January 2006

The Alito Nomination: What Kind of Justice?

Who was the elephant NOT in the room?

Friday, January 13th, 2006

Chief Justice John Roberts and future Justice Samuel Alito probably mean a more conservative Supreme Court. But it probably doesn’t mean a stream of clear-cut conservative breakthroughs on abortion, affirmative action, school prayer or even flag burning.

The future of constitutional rulings on those and other hot button issues will be determined by two words: Anthony Kennedy.

That’s an oversimplification of course. But it seems likely that on a number of issues, there will be four conservatives, four liberals and there will be Justice Kennedy. Unlike Roberts and Alito who went to lengths to leave the world guessing about how they will rule, we know a lot about what Anthony Kennedyism means because he has already faced these issues as a justice.

It means Roe v. Wade isn’t overturned, but partial birth abortion is banned and other abortion restrictions are accepted.

Affirmative action is more constrained but not ruled unconstitutional. State-sponsored displays of religious symbols are more likely to be tolerated, but the ban on school prayer is not overturned. Burning a U.S. flag to protest, and viewing pornography on the internet continue to be constitutionally protected activities but McCain-Feingold-type regulations on political campaigning are vulnerable to First Amendment challenges.

On the first day of the Alito hearings, Sen. Joseph Biden, D.-Del., said that the “elephant in the room� was the question of whether Alito would cast the decisive votes to reject the direction in which the Supreme Court has been going for the past 70 years.

Over the next two and a half days, Alito endorsed some of those precedents
(Brown v. the school board, one-person, one-vote, and the Constitutional right of privacy, at least as far as the contraception cases.)

Alito also danced artfully around senators’ efforts to commit himself on some other precedents, most especially relating to abortion. This is the current state-of-the-art strategy for confirmation, and it appears to be working well.

The intensity of the pro-choicer campaign against Alito leads one to forget that there are still five votes to affirm Roe, and that on many of the issues liberals care about, Kennedy has affirmed the basic Warren Court breakthrough rulings.

Depending on the the health of Kennedy and the four liberals, and the outcome of future elections, the stakes simply may not be as high as Biden’s elephant’s eye. (That was an elaborate conflation of the previous reference with a corny lyric from “Oh What a Beautiful Morning.” Ask your parents.”)

If Roberts and Alito turn out to be solid allies of Scalia and Thomas, if the liberals stay together and stay well, and if Kennedy sticks with his established positions, that means:

•Roe v. Wade is not overturned. Kennedy and the four liberals have already rejected that idea. But the congressional ban partial birth abortion is upheld. Kennedy already voted to uphold it once before. And other restrictions on abortion rights will be accepted.

•Affirmative action is not ruled unconstitutional at its core. Scalia and Thomas have indicated a willingness to strike it down completely. But Kennedy declined to join those opinions.

On the other hand, colleges and universities will have an even rougher time figuring out how to construct a constitutional affirmative action program. In 2003, Justice O’Connor joined the four liberals in upholding the University of Michigan Law School’s admissions program, which claimed to have found a way to act affirmatively without explicit quotas or race-based point systems.

Kennedy and the conservatives formed a four-member bloc that didn’t buy it. Quite likely, if a similar question makes it to the court, Kennedy will cast the decisive vote.

•State-sponsored displays of religious symbols, like the 10 commandments, are more likely to be tolerated when Kennedy’s becomes the key swing vote. But the breakthrough Warren-era decision, banning school prayer, will not be overturned. Kennedy has already endorsed that precedent.

•Kennedy’s free speech jurisprudence has a strong libertarian streak. That has helped liberals construe the burning of a U.S. flag by protesters and viewing pornography on the internet as constitutionally protected activities under the First Amendment.

But Kennedy’s libertarian streak made him leery of McCain-Feingold-type regulations that restrict political advertising in the name of campaign finance reform.

The next time those issues roll around, Kennedy may provide the fifth vote necessary to strike down those regulations on First Amendment grounds.

Could the president attack Iran tomorrow?

Thursday, January 12th, 2006

The Constitution (Article I, sec. 8. clause 11) gives Congress the power to declare war and makes the president commander in chief (Art. II, sec. 2., clause 1).

