Alarm and Concern

When the adults and establishment sorts start to sound angry and frustrated, you should be on guard. I watched about half of a particularly striking episodeof Q&A, the new show hosted by Brian Lamb in which he interviews policy makers, both small and large. The striking thing this weekend was as much as the doubting questions as well as the concerns of the supporter of the Iraq War he interviewed.

This week he had a guest that he had once before on his Booknotes* program, Eliot A. Cohen, a member of the Defense Policy Advisory Board (which advises the Department of Defense, you know, Rummy), who has a son soon to go over to Iraq. He used this moment as an opening for a recent editorial, which inspired Lamb to ask him on the show. Unlike the stereotypes, Cohen forthrightly supported the war and had a son in the military too. These people exist. And, to show his mindset, he summed his stance thusly:

After September 11th, I think I found as well persuasive the argument that there would be positive secondary effects from the overthrow of that regime and its replacement by something more reasonable. And I think to some extent we've seen it. Some of them are in a way negative. That is to say, enabling us to get out of Saudi Arabia, which was a major, major irritant.

But I believe then and I still believe that, you know, if you could help create a reasonable kind of regime in Iraq, which is not the same thing, you know, an advanced liberal democracy, but something much more reasonable, that there would be positive secondary and tertiary effects in the region.

And you know, I think you see that in something like, say, Lebanon; or even beginning to see it in places like Egypt.

These people also are very concerned about how things are going; he among them. "What I did not know then that I do know now is just how incompetent we would be at carrying out that task." In particular, "Phase 4," the stage after the initial attack and destruction of Saddam's forces. An overall summary of his various thoughts was put in a later paragraph:

A variety of emotions wash over me as I reflect on our Iraq war: Disbelief at the length of time it took to call an insurgency by its name. Alarm at our continuing failure to promote at wartime speed the colonels and generals who have a talent for fighting it, while also failing to sweep aside those who do not. Incredulity at seeing decorations pinned on the chests and promotions on the shoulders of senior leaders -- both civilians and military -- who had the helm when things went badly wrong. ["Those three guys got the Presidential Medal of Freedom. That's just wrong."] Disdain for the general who thinks Job One is simply whacking the bad guys and who, ever conscious of public relations, cannot admit that American soldiers have tortured prisoners or, in panic, killed innocent civilians. Contempt for the ghoulish glee of some who think they were right in opposing the war, and for the blithe disregard of the bungles by some who think they were right in favoring it. A desire -- barely controlled -- to slap the highly educated fool who, having no soldier friends or family, once explained to me that mistakes happen in all wars, and that the casualties are not really all that high and that I really shouldn't get exercised about them.

Other matters addressed: raw anger at putting troops in danger without proper safety precautions as well as with the lack of proper rotation of the troops, wonder at honoring those who simply didn't do their job, desire for an alternative energy policy, rejection of denial that the military too sometimes crosses the line, and simply "what the father in me expects from our leaders is simply the truth." And, we have not received it.

In fact, the striking thing about the interview was the at times thinly disguised wonderment (and surely disgust) in Brian Lamb's questions, including the note that major people involved in the war effort simply served their time and was never saw again -- including, to be questioned by Congress or others. Put aside the venom. Cut to the quick: this underlines how something has gone seriously wrong.

Cohen references a few things he gives the administration credit for -- to suggest my bona fides, let me note that they leave something to be desired. I will end with two:

And I give the administration a lot of credit for realizing that was ultimately a mistake. And I think that's a realization which is out there more broadly, even in place that don't seem to really agree with us very much, even among the Europeans I think I detect some realization that you do have to be concerned about what goes on in these societies.

That is, "the policy which we have pursued for decades of basically completely ignoring the domestic aspect of these regimes and what they're doing to their societies" was ill-advised. But, of course, they really were not forthright to the American people about this. The people involved in these past policies hold some key roles in our government today, and they did not say "we must change our policies" and so forth. In fact, we still (for the same pragmatic reasons) have ties to some questionable governments. The rhetoric of freedom, rhetoric that Carter as much as anyone used, rings a bit false in its inconsistency.

I admire the basic vision. And I definitely admire the resolve. And you know, it's easy to say that, well, he's determined, and to confuse that with stubbornness. But in wartime determination means an enormous amount. And the president's backbone is made of steel. And we're very lucky that he has got a backbone made of steel. But there are plenty of other things that I'm critical of.

Determination in the face of a flawed policy is not a virtue -- if it is, it is a tragic one. Those who support this administration for that reason must understand this; the fact not enough do is the ultimate tragedy of recent days.

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* As an aside, let me say that the Booknotes sequel is a poor replacement for the show he hosted, a hit and miss sort of thing with various hosts (some "names" like prior Senate Minority Leader Tom Daschle -- remember him?) that suggests the value of Lamb as an interviewer.

Weekend Musings

TV: The new Showtime (darn if I don't have it) television show starring Mary-Louise Parker, Weeds, was discussed in the Arts section of the NYT today. It concerns a newly widowed soccer mom type that sells marijuana on the side, and promises to be a controversial and sardonic look at suburban life. I like Parker as an actress, including on the stage (I saw two of her plays), though her role on West Wing was written lousy. Ugh. Therefore, I hope to be able to watch the movie on DVD, not having immediate access to the channel (they should allow selective purchase -- instead, you cannot even get HBO or Showtime itself, needing to buy packages of their largely useless companion channels).

It's hard to imagine a TV protagonist more flawed than Nancy, the pot-pushing anti-heroine of "Weeds," a character so reprehensible that not even the actress who portrays her will stick up for her. "She's kind of a loser," Ms. Parker said "She's not virtuous, and she's not Robin Hood. She just wants to keep her housekeeper, go to the nice grocery and keep buying her $4 smoothies."

The piece is interesting, but curious in a view ways. One, it is deemed "unforgivable" for the mom to sell marijuana. Really? Come on now. Also, it is deemed particularly striking that the show includes some hard hitting comments such as a mom who says to herself that she wished she had an abortion. But, real people do at times think this way. Anyway, the character is played by Elizabeth Perkins, who is a good actress deserving of more chances to shine.

The line was left in, but its controversial nature highlights to me a patently annoying (and instructive) taboo respecting this subject. Millions of abortion since Roe v. Wade, and still the matter is rarely if ever discussed in much detail even in non-mainstream channels. Ironically, the same can be said in a serious way regarding religion -- other than Seventh Heaven and so forth, serious (surely respected) examinations of religious faith are rarely present, especially when not dealing with "trouble" spots. This is sad.

Books: The author of the Sisterhood of the Traveling Pants series also has an interesting editorial on teen reading materials that is worthy of a read, including the questionable value of rating systems. This message stands out:

Reading is possibly the safest and best way for young adults to explore challenging, complicated subjects, including sex. Readers take in books at their own pace. They can read one word a minute or one thousand and stuff it under the pillow if it gets too much. They supply the pictures in their own minds; no one else's are forced upon them. Probably most of us agree we'd like to expand their reading, not restrict it.

This is how I was when I was a teenager and continue to be, including the "pictures in [my] own mind." I'd add that The Historian was just too much for me right now, but The Washingtonienne is a wickedly good read so far.

Uneven Baseball: On a separate subject, I am just planned annoyed at the state of baseball these days. There are only a few really good teams out there, the rest a bunch of mediocre talent, even certain league leaders. Thus, only the Cardinals and Braves (and perhaps the Astros) really have any real shot in the National League. The AL is somewhat better, though I bet the Yanks might sneak into the playoffs almost by default.

It is patently ridiculous that no NL East team can challenge a team that had to rely on minor leaguers for almost half of their positions, including pitching -- even the Yanks, with their pitching woes, have an overpaid line-up to compensate (and teams like the Angels choking*). The woes of the Mets, who only get over .500 to fall right back to that line, hit me the most -- but it is really a consistent theme. This is not really good for the sport.

