Tuesday, January 31, 2006
State of the Union
Updated Hit read more to see last night's running commentary.
9:01 Pregame on Fox, and Chris Wallace observes: "If you're a political junkie, this is the Super Bowl."
He's right. It's an overhyped event that usually winds up being an overlong snoozefest with too many break.
9:05 Unrelated, sort of, but reports are that Cindy Sheehan has just been arrested by Capitol Police. John Miller quips, Last Minute Line Edit: "Cindy Sheehan is in federal custody, and the state of the union is good."
9:09 Da Prez is in Da House! (That'll be the last time I do that, I promise)
9:11 Sheehan detained, not arrested, they are reporting.
9:13 Starts by noting Coretta Scott King's passing. Long applause.
9:14 Call for civility. "The state of our union is strong, and together we will make it stronger."
9:15 Strong words against isolationism and protectionism. Pat Buchanan's head just exploded.
9:16 Future security of America tied in with ridding despotism abroad. Pat Buchanan is now having a full seizure.
9:16 The spread of democracy. At the start of 2006, more than half of ppl live in democracy, and we won't forget the rest. Justice requires their freedom as well. Hmmmmmm . . .
9:17 Radical Islam as enemy of freedom and democracy. They arm themselves with weapons of mass
9:19 Some real meat, and responds to the Murtha Democrats. We cannot retreat from the world, and the terrorists will merely move the battle front if we do. Again, beats up on the isolationists.
9:21 Stresses the slow improvements in Iraq. Moving from tyranny to sovereignty to democracy. "We are winning." That will no doubt get a lot of play. Applause was not strong.
9:23 Military commanders, not politicians, will decide when we pullout. Weeeeelll, they do have a say, George. Just saying. The military really can't stay there if they don't get funded. But stronger applause with that one.
9:24 Second guessing is not a strategy. You know, his tone never changes, so you can't really tell when he's attacking his opponents. But he is. I know he wants to present an even tone, but show some emotion. Just a little. But he's emphasizing - and doing a good job of it despite the tone - the need to stand firm. It's a message that needs to be harped upon.
9:26 Personal story time.
9:28 Once again, Bush is stressing the word "freedom." This is the common theme of his second term. But he also notes that elections are only the beginning. Would that people only understood that. Notes the Palestinian election: Strong words. Hamas must disarm and recognize Israel's right to resists. Again, great that he said it, but put a little oomph in it baby!
9:29 This is good stuff. Democracy will not look the same in the ME as in US because of unique culture and traditions, but liberty is goal of all nations.
On to Iran.
9:30 First time tonight. It is NEW-CLEAR. NEW-CLEAR.
9:31 Personal message to the Iranians.
Moving onto economic aspects of foreign policy. AIDS/HIV. Fighting AIDS, malaria, rewarding nations that re moving forward with economic and political reform. Must renew these efforts. Compassion.
9:34 Renew the Patriot Act (AMEN!) Dems not applauding.
9:34 Moving on to surveillance/FISA. Presidents have used this authority before. Etc. We will not sit back and wait until we get hit again. Shot of Hillary grinning like a goofball.
9:36 Isolationism is definitely a taboo word in the Bush household. Anyway, more language about supporting the troops. Okay, we get it.
9:37 Moving onto domestic affairs, and touts the economy, we're doing great compared to the west. But we can't be complacent. Now he's moving onto the other taboo: protectionism. Uh oh. Our economy cannot function without immigrants. Well, I'm no economist, but something tells me he is overselling the point.
9:39 The goods of the tax cut. Need to max tax cuts permanent. Wow. Great pic: All of the GOP standing up, all Dems sitting. I think that's going to be a tough battle, one worht pursuing. But if you think the Alito fight was tough, something tells me we ain't seen nothing yet.
14 billion in spendiung cuts! Why whhat a radical plan. How will our government sustain itself with such enormous cuts. Wow, I am just overwhelmed.
Earmark reform. Yes, good stuff, but . . .
Line item veto? Ummm, Clinton v. New York?
9:43 Baby boomers are starting to retire, and boy are we FUCKED.
Heh. Democrats stand and applaud their obstinance on social security, and then he screws up the retort. Damn it. I'm glad the Democratic party revels in its utter worthlessness. It's good to be reminded of why I will never vote for any of them so long as I live.
9:44 Three cheers for the American worker!
9:45 hey, look, it's President Man for All Seasons. Tighter borders, but a reasonable amnesty.
Great. Next line: abortions for some, miniature American flags for everyone else.
9:47 Health care. Sing it with me: Triangulation time, come on. Woo-hoo!
9:49 Must end addiction to oil. Gov. program to encourage renewables etc. I'll just say this once: CLEAN COAL. CLEAN COAL. CLEAN COAL. All right, I said it three times.
9:50 Move beyond a pretoleum based economy, make reliance on ME a thing of the past.
American Competetiveness Initiative. Oh good God.
9:51 America: leading the world in opportunity and innovation for decades to come! That's a bumper sticker for you.
9:55 Is this Bush's anti-malaise speech?
9:56 Give it up for Roberts and Alito! Judges must not legislate from the bench. Yada yada. And now it's time to suck up to Sandra Day. That's right baby! And millions of aborted children should tip their caps to her as well.
9:57 Calls for a ban on cloning. Okay.
Politicians should be responsible to the public? This is resounding stuff.
9:59 Is HIV/AIDS now the official name? Aren't they technically different things? (Well, one's the virus, the other the disease caused by the virus. Science was not my best subject)
Sorry, after an hour this gets a little boring. Come on, wind this thing down already.
10:02 A stirring call to something as he wraps it up.
Thank you Mr. President. You've once again demonstrated that Thomas Jefferson got at least one thing right. Give the speech to the clerk, and have him deliver it to Congress, because that was incredibly uneventful.
Okay, it wasn't truly awful. I'm glad he emphasized Islamic terrorism, and evidently CAIR's already getting pissy about it. And it sounds like we're getting serious with Iran. But the rest of it is the usual bag of goodies for the American public. It would be nice if just one time the President of the United States didn't play Santa Clause during the State of the Union, but I suppose I might as well keep waiting for Godot.
Try to imagine this in the voice of Guido Sarducci
This week the Senate confirmed Judge Sam Alito to be an associate justice of the Supreme Court. With that confirmation, for the first time in American history, the Supreme Court has a Roman Catholic majority. Shortly after Justice Alito was sworn in, the Court issued an order granting rehearing in Bush v. Gore. According to the new Court decision, the winner of the 2000 election was ... the Pope.
Guess who's baaaaaaaaack?
But do beware of bear traps.
Koppel's Op-Ed on Media "Bias" or lack thereof...
January 29, 2006
And Now, a Word for Our Demographic
By TED KOPPEL
NOT all reporters have an unfinished novel gathering dust but many, including this one, do. If that isn't enough of a cliché, this novel's hero is a television anchor (always plant your pen in familiar turf) who, in the course of a minor traffic accident, bites the tip off his tongue. The ensuing speech impediment is sufficient to end his on-air career and he finds himself, recently divorced, now unemployed, at home and watching altogether too much television.
After several weeks of isolation he discovers on his voice mail a message from an old friend, the opinion-page editor of his hometown newspaper. She is urging him to write a piece about television news, which, after some hesitation, he does — with a vengeance:
The earls and dukes and barons of television news have grown sleek and fat eating road kill. The victims, dispatched by political or special interest hit-and-run squads, are then hung up, displayed and consumed with unwholesome relish on television.
They wander the battlefields of other people's wars, these knights of the airwaves, disposing of the wounded from both armies, gorging themselves like the electronic vultures they are.
The popular illusion that television journalists are liberals does them too much honor. Like all mercenaries they fight for money, not ideology; but unlike true mercenaries, their loyalty is not for sale. It cannot be engaged because it does not exist. Their total lack of commitment to any cause has come to be defined as objectivity. Their daily preoccupation with the trivial and the banal has accumulated large audiences, which, in turn, has encouraged a descent into the search for items of even greater banality.
A wounded and bitter fellow, this fictional hero of mine, but his bilious arguments hardly seem all that dated. Now here I sit, having recently left ABC News after 42 years, and who should call but an editor friend of mine who, in a quirky convolution of real life's imitating unpublished fiction, has asked me to write this column examining the state of television news today.
Where to begin? Confession of the obvious seems like a reasonable starting point: I have become well known and well-off traveling the world on ABC's dime, charged only with ensuring that our viewers be well informed about important issues. For the better part of those 42 years, this arrangement worked to our mutual benefit and satisfaction. At the same time, I cannot help but see that the industry in which I have spent my entire adult life is in decline and in distress.
