E. J. Dionne vs. Democracy

E J. Dionne is not unintelligent, and occasionally in the past he has displayed the most important moral asset of a political commentator: the ability to concede a point to your opponent in order to strengthen the rest of your argument.  But since the reelection of George W. Bush, Dionne has been a bit off his rocker.  Consider his piece in this morning's WaPo (tip to RealClearPolitics):

Should a temporary majority of 50.7 percent have control over the entire United States government? Should 49.3 percent of Americans have no influence over the nation's trajectory for the next generation?

There are so many howlers in those two sentences, one would suppose he is intentionally competing with Jimmy Carter for some kind of goofiness per word award.  All majorities are temporary, in the sense that they last until the next election. Every electorate and elected body is making choices future generations will be stuck with.  And if he means that the Republican majority is temporary, well he is almost certainly right.  Though how temporary is anyone guess.  I say this working on the general rule of thumb that no party wins forever.  But that means that any legislation undertaken in any democracy would invalid, if being temporary made it so. 

And what about this 50.7 vs. 49.3?   How much of a popular vote margin does Dionne suppose  is necessary, in order for a President to nominate Supreme Court Justices, especially since the popular vote does not determine the outcome of Presidential elections?  But I wonder if Mr. Dionne objected when President Clinton nominated two Supreme Court Justices, Bryer and Ginsburg, in 1994, even though Clinton was elected in 1992 with a mere 43% of the vote.  About 56% of the electorate voted against Clinton that year, though they split their vote between Bush 41 and Ross Perot.

And what exactly does "control over the entire United States government" mean?  The 50.7% that Dionne mentioned gave the Republicans the Presidency alone.  Congress was won by state elections, and the Court will never be under Republican control for the simple reason that its members never need stand for reelection. 

And that's just Dionne's first sentence.  It would be charitable to assume that he is in some kind of snit, but that won't do.  He opens with the narrowness of Bush's popular majority in order to give the impression that its the popular will that matters, and that such a small majority doesn't really amount to a democratic mandate.  But what he is desperate to protect are all those things that an unelected court enacted on behalf of liberals, things like an absolute right to an abortion that they could never have won in a popularly elected Congress. This is deliberately dishonest.

Should seven human beings really be allowed to modify the Constitution at will?  Well, maybe not.  But they are.  What we found out in the last century is that the Constitution itself, the arrangement of offices and powers that the people ratified, in fact allows the Court to do this.  But the rules for placing people on the Court have an influence (if a rather unpredictable one) on what kind of Court wields such powers.  Those are the rules.  If you don't like 'em, try and change 'em.  But don't pretend that they are suddenly unfair because now they don't favor you. 

The truth is that Dionne doesn't really like democracy very much right now because he doesn't like the majority that is (however temporarily) in charge of it.  That is a sign of moral decay. 

 

 

Abortion and Judicial Politics

The Argus Leader has this in a piece by David Kranz; it no doubt represents the views of many pro-life activists:

When Justice Sandra Day O'Connor announced her retirement Friday from the U.S. Supreme Court, it created some optimism among South Dakotans who are trying to pass a law banning all abortions. . . .

"This is huge, a great opportunity. We have been working every Thursday for six months on a plan when Rehnquist retired. Now, we will initiate it for O'Connor's replacement and will work very hard, turn up the heat and the machine," Unruh said.

I think it is a poor idea to choose Supreme Court justices based on any single issue, even this one.  I would like to see Roe overturned for two reasons: it was a shameless piece of judicial invention, and it is inconsistent with the principles of the Declaration of Independence.  But it is very hard to manipulate votes on the Court by this blunt method.  Rather we should focus on getting judges who read the Constitution instead of trying to rewrite it at their whim. 

Besides, if you want to really do something about abortion, the way to do it is to it is to press for reforms that are already popular among voters at large.  This piece by William Saletan in Slate lays it out very well (toth to Real Clear Politics). 

Reporters asked Sen. Rick Santorum, R-Pa., what might happen to Roe. Santorum is one of the most avid pro-lifers in Congress. But he also serves in the Senate Republican leadership and faces a tough re-election fight next year. "I'm not sure that Roe itself will be in jeopardy," he demurred. The Pittsburgh Tribune-Review headlined his comments, "Santorum predicts limits on abortions." The paper's lede said Santorum "expected the next justice to be more inclined to ban so-called partial birth abortions. He also predicted parental consent for minors seeking abortions will likely get a more sympathetic ear."

Why do Bush and Santorum pick these restrictions? Look at the polls. Do you want Roe overturned? Two-thirds say no. Should partial-birth abortion be illegal? Two-thirds say yes. Should teenage girls have to notify their parents before getting an abortion? Four-fifths say yes.

I suspect that the 2/3rds against overturning Roe is misleading.  Most folk assume that overturning Roe would mean an end to legal abortions.  In fact abortion would then have the same status as gambling used to have: some form of it would probably be legal in most states, and all forms illegal in a handful. 

The trouble is, there is no way to attack Roe without sounding like you are trying to criminalize abortion everywhere, whether that's your intention or not.  I think the best strategy for conservatives is to stick to judicial restraint as our most important principle and work for it honestly.  We want judges who read the Constitution fairly, not those who would institute conservative principles through legislative fiat. 

