"Because You're Willing To Take The Money"

Linda Greenhouse of the Times describes the scene as the Supreme Court heard arguments about allowing military recruiters equal access to law schools.  It was a long day for the law schools:

The result was a lopsided argument during which the justices appeared strongly inclined to uphold a federal law known as the Solomon Amendment, which withholds federal grants from universities that do not open their doors to military recruiters "in a manner at least equal in quality and scope" to the access offered civilian recruiters.

Or as Chief Justice John G. Roberts Jr. put it succinctly: "It says that if you want our money, you have to let our recruiters on campus."

...In the argument on Tuesday, the law school coalition's lawyer, E. Joshua Rosenkranz, had difficulty gaining traction as he urged the justices to uphold the appeals court's judgment that the Solomon Amendment amounted to "compelled speech" by forcing the law schools to convey the military's message. Chief Justice Roberts made his disagreement unmistakable.

"I'm sorry, but on 'compelled speech,' nobody thinks that this law school is speaking through those employers who come onto its campus for recruitment," the chief justice said. "Nobody thinks the law school believes everything that the employers are doing or saying."

The lawyer adjusted his focus. The law schools have their own message, "that they believe it is immoral to abet discrimination," he said.

This time, Justice Sandra Day O'Connor took issue. "But they can say that to every student who enters the room," she said.

"And when they do it, your honor, the answer of the students is, we don't believe you," Mr. Rosenkranz said.

"The reason they don't believe you is because you're willing to take the money," Chief Justice Roberts interjected. "What you're saying is this is a message we believe in strongly, but we don't believe in it to the detriment of $100 million."

Dahlia Lithwick of Slate has both more background and a more colorful account of the day's proceedings, which apparently lacked something in suspense:

Solicitor General Paul Clement represents the government today, as usual, and he just seems to get better and better. (It certainly helps when, going into the argument, the bet is whether you'll win 8-1 or 9-0.)

Over at the Reality Based Community, Michael O'Hare is entitled to his own opinion, but evidently does not have one.  However, he decries the creeping Federalization of everything by means of the tactic at issue here, by which the Federal Government accompanies its frowns with a withholding of funding.  But will this tactic be A-OK once the Dems are back in power?  Does Mr. O'Hare walk alone on this, or have I missed a philosophical shift at the other party?

Well.  My questions:

(a)  Suppose Congress had passed a clean, non-coercive law to the effect of, the US has a compelling need to raise a military; universites who allow acces to a broad range of employment recruiters will not discriminate against military recruiter.  Nothing about denial of funding in there, just a clear statement of the public purpose.

Wouls such a law have had the votes in Congress, and would it have passed Constitutional muster?

(b) Shouldn't someone point out that the military also discriminates against women?  That seems not to be of concern to the law schools here.

Lots of discussion at Memeorandum: Phil Carter notes Congress Constitutional authority to raise an army, and Ann Althouse is digging John "Don't bring that weak game into my house" Roberts.  Hmm, maybe Roberts could adopt the Dikembe Mutombo finger wag to spice up the video.

Comments

[Dwilkers]

"What you're saying is this is a message we believe in strongly, but we don't believe in it to the detriment of $100 million."

You gotta love that line.

I think an even more compelling case could be made under the congress' constitutional responsibility to raise armies - as Scalia apparently pointed out but none of the media reports I've seen cover.

This was a fight doomed to failure. You gotta love the message the left sends with this sorta thing on the eve of an election year.

As Goldstein put it a couple days ago:

To recap: The leader the of Democratic party has stated publically that we won’t win the war. The most recent Democratic presidential candidate has accused our soldiers of terrorizing women and children (for the second time). The Democratic House minority leader is taking the position that we should withdraw from Iraq immediately, backing the plan of a Democratic “hawk,” who continues to step up the rhetoric. And a former Democratic Attorney General is in Iraq, defending the murderous tyrant our military deposed, losing over 2000 troops in the process --

Once again Dems are counting on the voters in the US having short memories I guess.

