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Tuesday, January 31, 2006


A lesson in the two party system.

Brian Williams (to Bill Frist): “You could have drawn a line down the center of the chamber tonight.”

Yeah buddy, they sit that way for a reason.  

I have no idea why Barack Obama is on opposite Frist.  Seriously, he’s the new guy.  


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First Impression

Virginia Gov. Tim Kaine was a poor choice to deliver the response.  Serious pacing issues.  There is a better way.  Also, the eyebrow arching is killing me.  Subtle bomb-throwing with a smile, that’s pretty much it.  Give back excess profits?  Complaining about failure to do things, when the very reason they weren’t done is partisan obstruction, which is something else the speech complains about.  Come on, buy a mirror.  They chose this guy because of his ability to speak to “values voters”?  Way to go.  


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Tim Russert, hack?

Wait, Tim Russert just commented on the divided standing/sitting chamber during applause as evidence of some deep division in the country.  Right, because that doesn’t happen EVERY YEAR.  Maybe Tim is just pushing the metastory, but it just isn’t convincing.


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Energy Plans (SOTU)

WOOO-HOOOO!!! Nuclear gets in again!  Now if only we could, you know, do something about it.  Oh, and some mention of making ethanol the right (as opposed to the political) way, i.e. not with corn.  Oh, and isn’t he supposed to be some kind of oil baron?


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SOTU

Just got in, Dem’s applauding with glee when the President mentioned their obstruction of his Social Security Reform, like excessively, and juvenile.  I don’t have the exact text, maybe I’ll find it later, but it was essentially this: Last year you failed to take up my plan to save Social Security. (ridiculous applause) (scowling). You’d think they didn’t like Social Security, or people my age. Dammit, why does he keep going back to this guest worker nonsense?


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You're Kidding

Did the President just ask Congress to pass a line-item-veto act? I hope not.


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What is the world coming to?

Jonathan “The Impaler” Sharkey, candidate for Governor of Minnesota on the Vampires, Witches and Pagans ticket, has been arrested in Indiana.  


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JUSTICE Alito

Alito is in, 58-42.  Not a great vote, certainly less than I think he deserved.  The breakdown was all R’s except Chafee plus the earlier mentioned D’s for, the rest against.  The article points out that though he got more overall votes, he received fewer from Democrats than Justice Thomas.


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OpinionDuel Returns

Apparently OpinionDuel, which had been one of my favorite timewasters before it fell off the face of the Earth, is back online.  It was, at one time, a joint venture from National Review Online and The New Republic, but the archives are unavailable and the site is pretty spare for the time being.  There is a debate up though that should be interesting, between Richard Epstein and David Rivkin on, you guessed it, “Domestic Eavesdropping.”


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Monday, January 30, 2006


Thurgood Marshall, Saint?

There’s a movement afoot among Episcopalians to do just that.  Granted, my Papist conception of sainthood is rather different than theirs.  I mean, Brown v. Board of Education was a big deal and all…


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Flushing Civility

Recently the UofM Law School National Security and Law Society, of which I am a member, hosted Coleen Rowley on campus.  The purpose of the NSLS is to promote discourse on national security issues, given the fairly widespread discontent with the content of political discourse in this country.  I did not attend the event, but from people who did I have heard that it was a bit weak.  Of course, Rowley is running for Congress, something that has probably never made anyone smarter.  Now Rowley is painting her opponent, Republican Congressman John Kline as a Nazi.  Of course, Power Line is on the case. I can’t find the photoshopped image on her website, though I haven’t looked around too much, as it is just a little too Democratic Underground-ish for me.      


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It's a great day to be alive.

Cloture was invoked today (72 votes), and a final vote is set for tomorrow.  Way to lose Sen. Kerry.  Here is the roll call for the vote.  

In other good news, Commander in Chief is taking a break, or to needlessly complicate the matter, invoking the 25th Amendment.

Also, Cindy Sheehan has released another statement:

"Butcher of Washington, you are not only defeated and a liar, but also a failure. You are a curse on your own nation and you have brought and will bring them only catastrophes and tragedies," he said, referring to Bush. "Bush, do you know where I am? I am among the Muslim masses."

Oh wait, that was Ayman al-Zawahri.  Hard to tell the difference sometimes…


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JG returns to the north.

For those of you who couldn’t make it to Northfield, or even if you did, Jonah Goldberg will be speaking here at the UofM tomorrow, January 31, at 7pm, room 125 of Wiley Hall (which is connected to the Law School, so you don’t even have to go outside).  I can’t find anything on it on the UMN.edu website, I guess that’s not surprising, after all, they’re showing Elizabethtown somewhere on campus at the same time, and hey, that’s a big deal.  I’ll probably go again, if only to see the difference in reception/attendance between the respectable private college setting and the rowdy large university.  Maybe that impossibly idiotic freshman girl from the Yoo protests will show up…


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Spirits of the law.

Interesting post (and accompanying comment thread) on the Volokh Conspiracy today, started by Prof. Volokh himself (at quarter to one on a Monday afternoon), on the topic of spirits.  The ingestible kind, not the ghost story kind.  A statement was attributed to Robert Bork: “a vodka martini isn’t” and we also have a link that contains a letter that Bork wrote to the WSJ on the topic.  All very worth reading.  As for anything original I might have to add, two things.  First, garnishes matter (this on the dispute between lemon peel and olives in martini’s), if you use a cocktail onion in what would otherwise be a martini (and I agree with Bork, go lemon), it becomes a gibson.  This spirit leads to the second point, that a vodka martini isn’t a vodka martini even if you accept the notion of some commenters, that “vodka martini” is acceptable as it is distinguishable name, since such a drink is clearly a kangaroo cocktail (seriously, look it up).  


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Interesting

http://www.rasmussenreports.com/Bush_Job_Approval.htm
First, Bush's approval rating is back up to 50%.

Second, on the filibuster idea, I think the fact that Alito is so overwhelmingly supported in his confirmation bid means that coming off as an obstructionist would be politically bad.

http://www.rasmussenreports.com/2006/January%20Dailies/Alito%20Confirmation%20by%20State.htm


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Special Blend of Herbs, Spices, and Intrigue


I thought this was hilarious.


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Filibuster Off AND On!

http://genericheretic.blogs.com/generic_heretic/2006/01/filibuster_expo.html
http://jointstrikeweasel.blogspot.com/2006/01/filibustering-on-filibuster.html

JSW and GH have been bickering for a while on the filibuster. I decided to give my thought on the issue as a conservative. Jason has done a pretty good job setting out why he thinks the filibuster is unjustified, and why as much deference should be paid to Alito as was paid to Breyer and Ginsburg. (He left out the fact that although Breyer replaced Blackmun, Ginsburg replaced White, a change everyone knew would shift the court considerably to the left). I'm going to ignore these arguments, however. I don't really mind opposition to nominees on idealogical grounds. I wouldn't mind a filibuster. Philosophically, I dislike the super-legislature that the Court has become (at the behest of liberal jurists), and I think it's ironic that some of those jurists are now hoist on their own petard. "Sure, invent a few rights! After all, the constitution's a living document! Of course, let Congress and the President use the constitution for toilet paper! The welfare state is necessary! Oh, wait, now Republicans are in office. Stick to the constitution and previous decisions! Stop overturning old decisions, and let's have some restraint. The job of the judiciary is to restrain the government, no matter how necessary they say their restrictive actions are." In short, I absolutely want Alito to be appointed, but I don't mind, on philosophical and moral grounds, if those opposed fight him tooth and nail (including the filibuster). However, I want to examine the political ramifications of filibustering or not.

I think a filibuster would (if handled correctly), be an absolute boon to the GOP, and a death knell to the DFL. There are three possible outcomes, of course. Either the filibuster prevents the nomination, the filibuster continues for a while and fizzles, or the filibuster is broken by the "nuclear/constitutional option". Each one of these options would be in the GOP's favor, although it doesn't seem so. The first outcome seems disastrous. However, I don't think the Dems have been successful in making Alito unpopular. A filibuster stonewalling Alito could easily been painted as totally unnecessary and partisan politics. The Dems could paint it as "standing up for conscience" and Kos and the liberal blogosphere would rejoice. I don't think the general voting public would see it that way. They'd see a reasonably moderate, very well qualified candidate obstructed by partisan hacks who simply oppose GWB on anything he does. At least, they'd see it this way as long as the Repubs were successful in painting it this way. I think one of the GOP's strengths has been framing the issue, and so I think they would be successful. The Dems wouldn't come off as courageous warriors for individual rights, but bitter losers who are filibustering to make up for their impotence in stopping the war, the tax cuts, etc (again the perception). The second option, which I think would be most likely, is great for Republicans. If the GOP was smart, they'd let the Dems filibuster 'till the cows come home. "Why aren't we passing anything? Those Dems won't handle the business of the day. They're willing to give up the important business of the American people just to "stick it to" the president." Again, if handled correctly, this could be a coup. As the filibuster went on and on, with the Republicans just pointing fingers at "those extremists", I'm guessing the political pressure would force the Dems to finally vote to end the filibuster. The third option is the most tricky. I don't really like it. Fewer checks on the legislature and more power for the majorities are not a good thing in my mind. The more stagnation, the better. I don't want the federal government to be able to easily do anything. However, if the Republicans broke the filibuster, I think this would again be a victory, and certainly a contentious one, although it could maybe again be a draw. I think the American people are still on board with Alito. Filibustering him looks like poor sportsmanship, "I lost the game, so I'm taking my ball and going home"- politics. Breaking that filibuster (as long as the filibuster was allowed to continue for a while), could perhaps be a political victory if it was framed the right way. "There are important things we need to accomplish. We need to appoint a justice. The Dems continue to obstruct, despite the fact that we voted for their qualified but polarizing justices." Any way that this comes out, I think the GOP wins. Frankly, almost anyway this happens, the GOP wins, however. Alito gets in, almost no matter what, which is the biggest victory. The Court's power means that it, not the legislature or the presidency, the single most important post in the U.S. When given a chance, the GOP must make sure not to allow another Souter on the court. And if the DFL filibusters, they lost anyway. I probably would not, and save my fire for a more politically popular issue.

