A few productive minutes of Roberts Hearings

I caught a few minutes of the replay of Sen. Feingold questioning Judge Roberts, and you know, it was pretty interesting. And, not useless. (1) Feingold had some good evidence that some the writings the Dems were using actually was Roberts' own opinions (personal cover notes, personal testimony to Congress when he was in private practice).

(2) Roberts said a telling thing -- he seemed (though I don't think there was a follow-up on the point) to suggest that the core reason for habeas corpus appeals was to determine innocence (Roberts cited an article by his former boss suggesting the appellate process was amuck, and the actual innocence of the defendant was basically ignored in honor of playing the "let's have another appeal game").

But, there are many reasons for habeas, which determines the authority to hold the prisoner. The prisoner need not necessarily be innocent to be wrongly held. If a person had incompetent representation, are we not to worry about it, if (in the appellate judge's view) the defendant was "innocent?" No. One can't put too much into a passing comment, but it got my attention.

(3) We have another person who didn't like the old more liberal days, but tells us not to worry -- the law changed. In fact, the law changed to a conservative direction, which means they are actually "mainstream" now! This really isn't too appealing -- in various ways, the law should actually should lean the other way again, and a strong believer of the status quo is not an ideal choice. And, you kinda know his leanings when he could not even admit that innocents were saved by the appeals process -- upon questioning, he said the claim was able to be heard.

(4) Decision assignments are done at least to a degree strategically. Legal experts and court watchers have noted the fact. The idea he will suddenly not use the power to assign in this fashion is not really to be taken seriously. I think more should be said actually about Roberts' CJ potential. Seriously, we really don't know what sort of leadership he will bring.

And, no, I'm not with those who think the position is not really relevant. Not to be exaggerated, yes, but do not tell me Rehnquist did not use his role to steer the Court in a certain direction, just as Burger tried to do, and Warren did as well. I simply don't know, and this is different from his role as a justice alone, what sort of CJ he will be. Rehnquist followed the tone of his associate justice in many ways. Warren was governor of California. How do we judge Roberts?

(5) Roberts is on record saying a new federal intermediate appeals court to handle errors below was a moronic idea and the true problem was that there was too many appeals in the first place. This alone would cause one person I know to oppose the guy on principle. Not that she needs much pushing.

But, since Feingold supports the like of Ashcroft, will he just vote for Roberts anyway for the sake of comity? Also seen: Clark/Feingold for 2008 tickets. Well, Russ does sound like my sort of guy, except when he's not, you know.

Today's Moron

Family Guy has not been good lately. Today's episode went downhill after a pretty good first half, along with a Gilmore Girls joke (though its off-color theme reflects the show's recent sadly predictable habit of going for the "edgy" joke that often isn't that funny ... still, appreciated it).

Stupid and/or ill informed comments make me angry.* I have read more than my fair share in the last few years given my addiction to online opinion sources, but stupid comments -- especially from alleged experts -- still piss me off now and again. This is true even when I read the same old thing over and over again. I guess it's just a pet peeve. Such was the case by a NYT editorial by Robert George, "a professor of jurisprudence" attacking the privacy jurisprudence of the Supreme Court. The column was simply put, full of shit. Such was my immediate reaction.

Who is this "professor of jurisprudence?" I did a Google search, and an early hit was an interview with National Review with such comments as: "Even if we were to credit Michael Schiavo's account of his conversation with Terri before her injury Â? which I am not inclined to do" etc. (i.e., we cannot trust a spouse to make such decisions, conservative moralists should). Ironically, he also received a "Justice Tom C. Clark Award." Justice Clark wrote a law article after leaving the bench that applied Griswold, which he supported, to the abortion situation. In other words, George got an award in the name of someone who supported the ideals harshly dealt with in the editorial. Oh, yeah, he also got an award from the conservative/libertarian Federalist Society.

Many libertarians sympathetic to or even members of the Federalist Society are strong supporters of a "right to privacy," though they might phrased it differently. Therefore, it is not only "especially" honored by "liberal circles." Such libertarians (see, e.g., the Cato Supreme Court Review series) will point out to various constitutional basises for the right. They will explain the historical basis of such a view. And, surely, they would remind the fair professor of the Ninth and Tenth Amendments that secure to the people rights and powers not expressly enumerated in the Constitution. But, such provisions are only useful to make specious state immunity arguments, I guess. After all, limited government is not productive for those supportive of morality from above and strong executive power.

The column is honest enough to directly target Griswold v. Connecticut, which struck down a law banning use of contraceptives for marry couples (more specificallyy, sale to them). Prof. George "elicit[s] derision" from its ill-advised turn of phrase that "penumbras, formed by emanations" of various amendments protect marital privacy. He fails to note that Justice Holmes used the term "penumbras" in a similar sense, as a means to note that constitutional provisions bring with them a sort of shadow, additional powers or securities that are necessary to give them life. The overall principle is pretty uncontroversial, especially by those who are strong advocates of executive power. The addition of "emanations" may sound particularly law professorish, but Prof. George of all people shouldn't mind.

He notes the opinion was 7-2, not mentioning two of those votes (Clark and Harlan) were judicial conservatives, three if one wants to add Justice White (conservative in various ways, dissenter in Roe). He also ignores how Justice Harlan in particular referenced an early opinion in which the law was opposed as a violation of due process principles that developed since the late 19th century. And, no, not just in the infamous Lochner opinion of which Prof. George's spirtual ancestors probably concurred. One such strand protected sending children to private/religious education as compared to mandated (progressive) public school education. The cases also reminded us that "liberty" included broad power over marital life and how one raised one's family. It is not really silly to assume this applied to controlling family size.

But, apparently, the problem was that such cases overall did not really directly touch upon "sexual conduct." Do they have "anything" to do with that subject? Um yes. For instance, various cases protected sexually themed speech. Some cases specifically spoke of the privacy of the home, a privacy in place so that people can enjoy private familial activities, such as you know a sex life. Past restrictive laws often targeted associations that dealt with sexual topics. And, the right against self-incrimination is particularly valuable in sensitive areas, such as (you know what). One might even add the common law principle that a wife cannot testify against one's husband.

Prof. George takes a swipe at substantive due process, ignoring the history of the term, which includes protection of certain liberties that are so fundamental that they can never be justly the "law of the land." He challenges Roe's "sweeping" protection of this provision to abortion, ignoring its citations that spell out why precedent protected it in comparative situations. [Again, for those who did not actually read these opinions or are ignorant of history, it's a lot easier to nod in agreement with moronic commentary.] And, adds some declarative statements that assume no rational reason can be supplied to separate abortion from the likes of prostitution and polygamy.

He ends with the same old bullshit that the opposition does not simply have a different judicial ideology or interprets the Constitution in a different way. No, it "is simply the moral and political opinions of the justices" that compels the results. This libel is as wrong as it is tiredly predictable. I don't agree, so the other side must be guided by irrational or extralegal motivations.

This is the mentality of a five year old. So, I guess I shouldn't be too angry at them ... they don't know any better.

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* This also applies to actions generally. I was truly pissed when an apparently (I did not see it ... but the announcers repeatedly made the point, and they are generally fair) miscalled out was made in a key situation in the beginning of yesterday's Braves/Mets game. The hit would have brought the team back to 3-2 and easily could have been a momentum changer. Instead, Andruw Jones -- who Mets fans love to hate, but is the MVP of the Braves team this year -- of all people (he's an excellent fielder -- he doesn't need help) got the benefit of the call. Catch, not trap.

The hit (or sorry, out) was by Mike Piazza, fan favorite, who was pissed. I'll tell you what I wanted: I wanted the Mets' manager to debate that call so much that an ejection was at least possible. The team deserved it, and given the rivalry and recent losing ways, it needed it. But, no, not Willie. The team went on to lose 7-5, though it won today, a rare series win vs. the Braves (though the Mets do manage not to suck when they play them in NY).

"I am not the man who can provide that leadership"

NYT had this to say about the movie that I saw today that put a smile on my face and was seventy or so minutes of pleasure: "A necrophiliac entertainment for the whole family to enjoy, Tim Burton's Corpse Bride marks the director's latest venture into the world of stop-motion animation." That's about right. "No, Jimmy, death isn't like that! Put away the poison!" Meanwhile, the new Reese Witherspoon (she's looking good) movie I'm due to see next week is being compared to the Terry Schiavo Case. Uh oh. Sexy decomposing women, yes ... anti-rationalism propaganda, no. Well, I shall see.*

And, now for something depressing. BTC News had a "the speech that we only wish he'd give" that was one of her elite efforts; a sample:

It's also clear, to me, to my family and to the country, that I am not the man who can provide that leadership. I led you into this disaster, but I cannot lead you out. ...