[Michael Hertzberg]

While Dahlia Lithwick may think that General Clement "just keeps getting better and better," I think the reverse. I was impressed by his argument last week in the New Hampshire parental notification case, but this time he seemed really weak. He seemed only mildly interested in Scalia's point about the Article I argument (raising armies), even as other justices more actively embraced it; and a couple of the Justices -- Scalia and, I think, Kennedy -- expressed their astonishment at his concession that the Act would not be violated by university-sponsored interference with military recruiters in the form of jeering them as they spoke to candidates.

[kim]

I think liberals have leaped prematurely from believing in the perfectability of man to believing in the perfection of man.
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[Truzenzuzex]

Michael:

"What you're saying is this is a message we believe in strongly, but we don't believe in it to the detriment of $100 million."

You rapscallion, you beat me to it!

Shakespere who said, "Brevity is the soul of wit" in Hamlet (I believe it was). The quote you identified above is, in my humble lay opinion, maybe the shortest total destruction of a Supreme Court case ever uttered.

[Truzenzuzex]

Oops - sorry, that was Dwilkers, not Michael.

[TM]

I think an even more compelling case could be made under the congress' constitutional responsibility to raise armies - as Scalia apparently pointed out but none of the media reports I've seen cover.

Good point re the Times - the closest they come is this:

But the military has needs of "immense national importance" also, Justice Scalia said.

That only hints at the Constitutional right of Congress to raise an army.

Lithwick had more:

For a few moments several justices are in the thrall of the amicus brief, until Scalia reminds Clement that the Constitution grants Congress the power "to raise and support armies." Scalia wonders why that isn't the end of this case.

...Clement says there is no speech claim here, characterizing recruitment not as "speech activity, but commercial activity." At which point Scalia interjects that this commercial activity also "happens to be specifically authorized by the Constitution."

[Bob in Pacifica]

I think most people don't care about the constitutional issues here, but rather that we have a bunch of lying sacks of shit pushing a phony lie of a war, and in order for the military to recruist they've got to lie too.

I say bring back the draft, with no college deferments. Allow alternative service. We'll be rebuilding the Gulf Coast for years anyway. Once the possibility (threat) of military service is universal, people won't be so anxious to waste killing and maiming our youth to service a lie. Then maybe we won't be misled by a generation of chicken hawks.

[Cecil Turner]

Over at the Reality Based Community, Michael O'Hare is entitled to his own opinion, but evidently does not have one.

Oh man, you are slaying me. Or perhaps he is:

Perhaps Jon will straighten me out so I can have a solid opinion; I really dislike not knowing what I think about an important issue like this. [emphasis added]

I can just see Karl in the background: "these are not the droids you're looking for." Cuz with a mental vacuum like that, some of those Evil Jew Mind Beams are bound to seep in.

. . . and in order for the military to recruist they've got to lie too.

I think they just have to let them on campus. (Lying is optional.) Happy Pearl Harbor day!

[kim]

Oh yes, Bob, Kerry's stealth draft/national service plan. The hypocrisy of believing in that plan and hoping disinformation linking Bush with a new draft would help him in his '04 campaign still amazes me. The scumbag. Correction: The Scumbag!

The young give enough for their country supporting the National Ponzi Scheme.
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[Rick Ballard]

What a sparkling example of Koslandian wit and charm. It is difficult to imagine the strain on what are obviously limited faculties that typing out such a misive must induce. One's thoughts are led to the vision of a hamster frantically running on its wheel - thinking that it is going somewhere.

[DougJ]

"Roberts could adopt the Dikembe Mutombo finger wag to spice up the video."

That would be awesome! He and Alito will make quite a team. I'm counting the days unti they finally overturn Roe, so that the massacre of womb babies is finally put to an end.

[noah]

I listened to the audio on C-SPAN. I was not impressed with Clement. I was impressed with the spanking that Rosenkrantz got at the hands of Scalia et al. I think even Ginsburg was skeptical.