EDIT: Here's a good article by a Dem on the issue. http://www.boston.com/news/globe/editorial_opinion/oped/articles/2006/01/29/tilting_at_alito/


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Sunday, January 29, 2006


Lining up to drink the Kool-Aid.

HRC is in for the filibuster.  By now you should have figured out where I stand on the nomination and this filibuster attempt, if you haven’t, that means we have new readers; sweet.  In any event, I think it’s politically idiotic for HRC to support the filibuster when she could have let Kerry hang himself with it, and still could have voted no.  I guess that would have let Kerry get to her left, but given her concerted attempt to paint herself as a moderate and not the DailyKos candidate, this is inexplicable, unless she’s banking on a friendly press broadcasting her “moderate” support for the filibuster.      


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Saturday, January 28, 2006


Sense of the Senate

Let’s take a look around the dusty upper chamber, shall we?  With the Alito cloture vote coming Monday and a full vote coming soon after that, where does the nomination stand?  For my part, I think the D’s who are threatening a filibuster are OUT OF THEIR DAMN MINDS, especially given that Mr. Smith style theatrics are no longer employed.  It’s a great way for those who oppose Alito to lose twice, and that’s about it.  John Kerry is flailing and screaming in an attempt to remain relevant (which he, let’s face it, never really was; people voted for him primarily not because they liked him, but because they thought other people would).  Ted Kennedy is apparently also set to vote against cloture.  I found this AP/WaPo article, which offers some enlightenment (my comments in brackets):

“Senior Republican Sen. Ted Stevens of Alaska also threw his support to Alito. Stevens said he closely monitored Alito's commitment during his confirmation hearings to "respect" past rulings when it comes to Roe v. Wade, the Supreme Court's landmark abortion rights decision.

"As I vote to confirm his nomination, I do so under the assumption that Judge Alito will uphold this commitment," said Stevens, who supports abortion rights.”

[Now, I’m not sure how Alito would rule, that’s almost the point, but Stevens apparently does.  For my part, I think Stevens is a senile old coot jumped the shark when he threatened to resign from the Senate over his bacon-bridge to nowhere. Can someone tell me why this guy has an R by his name?]

“Sen. Reid, who will vote on Monday with Democrats who want to filibuster Alito and against confirmation on Tuesday, said those votes are "an opportunity to people to express their opinion on what a bad choice it was to replace Sandra Day O'Connor."”

[This could be a misquote by the AP, given the errors, but it is kind of the D’s position here, isn’t it?  SDO’C is retiring voluntarily, probably because she wants to do more fly fishing, so essentially Reid would be saying that he doesn’t respect her judgment to replace her impeccable judgment. Or something like that, though the gist of it is right, they really do wish they could keep her, though they only adopted that position once she announced her retirement.]  

“Asked if the administration was taking Kerry's call for a filibuster seriously, White House press secretary Scott McClellan chuckled on Friday and said: "I think it was a historic day yesterday. It was the first ever call for a filibuster from the slopes of Davos, Switzerland."”

[Now, as to the full Senate vote, there are 53 Republicans and 3-4 Democrats likely figured out so far, the D’s including Robert Byrd, Ben Nelson, Tim Johnson,  and possibly Kent Conrad]

I also found this article from the San Francisco Gate, noteworthy only because I wanted to point out this statement:

“Sen. Dianne Feinstein, D-Calif., said things are different from when the Senate considered Breyer and Ginsburg, who were confirmed 87-9 and 96-3 respectively. "There was not the polarization within America that is there today, and not the defined move to take this court in a singular direction," she said.”

ME:  No polarization?  A Republican Senate overwhelmingly confirmed a Democratic President’s nominees, nominees that they could have legitimately (in numbers) voted down, but didn’t, believing that the Constitution gives the choice to the Executive.  (That probably won’t happen again.”  Now the D’s want a Republican President’s nominee brought down in a Republican Senate?  Why do you suppose things are so “polarized” Di?  Furthermore, the incoherence of the Senators who voted for Roberts but will vote against Alito is appalling, and demonstrates the self-aggrandizing urge all too common in the Senate, members of which have now decided that they are co-equal partners in the selection process.  Whatever, the thing is pretty much filibuster proof at this point, I just really think it’s mean-spirited, dishonest, and ultimately foolish (in political terms long and short) to push for one and using hyperbolic and misleading statements. To think they could have made the whole thing so dignified, knowing it wasn't going to change the outcome, that this wasn't a fight they could win, but decided to play to the Cindy Sheehan crowd, since Sheehan has apparently threatened (from Venezuala) to run against DiFi if she doesn't filibuster.


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Friday, January 27, 2006


I'm MAD!!

I'm very peeved right now. The reason I'm particularly miffed is not a political one. Simply put, WHAT IS MCHALE DOING? RICKY DAVIS? MARK BLOUT? Terrible.

However, one thing cheers me up somewhat. The delightful pratfalls of the democratic party. As evidenced here.

http://www.cnn.com/2006/POLITICS/01/26/alito/index.html


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Thursday, January 26, 2006


Fight against Lethal Injection

Apparently a lot of people are calling lethal injection "cruel and unusual" because it may cause some inmates pain. Oh, as opposed to every other method of execution? This sounds to me like just another attack on the institution of the death penalty. Like Volokh, and unlike Ivan at Joint Strike Weasel, I don't mind a little pain in capital punishment. I think it's a good deterrent, and often the "victims" deserve it, having inflicted much more pain on their actual victims. (And yes, I am advocating some form of retributive justice.)

http://www.miami.com/mld/miamiherald/news/13713512.htm


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Wednesday, January 25, 2006


Leo Roars

Leonard Leo, Executive Vice President of the Federalist Society, has responded to ABC’s Scalia smear via Human Events Online.  He’s pretty clearly not happy about the way Scalia and the Fed-Soc were cast:

“Justice Scalia taught a comprehensive course about the separation of powers under our Constitution,” Leo said. “Reminiscent of Dan Rather’s and Mary Mapes’s false National Guard story, ABC Nightline knew in advance of airing its program that he did not simply ‘attend’ a ‘judicial education seminar,’ and it grossly misled viewers by suggesting that the event was a ‘junket’ rather than a serious scholarly program that required much work and advance preparation.”

Continued…


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Humor

I think this is a pretty good column. Mostly because I really like Lileks' writing, and I want an excuse to link to him. Also because I dislike people who try to be funny and political and fail (which is mostly everyone, from Bill Maher to Al Franken, from Margaret Cho, to Jeneane Garafalo. Basically, everyone but maybe Jon Stewart and maybe Dennis Miller). Joel Stein's column in the LA Times was frankly stupid (I'm not sure if everyone's heard about it). He said "supporting the troops" was hypocritical if you disagreed with the war. It was not only stupid to give some of the on-air Hannity-esque blowhards a chance to puff up their chests and turn purple with outrage. It was stupid because it makes very little sense. He backpeddled a little bit to soften the blow, but it's hard to know what he was suggesting. You don't like the war. We know. Are you suggesting calling out the troops? What do you mean by "not supporting the troops"? Not speaking well of them? Basically, I have no idea what Stein's suggesting. But I do know this. He definitely falls into the "political humorist" genre, which means he hasn't a clue about politics, and he's about as funny as your grandma falling down the stairs. (Or, if you, like me, find that funny, insert your own non-humorous alternative).


http://www.lileks.com/bleats/ (the relevent part is at the bottom)


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Tuesday, January 24, 2006


Other Important News

In my longwinded last post, I somehow failed to mention that Judge Alito cleared the Senate Judiciary Committee on a straight party line vote.  It’s an issue for a different time, but I think the Democrats are setting a bad precedent on this one, and we all know (by now) how much they love precedent, except when they don’t.  

Oh, and Kanye West think’s he’s Jesus and Muhammad Ali all rolled into one.


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ABC- Amorphous Bullsh** Collection

Ok, I have to thank Southern Appeal for directing me to both of these stories, because they’re just too good to pass up.  And by good, I mean bad, as in bad “reporting” on the part of ABC News.  First, let’s try this one, on the impending Catholic majority on the SCOTUS.  Early on, of course, we have an expert:

"There is some fear that they might perhaps, on some issues like abortion, carry out a kind of Catholic jurisprudence rather than reflecting a broader point of view," said John Green, a senior fellow at the Pew Forum on Religion and Public Life.

Now, the article isn’t completely one-sided, but for the bulk of it we see mostly an examination of historical anti-Catholic biases.  Then finally, once most readers have tuned out:

“[T]he Vatican — weighing in just before Election Day [this followed a discussion of John Kerry’s Catholicism, which I won’t address here] — ordered that politicians who support abortion rights should be denied communion.

