Alito Teaser

Some of you might be visiting to see whether I have anything to say about the Honorable Samuel Alito, and his nomination to take the Supreme Court seat presently occupied Madame Justice O'Connor. You're right that I have things to say. Indeed, I have a lot to say, including a couple of personal anecdotes concerning one-on-one discussions I've had with Judge Alito in recent years. But real work calls, and you'll all just have to wait.

For the time being, I urge you not to swallow whole what those people who are itching to fight are saying about Judge Alito and his prior decisions. Though I can't vouch for all of the claims Julian Sanchez's makes at Hit and Run (hat tip Bloodless), I can say that they seem in large part to be correct, and generally are consistent with my objections to commentary on the other recent nominees.

The most dangerous meme out there, the one sure to be harped upon relentlessly by the left, is that Alito is a judge "in the Scalia mold" as I heard enough times this morning that I wanted to throw up. I half-expected an NPR commentator, any of them, to blow it and use "Scalito" in lieu of his real name.

I've never seen anything that really substantiates Scalia comparisons. Unlike Scalia, it appears that Judge Alito has been a very consistent, traditional conservative jurist. Unlike Scalia, and indeed far more like Chief Justice Roberts, Judge Alito appears to have tremendous regard for precedent and the institutional stability that respects the settled expectations created by prior decisions.

Scalia, on close scrutiny, is not even remotely close to the Justice people claim him to be, or that he sets himself up to seem. He's fickle, self-indulgent, and violates his own supposed principles of interpretation (or alternatively bends them beyond recognition) where it serves patently ideological ends. And, worse, he delivers these opinions derived from deviations from his own supposed normative jurisprudence with a tone of sanctimony and condescension never before seen on the Court, even as he indicts other Justices for committing offenses against the law that he uses to further his own ends.

Nothing I know of Judge Alito suggests that this is true of him, and in light of that fact I think it unfair to tar Judge Alito with the Scalia brush. I'm not saying I like him; I'm not saying I would urge Democrat senators to vote for his confirmation. I'm merely saying that he's got a long history on the bench and an ample record to review, and that he deserves to be evaluated on the merits of his own work. Supposedly pejorative comparisons to sitting justices are the hallmark of lazy commentators.

As Armand points out, people need to do their own homework before forming strong opinions based on a lazy commentariat. As a career public servant, Judge Alito deserves nothing less.

(Anecdotes and at least some analysis to come.)

UPDATE: Orin Kerr evidently agrees that, in Judge Alito, we face a nominee much closer to the Roberts model than the Acalia model.

A Tale of Two Commentators

This morning, for the umpteenth time, I watched David Brooks play apologist for the Administration on one of the Sunday shows. A few minutes later I reached his column (TimesSelect subscription required) in the New York Times, in which he wrote on the same basic theme summed up in the title: "The Prosecutor's Diagnosis: No Cancer Found."

Nicholas Kristof wrote, in a very different vein, under the title "Time for the Vice President to Explain Himself" (also TS). Regular readers will recall that I am no friend to either man, and frequently find their work objectionable for any number of reasons.

Today, however, I think Kristof is entirely on the ball. Furthermore, his column illustrates perfectly why Brooks is so utterly wrong.

Brooks, to put it simply, rolls out the cover-up-worse-than-the-crime meme to which I strenuously objected on Friday. He writes:

Patrick Fitzgerald has just completed a 22-month investigation of the Bush presidency. One thing is clear: there is no cancer on this presidency. Fitzgerald, who seems to be a model prosecutor, enjoyed what he called full cooperation from all federal agencies. He found enough evidence to indict one man, Scooter Libby, on serious charges.

I'm pretty sure the Vice President's Chief of Staff, also an inner-circle advisor to POTUS, in committing perjury as alleged doesn't count as "full cooperation." Furthermore, I'm pretty sure these allegations single out Libby as a "cancer on the presidency," co-opting John Dean's j'accuse of the Watergate culprits.

Why do I say that? Well, let's ask Kristof, who opens his column with a candid apology for invective he has leveled in the past against Special Prosecutor Fitzgerald:

Over the last year, I've referred to him nastily a couple of times as "Inspector Javert," after the merciless and inflexible character in Victor Hugo's "Les Misérables." In my last column, I fretted aloud that he might pursue overzealous or technical indictments.

But Mr. Fitzgerald didn't do that. The indictments of Lewis Libby are not for memory lapses or debatable offenses, but for repeatedly telling a fairy tale under oath.

Libby didn't tell this fairy tale for fun, or out of self-serving sloppiness. The reason cover-ups are so insidious is that, typically, no one is prepared to fall on his sword, to risk imprisonment (rare) and career suicide (far more common, but see Oliver North), to hide something that will make a brief splash and disappear under the waves. The fact remains, that somebody leaked Valerie Plame's name. Now, whether she was, in fact a clandestine operative qualifying for protection under the law criminalizing the release of information about an agent in the field, is as yet unclear. But the information got out, and it was no accident.

Brooks next falls back on a tried and true (but loathsome in a journalist) spin and wishful thinking tactic.

[Fitzgerald] did not find evidence to prove that there was a broad conspiracy to out a covert agent for political gain. He did not find evidence of wide-ranging criminal behavior. He did not even indict the media's ordained villain, Karl Rove.

Yet. He also hasn't signaled an end to his investigation. As for the first part of the excerpt, the release accompanying the indictment as well as the indictment itself suggest otherwise to anyone not willfully ignorant of its implications. Perhaps he's right that "political gain" wasn't the goal, but if not then it was retribution, which is perhaps even worse. People with the sort of power intrinsic to a United States presidential administration ought to rise above petty squabbling and schoolyard retribution. This administration, however, has never signaled any interest in the moral highroad.

Brooks continues in the same vein, only he abandons spin for sheer wishful thinking.

"There is mounting evidence," Nadler continued, "that there may have been a well-orchestrated effort by the president, the vice president and other top White House officials to lie to Congress in order to get its support for the Iraq war."

One may wish it, but that doesn't make it so. We do know that the White House lied about who was involved in calling reporters. But as for traitorous behavior, huge cover-ups and well-orchestrated conspiracies - that's swamp gas.

Like he says, wishing it doesn't make it so. The indictment suggests that there was something very like a well-orchestrated conspiracy, and the absence of indictments directly implicating one hardly ends the matter. Even if Fitzgeral packs up and goes home, it's pretty clearly not a blanket exoneration. Rove has proven himself disturbingly slippery in the past, and one needn't look hard to find strong evidence that wherever Rove goes well-orchestrated coonspiracies are sure to follow.

Kristof, far from being "hysterical," as Brooks describes pretty much anyone who dares to think this is bigger than just Libby, provides a sobering account of what one reasonably can infer from the face of the legal filings.

Mr. Rove escaped indictment, but he has been tarred. He apparently passed information about Valerie Wilson to reporters and then conveniently forgot about one of those conversations. He also may have misled the president, and the White House ended up giving false information to the public. It's fine for Mr. Rove to work as a Republican political adviser, but not as White House deputy chief of staff.

Even more important, Vice President Dick Cheney owes the nation an explanation. According to the indictment, he learned from the C.I.A. that Joseph Wilson's wife worked at the agency and told Mr. Libby that on about June 12, 2003. Why?

There may be innocent explanations. I gather from the indictment and other sources that Mr. Cheney and Mr. Libby were upset in May and June 2003 by a column of mine from May 6, 2003, in which I linked Mr. Cheney to Mr. Wilson's trip to Niger. If Mr. Cheney and Mr. Libby thought that my column was unfair, or that Mr. Wilson was exaggerating his role, they had every right to ask for a correction or set the record straight.

[snip]

Since Mr. Libby is joined at the hip to Mr. Cheney, it's reasonable to ask: What did Mr. Cheney know and when did he know it? Did the vice president have any grasp of the criminal behavior allegedly happening in his office? We shouldn't assume the worst, but Mr. Cheney needs to give us a full account.

Instead, Mr. Cheney said in a written statement: "Because this is a pending legal proceeding, in fairness to all those involved, it would be inappropriate for me to comment on the charges or on any facts relating to the proceeding."

[snip]

At the Republican National Convention in Philadelphia in August 2000, Mr. Cheney won adoring applause when he suggested that Bill Clinton's deceit had besmirched the White House. Mr. Cheney then pledged that Mr. Bush would be different: "On the first hour of the first day, he will restore decency and integrity to the Oval Office."

Mr. Cheney added of the Democrats: "They will offer more lectures, and legalisms, and carefully worded denials. We offer another way, a better way, and a stiff dose of truth."

You were right, Mr. Cheney, in your insistence that the White House be beyond reproach. Now it's time for you to give the nation "a stiff dose of truth." Otherwise, you sully this country with your own legalisms.

And this is the 800-lb. gorilla in the room: that the White House is in retreat and falling back in a case concerning the betrayal of national security on all the legalistic "what-is-is" bromides it so vituperatively attacked when the subject was an Oval Office blowjob.

Then, at least, there was an argument to be made: that the whole inquiry was inappropriate to begin with. In this situation, while one might argue that the investigation is based on unsusbantiable allegations, one cannot dispute that, if the allegations are true, there has been a serial and coordinated abuse of power emanating from the West Wing, with the apparent wink-wink complicity of at least the Vice President, and possibly the President himself (although that'll never stick, even if it's true).

