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2014 Midterms

Last night’s elections went almost as badly for Democrats as any national election I can remember.

The 1994 midterms were bad, with Democrats going from majority to minority in the House, the Senate, and the governorships. House Republican candidates outpolled Democratic candidates by about 5 milllion votes, picked up 54 seats, and replaced Democratic Speaker Tom Foley with Republican Speaker Newt Gingrich.

The 1980 elections were bad, with Ronald Reagan ousting Jimmy Carter from the White House after one term. The Reagan popular win was big, but his electoral win was historic - Carter won only Georgia, Maryland, Minnesota, Rhode Island and West Virginia. Democrats lost 34 House seats but still held a big majority on paper; in practice, the mostly Southern conservative bloc of Democrats in the House voted as readily with President Reagan as with Speaker Tip O’Neil. Much more important, the Republicans gained 12 Senate seats, ousting some of the Senate’s leading liberals, like Birch Bayh, Frank Church, John Culver, John Durkin, Warren Magnuson, George McGovern  and Gaylord Nelson, and Republican-Liberal Jacob Javits lost to a Republican upstart, Alphonse D’Amato.

Last night was just as bad.  Democrats lost eight Senate seats, not counting Mary Landrieu, who is unlikely to survive a Louisiana run-off. Republicans might even claim a tenth seat if Virginia incumbent Mark Warner’s narrow lead doesn’t hold. Democrats claimed not one offsetting seat taken from Republicans, despite hopes in Georgia, Kansas and Kentucky. In fact, Kentucky Republican Mitch McConnell faced an unually strong challenger but still won by the second biggest margin in his six Senate campaigns.

Although Democrats picked up an important Republican governorship in Pennsylvania early in the evening, very little went well after that. Democrats predictably lost governorships in the red states of Arkansas, but also lost in deep blue Maryland and Massachusetts. (What say we stop nominating Martha Coakley for things?) As of this writing, Democrats are holding onto incumbencies in Alaska, Colorado and Connecticut by small margins, but any or all of those could flip in the final counts. That leaves Democrats with a loss of at least three governorships, and as many as six, from a pool that was already heavily Republican.

What happened?

Umpteen Republicans have already crossed my TV screen proclaiming that the American people voted for an end to gridlock in Washington. I don’t see much support for that idea. Electing Republicans to end gridlock might make sense if the electorate liked Republicans – but generic Republicans poll even worse than generic Democrats these days. Furthermore, sending Republicans to the Senate only ends gridlock if the problem was with the Senate. This morning, right-leaning talking heads are blaming Senate Majority Leader Harry Reid for gridlock, but I’ve seen no evidence that any significant number of voters chose their Senate candidate based on the candidate’s position on Harry Reid. Much more likely, voters decided based on the candidates’ position on President Obama and his programs.

Moreover, the individuals responsible for the most important instance of the breakdown of government function were not punished last night. Fourteen Senators who voted in 2013 on whether to raise the federal debt ceiling and adopt a continuing budget resolution to fund the federal government had seats up last night. Republicans retained all 14 seats – the six who voted to send the country into default, the seven who voted not to default, and the one, Oklahoma Senator James Inhofe, who didn’t vote. Some of them had significant challenges, like Senator McConnell in Kentucky and Republican candidate David Perdue in Georgia, but none of them lost, and none of them was ever pushed to justify their party’s role in shutting down the federal government, or promise they’d never do it again.

The Republican wave simply wasn’t about ending gridlock.

On the other side, there are some wishful-thinking liberals who attribute last night’s results to dissatisfaction among liberal Democrats – dissatisfaction that President Obama has not been liberal enough, that he has been too accommodating of Republicans and their concerns. On the surface of it, there is some support for this. For instance, Latino support for Democrats dipped, presumably prompted at least in part by the president’s positioning himself as “deporter in chief,” while failing to obtain immigration reforms legislatively and failing to impose them by executive action.

Similarly, issue referendums do not suggest an ideologically conservative reaction to Obama’s liberalism. Three states increased their minimum wages, including deep red Nebraska and pretty deep red Arkansas. Coloradans rejected a “personhood” constitutional amendment. Oregon and the District of Columbia legalized pot last night; 58 percent of Florida voters wanted to legalize medical marijuana, but that state’s constitutional amendment rules require a 60 percent supermajority. Massachusetts mandated paid sick leave at firms with more than 10 employees. Even a town in Texas oil country, Denton, voted to outlaw fracking.

