Uh oh, I appear to agree with John Bolton and John Yoo (sort of)

In an op-ed in yesterday's NY Times , John Bolton and John Yoo made an argument that strongly echoed a 1995 Harvard Law Review article by Larry Tribe: namely, that the Constitution requires important international commitments to be adopted by 2/3 of the Senate exercising the treaty ratification power, rather than by simple majorities in both houses of Congress. (Tribe's article was a response to an article by Bruce Ackerman and David Golove, and the particular issue that separated them was whether NAFTA was invalid because not a treaty. Tribe said it was; Ackerman and Golove said it wasn't. Neither article is available free to all online but both are easily found on Westlaw, Lexis, Heinonline, or JSTOR for subscribers.) Bolton and Yoo don't exactly couch their argument as one of constitutionality, although in some of his academic work Yoo has veered in that direction.

Bolton and Yoo make two points: 1) The U.S. should be skeptical of commitments to international bodies; and 2) that skepticism should be given procedural form through the rigorous super-majority requirement of treaty ratification. In this view unilateral Presidential action or joint Presidential/Congressional action via the ordinary (simple-majority) legislative process will short-circuit the deliberation necessary to avoid unwise international commitments.

Here I want to note that this analysis is at least homologous to my analysis in a recent University of Pennsylvania Law Review article. (The article, Dynamic Incorporation of Foreign Law, is available at 107 U. Pa. L. Rev. 103 for anyone with easy access. To my amazement, it can also be purchased for $9.95 here. Presumably it will soon be available free to everyone for a limited time on the U Penn L Rev website.) In the article, I say that whenever a democratic polity agrees to be governed by decisions taken in whole or in part by another political entity, that polity sacrifices some of its self-government, at least where there are practical barriers to revocation of the agreement. Unlike Bolton and Yoo, I am not generally skeptical of such delegations, but to the extent that the sacrifice of local democratic accountability is worrisome, I--like Bolton and Yoo--propose a procedural remedy. Whereas they would require Senate ratification via the treaty process, I propose representation of the power-delegating polity in the decision-making bodies of the power-receiving entity.

It's easy to dismiss the Bolton/Yoo position through guilt by association but the problem they identify is real, and the politics of particular examples will vary. American political conservatives tend to be skeptical of delegations to international bodies, but at least in recent years, American liberals have had good reason to worry about displacement of permissive state norms (legalizing medical marijuana and physician-assisted suicide, for example) by restrictive national norms. My article (and did I say you could buy it for under $10!!!) attempts to grapple with these problems from a general perspective.

Posted by Mike Dorf

Harvard Law Dean Elena Kagan to be Nominated to be Solicitor General

I learned by email to alumni. In addition to creating an open deanship (and who wouldn't want to be in charge of raising money right now?), Kagan's nomination to this position certainly makes her a more likely candidate for a seat on the Supreme Court, should one open up during Obama's Presidency.

Posted by Mike Dorf

Roland Burris & the Constitution Outside the Courts

Do elected officials have a duty to follow the rulings of courts, even when the courts will not enforce those rulings? To the non-lawyer, this question may be reminiscent of trees falling in empty forests, but for constitutional theorists, it is a central issue in the debate over the Constitution outside the courts. And, if push comes to shove, it may end up playing a role in resolving the question of Roland Burris's eligibility to serve as Senator from Illinois.

There are, it seems to me, four Senatorial paths to blocking Burris:

1) The easiest mechanism would be to seat him and then expel him, but this requires a 2/3 vote.

2) Next comes the technicality route: Declare Burris ineligible because his commission isn't counter-signed by the Illinois Secretary of State, who is refusing to sign, while the Illinois courts are going to take their time ruling on an action seeking to compel the signature. (It's the fun part of Marbury v. Madison all over again!).

3) Then there's the boldest move: Declare Burris ineligible because tainted by the process used to select him (which, at the least, probably includes earlier rejection of candidates unwilling to play ball). For a spirited defense of this approach, see this nice piece by Akhil Amar and my colleague Josh Chafetz.

4) Finally, if all else fails, there's what we might call the Andrew Jackson approach--named for the President who, so the probably-false legend goes, said in response to the Supreme Court's decision in Worcester v. Georgia, "John Marshall has made his decision. Now let him enforce it."
Option 4--defiance of a court ruling that Burris is entitled to serve--would directly raise the Constitution-outside-the-courts issue in one scenario.

