The Supreme Court today heard arguments in an as-applied challenge to McCain/Feingold’s ban on “sham issue ads” by corporations within 60 days of an election. The oral argument transcript is here.

Preliminary reports suggest that this is one area where the replacement of Sandra Day O’Connor by Samuel Alito may well make a huge difference. Justice Kennedy was already on what I view to be the correct side of the issue — namely, that such ads are core political speech that cannot be banned by Congress. Only Justice O’Connor stood in the way of a correct result the first time around — the good guys (pro-free speech and anti-McCain/Feingold) lost by her one vote. The replacement of O’Connor by Alito may well be critical, then — or so the commentators are saying.

I hope they’re right. Alito was quiet for most of the argument — he pipes up for a few questions around pages 23-25 of the transcript.

Long-time readers know that I consider the BCRA, and in particular the issue-ad bans, as egregiously unconstitutional restrictions of free speech. Hopefully today marks the beginning of a return to sanity on this issue.

Democrats have “rebuked” Rudy Giuliani for these remarks on terrorism on the Sean Hannity show:

Here is the thing that the Democrats do not get and all these attacks and the things Harry Reid is doing and the Presidential candidates indicate. They do not seem to get the fact that there are people, terrorists in this world, really dangerous people that want to come here and kill us. That in fact they did come here and kill us twice and they got away with it because we were on defense because we weren’t alert enough to the dangers and the risks. … They want to take us back to not being as alert which to me will just extend this war much, much longer.

Leading Democrat contenders claimed that Giuliani was trying to turn terrorism into a partisan issue, by suggesting that Republicans have a better strategy for fighting terror. Also, they said, Democrats have a better strategy for fighting terror.

Here’s John Edwards arguing that it’s just wrong and partisan for Republicans to suggest that their terrorism-fighting policies are better:

Former North Carolina Sen. John Edwards said Giuliani knows better than to suggest there is a “superior Republican way to fight terrorism.”

Also, Edwards noted, there is a superior Democrat way to fight terrorism, as opposed to the Republican way, which is bad and has made us less safe:

“The current Republican administration led us into a war in Iraq that has made us less safe and undermined the fight against al-Qaida,” Edwards said in a statement. “If that’s the Republican way to fight terror, Giuliani should know that the American people are looking for a better plan.”

Here’s Obama, solemnly pontificating that this should not be a partisan issue:

Illinois Sen. Barack Obama said Giuliani, who was in office on Sept. 11, 2001, should not be making the terrorist threat into “the punchline of another political attack.”

“Rudy Giuliani today has taken the politics of fear to a new low and I believe Americans are ready to reject those kind of politics,” Obama said in a statement.

Obama then turned the terrorist threat into the punchline of another political attack by suggesting that Republican policies have made us “less secure”:

“America’s mayor should know that when it comes to 9-11 and fighting terrorists, America is united,” Obama said. “We know we can win this war based on shared purpose, not the same divisive politics that question your patriotism if you dare to question failed policies that have made us less secure.”

Democrats would sound less silly if they were to get it through their heads: how we deal with the threat of terrorism is not just a legitimate issue for 2008, it’s one of the top legitimate issues. If you’re going to oppose every terror-fighting tool the Adminstration has pursued, and chastise Republicans for allegedly making us less safe, then you’re making a political argument based on terrorism, too. So don’t clutch your pearls when someone like Rudy plainly says that electing Democrats is going to put the country on defense.

If you disagree with that argument, Democrats, then by all means: attack it head on. But quit whining about the fact that it’s a campaign issue. It just is, so deal with it.

In a new post, Prof. Geoffrey Stone backtracks from his earlier assertion that Catholicism, and not legal principle, was behind the majority decision in the partial-birth abortion case. Stone now suggests that he was merely posing the question:

I also acknowledge that the fact that all five Catholic Justices voted together in this case to make up the 5-to-4 majority might have nothing to do with their religion. These five Justices often vote together on matters having nothing to do with religion. Perhaps Carhart was just coincidence. Perhaps it was a reflection of their common approach to constitutional law that has nothing to do with their religious convictions. The point of my post was to pose the question and to invite people to think about it.

