National Review’s obnoxious (and predictable) response to the mistaken arrest of a black Harvard professor has been to publish this truly remarkable post from Roger Clegg:

Even if race played some role in how Professor Gates was treated — who knows? — the Left is, predictably, exaggerating the sociopolitical significance of it all. And I’ll go further than that: I suspect that, as soon as the police arrived, Professor Gates realized he had been handed a great opportunity to play the victim and advance his agenda, and he decided to milk the incident for all it’s worth. And he’s still doing it. That’s too bad, since the last thing African Americans need in 2009 is to buy into more victimology.

Clegg’s powers of telepathy notwithstanding, I sincerely doubt that the good professor’s first thought upon encountering a heavily armed police officer was “Lucky me – what a great opportunity for grievance-mongering!” Given his racially-tinged response, I suspect Clegg is guilty of a bit of psychological projection here.

Unlike Clegg, I do not claim to read minds, so I hesitate to pass judgment on the responding officer’s motives. One odd undercurrent to all this, however, is the widely-held assumption that no matter how badly things turn out, the officers on the scene deserve the benefit of the doubt. The logic seems to be that police are both heavily armed and work a difficult job, and are therefore entitled to a lot more deference than other civil servants.

Policing is a trying (and occasionally dangerous) occupation, so I understand why we venerate police officers. But I don’t believe that civic veneration should extend to a special category of deference for law enforcement. Because cops wield a disproportionate amount of power in any confrontation with civilians, I actually tend to think that their actions should be subject to more scrutiny, particularly when it’s not at all clear that the officer(s) in question responded appropriately.

As I said, I don’t mind celebrating cops as civic heroes. I don’t mind funding salaries, equipment, and generous pension plans. But I do find it frightening (and fundamentally at odds with our political traditions) when someone suggests that absolute deference to the police is the only appropriate response to a confrontation with law enforcement. Nodding your head and signing on the dotted line may be the safest and quickest way out, but sometimes the boat is worth rocking.

Update: Having read Obama’s response, I’d like to pose a question to the hordes of bloggers who are outraged by the president’s comments. Is there any real defense of the responding officer’s decision to arrest Gates after he provided identification? I think I’m with Josh Marshall on this one:

Here are some salient facts. The house was Gates’ house. From what I understand, no one disputes that prior to his arrest and while in the house, Gates provided proof that the house was his. When you have those facts and the guy whose house it is ends up getting arrested, I think that’s prima facie evidence of bad police work.

There also seems to be some willful denial at work here – not one of these critics is ready to acknowledge (or even consider) the fact that the interaction of Black Americans with law enforcement is is colored by a very real history of discrimination and abuse. John McWhorter is worth reading on this subject.

Finally, take a moment to re-read the president’s comments. He a) does not accuse the Cambridge police of racism b) acknowledges that their initial response was correct and c) notes that we’ve made incredible progress in dealing with these issues. The only point of contention is whether the responding officer acted foolishly. Is anyone prepared to defend the officer’s actions as an appropriate response to this type of situation? I’m not saying the guy is a racist or deserves to be fired, but I really don’t think this is an example of sterling police work.

Update II: Apparently, there are also reasons to doubt the accuracy of the police report:

For starters, police used an investigatory exemption in the public records law to bar the public’s right to view Gates’ police report. Even after the charges against Gates were dropped, police were unwilling to release the report and, mysteriously, a leaked copy that appeared on Boston.com’s Web site was replaced the next day with a less complete version. Globe editors declined to explain to the Chronicle why the documents were swapped, while the department said it was conducting an internal investigation to find out who leaked the arrest report.

Update III: For those interested, here’s the legal definition of “disorderly conduct” in Massachussetts. I’m not a lawyer (paging esteemed co-blogger Mark Thompson), but I really don’t think that Gates’ actions (however intemperate) qualify as “threatening, violent or tumultuous behavior” that “serve[d] no legitimate purpose.”

Roberts’s solicitude for the President and the military extends to lower-profile cases as well. In Winter v. National Resources Defense Council, the question was whether the Navy had to comply with a federal environmental law protecting dolphins and other wildlife while conducting submarine exercises off California. Roberts said no. “We do not discount the importance of plaintiffs’ ecological, scientific, and recreational interests in marine mammals,” the Chief Justice wrote. “Those interests, however, are plainly outweighed by the Navy’s need to conduct realistic training exercises to ensure that it is able to neutralize the threat posed by enemy submarines.” Though Roberts was writing for only a five-to-four majority, he added, “Where the public interest lies does not strike us as a close question.”

Not a close question if you share Justice Roberts’ assumptions about national security and ecological protection, but a judge with a different decision-making calculus (a liberal, for example) would probably place greater emphasis on preserving marine life. In fact, it’s clear that in this case, the crux of Roberts’ decision hinged on a fairly complex cost-benefit analysis that has very little to do with what the law does and does not say. How should a judge weigh the prospect of degraded submarine readiness against the comparatively more likely yet less significant impact of naval training on marine life? I’m pretty sure there’s no universal decision-making framework for comparing these claims, and I’m equally sure that your answer to that question will depend heavily on your own ideological sympathies.

Which lends credence to one of Sotomayor’s more controversial utterances: namely, that the Court of Appeals “is where policy is made.” Unlike many of her critics, I don’t believe this comment reveals any sympathy for “legislating from the bench.” I think she’s simply acknowledging that the complexity of our legal system essentially forces judges to interject themselves into the political process. Not to pick on Roberts, but choosing the US Navy over a vulnerable dolphin population is an inherently politicized decision, and I’m inclined to think that other actors are better equipped to make that decision in the first place.

Judges will always enjoy some degree of interpretive latitude, but I think this example validates at least one conservative insight into the nature of the judiciary. When Chief Justice John Roberts rules in favor of the US Navy and against environmentalists, he’s rendering judgment on a question best left to the popularly-elected branches of government. Voters (or their elected representatives) ought to be able to weigh in on a controversy that has little to do with interpreting the law and everything to do with their values and interests.* If Sotomayor demonstrates a willingness to defer to her elected counterparts on the bench, I’ll be more than satisfied with her elevation to the Supreme Court.

*Even if you’re in favor of technocratic management, I don’t think the court is particularly well-equipped to make non-legal decisions.

UPDATE: Esteemed co-blogger Mark Thompson sets the record straight (to put it charitably) in comments, noting that the Winter ruling involved a motion for temporary injunctive relief, which pretty much has to be adjudicated by the courts. I still think justices should place a premium on judicial deference, and Toobin’s example does suggest that Supreme Court rulings are rarely cut-and-dried, but Winter v. National Resources Defense Council is not a case where the judiciary should have deferred to the legislature.