a Marshall Islands flag. It was intercepted by Iranian navy patrol crafts earlier today and sent a distress call, and which point it was contacted by US naval assets who streamed to the area to monitor the confrontation. The vessel was ordered to sail into Iranian waters and refused, at which point the Iranians fired shots across her bow, and the master complied. It’s now in the Iranian port of Bandar Abbas.

There is a dispute over whether the M/V Maersk Tigris was in international waters when it was initially intercepted. The Pentagon seems to have told journalists this morning that it was transiting through Iranian territorial waters. Defense analysts are posting maps showing otherwise (https://twitter.com/PatMegahan/status/593073911786377216).

A few things you’re likely to be hearing as the afternoon kicks off:

(1) The U.S. is treaty-bound to defend the security of the Marshall Islands. To what extent will the US be obligated to act in response to functionally unspinnable Iranian aggression? Keep in mind that in two weeks the President will be personally in a room floating security assurances to the Gulf, promising that the U.S. will protect them from future Iranian aggression.

The Republic of the Marshall Islands (RMI) is a sovereign nation. While the government is free to conduct its own foreign relations, it does so under the terms of the Compact. The United States has full authority and responsibility for security and defense of the Marshall Islands, and the Government of the Marshall Islands is obligated to refrain from taking actions that would be incompatible with these security and defense responsibilities. (http://www.state.gov/r/pa/ei/bgn/26551.htm)

(2) The administration just wrapped up a week of insisting that under no circumstances would it allow Iran to interfere with shipping in the area. It’s unclear how that can be reconciled with what the Iranians just did.

White House Press Secretary Josh Earnest, April 21: “principal goal of this operation is to maintain freedom of navigation and free flow of commerce in the Gulf of Aden and the Red Sea… would send a clear signal about our continued insistence about the free flow of commerce and the freedom of movement in the region… this is a clear statement about our commitment to ensuring the free flow of commerce in this important region of the world” (https://www.whitehouse.gov/the-press-office/2015/04/21/press-briefing-press-secretary-josh-earnest-4212015)

State Department Spokesperson Marie Harf, April 21: “I think the Defense Department may have already addressed this in their briefing today, but there were reports about these U.S. ships that have been moved. And I want to be very clear, just so no one has the wrong impression, that they are not there to intercept Iranian ships, to do issues like that; that the purpose of moving them is only to ensure the shipping lanes remain open and safe. I think there was some misreporting and confusion on this, and I just wanted to be very clear.” (http://www.state.gov/r/pa/prs/dpb/2015/04/240950.htm)

Pentagon spokesman Col. Steve Warren, April 21: “[U.S. warships] are operating [in the Arabian Sea] with a very clear mission to ensure that shipping lanes remain open, to ensure there’s freedom of navigation through those critical waterways, and to help ensure maritime security…By having U.S. ships in the region, we…preserve options should the security situation deteriorate to the point where there is a problem or a threat to freedom of navigation or to the shipping lanes or to overall maritime security.” (http://www.defense.gov/news/newsarticle.aspx?id=128634)

(3) What the hell are the Iranians doing playing chicken with the U.S. Navy on the same day that the full Senate takes up debate on Corker-Menendez? Business Insider’s national security and military editor Armin Rosen had one of the early lines on this:

Whatever else is going on, IRGCN just baited a Burke-class US destroyer into a confrontation in the world’s busiest oil chokepoint (https://twitter.com/ArminRosen/status/593076865922891779)

The Somali muddle, once more once

Yesterday’s Star Tribune featured Paul McEnroe’s page-one story “Minneapolis nonprofit tests program to pull teens from terror’s grasp.” Taking off on the arrest of the Minneapolis based Somali six who sought to depart these parts to join ISIS, the article focuses on an experimental program implemented under the auspices of Heartland Democracy to divert Somalis from such a path. Mary McKinley is the nonprofit’s executive director; Ahmed Amin is a Somali immigrant working with wayward Somalis in the program, one of whom is Abdullah Yusuf. Here McEnroe provides Amin’s perspective:

Amin sees Yusuf and his generation as “the hybrids.” Some, he said, have embraced the life of an American teen. Others remain suspicious of what can still seem a strange culture.

“I work in a school where there are kids who have not bought into America,” Amin said. “It’s almost as if you have to sell them the idea that there is a good life that America affords you. We have to implore them. I read where one of the defendants said he was through with America and wanted to burn his ID. Well, if you don’t have the role models, that’s what can happen.

“These are the kids trying to figure it out,” Amin continued. “The ‘right’ question to start asking is not just about being a Somali-American and embracing this country and democracy. It’s ‘What does it mean to be a Somali-Muslim-American?’ ”

Amin is confronted by Somali parents who don’t want their daughters to read certain books; he leaves school at day’s end knowing that all the energy he put into “trying to explain that the Constitution is a living document” will likely fall by the wayside in some students’ homes.

