The Political Spectrum

This week's Coalition post

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

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

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

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

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

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

While Annan was telling Khartoum that the violence "must stop," Pronk was praising Khartoum for setting up meaningless show trials designed solely to slow the ICC investigation

The government says its national trials will be credible and will be a substitute for the ICC, which announced last week the formal launch of its investigation in Darfur.

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

"If the government takes a decision to do something which it had beenasked to do late, you only have to criticise that they are late, you should not criticise that they are doing it," he said. "So give thegovernment the benefit of the doubt."

For two years, Khartoum has waged a genocidal campaign against the people of Darfur, taking the lives of an estimated 400,000 people. Under no circumstances does this government deserve "the benefit of the doubt."

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

Read more!

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

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

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

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

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

Read more!

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

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

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

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

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

Read more!

It's a bit late, so I will merely point you to Mark Steyn's column on the silly flag burning amendment to capture my sentiments. A taste:

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

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

Exactly.

Hat tip: Andrew Stuttaford

Read more!

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

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

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

Read more!

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

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

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

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

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

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

Read more!

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

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

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

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

Read more!

It is a rare day when I praise a member of the DC city council, but "mad props" to our crazy city's lone Republican (if in name only) member. Carol Schwartz proposed (and then quickly withdrew) a bill to ban the sale of alcoholic beverages in DC bars. The legislation was meant to draw attention to the city's plan to ban smoking in bars and restaurants. Schwartz was dripping with sarcasm in her remarks.

"People are still free to drink at home -- for now," she said as she introduced her bill, the Worker Occupational Safety and Health Amendment Act of 2005, Part II. "I'm just legislating that liquor cannot be served in bars, restaurants and nightclubs because I don't want it to be served. I will allow teas, sodas and milk -- for now. And if the drinkers insist on drinking alcohol -- and they will -- they can just step outside on sidewalks with their flasks and drink."

[edit]

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

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

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

Schwartz for mayor!

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

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

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

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

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

Read more!

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

Read more!

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

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

One Senator in particular is making a rather noisy splash. Mme. Hillary Clinton (D-NY/AR/IL/CT) is the prohibitive favorite to win the Democratic nomination, and by positioning herself slightly to the right of Le Pen on immigration, might even be the favorite to win the whole thing. The possibility of the return of the Clinton dynasty has sparked enormous enthusiasm on the far left, so much so that our very own repeal was driven to write:

oh, and don't misquote me by saying its a lock, but HJC has got the electoral math and you know it...and you're scawwwwwwwwwwwwwwwwed.

I’m not sure about the electoral college count, but I do know for certain that I am not “scawwwwwwwwwwed,” mainly because I really don’t know what “scawwwwwwwwwwwwed means.” Now I can only assume that Mr. Repeal’s fingers slipped, and he merely meant to type “scawed,” but that still leaves me at quite the loss. I remember there used to be some form of music that the kiddies used to like called ska, so perhaps to be scawed is to be wed with ska music playing in the background. But ska is not sca, so that seems rather unlikely. It could be some unusual method of spelling “Scott,” but that also seems rather unlikely. Besides, what would “being scott” mean exactly? I’ve known a few Scott’s in my life, and they haven’t always impressed me, so that could be taken as an insult. But I don’t think that’s what repeal means.

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

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

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

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

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

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

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

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

Read more!

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

Of course someone might want to inform the people at every single other right-wing blog that has even bothered to comment on the book that we're supposed to be promoting it, because the pretty-universal response has been to completely condemn it. I believe my good friend TSL at GeekSoapBox captures the general consensus. While those of us on the right have little regard for Bill and Hillary, a line must be drawn somewhere.

But to throw this sort of scandalous and libelous rumor and innuendo out there nearly thirty years after the fact just reeks of muckraking sensationalism at worst and a lousy attempt to boost traffic at best. I despise when the left refer to President Bush as a war criminal or compare him to Hitler and think those comments are outrageous and betray a fundamental lack of understanding of even the basics of history or politics. Likewise, the so-called "Vast Right-Wing Conspiracy" needs to get over Bubba and Hill. The guy's been out of the picture for over a full term of office, and there is nothing we can do now to exact revenge over two straight close electoral defeats. Bill Clinton is a vision of mediocrity in the rear-view mirror of history, and his wife is so shameless and brazen in her comments and publicity-seeking that she will eventually wind up an even worse national candidate than the modern-day Francophile John Kerry. Leave them alone and give them no further thought; in actuality, that would be the worst punishment you could possibly hit them with.