We are a long way from a court that would overturn Roe, but a slightly more conservative court would probably clear the way for parental consent and an end to such atrocious practices as partial birth abortion.  But it would be up to us to push such measures through the old fashioned way: by winning elections and votes in Congress and State legislatures. 

Blogging the Supreme Court nomination

Here's an interesting article from Reuters: "Blogs seen as powerful new tool in U.S. court fight." Excerpt:

President Bush has yet to name a replacement for Sandra Day O'Connor, who announced her retirement last week. With the vacancy and eventual nominee comes intense debate over the court's future.

"A key part of our strategy is reaching out to the Internet community," said Jim Manley, spokesman for Senate Democratic leader Harry Reid of Nevada....

Reid and other political leaders now hold conferences with bloggers in the same way they meet with traditional press.

"I think they are instrumental in getting information out and deconstructing spin," said Eric Ueland, chief of staff to Senate Majority Leader Bill Frist, a Tennessee Republican.

"They are much defter and swifter than the mainstream media," he said, adding that blogs are also "very clear in their philosophical and ideological leanings."

More Retirements

The badly kept secret is that Justice Rehnquist will resign from the Supreme Court today.  There have been some rumors that John Paul Stevens, who is the oldest member of the Court, will also resign, but that rumor doesn't seem to be taking.  I think two vacancies on the Court almost guarentees an Alberto Gonzalez nomination.  Given my track record with predictions, I just ruined Gonzales's chances. 

Ken Livingstone

Remember that in 2003 Ken Livingstone, mayor of London, said "I think that Bush is the greatest threat to life on this planet that we've most probably ever seen."  One hopes he is reconsidering that opinion. 

French Blogs

BusinessWeek:  Let Them Eat Cake -- And Blog About It

London

I'm not going to report the news from London because, undoubtedly, everyone already knows.  What I am offering are my quick thoughts and opinions on this.  If you agree, disagree, or have anything to add, drop us an email.  I'd like to hear from our readers what they think of this.

Personally, while I mourn for our friends and pray for the dead and injured, I hope this strengthens our resolve.  The reason I'm so supportive of this war and so passionate about it is because I want to win.  We cannot afford to let these people continue these actions.  It's not just a threat to us, but to all of humanity.  Here we have today the confirmed murder of Egypt's envoy to Iraq, Ihab al-Sherif, a Muslim killed in an Arab country.  These people obviously do not discriminate in who they kill, and will gladly kill or give their life in order to achieve their objective.  These people would have no remorse for killing your family, your children, your relatives, and your fellow Americans.  I don't want to wake up some morning and discover that another 9/11 event has occurred.

The events of 7/7 won't be forgotten by us.  We must get past the politicization of the war and focus on a united front against the terrorists.  When you have comments that undermine our efforts (e.g., Dick Durbin) it only assists these people, it empowers them to see division and weakness.  In Mogadishu, where Clinton fled in the face of violence, Osama bin Laden learned that he could defeat us.  That he could easily make the world's superpower run by killing Americans.  He learned from it, and brought the fight to our doorstep.  This must end.

London mayor Ken Livingstone responded in a powerful and excellent way (and in clear contrast to what our own media is saying):

... I wish to speak directly to those who came to London today to take life.

I know that you personally do not fear giving up your own life in order to take others - that is why you are so dangerous. But I know you fear that you may fail in your long-term objective to destroy our free society and I can show you why you will fail.

In the days that follow look at our airports, look at our sea ports and look at our railway stations and, even after your cowardly attack, you will see that people from the rest of Britain, people from around the world will arrive in London to become Londoners and to fulfil their dreams and achieve their potential.

They choose to come to London, as so many have come before because they come to be free, they come to live the life they choose, they come to be able to be themselves. They flee you because you tell them how they should live. They don’t want that and nothing you do, however many of us you kill, will stop that flight to our city where freedom is strong and where people can live in harmony with one another. Whatever you do, however many you kill, you will fail.

The British are a strong people, just like us.  The British have undergone far worse things than this (e.g., repeated attacks by the Irish Republican Army - a U.K. separatist group, the constant bombing of cities by the Nazi's during WWII, etc.), and they will not cower from cowards -- this is exactly what Livingstone was saying.

The War goes on.

Whatever the immediate political effect of the terrorist attack on London, I predict that the British will not respond as the Spaniards did, by blaming their own government, but will instead blame the folks who set the bombs.

I note that the apparent perpetrators blamed the British for being involved in Iraq and Afghanistan.  But Afghanistan was clearly a defensive action by America and her allies after America was attack in 2001.  Al Qaeda is saying, in effect, let us kill whom we will.  If you interfere, you'll be next.  There is no making peace with these folks.  We wish MI5 Godspeed.

Europe Explodes

Lodon's/Europe's reaction to today's terrorist bombing should be interesting.  Do they capitulate like the Spanish did, or do they take this as a sign that there is an evil enemy to be defeated?  In the words of Charles Krauthammer on Sept. 12, 2001, "To war, not to court." 

And Todd, the last time I was on stage was in the eighth grade and I played one of Cinderella's step-sisters.  Yeah, you read that right. 