On the sunny side of the street, Brooks offers his own unsubstantiated accusations:

The question is, why are these people so compulsively overheated? One of the president's top advisers is indicted on serious charges. Why are they incapable of leaving it at that? Why do they have to slather on wild, unsupported charges that do little more than make them look unhinged?

[snip]

So some Democrats were not content with Libby's indictment, but had to stretch, distort and exaggerate. The tragic thing is that at the exact moment when the Republican Party is staggering under the weight of its own mistakes, the Democratic Party's loudest voices are in the grip of passions that render them untrustworthy.

If the Democrats are "untrustworthy" for seeing the writing on the wall, and recognizing that what Libby appears to have done was not done in a vacuum, but rather served the interests of his superiors and very likely was effectuated with their blessing if not at their inistence, if their indignation is "the grip of passions" that render them so, what does it say about a man as intelligent as Brooks that he can crop from the photo everything except Libby's profile and hold forth as though his alleged crime were some sexual peccadillo committed on Libby's personal time instead of an act that made a mockery of national security and of the law itself. Of course, when that precise description applied to a Democrat president, the GOP was as a kennel of rabid Rotweilers.

It's not as though hypocrisy and underhanded dealing are new issues with this Administration, or that anyone who has been paying attention and can think critically can pretend to be surprised that finally the house of cards fell in some consequential respect. The only people who are "unhinged" right now are those who would apologize for the cavalier yahoos running the country in direct contradiction of the evidence before them. And Brooks, evidently, is one of them. If the left is hysterical, Brooks is in "denial," an even more repellent malady when it afflicts the press.

Thoughts on Libby and Rove, and the Coverage of the Indictments

To be clear, I'm not interested in blogging directly with regard to the indictments handed down this afternoon by Special Prosecutor Fitzgerald charging Scooter Libby with five counts based on his alleged knowingly false testimony to the grand jury in the Plame affair.

Most everything there is to know, for now, is contained in the news release explaining the indictment.

What interests me, presently, are too ancillary matters.

First, what does this mean for Rove? According to the New York Times, Fitzgerald may extend the term of the grand jury. For the time being, I'll assume this to be legally accurate. Needless to say, there's a huge practical difference between extending the term of the current grand jury, which has heard all of the foundational evidence and has showed that it's prepared to hand down indictments against administration officials. The question is this: would Fitzgerald wait to indict Rove for charges similar to those leveled against Libby? I think not.

Largely, whether someone lied before a grand jury is determined by the narrative the prosecutor develops based on the evidence concerning what really happened. Once that has been determined, it's a simple matter of matching up that narrative with the testimony in question for consistency. The release linked above is very clear on the ways in which Libby's testimony didn't match up with Fitzgerald's narrative.

Similarly, there's no evidence that Fitzgeral is as overbearing or single-minded as Independent Counsel Starr was in pursuing charges against Clinton. He seems neither to possess that politically-informed sense of determination, nor to arrogate to himself as much authority or importance as Starr did. I can only assume, therefore, that Fitzgeral is close to something on Rove.

Now it's possible that there are gaps in Fitzgerald's working narrative that preclude looming perjury charges for Rove. But here's my surmise: Fitzgerald thinks he's got Rove on something bigger. Specifically, I think Fitzgerald has Rove in his crosshairs for the substantive offense at issue: the borderline treasonous outing of Valerie Plame, a covert operative, for political gain. Going after such a big fish with deficient evidence is political suicide, because once such an indictment is handed down you better be right. I think what we're seeing is Fitzgerald's calculating circumspection, and assuming he gets to continue to work with the same grand jury as the Times appears to indicate, I don't think it's that far off. I suspect Fitzgerald only would take such extraordinary measures if he were truly close to nailing the big fish with the biggest charge of all.

And that's worth waiting for.

And on that note, my second point. The Times article contains the following curious statement: "If the charges announced today lead to a conviction or guilty plea, the episode will stand in Washington history as another example of a cover-up becoming more serious than the original wrongdoing."

I'm sorry, but excuse me? I'm pretty sure that whatever happens pertaining to the charges against Libby, they pale by comparison to the underlying allegation, the matter ostensibly covered up: The life- and national security-threatening revelation of highly classified information as retribution for a whistle-blower who critically undermined the case the President was trying to jury-rig to lead America's sons and daughters into war. This is one of the most offensive and risible statements I've seen in a Times news story I've seen in a while, possibly since Judith Miller was sucking off the Administration and its stoolies on the WMD story.

Trick or Treat?

From CNN:

FREDERICA, Delaware (AP) -- The apparent suicide of a woman found hanging from a tree went unreported for hours because passers-by thought the body was a Halloween decoration, authorities said.

The 42-year-old woman used rope to hang herself across the street from some homes on a moderately busy road late Tuesday or early Wednesday, state police said.

The body, suspended about 15 feet above the ground, could be easily seen from passing vehicles.

This speaks for itself. My only thought is that anyone with such a vivid sense of humor, gallows humor I suppose one might say, should still be alive.

Friday Meme -- Spirituality

Since we've been discussing matters of spirituality here of late, this seems a perfectly quaint way to start the day:

You fit in with: Humanism Your ideals mostly resemble that of a Humanist. Although you do not have a lot of faith, you are devoted to making this world better, in the short time that you have to live. Humanists do not generally believe in an afterlife, and therefore, are committed to making the world a better place for themselves and future generations. 20% spiritual. 80% reason-oriented.

Take this quiz at QuizGalaxy.com

I think it's interesting to note that the Judeo-Christian faiths are assigned a place on the scientific side of the x axis, rather than the spiritual side. I'd be curious whether the people who came up with this actually were informed by clear working definitions of, e.g., spirituality.

Care of Binky. See, Mark, whether Humanism encompasses everything non-theistic (the rather unscientific chart suggests otherwise), it apparently has me firmly in its skeletal grasp. ;-p

too much about nothing

Michael, at "too much about nothing," quotes a fabulous passage from Justice Harlan's dissent in Poe v. Ullman, 367 U.S. 497, 542 (1961) (Harlan, J., dissenting), which I reproduce in precisely the same contour as Michael does:

Due process has not been reduced to any formula; its content cannot be determined by reference to any code. The best that can be said is that through the course of this Court’s decisions it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society. If the supplying of content to this Constitutional concept has of necessity been a rational process, it certainly has not been one where judges have felt free to roam where unguided speculation might take them. The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing. A decision of this Court which radically departs from it could not long survive, while a decision which builds on what has survived is likely to be sound. No formula could serve as a substitute, in this area, for judgment and restraint.

He (Michael) goes on to explain the difference between value-driven constitutional interpretation and results orientation, the latter of which often is what is supposedly picked out by judicial activism and the former of which often is what the latter charge misidentifies. As Michael points out, values-driven judgments are not free-wheeling; they are, when executed by judges with integrity and an understanding of their role in our form of government, actually rather constrained.

The only meaningful difference between such judges and more "conservative" jurists is that the latter, contra Justice Harlan, tend to view tradition as something fixed in time right around the 1790's. Granted, that time frame is indexed to the Framing, which is a not inconsequential date in the larger scheme of things, but the Framers viewed their government as heavily informed by several preceding centuries of English law, tweaked to accommodate the immediate circumstances. Nothing in the historical record of the Framing suggests that its authors, to the extent they agreed on anything, imagined themselves to be enacting a document designed to cover all contingencies or to anticipate all societal mores (the evolution of which they were well aware of; indeed, they had just fought a bloody war to defend their right to live under their own, such as they might be).

Harlan's opinion is notable for its recognition that our "tradition," the tradition that informs constitutional interpretation, "is a living thing." If it weren't, our traditions still would be those of our dark-skinned ancestors who emanated from Africa all those years ago (or, in a nod to Christians, those values embodied in the post-Fall world identified in the Old Testament, in which case everything except parking tickets is liable to get one smited rather severely), or more imminently of the pre-Norman Angles, whose ideas of justice, let's just say, deviated considerably from those we now identify as those produced by a long tradition.

If tradition weren't a living thing, there would be no revolutions, no political upheavals, and there would be very little need for judges at all, as by now things would have become rather mechanistic.

That's neither the world I live in nor a world I care to live in. You should read Michael's parallel discussion of the passage in its proper context.

And with that, too much about nothing should appear shortly in the Blogroll under Friends, something I've been meaning to do for a while.

UPDATE: I have edited the above to remove a reference to "the Court's decision" in Poe. As noted elsewhere, Justice Harlan wrote in dissent, and thus his comments were not associated with the decision of the Court.

Miers: "I overslept. Can I please schedule a make-up exam?"

No, not really, but finally her speckled track-record (ideologically, legally, intellectually) and the full court press she'd been struggling under as the shot clock ticked toward zero, finally got to her (or, in one last fit of pique before exiting the White House with a sharp kick in the ass, Karl Turd Blossom Rove did):

President Bush on Thursday accepted the withdrawal of Supreme Court nominee Harriet Miers, according to a statement from the White House.

In her letter to the president, Miers said she was "concerned that the confirmation process presents a burden for the White House and its staff and it is not in the best interest of the country."

"It is clear that senators would not be satisfied until they gained access to internal documents concerning advice provided during her tenure at the White House -- disclosures that would undermine a president's ability to receive candid counsel," Bush said.

"Harriet Miers' decision demonstrates her deep respect for this essential aspect of the constitutional separation of powers -- and confirms my deep respect and admiration for her."

The best sign that this rationale is a crock of shit is all that stuff about respect for separation of powers, something everyone should remember the Prez said the next time he or his minions freak out about judges doing their jobs.

