Thursday, June 30, 2005

Safire weighs on on Miller, Cooper, Plame, etc.

Given the lively debates we've had on this subject, I think Safire's column presents an interesting perspective (and shows that Bill's brain is still working...)

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Wednesday, June 29, 2005

Conflicting Priorities

This week's Coalition post

For more than two years, the international community has done little to stop the violence in Darfur or provide security to the millions of displaced victims. And the closer one follows the world's response to this crisis, the clearer the conflicting priorities of the major actors (the US, the AU, the ICC and the UN) become.

Though former Secretary of State Colin Powell declared the situation "genocide" in September 2004, the United States has more or less ignored the Genocide Convention's legal requirement that parties to the convention "undertake to prevent and to punish" it. This can be partly explained
by the fact that the administration played a key role in ending the decades long war in the South and does not want to risk upsetting it by directly confronting Khartoum over Darfur. It can also be partly explained by the fact that the CIA has developed significant ties to the regime in Khartoum, which has become "an indispensable part of CIA's counterterrorism strategy."

The International Criminal Court has just recently become involved in the conflict in Darfur, taking up an investigation and warning that Khartoum must cooperate with its investigation. The ICC is a relatively new body that has yet to try a case and is still working to establish itself as a viable international body. As such, the ICC is proceeding slowly and cautiously, attempting to stay within the bounds set by the ICC statute and avoid an embarrassing and potentially damaging showdown with Khartoum should the genocidal regime refuse to cooperate.

The AU faces many of the same problems. As a relatively new organization, the AU hopes to become the key to providing "African solutions to African problems." Over the last six months, the AU has only been able to supply 2/3rd the number of troops it initially mandated and will, in all likelihood, be equally unable to fill the size of its expanded mandate. As a fledgling organization, the AU does not possess the clout or support necessary to demand an expanded mandate to protect civilians in Darfur and has been reluctant to seek outside logistical or financial assistance for its mission, perhaps out of fear that doing so will highlight its inadequacies and undermine its credibility further.

While the US, ICC and AU all have a genuine interest in stopping the violence, it is clear that they also have internal concerns that are restricting their effectiveness in Darfur.

At the same time, the United Nations faces internal concerns of its own. The presence of Russia and China on the Security Council has stymied attempts to force Khartoum to reign in the Janjaweed militias and prevented the imposition of sanctions. Nonetheless, no amount of internal concerns can excuse this recent statement by Jan Pronk, Kofi Annan's Special Representative to Sudan.

While Annan was telling Khartoum that the violence "must stop," Pronk was praising Khartoum for setting up meaningless show trials designed solely to slow the ICC investigation
The government says its national trials will be credible and will be a substitute for the ICC, which announced last week the formal launch of its investigation in Darfur.

Pronk said those concerned about the credibility of the national court, which begins proceedings on June 15, should give the governmentthe benefit of the doubt.

"If the government takes a decision to do something which it had beenasked to do late, you only have to criticise that they are late, you should not criticise that they are doing it," he said. "So give thegovernment the benefit of the doubt."
For two years, Khartoum has waged a genocidal campaign against the people of Darfur, taking the lives of an estimated 400,000 people. Under no circumstances does this government deserve "the benefit of the doubt."

Solving the crisis in Darfur is undoubtedly a priority for many in the international community. Unfortunately, it is not a main priority. And because of that, it is likely that tens of thousands Africans will continue to die over the coming months.

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Politics, Economics, and Baseball

Not to detract from all of the more interesting news out there, (such as the speculation over the possible retirement of at least one, maybe two Supreme Court Justices), but I feel in some way compelled to point out Sally Jenkins’s sports column in today’s Washington Post. The long story is that Jenkins takes the GOP to task for recent comments from conservative congressmen Tom Davis (R-VA) and John Sweeney (R-N.Y.) regarding George Soros’s participation in one of the eight investment groups currently bidding or preparing to bid to purchase the Washington Nationals.

For those of you not aware, the Washington Nationals (Nats) are currently owned and operated by Major League Baseball, and as such are collectively owned by all the rest of the teams in the league. While the team has its own management, that for the most part appears to be independent, it is not a stretch for me to say that this current arrangement puts the Nats at a considerable disadvantage. This, of course, makes the fact that the Nats are currently in first place in the National League East such a great story. All that aside, the fact is that MLB is in the process of attempting to sell the team, and as such have placed a deadline on perspective bidders to put together proposals in order to bid on the team. Prices are expected to be anywhere between at least $ 200-500 million, if not more, for the rights to the Nationals. A lot of money to be sure, which is why most, if not all, of the bids are not made by individuals, but rather by investment groups that ban together to divide the cost and spread the risk.

Soros is participating in one of the groups. Not, however, as the GOP congressmen would have you believe, as a majority or primary shareholder, rather as a minority investor. Meaning he would have little, if any, direct influence in the team. For example, even George Steinbrenner, the majority stakeholder and public face of the New York Yankees, doesn’t own the team outright. He has many minority stakeholders and thus, ownership of the team is divided among several people and other financial arrangements. So, you ask, why the fervor over Soros, a potential minority investor? Simple, he’s a “liberal” and worked hard, by contributing millions of his own personal wealth to defeat President Bush and Republicans in the 2004 election. Guess what, he lost. Thus, the fear and concern that he would own the Nationals and give MLB a “black-eye” is totally lost on me. True, Soros has also actively promoted the legalization of marijuana, but arguably so did Justices O’Connor, Thomas, and Renhquist (at least with respect to the use of medicinal marijuana) by dissenting in Gonzales v. Raich. Presumably no one would object if they were a minority investor (of course as among the highest judges in the land they aren’t paid enough (even after 20+ years) to afford an MLB team, but that’s a post for another day).

The silliness of the GOP’s concern over Soros’s potential ownership in the Nats, got me thinking, where again are all the “free market” supporters. The bidding process employed by MLB is almost the textbook free market situation. Blind bids, best one for MLB wins. The highest bid gets the prize, everyone is treated equally, no favorites, no advantages, except how smart you are relative to the other investors. It’s perfect competition, all information is made available, and may the best man/woman or group win. Why interfere? Because like every other “interest group” the GOP is opposed to the free market when it might produce a result they don’t like. Soros might win; his group’s got just as good a chance as the other 7 groups, therefore, a little public influence and pressure (like threatening to revoke MLB’s antitrust exemption if Soros’s group wins. For the record, MLB’s antitrust exemption should be revoked, post haste, but not because of Soros, but because its bad policy and for that reason only) can’t hurt, right?

Not true. In my opinion, this makes Rep.’s Davis and Sweeney look like fools and drags down the credibility of the GOP especially on free market, business competition issues. Note to Davis and Sweeney, let the bidding process work its will, if you don’t like the results, don’t go to the games, and enjoy the drive to Baltimore if you want to see MLB in the Mid-Atlantic. My guess is that 99.9% of DC area fans won’t care who buys the Nats as long as they continue to put a scrappy, high-quality, talanted team on the field that can compete year in and year out. Baseball owners are influential for sure, but they are not the reason the fans go to the game, the team and its players are. So long as whomever eventually owns the team understands that, whether they be "liberal" or "conservative" they will have the communities support.

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Bush's speech

I didn't get to see it, or really read/watch (save a few minutes of Hardball from a Baptist Church in TN, but we'll leave that to another day) anything about it, so I thought I'd poll this distinguished group for their observations...

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Monday, June 27, 2005

Nino: Picking and choosing his battles?

Now that the term is over, let's address a question separate from the merits of any case decided this year (or any year, for that matter): When does Justice Scalia note (by separate opinion or footnote by another judge) his refusal to concur in a reading of legislative history, and when does he not? This is an important question, because he is a man who is supposed to prize consistency as an intellectual virtue (e.g., his friendship with Justice Ginsburg is possible because he views her as consistently liberal; his lack of friendship with Justice O'Connor is based in part on her rampant inconsistency).

I believe that such statements emerged in OT'03. (Which is to say, that is when I first noticed them, and I didn't go back earlier to check.) Scalia, J., wrote separately in Intel Corp. v. Advanced Micro Devices, Inc. His refusal to concur with an examination of legislative history was noted by other Justices in fn. 7 in Doe v. Chao, and the first, starred footnote in Lamie v. United States Trustee.

In OT'04, the tactic is seen in KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc. (starred footnote in Justice Souter's opinion) and Cherokee Nation of Okla. v. Leavitt (Scalia's separate opinion).

So when Scalia concurs in the majority's reading of a statute, he sometimes writes a "But I don't concur with dealing with legislative history" opinion and he sometimes asks another Justice to insert a "Justice Scalia does not concur in this part" footnote.

But not all the time. See, for example, Justice Kennedy's opinion in Exxon Mobil Corp. v. Allapattah Svcs., Inc., slip op. at 19-24, in which Scalia concurred without any piping up on his part.