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* After last Fall, I am tired of the Yanks. Their pitching woes suggest they are due to lose, but suddenly their hitting is making them a team hard to beat. Still, especially when the Mets didn't win when they simply had to (against Houston's two back enders), when the Yanks managed to survive a bullpen meltdown when the Angels had one of their own (the 9th inning was hard to watch, while their closer simply could not get an out ... the death was slow, but minus a single out, it was complete), I was quite honestly pissed.

The Mets got one today (two out of seven vs. Rockies and Astros -- pathetic), but the Yanks managed it again: errors and so forth led the Angels to blow a large lead and later lose the game in the 11th. This is baseball? I don't want it. I would add that even the revival of the As from the scrap heap is getting old. Bad two months, then crazy winning streaks from mid-June on. Greek mythology wasn't this predictable.

Cafta Shenanigans

Sports: Yanks win another one with a retread and the Mets cannot win vs. the light hitting Astros when a spot starter with a ERA of over 7 goes against Pedro. How many no decisions will this guy get? Meanwhile, Toronto wins in 18, both starters going at least 8. Let's play two ... in one game!

The CAFTA free trade agreement has not received much press, the media concerned with other things which in various respects matter less, and I myself have not read up too much on the darn thing. I am philosophically sympathetic to free trade (our own Constitution sets up a sort of free trade zone in our borders pursuant to Art. I., sec. 9 and 10), but the rub seems to be that in practice inequities arise. After all, this country's free trade zone brings with it certain national safeguards.

One recalls that in our own history free trade was not deemed a great idea -- tariffs was often the name of the game, in significant part to protect developing domestic industries. The same applies to the still developing and unevenly matched Latin American countries involved here. Overall, foreign workers apparently come off rather badly under this sort of legislation. And, those quite concerned with American sovereignty should be be concerned as well.*

Anyway, a red flag should be raised when significant legislation passes 217-215 (thanks to 15 Democrats [and that Vermont guy] crossing the aisle, though a few Republicans did as well: this is not necessarily a simple partisan issue). For the sake of levity, I offer this account:

If you haven't yet, do take a look at Charles Taylor's brief statement alleging that he voted no on CAFTA last night but that an error caused his vote not to be recorded. CAFTA passed, remember, 217 to 215, with two members recorded as no-votes. A spokesman for the other abstainer, Jo Ann Davis of Virginia, confirmed to me that she indeed did not vote; she tried to get back to the capital from a Boy Scout jamboree in time to vote, but just couldn't make it.

Ha ha! As with the Medicare vote there was some late night shenanigans (to go along with the special perks being sneaked in late ... after committee and conference votes ... in the "energy bill"):

The 217 to 215 vote came just after midnight, in a dramatic finish that highlighted the intensity brought by both sides to the battle. When the usual 15-minute voting period expired at 11:17 p.m., the no votes outnumbered the yes votes by 180 to 175, with dozens of members undeclared. House Republican leaders kept the voting open for another 47 minutes, furiously rounding up holdouts in their own party until they had secured just enough to ensure approval.

The sort of thing they railed against when those darn Dems were in power --- not really, since it was more minor violations of norms back then. You know, when even Senate Republicans had a bit of a spine and respect for congressional privileges and fair dealing. Ah well.

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* Matthew Yglesias suggests that the law won't affect the U.S. too much though it might well affect Central Americans to a significant degree if they "buy a lot of medicine or make [their] money growing food." Well, hell, who cares about them, right? He does note the real "action" is elsewhere, but still, if this is so symbolic, why the arm twisting? [Though I hear sugar beet farmers are upset.]

The basic point, however, is that on principle Dems probably should be against this sort of thing. Prove me wrong, but 217-215, mainly Dems dissenting suggests "no" unless one can convince otherwise. And, darn if Norma Klein (The Nation etc.) types have only strengthened by wariness for "free trade" as currently carried forth.

What Roe v. Wade Should Have Said

What Roe Should Have Said is a collection of eleven opinions, led by the editor/Chief Justice, Jack Balkin, that uses resources available at the time to re-write Roe v. Wade. Three dissent overall, one on precedent/judicial restraint grounds (Jeffrey Rosen), two particularly concerned with the life of the unborn.

The pro-life woman somehow claimed that feminists on the whole in the late 19th century opposed abortion and the practice is basically anti-family (except, I guess, when it is necessary to secure it such as when a child would overwhelm things, perhaps because one or more of the members are ill etc.). The primary pro-life dissent takes the over the top Justice Scalia sarcastic approach -- is this required for conservative legal minds? Rosen misstated precedent repeatedly, including ignoring that Griswold involved the sale (if for use) of contraceptives.

One (Akhil Amar) dissents in Doe v. Bolton, the companion case covering a more recent "reform" law that allowed abortion in limited situations with various restrictions, while deciding Texas would basically have to perform a "do over" of their 19th Century law, passed before women had a right to vote. Amar, as well as the others who agreed with his basic point, was patently wrong on two basic grounds.

(1) The failure even note the evidence that "due process of law" has substantive content arising from basic principles of justice ("law of the land" aka "common law"), and its history reflects the fact. (2) The 14th Amendment in some important fact protects basic anti-slavery principles, a core one of which was self-control of black families. (I might add security of one's health, but this is even more fundamental and to point.)

Slavery consisted of the rape of women and breaking apart of family life. Amar put forth a creative reading of the 19th Amendment, but TOTALLY ignores this fact. As does the sarcastic pro-life opinion that appears to think that Dred Scott was the best reed for substantive due process to stand on. Not true. A slew of cases, including Palko v. Connecticut broadly spoke of rights necessary to "ordered liberty." In fact, Justice Taney basically rested on the view that the Constitution, not some general principle of liberty, protected slavery -- in part on original understanding.

In fact, though concerns for judicial restraint (which in some fashion was a constant thread, even in the majority opinions) are totally appropriate (Roe did too much at once), the dissents were remarkably unconvincing. Yes, various comments had a reasonable basis, including that substantive due process as applied here was somewhat spottily secured (in part because it was so fundamental that society did not invade the rights at hand -- to some degree, including in respect to eugenics, the courts should have done more), but they protested too much.

Their contempt for the majority (the pro-life woman professor more of a note of sadness and tragedy) would have been easier to take if the reasoning offered was better applied. The majority opinions did not really answer the dissents, which is a pity, but answer they could. For instance, I love the idea by Justice Paulsen that apparently the majority (except perhaps one) did not know they had to interpret the Constitution, thus requiring a few pages of infantile review to remind them. Such people do what they excuse others of: having contempt of those with whom they disagree.

To round off the majority opinions. One, who was Justice Marshall's clerk when Roe was decided, basically offered Justice Douglas' concurrence. Another, Cass Sunstein, briefly noted both laws were overbroad. Of the remainder, fully three in some fashion (ala Furman v. Georgia, also decided about that time) would toss things back to the states or Congress (this one had little respect for the privacy argument as well).

They also focused on equal protection, though the two fully respected the privacy argument. Good point: one cannot be forced to be a labor or a mother. Only one really went beyond Roe, or at least as far, recognizing the importance of a full fledged right of women to control their bodies, a right the exists even if the government ignores its importance.

The equal protection argument, which Rosen belittled (somehow harm of a class consisting totally of women is a hard sell as an sex discrimination issue -- underlining his narrow view of constitutional rights), is sound but would not have worked given the time. OTOH, and this is a useful point to end on, if the Court did take it slower, such an argument might have developed over time along with the privacy argument -- which as Jed Rubenfeld and Anita Allen notes is a quite fundamental one.

