Rawls and the Law: Larry Solum has fabulous coverage of the Rawls conference at Fordham. Wish I could be there, but Solum's comments are the next best thing. Don't miss them--go here and scroll up.

Women in the Judiciary: a group I work with at the University of Virginia law school is hosting a panel on "Women in the Judiciary" later today. Two federal appellate judges and a justice from the Virginia Supreme Court will take questions for about an hour and half. Dahlia Lithwick (to whom this slightly scary fan blog is devoted) kindly agreed to moderate.

Preparing for the panel, I came across some interesting--though not terribly surprising--demographic information on women in the U.S. federal judiciary. The Federal Judiciary Center has a nice database (look for the Federal Judges Biographical Database) that lets you search for information about federal judges using about a dozen different variables, including who nominated them and when. I ran a search on "Nominating President" and "Gender" and got these results:

From Kennedy to Ford, there were a total of six women appointed to the federal bench; Carter appointed 40 women out of 257 total appointments, Regan 29/372, Bush 36/211, Clinton 104/367, and Bush II 29/144 (so far).

Note that Clinton appointed almost as many women to the bench as all of the presidents before him combined. Looking at the percentages, about 28% of Clinton's nominees were women, which roughly equals the percentage of women in the legal profession. (For statistics on the number of women in the legal profession in the U.S., go here.) W's numbers are lower than Clinton's to date, though, given the growth of women in the profession, one would hope the numbers would go up.

What's the hurry? Bruce Ackerman has an op-ed piece in the New York Times today arguing that the Ninth Circuit should not delay the vote in California. I have to admit that I was a bit surprised by Ackerman’s willingness to limit the possibilities raised by the equal protection claims upheld in Bush v. Gore. Here’s his argument:

This time around, the candidates in California have already invested heavily in a short campaign. Their competing strategies have been designed to reach a climax on the Oct. 7 election date. If they had known they would have to compete until March, they would have conducted their campaigns very differently. By suddenly changing the finish line, the three-judge panel of the United States Court of Appeals for the Ninth Circuit disrupts the core First Amendment freedom to present a coherent political message to voters . . . Worse yet, the decision disrupts the First Amendment interests of the millions of Californians who have participated in the recall effort. State law promised them a quick election if they completed their petitions by an August deadline.

It also offered them a fair election. It seems reasonable for a court to postpone an election long enough to permit the installation of fair voting systems, rather than going through with error-prone machines and then trying to sort out the mess afterwards.

What about Ackerman’s First Amendment argument? It always helps to have the text around. So the First Amendment says: “Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” The core of the First Amendment may be the protection of political speech. But even if that’s right, it’s a big stretch to say that its core is the freedom to present a coherent political message to voters. That’s either rhetorical flourish or wishful thinking. Ackerman is asserting a First Amendment right to have an election run on time. I’m sure it would be a good thing to have prompt elections, and there may be statutory law requiring it. But, if there’s a constitutional claim involved here, it is the right to have one’s vote counted equally in a fair election. Ackerman thinks that this claim isn’t strong enough to override his First Amendment concerns. I think those concerns are overstated, at best. But even if they aren’t, this is an opportunity to see whether the Supreme Court was serious about the equal protection arguments of Bush v. Gore. It’s worth waiting for a decision about whether the Court meant what it said about guaranteeing fair elections.

Give Children the Right to Vote? I'm taking a course on election law, and the professor mentioned a proposal today that I hadn't heard about before. He said there's a movement in Germany to propose a constitutional amendment that would give children the right to vote from birth. I thought he was pulling our leg at first, but listen to this segment on NPR. The idea is that parents (or principal care givers) would act as proxies for children by voting on their behalf. According to proponents, this would have two benefits. First, it would give politicians greater reason to care about family and children's issues. Second, in an effort to correct for Germany's declining birth rate and rapidly aging population, it would give people greater incentive to have more children. (A quick search turns up some other proposals of this kind floating around, from the sophomoric to the more considered (by Gillian Thomas at Demos) to the academic manifesto (by Duncan Lindsey at UCLA.).