Sen. Biden asked Alito this morning about the war powers issue. Could the president start a war tomorrow against Iran or Syria without prior congressional approval? He didn’t get an answer.

Biden quoted a recent book by Law Professor John Yoo who, according to Biden, argues that the congressional power to declare war is in the Constitution only in case Congress wants to start a war that the president opposes. Yoo, a former Bush Justice Department official, is the leading current advocate of an almost unlimited presidential power in war matters, but I’m having trouble believing that Biden characterized that view accurately. It’s too bizarre.

The original understanding of the framers and ratifiers in this area is fairly clear. If the United States was attacked, the commander in chief could defend. Otherwise, it was up to the Congress to decide, in advance, whether a war was justified.

Thomas Jefferson wrote that the framers had “given an effectual check to the dog of war by transferring the power of letting him loose from the Executive to the Legislative body.�?

The early presidents, including Washington, who chaired the Constitutional Convention, and “Father of the Constitution” James Madison, accepted Congress’ pre-eminence in war powers. As late as 1859, President James Buchanan conceded that “Without the authority of Congress, the President cannot fire a hostile gun in any case except to repel the attack of an enemy.”

As a young Whig congressman, Abraham Lincoln opposed the Mexican War, which President James K. Polk provoked in a transparent (and breathtakingly successful) effort to conquer Mexican land.

Polk claimed that he sent troops into disputed territory to head off an expected attack from the Mexican side. Lincoln’s law partner, William Herndon, thought the president was justified in such circumstances if he believed he was acting to pre-empt an attack.

In a fabulous, eloquent letter back to Herndon, Lincoln replied that if the president had such power, and if it was solely up to him to decide whether an attack was imminent, there was no check at all on the ability of the president to start any war, any time, any place. He also gave his understanding of the Constitiutional question:

“The provision of the Constitution giving the war making power to Congress was dictated, as I understand it, by the following reasons: kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object. This our convention understood to be the most oppressive of all kingly oppressions, and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us. But your view destroys the whole matter, and places our President where kings have always stood.�?

The constitutional war provisions have never been amended, but they have long since stopped being taken seriously. Congress has declared war five times (including, by the way, the Mexican War, but not until after Polk had commenced it).

But U.S. troops have engaged in hundreds of foreign adventures, all of them initiated by presidents, and dozens of them being pretty deep into anyone’s understanding of the world “war.�?

Some, including the current war in Iraq, began after Congress had passed a resolution, short of a formal war declaration, that could be interpreted as authorizing the president to initiate hostilities.

But many of them have had no prior congressional action. And the position of recent presidents, including President Bush in the Iraq case, has been that while they would welcome congressional authorization, they could act without it under their command-in-chief powers.

An argument might be made that the original understanding has become impractical because of changes in the technologies of war or changes in the U.S. role in the world.

But those who believe that Constitutional language had a knowable, enduring meaning, rooted in original understanding of those who wrote and ratified it, are supposed to have a problem with this kind of evolutionary view of what the Constitution means in different times.

In theory, a conservative judicial philosophy is not just a way of justifying conservative policy preferences. But in many cases, including the most famous and contentious current ones, it would.

The war powers is interesting because it tends to cut the other way, because the constitutional text and the historical evidence is unusually strong, and because the stakes are so high.

I’ve been generally disappointed about the lack of coherent focus, during the Alito hearings so far, on the philosophical and historical questions.

So I perked up when Biden raised the war powers question to Alito. The exchange went nowhere. Alito said the Constitution “gives Congress the power to declare war, and obviously that means something.�? But he didn’t say what.

Is it all about abortion?

Wednesday, January 11th, 2006

Article II, Sec. 2 of the Constitution, establishing the appointment power of the president, says:

“He shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States.”

A couple of things to note about it:

1. No distinction between Supreme Court appointments and other presidential appointments.

2. No guidance whatsoever of the basis on which senators should give or withhold their consent.

People make all kinds of statements about the proper criteria by which senators should evaluate judicial nominees. But it’s really up to each senator to decide.

Sen. Lindsay Graham made an impassioned plea to his colleagues this afternoon not to base their votes for judicial nominees on abortion politics or abortion jurisdprudence.