So, though I think the right to abortion grounded in constitutional principles, I might have taken the Cass Sunstein approach, along with one that would send things back to the states. Over time, my approach would probably reflect Allen's, but doing so all at once was ill-advised. Cf. Lawrence v. Texas, which waited to simply hold that sodomy could not be illegal, and is allowing things to develop.

Slowly Reality Enters The Picture

On Monday, the Senate began consideration of several amendments to the annual Defense Authorization Act that would codify certain standards for interrogation of detainees in what was the Global War on Terror (but what is apparently to be known henceforth as the (perpetual) "Global Struggle Against Violent Extremism"). Yesterday, the Administration decided that it would rather put off the Authorization bill until after Labor Day, rather than risk any chance that it would be prohibited from engaging in cruel, inhuman and degrading conduct.

-- Martin Lederman, former Justice Department lawyer

Lederman as well as Spencer Ackerman in the New Republic has basically must read coverage of the ongoing Senate attempts to put some limits on detainee interrogation, especially when military personnel are involved. As noted by Sen. McCain:

The Army Field Manual and its various editions have served America well, through wars against both regular and irregular foes. The manual embodies the values Americans have embraced for generations while preserving the ability of our interrogators to extract critical intelligence from ruthless foes. Never has this been more important than today in the midst of the war on terror.

It is consistent with our laws and, most importantly, our values. Our values are different from those of our enemies. When colleagues or others may come on this floor and say: Well, they do it, others do it, al-Qaida does it, other nations in the world do it, what differentiates us, the United States of America, from other countries is the fact that we do not. We do not abuse human rights. We do not do it. I would argue the pictures, terrible pictures from Abu Ghraib, harmed us--not only in the Arab world, which is an area of great concern but it also harmed us dramatically amongst friendly nations, the Europeans, many of our allies.

The line of elite former officials who concur match those in the JAG corps who opposed, at times basically calling arguments to the contrary specious, when alternative regulations were decided upon by the Bush Administration. A fuller account of the floor debate, memoranda, and so forth can be found here.

It came a few years too late, but perhaps Congress is finally deciding to fulfill their constitutional obligations to set forth rules of war. Reality might actually have forced its way into the Bush Administration's policy as well, even if the new term "global struggle" etc. is not that great:

Gen. Richard B. Myers, chairman of the Joint Chiefs of Staff, told the National Press Club on Monday that he had "objected to the use of the term 'war on terrorism' before, because if you call it a war, then you think of people in uniform as being the solution." He said the threat instead should be defined as violent extremists, with the recognition that "terror is the method they use."

Although the military is heavily engaged in the mission now, he said, future efforts require "all instruments of our national power, all instruments of the international communities' national power." The solution is "more diplomatic, more economic, more political than it is military," he concluded.

No duh. Meanwhile, Karen Hughes is about to take over the State Department's office of "public diplomacy." This is as believable as Tampa Bay almost winning four straight.

Republicans Don't Know When To Say "Enough"

Movies: The Island is a fun summer movie about two clones who realize their role is to provide spare parts and darn it if they don't like the idea. Fun on both sci fi and action levels, but ultimately as immature as the so-called fifteen year mentality (this is supposed to help them be more docile?!) of the clones. Not to be submitted to much contemplation, but Scarlett is as appealing as ever. Genre queen of the night: Tiffany Shepis.

Fancy that: Even before any amendments are offered - by leading conservative Senators of the President's own party - and therefore before the White House has even seen what the statutory language might be, the President categorically concludes that the legislation necessarily "would interfere with the protection of Americans from terrorism . . . by restricting the President's ability to conduct the war effectively under existing law."

-- Martin Lederman

Yes, fancy that. This sort of thing leads some of us on my side of the political divide to start foaming at the mouth. And, for good reason: this cannot stand. Some mention is made that there are pictures out there that the administration does not want revealed, court decision notwithstanding, that underline the horrible nature of the treatment of detainees. But, even post hoc regulations by political friendlies are too much for the Bush Administration.

Okay, how much will it take for his party to say "enough?" I'd add that I am waiting for the likes of Sen. Graham and others who joined the brigade that wanted to remove Clinton from office from lying and such about sex to go after President Bush in respect to the Valerie Plame affair. You know, those not supporting newspapers that are upset about Doonesbury using the word "turd blossom." No, instead, the likes of Sen. Roberts claim the opposition to outing, lying about it, and simply doing nothing to deal with those known to be involved are full of themselves because you know Plame really is just a desk jockey.

This warrants as much disdain as one can bring forth. The fact is that Republicans as whole negligentlyly has let this Administration pervert its constitutional role to faithfully uphold the office. The moves of some parts of the Democratic Party to complain various Dems are too passionate in opposition is aggravating, of course, but hypocrisy should be attacked wherever it is found. To the degree that some parts of the Republican Party, including sometime Democrat pin-up boy Sen. McCain, should know better, it is in many ways worse.

Instead, some want Dems to play extra fair. Yeah right. Let's take the John Roberts nomination. We are supposed to believe his advocacy should not be taken into account that much, since hey advocacy isn't the same thing as personal beliefs. As if Bush doesn't firmly require loyalty (Rice, for instance, is a loyalist, even if not as quite bad on policy as some). Should we ignore his role in Bush v. Gore, or his apparent inability to remember ties to the Federalist Society?* Ties that are not surprising with memoranda materials such as this.

Yeah, he will be confirmed, but people have every right to be suspicious. What has this administration done to temper such suspicion? When will the other side say "enough" when any truly neutral person would suggest impeachment is fully appropriate? If the answer is "never," I have no respect for the lot of them.

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* The FS is not akin to the Klan, though the claims by some that it is some kind of ideologically neutral association with no influence in the Bush Administration is ridiculous. Likewise, it is telling how the Washington Post and others were ridiculed for suggesting such ties. Darn the media for telling the truth!

Kristoff Is At It Again

John Roberts: Interesting profiles. His minimalist approach is balanced against his apparent pro-executive philosophy. Sigh. We need new blood so that vanilla establishment types that lean the wrong way are not the best we can hope for. Update: Now Washington Post has some evidence he was once a member of the Federalist Society! Anyway, his membership in the conservative friendly National Legal Center for the Public Interest is telling anyhow. His wife's connection with "Feminist's For Life" (both anti-abortion and anti-death penalty) is interesting. Perhaps, he and Scalia can get into little debates on the latter.

Where the Right Is Right

Liberals took the lead in championing human rights abroad in the 1970's, while conservatives mocked the idea. But these days liberals should be embarrassed that it's the Christian Right that is taking the lead in spotlighting repression in North Korea.

- Nicholas Kristoff

Kristoff that conservative ass kissing liberal strikes again! Though deep in the editorial he actually makes the fundamental point that the Right has problems with finding a solution that doesn't aggravate the problem, Kristoff again insists on serving the other side's bidding. This is supposed to be the reasonable approach, showing how the left is messing up, and is in need of a rational helping hand like himself. "I'm on your side, really am, but you're wrong."

How exactly are the liberals missing the boat? While the other side focused on a criminal war in Iraq, they noted a more important danger was North Korea. While the Right spoke of "axis of evil" and basically called the North Koreans scumbags, the other side put forth some strategies (now slowly being considered by the Bush Administration, showing the value of having THE BOMB) that actually might help the situation.

And, while the other side (including head political operative, "Butterbutt"*) ridiculed such activities, the left spoke about their concern about human rights and the value of soft power (yeah, the solutions Kristoff references! you asshole). I guess the left has been too busy pointing out how the other side are not matching their rhetoric about human rights (when they care about them), and should be more like Kristoff.

Maybe not.