Hard not to suspect the timing, too. By Saturday morning, after the indictments come down tomorrow, at a minimum implicating Scooter Libby and Karl Rove (or so all appearances suggest), there's going to be a new story in town and Miers will be a memory.

Now, what I'd like to see is the White House chart that has a different contingency nominee for every permutation of indictments and charges, based on assumptions regarding administration credibility, unity among the base, and the country's willingness to tolerate anymore of this Presidency's bullshit.

How much does anyone want to bet it isn't Gonzalez. My guess: the Honorable Edith Brown Clement (third one down), although I still have a selfish reason for wanting to see the Honorable Samuel A. Alito, Jr., get the nod (top of the linked list), since I once interviewed for a position in his chambers in Newark, NJ, where he currently sits on the United States Court of Appeals for the Third Circuit. Then again, I didn't get the job, so eff him, right? Can't say why I think it's Clement, because I don't really know, but there's a little bit in her record to please everyone. Make no mistake, though -- she's a bad-ass conservative in almost every way. But as a libertarian on the Fourth Amendment, at least she wouldn't join the ongoing rollback of private citizens' expectations of privacy in contacts with officialdom.

If you want to keep up with developments on this front, do what I do: keep one eye on SCOTUSBlog, another on Howard Bashman, and if you have a third, or a sort of mental DVR, direct it to Volokh for an array of moderate conservative to kill-'em-all conservative perspectives. They will tell you everything you need to know, or direct you to the others who can.

On Juries

Reader MarkPele introduces the following concerns regarding the jury system; I'll see what I can do with them:

Apparently, the jury has the right to basically declare a defendant non guilty because the law itself is somehow unjust (or has the ability to decide whether the judge, in fact, interpreted the law correctly). Now, judges and even lawyers who smell this rat will often kick jurors out of the pool for this reason. There are really two questions I have regarding this: 1) When did "trial by peers" become trial by the 12 jurors I didn't kick off because they were too smart, wise, moral or I just didn't like, and 2) Let's say that I'm a juror that holds the viewpoint above. Can I sue the judge/court for kicking me off said jury, since he is, by kicking me off the jury, depriving me of a guaranteed right? 3) Can I be kicked off the jury for a) refusing to vow that I will interpret the law as the judge gives it, or b) vowing and then choosing to interpret the law otherwise.

BTW: I'm not advocating refusing to judge any law, but if you were asked to be a juror in a, for example, PATRIOT ACT or DMCA, jury, should you be bound to [???]

I don't think I can assess these queries as stated, because as I read them they embed a couple of critical presumptions that I don't believe to be the case. First -- and foremost -- though I'm heartened that you think of jury duty as a "right," but actually it's a duty. Nowhere are you guaranteed the right to be a juror. You are, of course, with some limitations ensured the right to a trial by jury, but that's obviously a wholly different matter.

Second, with some partial caveats more subtle and narrow than I believe this discussion requires, jurorss are not supposed to interpret the law. Jurors serve as fact-finders, and their task is to weigh the evidence, assess its credibility, and then apply the law to the facts. They law they have the duty to apply is not the law as they perceive it or wish it to be. Rather, jurors apply the law as the trial judge explains it to them. For those who have not had direct contact with real-life trials, it may be somewhat of a surprise to learn that jury deliberations are always preceded by what is sometimes a quite lengthy recitation of the law by the trial judge, setting forth all of the principles that circumscribe their deliberations. Trial judges err in this phase but that is not a matter for the jury to assess. That assessment falls to the appellate courts. For a juror properly to discharge his duty, he must treat the jury charge, the judge's explanation of the relevant legal principles, as gospel.

Where jurors disagree with the law, that should come out in voir dire, but it may come out later, and that's one of the reason alternate jurors typically are empaneled. Just in case it emerges that one juror or another simply cannot abide the law as it is explained to him. To my knowledge, and my ears are still wet I readily concede, for-cause dismissals of prospective jurors are functionally unlimited. Thus, if you empanel fifty jurors who confess objections to USA PATRIOT Act provisions in a case implicating that act, all will be excused for cause either by the court on its own motion or by motion of whichever party raises the matter.

All of that prefatory matter out of the way, I'll take up those questions that remain:

When did "trial by peers" become trial by the 12 jurors I didn't kick off because they were too smart, wise, moral or I just didn't like[?]

I'm not really sure what this means, but it is a common misconception, consistently rejected by every court in the land, that a jury of one's "peers" means people of the party's particular ethnic or demographic profile, moral background, etc. This is a diverse polity, and one's peers aren't just those of one's particular beliefs. Furthermore, the right to a jury typically may be waived. If you don't like the jury pool, you're welcome to proceed to trial with the judge tasked to assess the facts. It's a common practice, and notwithstanding recent alarmism about thenature of judging in this country, in real life judges are overwhelmingly ethical, moral individuals who do their very best to effectuate substantial justice under the law. The vast majority of litigation in this country is straightforward, not terribly loaded politically, and all about common sense.

With regard to your remaining inquiries, to sum up what I've already said, Yes, you may be dismissed from a jury for signaling that you will not uphold the law as related by the trial judge. Indeed, a failure to do so often will be reversible error, and result in the award of a new trial on appeal. And No, you can't sue for this. You are not entitled to serve on a jury at all, and you certainly aren't entitled to serve on a jury just to undermine the effectuation of the law as currently understood by those authorities with the prerogative to interpret the law.

As for myself, I consider it a high honor to serve on a jury, and it would be ridiculous for me to talk myself off a jury based on policy objections to particular laws since I already chose to enter a profession that requires me to vow to uphold the law in my every professional action every day. Indeed, it would be quite a non sequitur for me to take a day off from my job, where I interpret and apply the law every day, just to show up for jury duty and signal to the court, of which I am an officer, that I don't care for the law and won't apply it faithfully.

I'm not saying I can't imagine a situation where my moral commitments might conflict with my professional duty -- indeed, it's very easy for me to imagine such a situation -- but nobody made me become a lawyer, and so typically my sense of duty wins out. I can always get a different job if I don't like what I'm doing; that much is on me, not on anyone else. Nor is it the concern of government, except insofar as I have the power to change the law through democratic action.

Hope this clarifies things, and if I've misunderstood your questions I hope you'll elaborate.

Bush Would Lose in a Landslide to, Well, Pretty Much Anybody

CNN reports that, according to the results of a CNN/USA Today/Gallup poll, Bush would lose -- by sixteen points -- to "a Democrat," not any particular Democrat, just "a Democrat" (ironically, this describes John Kerry rather accurately).

And what happens to those humbers after USA Fitzgerald drops indictments on about half of Bush's inner circle in the next couple of days? Well, I can't imagine the numbers will get any better for him.

Volokh On The Right To Bear Arms

While I think even the "right" to bear arms may be regulated vigorously (even speech is subject to heavy regulation under the time-place-manner restrictions long recognized by the Supreme Court), I've never had the problem with guns that many of my progressive brethren do. Aside from the fact that I've found the historical arguments on both sides about equally persuasive, I also tend toward greater liberty in other areas and see no cause to position myself differently here.

The way to circumscribe any freedom involving lethal risk (like, e.g., driving) is not to bar it entirely, but to regulate it substantially and consistently, and punish missteps mercilessly. You want to play with guns? Fine. But shoot a burglar in your home where there was absolutely nothing warranting fear for your physical safety (say, for example, shooting a burglar whose back is turned and whose hand is on the knob of the back door from thirty feet away) and you've committed murder (again, all of this is in my little idyll, and bears no resemblance to the laws as they currently are, and I know the difference).

Background checks and detailed records including ballistic "fingerprints"? Absolutely. Do you absolutely positively have to kill your husband's mistress tonight? Suck it up.

Ultimately, then, I find myself leaning marginally toward an "individual right" (versus a collective or "hybrid" right) interpretive model of the Second Amendment, but somewhat indifferent to the debate. Notwithstanding my vegetarianism, I'm fine with hunting (although I tend to consider anyone who eats anything she lacks the stomach to slaughter with her bare hands in some sense craven). On the other hand, I have no illusions about there being any real benefits to society inherent to allowing widespread gun ownership. It's not like I imagine the nation succumbing to crime where guns are more heavily regulated. I believe the studies that show that guns beget guns. Violence begets violence, and 99 times out of a hundred the dude really only wants the cash in your wallet -- just give it to him and we all live to fight another day, easy come easy go.

Finally, one of the most common arguments in favor of an individual right concerns the right to preserve lethal force in case of a tyrannical usurpation of power by a runaway federal government unaccountable by any legalistic means, and responsive only to force. Funny -- in this sense, I think the Bush administration has provided the strongest argument in favor of liberalizing the right to possess arms. I can think of no more obtrusive and cavalier administration, no administration more diffident toward and disrespectful of the principles of this nation's founding. So maybe this was part of the plan. Vast NRA conspiracy, anyone?

Anyway, all of this in the way of preamble -- actually, pre-Ramble is more apt -- to me linking a post that pushed me ever so slightly closer to an individual rights intepretive model, a thoughtful, methodical discussion by Eugene Volokh. I don't know that I buy the whole thing, but it's an excellent read in any event.

(For those who have been in the recent discussion here concerning the principle of "incorporation" in constitutional law, there are also some excellent incidental observations on that topic as well.)

