Violent Video Games in the Supreme Court

The Supreme Court correctly held, 7-2, that California’s law restricting minor’s access to “violent” video games violated the First Amendment. Last year, the California law prompted me to say, “Governor Schwarzenegger, Leave Those Kids Alone,” and to predict the Supreme Court would do what it has now done.

The First Amendment is fascinating in so many ways, not least the unusual bedfellows it creates. The irascible conservative Scalia authored the majority opinion. All of the liberal justices joined his opinion. The other irascible conservative, Thomas, dissented, and was joined by the moderate Breyer. Conservative Justices Alito and Roberts submitted an opinion concurring in the result, but holding out the possibility that legislatures could do this kind of regulation, if they just got it right.

That’s effectively a 5-4 vote on whether legislatures can restrict access to “violent” video games. That’s close. This debate will rage on.

Are sex and violence equivalent from a First Amendment perspective? That’s the essential issue.

Obscenity — beyond-the-pale graphic sexuality — doesn’t get First Amendment protection. And so promoters of the California law sought to equate violence and obscenity. And that’s an interesting discussion. Justice Scalia wrote, in somewhat conclusory fashion, “the obscenity exception to the First Amendment does not  cover whatever a legislature finds shocking, but only depictions of ‘sexual conduct.'”

That is strictly true, as a matter of legal precedent, but doesn’t answer the question whether violence should be treated like obscenity, or whether there are degrees of graphic violence, like degrees of graphic sexuality, that government may more easily regulate. Can there be obscene violence?

Most of us would admit to using the phrase “obscene violence.” But we weren’t talking about the First Amendment at the time. And this is crucial. True “obscenity,” the sexual expression that doesn’t get First Amendment protection, must be truly egregious. Soft pornography, for example, is not obscenity.

Sex and violence are different. Let us count the most obvious ways first. We protect our children from overt sexuality through their growing-up years. We do not protect our children from overt violence through their growing-up years (unless we shield them from most sports, all hunting, the evening news, most religious texts, or any advice on how to deal with the schoolyard bully). Violence is a popular staple of mainstream culture, including pop culture to which 5-year-olds have easy access. Sex is a vastly ambiguous, frequently apologetic, staple of mainstream culture. Both sex and violence can yield good things — but we’re much more comfortable discussing the do’s and don’ts of violence with our ten-year-old than the do’s and don’ts of sex with our ten-year-old.

In fact, we need to educate our children in the actual necessity of violence, at times. Self-defense is the best example. There are others. Violence permeates our pop culture because there is so much fair violence and so much unfair violence in real life.

We do not need to educate our children in the actual necessity of sex. That takes care of itself.

We understand the impulse of sex. We simply do not wish to encourage our children to do it. We understand the impulse of violence and we wish the greatest education about it. We want our children to understand that sometimes violence is fair and sometimes violence is unfair. We wish most profoundly that our children understand this distinction.

Violent video games are an education in violence, and what is fair and unfair. Obscenely sexual videos do not educate. At all.

Sex and violence are different. The Supreme Court got it. Sort of.


Goodwin Liu should not be a Ninth Circuit judge

Presidential elections matter for many reasons — not least, but too little noticed, because of judicial nominations. Federal judges, and Supreme Court justices, typically serve for life. Their philosophies, their ideologies, their view of the Constitution, influence American law and politics vastly more than some of the congressional contests we so closely watch.

The Ninth Circuit United States Court of Appeals (covering California, Oregon, Arizona, Alaska and Washington) — by far the most liberal, and most-reversed, circuit in the land — does not need another liberal judge. To be sure, the nominees to the Ninth Circuit during this administration will be liberal — but there is liberal, and there is Goodwin Liu.

President Obama’s nomination of Goodwin Liu to the Ninth Circuit was blocked by Republican filibuster on Thursday. It was a principled vote. I do not say that lightly. I’ve written before that presidents are entitled to deference in their judicial nominations — precisely because presidential elections have consequences, and Americans must better appreciate judicial nominations as one such substantial consequence.

When Republican Senator Lindsey Graham voted in favor of President Obama’s nomination of Elena Kagan to the Supreme Court in the Senate Judiciary Committee, to the great consternation of many conservatives, I defended him. Liberal presidents get to do liberal things — and unless Elena Kagan was unqualified (she was not) or the sort of ideological liberal who threatened especially aggressive promotion of a liberal agenda (she was not), then the president gets his pick.