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Sunday, June 26, 2005

What he said

It's a bit late, so I will merely point you to Mark Steyn's column on the silly flag burning amendment to capture my sentiments. A taste:
Banning flag desecration flatters the desecrators and suggests that the flag of this great republic is a wee delicate bloom that has to be protected. It's not. It gets burned because it's strong. I'm a Canadian and one day, during the Kosovo war, I switched on the TV and there were some fellows jumping up and down in Belgrade burning the Stars and Stripes and the Union Jack. Big deal, seen it a million times. But then to my astonishment, some of those excitable Serbs produced a Maple Leaf from somewhere and started torching that. Don't ask me why -- we had a small contribution to the Kosovo bombing campaign but evidently it was enough to arouse the ire of Slobo's boys. I've never been so proud to be Canadian in years. I turned the sound up to see if they were yelling ''Death to the Little Satan!'' But you can't have everything.

That's the point: A flag has to be worth torching. When a flag gets burned, that's not a sign of its weakness but of its strength. If you can't stand the heat of your burning flag, get out of the superpower business. It's the left that believes the state can regulate everyone into thought-compliance. The right should understand that the battle of ideas is won out in the open.

Hat tip: Andrew Stuttaford

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Talk about your waste of judicial resources...

Continuing my post from yesterday, the week's decision in Halbert v. Michigan amounts to an enormous waste of judicial brain-power. Michigan law established a divergent course of appellate review in criminal cases. If you went to trial, you had a right to one level of appellate review and a right to appointed counsel for that review. If you pleaded guilty or nolo contendere, you only had access to discretionary appeal, and you did not have a right to counsel to assist in getting discretionary review. (If review was granted, counsel would be appointed.)

The Court held that this was unconstitutional, by waving generally in the direction of the due process and equal protection clauses. (It could not wave in the direction of the Sixth Amendment, because prior precedent established that this would not do the trick.)

But the Court's opinion only briefly (and half-assedly, I'd say) attempts to address the consequences. Now Michigan prosecutors will include the right to counsel for seeking discretionary review among the rights that the criminal defendant must waive in order for the state to agree to a plea agreement. By inserting one line into their standard form, they will be able to act as if Halbert had never been decided. (Imagine the criminal defendant with enough presence and knowledge to say he would agree to waive all the other rights, but refuses to give up his right to appointed counsel for seeking discretionary review under Halbert. Find such a one and I'll give you a dollar.) Ultimately, this was just a waste of judicial resources.

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Saturday, June 25, 2005

Random questions

So I'm sitting at work on Saturday afternoon (because I sent out a draft to a partner and said I would be available over the weekend), reading the previous week's Supreme Court decisions. It makes me wistful for my clerkship days when I was expected to read them as my job.

In any event, here are random comments as I go through them.

Mid-Con Freight Systems, Inc. v. Mich. Pub. Svc. Comm'n. Is anyone else bothered by the first sentence of Justice Kennedy's dissent? "The Michigan Court of Appeals, in my view, erred in holding that [the state statute] is not a registration requirement." Would Kennedy, J., really rule that a state court had misinterpreted a state statute? Maybe not. As a preemption case, the case necessarily involves a sphere marked out by a state statute and a sphere marked out by a federal statute. Considering only conflict preemption, where there is an overlap, the state statute cannot govern. When a state court holds "no preemption," is that a holding about the scope of the state statute or of the federal statute? Is there any principled way to answer that question?

Kelo. Somewhere in the blogosphere there was a discussion of Stevens' fn. 18. It was suggested that fn. 18 seemed out of place. The theory was that an earlier draft of the opinion had proposed "rules" that local legislatures could not step over without getting reversed, and that although those "rules" were deleted, the fn. had remained in by accident. (Found it: the comment is here.)I don't think that is the case at all. I think fn. 18 is a natural fit, serving as a promise of judicial vigilance.

The sentence to which fn. 18 is attached says that "the hypothetical cases posited by petitioners can be confronted if and when they arise." And the fn. cites a 1928 dissent by Holmes that "The power to tax is not the power to destroy while this Court sits." The comment linked above queried why Stevens would need to cite a 1928 dissent that provides only tangential support for the proposition that the Court will decide the case before it (and not future hypothetical cases).

But clearly the cite has a different intent that the commenter thinks. For, as every 1L learns, the power to tax is the power to destroy. Holmes' is a statement that judicial vigilance can prevent such destruction. So too here, Stevens avers, "while this Court sits" the people need not fear the destruction of property rights. Whether that averment is accurate is a different question. For the moment I am satisfied that fn. 18 fits where it is, and that the hypothesized deleted text never existed in the first place.

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Friday, June 24, 2005

Kelo v. City of New London

There has been a lot of excellent commentary in the "blogosphere" on this case already and its barely been available for 24 hours. See e.g., SCOTUSblog; Volokh Conspiracy; Southern Appeal; etc. That being said I think that one of the areas that has been overlooked is the notion of judicial deference to the political branches and whether or not that was an appropriate action for the Court to take in this case.

Before launching into this discussion, it’s helpful to remind everyone what a deferential decision does and consequently what it doesn’t do. The Court’s decision in Kelo does not imply that the Justices in the majority think that what New London has decided to do is a good idea, or is in any way a desirable outcome. Rather, it simply means that the city’s actions do not violate the 5th Amendment. As many commentators on this blog, myself included, are quick to point out, even stupid, insane actions of legislatures and other politically accountable officials are not unconstitutional no matter how much we may object to their outcome. The death penalty is an excellent example. No matter how much many people, including those on this blog, think that the death penalty is an abhorrent practice, it is not unconstitutional. Moreover, the death penalty can be stopped, albeit not by the Courts, but by the political process. In other words, we have to vote for lawmakers at the state and federal level, that will outlaw the policy choices that we find objectionable. So it is with this decision in Kelo.

Kelo is a deference-type case because the Court refused to draw a bright-line with respect to takings for "economic development" purposes. Instead, the Court opted to defer the decision to the politically accountable branches of government, who, according to the Court, are in the best position to evaluate the respective merits of a proposal and determine in it really is in the best interest of the public. Now, there are a lot of good, compelling arguments against this rationale, but all of them would have required ending up with a Constitutional judgment that says X is permissible behavior, but Y and Z are not. One could argue that this outcome is an exercise of judicial restraint and not one of judicial activism. The real blame for the loss of personal property arguably lies, not at the feet of the Supreme Court, but rather at the hands of the New London city government, who voted to exercise its power of eminent domain in this manner knowing full well what the consequences were on personal property rights. The Court, by its deferential decision, allows people to exercise their displeasure and "vote the bums out of office," who have done things that the public finds unacceptable.

All this is by way of bringing me to another point. Kelo doesn’t kill the Fifth Amendment. All it does is put the accountability back on the state and local officials, where so many people argue that in a republic power and decision making ability belongs. More importantly it is necessary to point out that so-called "economic development" takings can still be prevented even in light of Kelo. They can be prevented in many ways. For example, state legislatures can vote to deny local, city, and county governments the right to eminent domain property without prior authorization by the state government. In addition, states can pass state constitutional amendments prohibiting the practice of eminent domain at any level. Yet another method would be for states with the ability to place items directly on the ballot to draft reforms limiting the power to eminent domain, or require that any taking for "economic development" purposes be voted on via referendum before it becomes official. There are likely numerous other meothds available, but I think I’ve made the point. Kelo doesn’t mean the end of property rights, it simply means the focus of protecting these rights is going to shift from the Courts to the political process, a shift that I am sure, upon reflection, several of my co-bloggers may support. No doubt the facts and outcome here are disturbing, but if people can look past the ultimate disposition of the case, they may find that the outcome actually may, in the long run, serve to reduce the taking of property rather than enhance it.

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Thursday, June 23, 2005

Schwartz' genius

It is a rare day when I praise a member of the DC city council, but "mad props" to our crazy city's lone Republican (if in name only) member. Carol Schwartz proposed (and then quickly withdrew) a bill to ban the sale of alcoholic beverages in DC bars. The legislation was meant to draw attention to the city's plan to ban smoking in bars and restaurants. Schwartz was dripping with sarcasm in her remarks.
"People are still free to drink at home -- for now," she said as she introduced her bill, the Worker Occupational Safety and Health Amendment Act of 2005, Part II. "I'm just legislating that liquor cannot be served in bars, restaurants and nightclubs because I don't want it to be served. I will allow teas, sodas and milk -- for now. And if the drinkers insist on drinking alcohol -- and they will -- they can just step outside on sidewalks with their flasks and drink."


. . ."We all know that bartenders and waitstaff are constantly harassed by drinking customers. Bouncers are even beaten up by drunks. I care about these workers and their safety," Schwartz said, while her colleagues chuckled and hid their faces in their hands.

"Yes, I come to you a changed woman," Schwartz said, her voice oozing sarcasm. "It had just never occurred to me that I could simply choose to ban a legal choice for consenting adults in a private place where the public does not have to go and where workers do not have to work.

"I'm also now looking at some other legal choices to ban -- like driving or sex -- for they, too, can be dangerous to your health and the health of others."
Schwartz for mayor!

Really, this is pure genius. Her mock bill highlights the utter stupidity of the proposed ban. Don't get me wrong, as a non-smoker I hate the smell of cigarette smoke, and do enjoy not smelling like smoke after a night of drinking in New York City bars, where a ban has been in place for a couple of years under Nurse Bloomberg. But, last I checked, cigarettes were still legal in this country, and a not-entirely insignificant aspect of the bar experience for many is the ability to light up and sip some suds.

