Dred Roberts The Pirate II

In spite of the intentional lack of content in Judge Roberts's confirmation hearings, he did provide a clear answer to the most fundamental question about his judicial philosophy.  Liberals want a justice who cares.  Conservatives want a justice who is capable of judgment.  Consider this exchange (from the Washington Post) between Senator Durbin and Judge Roberts on the last day of the interview:

DURBIN: Beyond loyalty to the process of law, how do you view this law when it comes to expanding our personal freedom? Is it important enough for you to say in some instances, "I will not use my skills as a lawyer because I don't believe that that is a cause that is consistent with my values and belief"?  That's what I've been asking.

ROBERTS: I had someone ask me in this process -- I don't remember who it was, but somebody asked me, you know, "Are you going to be on the side of the little guy?"

And you obviously want to give an immediate answer, but, as you reflect on it, if the Constitution says that the little guy should win, the little guy's going to win in court before me. But if the Constitution says that the big guy should win, well, then the big guy's going to win, because my obligation is to the Constitution. That's the oath.

The oath that a judge takes is not that, "I'll look out for particular interests, I'll be on the side of particular interests." The oath is to uphold the Constitution and laws of the United States. And that's what I would do.  [my italics]

That's good enough for me.

 

Dred Roberts The Pirate

E. J. Dionne is at it again.  Having bad mouthed American democracy because it might result in a conservative Supreme Court, he now decides that the Senate and the American people have a right to know the future. 

Sen. Lindsey Graham (R-S.C.) said that some of Roberts's potential opponents seemed to be saying that "the only way you can have a good heart is adopt my value system." That, Graham insisted, does "a great disservice to the judiciary."

But the doubts about Roberts have nothing to do with his good heart. The issue is the power about to be put in his hands and into the hands of President Bush's next appointee -- power both will enjoy for life. The Senate and the public have a right to far more assurance about how Roberts would use that power than they have been given in these hearings. The Senate is under no obligation to give the president or Roberts the benefit of the doubt.

This is absurd, because no one can know in advance how any person will use the judicial power once he/she is on the court.  If that were not true, Justice Souter would not be there now.  Nor, I think, would Anthony Kennedy.  Justices Harry Blackmun and William Brennan would never have been one out of nine if the Presidents who nominated them had had a clear idea of what kind of justices they would be.  There are a considerable number of cases of judges being surprisingly liberal once they were confirmed.  I can't think off hand of a judge who was more conservative than predicted in advance.  Does Dionne really lament this?  Of course not.  It isn't the process he really cares about, but the outcome.  And the only acceptable outcome is a liberal court.

The problem with that position is that if the Senators took it it would be impossible to confirm a judge  unless the President's party held a  filibuster proof majority.  That's why we came so close to seeing the filibuster abolished for judicial nominations.  The only practical way for the process to work is if, within reasonable limits, Presidents of either party get the nominees they choose.  A judge who turns out to believe that the Voting Rights Act should be struck down, or that every American has a constitutional right to a guaranteed income ought not to be confirmed.  A judge who believes the Roe v. Wade ought to be sustained or that it ought to be overturned should be confirmed.  If the Senate could be honest and reasonable about this, folks would have a much clearer idea of what they get when they vote for President and for the Senate.

But of course they can't be honest, even if they turn out to be more reasonable than they appear.  No liberal Democrat could afford not to strenuously oppose a nominee who admit ed he would overturn Roe.  Nor could most Republicans fail to filibuster a nominee who believed in a constitutional right to abortion.  As a result, nominees now routinely refuse to answer most of the interesting questions they are asked.  Many Democrats will do the reasonable thing, and vote for Roberts, only so long as they can pretend they didn't know what he would do. 

But Roberts is surely no great mystery.  He is a life long conservative Republican, as was Clarence Thomas.  See my next post for more.

SD Updates

Another smear of John Thune; be sure to note the comments section.

Sibby:  Jeremy Funked up again

And, what will Tim Johnson cast on the up-coming John Roberts vote?

Ellsworth

Gannett/USA Today, owner of the Argus Leader and a Daschle supporter, is cheering for the demise of Ellsworth:

By the end of next week, President Bush has to decide what to do with a list of military base closings and realignments he received Thursday from a special commission. The president has two choices: approve the list, or kick it back to the commission for further review.

Because the panel gave the Pentagon most of what it sought, and because Bush is occupied with Hurricane Katrina and other issues, he's not expected to pick a fight.

But this is a fight worth picking.

This is the final round of a 17-year process aimed at trimming forces that were needed to fight the Cold War. A succession of commissions were created to overcome political opposition. Yet this commission still spared costly Air Force and Navy bases that the Pentagon doesn't want.