So would the same pressure be applied to a judge or a justice? Is it fair to even ask?

For instance, the Catholic Church opposes the practice of capital punishment. Do observant Catholic judges not have an obligation to rule that way?

"The answer is no," said legal scholar Douglas Kmiec of Pepperdine University's School of Law. "The judge has no moral responsibility for the laws that his community enacts."
Scholars say, according to the Catholic Church, what is expected of a judge or a justice is not to make laws, but simply to interpret as fairly as possible how the laws made by legislators jibe with the Constitution.

"So judges are responsible for abiding by the morality in their own lives, but they are not responsible for imposing that morality in judicial decision-making," Kmiec added.”

And if you read far enough, the article even mentions that religious tests are a no-no, but honestly, who reads that far?  And for those who are concerned about the court “shifting” when Alito replaces O’Connor, keep in mind that O’Connor is Episcopalian (as is Souter).  They say it isn’t funny if you have to point out why, but I will anyway.  O’Connor has been lionized by the left as this wonderfully moderate figure, but they forget that she sided with the court’s “conservatives” on a lot of really important issues.  Now, I know Episcopalians aren’t exactly Roman Catholics, but I’ll take up that issue with Henry VIII in hell.  If this religion whatnot interests you though, check this out.

Ok, so that wasn’t exactly horrible, if you want that, you need to read this article, also from ABC.  Just a start:

“At the historic swearing-in of John Roberts as the 17th chief justice of the United States last September, every member of the Supreme Court, except Antonin Scalia, was in attendance. ABC News has learned that Scalia instead was on the tennis court at one of the country's top resorts, the Ritz-Carlton hotel in Bachelor Gulch, Colo., during a trip to a legal seminar sponsored by the Federalist Society.” [cue scary music]

And again, the first “expert” we hear from:

"It's unfortunate of course that what kept him from the swearing-in was an activity that is itself of dubious ethical propriety," said Stephen Gillers, a New York University law professor, who is a recognized scholar on legal ethics.”

I KNOW! Why in the world would he want to teach CLE?  Apparently, because he had made a prior commitment.  Unfortunately, the commitment was to the nefarious Federalist Society (mischaracterized as a “conservative activist group” in the article), roughly akin to selling his soul, since he already lost his conscience somewhere:

"I think Justice Scalia should not have gone on that trip for several reasons," Gillers commented. "They are a group with a decided political-slash-judicial profile."

One night at the resort, Scalia attended a cocktail reception, sponsored in part by the same lobbying and law firm where convicted lobbyist Jack Abramoff once worked. [increase scary music volume]

"You know a lot of people would be embarrassed at that. I don't think Antonin Scalia will be embarrassed," Gillers continued.

Should it  bother me that Gillers speaks in slashes?  I bet he uses hand quotes too.  As for the group having such a decided profile, he must be right, that’s clearly why we have all of these debates…
    


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Doublespeak or Cause for Concern?

Sen. Bill Nelson of Florida, a Democrat, has announced he will vote against Judge Alito's nomination to the Supreme Court, saying he believes the jurist would ``tilt the scales of justice in favor of big government over the average person.'' Despite his anticipated close battle against Congresswoman Katherine Harris to keep his Senate seat, Senator Nelson's decision is hardly surprising as Democrats try to muster opposition to soon-to-be Justice Alito. But sound the alarm anyway! Perhaps. That a Democrat would complain about Big Government is noteworthy. Either Republicans have lost their way a bit (or a lot), or the honorable Senator is merely trying to save face with moderate Floridians. Common sense says that it's some of both, but when there's enough of the former to make a Democrat concerned Republicans ought to raise their eyebrows as well.


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Shocking!

How can Iraqis and Afghanis be optimistic? Don't they know that America, the world's biggest terrorist has ruined their lives? Obviously, we know more about their situation than they do. If our ideas of how they should feel disagree with how they do, they're either lying or ignorant.

http://news.bbc.co.uk/2/hi/business/4641396.stm


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Monday, January 23, 2006


Hooray!

The West Wing (one of the most pretentious and arrogant shows I've ever seen) has been cancelled!
On a more serious note, this is an interesting post about the role of law professors as pundits. Fortunately, he doesn't mention law students as pundits, which means that I could spend the next half hour exploring that topic. Not suprisingly, I'm not going to.

http://prawfsblawg.blogs.com/prawfsblawg/2006/01/law_profs_as_pu.html


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Hard Hitting Journalism

I found this interesting. I know my alma mater would definately have ranked below UChicago on this study, and I'm kind of sad it wasn't included.

http://www.collegecuteness.com/results/index.php


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Sunday, January 22, 2006


Baude-erdash

Will Baude of the weblog Crescat Sentenia, and a Yale 2L, has an op-ed in today’s NYT in which he describes the chaos that (he believes) would follow were Roe overturned.  

“It's unlikely that Congress would pass a comprehensive federal ban on or right to abortion. So in the absence of Roe, states would largely be free to regulate the issue as they saw fit. Some states would permit abortion on demand, while some would ban it; many would fall somewhere in between. A patchwork of state abortion regulations, however, will lead not to compromise, but chaos.”

You know, he had me right up until the chaos part.  It goes downhill from there, as he forecasts situations restricting a woman’s ability to travel, the exercise of long arm statutes to nail women who do travel to have abortions, and a clash, ultimately in the courts, between states on different sides of the issue.  He continues:

“Indeed, American democracy has rarely resolved moral battles of this scope at the state level. The most significant moral conflict ever devolved to the states, after all, was slavery. The problem of escaped slaves made it necessary to include a Fugitive Slave Clause in the Constitution, but it was impossible to contain the moral controversy within state borders. Disagreements over how to determine who was a fugitive slave, how to regulate slavery in the territories, and how to maintain the balance of power between South and North meant that slavery would inevitably become a federal issue. "A house divided" could not stand.”

Cliché abuse aside, I don’t think invoking the legacy of slavery is proper here.  Yes, both are/were important moral issues, but you know, if you really wanted to invoke slavery, you could point out that the issue with abortion isn’t that “states can decree that life begins at conception” as Baude frames it, but rather who is entitled to the legal protections of personhood.  Ultimately though, using slavery as a comparison just isn’t that useful for modern circumstances, and tends to distract from the issue at hand.  Baude may be right, there could be significant problems following Roe’s ouster, but that doesn’t mean that (what is widely conceded to be) an incorrect decision by the court should be allowed to stand, just for the sake of having the law “settled”.  As Baude acknowledges, abortion (and Roe) is a serious moral issue, and maybe some kind of battle (his word) over it is needed, though I tend to doubt that post-Roe troubles would be as bad as he projects.  In any case, this isn’t exactly civil war provoking stuff, and I think that it could provide a useful exercise in federalism for a country sorely in need of one thirty-three years after Roe.    


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Saturday, January 21, 2006


Discuss amongst yourselves

If you’re like me, sitting at home on a Saturday night trying to kill your cold by Monday, here’s something to ponder.  Why do you suppose ABC is showing Enemy of the State tonight?  


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Friday, January 20, 2006


RR, 25 years later

See what I get for not using my laptop during class?  I didn’t even notice until, well, right now, that today marked the 25th anniversary of President Reagan’s first inauguration.  From that first address as President of the United States:

Well, I believe we, the Americans of today, are ready to act worthy of ourselves, ready to do what must be done to ensure happiness and liberty for ourselves, our children, and our children's children. And as we renew ourselves here in our own land, we will be seen as having greater strength throughout the world. We will again be the exemplar of freedom and a beacon of hope for those who do not now have freedom.

To those neighbors and allies who share our freedom, we will strengthen our historic ties and assure them of our support and firm commitment. We will match loyalty with loyalty. We will strive for mutually beneficial relations. We will not use our friendship to impose on their sovereignty, for our own sovereignty is not for sale.

As for the enemies of freedom, those who are potential adversaries, they will be reminded that peace is the highest aspiration of the American people. We will negotiate for it, sacrifice for it; we will not surrender for it, now or ever.

Our forbearance should never be misunderstood. Our reluctance for conflict should not be misjudged as a failure of will. When action is required to preserve our national security, we will act. We will maintain sufficient strength to prevail if need be, knowing that if we do so we have the best chance of never having to use that strength.

Above all, we must realize that no arsenal or no weapon in the arsenals of the world is so formidable as the will and moral courage of free men and women. It is a weapon our adversaries in today's world do not have. It is a weapon that we as Americans do have. Let that be understood by those who practice terrorism and prey upon their neighbors.

I'm told that tens of thousands of prayer meetings are being held on this day, and for that I'm deeply grateful. We are a nation under God, and I believe God intended for us to be free. It would be fitting and good, I think, if on each Inaugural Day in future years it should be declared a day of prayer.

More here.


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E.J. Dionne gets something right.

I’ve been known to make fun of E.J. Dionne, it’s true, but when I read his column today I did find some agreement, though, let’s be honest, not much.  The column is on the Supreme Court’s ruling this week in Gonzales v. Oregon.  In it, Dionne writes that while  he disagrees with the assisted suicide law in question, he thinks the court decided the case correctly.   While I haven’t read the opinion yet (hey, it’s our first week back, and I’ve been trying to keep up with classes for once), I agreed with letting the Oregon law stand, even though I am against assisted suicide.  Now, where I take issue with Dionne is here:

“For the life of me, I cannot understand why moderates in both political parties don't see that Alito's confirmation would continue to push the court toward an activist jurisprudence determined to write conservative ideological preferences into law. President Bush surely knew what he was doing when he named Roberts and then Alito to the court. Bush and his conservative allies have the guts to fight for the future they want. You wonder if those with a different vision can show the same determination.

