Justice Kennedy — substituting his idea of a "fair" question — stumbles through the problem of a government official faced with abiding by a Supreme Court decision she believes is morally wrong.

Justice Anthony Kennedy was taking questions from Harvard Law students last week, when one student asked a somewhat garbled question about whether government officials can act on their own understanding of the meaning of life. Scroll to 50:44 to begin at the student's question:



Kennedy says that he'll "refaze" the question "in a fair way," which seemed both disrespectful to the student and, like not bothering to enunciate all the letters in "rephrase," a bit lazy. But the crowd of students chuckled its support for the most powerful person in the room as he diminished their peer.

The "fair" rephrasing was:

Uh what what what is the duty of the public official if he or she cannot, in good conscience and consistent with her own personal and religious beliefs, enforce a law that they think is morally corrupt? 

The student had talked about "rational norms" and "judgment of the truth of new insights" and the "truth" and never used any words that connoted religion, morality, or corruption.

So, basically, Kennedy plugged in a question that the student's question reminded him of and that he had a good shot at answering in a predictable, conventional way. This is a strategy that is very commonly used by law students answering exam questions, and that I always warn my students against: I'll notice and you can't get credit for that. You must face the difficulties of answering the question in the form it is asked.

But Justice Kennedy was not writing an exam; he was talking to a friendly crowd that had just warmly chuckled its approval of his rejection of the question that was asked.

Did anyone really understand the question? I've listened to it a few times, and it is pretty hard to absorb and figure out how to approach answering. Why did the student ask it that way? Was it unfair? I'd have loved to have heard a more spontaneous dialogue between Kennedy and the student that began, perhaps, with Kennedy's saying: "Here's why I think your question is unfair: You're using words like 'rational norms' as if the official is looking, scientifically, at the facts, but I think you're really talking about religious beliefs and moral compulsions imposed not by reason and facts but by God."

But Kennedy plugged in the conventional answer, phrased — fazed — in the most noncommittal way:

"Great respect, it seems to me, has to be given to people who resign rather than do something they think is morally wrong, in order to make a point. Uh, however, uh, the rule of law is that, as a public official in performing your legal duties, you are bound to to enforce enforce the law. Um and it's it's it's difficult sometimes to see whether or not what you're doing is transgressing your own personal philosophy. This requires considerable introspection. Um and it's it's it's a fair question that officials can and should should ask ask themselves. Um but um certainly, in an offhand comment, it would be difficult for me to say that people are free to ignore decisions of the Supreme Court. Lincoln went through this in the Dred Scott case. Um and uh these are difficult moral questions."

It's the theater of thoughtfulness studded with ums and repetitions and expressions like "considerable introspection" and assertions about how "difficult" it all is, until you've either forgotten the question —  not just the original question but the substituted "fair" question, even as he reminds us "it's it's it's a fair question" — or you decide he's just said what you feel he must have said — what you want him to have said — and you go off and write a little article about it:



You know, if you're going to be mealy-mouthed, people can use you however they want.

It's time for Jeb Bush to withdraw and endorse Marco Rubio.

You may think it's a little early for this, but as Joe Biden said yesterday, it's already late. Look at the Real Clear Politics summary of the polls:



Trump dominates, but only with less than one third. Carson does well. The others are struggling to make much of a showing, but somebody needs to emerge as the political mainstream candidate, and I think that person will be Rubio, sooner or later. Jeb Bush should figure that out and do something to help now, when it would be most helpful. Jeb's candidacy has failed. Not completely, not yet, but he hasn't built his poll numbers, he's lost ground, and his self-presentation has been weak. I like his mild manner, but it's "low energy," as Trump puts it, and, as I'd put it, just not competitive and forceful enough to gain ground in this field. Rubio, by contrast, has some combative heft.

