The Political Spectrum

In Mari Matsuda’s Public Response to Racist Speech: Considering the Victim’s Story (Michigan Law Review, Vol. 87:2320, August 1989), Dr. Matsuda offers that “[her] [a]rticle attempts to begin a conversation about the first amendment that acknowledges both the civil libertarian’s fear of tyranny and the victim’s experience of loss of liberty in a society that tolerates racist speech. It suggests criminalization of a narrow, explicitly defined class of racist hate speech, to provide public redress for the most serious harm, while leaving many forms of racist speech private remedies.” Acknowledging that the article in question is more than 15 yrs old and that some of the research, on which it is based, may not reflect the current climate of racism and hate speech in the U.S., her arguments and conclusions seem to reflect an activist approach to law that negates the long-held beliefs and applied principles in Western and, particularly, American jurisprudence as applied to free speech.

Dr. Matsuda approaches her subject from the perspective an aggrieved party; noting that “[a]s a young child I was told never to let anyone call me a J-p. My parents, normally peaceable and indulgent folk, told me this in the tone reserved for dead-serious warnings… Don’t let anyone call you that name. In their tone they transmitted a message of danger, that the word was a dangerous one, tied to violence.” At its root, her assessment of the effect of racist and hate speech on persons of historically persecuted groups is that of continued violence.

She draws no distinction btwn actions of violence, be those actions discrimination in hiring, housing, or association, physical violence, or the misappropriation of law, and the speech that she sees as underlying and supporting it. Her article is chocked full of individual incidents of discriminatory actions and words. She uses these stories to support the contention that racist words are, in and of themselves, a form of violence. She notes that “[i]n addition to physical violence, there is the violence of the word. Racist hate messages, threats, slurs, epithets, and disparagement all hit the gut of those in the target group. The spoken message of hatred and inferiority is conveyed on the street, in schoolyards, in popular culture and in the propaganda of hate widely distributed in this country.”

Further, while acknowledging that the “elite” have officially renounced violence and hate propaganda, she charges that they tolerate “other forms of racism.” She states that “Jim Crow, which persists today in the form of private clubs and de facto segregated schools and neighborhoods, is seen as less offensive than cross burnings. Covert disparate treatment and sanitized racist comments are commonplace and socially acceptable in many settings… Lower- and middle-class white men might use violence against people of color, while upper-class whites might resort to private clubs or righteous indignation against ‘diversity’ and ‘reverse discrimination.’ Institutions- government bodies, schools, corporations- also perpetuate racism through a variety of overt and covert means.”

Dr. Matsuda sees the common-thread to this disparate treatment, discrimination, and violence as the tolerance of racist and hate speech under the pretext of 1st Amendment protection. She alleges that “[l]ess egregious forms of racism degenerate easily into more serious forms;” that “[violence is a necessary and inevitable part of the structure of racism;” and that “[t]he historical connection of all the tools of racism is a record against which to consider a legal response to racist speech.”

Critical to her argument is the separation of persons into two groups: Dominant Group members and Target Group members. Although neither group is explicitly defined by Dr. Matsuda, the Dominant Group seems to be comprised of white, main-stream Americans (particularly males), occasionally including the discrimination of individuals by groups of minorities (e.g. the oft-cited interaction between African and Asian Americans). The Target Group is comprised of all persons who may suffer violence (physical, psychological, emotional, or verbal) on the basis of their historically persecuted class. Thus, every group not fully integrated, and indistinguishable from, white, main-stream America may fit into the Target Group.

On its surface, lumping all persons, not subject to racial and hate targeting into a broad category under the rubric of “Dominant Group” would seem unjust. She tacitly acknowledges that there are white persons in America who are not inclined towards outward displays of racism or hate. However, citing such phenomena as “whites treat[ing] African Americans with ‘verbal over-friendliness, coupled with vocal and behavioral cues of affective retreat,’” she, startlingly asserts that “Dominant-group members who rightfully, and often angrily, object to hate propaganda share a guilty secret: their relief that they are not themselves the target of the racist attack. While they reject the Ku Klux Klan, they may feel ambivalent relief that they are not African-American, Asian, or Jewish. Thus they are drawn into unwilling complacency with the Klan, spared from being the feared and degraded thing.”

Accepting, for the moment, that Dr. Matsuda’s characterization of Americans as falling into one of two groups: the Dominant Group (hereinafter “DG”) or the Target Group (hereinafter “TG”), is an accurate representation of race relations in the United States in 2005, the genius and breadth of her argument and proposal can be appreciated. She is arguing for the complete obliteration of constitutional protection for speech that is directed at groups and individuals on the basis of their membership in the TG. Her approach is to treat as sui generis all such speech and accomplish a universal condemnation “on the basis of its content and the harmful effect of its content. This can only be accomplished by “legal intervention, including the use of tort law and criminal law principles” to “combat racist hate propaganda.”

While Dr. Matsuda gives a nod to classical arguments in favor of limited restrictions on free speech: the “marketplace” of ideas, fundamental rights to self-expression, the hesitancy to apply subjective determinations of legal action to normative behavior, and the value in bringing false ideas into the light of public conscious, she makes good use of our traditional exceptions to these principles. She notes that the state provides for the curtailing of “[c]onspiratorial speech, inciting speech, fraudulent speech, obscene speech, and defamatory speech. However, she pointedly asks “whether the values of the first amendment are in irresolvable conflict with the international movement toward elimination of racist hate propaganda, and whether any attempt to move United States law toward the international standard is worthwhile.”

In essence, Dr. Matsuda is arguing that free speech jurisprudence has ceased evolving because it continues to afford constitutional protection to that which is out of step with modern norms as exemplified by international law. She is arguing that, by viewing free speech, as it relates to racist and hate messages, from the victim’s perspective, we can affording individuals, who regularly suffer indignities, the constitutional protections that they are entitled to; that, by making actionable the use of racist and hate speech, we can fulfill the promise of equal protection under the law. She eloquently asserts that “[t]he competing values recognized under international law are equality, liberty, and personality. Each person under that scheme is entitled to basic dignity, to nondiscrimination, and to the freedom to participate fully in society. If there is any central principle to the Bill of Rights, surely that is it.”

Finally, of the approaches, currently in use by the courts, she asserts that “[t]he alternative to recognizing racist speech as qualitatively different because of its content is to continue to stretch existing first amendment exceptions, such as the ‘fighting-words’ doctrine and the ‘content/conduct’ distinction. This stretching ultimately weakens the first amendment fabric, creating neutral holes that remove protection fro many forms of speech. Setting aside the worst forms of racist speech for special treatment is a non-neutral, value-laden approach that will better preserve free speech.”

She offers a three-part test to determine which speech should be barred from constitutional protection: 1) the message is of racial inferiority; 2) the message is directed against a historically oppressed group; and the message is persecutorial, hateful, and degrading. Her examples of the application of this test are illuminating. “Using these elements narrows the field of interference with speech. Under these narrowing elements, arguing that particular groups are genetically superior in a context free of hatefulness and without the endorsement of persecution is permissible. Satire and stereotyping that avoids persecutorial language remains protected. Hateful verbal attacks upon dominant-group members by victims is permissible. These kinds of speech are offensive, but they are, in respect of first amendment principles, best subjected to the marketplace of ideas. This is not to suggest that we remain silent in the face of offensive speech of this type. Rather, the range of private remedies- including counter-speech, social approbation, boycott, and persuasion- should apply.”

Her reasoning for including “[h]ateful verbal attacks upon dominant-group members by victims” in her examples of non-actionable, objectionable speech, fleshes out her argument. She notes that “[e]xpressions of hatred, revulsion, and anger directed against historically dominant-group members by subordinated- group members are not criminalized by the definition of racist hate messages use here.” However, such speech must be permitted because “[t]he dominant-group member hurt by conflict with the angry nationalist [TG member] is more likely to have access to a safe harbor of exclusive dominant-group interactions.” In her view, “an angry, hateful poem by a person from a historically subjugated group [is] a victim’s struggle for self-identity in response to racism.”

In applying the Matsuda Test, she would have the court “determine when subordination exists by looking at social indicators; wealth, mobility, comfort, health, and survival trend”. And, further, “[i]n the same way that lawyers martial evidence in an adversarial wetting to find facts in other areas of law, we can learn to do the same to know the facts about subordination, and to determine when hate speech is used as an instrument of that subordination.” To help the court apply this test, she suggests that “[t]he appropriate standard in determining whether language is persecutorial, hateful, and degrading is the recipient’s community standard” because “the various subordinated communities are best equipped to analyze and condemn hate speech arising within their midst.”

Dr. Matsuda’s piece is far too lengthy to give a full rendering here. Furthermore, her work includes numerous subtle arguments that are worthy of posts on their own. Therefore, I will take issue with only two of her arguments: 1) that racist and hate speech can only be addressed from the perspective of the Target-Group member, and 2) that the eradication of racism and hate propaganda can be accomplished only through a specific prohibition and legal action.

“Group identity” has its root in the notion that there is a common experience to which every member can relate. Race, religion, stature, economic position, education, disability, skill, membership, and a host of other notions of “personal traits” exist solely in the human mind. The terms and their specific meanings are only “real” inasmuch as an individual identifies them and accepts their “reality.” Thus, a person may consider themselves to be “fat” or “weak” or others to be “obnoxious” or “ugly.” None of these characteristics have any actual meaning and, thus, none of them can create a truly natural grouping. (Compare this with concepts of species or other physical properties that are not subject to viewpoint. A dog or a human or a horse are all distinct groups of creatures. A metal is not organic and a stone is not “animate.” )

How then can we trust a particular person to identify that which should be subject to legal action?