I am prepared to stand accountable, and it is your duty, your solemn and necessary duty, to see that I am held to account.

Yeah, and then we wake up. As Joshua Micah Marshall notes, besides the (no really) moment (no, I'm serious) he reminds us that Karl Rove ("well, we can't go after him now ... you know ... so trivial really ...") is heading the plans to revitalize New Orleans (megaeffort, but no new taxes! cut the benefits of you know people in New York ... been four years ... Ground Zero is still a hole in the ground, but hey ...). You know, heading up talks on how it could be done following the Bush philosophy. (Ok, stop vomiting! ewww.)

Where was I? Oh yes:

Then there's the president's great line from the speech: "It is now clear that a challenge on this scale requires greater federal authority and a broader role for the armed forces."

No, it's not. Actually, every actual fact that's surfaced in the last two weeks points to just the opposite conclusion. There was no lack of federal authority to handle the situation. There was faulty organization, poor coordination and incompetence.

Sen. Graham (R-Impeachment Manager) set aside a moment from some of his folky comments in support of soon to be Chief Justice Roberts to comment on how is ready to support a new bill giving more power to the President to deal with such matters. You know, better able to deal with disasters. Graham btw also was on record against the abuse of the detainees, but is fully supportive of Roberts, who recently handed the executive mostly a blank check when dealing with such people.

[The courts, not totally to blame really, are stretching the vague authorization of force resolution in 9/01 to mean that the President has power to establish military commissions and so forth. Congress had plenty of time to pass clear regulations to clarify what powers he really has, but since they punt, various federal courts rationally (if not rightly) suggest they did so implicitly. Again, while we rail against the likes of Roberts and the 4th Cir., Congress is to blame as well. Or, is the "blame game" inappropriate?]

I do like Graham, hate to say, I do. He doesn't seem like asshole or anything, and has a down home way (yeah, I know, politician and all) that is pleasant. Likewise, he seems to not be totally in supportive of the dark side. But, at the end of the day, this really just makes him more dangerous. Seriously it basically does, since at the end of that day, he carries the administration's water. An administration that doesn't deserve to be in power.

Let's just be blunt about it. Personally, and this is just a gut reaction, I cannot stand seeing or hearing the President -- I keep on seeing his damn face (AOL News) when I log on. And, these damn speeches -- now and again he makes a "good speech" (wow! he can read a speech! very good figurehead! pat on head), and we are supposed to be so excited. "You know, that was a good speech, got to admit!" (1) They generally aren't (they generally are b.s. and if people gave a second of real thought, they'd know it) and (2) Who cares? People expect more from baseball and football players. When they say good things, you know, bfd. What did they do?

But, the people -- including voters in 2004 (I blame you too, you know ... I believe in republican government. You voted for him!) -- apparently don't expect much at all. Enough with these fucking "low poll ratings" certain libs laugh at. Yeah, ha ha! Bush is just crying his eyes at while he's in the Oval Office ... "they don't like me, Karl!" "Yeah, they liked you last November though!" (laughter) The people don't like bad weather too, but apparently are willing to live with it.

Simply put, and you know eventually one might get the idea that this will sink in, the administration is incompetent. It's bad enough that they are corrupt, cynical bastards. That eats at you. The incompetence just makes you want to scream. Bushies sorts are bad enough generally ... one would hope that you actually get something. But, as one person noted (an online sort that knows this administration is bad for the country, but is a loyal partisan, so votes for them anyway ... asshole!), he stands up to the libs and other likely suspects. Is this all one needs? Are people THAT desperate? Expecting so little from their government?

If so, and seriously this really has to be underlined, they are as much or more to blame than the leaders. Again, I'm not holier than thou. I'm not at the barricadess like some others ... I'm just here putting forth a jeremiad. But, people in a republic have a "solemn and necessary duty" to hold their leaders to account. Leadership does not mean cutting the pay of the workers to be involved in the rebuilding effort.

It doesn't mean giving Rove MORE power. It doesn't mean AGAIN rejecting an independent commission over the "bipartisan" congressional one the House Dems basically all opposed, though the "MSM" failed to underline the fact. One which currently Dems would not have subpoena power.

How can one let this administration stay in until 2009? Think of that THREE MORE YEARS. The quislings didn't sign the blank check as of three years ago. We deserve better leadership, but if the people as a whole (and a significant minority forcibly doing a lot more) does not demand it -- basically saying, you failed us too many times! -- we will not get it. So, we will be left with going on with our lives, trying our best to be good members of our families and communities.

Not good citizens though. Citizens care a bit more about the polis than this. They expect a wee bit more.

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* The other true moment of pleasure was reading the pure snarkiness of the local sports coverage of last night's Mets loss; some line was crossed when you read this sort of thing:

It is starting to get really ugly at Shea. The "crowds" are jeering. The Mets are free-falling. And the ways in which they are losing are mind-blowing.

Cliff Floyd hit a go-ahead grand slam in the fifth inning yesterday, but that wasn't the decisive moment. Oh no. There were still four innings to play - plus one extra, as it turned out.

Today was a gem, especially the finale, but that's the writing of a pure Mets fan. Betcha he loved the game earlier tonight ... true fans earn games like the one today.

Why Should Dems Vote For Roberts?

Baseball: The Mets got swept today by blowing a ninth inning lead vs the Nationals, who have comparable talent, but did not suddenly fall apart once their post season chances became unlikely. The Mets was one Pedro win from being tied for the Wild Card lead at the end of August. Then, they went on a freakening freefall (again), making moronic choices such as pitching to an elite player (winning run) instead of the light hitting person up next. Morons.

In the end, then, I believe it's time for Democrats to start saving their ammunition for the next nominee: the one who will replace the swing-voting O'Connor, rather than the conservative Rehnquist.

We have long known that Roberts had the talent and experience to be a Chief Justice. And although the hearings have been stunningly uninformative overall, Roberts's testimony suggests that he is the wrong candidate to oppose on purely ideological grounds. Indeed, based on his testimony, Roberts may prove to be both more thoughtful and at least slightly more liberal than the former boss (Roberts served as Rehnquist's law clerk) whom he is replacing.

Democrats should vote yes, and hope for a pleasant surprise over what is likely to be Roberts's long tenure as the Court's first among equals.

-- Edward Lazarus

It is somewhat unclear, as Mark Tushnet suggests, how just voting against Judge Roberts spends so much ammo that not enough will be around the next time around. In actuality, it suggests why we need a more mature way of doing things here. As Lazarus suggests, Democrats have a hard time with developing a good public relations strategy to oppose the current conservative (or rather, incompetently fascist) state we have to bear these days. Thus, Dems try to sell that particular nominees are "outside of the mainstream," which in some sense means they are scary sorts that would be a true threat to the commonwealth. This is a hard sell with nice guy sorts like Judge Roberts, and clearly only can be done in a sparingly matter.

But, there are other ways to go here. The Democrats can vote (and given the low ebb of the Bush Administration, not lose much in the process) "no," and say that they just basically ideologically oppose the guy. The public really thinks this when they oppose others in the past anyway, true or not. And, as noted in the past, a good case can be made that Roberts is ideologically quite conservative. You know, if you actually base your judgment on his actions. One will make reference to the past, including near unanimous votes in support of the likes of Justice Ginsburg (who Sen. Hatch recommended). Let them. Things are different now. The fact that the Dems are stuck by those who compare now with 1994 as if the situation is the same is a sign of how freakening weak they truly are.

Anyway, why should we vote for Roberts? The fact he is quite competent is notable, sadly so, given recent events. The hearings are said to be "stunningly uninformative,"* but apparently informative enough to tell us his ideology is not too bad. Hmm. Nor, is the fact that he will be "at least slightly" more liberal than Rehnquist a particular big sell. So, we are left with the "hope for the best" principle. You know, the same one used by those morons in my party who supported the war, even though they knew the commander-in-chief was an incompetent dweeb.

[Note: Why is anyone surprised with his handling of New Orleans? What led us to think he would handle things well? Hope? Do we also believe in fairies? Or is the astonishment and disgust from the likes of Charles Krauthammer and David Brooks just a show? Don't worry: el presidente is on t.v. now saying he will lead the rebuilding. I feel so much better now. Thanks Bush voters!]

I will be honest. On some level, I do think Judge Roberts is not a bad pick. You figure a replacement of Chief Justice Rehnquist would be conservative and he does seem like a very competent and personable sort. But, on principle, why should we support this guy? He stands for an ideology that the Democratic Party should be strongly against; the fact he might not be as bad as some stereotypical demon doesn't change this. Honestly, Rehnquist wasn't THAT bad in various ways either.