“What is being taught in the home?” he asked. “What are the attitudes? Civic education about embracing this country and democracy, does that match up at home?”

Of the more than 20 Somali-Minnesotans in the first wave of departures, who left to fight in Somalia, roughly one-third had — like Amin himself — attended Roosevelt [High School in Minneapolis, where Amin teaches].

McEnroe also provides McKinley’s perspective on the experimental program run by the nonprofit she directs:

Mary McKinley is a realist. A veteran of civic nonprofits such as the Open Society Institute and the Aspen Institute, she returned to Minnesota five years ago after a long career overseas and in Washington, D.C. She bristles at any suggestion that she’s merely, as she puts it, “the bleeding heart liberal” out of touch with reality. She knows her organization’s curriculum — civic engagement for at-risk youths — is not going to work for many of the people who are charged with terrorism.

In January correspondence to the U.S. Public Defender’s Office in Minneapolis, whose attorneys were representing Yusuf, McKinley was blunt.

“Make no mistake: We realize this would be an experiment, a pretrial release program unlike any other, especially in dealing with the ISIL threat and the counterterrorism efforts that are the focus of the FBI, the U.S. Attorney and the White House.

“This community has been the victim of benign neglect and we know the consequences,’’ she added. “Youth involved in violence, gangs, drug use and trafficking, high rates of poverty, extremely high unemployment rates, and now terrorism.”

In an interview last week, McKinley elaborated.

“I don’t use the term, ‘de-radicalization.’ Our program works with young people to connect with themselves, their community and their world. We believe that when young people make bad choices — some extremely bad choices — there’s still an opportunity to turn your life around.”

This article tacitly raises a question that is not on the table for public discussion in Minnesota or elsewhere, for that matter. Can we turn off the immigration spigot while we try to get a handle on the rather serious problem in our midst? Shouldn’t we? Why do we continue sleepwalking down a path of increasing peril?

Baltimore’s delicate balance

On Saturday night Baltimore Mayor Stephanie Rawlings-Blake explained her measured approach to the incipient destruction taking place on the streets of the city (video below). She “made it very clear that I work with the police and instructed them to do everything that they could to make sure that the protesters were able to exercise their right to free speech.”

“It’s a very delicate balancing act,” she continued. “Because while we tried to make sure that they were protected from the cars and other things that were going on, we also gave those who wished to destroy space to do that as well. And we worked very hard to keep that balance and to put ourselves in the best position to de-escalate.”

Yesterday, however, as the incipient destruction expended into riots and looting, the mayor denied that she had provided “space to destroy” and blamed the media for giving currency to her words (video here). The mayor explicated Saturday night’s text:

“I was asked a question about the property damage that was done, and in answering that question I made it very clear that we balance a very line between giving protesters — peaceful protesters — space to protest. What I said is, in doing so, people can hijack that and use that space for bad. I did not say that we were accepting of it, I did not say that we were passive to it, I was just explaining how property damage can happen during a peaceful protest. It is very unfortunate that members of your industry decided to mischaracterize my words and try to use it in a way to say we were inciting violence. There’s no such thing,” she said.

“What we did was manage a peaceful protest in the best way possible and when it got violent and destructive we responded to that. We have an obligation to protect people’s First Amendment rights. We also understand through the best training and best practices that we have to do everything we can to de-escalate, and those were the tactics that were deployed yesterday. Did people exploit those tactics or that space that we gave, that we facilitated to have people protest for bad? Yes, they did. But we didn’t endorse it.”

Asked whether the “de-escalation strategy” she touted on Saturday was a mistake, the mayor paused and replied, “Any other questions?” She didn’t invoke her Fifth Amendment rights, but she declined to answer.

Via Bridget Johnson/PJ Media.

Elizabeth Warren — will she or won’t she?

For months, I’ve heard rumors that Elizabeth Warren wants to take on Hillary Clinton for the Democratic presidential nomination. The rumors are plausible. Warren is 66 years old. It’s probably now or never, if she wants to become president. And why would we doubt that Warren wants to become president?

On the other hand, running for president against the Clinton machine takes guts. What has Warren ever done that demonstrates that level of fortitude? Becoming a law professor isn’t a gutsy move. Neither is running for the Senate as a liberal Democrat in Massachusetts.

By contrast, Barack Obama risked obscurity, low status, and a relatively low income by becoming a “community organizer.” And when he first ran for office, it was against a popular incumbent Black Democrat (Obama lost). Clearly, Elizabeth Warren is no Barack Obama.

Given recent developments, however, taking on Hillary Clinton in 2015 doesn’t require Obama-like chutzpah. John Fund reports that at Saturday’s White House correspondent’s dinner, he heard serious rumblings of discontent about Clinton from Democratic operatives and expressions of doubt about her strength as a candidate from reporters.