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* Credit to Mike Malloy, the late night (10PM-1AM EST) Air America host whose over the top hatred of the Bush Administration is useful for catharsis purposes. And, sadly, he is more than likely right. I'd add that though her voice annoys me, afternoon host Randy Rhodes (former military gal) has a pretty good hold on the nitty gritty facts.

Note to Malloy, though I know you are not listening, the gay baiting ("Jeffrey lube") stuff is really beneath you. The Nazi comparisons are de rigeur, I guess, but gay baiting is rather distasteful for a self-proclaimed liberal sort.

The "Let's Get Rid of Roe" Approach

Donate blood -- it's easy and so important! And, heck, I got a little bear (ah, the well coveted "blood donation" beanie baby) plus free juice and cookies!

Roberts Nomination: Volokh Conspiracy has some interesting comments including citing a correction of early reports that he belongs to the Federalist Society.

Anyway, the Roberts nomination seems to mean we should plan on saying goodbye to thirty-two years of life under "Roe," which is not entirely a bad thing, even for pro-choice advocates. After all, Bush did terrific with unmarried women without college educations. It would be helpful, politically (and democratically) for them to learn just what it was they were voting for. There's a much longer argument to be made here, about how judicially-created and enforced liberalism has weakened its cause and alienated its potential supporters while not gaining terribly much in real world terms.

-- Eric Alterman, liberal columnist

Sigh. (1) Roe is already dead. Planned Parenthood v. Casey took away its strict scrutiny status, replacing it with a more lenient "undue burden" standard, opening up the path to more regulations that single out abortion. (2) Roberts' vote will not overturn Casey. (3) Kennedy and Roberts probably will not want to -- the new idea is allowing more regulations, forcing women to wait years to prove harm, but this still retains abortion rights as such. Your average abortion will still be protected, just those the most needing protection will be hurt.

(4) In the states actually winnable, abortion is generally protected by state constitutional law; the Democratic presidential candidates are not going to win big in Mississippii any time soon. If they do, it won' t be because of this. (5) The right to abortion has support of a majority of the population, even many pro-life sorts. (6) The "much longer argument" would have to be pretty darn good to show how Roe is the reason Democrats lost Congress in the 1990s and the presidency in the last two elections

(7) Requiring a judicial floor does not mean there is not a legislatively secured ceiling (8) The big "fu" Alterman is giving to women who will be deprived of a fundamental right to control their own bodies in those states (often lost causes anyway) that have anti-abortion laws in the wings leaves a bitter taste.

And, finally (9) Those who support true family friendly policies as well as rights of equality and privacy for us all do not just focus on the courts. This includes political races that have nothing to do with federal judgeships. And, I have seen such focus repeatedly over the Bush years. So, though some missteps were made, overall Alterman and others like him are so very wrong.

The complaints by New Republic types that Roe itself was patently bad law (though darn if constitutionally based liberty requires its result ... but apparently only if local majorities secure them -- so very "fundamental" huh?) rankles me. This stuff does too.

New Plan To Randomly Search NYC Subway Riders

John Roberts: Interesting tidbit. Proper use of process leading to likely nomination. Website to ease getting around firewalls to subscription online publications that discuss it. Interesting liberal take on an already infamous "french fry" decision.

I'm with others who are dubious about the new NYC policy of random searches of bags on subways in response to another London bomb attack. Personally, my first reaction was unease: I often carry a shoulder bag on the subways. My second reaction was that it does not seem particularly useful. It is more likely to bring about some drug busts. And, will it really be random? Come on now.

Random searches, especially given NY State has tougher rules than the nation as a whole, is often a bad idea. It works in limited situations, including at airports or at special areas with small amounts of people or at particular points of time (such as when the President is in town). Nonetheless, on a broad basis as well as on a subway system with millions of riders, it seems untenable. It is not as silly, though comparable, to the temporary ban on taking pictures, but it is dubious all the same.

The proposed regulations against things like walking between cars and drinking nonalcoholic drinks on the subway are questionable enough. This will likely only bring unease or shallow security. It isn't the way to go.

Next Supreme Court Justice

I do not want to fall into the Administration's trap of getting so distracted by this judicial nomination that I don't pay attention to other injustices of the Administration, like the war in Iraq, the detainees, military tribunals, the potential abolition of habeas corpus in death cases, and Rove Gate, to name a few.

-- TalkLeft on Roberts Nomination (but see here)

John Roberts, who might be the first clerk to serve with his old boss (CJ Rehnquist), is no big surprise ... though media announcements suggested someone else was the choice. In fact, months ago, SCOTUSBlog predicted he would be the one, and Volokh Conspiracy noted that he had some opposition from the left, but was confirmed with few dissenting voices (16-3 in committee, by voice vote on the floor).

He's a Reagan/Bush conservative, served his time in those administrations (and private practice), and has the right connections (Federalist Society and National Legal Center For The Public Interest (take a look at their board). And, his work (just as an advocate! on the other hand, look at his fellow travelers and who is raving about his selection) is unsurprising, but not totally out of hand:

-- limiting environmental standing re government's decision to open the land to mining, citing recreational activities in which they had engaged and planned to engage in the future in that area (also surface mining)

-- prohibiting government funding of abortion choices at health clinics

-- federal law not reaching Operation Rescue attacks on clinics

-- limiting court desegregation efforts

-- supporting school prayer at public school graduations

-- Equal Access for religious clubs

-- anti-affirmative action

-- Lake Tahoe Case (on side of local authorities; environmental friendly)

-- Contract/Takings (broad views, but after Kelo, this won't be seen as too bad)

-- (as judge) broad (if defensible) support of executive discretion in detainee trials

Enough stuff to make liberal activists skin crawl, but enough as well to make him look at a reasonable conservative sort. At first blush, I don't think this is a great nuclear option candidate, especially since I think a few Democratic Senators will support the guy. After all, his lower court vote in committee was 16-3!

It does highlight something: elections are not just about feeling good about the candidate. We are talking about real issues here, issues a majority most probably doesn't agree with the guy in power. But, so what? He's there. And, thus we are basically stuck with at least two more conservative justices. Some more years before there is a chance for a true liberal/libertarian. Also, another lawyer/judge sort, not someone who had some real experience in the real world. You know, kinda like O'Connor.

Oh well. Anyway, a couple final notes. (1) Bush I's nomination for him to the lower bench was allowed to lapse, since he was deemed too conservative. (2) If he doesn't basically say the magic words about abortion, there might be a battle. But, I still think good money will tell ya he will be confirmed. I wonder who will be picked to replace his old boss!

On the Tube

Good Book: My Father's Keeper: Children of Nazi Germany - An Intimate History of Damage and Denial by Stephan and Norbert Lebert (translated). I do have The Historian, and started it, but darn the thing is long.

Sports: The fair season the Mets are having was shown by the split over the weekend with two hard losses, both wasting very good pitching performances. The Yanks, on the hand, won three out of four with Al Leiter shining once more in Yankee Stadium (he pitched for the Mets there twice in the 2000 World Series). Don't know how much more he has left, but reports of the team's demise is a bit premature. They are 1/2 back now, tied in the Wild Card.

Sunday Talk Shows: Back before I was online, let's say when David Brinkley was still on the air, I watched political talk shows. Now, I listen to Air America and read blogs. Probably miss out some, but they just do not appeal anymore. For instance, caught Tim Russert this weekend. Good example of failure to ask a follow-up question: Cooper was on and mentioned he would testify in favor of a federal press immunity law. But, such laws never are absolute. Wouldn't his situation be such an exception (see Judge Tatel's concurrence in the Miller case)? Of course, no follow-up to cover such details. Annoying.

Movies: I caught First Blood on late night television; never saw this movie. This is one of those movies that must be called "violent porn." The movie involves a psychologically scarred Vietnam Vet being taunted by cruel local cops* (in the Pacific Northwest to supply a useful forest environment for his counterattack) so much that he snaps.