Once, 30 or 40 years ago, the target audience for network news was made up of everyone with a television, and the most common criticism lodged against us was that we were tempted to operate on a lowest-common-denominator basis.
This, however, was in the days before deregulation, when the Federal Communications Commission was still perceived to have teeth, and its mandate that broadcasters operate in "the public interest, convenience and necessity" was enough to give each licensee pause.
Network owners nurtured their news divisions, encouraged them to tackle serious issues, cultivated them as shields to be brandished before Congressional committees whenever questions were raised about the quality of entertainment programs and the vast sums earned by those programs. News divisions occasionally came under political pressures but rarely commercial ones. The expectation was that they would search out issues of importance, sift out the trivial and then tell the public what it needed to know.
With the advent of cable, satellite and broadband technology, today's marketplace has become so overcrowded that network news divisions are increasingly vulnerable to the dictatorship of the demographic. Now, every division of every network is expected to make a profit. And so we have entered the age of boutique journalism. The goal for the traditional broadcast networks now is to identify those segments of the audience considered most desirable by the advertising community and then to cater to them.
Most television news programs are therefore designed to satisfy the perceived appetites of our audiences. That may be not only acceptable but unavoidable in entertainment; in news, however, it is the journalists who should be telling their viewers what is important, not the other way around.
Indeed, in television news these days, the programs are being shaped to attract, most particularly, 18-to-34-year-old viewers. They, in turn, are presumed to be partly brain-dead — though not so insensible as to be unmoved by the blandishments of sponsors.
Exceptions, it should be noted, remain. Thus it is that the evening news broadcasts of ABC, CBS and NBC are liberally studded with advertisements that clearly cater to older Americans. But this is a holdover from another era: the last gathering of more than 30 million tribal elders, as they clench their dentures while struggling to control esophageal eruptions of stomach acid to watch "The News." That number still commands respect, but even the evening news programs, you will find (after the first block of headline material), are struggling to find a new format that will somehow appeal to younger viewers.
Washington news, for example, is covered with less and less enthusiasm and aggressiveness. The networks' foreign bureaus have, for some years now, been seen as too expensive to merit survival. Judged on the frequency with which their reports get airtime, they can no longer be deemed cost-effective. Most have either been closed or reduced in size to the point of irrelevance.
Simply stated, no audience is perceived to be clamoring for foreign news, the exceptions being wars in their early months that involve American troops, acts of terrorism and, for a couple of weeks or so, natural disasters of truly epic proportions.
You will still see foreign stories on the evening news broadcasts, but examine them carefully. They are either reported by one of a half-dozen or so remaining foreign correspondents who now cover the world for each network, or the anchor simply narrates a piece of videotape shot by some other news agency. For big events, an anchor might parachute in for a couple of days of high drama coverage. But the age of the foreign correspondent, who knew a country or region intimately, is long over.
No television news executive is likely to acknowledge indifference to major events overseas or in our nation's capital, but he may, on occasion, concede that the viewers don't care, and therein lies the essential malignancy.
The accusation that television news has a political agenda misses the point. Right now, the main agenda is to give people what they want. It is not partisanship but profitability that shapes what you see.
Most particularly on cable news, a calculated subjectivity has, indeed, displaced the old-fashioned goal of conveying the news dispassionately. But that, too, has less to do with partisan politics than simple capitalism. Thus, one cable network experiments with the subjectivity of tender engagement: "I care and therefore you should care." Another opts for chest-thumping certitude: "I know and therefore you should care."
Even Fox News's product has less to do with ideology and more to do with changing business models. Fox has succeeded financially because it tapped into a deep, rich vein of unfulfilled yearning among conservative American television viewers, but it created programming to satisfy the market, not the other way around. CNN, meanwhile, finds itself largely outmaneuvered, unwilling to accept the label of liberal alternative, experimenting instead with a form of journalism that stresses empathy over detachment.
Now, television news should not become a sort of intellectual broccoli to be jammed down our viewers' unwilling throats. We are obliged to make our offerings as palatable as possible. But there are too many important things happening in the world today to allow the diet to be determined to such a degree by the popular tastes of a relatively narrow and apparently uninterested demographic.
What is, ultimately, most confusing about the behavior of the big three networks is why they ever allowed themselves to be drawn onto a battlefield that so favors their cable competitors. At almost any time, the audience of a single network news program on just one broadcast network is greater than the combined audiences of CNN, Fox and MSNBC.
Reaching across the entire spectrum of American television viewers is precisely the broadcast networks' greatest strength. By focusing only on key demographics, by choosing to ignore their total viewership, they have surrendered their greatest advantage.
Oddly enough, there is a looming demographic reality that could help steer television news back toward its original purpose. There are tens of millions of baby boomers in their 40's and 50's and entering their 60's who have far more spending power than their 18-to-34-year-old counterparts. Television news may be debasing itself before the wrong demographic.
If the network news divisions cannot be convinced that their future depends on attracting all demographic groups, then perhaps, at least, they can be persuaded to aim for the largest single demographic with the most disposable income — one that may actually have an appetite for serious news. That would seem like a no-brainer. It's regrettable, perhaps, that only money and the inclination to spend it will ultimately determine the face of television news, but, as a distinguished colleague of mine used to say: "That's the way it is."
Ted Koppel, who retired as anchor and managing editor of the ABC program "Nightline" in November, is a contributing columnist for The Times and managing editor of The Discovery Network.
Live blogging the State of the Union
The State of the Union address begins at 9 EST.
Monday, January 30, 2006
You're still not EVER going to be president of the United States.
Bye bye Lincoln
The NRSC, meanwhile, continues to fund this worthless Republican's re-election efforts, running ads critical of his primary opponent Steve Laffey. The NRSC's sell-out is indefensible. Last time around we witnessed the establishment defeat Pat Toomey and his efforts to oust Arlen Specter, and now the GOP establishment is repeating its error, and in the interests of someone who is even further to Specter's left. At some point the Republican party will have to learn that it cannot merely rely on the moonbattery of the left or the complete incompetence of the Democratic party leadership in order to win elections. Its habit of supporting gutless wimps like Chafee and its insistence on upholding the status quo in elevating Roy Blunt to the majority leader position are all elements of a party in serious decline. Heaven help us that it yet remains the more palatable of the two options out there.
I think multi-party (meaning more than two) systems are generally bad for democratic government, but I'm not sure how longer we can maintain the two-party system when this is the best we can do.
Update: Oddly enough, Publius at Legal Fiction - inspired in part by my calling him Machiavellian - poses a question that touches on this very subject:
I’d really like my conservative readers to answer this simple question – what is the argument in favor of the GOP these days? What’s the affirmative case? Is there any reason other than that Democrats would be worse?I did note in the comments that there were still Republicans that I like very much, and that I will gladly be pulling the lever for Michael Steele this November. But, as I have just written, I do fear the alternative more than I support the current party.
I'd also admit to not fully suscribing to the litany of bad that Publius lists. For example, I am not as pessimistic on the war front (though I of course acknowledge that things have been far from perfect). I also think the "unitary executive" bit is somewhat misleading. But there's no denying that we've come a long way from the Revolution of 1994, and Richard Lowry and the gang at National Review have explored that in the latest issue. Something does need to change.
Sunday, January 29, 2006
Anatomy of a Smear
This past week, there was a particularly egregious display of this left-wing media bias, and the target of MSM scorn was none other than current associate justice of the Supreme Court, Antonin Scalia. Follow me for a review of how this non-story got started -- as well as how it fizzled, and why.
On January 23, 2006, ABC News released an exclusive story claiming that, on the very day that John Roberts was being sworn in as the new Chief Justice of the Supreme Court in late September, Justice Scalia "instead was on the tennis court at one of the country's top resorts, the Ritz-Carlton hotel in Bachelor Gulch, [Colorado], during a trip to a legal seminar sponsored by the Federalist Society."
ABC News correspondent Brian Ross's breathless account went on, asserting that, "[n]ot only did Scalia's absence appear to be a snub of the new chief justice, but according to some legal ethics experts, it also raised questions about the propriety of what critics call judicial junkets." (Only one so-called legal ethics expert, NYU Law professor Stephen Gillers, was cited by name in the story. A quick perusing of Professor Gillers' writings reveals his liberal political leaning.) Ross gave short shrift to Scalia's own subsequent explanation for both his absence at the swearing-in and attendance at the event:
At a press conference, almost two weeks later, Scalia was not inclined to tell reporters his whereabouts during Roberts' swearing-in.In addition to impugning Scalia, Ross could not resist the temptation to attack Scalia's fellow associate justice, Clarence Thomas, by noting that Thomas "has received tens of thousands of dollars in valuable gifts, including an $800 leather jacket from NASCAR, a $1,200 set of tires, a vacation trip by private jet, and a rare Bible valued at $19,000." (Conspicuously absent was any discussion of gifts that may have been received by other justices. And one also has to wonder what ABC News found most distasteful: Was it that Thomas was receiving gifts, or was it that one of those gifts happened to have been a Bible?)