Taxes in South Dakota

SD has the second lowest taxes in the nation:

Only Texas has a lower per-capita burden of state government taxes than South Dakota, figures compiled by the Federation of Tax Administrators show.

Per-capita tax collections in Texas were $1,367 in 2004, compared with $1,378 in South Dakota, the figures showed.

South Dakota and Texas tied in state tax burden calculated as a percentage of personal income. In 2004, state taxes collected were 4.8 percent of personal income in each state, the same source showed. Colorado and New Hampshire were the only states lower.

Pelosi & Kelo

We haven't talked about it here yet, but Senator Pelosi made these absurd comments about the Kelo decision:

It is a decision of the Supreme Court. If Congress wants to change it, it will require legislation of a level of a constitutional amendment. So this is almost as if God has spoken. It's an elementary discussion now. They have made the decision. [emphasis mine]

If you stop to think about it, that seems like a really wild defense for the eminent domain decision.  Will Collier got suspicious of those comments and did some detective work.

Very fascinating, indeed.

Hat tip to RedState.

This just in...

From America's finest news source: "'Midwest' Discovered Between East and West Coasts." 

The War over the Supreme Court

Earlier, Quentin noted Michael Barone's explaination of what the coming Supreme Court war will be like.  Senator Schumer has confirmed that the war is imminent:

Senate Judiciary Committee member Chuck Schumer got busy plotting away on the cellphone aboard a Washington, DC-New York Amtrak -- plotting Democrat strategy for the upcoming Supreme Court battle.

Schumer promised a fight over whoever the President’s nominee was: “It's not about an individual judge… It's about how it affects the overall makeup of the court.”

The chairman of the Democratic Senatorial Campaign Committee was overheard on a long cellphone conversation with an unknown political ally, and the DRUDGE REPORT was there!

Schumer  proudly declared: “We are contemplating how we are going to go to war over this.” 

Schumer went on to say how hard it was to predict how a Supreme Court justice would turn out: “Even William Rehnquist is more moderate than they expected. The only ones that resulted how they predicted were [Antonin] Scalia and [Ruth Bader] Ginsburg. So most of the time they've gotten their picks wrong, and that's what we want to do to them again.”

Schumer later went on to mock the “Gang of 14” judicial filibuster deal and said it wasn’t relevant in the Supreme Court debate.

“A Priscilla Owen or Janice Rogers Brown style appointment may not have been extraordinary to the appellate court but may be extraordinary to the Supreme Court.”

By the time the train hit New Jersey, Schumer shifted gears and called his friend and “Gang of 14” member, Republican Sen. Lindsey Graham.

The two talked in a very friendly manner about doing an event sometime this week together.

John Hinderacker has more.

Boise Two

And a better looking picture:

Boise

I took some pictures out in Boise.  I know how boring "what I did on my vacation" pictures can be, so I will just post a couple.  I wanted to post a good looking picture and one that captures the topography of the Boise area, but the prettiest pictures I have all have water in them, and that is definitely not indicative of the Boise area.  So I post one below that I think is most representative of the Boise area, although it is essentially a picture of a new subdivision. Anti-growth people can keep their opinions to themselves.   Downtown Boise is, I believe, out of sight off to the left of this picture.

I've taken the plunge

About three years after getting rid of it, as of between 3-5pm tomorrow I once again have cable television.  The prospect of missing Lance Armstrong's last Tour de France and the new season of Deadwood were just too daunting.  Also, come late Fall, there's Gopher hockey.  Of course, I have yet to see Season 2 of Deadwood.  HBO had better show it before Season 3 comes on.  If not, perhaps Epp and Blanchard can enact the whole second season in my living room.  Epp as Swearengen, and Blanchard as Mr. Wu.  Typecasting.  I will let them argue over who plays Trixie. 

If You Divide Live 8 by a V2 Rocket, do you get V-8?

I've read a handful of pieces on the sand poundingly stupid Live 8 concert (if I may quote Elvis Costello, "The dancing was desperate; the music was worse").  Jonah Goldberg and Mark Steyn have humorous pieces making fun celebrity stupidity and the wonder of millionaire rock stars whining about selfish rich people.  The proof they aren't selfish is that every 20 years they give a free concert to "raise our consciousness" about poverty.  But I think the wisest piece is by Anne Applebaum, whose history of the Gulag I have promoted here before.  Applebaum give the economic argument against the solipsism of Live 8.  What Africa suffers from is not an unequal distribution of wealth, but an unequal distribution of capitalism. 

But, among those who work seriously on Africa, it has long been clear that what Africans need isn't only cash, which can be stolen or wasted, but the opportunity to trade their way out of poverty, just as Asians did over the past several decades. Yet the current regime of agricultural tariffs, quotas and export subsidies, whether for American cotton or European sugar, so reduces the price of African agricultural products that African farmers cannot compete. Each European cow costs taxpayers $2.20 a day, while half the world's population lives on less than $2 a day. Withdraw the subsidies for the cows, and Africans might even be able to make competitive cheese.

What are the chances of European and American farmers giving up subsidies in the name of helping starving Africans?  Zero.  This, even though, as Applebaum puts it, "the need to open up agriculture to trade is so obvious to development economists that it hardly bears repeating." 