Still, left-wing disillusionment with a centrist President Obama does not logically compel victories by conservative Republicans. The only way this “disillusionment” argument could be right is if Democratic turn-out was down in 2014 – compared not to the presidential year of 2012, but to the last midterms of 2010. Definitive numbers aren’t in, but I’ve seen no evidence so far of significant decreases in Democratic turn-out, despite some Republicans’ best efforts at voter suppression.

Instead, I think last night’s results show a broad rejection of President Obama’s leadership by the broad center of the American electorate. The disillusionment was carefully cultivated by Republican cynics who defund a federal program or agency, then unself-consciously condemn the poor performance of that program or agency. Poor performance proves that the program as wasteful, requiring yet more cuts. Rinse and repeat.

We’ve seen this with everything from the State Department’s embassy protection programs, to the Veterans Administration’s health care programs, to federal support for local hospitals’ disaster readiness, to non-military foreign aid for countries struggling with democracy (whether in West Africa or in the Middle East).

Perhaps the height of Repulican cynicism is Senator McConnell’s suggestion that Kentucky’s popular state-run Obamacare program can stay, but Obamacare itself must be removed from the face of the earth.

Introspective Democrats have to acknowledge some blame. President Obama and his surrogates have failed any number of times to make an effective public case for his programs and actions. The Affordable Care Act is certainly Exhibit A. But the problem recurs elsewhere. If it was the right thing to leave Iraq in 2010, why was it the right thing to go back in 2014? If intervention in Syria needed Congressional approval in 2013, why wasn’t Congress needed in 2014?

Much attention has been paid to the President’s aloof personality. But his intellect can also be unhelpful to his image. President Obama is very comfortable with nuance, with highly fact-specific decision-making, and this no doubt plays well in the field of constitutional law. But the American public doesn’t abide nuance well, and prefers to believe that our leaders are acting on clearly defined, essentially moral rules.

Democratic candidates felt compelled to distance themselves from President Obama. Kentucky is emblematic. Alison Lundergan Grimes famously tied herself in knots trying not to acknowledge that she had voted for President Obama. Democrats in Kentucky managed to roll out Obamacare in that state while apparently convincing Kentuckians that it is not an Obamacare program – sort of like, “keep your government hands off my Medicare.”  President Obama wasn’t invited to campaign for Democrats in Kentucky, but Bill and Hillary Clinton sure were, over and over.

So it’s not that Democrats ran from being Democrats, nor that they ran from being tied to those hated Washington establishment Democrats. What could it be? Hmmm.

Yesterday’s electorate placed economic issues at the top of its priority list, but the economy has been doing quite well the last two years. Unemployment is down to pre-recession levels, consumer confidence is at post-recession highs, national economic growth is running at very respectable rates, the best growth rates in the industrial world, and booming energy production has brought consumer gas costs to four-year lows.

When a person gives a reason for doing a thing, and that reason is demonstrably false, the person is either crazy or acting on sub-conscious reasons. When people tell electoral pollsters that their votes are motivated by the sad state of the economy while they tell economic pollsters that their confidence as consumers is higher than it has been in years, something else is going on. What could it be? Hmmm.

Opposition to President Obama stands out in American history as starting immediately and building very quickly, persisting thoughout his presidency, and brooking almost no compromise. This is no back-room intrigue - the resistance has been public, upfront, and no holds barred. The opposition has even grown since 2012, demonstrated by the President’s declining approval ratings, even though in the areas of greatest professed voter interest, jobs and the economy, the President’s performance during those two years has been strong. What could explain that? Hmmm.

I’ve observed that Americans do not readily entrust positions of power to African-Americans, whether in public or corporate life. We know this because we’ve done it so rarely.

The cultural biases that all people hold, even sub-consciously, strongly influence our perceptions and more conscious thinking. If we distrust African-Americans with executive authority, we are predisposed to perceive shortcomings and failures in an African-American’s exercise of executive authority.