"I was out of town with a commitment that I could not break, and that's what the public information office told you," he said.
It "doesn't matter what it was. It was a commitment that I couldn't break," Scalia continued when questioned further.
ABC News concluded its "news" story by noting that "[a] spokesman for the Federalist Society also declined to comment."
Basically, what ABC News tried to do was mask ideological slander as investigative journalism. It directly criticized Justices Scalia and Thomas for (in its view) improperly being influenced by trips and gifts, respectively, and indirectly criticized Chief Justice Roberts by implying that he would be accepting of undue influence upon the Court in the future.
The cacophony of liberal outrage probably would have grown were it not for . . . the truth. In the wake of ABC's smear piece, Eugene B. Meyer, president of the Federalist Society, sent a letter to ABC News president David Westin in which he challenged some of the allegations made in the story. (See the Federalist Society's website for not only this letter, but the stream of follow-up correspondence between the Federalist Society and ABC News.) Leonard Leo, the executive vice president of the Federalist Society, also released a more detailed list about the facts surrounding the constitutional and legal seminar, as well as the purpose of Scalia's involvement. In particular, Leo noted that:
4. ABC Nightline was fully aware that its piece was misleading and inaccurate, and the way in which it prepared the story bespeaks hypocrisy.Meyer summed up the whole debacle best in his letter:
• Several hours before the program aired, the Federalist Society spoke with Nightline’s senior producer, David Scott, as well as the investigative reporter who worked on the story, Rhonda Schwartz. The Federalist Society set forth the above facts and made very clear that tennis occupied a miniscule part of Justice Scalia’s time in Colorado. Nightline nevertheless chose to lead with a “tennis outing” theme and grossly failed to present the facts surrounding the course in a way that demonstrated the amount of time and work involved.
• At least a week before this conversation, the Federalist Society had spoken with Rhonda Schwartz and informed her in explicit terms that Justice Scalia taught a 10-hour course attended by lawyers. Nonetheless, ABC’s website, on the night of the broadcast, cast the issue as Justice Scalia attending a judicial education seminar. There is a world of difference between teaching a 10-hour course and coming to a resort to hear other speakers between various recreational activities—but Nightline chose to manufacture the false impression that Justice Scalia was at a function that entailed much play and little work.
• It is ironic that, in preparing a story that seeks to make the point that judges should be held to high standards of ethical integrity, ABC itself broke the law by trespassing on private property and invading the privacy of private individuals who did not give permission to be videotaped. Indeed, ABC contacted the hotel for permission to film the Society’s activities, and permission was denied by hotel management.
I am deeply concerned that, reminiscent of the false National Guard story fabricated by CBS's Dan Rather and Mary Mapes, ABC has simply chosen to score political points by blatantly disregarding the facts and true nature of the circumstances which surround the Federalist Society's course on September 30, 2005.I said at the start of this post that this post was as much about the phony ABC News story as it was about how it was stopped dead in its tracks. ABC's attempt to misinform the public was brought to a screeching halt by what many have taken to calling the new media -- by top-notch websites such as Confirm Them and Southern Appeal. These website, and others, have taken it upon themselves to actually challenge the liberal drivel from the major networks and print outlets that used to go unchallenged. As this story and others have shown, they are effective, and are doing a great job displaying the facts and letting the public decide for itself.
In the same way that ABC deserves scorn for its Orwellian manipulation, the above websites, and others, deserve kudos for shining the light of truth on the issue.
Friday, January 27, 2006
Harry Reid says a filibuster against Samuel Alito can't succeed but that he'll support it anyway. This is peculiar. One of the classic rules in Washington politics is that it weakens a party and its leadership to go down to defeat on a high-profile vote. Traditionally, parties and their leaders seek to minimize conflict and reduce friction when the endgame isn't going their way so that they can limit the perception that they are losers. Either we are living in a new time with entirely new rules -- in which it's better to lose big because it looks like you're standing on principle and can raise money that way -- or Reid and those few quixotic Democrats who want to filibuster have completely lost their political bearings and no longer know what is best for them or their party. I honestly don't know which. Anybody have any theories?Hmmm. Interesting question. So I grabbed my IPod (mini) and headed out to lunch. I grabbed a slice and a stomboli and chowed down as the Ramones and Nirvana blared on my shuffle play. Then I went out and tried to hit the ATM, but the machine wasn't taking cards for some reason, so I just went straight to the cigar store to see if they had any electric hygrometers. No such luck, but I did purchase a El Rico Habana (maduro), and had the kindly clerk light it up. So I walked from DuPont to Georgetown enjoying the very heavy cigar. My IPod shuffled from Sinatra to Korn to Radiohead as I walked through the "back roads" of Georgetown. There are some really nice townhomes in the 20's around O and P Streets that I had never seen before. It was really an enjoyable walk as the weathermen got the forecast waaay wrong. It was quite sunny and warm today - I'm glad I did not take my down winter coat. The Ipod shuffled to Sponge, and I mused over the rather disturbing lyric "I'm wasted and I'm naked." No wonder they never had another big album. Finally I took an extra lap around the block as I approached the office because I was not quite done with the cigar, and I also wanted to let the last song play out. It was "Hell Awaits" by Slayer, a rather ominous song to hear before going back to work.
Fortunately no hell awaited me at the office. Just an afternoon of looking at the trade press as well as the Economist - hey, you never know if they might have an article on energy policy. I did come accross as article that repeal had e-mailed to me on the impending Catholic majority of the Supreme Court. They also had a piece on the encyclical which happened to be less obtuse than some of the major media reports I had seen, such as this one from the New York Times, featuring the idiotic title "Benedict's First Encyclical Shuns Strictures of Orthodoxy" - an odd choice considering the encyclical was nothing but pure orthodoxy, but I guess if the Pope isn't writing about abortion or euthansia it must not be orthodox. Unreal.
And then I mulled over that question from JPod, and this is what I think . . .I don't fucking know. It's Harry Reid. Who can figure this guy out? We're not exactly talking about someone who is going to go down in Senate history alongside Webster, Clay and Calhoun. The guy probably wakes up every day and says, "Man, do I really have to keep being the minority leader? I can't do this job. I don't know anything about politics. This sucks. I wish I could have been a baseball player. Oh hell, where are my pants?" Or something like that.
Let 'em go down in flames. It will give me something to light my cigar with.
Thursday, January 26, 2006
Not gonna happen...
How to say f*cking idiot in redneck...
The two faces of Google
But Google is not so keen on standing up to governments when its bottom line is impacted. It caved to the Chinese government's demands that potentially embarassing search results be censored. Yeah, you never know what chaos might ensure were a dissident to google the words democracy and freedom. Bravo Google, you really pick your fights quite well.
Ace of Spades has more on Google's mind blowing hypocrisy.
Just curious: Which is more central to the marketplace of ideas? Basic information and dissenting opinion in a tyranny, or everyone's putative "right" to search for dirty pictures of naked children with the impunity of anonymity?
According to Google, it's the latter.
It's amazing how the First Amendment, both by its letter and in its spirit, is so steely adamant on the question of pornography but so flexible and porous regarding political information and argumentation.
One other thing: I'd be remiss not to note Baseball Musing's David Luciani has removed Google's Ad Sense from his website as a result of Google's weak-kneed response to the Chi-Coms.
A critique of Griswold to Lawrence
I’m sure this is not a novel concept, but it strikes me that the ill-fit between the Griswold-Lawrence line and the majoritarian will of the polity, as expressed through legislation, stems from the Court’s effort to force a right to unfettered private action out of the Bill of Rights through an attenuated analysis of a mythical “penumbra.” I want to express two points here: 1) in finding a “right to privacy through the 4th and 5th, the Court is not talking about “privacy” in the same way as the words of the amendments and pre-1960 case-law suggest the right to be and 2) the Court doesn’t need to create a new “privacy” right where other rights are directly applicable. (Note, the rooting of a “privacy” connection to the 3rd and 9th Amendments does not appear to be followed or cited after Griswold so I have not dealt with it here. As an aside, the use of the phrase “the people” in the 9th suggests that the Framers intended this to apply to the rights of the society as a whole, not individuals within that society.)
