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Tuesday, March 30, 2004


The Second Circuit might short-circuit Maurice Clarett's NFL bid yet

ESPN.com reports that the Second Circuit "agreed to set oral arguments for April 19 and suggested it might immediately rule whether Clarett can enter the draft, with a written ruling to follow explaining its reasoning." More signficantly, the ruling would also effect USC reciever Mike Williams, who is expected to be a top 5 pick.


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Daschle's Nader?

Sen. Tom Daschle is facing an independent bid from Tim Giago, the publisher of the Lakota Journal, who had originally planned to challenge Daschle in the Democratic primary. This has the potential to totally change the landscape of the South Dakota Senate election. See, for example, this article in today's Sioux Falls Argus Leader. This link is from Daschle v. Thune, where you can find tons more on this story. Also, check out this post on Powerline.


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Jay Sekulow's Trial Notebook from the Partial Birth Abortion Trials

Jay Sekulow of the American Center for Law and Justice is in the New York courtroom and is filing reports on the trial here.

A lot of other articles about the trials can be found at How Appealing here and here.


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Rotunda on Scalia & Recusal

Ronald Rotunda, the con law professor that edited the casebook I used in my Con Law class last year, has this article on NRO about whether Scalia should recuse himself in the Cheney energy cases.

Here's Rotunda's conclusion:

There is a good reason why courts, both state and federal, interpret the "appearance of impartiality" language objectively and narrowly. Judges do not divorce themselves from the world when they don their robes. They still are allowed to have friends, go on hunting trips, and live a life. Years ago, when I was clerking for a federal judge, he asked me, after the oral argument, what I thought of the two lawyers' performances. Before I answered he said, "Those are two of the finest lawyers you'll ever meet. One was the best man at my wedding and the other is one of my very best friends." The judge did not think of disqualifying himself.

Nor did Chief Justice Harlan Fiske Stone disqualify himself from cases involving President Herbert Hoover, although he was a buddy and a member of Hoover's informal "medicine ball" cabinet. (They would throw medicine balls at each other before breakfast.) Nor did Justice Jackson, who was a personal friend of FDR, and took vacations with him. Nor did Justice Douglas, who was a poker buddy of FDR. Nor did Chief Justice Vinson, who was a poker buddy of Truman. Come to think of it, Justice Ruth Bader Ginsburg has given her name and presence to a lecture series cosponsored by the NOW Legal Defense and Education Fund, an organization that often argues women's-rights issues before Justice Ginsburg. Should she disqualify herself from issues involving women's rights?

I am a member of a legal ethics list server. One of the other members recently argued: "Censure by Congress, even articles of impeachment, should at least be considered" against Justice Scalia. Funny that one does not hear similar calls to impeach Justice Ginsburg because of her actions. Maybe that's because the calls for Scalia's recusal — and impeachment — have very little to do with justice and everything to do with politics.


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Kerry and Clarke, again

Saturday I was wondering whether Clarke was really helping Kerry. I realize it is still far too early to put much stock in polls, and it is difficult to draw conclusions about causation, but a CNN/USA Today/Gallup poll out today suggests that Bush is gaining on Kerry, especially when voters are asked about national security.

Captain Ed commented on this poll this morning:

Instead of being wounded by the debate over the past week, Bush has been lifted as the electorate has been reminded that a war is still on -- and the Democrats have no strategy to fight it. They change positions to match the prevailing wind, and in that strategy John Kerry is the perfect standardbearer for the party.


Captain Ed has another post about Clarke this morning worth a read, titled "Did Clarke's Team Keep the FBI In The Dark?".


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Monday, March 29, 2004


As for the substance of Kerry's sermon

I mostly focused on Kerry's contradictory position on whether faith should influence political decisions, but there are plenty of theological problems with Kerry's comments about the lack of Christian works by the Bush Administration. La Shawn Barber does a good job of dismantling Kerry's theology of works here.

Some excerpts:

James gives guidance on how individuals, not governments, can evaluate their faith to determine whether it's living or dead. It is the personal works of believers that James has in mind in this passage. It wasn't addressed to Caesar.

If Kerry were a Christian, he'd know that the biblical standard of the test of faith doesn't rest on whether poor people exist or teenagers are killed in the streets. Using taxpayers' money isn't a work of faith.