The only real difference between drinking and smoking is that there is no such thing as passive beer drinking. But my preference not to smell like an ashtry should not trump another's choice to light up and smoke, especially considering that I have the ability to go somewhere else, and in this city there are hundreds of bars that have banned smoking. The decision whether or not to permit smoking should be left up to the individual establishments, and clients can then make their choice from there. An absolute ban is a ridiculoius intrusion by the nanny state because they deem a legal behavior uncouth.

Tough. If you don't like smoking that much, go somewhere else. If a person chooses to enhance their chances of acquiring cancer, that is their decision. Since recent studies have demonstrated that the actual health risks of passive smoking have been completely exaggerated, there remains no substantive reason why my dislike of an activity should mandate that a person not engage in such activity, especially when I have the right and ability to be somewhere else.

The only reasonable counter-argument is that the bill is meant to protect workers, but bartenders and others know their profession, and they are free to pursue another career or work in establishments that ban smoking.

Thank you, Carol Schwartz. It's good to know at least one member of the city's governing body has something resembling a brain.

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The Kelo Decision

I will defer close scrutiny of the case to my legally trained colleagues, but it appears at a glance that the Supreme Court's Kelo decision is a blow for anyone who believes in the concept of private property.

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Wednesday, June 22, 2005

This Gitmo Nonsense

It had fallen off the radar for a little while, but this past week’s bumbling hyperbole of Senator Dick Durbin resurrected the national debate about the purpose, and the propriety, of the terrorist detention camp at the United States Marine Base at Guantanamo Bay, Cuba. (I miss the days when everyone called it “Camp X-Ray,” don’t you?) After weathering the political storm for a few days, and essentially refusing to take back his awful and inaccurate comments, Dick sort of recanted, stating that he extended his “heartfelt apologies” to those who thought his “remarks crossed the line.” Dick even managed to shed a tear or two while pretending to believe that he likes American troops. (Apparently, Dick realized that comparing American boys and girls to the likes of Hitler, Stalin, and Pol Pot did not poll well among likely Illinois voters. I can see the conversation in his Senate office now between Dick and his chief political adviser: “Now, Senator, this is not going over well with your voters at home. If you say you didn’t mean what you said, you can recover the eight to ten percentage points you lost over the weekend. If you pretend to cry, you might be able to eke out an extra two or three percentage points . . . ”)

These comments, and other equally inflammatory inanities by lefties from coast to coast, have shown that a troubling amount of ignorance remains regarding the rights of terrorists (or, more precisely, the lack thereof) and the purpose of the detention camp. A few reminders, for those who fell asleep in Constitutional Law (or who never went in the first place):

1) Foreign-Born Terrorists Captured Overseas Have No Constitutional Rights. This is perhaps the most maddening aspect of this whole debate because it seems so self-evident. There is apparently, however, this army of ignorami out there that believes that, just because they feel all warm and fuzzy deep down about the idea of giving enemy combatants, with no connection to the United States other than the desire to destroy it, the full panoply of constitutional rights enjoyed by you and I and other American citizens, it must necessarily be the case. Not so. Through all of the post-New Deal Era mutilation of the Constitution, the founding document has never – ever – bestowed upon enemies captured abroad all, most, or even some rights accorded American citizens. It is a figment of some constitutional lawyers’ imaginations (all Yale grads, too, no doubt).

2) The Assortment of Rights Provided by the Geneva Convention Also Does Not Protect Al Qaeda Terrorists. Surely, some of you are saying that, at the very least, the Geneva Convention applies to Al Qaeda and its ilk. Why, the Geneva Convention protects all people involved in combat, right? It grants a tremendous number of rights to those who take up arms against other countries, right? It was designed for this very purpose, right?

Wrong. The Geneva Convention was specifically designed to protect the soldiers of nations that are signatories of the Geneva Convention, which was ratified in 1950. These signatory nations essentially agreed many decades ago, in a far different time, that their respective soldiers would abide by certain basic rules of combat in an effort to try and “civilize” war (a hubristic goal if ever there was one). Under the agreement, signatory nations’ soldiers would receive unparalleled rights protecting their persons and their dignity if they engaged in open warfare, wore clear uniforms and insignia that identified them with their country of origin, avoided killing or injuring civilian non-combatants, and adopted other such tactics that made warfare far more transparent and far less brutal.

It probably did not take you more than ten words into the previous sentence to realize that terrorists such as those in the employ of Al Qaeda and other like-minded organizations are anything but transparent and civilized. Almost by definition, terrorists conceal their identity and their objectives, hurt civilians intentionally, and employ these and other tactics in an effort to make society less civilized, not more civilized; more chaotic, not less chaotic. Since Al Qaeda is neither a sovereign nation nor a signatory to the Geneva Convention nor a follower of Geneva Convention tenets, it therefore necessarily does not benefit from Geneva Convention protections.

3) Wartime Measures Against Combatants Should Not Equal Peacetime Measures Against Common Criminals. The same afore-mentioned ignorami would have you believe that President Bush is some evil forked-tongue demon for having the audacity to not provide every single terrorist captured overseas in combat with their own version of Johnny Cochran and a complete hardcover copy of the United States Code. The reason that is not done, beyond the simple and obvious fact that foreign-born terrorists captured overseas are not afforded the constitutional rights of American citizens (see Point One, supra), is that requiring a nation at war to use peacetime criminal justice standards against wartime enemies under wartime conditions borders on calling for suicide of the sovereign. This nation witnessed Abraham Lincoln, a man who is revered for his foresight and his ability to manage crises, suspend the constitutionally granted right of habeas corpus for the duration of the Civil War. Surely, it is not unreasonable for the current president to not establish ridiculous, precedential rights for non-American citizens that did not even exist in the first place. (I know, it seems logical to you and I, but liberals might be reading this, so I have to spell it out.)

4) Bringing Terrorists to American Soil Helps Al Qaeda, Not America. If you think the Ted Kennedys and Ron Kubys of the world want Al Qaeda’s best and brightest brought from Guantanamo Bay to the United States in order to help us win the War on Terror, think again. Their unspoken goal is to make it impossible for our government to pursue this war.

How could I make such an outrageous claim? Simple: because of Supreme Court precedent, the argument could plausibly be made that someone – anyone – arrested on American soil gets a greater degree of constitutional leeway than someone arrested anywhere else by the United States – for instance, overseas, or in international waters. (Without delving into a treatise on case law, previous parallel decisions have found as much. I would bet that even people who disagree with the theme of this post would concede that point.) Therefore, any attempt to bring terrorists captured in overseas theaters of combat to mainland United States military bases or federal courts would instantly be followed by calls from the ACLU crowd demanding that these terrorists be afforded the rights they deserve by virtue of being on American soil. It goes without saying that that would make swift intelligence-gathering and prosecution of the war impossible.

Without belaboring the point, this is precisely the reason these terrorists – who, by the way, it bears repeating, were captured fighting and killing American soldiers, not sitting idly in some roadside café in greater Mesopotamia – have never been brought to American soil. And it is precisely the reason they never should be brought to American soil.

5) One of Gitmo’s Goal is to Keep Terrorists Out of Circulation, For However Long It Takes. Okay, so, terrorists have been arrested after shooting at Americans in foreign countries and locked up in perpetuity until the war is over or enemies have been effectively eradicated, whichever comes first. Um . . . where’s the problem? I hate to be the cold shower of reason here, but the whole damn point of locking these thugs up, in the manner in which they have been locked up, is to prevent them from going through the revolving door that is the American criminal justice system and rejoining the fight against us in a few days or weeks. In addition to the fact that these terrorists have no constitutional rights (Point One, supra) and do not benefit from the guidelines of the Geneva Convention (Point Two, supra), the mere fact that they are being kept out of circulation, and prevented from killing additional Americans during wartime operations, is enough justification to keep them locked up indefinitely.


Please do not misunderstand: every single person captured in this conflict deserves to be treated humanely, no matter how vile they may be, and captors that do not abide by basic rules of humanity and decency should be convicted of criminal abuses. But treating combatants decently and giving them the full slate of constitutional or other rights to which they are not entitled are not the same things at all.

Fortunately for all of us, a recent poll that has been widely ignored by the liberal MSM indicates that most Americans – to the tune of three out of every four – understand the purpose of the camp at Gitmo, accept its purpose, and feel the terrorists are receiving at worst decent, and at best exceedingly generous, treatment at the hands of American captors. If most real Americans can understand this, why can’t liberals?

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Monday, June 20, 2005

Scawed for life

Sure it may be some 1100 days until the 2008 presidential election, but it’s never too early to do some handicapping. I can say with almost one hundred percent certainty, and you can quote me on this, that Joe Biden will not be the next President of the United States of America. It was nice knowing ya, Joe, but come on, even Sam Brownback is laughing at your presidential odds.

Approximately half of the United States Senate is running for President, despite the fact that no Senator since John F. Kennedy has been elected to our nation’s highest office directly from the Senate, and Kennedy himself was I believe the only one ever elected from the Senate. But never discount the fact that we are dealing with the largest collection of ego ever assembled. Way to go 17th amendment.