Well said.

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

Read more!

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

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

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

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

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

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

Read more!

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

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

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

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

Read more!

The weekly post from the Coalition for Darfur.

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

For instance - Uganda

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

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

After nearly two decades of bloodshed, Ugandans are asking why atrocities such as this May 27 attack by Lord's Resistance Army rebels still plague the traumatized people of the north -- and why they seem to have been forgotten by the world.

And the Democratic Republic of Congo

Militiamen grilled bodies on a spit and boiled two girls alive as their mother watched, U.N. peacekeepers charged Wednesday, adding cannibalism to a list of atrocities allegedly carried out by one of the tribal groups fighting in northeast Congo.

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

[edit]

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

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

Her youngest child was saved, apparently because at six months old it didn't have much flesh. Alfani said she was gang-raped by the rebels and mutilated. She survived to tell her horror story, but died in the hospital on Sunday of AIDS contracted during her torture two years earlier, the U.N. report said.

In Uganda, the Lord's Resistance Army has abducted some 20,000 children and forced them to become either soldiers or slaves. The attacks have displaced nearly 2 million people and every night, tens of thousands of children trek to the cities to sleep, in hopes of avoiding the rampant kidnapping. For years, the LRA had been supported by the government in Khatroum, the same government now responsible for the genocide in Darfur.

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

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

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

Read more!

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

Read more!

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

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

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

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

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

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

Read more!

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

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

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

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

Read more!

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

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

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

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

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

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

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

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

Read more!

The weekly Coaltion for Darfur post.

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

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

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

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

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

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

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

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

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

Read more!

Howard Dean, bless his heart, just does not know when to shut up.

Democratic National Committee chairman Howard Dean, unapologetic in the face of recent criticism that he has been too tough on his political opposition, said in San Francisco this week that Republicans are "a pretty monolithic party. They all behave the same. They all look the same. It's pretty much a white Christian party."

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

At this point I just pray the Democratic party continus to fail to come to its senses.

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

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

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

Read more!

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

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

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

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

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

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

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

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

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

Read more!

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

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

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

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

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

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

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

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

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

Goodbye old friend.

Read more!

Milhouse: The Rand Corporation, in conjuction with the saucer people...
Bart: Thank you.
Milhouse: ...Under the supervision of the reverse vampires...
Lisa: Ugh...
Milhouse: ...are FORCING our parents to go to bed early in a fiendish plot to eliminate the meal of dinner!

Commenter from Publius' site: don't forget half the country thought saddam was behind 9/11 and there was the perfectly timed bin laden tape.

Hillary Clinton: "There has never been an administration, I don't believe in our history, more intent upon consolidating and abusing power to further their own agenda," Mrs. Clinton told the audience at a "Women for Hillary" gathering in Midtown Manhattan this morning.

"I know it's frustrating for many of you; it's frustrating for me: Why can't the Democrats do more to stop them?" she continued to growing applause and cheers. "I can tell you this: It's very hard to stop people who have no shame about what they're doing. It is very hard to tell people that they are making decisions that will undermine our checks and balances and constitutional system of government who don't care. It is very hard to stop people who have never been acquainted with the truth."

Jonathan Alter: (In a column in which he examines what would happen if Nixon were president now) The big reason Nixon didn't have to resign: the rise of Conservative Media, which features Fox, talk radio and a bunch of noisy partisans on the Internet and best-sellers list who almost never admit their side does anything wrong. (Liberals, by contrast, are always eating their own.) (Emphasis mine) This solidarity came in handy when Bob Woodward and Carl Bernstein of The Washington Post began snooping around after the break-in at the headquarters of the Democratic National Committee. Once they scored a few scoops with the help of anonymous sources, Sean Hannity et al. went on a rampage. When the young reporters printed an article about grand jury testimony that turned out to be wrong, Drudge and the bloggers had a field day, even though none of them had lifted a finger to try to advance the story. After that, the Silent Majority wouldn't shut up.