What you do as a professing Christian, i.e., using your own money or time to feed the poor, would be considered "works." Does Kerry see the distinction?
...

John Kerry would do well to remember that the word of God is a two-edge sword. Works without faith, genuine saving faith, are just as dead.


Link via Instapundit.

More about Kerry's misreading of James 2 can be found at HobbsOnline.


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A Test of Kerry's Faith

This morning, I wrote about Kerry's contradictory position on the proper relationship between faith and political "works." As if on cue, Time Magazine this week has an article entitled "A Test of Kerry's Faith" about how his Catholic faith is indeed devoid of the works that the Catholic Church demands of him.

Some excerpts:

Kerry's positions on some hot-button issues aren't sitting well with members of the church elite. Just listen to a Vatican official, who is an American: "People in Rome are becoming more and more aware that there's a problem with John Kerry, and a potential scandal with his apparent profession of his Catholic faith and some of his stances, particularly abortion."

But it's far from clear whether the greater political problem is Kerry's or the church's. "I don't think it complicates things at all," Kerry told TIME in an interview aboard his campaign plane on Saturday, the first in which he has discussed his faith extensively. "We have a separation of church and state in this country. As John Kennedy said very clearly, I will be a President who happens to be Catholic, not a Catholic President."...

Kerry is a former altar boy who complains when his campaign staff does not leave time in his Sunday schedule for Mass, who takes Communion and describes himself as a "believing and practicing Catholic, married to another believing and practicing Catholic." But just last week he made a rare appearance on the Senate floor to vote against a bill that would make harming a fetus a separate offense during the commission of a crime. The vote put Kerry on the same side as abortion-rights advocates in opposing specific legal rights for the unborn—and against nearly two-thirds of his fellow Senators.

...
Kerry and other Catholic politicians have long argued that their religious beliefs need not influence their actions as elected representatives. That position is what provoked New York's Archbishop John Cardinal O'Connor in 1984 to castigate New York Governor Mario Cuomo and Democratic vice presidential nominee Geraldine Ferraro, who are both pro-choice.

If anything, the church is getting tougher. The Vatican issued last year a "doctrinal note" warning Catholic lawmakers that they have a "grave and clear obligation to oppose any law that attacks human life. For them, as for every Catholic, it is impossible to promote such laws or to vote for them." When Kerry campaigned in Missouri in February, St. Louis Archbishop Raymond Burke publicly warned him "not to present himself for Communion"—an ostracism that Canon Law 915 reserves for "those who obstinately persist in manifest grave sin." Kerry was scheduled to be in St. Louis last Sunday, and told TIME, "I certainly intend to take Communion and continue to go to Mass as a Catholic."




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Nominate me! I want to be a justice!

According to this article in the Detroit News renewing my FedSoc membership dues has increased my chances of being nominated to the Supreme Court. Perhaps my chances have even doubled or tripled.

Link courtesy of How Appealing.


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Minnesota is now the breeding ground for GOP stars

The state of Humphrey and Mondale is now producing national stars for the other party. Check out this Star Tribune article about Norm and this St. Paul Pioneer Press article about T-Paw.


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Preach it, brother John!

The Associated Press has this interesting piece about John Kerry preaching at a Baptist church in St. Louis about putting your faith into action.

John Kerry cited a Bible verse Sunday to criticize leaders who have "faith but has no deeds," prompting President Bush's spokesman to accuse Kerry of exploiting Scripture for a political attack.


Kerry never mentioned Bush by name during his speech at New North Side Baptist Church, but aimed his criticism at "our present national leadership." Kerry cited Scripture in his appeal for the worshippers, including James 2:14, "What good is it, my brothers, if a man claims to have faith but has no deeds?"

"The Scriptures say, what does it profit, my brother, if someone says he has faith but does not have works?" Kerry said. "When we look at what is happening in America today, where are the works of compassion?"


Isn't this guy from the party that doesn't think your religion shoulhid not influence your politics? Am I missing something here? How exactly does this square with his belief that marriage is between a man and a woman but being utterly unwilling to do anything about it?

The Associated Press writer even seems to catch how utterly ridiculous it is for John Kerry to be telling Bush that he isn't taking his faith seriously enough:

Kerry is Roman Catholic, but his support for abortion rights is at odds with Vatican teachings.

"I don't tell church officials what to do, and church officials shouldn't tell American politicians what to do in the context of our public life," Kerry said in an interview with Time posted on the magazine's Web site Sunday.