OK, and she does engage in some delicious Snoop Dog bashing:

Getting millions of people across Europe and the United States to support political leaders who will actually take steps to end the massive farm subsidies -- temporarily or even permanently reducing the incomes of European and American farmers -- is really very difficult. Or, anyway, it's a lot harder than getting them to cheer when millionaire rapper Snoop Dogg shouts that "there's a lot of rich people in the world and a lot of them are just selfish!"

What to Expect

Michael Barone is explaining what the coming war will look like:

Justice Sandra Day O'Connor's retirement seems sure to lead to a brutal political battle over the confirmation of her replacement. There is no indication that George W. Bush intends to nominate someone who appeared on a recent list of nominees acceptable to Senate Democrats. This would be to cede the appointing power from the president and the Senate majority to a minority in the Senate.

Nor is there any indication that People for the American Way or the Alliance for Justice will not oppose any Bush nominee with every ounce of strength they have.

These groups exist for the purpose of defeating Republican judicial nominees, and their financial supporters -- the big money people and those sending in small amounts in response to direct mail appeals -- would be furious if they meekly accept a Bush appointee as Republican senators accepted Stephen Breyer and Ruth Bader Ginsburg when they were nominated by Bill Clinton.

Not opposing nominees would be an act of self-destruction for these groups, and Washington lobbying groups are not in the habit of self-destruction.

As for Democratic senators, they have almost unanimously accepted direction from these groups. As independent-minded and candid a senator as Russ Feingold of Wisconsin was seen reading questions to a Bush nominee off the papers supplied by these groups. A major Democratic constituency, the feminist left, expects a fight against any Bush nominee. The Democratic senators surely will not disappoint.

This means that Democrats will filibuster any Bush nominee, while the left groups attempt to tar them with any charge they can dream up. A filibuster, of course, is unprecedented, a change in what has been accepted practice in the Senate for over 200 years (the four-day holdup of Abe Fortas' nomination as chief justice in 1968 was not a filibuster -- Fortas did not have majority support).

The big question is who will SD Senator Tim Johnson side with in this fight....

Playing the Taliban Card, or "Startling Meanness" Watch

Our paleoliberal colleagues at Daily Kos is comparing the GOP to the Taliban:

Last night I wrote "How the Islamic crazies are like the Right" to hammer home how fundamentalist Islam has more in common with the radical religious right, the American Taliban, than it does with the American Left.

This is a key point-- it was easier for the Right to tie the American Left with our previous boogeyman, the communists, since we technically were nearer to the extreme left than where conservatives.

But today, things look quite different.

This whole deal was begun by our very own Tim Johnson, in his "Taliban Republicans" comment:

At a Sioux Falls get-out-the-vote rally for Democratic House candidate Stephanie Herseth, the senator had told the crowd Herseth will win the special U.S. House election June 1. "And how sweet it's going to be on June 2 when the Taliban wing of the Republican Party finds out what's happened in South Dakota," Johnson said on Sunday.

All these references to the other side being a "Taliban", a "bin Laden supporter," a "Nazi" or "fascist" is, quite honestly, getting repulsive.  You have numerous politicians across the entire political spectrum using these short-sighted statements (Sen. Johnson and Daily Kos and the "Republican Taliban"; Sen. Durbin (D) and his Nazi references; Sen. Santorum (R) and his Nazi references; references to Republicans being a fascists; references to Democrats being Communists; just to name a few).  The list, sadly, can go on and on, but that's all I can think up in fifteen minutes.  Can the Republicans and Democrats please get past these mindless accusations and concentrate on real debate?

New Poll

Here's the results of a new poll about GOP Governor Mike Rounds:

A question about the Republican governor's popularity was included in a statewide telephone poll of 500 likely voters. If the response is any indication, Rounds seems a cinch to win a second four-year term.

With an error margin of plus or minus 4.38 percent, the March 13 and 14 poll taken on behalf of a coalition of health groups pushing for higher taxes on tobacco found that Rounds' appeal crosses party lines in broad strokes. He had 89 percent approval from Republicans, 78 percent from Democrats and 80 percent from people registering as independent voters.

Few politicians are fortunate enough to have such hefty numbers.

History, too, is on Rounds' side. There have been only five Democratic governors since statehood in 1889. It has been three decades since the last Democrat held the top office.

The Strength of the Republican Position on Filibusters

A careful reading of Charles Babington and Susan Schmidt's WaPo article, first mentioned below, reinforces my view that the Republican position regarding the filibuster question is now much stronger than it was before the May 23rd deal.  Democrats are committed to the agreement that a judicial nominee can only be filibustered in "extraordinary circumstances."  I think that this very language favors the Republicans.  Dissenters will argue the phrase means nothing, and that Democrats will merely interpret it at their pleasure.

But Democrats can now maintain a block on nominees only if "extraordinary circumstances" means the nomination of anyone who agrees with the other side's position on abortion, affirmative action, etc.  But that standard threatens to bring the nomination process to collapse.  Democrats would block any nominee who shares the Republican view, and Republicans, in the majority or not, would do the same.  Persons like Stephen Bryer and Ruth Bader Ginsburg could not be confirmed.  Perhaps someone whose views are a complete mystery would have a chance, but if either caucus demanded a nominee on record as supporting the right positions, no one could be nominated.  The Republicans do not have to be very clever to show that this is unreasonable.