To suggest that the 4th and 5th Amendments have an inherent application to a social right of “privacy” is no great stretch of law or logic. We aren’t trying to find “penumbrae” through the direct application of the concept that there is an established right to protection of person and property from unlawful search and seizure. However, this right to privacy exists, not for the individual benefit, but (as is true for other rights in the Constitution) for the collective good.
To follow this out, security of my person and property from the invasion by others, through unlawful means, is only secured by maintaining a rigid application of process. If I let such an invasion occur on another, my own security is compromised. The 4th and 5th Amendments cannot mean more than this by their plain wording and the attenuated connections to INDIVIDUAL privacy and liberty, by ignoring the underlying purpose of the amendments, corrupts them to be little more than “truisms;” that I have a right to my own thoughts and any actions not rendered impermissible by society.
Furthermore, the Scalia “List” of evils that may follow the dismantling of a social right to “morals legislation” (Lawrence) is an accurate portrayal of the consequences of the misapplication of the 4th and 5th by characterizing them as engraining an individual right to private action in law. Thus, the claim in Lawrence that “[a]t the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life” is nothing more than an unsupportable and untenable claim that society cannot legislate in any area of life that has a moral dimension that cannot pass the strict scrutiny test. So, why not consensual incest or bestiality or even suicide. The Majority doesn’t answer the Dissent on this point because, I would argue, they can’t.
More importantly though, the Griswold to Lawrence Courts didn’t need to look for mythological penumbrae in the ether when the 1st Amendment has a direct application to matters of individual liberty and privacy. (SCOTUS explicitly stated that there was one in NAACP v. Alabama in 1958.)
Like the 4th and 5th, the 1st is a social good in that my enforcing of another’s right to his own thoughts and expressions is the best defense of my own liberty interest. However, there is an individual liberty interest expressed in the words of the 1st. Furthermore, we know, from a long line of SCOTUS decisions on the meaning of the 1st amendment, that the most publicly despised thoughts and expressions are protected under the 1st. Is it such a stretch to apply this line of reasoning to contraception and private acts of sexual intimacy?
Surely the same Amendment that permits a man to spit and stomp on the American flag before he burns it in front of a crowd of angry cops and veterans has a direct application to homosexual intimacy in the privacy of one’s own home? Surely an amendment that protects a man’s right to read pornographic material in his own house applies to the decision of a couple, hetero or homo-sexual to engage in acts generally considered “lewd” by the society at large?
Against this backdrop, the twisting of the 4th and 5th Amendments strikes me as both unnecessary and dangerous. Whereas the 1st Amendment has no application to the regulation of public policy as it relates to public benefits and can be controlled by confining it to individual acts rather than social change, the 4th and 5th, as a baseline of social rights, cannot. Maybe this is the point.
Might it be that Courts from Griswold to Lawrence avoided using the 1st precisely because it would not further “liberal” social interests to which the legal profession has become attached? It is generally believed that the legal profession, as a whole, and legal academics, in particular, are inclined towards a fairly radical social libertarian perspective. Might it be that this line of cases represents an individual victory of our elite profession over the majority?
Wednesday, January 25, 2006
This Could Change Everything
World Net Daily is reporting that an unnamed "former intelligence analyst" working as a civilian contractor (presumably in Iraq) has in his possession audio recordings of Saddam Hussein discussing in depth with other Iraqi officials the existence of, and ongoing work on, an Iraqi WMD program. In pertinent part, the article goes on:
The highly confidential audio was overlooked when it was found in a warehouse along with many other untranslated Iraqi intelligence files, according to the contractor. The recordings are very significant because they may contain audio of Saddam's secret intentions regarding weapons of mass destruction, he says.The article also mentions how this thus-far-anonymous analyst-turned-contractor intends to present his finding to the Second Annual International Intelligence Summit, which is slated for President's Day weekend in Washington, D.C.
. . .
Attorney John Loftus, president of the [International] Intelligence Summit, recently stated, in regards to the highly confidential audiotapes, "Saddam's secret office recordings continued well into the year 2000. In all, they contain at least 12 hours of totally candid discussions with his senior aides. Clearly, after these tapes have been verified and corroborated, they will be able to provide a few definitive answers to some very important-and controversial-weapons of mass destruction questions." [Emphasis added.]
I will reserve further statement about the content of these audio recordings (most of which remains undisclosed), pending verification of their authenticity (although a discussion tonight between WABC radio talk show host John Batchelor and Intelligence Summit president John Loftus seemed to imply that Loftus' contacts inside the National Security Agency have already verified that the primary voice on the recordings is in fact Saddam Hussein's).
Hat tip to the John Batchelor Show and the International Intelligence Summit homepage.
Deus Caritas Est
Tuesday, January 24, 2006
Iranian Forecast: Tense, With A Chance Of Holocaust
What follows is obviously not fact, but rather merely a dramatic forecast of what may unfold if we as a civilization stand back and allow a dangerous nation, with unequivocally voiced intent to harm its neighbors, to obtain a nuclear arsenal without any resistance. It goes without saying that this is one forecast the likes of which you will not see on The Weather Channel.
- Sometime in the near future, Iran -- after years of delay and subterfuge -- succeeds in developing multiple nuclear warheads. On what starts as a quiet news day, Iran detonates one of its earliest low-yield nuclear devices below ground within Iranian territory in an unmistakable sign to the world that it has joined "the club."
- Not long thereafter, Iran launches a limited, but not necessarily nuclear, assault on Israel with some of its short- and medium-range ballistic missiles. Israel responds by launching a non-nuclear counter-assault.
- The United States, in support of Israel, joins the conflict alongside Israel by providing air, ground, and other logistical support. Iran officially declares war on the United States.
- Great Britain, France, and Germany -- none of which are technically allied with Israel -- begin providing military support to Israel and the United States. Their joining of the battle is partly due to their recognition of the Iranian nuclear threat, but it is also due to their subtle acknowledgment of their failure to broker a peaceful resolution to Iran's uranium enrichment. Whatever their motivations, the result is that Iran declares war on the EU-3. The European Union (EU), in turn (and reluctantly), declares war on Iran.
- The West's counter-assault on Iran, coupled with the increased Western presence in the Middle East, rouses regional powers to join the fight on Iran's side. Egypt and Syria join the war immediately. Jordan, Sudan, and Kazakhstan join in only belatedly, as do the other Muslim nations of North Africa.
- Muslim nations that do opt to join the West encounter tremendous difficulties. Turkey, which at the time of the outbreak of war was still seeking to join the EU, joins with Europe. It is rewarded with border skirmishes, and is forced into fighting with Iran and Syria, as well as pockets of Muslim radicals in Georgia and Armenia. Pakistan, after initially supporting the West, erupts into a violent coup, at the end of which General Musharraf is assassinated. The radicalized replacement regime throws its support into Iran's column. Afghanistan and Iraq, both undergoing the fragile process of democratization, collapse into civil war.
- The communist People's Republic of China (PRC), which cannot help but observe that the United States and other western powers are distracted by war in the Middle East, seizes the opportunity and moves to occupy of Taiwan. The Taiwanese government successfully defends itself against the initial assault, but Taiwan calls on the United States to fulfill its treaty obligation, run counter to Nixon's misguided "One China" policy, and support them against the PRC. The United States -- facing depleted resources and waning public support -- obliges Taiwan and joins the war against the PRC. The PRC responds in kind, declaring war against the United States. The EU responds in kind by declaring war on the PRC. The PRC returns the favor and declares war on the EU.
- The PRC expands the scope of the war -- first, by attacking Japan and South Korea with its nuclear arsenal, and then by opening negotiations with Iran and Russia, the latter of which was never quite on board with European opposition to the war, for economic and other reasons. The PRC, Iran, and Russia form a Central Asian Axis. North Korea eventually also joins the Axis, fearing isolation and exclusion. All four of the Central Asian Axis powers now have nuclear capability, along with advanced ballistic technology provided by Russia and the PRC.
- After that . . . is anyone's guess.
Just like that, we have World War III: a global conflagration resulting from our collective inability to solve a very simple problem. I grant you, the above scenario is awfully Clancy-esque, but it is certainly not beyond the realm of possibility, particularly when one considers how the previous two world wars started.
The first world war began with the bullets of a lone crazed gunman from Croatia; his assassination of Austrian royalty triggered a world war that led to the decimation of an entire European generation. One step back and a few deep breaths by the major Western powers, and this war could have been avoided.