As absurd as this is, it's not as absurd as the reaction of several governors, who are suing to reverse the panel's modest changes to National Guard bases. Connecticut's governor, for instance, says A-10 planes need to be based there for homeland security. A-10s are used for strafing ground forces. Perhaps Gov. M. Jodi Rell fears invasion from Canada.

Rejecting the commission's report would signal the governors that the Pentagon needs to focus on the terror threat from abroad, not domestic jobs at Guard bases. And a rejection would force the commission to reconsider other questionable decisions born of the same misplaced motivations:

...

Just as ill-advised was the decision to keep open South Dakota's Ellsworth Air Force Base. Many suspect politics played a role there because killing Ellsworth could have been fatal to the career of freshman Sen. John Thune, R-S.D., who won his seat by promising to keep the base open. There's no proof, argued the commission, that consolidating the entire B-1 fleet at a single base in Texas would save money.

Disturbing Details

Michelle Malkin:  Who is Mahmoud Mawwad?

Racism in New Orleans?

Don't miss this from Heather MacDonald:

The racial victocrats and left-wing agitators won’t change their behavior after the Katrina charity outpouring, but opponents of “benign” racial discrimination will have new weapons against it. When the New York Times and other mouthpieces of the elite media blame racism for segregated housing patterns, one might ask why so many allegedly bigoted Americans volunteered to take welfare mothers and their children into their homes. When the allegedly evil Wal-Mart is accused of exploiting the working class, one might ask why it opened up its warehouses and unleashed its manpower as no other corporation has done to help the homeless. When the lack of black proportional representation in technical professions is chalked up to a cartel of discriminating employers, one might query where all those black-rejecting bigots were hiding, as businesses across the country showered job offers on the black poor. And as the Bush-hating Democrats and other political opportunists call for new government welfare programs to assist the victims of American color hatred, just savor their shameless hypocrisy in simultaneously bashing the government for its racism and calling on its sovereign power to force “racial justice” on the public.

HT to Michelle Malkin.

Constitution Day

RedState put it best:

Today is Constitution Day, when we celebrate the 218th anniversary of that wonderful and near-perfect document. The law that created Constitution Day requires all schools that receive federal funds -- and all agencies in the Executive Branch -- to teach about the Constitution on this day. Hmmmm.... Maybe they ought to expand this to the other two branches as well. In any event, this is so timely, falling as it does during the John Roberts hearings. Here is a man sworn to uphold the Constitution as is and not to wander off into legally adventurous territory. This day we also salute the Founding Fathers. Their intellect and enormous foresight is visible every day. This great document has been tested so many times and has proven its durability in ways they could never have imagined. We honor them this day and the wonderful document they produced. Here's a scan of the original Constitution (thank God Nicholas Cage rescued it!) from the Archives, and here's a link to the text. Take a while today to read it all again, let the freedom soak in.

A tale of two nominations.

Yahoo News reports this on the upcoming Roberts nomination vote:

Since Democrats don't plan to filibuster, they must decide if it's worth casting a symbolic vote against the 50-year-old Roberts, knowing they can't stop his confirmation and that Bush will soon choose another conservative to replace O'Connor, a swing vote on the court.

Reid has asked his Democratic caucus members not to make a decision before a closed-door meeting Tuesday. But Sen. Kent Conrad (news, bio, voting record), D-N.D., thinks about half of them ultimately will vote to confirm Roberts.

There are 55 Republicans, 44 Democrats, and independent Sen. Jim Jeffords of Vermont in the Senate, and Conrad told reporters, "I think he can get from 75 to 80 votes."

I think the Democratic strategy all along was to give Roberts a pass in the friendliest way possible.  All the digs about him not answering questions is largely an unsuccessful attempt to please their activist base.  Then when the next nomination comes up they can say: "see how reasonable we were when you sent us up a good nominee?  But this new nominee is a different kettle of fish, and so we are entitled to become obstructionists."  They can say this even if the next nominee has virtually identical stats.  There is always something that can be characterized as ominous.  Besides, they can appeal to the balanced court idea.  The death of Rehnquist made that a lot easier. 

But one can see here that the rise of internet politics poses a problem for traditional party politics.

[Eighty votes for Roberts] would surprise conservatives, who say Democrats are too partisan on judicial picks to consider voting for Roberts. It would also disappoint liberals, who are hoping the Roberts vote can influence Bush's next pick.

The blogosphere makes the popular base of  both parties  visible in a way that it never was before, and there is no easy way for the Congressional parties to get their cyber-rank and file to get with the program. 

Useful Counterpoint

Lou Dolinar on what went right in Katrina relief. 

Ok, Now I'm worried

The Minneapolis Star Tribune has endorsed the confirmation of John Roberts to replace William Rehnquist.