As it happens, assisted suicide is one issue on which my beliefs coincide with those of many conservatives. But I want my view to prevail through persuasion in the democratic process, not because an attorney general and sympathetic judges impose it on every state in the Union.”

This case aside for the moment, but even if one wanted to throw the “activist” label at conservative jurists, for the most part they do not seek to write, well, anything into  law, since they generally recognize that such is not their place.  Now, in this particular case Dionne could be right, but it is far from the general trend.  As for his last sentence, I wonder if he sees how easily that idea could (and should) be applied to Roe.

Also, if you want someone to really take Dionne on, try Ed Whelan at Bench Memos.


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Thursday, January 19, 2006


IT GONN" RAIN!

Maybe BET should stick to the Entertainment in their name, because when they dabble in science/meteorology, well, they don’t do very well.  They have an article up, that really shouldn’t surprise me, heck, I wouldn’t have been surprised to see it in the New York Times, except for the writing style, which must be an attempt to be “with it” or some such, and ends up being, well, a tad condescending.  It starts out:

“If you thought Hurricane Katrina was a once-in-a-lifetime fluke, think again.  Concerned environmentalists say that unless the United States gets real about the threat of global warming, African Americans and other people of color can expect a repeat of disasters like Katrina.”

“When you look at the trends and put them all together, it’s undisputable that the sea levels are rising,” says Ansje Miller, director of the Environmental Justice and Climate Change Initiative (EJCC).  “Warmer seas mean more intense hurricanes….  You’re going to have intense flooding like we have never seen before.  Katrina is really the hurricane of the future.”

Me:  Right…  When she says “sea levels are rising” she leaves out that even if they are, we’re talking about centimeters per decade here, not exactly “Day After Tomorrow” stuff.  As for warmer waters meaning more intense hurricanes, well, they do, to a point.  Once I find the article on that, which is from a source a little more reputable, I’ll try to post it.  The article continues:

“That’s bad news, especially for African Americans.  Citing Katrina as a case-in-point, some environmentalists say global warming impacts minorities and the disadvantaged harder than other groups.  If global warming gets worse, many African-American communities will be more vulnerable to breathing ailments, insect-carried diseases and heat-related illness and death.  But asking Black folks to give up gas-guzzling SUV’s and other bling is a tough sell.”

More scare mongering, just what the environmental debate needs.  Can I remind you about what really happened?  Look, natural disasters pretty much suck, but you can’t blame everything on climate change (as some did with the SE Asian tsunami a little over a year ago, which was a patently false claim), and you can’t tie everything to race, lest you insult everyone’s intelligence.    Oh, and the title was from a Family Guy episode.

UPDATE: Ok, without diving into the scientific literature, which, for those of you who haven’t, can make reading cases seem like a walk in the park, I found this (thanks to Lexis), from Patrick J. Michaels, a professor of environmental sciences at UVA:

    Yet still we hear that warmer oceans mean that storms will become more ferocious. We shouldn't. One of the peculiarities of hurricane behavior is that there is a threshold, at 28degreesC, where storms reach an intensity of Category 3 ("severe"). (In the last 50 years there have been just two such storms over cooler waters.) But once the temperature exceeds 28degreesC, there is no relationship between warmer water and intensity. At any temperature above the threshold, each storm has an equal chance of reaching Category 4 or 5.Every August, the surface temperature of the Gulf of Mexico exceeds that threshold. This year it was very warm south of Louisiana: 31degreesC -- about as hot as it was in 1997 and 1998. And, given that the Gulf reaches the magic 28degreesC threshold every year, no matter whether the planet is warming or cooling, there is no practicable, economical policy that can ever drive temperatures below this figure.I don't expect this information to have any effect on policy. I'm just shouting into the hurricane.

This was published in a longer article in the October 10, 2005, National Review (no wonder I had read it), entitled “The Global-Warming God - Must it now be appeased?”  so if you have Lexis you can pull up the whole thing (I should be getting paid for this).  I know, I know, I’m being biased in my choice of evidence, but well, too bad.  I doubt the EJCC had even considered much beyond the “conventional wisdom.”


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Truce?

Here're Osama's top ten demands in exchange for a truce.

http://www.mikesilverman.com/2006/01/conditions-of-bin-laden-truce-with.html


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More on Confirmation

Pretty good article on the various modes of thinking at work in the confirmation hearings.

http://baseballcrank.com/mt2/mt-tb.cgi/4172

Edit: The link may not be working. Just go to baseballcrank.com, and it should be the first article up.


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Foreign Policy Stuff

Bin Laden produces a tape, and advocates a "truce" which means "give us everything we want, and we'll stop trying to kill you." However, now we've got a new secret weapon. France is talking about dropping nukes on terrorist states. Hmm. There're too many jokes.

http://news.yahoo.com/s/nm/20060119/wl_nm/nuclear_arms_france_dc_2


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The Ali-to Shuffle

I found this article interesting. The author admitted that Alito was ducking questions on Roe left and right, and professed some slight annoyance. But he seems to believe that this is the only way to get nominated (which is the truth). Had Alito said anything against Roe, he probably would not have been confirmed. And that's why I could never be a Justice. The two options I'd have would be either totally ripping Roe, castigating the legal reasoning that went into it, and perhaps venting about any moral and philosophical problems I have with it (and believe me, I'm able to separate the three areas). Or, I'd have to swallow my self respect, and let myself be badgered by the likes of the insufferable Kennedy and the others on the committee. I'd have to meekly evade the issues, avoid saying what I feel, and deliver the most awful bilge about how I "respect precedent" and "don't want to talk about specific cases". And I don't think I could do it. I suppose that Alito has more self-restraint. But why do we want a wishy-washy middle of the road guy? Why not allow the passionate on the Court, those with strong views on issues? I'd rather have the battle lines clearly drawn than have the slough that is (or at least probably will be) the Court.

http://nationaljournal.com/taylor.htm

Oh, and rather than have the Court have to have battle lines drawn, I'd rather have the American people make sticky political decisions. Maybe those who resolve our important and most divisive issues should be accountable to the American people. That wouldn't be such a bad thing, would it?


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Tuesday, January 17, 2006


"We want confirmation that we were wiretapped, or else confirmation that we weren't" said the crazy woman on tv.

Well, we knew that this was going to happen.  Several groups, including, guess who? The ACLU, have filed suit (that will probably get tossed) in New York and Michigan alleging that  President Bush and the NSA’s  “secret” domestic surveillance program that we’ve been hearing so much about (well, so much for secrecy) was illegal and unconstitutional.  They rest their claim on first (a stretch) and fourteenth amendment protections.  Here’s my thing: some of these people think they have standing (i.e. their eaves have been dropped), how are they going to prove it?  Crap, there I go advocating the unitary executive again, eh Senator?

Oh, and this was funny:

The Detroit suit, which also names the NSA, was filed by the ACLU, the Council on American-Islamic Relations, Greenpeace and several individuals.

Greenpeace huh?  I thought they would be cool with a chilling effect…


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And We're Back!

huzzah. I want my first post back to be momentous. So, hooray for the Owl Club! Now we know what it takes to make Teddy Kennedy ashamed.


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Ted Kennedy

I thought this Boston Herald piece was funny, partly because of the bad reporting, mostly because it was about Ted Kennedy.  It is short, so here is the whole thing, with my comments in brackets:

U.S. Sen. Edward M. Kennedy — who ripped Supreme Court nominee Samuel Alito for ties to a group that discriminates against women  — says he’s going to quit a club notorious for discriminating against women “as fast as I can.”

[A group in which Alito was apparently not active, that didn’t so much discriminate against women (Laura Ingraham was an editor of their magazine), but did allegedly oppose Princeton’s move to coeducation, or rather the way in which the change was brought about, among other things.  The group dissolved years ago, incidentally, so even if the statement were true, it does not discriminate in the present tense.]

Kennedy was outed by conservatives late last week as a current member of The Owl Club, a social club for Harvard alumni [well, it wasn't just alumni until later, after being cut off from the university, though there are apparently no alumnae in the group] that bans women from membership.

In an interview with WHDH Channel 7’s Andy Hiller that aired last night, Kennedy said, “I joined when I . . . 52 years ago, I was a member of the Owl Club, which was basically a fraternal organization.”

Asked by Hiller whether he is still a member, Kennedy said, “I’m not a member; I continue to pay about $100.” [I know I usually pay dues to groups of which I am not a member]

He then said of being a member in a club that discriminates against women, “I shouldn’t be and I’m going to get out of it as fast as I can.”

The Harvard Crimson reports that, in 1984, the university severed ties with clubs like the Owl, citing a federal law championed by Kennedy.

Meanwhile, Kennedy admitted to Hiller that he himself probably couldn’t pass Judiciary Committee muster.

“Probably not . . . probably not,” Kennedy said. [How true]

The committee will vote on Alito’s nomination on Jan. 24, and the full Senate will begin debate the next day. Senate Majority Leader Bill Frist, R-Tenn., said he looks forward to a “fair up-or-down vote.”