By the time Powell v. McCormack got to the Supreme Court, the House of Representatives argued that the case was moot. The 90th Congress had refused to seat Adam Clayton Powell, but after Powell's re-election, the 91st Congress seated him. The Court held that the case was not moot because the question whether Powell should be paid his still-withheld salary for the 90th Congress was alive. But as a consequence of the intervening events, the Supreme Court had no occasion to pass on the question of whether it, or a lower federal court, had the authority actually to order the House to seat Powell. As a result, the case only granted a declaratory judgment.

Now suppose that the Senate cannot muster the votes for option 1, and that a court rejects whatever arguments the Senate advances (presumably something like option 2 or option 3 or a combination) in response to a lawsuit by Burris. Powell makes clear that Burris would then be entitled to a declaratory judgment, but suppose further that the Senate still refuses to seat Burris. When faced with a recalcitrant defendant in ordinary litigation, the normal course is for the plaintiff to return to court to convert the declaratory judgment into an injunction, and if that is not followed, to seek to have the defendant(s) held in contempt.

There are reasons of etiquette and separation of powers why a court that is willing to declare Burris a Senator might nonetheless not go so far as to order that he be seated. Still, for my money, a Court that was willing to end the post-election Presidential contest in 2000 notwithstanding the Constitution's pretty demonstrable commitment of the matter to Congress would likely be willing to order the Senate to seat Burris given that Powell expressly holds that the Constitution does not commit to Congress the right to make judgments beyond determining the qualifications spelled out in the text.

If I'm right about that, then Harry Reid and/or his minions get thrown in the slammer until Burris gets sworn in. But if I'm wrong, then we will have a great victory for the Constitution-outside-the-courts crowd: A court ruling that Burris is eligible to serve, yet his continued exclusion. One reason why I think I'm right (and if I don't think I'm right well, really , who will?!) is that judges hate this scenario. They regard it not as the vindication of checks and balances but as lawlessness.

To be sure, there is an important technical legal difference between:
a) court declares Burris a Senator but doesn't issue injunction, and Congress ignores court declaration;
and
b) Court enjoins Congress to seat Burris and Senate refuses.

Technically, only b) is lawless. But precisely because this distinction will likely be lost on most people, I suspect that a court willing to declare will be willing (if push comes to shove) to enjoin. And at that point, I very strongly doubt that the Senate Sergeant of Arms would protect a recalciatrant Harry Reid.

Posted by Mike Dorf

Happy New Year and Technical Difficulties

Happy New Year to all DOL readers. The hosting of the blog has been a bit buggy over the last month. I'm looking into a long-term fix but meanwhile, thanks for your patience.

Posted by Mike Dorf

What's all this I hear about violins on television?

If the late great Gilda Radner were still with us, surely she would have a field day with the willingness of former Illinois AG Roland Burris to accept Gov. Blagojevich's nomination to serve as interim Senator. Picture Radner as Emily Litella (if you're too young, look it up on hulu or youtube):

Emily: What's all this I hear about the new Senator from Illinois shooting himself in the leg? If you ask me, taking an appointment from that Bigboyovich fellow may be shooting himself in the foot, but not the leg!

Chevy Chase or Jane Curtin: That's Plaxico Burress, not Roland Burris.

Emily: Oh, that's very different. Never mind.

Okay, maybe you had to be there, and by there, I mean watching television during the Ford Administration. Anyway, conventional wisdom will soon coalesce around the proposition that Roland Burris is doing himself a disservice by accepting the Senate appointment, but, as numerous news stories have already pointed out, Powell v. McCormack severely constrains the ability of the Senate to refuse to seat Burris. Like Adam Clayton Powell, Burris has the requisite qualifications for office.

Perhaps the Senate could conclude that, in light of his misdeeds, Blagojevich is not really the Governor of Illinois, and thus lacks the power to appoint a Senator, but this seems far-fetched in the extreme. Meanwhile, if the Senate refuses to seat Burris on this or some equally loopy theory, he should be able to get an injunction on the strength of Powell pretty quickly.

So here's my Machiavellian take: 1) Dems in Congress understandably want to distance themselves from Blago as much as possible, even to the point of not seating an additional Dem who would vote with them and who is, it appears, not personally tainted by Blago's corruption; 2) said Dems, plus President-elect Obama, are also good enough lawyers to know that their move will almost certainly fail if challenged in court, so taking this stand is likely to be cost-free.