Howard Dean: you think people can work all day and then pick up their kids at child care or wherever and get home and still manage to sandwich in an eight-hour vote? well republicans, i guess can do that. because a lot of them have never made an honest living in their lives. but for ordinary working people who have to work eight hour as day, they have kids, they've got to get home to the kids.

Remember kids - it's the Republicans who have ruined public discourse and have destroyed this country through their whacky, Messianic rhetoric.

Read more!

FYI, via SCOTUSblog, the Supreme Court today, in an opinion by Justice Stevens, reversed the Ninth Circuit 6-3, holding for the United States in Gonzales v. Raich (medicial marijuana). The opinons are not yet available on-line. I'll likely have more tonight or tomorrow after I have read and digested the Court's musings.

UPDATE: The ever conncected Howard Bashman over at How Appealing has complied a list of links to the various opinions. It looks like Justice Stevens wrote for himself, as well as Justices Breyer, Ginsburg, Kennedy and Souter. Justice Scalia provided the 6th vote, but with a seperate concurrance. Justices O'Connor and Thomas both filed dissenting opinions with Chief Justice Rehnquist also dissenting.

Read more!

A few weeks before the Iowa caucus National Review ran a cover of a screaming Howard Dean, the headline reading "Please Nominate This Man." Unfortunately Howard Dean finished a disappointing third in the caucus, gave the "I have a scream" speech, and his presidential bid was shot down. But while the Democratic Party averted disaster and bypassed Dean for the more "electable" John Kerry, the Party made up for its momentary bout with sanity in order to annoint Dean as its National party chairman. And a cry went up among the exultant Republicans, sounding something like "Hallelujah."

Dean has failed to disappoint those of us on the right who expected the Deanster to provide numerous hysterical soundbites that would only serve to make the Democrats appear even more outside the mainstream. I have failed to commment on Dean's silliness thus far because to document every idiotic thing the man has said this year really would require me to become a fulltime blogger.

But today CSPAN aired Chairman Dean's speech before the Campaign For America's Future 'Take Back America Conference.' Let's delve into the madness that is Mr. Dean.

i want to start by talking about pensions. pensions and social security. when the president, the president rules by polls. he doesn't care that much about issues. he looks at the polls and he drives the agenda based on the polls. and the polls told him that he could get away with privatizing social security, if he told older people, i'm now in that category, having passed 55. but if he told older folks that we're going to be ok. then the 20-year-olds and the 30-year-olds would sign right up. they made a fundamental mistake by assuming 20-year-olds and 30-year-olds were dumb. they thought the 20 and 30-year-olds wouldn't notice that the bill was $30 million added on to the deficit and they were going to sacrifice their own kids' ability to go to college, if that's what they did. and it wasn't enough for the president to try to wreck the public pension system that we had. it wasn't enough for him to try to turn over social security to the same people who brought us enron, his good friends and political contributors. that wasn't enough.

Let me get this straight. The man who leads a party that is home to Bill Clinton has the audacity to claim that Bush "rules by polls." Is this supposed to be some sort of joke? As for the rest of this section, I have sent it to the good folks over at NASA in order to ascertain what it is he was actually trying to say. Perhaps years from now a wiser race of people will appear on this Earth and be able to comprehend this inanity, but I fear we will have long perished from this mortal coil.

I used to say in the campaign, i meant this sincerely. i would rather have you go out and vote, even if you vote republican, than stay home. i really would. if we're going to have a democracy, and lord knows this administration is beginning to erode the core our democracy, the great genius of american democracy, there are a lot of democracies in the world. the great genius of american democracies is that if 48% of you vote one way, you still have some say about the government. now they're trying to eliminate that.

Astounding. This man earnestly believes that Republicans do not believe in democracy, yet we're supposed to believe that somehow Republicans are to blame for the breakdown in political discourse.

the protection of the minority is an important principle in america. for those 48%, that didn't vote for president bush, the constitution says we still have some say.