Matsuda seems to be saying that there is a common experience to all TG members’ that puts them in a unique position to determine what is or is not offensive. But, is not such a determination inherently particular?

Most legal and enforcement authorities acknowledge that there is no “truth” with regards to human experience. This is to say that there is the particular viewpoint of each individual, whatever Platonic truth there may be to the incident in question. There are disputes about what was said, what was done, what was intended, about body language, circumstances, timing, order, and an host of other factors, all of which speak to the meaning of an encounter between the parties involved. Therefore, making actionable the words of a party on the basis of the other party’s perception is inherently unjust.

More importantly, such a test falls decidedly outside of our legal tradition. Not since pre-colonial days have we permitted the plaintiff to submit the problem and evidence while denying the defendant the right to dispute those contentions. By establishing such a standard to racist and hate messages, to which a court will not permit any answer that is not grounded in the plaintiff’s perception, we would be extending a strict-liability system to another area of free-speech.

This would be to equate free speech as it relates to child pornography to free speech as it relates to subjects of far more nebulous areas such as race-relations and religious disputation. Without actual facts (and the perception of individuals should not be considered “facts” under our system of laws), penalties that arise out of such cases would be inherently unjust.

This is not so say that racist speech and hate propaganda cannot be addressed in a court of law. We already have the necessary legal tools at our disposal.

We have outlawed illegal trespass, vandalism, assault, arson, and terroristic threats. It is illegal to burn something on someone else’s property, to vandalize their home, to terrorize them, and to assault them. These are individually actionable offenses well understood and proved in court. Why should we create a further burden on the Federal system or restrict free speech to accomplish what is already addressed through state action?

This brings us to the second question: can the eradication of racism and hate propaganda can be accomplished only through a specific prohibition and legal action?

Dr. Matsuda wrote her article in 1989. Therein she asserted that there was a “rising tide of racial hatred wash[ing] over our schools and work places.” Accepting that her research bore out this conclusion, it is fair to ask whether that analysis holds up today. I would suggest that it does not.

Jim Crow laws have been eradicated and discrimination has been driven underground. In essence, institutionalized racism has disappeared from the American scene. If Matsuda’s goal is to attack the insidious racism that lives within society but is not engrained in the institutions, making those inclinations actionable will have the opposite effect. Furthermore, exempting one group or individual from action because of their, virtually, arbitrary designation will breed contempt for law.

I suggest that it is normal for human beings to feel a pull towards that which is familiar and common and to be repulsed by that which is foreign to their experience or notably different in appearance. These inclinations are controlled and subordinated by experience and engagement. Thus it is not, as Matsuda suggests, necessarily a misrepresentation of true emotions and thoughts to treat persons different from themselves with courtesy and, even, affection. It is possible, even common, for Dominant Group members to subordinate, over many years, their acknowledgement of difference until they become, largely, “colorblind.” It is also possible, even common, for Target Group members to accentuate, over many years, the differences between themselves and others until they become, largely, blind to the common traits of humanity.

Therefore, forcing the extreme forms of racial and hate speech underground will have a chilling effect on the necessary engaging of persons of different backgrounds. Afraid to discuss their conceptions of one another, developing an awareness and affinity for the views of one group or another would undermine the progress of the last fifty years. It is only through dialog that continued progress can be made. Therefore, racial speech, however detestable, must be protected under the 1st Amendment. Where it steps over the line into action which caused real or perceived discrimination, we have civil remedies. Where it steps over the line into action which causes real or perceived threats to safety of person and property, we have criminal remedies. But, stifling such speech is not an effective answer to the social consequences of racism or hate speech.

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First of all, excellent pick, Mr. President. I have to tip my hat to him for getting it right, and for disregarding gender politics. Kudos.

Second, as Gipper predicted, the left-wing bashing has begun in earnest. Feddie is compiling some gems over on Confirm Them. A few of my favorites thus far:

“This is another altar boy heading for the court to force winger Catholicism on the whole country. And yes, I know this type well, unfortunately, from personal experience.”

"Isn’t he the consigliaro for the Bada Bing Club?”

"What’s the deal? Are we moving toward an all Roman Catholic court?”

The horror! Another one of them greasy-haired eye-talians on the Court? Why, I bet he shows up wearing a sauce-stained wife-beater on his first day on the Court. And I suppose he brings knives to gun fights as well. Well, let's see if they let him and his dago moustache sit on the highest Court in the land. We must not let our fine judiciary be soiled with Catholic Italians from the northeast. We know what sort of trouble them wops can be.

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The other night I referenced this disgusting post from blogger Steve Gilliard. The original depicted Maryland Senatorial candidate Michael Steele as a minstrel performer, with black face painted over a, well, black face. The imlplication is that Mr. Steele is not authentically black because he has the temerity to be a conservative Republican. After a couple of days of being justifiably hammered in the blogosphere, Dilliard has now altered the photo so that it simply shows a smiling Michael Steele surrounded by dollar signs. The post title, "Simple Sambo wants to move to the big house," remains.

It has been argued in some corners that since Gilliard is himself black there's nothing wrong with his abysmal depiction of Lt. Governor Steele. Not only is it wrong, it is perhaps even more disgusting. It seems that Gilliard has appointed himself guardian of all things black, and he will not tolerate black political viewpoints which deviate from his own. This attitude has always greatly troubled me for it creates the impression that black people should be a monolith. One would think that after four decades of devotion to one party it would be men like Gilliard who would be viewed as suspect. After all, he preaches continued adherence to a party that has not done anything to manifestly improve the lot of blacks in this country.

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Seeing as how I didn't have internet access all day, I actually plunked down $1.00 today to read the New York Times because I was interested in reading Hugh Hewitt's article. I was set to write a response, but so many others have done so already, and I think I'd rather concentrate my fire on the absurd distortions of the left. For example, the Times says:Read more »

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Comment away as before.

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Despite having my response predicted, I'll make some observations about GC's post.  (Note, I know nothing about this suit or the verdict other than what I have just read on TPS)

1) You relied on news reports in relaying the results of what I can only assume were after a highly complex case, never a good idea.  They are often wrong, or at best not 100% accurate.

2) There is a good likelihood that this will be reversed on appeal as many verdicts of this type are.  

3) You didn't mention anything about damages.  Was this a bifurcated trial and the decision is only on liability, or was there money awarded?   If the latter, than in addition to reversal on appeal you have the likelihood of the appellate court reducing the award considerably, something else that happens quite often in these types of cases.

4)This remark not the least of which is that there are American attorneys out there who are essentially functioning as the U.S.-based Litigation Division of Al Qaeda by hitting institutions that have already been struck by terrorism a second time, this time with a bill, is so silly and outlandish that you should be embarrassed to have written it.  This case probably was well along the way prior to 9/11 so to connect the two in any way shape or form is ridiculous to say the least.  Moreover, to equate people who are exercising legal right afforded to them under the laws of their state to terrorist is just plain stupid and I know you know better.  You don't have to like plaintiff’s lawyers or what they do, but come on do you think that the lives and interests of those killed in 1993 are somehow diminished by what happened in 2001. I know you don't think that, so why accuse the people trying to vindicate those rights of being American terrorists?  I could go on here, but you get my point.

5) Federal legislation immunizing people from liability isn’t the answer to this problem.  That is only going to encourage people and corporations to act more irresponsible and will likely force taxpayers to bear the brunt of compensation as happened with the 9/11 victims compensation fund. As you probably know, that wonderful idea has suffered from all of your favorite government related maladies.  It vastly overcompensated some, grossly under-compensated others and has been mired in mismanagement allegations since its inception.  Is this really the system you would prefer?  Or should those innocent persons injured in terrorist attacks simply go uncompensated and be considered soldiers in the GWOT?

6) This was a jury verdict correct?  Thus, you can’t blame this on activist judges or anyone other than average New Yorkers.  Isn’t the jury system supposed to be the model of a western democratic society?  Is this not the same system that we are attempting to instill by gunpoint in Iraq?  For what it’s worth, contrary to GC’s beliefs about me, I’ve never been a big fan of juries in civil trials.  The Constitution doesn’t require them (except in criminal cases), and simply put, I’m snobbish and elitist enough to proudly say that I don’t trust 6 to 12 ordinary Americans to decide complex litigation cases after listening to a bunch of lawyers and experts for 10 months.  So if GC wants to be hyper-critical of the jurors themselves for making what he considers a bad decision and setting a poor precedent he’s not going to get much an argument from me, expect to say that you reap what you sow, and this is the result of having our modern “best in the world” legal system.  For all the good things that may come out our justice system, there is a lot of garbage as well.  This may just be exhibit A.