One Senator in particular is making a rather noisy splash. Mme. Hillary Clinton (D-NY/AR/IL/CT) is the prohibitive favorite to win the Democratic nomination, and by positioning herself slightly to the right of Le Pen on immigration, might even be the favorite to win the whole thing. The possibility of the return of the Clinton dynasty has sparked enormous enthusiasm on the far left, so much so that our very own repeal was driven to write:
oh, and don't misquote me by saying its a lock, but HJC has got the electoral math and you know it...and you're scawwwwwwwwwwwwwwwwed.
I’m not sure about the electoral college count, but I do know for certain that I am not “scawwwwwwwwwwed,” mainly because I really don’t know what “scawwwwwwwwwwwwed means.” Now I can only assume that Mr. Repeal’s fingers slipped, and he merely meant to type “scawed,” but that still leaves me at quite the loss. I remember there used to be some form of music that the kiddies used to like called ska, so perhaps to be scawed is to be wed with ska music playing in the background. But ska is not sca, so that seems rather unlikely. It could be some unusual method of spelling “Scott,” but that also seems rather unlikely. Besides, what would “being scott” mean exactly? I’ve known a few Scott’s in my life, and they haven’t always impressed me, so that could be taken as an insult. But I don’t think that’s what repeal means.

It could, with some squinting, mean “scared.” In that case, well, no. Not exactly.

Don’t get me wrong. I would not exactly embrace another Clinton presidency with open arms. The thought of experiencing four or more years of a President whose voice resembles that of the aliens from Mars Attacks does distress me to a great deal, but thanks to the wonders of the remote control I could always just flip the channel whenever she appeared.

No, I am not exactly scared by the prospects of a Clinton presidency, and for two primary reasons.

First of all, I don’t think she’s going to win. I honestly don’t know whether she will get the nomination, but I do think she will have mucho difficulty in securing the electoral college. Oh, sure, she could pull it out, and much depends on the Republican nominee. Heaven forfend that some charismatic dud like First wins the nomination - in that case we could see another Clinton presidency. But there’s really no telling who might be pitted in a showdown with Hillary, and a reasonably strong candidate should be able to emerge victorious against the woman that many Americans love to hate.

But even if Hillary does manage to win in 2008, though displeased I will not take it as a sign to make permanent travel plans to Australia. Unlike my left-wing brethren the prospect of having someone I dislike in the Oval Office does not send me into apoplectic fits of rage. You know why? Because the president is just one person, and no matter how powerful that one person may be, no one is so strong as to be able to inflict that much damage on the Nation.

Seriously folks, people of all political persuasions drastically overrate the importance of the President. Indeed the office has grown beyond the Framers’ wildest dreams, and there can be little doubt that the President of the United States is the most powerful person in the world. But again, he/she is just ONE person. We ascribe far too much praise or blame on this one person. If the economy is great, we laud the President’s management of the economy, while quickly castigating the officeholder once the economic indicators slide downward, all the while ignoring the fact that there is very little tangible effect that the President may have upon the economy.

Again, don’t get me wrong. I do not mean to trivialize the office. Obviously the President makes all sorts of important decisions that impact all of us. War-making, judicial nominations, bureaucratic appointments, etc. are all vital elements of presidential prerogative. But even here the President’s powers are tempered by Congress – remember them? Both mouldfan and I have written of Congress’ self-neutering, but while we may lament the loss of much Congressional power, we cannot pretend that they have completely forsaken governance. Recent actions only help demonstrate that Congress is not a complete non-entity.

It will be a cold day in hell before I cast a vote for Hillary Clinton. It will be a colder day in hell before I allow the election of one person drive me to fits of irrational rage and fear. Most of all, it will be a cold day in hell before I become “scawwwwwwwewwwwwed” of the prospects of a President Hillary Clinton.

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Sunday, June 19, 2005

Rehnquist Death Watch

I have been put in the awkward position of rooting for the death of William H. Rehnquist.

I happened to stumble (well, not actually “stumble” – it was posted on the Drudge Report) upon an Associated Press article late last week about the Chief Justice of the United States Supreme Court. The article took pains to note that many of the unnamed (of course) sources in the Court’s inner circle were in the process of “scaling back their predictions” about Rehnquist’s impending retirement at the end of this Court’s term. These same sources noted Rehnquist’s apparently improved health as at least one factor that may encourage him to stay.

I suppose there is something about power such as that wielded by the likes of Supreme Court justices and other high-level government officials that makes them convinced, after being in power for some time, that the world would stop spinning if they were not the ones making the decisions. This arrogance – an inherently undemocratic arrogance, mind you – crosses ideological boundaries and spans the political spectrum.

With most government officials, the masses can go to the polls and toss out leaders who are perceived to be in power just for the sake of being in power. Federal judges, however, as you all know, are different in that they are in what the late Red Barber used to call the “catbird seat”: Article III gives these judges and these judges alone the power to determine when their tenure ends. They can stay until their lifeless bodies literally have to be carried out of the courthouse.

Rehnquist staying on the Court beyond this term is problematic for at least two reasons. First, no matter how much better he may look or feel, Rehnquist is still very ill, and his illness interferes with his substantial duties as Chief Justice. The treatment for Rehnquist’s particular form of cancer requires intensive chemotherapy and radiation therapy. Such therapies are difficult enough for young and vibrant people; Rehnquist is in his eighties. We all had a firsthand glimpse of how continuous cancer treatment can affect a Supreme Court justice, as Rehnquist missed the bulk of the term’s oral arguments after being diagnosed, did not take part in many of the Court’s decisions, and only worked on a handful of cases from his home in Virginia. Without belaboring the point, one cannot be a full-time justice on the Supreme Court, let alone Chief Justice, in that condition.

Second, and perhaps more importantly, Rehnquist would be letting his own ego and own personal preferences trump the long view of history were he to stay beyond this term. Rehnquist stepped down now, it would allow President Bush the opportunity to nominate a young, ideologically compatible replacement who would be able to maintain the balance of the Court. Based on what we have seen so far in the United States Senate regarding the contentiousness of appellate court nominations, it is not much of a stretch to say that the Democrats will raise holy hell in order to prevent Bush from nominating a younger version of Rehnquist to the Court. It might take a year or more to confirm someone to the Court, which means the timing is crucial. Were Rehnquist to delay his retirement until 2006 or 2007, all bets would be off. The impending 2006 midterm congressional election and the 2008 presidential election would guarantee that no one is replaced until after there is a new president. I would like to think that Rehnquist is true enough to his conservative principles to have Bush pick his replacement instead of a Hillary Rodham Clinton or John Edwards, but I am not so sure anymore.

Of course, all of this is speculation, since no one can say one way or another whether or not Rehnquist is actually going to announce his retirement. And I may not be giving Rehnquist enough of a benefit of a doubt in assuming that his own personal ego is going to force him to hang on with his fingernails. He may actually have the decency and historical awareness to do what is right and step away from this Court.

We will have our answers to these and other questions soon. I hope.

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Saturday, June 18, 2005

A conservative campaign involving zero conservatives

I alluded to something in my comment to GC's previous posts that may have gone over some heads. Kaus links to a ridiculous New York Times article written by Raymond Hernandez claiming that conservatives are involved in a campaign to promote an absurd book which, in part, alleges that Bill Clinton raped Hillary Clinton. Yes, there is a vast right-wing campaign to promote this nut-job's book involving all of, oh, about ZERO mainstream conservatives. Evidently some website which was funded by the some guy who received money from another person who once had a dinner date with some woman who sat on a bus next to another guy who know the guy who mows the lawn of Dick Cheney's father's brother's cousin's former roommate is on this non-stop right-wing bandwagon.

Of course someone might want to inform the people at every single other right-wing blog that has even bothered to comment on the book that we're supposed to be promoting it, because the pretty-universal response has been to completely condemn it. I believe my good friend TSL at GeekSoapBox captures the general consensus. While those of us on the right have little regard for Bill and Hillary, a line must be drawn somewhere.
But to throw this sort of scandalous and libelous rumor and innuendo out there nearly thirty years after the fact just reeks of muckraking sensationalism at worst and a lousy attempt to boost traffic at best. I despise when the left refer to President Bush as a war criminal or compare him to Hitler and think those comments are outrageous and betray a fundamental lack of understanding of even the basics of history or politics. Likewise, the so-called "Vast Right-Wing Conspiracy" needs to get over Bubba and Hill. The guy's been out of the picture for over a full term of office, and there is nothing we can do now to exact revenge over two straight close electoral defeats. Bill Clinton is a vision of mediocrity in the rear-view mirror of history, and his wife is so shameless and brazen in her comments and publicity-seeking that she will eventually wind up an even worse national candidate than the modern-day Francophile John Kerry. Leave them alone and give them no further thought; in actuality, that would be the worst punishment you could possibly hit them with.
Well said.

Bill Clinton was an, at best, mediocre President and will probably be a historically insignificant one at that. We need not draw any other attention to the has-been, and any wacko allegation that he raped Hillary should be mocked for its inherent stupidity. Luckily conservatives have done just that. Of course Mr. Hernandez is free to quote George H. W. Bush's gardener's son's teacher to prove otherwise.