A second interpretation, which we may call the Fox Channel reading, is that "extraordinary circumstances" would mean, at the very least, someone more conservative than Janice Rogers Brown, William H. Pryor Jr. and Priscilla R. Owen.  This is a vague enough standard to cause a lot of trouble; but Bush could force the matter by nominating one of these to the High Court, or more as openings become available. 

A third and much more sensible standard is the one that seems to be accepted by many of the gang of 14 who engineered the May 23 compromise.  Under this reading, a nominee could not be blocked for his or her judicial opinions, but only for questions of ethics and character.  So a Republican president gets his Browns, Pryors, and Owens, and a Democratic president gets her Bryers and Bader Ginsburgs.  Obviously there is a little to tolerance of judicial views.  If a nominee were discovered to be an ardent admirer of Hitler, or Stalin, or Osama Bin Laden, the circumstances would then be most extraordinary.  But such a nominee would be opposed by both parties.

I suggest that the filibuster on nominations should remain as an option, but only if the latter interpretation is respected.  Republicans should make it clear that anything less breaks the deal and is itself a threat to the Senate tradition and indeed to the constitutional process.  If the deal is broken, the nuclear option should then be resolutely deployed.

The Post Responds to the Gifts from Churchill

Dr. Blanchard and I have been following the atrocities of CU professor Ward "little Eichmann's" Churchill as of late.  The Denver Post now has an editorial asking that CU-Boulder get rid of the fraud [HT to Ryne]:

University of Colorado professor Ward Churchill's latest toxic remarks, this time condoning - if not encouraging - attacks on military officers, are beyond outrageous.

"Conscientious objection removes a given piece of cannon fodder from the fray," Churchill said at an anti-military forum last week in Portland, Ore. "Fragging an officer has a much more impactful effect."

Fragging is the killing or injuring of a military officer by a subordinate.

How is it that CU can produce Nobel prize-winning research but still can't find a way to get Churchill off its payroll? Until he's removed as a tenured professor, double-digit tuition hikes will be just one of the reasons Colorado families and out-of-state students take a pass on a CU education.

Naturally, read the whole article.

Ryne has a great primer on Churchill's exploits.

Obit Blogging

Calvin Jumping Bull, owner of the Jumping Bull Property which was the location of a 1975 shootout between Indians and two FBI agents, has died.  From the Rapid City Journal:

Calvin Jumping Bull, who died Friday, will be remembered for his family's connection to the battle between the American Indian Movement and the FBI that resulted 30 years ago in the deaths of two FBI agents on the Jumping Bull property near Oglala.

But Jumping Bull's talents as a Lakota instructor are more notable, his friend said.      

A member of the Oglala Sioux Tribe, Jumping Bull, 75, served for 21 years as a full-time Indian studies faculty member at Oglala Lakota College on Pine Ridge Indian Reservation. ...

Jumping Bull's ties to the infamous incident June 26, 1975, are not direct, but the connection lasted throughout his life, The Associated Press reported last month. Although he was away at college when it happened, Jumping Bull lived his last years at the ranch where, 30 years ago, tension between the American Indian Movement and federal government resulted in the deaths of FBI agents Ronald Williams and Jack Coler.

The men were shot in the heat at point-blank range after being injured in a shootout, according to the story.

Would These Be Written Today?

The last two days at Mass we have sung patriotic hymns, not surprisingly.  I was struck by some of the lyrics.  I have always been a fan of "America" (aka, "My Country 'Tis Of Thee").  The fact that it is the same tune as "God Save The King/Queen" is quite delicious. This is the last verse:

Our fathers’ God, to Thee,
Author of liberty,
To Thee we sing;
Long may our land be bright
With freedom’s holy light;
Protect us by Thy might,
Great God, our King.

Then we have "America The Beautiful," another lovely hymn.  Here is a verse from that old song:

O beautiful for pilgrim feet
Whose stern, impassioned stress
A thoroughfare for freedom beat
Across the wilderness!
America! America!
God mend thine every flaw,
Confirm thy soul in self-control,
Thy liberty in law!

I remember John Ashcroft's confirmation hearings for Attorney General.  Ashcroft offended the sensibilities of some of the Senators by suggesting his ultimate allegiance was to God, not man made government.  Yet, this is the same sentiment of the verse from "America" listed above.  In fact, it gives a defense of kingship, albeit a divine kingship.  Referring to God as "king" (and recall that Christ is often referred to as "King of Kings", from the verse from Isaiah made popular by Handel), suggests an appropriate submission to an authority beyond the temporal.  In "America The Beautiful" it says "God mend thine every flaw, Confirm thy soul in self-control, Thy liberty in law!"  So there is a virtue in obeying the law.  See Lincoln's Lyceum Address for an impassioned defense of that position.  The sermon this morning contained wise words about what truly sets us free.  Oddly, the absence of restraint isn't really freedom.  It more likely means that we become slaves to our passions.  Everyone knows that more freedom comes from obedience to rightful authority. The Gospel of John says this (John 8:32):

Jesus then said to those Jews who believed in him, "If you remain in my word, you will truly be my disciples, and you will know the truth, and the truth will set you free."