The response from the Bush campaign left something to be desired however:

Bush campaign spokesman Steve Schmidt said Kerry's comment "was beyond the bounds of acceptable discourse and a sad exploitation of Scripture for a political attack."


This seems a little overheated to me, and I'm not sure it was outside the bounds of political discourse. If Kerry really wants to make this campaign into a question of Christian values, I think the Bush folks should welcome the challenge. I think they should also relish the opportunity to show him playing both sides of the fence on the question of what role faith should play in politics.

UPDATE: I guess I wasn't the first person to realize how silly Kerry's comments were. Tim Graham makes a similar point on the Corner on NRO.

Who exactly is Kerry upbraiding? Is he suggesting that Bush does nothing privately for charity? (If so, how does he explain the year that his friend Al Gore gave about $350 to charity? Where are his tax returns?) In the most literal translation, he is suggesting there are no works of compassion in America today, indicting the whole country of failing God and man.

We know what he's trying to say: that Bush would be a better Christian by spending more of OUR money on government programs. (Funny, liberals usually hate people who try to suggest being a better Christian.) This seems exactly at odds with the Bush vision of compassion, which suggests that the needy in America are not best helped by the Social Security Administration or the Department of Health and Human Services, but by the individual care and attention of loving people. Don't just give in your paycheck and say "Done." Go out and find a need and meet it. Church groups could be doing more of this with federal grants today, but Kerry and his gang want to force religious groups to hire gay men and Buddhists before letting them feed the poor with money sent to Washington.

PS: Finally, Kerry the "Catholic" and his completely ultraliberal abortion politics. I find it odd that Kerry would tell the church to butt out of his public policy views. Who, here, is suggesting someone has faith, but no works? If he absolutely disagrees with the Catholic view of the dignity of the unborn child, why doesn't he go church-shopping like Wesley Clark? If anything, this abortion line completely undercuts his book-of-James critique of Bush. If you are going to go beyond your faith to making good works in the world, then Kerry and other Senate Democrats whose biographies suggest they are Catholic should show the sincerity of their faith in public decisions, not just private moments.


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Also praying for a swift recovery for Stuart Buck

I saw this note about Stuart Buck, whose thoughtful blog is here. I don't know the guy at all, but I've always felt like he is a kindred spirit from reading his musings.


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Saturday, March 27, 2004


The Bush campaign's "top secret weapon"

I don't really have anything to say about this story in the St. Paul Pioneer Press about Laura Bush. I just thought it was interesting.


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Has John Kerry found supply-side religion?

Yesterday, Kerry unveiled part of his economic plan, claiming to slash corporate taxes and battle outsourcing. FoxNews.com summarizes his proposal:

Current tax laws allow American companies to defer paying taxes on income earned by their foreign subsidiaries until they bring it back to the United States. If they keep the money abroad, they avoid paying U.S. taxes entirely.

Kerry would require companies to pay taxes on their international income as they earn it rather than being allowed to defer it. The new system would apply to profits earned in future years only, not retroactively.

He also would allow companies to defer taxes when they locate a business in a foreign country that serves that nation's markets.

....

Kerry's campaign estimates that the change would save $12 billion a year. The savings would be used to reduce the corporate tax rate from 35 percent to 33.25 percent — a 5 percent reduction.

More than 99 percent of companies paying corporate taxes would see their tax bills lowered, the campaign says. But the 1 percent paying higher taxes are some of the nation's biggest and most powerful.


Larry Kudlow, writing today on NRO, is not impressed.

Sen. John Kerry moved to the right of Walter Mondale by proposing a small cut in the corporate tax rate, which he would lower to 33 ¼ percent from 35 percent. In political terms, it’s a clever ploy. In economic terms, it merely provides a small offset to the significant tax hikes Kerry proposes on capital formation, where he would slap small businesses, top-bracket taxpayers, dividends, and capital gains.

The Kerry proposal to rollback the Bush tax cuts would raise the after-tax cost and reduce the post-tax investment return on capital by more than 54 ½ percent. Taking out the upper-bracket labor-income component — which is still investment capital — the Kerry tax hike would reduce investment incentives by nearly 47 percent and work-effort returns by more that 7 ½ percent. A big hit.