I think the population growth rationale is very bad. There are lots of ways to provide incentives for population growth without altering the voting system. Some form of subsidy for having children seems like an obvious mechanism. It would certainly be a lot easier to retract a subsidy when the target population level is reached. Retracting the suffrage is notoriously difficult--and usually for good reason. This rationale also assumes, of course, that increasing population in Germany (or elsewhere, for that matter) is a good thing. Since I don't know anything about German demographics, I'll leave it up to someone else to pursue that line.

More generally, what about the argument that children lack adequate representation? I think this is probably right, but the institutional problems with proxy-voting seem insurmountable. There are principal-agent problems, incentives for strategic voting, and the more basic question of whether it's fair to allocate proxy-votes in the first place. Still, the proposal raises some interesting questions about institutional solutions for problems of intergenerational justice. Place yourself in the original position and ask: if I didn't know how old I would be when the veil is lifted, what principles of political representation would I favor? One-(adult) person, one vote?

Double posting: I'm not sure about this yet, but I thought I would start posting some of what I write over at Crooked Timber here as well. We'll see how it goes.

Crooked Timber: I'll be blogging over at Crooked Timber for the foreseeable future. I've very much enjoyed writing this blog, but it's time to branch out, so to speak. Hope you'll keep reading at the new blog.

More on Gadamer: Josh Cherniss has some thoughtful things to say about the question I posed below: was Gadamer a Nazi? Josh thinks that

one of Gadamer’s greatest personal virtues was also a part of his greatest moral failing, and that this same double-edged quality accounts for both an attractive strength, and a worrying weakness, in his work. Gadamer seems to have suffered from an excess of indulgence, of generosity, of tolerance; he was too charitable, at the time and afterwards, to colleagues who believed and did appalling things (though not towards certain fanatical out-and-out Nazis, whom Gadamer did distinguish from their milder colleagues and condemned). It wasn’t that Gadamer refused, or was even reluctant to, pass judgment; he did. But his judgments with regard to the behaviour of German academics under the Nazis strike me as too indulgent towards others – and towards himself. It was a tough situation, and we should indeed avoid passing hasty and arrogant judgment on those faced with a very hard decision . . . Gadamer’s thought, to the very limited extent I understand it, seems to me animated by his attractive and admirable commitment to dialogue and understanding, which Wolin notes at the beginning of his review. This is worth emulating and fostering. But, as Wolin also notes (and quotes Adorno to the effect of), we are also faced with a moral imperative to avoid repeating the horrors of Nazism – and to oppose those who would seek to repeat them. To the extent that Gadamer inspires us to greater humanity, humility, tolerance and understanding, he is a worthy ally in this project; but to the extent that adopting his philosophy and method may inhibit our ability to make tough judgments and take difficult stands, he may also be a sometimes unreliable and even dubious one.

Read the rest here.

Light blogging over the next couple of weeks. I'm trying to get an artice out, and then I'll be out of town for about a week. It's that time of the year when your friends get married!

Lawrence: the Supreme Court surprised a lot of people today, I think, in using the privacy justification to strike down the Texas law against sodomy. Another decision for the casebooks. For the majority and dissenting decisions, as well as a map showing which states are affected by this decision, go here.

Affirmative action: if you're looking for a good round-up of the day's commentary, Larry Solum has compiled an excellent set of resources.

Given that so much has already been said, I've decided not to blog about the substance of the Grutter and Gratz decisions. But I will say that these are the first landmark cases to come down since I started law school. As the excitement passes, I'm looking forward to seeing how the career of these cases develops. One of my professors mentioned to me today that the first major case decided after he started law school was Miranda. It must have been something to watch the legacy of that case expand and unfold. I don't know that Grutter will have the same sort of longevity, but for those of us just entering the legal world, I'm sure it'll be a case we watch with similar interest and concern.