This justifies some violence and gunplay, ending up with an emotional outburst about how he cannot survive in postwar (not won because "somebody" didn't let us win) America. Alive and ready for sequels (and spoofing in Hot Shots: Part Deux).

Enjoyable airheaded entertainment, but a bit distasteful if taken too seriously. Taken in the first way there is some choice dialogue such as this by the local sheriff:

It doesn't make one goddamn bit of difference, Dave, and you know it! If one of my deputies... gets out of line with a prisoner then the prisoner comes to me with it. And if I find out it's like he says I kick the deputy's ass! ME! The LAW! People start fucking around with the law then all hell breaks loose! Whatever possessed God in heaven to make a man like Rambo?

And, the closing monologue was especially quotable. Lost something toward the end, but that monologue was worth waiting for. Definitely good late night fare.
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* A young David Caruso played one of the few non-assholes. Brian Dennehy played the sheriff, an early role, and one which he basically plays two roles: the anti-drifter asshole at the start, the more mature (after he finds out who he is dealing with) person we see later on. Of course, Rocky is in it too, and basically does what the viewer wants him to do.

Various

And Also: I notice a lot of blogs are going into "group mode." I personally don't like some of the people chosen: Jack Balkin's blog, for one, has a few annoying people there now, though (to be fair) some of the extra posts are good. Will the blog multiplexes be selling expensive popcorn? Have "personalized services?" (Who expects that at the movies? Sheesh.) Blogs, the new editorial pages.

Rove: I read a quote from a generally reasonable NY Republican member of Congress calling Joe Wilson a liar in defense of Rove: this is the sort of thing Krugman is talking about (see last entry). At some point, reasonable people -- yeah even politicians -- have to say "enough!"

Anyway, Judge Tatel's concurring opinion in the Judith Miller Grand Jury Case is pretty interesting: a qualified common law argument for press/source privilege with the importance of breaching it factored in. I wonder if those who sneer at privilege would think some member of Congress could force testimony in one of those congressional hearings largely in place for political purposes. Or, a true fishing expedition in a grand jury for a petty crime. Clearly, not an all or nothing matter.

Book: I just finished Religious Revolutionaries: The Rebels Who Shaped American Religion by Robert C. Fuller (good thing: I also just picked up The Historian -- the new best seller opus for those who bit their teeth on Harry Potter books). One thing that stood out besides its definite decision not to say anything bad about any of the people included (come on: some revolutionaries are bad) is its emphasis on spirituality.

A healthy chunk of society do not believe in organized religions as such, but are spiritual (in a broad sense) people. I reckon these are many of the people accused of ignoring the importance of values and such. It is annoying, partly since in some fashion I am mixed in here (though some of the concepts discussed in the book either went over my head or was of the "uh no" variety), since we are talking about some downright morally concerned individuals here.

Clearly, these people have to figure out a way to form into a church or something. The Unitarians, for instance, are supposed to be pretty vague in doctrine, right? Make sure you have certain holy days (you know, other than the first day of baseball and football season), rituals that turn out to be based on superstitions you'd sneer at if people in some third world country did them, and includes going to church once a week (at least in theory), and maybe you wouldn't have these people called anti-religious. Probably not, I know.

Baseball: The Braves/Mets game last night was a pitching duel (a rarity when Glavine is pitching, especially against this team), and the Mets lost on a muffed grounder (hit by one of the Braves many rookies): 2-1. This is said by some to be a "great game." No. It's a horrible game, once in which you bite you nails and see the team lose to hated rivals in the eighth with two outs. Call me not a true fan, but I find such games anti-fun. Oh, and since the Mets are .500 and something like eight games out of first, can we stop hearing an up to date account of their place in the standings? It just is not relevant at this point.

Meanwhile, the Yanks were rocked, but this was expected -- so many people basically counted out the rethread they had out there (actually a pair) against Boston that they surely expected to lose. And, lose they did. But, they won today, so have at least a split. Who know? They can win tomorrow too and almost be tied for first. Their perilous pitching situation makes the next two weeks trouble, but even with a healthy staff, a split at Fenway would have been fine. Let's see if Baltimore can take advantage.

Press Helps Rove Some More

Baseball: Good start of the Second Half with NY beating Atlanta and Boston, both in late innings. Still, with the surprisingly good rookie pitcher on the Yanks getting hurt, they have a tough road ahead. Will Al Leiter be a Yank once more? Hockey is back. Don't really care, but some do. So ok.

What's with these special prosecutors anyway? Kenneth Starr is hired to investigate an obscure land deal and ends up impeaching the President for not coming clean about his sex life. And now Patrick Fitzgerald, the US Attorney from Chicago appointed to find out who violated the Intelligence Identities Protection Act by leaking to conservative columnist Robert Novak the identity of a covert CIA employee, ends up sending to prison a New York Times reporter who never wrote about the case.* ...

First and foremost, it is wrong to put reporters in prison for keeping faith with their sources. Our ideal of an open society, and the free flow of information it presupposes, depends on protecting and encouraging such whistle-blowers. Also, as Justice William O. Douglas has written, when juridical values conflict, "the press has a preferred position in our constitutional scheme, not to enable it to make money, not to set newsmen apart as a favored class but to bring to fulfillment the public's right to know." Last and far from least, under the Bush Administration the free press has suffered a series of setbacks. ...

Be that as it may, if I am right, the matter of a reporter's relationship to his/her sources won't be resolved until we break up the media behemoths; transform the judiciary into one that shares the views of Justices Hugo Black, William O. Douglas and William Brennan about the primacy of the First Amendment; repeal the Intelligence Identities Protection Act; and recognize that criminalizing journalists' conversations has only contributed to the confusions of the present situation.

-- Victor Navasky (The Nation)

What the hell is this guy talking about? The Clinton Chronicles are not in any way on par with outing a CIA agent for sordid political reasons! Let's repeat: obscure land deals and bjs are not on par with outing a CIA agent because top White House officials do not like the fact her husband informed the public how the President lied us into a war. So what the f--- is this guy from the NATION comparing the two for?

Some sort of misguided protection of the freedom of the press. See this thread for more rational discussion. But, again, let's look at Navasky's comments. Karl Rove is not a "whistle-blower." You know this right? Bringing up how Bushites hurt the press while ignoring how the media has basically helped them is downright stupid. My anger is raw here because this "not bloody getting it" from people who should know better really drives me up the wall.

I'm also not sure how media monopolies (I guess because Cooper's employers caved -- note how the "public's right to know" is finally coming out now that they did) factor in here. And, again, only when Cooper's hand was forced was the information released. Again, HELLOOOO. Maybe his last comment is right (as the facts played, it's surely not obvious), but you have to do a better job than this (usual press friendly platitudes, a somewhat off topic anti-Bush shot, and missing or ignoring the complexities of the case).

And, then there are those like Tim Noah in Slate and Richard Cohen in the Washington Post. They, reformed reluctant hawks, are part of the "reality community" so basically know Bushies are scumballs. Cohen in particular has been angry of late at how scummy they have been. But, they have to continue to try to be rational souls, middle of the roaders who aren't TOO strident. So, Noah basically suggests Rove didn't quite know what he was doing.

Cohen starts a today's column by basically suggesting Rove is just doing what political operatives always do. Nothing special with "turd blossom" here. It's just politics. To wit:

If I were a nicer person, I would have some sympathy for Karl Rove. After all, in a town where many of the people, if they're honest about their job titles, would put down "character assassin," Rove merely tried to impugn the bona fides of a Bush administration critic, the former diplomat Joseph Wilson. This is what Rove is supposed to do and what he has done for so long.