And, an up and down vote would still lead to his appointment. Do you think a 87-13 vote will compel Bush to replace O'Connor with a better sort? In what universe? Besides, I DON'T TRUST BUSH. When will they learn that a middle path will not get them very far. A strong, principled, opposition very well might. The fact that this can be done along with a strong effort to have O'Connor's replacement not be a dangerous one is akin to walking and chewing gum at the same time. If it cannot be done when the SUPREME COURT is at stake, when can it be? Are Dems to use all that ammo once? When are they saving it for? The nomination of a random appellate judge?

And, let Republicans vote against a strongly liberal sort if the next Democratic President is the incompetent ideologue s.o.b. that President Bush is. [Again, same situation, the guy/gal would be appointed anyway.] But, let's hope that is not the case, and that the Dems control the Senate again by then anyway.

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* Various accounts suggest the hearings actually have been somewhat useful in getting a hold of what his views truly are. Therefore, reading between the lines, one finds that they do serve a purpose. More can be accomplished, but the assumption that they are useless is hyperbole.

Bush Administration Honors International Law

Lol.

It has been a maxim of statutory construction since [1804] that an act of congress ought never to be construed to violate the law of nations, if any other possible construction remains. While RFRA plainly applies to Federal law, the statute at no point clearly evidences an intention to abrogate or modify treaty obligations. Because treaty rights and obligations are too fundamental to be easily cast aside courts should be most cautious before interpreting RFRA in such manner as to violate international agreements. [cites removed]

So said Solicitor General Paul D. Clement is a brief against a claim brought by a religious group to import a certain drug to use as part of their religious ceremonies. RFRA (Religious Freedom Restoration Act) as applied to the states was declared unconstitutional by the Supreme Court, Justices O'Connor, Souter, and Breyer dissenting. A pretty narrow application respecting the federal government will be decided this term, perhaps on narrow statutory grounds.

So, apparently, the "law of nations" (international law) should be given special respect when the U.S. Congress acts, the President carries forth laws that they enact, and when the Supreme Court interprets them. "Any other possible construction" is pretty broad, not "reasonable" or even "probably accurate." Of course, if the Constitution compelled otherwise, it would not be "possible."

Anyway, it is nice that the administration is so very concerned with international law and treaty obligations.

John Roberts

Gilmore Girls: The season premiere of GG was on last night, setting the tone for the upcoming mom v. daughter story arc aka more downer material. The episode itself was decent, but since Rory's b/f is still annoying, Kirk has become a caricature of himself, the Lorelai/Luke relationship lost steam once they got together (the Maddy-David syndrome), and the general downer nature of the plot, it was still pretty blah. I did like the judge throwing the book (so to speak) at Rory because she didn't not rich girls breaking the law on so-called "larks." More power to ya.

Though I do not think the hearings are useless, I must admit to not having much desire to actually listen to them. I caught a few minutes, and you get the idea that nothing much is going on pretty fast. Maybe, if one has lower expectations. Still, what if the Dems got together and submitted a truly well staged attack building off each others' questions? They just might score more points.

In response to an essay that suggested Judge Roberts' nomination as chief justice as such is not very important, I sent this email:

As to your Findlaw piece, it might be argued that the ability to distribute opinions (as the most senior justice) is of some importance.

For instance, let's say Justice Brennan was in a sense the true power behind the throne. If Chief Justice Warren was not so friendly with him, however, Brennan might not have been as powerful. Warren could have gave key opinions to other justices, or if he had the wherewithal, kept them for himself.

Also, CJ Rehnquist's personality helped him to put his own spin on the Court, including cutting back opinions, in a way that CJ Burger arguably was less able to do.

As Linda Greenhouse noted in a recent piece, justices aren't fungible; in some sense, neither is the role of Chief Justice and associate justice. One should not exaggerate, but underestimating is also possible.

Meanwhile ... I found blog commentary, including in comments, quite helpful in getting a read on the Katrina response. Also, this essay explains the "legal necessity" defense for "looting" quite nicely.

Finally, though Newdow lost, (not surprisingly) a custodial parent did win a Newdow claim on the district court level out in the Ninth Circuit. Will the Ninth uphold the riginal appellate ruling striking down the use of "under God" in the Pledge? The odds say, no.

Oil For Food "Scandal"

And Also: Good start for football unless you are the Jets, Bears, Packers, and so forth. The 1-0 win yesterday thanks to Randy Johnson et. al. is what has been missing from the Yanks season a bit too much; the Red Sox yet again brings it out. Too bad that the Tampa Bay Devil Rays (11-4 vs. Yanks) might have doomed them, especially with Cleveland on fire (swept Twins, up 1.5 games in the Wild Card Race). And, why is tennis over after David Letterman? I don't watch it, but that's a bit dumb, isn't it?

Joshua Holland discussed the so-called Oil For Food Scandal. Read the whole thing, but to summarize:

The program basically worked, saving many lives in the process

There was some leakage/corruption, but it was widely exaggerated

In real terms, the specific problem targeted by the usual suspects -- given everything -- is trivial

If one wants to blame, our own country's corporations and government probably deserves the most

This suggests the nature of the UN: an imperfect institution, reliant on key countries, but able to do real good

The stereotyping and spin from the freshman senator of Minnesota (sigh) down, is a cynical method of avoiding such things.

Anyway, the true focus should be on the incompetence of those who lead us. It is bad enough that they are getting to select at least two justices ... given the current track record, I wouldn't want them to pick a local dogcatcher though perhaps a certain FEMA head is qualified for the position. At the end of the day, this is nauseating. Like a drunk who has to hit bottom to get help, will this work? We shall see. The new book link (Dangerous Doses) suggests the breadth of the problem, but change at top has to be a beginning.

Update: The FEMA head, designated scapegoat, quit. If only the people who put him there did as well. But, you have to have a little bit of respect. Others purely incompetent did not quit.

Padilla: Gov't Found Someone To Vote Their Way

Further reading: here and here. The second is especially useful to underline how overbroad the 4th Circuit truly is.

Jose Padilla won in the lower courts the first time around, but the Supreme Court held that he sued the wrong person. As discussed by Justice Stevens, this was blatant formalism, technicalty (as is often the case) used to deprive liberty in a particularly egregious situation. Even worse, Justice Scalia -- who demanded that an American citizen seized on the battlefield required a court hearing and civil process -- joined, even though his Hamdi opinion clearly would have applied with added force to Padilla. This means five justices on the merits was on his side, all of them still on the Court btw.

On the second go around, Padilla won on the district court level in a well reasoned opinion that properly respected liberty as well as not reading the 9/01 authorization of force as if it was a "blank check" that applied to people picked up on our soil thousands of miles from a battlefield. The appellate court overruled without dissent in a forthright opinion that basically was written as if everything was crystal clear. But, this is why the administration forum shopped and chose to put him in the baliwick of the Fourth Circuit.

[T]he President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

But, Hamdi noted this is not a "blank check," and specifically limited itself to the battlefield captures. Some blame goes to Congress ... it clearly could have dealt with this situation and made it clear this did not apply to Padilla, but they did not. So, we are left with the courts to protect constitutional rights. Of course, the courts generally (until now) pointed the government in the right direction, though the Supreme Court did not close the deal. They punted, but since the majority knew where this case was going, one wonders if this is not what was intended all along.

Marty Lederman, who kinda used to do this sort of thing for a living (member of the OLC), discusses the ruling here. As emphasized by the comments in his first piece, besides the guy who sounds like he is a member of the administration trying to get Gonzalez's old job, the opinion was in no way compelled by precedent. It was complicated by Padilla apparently stipulating that he was an "enemy combatant" for the purposes of the case. The district court ruling only had "facts" respecting his capture, which are not incriminating in the least.

But, though this does narrow the ruling, it doesn't justify it. As Lederman notes, it doesn't justify his capture to begin with, and if made, the admissions were made under duress. Thus, you need a hearing. Second, the government is accusing him of treason. This is a civil crime, spelled out in Art. III, and warrants criminal process. Third, if he is an "enemy combatant," the President on his say-so should not have the right to so determine. The stipulation here does not change matters, no matter why it was set forth. Finally, Padilla was held as a material witness, criminal, and whatever ... so let's cut the crap.

The opinion noted that the administration (using the current rationale) could hold Padilla to prevent him from going back to Afghanistan. And, since he is an enemy combatant (the hearing regarding this might be forthcoming, according to the NYT* ... no rush), he could be held for this reason. And, the non-blank blank check gave the authority. Sure. No it didn't, and there was other ways to hold him ... some likely challengeable on other grounds, but a lot better than this. And, if they didn't work? Well, at least try them first! The district court says this using better wording, since he has law clerks and all.

Oh, and liberty brings a bit of risk. Just ask Iraqi citizens. Ha.