Biden showed how to make a beautiful, graceful exit, and Jeb can do even better, because Hillary didn't need Biden's endorsement. She only needed him to get out of the way, and now she's gloriously in the lead and on track for the nomination. Oh? Do you think she might commit suicide at today's Benghazi hearing? Don't make me laugh. I'm laughing like this:



Jeb can do better than Biden, because he can embrace and throw his full support to Rubio when Rubio needs it to get traction for the hard climb to the nomination. Do it now, Jeb, when it matters so much.

ADDED: In fact, every GOP candidate who is not Trump or Carson should look around right now and figure out who, other than himself, he should support. (That includes Fiorina. I'm just using the masculine pronoun for the singular. Old-school grammar.)

I shouldn't have...

... left those "Weedsburg" photographs at the top of the blog for so long.

Creates the wrong impression.

Those were the recent photographs I had... after a drive and a long walk to look at fall foliage. You might think fall foliage is photogenic, but what looks pretty in person may come out of your camera looking rather dull. The shop — where they didn't mind my taking pictures — was, by contrast, really interesting.

Leaves versus leaves, and marijuana won, being more photographable.

But I'm sorry to create the wrong impression. I'm not a big marijuana legalization advocate, though I did change my position on the subject fairly recently, because I think substance-boosted disinhibition is important, though overdone.

ADDED: I changed my mind about legalization in March 2015 as a result of reading something written by Paul Johnson about Henrik Ibsen:

There was one aspect of Ibsen’s vanity which verged on the ludicrous... He had a lifelong passion for medals and orders. In fact, he went to embarrassing lengths to get them...

[T]here is ample evidence for Ibsen’s passion since he insisted on displaying his growing galaxy of stars on every possible occasion. As early as 1878 he is reported to have worn all of them, including one like a dog-collar round his neck, at a club dinner. The Swedish painter Georg Pauli came across Ibsen sporting his medals (not the ribbons alone but the actual stars) in a Rome street. At times he seems to have put them on virtually every evening. He defended his practice by saying that, in the presence of ‘younger friends’, it ‘reminds me that I need to keep within certain limits.’ All the same, people who had invited him to dinner were always relieved when he arrived without them, as they attracted smiles and even open laughter as the wine circulated....

In the comments, back in March, John Stodder said: "I like Paul Johnson. I like Ibsen. I like legalizing marijuana. I like Ann Althouse. However, I do not understand the connection. I feel like I've been outrebounded!"

I said — after laughing at "outrebounded" (an inside joke back then) — "Here's a clue: freedom and democracy depend on our disinhibition; we need to be able to laugh at authority."

"I just do my work, and I work every day, and my ambition is just to do something better than I last did."

"I’d like to write something as great as ‘Pinocchio’ or ‘Little Women.’ I won’t say ‘Moby-Dick’ because that’s impossible. I’d like to write a book that everybody loves. I’d like to take a picture that someone wants to put above their desk so they can look at it while they’re writing a letter or doing whatever they’re doing while sitting at their desk. I’d like to do a painting that would astonish people."

Says Patti Smith, quoted in the NYT in an article that coincides with the publication of her new book "M Train." We're told the book is "elegiac," and the author of the piece, Penelope Green, seems to be trying to write in an elegiac manner. For example:

Meanwhile, her cat throws up on her pillow. Her clothing betrays her; her pockets are torn. Her shoelaces come undone and trail in rain puddles. Her socks get tangled in her jeans, and escape at inopportune moments. Walking through Washington Square, a lone sock breaks free from her pants (stuck there from the night before), and a giggling teenager returns it to her. Small losses echo the larger ones: She is undone when a woman commandeers “her” regular table in her favorite neighborhood cafe, retreating to the bathroom and wishing upon the interloper a spectacularly gruesome death, like a victim in one of her beloved crime dramas.

When the cafe closes, its owner gave Ms. Smith that table and chairs. These and other totems are in the bungalow... A Chinese rug rescued from her townhouse on the edge of Greenwich Village, where she has lived since the late ’90s, because the cats were urinating on it....