Goodwin Liu warranted Republican opposition. His published views are not only not mainstream — they’re the most far-reaching re-writing of the Constitution in contemporary legal and political dialogue.

Liu promotes not merely statutory, but constitutional, rights to health care, education, housing and welfare payments — meaning these entitlements, like rights to free speech, freedom from unwarranted search and seizure, etc., would be beyond the power of any future legislature to question or curtail.

“Rights to government assistance,” Liu insists, “are essential to liberty,” and therefore a fundamental right. And Europe proves it! The “experiences of other nations suggest that the existence of such rights is compatible with constitutionalism.” Goodwin Liu says every form of welfare is a constitutional right — meaning we cannot any longer debate the propriety or extent of any government hand-out — it’s a constitutional right. We neatly remove from the political realm, according to Liu, every argument about health care, education, housing, and welfare payments — because these are “constitutional rights.”

If ever there were a reason for Republicans — for Americans generally — to oppose a judicial nominee — this is it.

This is why presidential elections profoundly matter. President Obama wants Goodwin Liu on the Ninth Circuit, and the left is touting Goodwin Liu as a future Supreme Court nominee. And Goodwin Liu represents the most substantial change to our understanding of the Constitution in this generation.

Republican Senator Jeff Sessions says of Liu: “His record reveals that he believes the Constitution is a fluid, evolving document with no fixed meaning.”  No, only half-right — and in part, dangerously wrong. Goodwin Liu believes the Constitution “fixes” a host of “rights” and takes them forever out of the realm of political debate.

The road to serfdom begins with the kind of judiciary Goodwin Liu envisions.

Judicial Nomination Politics: Don’t Punish Lindsey Graham For This One

President Obama’s nominee for the Supreme Court, Elena Kagan, gets a thumbs-up from the Senate Judiciary Committee, with South Carolina Republican Lindsey Graham joining the Democrats in voting Yes.  The Washington Post‘s Dana Milbank praises Senator Lindsey Graham’s vote, prompting a fierce denunciation from Ed Whelan and others.

Sorry Ed, you marshal facts well and ably point out some of the biases in Milbank’s piece — but I’m with Senator Graham on this one.  It’s a bad idea to demonize Senator Graham on this vote.  I’ve written of my own skepticism about Elena Kagan, in particular, her hypocritical, and, I believe, indefensible, position with respect to the Don’t-Ask-Don’t-Tell policy imposed upon the military by President Clinton and Congress.  But I don’t think that position disqualifies her categorically from confirmation as a Supreme Court Justice when the elected president of the United States says she is qualified.

I agree with Senator Graham.  Elections have consequences.  One consequence — of, I hope, ever greater notoriety — is that conservative presidents nominate conservative jurists to the bench, and liberal presidents nominate liberal jurists to the bench.  I want every American, of every stripe, to appreciate that consequence, because it is one of the most significant — and, given the power of our judiciary, one of the most far-reaching.  Senator Graham’s vote promotes that understanding.  And whenever henceforth we are tempted as a nation to vote for a presidential candidate, despite our disagreement with his or her political philosophy, let the opinions that Elena Kagan will write remind us of consequences.

Conservatives are upset, and not entirely without reason, that Senator Graham’s vote is a kind of “unilateral disarmament,” a gesture that Democrats do not make when Republican presidents nominate judges.

Certainly the nomination of Samuel Alito bears out that accusation.  Samuel Alito was confirmed in January 2006 by a largely party-line vote of 58-42, with four moderate Democrats (if you include the late Senator Byrd as a moderate) voting Yes, and even one Republican, Chafee of Rhode Island, voting No.  By Democrats, there was virtually no deference to the president’s nominee.

The nomination of John Roberts the year before presents a more interesting and textured picture.  John Roberts was a brilliant and eminently qualified jurist.  Indeed, he had been credited by Supreme Court insiders with authoring the “best brief that the Justices [of the Supreme Court] had ever seen.”  Justice Ruth Bader Ginsburg called him the “best” advocate to come before the Supreme Court.  He was a supremely qualified jurist on all but possibly ideological grounds (i.e., he was conservative).

John Roberts was confirmed in September 2005 by a vote of 78-22, with all 55 Republicans and 22 of the 44 Democrats voting Yes.  The roster of No votes is a compendium of Most Reliably Liberal Senators Ever, including Chuck Schumer, who acknowledged that even Roberts’ opponents called him “one of the best advocates, if not the best advocate, in the nation,” but nevertheless voted No, Ted Kennedy, Joe Biden, Barack Obama, Barbara Boxer, Dick Durbin, and Tom Harkin.