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Iraq War Dead Exaggerated For Political Ends

Since the United States invaded Saddam Hussein’s totalitarian Iraq in March 2003, approximately 1,700 U.S. soldiers have died. Make no mistake: each and every single one of those deaths is a national tragedy. But the mainstream media have made a concerted effort to make you think that each of those soldiers has died at the hands of some maniacal, out-of-control American war machine, and have reported these numbers with barely contained glee in the (apparently not unfounded) hope that Americans would start to turn against the war as casualties mount.

Even a cursory examination of these casualty numbers reveals that approximately 400 of the deaths included by the MSM in Iraq War casualty counts – roughly 23% – have occurred in non-combat settings. From stateside traffic accidents to veteran suicides in the wake of returning to soldiers murdered by other soldiers, such deaths are being not-so-ambiguously included as persons who lost their lives while fighting in Iraq.

As I said above, the life of each soldier is precious, and whether or not that death occurred on an Iraqi battlefield or in an American intersection should not lessen our sense of loss. What I object to is the manipulative use of this exaggerated number by the MSM as dual proof that we have not been successful overseas in curbing the Islamist terrorists and that the war was unjustified in the first place. (See, for example, the touchingly propangandistic piece by the Washington Compost entitled, “Rep. Jones, Resolving To Follow His Heart.” This story does not miss its chance to cite the 1,700 war dead, and it is one of dozens of similar stories. I leave you to Google for yourself and see what I mean.)

President Bush’s recently dipping poll numbers seem to support the argument that the MSM’s strategy to exaggerate war dead was not only designed to do damage to Bush politically, but that that strategy is in fact working. I take solace in knowing, however, that Bush, unlike the previous White House occupant, is not a slave to poll numbers, and will continue to follow through on this country’s commitment to Iraq.

Update: Sunday, June 19, 2005, at 12:13 a.m.: As predicted, President Bush has the testiculuar fortitude and common sense necessary to see the Iraq War through to completion. Cheers to courage and commitment. (Isn't it nice to have a president who doesn't make decisions based upon the fickle wind-blown perceptions of public opinion?)

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Friday, June 17, 2005

Some Thoughts on DR-CAFTA and the Purpose of Free Trade

With this week's passage of "mock" implementing legislation (it’s referred to as "mock" language because it is no way legally binding on the Administration and was only drafted to comply with the "fast-track" procedures put in place in 2002 when Congress granted the President "trade promotion authority," which allows for the expedited review of trade agreements) on the Dominican Republic – Central American Free Trade Agreement (DR-CAFTA) by both the Senate Finance Committee and House Ways and Means Committee, it strikes me as an appropriate time to weigh in about the merits of free trade and some of the "pitfalls" of this particular agreement.

To start I suppose I should come right out and say that I am most definitely an advocate of free trade, and more specifically I’m an advocate of free trade agreements (FTAs). NAFTA, US-Australia, US-Chile, US-Singapore, US- Israel and the other agreements that the US has adopted and implemented over the last 10 or so years, have undoubtedly done more to benefit the long term health of US economy than they have done to harm it. Without question, however, there have been some sectors of the economy that have been hurt by the rapid expansion of free trade (manufacturing, steel, coal mining, and textiles), but in the final calculation I would rather have the present world trading system, with all its possibilities, than a Pat Buchanan/Ross Perot type isolationist system.

All that being said, my support should be taken to mean that any and all FTAs are a good idea. While the theory is a sound one, I have to question the implementation of this particular agreement. My argument, however, is not one that you would typically expect from a supporter of the Democratic party. My objection isn’t related to the provisions regarding labor or the environment (mostly because these provisions are not designed to be effective in any way, they are designed to be political footballs bandied about so that everyone feels better about free trade), but rather is because this time I don’t think that the economic benefits outweigh the costs. More to the point, I get the distinct impression that this FTA is not really about economics and free trade at all, but rather is about "geopolitics," more specifically it’s about western hemisphere politics and international relations, and I’m not sold that it’s worth it.

Trade should be about economics, period. That being said, everyone, myself included, has to recognize that trade has unintended secondary effects, (referred to by economists as externalities), and the externalities from trade have both positive and negative effects. But unlike our other FTAs or even our participation in the World Trade Organization (WTO), DR-CAFTA seems to have only negative secondary effects. The primary effect of the agreement, to reduce tariffs and provide reciprocal economic advantages, will be marginal at best. Currently, most of what the DR-CAFTA countries export to the US already comes into our country duty-free (as a result of existing preferences already written into law), so there really won’t be any significant benefit to either US industries or consumers by way of lower prices. Moreover, the extra goods and services that US manufacturers, producers, and service providers will export to DR-CAFTA countries will likely not increase by much, primarily because the DR-CAFTA counties do not have a lot of income or economic power with which to import large quantities of US goods. In other words, they can’t afford what we sell now, and there is little in the agreement itself that will change that fact.

So why, if the economic benefits are marginal, enter into the agreement? Good question. According to the Bush administration, the agreement will foster democracy and strengthen the US’s good will in the region (for this argument see former USTR Bob Zoellick’s Op-ed in the Washington Post from a couple of weeks ago that I can’t seem to find a link to). Great, wonderful, those are certainly commendable goals, but it begs the question; aren’t there other ways to achieve the same political ends without an FTA? In my opinion, yes, there are, and we should pursue them vigorously. In the final calculation, there is no economic gain from DR-CAFTA, and thus, the political reasons for implementing it don’t make any sense. We know there will be negative effects on sectors of the US economy, however, unlike previous agreements, there won’t be the positive economic effects in other sectors to justify the losses. Trade policy should be trade policy and democracy building and fostering should be as separate as possible. Granted they are not mutually exclusive, trade can, and in many instances does help the democratic process, but it is not the only way to get there. If we are going to engage in "geopolitical trade" policies, we should at least ensure that the economics are far more favorable than they currently are with DR-CAFTA. Now maybe the thinking is that if we, through implementation of this agreement, bolster these countries economically than the benefits may, over a prolonged period of time, prove to have been worth the risk, but that is far from a certainty and at this point, given our current uncertain economic outlook, hardly seems worth it.

Again, I don’t quibble with the merits of free trade, I simply question whether this agreement is the best example of its uses.

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Thursday, June 16, 2005

Why Some People Hate the Public School System

For the vast majority of my educational career (13 of 20 years) I attended public schools in CA. In addition, both my grandmother and mother are former CA public school teachers, so I guess you could say that I have long standing bias in favor of public education. That being said, I think that there are times when public educators do things that are so incredibly STUPID and without merit that they deserve at least some of the wrath inflicted upon them by people generally opposed to public schools (or at least opposed to the amount of money governments spend on public education).

Case in point is the recent flap over a “bolo tie” worn recently by a Maryland high school senior at a graduation ceremony. Assuming that even a de minimums amount of the press reports are true, it would appear that the school issued regulations stating that graduates had to “dress appropriately” for the ceremony to ensure that everyone acted in a respectful dignified manner. In addition, the rules appeared to state that anyone deviated from this “dress code” would be denied a diploma and a chance to participate. The offending student, of Native American heritage, decided to wear a suit with a “bolo tie” that was traditional among his ancestors and relatives. School officials, for reasons that remain unsatisfactorily explained, ruled that the student had violated the graduation regulations and, therefore, refused to allow his participation.

Kicked out of graduation for a “bolo tie;” are you kidding me!?!? This wasn’t like wearing cut-off jeans or a revealing dress, this was a respectful tribute to his heritage that was well within the regulations, reasonably interpreted, that were established by the school. Non-traditional, sure, I suppose you could say that, though hardly unusual. What was the point of signaling this child out? To make a point that the school is the arbiter of appropriate attire? What possible constructive purpose could that serve? The whole incident simply defies explanation. What’s worse is that the school board and district appears to be totally unapologetic, which has lead to the recent escalation of the dispute between the family and the school. Bottom line is this, the school was, without question, totally out of line, period, dot, end. I can’t think of any argument that justifies their behavior in this situation. The inflexibility demonstrated and then in the face of well-deserved public scrutiny, their willingness to stand by what can best be described as an asinine decision, is what makes people think ill of public schools and the personnel that controls them. Decisions like this, while in no way representative of the majority of public school employees, nevertheless gives the entire enterprise a bad name.

No one ever talks about all of the good things that a school or school system does, especially when they go and do something like this. Schools, and more importantly their officials, need to be far more understanding and far more flexible if they are going to work their way back into the good graces of the American public, which is by and large where so many of them belong.

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Wednesday, June 15, 2005

The Future of Darfur

The weekly post from the Coalition for Darfur.

There can be no doubt that, relatively speaking, the crisis in Darfur has generated a fair amount of attention. Journalists, human rights experts and bloggers have poured a lot of energy into raising awareness of the genocide and the 400,000 lives it has taken. Unfortunately, this focus on Darfur only highlights the lack of attention being paid to other, arguably even more horrific, crises in Africa.

For instance - Uganda
Eight people are shot, hacked and beaten to death and their bloodied corpses dragged to the middle of a dirt road for aid workers to find.