If At First You Don't Succeed, Fry, Fry Again

The New York Times today reports:

If all 12 members of a jury in a capital case in federal court cannot agree on whether to impose the death penalty, a convicted defendant is automatically sentenced to life in prison.

But that may be about to change. A little-noticed provision in the House bill that reauthorized the antiterrorism law known as the USA Patriot Act would allow federal prosecutors further attempts at a death sentence if a capital jury deadlocks on the punishment. So long as at least one juror voted for death, prosecutors could empanel a new sentencing jury and argue again that execution was warranted.

The arguments in favor of the change attempt to analogize the fact that either conviction or acquittal of the substantive offense requires a unanimous jury verdict, and that the death penalty should be no different. This has symmetry on its side. On the other hand, however, the article quotes Law Prof Franklin Zimring as saying: "It's not supposed to be a level playing field. It's supposed to be a penalty available when nothing else will do."

Also noted in the article is the constitutionally permissible practice of "death qualifying juries." That is, conscientious objectors to the death penalty identified during voir dire may be dismissed for cause -- predicated on their unwillingness to apply the law due to their principled objections -- thus costing the prosecution none of its peremptory challenges. That practice itself has come in for criticism, and though I'd be lying to say I'm thrilled by it, it does have logic on its side: why should anyone be permitted to serve on a jury who signals she will selectively apply the law to the case based on her own ideas. Yes, one ought to be entitled to a jury of one's peers, but where one's peers are anarchists, say, and reject that murder is a crime, is it really reasonable to insist that they be impaneled? I'm venturing no opinion on this, just making an observation.

But as the Court has said time and again death is different. The degree of certitude required ought to be greater than for anything else in criminal law, and when two, three, or more death qualified juries have declined to impose the penalty, what does that say about the rectitude of its imposition in the circumstances of that case? Furthermore, one can't ignore the psychological trauma presented a defendant by the prospect of serial duplicative sentencing proceedings, which might drag on for years. Even if capital punishment itself isn't cruel and unusual as that phrase presently is interpreted by the Court, it seems to me wholly possible that such a sentencing by ordeal regime could be. Courts put such a premium on certainty and finality in criminal law -- writing the government a blank check to seek a death sentence with as many juries as it takes flies in the face of this mandate (on which are predicated, inter alia, arguments for reducing opportunities for defense appeals, which have made great headway with the evisceration, in recent decades, of convicts' access to habeas corpus and other remedies). And what about the burden on taxpayers: each one of these proceedings costs taxpayer money that might be better spent elsewhere, since it's not just the seeking of the death penalty that costs, but, assuming the prosecution eventually finds a sufficiently blood-thirsty jury to succeed, all the extra appeallate remedies due a person sentenced to death.

Lindsay's also on the case, noting, as well, another disturbing provision buried in the proposed USA PATRIOT Act revision.

(Mr. Pele, perhaps this will trigger the "rights of jurors" discussion you suggested recently?)

UPDATE: Binky noted a deficient link above, specifically the last one linked to the words "disturbing provision." It's been repaired. Thanks for the heads-up, Binky.

Emergency Contraception

Binky aggregates a number of discussions to provide an absolutely stellar overview of various moral inconsistencies, terminological difficulties, and potential legal problems arising from permitting pharmacists to resist, on moral grounds, dispensing the legally prescribable "morning after" pill. I'm still mulling, so I've nothing in particular to say, but if you're interested in the topic this is a must-read.

A Slightly More Robust Test, But Still a Test

So FrightenedMonkey directs attention to BBC's somewhat time-consuming, somewhat challenging, and actually quite interesting test designed to assess your masculine and feminine characteristics. It's way more robust than Quizilla-type garbage, and I am curious with the results.

Here's a nutshell of mine:

On judging relative angles, which gets at the spacial abilities typical of men, I came in quite average among men at 15 ot of 20: "You found this test neither hard nor easy. This suggests your brain has male and female traits when it comes to spatial ability." Based on the rate of success, I suspect that I figured out a surefire trick to get all of these right, since I was slavishly testing my hypothesis for the last dozen or so samples. If I'm right, I could get a 20 next time. But I suppose that's not the point (although I suspect trying to beat tests is, itself, a fairly masculine trait).

At "Spot the Difference," where they give you a minute to review a diagram of a couple dozen objects randomly arrayed and then ask you to determine which object moved in a second diagram, I was utterly mediocre, scoring 36%, slightly under the 39% male average and well below the female average of 46%. This suggests, once again, "a balanced female-male brain."

Next, in virtue of the way I fold my hands I am evidently left brained, hence more "verbal and analytical." There's a suggestive comment on the page about right-brained people being better fighters and artists, but it just offers a hyperlink. I'll assume this is fighter and artist product placement, or maybe right-brained person product placement, and in any case irrelevant. Eff them's what I say.

And here's where it gets rocky: I'm ultra-melodramatic, totally caught up in the actual or conjectured emotional lives of people I know and random strangers, constantly putting myself into other people's shoes, yet I'm graded a hair above the male average for empathy. Bah, this test is flawed. I wish I were less empathic, to be honest; it eats me up sometimes this worrying about people I don't know for reasons partially or wholly imagined. Silliness.

At "Systemising," on the other hand, I begin to excel, scoring a whopping 17 out of 20, crushing the women (8) and the men (12.5). This, evidently, "suggests you're good at analysing or building systems." Then the study goes on to posit a link between empathy and systemising, which further suggests their empathy test is flawed. Bitches.

In evaluating several subject photos of eyes and considering what among four offered emotions applies, I earned 8 of 10; women and men both average 6.6. According to this, "Your result suggests you are a good empathiser, sensitive to other people's emotions." Yet more evidence that the dude who wrote the empathy portion of the test ought to be dragged outside and shot. Or whatever the British have as an equivalent. Which would probably be the same thing, but boiled and entirely devoid of flavor.

The study also notes that "Men often think a person's eyes are sending signals of desire when that's not the case at all." I'd just like to point out that desire was only an option on one or two photos, or else that's how I would have answered all of them. The girl photos anyway.

Then there's the whole finger-measuring thing, which suggests a) I got a healthy dose of testosterone in the womb and b) somehow, one ring finger got a lot longer than the other. I blame years of rock climbing, after which I'm just lucky to have all my fingers.

I also prefer feminine faces.

There was another spatial test, too, where one had to choose a couple of three dimensional shapes that were identical to, but rotated differently than, an index shape. Moon, in typical bad-ass fashion, scored a perfect 12 out of 12. "Are you an engineer or do you have a science background?" asks the test? I drop mad science.

Finally, on the verbal portion of the test, calling for a sort of free association designed to generate words, I'm evidently so girlie it's scary. Male type brains typically come up with 1 - 5 words. Female type brains with 6 - 10. I came up with 18.

The net result. On a spectrum with a midpoint of zero and 100% gender extremes on each side, I fall on the 25% male mark, which is half as male as the average, you know, male. Which might explain a lot. But I'll still kick anyone's ass at rotating shapes, just watch me.

Enough of this.

Go visit Frightened Monkey's discussion and critique. Or just take the test.

Who's Your Daddy?

Care of Bloodless Coup (and others), my "Blog Daddy," this whimsical effort to create a geneology of the Blogosphere. If the refresh rate or whatever for the compiling blog is any indication, lots of people are turning in their info, so something tangible might just come of this.

Jump in, provide your info, and spread the meme.

Zombie Preparedness

Pittsburgh makes the international news, with Tom Murphy's acknowledgment:

"When it comes to defending ourselves against an army of reanimated human corpses, the officials in charge have fallen asleep at the wheel," Murphy said. "Who's in charge of sweep-and-burn missions to clear out infected areas? Who's going to guard the cemeteries at night? If zombies were to arrive in the city tomorrow, we'd all be roaming the earth in search of human brains by Friday."

And In the Spirit of Fun, DINGO

Chapter 7 is up. Delicious pulp. Funny that a genre I've never had much use for is drawing me in when serialized and presented in this fashion. To be fair, Michael Alan Nelson may just be bringing something extraordinary to the form . . . . In any event, even at 7 chapters, it's not too late to jump in. Each installment has been fairly short, and the online equivalent of a page-turner.

Ryan's Providence

It's been so damned serious here, of late, that I need to lighten the mood a bit. So here: this is dear friend Ryan's photo tour of the mansions in Newport Rhode Island and, um, some other stuff.

A perfect diversion on a rainy Tuesday.

Creationism Ed is to Sex Ed as . . .

. . . apples are to oranges? Really?

Maybe not. As I understand the debate, those parents who argue for open discussion of creationism (I reject its nom de guerre, intelligent design, as a hollow tactical gesture and thus misleading, as I've yet to encounter a non-Christian who argues that ID, as such, has a place in the science curricullum of public schools) base their argument on two general principles:

1. They are entitled to have their personal belief systems, which they hope their children will share, reinforced in school in an appropriate context rather than undermined by a differing account of the origin of life.

2. Creationism, as a competing account of the origin of life, belongs beside evolution in the science curricullum.

Now, as any regular readers know, I reject this position to the extent the "competing scientific account" goes no further than evolution's wrong 'cause it says so in the Bible. Whatever else that may be, it isn't science, and in science as in other areas of learning at a younger age, it's the patterns of thought as much as their objects that are the focus of education. To make such a statement in the context of a science class, and thus at least tacitly suggest that such an account is scientific, is to undermine the enterprise of instructing children in rigorous enquiry in the tradition of the scientific method. I express no opinion as to whether creation may be taught in public classrooms where the general subject matter is history, theology, or philosophy. But while robust, scientific, peer-reviewed critiques of Darwin have their places in science classrooms, when taught in light of those qualities, that's not what most parents are seeking, no matter what they call it. They want their faiths reified, they want to pound the lectern against Darwin without doing the hard work of falsifying evolution by scientific methods, and this is inappropriate for reasons constitutional, epistemological, pedagogical, and philosophical.