The more introspective among us can recognize our unconscious biases and reason against them. But that is hard work, and few of us have the intellectual resources, including time and energy, to maintain vigilance against our own prejudices. I think there was an undue optimism eight years ago that all we had to do was elect a black president and these prejudices would wither away – in fact, there was a prominent line of thinking that our mere election of a black president showed that these prejudices had already gone. I think this optimism was founded on a gross misconception of the power that unconscious cultural prejudices have in human thinking. It can take centuries, maybe millenia, to ameliorate, let alone eliminate, biases against people of other races and religions; women still struggle for recognition and reward commensurate to their talents; gay and disabled authority figures are very few and far between.

So yes, I am saying that an important part of yesterday’s outcome has to do with President Obama being African-American. Last night was bad news for Democrats. Worse, last night shows that true racial harmony in this country remains a distant goal for those of us who hold it.



On December 6, 2013, a little old boy named Emile died of Ebola in the Guinean village of Meliandou. The two-year old’s death was the first in what has become the world’s biggest Ebola outbreak in the 40-year history of the disease. By March 31, 70 Guineans had died, including Emile’s mother, sister and grandmother. That day, the United States Centers for Disease Control dispatched a five-person team to assist Guinean containment efforts.

Through the spring and into the summer, the outbreak spread, without much public attention in the West. By mid-July, there were 1,048 known and suspected Ebola cases in Guinea, Liberia and Sierra Leone, including 632 deaths. In late July, a Liberian-American flew to Nigeria, bringing the outbreak to a fourth country. On July 31, the U.S. evacuated Peace Corps personnel from Guinea, Liberia and Sierra Leone, citing the risk of Ebola. During August, patients who contracted Ebola in West Africa brought the disease to Senegal, the United States, Spain, Germany and Britain. Two later cases brought Ebola to France and Norway.

Four American medical workers infected in West Africa were flown to the U.S. during August and September and treated at the Emory University Hospital and the Nebraska Medical Center. Three have been cured, and one remains in treatment. But on September 20, a Liberian man named Thomas Eric Duncan arrived by plane in Dallas. He developed symptoms on September 24. He went to the Texas Health Presbyterian Hospital Dallas, was found to have a temperature of 100.1 degrees, but was sent home with antibiotics – which are, of course, ineffective against viruses. Three days later he was taken back and admitted to Texas Health Presbyterian, where he died on October 8.

Two of the nurses who cared for Mr. Duncan contracted Ebola from him. One of them flew to Cleveland and back to Dallas shortly before becoming symptomatic. Planes have been scrubbed, schools have been closed, hearings have been held, and blame has been laid. The cry has arisen, from the usual suspects, that we need to secure our borders.

Meanwhile, Mr. Duncan’s girlfriend, who lived with him for four days after he became symptomatic, and who was initially quarantined in their home, has completed the 21-day waiting period and is Ebola-free. Same with her five kids.

I obviously have no idea how close Mr. Duncan and his girlfriend were. I’m just saying, if a woman and her five kids can live with a symptomatic Ebola patient and come out of it OK, maybe the medical experts who say Ebola is not easily transmitted are right.

Outside of West Africa, the best information is that there have been 17 Ebola infections during the current outbreak. Fourteen of those were contracted in Africa, and the other three were health care workers caring for the other 14 – a nurse in Spain, who was declared cured yesterday, and the two nurses in the United States, who have been transferred from Dallas to two of the leading contagious disease treatment facilities in the world.

Outside of West Africa, at least, there has not yet been a single Ebola transmission on a train, plane, subway or cruise ship; no one has caught the bug in school or in church, or in any building other than a hospital. Sitting in crowded sports arenas, swimming in pools, walking on the streets and generally living our lives, have all so far proved to be Ebola-free experiences. The only profession that has proved at all risky is the health care profession, and only then when treating highly symptomatic Ebola patients; we can only guess whether Mr. Duncan and the two Dallas nurses might have been spared had Mr. Duncan been admitted and isolated on his first visit.

On October 17, the World Health Organization officially declared Senegal to be Ebola-free, followed today by Nigeria. Nigeria had 20 cases, including eight fatalities; Senegal had one, fatal, infection.

Mr. Duncan was isolated 22 days ago, so it is all but certain that he transmitted the Ebola virus to no one outside the hospital, including the homeless man who shared Mr. Duncan’s ambulance ride on September 28. Mr. Duncan died 12 days ago, so it is becoming increasingly unlikely that he transmitted the disease to anyone in the hospital other than the two nurses – both of whom were isolated upon showing early symptoms. The nurse who took the Cleveland trip was asymptomatic when she flew back to Dallas, developing a fever the next day; she was then isolated within 90 minutes.