[Dwilkers]

Yeah you gotta love that. You're drinking your coffee, thinking deep thoughts about freedom of speech, military recruiting, national security, how the SCOTUS works etc and suddenly you get "...most people don't care about the constitutional issues here, but rather that we have a bunch of lying sacks of shit pushing a phony lie of a war, and in order for the military to recruist they've got to lie too."

Well slap me with a trout, back to the political reality the left has given us I guess.

You know though, I think its going to be interesting to see to whom Roberts assigns writing this opinion. He talked a lot about wanting to get a more unified court and clearer opinions in his confirmation hearings.

Will he assign a lib to write the opinion in the hopes of getting Ginsberg on board? I'm guessing he will if he can get her vote.

[Gary Maxwell]

Is Pacifica a island base nation in the vast Pacific Ocean? Or are we talking about a virtual reality place for a reality challenged individual?

[kim]

Armed service does have a long and honorable tradition. It has only recently been denigrated. And for what?
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[kim]

Banzai, CT. That was quite a fest you had last night and last March. I'm impressed. I'll bet you didn't greet the Rising Sun with much affection this AM.
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[Geek, Esq.]

I was surprised that the anti-Solomon argument got as far as it did.

I have nothing but personal admiration and regard for the capabilities, professionalism, and ethics of JAG officers--they exemplify the best the profession has to offer.

It's a shame that they're still associated with the stupid homophobia of "don't ask don't tell."

[clarice]

Frankly, I am astonished the case ever made it this far.And especially astonished that our leading universities are stupid enough to think this could ever win. Truly.

[kim]

Bingo, G,E, I agree completely with you. Surely compulsory closeting is no longer necessary. A voluntary military has uses for homosexuals, just as it does any featherless biped, and I'm not being catty or evoking chickenhawks.
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[dorf]

Funny how money makes people act.

[kim]

We're just dickering over the price.
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[boris]

stupid homophobia

The military is strongly traditional. One should also keep in mind that military tradition has been subjected to rather intense natural selection.

It was one of the first institutions to integrate successfully. It is stuggling now with wider deployment of women.

The benefit to the military in moving beyond "don't ask don't tell" is probably insignificant. The benefit to society is most likely symbolic only. The risk in combat units might be higher than liberal expectations. If the social pressure is more than an artifact of the political posturing of one generation's cultural change, it will happen in it's own good time.

[noah]

"don't ask, don't tell"? Don't tell has always been advisable. What was new (in 1993...the opening Clinton political blunder) is the don't ask part.

That needless blunder permanently soured relations between the Clinton WH and the military perhaps to the detriment of the nation.

[DougJ]

"That needless blunder permanently soured relations between the Clinton WH and the military perhaps to the detriment of the nation."

Almost certainly to the detriment of the nation. For a draft dodger with no knowledge of the the military to try to turn 200 years of military policy on its head like that was simply inexcusable. I shudder to think what would have happened had we gone to war under that chucklehead. The irony is, we almost certainly should have, for an invasion of Iraq and Afghanistans would have likely averted the September 11 attacks.

[kim]

It was not a heroic moment for Clinton.

Invasion of Iran may be necessary to prevent attack on Europe and Israel, even the US. There's another irony.
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[kim]

Irany.

OK, you're outa here.
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[kim]

Well, they would be the only known possessor with hostile intentions. Time to push buttons.

More accurately, the known possessor with the most hostile intentions. Time to reach for the buttons.

NB, I do not intend to imply the nuclear button.
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[DougJ]

"Invasion of Iran may be necessary to prevent attack on Europe and Israel, even the US. There's another irony."

I think an invasion of Iran AND Syria would probably be wise. That's why it's so important to get the news about Iraq out there. At this point, the public won't support going to war with either Iran or Syria, must less both. After the December 15 elections, I expect at least some of the good news about Iraq to make it through the media filters. Then, maybe we can finally address our other pressing military needs in the Middle East.