Twenty years later, an Austrian university dropout with a lust for power took advantage of Germany's insecurities and launched a second world war, far uglier and far more devastating than the first. A little spine on the part of European leadership, and the willingness to face the growing German threat with strength instead of flight, and this war also could have been avoided.
Now, in this time, we have an Islamist nation -- run by a radical who views himself as an "end-times" warrior in what he perceives to be a war against Israel -- that seeks nuclear weaponry to fulfill its nightmarish goals. With a little intelligence, a little patience, and a little intestinal fortitude on the part of us all, this war can be avoided.
(Special thanks to DS for contributing to this post by way of inspiration.)
Saturday, January 21, 2006
The Supreme Court’s Power Grab
Update 1/23/06: It seems that I may in fact be on to something. Today the Supreme Court, in Wisconsin Right to Life v. FEC, remanded a case back to the lower courts for consideration of an "as applied" remedy to what appears to be a facial challenge to the constitutionality of parts of the McCain-Fiengold (BCRA) campaign finance legislation. For what it's worth, Wisconsin v. FEC was a per curium decision, meaning that it was 9-0, but no single justice's name appears as the author. Some enlightened speculation indicates that it was Justice Breyer who wrote the opinion from the Court. (Hat tip: Orin Kerr of the The Volokh Conspiracy.)
Let’s start with Gonzales, while much as already been said about this decision, here and elsewhere, and much of it very good, I never could seem to get my own head around the decision itself. It’s not that I didn’t understand what it held, or what the words on the pages meant, it was rather that I couldn’t figure out how in the world the majority got from point A to point B. Then it hit me, this case wasn’t at all about whether the Executive Branch, Congress, or the States gets to make the decision about the Controlled Substances Act or physician-assisted suicide, it was about what role of the Courts are. Yes, while the case is primarily a statutory construction case, and while it is entirely fair to say that it not a “constitutional” decision, nevertheless it is not as my co-blogger Repeal22 put it a “banal administrative law decision.” In reality, I think it is something far greater, it is a power grab by the Court. To make its decision, the majority had to avoid two major administrative law decisions, Auer v. Robbins and Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc. Those of you who are attorneys will likely be familiar with at least Chevron, but in this context Auer is arguably the more important decision.
In Auer, the Court held that executive branch agencies, when interpreting their own regulations, are entitled to substantial deference by the federal courts. For example, if the EPA, pursuant to a statutory grant of authority by Congress, has issued regulations implementing provisions of the Clean Air Act that say that X is permissible, then several years later determine that X, includes activity Y, thereby making Y also permissible, it is unlikely that a Court would reverse that interpretive decision absent some procedural defect, such as failure to publish in the Federal Register or otherwise give notice of the change. Given this, it would seem that this is exactly what happened in Gonzales, then-Attorney General Ashcroft issued an interpretive rule asserting that the phrase “legitimate medical practice” which is contained in DOJ regulations did not include physician-assisted suicide. Auer, it seemed was the applicable law. Not so fast, said the majority, Auer is not applicable because the AG’s original regulation merely “parroted” the statute, therefore it is not the regulation that the AG was interpreting, it was the statute itself, which is governed by a different standard. This is the part of the case, where I think Justice Scalia’s dissent actually gets the best of the majority. The Auer holding didn’t contain a “parroting” exception to its holding. In other words, the rule is not that deference is afforded unless the regulation merely parrots the statute; it is that deference is given when the agency is interpreting its own regulations. In my opinion, the Court, by creating this exception has subtlety, albeit very subtlety, granted itself a proverbial seat at the table. Now, whenever agencies are going to issue regulations they are going to have to be aware of how much “parroting” of the actual statute they are undertaking. Phrased another way, after Gonzales, it would appear that another available argument for persons seeking to reverse or enjoin an agency’s determination of the scope of its own regulations will be to argue that the regulations merely parrots the statute and, therefore, the agency should be afforded no judicial deference. The practical effect of this decision is that it arguably greatly increases the role of the federal courts in determining whether or not executive agencies are going too far in their exercise of regulatory authority. This to me is the hidden gem of Gonzales, the federalism, moral, and statutory interpretation implications and issues are interesting and important and I don’t mean to downplay them at all, however, I think that the increased role of the federal courts in the administrative rule making and interpretive process is by far the most novel part of the decision.
If one compares Gonzales with what the Court did in the abortion case, Ayotte v. Planned Parenthood of Northern New England, then hopefully my thesis of the Court’s power grab will be even more apparent. Ayotte is a strange decision on numerous levels, and likely is the result of a compromise by Justices O’Connor and Kennedy, but that’s the subject of another post. To fully understand the point I’m going to make about Ayotte, I think one first has to understand a bit about the strategy of abortion litigation.
As many of you all may know there are essentially two main types of constitutional challenges to legislative enactments. So-called facial challenges, which basically are assertions that the statute as written violate provisions of the Constitution. A good example would be a statute or ordinance that prevents giving any sort of speech at any time in a public park. Such a legislative enactment would be a clear violation of the First Amendment and would be challenged in court as such. The usual remedy for a facial challenge is generally that the statute is struck down as unconstitutional and none of its provisions are enforceable. Most recent abortion legislation has been challenged as a facial violation, usually because it fails to be consistent with pronouncements of the Court. For example, in Ayotte the challenge to the statue was it failed to provide a health exception for the mother, which the Court has required since its decision in Planned Parenthood of Southeastern Pa. v. Casey. The advantage to these types of challenges is that if the statute contains a constitutionally defective provision, the typical remedy has been to strike down the entire statute and issue an injunction prohibiting its enforcement. Thus, it has been fair to argue that pro-choice advocates have been quite successful in getting more than they may have been entitled to by bringing facial challenges. In other words, even if the challenged statutes contained constitutional restrictions on abortion, they were being struck down because the statutes also contained constitutional violations. The other general type of challenge is referred to as an as-applied challenge, which is just what it sounds like. As-applied challenges usually assert that while the statute on its face may be constitutional as-applied to their specific unique circumstances its enforcement violates the constitution. For example, Gonzales v. Raich was such as case. There the challengers were not asserting that the CSA itself was unconstitutional, rather that its application to the intrastate possession of marijuana was beyond the scope of Congress’s powers. Generally speaking, as-applied challenges are much more amenable to narrow specific injunctions rather than having an entire statute struck down.
Now to Ayotte, which as I mentioned was a facial challenge to New Hampshire’s parental notification/consent statute, which failed to provide the required health exception. Taking the usual course, the plaintiffs brought the facial challenge seeking to strike the statute down. The problem with that is that in the vast majority of the cases where the statute would have been used it would have been constitutional, it was only in this small percentage of situations where the statute was unconstitutional. Had this been a federal statute, the Court would clearly have had the authority to sever the statute and strike down only the unconstitutional portions. This, however, was a state statute and prior to Ayotte, the federal courts did not have the authority to “re-write” such statues. The Court, thus, was presented with a problem that it solves by remanding the decision back to the Court of Appeals for a determination as to whether the New Hampshire state legislature would have accepted a statute that contained the required health exception. If so, then the Court is instructed to craft a narrow injunction effectively re-writing the statute so that it contains the required exception. If the Court determines that the legislature would not have accepted such a revision it can strike the statute down in its entirety. In short the Court has compromised, granting an as-applied remedy to a facial challenge. Thus, the pro-life groups win a bit here as well. In fact, they arguably win much more than the pro-choice groups do as a result of this decision and its likely impact on future cases. It is entirely possible that the Court got this idea from Judge Easterbrook on the Seventh Circuit, who in Hope Clinic v. Ryan, 195 F.3d 857 (7th Cir. 1999)(en banc) did exactly this, over the strong dissent of Judge Posner who argued that that this novelty came “at the cost of expanding federal judicial power over the states, by a method that the Supreme Court has never countenanced and that violates Article III of the Constitution.”