Worldwide, nearly 10,000 people have been infected with Ebola, and almost 5,000 have died. The U.S. has had eight of those cases, and one death that may well be attributable to a single admitting mistake at a Dallas hospital.

The CDC should by all means review and improve its biohazard protocols. The Food and Drug Administration should fast-track testing and approval of potential vaccines and drug therapies. Deployment of military and medical personnel to West Africa should be maintained, or even stepped up. All that should happen.

At least as important, we need to revisit the 40 percent budget cuts that Congress has taken from federal programs for bio-disaster hospital readiness since 2010 – 50 percent since 2003. While we’re at it, Congress might want to look into restoring recent cuts to foreign medical aid programs, including the sequester cuts to the United States Agency for International Development.

What we don’t need is elected officials calling for Dr. Thomas Frieden’s job as head of director of the CDC. We don’t need to ban air travel from whole countries. We don’t need to close schools in a city that was visited by someone who developed Ebola symptoms after she left. In all likelihood, in a few weeks our Ebola patients will have gotten well and no one else will have contracted the disease in this country. We’ll move on to the next crisis. In the meantime, we need to keep just calm enough to maintain a sense of proportion.

“Traditional” Marriage Was Already Gone

Just one day after the Supreme Court effectively overturned same-sex marriage bans in five states, the Ninth Circuit Court of Appeals tossed out same-sex marriage bans in Idaho and Nevada. It’s a fun decision to read, so you should.

My favorite part of the decision is section IV, where the court addresses additional “miscellaneous” arguments advanced in support of state bans on same-sex marriage. Specifically, marriage equality opponents argued that exclusion of same-sex couples from legal marriage is necessary to preserve “traditional marriage.” In response, the court made an important point I haven’t seen elsewhere.

The court pointed out that in a “traditional” marriage, women were not allowed to “own property, enter into contracts, retain wages, make decisions about children, or pursue rape allegations against their husbands.” If a woman married a foreigner, she lost her American citizenship.

Marriage in Idaho and Nevada today bears “little resemblance” to marriage as it existed a hundred years ago. Consequently, the court observed, excluding same-sex couples from marriage doesn’t so much preserve “traditional marriage” as it preserves the exclusion of same-sex couples from marriage.

Excellent point. Twenty-seven states down, 23 to go.



End Game

With the Supreme Court’s dismissal today of seven appeals from five marriage equality cases from five states, same-sex marriage became legal in all of those five states:  Indiana, Oklahoma, Utah, Virginia and Wisconsin. In response to the news, some county clerks in Colorado began issuing marriage licenses, and the Republican Attorney General, John Suthers, announced that his office will quickly seek to lift judicial stays against same-sex marriages.

Pretty much no one saw this coming. I didn’t think the Supreme Court wanted to hear another marriage equality case just one year after striking down the Defense of Marriage Act, in a decision that Justice Antonin Scalia angrily denounced for all but legalizing same-sex marriage itself. But the proliferation of federal Court of Appeals decisions in favor of marriage equality seemed to force the Court’s hand. Little did I know.

The Supreme Court’s rules require that it consider any appeal that four justices vote to consider. There are four liberals and four conservatives, counting Justice Anthony Kennedy in the middle. The absence of four votes means that neither side voted to consider the same-sex marriage cases. The liberals realized that not hearing the cases meant the immediate legalization of same-sex marriage in five states; the conservatives must have decided that their hand will be stronger if even just one Court of Appeals upholds a ban on same-sex marriage.

So here we are: as of this evening, same-sex marriage is legal in 25 states plus the District of Columbia. All four federal Courts of Appeals that have ruled on marriage equality have held that same-sex marriage is constitutionally protected - not counting the two Courts of Appeals that ruled against DOMA before the Supreme Court did.

As of this evening, 53 percent of Americans live in a jurisdiction that permits same-sex marriage. But wait, there’s more.

The Fourth Circuit Court of Appeals ruled in favor of same-sex marriage in the Virginia case, and that precedent, left intact by the Supreme Court, applies in the rest of the Fourth Circuit: in North Carolina, South Carolina and West Virginia. The Ninth Circuit precedent upholding marriage equality in the California Proposition 8 case applies in Alaska, Arizona, Idaho, Montana and Nevada. The Tenth Circuit Court of Appeals precedents from Utah and Oklahoma will apply in Kansas and Wyoming.