Meanwhile, and completely unrelatedly, for my thoughts on the possible long-term constitutional implications of a new era of activist government, see my latest FindLaw column.

Happy new year to all. I'll return to regular blogging next week.

Posted by Mike Dorf

The Perfect, the Good, and the Acceptable

In my post yesterday, I argued that the current crisis in the automobile industry (which is most acute in -- but hardly limited to -- the U.S. auto industry) presents a rare opportunity to completely change the way the industry designs, manufactures, sells, maintains, and disposes of cars. The final paragraph of that post raised a specific example of a conundrum that we face in a number of areas:

All of this, of course, assumes that we should be encouraging people to have access to cars at all. The more fundamental challenge is to make driving less and less desirable and necessary, through better regional planning and investments in rail, etc. As we attempt to do so, however, there is no reason to squander this opportunity to require auto makers to improve both the cars they make and the ways we buy and rent them.

It is not at all obvious that the final sentence of this quote is true. That is, if we want to make driving less attractive, we might be better off doing nothing to help the industry improve the way it does business. In fact, we might want to do the exact opposite of what I suggested and instead make driving as miserable an experience as possible. (The second comment on the comments board explored this conundrum and anticipated some aspects of today's post. It raises some very important questions and is definitely worth reading.)

I briefly lived in central Pennsylvania, where the roads are notoriously bad (poorly designed, poorly maintained, and thus disturbingly dangerous). One thing I learned the hard way while driving on those bad roads is that it makes a person appreciate trains. While part of me wished that, for example, the on-ramp to the highway did not enter directly into a lane of traffic with no merge lane (and with the added joy of being on a steep uphill incline, with no sight-lines for oncoming traffic), I realized that a gleaming new highway would make me and others much less likely to want to get out of our cars. Similarly, if it were not a miserable experience to buy a car in this country, I probably would not have kept my car for 10 years and over 200,000 miles and would thus have contributed to the profits that extend the life of a bloated and globally disastrous industry.

One response to this observation, therefore, is to be aggressive in our efforts to make driving unappealing. Stop maintaining roads and bridges. Allow traffic jams to take up ever more hours of people's time. Repeal consumer protection laws designed to rein in a few of the worst excesses of car dealers. Repeal auto safety regulations and fuel economy regulations. In short, do everything we can both actively and passively to make people want to support a car-free alternative approach to transportation.

Readers will recognize this as nothing more nor less than the classic reformist vs. abolitionist (or liberal vs. radical) dilemma. Do we, for example, support laws that make feed animals slightly less miserable before they are brutally killed, if such laws will make people feel good about themselves for having been "humane" in their treatment of their victims? Do we expand medical coverage by HMO's, knowing that doing so will make people less likely to support universal health care coverage? Do we require businesses to treat their workers a bit better, knowing that doing so will make the workers less likely to support fundamental change in the way the workplace is organized? Do we, in other words, believe that things must be bad or worse before they can become better?

There has never been satisfying answer to that fundamental question. Certainly, there is no answer that applies convincingly to every situation. In part, there are consequentialist questions that can only be addressed by making empirical guesses. (How many more people have to die in auto accidents before people will finally say, "Enough!") In line with Mike's recent post on pragmatism (or at least my imperfect understanding of pragmatism), it seems to me that there can be no universal answer. The answer for the automobile industry might be different than the answer for health care, and that's (as Stuart Smalley used to say) okay.

The best case that can be made for the reformist approach to automobiles, I think, is found in Berlin, Germany. I had the good fortune of spending a week in Berlin last year for an academic conference, and I was astonished. A city that is not particularly densely populated (or, in fact, all that large) in a country renowned for its love of fast automobiles has made it possible to live quite comfortably while driving rarely or not at all. Riding in a taxi from the airport during the morning rush hour, I saw no rush hour. People were lined up for trolleys, subways, trams, and buses, all of which arrived frequently. People rode bicycles in well-marked and ubiquitous bike lanes. There were cars, but not many of them. (I admit that I might have happened to miss the bad traffic, but being able to drive from a major international airport to the center of a capital city at 8:30am on a Tuesday morning without seeing heavy traffic is pretty impressive.) Earlier this year, Paul Krugman reported on his recent visit to Berlin, noting the same phenomena.