Oh yeah, I remember that article of the Constitution that says that. It's Article 8, right? Seriously, Dean goes on and on about the supposed destruction of the filibuster and how that undermines minority rights. I guess then that Dean would have been applauding as racist southern Democrats filibustered the civil rights legislation of the 60's. You know, minority rights and all.

you think people can work all day and then pick up their kids at child care or wherever and get home and still manage to sandwich in an eight-hour vote? well republicans, i guess can do that. because a lot of them have never made an honest living in their lives. but for ordinary working people who have to work eight hour as day, they have kids, they've got to get home to the kids

This is perhaps the dumbest thing ever said by one of America's dumbest politicians. Chutzpah. Pure chutzpah. Yeah, I remember lounging around last year on election day, sipping my single malt scotch by the pool, motivating myself to vote after some time in order to pull the lever for my favorite Republican. Luckily Steven Spielberg, Barbara Streisand, Matt Damon, Michael Moore, Al Franken, Alec Baldwin, Steven Bing, and so many other left-wingers were able to take time out of their laborious 9-to-5 jobs just in time to vote. Because we all know Republicans are the lazy ones who never have had to work a hard day in our lives.

But if that is the case, and over 60,000,000 people voted Republican in the last election, then isn't that a sign that our Nation is in much better shape than we ever imagined? I mean if the country can boast of 60 million independently wealthy individuals, what exactly are we worried about? But then again I wouldn't expect Mr. Dean to know all that much about inherited wealth, because it's not as though he grew up in the lap of luxery, right?

I'm going to put this simply: Howard Dean is an idiot. He is in reality what Democrats have accused George Bush of being, and that is an intellectual lightweight who cannot formulate a cogent thought without slipping into half-baked cliches and paranoid conspiracy theories. He is possibly the dumbest politician in America, and that is saying a lot.

To my left-leaning friends: honestly, is this the guy you want leading your party out of the electoral wilderness?

Read more!

I am all for fan voting in the All-Star game, but after the first tabulation of votes was released, I might have to change my mind. While it's true that there is a lot of subjectivity involved in choosing All-Stars, I think we can all agree that anyone who voted for Nomar Garciaparra ought not be permitted to cast a vote in any type of election ever again.

And yet, 235,899 people cast their ballot for an individual who was batting .150 before going down with a season-ending injury.

As outrageous as this may be, it's only the tip of the iceberg. A look at the leading vote-getters among all National League position-players shows that Jeff Kent is currently the only one deserving of a starting nod. Here's a look at the leading-vote getters thus far, and in parenthesis the individual who ought to be starting in that spot.

1B Albert Pujols (Derek Lee)
2B Jeff Kent
3B Scott Rolen (Troy Glaus or Chipper Jones)
SS Nomar Garciaparra (anybody else, but probably Cesar Izturis)
OF Carlos Beltran, Jim Edmonds, Ken Griffey Jr. (Miguel Cabrera, Bobby Abreu, and Pat Burrell)
C Mike Piazza (well, the position is a dud, but I'd go with Ramon Hernandez)

The American League is a little bit more sane right now. All the infield spots are as they should be, though the outfield could undergo some change.

1B Tino Martinez (surprisingly, he probably deserves it right now. Mark Teixeira might have an argument)
2B Brian Roberts
3B Alex Rodriguez
SS Miguel Tejada
OF Manny Ramirez, Ichiro Suzuki, Vladimir Guerrero (Suzuki's okay, but Vlad's been hurt. I'd take Johnny Damon and Gary Sheffield for now)
C Jason Varitek

A caller to the Mike and Mike show suggested that American League fans were intentionally trying to sabotage the National League roster because the All-Star game decides home field advantage for the World Series, and a look at the respective rosters as currently constituted shows that they might be on to something. On the other hand, voting for a dud shortstop who is on the DL makes little sense since he is easily replaceable. You're better off selecting Jose Reyes who, according to the genius Rob Neyer, is the worst everyday player in the Majors. That's right, ignore those seven triples, fourteen steals, and dynamic speed, just like major league fans were supposed to ignore the actual number of wins the Mets garnered in 2000 (92) and instead look at the run differential, which proved that Neyer was correct in predicting the Mets were really an 85-win team.