[kim]

Well, actually, both Iran and Syria are collapsing from within. We'll be able to support the revolutions there from over the horizon in Turkey, Iraq, Afghanistan, gulfs, seas, Kuwaits. Israel and Russia will co-operate quietly. Europe will wring its hands. China will observe the Himalayas.
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[kim]

The Polish and the Italians and the British excepted. And it'll be the western ones wringing thier hands, the eastern will be wringing out the wash.
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[DougJ]

"Well, actually, both Iran and Syria are collapsing from within. We'll be able to support the revolutions there from over the horizon in Turkey, Iraq, Afghanistan, gulfs, seas, Kuwaits. Israel and Russia will co-operate quietly."

I hope you're right. It would be hard -- though not impossible -- to manage sustained occupations of either country, much less both. But SOMETHING has to be done. That's the less of September 11 -- "peace" can be much more dangerous than war.

[noah]

As an almost "certifiable" hawk, I respectfully disagree about invading Iran. And I especially disagree about invading Syria (not a strategic threat and being increasingly marginalized).

Of course, I might think differently if I had access to top secret intelligence. Hopefully tho we know where the Uranium enrichment is taking place...a special forces op plus smart bombs may suffice.

[DougJ]

"Hopefully tho we know where the Uranium enrichment is taking place...a special forces op plus smart bombs may suffice."

Personally, I favor regime change. And I think the President does too.

[Gary Maxwell]

Noah

Wait for it. Any day now that top secret intell may be splashed across the headlines of the NYT or the WaPo. More likely if it is somehow damging to the administration or can be twisted a la Wilson?plame to be dmaging to the admin.

[Geek, Esq.]

The benefit to the military in moving beyond "don't ask don't tell" is probably insignificant. The benefit to society is most likely symbolic only. The risk in combat units might be higher than liberal expectations. If the social pressure is more than an artifact of the political posturing of one generation's cultural change, it will happen in it's own good time.

Not having served myself, all I know is that every vet I've talked to--from my grandfather who landed on Okinawa to my dad who was in Vietnam to friends who have served in Iraq--tells me that homosexuals have always been in the military, and that their presence was known and tolerated, but not acknowledged.

[TM]

I have nothing but personal admiration and regard for the capabilities, professionalism, and ethics of JAG officers--they exemplify the best the profession has to offer.

It's a shame that they're still associated with the stupid homophobia of "don't ask don't tell."

Actually, I am a chickenhawk on this one (pun intended) - not having served, I am not highly confident that I ought to ram my opinions... oh, never mind - I do worry that this change ought to be evolutional, not revolutional(?).

Or perhaps, on this one issue, there is unexpected support for Intelligent Design?

If the social pressure is more than an artifact of the political posturing of one generation's cultural change, it will happen in it's own good time.

Or, as Bush said, you have to change people's hearts before you change the law.

Just casually appraising society here, I note an absence of overtly gay male professional or college athletes. And I suspect the military is at least that macho.

[noah]

Who doesn't favor regime change in Iran? I am certain Bush does as well.

While Bush could, I suppose, invade Iran on his own authority under the War Powers Act, I believe it would "not be prudent" until lesser options have been exhausted. Clearly tho the situation is approaching an emergency.

[Gary Maxwell]

anyojne else note this from the Dahlia Lithwick article:

Suddenly one can't help but notice that all the conservative justices have gotten quiet while the liberals are taking turns beating on counsel. That can't be a good sign.

I know it is Slate but jessh could she go a little further towards trying to hide her own bias!

[kim]

Noah, Iran's technology and production capacity for the bomb is underground, armored, dispersed and duplicated. I've read varying estimates of the number of sites need to be successfully attacked to cripple their capability, and it's surprisingly high, a dozen or more. Remember De Gaulle's old phrase 'tear off an arm'. His was a flaunt in the face of the Russian Bear, flouting the US and NATO with his independent, but small, nuclear force. Iran's use of nuclear weapons would be the action of madmen, and they are certifiable. They must be pre-empted, because waiting until they are capable means not being able to neutralize the response after a first strike. The result might be widespread destruction. Remember, they are irrational. MAD is glorious for them.
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[noah]

Kim:

Surely you realize that Bush would have a hard time selling an Iran invasion based on those reports.