Among the comments were:

It’s not that she’s too old — she just can’t relate to younger generations.

A couple more scandals, and you’ll wonder if they will start to define her campaign.

Younger women know a female will become president in their lifetime; many of them don’t think it has to be or even should be Hillary.

How can she possibly distance herself from the Obama administration she served for four years, but whose policies increasingly alienate independent voters she needs?

My instinct is to bet against the conventional political wisdom, especially when expressed at an event like the correspondent’s dinner. But, as Fund points out, a recent Quinnipiac poll found that 54 percent of Americans say Clinton is not honest or trustworthy, and among independents the number was 61 percent. As I understand it, moreover, the poll was taken before Peter Schweizer’s “Clinton cash” allegations became public. Certainly it was taken before they gained currency (if, in fact, they have gained it yet).

It’s easy to believe Fund when he says that numbers like these have many Democrats hoping that Hillary Clinton will be challenged by a formidable rival.

In this context, “formidable rival” means Elizabeth Warren. As Fund observes, only a woman has a plausible chance of derailing Hillary’s nomination bid, and Warren is the only plausible female alternative.

But what about the Massachusetts Senator? Are Clinton’s increasing vulnerability and the resulting Democratic doubts about her candidacy about to pull Warren into the race?

At a minimum, Warren is making it clear she hasn’t ruled out running. Byron York reports:

Democratic Sen. Elizabeth Warren is starting a publicity tour for her new campaign-style book, “A Fighting Chance.” As she talks to the press, Warren is repeating previous statements that she will not run for president in 2016. But her denials aren’t really denials, and her party’s unique presidential circumstances give Warren plenty of room to run. Judging by what she has said publicly, there’s no reason to rule out a Warren candidacy.

First, the non-denial denials. This week ABC’s David Muir asked Warren, “Are you going to run for president?” Warren’s response was, “I’m not running for president.”

That’s the oldest lawyerly evasion in the book. Warren, a former law professor, did not say, “I am not going to run for president.” Instead, she said she is “not running,” which could, in some sense, be true when she spoke the words but no longer true by, say, later this year.

A book tour and a non-denial denial are exactly what one would expect from someone thinking very seriously about entering the race.

Whether Warren has the courage to move from “thinking about it” to pulling the trigger remains to be seen. But if Clinton can’t reverse the conventional wisdom about her candidacy that Fund heard this weekend, Warren will be strongly pushed, and sorely tempted, to take the plunge.

What Do Climate Skeptics Believe?

This article by Richard J. Petschauer at Watts Up With That? is an excellent short introduction to the views on climate that are held, generally, by those described as skeptics. (I prefer to call them climate realists.) You should read it all, but here are some excerpts:

There are many areas where most skeptics and the “alarmists”, as they are called, agree. First is the idea of “climate sensitivity”, a useful benchmark for making estimates. It is the final average global temperature rise that would be caused by a doubling of the carbon dioxide (CO2) in the atmosphere, assuming there are no natural changes. Second, most agree on well established methods to estimate how greenhouse gases absorb and emit heat, and that doubling of CO2 will reduce the heat leaving the planet by a little more than 3.5 watts per square meter. This compares to both estimates and satellite measurements of the total now leaving of about 235 watts per square meter. … A 1% change in energy from the sun or a 7% change in cloud cover would cause about the same change as doubling CO2. Third, there is general agreement on how much the average surface will warm to make up for this heat loss: about 1 C (1.8 F). But here is the rub: this estimate is before the atmosphere and the surface, including oceans, react to this temperature change.

How the climate reacts to the initial warming is the main area where most skeptics have problems with the IPCC and others. These reactions are called “feedbacks”. Positive ones amplify any temperature change (warming or cooling from any cause, not just from CO2). Negative ones diminish a change. … The major disagreements are the magnitudes of the feedback values and for clouds, even if it is positive or negative. The final IPCC warming estimates for doubling CO2 range from 1.5 to 4.5 C. The skeptics have no common voice, but their values range from about 0.5 to 1.2 C, a significant reduction. IPCC also uses a 1% annual growth of the CO2 content in the atmosphere, while data shows only about 0.55%.

Alarmism is based on models, not observation, which is the fundamental reason why it is bad science.