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* It quotes a lawyer for other detainees saying the opinion on these facts are "fair." He's wrong, but his halfway respect for liberty has been shown in the past.

Some Wednesday Thoughts

And Also: Rep. Holt (scientist) explains why President Bush's support of teaching Intelligent Design in science class is so distressing.

Katrina: On the way home from the movies last night, I picked up a local free weekly, and it had a wonderful article on the Katrina response. It started with local officials, providing a historical view of why New Orleans was unable to properly response. Next, it refused to blame the war, though missed the point in the process (it's not a question of never sacrificing to fight a war -- it is that this war is not worth it). But, then it spelled out in detail why the federal response was morally criminal. A well rounded account, and ever more useful for its measured outrage.*

Movie: The movie was The Constant Gardener, concerning a stolid British civil servant (having some role in international development) investigating the suspicious death of his young reformist wife on some road in Africa. It is well done, the human stories of the two stars as strongly portrayed as the underlining poverty in Africa and the corruption that arises from it in the pursuit of money ... with more than a tinge of racism thrown in.

It all has something to do with her investigation of drug trials and though one is sure to be reminded it is fictional, it surely brings to light reality (more complicated, but just as troubling) and to mind real life politicians. Note, for instance, trials of the first successful birth control pill was run in Puerto Rico -- we generally outsource our clinical trials as well, opening up the path to abuse.

Sports: The Yanks managed to come back from four down vs. the Devil Rays, who handedly won the season series. The Mets dropped to a new low. They finally had a chance to win in Atlanta, but the closer blew the (slim ... they got two in the first, and that's it) lead in the ninth. The Mets came back. The closer (who already threw over 30 pitches) came back and blew the lead again! The horrible thing is that he was left in until they loaded the bases.

Ah, but not so fast. There's more! The newest reliever, a White Sox closer reject but apparently having talent, came in. And, go the first two outs. Ran the count 3-2. And, gave up the winning runs. This is unconscionable. The team has the talent to do better than this ... not playoff, but not repeatedly pathetic efforts either. And, so, though they did clearly improve, there is reason to be dissatisfied.

Mayoral Race: Four democratic contenders for the primary, none really that exciting (one named "Anthony Weiner"), and none really likely to win vs Mayor Bloomberg whose Jets Stadium shenagians make me unable to vote for him. How exciting voting is!

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* A nod also to Al Franken today for putting the events in context, railing against the usual suspects, but also examining the new bankruptcy law and poverty in general. Hours on end of "look at how corrupt the response was" is good and all, but self-limiting.

A big FU to a local editorial who, after noting the feds were "slow," smeared the New Orleans' mayor, called Dean a "loony" (since 3/4 of what he says is right, what does that make you?), and missing the point so grievously (he thought the mayor's note in July that the city could not handle the removal of over a hundred thousand people was somehow a slam against the mayor -- it only underlines the importance of federal aid. Also, I doubt if my mayor could easily handle that many people leaving their homes all at once).

Oh, and since at least a "smidgen" of the malign neglect going on is racially based (see linked article), I guess Bush -- using his words -- should be shot. What an asshole.

No "Blame Game" and Other BS

And Also: There was an uplifting documentary on PBS earlier tonight about a teacher that taught Shakespeare to 10 and 11 year olds, who were amazing. It was depressing in a fashion, given how their leaders are generally failing them. Also, the teacher had a bit of a potty mouth, using a few curses when talking to them. Still, sounds like a great teacher.

What particularly annoys me about this administration and their ilk is their generally asshole tendencies, including a general lack of humility. This is deemed as weak, even when it is clearly a good idea to use some. For instance, a talking point is that we should not get into a "blame game" (unless anonymous administration sources are involved or local officials are targeted*) about the poor federal response. The true leader would accept that some things went wrong, counsel calm, and pledge to do all that they could do to handle the situation -- welcoming constructive criticism in the process.

But, we have the head of FEMA, the Dept. of Homeland Security, and so on refusing to do this. You know, assholes. The head of Homeland Security -- who pursuant to a pending law was supposed to move up eight or so slots in the line of presidential succession - is a questionable sort anyway. The person had a lifetime appointment to the federal appeals bench, one that had nice retirement benefits so that even a ten year stint would set him up for life, but he steps down to head a clearly thankless job under President Bush. Is he some kind of idiot?

I guess he did so for reasons of public service, but if this is how he is going to handle things, maybe he should have staid on the bench -- where he was but one of three in most cases.

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* In a particularly egregious move, worthy of our scorn, the Washington Post (Newsweek cited it unsourced) used said sources (an unidentified "senior Bush official"), in respect to the claimed delay (not true) of local officials to call a state of emergency. The WP corrected the error, but did not out the sources who lied to them.

The lede of a WP piece on the response did note: "Tens of thousands of people spent a fifth day awaiting evacuation from this ruined city, as Bush administration officials blamed state and local authorities for what leaders at all levels have called a failure of the country's emergency management." Again, what "administration officials?" Guess who is running things on the political front at the White House? Yes, you guessed it, Karl Rove and Dan Bartlett.

Same Sex Marriage In California

This is good news, but is announced in a poorly phrased way:

Unlike Massachusetts, where gay men and lesbians are permitted to marry because of court rulings, the legislators in California voted to amend the state's family code without the threat of legal action. ...

Californians voted overwhelmingly in 2000 for a ballot measure, Proposition 22, that defined marriage as between a man and a woman, but the legality of that law is now being fought over in the courts.

In a case stemming from a decision last year by Mayor Gavin Newsom of San Francisco to allow gay men and lesbians to marry, a San Francisco Superior Court judge ruled that the state law was unconstitutional but the ruling is being appealed.

In other words, the basic law that pending litigation aims to overrule is under "threat of legal action." The article's point seems to be that the Massachussetts Supreme Court declared the previous law unconstitutional, compelling the state legislature to act. But, clearly pending litigation is surely a "threat," especially given the liberal tradition of the California Supreme Court. In fact, recent rulings respecting lesbian couple child disputes suggests the way the courts in that state are going.

So, simply put, the legislature had to realize there was a "threat of legal action." Also, the governor's desire to punt until the courts decide is rank weenie behavior. I am unclear why he is against the legislature having the role in changing key social policy. It sounds a bit girlish actually.

Roberts Again

And Also: The Mets vs. the Braves is like a live action Wile E. Coyote / Road Runner cartoon, except that it seems at times the Coyote has a better shot. Chipper Jones has the "Roadrunner" role down pat, yet again beating the Mets. He even named one of his kids after the Mets' Stadium (Shea) -- so has that tongue thing down too. Anyway, Carlos Beltran: $17M (or something) well spent, huh? Bases loaded, one out in a big spot, and comes up small. Fairly typical.

Update: Some suggestion, logical I think, was made that O'Connor could stick around for the first round of cases, which might be decided by November or December (I assume). The Dems also have a reason to take her replacement slow, including causing the administration more trouble, after Roberts is probably (at least somewhat stupidly) going to be confirmed by a large majority. So, she might be on the Court (unlike Justice Marshall, her own health is not a problem) for a couple more months anyway.

First, in respect to this kind obit from the former clerk, I as an outsider concur. I don't share his ideological bent, but Rehnquist always seemed like a good guy and good Chief Justice. At least, in the sense of administration and so forth. The justices concurred, lib and conservative. Thus, the spleen against him from some fellow travelers of mine is not met by me quite as deep. But, I understand it, since it was earned in other ways.

Second, I really didn't think, as some did, that Scalia would become CJ. Roberts is a good replacement for Rehnquist -- he is sorta a younger Rehnquist in some ways (clerk, conservative executive official), though not in others (e.g., his advocacy work). The ideology appears to match, even (in some ways) Rehnquist's restraint in some ways vis-a-vis Scalia/Thomas. And, he probably will be confirmed by the beginning of the term, so no Stevens as acting CJ then.

A few problems. First, though it seems his personality fits the role, I wonder how his novice status will play as CJ -- Rehnquist was on the Court for awhile, while Burger and Warren was closer in age to their fellow justices and the latter had executive leadership experience. (Burger has problems in the CJ role).

Second, the O'Connor replacement is again a hot potato. I would not be shocked if the woman judge that some thought was going to replace O'Connor the first time is nominated this time. I think more pressure will be made for a woman or minority, and that judge was generally deemed fairly noncontroversial.

Anyway, the sentiment seems to be that O'Connor will still retire, in part to care for her husband. And, thus, there is no reason for her to stick around too long, since she would not hear cases that she would not vote on. The controversial rulings can be pushed back if a 4-4 vote is likely.