In this passage, Prof. Stone reveals that he interprets his own posts almost as poorly as he interpreted the partial-birth abortion decision. Prof. Stone may well have intended for his post simply to “pose the question” whether religious convictions formed the basis of the opinion. But, as written, his post actually asserts that this is what happened.

The post was titled Our Faith-Based Justices. Here are some of the passages which show that Prof. Stone was not just posing a question — he was making an accusation:

What, then, explains this decision? Here is a painfully awkward observation: All five justices in the majority in Gonzales are Catholic. . . It is mortifying to have to point this out. But it is too obvious, and too telling, to ignore. Ultimately, the five justices in the majority all fell back on a common argument to justify their position. . . . By making this judgment, these justices have failed to respect the fundamental difference between religious belief and morality. To be sure, this can be an elusive distinction, but in a society that values the separation of church and state, it is fundamental. . . . As the Supreme Court has recognized for more than thirty years, when the fundamental right of a woman “to determine her life’s course” is at stake, it is not for the state — or for the justices of the Supreme Court — to resolve that question, and it is certainly not appropriate for the state or the justices to resolve it on the basis of one’s personal religious faith.

. . . .

As the Court observed fifteen years ago, “Some of us as individuals find abortion offensive to our most basic principles of morality, but than cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code.” It is sad that Justices Roberts, Scalia, Kennedy, Thomas and Alito have chosen not to follow this example.

(All emphasis mine.)

If that is not an accusation that the Justices ignored legal principles in favor of their moral and religious beliefs, then the English language has no meaning.

Prof. Stone tries to illustrate his point by hypothesizing that Brown v. Board of Education was decided by a closely divided vote, and then reversed by Justices from segregationist states. Wouldn’t we draw a connection there? he asks.

But Prof. Stone loads the dice by proposing a hypothetical opinion — one supporting segregation — that nobody thinks has a principled basis in Constitutional law. In marked contrast, there are many principled arguments for a decision rejecting abortion (and particularly partial-birth abortion) as a Constitutional right. As I explained this morning, this principled view is shared by at least two Justices in the majority (Scalia and Thomas) and possibly two more (Alito and Roberts). Prof. Stone may disagree with the argument that abortion is not protected by the Bill of Rights — but it would be laughable to call that argument unprincipled.

Once again, Prof. Stone has produced an extraordinarily unpersuasive blog post.

I took too long to address Chicago Law Professor Geoffrey Stone’s contention that the partial-birth abortion decision was driven by the fact that the Justices in the majority are Catholics. Jan Crawford Greenburg has already weighed in with an excellent post on the matter, as have Ed Whelan and Hugh Hewitt. Nevertheless, I’m going to toss in my two cents. My opinion may be useful because it is based in part on an e-mail exchange I had with the professor himself.

Prof. Stone says:

What, then, explains this decision? Here is a painfully awkward observation: All five justices in the majority in Gonzales are Catholic. The four justices who are either Protestant or Jewish all voted in accord with settled precedent. It is mortifying to have to point this out. But it is too obvious, and too telling, to ignore. Ultimately, the five justices in the majority all fell back on a common argument to justify their position. There is, they say, a compelling moral reason for the result in Gonzales. Because the intact D & E seems to resemble infanticide it is immoral and may be prohibited even without a clear statutory exception to protect the health of the woman.

By making this judgment, these justices have failed to respect the fundamental difference between religious belief and morality. To be sure, this can be an elusive distinction, but in a society that values the separation of church and state, it is fundamental. The moral status of a fetus is a profoundly difficult and rationally unresolvable question. As the Supreme Court has recognized for more than thirty years, when the fundamental right of a woman to determine her lifes course is at stake, it is not for the state — or for the justices of the Supreme Court — to resolve that question, and it is certainly not appropriate for the state or the justices to resolve it on the basis of ones personal religious faith.

Such serious accusations should be backed by solid evidence. For example, if someone were to accuse Federal Reserve Chairman Ben Bernanke of making decisions about interest rates because he is a Jew, I would hope that person would be dismissed as a crank and a bigot, unless he had smoking-gun type evidence to back such a wild allegation. Accusations directed at Catholics should be no different.

Such accusations are especially serious when levelled at judges, who have sworn an oath to uphold the Constitution. Prof. Stone is accusing the Justices of violating their oath.

So what does Prof. Stone offer as his evidence of this grave accusation? Virtually nothing.

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