He at least implied that if this becomes the new norm, it will be the Democrats’ fault. Ruth Bader Ginsburg was an out-of-the-closet Roe v. Wade supporter, and she was nominated to replace Justice Byron White, who had voted against Roe, Graham said. But Ginsburg was confirmed by 96-3.

Here are the last 10 votes on confirmation of Supreme Court nominees.

2004: John Roberts (for Chief Justice): 78-22.
1994: Stephen Breyer: 87-9.
1993: Ginsburg: 96-3.
1991: Clarence Thomas: 52-48.
1990: David Souter: 90-9.
1988: Anthony Kennedy: 97-0.
1987: Robert Bork: (defeated) 42-58.
1986: William Rehnquist (for chief): 65-33.
1986: Antonin Scalia: 98-0.
1981: Sandra Day O’Connor: 99-0.

What do you think? Has Roe been dominating the voting? Are there other explanations for the big “no” votes on Bork, Thomas and Rehnquist? (By the way, Rehnquist was originally confirmed as an associate justice in 1971 by 68-26, and that was before Roe.) What weight can you attach to the unanimous Kennedy vote and the lopsided Souter vote, since their abortion position wasn’t known at the time?

If you were a senator, would you vote for a nominee whom you thought had the opposite of your personal Roe position?

Was the court’s greatest decision a case of judicial activism?

Wednesday, January 11th, 2006

Good morning fellow seekers of wisdom and truth,

This morning, Judge Alito endorsed the Supreme Court’s 1954 ruling in Brown v. the Topeka School Board. In that case, the Supreme Court ruled unanimously that the “equal protection” clause of the 14th amendment meant that public schools could not be segregated by race.

Alito didn’t just accept it or described it as a precedent, deserving of respect. He described Brown as among the greatest, and possibly the single greatest thing that the court had ever done. And it is.

But the Brown ruling also violated at least three of the main pillars of conservative judicial philosophy – judicial restraint, stare decisis and originalism.

In Brown, the court went further than it had to go to decide the case before it, overruled elected state and local authorities, set aside a precedent (Plessy v. Ferguson, 1896) that had stood for 58 years, and disregarded powerful evidence that those who wrote and ratified the 14th Amendment did not believe that it required integrated schools.

(The Congress that wrote the 14th Amendment simultaneously operated a segregated school system in the District of Columbia. Many states, northern and southern, ratified the 14th amendment but continued segregating their schools.)

Sen. Richard Durbin, who favors Roe v. Wade, brought up the Brown case to help him establish that Alito can find in the Constitution rights not expressly mentioned in the text. It got him closer to pressing Alito on the question of whether the unexpressed right to privacy (which Alito also endorsed) includes the unexpressed right to choose an abortion. Alito got through the exchange without committing himself on that last question.

Sen. Sam Brownback, who wants Roe overturned, brought up Brown so he could bring up Plessy so he could demonstrate that bad precedents, which are “repugnant” should be overturned. Alito agreed.

No one went near the historical problem of the original understanding, because it didn’t suit anyone’s agenda to do so. But what if a principled application of judicial restraint, originalism and stare decisis means that we shouldn’t have Brown?

How equal should they be?

Tuesday, January 10th, 2006

Sen. Herb Kohl is dull as dishwater, but I got more out of his round with Alito than anything to date. Kohl asked short, direct questions. He walked Alito through a number of the more controversial statements attributed to him and gave Alito a chance to answer fully without much senatorial backchat.

I also thought Alito gave one of his least convincing answers on the under-discussed, issue of reapportionment, although as with all of the issues raised so far, he seems to have skirted one of the most potentially explosive issues around his confirmation, unless someone comes back to it.

In his 1985 application letter, Alito wrote:

“In college, I developed a deep interest in constitutional law, motivated in large part by disagreement with the Warren Court decisions, particularly in the areas of criminal procedure, the Establishment Clause, and reapportionment.” Focus on the last word.

Here’s some background on reapportionment:

In 1962, Tennessee’s legislative districts had not been redrawn for 60 years, which resulted in some districts having more than double the population of others, which meant that the votes of some citizens had more than double the impact on legislative actions as others.