He too notes: "But I do have to concede that he probably did not set out to expose a CIA operative, the by-now overexposed Valerie Wilson (nee Plame), a specialist in weapons of mass destruction." Surely he wouldn't do that! What exactly does this mean? When he talked to reporters and spoke of Joseph Wilson's wife as a CIA agent, did he not "set out" to expose the fact? I assume if there was another way to "impugn," he would have used it. OTOH, those who know the guy, speak of him as a SOB. Not that you know it from this column. He ends:

But the real scandal is the ongoing mess in Iraq, the murder of innocent children (is there any other kind?) and the false notion that, somehow, taking out Saddam would make us all safer. London gives the lie to that.

This reflects the editorial's title: "Crime of Karlgate is that it keeps us from real issues." As someone noted, this misses the point so badly it's rather sad. Remember how we got into this "mess?" Yup -- with a mentality that winning meant more than the facts, since those in power in the White House were right anyway. So, however we can accomplish our ends, it's fine. Truth is but relative. This is the real issue. And, the Plame Case -- in a way that hits home to a lot of people because of its basic simplicity -- is this in spades.

Paul Krugman in Friday's NYT realizes the fact:

Ultimately, this isn't just about Mr. Rove. It's also about Mr. Bush, who has always known that his trusted political adviser - a disciple of the late Lee Atwater, whose smear tactics helped President Bush's father win the 1988 election - is a thug, and obviously made no attempt to find out if he was the leaker.

Most of all, it's about what has happened to America. How did our political system get to this point?

Anyway, I'm reading an interesting book that does help me refresh my faith in human nature, entitled Religious Revolutionaries: The Rebels Who Shaped American Religion by Robert C. Fuller. Interesting stuff while providing a nice summary of some important figures in American religious history. Just one more area that is useful to know, but is sometimes too easily forgotten.

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* This tidbit is raised various times. Just what is it supposed to prove? Since she never wrote anything, I'm not sure how much the public was informed. This is the point right? And, the author clearly knows the various gossip on why she was called to testify. The fact she never wrote the article is largely irrelevant one way or the other.

Press Is Angry ... BFD

Example: The NYT ends a recent story on the case with a soundbite from a former Bush insider that belittled Plame's importance. Compare and contrast. The information is obviously out there, since bloggers generally are not investigators per se; it just is too often poorly supplied to the public. If we must be editors, weeding out the truth among the bs, perhaps they can save some money on editorial salaries. This could lead to a drop of the cover price. The saved .25 can be used to make phone calls or do laundry.

The issues here, fundamentally, run much deeper than the subjective attitudes of the press corps vis-à-vis the White House. It has to do with the conception of journalism as primarily a stenographic activity, concerned with duly recording official statements and, perhaps, balancing those statements with contradictory quotations from official or quasi-official members of the opposition.

-- Matthew Yglesias

This Karl Rove / Valerie Plame thing is a core example of what is truly wrong with media coverage these days. First, Jacob Weisberg over at Slate has it right to dissent from the railing from various libs in the press against the violation of source immunity. In fact, he argues that outing of the sources are justified: "Outing the Plame leakers wouldn't undermine the use of confidential sources. It would merely put leakers on notice that their right to lie and manipulate the press is not absolute and not sacred."

Exactly. Put aside the value of letting the government get involved; the point is that the press hasn't done its job. Source immunity is a means to an end, not the end in itself. There seems to be a big missing of the point here. A few point out that contracts to protect sources are binding, thus this also was a bar against leaking their names. Interesting, but (1) Miller's sources relinquished her of such legal obligations and (2) The press surely are not basing their arguments on this tidbit; if "the public right to know" (scoff) required it, they would be willing to violate that principle.

Air America and other liberal sources such as those on the blogosphere are gleeful that it seems like Karl Rove and Scott McClellan have been caught in lies and mistruths respecting the Plame matter. And, the press corps were clearly pissed about it, basically ripping Scott a new one (so to speak) at a recent press conference and "gaggle." Yippee. Their scorn is a bit hard to take since they should have known (and probably did) what happened long before now. It didn't take the special prosecutor and a federal judge to force Matt Cooper's hands to know this stuff. And, if it did, it doesn't make their source immunity arguments very credible.

What the release of press memos and so forth did was to make Scott et. al. look really bad: it was a "smoking gun" so to speak. Do the press need things to be spoonfed to them for their ire to arise? The mouthpiece of the administration has bullshited the press for years. What is so special about this situation? An easier target? No, their anger and passion seems a bit fake to me.

The facts were know for YEARS. These events occurred TWO YEARS AGO. You know, before the 2004 elections. And, the press (in part because the sources were far from secret -- in fact, as noted in Speaking Freely by Floyd Abrams, a lot of "top secret" information is leaked in D.C.) were not out of the damn loop until now.

They knew what was going on, but did not fully tell the American public, and when they did so, it was weakly expressed in a way in which the Bush Administration was able to prevail. Let's be blunt about this: the net result is that the public was basically misinformed. And, we have to hear these people sanctimoniously talking about the public's right to know? Yeah, you did a great job doing that.

And, even now, the full story is not truly being put out there. This would include clear headlines and spelling out in lede paragraphs exactly what is at stake. For instance, one rarely hears about Robert Novak not only outing Plame, but also a cover company that the CIA used. It is still not always clear exactly why cover was blown: revenge or perhaps as a means to smear her husband's mission (the findings of which the evidence then and now shown was basically accurate, again why is this not repeatedly referenced?).

Nonetheless, the very act was wrong and motivated by crooked political reasoning that did not have national interests per se at heart. But, it is minutiaea -- did he technically violate the law etc. -- that is dwelled upon, partly since this was a necessary part to protect those precious sources. After all, no crime, less legal right to force the media's hands. And, anyway, this whole matter was a bit of a sideshow. Not to belittle the fact, but it surely can't hold a candle to misleading us into a bloody war. Yet another way the press did not inform the public.

So, as some chuckle with glee at how bad Scott and Karl look, remember that they too have been laughing for years. It is like those reminding us how low public opinion holds those in power. Yeah, public opinion or not, they will be in power for years to come. Even an optimistic account would suggest control of the House would take more than one election cycle, getting a net win of six Senate seats pretty hard as well. And, the lead guy himself will be with us to January 2009, thanks in some small but significant part in the press not really doing their jobs.

So they might doing it now -- even the Colorado Rockies win sometimes.

Book and Movie Review

This entry is being written in part with my new optical mouse -- just happened to see it in CVS, and it saved me a trip to Staples. It works fine so far; knock on wood. My old mouse just suddenly stopped working right. This seems to happen enough times to be noticeable: out of the blue, things happen. Usually, there is a clear reason, but it is a bit amazing.

Movie: The movie for this weekend was Dark Water, which is a remake of a Japanese movie, so it is not surprising that it reminds one of The Ring. It concerns a troubled mom (Jennifer Connelly) with a young daughter that finds going thru a divorce the least of her problems. Disparate parts of the movie are interesting and overall it is technically well done.

Nonetheless, the story is somewhat lacking, and overall I was not satisfied with the finished product. The script overall could have used some polishing. Still, the performances are very good with each character just a tad bit odd ... the teacher is not, but it is odd who plays her.

Book: Floyd Abrams, who represents Judith Miller, recently wrote a book (Speaking Freely) concerning his career as a press advocate. It is not really satisfying, except as a "speaking to the converted" sort of effort. The accounts (from the Pentagon Papers onward) do not really tell us anything new, and Abrams would have done better to include a few more complicated cases.

Putting aside the campaign finance case, he eventually won each one, and the facts are pretty blatantly slanted in one direction. Libel suits alone suggest the nuance involved here, but the three he included did not have much. Abrams ended with an all to brief look at other nation's path in the free expression arena (for one thing, they protect sources, but also sometimes a lot less than we do as well) as well as a particular media critic. More of that would have been helpful.