But now parallel the above beliefs with a more liberal "faith" regarding the value of sexual education (involving, in particular, honest discussions of pregnancy, sexually transmitted diseases, and all legally available methods of birth control):

1. Public schools are where people develop into young citizens, and as such they are entitled to learn of all matters, good and ill, that bear on their citizenship (a premise that Christians appear to agree on; it's implicit in their urgency on the creationism issue).

2. It is a matter of fact that most kids will become sexually active during their teen years, like it or not, and to the extent I cannot prevent this, I at least believe that it's necessary to ensure that to the extent they do this they must do so from a position of information. Even if I am not a parent, this matter, as one affecting public health, is important to me.

3. On such an important matter, I am entitled to have my convictions reinforced in school, as a further gesture toward ensuring that children understand the tremendous importance of this matter and behave responsibly.

The above is very sketchy, very reductive, and intended only to set up the following thought experiment:

While parents seek to have creationism taught in the (science) classroom based upon their claimed right to have their convictions reinforced at school, manifesting their belief that it's not enough to instil principles of faith outside of school but that their children's godliness requires never being exposed to any competing account of life's origin without immediate strident opposition, so do other parents seek to have (full and candid; perhaps encouraging abstinence, but not turning a blind eye to its widespread eschewal by children) sexual education taught in schools for the same reason, to have what they deem important reinforced in the classroom.

And yet many, probably most Christians pursue the former but adamantly oppose the latter. The question is: on what authority? This is an invitation to discussion; I'm open to the possibility that I've committed some sort of logical misstep, but at the moment the two seem clearly similar to me. Especially if, as one reader has suggested, to be non-Christian is to hold with the faith of Secular Humanism. If that is true (I still think it is not), then my progressive views of sex ed are a product of my "faith," and I should be entitled to have sex ed taught in schools for precisely the same reasons parents seek to have creationism taught in schools.

Majikthise in Waterloo

So Lindsay Beyerstein took a field trip to Travis County to photo-document and blog Tom DeLay's perp walk on various charges. Bugman has the right to remain silent, as they say, but it doesn't seem to have diminished his shit-eating grin. Check out her album; it ought to be a previous moment for the left, even if it represents only the tip of the iceberg.

See her writings here, here, here, and here.

Her photo album of the event is here.

Regarding the Establishment Clause

One of the annoying things about Blogger is that it sends comments posted to your blog to an email account of your choice, but doesn't flag which post the comment corresponds to. Usually, as people tend to comment to the recent stuff, this isn't a big deal. Tonight, however, I received a comment via email I simply cannot track down in its original context. I wanted to respond, however, so I'm doing it this way.

In response to some earlier post on this site, reader MarkPele writes in full:

As a wise political science professor (a Dr., not a high-school civics teacher) said, to remove religion from the public sphere is not inherently neutral.

There is a religion that rejects other religions - secular humanism. It is a legal religion in the U.S. (it's institutions get tax breaks). Thus, removing religious symbols from the public sphere is, by definition, an establishment of a national secular humanist religion, which is a violation of the first amendment.

The quick and dirty answer is that the establishment clause, AS THE FRAMERS INTENDED, was not a separation of church and state, but was a forbidding of choosing a single Christian denomination above another. Many states at the time of the signing of the Constitution (and the ratification of the Bill of Rights) had clauses establishing particular Christian sects as the state religion, and thus there can be no question that the intention of the Bill of Rights was not to create a government afraid to mention religion of any form. If that were true, the ratifiers could have been sued under the individual states' constitutions.

A few thoughts Mark, and I thank you for your thoughtful statement of what I imagine is disagreement. There are a few incomplete syllogisms in the above comments, and there's one glaring betrayal of ignorance of the law. So I suppose wisdom is in the eye of the beholder, although I'll concede there's a kernel of truth, and a pithy appeal, to what the wise old professor you described says.

First, I think it's plainly the case that to remove religion from the public sphere is neutral in at least one regard: it neither burdens nor benefits any one religion over another. That is a fundamentally neutral quality. Of course, it looks very different if you are operating from a baseline assumption that Christianity enjoys some degree of privilege in the United States. And it does historically. So does slavery. So does denying the franchise to women. We moved past those things in the interest of greater equality, largely by imposing equal civil rights, equal treatment, to all. Another expression of neutrality. With the myriad of legitimate religions vying for time and space in the public square, however, such neutrality is far more difficult to positively impose in the religious sphere. So instead over the past two centuries our government has moved to affect neutrality negatively, by declining to feature religious expression in government spaces and documents and in the law. This is perhaps inconsistent with the original understanding to some degree, albeit to a lesser degree than you seem to think for the reasons that follow, but again so is the abolition of slavery and granting the franchise to women inconsistent with the original understanding. I don't hear you or anyone else on the originalist side arguing for a rollback of these defining moves forward.

Although I cannot speak conclusively to whether secular humanism is a "religion" under the law as you claim, I can speak with certainty that your sole supporting datum, that secular humanist organizations are granted tax-exempt status, does not conclude the matter. Many non-religious organizations receive tax exempt status. You're going to have to do better than that.

Finally, though your comments regarding the status of Christianity at the time of the Framing are largely consistent with my limited knowledge of the historical circumstances obtaining at that time, and while it may furthermore be the case that the Framers, or some of them (one of the problems with originalism is that the Framers pretty clearly disagreed about the import of various constitutional provisions and diverged in their goals for the nation they sought to form), intended the Establishment Clause to restrain the federal government from picking sides in the interstate battle over which sect of Christianity was to dominate, that hardly leads inexorably to the conclusion that "there can be no question that the intention of the Bill of Rights was not to create a government afraid to mention religion of any form."

First, NB, my points regarding ascribing a unitary intent to a collectively crafted document. Second, nobody has said anything about a government being precluded from mentioning religion in any form. Third, and most importantly (herein lies the glaring ignorance of the state of the law), what the First Amendment may have meant at framing a propos the federal government has since been "incorporated" by the Fourteenth Amendment as applicable to the states. This matter of incorporation has been sustained by Courts liberal and conservative; it is among one of the more solid precepts of modern constitutinal law.

What does this mean? First, it means that the relationship between state governments and the First Amendment was radically changed by the passage of the Fourteenth Amendment. Why? Because the Supreme Court, the body charged with interpreting the Constitution, said so a long time ago, and has continued to say so ever since. Second, even if you are correct that all the Establishment Clause originally aimed to do was to restrain the federal government from involving itself in, or concluding, differences between the states regarding intersectine squabbles among Christians, that same restraint now, as a matter of constitutional law, has been held -- and for some time -- to apply to state governments as well. Thus, even if the predicates for the original language have changed somehow, the fact remains that you appear to grant that the Establishment Clause affirmatively restrained the government to which it was drafted to apply from involving itself in religious squabbles. Now, that same Claue applies to state governments, and affirmatively restrains them in the same way.

If you don't like it, pass an amendment. But I don't think you can. Which means that self-described red-blooded Americans (whose idea of freedom is privileging their own parochial views over those of others (even to the extent of implying that those who disagree with them are less worthy of the title "Americans"), notwithstanding that this country is, to a person, a nation of immigrants with equal claim to its privileges and freedoms) aren't quite as numerous as they'd like everyone to belief.

I'm reminded, oddly, of a bit of verse from Wallace Stevens, with which I will leave you:

Bantams in Pine-Woods

Chieftain Iffucan of Azcan in caftan
Of tan with henna hackles, halt!

Damned universal cock, as if the sun
Was blackamoor to bear your blazing tail.

Fat! Fat! Fat! Fat! I am the personal.
Your world is you. I am my world.

You ten-foot poet among inchlings. Fat!
Begone! An inchling bristles in these pines,

Bristles, and points their Appalachian tangs,
And fears not portly Azcan nor his hoos.

Don't ask me why this poem seems a propos. I just work here.

Tonight @ Havana, Etc.

BROTHER MIKE - 10pm & 1am - Deep Soulful House Music.

COUNT ZER0 - 11pm to 1am - Frank holds it down as the tuesday resident at the z lounge in the southside, He's been a staple in the pgh music scene from way back and he goes out and promotes his own gigs. That's always cool in my book.

NO COVER / 21+ / I.D. Required
$2 Yuenglings & $3 Mojitos

Peace,

Jason C.
Club Havana
5744 Ellsworth Ave.
Pgh (Shadyside) PA 15232
412 661 2025

Pick of the week:

Saturday October 22nd
7 - 11pm
SPACE GALLERY
812 Liberty Avenue.

The closing reception of STATIC FREE featuring NORM TALLEY - [Beatdownsounds: Detroit, MI.]

The official after party for this event will be at CLUB HAVANA
11pm to 2am
featuring more NORM TALLEY

Both events are free
There will be free beer at the SPACE GALLERY.
Sadly though you have to pay for beer at HAVANA.

On This Day, 32 Years Ago . . .

Everybody remember the "Saturday Massacre?" Okay, neither do I -- I was still months away from being born. Even so, it's almost like we do remember it, so fiercely is it seared into this nation's political consciousness.