Six other fatally wounded victims are left lying nearby, screaming in agony. They die hours later.

After nearly two decades of bloodshed, Ugandans are asking why atrocities such as this May 27 attack by Lord's Resistance Army rebels still plague the traumatized people of the north -- and why they seem to have been forgotten by the world.
And the Democratic Republic of Congo
Militiamen grilled bodies on a spit and boiled two girls alive as their mother watched, U.N. peacekeepers charged Wednesday, adding cannibalism to a list of atrocities allegedly carried out by one of the tribal groups fighting in northeast Congo.

The report came as a key U.N. official said the ongoing violence in Congo, claiming thousands of lives every month, has made it the site of the world's worst humanitarian crisis.


"Several witnesses reported cases of mutilation followed by death or decapitation," the report said. The U.N. report included an account from Zainabo Alfani in which she said she was forced to watch rebels kill and eat two of her children in June 2003.

The report said, "In one corner, there was already cooked flesh from bodies and two bodies being grilled on a barbecue and, at the same time, they prepared her two little girls, putting them alive in two big pots filled with boiling water and oil."

Her youngest child was saved, apparently because at six months old it didn't have much flesh. Alfani said she was gang-raped by the rebels and mutilated. She survived to tell her horror story, but died in the hospital on Sunday of AIDS contracted during her torture two years earlier, the U.N. report said.
In Uganda, the Lord's Resistance Army has abducted some 20,000 children and forced them to become either soldiers or slaves. The attacks have displaced nearly 2 million people and every night, tens of thousands of children trek to the cities to sleep, in hopes of avoiding the rampant kidnapping. For years, the LRA had been supported by the government in Khatroum, the same government now responsible for the genocide in Darfur.

In the Congo, an estimated 3.5 million people have died of disease, starvation and violence since 1998. The situation in the Congo can be directly traced to the 1994 genocide in Rwanda, which itself took nearly 1 million lives. There are currently 19,000 UN peacekeepers in the Congo with a mandate to disarm the militias, but so far they only attention this peacekeeping force has received has come from allegations that soldiers are sexually abusing the residents of the DRC.

Darfur is an anomaly only to the extent that it has managed to generate a significant amount of coverage and global attention. But if the world does not act soon to address this genocide in Sudan, is it all but inevitable that it too will eventually evolve into years-long, seemingly intractable conflict such as those found in Uganda and Congo.

And as we've seen with Congo and Uganda, once that happens, the world
will stop paying attention entirely.

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Monday, June 13, 2005

Just In Case Anyone Cares

I suppose we would be remiss as a "legal" blog (defined as a majority of the posts having to do with the law in one way or another) if we did not take time to note the fact that a jury of Michael Jackson's peers (what an interesting group that would have been if the phrase "jury of your peers" were ever to be taken literally) has found him not guilty on all 10 criminal counts. The usual websites (CNN, Foxnews, Washington Post, etc.) will provide more details on this uninspiring and not to mention legally insignificant event.

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Thursday, June 09, 2005

Jefferson and Conservatives

I have many pet peeves. Topping the list are those pesky critters who run for the train and hold the doors open in act signifying that they believe they are the most important people on Earth, and they can't wait those sixty seconds for the next train. People who hold elevator doors open to carry on conversation, people who drive slowly in the left lane, people who stand on the left side of the Metro escalator: all major pet peeves. But also near the top are those conservatives who wax poetic for Thomas Jefferson.

I don't get it. Don't these people understand that he's the last one among the Founding Fathers that we ought to hold in veneration? Probably not. Most conservatives know two things about Jefferson - he wrote the Declaration of Independence and he was for limited government. That's enough for some to think he was a paragon of early American conservatism. And yet nothing about Jefferson's ideology is compatible with those issues conservatives hold dear.

Jefferson was the first of those hated secularists. Some tend to dismiss the "wall of separation" metaphor as being misunderstood, but it is not. Jefferson disliked organized religion, and wanted religion to be as divorced from the public sphere as many of those on the modern left. He was comfortable in the continental (French) enlightenment world of Voltaire and others who disdained religion.

Further, Jefferson's constitutional theory is decidedly unconservative. There are those who might point to Jefferson's "strict constructionism" as evidence to the contrary, but this strict constructionist ideology was based on the belief that constitutions should be frequently altered. He believed that each generation was independent of the other, the dead having no rights. As such, the will of each succeeding generation should determine the constitutional structure. Thus Jefferson's strict construction was tied to a decidedly populistic ethos. Since the constitution theoretically emanated from the people's will, that will should be respected. But the popular will was ever-changing, and therefore the constitution should adapt to the generational will. Thus Jefferson's constitutionalism was relatively ungrounded and rather transient.

It is true that Jefferson distrusted governments and was not a fan of energetic government, but there's more here than meets the eye. First of all, one would be hard pressed to find anyone of the Founding generation who was much of a fan of activist government. I would posit that even Hamilton would be uneasy with the current behemoth that is the federal government. And yet the Framers constructed a constitution that was a response to the inefficiency of the Articles of Confederation government. They did not seek to construct a completely inefficient and unenergetic central government, but rather they worked to strengthen an institution that they felt was too weak to provide security. Jefferson was ideologically sympathetic to the anti-Federalists, the uber states' righters if you will. While conservatives are generally more protective of federalism than the left, we cannot be ignorant of the role of the federal government. States should retain many rights and privileges that have been usurped, but by no means should we champion a federal government that is utterly incompetent to function effectively.

I sense that many on the right praise Jefferson merely because he was a member of the Founding generation. And while we should respect Jefferson's genius and talent, we also ought not lose sight of the fact that not all Founders were created equal.

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Good reform

On the other hand, some reform is both justified and necessary. A gross absurdity continues to play out in the Senate. The ever archaic institution refuses to file their financial reports electronically. House candidate and party committees, as well as the RNC and DNC, all file their reports electronically to the FEC. Not so for the NRSC, DSCC, or Senate candidates. There is no justification for the Senate's refusal to file electronically.

The silliness of the Senate's obstinance is magnified by the fact that the Senators and Senate committees use electronic software to compile the reports they print and send to the Secretary of the Senate. Thus they have the means to file the reports electronically, and no cost would be induced in mandating electronic filing. In fact they would save money because they would no longer have to file paper reports.

The Senate's failure to adapt to the 21st century means that their records are released later than the rest of the pack. As such, reporters and other citizen groups are unable to access financial records in the final days of an election. This lack of transparency is troubling, and wholly unnecessary.

Electronic filing is a simple change that costs nothing and is opposed by almost no-one excapt a couple of Senate dinosaurs. Just make the change already.

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A little campaign finance blogging

I’ve wanted to blog for a while on campaign finance issues, but have felt constrained due to my employment at campaign finance policy institute. Well, as of today that is no longer an issue, so here’s a look at the subject.

Everyone knows about McCain – Feingold, or as we say in the trade, BCRA (the Bi-Partisan Campaign Reform Act. On a completely side note, what is it about “bipartisanship” that gets people so wet? More than three people in each party agree on something and we celebrate like it’s 1999 or something. Usually bipartisanship simply means “Republicans sell out,” and this was no exception.) I opposed BCRA on both policy and constitutional grounds, and nothing that has occurred in the past three years makes me believe that my opposition was misguided.

On the plus side it can be said that it did not have nearly the deleterious consequences for the parties many feared. The Democrats in particular thought they would have been hardest hit thanks in large part to their over-reliance on soft money. As I mentioned in an earlier post, when it comes to campaign finance the Democrats have been the party of the rich and Republicans the party of the middle (actually that’s also the case when it comes to voting, but I’d hate to spoil the Democratic mythology of them being the party of the little guy). And at first the Republicans easily fared better than the Democrats. In the first 6 months of the 2003-2004 election cycle the RNC raised 55.6 million dollars as compared to 18.8 million for the Democrats, and still had a 2:1 advantage by the end of calendar year 2003. Overall, the three party committees on the Republican side – the RNC, NRCC (National Republican Congressional Committee) and NRSC (National Republican Senatorial Committee) raised more than double ($206.8 million as compared to $95.2 million) than the three corresponding Democratic committees. More importantly, Republicans were able to raise almost as much in hard money alone in 2003 as they had in hard and soft combined in 2001. The Democrats, meanwhile, were not quite as successful.

But the Democrats managed to erase most of the deficit in calendar 2004. A little Bush hatred went a long way. In fact by the end of the 2003-2004 election cycle the DNC wound up raising nearly $10 million more than the RNC, and the overall fiscal edge was very narrow for the Republican committees. All in all the six party committees managed to raise roughly 1.2 billion dollars in 2003-2004, more than the amount that they had raised in hard and soft combined in previous election cycles.

But the soft money did not disappear, at least not completely. The emergence of so-called 527 groups was one of the big stories of the 2004 election. And it is here where the Democrats held a severe advantage. Most of the primary groups and donors were left-leaning. Led by moguls such as George Soros and Steven Bing, the left funded a full throttle assault on the president in 2004 through groups like Move On and other left-wing organizations. Of course it wasn’t until the right funded one of their own – Swift Boats Veterans – that anyone noticed the “problem” that these 527 groups posed. So of course the guardian of our republic – John McCain – is paving the way for more legislation that will further erode free speech in this country.