Whatever it takes to take out the enrichment plant(s)is all the people would stand for, if that. Bush is not an idiot. But whatever he does he will have to be bold and decisive...we cannot afford to give Iran much notice.

[kim]

Yes, TM the lack of overtness among those ranks may still reflect the compusory closeting effect. And I presume by revolutionary you mean hamsters turning in a cage and by evolutionary you mean hamsters turning into a turning cage. Now that might be interesting; self-replicating, mobile, machines. What an intelligent design.
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[kim]

Oh I kNoah. It will be an impossible sell, yet must still be done pre-emptively. Particularly impossible with all the static from the Yellow Cake business. Perhaps it's within Putin's soul.
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[kim]

And who else but Rice to settle the sale?
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[kim]

Yeah, I know there are Russians at the sites. That's because the ayatollahs are crazy, not dumb. Not many jews at the sites though, and Europe might be further down the target list, if only for the large Islamic urban populations. Another irony.
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[noah]

BTW. I served in the Army for 4 years (yes I was a volunteer)...and never encountered any gays. Not to say they weren't there.

[clarice]

People keep hoping for another Osirik so they can have the desired result and then attack Israel for saving their butts.

I think that is wishful thinking--I do not see how that is physically possible unless they get to use Iraqi airfields.

[noah]

Yep, it is curious tho to see reports that but for Iran being out of range, Israel is itching to take them out. If that means its doable with air power then we are going to step up.

[boris]

tells me that homosexuals have always been in the military

And I know that you know that's not the point. "Moving beyond don't ask don't tell" was the context of my post. I suspect your shift of ground is deliberate.

[noah]

Wouldn't it be a curious twist if all this public wrangling over strategy in Iraq is just a bipartisan cover story to disguise plans for an attack on Iran?

Nah. Couldn't happen!

[DougJ]

"tells me that homosexuals have always been in the military"

I seriously doubt that is the case. The rate of homosexuality has skyrocketed in the past 30 years, due to a number of environmental factors. I suspect that for most the nation's history there has been little or no homosexual influence within the military.

[noah]

Oh no! Not another argument about the incidence of homosexuality!! Any visiting liberal will say "Aha the wingnuts are at it again"! And they would be right!

[DougJ]

(ancient greece) and others where it was virtually nonexistent (say, Revolutionary War era United States) if it is genetic?

I'll leave that topic alone, now, though. I promise.

[Neo]

This case is clear invocation of the "Golden Rule":
He who has the gold, makes the rules.

Which has the corollary:
Freedom of the Press belongs to those who own one

[maryrose]

Bob from Pacifica sounds like he has inside knowledge of how the military works. He may have voted against that warship in the California harbor. Being in the military is now a job choice not a draft. A family member enlisted for Vietnam after getting a low draft number and had to suffer the scorn when he traveled home from the war. If you haven't walked the walk you can't talk the talk.

[Cecil Turner]

It's a shame that they're still associated with the stupid homophobia of "don't ask don't tell."

A few points:

1. It's the law, not the personal preferences of the JCS. Consistency would seem to make lawmakers the logical targets of counter-discrimination.
2. The military can't do everything at once, and there are some practical reasons for maintaining the ban in the near term. These include military practice and prevalence of gender segregation and the difficulties in achieving unit cohesion posed by intermixing gays and some others (e.g., fundamentalist Christians) in field conditions.
3. Significant efficiency degradation can be found in some mixed gender units (especially "love boat" cruises), and the experience is making many military leaders rue the pace of change.
4. What Boris said. Military efficiency ought to be a [the] primary consideration in setting policy.