On second thought, I'd much rather have fans choosing the All-Star starters rather than a stats geek who thinks computer models are better at gauging production than actual numbers. As stupid as the fans are, they aren't as insufferable as certain "experts" who are so in love with their pet theories they seem to forget that the games must actually be played by real, in-the-flesh human beings.

Dork.

Read more!

After several months of sending out resumes, being called in for interviews, and trying to take advantage of every single contact possible, your humble correspondent has finally landed a new full-time position. Man, finding a job in DC is a tough proposition.

Just some thoughts on the job search process. In this town, a lot of it is who you know, not what. The reason for that is there are some three million or so people living in the metro area, and approximately 2,999,000 of them have advanced degrees. I think the janitors in DC probably have Masters Degrees (there's probably some M.A. in Janitorial Services). Thus every job opening solicits hundreds of well-qualified candidates, and it can't be easy for employers to distinguish from the herd. I know my current bosses have been scrambling to fill a couple of positions, and there are just so many well-qualified people applying that it becomes almost a tossup as to who to select to bring in for an interview.

But the wait is finally over for me, and for the first time in my adult life I will not be forced to eat peanut butter and jelly sandwiches and ramen noodle soup for lunch - I will now do so of my own free will. But what does this mean for my blogging?

Admittedly my current position, especially in the past few months has not been all that demanding. That's not to say I haven't learned a great deal from my organization or that the job's been a total bore in any way, but the project that I have been working on for close to two years has come to a close, so there really hasn't been much to do. So I have been able to do a lot more blogging - both in terms of reading and writing, and have felt reasonably free to write on this blog from work - as I am currently doing.

That will, in all likelihood, change. I will undoubtedly be busier in my new job, and probably will not have the time or the ability to blog from there. Happily for me I have a cable modem at home and can write from there in the evening. But evenings are dissertation time, so it's not as though I can easily spend hours devoted to reading and writing upon current events. As most people know, the most important aspect of writing is reading. What am I supposed to react to if I can't read the news or other blogs, and where am I supposed to acquire information?

So, long story short, you may not be hearing as much from me in the coming weeks. I am not exactly challenging Ace or the folks at Power Line in terms of daily output, but I probably will have to take on a diminished role. But I have over a week until my new job starts, so I hope my co-bloggers will indulge me as I churn out a bunch of stuff I've been sitting on or that has come up in the past few days.

Also, who knows how things will develop. It's hard to stay away, as Publius can attest, and even if I can't delve into current events as much as I would like, there are a whole lot of theortical issues that I can bore the heck out of you all with blog about. And Pat Buchanan is bound to write something that will inspire a rant from me.

Read more!

One more for the road.

In a move that is sure to electrify the District of Columbia, Ward 4 City Councilman Adrien Fenty has announced his candidacy for mayor in next year's election. Fenty's big theme: he will "unite us."

"You have told me you want a mayor who can connect and engage with you in your own community," Fenty told an enthusiastic crowd of about 100 supporters. "I will talk with you and I will work with you as I have the citizens of Ward 4.

Then he concluded with this inspiring line:

"You have told me you want a mayor to unite us and inspire us," Fenty said. "And with your support, that is what I intend to be."

Wow, gee whiz. I've always wanted a mayor who will inspire me. After all, the first thing I think of in a mayor is his ability to "inspire." Inspire me with what? I haven't the slightest clue.

Come to think of it, this is just a big pile of horsescrap. I don't want a mayor who will, gasp, "unite and inspire" the city, I want a mayor who will help generate more business for the city, lower taxes, and maybe take a stab at this crime thing. And, oh, maybe not get caught doing crack with a bunch of whores.

On that score, Anthony Williams is actually a pretty decent mayor. He has helped clean up the city by working with businesses to provide a more pro-business atmosphere, and . . . okay, maybe not much more than that. DC still has an abysmally high crime rate, and my taxes ain't getting any lower. But at least he's staying away from the crackpipe, which is an improvement over the previous occupant.