It is, therefore, at least possible to have a society in which people own and drive cars that is not the environmental and human disaster that cars are in the U.S. It is, it seems to me, thus possible to get automakers to make cars that are a huge improvement on their current models but to get people to drive them less and to want to live in more sustainable neighborhoods and cities. I might be wrong, but it seems worth a try.

-- Posted by Neil H. Buchanan

Big Changes in a Crisis: Automobiles

As I noted last week, the current economic crisis that is deepening in the U.S. and spreading around the world poses not just the immediate challenges involved with economic policy -- assisting those who have lost their jobs and homes, stopping the slide, and putting the economic back on an upward path. It also offers many opportunities to think big, to reconsider in fundamental ways the laws, policies, and expectations that define the way our lives and our economy work. A crisis presents a rare opportunity to shake off the conventional wisdom and to gather the political will to create better ways of doing things. A crisis also, however, by its nature guarantees that many new policies will be rushed into place and thus that they will be flawed and potentially self-defeating. Thinking through these possibly large changes is thus essential to minimize the costs and maximize the benefits of change.

The most salient areas of possible large-scale change that had previously been highly resistant even to small changes include banking and finance, housing, health care, environmental policy, and education. Each of these major public policy areas have come to be thought of as "industries" with entrenched interests that fight fiercely to protect themselves from fundamental change. Nevertheless, all of them are likely to emerge from the current crisis in radically different form. Such a fate also clearly awaits the automobile industry. Today, I will describe some of the opportunities that have suddenly become imaginable as the U.S. auto industry faces the worst crisis in its history. The industry can, and should, change the ways it designs, manufactures, sells, maintains, and disposes of cars and trucks. Policy makers should help to shape those changes, especially given the historical reluctance of the Big Three to change the way they do business.

As of this writing, the Bush administration has promised to divert money that Congress approved for the financial bailout to offer about $15 billion in loans to GM, Ford, and Chrysler, giving them until March 31 to come up with a plan to put themselves on a path to long-run prosperity. The most promising possibility would be to require the auto companies to embrace environmental concerns rather than to continue their unending battles against laws to protect the environment. The product mix is already changing, with large SUV's and pickup trucks finally being replaced by smaller and more fuel-efficient vehicles. More hybrids are apparently on the way, and electric vehicles might finally make serious inroads in the U.S. Certainly the Big Three should be required to agree to serious increases in fuel economy and environmental standards for their cars, rather than (as they have in the past) engaging in scare tactics to convince the public that environmentalists want Americans to drive strange-looking glorified golf carts.

All of this is important, of course, and such changes appear to be under serious consideration. As I suggested recently, however, once the auto makers have manufactured their cars, there is much more that they could do to improve their prospects with car buyers. The way that cars are sold in this country is, in a word, absurd. The entire process of buying a car is insulting and stressful, with car salespeople trained to manipulate and deceive buyers into overpaying for cars. In response to my post about auto sales tactics, one reader posted a link to a fascinating article in which an investigative reporter describes his experiences as a car salesmen at both traditional and "no-haggle" dealerships in southern Calfornia. The stories are both depressing and entirely believable. Another reader whom I know sent an email in which she described her experiences in dealing with car salesmen. (She is a petite, youthful woman, making her an especially enticing target of car salesmen.) Her comments also touch on many of the other problems with the way the Big Three automakers do business:

These [sales] tactics are why I bought a Saturn ten years ago when I was in the market for a car. Meanwhile, though, I brought two young salesmen to the brink of tears as I dickered, the first because he (literally) did not know his oil from his transmission dipstick. I ended up buying from a nice kindergarten teacher at the Saturn dealer. Every time I asked something about the car, she either immediately had the information, or she could get it in less than a minute. She could also tell me the cargo capacity of not only the Saturn I was looking at but also a dozen other similar vehicles. Last year, at 200,000 miles, I threw a rod in my beloved Saturn's engine. I shopped for three days. No car at the same size had the same gas mileage. No dealer wanted to deal; all of them wondered when my husband would be coming in. I ordered a new engine. The car now has 230,000 on it. Most of the parts are original. So, Detroit, what will it take to put me in a new car? Make one that drives as well, as cheaply, as comfortably as my old Saturn SW2. Make sure it gets at least 45 mpg; if you could give me 38 ten years ago, surely you can manage 45 now. Give me exactly the same price you give everyone else. I'll buy the car in a heartbeat. Meanwhile, I'm lusting after a used Saturn I pass on my way to work, same model as my car, that I'm betting has way lower mileage . . . either for replacing my car or cannibalizing for parts.