That’s ten more states – 35 in total.

Today’s Supreme Court action nearly assures that the Court will not decide a marriage equality case before the end of the current term next June. The next case coming along is now in the Sixth Circuit Court of Appeals, which on August 6 heard arguments in cases from all four states in that circuit: Kentucky, Michigan, Ohio and Tennessee. Cases are pending in the Fifth and Eleventh Circuit Courts of Appeals, covering six more states.

If those cases are decided in favor of marriage equality, today’s Supreme Court action signals that the Court will not agree to consider them. If those cases are decided against marriage equality, the Court is not likely to decide whether to consider them until after its calendar for this term is filled. That means those cases would likely be heard next term, after the country has had significantly more time to adjust to being a majority marriage-equality jurisdiction.

Same-sex marriage will be legal throughout the United States, by rule of constitutional law, probably in 2016 and definitely by 2017.


The Wrong War

With all due respect to President Obama and pretty much the rest of the American political establishment, degrading ISIS is the wrong goal. ISIS isn’t the problem.

Remember that we set about to degrade the Taliban, and we were successful. We set about to degrade al Qaeda, and we were successful. But the Taliban and al Qaeda were just terrorist organizations – degrading those organizations was useful and important, but degrading those organizations did not fundamentally degrade terrorism.

ISIS is just another terrorist organization. Of course, degrading ISIS is useful and important, but degrading ISIS will not fundamentally degrade terrorism. When ISIS is done, other terrorist organizations will take its place.

ISIS, like the Taliban and al Qaeda before it, can be degraded with military force. I fully expect that we will be successful in that military effort. But terrorism itself cannot be degraded with military force. Terrorism is much more complicated than any terrorist organization, and much harder to degrade – which probably explains why everyone wants to focus on ISIS.

I suspect that President Obama fully knows that ISIS is not the problem. He made a top priority of enlisting Arab, especially Sunni Arab, support for the military attack on ISIS, and that is an important step toward degrading terrorism generally.

For far too long, Arab governments have whispered their support for American attacks on Muslim extremists in English into American ears, while their state-run media outlets have blared their condemnation of America’s “war on Islam” in Arabic to their populations. Terrorism as such will not be successfully degraded until respected Muslim leaders stand loud and proud against it. American Muslim leaders do this almost unanimously; many Muslim leaders around the world stand firm against terrorism; too few Muslim leaders in the Middle East have yet done so.

An important reason for this is that Muslim leaders in the Middle East lack legitimacy with their own peoples. Too many of those leaders maintain power not by consent of the governed, but by suppression of dissent seasoned with rhetorical attacks on Israel and the U.S. Instead of delivering better lives to their people, Arab governments have delivered only demonization of Israel for existing, and of the U.S. for attacking the very extremists those governments most fear.

The Arab Spring changes all that. The illegitimate potentates of Egypt, Iraq, Libya, Tunisia and Yemen are gone, and others remain under threat. The peoples of those countries are struggling for self-government for the first time in their histories. Their governments now must earn legitimacy, if not at the ballot box, then at least by delivering hope for better lives. Carrying on about Israel and the U.S. does not make life better in Bahrain.

I have written that the Arab Spring almost certainly owes its birth to the American war in Iraq – more specifically, to the Iraqi elections in 2010. Iraqis formed a government on November 11, 2010, and just five weeks later, on December 17, 2010, a Tunisian street vendor named Mohamed Bouazizi sparked the Arab Spring by a lone act of protest that in another historical context would have passed in vain and without note.

Thus I have a different view of the Iraq War than most other liberals – I regard it as a worthwhile undertaking, and as a success. Conventional liberal wisdom right now is that American military intervention in the Middle East always makes things worse. Exhibit A to this line of thinking is the Iraq War, which liberals conventionally blame for Shiite domination of Iraq, Sunni Iraqi discontent, and therefore the rise of ISIS. I think this conventional wisdom is fundamentally misconceived.

Saddam Hussein left an Iraqi polity that was deeply pathological; no dictator so brutal could leave behind a healthy society ready for easy transition to democracy.  We expect too much when we expect Afghan, Iraqi, or Egyptian democracy to spring full-blown from the brow of a dictator, and we expect too much if we expect that the deposition of Bashar al-Assad will produce a mature Syrian democracy. Nowhere in history has that happened.