7) GC was right about one thing, I’m not a big fan of tort reform, because I don’t believe that the current system is broken.  People point to decisions like this all the time because all they see and hear about are the results.  We have no idea what went on during the years that this case was litigated prior to trial.  We have no idea if the Port Authority had opportunities to settle for far less than may have been awarded.  We have no idea what evidence was presented or what the basis of the legal arguments were.  We do know that procedurally this case was likely litigated before a judge on summary judgment and survived, which means that there was legal merit to the arguments, or at least factual disputes that required the case to go before the jury, but without having read the decision we can’t say whether that decision was correct or not.  While I’m more than willing to engage anyone, anywhere on the merits of the tort laws in this country, I can’t and won’t do it based solely on the results of a few specific cases that people don’t like.  When I defend the system as a whole, I’m more than willing to admit that has and will render some bad, unjust results from time to time.  That being said, I will guarantee that there is more justice done on the civil side of courthouses than ever could hope to be accomplished on the criminal side, especially at the state and local court level.  You don’t judge an entire legal system and body of law that dates back to English common law, on the merits of a few selected erroneous decisions, any more than I could defend it based on a few arguably “correct” decisions.  You have to take the good with the bad, and trust me when I promise there is far good produced overall than bad.

Okay, I’m done for now.  Harriet Miers withdrew this morning with the White House utilizing the Charles Krauthammer way out.  Now I think that will and should take up most of our time and attention, and I hope to have a post up regarding executive privilege soon.


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Congratulations to the 2005 World Champion Chicago White Sox. Another "curse" falls by the wayside.

Does this mean the Cubs will win next year?

Nah, didn't think so.

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We undeniable [sic] still have a justice system that does not provide justice for all as provided by the Pledge of Allegiance. One justice for the rich, one justice for the poor. One justice sometimes for minorities, one for whites.

Have you ever been torn between laughing and crying?  On the one hand, this comment is so patently absurd and horribly expressed that you can’t help but laugh at its inanity.  On the other hand, you realize that this was actually spoken by the current nominee to the Supreme Court, and you must weep for the future of your country.  

It just boggles the mind that this nomination can actually get worse, and even it’s even more mind boggling that there are people still willing to defend her.  And this is not even the worst part about this 1993 speech to the Executive Women of Dallas (see here for a link).  One example: she said that, “officials would rather abandon to the courts the hard questions so they can respond to constituents: I did not want to do that - the court is making me."  Then: “My basic message here is that when you hear the Courts blamed for activism or intrusion where they do not belong... Stop and examine what the elected leadership has done to solve the problem at issue and whether abdication to courts to make the hard decisions is not a too prevalent tactic in today’s world. Politicians who are too concerned about maintaining their jobs.”

Now, Rich Lowry had attempted to defend Miers, but Ramesh Ponnuru set him straight.  Clearly Miers is not arguing that the legislature has failed to “reign in” the Courts; rather, they have decided to step in when the legislature has failed to confront an issue.  This is a blatant advocacy for judicial activism.  When the judiciary takes it upon itself to “solve problems,” then that is the clearest description of judicial activism.  If the legislature is lax in addressing societal concerns, then voters ought to vote for change.  It is not the province of the Courts to legislate in lieu of the legislative branch.

I don’t know what else to say.  If you can read this speech and still say that she’s qualified to be sitting on the Supreme Court, then you’re just absolutely clueless.

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As I have mentioned previously, despite what I see as Bush's clear betrayal of the base on the Miers nomination, I refuse to completely abandon the GOP. Or, more precisely, I will continue to actively support good candidates.

With my move to Maryland next week, I will have the honor, about a year from now, to vote for Michael Steele in his bid for the Senate. He is an absolutely dynamic speaker, and he is completely in tune with traditional conservative ideology. And after viewing this absolutely vile blog post, I will watch with glee as he trounces the Democratic nominee.

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I saw the commercial last night, and now it's in print. The countdown to the new season of 24 begins, and you can view a teaser as well. Yee-haw!

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According to this site, our little corner of the internets is worth $ 9,032.64.  Not bad considering the zero start-up costs and minimal investment in time.  That’s $ 1,290.38 per contributor if we divide it evenly.  I suspect there are some very good arguments for a different division system, for those, I’ll direct you to the comments.

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Via the good folks at the Volokh Conspiracy, I recommend the reading of an essay titled The End of Federalism? by John C. Eastman at the Claremont Institute, a noted libertarian leaning think tank. His take on the prongs of the conservative collation in the 1980’s and early 1990’s, as well as how these prongs have shifted under the current Bush Administration, more or less articulate what I have noticed over the years.

While I agree with 90% of the piece, the one part I have to quibble with is the second to last paragraph, regarding the Oregon assisted suicide case, where Eastman writes that:

The Supreme Court heard oral arguments earlier this month in a case that would
prove a useful test of this thesis if Harriet Miers had already been sitting. At
issue in the Oregon assisted suicide case is whether the Attorney General's
re-working of a federal anti-drug law to pre-empt Oregon's assisted suicide
initiative was permissible. For strict constructionists and federalists, the
answer is a clear no. Article I of the Constitution assigns the lawmaking power
to Congress, not to the Attorney General, and there is nothing in the existing
statute regulating the interstate drug traffic that even hints at power over
wholly-intrastate drug use for purposes of physician assisted suicide. In other
words, the Attorney General's action violates the important (though admittedly
moribund) non-delegation doctrine, and exceeds the scope of federal power under
the interstate Commerce Clause as well.

This analysis is faulty for a couple of reasons, most importantly because it injects a constitutional argument where there isn’t one. The question presented by the Court in the case reads as follows:

Whether the Attorney General has permissibly construed the Controlled Substances
Act, 21 U.S.C. 801 et seq., and its implementing regulations to
prohibit the distribution of federally controlled substances for the purpose of
facilitating an individual’s suicide, regardless of any state law purporting to
authorize such distribution.

Note the absence of any mention of the Constitution or specifically the Commerce Clause. This is not to say that there are not potential Commerce Clause and federalism issues out there with respect to this issue, but merely that the Court didn’t take them, and from most of the accounts that I heard about the oral argument, wasn’t particularly interested in them. If one looks at this case from a statutory construction point-of-view as the Court seems to indicate it will, then it becomes much less obvious that the federal government overstepped its bounds. Note further that, to my knowledge, there has been few, if any, SCOUTS decisions overturning federal statutes on the basis of a violation of the non-delegation doctrine. It simply doesn’t happen often, if at all. Through a Commerce Clause lens I can see how Mr. Eastman got to where he was going, though he nicely avoids the complication presented by last terms Gonzales v. Raich decision, but even that might not pose much of an impediment.

Despite my nitpicking, this is an interesting little article that does something I for one greatly appreciate. It admits that the Court does things other than decide social “hot-button” issues, and points to cases and controversies that people ought to be concerned about when evaluating the Miers nomination.

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KYW News in Philadelphia has been reporting on the Councilman Rick Mariano ethics problems for several months. This morning, he was indicted.

http://www.kyw1060.com/news_story_detail.cfm?newsitemid=50096

This sordid tale is part of Philadelphia's infamous "pay for play."

Basically Philadelphia politicians run the city as though it is an exclusive Co-op store. As a normal course of business, our city councilmen and mayors solicit donations for their campaigns and political parties in exchange for business with the city and favorable treatment by city agencies. The corrupting influence has reached down to remarkably low levels, leading to recent incarcerations of religious leaders, owners of contracting firms, bank officials, and unelected government officials.

Rick Mariano is the highest ranking elected official to be indicted.

Setting aside the obvious caveat that he is "innocent until proven guilty," it appears that the "honorable" councilman permitted firms with business before his committees and agencies that he oversees to pay his personal bills and club memberships.

Mouldy, you'll appreciate what follows...

Mariano's attorney says "This is a witch-hunt against a councilman who's skin color does not insulate him from such trivial charges. His actions are minor in comparison to corruption in other cities across the country." And, further- "Rick is a fighter. He'll fight this case to the end and he knows how to weave and move." And, finally, our illustrious mayor counsels that Mariano's constituents "shouldn't lose faith in him since he has always been there for them and he needs them now more than ever."

I'm just sick of it all. THIS is a great example of why ethics matter and why the moral bankruptcy of elected officials is so awful. It just makes me so fricken mad.

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Alexandra at All Things Beautiful thinks that I might be a closet socialist. (Scroll way, way down, past the update jump). And what the hell is Orin Kerr doing in bed with me? Get out!

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I'm going to link to my Confirm Them post from last night picking apart Hugh Hewitt's latest efforts. It's a bit long, but so was the piece I was refuting. Afterwards, you can perform Professor Bainbridge's homework assignment.

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On Sunday, BBCNEWS online featured Condi's "triumphant return" to Alabama.

Whether or not Ms. Rice will run for President is not a new question. The same question is being asked of many political heavy-weights these days. Rice? McCaine? Clinton? Edwards? The political pundits have already started to forecast and speculate.

At this early date, I am loathe to even speculate about who would get the nod to represent their respective parties. I am even less inclined to speculate about who would win the general election.

What interests me is the potential for a Rice/Clinton matchup.

I wonder about the effect such a matchup would have on the political status-quo.

Both parties have fallen into an set pattern of representation based on poltical gerrymandering. This pattern seems to rely upon presumptions that would, it seems to me, be challenged by a Rice/Clinton matchup.

1) African Americans are overwhelmingly registered Democrat. This is a 50 year old standard that relies upon a "brand loyalty." Since the community is heavily influenced by faith-based organizations (Christian, Moslem, and Cultural-Elite), the affiliation with the Democratic Party is largely conditional. It is conditional upon a generalized perception that the Democrats are more supportive of the working poor than Republicans are. Right or wrong, this perception has kept African Americans in the Democratic camp.

2) Women's Rights organizations are singularly supportive of Democratic candidates. This support is often expressed in terms of abortion rights. However, their core values cut a much broader swath to include "singlehood" and other independence models.