This of course comes as a shock to approximately zero of BCRA’s critics. Anyone with a hint of common sense understood that one cannot remove money from politics. BCRA’s defenders now claim that they never intended to remove money from politics, but instead desired to remove the corrupting influences of said money.

But how is the present situation any better? Instead of all of the money being streamlined to the parties, a cacophony of interest groups has emerged to claim influence upon the electoral system. Had John Kerry been elected last year (shudder), would he have owed any less to George Soros than had Soros given his millions directly to Kerry’s campaign or to the party? Soros could easily have laid claim to being chiefly responsible for Kerry’s election, and who knows how beholden Kerry would have been beholden to appeasing Soros’ ideological interests.

No matter how you cut it, this is a repudiation of BCRA. Let’s say that the money that Soros raised is not a “corrupting” influence. No matter how many millions one raises for a candidate or in the interest of a candidate, the candidate will primarily be beholden to his or her constituents. Then why did we need BCRA? On the other hand, if money is as corrupting an influence as reformers say it is, it’s clear that BCRA failed in its aim to remove the corrupting influence of money. And no matter what reform comes next, the money will find a way into the system. The only real effects of reform are to make the system more complicated and to stifle freedom of political speech – in other words the very type of speech the Framers of the Bill of Rights intended to protect.

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Wednesday, June 08, 2005

Welcome to the Hood, Janice!

Earlier today, the United States Senate confirmed Janice Rogers Brown to a seat on the federal Court of Appeals for the District of Columbia Circuit by a vote of 56-43. It's about goddamn time.

I would be remiss as a weblogger if I did not recap why Democrats had been so opposed to having Brown on a federal appeals court. No, it's not because she was evil, or because she was mean, or because she ate children in the dark of night (although if you listened to the DNC and its subsidiary spin machines, you probably would have thought all of the above). No, she was -- and is -- so despised by the modern American left for three basic reasons:

1) she is black;

2) she is conservative;

3) President Bush had the audacity to win re-election last fall.

Like Miguel Estrada, Brown represents the worst kind of threat to the liberal ideology: an articulate, intelligent, non-white conservative jurist who reads laws as written and applies them to the cases at hand. Such radicalism simply cannot be countenanced in liberal circles, for two reasons: it prevents liberal judges from advancing their unwritten agenda, and it shows America's minority populations that success can be gained by means other than handouts offered by the DNC.

Janice Rogers Brown will make a great appellate judge. Only time will tell if this is her last stop. I hope it's not.

Update: Thursday, June 9, 2005 at 10:19 p.m.: I realized, after reading the above post, that the purpose of the title of the post might not be entirely clear to those new to our little parcel of the blogosphere. (Cut me some slack; it's been a long, long week.)

Some background: for those of you who don't know us, Mouldfan, Repeal22, Unconfirmable, and I all graduated from law school in the recent past, and the commencement speaker at our graduation was none other than the Honorable Janice Rogers Brown. In her speech, she used the line, "Welcome to the hood," referencing the graduation hoods we donned as part of the graduation ceremony.

Hence, it is a little bit of an inside joke.

We now return to our regularly scheduled program.

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The Slow Reaction

The weekly Coaltion for Darfur post.

The big news regarding Darfur this week is that the International Criminal Court has formally announced that it is conducting an investigation into allegations of crimes against humanity in the region.

This investigation is a welcome, if belated step, but one that is also unlikely to have much of an immediate impact on the violence, disease and starvation that plagues the region.

The investigation is the result of a UN commission of inquiry that began in September 2004. Established under UN Resolution 1564, the commission took three months to investigate "violations of international humanitarian law and human rights law in Darfur by all parties, to determine also whether or not acts of genocide have
occurred." In the report it issued in January 2005, the commission declared that genocide was not taking place, but that "serious violations of international human rights and humanitarian law amounting to crimes under international law" had indeed occurred. The report went on to recommend that the UN Security Council refer the situation to the ICC for possible prosecution.

In April, the Security Council did just that and turned over evidence gathered by the commission, including the names of 51 people suspected of punishable crimes. And now, two months later, the ICC has finally begun an investigation.

It has taken nine months from the time the Security Council authorized the commission to investigate the crimes in Darfur to reach the point where the ICC has finally launched an official investigation.

The ICC has only been in existence for three years and has yet to indict or hold a trial for anyone connected with either of its two other cases, despite the fact that the ICC began its probe of Uganda in January 2004 and the Congo in April of the same year.

Furthermore, the ICC statute itself contains a provision (Article 17) regarding "complementarity" that grants states the priority to try their own citizens for crimes that fall within the ICC's jurisdiction. The ICC thus has no jurisdiction over these cases unless it can be determined that "the State is unwilling or unable genuinely to carry out the investigation or prosecution." And making that determination is going to take time.

Considering that Khartoum has already begun to look at ways to exploit this provision and is openly rejecting calls to cooperate with the ICC, it is likely that, as Nat Hentoff noted, "It will be at least a year, maybe two, before the ICC even issues its first indictments."

We ask you to join the Coalition for Darfur as we attempt to raise awareness of this genocide and collect contributions for worthy organizations providing life-saving assistance to the forgotten people of Darfur.

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. . .and giving and giving and giving . . .

Howard Dean, bless his heart, just does not know when to shut up.
Democratic National Committee chairman Howard Dean, unapologetic in the face of recent criticism that he has been too tough on his political opposition, said in San Francisco this week that Republicans are "a pretty monolithic party. They all behave the same. They all look the same. It's pretty much a white Christian party."

"The Republicans are not very friendly to different kinds of people," Dean said Monday, responding to a question about diversity during a forum with minority leaders and journalists. "We're more welcoming to different folks, because that's the type of people we are. But that's not enough. We do have deliver on things: jobs and housing and business opportunities."
At this point I just pray the Democratic party continus to fail to come to its senses.

What's wonderful about Dean is that he's failed to do the one thing that he was essentially hired to do: energize the Democratic base. The RNC has doubled the DNC in the amount of receipts it has taken in thus far in the election cycle. In April alone the RNC almost raised as much money as the DNC had all year.

So the guy is out there alienating moderate voters AND has shriveled the donor base of his party. He may have been a crapweasel, but at least Terry McAuliiffe was an outstanding fundraiser. After the passage of BCRA (McCain-Feingold), it was widely assumed that the Democratic party would be at a tremendous disadvantage because it relied far more heavily on large donors - yes, the party of the average man was much more dependent on rich fatcats while the supposed party of the rich was far more able to entice contributions from middle-class donors. And yet McAuliffe's DNC pretty much attained parity with the RNC by the end of the 2004 election cycle. But that has been wiped out in the short-tenure of Howard Dean.

So the question stands: what exactly does Chairman Dean do for the Democratic party other than provide the GOP with an excellent target?

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Tuesday, June 07, 2005

The Medical Marijuana Myth

The hearts of anarchists and federalists alike are atwitter in the wake of the United States Supreme Court's decision in Gonzales v. Raich, which was handed down early yesterday morning. I leave for those more astute legal minds among us (read: those with more free time) the job of tackling the issue of whether or not today's decision is a blow to federalist principles.

This post has but one purpose: to attempt to put to lie the ridiculous idea that marijuana is in any way medicinal. Despite the assurances of the maggot-infested hippie lobby, which is in conjunction with the Cali cartel lobby, I submit to you that marijuana has no medicinal value whatsoever. None. Zip. Zero. Nada.

My three years in the District of Columbia allowed me to have some really cool internships, and one of those cool internships just happened to be at the White House's Office of National Drug Control Policy (ONDCP). While there, I had occasion to meet with John P. Walters, President Bush's ONDCP Director. I remember on one specific occasion, Mr. Walters, during a meeting about the seeming epidemic of so-called medicinal marijuana bills that were wending their respective ways through various state legislatures, made a seemingly obvious (yet frequently ignored) point, the gist of which was as follows:
Marijuana has no medicinal qualities whatsoever. It does not cure disease; it
does not even lessen the underlying medical symptoms that cause people pain. All
marijuana does is create a high, which overrides the pain itself. Calling marijuana
medicinal is akin to calling a bottle of vodka, or heroin, or crack-cocaine,
Simply stated, Mr. Walters was, and is, right on the money. Something is not "medicinal" merely because it reduces pain. Something is medicinal if it has curative capacity. Something that allows someone to get high is really just another drug with an unknown potential for harm. Even if marijuana were found to have no harmful effects whatsoever -- a claim that has yet to be proven by any medical research conducted to date -- such news still would not qualify marijuana as medicinal in the traditional sense. Only the intentional blurring of the line between the medical and recreational drugs is what has allowed this insane debate to last as long as it has.

So put that joint down, now. I don't care if you do have a headache.

P.S. Okay, okay, I couldn't resist. Regarding the federalism brouhaha: I think Raich has far more claim to legitimacy than did Wickard and its progeny, particularly when you consider that Raich, unlike Wickard, deals with activities considered criminal by the federal government and non-criminal by some state governments, whereas good ole Wickard somehow found non-criminal agricultural production to be prohibited as deleterious of our very national fiber under the Commerce Clause. (I mean, destroying one's mind via drug use is fine, but watch out for those shady farmers, growing half-bushels of wheat under cover of darkness.)