Blogger fodder: in about an hour, the Supreme Court is supposed to release some major opinions on affirmative action, homosexuality, and free speech (to mention only the big three). That should keep the blogosphere going for a few days . . .

Was Gadamer a Nazi? Richard Wolin seems to think he was, at least during the early years of WWII. Arts & Letters Daily is linking to a scathing review of a biography of Gadamer by Jean Grondin in which Wolin argues that Gadamer was actively complicit with the Nazi regime:

Time and again, Gadamer's own ethical transgressions are compounded by Grondin's post hoc rationalizations. "It was certainly a delicate situation to sit in for a Jewish colleague, but what was Gadamer supposed to do?" inquires Grondin plaintively—as though Gadamer's career prospects were self-evidently the major issue at stake rather than his embarrassing willingness to cooperate with a lawless and racist dictatorship. "Should he have protested?" Grondin continues. Yes, that's exactly what Gadamer should have done! For by protesting or having otherwise expressed his disapproval of this horrific regime, Gadamer would have saved the honor of philosophy as well as his own reputation. Yet for reasons Grondin never fully explains, he insists that the only option available to Gadamer at the time was the low road: "In his situation he could only think about getting along himself." Grondin seems not to understand that philosophy's distinctiveness as a vocation is that in such situations it acts on the basis of principle rather than self-interest or survival. Those who view Grondin's biography as a conte morale about how hermeneutics functions in times of duress are surely in for a major letdown.

Undoubtedly, Gadamer's greatest compromise with the Nazi regime concerns his lecture "Volk and History in Herder's Thought," presented on May 29, 1941, at the "German Institute" in occupied Paris. To appreciate the performative dimension of Gadamer's text, one must take into account that the various German Institutes were purely and simply vehicles of Nazi cultural hegemony. As such, there could be no illusions about their explicit political function: to convince wavering European elites of the legitimacy of a Nazi-dominated Europe and to convey the sense that Germany's military potency was backed by an immense cultural prowess. The Wehrmacht had done its job in the trenches. It was now time for German humanists to do their part in the battle for the hearts and minds of Europe's elites and opinion leaders.

The themes of Gadamer's lecture harmonized perfectly with the regime's ideological aims. Gadamer argued that Enlightenment rationalism had played itself out. The new era would be characterized by the ascendancy of the German Volk idea, the ideological lineage from Herder to Hitler, as it were. With Germany's blitzkrieg triumph of June 1940 (the date of the fall of France), the sun had set on Enlightenment universalism. It was now time for the reign of national particularisms, and, in this regard, Germany's claim to superiority seemed self-evident. The philosopher's job was to provide intellectual legitimation for the new geopolitical order. In keeping with this objective, Gadamer concludes the lecture with a glowing encomium to Germany's battlefield triumphs: Herder's "unpolitical intuition of . . . the fate of Germany during his time, and perhaps the fate of such political belatedness is the reason why the German concept of das Volk—in contrast to the democratic slogans of the West—proves to have the power to create a new political and social order in an altered present." After reading these lines, can there be any doubt that, in spring 1941, Gadamer made the Nazis' cause his own?

I was genuinely surprised by this review. On a spectrum of Nazi affiliation from Heidegger to Habermas, I suppose I'd always thought of Gadamer as closer to Habermas--despite Gadamer's age. Maybe Wolin is wrong about his interpretation of the events he discusses, but, if he's right, it's pretty disturbing stuff.

Not Geniuses, but damn good web-designers. Ezra Klein, Joe Rospars, and Matt Singer have opened up shop together. The blog looks terrific. Go check them out.