3) Suburban and urban working women are split almost entirely along religious lines: Catholic and Evangelical Christians supporting Republican candidates and Jewish and ritualistic Protestants supporting Democrats. (These trends are evident in judgeship elections.)

So, I pose the question about what effect on this system a Rice/Clinton matchup would have. Assuming the both women were selected to run for President and their running-mates neither detracted from nor supported their candidacy, would there be a "sea-change" in the American political scene?

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Both Paul and Repeal’s previous posts got me thinking (yes, I know how dangerous that is, but sometimes I can’t help it despite my best efforts), what is it about law and ethics that makes so many people, including intelligent ones, (myself included) conflate the two to make rhetorical arguments? Perhaps it’s just poor or imprecise use of language. True, I argued that even if Tom Delay’s actions weren’t illegal, perhaps they were unethical. To which Paul responded that maybe I was right, but that he wasn’t sure because the laws regarding campaign finance are a joke. Then of course, whenever partisans engage in this debate there is always the Clinton example. Did the President act legally? Was lying under oath an impeachable offense? Was denying his affair ethical? Good, fair questions all, some of which have answers, some don’t. I don’t want to debate either the Clinton or Delay examples, but rather to explore the difference between that which is legal and that which is ethical. Then I want to leave with a question, namely, which standard do we want our elected officials to live by, a legal one, an ethical one, or if possible, one that is both legal and ethical? Hopefully this question will be clearer by the end to the post…if you can bear with me that long.

Let me start with the following premise: Law and Ethics are at best only tangentially related fields, and thus, are to be analyzed using different standards. Yes, there are overlapping concepts in law and ethics, but in a very real sense both of the following statements are true; “not everything illegal is unethical,” and “not everything ethical is legal.” Why is this? Basically, it is because laws and ethical rules serve two separate yet related functions. Laws, and by extension legal systems (i.e., legislatures, courts, juries, judges, etc.), are designed to develop and enforce rules or norms of conduct which, inter alia, mandate specified relationships among persons (including organizations), provide methods for ensuring the impartial treatment of said people, and provide for the punishment of those who choose not to follow the agreed upon rules of conduct. Conversely, ethics is best defined as a system of thought that attempts define that which is right from that which is wrong.

Now we can all come up with examples of behaviors or actions that satisfy both definitions. The classic example is “murder,” which is legally defined as the killing of another human being with malice aforethought and with no legal justification (self-defense or insanity are two commonly used legal justifications for murder). Murder, as I’ve defined it, is both illegal, in that it is against the agreed upon rules of conduct for which our legal system has determined we are to live under. Murder, again as I’ve defined it, is also unethical, because it is considered morally wrong to take another life. However, you can quickly see how careful I’ve been not to overstate either the legal or the ethical argument. Self-defense, which results in the killing of another person, is clearly not illegal, but it may nevertheless be unethical. Even you can conceive of cases where a killing in self-defense is ethical, you have to admit that it is a close call and not intuitively obvious. Likewise, accidental deaths, which may be considered illegal as a form of manslaughter, may be ethical if they clearly prevented a greater wrong. (i.e., swerving to avoid crashing into a school bus full of children, only to strike and accidentally take the life of a single pedestrian in the intersection). Hopefully, you can see how quickly things can get confusing if one is not precise in their use of the terms legal and ethical.

This example, or series of examples, brings me back around to my question. Which standard do we want our leaders to follow? Are we content to argue, as Paul does, that legality is the measure by which we are to judge the actions of our leaders? In other words, if a person commits no violation of the agreed upon code of conduct created by our legal system, is it the case that he or she can be absolved of all culpability? (For the record, I’m not accusing Paul of having this view. In fact, I’m pretty sure he’ll disagree with my characterization, and I’ll believe his views, however he chooses to describe them, are sincere. If anything, I’m doing nothing more than pointing out the imprecision of the language we all use when discussing these things in an imprecise forum such as a blog.) Or, are we to go to the other extreme and argue that even if one obeys the code of conduct to the letter (and spirit), they are still to be judged based on a (hopefully objective) theory of right and wrong conduct, for which there are many disagreements? Thus, people who ascribe to a well-developed ethical system, which can include religion and religious beliefs, are free to judge and exact political accountability on elected officials even if the legal system absolves them of any technical wrongdoing? In a perfect world, I think we would like to see leaders and people with positions of public trust act both legally and ethically, to the extent that both are possible.

This is why the recent situations in politics, whether it be Rep. Delay’s indictment, Sen. Frist’s questionable stock sale, or the Valerie Plame investigation are so vexing. The strictly legal people will argue perhaps persuasively, that in none of the above cases was a “crime” committed and no illegal actions were taken. Even if that’s true, does that satisfy the ethical standard? Can people really say that Delay’s actions were objectively right? That Sen. Frist acted in accordance with ethical principles? Or that those who may have inadvertently revealed the name of a once covert operative were correct in their actions? Maybe we can say all of those things. Maybe we can justify those conclusions because the people making the accusations are less than perfect themselves, and may have a political agenda to pursue. Then again maybe we can’t make those claims. Maybe there are two standards in play when it comes to politics and legal acquittal isn’t enough? Maybe we should hold people to impossible or even worse subjective ethical standards so that they are sure to fail? Maybe there is no such thing as ethical standards at all?

To answer my own question, I think that people should try there absolute best to abide by both a legal and ethical standard. That being said, I also think that when it comes to politics and elected officials we often impose an unreasonable burden on people. As I’ve said before the first paradox of American politics is that the electorate wants their leaders to be just like them, only perfect. Impossible or at least one would think so. No one is perfect; similarly no one is above reproach. One of the best things about democracies that the standard is subjective, once you go into the ballot box the only person you have to convince is yourself. I suppose the controversy is what keeps pundits and political operatives employed, but the questions are worth asking, and I’ll be interested to see what, if any, comments I get from our various and intelligent readers.

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Haloscan is on the fritz (what else is new), so I will have to respond to repeal's post below here.

Clinton was actually guilty of a crime. DeLay probably is not, though I have no idea about Libby/Rove, but if they're guilty, punish them.

Again, if DeLay happens to be guilty, I don't care if its some technical charge - a crime is a crime. Unlike Clinton's syncophantic worshippers, I will not defend DeLay because the crime wasn't serious. That's irrelevant. But I refuse to lynch the guy for a non-commital of a crime because his actions seem somehow unethical.

Mouldfan had argued that even if DeLay was not guilty of any crime, his actions were unethical. Now, that may be, but I don't see it. The campaign finance laws are a joke. That said, no matter how I feel about those laws - if Delay broke them, I will not say a peep in his defense. My only concern is with his guilt or innocence in the eyes of the law.

Hutchinson is basically arguing that she would be upset if Rove and/or Libby were prosecuted for a "technical violation" of the law. I find this view repugnant. The law is the law. We'll see if Rove and/or Libby broke the law in the coming months, and if they did, I will support their prosecution to the fullest. That's more than I can say for Clinton and his defenders.

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I think I speak for all of my co-bloggers, perhaps not, but I oppose the Miers nomination.

The reasons why have been expressed before. My dissertation adviser said it best:

But law, unlike politics, is inescapably an intellectual exercise, and reason is the bedrock of the rule of law. It is about the careful articulation of principles and nuanced applications, made persuasive by a compelling understanding of the constitutional order and the role of courts. Law is not molded simply by the votes of judges and justices, but in the power and cogency of written opinions and the philosophy they express, which become the fodder of law-review articles, commentaries, and conference panels, and eventually permeate the classroom teaching that forms the next generation of judges, lawyers and scholars. To bypass the opportunity to strengthen a conservative intellectual core — an elite — on the Court is not to make it a populist protector of freedom, but to abandon the field to the liberal elite. If the president does not appreciate this, there is no reassurance another nominee would be any better, and Democrats would surely feel more liberated then to jump on any candidate of substance.

Or as I wrote in this post:

Again, this is not a manner of mining for the right vote. A member of the Court is expected to forcefully articulate the reasons for their vote. They should be able to express a clear judicial philosophy. I don’t care if Harriet Miers is pro-life, and I don’t even care if she is a likely vote against Roe. In fact if she were to base her opposition to Roe solely or principally from a moral standpoint rather than a legal one, then she’s even more unfit for the bench.

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Re my post the other day about the Coburn amendment, courtesy of Powerline, here are the 15 Senators who did the right thing and voted for the amendments:

Allard (R-CO), Allen (R-VA), Bayh (D-IN), Burr (R-NC), Coburn (R-OK), Conrad (D-ND), DeMint (R-SC), DeWine (R-OH), Feingold (D-WI), Graham (R-SC), Kyl (R-AZ), Landrieu (D-LA), Sessions (R-AL)Sununu (R-NH), Vitter (R-LA).

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Here is that George Will columns we've been hearing about. He utterly destroys the arguments put forward by the Miers' supporters. Some examples:

Miers's advocates, sensing the poverty of other possibilities, began by cynically calling her critics sexist snobs who disdain women with less than Ivy League degrees. Her advocates certainly know that her critics revere Margaret Thatcher almost as much as they revere the memory of the president who was educated at Eureka College.

[edit] . . .In their unseemly eagerness to assure Miers's conservative detractors that she will reach the "right" results, her advocates betray complete incomprehension of this: Thoughtful conservatives' highest aim is not to achieve this or that particular outcome concerning this or that controversy. Rather, their aim for the Supreme Court is to replace semi-legislative reasoning with genuine constitutional reasoning about the Constitution's meaning as derived from close consideration of its text and structure. Such conservatives understand that how you get to a result is as important as the result. Indeed, in an important sense, the path that the Supreme Court takes to the result often is the result.