In the 1962 Baker v. Carr case, the Supreme Court enunciated the famous “one man, one vote” principle (since updated to “one person, one vote.”) In a followup 1964 ruling, Reynolds v. Sims, the court clarified that, within practical limits, “equal protection” and “one man, one vote” meant that legislative districts should have equal numbers of voters.

Alito’s hero?

Justice John Marshall Harlan, who has been described in some of the Alito profiles as a special hero of his, dissented on both rulings. In Baker, Harlan called the one-man, one vote ruling “more an adventure in judicial experimentation than a solid piece of constitutional adjudication.”

In his dissent from Reynolds v. Sims, Harlan wrote: “The Constitution is not a panacea for every blot upon the public welfare, nor should this Court, ordained as a judicial body, be thought of as a general haven for reform movements.”

In the Washington Post excellent two-part profile,
Alito’s long-time friend and former colleague Douglas Kmiec identified Harlan’s dissent as one of Alito’s favorites.

Everything lines up behind the idea that Alito’s invocation of his disagreement with Warren Court rulings on apportionment refers to his preference for Harlan’s dissents over the majority opinions.

Harlan’s dissents were rooted in originalism, judicial restraint, and respect for precedent, all principles that Alito presents as vital to his philosophy.

But when Kohl asked Alito about his 1985 remark about apportionment, he said that the principle of one-person, one-vote is “very well settled law” and that he never had a problem with it. He suspects that he was not reacting to the Baker v. Carr idea that legislative districts should be of equal population but only to the Reynolds v. Sims idea that that they had to be almost exactly equal.

Alito has distanced himself from many views expressed in that letter, saying they were his opinions as a younger man (he was 35) with a different job description (he was a government lawyer, seeking a promotion). But in the matter of the apportionment comment, he doubled the distance. His disagreement with Warren Court rulings were not necessarily opinions he held even in 1985, he said. That the sentence in the application letter refers to opinions he held as a college student when he first developed his interest in constitutional law.

Tuesday, January 10th, 2006

Related Content


Text of Alito’s opening statement


Alito pledges open mind on abortion


A guide to the Alito hearings


What is a conservative judicial philosophy?


Alito seen as smart, serious

How open is his mind?

Tuesday, January 10th, 2006

Good afternoon fellow seekers,

This goes against 30 years of indoctrination as a journalist, but as an experiment I’m just going to let fly with reactions to the morning’s hearings. Comment on anything you like.

Chairman Arlen Specter went right after abortion. The fact that the he’s a pro-choice Republican creates one the interesting internal dramas.

Specter runs the risk of coming across as if he is actually lobbying for his “super-precedent” approach to the Roe and Casey rulings. He got Alito to say that he would approach Roe with an “open mind.” Big whoop. What a surprise, since he has already said that judges need to have an open mind about every case and since it would have been truly amazing if he had said anything different. TV types seized on it. I guess they need something that looks dramatic on the crawl.

I admire Specter’s directness and the fact that he asked reasonably short questions and let Alito speak. On the other hand, he often interrupted so he could move onto the next question. The rudeness of that was offset by the fact that he seemed to correctly sense the point at which everyone knew what Alito’s answer to the previous question was and could finish it in their own minds.

Alito did endorse the original privacy rulings, (starting with Griswold v. Connecticut,, 1965) which discovered a general privacy right that extended protections not specified in the Constitution. It wasn’t really surprising. Every post-Bork nominee has done the same. But it was nonetheless an important moment, since it created some distance between Alito and the hard-core originalist-textualists.

I’m not sure I see the principled basis on which you can endorse Griswold and then issue a no-comment on Roe. Maybe we’ll find out later.

Sen. Patrick Leahy tried to make something of the Concerned Alumni of Princeton. Alito clearly wants to distance himself from the group’s more extreme views. He claims he doesn’t even remember belonging to CAP, but he’s stuck with the fact that he mentioned his membership in the famous 1985 application letter. So his answer is that he’s trying to imagine why he might have joined. It strains credulity, but probably limits the damage from that association unless someone comes up with evidence that Alito was a seriously active member and show that he did anything other than membership that associates with some of the group’s more extreme positions.