The intricacies of abortion litigation, however, is not really what’s interesting to me about the case. Sticking with my initial thesis of a Court power grab, again I think its fair to say that the Court has granted itself more power and influence over the laws than it previously had. By extending their authority to sever statutes to state legislation, the Court is effectively inviting more litigation and as-applied constitutional challenges to state laws. This increase in authority may, if in fact I’m correct, result in much more work and influence for the federal courts. While generally I’m a big fan of increased federal court review, in this case, I’m not convinced that in the long run this is going to be a good thing. Most litigation with respect to state statutes are still handled by state courts, which is how it should be. With this new potential facial challenge as-applied remedy over state laws I think it’s reasonable to expect a new influx of cases being brought initially in federal court, or being removed there by zealous defendants looking for this new arguably more narrow remedy. My more conservative co-bloggers will likely argue that this is a bad thing as it tips the power from state to federal courts even more than before. I’m not sure they are wrong, but only time will tell whether this is ultimately as bad a result as they initially fear. One thing appears certain, the addition of a new Chief Justice didn’t really shift the Court to the right or prevent it from making a power grab. Further, given the voting patterns of the two cases, 6-3 in Gonzales and 9-0 in Ayotte, assuming that a Justice Alito is as conservative as he is being portrayed (both by many of his “liberal” attackers and by many of his “conservative” supporters (I used quotes merely to further qualify my generalizations)) it does not appear that he would have prevented these results, or even opposed them for that matter. Last thought, institutionally at least, some of this makes sense to a point. The federal courts, especially SCOTUS, have been under attack from both sides of the political spectrum and from both the institutions of the Executive and Congress for some time now. Thus, to see them assert their constitutional role in some of these major issues is not irrational, it may not be the best thing, but this is far from the first time in our constitutional history that such a thing has happened, nor, I predict, will it be the last.
Thirty facts about Jack Bauer
Jack Bauer got Hellen Keller to talk.
Jack Bauer once forgot where he put his keys. He then spent the next half-hour torturing himself until he gave up the location of the keys.
Jack Bauer was never addicted to heroin. Heroin was addicted to Jack Bauer.
and Jack Bauer's family threw him a surprise birthday party when he was a child. Once.
HT: Dave posting on Ace's site.
Friday, January 20, 2006
In an effort to establish the rights of some to live as they wish, free from the inconvenient critique of the majority, free-speech is corrupted to mean limits on speech. In this respect, the Court has done a fair job, in my opinion, of balancing the interests. Too bad the Europeans have done so poorly.
Dionne's interesting take on Gonzales v. Oregon
Thursday, January 19, 2006
Chirac warns that any sponsors of terror on French soil should expect that France may respond with nuclear weapons. Let me repeat that.
Sponsors of terror against France should expect a nuclear response.
Sentencing a man to death for violent murder is inhumane. Refusing to sign on to the Kyoto protocols is irresponsible. Failing to stop the genocide in Sudan is unconscionable. Preempting a terrorist attack is unlawful.
BUT... Nuking the ignorant population of a terrorist state is OK as long as the terrorists started it.
Which states, pray tell, is he talking about anyway? I thought that Chirac was still scoffing at Bush's identification of Iran and NK as rogue states. Isn't the analysis of a government as "evil" oversimplified and evidence of ignorance?
So, the question on the table is whether there is EVER a time to nuke another nation as a response to a terrorist attack. I would suggest that, if the deterrent value of nuclear weapons requires a willingness to use them against innocent populations, there is never a time in which a nuclear response to a terrorist attack is just.
Wednesday, January 18, 2006
Another Justice Stepping Down?
There has been speculation, on Confirm Them and elsewhere, that at least one Supreme Court justice other than Sandra Day O'Connor will be retiring in 2006. Past speculation over retirement has generally focused on justices who have either been advanced in age (John Paul Stevens) or had ongoing severe illnesses (Ruth Bader Ginsburg and the late Chief Justice William H. Rehnquist).
With this latest bout of speculation, Stevens and Ginsburg have both risen to the top as the prime contenders for retirement. For a moment, however, I urge you to throw conventional wisdom aside and ask yourself this question: Which current Supreme Court justice has a connection to a prominent Judiciary Democrat by way of previous employment?
Answer: Stephen Gerald Breyer. In 1974, Breyer -- who by then had already clerked for Justice Arthur Goldberg and spent some time in the Antitrust Division of the Justice Department -- was invited by none other than Senator Ted "Splash" Kennedy (D-Inebriation) to work as legal counsel on the Senate Judiciary Committee, which was then in Democrat hands.
Could it be that the reason Tipsy Teddy was so infuriated -- and infuriating -- during last week's Alito hearings was that he has the inside scoop on an upcoming vacancy? Could it also be that he recognizes the importance of a dry run for the filibuster now because Democrats will need to be ready to actually pursue one in the near future?
Granted, the above is all speculation, but it is worth thinking about, if for no other reason than that it might go a long way toward explaining why Judicicary Democrats seemed so unhinged last week.
At any rate, Mark Gauvreau Judge confesses that he is a "conservative metrosexual." He explains:
As most people know, a metrosexual is a heterosexual man who has good taste in art and music, and likes to pamper himself with nice clothes and expensive grooming. There's only one drawback: I can't stand much of the so-called common-man culture celebrated by the Right.First of all, it's WWE now, thanks to a lawsuit with the World Wildlife Fund. Second of all . . . Amen.
I fully realized I'm a conservative metrosexual -- let's call me a metrocon for short -- a few weeks ago. The Gretchen Wilson song "Redneck Woman" came on the radio. This tune, a hard-charging boogie-woogie number, is a celebration of crude behavior, a kind of red-state aria of defiance against the staid, snobby, and civilized. The woman in the song boasts about shopping at Wal-Mart, keeping the Christmas lights on the house all night long, and standing in the front yard barefoot "with a baby on my hip."
I had an immediate, visceral hatred of the song. It represented the one thing I truly cannot stand about modern conservatism: its defense of anything dumb, tacky, and second-rate, as long as it comes from "the people." The common man is deified by the right. NASCAR, an absolutely idiotic "sport" which consists, as the joke goes, of "a bunch of rednecks makin' left turns," is hailed as red state America's favorite pastime -- and ipso facto comparable to the Olympics of ancient Greece. Actually, scratch that: NASCAR is not treated as something grand and noble, which makes it all the worse. To populist conservatives, the simple fact that Bush country embraces the sport makes its aesthetic quality quite beside the point. This is the sport of people, we are told ad nauseam by folks like Laura Ingraham, Bill O'Reilly, and Sean Hannity, who "work hard, go to church, and play by the rules." They are the ones who watch the WWF -- a "sport" even apes laugh at -- and who read the Left Behind series of books, which should probably be called Theology for Dummies.
Okay, I don't exactly endorse all of what Judge is saying, but I do understand where he's coming from. I am no friend of populism, and the celebration of the common is not exactly my style. Although, I think a truly urbane man can appreciate all sorts of art and entertainment.
Personally, I'm fairly eclectic. Beethoven's Ninth Symphony just finished playing on my radio, but Korn's Untouchables just replaced it. I love single malt Scotch, but I wouldn't turn my nose to Budweiser. And I appreciate a good smoke, but I'm not going to reject a cigar because it costs less than $5.
But that's not either here nor there. Judge's main point, once again, has some merit. There is nothing wrong at all with saying some things are objectively better than others. Beethoven is objectively better music than Snoop Dogg or even, yes, Led Zeppelin.
Where I think Judge goes too far is in his absolute disdain for everything he disapproves of. Listen, I detest country music, and I'd rather watch women's baseketball than endure an afternoon of NASCAR, but the fact that a large section of the populace enjoys these forms of entertainment is not keeping me up at night. (I would also like to note that these activities are not exclusively enjoyed by red state southerners: Example 1: My very New York older brother, who sportingly has a tattoo emblazened with Dale Earnhardt's number.)
I do think conservatives go too far with the "average guy" schtick, but you know what? Most people are the average guy, and turning your nose up at them is not the best way to convince them of the rightness of your cause.
Judge's basic point about not worshipping at the altar of the mundane is one worth considering, but it might have had a bit more punch had he chosen not to glorify so crassly in his own righteousness.
Further thought: Judge conceded as much on the Laura Ingraham show, but better that people pursue such crude yet relatively innocent pursuits as NASCAR and country rather than more violent diversion, a la gangsta rap or worse.
Further thoughts on Gonzales v. Oregon
Read more:Though many people are quite astute to the fact that Justices Thomas and Scalia have different judicial philosophies, the general impression is that they are basically one in the same. At least that is the perception among the general public, and even implied by commentators who suggest that any person Bush picks should be in the mold of Thomas and Scalia. And I must confess that their differences are much more substantial than I previously suspected.
Scalia is far less libertarian in his approach to federalism issues than Thomas. Or, more aptly, Scalia is much more likely than Thomas to support the federal government in these sort of federal versus state conflicts. In this way he is almost the opposite of Sandra Day O'Connor, and I will explain why shortly.