As Miers's confirmation hearings draw near, her advocates will make an argument that is always false but that they, especially, must make, considering the unusual nature of their nominee. The argument is that it is somehow inappropriate for senators to ask a nominee -- a nominee for a lifetime position making unappealable decisions of enormous social impact -- searching questions about specific Supreme Court decisions and the principles of constitutional law that these decisions have propelled into America's present and future.

To that argument, the obvious and sufficient refutation is: Why, then, have hearings? What, then, remains of the Senate's constitutional role in consenting to nominees?

There is much, much more. But his closing paragraphs absolutely nail it.

And Democrats, with their zest for gender politics, need this reminder: To give a woman a seat on a crowded bus because she is a woman is gallantry. To give a woman a seat on the Supreme Court because she is a woman is a dereliction of senatorial duty. It also is an affront to mature feminism, which may bridle at gallantry but should recoil from condescension.

As for Republicans, any who vote for Miers will thereafter be ineligible to argue that it is important to elect Republicans because they are conscientious conservers of the judicial branch's invaluable dignity. Finally, any Republican senator who supinely acquiesces in President Bush's reckless abuse of presidential discretion -- or who does not recognize the Miers nomination as such -- can never be considered presidential material.

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I have refrained from commenting much on the Tom DeLay indictment. It's still early in the process, so much yet may be revealed. But between the clear partisanship of the DA, said DA's on-camera pontification (I"m gonna be a movie-star), the grand jury shopping, and the fact that DeLay may have been indicted for something that wasn't even a crime at the time he allegedly committed the crime, I'm beginning to think there's a greater chance Ronnie Earle will end up behind bars at this point than Tom DeLay.

Don't get me wrong, I have no particular love for Tom DeLay. I had some pretty harsh words for him a few weeks ago. I think the Congressional leadership was due for some change, and I think DeLay had become something more of a hindrance than a help. Considering the slow but steady change in direction so far under temporary Majoiry Leader Roy Blunt, perhaps the GOP is better off without DeLay.

But there was always something fishy about the indictments, and nothing that has developed over the past month would lead me to believe that this is anything but a purely political hitjob. And I thought that some conservatives were being unfair when they essentially wanted to leave DeLay in the dust and use the indictments as an excuse to cast him aside. I believed - and still believe - that if these charges are, as I suspect, completely bogus, then we should hope that DeLay is cleared and then, and only then, should we re-examine his worthiness as Majority Leader. And we should judge his worthiness in the light of his political capabilities, and not repeat the Trent Lott incident where we used a flimsy bit of media hype to cast aside a leader we had deemed no longer capable (and I was guilty of supporting that bit of piling on).

At any rate, we shall see how events will unfold. In the meantime, Tom DeLay pulled off one of the greatest PR jobs in political history. Many Democrats salivated over the prospects of having a mug shot that they can use for the 2006 campaign. It would have been one of those dreary profile shots, and it would have been used in every television ad next Fall.

Well, Delay gave them his mugshot:



Tom DeLay is now my hero.

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This column by Jonah Goldberg at NRO is a classic example. While I'm sure we disagree politically, I'm starting to like what Goldberg has to say and how he says it. He's rapidly moving up my conservative columnist list. Not yet at George Will's level, whom I still think is the best conservative columnist right now, but he's getting much closer. Read the piece, I think Goldberg's right, Bush isn't an anti-state conservative, he's an anti-left (policially liberal) conservative. Thoughts?

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Whenever I get down about politics, whenever I feel totally distraught about the current political climate, all I have to do is read some ignorant piece of drivel like this and I feel just a little bit better.

Who are you to judge? Who are you to say that the more than slightly creepy 39-year-old woman from Arkansas who just gave birth to her 16th child yes that's right 16 kids and try not to cringe in phantom vaginal pain when you say it, who are you to say Michelle Duggar is not more than a little unhinged and sad and lost?

Hmmm, what a sad and pathetic woman. Man, you'd think there's some crazy shit in the Bible about repopulating the Earth. But I could be wrong.

And furthermore, who are you to suggest that her equally troubling husband -- whose name is, of course, Jim Bob and he's hankerin' to be a Republican senator and try not to wince in sociopolitical pain when you say that -- isn't more than a little numb to the real world, and that bringing 16 hungry mewling attention-deprived kids (and she wants more! Yay!) into this exhausted world zips right by "touching" and races right past "disturbing" and lurches its way, heaving and gasping and sweating from the karmic armpits, straight into "Oh my God, what the hell is wrong with you people?"

Gawsh maw, did he uh juss say hiz name wuz JimBob? Wha he muss be sum kinda redneck hick with a name like that. Thank God the enlightened columnist from San Francisco can set us straight.

Oh, wait a minute.

But that would be, you know, mean. Mean and callous to suggest that this might be the most disquieting photo you see all year, this bizarre Duggar family of 18 spotless white hyperreligious interchangeable people with alarmingly bad hair, the kids ranging in ages from 1 to 17, worse than those nuked Smurfs in that UNICEF commercial and worse than all the horrific rubble in Pakistan and worse than the cluster-bomb nightmare that is Katie Holmes and Tom Cruise having a child as they suck the skin from each other's Scientological faces and even worse than that huge 13-foot python which ate that six-foot alligator and then exploded.

Hunter S. Thompson lives! Ahh, smell the hallucinogens as the writer puts forth an incoherent mumbling sentence to relate, oh, who the hell knows what.

It's wrong to be this judgmental. Wrong to suggest that it is exactly this kind of weird pathological protofamily breeding-happy gluttony that's making the world groan and cry and recoil, contributing to vicious overpopulation rates and unrepentant economic strain and a bitter moral warpage resulting from a massive viral outbreak of homophobic neo-Christians across our troubled and Bush-ravaged land. Or is it?

My my my, I sure do love it when "progressives" start hinting around about an overpopulated Earth. You know, nice Progressives on the other side of the globe have a cure for such a dilemma. Of course it involves a nice little dose of government mandated genocide, but of course, this clearheaded Progressive from the Bay would never suggest such a thing, now would he?

Okay, this is getting kind of long. So let's take it home with a few more quotes.

What's more, after the 10th kid popped out, the family doctor essentially prohibited the baby-addicted mother from having any more offspring, considering the pummeling endured by her various matronly systems, and it's actually painful to imagine the logistics, the toll on Michelle Duggar's body, the ravages it has endured to give birth to roughly one child per year for nearly two decades, and you cannot help but wonder about her body and its various biological and sexual ... no, no, it is not for this space to visualize frighteningly capacious vaginal dimensions. It is not for this space to imagine this couple's soggy sexual mutations. We do not have enough wine on hand for that.

What's fascinating is that this man presumes to know how Michelle Duggar feels about having this many children. Seeing as how Mr. Morford hasn't delivered any children from his womb, he might not be the most qualified person to speak on this subject. Evidently she has the type of courage and strength than Mr. Morford can only dream about. The most painful thing he has probably experienced is burning his lip with a too hot latte, but man did it sting.

Perhaps the point is this: Why does this sort of bizarre hyperbreeding only seem to afflict antiseptic megareligious families from the Midwest? In other words -- assuming Michelle and Jim Bob and their massive brood of cookie-cutter Christian kidbots will all be, as the charming photo suggests, never allowed near a decent pair of designer jeans or a tolerable haircut from a recent decade, and assuming that they will all be tragically encoded with the values of the homophobic asexual Christian right -- where are the forces that shall help neutralize their effect on the culture? Where is the counterbalance, to offset the damage?

Ah, now we get to the heart of the matter. You see, the real problem is that people who have cultural values at odds with the esteemed writer will massively outbreed the enlightened priesthood of the progressive establishment. Why, most of them might even go to Church every Sunday for the rest of their lives! And we can't have that. Gee, could it have something to do with the fact that self-absorbed pricks like this writer can't be bothered with children until they decide to have their designer baby later in life?

But notice the complete ignorance of this one sentiment: assuming that they will all be tragically encoded with the values of the homophobic asexual Christian right . Okay, think about this. He has just spent an entire column hyperventilating about a couple that has bred 16 children. And he believes they will inculcate an asexual ethic into their children. 16 children. Asexual.

I repeat. He is suggesting that a couple that has had 16 children are asexual. Now, perhaps the writer's mother never taught him all about the birds and the bees, but unless we have an awful lot of Mary moments taking place in the good old U S of A, there's something glaringly contradictory about this statement. Not sure what it is - can't put my finger on it. But something's off.

And of course they're all going to be a bunch of homo hating Christians, because as the left loves to tell us on a daily basis based on their incredibly keen understanding of Christianity, we all just can't wait to go out with our bats to bash anyone who even looks the slightest bit gay.

Oh the irony of this ignorance. An entire article arrogantly deriding what he perceives as a bunch of know-nothing rubes, and yet clearly the most ignorant person involved is the writer himself. This sort of oh-so-subtle analysis is repeated ad nauseum by leftist idiots who have absolutely no understanding of the people they are mocking. They accuse everyone else of narrow-minded bigotry, and yet the bigot is the person putting pen to paper, or, in this modern age, finger to keyboard.

Oh, but of course, it really just comes down to right-wingers being too selfish.