Me: Honestly, I really didn’t care about Kennedy’s Owl Club “issues”, and I don’t think anyone else really did either, except Ted, who as THE liberal in the Senate, must not allow the impression that he committed the sin of hypocrisy, the ultimate mortal sin in the church of liberalism.  


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Monday, January 16, 2006


Golden Globes

So the Golden Globes are on, and as they cut to commercial it was noted that they were sponsored by Hummer, with special attention on the H3.  Isn’t it lovely, one thing that is absolutely unnecessary and gets in the way (of me watching real tv on my last day off) being sponsored by something else absolutely unnecessary that, well, gets in the way.  


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I demand satisfaction!

Ok, so Ivan over at Joint Strike Weasel thinks I’ve been, shall we say, uncharitable in my assessment of the Democratic Senators during the confirmation hearings, accusing them of being idiots and liars.  He apparently “hoped that, at least in the law school, we might be able to take a step beyond that kind of rhetoric.” And thinks that I have sunk to “insulting and degrading comments to score cheap political points.”  Well, I don’t think that anything I said was particularly insulting or degrading, since most of the time I used direct quotes from the hearings.  On the other hand, I think he expects too much of me, in the maturity category at least.  Now, as to the idiots and liars charge, the only Senator I accused of lying was Cornyn, and on at least one occasion I pointed out that the Democratic Senators aren’t really idiots (though jmag will disagree with me here), just so desperate to try anything to block this well qualified nominee that it was, well, embarrassing.  An exchange that I failed to post on earlier (ht Daniel Drezner):

FEINSTEIN: So if I understand this, you essentially said that you wanted to follow precedent, newly established law in this area. And you left a little hedge that if Congress made findings in that law, then that might be a different situation.
If Congress did make findings, would you have agreed that that statute would been constitutional?

ALITO: What I said in the opinion and what I will reiterate this afternoon is that it would have been a very different case for me. I don't think I can express an opinion on how I would have decided a hypothetical case.

FEINSTEIN: It's not hypothetical. I'm just asking you, if there were findings as you said, you might have sustained the law.

ALITO: And I reiterate that...

FEINSTEIN: And I'm just asking you would you have sustained the law...

ALITO: I don't think that I can give you a definitive answer to the question because that involves a case that's different from the case that came before me.

Come on, they make it so easy.  You knew that she was going to be off from the first five words.  “So if I understand this” was a dead give-away that she wouldn’t.  Now, it just isn’t my fault that they made fools of themselves.  Apparently T.A. Frank, at TNR Online (ht Prof. Adler at Bench Memos), thinks that eliminating camera’s (reg req’d) from the hearings would fix this.  Somehow I doubt it actually would stop the foolishness, maybe just the obvious preening.  It would, however, allow enterprising NYT reporters to fix things, so the public got the “fake but accurate” view of things.  Wait, that’s why we have C-Span


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Obligatory MLK Day post

Seems like every year the left and right both try to lay claim to the legacy of Martin Luther King Jr.  Now, as a righty, I find the claim by the right to be interesting, but probably not entirely accurate.  That is to say, if MLK were alive today, I am not sure that he wouldn’t be a lot like Jesse Jackson.  I also don’t really like that students are given MLK day off, but rarely Presidents’ Day or Columbus Day, and never Armistice Day.  Not that we really need all of these days off, to be sure, but I think that the varying emphasis on the days distorts the importance of the actor or event.  MLK wasn’t unimportant, but was he more important than Washington? Lincoln? Columbus?  But, this is his day, so I will deliver.  Here is a Heritage Foundation WebMemo on King and his legacy.

“It is time for conservatives to lay claim to the legacy of the Rev. Martin Luther King, Jr. King was no stalwart conservative, yet his core beliefs, such as the power and necessity of faith-based association and self-government based on absolute truth and moral law, are profoundly conservative. Modern liberalism rejects these ideas, while conservatives place them at the center of their philosophy. Despite decades of its appropriation by liberals, King’s message was fundamentally conservative.”

That’s just the beginning, but it isn’t long, so read the whole thing.  


     


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Sunday, January 15, 2006


Outstanding Performances

I thought this “award ceremony” was pretty funny, especially because both of my Wisconsin Senators made the cut:

WASHINGTON, DC - People for the Alito Way today released a list of awards for those Senators who truly distinguished themselves during the nomination hearing of Samuel Alito to the Supreme Court. Congratulations to all the winners!

I’ll give you the Herb Kohl section just to get you warmed up:

Senator Herbert Kohl (D-WI)
"Not Ready for Primetime" Award”
Because he forgot to turn the page on his script and he read the same question twice. Because he forgot to turn the page on his script and he read the same question twice.

(hat tip KJL at Bench Memos)


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Friday, January 13, 2006


High Noonan at the Senate Corrall

You know how I always tell you to read Peggy Noonan?  Well that’s because you should. On the (what else?) confirmation hearings:

“In this, in the hearings, he [Joe Biden] is unlike Ted Kennedy in that he doesn't seem driven by some obscure malice--Uh, I, uh, cannot, uh, remembuh why I hate you, Judge Alioto, but there, uh, must be a good reason and I will, um, damn well find it. When he peers over his glasses at Judge Alito he is like an old woman who's unfortunately senile and quite sure the teapot on the stove is plotting against her. Mr. Biden is also unlike Chuck Schumer in that he doesn't ask questions with an air of, With this one I'm going to trap you and leave you flailing like a bug in a bug zapper--we're going to hear your last little crackling buzz any minute now!”


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Thursday, January 12, 2006


GULC has to be embarrassed

Memo to fellow Fed-Soc members: apparently we promote the unitary executive scope theory, and Dick Durbin doesn’t understand what that means.  

DURBIN: Unitary executive: The reason it's important is that there are some people, even on the Supreme Court, who believe the unitary executive theory -- I don't know if it's always associated with the Federalist Society but sometimes associated with the Federalist Society and their members -- but the unitary executive theory gives the president extraordinary power.
And under that scope of power theory, some argue that a president, particularly in A war time situation can ignore and violate laws as commander in chief. Critically important and timely, as we debate eavesdropping and the like.
You have made it clear that when you spoke to the Federalist Society in 2000, you were not talking about scope, but you were talking, instead, as to whether or not he would have control over the executive branch. I hope I'm characterizing your statement correctly.

ALITO: That's exactly correct. And I think in the speech I said there's a debate about the scope of what is meant by the executive power, but there isn't any debate that the president has the power to take care that the laws are faithfully executed, and that was the scope of the power I was discussing.

DURBIN: My question to you is this, what about those who do argue the unitary executive scope theory? Do you agree with their analysis? Do you disagree? Would you be joining Justices Scalia and Thomas, Justice Thomas in particular in his dissent in Hamdi, in arguing that this situation a president has more power than the law expressly gives him?

ALITO: I don't think that the unitary executive has anything to do with that. Let me just say that at the outset. And if other people use that term to mean the scope of executive power, that certainly isn't the way that I understand it.

DURBIN: That's not your point of view. You don't accept that point of view.

ALITO: No, I think...

DURBIN: If an argument is made that that's how they're going to expand the power of president, as you testified today, that's not your position or your feeling -- say it in your own words.

ALITO: When I talk about the unitary executive, I'm talking about the president's control over the executive branch, no matter how big or how small, no matter how much power it has or how little power it has.
To me, the issue of the scope of executive power is an entirely different question and it goes to what can you read into simply the term executive. That's part of it.
Of course, there are some other powers that are given to the president in Article II, commander in chief power, for example, and there can be a debate, of course, about the scope of that power, but that doesn't have to do with the unitary executive.


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Schuming

ALITO: Senator, it was a general statement that didn't go into -- it didn't...

SCHUMER: But it had no exceptions. You didn't make that...

ALITO: It was one sentence, and it certainly didn't represent...

SCHUMER: There was no -- you didn't write any exception for that situation. Correct? It just said the Constitution does not protect. It was without exception. And, yesterday, you didn't argue me when I mentioned that without exception.

ALITO: I don't recall your using the words without exception.

SCHUMER: I think I did.

SCHUMER: If you believe...

ALITO: Could I just answer that question? It's one sentence and it certainly is not an attempt to set out a comprehensive view of the subject.

SCHUMER: No, I understand that. [no Chuck, you don’t] But it was a very strong statement. It didn't talk about any exceptions at all. And the way I read that statement, even if a woman was raped by her father, she'd have no constitutional protection to have an abortion and terminate that pregnancy. If you believe the Constitution protects no right to an abortion that would follow, wouldn't it?

ME: Seriously though, Sen. Schumer thinks Alito hasn’t considered possible exceptions to the pro-life position, like a woman raped by her father?  He schumes:

“Knowing these examples, do you still refuse to distance yourself in any way from a broad, unqualified statement, without exception, that the Constitution does not protect the right to an abortion? No ands, ifs or buts, is my words.”

He also just lied through his teeth and referred to the CAP membership as an “important issue.”  Screaming self caricature alert! Want some more schuming?

“Sorry to interrupt, but we have limited time. What about commerce clause? Raich came to the court a couple years ago. Raich has roots all the way back in Wickert v. Fillburn.”

Good to know he keeps up to date…  Or maybe Schumer years move faster than people years?  Wait, did Sen. Cornyn just refer to Schumer as an “enormously talented and very bright lawyer.”  I mean, I know that Senators are very into collegiality, but it doesn’t have to include lying, does it?


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If you wanna get down, down to the ground; cocaine.