As humorous as war stories about car dealers can be, this is a serious waste of economic resources. The auto makers -- including the foreign brands -- have to date not dared to fight the dealer networks and their protectors in every state legislature, even though the tactics used by car dealers are a constant source of trouble and expense for the manufacturers (since, understandably, customers blame the abusive tactics of Big Bob's Chevrolet on GM as well as on Big Bob and his minions). Indeed, as the article that I noted above makes clear, the "no haggle" dealers are merely toned down versions of the sleazy norm, continuing to use the same old tactics to sell add-ons, etc. Even on-line sales must go through a traditional dealership in almost every case because of state laws that protect the business model of the car dealers.

The problem, from a business standpoint, is that customers are alienated and angry. Buying a car is such a stressful experience that people put it off as long as they can. While GM would like to build a bond with their customers to increase the likelihood of repeat business, car salesmen and their dealerships are in it for the quick kill. It was, in fact, the traditional dealerships that put huge amounts of pressure on GM to euthanize Saturn. (Although GM has not officially killed off Saturn, they certainly have allowed it to wither and have blown a huge opportunity to build on its early success.) If the Big Three automakers really want to get the people behind them, they could do a lot worse than proposing a complete break with the way cars are sold.

Even more fundamentally, we could ask why people own cars in the first place. As I pointed out here last summer, we need to seriously reconsider the fundamental assumption that individuals should own their residences, and this argument extends to automobiles as well. Current practices and laws make it extremely difficult to lease cars. (For example, despite my best efforts, I have not even been able to find a no-haggle lease.) This makes the family car "the second biggest investment you'll make," which makes no more financial sense in many instances than that biggest investment. People are simply accustomed to thinking that they should own their cars and their houses, even though there is no good reason to do so for many, many people. The inefficiencies of the used-car market are legendary in their own right, and we could pool a lot of risk as well as take advantage of some serious economies of scale by encouraging non-ownership of cars (and houses).

All of this, of course, assumes that we should be encouraging people to have access to cars at all. The more fundamental challenge is to make driving less and less desirable and necessary, through better regional planning and investments in rail, etc. As we attempt to do so, however, there is no reason to squander this opportunity to require auto makers to improve both the cars they make and the ways we buy and rent them.

-- Posted by Neil H. Buchanan

Be Nice to Your Friends

At the end of my post yesterday about the Rick Warren controversy, I noted in very general terms that Barack Obama could (and should) pay a price for alienating those among his core supporters who support gay civil rights -- or, indeed, anyone who finds Warren's views on a whole range of issues scary. Obama has spent some of his political capital by making this controversial choice, and he has lost the benefit of the doubt when he inevitably needs help from these supporters in the future. I concluded: "Moving forward, the lesson to be learned is that those who want something from Obama should expect something big from him first, given the way he has treated those who supported him without a quid pro quo and who simply expected much better from him." We have recently learned to our dismay that trust matters in the financial markets, and Obama may well learn a similar hard lesson about law-making during his time in office.

One might argue, however, that there is no downside risk to Obama in making this decision. His pro-gay-civil-rights supporters -- as well as his pro-women's-rights supporters, his pro-science supporters, and his supporters who generally believe in the separation of church and state -- have nowhere to go (since voting Republican is not a serious option for those who care about any of these issues). Besides, the next election is a long way away and this is all about meaningless symbolism anyway. Even if the only consequence of presidential decisions were its effects on elections, however, this analysis is clearly incomplete. The standard approach to analyzing these decisions, after all, makes clear that one must take into account the risk of alienating supporters so much that they stay home from the polls, choose not to volunteer to work on campaigns, and refuse to donate money to a candidate. Maybe Obama is simply calculating that the odds of losing supporters is more than compensated by the odds of gaining ground among religious voters. As I noted yesterday, he might turn out to be right; but he is taking a very big risk.