Sen. Orrin Hatch gives the impression that he is Alito’s defense attorney or campaign spokesman. He asks soft questions and practically prompts Alito on the politically-correct answers, then acts like he’s actually hearing something surprising/interesting. Strikes me unseemly.

Sen. Edward Kennedy goes after the Vanguard non-recusal. Alito admits that it was his mistake, explains what he did to make up for it (asked the whole case be reargued with him out of the picture). If it’s true, as Alito says and no one seems to challenge, that Alito had nothing to gain in the case, the effort to undermine Alito on ethical grounds will go nowhere.

Sen. Charles Grassley’s approach is the same as Hatch’s. Puff questions, obvious answers that add nothing, as in:

Grassley: Judge Alito, do you believe the executive should have unchecked authority.
Alito: Absolutely not.
Grassley: Do you believe the president of the United States is above the law?
Alito: No man is above the law.
Stop the presses.

Sen. Joseph Biden seems not to understand that yesterday was his day to give a speech (which I thought was a good one) and today is the day to ask questions and let Alito answer them.

I didn’t have a stopwatch on him, but Biden talked for several minutes (I’d say more than five, maybe 10!) before getting to anything remotely resembling a question or allowing Alito to make his first utterance. Then once the exchanges began, he was quick to interrupt and slow to get to his next question. If anyone out there has a videtape of this, I’d like to know what portion of Biden’s 30-minute turn featured Alito speaking. Whom is this helping?

The biggest issue of the morning, which came up with several of the senators, is what Alito has meant when he has endorsed the concept of the “unitary executive.” The Democrats seem to think it means Alito believes the president can do anything he wants. Alito seems to be saying that all he means by it is that the president, as the elected leader of the executive branch, IS the executive branch, at least in the sense that everyone in it works for him and is supposed to follow his orders. That might raise some iffy questions when you get into the realm of executive agencies that are supposed to more or less independent (like the FDA when it is reaching a scientific conclusion about a drug). If Alito can establish that it only means whathe said, it’s a lot less explosive.

A related matter of executive overreaching that came up several times is the statement Pres. Bush made when he signed the recent ban on torture, in which he seemed to saying that he might interpret his way around the clear meaning of the law. That story deserved more play than it got.

I need to do some more reading up on this, but Alito has apparently said in some setting that in interpeting a statute the “understanding” of the president when he signs the law is as important as the understanding of the senators and congressmen who voted for it. Watch for that issue to return.

How much does anything that happened this morning matter? I’d be surprised if many senators heard anything that will cause them to rethink their pre-hearings feeling about Alito. As expected, he does appear to be following the Roberts model in general. He hasn’t been pressed very hard on what to do when precedent points one way and originalism points the other.

Whoops, they’re back in session.

Did I forget to take my cynicism pill?

Monday, January 9th, 2006

Good morning fellow seekers of wisdom and truth.

I’m sure there’s plenty of ways to be cynical about the opening day of the Alito hearings.
But I heard about 80 percent of it and it struck me as (here’s where I blow any credibility I might have) civil, dignified and (forgive me) interesting.

It’s true that there was a transparent second meaning to almost every sentence uttered. But it was so transparent, that it was hard to consider it dishonest in any important sense.

Basically, within the unwritten rules of the game that require everyone to say that they have an open mind, and that they aren’t asking for commitment to vote in a particular way on a particular issue, the senators telegraphed some of the issues they will pursue, starting today when they get to question the nominee.

And, although abortion was well represented in the mix, it did not dominate the way it often dominates news coverage of Supreme Court appointments. A concern among Democrats about unbridled executive power emerged as a strong portent. The judge will also be asked to expand on previous remarks about affirmative action, church and state, whether he is too sympathetic to corporations and not sympathetic enough to individual rights, and whether he favors the principle of one-person-one-vote.

When I’m in my normal-cynical-journalist mode, listening to Sen. Joseph Biden, sometimes makes my teeth hurt. But I thought the Delaware Democrat did a good job of framing the Big Question when he said the hearings would be about whether Alito would provide the decisive vote to reverse the past 70 years of Supreme Court jurisprudence.

Biden, at least, sees that body of decisions as containing important individual rights. And he didn’t bother pretending that the rights had always been there.