Thomas, of course, is much more protective of states'ss rights and, concurrently, much less partial to upholding precedent. In fact, his dissent in the Oregon case is one of the most remarkable dissents I have ever read. While Scalia is known for his caustic wit, Thomas uses the occasion to verbally smackdown the Court majority. It seems he essentially endorses the outcome of the case, but he refuses to sign on to the majority opinion. Rather than write a separate concurrence he chooses instead to completely distance himself from the majority. In effect, Justice Thomas is not dissenting from the opinion or the holding, but he is dissenting wholly from the Court itself. This is a dissent designed specifically to highlight the complete inconsistency in the thinking of at least five members of the Court. In short, he cast a protest vote against the turn this Court has taken, and has basically washed his hands of their reasoning. He is far less conservative tempramentally than his colleague on the right side of the Supreme Court.
As I said, there is another element at play here. Critics have attacked the supposed double standard about states' rights. First, as already mentioned, Scalia is less concerned with upholding the states against the powers of the federal government than are his other federalist-minded jurists. Second, the Baseball Crank explains more fully why this isn't a federalism case per se:
Even Justices who think that we may properly revisit long-settled Constitutional doctrines are usually hesitant to do so without any party to the case asking them to. All Scalia was doing here was assuming that Congress legitimately intended to legislate for this purpose, given 100+ years of history saying it could.To follow up on that, I have to clarify two different aspects of federalism.
More to the point, there is a big difference between saying that Congress (or another branch of government) can go beyond its enumerated powers, and saying that Congress can act within those powers for unenumerated purposes. Here, we have the latter - there is no question that the drugs involved in this case traveled in interstate commerce, and even Scalia is unlikely to sign on, at this late date, to a sufficiently cramped view of the commerce power to find that Congress can't regulate the use of goods shipped in interstate commerce; that battle was lost 70+ years ago. What Schraub is implying here is that Scalia, for consistency's sake, should have concluded that even an act within Congress' explicit powers is impermissible if the intended purpose of that act invades traditional state authority. But that is a much more radical states' rights doctrine than anybody on the current Court embraces, and it doesn't square with the plain language of the Tenth Amendment:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
The Tenth Amendment speaks of delegated powers, not the purposes and intentions to which those powers are put. Indeed, it would be a most unconservative approach (and one specifically dissented from by Scalia in Romer v. Evans) to give constitutional dimension to the intended purposes of an act rather than look at what powers are enumerated and presume that acts taken under those powers are legitimate (as was done in South Dakota v. Dole, an opinion Scalia joined). Schraub's analogy (taken from here) to United States v. Morrison, the Violence Against Women Act case, is misplaced; the Court in that case found an absence of proper basis for the commerce power in the first instance - i.e., an insufficient nexus between interstate commerce and domestic violence - rather than creating an affirmative rule repealing the commerce power, even when otherwise applicable, based upon the intended use of that power.
The lesson, as usual, is that people who charge conservatives with hypocrisy as often as not end up demonstrating that they don't understand conservative principles.
The first aspect is actually less about federalism than about states' rights. I am referring to those sets of cases which do not involve the federal government, but instead are cases involving a citizen or group of citizens suing a state, ie. Roe, Lawrence, etc. In these cases the federal government has taken no action, but instead the issue is simply whether the states have violated some aspect of the Constitution. It is in these cases where I posit the states are owned much more deference. The Constitution is principally a document enumerating the various powers of the federal government, and in cases where the states have acted absent a federal action, the tenth amendment ought to be respected if said state action does not contravene the plain meaning of the Constitution. As one who does not buy into the incorporation bunk, the petitioners against the state have a high burden to prove that the states have clearly violated the federal charter. (Even allowing for incorporation - which I do not - there is still a high burden).
Now, of course there might be circumstances where the states do in fact violate the federal constitution. To cite an extreme example, if a state allowed a 28-year old to be elected to the Senate, there would be no reasonable justification for the Courts to sanction the state action. I use this axample merely to demonstrate that states' rights are not absolute. There are going to be harder examples surely, and there have been. But the general presumotion should be for the state action to be upheld.
But there is a second strand of states' rights/federalism issues. These involve cases where there is a federal intrusion upon the states, and this is where the Oregon case falls. In a federal versus state battle, the Justices must determine whether the feds have acted in a manner consistent with its constitutional authority.
While the ideological pull for conservatives is still to defer to the states, again this is not absolute. After all, the federal government does have certain powers. If you're an individual who thinks the feds can never interfere in state matters, congratulations, you're anti-Federalist, and your side lost nearly 220 years ago when the US Constitution was ratified. What conservatives sometimes fail to appreciate is that the Constitution enhanced the powers of the federal/national government from what came before - the Articles of Confederation. Of course it did so while placing strict limits on those powers.
As a matter of policy, I think the federal government ought to leave the states largely unmolested. I think William Watkins absolutely nailed it with this piece, and though I personally think assisted suicide should be outlawed, the feds ought to leave the states alone to decide the matter. But that's a policy matter that does not address the constitutional propriety of federal interference, and truth be told neither does this particular case - at least not substantively. Though I think Scalia plays a little fast and loose, his interpretation of the AG's powers regarding CSA seems ultimately more convincing than Kennedy. But I'll have more to say on Kennedy in a minute. Again, I would refer you to the Baseball Crank post mentioned above for a much more articulate explanation of the legal matter.
I had alluded to Scalia's differences with O'Connor. The reason I find O'Connor fascinating is that I do see a consistency in her jurisprudence. In matters of federal vs. state conflicts (South Dakota v. Dole, Raich, Lopez), she decided almost constantly with the states. But in matters where the states acted without federal interference (Casey, Lawrence) she tended to rule against the states. Basically, she always ruled for the smaller entity. Scalia, meanwhile, has a somewhat opposite pattern, though not absolutely so.
Ultimately, when it comes to federalism issues, we tend to think too abstractly, ie we insist that the state must always prevail. While my personal symapthies normally reside with the more local institution, sometimes the feds should win. I'll paraphrase Roberts here a bit, but when the Constitution says the big boys should win, then the big boys win.
Oh, and one last note on Kennedy: Can someone else write these opinions? Seriously, like, any other left-leaning member of the Court would do. Maybe Breyer or Sutter could get the next big assignment, because then at least the majority opinion might be worth the paper it's written on, or at the very least it might, you know, make sense.
I love the Gipper, but man did he f*** up that pick.
Tuesday, January 17, 2006
Gonzales vs. Oregon
- "The importance of the issue of physician-assisted suicide, which has been the subject of "earnest and profound debate" accorss the country, Glucksberg, 521 US, at 745, makes the oblique form of the AG delgation all the more suspect. Under the Goverment's theory, moreover, the medical judgements the AG could not make are not limited to physician-assisted suicide. Where this argument accepted, he could decide whether a physician who administers any controversial treatment could be deregistered. This would occur, under the Government's view, despite the statute's express limitation of the AG's authority to registration [sic] and control, with attendant restrictions on each of those function, and despite the statutory purposes to combat drug use and prevent illicit drug trafficking." (see page 21)
Thomas seems fairly incensed by what he sees as the court flip-flopping from Raich in terms of the CSA, but interestly enough, Scalia doesn't appear to even make reference to it. Rather, Scalia's dissent comes off---as does that of Thomas (albeit much less eloquent and/or reasoned) as being written by someone who is much more grounded in personal belief that legal interpretion (i.e., the authority Scalia would purport an agency to have under the "public interest" standard would essentially be limitless). In short, today's decision seems to portay Raich as an very strained take on executive power and comes back to earth in terms of what limits should be placed on an agency/executive's power to implement policy through unilateral discretion.
Will Ray Nagin just please SHUT THE HELL UP
"Surely God is mad at America. He sent us hurricane after hurricane after hurricane, and it's destroyed and put stress on this country," Nagin said as he and other city leaders commemorated Martin Luther King Day. "Surely he doesn't approve of us being in Iraq under false pretenses. But surely he is upset at black America also. We're not taking care of ourselves."And then added:
"We ask black people ... It's time for us to come together. It's time for us to rebuild New Orleans — the one that should be a chocolate New Orleans," Nagin said Monday. "This city will be a majority African American city. It's the way God wants it to be. You can't have New Orleans no other way. It wouldn't be New Orleans."These are words that most assuredly call to mind the great Martin Luther King, Jr., who, as I recall said:
I have a dream. I have a dream that we will live in a society obsessed with race, where we will judge men not based on the content of their character, but on the color of their skin. I have a dream where so-called black leaders will use race to shake down individuals and organizations in order to line their pockets. I have a dream that a major city will be majority black and indeed be chocolate. Because I like chocolate. I had a dream about chocolate, but I can't share it right now. It involves . . . well, anyway, I have a dream. I have a dream that generations of people will come after me and totally misrepresent my views and advocate the establishment of the very type of society I worked my entire life to eradicate. I have a dream that race hustlers will spit on my memory and help foster further the racial divide that permeates this nation.Or something like that.