Interestingly, the No votes also included some notable moderates, most visibly Hillary Clinton and Evan Bayh — and there you have one key to the politics of judicial confirmation votes.  Nothing in the admirable Senator Bayh’s record or pronouncements would have predicted a No vote on perhaps the most qualified jurist to be nominated for the Supreme Court in our lifetime.

Yet he voted No.  Unprincipled?  By strict standards of principle, yes, because his vote was driven by his presidential aspirations, and everyone knows, when you’re contemplating a presidential primary, you need to tack left if you’re a Democrat and tack right if you’re a Republican.  So whatever the actual views of Bayh and Clinton on the qualifications of John Roberts, presidential primary politics obliged them to establish bona fides with the base and say No to a conservative.

Bayh stunned the political world in February by announcing his retirement from the Senate, and set off a bit of a firestorm with his denunciation of partisan politics.  Perhaps Bayh, by all accounts a good and decent man with integrity, remembered his vote against John Roberts and how he was himself swept into the partisan politics he came to denounce with such vehemence.

On a smaller scale, Senate primary campaigns likewise dictate the partisan votes of senators when presidents nominate Supreme Court justices.  As a political calculation, what senator from a conservative state wants to invite serious challenge in the primary because he or she voted for a liberal jurist?  And what senator from a liberal state wants to invite serious challenge in the primary because he or she voted for a conservative jurist?  That calculation is aggravated by the possibility that the jurist in question might author a controversial high-profile opinion, with which challengers may tarnish the sitting senator by association.

Indeed, Lindsey Graham’s vote in favor of Kagan has already produced exactly such rumbling in South Carolina.  An unnamed political operative in South Carolina said of Graham’s primary challengers in 2014, “it’s no longer a question of ‘if’ but ‘who’ and ‘how many.'”

That’s politics.  If Lindsey Graham is punished in South Carolina for his Elena Kagan vote — either by losing the primary or by being weakened in the primary and thus losing the general to a Democrat — then we have our answer about the politics of judicial confirmation votes.  You always vote against the nominee of a president from the other party.

But that would be most unfortunate.  It would eliminate any fair assessment of nominees, and it would squander the possibility of signaling powerfully to Americans that national elections have consequences.

[Also published at The Daily Caller.]

Pro-Gay, Anti-Military Misdirection and Elena Kagan

Captain Pete Hegseth testified before the Senate Judiciary Committee in opposition to Supreme Court nominee Elena Kagan.  It is a short powerful statement.  It underscores succinctly the difficulty that so frequently confronts me in making sense of leftwing priorities.  Captain Hegseth doesn’t argue the merits of the Don’t-Ask-Don’t-Tell law, and in fact acknowledges that reasonable minds can differ.  Instead, he notes merely that the source of the policy was Congress and President Clinton, for whom Ms. Kagan went to work, and that instead of directing her activist opposition to the source of the policy, she directed it at the institution upon whom it was imposed by law.

Moreover, if the opposition to DADT is a genuine instance of solidarity with gay rights (rather than an opportunistic bashing of the military), then why did Ms. Kagan invite and welcome to Harvard’s campus numerous members of Congress who voted for the policy she calls “a moral injustice of the first order”?  These members of Congress were the actual perpetrators of this first-order moral injustice.  Shouldn’t they have been flogged?

Speaking of which, Captain Hegseth notes that Harvard has three academic chairs endowed by money from Saudi Arabia — where homosexuality is a capital offense.  If you are gay, or adequately suspected of being gay, in Saudi Arabia, you will be killed.  Not fired, not scorned, not disrespected.  Killed.  There plainly must be a moral injustice of an order even higher than first.  Saudi Arabia commits that extra-magnitude moral injustice routinely.  And Ms. Kagan would therefore be obliged to oppose it with rough proportion to her activist opposition to the military and its congressionally-imposed DADT policy.  She did not.

So Ms. Kagan’s conduct at Harvard was opportunistic and hypocritical.  I do not suggest that engaging in opportunistic and hypocritical conduct automatically disqualifies Ms. Kagan from confirmation to the Supreme Court.  Let him who is without sin cast the first Saudi Arabian stone.  But can we at least call it a sin?