Biden: “I believe that at its core we have a Constitution – as our Supreme Court’s first great Chief Justice, John Marshall, said in 1819 – and I quote, ‘intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.’
At its core, our Constitution envisions ever increasing protections for human liberty and dignity for all people.”

Alito didn’t reply to Biden, although he will soon enough. But Sen. Orrin Hatch, Republican of Utah, spoke for the idea that the Constitution has a fixed meaning, that a judge can determine that meaning and is bound to interpret the text that way even if it doesn’t meet Biden’s test of expanding dignity and liberty.

Hatch: “A judicial decision can be entirely correct even when the result does not line up with our preferred political positions.”

Alito sat poker-faced, listening to senators warn him what they were going to ask him about, and hinting broadly about the answers they hoped he would give.

Alito’s turn, in translation

When his turn to speak finally came, Alito was respectful, brief, biographical, and non-confrontational. But, like the senators, he telegraphed answers he will develop when they ask him the questions they telegraphed Monday.

Interpreting freely, the answers foreshadowed went something like this:

For those who plan to accuse me of favoring power and privilege over ordinary people, I refer you to my life story and family history, including the part about how my immigrant father was spared a life of factory work by a $50 scholarship “that was enough in those days for him to pay the tuition at a local college and buy one used suit.”

For those who plan to press me about statements I made in my now-famous 1985 letter expressing unabashedly conservative views, including the view that Roe v. Wade should be overturned, I will remind you that I was a government attorney then, and I refer you the portion of my statement in which I explained that:

“The role of a practicing attorney is to achieve a desirable result for the client in the particular case at hand. But a judge can’t think that way. A judge can’t have any agenda, a judge can’t have any preferred outcome in any particular case…The judge’s only obligation – and it’s a solemn obligation – is to the rule of law.”

For those who will press me to indicate how I might rule in hypothetical future cases, I will reply that I won’t know until I study the case itself and I refer you to that portion of my opening statement in which I said:

“Good judges develop certain habits of mind. One of those habits of mind is the habit of delaying reaching conclusions until everything has been considered. Good judges are always open to the possibility of changing their minds based on the next brief that they read, or the next argument that’s made by an attorney who’s appearing before them, or a comment that is made by a colleague during the conference on the case when the judges privately discuss the case.”

What do you think?

Is the whole thing so scripted and the outcome foretold? Is it all politics or is there some chance that a poor slob who listens to all nine hours today might learn anything about whether there’s any such thing as a principled method of interpreting the Constitution?

Uh-oh. Better post now. I feel the cynicism starting to kick back in.

Is the Constitution covered by the theory of evolution?

Saturday, January 7th, 2006

Good morning fellow seekers of wisdom and truth.

If you’re new to the Big Question, this is the second round of a startribune.com blog in which we discuss Big Questions related to big stories in the news. The results of Round One, in which the question was: “Iraq’s Election: Is It a Turning Point?” are still available below. But this week, I’ll be making fresh posts about the Samuel Alito nomination here.

The stories here and here were published in the Sunday Star Tribune as a curtain raiser to the hearings and to kick off this online discussion. (Except the online version of the stories includes all the good stuff that was edited out to save space. Hee hee. This blogging thing is fun.)

Feel free to respond to anything in either article. The management implores you to keep your comments civil and substantive. And if there are Alito-related questions you would like me to pursue as a reporter, please suggest them. (No guarantees.)

The new Big Question: “The Alito Hearings: What Kind of Justice?” has a double meaning.

Meaning one: What kind of Supreme Court justice might Alito make? Meaning two: What kind of justice do we want from our high court, and, especially in constitutional cases, how do want them to interpret the supreme law of the land?

If the Constitution is an evolving document, is there a way for Supreme Court justices to discover its currently-evolved meaning that is anything other than what they think it should mean?

If we want justices to be constrained by the meaning of the Constitutional text at the time of its adoption (or the adoption of amendments) how confident are you that this meaning can be reliably discovered?

How free are the justices to read the history in whatever way enables them to find the meaning they want?

If, while we’re waiting for the Alito testimony to generate some fresh discussion of these issues, you need some grist to get the conversation started, try milling (or mulling) these two quotes in which two court titans, one a famous liberal, the other a leading conservative, address the theory of Constitutional evolution.


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