This is a far cry from the utter shallowness of Justice O'Connor in Planned Parenthood v. Casey:

At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life.  Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

The radical individualism expressed in this statement is as undefensible as philosophy as it as constitutional jurisprudence.  The import of the phrase is that the we as a public have no legitimate interest in the character of our fellows, and that decency, selflessness, and patriotism will spring up spontaneously from the people.  As Simone Weil once put it, "To set up a standard of public morality a notion which can neither be defined nor conceived is to open the door to every kind of tyranny."  How far we've come from God as "Author of Liberty" and "Confirm thy soul in self-control" to "it's none of your business what anyone believes about anything."  Try sustaining a repbulic on the self-evident falsehood of selfishness inherent in that idea. 

 

The Filibuster Deal May Hurt Democrats

According to the Washington Post.  Here's the meat of the story:

With President Bush expected to name a successor to Justice Sandra Day O'Connor next week, liberals are laying the groundwork to challenge the nominee if he or she leans solidly to the right on affirmative action, abortion and other contentious issues. But even if they can show that the nominee has sharply held views on matters that divide many Americans, some of the 14 senators who crafted the May 23 compromise appear poised to prevent that strategy from blocking confirmation to the high court, according to numerous interviews.

The pact, signed by seven Democrats and seven Republicans, says a judicial nominee will be filibustered only under "extraordinary circumstances." Key members of the group said yesterday that a nominee's philosophical views cannot amount to "extraordinary circumstances" and that therefore a filibuster can be justified only on questions of personal ethics or character.  [My emphasis].

I have blogged in favor of the filibuster deal, and against the conventional wisdom of most conservatives.  If the following is accurate, boy will I look smart!  Its about time. 

Of course the Democrats are experts in raking up muck and if a stanch conservative is nominated an army of much rakers will fan out over the country.  But giving up the right to contest a nomination on grounds of "judicial philosophy" seriously constricts the Democrat's strategy.  This is quite remarkable.

The Strib, confidential sources, and Cohen v. Cowles Media

Once the issue of Judith Miller's refusal to reveal a confidential source matured last week with the Supreme Court's refusal to hear her appeal, I wondered how long it would be before the Minneapolis Star Tribune would lecture us about the critical importance of a journalist's ability to protect the identity of confidential sources.  The Strib does not disappoint, as we now have a piece from the Strib's "reader's representative" entitled "How a journalist expresses patriotism."  Excerpt:

Tomorrow morning, when I unfold that crinkly document [the Declaration of Independence], I'll be pointing out that you don't have to look back to 1776 for examples of patriots standing up in defiance of the unjust abuse of power by government officials. I'll be talking about Judith Miller, 57, a reporter for the New York Times -- a fine example of how journalists express patriotism.

Miller is spending her holiday weekend contemplating going to jail for keeping a promise to protect the identity of a confidential source -- someone she spoke to in researching whether government officials were working to discredit a Bush administration critic. As a reporter, Miller is aggressive, but hardly flawless. She took substantial criticism two years ago for her reporting on what she thought was evidence of weapons of mass destruction in Iraq. But right now, Miller is standing out there alone in her willingness to go to jail to protect freedom of the press, a core value of the democracy we celebrate tomorrow.

I am writing about this as your reader's representative because the situation threatens to stem the free flow of information about your government. It is likely to discourage some reporters less able or willing to risk jail from pursuing important stories and frighten government employees who may know of wrongdoing but won't come forward if their identity will be revealed. You have a lot to lose in how this turns out -- and there's something you can do about it.

When you hear a Star Tribune type prattling about the importance of the confidentiality of sources, it's worth recalling that the Star Tribune once took a strong stand on the principle of a journalist's right to reveal and publish the name of a source despite promising confidentiality to that source in exchange for his information.  The Star Tribune stood on that principle all the way to the Supreme Court of the United States in the case of Cohen v. Cowles Media Co.  The majority of the Supreme Court, in an opinion written by the great Byron "Whizzer" White, held that the Star Tribune could not breach its promise of confidentiality without the consequence of paying for breaking that promise.  Here's a recitation of the issue and the facts in that case:

The question before us is whether the First Amendment prohibits a plaintiff from recovering damages, under state promissory estoppel law, for a newspaper's breach of a promise of confidentiality given to the plaintiff in exchange for information. We hold that it does not.