Perhaps this the scariest aspect of our squishy birthin' tale: Maybe the scales are tipping to the neoconservative, homogenous right in our culture simply because they tend not to give much of a damn for the ramifications of wanton breeding and environmental destruction and pious sanctimony, whereas those on the left actually seem to give a whit for the health of the planet and the dire effects of overpopulation. Is that an oversimplification?

Um, yeah, kind of a big one. But what's a leftist good for if not for oversimplifying complex things which he is utterly incapable of understanding. Actually, it is quite simple, but because the man's brain is too narrow to pick up on what's truly taking place, he completely misses the meaning here. It's not that these people are too selfish, quite the opposite. As is par for the course, this ignoramus has greater compassion for the wider world than for the people closest to him. Better to have warm fuzzy feelings for the great, mystical planet Thulcandra than to share human feelings for one's neighbors of compatriots. I seriously doubt that the reason his wine-sipping buddies are failing to proacrastinate has anything to do with an urge to "save the planet." I have an inkling that it has more to do with something that has already been touched upon, and it is a desire not to be bothered with those pesky, messy, dirty creatures known as children. You see, having children alters one's routine. Suddenly you can't just burn the candles and both ends, hopping from club to club. Now there's another human being to take care - a human being that is not one's self. So, actually, it's really the non-child having people that are truly selfish. It's selflessness to give up one's time and serenity in order to bring life into this world.

The odd thing is that for all this smug superiority, the Duggars probably have a much greater understanding of the world than Morford. They probably have a greater appreciation for sacrifice, community, sharing, and, most importantly, love. I don't know the Duggars, so I could be wrong, but I get the sense that they are eminently more grounded and at peace with the world than this sniveling little coward of a man who cannot see the world beyond his narrow vision of it.

Mr. Morford fears that people who see the world as he does will be outbred by people like the Duggars.

I can only hope his fears are well-founded.

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Senator Ted Stevens threatened to resign from the Senate if it passed a series of amendments sponsored by Senator Tom Coburn designed to eliminate some of the pork spending recently passed, including the precious "bridge to nowhere."

Sadly, all three amendments failed, thus we will not have the pleasure of seeing Senator Stevens walking out with a box full of his stuff. Kudos, however, to the thirteen Senators who had the guts to take on this serious issue.

As to you, Mr. Stevens: Oink, oink.

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This nomination is getting worse by the day.

The proportional representation requirement of the Equal Protection Clause? I must have missed that. Is that there next to the privacy clause?

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Richard Cohen has a startling op-ed in the Washington Post. Cohen is pro-choice, but he does not believe that Roe should continue to be upheld.

That shift in sentiment is not apparent in polls because they do not measure doubt, only position: for or against. But between one and the other, black or white, is a vast area of gray where up or down, yes or no, fades to questions about circumstance: Why, what month, etc.? Whatever the case, the very basis of the Roe v. Wade decision -- the one that grounds abortion rights in the Constitution - strikes many people now as faintly ridiculous. Whatever abortion may be, it cannot simply be a matter of privacy.

[edit]If a Supreme Court ruling is going to affect so many people then it ought to rest on perfectly clear logic and up-to-date science. Roe , with its reliance on trimesters and viability, has a musty feel to it, and its argument about privacy raises more questions than it answers. For instance, if the right to an abortion is a matter of privacy then why, asked Princeton professor Robert P. George in the New York Times, is recreational drug use not? You may think you ought to have the right to get high any way you want, but it's hard to find that right in the Constitution. George asks the same question about prostitution. Legalize it, if you want - two consenting adults, after all - but keep Jefferson, Madison and the rest of the boys out of it.

Conservatives - and some liberals - have long argued that the right to an abortion ought to be regulated by states. They have a point. My guess is that the more populous states would legalize it, the smaller ones would not, and most women would be protected. The prospect of some women traveling long distances to secure an abortion does not cheer me - I'm pro-choice, I repeat - but it would relieve us all from having to defend a Supreme Court decision whose reasoning has not held up. It seems more fiat than argument.

For liberals, the trick is to untether abortion rights from Roe. The former can stand even if the latter falls. The difficulty of doing this is obvious. Roe has become so encrusted with precedent that not even the White House will say how Harriet Miers would vote on it, even though she is rigorously antiabortion and politically conservative. Still, a bad decision is a bad decision. If the best we can say for it is that the end justifies the means, then we have not only lost the argument - but a bit of our soul as well.

What gets lost in the Roe debate is that while pro-lifers certainly abhor the moral consequences of the decision, many of us are just as angered by the inadequacies of Roe from a constitutional perspective. Unfortunately, the Court compounded its error by an even more poorly reasoned plurality decision in Casey.

In short, the Court's abortion jurisprudence is awful, and as Cohen aptly demonstrates, even pro-choicers can acknoweledge its putridness. The decision ultimately belongs to the States. Let us debate the merits of abortion there. I concede that my side will be on the losing side more often than not, but at least the debate take place where it should.

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With all the talk about the Miers nomination and whether she’s really a conservative, pro-life, or anti-Roe I thought I would take this opportunity to point out, yet again, that there are far more pressing constitutional issues on the horizon and that we all must look at those to determine whether a nominee, regardless of political persuasion, is qualified and deserving of our support.

While there are so many interesting constitutional issues that I could raise, my selection today comes from a rather unusual source. Namely, yesterday’s Senate Foreign Relations Committee hearing in which Secretary of State Condoleezza Rice testified regarding Iraq in U.S. Foreign Policy. Interestingly enough, Senator Lincoln Chafee (R-RI) (I know, I know Chafee’s got famed RINO status) questioned Secretary Rice on an important question regarding institutional prerogatives. (Note: I’ve been trying to find a transcript of these hearings this morning, but to no avail, so at the risk of misinterpreting things, I’m going to rely on my memory of what was said. Apologies in advance if I get things slightly wrong). Specifically, Sen. Chafee was interested in the Iraq War Authorization passed by Congress a couple of years ago. Chafee’s point was generally this: the Congressional authorization gave consent to utilize American military forces against the Taliban in Afghanistan, Al Quada generally, and Iraq. It does not, at least on its face, authorize the use of force against any other persons or countries (i.e., Iran or Syria). Thus, Sen. Chafee asked, quite astutely, that if there were intentions of using military forces against either of those countries, would not the President be required to return to Congress for another resolution authorizing the use of force? And how did Secretary Rice respond to this excellent question; she stated that she was not, at this time, going to “circumvent the President’s war powers.” Now there is far more to this exchange that I can’t or shouldn’t attempt to paraphrase. Nevertheless, allow me to say it was my impression that at least Secretary Rice did not really think that returning to Congress would have been necessary, but in all fairness she probably wasn’t sure, so she talked around the issue without really answering the question.

Of course this exchange raises the issue of War Powers, who has them, who needs them, and who has the legal and constitutional authority to send American troops into harms way. Since in one sense “were all originalists now” (bonus points for anyone who can guess where I stole this from) I’ll start from the text of the Constitution and work from there. Article I, Sec. 8, cl. 11 states that Congress shall have the power “To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water.” Article I, Sec. 8 also grants Congress with the power to maintain and Army and a Navy, and authorizes them to “make rules for the government and regulation of the land and naval forces.” Seems pretty clear, you want to wage war you have to go to Congress. So it was done it WWI, WWII, but not again until Gulf War I and this most recent war in Afghanistan, Iraq, and against Terrorism. Famously, Korea and Vietnam, as well as other uses of military force were undeclared wars, or “police actions” as some have termed them.

However, not to be outdone in the textualism game, the President, via Article II, can claim to be “commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States,” which some have argued gives him the inherent power to use those troops to protect and defend the interests of the United States both at home and abroad.

Like so many issues, the Constitution doesn’t really answer the question clearly. If the President wants to attach Iran or Syria does he need Congress to act or is there inherent authority in Article II? In 1973, Congress passed a statute known as the “War Powers Resolution,” which attempted to answer some of these thorny questions. The Resolution states in part that “The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.” See War Powers Resolution, Pub. L. 93-148 § 2(c) (1973). The War Powers Resolution, however, is not without its constitutional critics, one of which is Philip Bobbitt who has argued that:

The power to make war is not an enumerated power" and the notion that to
"declare" war is to ‘commence’ war is a ‘contemporary textual preconception’;
the Framers of the Constitution believed that statutory authorization was the
route by which the United States would be committed to war, and that
‘declaration’ was only meant for total wars, as shown by the history of the
French Naval War (1798–1800); in general, constitutional powers are not so much
separated as ‘linked and sequenced;’ Congress's control over the armed forces is
"structured" by appropriation, while the president commands; thus the act of
declaring war should not be fetishized. See Phillip Bobbitt, War Powers: An Essay on John Hart Ely's War and Responsibility: Constitutional Lessons of Vietnam and Its Aftermath, 92 Mich. L. Rev. 1364, 1375-1400 (1994).

At the end of the day, I’ll be the first to admit that there appears to be no concrete answer to the question Chafee asked. In my opinion, I don’t buy Bobbitt’s argument that the framers understood declaration of war to mean only “total war,” but rather think that that they divided the power between the braches to avoid hasty, unilateral decisions that would commit American resources in ways that were not necessarily in the long term interests of the nation. Recall that the framers were arguably isolationists and likely wouldn’t have wanted an active military spread out around the globe. Hence, they gave Congress, the far more isolationist branch, the stronger hand the process of declaring and committing resources to war.