Overall, this works good for Bush. As to votes, this in effect makes Roberts confirmation less troubling on a "equal but not increased harm" approach (though making the records not released more important), while making the O'Connor replacement more open to scrutiny. Still, if Roberts is a bad choice, he still is now ... so vote against him.

My Bottom Line and Some Sunday Reading

Appears to be another free weekend on Dish Network -- lot of more channels, basically the same lack of material to watch. But, still, Rita Rudner was pretty funny and I finally get a chance to watch Weeds [lame episode]. All the same ... One of my new favorite slasher films, Sleepaway Camp II was on a regular pay channel. Lol, I love that Angela. Sadly, the actress did not do much more work to my knowledge.

[And Also: Mark Kleiman reminds us, as he himself was reminded, that the disaster is an interstate one -- some suggestion is made that actually things are worse one state over in Mississippi.]

A trivial but sure to be symbolic reminder of the disaster is that the New Orleans Saints, much like many others, are now homeless. And, as is sometimes the case, they are coming my way (a bit too crude? maybe) ... they are playing their first "home" game in Giants Stadium, the gate going to disaster relief. The money is nice, but the benefit to the Giants (who, believe, me, can use it) is unfair -- I think they should play at some neutral site. The relief can come when they play in the first away game in a major market or whenever best feasible.

A few more words on the story of the moment ... the disaster, not the death of the Chief Justice. My bottom line is that I understand that the world is not a perfect place and is filled with a lot of imperfections and problems. It is also, at least at my vantage point, is not a horrible place. There is some basic understanding of this, which is why so many people settle.

But, this only underlines the importance of a few basic things. An appearance and to some true respect a reality in practice of fairness, leadership, and humility. So, surely the criminal justice system is not perfect, but we aim for the best we can do, including stopping clear appearance of partiality. And, in these times, we want leadership and a reason to feel calm. This sort of thing simply cannot be quantified. It still is of fundamental importance. And, that is why so many people are upset.

Some are saying that the blame should be spread around. But, when we have national tragedies -- and this is one of them, surely by now -- we look at national leadership. Leadership that is now placing blame ... bloody hypocrites while their minions say we should not do the same (at least, if they are the targets). This aside from the fact that the settled plan does call for leadership from FEMA. Did locals misstep? One sort of thinks maybe so, since they do not have a reputation of being well oiled machines. New Orleans is not famous for its practical integrity. So, let the locals vote them out of office. The rest of us look at those who we voted for or voted against.

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Anyway, the NYT had some good articles today. One was a human interest story on a Baghdad radio station with a secular /feminist bent. It is what we root for, apparently since it's not our country. Another was a piece by Linda Greenhouse entitled "New Justice on Court Is More Than Just One Vote" -- and this is in regard to John Roberts! A change of even one justice affects the dynamics of the Court.

Finally, there is an interesting piece (with a good range of viewpoints) on local judges recusing themselves for personal reasons in abortion cases. Though not mentioned, this is akin to some cases in which a few federal judges (who had the ability to pick and choose) refused to take any more drug cases because of the mandatory minimums and so on. As the article says, we do not want judges to pick and choose, but what if we force them to do so? Will the teens going them for judicial bypass suffer? Maybe not ... as a look at one apparently pro-life judge who did not recuse himself suggests. Or, maybe, such ideological views one way or the other is how things should work in our system in which politics does affect nominations.

A word on Rehnquist ... some liberal sort was on Air America (let's be honest here) spitting on his warm grave,* explaining how he and his Bush-like ilk are ruining civil rights as we know it. This sort of attack annoys me to some degree, since it has a sort of spray of bullets with the hope of hitting something feel. For instance, the person railed against how the Rehnquist Court (get this) interfered with (shudder!) districting by overturning assumed racial motivated plans.

I assume the guy is against Baker v. Carr (one person/one vote ... districting) as well as the move against political gerrymandering (of districts). Ditto the usual gun near schools case ... this case was sooooo trivial. At least forty states have laws against this sort of thing. And, Congress just passed a new law against guns that traveled (as most do) in interstate commerce.

I know how this soundbite advocacy works, but believe me there's some really problematic cases to use (other than Bush v. Gore, but sure, repeat the Dred Scott of recent times as much as possible) here. You convince no one but the converted with this overheated rhetoric against strawmen.

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* One need not be hypocritical here and say one liked the guy's career overall, but seriously, the summary of his life was basically: he tried to stop people voting in Arizona, was appointed by Nixon (who couldn't get his name right), Bush v. Gore etc., and then he died.

One can recognize how he used his office to focus the Court, helped but not compelled all the way by how the country was going, in a certain way that is bad in various ways. But, he deserved a bit more respect than that. Laura Flanders, the strongly progressive host, tried to get in a "but you have something good to say ..." bit, but he basically pushed it aside as basically trivial. Oh well, I guess he does speak for many, but I (who find his reasoning wrong many a time) am taken aback a bit by such spleen. I guess it was earned.

RIP Mr. Chief Justice

There were clips from past hearings for justice nominees on C-SPAN earlier tonight, including for Scalia ... who was in one clip smoking a pipe! What is this, My Three Sons?

I was listening to a blowout college football game on the radio with two former NFL coaches or assistant coaches on the sidelines for the perspective teams and one of the announcers muttered something about the Chief Justice dying. Sort of like it was not meant for the air ... and that is how I found out that Chief Justice Rehnquist has died. I think dying in office is a fine way to go, and hope his passing was not a cruel one.

His resignation (if not his death) was not shocking given his health, so I am sure that a replacement is in the works, if not already selected. So, though it would have been better if he resigned at the end of term, it is not as bad as it could be. Nonetheless, it does causes problems. At the moment, the Supreme Court is in some extent evenly split, pending Justice O'Connor's retirement. [A footnote: No law clerk/justice on the court together.] We have four "liberals" and four "conservatives," though only around 1/3 of the cases split 5-4 and not always the usual way.

Also, there are two justices (and a Chief Justice unless one vacancy would be a 2 for 1 job -- though many think Scalia would be made CJ) to fill now. Roberts probably would have been confirmed by the First Monday in October. Since it takes time, surely at least a month before the hearings, surely both vacancies will not be filled. Thus, Justice Stevens would be the Acting Chief Justice until the vacancy is filled, causing many to smile. And, things will be a bit messy for a few months, even when the two newbies (or three, whatever) are on the bench.

The overall sentiment over at Daily Kos is that there is basically nothing much to say good about the guy, surely in regard to his judicial policy. This is wrong. First, though cutting back the docket (which Justice Stevens supported) is felt by some to have been a bad policy, he was a good Chief Justice -- in the sense of presiding and so forth. Both liberals and conservatives on the Court thought so.

Second, though a conservative,* he was not quite of the Scalia/Thomas sort. He wrote opinions in support of off color political cartoons, family leave requirements on states, allowing a state not to fund training courses for ministers, and upholding the principles of Miranda -- and except for the first (Thomas not on the court, Scalia joining), the two all dissented. He also joined the Hamdi concurrence (over Thomas' dissent) in the Hamdi enemy detainee case. We could do a lot worse ... and that is not sarcasm.

Anyway, now we have el presidente having the chance to select another justice, the chief justice as well. Thanks America for re-electing him! You know, to protect us from terror and because he was such a forthright guy and all. But, he also selects justices, you morons. I don't know if he will slide Scalia over to CJ -- it would satisfy his base and apparently Scalia is his judicial idol. Still, unlike the U.N., I reckon conservatives do not want to wreck the Supreme Court. And, Scalia will not wreck it, but I do not see him as good CJ material. This seems almost self-evident, given his divisive personality and independent mind. So, it's not really his ideal role, even if I agreed with his ideology. But, it is not just a token one either -- control of the majority effects the end result.

As to the slot itself? I reckon some conservative ideologue, Roberts filling the respectable (if still truly conservative) O'Connor vacancy. It might be messy and probably will give Roberts a better shot at a 80-15 type confirmation, even though it's perfectly possible to oppose his nomination and allow a vote in which the majority party (a few usual suspects) confirms him. I also think a woman (one of the Ediths?) would be a logical choice or a minority -- yeah, I know, they do not believe in affirmative action. Ha ha.

We expected this [Linda Greenhouse already has a long obit available] ... just not this soon.

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* Principled ... though I surely disagree with him, his stance that local majorities should control (over individual litigants and federal officials) is reasonable, if too singleminded as applied. This (to quote LG) makes some sense, even if Bush v. Gore violates the general principle:

One of the most notable aspects of Chief Justice Rehnquist's career was his consistency. Five years into his tenure on the Court, the Harvard Law Review published a "preliminary" appraisal by Professor David L. Shapiro. Professor Shapiro identified three basic elements of the Rehnquist judicial philosophy: conflicts between the individual and the government should be resolved against the individual; conflicts between state and Federal authority should be resolved in favor of the states; and questions of the exercise of Federal jurisdiction should be resolved against such exercise.