And probably the only question right now is just how far away from this are we (temporally, not factually, since factually we know that something is going to give, and soon)? No doubt the rats are going to be armed and firing over their shoulders as they flee the ship . . . . Should be good fun to watch, but for the whole destroying-the-United-States-government's-credibility-in-the-eyes-of-the-entire-world-including-that-of-its-own-citizens factor.

Even so . . . I'll bring the beer. Somebody else is in charge of popcorn.

"Meet Me Tonight In Atlantic City"

Sorry folks, but that title bears almost no relation to this post. It's just the refrain that's been in my head ever since I ushered out last house guests by following three hours of funk and hip-hop with Springsteen's "Nebraska," a nice reprise for the night and just generally a beautiful CD I can't believe it took me this long to buy.

It also was the refrain occupying me this morning as I rode to work, bundled up, in full-fingered gloves for the first time this autumn. The wind was crisp but welcoming; traffic was unusually light along Butler Street; Sue and I were getting along fine.

I was weaving my way between traffic and parked cars at moderate speed as I approached Butler's bend to the right at Main Street. A truck was parked against the right curb, and cars, as they idled past it, were leaving very little space for me. Thus, as I approached, I started creeping out into the lane. The quarter panel of a silver Buick was in my way, and with a typically misguided sense of style over substance, I was determined to time the Buick's bumper's passage of my front wheel for mere a split-second before I reached the truck's rear bumper, black and curled by untold impacts and just generally unpleasant-looking.

My timing was impeccable: resisting the pedals gently once or twice and otherwise holding speed, I created a slot for myself behind the Buick just as we reached the truck. The car, however, slowed unexpectedly, and I had no time to react. There seemed to be just enough room between the car and the truck, and so I attempted to skip her tire and jig Sue to the right to enter the narrow opening.

The pedal letting go of my foot made virtually no sound, just a near inaudible snick, and all at once I was entirely overbalanced at the rear corner of the Buick and about to hit something just hard enough to dent and hard enough to hurt. Amazingly, I found time to entertain the stray conjecture, entirely untrue, that my impending fall was a consequence of riding brakeless.

Then, a little thing: my fully glove left hand, seemingly of its own accord, reached down to stabilize me, now going just a few miles an hour like the Buick close beside me, against the car's rear panel. And everything was fine.

It's funny the strange taboos we create for ourselves. This wasn't the first time using my hand might have mitigated a dangerous situation. But it was the first time the situation was sufficiently desperate that I could disregard my suspicion that using hands on cars is likely in the long run to provoke angry responses and confrontations, none of which I need (the road being a dangerous enough place when drivers aren't angry with me). Even after I found comfort in the car's solid curve, blew out my held breath, unhanded the car and accelerated past the truck and back on my way, reclipping my foot in the process, I expected to hear someone honk, either the Buick who surely must have observed me impossibly close to the perimeter of his car in a rearview mirror, or perhaps one of the cars behind who witnessed my precarious folly followed by my quiet incursion of the borderland between bike and automobile.

But no one honked, and it occurred to me that, as clumsy as I felt, there probably was an elegance to what I had done, a physical poetry, contingency and response in a fraction of a second.

And the whole thing as simple as reaching out a hand to steady myself against another moving target.

A Failure of Democracy

Frightened Monkey shares my misgivings (or I, his) about what's happening lately:

I used to say, even about Bush II, that while there are some bad apples, overall the Republicans are trying to do what they see as the right thing. I may completely disagree, I would say, but maybe there’s a compromise position for all of us. Now I’m not so sure. I want to see the Republicans who think that the stench of corruption surrounding the party leaders is cloying and noxious, but they don’t appear. The closest we have to dissent amongst the conservative ranks is dissension about the Miers nomination. This is a failure of democracy.

Of course it's worth noting that even the conservative groundswell against the Miers nomination isn't really about some high conservative principle, it's about the failure to pander to a particular minority segment of the Republican base, about the failure to capitalize on Republican power by appointing the youngets, most rabid conservative available. The entire post is a worthy read, and should remind Democrats that victory at such a cost is nothing to celebrate -- assuming victory even follows these serial revelations of misconduct.

Why I Don't Read the Trib

Today, stuck waiting for a falafel with nothing to read but some copies of the Tribune-Review, Pittsburgh's "other" paper, the one owned and mismanaged by our own local wingnut extraordinaire, Richard Mellon Scaife, I caught too notable things in the paper.

First, this Midweek Briefing, which runs directly beneath the Editorials, contains something so unconscionable I was nearly speechless:

The Boston Herald says Teddy Kennedy tried to save six fisherman stranded on a breakwater near his Hyannis compound on Sunday. Rough waters forced him to turn back. A rescue official says Mr. Kennedy was familiar with the water and "thought he would do the right thing." Thirty-six years too late, some might say.

Seriously, I feel dirty just reading stuff like this. I mean, I try not to use the word "shameless," just as I try not to use the word "hate," but in this case I must say that I hate, nay, despise this shameless pandering to a fringe of the right so pitiful that they have to dredge up non-scandals from 36 years ago to tear down one of this nation's great public servants (love his politics or hate them, he's done more for this country, and for his constituents, than most people can imagine).

Then, a surprise (because frankly the above disgrace is not at all surprising): I'm pretty sure I actually agree with the Pat Buchanan column run in the paper today (and it's worth noting that Buchanan's syndication in the paper is another reason to refuse to read it). In the column, Buchanan castigates Bush's faith-based presidency, alluding to Bush's apparent unflagging faith that democracy in itself cures all ills.

Speaking three weeks ago to the 20th birthday conclave of the National Endowment for Democracy, Bush recited the true believer's creed: "If the peoples (of the Middle East) are permitted to choose their own destiny ... by their participation as free men and women, then the extremists will be marginalized and the flow of violent radicalism to the rest of the world will slow and eventually end."

Upon this faith Bush has wagered his presidency, the lives of America's best and bravest, and our entire position in the Middle East and the world. But as the Los Angeles Times' Tyler Marshall and Louise Roug report, U.S. field commanders George Casey and John Abizaid are skeptical that any election where Iraq's Sunnis are dispossessed of pre-eminence and power will ensure an end to terror. It may, they warn, bring new Sunni support for the insurgency.

He goes on to enumerate a few of the many data points defying Bush's faith.

But the most sweeping challenge to President Bush's faith-based war comes from F. Gregory Cause III in Foreign Affairs. Writes Cause: "There is no evidence that democracy reduces terror. Indeed, a democratic Middle East would probably result in Islamist governments unwilling to cooperate with Washington."

In Egypt, Saudi Arabia and Syria, anti-American Islamists seem positioned to seize power should it fall from the hands of the authoritarian rulers the National Endowment for Democracy and its neoconservative allies seek to destabilize and dump over. If Cause is right and Bush wrong, the fruits of our bloody war for democracy in Iraq could mean a Middle East more hostile to American values and U.S. vital interests than the one Bush inherited.

That would be a strategic disaster of historic dimension.

Not only does democracy offer no guarantee against terror, writes Cause, democracies are the most frequent targets of terror. Not one incident of terror was reported in China between 2000 and 2003, but democratic India suffered 203. Israel, the most democratic nation in the Middle East, endured scores of acts of terror from 2000 to 2005. Syria's dictatorship experienced almost none.

Researching 25 years of suicide bombings, scholar Robert Pape found the leading cause was not a lack of democracy, but the presence of troops from democratic nations on lands terrorists believe by right belong to them.

The United States was hit on 9/11 because we had an army on Saudi soil. Britain and Spain were hit for sending troops to occupy Iraq. Russia was hit at Beslan because she is perceived as occupying Chechnya.

All of this sounds about right to me in most respects. Of course, it's worth recalling that this supposed faith is a rhetorical device, something we heard very little about until the WMD rationale for the war collapsed under the weight of the administration's lies and wishful thinking. It seems likely, however, that the rhetorical device has become a cart before its horse, as Bush more and more subscribes to and seeks to universalize his own post hoc rationale. In any case, an interesting read. And if anyone want to point out why I shouldn't like this column at all, I'd be happily indebted. I don't like agreeing with Pat Buchanan about anything.

Of Babies and Bathwater . . .

And now the other shoe drops. I'm unabashedly against teaching intelligent design as science in public schools, though I have endeavored with varying degrees of success to distinguish that position from my strong support for the teaching of any rigorous objections to evolutionary theories in themselves. That's science, in my view, and accepting darwinist accounts as dogma is no less, er, dogmatic than swallowing the Genesis account whole.

But now it appears the ripple effect is hitting legitimate science closer to home. The Times reports that neuroscientists are raising strident objections to the Dalai Lama's planned attendance and participation in a conference to talk about studies concerning the effect of Buddhist meditation on brain states, aimed at testing hypotheses pertaining to the degree to which compassion and related emotional states might be learned, or enhanced through various meditative practices.

The protests seem to proceed in two directions: 1) Ewww, you put religion in my science (recalling the old Reese's commercials); 2) The science is bad.

It appears to be the case that even the proponents of the studies concede that the particular research at issue is flawed and is in its infancy as an area of study. Furthermore, the study was conducted in the way that such studies are. That it requires more examination is hardly a reason to bar presentation of results, especially in a climate of open and rigorous debate. All of these things -- the acknowledgment by proponents of the data's weakness as yet; the willingness to engage honest scientific debate -- distinguish this from the debate about teaching creation science (by whatever name) in public school science classes. If it's weak science fairly discussed, it will be betrayed as such. That's what the scientific process is about, and a substantial reason conferences such as these take place to begin with.