So you get nailed for coke when you’re the mayor of D.C., you become one of the biggest national jokes ever, you’re a disgrace, you claw your way back, you get back on the city council, but you still do the coke? Are you a complete and total idiot?  And more to the point, are the people of Washington D.C. complete and total morons?


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DiFi

Spent the day splitting wood (no, seriously), so I missed today’s Senate proceedings.  Watching the reruns right now, and  its a special joy, because Dianne Feinstein is up.  To paraphrase her “concerns” for today:

“we are concerned about your views on commerce clause jurisprudence, because you might not let us do what we want to do, I mean, come on, we’re the Senate, shouldn’t we get to do what we want?”    


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Wednesday, January 11, 2006


Alito benchslaps Schumer

The Washington Post has transcripts of the hearing, which allows me to bring you this (ht Southern Appeal, I “missed” Sen. Schumer’s time today, personal issues):

SCHUMER: Does the Constitution protect the right to free speech?

ALITO: Certainly it does. That's in the First Amendment.

SCHUMER: So why can't you answer the question of: Does the Constitution protect the right to an abortion the same way without talking about stare decisis, without talking about cases, et cetera?

ALITO: Because answering the question of whether the Constitution provides a right to free speech is simply responding to whether there is language in the First Amendment that says that the freedom of speech and freedom of the press can't be abridged. Asking about the issue of abortion has to do with the interpretation of certain provisions of the Constitution.

SCHUMER: Well, OK. I know you're not going to answer the question. I didn't expect really that you would, although I think it would be important that you would. I think it's part of your obligation to us that you do, particularly that you stated it once before so any idea that you're approaching this totally fresh without any inclination or bias goes by the way side.
But I do have to tell you, Judge, you're [whoa there WaPo, I know half of my undergrad friends and probably most of the law school cannot keep your and you’re straight, but come on, you’re kind a big time newspaper, and your lack of editing ability troubles me – Jason] refusal I find troubling. And it's sort as if I asked a friend of mine 20 years ago -- a friend of mine 20 years ago said to me, he said, you know, I really can't stand my mother-in-law. And a few weeks ago I saw him and I said, "Do you still hate your mother-in-law?"
He said, "Well, I'm now married to her daughter for 21 years, not one year."
I said, "No, no, no. Do you still hate your mother-in-law?"
And he said, "I can't really comment."
What do you think I'd think?

ALITO: Senator, I think...

SCHUMER: Let me just move on.

Who’d have thought that Chuck Schumer himself would point out the glaring weakness of abortion as a “right”?


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Tuesday, January 10, 2006


Prof. Alito

Ok, so after my first semester of law school, I was kind of wondering whether I “got it” at all.  Then I turn on C-Span to watch the Alito hearings today, and it turns out I do.  Watching Alito teach Con Law I to the judiciary committee (even though they had it once with Prof. Roberts) I realized that I at least understand more than I thought, and more than some of the Senators.  Ok, maybe just Ted Kennedy and Dianne Feinstein.  Way to go me.  I thought Alito did very well in today’s questioning.  If you missed them, the hearings are being rerun pretty much constantly, or for a quick oversight, try this article.   I’ll let you pick out the “I went to journalism school” statements.  
I noticed that the Senators still like to refer to the “liberty clause” of the Constitution, as if its in there just the same as the commerce clause.  Clearly it is not.  Now, they may be referring to Section 1 of the 14th Amendment:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

But probably just the word “liberty”, as Ramesh Ponnuru once pointed out on The Corner.  “Liberty Clause” is certainly more accessible than “due process clause”, and it is, I guess, from what I can tell, mostly a subset.  This reading is dangerous, because the words life and property have the same status in the sentence, if not the senatorial consciousness.  

Sen. Biden talked about SDO being the fulcrum of the court, making the argument that he is basically hesitant to change some sort of mystical balance of the court, worried that it would change the “Constitutional framework” of the country, as if that had never happened before, or as if he thought it a bad thing (isn’t changing the framework the whole idea of that living Constitution nonsense?).

Judge Alito’s wife (over his right shoulder) looks amused by the whole thing; I’m surprised she’s awake.  In all, I think today went well for Alito, so surprise here.


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Monday, January 09, 2006


Dean on Abramoff

Remember a while back when we were discussing whether or not Howard Dean is a complete and total nut?  Well, here’s an exchange from CNN, that I am copying from a post on The Corner, since some of you may not yet have seen the light.  


BLITZER: Should Democrats who took money from Jack Abramoff, who has now pleaded guilty to bribery charges, among other charges, a Republican lobbyist in Washington, should the Democrat who took money from him give that money to charity or give it back?

DEAN: There are no Democrats who took money from Jack Abramoff, not one, not one single Democrat. Every person named in this scandal is a Republican. Every person under investigation is a Republican. Every person indicted is a Republican. This is a Republican finance scandal. There is no evidence that Jack Abramoff ever gave any Democrat any money. And we've looked through all of those FEC reports to make sure that's true.

BLITZER: But through various Abramoff-related organizations and outfits, a bunch of Democrats did take money that presumably originated with Jack Abramoff.

DEAN: That's not true either. There's no evidence for that either. There is no evidence...

BLITZER: What about Senator Byron Dorgan?

DEAN: Senator Byron Dorgan and some others took money from Indian tribes. They're not agents of Jack Abramoff. There's no evidence that I've seen that Jack Abramoff directed any contributions to Democrats. I know the Republican National Committee would like to get the Democrats involved in this. They're scared. They should be scared. They haven't told the truth. They have misled the American people. And now it appears they're stealing from Indian tribes. The Democrats are not involved in this.

Well, Wolf mentioned Dorgan (about $79,300), but there are others, like Sen. Tom Harkin (D-Iowa), who received at least $45,750; Senate Minority Leader Harry Reid (D-Nev.), who received at least $68,941 and Sen. Debbie Stabenow (D-Mich.), who received at least $6,250.  Now, maybe in HD’s world the only money that counts is passed directly from Abramoff’s hand directly to a Senator’s in a dark alley somewhere, but well, that’s just ridiculous.  I think the whole thing is a bad deal and will probably hurt some people who don’t deserve to be.  Dean’s claim may be truthful, but only because he misspoke; the tribes are not agents of Abramoff, they were usually clients. In total, the National Republican Senatorial Committee analysis (yeah, I know, they may be a little biased, or at least have an interest in spreading the guilt) found that 40 of the 45 Democrats in the Senate had received campaign funds from Abramoff clients.  


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Opening Statement

Solid, but simple, opening statement by Alito, the real dance starts tomorrow.  And now the humor section: IDIOTS CALLING C-SPAN! From both sides really, they are all pretty much awful, some are downright hilarious.


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Bench Memos

Though I think they are clearly ripping off my posts, remember to check NRO’s Bench Memos throughout the hearing.  They have a couple of people on the job including Wendy Long, Byron York, and Ed Whelan, and well, they do a good job.  


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Torture Cont.

Sen. Schumer is up now, claiming that since Harriet Meirs didn’t get an up or down vote  Alito may not deserve one, busted out the term “flip-flop”, and deified Sandra Day O’Connor (as so many of the Democrats have).  He also claimed he hadn’t yet made up his mind, which for him must mean he hasn’t decided between a no vote and filibustering.  Then, to cap it off, he tells us that “the court is not a legislature” and that it should respect the elected branches, though not the executive too much, mostly just him.  He brings up Alito’s Rybar dissent to discuss this, since “the people” apparently wanted this law (prohibiting intrastate simple possession of machine guns) so much that no judge should have even questioned whether or not it passed commerce clause muster.  Ok, let me try to work this out.  In Rybar, the people wanted a federal law so bad (according to Schumer) that it didn’t matter if it was outside the federal government’s power.  In Roe, even though “the people” in the states, acting in the appropriate state forum, wanted laws against abortion, Schumer apparently believes the court was using only its legal judgment to find this “right” to an abortion.  That’s deference to the elected branches how?  What a putz.      

Now Durbin, invoking Rosa Parks and coal miners, claiming to be worried about judicial activism.  Wait, I think I fell asleep…


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Recess

Right after I updated that last post, Sen. Specter thanked “Judge Feingold” for keeping his remarks brief.  Maybe the hair is affecting his brain. The committee is in recess right now, Sens. Graham Schumer and Durbin to come.  And then after his formal presentation to the committee, we can finally hear the nominee speak (about 3pm central), rather than just stand/sit there in silent pain.  


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TORTURE!

Herb Kohl, Senator from my home state of Wisconsin, is talking right now.  Poor Judge Alito just has to sit there and take it.  Dianne Feinstein is up soon.  I mean, is there a point to this?  Sen. Kyl (who I tend to like) just spoke, and I discovered that I didn’t care what he had to say either.  Ten minutes to each Senator adds up to THREE HOURS OF EXTREME BOREDOM.  Come on, let Alito speak.  Oh man, and now Mike Dewine is explaining the nomination process and the Senate’s solemn duty in it.  Does he seriously think anyone watching C-Span, let alone Alito, needs this?    

ADDENDUM: Wow, Sen. Specter’s hair is coming back pretty well.  And Feingold just brought up the Vanguard issue, showing not that he is an idiot, but that he is well aware that that and that alone could make the sound bite news, while the explanation of why it simply didn’t matter will not.  


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Day-O!