For instance, take the campaign finance case. I join him in believing the McCain/Feingold legislation was just too blatantly overbroad, resulting in a clearly unconstitutional statute. The problem with the legislation, however, was a bit complicated because registered PACs can do things the covered groups could not, including political ads that make some comment about those running for office. The idea that a corporation, including a non-profit, cannot say something within sixty days of an election should be obviously unconstitutional. Nonetheless, the PAC issue complicates things, but Abrams only brings it up in large part as an extended aside ... after railing against the legislation generally. This is kind of cheating.

By the way, it was striking to see Judith Miller as part of a debate on protecting sources that C-SPAN aired over the weekend (it was taped last November). The "anti" side had a former Bush official (I was laughing so hard at some of her comments that someone wondered what was so funny ... I noted that she probably wouldn't think it was funny) and someone who later was on C-SPAN criticizing the CIA as covering something up (basically saying no crime was committed, so the press was wrongly targeted).

The "pro" side basically had to avoid an important issue when referencing Miller/Michael Cooper: all this talk of the press needing immunity to inform the public and not become tools of the government is crap to the degree they (especially Miller) did just the opposite.

But, hey, I still support press immunity laws (at least, to some degree). It's just a complicated thing as so many things are. Speaking Freely, however, wasn't quite that. And, given the overall genius of the First Amendment is its complexity, this is not only ironic, but a basic flaw.

Catholic Church and Evolution

Evolution in the sense of common ancestry might be true, but evolution in the neo-Darwinian sense - an unguided, unplanned process of random variation and natural selection - is not. Any system of thought that denies or seeks to explain away the overwhelming evidence for design in biology is ideology, not science.

-- Christoph Schönborn, the Roman Catholic cardinal archbishop of Vienna, was the lead editor of the official 1992 Catechism of the Catholic Church.

I was taught evolution in Catholic school. The two are not really mutually exclusive. Does the Catholic Church really think God is directly guiding each and every development of the natural order? The editorial somehow puts forth the idea that individual self-worth, the "necessary" value of each individual, is cheapened by evolution. This in no way needs to follow. I do not personally buy this "necessary" talk as if the existence of each and every one of us was blessed by a higher power (anti-abortion thought clearly rears its head here). Nonetheless, I do honor the self-worth of each individual.* The fact they developed by means of natural selection does not change this for me.

Furthermore, there seems to be a confusion here between "design" overall and natural selection in particular instances. Christian believers who support evolution overall believe that God was involved in the creation of the natural selection process. He in some way continues to be involved as well, especially in connection with his top creation, human beings. Jesus and so forth factors in here as well, especially for Christians per se. One might say that natural selection overall was "designed." Nonetheless, the process is random in specific instances. No need for direct divine intervention in the creation of a new species of ferns. This is in no way "ideology."

Once upon a time, Roman Catholics was a small minority in this country, not even five percent of the population. Now it is a significant one, the major single Christian sect (not counting Protestant as one) in this country. I fear the prospect of Catholics overall getting involved in the evolution wars. Roman Catholic cardinals have enough to worry about in this harsh world. Keep your hands off evolution -- it is not going to help you in the reproductive wars and so forth. And, clearly, the science is a bit confusing for the leadership as well.

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* Other than the fact it doesn't work, this is another reason I'm upset about the "flypaper theory" about the war in Iraq. The sentiment has a certain coldheartedness that is especially harsh given the fact that our fearless leader is supposed to be a Christian. The "flypaper" is basically Iraq -- its people basically bait. The wheat is not separated from the chaff.

This is apparently acceptable, since hey, better than us! The "us" by the way does not include our soldiers, aid workers, contractors, and so forth. We are rightly upset that fifty people died in London -- darn if the flypaper didn't work in that case -- but what of the thousands more of innocent Iraqi civilians who are killed? I assume the sentiment is that their blood is not equal to us. They warrant respect somewhere below blasocysts or brain dead patients in the current political environment.

This does not justify those that attack the policy with hyperbole ("not one attack was stopped" etc.), but it is a striking flaw all the same.

Nomination Thoughts

A few thoughts respecting the upcoming nomination.

Who should be chosen? This is a different question of who can be chosen. And, it is a different question depending on how you look at the matter. Obviously, President Bush can choose nearly anyone. He can choose someone in the blogosphere. He can pick Jenna Bush. And, the Senate has the power to block or confirm said individuals.

Becoming a bit more serious, one argument is that he could pick a strong conservative that is a buddy (Truman picked a few less than stellar buddies to the Court)and/or gift to some political base that he needs to satisfy. And, since he was elected, he has said right. One might call this a "mandate" to be guided by his own judgment. Thus, talk about a compromise pick, someone like O'Connor, or whomever is silly.

I personally do not share this philosophy. I am more sympathetic to the argument that as a leader of a divided country, he should pick a justice with a broader base of support as well as one that meets various other qualifications. The fact that O'Connor was a swing justice adds to this sentiment, but it would be true overall. He was chosen for various reasons, some quite dubious, and only by a plurality of the electorate. This suggests a limited "mandate."

It is true that who is President factors into the mix. This is a political matter, which is partly why ideology matters. Likewise, the Senate (controlled by his party) are involved. But, neither group are so controlled by Republicans that there should be a blank check. Furthermore, simply put, it is ill-advised for them to have one. The ultimate concern should be the best choice. In this country and with these political actors, some balance must be put in the mix. Thus, the Democrats are right to force some restraint.

The Democrats by the way are already f-ing things up. (1)At least one of the 14 that are Democrats are already saying that ideologically is probably not an "extraordinary circumstance" in respect to a filibuster pursuant to the recently agreed upon compromise. This pre-emptive surrender is both stupid and a wrong reading of the agreement. (2) Sen Reid et. al. are saying Gonzales is an acceptable choice. You don't do that. You don't give the other side an edge. It's stupid.

And, wrong in respect to Gonzales. First, this cynical argument that he is the best we can do is ill-advised. Such lack of moral principle will likely come back and bite you. Furthermore, simply put, if he is unfit to the role of A.G., he is unfit for being a justice. And, who knows how he will act once appointed to the Court? Pissing off the Right isn't enough, especially since helping Bush in this case very might help them as well.

A few years on the Texas Supreme Court (yeah, that's qualification) doesn't tell us too much. A few opinions that suggest he won't strike down Casey (abortion) and that he isn't Priscilla Owens is a slight reed to allow "quaint" guy on the Court ... and that wasn't the only things wrong with his record.

The Democrats are putting O'Connor out as a model. This is probably acceptable, though they shouldn't praise the deciding vote in Bush v. Gore (and the person who upheld principles of federalism over the right of death penalty defendants a few too many times) TOO much. Anyway, one interesting thing about her is the state legislative experience. This is quite useful and is probably a good thing to have on the Court.

Other things to look out for (not necessarily in order of importance): the nominee's overall judicial philosophy (equality, liberty, separation of powers, et. al.), his/her stance on precedent (including when it is acceptable to limit or even overrule it ... as well as expand it), their resume and life's work (honestly, I'm not oppressed with Bush's buddy's c.v.), their consistency and overall intellectual integrity (in all senses of the word), independence, and willingness to truly work with Senate (within reasonable limits) during the confirmation process.

The list is not all inclusive, thus I probably left various things off. The useful thing to remember though is that simple ideology only is important, but is not conclusive. Let's say we take the "Scalia" model. I'm not sure if this means someone as much of a bully as well as someone not truly willing to accept the consequences of a consistent application of their philosophy.

This nomination is important for the simple reason that we are concerned with the replacement of a key player in the top tier of the third branch of government. One can exaggerate the importance, but it is surely present. It is a political process (Balkanization noted other countries have a more independent process to select their judicial officers; some sorta career civil servants) and given the times it will be somewhat messy. This is acceptable -- GB's cries for calm is just a tad hypocritical.