Our own democracy was deeply flawed at its conception, yet we regard our founders as among the most enlightened nation builders in history. Our own unity was bought with a bloody civil war, four score and seven years after our founding. We ask too much when we ask Iraqis to produce better results from far worse circumstances.

Iraq’s Shiite majority is struggling with the realization that it must work with its Sunni majority rather than suppress it as Hussein’s Sunnis suppressed Shiites. Why is this so hard for Americans to grasp? – Americans, whose white forebears struggled with the realization that they must work with the African-American minority rather than enslave them?

The struggle itself marks progress; the struggle is itself a good thing. Pluralism will not win, in Iraq or anywhere else in the world, without struggle. The struggle must be had.

If the road from dictatorship to democracy is inevitably bumpy, than it is no failure that Iraqi democracy is suffering some bumps. I have pointed out that South Korea did not accomplish real democracy until 35 years after the Korean War; in my book, that makes the Korean War a huge success.

Beating terrorism requires more than beating terrorist organizations, although we must do that. Beating terrorism requires creating an alternative to terrorism, and that alternative is pluralism. Pluralism requires constitutional democracy – popular self-government with institutionalized protections for minorities. Pluralist democracy requires that members of minorities hold rights enforceable against the majority, and against the government itself.

Pluralism also requires a culture of tolerance, a culture of relativism that respects differing beliefs and practices instead of seeking to stamp them out, a culture that permits people to hold firmly to their own beliefs and practices without seeking to impose them on everyone else.

Pluralist culture cannot be imposed by military force. Pluralism must grow from the recognition that its only alternative is perpetual war; the recognition that it is better to get along with people who are different from oneself than to live in constant struggle to kill or be killed by those people. Pluralism must grow from experience.

There are certainly ways that the West can promote that experience. We can promote pluralist role models in the Muslim world, like Indonesia, and in the Arab world, perhaps Tunisia, and therefore we must try to do that. But we cannot impose pluralism, and therefore we must not try to do that.

Meanwhile, we must contain terrorist organizations like ISIS. Obviously, we have to do that in a way that is effective; ideally, we should do that in a way that fosters Arabic pluralism. We should nurture Arab leaders who are willing to stand publicly against terrorist organizations, who are willing to say to their peoples, terrorism is not the way to redress our grievances. This is a step toward pluralism, toward democracy, and toward the degradation of terrorism, which is our truest goal in the Middle East.


Reagan Appointee Vindicates Marriage Equality

Marriage equality advocates could hardly have picked a better panel of appeals judges than the panel that heard and decided challenges to same-sex marriage bans in Indiana and Wisconsin. David Hamilton, an Obama appointee, and Ann Williams, a Clinton appointee, could form a two-vote majority regardless who the third judge was.

But the third judge was Richard Posner. Posner was a liberal early in his career, clerking for the great liberal Supreme Court Justice William Brennan and working in the Lyndon Johnson administration under Solicitor General Thurgood Marshall. His politics turned conservative in reaction to what he regarded as the excesses of the late ’60s. Ronald Reagan appointed Posner to the federal Court of Appeals for the Seventh Circuit in 1981.

On the bench, Judge Posner established himself as a pragmatic and independent thinker and a judicial scholar. He is critical of the “war on drugs” and favors legalization of marijuana possession and use; he has been sympathetic to women’s right to choose; and he has characterized judicial rulings against the rights of prisoners as treating prisoners “as a type of vermin, devoid of human dignity and entitled to no respect.”

Posner’s prolific writing, combining hard-headed pragmatism, plain language, and an aversion to fads and trends, earned him wide admiration. A 2000 study found that Posner was the most often cited legal scholar of all time, with nearly twice as many citations as whoever came in second.

In recent years, Judge Posner has found himself at odds with Republican orthodoxy. In 2012, in his characteristically blunt manner, he told Nina Totenberg, “I’ve become less conservative since the Republican Party started becoming goofy.”

The Posner-Williams-Hamilton panel heard oral arguments on the Indiana and Wisconsin same-sex marriage cases on Tuesday, August 26. Last Thursday, just six work days later, the panel issued its decision: a unanimous 40-page demolition of legal opposition to marriage equality. The opinion was written by Judge Posner – as the senior member of the panel, he presumably got to decide who wrote the decision, and he assigned it to himself.