Then there's this sort of inanity:

"Neuroscience more than other disciplines is the science at the interface between modern philosophy and science," wrote one neuroscientist on the petition, Dr. Zvani Rossetti of the University of Cagliari in Italy. He added, "No opportunity should be given to anybody to use neuroscience for supporting transcendent views of the world."

Correct me if I'm wrong, but isn't this something like saying, "Organic chemistry, more than any other discipline, is the science of the interface between carbon and other elements. No opportunity should be given to anybody to use organic chemistry for supporting views of the world involving Oxygen."

The bottom line is that scientists pursuing answers who come up with problematic results are still scientists, their work still science, and this conference is an aspect of the sort of peer review that keeps the discipline honest and sorts the wheat from the chaff. I honestly don't understand what the debate is about here. What I fear, however, is that soundbite journalism is making it harder and harder to have an intelligent debate about anything. Because if this is the sort of syllogism a public dogfight over creationism instantiates, then the pace of the advancement of human knowledge is going to slow to a crawl. That would be a shame.

(It also seems to me I've seen repeated reference, over the years, to studies claiming to tie prayer practices with various salutary effects, including decreased incidence of depression, extended lifespan, and so on. Why haven't these studies created comparable brouhahas? Consistently with what I wrote above, if such studies were rigorously conducted in accord with contemporary research protocols, I'd have no problem with their promulgation and discussion.)

The Plame Game

With the grand jury's term ending October 28, it's indictment season (baby!). What, exactly, Special Prosecutor Fitzgeral intends to do is anyone's guess, but Hilzoy uses the occasion of a Washington Post article suggesting that the inquiry is zeroing in the Office of the Vice President (whether Cheney or his top staffers is unclear), and, drawing from a couple of sources, offers an incisive account of how the outing of Valerie Plame was the worst sort of sandbox treachery. I urge you to read it, and the sources from which Hilzoy draws.

UPDATE: I'm just thinking out loud here, but is it possible that Karl Rove is powerful enough to make Cheney a fall guy? Just wondering . . . .

UPDATE 2: Apparently I've been working too hard, because I'm kind of behind on this whole thing. For more glib discussion, and more sourcing on the Cheney angle, check out Wonkette, TPM, or -- shiver -- the New York Daily News.

If Abortion Shouldn't Be the Law, Then Why Endorse an Amendment?

I want to be clear at the outset that this post is offered in an impish spirit of devil's advocacy. The New York Times reports that, in a 1989 questionnaire, Harriet Miers indicated that she would actively support a constitutional amendment banning abortion except where the mother's health is threatened.

As a candidate for a seat on the Dallas City Council, Ms. Miers answered "yes" to the following question: "If Congress passes a Human Life Amendment to the Constitution that would prohibit abortion except when it was necessary to prevent the death of the mother, would you actively support its ratification by the Texas Legislature?"

Ms. Miers answered "yes" to all the organization's questions, including whether she would oppose the use of public money for abortion and whether she would use her influence to keep "pro-abortion" people off city health boards and commissions.

Ms. Miers also said she would refuse the endorsement of any organization that supported "abortion on demand," would use her influence as an elected official "to promote the pro-life cause," and would participate "in pro-life rallies and special events."

Here's my question: Isn't an accession to constitutional rulings upholding abortion a prerequisite to taking a position that assumes the necessity of a constitutional amendment to modify the law in that arena? To argue otherwise, roughly speaking, is akin to a criminal suspect maintaining his innocence in fact, but asking what sort of deal the prosecutor is offering.

The position in support of the amendment, of course, is one held by many people who clearly believe that Roe and progeny were wrongly decided in the first instance and ought to be overturned. And that's not an entirely inconsistent position, inasmuch as an amendment would end the debate and obviate the Court's prerogative to revisit the issue every few decades according to evolving public mores or other vicissitudes invoking its consideration. Nevertheless, it's a difficult rhetorical position to justify on paper (and hardly the only one in the conservative canon).

And as long as we're considering untenable rhetorical positions, the article also offers this gem (which I've seen, but not posted on, before):

But Ms. Miers also took a position that upset some conservatives during the 1989 campaign, saying that she supported equal civil rights for gay men and lesbians, although she did not support repealing a local ban on sodomy.

This suggests that, contrary to a great deal of precedent of which Roe is only one small piece, she doesn't believe sexual freedom is a "civil right." That is, if we assume her use of such terminology to be rigorous and informed. The alternative, that this is mere sloppiness on her part, suggests that as of sixteen years ago she lacked the discipline of terminology even a savvy law student possesses with regard to constitutional law. And what has she done since then to suggest her constitutional positions have evolved to attain a greater degree of refinement? Bupkus. Nada. Nothing.

Further undermining my confidence that Harriet Miers can speak competently on pressing issues is this report:

Senate Judiciary Committee Chairman Arlen Specter said Monday that Supreme Court nominee Harriet Miers told him in a private meeting that she believed the 1965 case of Griswold vs. Connecticut -- a landmark ruling establishing the right to privacy -- was "rightly decided."

However, after the White House took exception to Specter's comments, the Pennsylvania Republican late Monday released a statement saying that Miers later called him to tell him that he had "misunderstood" her answer -- and that she had not taken a position on either Griswold or the right to privacy, the legal underpinning for the 1973 Roe vs. Wade decision legalizing abortion.

Specter's carefully worded statement did not withdraw his comments about Miers discussing Griswold with him, nor did it offer a correction. However, the statement said the chairman accepted Miers contention "that he misunderstood what she said."

On a related note, another Times article reports that Senator Schumer (Supercilious--NY) claims Miers could not speak clearly on Griswold and Meyers v. Nebraska, a seminal 1923 case concerning parental fundamental rights to educate their children thought to have contributed to the Court's evolving jurisprudence finding a constitutional right to privacy -- a case, as Senator Schumer noted, that any diligent law student can discuss with some aptitude after a couple of months of Con Law.

"I didn't learn answers to so many questions," he said. "On many she wouldn't give answers, and many others she deferred, saying, 'I need to sort of bone up on this a little more,' 'I need to come to conclusions.' "

So apparently the crash course in con law isn't going so well. And apparently Miers isn't coated in the same vaseline Chief Justice Robert was. She better lube up right quick, or else she's in for a world of hurt on the Senate floor. Schadenfreude, anyone?

Housekeeping: Blogroll and Suggested Reading

Yesterday, after reorganizing and pruning my bookmarks for export to my new computer, I revisited my blogroll, which seemed a bit lengthy. Sure enough, I found things there that had fallen off the bottom of my reading list, and so I removed them. (If you are one of the ones removed, and you link to this blog, I apologize -- please drop me a line and I'll be happy to restore you.)

Also yesterday, Majikthise was kind enough to link here again. I'm pretty sure MOP's two biggest traffic days are the two days she has done so, and I'm grateful for and flattered by the traffic.

In that same vein, she recently encouraged her readers to read Effect Measure. The weblog largely addresses itself to public health issues with what seems a sober and incisive voice. Given all the guff out there that passes for health policy news, and in light of the H5N1 avian flu stuff presently at the center of the MSM spotlight (it'll pass, the coverage that is, unless and until the beast is unleashed through regular human-to-human contagion), which is well worth watching but not by reference to anything that thinks in terms of column inches or Nielsen ratings, this site promises to be an excellent resource.

On a personal note, I also intend to read Effect Measure's series on George Lakoff in advance of reading some of Lakoff's own work. He's too important to the contemporary left for me to know so little about him, and that needs to change.

In any event, Effect Measure is now on my blogroll under Policy. Enjoy.

This House Is Home 6

9/3/05

It started harmlessly: I plugged in the mower a friend had donated to the cause and trimmed the surprisingly long grass in my postage stamp of a backyard, after first digging out of the grass a disheartening amount of broken glass and assorted debris.

Nearest the house, the yard consisted all but exclusively of weeds in all their adaptive glory. Cobbles and unsounded pits deterred me from mowing there, and so as I coiled the extension cord and stashed the mower I eyed suspiciously the low tangle of tenacious undergrowth at the edge of the lawn.

Still, though, today wasn't about perfection. I am still performing home maintenance strictly in gross, noting smaller, more intensive projects for later attention as I move from the cutting of one broad swath to the next.

The grass had clumped; using a holdover rake found leaning against the house (and mine mine mine due to the familiar childhood principle of "electricity!"), I managed to cover about a quarter of the yard before the rake snapped off with the laconic crack of rotten wood.

By hand, I bagged the biggest remaining clumps and tried not to dwell. My lawn won't be winning any prizes this year. Or, I imagine, ever.

To finish, I found a second-hand broom black of bristle on my side porch, suitable at least for clearing the clippings from the concrete walk that tracks obliquely from back porch to the alley gate at the far end of the yard.

Then I noticed the degree to which weeds had burst through the walk's expansion joints and crawled over the edge onto the walk like bathers rolling out of a pool.

When I began uprooting the weeds from the walk, I was lost, uncharacteristically indifferent to dirt and bugs, removing my right-hand work glove to free my fingers to exhume more effectively the root systems and soil.

When the walk was cleared, however, came the thicket at the foot of the yard and the ornate cobblestones at its fringe, suggested rather than visible by a hint of orthogonality under years of undisturbed weeds and matted grass.