Weithman and public reason: Lucas Swaine (Dartmouth) reviews Paul Weithman's (Notre Dame) recently published Religion and the Obligations of Citizenship in Notre Dame Philosophical Reviews. I haven't yet had the opportunity to read Weithman's book, but I'm very much looking forward to it. His other contributions to debates about public reason are careful and precise (two special virtues in an area with so much mushiness), as well as uncommonly charitable to those with whom he disagrees. In the book's Introduction, Weithman says that he will defend the following two principles:

(5.1) Citizens of a liberal democracy may base their votes on reasons drawn from their comprehensive moral views, including their religious views, without having other reasons that are sufficient for their vote – provided they sincerely believe that their government would be justified in adopting the measures they vote for.

(5.2) Citizens of a liberal democracy may offer arguments in public political debate which depend upon reasons drawn from their comprehensive moral views, including their religious views, without making them good by appeal to other arguments – provided they believe that their government would be justified in adopting the measures they favor and are prepared to indicate what they think would justify the adoption of the measures.

In his review, Swaine worries that Weithman's "principles would permit voting or advocacy for unreasonable measures, in unreasonable ways, and on unreasonable grounds." I have similar concerns about the permissiveness of Weithman's principles, but I'm also interested in the sincerity constraint expressed in (5.1) and perhaps also in (5.2). I say "perhaps" because it's not clear that (5.2) imposes a sincerity constraint on public advocacy. Citizens may offer non-public reasons provided (i) they believe that government is justified in adopting whatever policy they advocate, and (ii) they are "prepared to indicate what they think would justify the adoption of the measures." They don't actually have to indicate what they think--they just have to be prepared to do so. Does this mean that citizens may offer any reasons they think will be persuasive in public advocacy--so long as they, personally, believe what they advocate is justified according to some adequate reason? Can they offer reasons they don't believe at all just to get other people to agree with them? I think any adequate account of the ethics of public advocacy will have to deal with this question. It'll be interesting to see what Weithman says in the book about the signficance of reasonableness and sincerity in public debate.

Bernard Williams has died. I haven't yet seen links for a memorial but will post them as soon as they are available. Here is a brief biography for Williams from the philosophy department at UC-Berkeley:

Professor Williams received the M.A. degree from Oxford University. After serving in the Royal Air Force, he held a series of academic positions in England. In 1967 has was appointed Knightbridge Professor of Philosophy at Cambridge University, and in 1979, Provost of King's College. He came to Berkeley in 1988; from 1990 to 1996 he also held the position of White's Professor of Moral Philosophy at Oxford University. Professor Williams divides his time between Berkeley and England.

He has been Fellow of the British Academy since 1971 and Foreign Honorable Member of the American Academy of Arts and Sciences since 1983. He has been awarded honorary degrees by the University of Dublin, the University of Aberdeen, Cambridge University, Harvard University, Yale University, and the University of Chicago; he was knighted in 1999.

He has served on several government committees in England, including the Royal Commission on Gambling (1976-78), and he was chairman of the Committee on Obscenity and Film Censorhip (1977-79). He was a member of the Labour Party's Commission on Social Justice (1992-94) and participated in the Independent Inquiry into the Misuse of Drugs Act (1997-2000). From 1967 through 1986 he was a member of the Board of Sadler's Wells Opera (later the English National Opera).

The photographer Sijmen Hendriks has a portrait of Williams here, and, in 1993, David Lavine drew one of those classic caricatures for Williams in the New York Review of Books. Around the publication of Truth and Truthfulness, Stuart Jeffries published a nice profile of Williams in the Guardian. It's available here.

Update: for some tributes to Williams among bloggers, see Bertram, Runnacles, Solum, and Levy. There's now an obituary in the Guardian (noted by Bertram).

The Strauss reading list: so it seems that the Strauss story isn't going away. Leo Strauss' daughter, Jenny Strauss Clay (a professor of classics at UVA) defends her father's legacy in the New York Times. Another tribute to Strauss--this one by Bret Stephens--appears in the Jerusalem Post. But the only recent contribution that I've found really valuable is today's post by Josh Cherniss, who I had a chance to meet during my recent visit to Oxford. Josh has put together a nice list of secondary reading for anyone who wants to learn more about Strauss and Straussian political philosophy.