One primary complaint is the IPCC and most government funding research have abandoned improving the simple energy balance model and the feedback concept and gone to complex climate models that try to estimate many conditions across the globe and layers in the atmosphere over many years and then a temperature change. Small errors can propagate into unknown large ones. There are over 100 of these models written by different teams and their results differ by a range to 3 to 1. And nearly all overestimate warming compared to observed data. This is settled science? No! And it is bad engineering practice, which some scientists apparently don’t understand, to try to solve such a complex problem without breaking it down into smaller steps that each can be verified and corrected. …

We believe the complex computer models’ overestimation of warming is mostly based on a combinations of three factors: overestimating positive water vapor feedback, underestimating negative feedback from increased sea surface evaporation and treating cloud feedback as positive feedback while it is very likely negative. [T]he models estimate a value of positive feedback for clouds only because this amount is needed to boost the initial 1 C prefeedback warming up to the models’ final average estimate. It is more likely that more evaporation and water vapor will increase cloud content, a net cooling effect. Using simple energy balance models with proven greenhouse gas absorption/radiation tools, the result of these changes indicates a warming from double CO2 in a range of 0.6 to 0.9 C, much less than IPCC’s value of 1.5 to 4.5 C.

The modest warming that can realistically be expected will in all probability be a good thing.

About 1 C warming in the next 140 years does not seem to be a problem. (It will actually take longer because the ocean heat storage will delay the warming). Furthermore, both simple models and data show that most of the warming will be in winter nights in the colder latitudes. … An example is in Minneapolis, Minnesota at 45 degrees latitude. About half of July record highs were set in the 1930s, with only 3 since 2000. However 80% of the record January lows were from 1875 to 1950. This winter warming is a benefit. And what makes people think the climate around 1900 represents the ideal? In 2014 we just saw a very cold winter, typical of that era. Finally, warmer temperatures increase evaporation and precipitation and since CO2 is a plant food, food crop production will increase, contrary to some other estimates.

When models conflict with observation, observation wins, and the models need to be corrected.

Rioting intensifies in Baltimore; liberal narratives among the casualties

In presenting the Justice Department’s negative findings about the Ferguson police department, Eric Holder characterized the violent and lawless response of Ferguson residents to the justified shooting of Michael Brown as an unsurprising reaction to the “highly toxic environment” created by the Ferguson police over the years. But in Baltimore — the un-Ferguson, where the mayor and police chief are Black, and Whites are a minority within the police department — we are now witnessing the same kind of violence and lawlessness as in the allegedly racist Missouri town.

The Baltimore Sun reports:

Violence and looting overtook much of West Baltimore on Monday, seriously injuring several police officers and leaving a store and several vehicles in flames.

At least seven police officers were injured in a clash that began near Mondawmin Mall and spread toward downtown. One officer was unresponsive and others suffered broken bones, police spokesman Capt. Eric Kowalczyk said.

Smoke filled the air as police responded with shields and a tactical vehicle. Demonstrators pelted officers with rocks, bricks and bottles and assaulted a photojournalist, and officers fired back with tear gas and pepper balls.

Demonstrators set a police vehicle ablaze at North and Pennsylvania avenues. Nearby, they looted a CVS drug store, which store officials said had already closed, before it caught fire. Rioters cut the fire hose as firefighters battled the blaze.

If police seemed ill-prepared and ill-equipped to deal with the riots, it’s probably not a coincidence. This weekend, Baltimore mayor Stephanie Rawlings-Blake said she told police to give “those who wished to destroy space to do that.”

Liberals and many conservatives like to complain about police “militarization.” But as soon as city authorities realized, as the mayor clearly did, that the protesters of Freddie Gray’s death included “those who wished to destroy,” they should have responded with a massive show of strength — “militarization,” if you will. Instead, the mayor basically gave rioters the green light, thus paving the way for the violence that occurred over the weekend and today.

Protesters should, within reason, have space to protest. They should never have space to destroy.

In fact, once a protest morphs into a rampage of destruction, it ceases to be a protest and becomes a riot. The peaceful protesters seemed to recognize this reality. According to reports, protest leaders have pleaded with rioters to desist. But absent a strong, effective police presence, their pleas were to no avail.

We see, therefore, that strong policing actually promotes protest and the rights of protesters. Weakness encourages the end of protest and the beginning of thuggery.

There is, as Mayor Rawlings-Blake has said, a balance to be struck in policing. It’s plausible to believe that a large scale show of force during the pure protest stage can fuel resentment off of which the violent element can feed. But the absence of a show of force once it becomes clear that things are going to take a violent turn makes rioting almost inevitable. And a statement like the mayor’s that destruction will be tolerated is even worse; it’s an invitation to violence.

The Baltimore rioting has given the lie to Eric Holder’s left-wing Ferguson narrative. Rioting isn’t an understandable reaction to a “toxic” environment created by the police. It’s an opportunistic response by those of a criminal disposition to events that would not, and do not, cause decent people to engage in violence.

The Baltimore rioting also undermines Mayor Rawlings-Blake’s left-wing policing prescription. Violent “protesters” should never be given space to destroy. Instead, a mobilized police force should make it clear at the first hint of trouble that no destruction will be tolerated.