March 07, 2006
I Love My Big, Gay Judge
You go, girlfriend....
The half-vast editorial staff just knew we wouldn't regret our founding membership in the CBWSTGJR. And now our boy... err... girl... err....whatever has come through for us.
But then we always thought he was just fabulous. Our boy has laid the judicial smackdown on the elite of academia, who evidently are somewhat confused about what the Constitution has to say about speech:
Not just from Antonin Scalia, and not just from Clarence Thomas, rather, from a unanimous U.S. Supreme Court this week came the juicy rebuke to 36 law schools trying to bar military recruiters from their premises. The learned justices put the matter more elegantly, not to mention circumspectly, but basically they said to the law schools and law profs demanding to keep our government's recruiters at bay: Can't you guys read? Or is it that you don't want to?
The implications of the latter question lend poignancy to the case of Rumsfeld vs. Forum for Academic and Institutional Research (FAIR). [via spd rdr, another CBWSTGJR alumnus)
The legal factories demanding the right to protect students from exposure to the idea of a career in military justice thumb their noses at Main Street America. The Supreme Court had to settle this thing? Why couldn't common sense, tinged with some latent affection for our country, have done the job?
It's a good question. It's fairly remarkable when the nation's leading law schools receive this public a rebuke from a unanimous Court. It rather makes one wonder what our country's finest legal minds have been up to, when they can't summon up the correct answer to a seemingly elementary question like, "Doesn't freedom of speech imply the freedom to disagree with, express disapproval of, or even to hold points of view that may be repugnant to insular and overpaid law professors?".
Or perhaps these questions: "Is it possible for an institution of higher learning to accomodate divergent viewpoints?", "Having studied for three years at an elite school of law, shouldn't the students of Harvard, Yale, Princeton, Columbia, and other schools be able to spot a meretricious argument on its face and wrestle it to the ground?", and "If not, is it possible that they are wasting their money?" If the overprotective reactions of FAIR are to be believed, the answer, presumably, to all of the above was a resounding NO! Their students were presumed incapable of thinking for themselves.
At the merest exposure to "incorrect" ideas, they would crumble up and blow away: go over to the Dark Side, join the Enemy, grasp hands with Darth Rumsfeld and rule the universe as Father and Unrepentantly Heteronormative sons. Speaking with his usual dry wit, Our Boy heaped scorn on the ludicrous notion, advanced by both FAIR and some of the nation's brightest legal minds, that conduct somehow transmogrifies into speech when a military uniform enters the picture:
...writing for the court, Chief Justice John G. Roberts Jr. said that Solomon "neither limits what law schools may say nor requires them to say anything."
"Law schools remain free under the statute to express whatever views they may have on the military's congressionally mandated employment policy. . . . Nothing about recruiting suggests that law schools agree with any speech by recruiters and nothing in the Solomon Amendment restricts what the law schools may say about the military's policies," Roberts wrote.
The half-vast editorial staff found this particularly amusing since we ourselves expounded upon this theory several months ago here and here and here after reading on various learned blawgs what a preposterous argument it was.
This decision is bound to have far-reaching if not delicious effects on the Ivies. The weeping, wailing, and gnashing of teeth will be heard in the Land for aeons. The most interesting second-order effect is likely to be the wave of protests engendered by this "forced accomodation" of the hated military recruiter. The recent clash between a military student and protesters at Columbia was a object lesson in the intolerance shown by the so-called Tolerant Left, highlighting their complete distain for the free speech rights of others on federally-funded campuses. But those who long to suppress "diverse viewpoints" may have a few surprises coming. As Howard Bashman notes:
"Because the First Amendment would not prevent Congress from directly imposing the Solomon Amendment's access requirement, the statute does not place an unconstitutional condition on the receipt of federal funds." At present, the Solomon Amendment allows institutions of higher education that are willing to forfeit federal funding to exclude military recruiters. Might the quoted language from today's U.S. Supreme Court ruling, which speaks of Congress's ability constitutionally to impose the access requirement directly, enable Congress to enact a new version of the Solomon Amendment mandating access for military recruiters that institutions of higher education could not refuse even if they were otherwise willing to turn down federal funding? The answer would seem to be yes.
An interesting prospect. Meanwhile, the WaPo is storming the ramparts:
The real problem, which this litigation has tended to obscure, is that the military, even while fighting two wars, continues to root out Americans who wish to help by maintaining a policy that bars anyone who is openly gay. It robs itself of much-needed talent by way of their humiliation and exposure while forcing those in uniform to hide who they are.
This would be distasteful even if their presence in the military posed some real problem. But there's no evidence of that. A combination of bigotry and inertia keeps the gay ban in place. Now that the military has proved it can constitutionally exempt itself from university nondiscrimination rules, Congress should decide whether it really wants a military that requires such an exemption.
Oh, we *do* love our big gay judge.
Posted by Cassandra at March 7, 2006 08:51 AM
I don't remember where I saw it, but someone made the observation that when SCOTUS come back unanimous it's a pretty easy question.
Then how come our "best and brightest" law schools got it wrong.
They got it wrong because the care more about there personal feelings toward the military than they do about whether something is constitutional or not.
They got it wrong because those lawschools suck. Their profs are big ole poopy for brains.
I mean, even Souter voted for the Pentagon. What more proof do you need?
Posted by: KJ at March 7, 2006 09:25 PM
Not so fast, round boy! We're gonna have some laughs!
These arguments are a nothing more than a pet project of non-practitionrs looking to enhance their resume on the backs of unpaid law students. Poke it on to your curiculum vitae, Professor. Mind you, your blind allegiance to set-piece moral arguments and complete lack of respect for common sense directly affects my inclination to support your never-ending fund drives.
But then, your plain arrogance would never even consider the obviousness of such a quid pro quo, would it?
Posted by: spd rdr at March 8, 2006 06:46 PM