This week's Senate Judiciary Committee hearings have been fascinating on several fronts, not the least for their jab-and-parry-exchanges between senators and Supreme Court nominee John Roberts. Whether you liken the proceedings to a fencing match or a "subtle minuet," as did Chairman Arlen Specter, they ultimately -- if messily, and sometimes testily -- accomplished their purpose. They showed that Roberts is both qualified and fit to serve as chief justice of the United States. Barring any last-minute bombshells, the Senate should confirm his nomination.

The Strib is one of the most liberally biased of major metropolitan newspapers, and that's saying a lot.  So I am not sure if this is just a strategic capitulation, or if they know something I don't.   Otherwise you'd have to think they were being reasonable, and that can't be right.

What?!

LGF:

Mother Sheehan jumps the shark, at (where else?) MichaelMoore.com. (Hat tip: protein wisdom.)

I don’t care if a human being is black, brown, white, yellow or pink. I don’t care if a human being is Christian, Muslim, Jew, Buddhist, or pagan. I don’t care what flag a person salutes: if a human being is hungry, then it is up to another human being to feed him/her. George Bush needs to stop talking, admit the mistakes of his all around failed administration, pull our troops out of occupied New Orleans and Iraq, and excuse his self from power. The only way America will become more secure is if we have a new administration that cares about Americans even if they don’t fall into the top two percent of the wealthiest.

UPDATE:  Power Line has caught the story and adds a lot more to it.

A legal question about vampires and zombies

-----Original Message-----
From: Schaff, Jon
Sent: Thursday, September 15, 2005 9:54 PM
To: Blanchard, Kenneth.
Subject: A Very Important Question

This came up in Presidency class.  If you become a vampire or a zombie, do you have to pay the inheritance tax?  It is sometimes called the death tax.  What about the undead?  Do they pay the death tax?

Dr. Blanchard Replies:

The answer is different in either case.  A zombie is a soulless, reanimated corpse.  It is no more alive than a dead body with puppet wires attached to it, so if you are a Zombie then you are authentically dead.  It is not quite accurate, however, to say that you have to pay the tax, since “you” are out of the picture.  Your estate does.

If you become a vampire, however, your spiritual status is ambiguous. Some say you die, go away, and a demon takes residence.  In that case, you have died and the spawn of Hell in residence will be liable for the estate tax.  Others say you gain immortality at the cost of your tan. In that case you could argue that, not having really died, your death cannot be taxed.  It would be best to avoid having a death certificate filled out, as the IRS would certainly find that useful in building a case in tax court. 

That is my considered answer.  But please remember than I am not an attorney.

Ken

Pheasant Season's Shaping Up

North Platte Telegraph:

However, the best spot to hunt pheasant in 2005 will be in South Dakota. I thought my hunting trips to South Dakota were great last year, but 2006 looks phenomenal!
The South Dakota Department of Game, Fish, and Parks reports that annual brood surveys were higher in 2005 than any time in the last 40 years.

Almost every area within the state of South Dakota posted at least 10-year highs with a total increase of 21 percent more birds than in 2004. South Dakota's CRP, combined with mild winters and good spring weather produced some huge pheasant numbers, about eight million birds are estimated to be in the state. Hunters may take up to two million during the 2005 season, which runs from Oct. 16 to Jan. 2.

South Dakota will be the Pheasant Hunting Capitol for 2005. If you have never hunted in South Dakota, this is the year to try it. If you are an upland game hunter, you owe it to yourself to make a trip to South Dakota. You will not regret it! I know I'll be going back to South Dakota for the pheasant season . . . several times!

What's The Diff?

Powerline and then Volokh correctly ascertain that what the Democrats on the Senate Judiciary Committee want is a justice who will exert his will and promote (a left-wing) version of justice.  What Judge Roberts want is a judiciary that applies the law neutrally, regardless of whether he or anyone else agrees with the policy outcome.  That's his version of justice. 

These are competing concepts of justice and the role of the Court.  Let's agree that there is abstract justice, such as articulated in the Declaration of Independence, and then there is positive justice, as articulated in the Constitution and usually referred to as "the rule of law."  So what will it mean for justice when Judge Roberts becomes "Justice" Roberts?  I think what Roberts has been saying all week is that the courts are a bad venue to pursue abstract justice.  Because abstract justice is a matter of speculation, the discernment of it's meaning is less concrete and is left open for divergent interpretations.  It's enforcement, one could say, is an act of will.  But the judge's art is the art of judgment, not will.  He decides based on what has already been decided. His job is to apply what others have already said about securing abstract justice, not apply his own view of abstract justice.  While the Constitution aims as securing the abstract justice of the Declaration, that task is left directly to the elective branches while the judicial branch is meant to apply positive law or, one could say, positive justice.  And regularity of law, i.e., its lack of capriciousness, is certainly helpful to securing abstract justice.  So this is not to say that positive justice should be confused with ultimate justice, but the judge is not given the tools to answer abstract questions. 