Even if one looks at this as nothing more than cold political calculus, however, this analysis leaves out a very important way that presidential decisions -- even (especially?) symbolic ones -- can blow back on the president. The phenomenon is partly captured in the famous line (attributed alternatively to Wilson Mizner or Jimmy Durante): "Be nice to people on your way up because you might meet 'em on your way down." Applied to this context, the point is that Obama is going to have some rough times in his presidency, and at those times he will need the support of the people who supported him from the beginning. Facing a record-setting recession that could well become a depression, Obama's currently high approval ratings will surely fall, Republicans in Congress will oppose his initiatives, and Obama will need to rely on a core of devoted supporters to push back against his opposition. Will the Warren devotees whom Obama hopes to attract stick around when Obama's popularity starts to tumble? "Last in, first out" is not just a concept in inventory management but a staple of political life. You need to be able to count on your real friends.

As Paul Krugman put it in his column yesterday (which was not about the Warren controversy but is quite relevant nonetheless): "[T]he Obama administration and Democrats in general need to do everything they can to build an F.D.R.-like bond with the public. Never mind Mr. Obama’s current high standing in the polls based on public hopes that he’ll succeed. He needs a solid base of support that will remain even when things aren’t going well." Emphasizing the importance of symbolism, Krugman added that he could not have been "the only person who winced at reports about the luxurious beach house the Obamas have rented, not because there’s anything wrong with the first family-elect having a nice vacation, but because symbolism matters, and these weren’t the images we should be seeing when millions of Americans are terrified about their finances."

I should add that the need to have a core of enthusiastic supporters will become obvious not just when things get tough but early on in Obama's presidency. He will need to score early "achievements," and Republicans will want to deny him those achievements for purely political reasons. Having energized supporters who are willing to write letters to the editor, call in to radio shows, write blog entries, and generally push back against the right-wing echo chamber will be essential to Obama early and often. I concede that, individually, I am not a particularly good indicator of anything. Still, given that I am now much more inclined to criticize Obama and to stop giving him a pass on policy and appointments issues, my tiny corner of the blogosphere has become very much less hospitable to Obama. (I will, for example, soon write one or more posts describing why Obama's cabinet appointments do not bode well for policy. I would have been much less inclined to take the time to do so if I still believed that the guy at the top had his basic priorities in order.) When things get tough for Obama, I -- and I suspect many others -- will be hard pressed to find the enthusiasm to come aggressively to his defense (even when I agree on the substance of a policy question). This is not a matter of spite but simply the inevitable consequence of a loss of trust and respect. It is difficult to summon the energy to support someone who has shown that he views you as expendable.

The idea that those who are offended by the Warren selection "have nowhere else to go" is, therefore, reductionist in the extreme. Not only can Obama's shaken supporters who are disturbed by the Warren invitation go home rather than to the polls on election day, but they can go back to watching TV or reading a book when Obama needs their support in any particular legislative battle. At the very least, Obama has made his life more difficult, because he has squandered the most precious of political commodities: trust.

-- Posted by Neil H. Buchanan

Betrayal, Part Two

On Monday, I decried Barack Obama's invitation to Rick Warren to give the invocation at the presidential inauguration on January 20, describing Obama's decision (twice) as "appalling and stupid." In off-list emails and on the comments board, readers have raised a number of questions exploring Obama's decision and the public reaction to it, ranging from the question of whether this is a betrayal at all to the suggestion that this is not even Obama's biggest blunder to date. Here, I will explain why the Warren invitation is uniquely deplorable, add a few comments about Warren's views, and suggest the best response to Obama's decision as his presidency unfolds. In a future post, I will discuss why I think this decision is categorically worse than his other poor decisions to date.

I continue to be stunned by Obama's extremely poor judgment in giving such a prominent position to a politically active minister whose positions on a range of issues are so at odds with Obama's views and those of most of Obama's supporters. Even so, some have suggested that Warren is a different kind of fundamentalist preacher who is not as intolerant as he seems. (High praise, indeed.) Even Melissa Etheridge, the singer and gay civil rights activist, has written in support of Warren, saying that Warren "regretted his choice of words in his video message to his congregation about proposition 8 when he mentioned pedophiles and those who commit incest. He said that in no way, is that how he thought about gays." Unfortunately, Warren has changed direction again, posting a video last weekend on his website in which he explicitly denied ever having drawn such comparisons, despite video evidence to the contrary.

