I’ve been watching the big fight over a brief the Department of Justice filed in support of the Defense of Marriage Act. During the campaign, President Obama promised to support the repeal of the act, but the Solicitor General is defending the law in the face of a legal challenge. This has led to much drama.
Here’s the thing. When President Bush was in office, liberals were rightfully outraged at the politicization of the Justice Department. The Bush administration regularly broke the law and defied convention in its dealings with Justice, which relies on its independence from the White House to operate effectively. Now we see some of the same critics attacking President Obama because it’s their ox being gored. When President Bush is putting political pressure on the Department of Justice to provide legal cover for a torture program, it’s bad. When President Obama fails to pressure the Department of Justice to abandon its duty to defend laws he doesn’t like, it’s also bad.
Here’s another example. Conservatives like to talk about the evils of judicial activism and the folly of using empathy as a judge but then they attack Sonia Sotomayor for hewing to the law as it is written and failing to empathize with a firefighter who was denied a promotion in Connecticut.
It’s worth differentiating between this phenomenon and rank hypocrisy. Hypocrisy is when one adulterer calls on another to resign. This is about the exceptions we’re all willing to grant ourselves when whatever we want is really important. Civilization is about putting the emphasis on the means rather than the ends. Let’s not punish people for being civilized.