Ok, I know I copped out of my last post by saying I was tired, but this is just too good.  Harry Belafonte, who is somehow still considered famous, was in Venezuela recently, hanging out with Hugo Chavez, along with Danny Glover and Cornel West.  While he was there he called President Bush the “Greatest Terrorist in the World” and claimed that millions of Americans support the “socialist revolution of Venezuelan leader Hugo Chavez” (quoting the article).  Clearly Harry’s inability to count (or tendency to exaggerate, whichever works for you) sheds new light on the need for Mr. Tally Man to tally his bananas.  My solution?  When daylight comes and he wanna go home, Harry should go ahead and stay in Venezuela. After all:

“Belafonte accused U.S. news media of falsely painting Chavez as a "dictator," when in fact, he said, there is democracy and citizens are "optimistic about their future."

Well isn’t that special.  


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Ah yes, I'll have the Alito.

Well, as the Alito hearing gets underway, here is an article (I think you have to register, so I will work in a fair amount of the text) in the NYT comparing Judge Alito with now Chief Justice Roberts.  It is interesting, I’ll give it that, but then I am a sucker for Reagan-era anything.  Basically, the article says “they’re alike, but different, or are they?” Awesome, way to go Times.  Here’s a paragraph that made me arch an eyebrow:

“Some Democratic lawyers argue, however, that the similarity of the men's backgrounds may be a liability, too. "Some senators might well conclude that the fact that one nominee is so similar to the immediate previous nominee is an argument against confirmation," said Walter E. Dellinger III, who was acting solicitor general in the Clinton administration. "Some might say, send us someone a little different."

File that under wishful thinking Walter.  Or don’t, I mean, I could see Ted Kennedy saying something like that, or Schumer, or Biden (though he would probably flash it off his teeth in Morse code).  Ok, pretty much any D, especially those on the Judiciary Committee, but then they’re more or less grasping at straws these days, and because Ted Kennedy is clearly a pinko-commie peacenik abortionist groupie.  Ok, so maybe not wishful thinking, just crazed stupid clawing desperation arguments (oh man, DiFi might too, though she would demand a woman, since that’s who she represents).  Do I want to back that up with some facts, figures, background, precedent? No, its 2am, and I have a long day of CSPAN watching tomorrow.  

Continuing on:

“To many of their former colleagues, the ascent of both men to the Supreme Court within months of each other would be the high point of a conservative revolution in the legal establishment: an effort over several decades to seed the federal courts with jurists holding a narrower interpretation of the Constitution's application to abortion rights, civil rights, the rights of criminal defendants and the scope of federal power.”

"It is the culmination," said Edwin Meese III, who was attorney general in the Reagan administration and a leading architect of the movement. "Judge Alito and Chief Justice Roberts represent the best among the group of excellent young lawyers that came into government at the same time in the Reagan administration."

Ok, so I really just wanted to remind people that Ed Meese was still alive.    


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Sunday, January 08, 2006


Woe is me

Ok, so in my attempt to appear organized and feel productive as I am thrashed about the seas of aimless leisure, I just plugged the spring law school calendar and finals schedule into Outlook.  Now I am thoroughly depressed (though that could be the horse tranquilizers and whiskey that I’m taking to make the break seem really long), because I all of my finals are at 8:30am, the only exception being civil procedure at 1pm, which just happens to be the absolutely last final given, (and I had the absolute last this fall too), which means I will be slaving away in the law school dungeon while the rest of the law school is soaking in the warm weather and sunshine on the patio at Sgt. Preston’s, or Town Hall, which is my preference.


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Saturday, January 07, 2006


Misc.

First, Jonah Goldberg is awesome.

Second, I've got one of my four grades back. Which would logically mean only 3/4 of a night spent in sleepless agony on average. But that would assume that my drive, ambition, passion, and anything else associated with caring about results had not been sucked out of me, leaving me a hapless buffoon who really doesn't care about his grades any more. Come to think of it, law school really hasn't changed me a bit.

Third, here's a funny link. Yes, I do have too much time on my hands. http://www.truthlaidbear.com/showdetails.php?host=http://fritzfeds.blogspot.com

Fourth, I'm not in the mood for substantive debate, but this is supposed to be a legal blog, so here's an unsupported opinion (a rarity in this faceless blog-world). Confirm Alito! Anyone who votes against confirming him is either a communist or Ted Kennedy. Or both. So there.


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I'm fine, I just threw up in my mouth a little bit.

So I’m up late, since I like late, watching this infomercial because the remote is at least 8ft away from me, and who comes on but former Congressman J.C. Watts (R-OK), former Chairman of the House Republican Conference and general football badass.  What’s he pitching?  Free government money!  Less than three years after retiring (with a 93% ACU rating), the “black Bill Bennett” (no, he doesn’t have a gambling problem, why was that the first thing you thought of when I said Bill Bennett?), who presumably left the Congress to spend more time with his family and to work on being a policy guy, an idea generator, is on TV telling me to “get off the couch, sign up, and come to the [National Grants] Conference.”  Thanks J.C., but I don’t even have a couch (can I get a grant for that?).  Now, some of these grants have a purpose that I’m ok with I guess, such as promoting home ownership and small business; others make me queasy, as do some of the participants (the “host” was an Asian woman, who when one of the “panelists” was discussing grants for minorities and women chirped with glee “I’m both!”, apparently she didn’t get the memo).  In any event, I think Watts could do better, I mean, yeah, he has GOPAC, which is cool, but focuses primarily on the electoral end of electoral politics.  He also has his own company, which is a bit more promising.  I wish he would focus on that.  I mean, doing an infomercial was bad for Cher, and she was already awful, imagine what it could do to someone with a solid reputation.  I just punched him up in WikiQuote, and it turns out J.C. stands for Julius Caesar, assuming Wiki is right.  Anyhow, here’s a little quote from him, cliché as hell, but still a bit valid:

“Character does count. For too long we have gotten by in a society that says the only thing right is to get by and the only thing wrong is to get caught. Character is doing what's right when nobody is looking...
-Speech at the Republican National Convention (August 13, 1996)


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Friday, January 06, 2006


Italians... (shaking head)

Ok, I know I post a lot of articles/columns on here, but this one you just have to read, whether conservative/liberal whatever:

ROME (Reuters) - Forget the U.S. debate over intelligent design versus evolution. An Italian court is tackling Jesus -- and whether the Roman Catholic Church may be breaking the law by teaching that he existed 2,000 years ago.
    


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Thanks Judge, now go ahead and retire.

In Vermont a man convicted of repeatedly raping a little girl while she was between the ages of seven and ten was sentenced to a pathetic 60 days.  The Judge Edward Cashman, who has been on the bench for 25 years, “doesn’t believe in punishment”, because “it accomplishes nothing of value; it doesn't make anything better  ;it costs us a lot of money; we create a lot of expectation, and we feed on anger."  Score another one for the rehabilitation crowd.  I guess I would be cool with 60 days, if it was 60 days of being pistol whipped in between hard labor sessions.  


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Thursday, January 05, 2006


Do you ever get the urge

To call the 700 Club and tell Pat Robertson to shut his damn mouth? Pat is one of the many reasons I am so glad to be Catholic.  On Ariel Sharon’s stroke yesterday, Pat apparently has decided that it was caused by God’s wrath.  What an idiot.  
    


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All Alito, All the Time

Ah, forgot to mention a couple days ago that Judge Alito received a “well qualified” rating from the ABA, which is the highest of their three levels (they really break it down, don’t they).  From the article:

“The American Bar Association yesterday rated Judge Samuel A. Alito Jr. "well-qualified" to serve on the Supreme Court, even as several left-leaning advocacy groups released reports arguing his judicial philosophy would force the court rightward. The association's 15-member standing committee voted unanimously, with one person abstaining.”

Additionally:

“Yesterday, liberal advocacy groups said the ABA rating was both expected and not important as senators decide how to vote on the nomination.”

Of course, as the article also noted (this is the WashTimes, after all), these same people considered the ABA rating to be the “gold standard” until very recently.  Now, I don’t think any part of the process should be beholden to the ABA, but if they want to rate nominees and do so fairly fairly, fine.  Think of it as persuasive, not binding, authority.  And if the best these left leaning groups can come up with against Alito is that he may force the court rightward (though I doubt by very much; for all her problems Justice O’Connor did take the Right position much of the time) it just doesn’t seem like they’re trying very hard.  

For further enlightenment on Alito and the nomination process in general, read Sen. John Cornyn (R-Texas), former justice on the Texas Supreme Court, in today’s NRO.  He begins:

In observing the judicial-confirmation process as a member of the Senate Judiciary Committee, nothing has been more surprising than the depiction of the role judges play in society. It is disconcerting each time a senator asks a judicial nominee whose "side" they will be on once they assume the bench. On the side of workers? Women? The disabled?



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Don't worry, be happy

Mark Steyn had a column in today’s WSJ predicting the fall, or at least erosion and decline, of western civilization as we know it, expounding on the Toynbeean (doubt that’s a word) notion that "Civilizations die from suicide, not murder".  He points to our dumb multiculturalism, our focus on secondary issues like health care in elections, and lack of “civilizational confidence” as symptoms of our disorder:  

“Yet while Islamism is the enemy, it's not what this thing's about. Radical Islam is an opportunistic infection, like AIDS: It's not the HIV that kills you, it's the pneumonia you get when your body's too weak to fight it off. … [The jihadists] know they can never win on the battlefield, but they figure there's an excellent chance they can drag things out until Western civilization collapses in on itself and Islam inherits by default.”