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Gonzales v. Raich: Intellectually Disappointing

Personal note: this is the fourth time that I have tried to write a post regarding the Court’s decision yesterday in Gonzales v. Raich, each time I got about ½ way done and realized that I didn’t have anything profound to say. At first I chalked this up to a long day’s work and no brain power left. Upon later reflection, however, it occurred to me that my lack of things to say is because there simply isn’t anything to say. The decision, for all its hype, really doesn’t, in my opinion, add or detract anything substantial to our understanding of the Commerce Clause or its scope and application. Advocates for both positions were looking for something much more from this decision than they got, which makes it arguably the decision most analogous to the dud firework on the 4th of July, started out with great expectations and tremendous promise, ended in a disappointing result.

Why is this case disappointing? Well, in large part its because frankly a first year law student, or a senior in college with a bit of both American history and political/legal savvy could have written it. No disrespect to Justice Stevens intended, but his opinion is more or less a textbook example of 1L legal reasoning: State the facts; describe the competing applicable precedents (in this case Wickard and Lopez/Morrison); apply the facts to the law (holding that these facts are similar to Wickard); and distinguish the remaining applicable cases (holding that Lopez/Morrison does not apply because the activity at issue is "commercial" in nature). Presto, Supreme Court majority opinion. A magical formula to be sure, but one that leaves many of us, myself included, wondering that, if the case was really as cut and dry as Stevens made it, (a) why did the Court take so long to announce its decision? and (b) why was there so much pre-decision speculation and anticipation over this case?

The fact remains that the Court failed to provide a response to, or even address what I thought was the biggest unanswered question, namely, how is that Wickard and Lopez/Morrison can co-exist? Essentially, the Court response was, they can because we say they can and we will decide which decisions apply on a case-by-case basis. Only Justice Scalia’s concurrence even attempts to reconcile the two strands of cases, and he does so by attempting to argue that the "necessary and proper clause" will determine when Wickard applies and when it does not. Stevens notes the "necessary and proper clause" in the majority opinion, but declines to provide any analysis as to its application. One might read this majority opinion as holding that if a federal regulation needs 100 points to be considered constitutional, the commerce clause alone may get you 85 of them, but in order to achieve the other 15, Congress will have to show that the law is "necessary and proper" to achieve its ends. This might create a new theory of "commerce plus," but given the lack of analysis by the majority, we don’t really know what to make of the idea of the commerce clause + the necessary and proper clause.

On the other hand, some may argue that this opinion means that Lopez and Morrison were "paper tigers" and not truly a "federalism revolution." This I think overstates things a bit. Lopez itself was more a result of bad statutory drafting than anything, Congress was both sloppy and lazy, and the Court called them out on it (this is evidenced by the fact that subsequent to the decision Congress amended the Gun Free School Zone’s Act to include a interstate commerce requirement and it has since been upheld as constitutional). Morrison, however, was clearly a stretch by Congress and can simply be characterized as an overreach that was likely correctly decided by the Court. That being said, the cases clearly contained language that indicate they are more than mere "paper tigers" and have had the effect of limiting Congress somewhat in its use of the Commerce power.

In the end its hard to know what to make of Gonzales v. Raich, however, I will take this opportunity to respond to two point that GC made in his previous post. The first deals with "medicinal use," while the second will address his thoughts on Raich versus Wickard. I should first state that with respect marijuana use I have no personal experience so I have no idea what, if any, effects it has on the body or mind. In fact, in the interest of full disclosure, I was a registered voter in CA at the time this law was on the ballot and voted NO, so I am really the last person to be arguing for its legalization, medicinal or otherwise. That being said, GC’s point that "[s]omething is not ‘medicinal’ merely because it reduces pain. Something is medicinal if it has curative capacity" seems to me to be incorrect. By this rationale, it seems to me that all pain killers should then be illegal. Tylenol, Advil, Motrin, Aleve, Aspirin, Excedrin, none of these commonly used products or even their more potent prescription versions has a "curative capacity." Tylenol doesn’t actually heal my headaches, and Advil doesn’t make my damaged knees or my inflamed ligaments heal, they merely reduce my pain and allow me to do things that without them I would be less inclined to do. Similarly, medicines for arthritis and many other diseases don’t have any "curative capacity" they simply make living with the affliction tolerable. All this is by way of saying that I think GC’s definition of medicinal purposes is far to narrow, and in fact, misses the point. Now I don’t know if marijuana is like Tylenol or Advil or not, but I have read the anticdoctial evidence, which suggests that, for some people, marijuana is the only thing that reduces their pain (after having tried every other available pain killer) and promotes appetites, especially in people who are undergoing chemotherapy for the treatment of cancers. So I think that both GC and John P. Walters, President Bush's ONDCP Director need to reevaluate their definition of "medicinal purposes."

My second response to GC has to do with this assertion:

Raich, unlike Wickard, deals with activities considered criminal by the federal government and non-criminal by some state governments, whereas good ole Wickard somehow found non-criminal agricultural production to be prohibited as deleterious of our very national fiber under the Commerce Clause.

I’m not sure that the criminal element has anything at all to do with the decisions in either case. Justice Scalia, for one has lamented time and again (including at a speech that both GC and I attended) regarding the federalization of criminal laws, yet look at his vote in this instance. Further, I would remind GC that the Agriculture Adjustment Act (AAA) that prevented Mr. Wickard from growing excess wheat, did make his actions a violation of the law, just like possessing marijuana is. While I’m not certain what the penalty for violation of the AAA was, it seems to me that Mr. Wickard’s actions were just as "illegal" as Ms. Raich’s were. Thus, the fact that the decision in Raich deals with "contraband" as opposed to an acceptable commodity such as whole grains, seems to me to not matter at all. If one does not think Wickard to be a
legitimate use of the commerce power, I fail to see how they could support the decision in Raich, unless they impose their personal political preference in opposition to the legalization of marijuana. Opposition to marijuana is perfectly reasonable, in fact, I personally agree, but I’m not sure that the two positions are consistent.

I personally think Wickard was properly decided, or at least can be defended, thus I’m not
as troubled by the Raich decision. While I would have liked a better opinion from the majority, the result is acceptable. I’ll close with this thought, the next big "commerce" case may deal with the State of Oregon’s assisted suicide law, I’m sure Raich will have an influence there and
we may have to wait for that decision before concluding with any certainty what Raich means.

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Monday, June 06, 2005


Journey with me into the mind of a maniac . . ." Dr. Dre and Ice Cube

I am not quite sure if this is the sappiest or stupidest post ever out up by your truly, but here goes.

This is last post that will ever be posted from this computer, this computer meaning the Gateway that "I" (read: mother) bought immediately after college graduation. One of the greatest benefits/tragedies of my life is that my mother is a compulsive shopper. Nothing demonstrates this fact more than the fact that she bought a brand spanking new Dell less than 2 years ago, along with a printer worth arguably more than the computer itself. What has my soon-to-be 69-year old mother done with computer? Well, she graduated from solitaire long ago to spider-solitaire, and has long since stopped doing anything even remotely useful with said instrument, so it's time I took it off of her hands.

So now I am in the process of transferring files. One of the hardest nuts to crack is Napster. I have some 145 songs that needs be transferred, and e-mailing myself via a winzip file has proven to be fruitless. Webgeeks, this question is for you: shall I just transfer stuff to a USB drive and then place that on the new computer for my shiny new IPOD?

Other than the minor details of file transferrence - my mom's computer doesn't even have a floppy drive, so I'll have to find a different way to transfer my dissertation and other documents - this change means I will have to wave goodbye to my reliable old Gateway. And only a sentimental old geek such as yours truly could be somewhat whispy about the prospect of - gasp - changing computers.

But this puppy has been with me since college graduation, meaning 6 whole years. And as my 10th high school reunion approaches, it is perhaps not inappropriate to think over how much life has changed in those six years. This is the instrument through which I kept in touch with some college chaps immediately after graduation. This is the machine on which I wrote more graduate papers than I care to think about, not to mention 170 draft pages of a dissertation. I wrote a novel - or two - on this thing. I applied for grad school, wrote some blog posts or a thousand upon it. When I started I was writing on my college's intranet site, and now I am being published on a medium (theoretically) available for the whole world to read. It was on this machine in the Fall of 1999 that I expressed my sorrow over Kenny Rogers walking in the winning run of the 1999 NLCS, and it was on this machine about a month ago that I acquired Kenny Rogers and his 7 straight wins and sub 2.00 ERA for my fantasy baseball team.

It was on here that I expressed the joy of landing my first salaried job, and then the second, about five years later. I counseled Mary Worth's suicide (or not).

So many times I have cranked Pat McCurdy's anthem of "Sex and Beer" as I railed against some form of social corruption. Hey, we can't always be consistent.

Maybe it's the Alpha Phi Omega in me that makes me whispy about changing computers. Unlike so many of my brothers I am able to handle human communication beyond the internet. But as I listen to "Uncle Fucker" one last time from this computer, I just can't help but feel a little nostalgic.

Goodbye old friend.

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