Offsetting that, Kerry’s corporate tax cut would raise after-tax returns on corporate income by almost 2 ¾ percent. But that’s only a tiny amount compared to the overall tax-hike proposal.

Kerry would also terminate the extra-territorial tax credit for multinational companies with offshore operations. ... [H]e’s pandering to the current political hysteria over so-called jobs outsourcing, a misinformation campaign that Kerry compounds with his threats to terminate a number of free-trade agreements.

As the profits of U.S. firms are taxed overseas as well as at home (when the income is transferred back to the U.S.), companies are unfairly double-taxed on their earnings. .... Why should American companies be double-taxed on a worldwide basis when nearly all other foreign companies, including those in Europe, are only single taxed? ...
...

Narrow-minded members of Congress who are obsessed with the phony outsourcing argument are trying to punish international companies, arguing that the “loophole” that lets corporations defer foreign-earned profits with a special tax credit is merely a reward for creating offshore jobs. This is Sen. Kerry’s argument.

But the truth is, the territorial tax break is only a small part of the corporate rationale to locate part of an operation overseas. The greater justification is to be closer to foreign customers. And yes: Why should companies be double-taxed at home and abroad?

As for the outsourcing argument, that’s old-fashioned fear-mongering. Recent trade data show that there’s far more insourcing of service jobs from foreigners who invest directly in the U.S. than outsourcing of jobs from U.S. foreign investment. In manufacturing there is a net outsourcing, but that number hasn’t changed in 20 years, a period during which the U.S. created 38 million new domestic jobs. “Outsourcing” today is a phony war against American business and open international trade.


Unfortunately, it probably doesn't matter that much whether the outsourcing argument is fear-mongering, because I suspect it is going to be politically effective fear-mongering. And even if Kerry's elimination of the territorial tax break wouldn't reduce outsourcing, I think he will score political points on his attempt to do something about it.

While we are on the subject of political posturing, I thought this bit from Kerry's speech was amusing:

Instead of a real economic plan, they've given us the old politics of negative attacks. The truth is, this president doesn't have a record to run on but a record to run from.


That's right. Read the first sentence. Then read the second one. Amazing, huh? Even on the subject of "the old politics of negative attacks," Kerry is passionately on both sides.

Back to the FoxNews.com piece, the Bush people spent Friday doing the Tax Code (Re)Shuffle:

White House spokesman Scott McClellan dismissed Kerry's proposal as a "tax shell game" that he said would not address the issue of jobs going overseas.

"This is nothing but a reshuffling of the tax code and a political shell game and can't erase the fact that John Kerry's record is one of raising taxes some 350 times," McClellan said.
...

"John Kerry's plan to reshuffle the corporate tax code does nothing to help America's small businesses and entrepreneurs be more competitive," Bush spokesman Steve Schmidt said.


While these responses are probably correct, I'm not sure they will be that effective. The Bush campaign needs to do more than simply assert that Kerry's plan won't work. We'll see if they come up with something better.


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How does Clarke really help Kerry?

Even though, as I mentioned earlier, Clarke has clearly shown his political allegiance to the Democratic Party, I am not sure how arguing that Bush was not hawkish enough on terror before 9-11 helps Kerry, who just recently (after 9-11 - when he should know better) said that Bush is too militaristic in dealing with terror and we should concieve of it as "primarily an intelligence-gathering, law enforcement operation." This, of course, is conveniently forgetful of Kerry's past anti-intelligence agenda, but let's lay that aside for now.

The only thing I can think of is that Kerry really thinks voters are too stupid to understand that he is the opposite of the solution to Clarke's critique of Bush, and that the Kerry campaign hopes that voters will just think that if Clarke says Bush is bad, Kerry must be better.

There's something else odd about Clarke's book that is not getting much press in the mainstream media. This article on Slate reports that:

(On Page 127, Clarke notes that it's possible that al-Qaida operatives in the Philippines "taught Terry Nichols how to blow up the Oklahoma Federal Building." Intelligence places Nichols there on the same days as Ramzi Yousef, and "we do know that Nichols's bombs did not work before his Philippines stay and were deadly when he returned.")


Normally, connections between Oklahoma City and al Qaeda are written off as either crazy right-wing conspiracy theories or racist attempts to blame dark people for the terrorism of home-grown white folk. As JustOneMinute notes (link via Instapundit), this new information is actually pretty devastating to the Clinton approach to terrorism:

This ties in to the theory that Clinton quashed investigations into a foreign connection to Terry Nichols. The objective - blame Oklahoma City on right-wing wackos for political purposes. The subtle message - the people who voted for Newt and listen to Rush blew up this building.