Essentially, the West has lost sight of the big picture, and therefore can’t see where we are headed:

“So the jihadists are for the most part doing no more than giving us a prod in the rear as we sleepwalk to the cliff. When I say "sleepwalk," it's not because we're a blasé culture. On the contrary, one of the clearest signs of our decline is the way we expend so much energy worrying about the wrong things.  One way "societies choose to fail or succeed" is by choosing what to worry about. The Western world has delivered more wealth and more comfort to more of its citizens than any other civilization in history, and in return we've developed a great cult of worrying. You know the classics of the genre: In 1968, in his bestselling book "The Population Bomb," the eminent scientist Paul Ehrlich declared: "In the 1970s the world will undergo famines--hundreds of millions of people are going to starve to death." In 1972, in their landmark study "The Limits to Growth," the Club of Rome announced that the world would run out of gold by 1981, of mercury by 1985, tin by 1987, zinc by 1990, petroleum by 1992, and copper, lead and gas by 1993.”

PREACH IT BROTHER MARK!  I personally know them well, since they STILL persist as required reading somewhere in most Environmental Science/Policy/Studies programs.  Its all the same, only the dates have changed.  

“And even though none of the prognostications of the eco-doom blockbusters of the 1970s came to pass, all that means is that 30 years on, the end of the world has to be rescheduled. The amended estimated time of arrival is now 2032.  Well, here's my prediction for 2032: unless we change our ways the world faces a future . . . where the environment will look pretty darn good. If you're a tree or a rock, you'll be living in clover. It's the Italians and the Swedes who'll be facing extinction and the loss of their natural habitat.”

O Julian Simon, where art thou?

“What's worrying is that we spend so much time worrying about things that aren't worth worrying about that we don't worry about the things we should be worrying about. For 30 years, we've had endless wake-up calls for things that aren't worth waking up for. But for the very real, remorseless shifts in our society--the ones truly jeopardizing our future--we're sound asleep. The world is changing dramatically right now, and hysterical experts twitter about a hypothetical decrease in the Antarctic krill that might conceivably possibly happen so far down the road there are unlikely to be any Italian or Japanese enviro-worriers left alive to be devastated by it.”

He may not be a scientist, but the man has a way with words.  Indeed, how many die in Africa of malaria every year because we in the West are squeamish about DDT?  Seriously though, I’ve gone on too long, and buried jmag’s post (read it now!), so read the whole thing, which is also long, but Steyn is one hell of a writer.  Theatre, politics, environmentalism, he covers it all, even globalization, you want globalization?  Here you go:

“In a globalized economy, the environmentalists want us to worry about First World capitalism imposing its ways on bucolic, pastoral, primitive Third World backwaters. Yet, insofar as "globalization" is a threat, the real danger is precisely the opposite--that the peculiarities of the backwaters can leap instantly to the First World. Pigs are valued assets and sleep in the living room in rural China--and next thing you know an unknown respiratory disease is killing people in Toronto, just because someone got on a plane. That's the way to look at Islamism: We fret about McDonald's and Disney, but the big globalization success story is the way the Saudis have taken what was 80 years ago a severe but obscure and unimportant strain of Islam practiced by Bedouins of no fixed abode and successfully exported it to the heart of Copenhagen, Rotterdam, Manchester, Buffalo . . .”


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Morality in Government

[Suggested Soundtrack: Gilberto, Gilberto, and Getz, "Aguas de Marco" (accounting for the somewhat calm state I'm in right now after watching a great National Championship game)]

The NSA thing is the latest thing to pop up. Everything I read seems to suggest to me that this was a monumentally bad idea, whether it was illegal (perhaps), unconstitutional (probably not), or immoral (deep waters). Let me just point out a perhaps unoriginal observation. All of a sudden, the constitution is the most important document out there for those on the left. "No latitude must be given to government to overstep its bounds! We will never get those freedoms back!" & etc. Interesting in that those liberals are often those most in favor of a "growing and living" constitution, that stretches to allow governmental growth. Last time I checked the liberty to possess a firearm, worship freely, and have control over my own property were at least as essential as the liberty to talk on the phone with nobody listening, but I digress. Lest I offend the two other bloggers who visit us, I must also point out that I'm rather disgusted with the Republican party right now as well for this whole matter. Corruption, the natural end of government, has infected the Republican party who originally campaigned as new brooms, but have ended up as dirty as anyone else.

However, I'm going to bypass this whole excrement-flinging donnybrook, and go to what I consider the heart of the matter. Because legality is a nebolous concept, and easily twistable. Constitutionality shouldn't be, but is, about the most easily ignored concept in government. But is (as the inflamed rhetoric claims) "the person who is willing to give up liberty for security deserving of neither" (a claim that seems facially stupid), or is "the life of man outside of the protection of government nasty, brutish, and short" (which being hobbesian, I also detest). I think there does need to be a balance here, and that's where a balance of powers is absolutely essential. Certainly we were attacked, and the attackers still pose a threat. Barring the executive from any secretive actions such as these out of hand/condemning them as high treason, seem to me to be overreactions of the first order. Sometimes danger does necessitate a strong hand at the helm. Then again, some checks are definately necessary, even in today's highly politicized environment. The simple truth is that some liberties must be given up, but only with the highest degree of cynicism. Sure, some will argue that Lincoln suspended habeas, FDR basically used the constitution for toilet paper, and we seem to have come out all right. But the problem is that both of those situations concerned easily definable wars, and the liberties (especially in FDR's case) didn't come right back, or in some cases, didn't come back at all.

My basic idea is this. Cut some of these illegality. The courts would probably have granted warrants if these were as slam dunk as is said. I think most of the terrorists, citizens and non-citizens need some element of due-process. The government would be better served to simply clean up its legal spy networks, cut way down on illegal immigration by suspected terrorists, and then simply get some deterrence working. Once convicted, why not waterboard, break thumbs, and arrange the pyramids. I'm one of those that think you give up almost all of your societal rights when you commit a crime (so don't let felons vote). But anyway, back to my screed. Yes, I'm suggesting some torture. But I do think it could be done a better way. People are in awe of Al Qaueda and its peers right now. "They can't be deterred! They're bent on death!" Therefore, the pacifists suggest mollifying them to procure "peace in our time". Give 'em Palestine. After all, Spielberg says the Israeli's and Palestinians are morally equivilent. And hey, we hate the "neo-cons" anyway, because they're good at making money, cry the Left. (And yes, I am accusing the left of possessing an undercurrent of anti-semitism, explaining why they are "suprisingly" in line with Pat Buchanan on many foreign affairs matters). So, the grunts aren't easily deterred. They've been brainwashed into coming here. But here's where we go with the double threat. We reach out with one hand to the grunts (expanding trade and "western imperialist consumer culture") while pimp slapping the leaders with the other. Go Ronald Reagan, and scare the leaders. No Quarter! Blood and Guts! YEARGH!!! Sorry, must have been channeling Howie Dean on that one. Except it would have to be a somewhat more intelligent and articulate Dean. This post is pretty much blowing off steam at 123 in the morning. But I still advocate more violence. Because violence solves problems, like the problem of the neighbor's dog barking till all hours of the night. By the by, anyone know of a good way to warm the ground? It's hard to dig when it's frozen.


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Wednesday, January 04, 2006


Non-Law/Politics post

Well, with college football about to be over in about an hour (SoCal just scored again to take a one point lead), time to turn to basketball.  Granted I don’t know a lot, I will admit that readily, but I’ve seen this coming for the last few years.  Jeff Shelman (of the STrib) tells the NCAA world : watch out for the MVC.  Unfortunately, he doesn’t see my Bulldogs going anywhere, but then again, I can’t really disagree with him on that, I would settle for a winning season for once.      

UPDATE: Aside from some questionable officiating, probably the best national championship I’ve seen.  Congrats to the Texas Longhorns.  


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Useless Idiot

I guess you could say this guy was a little hot under the collar.

The man walked out of the courtroom after the sentence, doused himself with heating oil, came back to the courtroom and set himself on fire, the court official said by telephone.


Too easy, I know; you try to come up with something better.
    


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Jonah Goldberg at Carleton this Friday

Just thought some of you (boldly assuming that we have readers) might be interested.  Jonah Goldberg, syndicated columnist and frequenter of both National Review and NRO, will be speaking at Carleton College (jmag’s alma mater I believe) down in Northfield this Friday at 10:50am (odd time if you ask me), in the Skinner Memorial Chapel.  If you aren’t familiar, the guy is funny, smart, and when the L.A. Times picked up his column (and dropped Robert Scheer’s) Barbara Streisand flipped out, which should be reason enough to go.  


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Tuesday, January 03, 2006


Alito and the Environment

Here’s Jonathan Adler, law prof at Case Western Reserve, frequent contributor to NRO, and who also spoke here during the first semester, commenting on environmental alarmists and the Alito nomination.  

Random paragraph selection:

Environmentalists find further evidence of Alito's alleged adherence to radical federalist views in a 1986 memo which he wrote as a Department of Justice attorney, recommending that President Reagan veto the Truth in Mileage Act. Judge Alito's alleged offense is that he had the temerity to suggest that laws governing used-car sales, like contract law generally, should remain the province of the states. This is a particularly odd basis for environmentalists to criticize Alito, as they regularly argue against federal efforts to preempt state regulation of automobiles, attacking the Bush administration for arguing that federal environmental laws limit state authority to adopt varying standards.


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