The main criticism of Williams is that he is "aloof" and more concerned about dealing with big business. Well, gee, I wonder why Anthony Williams wants a more business-friendly atmosphere in DC? Could it be that by bringing in more business to the city there will be more jobs, and on top of that there will be greater economic activity and thus more tax revenue? Wow, I never thought of that.

No, better to have some chummy guy who will "inspire" the masses to hold hands, sing kumbaya, and then I suppose go off to Virginia to go hunting for real jobs. I don't really want a competent mayor. I'd much rather have a nice, friendly mayor who will be really concerned about his constituents, especially when said constituents don't have any jobs because all of the businesses have left town.

Anthony Williams is hardly the most dynamic individual, but who cares? He's been a fairly effective leader who has done more good for the city than any of the nitwits who came before him. Good for Fenty for wanting to make us all "feel good" about ourselves, but I'll feel just fine walking down the street without fear of being shot.

Read more!

Clearly Middle Eastern soap operas have something that our American shows sorely lack: blood libel.

Charles Johnson at Little Green Footballs links to a transcript from a Jordanian soap opera called "Stories from before the verses came down." I'll let Charles describe the plot:

Today’s episode is a freakish blend of voodoo and antisemitism, along with a bit of classic blood libel, as the evil Jewish sorcerers (wearing gigantic Star of David medallions and laughing maniacally, to help identify them) conspire to get rid of the upstart Muhammad by stealing some of his hair with the help of a Jewish servant boy, making a voodoo doll out of dough (we never see the doll because representations of Muhammad are forbidden), and piercing it with eleven needles.

Yes, really.

Well, at least CBS has a show to replace "Everybody Loves Raymond" this fall.

Then again, what's the big deal. It's not as though this vile piece of garbage is believed by a significant portion of its audience, right?

Read more!

From the Coalition for Darfur.

Jan Pronk, U.N. envoy to Sudan, recently said that Secretary-General Kofi Annan was greatly impressed by improvement of the situation in Darfur. In Pronk's words

"Mr. Annan was really impressed by the improved situation in Darfur, which he visited on Saturday," Pronk told a press conference in Khartoum.

[edit]

"Foreign press reports, especially in the American press, which speak of no progress in Darfur are completely untrue," he added.

At the time Annan was in Darfur, The Scotsman was reporting that

Confidential African Union (AU) reports have provided damning new evidence of the involvement of Sudanese government forces and their Janjaweed militia allies in the murder and rape of civilians in the Darfur region.

At the same time, two aid workers from Doctors Without Borders were arrested because of a recent report documenting hundreds of cases of rape in the region.

On top of that, the World Food Program reported that the number of people requiring food aid in Sudan is now more than six million, while the UNHCR reported that Janjaweed and government attacks have all but destroyed village life and forced some 2 million people into makeshift slums. With the majority of villages destroyed and insecurity rampant, it is not surprising that the displaced have become entirely dependent on foreign aid and are increasingly unwilling to return home.

As Eric Reeves explained in his most recent update

Sometime in the summer of 2004 (we will never know precisely when), genocidal destruction in Darfur became more a matter of engineered disease and malnutrition than violent killing. In other words, disease and malnutrition proceeding directly from the consequences of violent attacks on villages, deliberate displacement, and systematic destruction of the means of agricultural production among the targeted non-Arab or African tribal groups became the major killers.

According to a recent International Crisis Group estimate, "a minimum presence of 12,000-15,000 [military] personnel is needed now to undertake the tasks of protecting villages against further
attack or destruction." But as it stands now, the African Union hasn't even been able to deploy the 3,000 or so troops required under its current mandate and will most likely be able to field the 7,000-12,000 troops called for in its expanded mission.

Thus, it is rather difficult to comprehend just what sorts of "improvement" Annan and Pronk claim to have witnessed in Darfur.

The international community continues to fail to seriously addresses this crisis and so we ask you to join the Coalition for Darfur as we attempt to raise awareness of this genocide and collect contributions for worthy organizations providing life-saving assistance to the forgotten people of Darfur.

Read more!