The decision is classic Posner. It has no footnotes and no section headings – two of the genetic markers of the inbred style of modern legal and judicial writing. The writing is blunt and direct, and the vocabulary is not high-fallutin’. The decision engages in no tortured discussion of legal arcana like the applicable standard of scrutiny; it engages in no angels-on-the-head-of-a-pin parsing of precedents. It is a straightforward discussion whether the legal reasoning opposing marriage equality makes sense. The decision does not require legal training or scholarship to understand; it is clear that Posner wanted to write something that any educated American could read and understand. The most demanding paragraph in the entire decision renders a layman-level summary of the thinking of John Stuart Mill, to make the point that simply being offended by someone else’s action is insufficient to make that action illegal.

My favorite passage in the decision comes at the end of Posner’s consideration of Indiana’s argument that marriage is limited to opposite-sex couples in order to protect children born from unintended pregnancies. The protection takes the form of a carrot-and-stick approach. Where a pregnancy and birth are unintended, Indiana tries to push the parents into marriage by refusing to give any legal significance or economic benefit to the relationship between the parents. And when procreating parents marry, Indiana rewards them with recognition and benefits. Same-sex couples can’t produce unintended births, so there is no need for Indiana to push them to marry, nor to reward them for marrying, since neither will promote the welfare of unintended children.

Posner toys with Indiana’s argument, and with Indiana’s responses to criticisms of its arguments, for a few pages, then brings down the boom:

“In other words, Indiana’s government thinks that straight couples tend to be sexually irresponsible, producing unwanted children by the carload, and so must be pressured (in the form of governmental encouragement of marriage through a combination of sticks and carrots) to marry, but that gay couples, unable as they are to produce children wanted or unwanted, are model parents – model citizens really – so have no need for marriage. Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure.”

This is probably the first time I’ve seen the phrase “unwanted children by the carload” in a judicial opinion, and probably the first time I’ve seen “go figure”; it is certainly the first time I’ve seen them in the same paragraph, and that paragraph is a door-slamming conclusion to Judge Posner’s point.

Posner then ices the cake, if you’ll pardon the mixaphor, by noting a study that shows that in both Indiana and Wisconsin, same-sex couples are far more likely to adopt children than opposite-sex couples are. In other words, same-sex couples are looking after the welfare of unwanted children at a rather greater rate than opposite-sex couples are, even though it is only opposite-sex couples that create unwanted children. Accepting Indiana’s argument that children are better off if their parents, biological or adoptive, are married, Posner leads the reader to the realization that allowing same-sex marriage furthers the very purpose that Indiana claims for disallowing same-sex marriage. QED: it makes no sense.

The Seventh Circuit thus joined the Fourth and Tenth Circuits in striking down states’ same-sex marriage bans. Indiana and Wisconsin immediately promised appeals to the Supreme Court, joining appeals already filed from Oklahoma, Utah and Virginia. It is likely that other federal appeals courts will speak before the Supreme Court rules. The Sixth Circuit heard argument in a bracket of cases from Kentucky, Michigan, Ohio and Tennessee on August 6, and the Ninth Circuit is scheduled to hear arguments in cases from Hawaii, Idaho and Nevada on Monday. The Fifth Circuit briefing in a challenge to Texas’s ban on same-sex marriage will be completed this month.

The Supreme Court will convene its first conference of the 2014 – 2015 term on September 29. None of the cases from Oklahoma, Utah and Virginia is scheduled for consideration at that conference. I would expect that the Court will not be in any hurry to decide which, if any, of the marriage equality cases it will consider. Instead, I think the Court will try to wait for more decisions from the courts of appeals.

Although it takes only four justices to decide to consider a case, I think all or almost all of the justices will vote to consider marriage equality this term. The issue is front and center, legally and politically, and the Court would be much more ridiculed than praised if it tried to duck the issue, even among marriage equality advocates. That means we’ll have a Supreme Court decision on same-sex marriage, probably at the very end of the term next June.


Don’t Do Stupid Stuff

Westerners tend to think of China as an East Asian country, but China stretches far west into Central Asia. China’s western border abuts five Central Asian “stans”: Kazakhstan, Kyrgyzstan, Tajikistan, Afghanistan and Pakistan. The westernmost province of China, the Xinjiang Uighur Autonomous Region, is largely populated by a Turkic people known as Uighurs.