Regardless of which side of the debate you come down on, it is issues like these, and not, in my opinion, abortion that should be the focal point of any nomination to the Supreme Court. If ever there was a role that we can all agree the framers intended the Court to have it is to settle disputes of authority between the other branches of government. Here we have a classic Congress v. President battle and the Court needs to have the ability and the Justices that command respect to step in and decide the matter in a way that is worthy of respect and will be adhered to by both sides win or lose.

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Since the Miers nomination I’ve taken to perusing even more “conservative” blogs than I previously did. Mostly out of curiosity and an honest interest to see if my long predicted schism between so-called social conservatives and economic conservatives has finally come about. (As I often feel compelled to do, I note the general disclaimer that goes along with my use of these terms. I’m trying to use them in their popular sense. I don’t like generalizations and labels and try my best to avoid them and the silly arguments in the comments that they produce, so if you have a problem with the terminology, don’t talk to me as I didn’t invent it.)

My travels today took me to National Reivew Online’s the Corner, where I found this except from a Jonah Goldberg post:

I actually think this is a profoundly significant signal in the ongoing -- and
at times somewhat lamentable -- transformation of the GOP into a populist party.
For example, I've written many times about how liberals don't understand that
Fox News' popularity has had less to do with conservatism and more to do with
populism than they are prepared to see. Liberals think they're the party of the
people, so they tend not to understand populism when it comes from non-liberal
quarters. But it is Fox's anti-elitism which pulls in the ratings more than its
conservatism. This has been hard to see in the past because Fox's anti-elitism
has generally been aimed at liberal institutions -- the New York Times, the
ACLU, Harvard, etc. But anti-elitism and conservatism are not and never have
been the same thing. And I do think this will be more obvious in the months and
years to come. I think this new "elites" versus "heartlanders" trend is only
going to grow within the ranks of the GOP. I can't say it's all bad or all good.
But it is a major sociological change if the arguments within conservatism are
now going to be about "loyalty" to our people (trans: our Party) instead of
loyalty to our ideas.

All I can say is right you are Mr. Goldberg. The simple fact is that neither major party is populist, at least not in the technical meaning of the term. True, political liberals (as opposed to philosophical liberals, though I consider myself both) have more recently been aligned with populist leanings; however, we’ve never really adopted this into the mainstream of liberalism. More importantly, conservatives are generally the last people that you think of when you think of populists. In fact, one might with some degree of success argue that conservatism (both political and philosophical) is antithetical to populism, which is why much of the arguments from some branches of the so-called conservative base have so shocked me.

Political philosophies are all about ideas, thus, I suppose they can be considered elitist. How those ideas get translated into specific practical policies and play out in the game of politics, however, is a different animal. Both major political parties have their elites and those elites spar against one and other in academia and think tanks and through less popular publications like the National Review and its liberal counterpart the New Republic. Similarly, both parties have their “rank and file,” who by and large make up much of the bloc that decides elections. Needless to say both of these groups need one and other to form a cohesive successful powerful political apparatus that is capable of governing a nation. In my opinion, one of the major reasons that the Democrats have been in such disarray is that we’ve lost connection with our elites. In other words, we’ve been loosing the war of ideas. Democrats have been beaten by Republicans over things like economic policy, tax policy, and international relations policy pretty consistently over the last 10 or so years. While Democrats have made some strides in areas like health care policy and more or less have retained some hold on judicial philosophy (though that has been weakening as well recently) we’ve been trying to win elections with old ideas and haven’t appealed to our elites to develop new policies to effectively combat the Republicans on all fronts. Sure we might win one or two battles, but we keep loosing the war. Could this be happening to the Republicans and the conservative elite that has been the driving force behind their electoral success? Goldberg seems to think so, and I have to say I agree.

Populism isn’t intrinsically evil or bad (though Paul might disagree) it is, however, seductive. To think that leaders are to be just like the average person is a comforting thought. To believe that your elected leaders share your values; think like you do; or would be good people to sit down and have a beer with on a Sunday afternoon might be great come election time, but are these the things to build a sustainable governing majority around? I don’t think so, and neither do the elites in both parties. Populism ebbs and flows much like the business cycle in economics, so it may just be that its time is here again and the GOP is the victim this time around. I’m not sure that it can’t be defeated or at least squelched, but at some level it appears that the White House has embraced it or at least a part of it, and that should be cause for concern. Democrats should recognize this trend in the GOP and try to capitalize on it with new and innovative ideas; that is how we will have success in 2006 and hopefully 2008.

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Lucky me, I get the New York Times at work. So, I can plunk down my nothing a month in order to access Brooks, Tierney and Friedman.

Friedman's column was a sharp and critical look at how a delgation of Iraqis might view our politics. Some of the criticsm was unfair, particularly about the so-called "staged" videoconference last week. I also think the flippant comparison between the Armstrong Williams controversy - wherin the administration the paid him while he went on the air to defend the No Child Left Behind Act - and Saddam's use of propaganda is morally repugnant.

Actually, the closer I look at he column I realize this is a bad example to use in order to praise Friedman, because this is just about the weakest one he's produced in a long time.

And yet, it is a thousand times better than the one placed immediately below it. I normally ignore Maureen Dowd, but I couldn't help but peruse it this morning.

My God, this woman gets paid by the New York Times for her writing? This is nothing but childish puffery. Friedman's column was largely unfair, but at least he was able to string together sentences in a manner that showed he was an educated, intelligent human being. Dowd writes like a ten-year old - and I do not exaggerate. She rarely rises above the level of mere name calling, and when she's not name calling her writing style is so intellectually lazy that she thinks mere sarcasm can substitute for substantive criticism.

Look, I can accept that the New York Times is a left-leaning newspaper, but as much as I knock it, it has a well-deserved reputation. It is still a good source of information, and normally one can look to it for some measure of reasoned opinion. So how can they justify keeping this woman employed?

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If I had to rank my three favorite columnists, they would be Jonah Goldberg, Mark Steyn, and James Lileks. The latter two each offered up a piece on the war, and each excelled at what they do best. For Lileks, it was his penetrating snark:

On one level, you can’t be in favor of the Iraqi vote and opposed to the war. On another level, you can, but it’s a happy chocolate land where the fountains spout fudge and the bunnies are edible and Saddam relinquishes power, ashamed, because Kofi Annan drafted a stern letter promising Serious Consequences, and some Iraqi Gandhi not only showed he was morally superior to the Tikriti gang, but had a titanium-hulled body that made him impervious to torture shredders. And then the Baathists devolved and the Rotarians took over.

And then later:

One of the signs, of course, said “Who Would Jesus Bomb.” Never heard that before. Hmm. Well. I think the proper question is “On Whom Would Jesus Levy Porous Sanctions Undermined by Corrupt International Officials Who turned Oil-For-Food Into a Massive Payola Operation for the International Nomenklatura,” but that wouldn’t fit on a sign.

The answer would, though. Jesus, you may recall, got the moneylenders out of the temple. How? With sternly worded pamphlets, I think. Also a march, which oddly enough included people who wanted the Jews out of Palestine. Strange bedfellows and all that.

So why do they get to play the Jesus card? Everyone got highly spooked over that bogus and rebogused story about how God came down in a flaming pillar and told Bush to invade Iraq. It makes an annual appearance, because it confirms what so many wish to believe: Bushitler is a freaky nutwad who thinks he gets specific operational instructions from on high everytime his knees hit the carpet. Sometimes the message comes in a dream, sometimes it’s a bird that looks at him with a cocked head, sometimes it’s the change in the color of his urine. You have to be careful to note the augurs.

He’s batshite, in other words, because he thinks he speaks for Jeebus. But the people on the streetcorner appear certain that Jesus did not want the Iraqi Defense Ministry leveled by Tomahawks in the middle of the night, no? Probably not. It’s just a jape to needle the Red State God-botherers, just the way they used to needle The Man in the 60s by pointing out that Jesus wore long hair and sandals just like high holy hippies did. Of course, I doubt Jesus had crabs, the clap, collapsed veins from a heroin habit and the abiding conviction that monkey-headed silverfish were coming out of the kitchen sink. But otherwise, yeah, peapod mates.

Yes, I know, it’s rather tired to beat up on “Hippies” this late in the game; it’s like, oh, making the 832nd movie about the sins of the McCarthy era. And Lord knows we’ve put that one behind us.

Mark Steyn, meanwhile, mixes in some dead-on commentary with a dash of snark.

Ah, "Islamic militants." So that's what the rebels were insurging over. In the geopolitical Hogwart's, Islamic "militants" are the new Voldemort, the enemy whose name it's best never to utter.

[edit]When the NPR report started, I was driving on the vast open plains of I-91 in Vermont and reckoned, just to make things interesting, I'll add another five miles to the speed for every minute that goes by without mentioning Islam. But I couldn't get the needle to go above 130, and the vibrations caused the passenger-side wing-mirror to drop off. And then, right at the end, having conducted a perfect interview that managed to go into great depth about everything except who these guys were and what they were fighting over, the Russian academic dude had to go and spoil it all by saying somethin' stupid like "republics which are mostly . . . Muslim." He mumbled the last word, but nevertheless the NPR gal leapt in to thank him and move smoothly on to some poll showing that the Dems are going to sweep the 2006 midterms because Bush has the worst numbers since numbers were invented.

