One Last Time on Slate’s Noah on Graham and Ginsburg
I have now had occasion to review with greater care Eugene Volokh’s revised account of this matter. Before I am swamped in work related to the next Supreme Court nomination, I would like to post what I hope and expect to be my final comments on this matter.
Volokh’s revised account distinguishes between “what the text [of Ginsburg's report] says” (setting forth a proposal that would have reduced the age of consent from 16 to 12 for purposes of federal rape statutes) and what Volokh now understands “the report was likely intending to recommend” (reducing the age of consent for statutory rape under federal law from 16 to 12 for offenders who were less than five years older than the target and to lower the maximum penalties for adults who had sex with 12-year-olds). His statement in the title of his post that Ginsburg “likely was the victim of a drafting error”–inadvertently setting forth the text of section 1631 of a Senate bill as section 1633 of that bill–kindly obscures the fact that any such error was hers or her team’s.
In light of the coherence of Volokh’s account, my high regard for his scholarship, and my lack of interest in spending more time on this matter, I will accept Volokh’s account. It would be tempting to maintain that his account changes nothing essential, since he says (contrary to Noah) that the text of Ginsburg’s report says what he and I said Ginsburg had proposed. But now that I assume the relevant portion of Ginsburg’s proposal to have been an inadvertent mistake, I do not think it fair to include it any longer in the long litany of extremist positions that Ginsburg had adopted by the time of her nomination. So I will no longer do so (and I will explore the possibility of adding clarifying annotations to my previous recitations of the litany).
Further, while any fair-minded observer would recognize that my previous understanding was reached in good faith, I will also offer this public apology to Justice Ginsburg for what I now assume to be my misunderstanding of what her report apparently meant to recommend. (It may well be the case, as Volokh suggests, that what her report apparently meant to recommend is still far too permissive–I’ll leave that to others to sort out–but there is nonetheless a significant difference between that and what the text, presumably inadvertently, says.)