OTOH, if he was inspired as much by The Road to Serfdom as he said, one would think he would be a tad more libertarian minded in his decisions ... state serfdom still bad, right?

Constitutional Thoughts

Hurricane/Flood:(1) Jack Balkin has an interesting discussion on the development of the constitutional understanding of the federal taxing/spending power. (2) Mention has already been made how misuse of the national militia for unnecessary foreign adventures has deprived it resources for the more appropriate domestic emergency with which we now are dealing.

(3) Note how Art. IV requires state requests for national forces to be used to deal with domestic disorder, though Congress can authorize federal use of the militia to uphold federal law.(4) The Commerce Clause, especially given the interstate nature of the emergency, also is relevant here.

Book: War Powers: How The Imperial Presidency Hijacked The Constitution by Peter Irons is a pretty good work, though it tends to speak to the choir. My problem, as is sadly the case in some other works by Irons including his "May It Please The Court" oral arguments series, is that it is filled with a few too many errors that one of his students (who I assume helped edited the thing) could have picked up. This is particularly annoying since a few errors in that series were pointed out and he admitted to making a few mistakes. One would think he would take better care so those of us who did not graduate from Harvard (Ivy league universities are so overrated, lol*) does not have to grit our teeth while reading him.

John Adams could not select John Marshall to the Court in 1803, two years after he left office. The Curtiss-Wright case was not unanimous, even if the dissenting justice only referenced the lower court opinion, not writing a separate dissent. His coverage of the important German saboteur cases during WWII was shoddy and woefully incomplete, not even mentioning the American citizenship of two of the defendants. (Cf. The account in Cato Supreme Court Review: 2003-4, a couple books on the cases, and other coverage)

And, I do not know why he keeps on saying that presidents clearly has some right to "reprisal," when Art. I expressly gives that power to Congress. Some inherent presidential right to attack in order to defend Americans overseas also is accepted, apparently, but would the reverse be true? If unrest in New Orleans endangered say Mexicans, can Mexicans come in with a few warplanes and such to protect their nationals? Please. Louis Fisher's Presidential War Power (written in the mid-90s, but he has a new book out on military trials that looks good) did a better job (including on this point), while having basically the same point of view. Still, Irons provides a historical account for the everyday reader that is well worth reading.

One that would put ordinary citizens on guard. After all, we read how Colin Powell in 2004 (you know, BEFORE the election) admitted the case for WMDs being in Iraq in 2003 was based on shoddy intel. I do not recall this being a compelling point in the election, the people not truly having to face up to who they were electing (since JFK's position left something to be desired). And, now we have even conservatives upset at el presidente's leadership abilities in a time of crisis. Why? You knew what you were getting ... so why you complaining now? The truth a bit too obvious for you?

We the People of the United States, in Order to form a more Perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish the Constitution for the United States of America.

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* "Experts" should not be given too much credit, which is why juries only consider their judgment in trial, not necessary believing their opinion on the case. They too have axes to grind and blind spots. I note Randy Barnett, another law professor, a libertarian sort that opposes senatorial filibusters -- Presidents have to have their choices vetted by the Senate, but the Senate has a responsibility to vote.

He said this on a panel discussion for Judge Roberts, apparently considering the "vetting" done by the Republicans in the Senate seriously. Apparently, EVERY nomination (sorry if a few stray ones were missed) was A-OK, since even a few stray Republican votes against a nomination is a news event. Sorry, I cannot take that seriously, and if you do Professor Barnett, I cannot take you seriously.

A Failure of Leadership

Item: [9/1] "President Bush has used a constitutional provision to bypass the Senate and fill a top Justice Department slot with an official whose nomination stalled over tactics at the Guantanamo Bay, Cuba, naval facility." The "Constitution" apparently gives him such "recess" appointment authority. Note no doubt, no doubt exists.

We live in the 21st Century, but a hurricane and flood has overwhelmed us. The sympathy for the victims leads to anger at how the situation is being handled, and makes a proper response now and in the future that much more important. The failure of leadership, one David Brooks just mentioned on the News Hour, is thus ever more sad.

Jane Galt, the libertarian blogger, is cited a few times by Mark Kleiman* -- the drug policy expert/bloggist with a centrist/strongly anti-Bush outlook. Kleiman as usual supplies some good analysis, this time of the various sides of Katrina. Part of this analysis was some strong words respecting how the federal government (or rather, the Bush Administration) is handling things. I wonder if JG thinks he is among those who allegedly are using the dead for political points.

Anyway, JG is more evenhanded than some voices (including the current director of FEMA), including those that in effect are blaming people for not leaving their homes in part because they had no means to leave or because they were afraid of leaving their life's possessions (which they are too poor to replace) behind. Rush Limbaugh is particularly crude respecting the majority of black citizens suffering. There's also the President's "no tolerance" policy that does not exempt those who take food and water while supply chains are absent. It is so simple to say, "looting is wrong, but food and water is different from stealing television sets." But, no, morons lead us.

[Moron alert: The third charity, after the Red Cross and some food related resource, on FEMA's website is Pat Robertson's charity. It was second.]

Back to Galt etc. Kleiman supports Galt's general sentiment that it is both economically and humanely reasonable for gas prices to shoot up given shortages related to the hurricane's effects. [TalkLeft supplies a good window into other effects, including on local courts.] This is sound -- there probably is some limit, especially if the resources involved are necessary and the people who need them [this does not include most people around the country whose gas costs more], for which the prices should not rise above. It is not like there are no limits, but overall, the sentiment is correct. Immediate pain would over time turn out to be good for us.

Also, there is the question of what to do in the future. Some suggest New Orleans should not be rebuilt where it once stood, while a few wonder if the levees should have been fixed in the past at all. The problem -- an issue not only for libs (the anger, however, is not just from Air America** sorts -- CNN reporters et. al. are starting to be rather upset) -- is one that deserves serious consideration. I don't see how they could not be fixed while the city is still open to harm, but now that the damage is done, consideration for the future should (as MK notes) be a primary concern.

Various citizens live in areas where natural disasters are an ever threat, and society must consider the issue before disaster strikes. A "well they live there, they made their bed, let them lie in it" mentality is just not feasible. It is not only a bit too cruel, but not totally accurate. For instance, generally, the major damage to New Orleans is not as expected as those who live in tornado country or on the San Andreas Fault. Still, the danger was out there -- aside from what el presidente claimed on television. It is a plain failure of our leaders -- local and national -- that this was left to go on.

As to that last point, blame can be spread around. But, I do think the criticism of the feds is on some level truly justified. First, many resources that would have been available was sent over to Iraq -- this is what state militia (National Guard, a bit of a misnomer) are meant for -- not international adventures. [As an aside, Charles Krauthammer makes some good points today, though his editorial makes no mention of women or some other problems with the proposed constitution ... but it's more reasonable than his usual work.] Second, FEMA has been mishandled by many accounts in the last few years. And, finally, this is a national (Sen. Lott, of Mississippi, lost his home too) disaster and requires a national response. And, the response has been problematic -- especially, the lack of leadership from above.

Kevin Drum (Washington Monthly/Political Animal) at first (until things went out of hand) joined Galt's sentiment that we should not use this as some sort of political football, an excuse to criticize the Bush Administration. She noted that if he met with Cindy Sheenan, this sort of complaint would not have happened. Well, that didn't help, but as Kleiman notes, it's not wrong to criticize when things goes wrong. It is not wrong to use tragedy as a launching pad for fixing the problem (isn't that what you know who did with 9/11?). Maybe next time, delays will not led to cruel problems in the harsh early days of the disaster.

[I'd add, having just seen some guy from Wall St Journal on C-SPAN oh so primly saying that we should not play the "blame game" (he admitted "mistakes were made" -- so apparently broke his own rule), that such sentiments on some level are heartless. I recall the negative feelings, however exaggerated by news accounts, after Sen. Wellstone died in a plane crash a few years ago. Are we not human beings? Will we not have some emotional moments, including some need to place blame, perhaps excessively so? To ask the question is to answer it really, especially given some of the base of the "other side," who has their own intemperate passions. But, such humane sentiments apparently are hard for some sorts to understand, including certain "Christians."]

And, as some comments on JG's blog notes, if not now, when? Are we to complain months from now, when the people aren't focused on the problem? Some calm reflection is useful, as shown by trials done long after the crime, but it also sometimes doesn't work. People move on and think about other things. And, there is some whitewashing of the events, the f-ups forgotten or ignored. This sounds a bit too much like those who didn't want people to criticize the war once it started. Apparently, once a police officer actually starts beating a suspect, railing against police brutality is wrong -- criticizing our peace troops. I thought that bullshit in 3/03, I think it bullshit now.