And over on National Review Online, Deroy Murdock is making the case that Clarke doesn't even believe his own spin about the lack of a connection between Iraq and global terrorism.

So, what should we make of all this? Clarke probably isn't as much a partisan as an opportunist. He might have been a "registered Republican" in 2000, but he clearly sees the books that can be sold and the job possibilities that might be opened up by spinning his inside account (which is itself of dubious ethical standing) as a damning critique of Bush's policies. David Brooks makes a similar point in this New York Times column:

It should be said that Clarke used to be capable of the sort of balanced analysis contained in [the interim 9/11 commission] reports. Indeed, he was a major source for them. But that was the old Richard Clarke. That was the Richard Clarke who could weigh the pros and cons of the Clinton and Bush terror strategies. That was the Clarke who expressed frustration at the glacial pace of the pre-9/11 antiterror policy process, but who also, in 2001, sent out e-mail praising the White House for alerting agencies to a possible attack, and who praised the Bush team for "vigorously" pursuing the Clinton strategy while deciding to quintuple the C.I.A.'s anti-Qaeda budget.

But that wonky Richard Clarke doesn't become a prime-time media sensation or sell hundreds of thousands of books. Because in this country, we speak only one language when it comes to public affairs, the language of partisan warfare. So out goes Mr. Wonk. Clarke turns himself into an anti-Bush attack machine, and we get a case study of how serious bipartisan concern gets turned into a week of civil war.


So, Clarke's contributions to only Democrat candidates which I noted below are part of the story, but not the whole story. I think his partisanship is more of a symptom of his opportunism. He was forced out of the Bush national security team, and he knows he won't have power unless the Dems take over (and he might get some nice fat royalty checks while he's at it).

But even the new Clarke is not able to entirely expunge the old wonky Clarke from his system, and as a result he's making some points that should harm the Kerry campaign. We'll see if the mainstream media catches any of them, though.

Many of you no doubt suspect that this Clarke stuff was a planned attack on Bush by the Kerry campaign. An attack, yes, but I give the Kerry folks more credit than to assume they would have done this bad of a job of planning this.

UPDATE: Hindrocket on Power Line has an answer to the rhetorical question I posed in the title of this post. To put it in Carville-speak: it's the media, stupid. Here's part of what he says:

I don't agree with the optimistic theory that the Democrats made a mistake by launching such a patently misguided attack. The reality is that the vast majority of people don't read blogs, don't listen to talk radio, and get their news mostly in one-minute snippets of television. Studies have indicated that a large majority of people who read newspaper headlines never read the article. So the Democrats have gotten what they wanted out of Clarke--headlines attacking Bush.


So, in a sense, it just doesn't matter if Clarke's allegations are crazy, contradictory, or actually supportive of Bush in comparison to Kerry. What matters (or at least, what Kerry hopes will matter) is the general impression created by the media coverage that Clarke is "proving" that Bush is bad on national security. Sad, but I'm not sure it's not true.


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Northern Alliance Radio

I post this as I listen to The Northern Alliance radio show. I have caught various pieces of it the last few weeks, and I highly recommend it for some intelligent weekend political talk. It sure beats reading about federal securities law, or anything else that's on the radio in the middle of the day on Saturday, especially now that the Gopher hockey game is over.


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The "non-partisan" Bush national security critics

Are you tired of the media continually giving the impression that Bush's national security critics are neutral, dispassionate observers without a political bone to pick? Check out this piece on Minnesota's own Tom Maertans on Shot In The Dark. Despite Maertans' virulently anti-Bush views, the Star Tribune describes him this way:

After a long career in government, Tom Maertens, 61, retired in 2002 to his hometown of Mankato and a lifestyle that includes more fishing than he could manage during his decades posted to Washington, Moscow and elsewhere. After 28 years as a foreign service officer, Maerten's last two assignments were with the National Security Council late in the Clinton administration and early in the Bush administration, and in the counterterrorism operation of the State Department. He held the counterterrorism job on Sept. 11, 2001, and until his retirement in February 2002.
***
Maertens, who says he has voted for Republican and Democratic presidential candidates, broadly agrees with Clarke. The two worked together but were not close friends.