An hour later, fingers filthy and sore and back stiff from stooping (the first sign of my advancing age to visit regularly), the area had been reduced chiefly to naked soil, the cobbles exposed and becoming, and a thirty-gallon bag full of weeds and soil.

It was the fingers in the dirt, my unflinching indifference to the scatter of displaced potato bugs and beetles, that revealed another aspect of the transformative power of proprietorship. Until today, I hadn't mowed a lawn in over ten years (and then begrudgingly), hadn't weeded, like, ever, and hadn't cared for soil and aeration and the purity of its stock ever. And yet I delayed dinner, used up every available moment, in lingering in the garden, fingers submerged to the first knuckle in the aromatic loam of my newly weeded yard.

Again, my mind wandered to the things I can do to this house. I smiled. I care, and that's the greatest transformation of all.

More McLellan Follies

First of all, apparently in an effort to bolster the case for Miers' confirmation, President Bush hosted six former justices of the Texas Supreme Court at the White House today.

It's not clear whether Justice Hecht was among them, but in general his name has been coming up with an odd constancy -- odd because I can't imagine it's ever before been the case that a nominee for such important office, an evangelical Christian at that, has been so frequently vouched for in public by an apparent present or former romantic partner to whom she has never been married. Personally, I find this strangely endearing, leavening what otherwise has emerged as a lifestyle so spartan as to recall Justice Souter. But it does seem odd that the far right isn't exploring this more carefully. One suspects that the nominee of a Democrat president would be taking it on the chin (so to speak) until the details of any such relationship were out in the open, and then would be roundly condemned if the relationship turned out to have a non-marital sexual component.

Anyway, all of this led me to the transcript of Scott McLellan's press briefing today, which was quite entertaining to read. Highlights follow.

First, this is my favoritest highlight of all, and it camne right at the beginning:

Q Why did the President feel it's necessary to invite these former justices, or sitting justices, to the White House to talk about Harriet Miers? Is he trying to change the debate from the religious preoccupation, which was much discussed here last week?

MR. McCLELLAN: Much discussed where last week?

Who am I? Who are you? Why are all of you waving your hands at me, and what's with all the cameras?

Q The President doesn't want anyone who would legislate from the bench. Can you define that a little bit more? For example, is Brown versus the Board of Education of Topeka, Kansas -- was that legislating? Was Miranda legislating? Was the right to a lawyer legislating from the bench?

MR. McCLELLAN: These are great questions. I'm not the one who's going through the confirmation process. These are questions that will come up in the confirmation hearing process, I imagine. I'm sure the --

Q But I want to know what you are saying. You keep saying --

MR. McCLELLAN: I'm sure that members of the Senate --

Q -- you can't legislate from the bench. Would all of those rulings been wrong under your --

MR. McCLELLAN: And what we mean by it is that she is someone who will strictly interpret our Constitution and our laws, that will not try to make law from the bench. That's what the President means by it.

And that means that she is someone who will look at the facts of a case and apply the law, what the law says, and that's what the American people expect in a Supreme Court justice. And that's what the President has always looked for. He's nominated more than 200 people to the bench. And Harriet Miers has been very involved --

Q Is Roe versus Wade the law --

MR. McCLELLAN: -- has been very involved in that process.

Now, in terms of cases that could come before the Court, I don't think anyone has an expectation that a future judge should answer a question about a case that could come before that Court. A judge should be fair and open-minded and look at the facts of a case and then apply the law.

What you heard from these Supreme Court justices just now was that Harriet Miers is someone who is very fair-minded, and she is someone who will look at the facts and apply the law. And these are all questions about legal issues that she will be answering.

Q But you bring them up. I mean, you --

MR. McCLELLAN: That's right. And she looks forward to --

Q -- keep talking about legislating from the bench. Does that mean that nothing changes in 200 years?

MR. McCLELLAN: Of course not, Helen.

But don't expect me to tell you whether Roe v. Wade is the law, even though notwithstanding anyone's disagreement with it it obviously is the law for the time being. Ditto, Brown and Miranda, God forbid I stand here and just say, yes those cases are the law, and while the Bush administration might not appoint judges who decide cases in the ways those cases were decided, we nevertheless believe those cases by now are the settled law of the land.

For those keeping score, we now do not know where the White House stands on three of the ten or so most important cases decided by SCOTUS in the entire history of our country. Apparently, if any one of them constituted legislating from the bench (as all did), they're bad. Apparently, if any of them were issued by a majority of activist justices (and, for reasons previously discussed here, they all were) they're bad. So the Bush Admin -- again for those drinking along at home -- not only would take away the settled expectations borne of over 30 years of relatively free access to abortion, but also those born of a half-century of jurisprudence under the Fifth and Sixth Amendments to the United States Constitution, and a doctrine precluding school segregation nearly as old and even more settled.

Also notice that now, evidently, Scott McClellan is entitled to the same no-advisory-opinion escape clause as Article III nominees. Not a bad deal at all, folks, not a bad deal at all.

Q John Fund writes an article today saying that several people on a conference call assured religious conservatives that Harriet Miers would overturn Roe versus Wade. You were going to find out if any member of the White House staff was on that conference call.

MR. McCLELLAN: That was not a call organized by the White House, and as far as I've been able to learn, no one at the White House was involved on that call.

Q And is it correct that Karl Rove was the person who asked those two people who made the assurances that sh3 would overturn Roe versus Wade -- that Karl Rove asked them to join?

MR. McCLELLAN: I think it's well-known that Karl and Dr. Dobson spoke about the nomination and about the process. And they had a good discussion. And Karl talked about individuals who know Harriet Miers well, like Justice Hecht, and said that they would be people that probably would be willing to talk about her.

Q And did he say this knowing -- and is the White House aware that Harriet Miers would vote to overturn Roe versus Wade?

MR. McCLELLAN: Not at all.

Right, because Karl Rove has no idea what "Dr." Dobson's talking about, and in any event Bush has no idea what Turd Blossom is talking about. What are the odds that, on this topic, Bush is the last to know?

[Miers] has been rated by the National Law Journal as one of the top women attorneys in the United States . . . .

Okay, this meme is really starting to piss me off. (And the press is eating it up with a spoon: "The National Law Journal repeatedly named her one of the nation's 100 most powerful attorneys and one of the nation's top 50 women lawyers.") Aside from the fact that NLJ is hardly the end-all be-all of legal journalism and attorney assessment, there's also the little problem that NLJ never called her a "top" attorney, as the Bushies keep saying. Rather, in the late 1990's, they identified her among the most powerful attornies in the country. Being an appointee of, and personal counsel to, the governor of one of the most populous states in the union and then following said governor to the White House has a funny way of adding to your power. Doesn't mean you were a good attorney in the first instance. Oh, and by the way, her firm, while big and monied and just fine as firms go, is not Sullivan Cromwell, is not really a big presence on the national radar, and just really isn't all that notable, so enough about that, already, too.

In other news, the President continues to refuse to commit to whether he would continue to permit the American taxpayer to provide a salary to a man indicted for violating a federal law regarding the disclosure of the identity of clandestine federal agents, notwithstanding previous promises to that effect. I guess we'll just have to wait until Turd Blossom -- and maybe Scooter Libby, too -- is indicted to find out.

The prize for Best Non-Answer is earned here:

Q Scott, on Wednesday you encouraged me to look at news reports about scandals surrounding the Texas lottery when Harriet Miers was chairwoman of that commission. And it turns out there are hundreds of news reports from the late '90s covering problems with contracts and kickbacks involving the company GTECH and Ben Barnes. I have a two-part question.

MR. McCLELLAN: Okay.

Q You and the President --

MR. McCLELLAN: See what happens when I encourage you to do things? (Laughter.)

Q Thank you. You and the President are aware of these hundreds of news reports, aren't you?

MR. McCLELLAN: We're well aware of her time at the Texas Lottery Commission. There were problems that did occur there, and she helped clean up the Texas Lottery Commission. She was praised for her work as chairwoman of the Texas Lottery Commission.

Q What is the President's response to those allegations that he put Ms. Miers in charge of that lottery commission to be sure GTECH kept its lucrative contract, and its lobbyist Ben Barnes would not talk about his alleged influence concerning young George Bush and --

MR. McCLELLAN: Our responses to those questions have already been addressed and disputed. And I think we don't need to rehash those issues.

Evidently, an utterly unsatisfactory answer during the 2004 campaign to allegations regarding favors perhaps called in to keep Bush out of military service is doing double-duty, because as best I can tell that's what McLellan means when he says "those questions have already been addressed and disputed." What a two-fer!

A propos spending:

We've put a lot on the table in terms of savings -- some $20 billion in savings when it comes to discretionary spending, and then some nearly $200 billion over the next 10 years in mandatory spending. You need to address both.

So there's a full $220B "on the table?" Gee, that's great. That should pay for . . . um, about half of the war if we're lucky, and less than the bill for Katrina when all is said and done. Over ten years, no less. Sounds peachy to me.

And finally, out of order, the punchline:

The election that took place in Iraq this weekend was a milestone for the Iraqi people, and it is also a hopeful moment for peace in the world, because the Iraqi people are showing through their determination and courage that they are going to continue to defy the terrorists. The Iraqi people going to the ballot box in large numbers and freely expressing their views stands in stark contrast to the vision of the terrorists, which is simply one of killing innocent civilians and causing chaos and destruction.

I'll say!!!