Uighurs have a long history in Central Asia, including the eighth-to-ninth century Uighur Khaganate, or Empire, that reached as far west as the Caspian Sea, and two successor kingdoms that were not finally vanquished by the Mongols until the 1390s. Early Uighurs converted from ancient religions to Buddhism, then very gradually converted to Islam over 700 years beginning in the tenth century. The Uighurs fell under Chinese control over the course of the last imperial Chinese dynasty, the Qing.

Uighurs repeatedly rebelled against Chinese rule, winning at least nominal independence once in 1933, and once in 1944 – the latter time with Soviet backing, lasting five years until Mao Zedong’s victory over the Nationalists in 1949. Uighur unrest continued under Chinese Communist rule, although no longer with Soviet support. The unrest has occasionally become violent, always violently suppressed by the Chinese government.

China has long tried to dilute the Uighur population by encouraging ethnic Han to resettle in Xinjiang. This week, the Chinese government went farther: the government announced a program of cash payments and other incentives to encourage marriages between Uighurs and Han. The stated purpose of the program is to calm inter-ethnic tensions, but from the Uighur point of view it must look like the purpose is to wipe out Uighur ethnicity.

The short of it is that the Uighurs are an ethnic group with a proud history and a distinctive identity, a minority in a country whose official policy includes suppressing them. Those circumstances would radicalize pretty much anyone. Sure enough, Uighurs have formed pan-Islamic, pan-Turkic, and Uighurstan independence movements.

Uighurs are concentrated in the Tarim Basin in the southwest of the province; therefore the bulk of the Uighur people live closer to Kabul, Islamabad and even Tehran than to Beijing. The westernmost edge of Xinjiang is actually closer to Syria than to Beijing.

Twenty-two Uighurs found themselves among the 568 detainees at Guantanamo Bay. Most were accused of being members of the Uighur independence movement who underwent training at an Al Qaeda camp, but fled the camp when the United States bombed it in 2001.

None of the 22 Uighurs expressed animosity toward the United States, but only toward China, and none wanted to return there. Apparently all were determined not to be enemy combatants and they were ultimately transferred to Albania, Bermuda, El Salvador, Palau, Slovakia and Switzerland. Neither the harsh conditions nor the long duration of the Uighurs’ confinement at Guantanamo was acceptable, given that none of them was ever prosecuted. They can’t have gone away with any great fondness for the United States.

There have been persistent reports of Uighurs fighting alongside Syrian rebels, and those reports have a certain credibility. Uighurs are Sunni Muslims, so might well be motivated to oppose the Syrian Alawite regime. But just as important, China is among the Syrian government’s chief backers, so opposing Bashar al-Assad could be seen as opposing China.

Uighurs fighting against Assad is one thing. To discredit Uighur activists, the Chinese government has been actively promoting the idea that Uighurs are fighting with ISIS. The fact that Chinese credibility is dubious on this point doesn’t necessarily mean that the accusation is incorrect. ISIS is Sunni, as is Al Qaeda and several others of the more violent Islamist groups in the Middle East. It’s no great leap to imagine alienated Uighurs looking to violent solutions to their suppression.

The world is complicated. We’re fighting ISIS, and so is Assad, who we want to surrender power. We’re aiding moderate Syrian rebels who are also trying to overthrow Assad. ISIS and the moderate rebels both want to overthrow Assad but are also fighting each other. Shiites backed by Iran are fighting ISIS, but we don’t trust Iran and we think Iran is trying to develop nuclear weapons. We also don’t trust Iraq, whose ruling Shiite party we would like to be more inclusive; but Iraq is also fighting ISIS. All of the above hate Israel, one of our closest allies. China backs Assad, and condemns ISIS, but treats its Uighur minority badly.

This ain’t tic-tac-toe. In this game, a move that seems small and unimportant now might be revealed 30 moves later to have been disastrous. Toward one end of the spectrum of outcomes is ouster of Assad by moderate rebels, pluralized Iraqi government, neutered ISIS, de-nuclearized Iran, and democratic China. Somewhere toward the other end of the spectrum is a war of all against all from Egypt to Iran and from Turkey to Iraq, the destruction of Israel, and the deaths of millions.

It shouldn’t be controversial to say that care is called for. Let’s don’t do stupid stuff.



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