As for Clarke, there have been plenty of pieces debunking the notion that he is somehow an actual Republicn just because he was apparently registered as one in 2000. If you only have time to read one piece on the topic, look at this devastating article at WorldNetDaily.

This part is particularly revealing:

He said he was a registered Republican in 2000.

But what about this presidential election year? According to FEC records, Clarke has been giving his money to Democratic friends -- not Republicans -- running for national office.

In 2002, while still on the Bush National Security Council, Clarke gave the legal maximum limit of $2,000 to a Democratic candidate for Congress, Steve Andreasen, who tried to unseat Republican Rep. Gil Gutknecht of Minnesota. Andreason had been director for defense policy and arms control on the Clinton NSC. In making his donations of $1,000 on July 22 and another $1,000 on Nov. 7, 2002, Clarke listed his occupation as "U.S. Government/Civil Servant," according to FEC records indexed with the Center for Responsive Politics.

Clarke maxed out again in the 2004 election cycle, donating $2,000 to another Clinton White House veteran, Jamie Metzl, who is running as a Democrat for Congress from Missouri. Metzl was a staffer on the Clinton NSC and worked for Sen. Joseph Biden, D-Del., as deputy staff director of the Senate Foreign Relations Committee. With that donation, made on Sept. 15, 2003, after his resignation from the Bush NSC, Clarke listed his occupation as "Self-Employed/Consultant."

FEC records show that Clarke reported no political contributions when he worked in the Clinton administration in the electoral cycles of the 1990s and 2000, when he said he was a Republican.


If Clarke was really a Republican in 2000, he made a pretty amazing shift in a pretty short amount of time.

This link came from Powerline.


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More on the political fallout of the Democrats' judicial embargo

Yesterday, I talked about why I thought the move by the Democratic Senate leadership to block all Bush's judicial nominees until he promises not to make any more recess appointments was a political loser for the Dems. Captain Ed posts
this at Captain's Quarters basically making the same point.

He makes a good point I missed specifically about how this will hurt Daschle in his re-election bid:

It's an election-year power play, and one that should backfire on the Democrats. Bush's conservative base has made noises this year about staying home because of his lack of fiscal constraint, but if Tom Daschle sets off a war over judicial nominees, you can bet your last dollar they'll all show up at the ballot box. Bush may not excite them, but the federal judiciary is a particular hot button on the right, and you can bet that the Republicans will use this to remind people that there may be as many as four Supreme Court seats that will open up in the next four years. Tom Daschle may rue the day he set off this escalation; in a state as conservative as South Dakota, Daschle will run into a buzz saw in his re-election bid with a strong conservative turnout.


On the topic of the South Dakota Senate race, you can read about trouble brewing for Daschle among his Indian constituency, including the fact that Russell Means (yes, that Russell Means) is supporting Thune: here, here, here and here.


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Paul Begala loses his last shred of sanity

Check out this masterpiece by Hindrocket on Power Line.


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Friday, March 26, 2004


Does the DNC really think more obstructionism is going to help elect Democrats?

Foxnews.com reports that Sen. Schumer (D-NY) has released a statement that the Democrats will block all of Bush's judicial nominees "until the White House commits to stop abusing the advise and consent process."

The blueprint for the Republican attack is laid out in the rest of the Fox News article:

A White House spokeswoman told Foxnews.com that the Democrats' decision is obstructionist.

"It's unfortunate the lengths that Sen. Daschle and a minority of Senate Democrats will go to obstruct the nomination process. At a time when we need our government to be at full strength, he is suggesting that we leave these critical seats empty, and the American people deserve better," said spokeswoman Erin Healy.


The Fox News story concludes with the rest of the blueprint:

Bush's use of the recess appointment is not innovative. President Clinton used his executive power in the same way, giving Roger Gregory a seat on the 4th Circuit Court of Appeals in December 2000. In a very controversial move, Clinton used it one other time to name Bill Lann Lee to be assistant attorney general.


Howard Bashman says, "I, for one, am surprised that the Democrats waited this long to make such an announcement." I, on the other hand, am surprised that the Democrats don't see this for the absolute political loser that it is. They have been defending their previous filibusters on the grounds that they are allowing most of Bush's appointments through. Obviously, they won't be able to make that defense when they are blocking all of his appointments. So, now they'll have to fall back on some claim that Bush asked for it with the recess appointments.