During the closing days of the 1982 Minnesota gubernatorial race, Dan Cohen, an active Republican associated with Wheelock Whitney's Independent-Republican gubernatorial campaign, approached reporters from the St. Paul Pioneer Press Dispatch (Pioneer Press) and the Minneapolis Star and Tribune (Star Tribune) and offered to provide documents relating to a candidate in the upcoming election. Cohen made clear to the reporters that he would provide the information only if he was given a promise of confidentiality. Reporters from both papers promised to keep Cohen's identity anonymous, and Cohen turned over copies of two public court records concerning Marlene Johnson, the Democratic-Farmer-Labor candidate for Lieutenant Governor. The first record indicated that Johnson had been charged in 1969 with three counts of unlawful assembly, and the second that she had been convicted in 1970 of petit theft. Both newspapers interviewed Johnson for her explanation, and one reporter tracked down the person who had found the records for Cohen. As it turned out, the unlawful assembly charges arose out of Johnson's participation in a protest of an alleged failure to hire minority workers on municipal construction projects, and the charges were eventually dismissed. The petit theft conviction was for leaving a store without paying [501 U.S. 663, 666]   for $6.00 worth of sewing materials. The incident apparently occurred at a time during which Johnson was emotionally distraught, and the conviction was later vacated.

After consultation and debate, the editorial staffs of the two newspapers independently decided to publish Cohen's name as part of their stories concerning Johnson. In their stories, both papers identified Cohen as the source of the court records, indicated his connection to the Whitney campaign, and included denials by Whitney campaign officials of any role in the matter. The same day the stories appeared, Cohen was fired by his employer.

So much for the principle of protecting the confidentiality of sources, at least as it applies to the Minneapolis Star Tribune.  What would be even more hilarious is if the Strib was an amici in the Miller case.  If anybody knows this, e-mail SDP.

My Name is Old Glory

I am the flag of the United States of America.
My name is Old Glory.
I fly atop the world's tallest buildings.
I stand watch in America's halls of justice.
I fly majestically over great institutes of learning.
I stand guard with the greatest military power in the world.
Look up! And see me!
I stand for peace - honor - truth and justice.
I stand for freedom
I am confident - I am arrogant
I am proud.
When I am flown with my fellow banners
My head is a little higher
My colors a little truer.
I bow to no one.
I am recognized all over the world.
I am worshipped - I am saluted - I am respected
I am revered - I am loved, and I am feared.
I have fought every battle of every war for more than 200 years:
Gettysburg, Shiloh, Appomattox, San Juan Hill, the trenches of France,
the Argonne Forest, Anzio, Rome, the beaches of Normandy,
the deserts of Africa, the cane fields of the Philippines, the rice paddies and jungles of Guam, Okinawa, Japan, Korea, Vietnam, Guadalcanal
New Britain, Peleliu, and many more islands.
And a score of places long forgotten by all but those who were with me.
I was there.
I led my soldiers - I followed them.
I watched over them.
They loved me.
I was on a small hill in Iwo Jima.
I was dirty, battle-worn and tired, but my soldiers cheered me,
and I was proud.
I have been soiled, burned, torn and trampled on the streets of
countries I have helped set free.
It does not hurt, for I am invincible.
I have been soiled, burned, torn and trampled on the streets of
my country, and when it is by those
with whom I have served in battle - it hurts.
But I shall overcome - for I am strong.
I have slipped the bonds of Earth and stand watch over the
uncharted new frontiers of space
from my vantage point on the moon.
I have been a silent witness to all of America's finest hours.
But my finest hour comes when I am torn into strips to
be used for bandages for my wounded comrades on the field of battle,
When I fly at half mast to honor my soldiers,
And when I lie in the trembling arms of a grieving
mother at the graveside of her fallen son.
I am proud.
My name is Old Glory.
Dear God - Long may I wave.

By Howard Schauber

Happy Fourth of July, everybody!

What is the Court For

In today's Kranz column, Kate Looby of South Dakota Planned Parenthood says this:

"Justice O'Connor's departure is a nightmare for reproductive health care and women's rights. Without her moderate voice on the court, women's health is clearly at risk, and the future of reproductive rights in this nation is in grave danger," Looby said.

If Kate Looby actually believes it is the role of the Supreme Court to protect women's health, then she is down right daffy.  One can see in many of the comments by the left/pro-abortion activists how central protecting the legal right to kill unborn children is to them.  One can be conservative on everything, but if you vote to uphold the legality of abortion on demand, you are alright in their book.  You've just become a "moderate". 

Why is the Supreme Court so controversial?  Volokh has a CNN interview with Robert Bork which I think says it all:

KAGAN: OK. So you would like to see -- actually, you bring up a good point. This is a time in U.S. history that's not just talking about who is going to be the next person on the U.S. Supreme Court, but when the whole topic of what the judicial system and how it operates in this country is up for debate.

BORK: That's right, because it's really a cultural fight now. The Supreme Court has made itself into a political and a cultural institution rather than a legal institution, so that both sides see it in political terms.

You can see Bork's point played out in the words of those like Kate Looby who think that the Court (rather than executive branch bureaucracies) protects our health and Ralph Neas who thinks the Court holds in its hands everything that we believe in. 

 

Kelo Land II

No sooner are we back on the job than Professor Schaff and I are crossing swords.  I note that we do not disagree on the merits (or lack thereof) of the New London development program, and I think that Congress is right to take some steps to safeguard property rights in the wake of this decision.

We do disagree on the proper use of the word "overturn."  He thinks it right to say that Congress has overturned a Court decision if an act of Congress has rendered the decision moot.  I dissent.  The Court has ruled that the Constitution does not provide certain protections for property rights.  Congress can provide them on its own of course, but it can just as easily take them away at later date.  And that's precisely why its safer to let Congress experiment.