Speaking of idiot politicians, don't miss TSL's takedown of a certain junior Senator from New York.
Sunday, January 15, 2006
Is it possible to be activist when applicable law is mere caprice?
The op-ed doesn't question that, if Roper v. Simmons governed, it would require the sentence to be vacated. Justice Parker assumes that is the case, but argues (to the consternation of some) that the death sentence should stand because Roper is incorrect. Parker says: the U.S. Supreme Court was wrong; the federal constitution does not limit the death penalty in the way Roper says it does; the death penalty should stand.
This op-ed has been criticized as an instance of conservative judicial activism. See here. I just think this was an odd case in which to criticize a state judge for failing to apply a federal Supreme Court decision. In Roper, the Supreme Court sanctioned* a state supreme court that had done just that.
*I use "sanctioned" in the sense of "approved." "Sanctioned" is one of those words that means one thing as well as the exact opposite. It can mean "approved" as well as "punished." Another example is "dust" -- dusting a piece of furniture removes a layer of dust; dusting crops adds the layer of dust. I once started a list of such words, but can't remember any of the others. Suffice it to say that the list is longer than you might think at first.
In deciding the case that became Roper, the Mo. Supreme Court was faced with applying directly on-point, controlling precedent that the federal constitution did not prevent the death penalty in that case. The Mo. Supreme Court decided to the contrary. When it got to the federal Supreme Court, the Court did not even criticize the lawlessness of the Mo. Supreme Court, but actually affirmed the Mo. disregard of the federal precedent. So Roper provides a uniquely poor basis on which to criticize a state court for disregard of federal precedent.
More generally, if one accepts that the "rule of law" contained in the Eighth Amendment depends upon prevailing social custom -- or if one accept that such mutability is the controlling rule of law in any circumstance -- how is it ever possible to criticize a lower court not applying a prior decision of a superior court on the same subject? The lower court can always say "But times have changed since then."
The new majority leader
When it comes to reform, Shadegg wants aggressively to push to tighten lobbying rules and — most importantly — increase the transparency of the legislative process, control earmarks, and change the antiquated budget process that favors out-of-control spending. In recent days, the other candidates, Majority Whip Roy Blunt and Rep. John Boehner of Ohio (the latter who, to his credit, is a longtime scourge of earmarks), have started a minor bidding war on reform. That's all to the good. We expect Shadegg — who just joined the campaign Friday morning — to up the ante in coming days. We believe he is the candidate most credible on reform, and most likely to carry it out if elected.That sounds all well and good, but let me add just a bit of cold water to the Shadegg movement.
On policy, the Republican conference seems to have lost its way lately. Shadegg has not. He is a conviction conservative. As he told NRO earlier this week, "We need to shrink the size of government, not grow it. We need to reform government, not manage it." A majority leader can't be a purist, of course, and, as we have often noted, it's not a lack of will or conviction alone that has created limited-government conservatism's difficulties — larger forces are at play. But given the dismaying recent drift, the top of the leadership could use an infusion of Shadegg's sort of unvarnished principle.
I have no doubt of Shadegg's conservative bona fides. We absolutely need to return to the heady days of the mid-90's when Congress reasserted itself in the policy debate and was motivated by a strong desire to scale back government. As I quoted Jonah Goldberg in the post below, the best way to mitigate the pernicious effects of lobbyists is to make DC less the locus of attention. In other words, the fewer areas the feds are interested in, the fewer points of access and interest for lobbyists. And I like that Shadegg appears to be a man of tough principle unlikely to be tainted by the likes of Abramoff and company.
But the position of majority leader is not principally one for policy and ideas men. Oh, don't get me wrong, Dick Armey was fully involved in the policy process, but he was also a shrewd political operator who knew how to build coalitions and get business accomplished. DeLay was even more successful at the politics of the job, and that's one of the reasons the Dems were so eager to see him gone from the post.
Thus the position requires the skills of an individual who contains significant political acumen. He must be someone who can get legislation passed. That's what Blunt has going from. The Whip needs to kow how to get votes and keep people in line, and it's the sort of position that allows one to garner the experience needed later as majority leader. While it's also important to have in that post a person of strong ideological credentials, it's also important that the person occupying the position has the political iq to advance an agenda.
I am not blind to the message that the new selection will make regarding corruption and reform thereof. It would be an opportune moment to distance the leadership from the ties to K Street. But we can't ignore the more important goal of having in place an individual who will actually be able to get things done. This is not to say that John Shadagg is without those qualifications. Any person who has served in Congress for over a decade must have picked up on those necessary skills, and his elevation to the leadership of the Republican Policy Committee shows he has a measure of support within the GOP caucus. But I would just caution that before we in the conservative movement explode in unified support of Representative Shadagg we make sure he has those necessary qualifications that are needed in the position of majority leader.
The public today is denouncing Congress for its promiscuous attention to the public's appetites for government favors. Although it is a principle of Washington discourse that no discouraging word shall ever be said about the American public, nevertheless:And here's what Jonah had to say. (Scroll down a bit to "Loose Rules".)
On the door of every congressional office into which favor-seekers troop, there should be a sign with these words from the late George Stigler, the Nobel Prize-winning economist from the University of Chicago: "I consider it a cowardly concession to a false extension of the idea of democracy to make sub rosa attacks on public tastes by denouncing the people who serve them. It is like blaming the waiters in restaurants for obesity."
Many people attacking Congress are also attacking themselves. And they are correct. Twice.
The real reform needed isn't more campaign finance restrictions and denying Congressmen the ability to get a free lunch or trip (though some of those measures might make sense in the short term). And the real reform needed isn't government financed elections -- as Daniel Schorr suggested this morning on NPR. The real reform required is to trim government back, back, back. The less government picks winners and losers and the less it involves itself in a trillion decisions it should not be party to, the fewer incentives there will be for lobbyists to give a rat's ass about Washington in the first place. I wrote about that here, if anyone's interested.
Saturday, January 14, 2006
Concerned Alumni of Princeton
Hat tip to Scott Johnson at Power Line.
The New York Daily News reported on Friday that Clinton was scheduled to appear earlier in the week at a Children's Defense Fund (CDF) luncheon with none other than singer and activist Harry Belafonte, who, in addition to being known for putting calypso on the map, has been known to have choice words for this administration on occasion. Only days before the scheduled appearance with Clinton, during an overseas visit with Venezuelan dictator and all around bad guy Hugo Chavez, Belafonte took the opportunity to say, among other things, that our own President George W. Bush was "the greatest terrorist in the world." The CDF luncheon had Belafonte and Clinton scheduled to be in close proximity the whole time, since the former was to be a presenter and the latter the keynote speaker.
What is a calculating political opportunist to do under such circumstances? Does she embrace Belafonte, who is a legitimate political ally and close to her heart ideologically, and risk the wrath of Americans who think his remarks were beyond outrageous? Or does she rebuke Belafonte publicly, drawing the ire of Mr. Tally-Man and some socialists within her own party but pleasing middle-of-the-road voters?
Hillary's reaction to the debacle speaks volumes about her lack of genuineness: somehow, she figured out that if she kept 15 feet away from Belafonte at all times (a distance guaranteeing that she and Belafonte would not appear in a single photograph together), and totally ignored his presence, she could avoid a public relations firestorm. She swept into the event, gave her speech, and fled the stage before Belafonte could even take to the podium. She also refused to comment upon the earlier event at a subsequent health care-related press conference, even when asked about further idiotic comments made by Belafonte after the CDF luncheon.
Admittedly, I am no fan of Hillary's (and no, I will not be voting for her, for senator or president), but I think that, by playing the willful blindness game at the CDF event, she missed a golden opportunity to rebuke Belafonte and score some points. It was her husband's infamous public spanking of Sister Souljah in 1992 that helped create the perception that he was an independent-minded centrist Democrat. With a couple of subtle lines in her speech, or a stern comment or two at some point after leaving the charity event, she could have quashed any doubt in people's minds that she actually might sympathize with Belafonte's nonsense. Her too-smart-by-half maneuver leaves her vulnerable (fairly, in my opinion) to the implication that she does not quite reject what Belafonte said, so long as it gets her votes.
I have no doubt that any such anti-Belafonte comments would have been any less premeditated, but at least they would have made sense, and also would have been consistent with the image she is trying to present as being tough on terrorism. Now, this anecdote will become one of the thousands cuts her presidential campaign must endure to succeed.
Here's hoping she bleeds out.