Let's see who is chosen.

The Press Didn't Do Their Job

And Also: A good mashnote to progressives (the reality based community) in Congress.

Wyoming and the federal government are the only two places that do not have some sort of press shield law (the situation in places like Puerto Rico and Guam is generally not mentioned). So, sure, there should be a federal shield law: 49-2 is not just the breakdown of the Electoral College in 1984, it is pretty strong evidence something is wrong. The problem is that shield laws tend not to be absolute. So, it probably would not help the two reporters in the news today, one who will sent to jail for not revealing her source(s) -- even after the anonymity was waived. After all, the outing of a CIA agent is a serious crime, and this is just not the typical whistleblower situation.

Some, such as Mark Kleiman, are rather cynical about the concerns for the press in this case. The suggestion that Judith Miller et. al. are to blame for the election of George Bush and the next few Supreme Court justices seems to be a bit exaggerated. Nonetheless, who knows. If the press actually fully reported this story (and many knew the sources but didn't tell), who knows if it would help 2% of the population in relevant areas to switch their votes in 2004. Anyway, Judith Miller's true "crime" was her reporting on WMDs.

But, as Kevin Drum says in a worthwhile discussion, a principle is involved here, not just people. Still, following the lead of my last post, it's a rather bloody bad application. A basic gut feeling I have had for awhile is that the media has in effect not done their job here. The "sources" ARE the story to a large degree. By not fully airing out the details, especially after the sources waived anonymity (admittedly under some duress, but Karl Rove? come on!), they went against the whole point of the privilege.

The whole idea of privileges is that the benefits outweigh the costs of not testifying or whatever. For instance, attorney/client privilege. I am unclear what the benefit has been in this case: the whole story continues to be muddled and questions left unanswered, in part because of the source protection. Robert Novak is a slimeball, obviously. Still, given how the mainstream press has been suspect in truly addressing the problems of this administration, their concern would be a bit more sympathetic if the source protection (even if they do not have clean hands) actually FURTHERED the pursuit of the truth.

I'm unclear how this truly occurred. We should point to the true villains here: the Bush Administration, though BTC News notes that some inkling is being made that one or more members of the press themselves spread the "outing" (to confirm it?) in their questioning. But, the press doesn't come off well either. I'm sure the prosecutor is free from blame either. So, blame can be shifted around. And, until the facts come out, I don't know if the testimony in this case is worth the cost. Cost that sure will come, since (check Drum) shield laws often actually are worth having, even if this is a hard case.

Still for those not crying for Argentina tonight, I understand.

Seeing the Forest For The Trees

And Also: Some are suggesting torture boy will be nominated to the Supreme Court, and liberals might deem him the best possible choice among the likely options. After all, he seems to be pro-choice in some fashion. Let me draw a line as I did when he was nominated to be attorney general. This is NOT someone I want having the job of upholding the Constitution. I do not want this person to defame the office. Some standard must be set. This might be "quaint" in this day and age, but so be it.

These two decisions prompted outrage not because either was a radical departure from precedent —neither was—but because they called attention to just how many grains of precedent had been piled atop the terms "public use" and "interstate commerce," reaching so far from the common-sense meanings of those terms as to seem preposterous if one is only eyeballing the heap, rather than attending to the process.

Stare decisis is an important guarantor of stability in legal rules: By insisting on like treatment of like cases, it provides people with a more detailed sense of when they're engaged in constitutionally protected conduct than the stripped-down language of the Constitution alone ever could. But legal rules, to be legitimate, should also reflect a shared public understanding. That's not to say the polls must vindicate each particular court ruling. But when stability begins to undermine the public's sense that they understand the most fundamental rules by which they're governed, it's a sign that jurists need to be willing to step back and see the heap.

-- A Heap of Precedents: Slippery slopes, stare decisis, and popular opinion

This article points to a reason why Kelo (takings) and Raich (medicinal marijuana) raised so many hackles across the political divide. Some people noted that the result shouldn't have surprised anyone, since they fit snuggly in past precedent. I felt this sorta missed an important point: none really went this far, so strongly gave the gov't discretion.

An important point, I think, especially as we look on while a new justice is appointed. The "formalism" proponents on the Court like strict rules. Justice O'Connor and Breyer are much more flexible; maybe too much at times. Nonethless, sometimes rules lead one to miss the forest for the trees. Sometimes a particular application might be formally reasonable, but practically extreme. The public in particular feels this way, but so does many in the legal profession (suggested by lawyers who felt one or both of the rulings crossed some line or generally favor O/B's style).

This sense of perspective is a good thing to have in the courts, at least one view among many. It also sometimes is important to the the ultimate protection of the spirit of a law or constitutional principle. Sometimes form over substance misses the point, even if crossing the line is sometimes done in a fog.

Interesting article.

O'Connor Retires

Kenny Rogers: Where is the soft spoken dude that New York fans knew and loathed? He punches a water cooler (ala Kevin Brown, but he is a s.o.b.) and hurts his non-pitching hand. Not satisfied, he did a enfant terrible act against some cameramen and got himself suspended for twenty games. Weird. And, the thing is that Rogers (40) has been great this season. Talk about temporary insanity.

A few days ago a few bloggists jokingly spoke of the decision of "O'Connor" to retire, hiding the fact it was some Baltimore prosecutor named "Sandra O'Connor." Joke on them: the real deal chose to retire. And why not on the usual blockbuster day for announcements, the Friday before the holiday?

The reports generally were surprised and expecting a big battle. The activists didn't have a chance to fight over a real juicy nominee (or a nominee at all) for over a decade, so there is a lot of pent up passions. Many also had some good things to say about Justice O'Connor, the bane of formalists everywhere. And, she deserves some respect: her record was somewhat mixed (a conservative after all), but her case by case approach is a healthy example of self-restraint. And, neither side quite gets what they want, but overall the results were pretty centrist.
But, let me comment on the uncomfortable fact that she was also the deciding vote in Bush v. Gore. Reports leaked out that she was tiffed when it looked like Gore won the presidency. And, she was tiffed that the Florida Supreme Court basically ignored the Supreme Court's non-decision in the first round of the litigation, which had the net effect of basically running out the clock. No problem: though Justice Kennedy probably wrote the opinion (it has his strict equal protection flavor), she helped her choice become President. And, the person who would eventually appoint her successor.

Replacing CJ Rehnquist would have not been as trivial of a matter as some suggested, but clearly Justice O'Connor is this generation's Lewis Powell -- who she deeply respected. In such areas as religion (symbols/funding), speech (campaign finance), abortion (where does "partial abortion" go now?), criminal justice (though she went both ways in various 5-4 type decisions), and more ... swing vote. Also, as Slate notes, her vote is more than one of nine. It quite often is THE vote, bending the Court in her general direction. And, she was sure enough of herself (and her incrementalism) to establish herself. Not only the first woman justice for sure.

El hyprocrito wants a fair confirmation process. Yeah, don't we all. Some want the Democrats to hang Republicans by their own petard: no more cover for them, appoint a conservative nut or lose your base. This might help the Democrats in upcoming elections, though any regaining of power would likely take some time. And, meanwhile, Bush appoints a couple more justices. Kennedy was confirmed in 1988 and will remain important for years in all likelihood. These are the stakes folks.

So, at least a threat of a filibuster is important because this is not just about electoral politics, but the make-up of the Supreme Court. And, for all the talk of filibusters, nearly all of Bush's nominations for the lower courts were confirmed. So, where is the cover for moderates? Who really is being blocked? Hopefully, EH will realize there are plenty of reasonable conservatives out there, and limit the damage. I actually have a bit of hope of that.

But, time will tell.