Similarly with Professor Schaff's other example, Religious Freedom Restoration Act.  This was a response to the Court's decision in Oregon v. Smith.  The Court ruled, correctly in my opinion, that a person who wishes to ingest peyote for religious reasons has no more protection from controlled substance laws than someone who wishes to do the same in order to get real high man.  Congress decided to try and create some special protections for religious exercise on its own.  That's what legislatures are for. 

Richard Epstein's argument against Kelo is very useful, but overwrought.  Maybe Kelo was a bad decision, but was it really "shameful"?  Epstein, like most conservative critics, think the Court has allowed the concept of public use to extend beyond all bounds.  But does that mean that Epstein endorses some simple reading of the Constitution, such as ""public use" means something that is owned and/or operated by the public."  Epstein shows why such a formulation won't do.

There are . . . good reasons why the public use language has long been extended to cover some cases of takings for private purposes with indirect public benefits. One recurrent problem of social coordination arises when one party is in a position to blockade the productive ventures of another. To take a real historical example, assume that the owner of a mine (who has no choice on where to dig) can get his ore to market only by ferrying it over scrub lands owned by another individual. That second landowner can demand a huge chunk of the mining profits for his trivial contribution to the overall venture. For over 100 years, the Supreme Court has allowed the state to condemn the obstructing property for the mine owner upon payment of just compensation, here measured by the trivial losses sustained by the obstructing landowner. The net gains from blocking the holdout are huge.

In other words, "public use" sometimes means "private use."  The consequences of reading the concept in a narrower fashion would be devastating for the economy.  The question then is whether you want the Court to legislate its own exceptions, depending on its current understanding of economics, social science, astrology, etc., or Congress.  I say legislation is for legislatures, whenever possible.

Social Security Watch

The presidents nephew, George P. Bush, makes this point in the Dallas Morning News [HT to SSC]:

Some in Congress have said reform is not needed, as Social Security’s health is not currently a crisis. What kind of leadership is this? How can we afford not to act quickly when we know that the system’s insolvency is imminent?

The article is a great read and I would highly recommend it.  Also from SSC, Try This Experiment:

Deroy Murdock suggests an experiment:

Open your wallet. Remove $100. Buy a new T-shirt, some socks, a decent lunch, two movie tickets, and beers with a friend afterward. Now, place in your wallet a slip of paper that reads: “I owe me $100 when I retire.”

Social Security is financed similarly.

FYI…Murdock will be on the Chris Matthews Show this Sunday (it’s usually on right before Meet the Press)

UPDATE (11:48am EDT):  A SSC reader wrote me this email - “Try This Experiment” would be more accurate if the IOU said: I owe me $100 when I retire, signed, your children.

Overturning things

I would argue that when legislative action renders a Court ruling moot, it has "overturned" the ruling.  At a minimum it has severely limited the Court.  Congress did this twice in the 1990s, first with the Civil Rights Act of 1991, which concerned affirmative action, and then with religious freedom with the Religious Freedom Restoration Act in 1993 (which, granted, was later declared unconstitutional in part).  This is quite easy for Congress to do when the Court is interpreting statutes, as in the affirmative action cases (Crossan and Adarand), and harder when it is a constitutional issue, such as with the RFRA (which concerned Oregon v. Smith).   Sen. Cornyn's bill will define for the purpose of federal law what "public purpose" means.  So it won't touch sate and local law.  This is a game of semantics, and I am happy to change "overturn" to "render moot" or "severely limit".

Update:  University of Chicago law professor Richard Epstein argues against Kelo.  One pertinent part:

All that need be shown to Justice Stevens was procedural regularity and some claim that the proposed project served some "public benefit."  Astute readers will quickly note that the phrase "public benefit" is far broader than the constitutional words "public use."

To reach its decision the Court had to ignore the plain language of the Constitution. 

 

 

Kelo Land

Professor Schaff below invites me to explain why I am not so upset as he over the Supreme Court's Kelo v. New London decision.  The question is whether a state can take land away from private individuals of modest means and then transfer it to other private parties of rather immodest means in order to encourage economic development.  My colleague would have had the Court say that private property can only be taken for public use, and that

"public use" means something that is owned and/or operated by the public.  The Supreme Court's allowance of taking private property for private companies renders "public use" operationally meaningless.

I have sympathy for this argument, but my skepticism wins out.  How much of the project must be owned by the public?  All of it?  Only the land?  I am a judicial minimalist.  I would have the Courts decide as little as possible, especially when it comes to economic matters.  Unfortunately the Constitution does not define public use, and I am hesitant to think that this court or any other can cut reasonable distinctions in such a case.

I make one small correction in Professor Schaff's description, but it goes to the heart of the matter.  He says that

Sen. Cornyn (who would also make a good Supreme) has introduced a bill overturning the recent Kelo v. New London decision about taking private property for "public use".

Federal legislation cannot, of course, "overturn" a Supreme Court decision.  What Sen. Cornyn would have Congress do is provide protection for private property precisely by working out acceptible legal defintions of public use.  Many states already have such limitations on public taking, and I gather than the taking in Kelo would not be legal in such places. I prefer legislation when it comes from legislatures rather than courts.