Still, Obama himself has publicly stated that he also opposes gay marriage, right? If so, why is it so surprising that he would invite a fellow believer in "traditional marriage" as his spiritual voice at the inauguration? One answer is that, although Obama has not come out in favor of gay marriage, he did oppose Prop 8 in California. His supporters who are in favor of gay marriage thus were silent both on Obama's decision to state publicly that he opposes gay marriage and his decision not to campaign actively against Prop 8. In other words, those who are now upset with Obama are not asking for the moon and stars. They have already accepted that he felt he had to distance himself from them for "pragmatic" and "post-partisan" reasons. What I suspect they did not anticipate was an affirmative choice on Obama's part -- not prompted by the exigencies of a campaign with swing voters at stake -- that pours salt on the major wound from the election results. No one expected Obama's first official act to be officiating over a mass gay wedding on the White House lawn. One might, however, have expected Obama to understand that you do not kick some of your most ardent supporters when they are down.

On the other hand, many Obama supporters do not support gay marriage. Why should their views not be reflected in Obama's choice? First, this did not need to be an either/or choice. While I agree with those who find the whole notion of a religious invocation at a government event troubling, there really are ministers, priests, rabbis, imams, and others whom Obama could have invited for whom gay marriage would not have been a salient issue and whose public positions are inclusive rather than divisive. As a minister's son who is no longer religious, I continue to appreciate religious leaders who can give public prayers that are ecumenical and humanistic and whose public profiles match their rhetoric. Obama went a different way.

Furthermore, as I mentioned in my post on Monday, gay rights and gay marriage are the current great civil rights battle facing this country, putting President-Elect Barack Obama in a uniquely important position from which he can and should lead people to change their views about gay civil rights. Obama often invokes President John F. Kennedy as a role model. When Kennedy was running in 1960, the question was whether people could vote for a Roman Catholic to be president. Many of those who did vote for Kennedy surely opposed civil rights for African-American citizens, yet Kennedy did not say, "Well, my supporters oppose racial justice, so I'll leave that one alone." He not only did not invite an openly racist religious leader to give the invocation at his inauguration, but he was a leader on civil rights issues. One of the reasons I supported Obama was because I thought that he would know when to lead. He could still prove me right, but this is a very bad beginning.

Moreover, the objection to Warren need not be limited to (or even be principally about) his views on gay marriage. As I pointed out on Monday, he views homosexuality as something that people must "repent" before they can join his church. That is his choice in determining his church's rules, but it certainly puts him in league with the Robertsons and Falwells of the world and not with many, many other religious leaders whom Obama might have chosen. Warren also has described people who are pro-choice as "Holocaust deniers" and says that he differs only in "tone" from the most extreme leaders of the Christian Right such as James Dobson. Warren's views on women, moreover, include the "traditional" notion that wives must be completely subservient to their husbands; and spousal abuse does not -- repeat, does not -- constitute grounds for divorce in Warren's world.

Given all of this (and more), it is truly shocking to imagine that Barack Obama would make this decision. To repeat, the depth of my disappointment is not due to Obama's many choices to marginalize gay civil rights issues. Sadly, current political realities still make it suicidal for politicians to be in favor of gay marriage and to be "too open" about one's support of gay rights. The problem is that Obama made an affirmative choice, under no political pressure whatsoever, to pass over the whole range of inclusive religious leaders in this country and to choose someone whose very presence in the inauguration will make many of us feel less joy at this historic occasion.

Maybe Obama knows all of this yet chose to extend the invitation to Warren for purely consequentialist reasons. Warren did Obama a favor during the campaign by inviting him to a forum at Warren's church, and now Obama is doing his "friend" a favor in return. If so, then Obama has no sense of proportion, paying back Warren at, shall we say, usurious rates of interest. On the other hand, the liberal columnist E.J. Dionne suggested earlier this week that Obama's decision is not merely pay-back for a campaign favor but a down payment on getting Warren's support on issues such as anti-poverty programs and, more generally, a first step toward peeling away some religious voters from the Republican Party. If so, Obama has made a very big down payment, giving a key symbolic role to someone whose views on a wide range of issues are completely at odds with Obama's stated views.

That gamble could pay off. If it does, many who are currently in shock and disbelief will at least have to decide whether this cost-benefit approach to symbolic issues tips in favor of Obama's choice. In the meantime, however, Obama has lost the benefit of the doubt. He has shown that he takes his supporters for granted and is willing to insult them in the name of reaching out to those whose support he desires. Moving forward, the lesson to be learned is that those who want something from Obama should expect something big from him first, given the way he has treated those who supported him without a quid pro quo and who simply expected much better from him.

-- Posted by Neil H. Buchanan