But that runs into the whole past recess appointments problem. And that in turn plays right into Bush's criticisms of Kerry (and by extension the Democrats) as passionately advocating of both sides of each issue depending on what is politically expedient.

Of course, this strategy probably isn't meant to appeal to the broad (or not so broad) undecided middle. I suppose it is mostly intended to fire up the PFAW left-wing crowd. But they must realize that they are firing up the Republican base at the same time by escalating the judicial nominations issue.

Every time people like me, who think Bush is not really all that fiscally conservative and who are a little skeptical of Republican judicial nominees, hear this kind of vitriolic opposition to Bush's nominees, it makes me think that he must be doing something right. I'm not sure that the Dems can really count on their base overwhelming the conservative base. So, they either have to hope that either their strategy of total blockage will appeal to moderates, or that judicial nominees will not be an issue at all. I suspect that while judges won't be that significant of an issue for most swing voters, it is a little naive to think that total obstruction of all judicial nominees won't at least leave a bad taste in the mouths of lots of moderates.


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Oh my [Deity Reference Deleted]! They've "Constitutionalized" the text books!

Rich Lowry looks to tomorrow's history texts in the brave new world of Michael Newdow on National Review Online. It is pretty amusing. Take a look.


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Seventh Circuit rules against Justice Department on abortion records

How Appealing reports this decision today by a split three judge panel of the Seventh Circuit.

Judge Richard Posner wrote the majority opinion. Here are the excerpts that Howard Bashman quotes on How Appealing:

The natural sensitivity that people feel about the disclosure of their medical records--the sensitivity that lies behind HIPAA--is amplified when the records are of a procedure that Congress has now declared to be a crime. Even if all the women whose records the government seeks know what "redacted" means, they are bound to be skeptical that redaction will conceal their identity from the world. This is hardly a typical case in which medical records get drawn into a lawsuit. Reflecting the fierce emotions that the long-running controversy over the morality and legality of abortion has made combustible, the Partial-Birth Abortion Ban Act and the litigation challenging its constitutionality--and even more so the rash of suits around the country in which the Department of Justice has been seeking the hospital records of abortion patients--have generated enormous publicity. These women must know that, and doubtless they are also aware that hostility to abortion has at times erupted into violence, including criminal obstruction of entry into abortion clinics, the firebombing of clinics, and the assassination of physicians who perform abortions.

Some of these women will be afraid that when their redacted records are made a part of the trial record in New York, persons of their acquaintance, or skillful "Googlers," sifting the information contained in the medical records concerning each patient's medical and sex history, will put two and two together, "out" the 45 women, and thereby expose them to threats, humiliation, and obloquy.

***

Even if there were no possibility that a patient's identity might be learned from a redacted medical record, there would be an invasion of privacy. Imagine if nude pictures of a woman, uploaded to the Internet without her consent though without identifying her by name, were downloaded in a foreign country by people who will never meet her. She would still feel that her privacy had been invaded. The revelation of the intimate details contained in the record of a late-term abortion may inflict a similar wound.


Perhaps I will actually read the decisions in this case and offer a more educated response later. All I will say now is that I hope Judge Posner made a more detailed attempt to establish that these fears were reasonable than he does in this quote.


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Rush Limbaugh has rights too?

Shocking, I know, but that's what his lawyer, Roy Black, says in this piece in today's Wall Street Journal.

This part is particularly revealing:

Normally, people with drug dependencies who acknowledge their problems and seek treatment are lauded for their courage, not prosecuted. So am I wrong to wonder if something is out of whack when the Palm Beach County State Attorney pulls out all the stops in an effort to nail Rush, while giving immunity to the traffickers who supposedly kept him supplied with painkillers, and who, as a result of a deal with the prosecutor, were able to make a six-figure killing selling their "story" to a tabloid?


Even if you think Rush is an enormous hypocrite and that there would be some kind of cosmic justice from a drug conviction for him, this abuse of prosecutorial discretion by a prosecutor with a political ax to grind (the prosecutor is an elected Democrat) should give you pause.


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Firing up the old blog again

Okay. So there has been kind of a big gap here. My old laptop died in October, and I have only now found a permanent replacement. In any case, I want to get this page going again, and I plan to start posting regularly and to round up some other people who will contribute regularly as well.

So watch this space. More to come....


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