I am tired actually of this bullshit. I really don't want to focus my energy on our stupid leadership, but I have always been interested in public affairs (before OD-ing on online stuff, I kept up with newsmagazines and talk shows, and loved editorials), and this is what is blanketing out everything else. A local paper criticized a person running in my district as only having two qualifications -- union membership and working hard all his life. This is a bit unfair (the guy has some other qualifications), but my thought was "well, that's not bad." Life is messy, but you live it out the best you can. If this is the best we can do, it is just not good enough.

Bottom line: forget about party lines (some mention was made to the democratic senator from Louisiana, who was challenged by a reporter for too much patting on the back of fellow politicians in the face of a underwhelming response), stolen elections, political assholes (e.g., Rove visited the counterprotest across the way from Cathy Sheenan) , and so on. How is this being handled? Is it being run like a business?

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* Kleiman has often at various times been kind enough to answer emails (he does not have a comment feature) respecting some of his posts.

** Air America is taking this issue and running with it, the afternoon and early evening shows especially informed and outraged. This is a good mix. The brainaic Rachel Maddow is filling in for Al Franken and provides some great commentary while opening the lines for comments. I do wish RW had a co-host, since she is a bit dry without one. It was better when she had Liz Winstead.

Mike Malloy, the late night guy, is back from sick leave. MM despises Bush (his rants clouds his news background, but when he calms down, it shows) and particularly underlined the cruelty of no tolerance for those who need food and water. His hatred is honestly felt, mixed with despair, sometimes you can feel him fighting back angry tears when he speaks as a father (three adult children, all with jobs in the public sector, and a new baby). He is a bit over the top, and at times moves into conspiracy territory, but his anger is a catharsis.

"walking down the stairs of Air Force One with Barney tucked under his arm ..."

I know it's wrong in a way, but it's hard not to look at things in political terms. After all, these are our leaders, right? At least, one of the senators as well as the governor of LA are Democrats (women too, actually). The senator might be a too conservative, but if we are thinking politics, that is something. Seriously, where did this disaster come from? I know people say it was predictable, but like wow. Blam! Anyway, the second post was just too precious ... the first underlines that even those who support him know he's a dweeb.

...Doesn't he realize that more people may have died from this storm than died on September 11? I don't expect him to say he's gonna get Katrina "dead or alive" for what she's done to America. But for crying out loud, can he put off the laundry list of all the things his wonderful bureaucracy has done so far until the end of the speech and begin by addressing the pain we all feel as this tragedy is unfolding in slow-motion on live TV? We're talking death on a massive scale, and within 2 minutes he's thanking Texas for housing refugees (way to perpetuate that "I'm all about Texas" stereotype).

And don't get me started about how the first image of Bush coming back to Washington as thousands have died in a tragedy was him walking down the stairs of Air Force One with Barney tucked under his arm ... that was a pathetic performance and I agree with what Byron wrote about his vacation. And I'm with you: Bring in the troops. Lead! Don't tell me that the federal government will be working "with" state and local governments...

-- Letter to National Review.

Many of the always "sensible" voices of the left and center have cried out in unison that we should not "politicize" the tragedy unfolding in New Orleans and other parts of the South. I can only think of one answer. Bullshit. It already is political.

Remember these were the very same orifices that intoned about the same thing after 9/11. Don't ask questions. Stand by our leader. Yada yada yada.

"There is no such thing as a nonpolitical speech by a politician." That is what Richard Nixon once said. And everything is politics to our current White House Placeholder-in-Chief, which is why he was concentrating on selling Iraq and not the impending disaster in New Orleans. ...

Yet, once again, we had a president who didn't interrupt his vacation (oh sorry, he did, after the fact, a whole two days early), when we all knew this was coming in some shape or form last week, because he was busy "getting on with his life." There is a lot of bike riding and lying about Iraq to be done in Idaho and Utah, after all, and you gotta go visit the only two states that still give you a higher approval rating than amoebic dysentery.

And so once again, Americans are paying the price for putting a man in office who is not qualified to run the checkout window at Wendy's. Osama bin Laden determined to attack. Cool, let's clear some brush and think hard about stem cells. A tsunami has devastated South Asia--no reason to leave the ranch immediately and like, say anything intelligent. And a warning that a Category 5 hurricane is about to level a major American city, ain't no thang.

-- Post of somone who does not "love President Bush"

Also, it seems that FEMA -- no thanks (blame, yes) to those currently in power -- is going downhill. I guess the best thing is to hope that the truly harsh death toll predictions are overblown, so that only serious lost of property and weeks of perhaps hundreds of thousands not being able to go home is the only thing to be concerned about. And, all the other problems. Seriously, this is the sort of thing that will happen ... we need to be able to handle this sort of thing relatively smoothly.

The fact it is a "natural disaster" does not change things -- in the long run, those things affect more people in many ways than random terrorist attacks. I think again how my former mayor would be a good person to have in charge -- Rudy not only handled 9/11, but thrived on a major snowstorm and the like. I did not like some of his politics and he was sort of a bully, but in various ways one knew he was qualified. These people are the worst of both worlds ... so few are like the FDA official who resigned over the politicialization of the morning after pill. No principles worthy of respect.

Meanwhile, Bolton is trying to f-up the UN.

Myths of Free Trade: Why American Trade Policy Has Failed by Sherrod Brown

Katrina: Why did we hear about President Bush "cutting his vacation short" before he actually did so (he actually did today, on Day Three)? And, given he cut it short by two days, who gives a shit? Likewise, how about all the National Guard personnel and other resources in Iraq that could be helping the citizens here? Or, cuts and other lack of emphasis (admittedly not just by the Bush White House ... locals had a laissez faire attitude about a possible natural disaster) of homeland security? Mother Nature can be quite a bitch, huh?

Rep. Sherrod Brown (D-Ohio) has written a brief against "free trade" and it is a good counterweight to CAFTA and all the other efforts that go the other way. Efforts that ultimately, as shown by the votes in CAFTA, face strong opposition, opposition that has potential to grow even stronger. In my own view, "free trade" is a nice ideal, but as Tina Rosenberg discusses here, we do not have it ... and what we do have leaves something to be desired. Rep. Brown underlines the point in a more forceful matter and spells out the Myths of Free Trade:

-- Americans Believe in Free Trade
-- Free Trade Agreements Are Necessary To Fight The War On Terrorism
-- Free Trade Is An Extension On American Values Abroad
-- Free Trade Leaves Most People Better Off -- In Rich And Poor Nations Alike
-- Free Trade Will Bring Democracy, Human Rights, And Freedom To Authoritarian Nations
-- The North American Free Trade Agreement Has Been A Success
-- Free Trade Is A Great American Tradition

The numbers suggest that the American public is unsure about "free trade" as currently expressed in our trade policy, specifically concerned with certain measures that are worse when one determines that free trade is the panacea so many of its advocates suggest. The second myth appears to me just another way use 9/11 to promote bad policies. As to promoting American values and success overall -- you know the good ones -- the problem is not free trade overall, but the form we use today. And, the trade imbalance -- worsening according to the book -- does not suggest we (as compared to corporations) as a nation are benefiting so much by the status quo.

First, "free trade" was never truly our policy, especially in the first hundred or so years of our history, which had many moves to protect domestic industries.* It is not really the case today -- the encyclopedia nature of these trade policies suggests otherwise. Second, there is a way -- really there seems to be -- to have free trade successfully. It's a question of definition, to use that overused term. The trade should promote "freedom" -- it is unclear how allowing multinationals to sue nations for passing environmental regulations does this or looking the other way when China uses prison slave labor.

Global trade is surely a necessary part of the 21st Century. Workers in Third World Nations flock to the lousy factories that are discussed in this book -- people flocked to factories in this nation in the late 19th Century. This does not mean that they were being exploited and worker rights etc. were not of fundamental importance. And, our government secured such rights and protections, just as a national health insurance plan is of fundamental importance today.

It is quite possible to have trade agreements with other countries and further such goals as well. The EU Union type NAFTA organization that protects not only industry interests but also human interests proposed by Brown is a good idea. The book overall is a passionate book written by a true believer with hope for the future. This is the sort of passion that I want in my leaders, a notable contrast from the likes of Sen. Kerry ... the sort that notes that he believes in side agreements to protect workers, agreements that have the value such afterthoughts deserve. People with their heart perhaps in the right place, but will not catch the nation's hearts.

The potential is there, if people just seize it.

---

* One of the best parts of the book explains how free market idol Adam Smith was not quite as laissez faire as many of his so-called followers suggest. The state of the Christian Right these days suggest this follows a familiar theme.