Anonymous: now who wrote those unclaimed Rawlsian pick-up lines in Chafetz's run down of the best (postable) entries? Only a Straussian could figure it out!

Regards from Oxford: I've stopped in Oxford on the way back to the States. Not much to report, except that construction never ceases on Cornmarket Street. I've also managed to scrounge up a couple entries for OxBlog's "best political theory pick-up lines." Unfortuntely, I didn't manage to work in "colonization of the lifeworld." But, then again, we Rawlsians don't do that sort of thing . . .

Regards from Israel: I'm traveling this week, so I won't have the chance to blog very much. On the drive from from Tel Aviv to Jerusalem this afternoon, we had the strangest weather I've ever seen. I've watched ominous, green and purple skies driving through Kansas, stopped for white-outs in Colorado, waded through floods in southern Virginia, and even bunkered down for a serious hurricane in Biloxi. But today the sky was darkened with sand, with a hot wind blowing, and then it rained. When we stopped, our car was caked in mud. I've never seen it rain in Israel after Passover. But that alone might not have been so unusual. The really crazy part was that it rained in the midst of a sand-storm. Strange things are happening in this country. Is any one superstitious?

Taking Strauss (less?) Seriously: I've been following the recent flare-up about Strauss from a distance. I thought I would cobble together the major posts for people who might be interested but haven't had the time or the patience (understandably) to look for this stuff. If you're new to this debate, the recent discussion was kicked off by a spate of articles about how neoconservatives in the Bush administration have been influenced by the political philosopher Leo Strauss. There are articles by Seymour Hersch in the New Yorker, James Atlas in the New York Times, Jeet Heer in the Boston Globe, Jim Lobe in Asia Times, William Pfaff in the International Herald Tribune, and Alain Frachon and Daniel Vernet in La Mond (happily translated in the link provided). Peter Berkowitz has published an apology for Strauss in the Weekly Standard (with thanks to Arts & Letters Daily for spotting it).

Leiter v. Cherniss: In a scathing letter, Brian Leiter lambasted the New York Times for perpetuating "the mainstream media's long-standing fraudulent portrayal of Leo Strauss, and his acolytes like Allan Bloom, Francis Fukuyama, and Harry Jaffa, as serious political philosophers and scholars." Josh Cherniss (at Balliol) has replied to Leiter and others in a remarkable series of posts available (in chronological order) here, here, here, here, here, here, here, here, here, and here. (Whoever your supervisor is, Josh, for your sake, I hope s/he's not reading this post--unless, of course, you're planning to include a chapter about Strauss in your thesis. In which case, more power to you!)

Other bloggers: Ted Hinchman posts some valuable commentary here, here, and, on the new Diachronic Agency page, here. (Hinchman's last post also includes my favorite line of the month: "If my own head had a job opening, I don't think I'd even get an interview." Anyone who can write a line like that should automatically get an interview--even in his own head!) Chris Bertram has a measured response to all this here; following Eric Tam's lead from here; the Invisible Adjunct is here and here, and Eddie Thomas here. Lastly, I've drawn some of the links above from Daniel Drezner, who has some excellent posts here, here, and here.

For what it's worth, I think the political hype about "Leo-cons" has blown things way out of proportion. I don't have much sympathy for the Straussian project, but I do think Straussian arguments are worth discussing. This is one place where a proper journal article (or two) would probably be of more help than the blogger's rant. I'll let the Straussian experts suggest a good reading list--it would be very helpful for someone who is sympathetic to Strauss to put together a short-list. (I'm sure such lists exist, but point us in the right direction.) If you're looking for a critical essay, I'd recommend a short article by Charles Larmore originally published in the New Republic (July 3, 1989). It's reprinted in his The Morals of Modernity as "The Secret Philosophy of Leo Strauss."