[edit]I'm aware the very concept of "the enemy" is alien to the non-judgment multicultural mind: There are no enemies, just friends whose grievances we haven't yet accommodated. But the media's sensitivity police apparently want this to be the first war we lose without even knowing who it is we've lost to. C'mon, guys, next time something happens in the Caucasus, why not blame the "Caucasians"? At least that way, we'll figure it must have been right-wing buddies of Timothy McVeigh.

Ahh, that's good stuff.

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Dr. Dennis Coyle pens a sobering piece in today's National Review Online that I wanted to pass along. He emphasizes why it is so important to have intellectuals on the Court.

Perhaps President Bush was conflating liberal dominion over constitutional law and activist courts since the New Deal with intellectualism. That is easy to do, given the pervasiveness of liberal ideology in legal scholarship and academia more broadly. It is tempting to blame the root for the branch. If the liberal jurisprudential establishment emerged from elite schools and journals and spoke in large words and grand theory, the thinking might go, it can only be tamed by reaching outside the Washington-New York intelligentsia to let some Texas common sense cut them down to size.

But law, unlike politics, is inescapably an intellectual exercise, and reason is the bedrock of the rule of law. It is about the careful articulation of principles and nuanced applications, made persuasive by a compelling understanding of the constitutional order and the role of courts. Law is not molded simply by the votes of judges and justices, but in the power and cogency of written opinions and the philosophy they express, which become the fodder of law-review articles, commentaries, and conference panels, and eventually permeate the classroom teaching that forms the next generation of judges, lawyers and scholars. To bypass the opportunity to strengthen a conservative intellectual core — an elite — on the Court is not to make it a populist protector of freedom, but to abandon the field to the liberal elite. If the president does not appreciate this, there is no reassurance another nominee would be any better, and Democrats would surely feel more liberated then to jump on any candidate of substance.

In the interests of full disclosure, Dr. Coyle is my doctoral advisor. But no, I don't think he's like, totally cool and stuff. I just happen to think he's right.

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David Brooks has an excellent op-ed in the New York Times today. Let me link to it . . .

Oh yeah, that's right. Francis Beckwith has the copy. A sample of Harriet Miers writing:

....In the early 90's, while [Miers] was president of the Texas bar association, Miers wrote a column called ''President's Opinion'' for The Texas Bar Journal. It is the largest body of public writing we have from her, and sad to say, the quality of thought and writing doesn't even rise to the level of pedestrian.

Of course, we have to make allowances for the fact that the first job of any association president is to not offend her members. Still, nothing excuses sentences like this:

''More and more, the intractable problems in our society have one answer: broad-based intolerance of unacceptable conditions and a commitment by many to fix problems.''

Or this: ''We must end collective acceptance of inappropriate conduct and increase education in professionalism.''

Or this: ''When consensus of diverse leadership can be achieved on issues of importance, the greatest impact can be achieved.''

Or passages like this: ''An organization must also implement programs to fulfill strategies established through its goals and mission. Methods for evaluation of these strategies are a necessity. With the framework of mission, goals, strategies, programs, and methods for evaluation in place, a meaningful budgeting process can begin.''

Or, finally, this: ''We have to understand and appreciate that achieving justice for all is in jeopardy before a call to arms to assist in obtaining support for the justice system will be effective. Achieving the necessary understanding and appreciation of why the challenge is so important, we can then turn to the task of providing the much needed support.''

I don't know if by mere quotation I can fully convey the relentless march of vapid abstractions that mark Miers's prose. Nearly every idea is vague and depersonalized. Nearly every debatable point is elided. It's not that Miers didn't attempt to tackle interesting subjects. She wrote about unequal access to the justice system, about the underrepresentation of minorities in the law and about whether pro bono work should be mandatory. But she presents no arguments or ideas, except the repetition of the bromide that bad things can be eliminated if people of good will come together to eliminate bad things.

Or as she puts it, ''There is always a necessity to tend to a myriad of responsibilities on a number of cases as well as matters not directly related to the practice of law.'' And yet, ''Disciplining ourselves to provide the opportunity for thought and analysis has to rise again to a high priority.''

Throw aside ideology. Surely the threshold skill required of a Supreme Court justice is the ability to write clearly and argue incisively. Miers's columns provide no evidence of that.

Yeah, that's some high quality stuff she's churning out. I can't wait til she gets on the Court.

[editor]:Hey, you said you weren't going to write about Miers anymore. Me; Well, technically I wasn't doing the writing.
[Mickey Kaus]: I should sue you for stealing my bit. Errr, speak to my attorney.

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On the other side of the religious kook universe, we have Pat Robertson, who made this oh so creepy threat:

“These so-called movement conservatives don’t have much of a following, the ones that I’m aware of. And you just marvel, these are the senators, some of them who voted to confirm the general counsel of the ACLU to the Supreme Court, and she was voted in almost unanimously. And you say, ‘now they’re going to turn against a Christian who is a conservative picked by a conservative President and they’re going to vote against her for confirmation.’ Not on your sweet life, if they want to stay in office.””

Rush Limbaugh: 20 million+ listeners.

Pat Robertson: a whopping 700,00 viewers.

Hey, Pat: Shut up.

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Aww, shucks, I'll be out of town this weekend, so I won't get to see Calypso Louie and the "million man" march. It's the perfect capper to the high holy days as the King of the anti-Semites speaks.

Of course, denouncing the Jews isn't all Farranut is good for.

Farrakhan also reiterated a concern that has been voiced by large numbers of evacuees from New Orleans: the possibility that the levees were intentionally blown up. Asked by one reporter if people would think he was "nuts," for raising the issue, Farrakhan said "it is the responsibility of government to prove the rumor false."

I believe that Farrakhan is actually an alien from the planet Malacandra. It is Farrakhan's responsibility to prove my rumor false.

Update: Wow, I was only kidding about Farrakhan beign an alien, but it may not be a joke after all.

In 1995, Farrakhan claimed he'd been abducted by aliens and that he communicates with late Nation of Islam leader Elijah Muhammad who, as you read this, is orbiting Earth in a giant spaceship.

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This week's Coalition post.

When Hurricane Katrina devastated the Gulf Coast last month, the American public was privy to 'round-the-clock media coverage of the disaster, especially of stories relating to the extraordinarily difficult living conditions faced by those who had been unable to evacuate. Thousands of people were left without food or water for days; their homes and cities destroyed, they were left to fend for themselves, trapped in squalid conditions and at the mercy of roving gangs of well-armed criminals.

As it turned out, many of the more horrific stories were later found to be false. Yet for the people of Darfur, the horrors that befell the people of New Orleans have become a way of life.

For more than two years, nearly two million people have been relegated to displacement camps across Darfur, with limited access to food, water and medical attention. They live in makeshift tents that provide little shelter from the elements, and in constant fear of rape, looting and death at the hands of the Janjaweed militia.

An aid worker and blogger known only as Sleepless in Sudan, who has been working in Darfur for six months, has been kind enough to provide this assessment of the conditions in which the displaced are now living ("Sleepless" has chosen to remain anonymous in order to protect herself and the agency for which she works from the very real threat of retribution from the Sudanese government)

People
are living inside temporary shelters, covering their branch or wooden huts (those who have been there longer have built mud brick ones) with plastic sheeting from the aid agencies, and even this has often already been torn apart by the rains. Everyone sleeps on the floor, sometimes in puddles - 10 people in a little shelter is not unusual, more is common.

Now that the aid agencies are operating in many camps there is regular water supply, there are latrines, there are medical clinics and most importantly, there is a monthly food distribution of staple grains and things like oil - but this does not mean people have it easy. This season has brought many floods and people have lost their belongings or even shelters, huts and latrines sometimes collapsed in the rains, and the food is never enough (and people have to scramble for things like fresh vegetables themselves anyway, as these are not included in the distribution). Malnutrition inside the camps is still high.

Overall, I would say conditions are adequate for survival - though some camps (especially the ones further away from big cities) are a lot worse off than others (Abu Shouk, for example, has dozens of aid agencies, while places just a few hours outside of it have 1 or 2). Whether they are adequate for what you would consider a normal life is debatable - I would say absolutely not, and I have no doubts any American would find them a lot more "unacceptable" than New Orleans.

I suppose the worst part of living in the camps is having absolutely no idea how much longer you will be there (many people have already been there for 2 years) and also constantly having to worry that you will be attacked - Aro Sarow showed us that even large scale attacks and killings inside IDP camps are still a threat. In many camps - Kalma, Tawila, etc. - it is part of everyday life to hear shooting at night, and in nearly all of them it is still very dangerous to wander outside and carry out chores like collecting firewood. Knowing that you are constantly at risk of looting and assault is be an easy thing to live with.

While the United States government was blamed for a poor response to the Katrina catastrophe, the government of Sudan is directly responsible for the catastrophe in Darfur. And whereas the state and federal government are now in the process of cleaning up, and will soon begin the process of rebuilding, the devastated Gulf Coast, the people of Darfur currently have no prospects of ever being able to leave the camps because insecurity is still rampant.

In the last few weeks, there have been a series of attacks on villages and camps that have created several thousand new refugees. In addition, nearly 40 African Union troops and workers were kidnapped over the weekend and, in a separate incident, five members of the AU force were ambushed and killed. And even if a semblance of peace does ever come to the region, the people of Darfur have nothing to return to, as their villages and homes have been utterly destroyed while their land and possessions have been stolen.

The post-Hurricane nightmare faced by the victims of Katrina has been the reality in Darfur for more than two years - and will remain so for the foreseeable future.

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