I would add that the lack of notes is a questionable choice, resulting in various cites and quotes that cannot be checked. I know few actually do that sort of thing, but sometimes they are useful.

Roberts: No

The Alliance For Justice has put out an over hundred page report on the record of Judge John Roberts, explaining its opposition to his confirmation. Its summary:

Judge Roberts’ consistent record suggests that he would limit Congress’ long-standing ability to address nationwide problems, restrict the courts’ historic authority to vindicate individual rights and legal protections, expand the powers of the president and law enforcement and lower the wall separating church and state. This record raises a number of serious concerns that warrant in-depth exploration at Judge Roberts’ hearing.

Early on, it quotes former Acting Solicitor General Walter Dellinger, who recently stated, "[i]t does not seem unfair for a senator to associate a nominee with the most fundamental legal policies of an administration in which the nominee chose to serve in a senior policymaking position." This is what I really hang my hat on: the claim that his strongly conservative views while a part of the Reagan and Bush administrations does not really reflect his judicial ideology seems to me at best facetious. Dellinger's essays over at Slate not surprisingly reflects the arguments he submitted while Solicitor General. One simply does not hold true that one is chosen to top policymaking positions based on brains alone. It surely is not the case in the Reagan and Bush White Houses.

And, Roberts' views in those roles simply are too conservative and executive power friendly for my tastes. A few too many "so-called" fundamental rights and limited views on promoting equality. A few too much support for selective jurisdiction stripping proposals to promote conservative views. And, a few too much support of executive power. Governmental restraint, including for judges, suddenly goes to the wayside (including vis-a-vis local action) when the executive is involved with these people.

The report is a rather impressive act of advocacy, especially given the time restraints, and the fact that it is generally for a rather limited audience. My not so revolutionary prediction is that it won't convince that many people, surely not enough to defeat the Roberts nomination. Hopefully, it and other similar efforts, might affect the debate including some of the questioning during the hearings. And, maybe, just maybe, a fairly straight Democrat vote against the confirmation.

I do not care if he might be "the best we can do" -- a 60-40 vote will not mean a worse person will be confirmed, right? It will just underline that the Democrats oppose the sentiments supported by Roberts, apparently a smart/nice guy, but one whose views leave a bit to be desired. And, while voting against him, the Dems (except for the usual suspects ... and who knows, maybe a Republican or two) can say why. The report provides some fodder.

Kelo Again

And Also: Good use of a puff piece. Another reason why doing one's job is not part of the Bush Administration's job description (unless the job is following the Bush line) (Halliburton Edition).

Michael Dorf takes up Justice Stevens relatively uncontroversial remark that two recent rulings clearly followed the Constitution, but that the actual policy decisions were in his opinion unwise. This is expressed now and again in opinions themselves, often dissents, in which the justice says "if I was a legislator ..."

And, people of all ideological stripes tend to do it now and again. The principle fairly straightforward, Dorf spends the final third of his column defending Kelo. In effect, he says that Stevens should agreed with both the constitutional principle and the legislative policy. This part of the essay leaves something to be desired, especially given his "this is fairly obvious" tone.

Everybody concedes that if the stadium will be owned by the city, then its construction constitutes a public use that will support the power of eminent domain. But, under the rule of the Kelo critics, if the city wants the stadium to be built and owned privately, then the use is no longer "public." Does that make any sense?

If you think it does make sense, suppose the city itself builds the stadium. Is it forbidden from ever selling the stadium to a private party? If not, how long must the city wait before making such a sale before facing litigation contending that its temporary ownership of the property was merely a pretext for a Takings-Clause-violating private-party-to-private-party transfer?

I'm not sure if "everyone" thinks that the government can take private property in this fashion for the "public" use of running a sports stadium. A few do think this was concerned with court buildings and the like. This is why the question of sale is not so obvious -- eminent domain was not chiefly concerned with this sort of thing.

It does make sense to require the stadium to be run publicly in some fashion. What if the owners just sell the stadium in two years and leave for fresher pastures (perhaps go to Baltimore)? I assume that sale too might be required to further "public use," though that seems a questionable reduction of property rights. But, this underlines the point that some middle ground might be available, if "public use" is deemed to have some actual meat to it. The opinion's tone seems to suggest otherwise.

Finally, public amusement is a lot closer to"public use" than simple economic development. This answers in part the transfer question.

Given the vocal criticism that economic libertarians (and others) have leveled against Amtrak, do they really want to advocate an interpretation of the Fifth Amendment that would lock in government ownership of railroads and other public projects facilitated by the power of eminent domain.

This doesn't really follow. The railroads and such would probably be intimately regulated, though, since the land is being taken for "public use." Anyway, again, this is a big step away from economic development per se. Ditto with the reference to government supported health insurance and the like. The Constitution arguably supports this under its General Welfare Clause etc. Libertarians might not like it as a policy matter. But, that kind of makes Stevens point.

Unlike the use of the eminent domain power, the use of the powers to enter into contracts and impose taxes do not trigger the protections of any specially-tailored constitutional provision.

You mean besides the Contracts Clause? Again, this might be true to an extent (though surely there are limits on taxation -- the libertarians surely think so), but a constitutional argument would be that this is just a flaw in the text. The Takings Clause itself is a "specially-tailored" provision that guards against certain actions.

Second, although Kelo was the first Supreme Court case in which a private home was taken in a forced sale to be conveyed to a private developer, the principle that public use means public purpose--regardless of whether the ultimate transferee is public or private--has been well established for decades. Yet there is little evidence of widespread abuse of the power.

The first statement tempers the second -- this sort of thing in particular is not "well established." It is the FIRST time the Supreme Court decided the matter. As to the absence of "widespread abuse," I do not know what he means. Surely, critics have horror stories. And, Kelo will only open the door wider.

Yet, at the same time, that publicity has sparked an even greater response in the other direction; local, state and national politicians eager to keep their jobs will not lightly use their eminent domain power, now that they see the intense public hostility towards forced sales of homes to private developers.

It's nice that the public, helped by the conservatives in power (though various liberals are upset too), recognize the potential problem. But, I wonder if Dorf would suggest a threat to the First Amendment would be so easily answered. Anyway, such outrage often has a short life, things eventually returning to normal.

Fourth and finally, the Fifth Amendment's Takings Clause is not the only constitutional protection for homeowners.

This not only goes against the statement above that economic policies generally do not have specific limitations placed on them, but in practice, such protections are applied somewhat haphazardly. A blatantly inequitable decision might be handled, but even them not all the time. This final point would be a bit more reassuring if Justice Kennedy's concurrence was the opinion of the court, the limits put on eminent domain a bit more forthrightly applied.

Iraq: What's the Best We Can Do?

BTC News has an excellent piece on the state of our troops in Iraq as well as the complicating factor of private security companies, a sort of outsourcing of the war. A NYT Magazine piece is referenced:

And the private security companies are, almost surely, eroding elite sectors of the military; the best-qualified troops, the men most desirable to the companies, are lured by private salaries that can be well more than twice their own. The Special Forces have lately responded with re-enlistment bonuses of up to $150,000. It's not enough.

We have heard a bit about this issue in the news, especially when four private contractors were cruelly strung up by insurgents (insert correct name here). Nonetheless, actual open debate and planning have been somewhat lacking:

Yet it is hard to discern who authorized this particular outsourcing as military policy. No open policy debate took place; no executive order was publicly issued. And who is in charge of overseeing these armed men? One thing is sure: they are crucial to the war effort. In April 2004, within a few months of Triple Canopy's arrival in Iraq, its men were waging a desperate firefight to defend a C.P.A. headquarters in the city of Kut. The Mahdi Army had launched an onslaught. ...

Back in October of last year, a Congressional bill demanded that the Department of Defense come up with a plan to manage the security companies -- to investigate individual backgrounds and inculcate rules of engagement and enforce compliance. ... Nine months have passed. The Pentagon has now promised the document any day; there's no telling whether it will change anything -- what guidelines it will give, what level of commitment will be behind them. ... It was hard not to think that the infant government of Iraq would be left mostly on its own to control the thousands of private gunmen that the American-led occupation has introduced to the country. It was hard not to think that the companies would be left to govern themselves.

Meanwhile, Juan Cole has some good ideas [which include a realistic view on the value of oil security] on what our next steps will be. This might be taken to mean that some of them will be since after a point even unrealistic backassed backward policy has to face up to reality, while others will be done in a haphazard messy way if at all. This is why I tend not to dwell on this situation too much -- it was wrong from the beginning, and even good results are often hard to contemplate.

This is why I'm about to read a book on the Prohibition movement in the United States ... either that, or because this sort of thing drives one to drink.