Dahlia Lithwick Metaphor Watch

Nothing is quite so diverting as to watch people like Dahlia Lithwick at Slate vent their displeasure with Senate Democrats. But look at the metaphors she comes up with. 

John Roberts is putting on a clinic.  He completely understands that he needs only to sit very quietly, head cocked to signal listening-ness, while senator after senator offers long discursive rambling speeches. Only when he's perfectly certain that a question has been asked does he offer a reply; usually cogent and spare. Here's a man long accustomed to answering really hard questions from extremely smart people, suddenly faced with the almost-harder task of answering obvious questions from less-smart people. He finds himself standing in a batting cage with the pitching machine set way too slow.

Ok, so its a mixed metaphor.  Its mostly Roberts as head shrinker listening to a beltway encounter group (what is the Senate Judiciary Committee?).  But it switches to good baseball metaphor at the end. But she's not through.

Whereas Biden and Patrick Leahy made at least some effort to develop lines of questioning, Herb Kohl and Dianne Feinstein give up entirely. Knowing there will be no Perry Mason moment—there won't even be a Lionel Hutz moment—they dully read their questions from a script and avoid the follow-up altogether. "Oh, so you aren't opposed to environmental protection? OK. Let's move on." The hunters have become the hunted. The lion is draped across a chaise longue, picking his teeth with their arguments.

Ok, thats a courtroom metaphor with a cartoon lion sated predator metaphor following closely on its heels.  And it closes with this:

It is an immutable rule of nature that every sadist needs a masochist, every leader needs a follower, and every addict needs an enabler. So, too, every egomaniac needs someone humble, and that's why, in the end, these hearings are so perfectly matched. Roberts wants to say little and literally fade to black. The senators want to give speeches and seize the limelight. It's a match made in heaven. It's just the watching it that's hell.

That's three distinct images in the first sentence, followed by a couple of showbiz allusions and capped with a little very light religious imagery.  Wow.

 

God and the U.S. Coast Guard

The question whether or in what form New Orleans will reemerge from the deluge probably depends mostly on which and how many of its former residents decide to return.  The Big Easy was easily one of the most dysfunctional cities in America, and that largely determined the debacle that followed the flood.  Modern welfare policy created a poverty sink to accompany the geographic sink that more than a century of river management had made possible.  Getting a lot of folks out of there and giving them a chance in new locales will surely help some.  On that note, Richard Morin and Lisa Rein of the Washington Post have this news:

Fewer than half of all New Orleans evacuees living in emergency shelters here say they will move back home while two-thirds of those who want to relocate plan to settle permanently in the Houston area, according to a survey by The Washington Post, the Henry J. Kaiser Family Foundation and the Harvard School of Public Health.

The wide-ranging poll found these survivors of Hurricane Katrina and its aftermath remain physically and emotionally battered but unbroken. They praise God and the U.S. Coast Guard for saving them, but two weeks after the storm nearly half still sought word about missing loved ones or close friends who may not have been as lucky.

Americans Love Their Conspiracies

Nation of Islam minister Louis Farrakhan on Katrina: 

"I heard from a very reliable source who saw a 25 foot deep crater under the levee breach. It may have been blown up to destroy the black part of town and keep the white part dry"

Indeed.

How We Remember

You can't miss James Lileks' article "The Sorry State of Modern Civic Memorials."  Excerpt:

How best to memorialize the victims of Katrina? Some would love a statue of President Bush in a dunce cap, strumming a guitar, with a quote on the plinth from Howard Dean: "He doesn't care about people." But an actual statue is out of the question, since we don't do literal-minded monuments much anymore.

You could have the modern memorial, abstract and sorrowful -- 800 small buses arranged in a pool, with the words "Never Again" in stone. The original design called for "It Will Never Happen Again" to be carved, but the stones bearing "It" and "Will" were stolen and "Happen" got cut because the memorial committee set aside funds for 498 no-show patronage jobs.

Or you could wait for New Orleans to return on its own, and let the sound of Bourbon street -- sweet jazz, boozy laughter, rubes chundering in the alley -- stand as the true memorial to Big Easy's spirit. Given the state of modern civic memorials, that might be best.
...
Now our memorials are muted things whose passive beauty often seems at odds with the events they describe. Such a problem arises from the ill-named Crescent of Embrace, a memorial designed to commemorate the heroes of Flight 93.

In this crescent -- a red one, in the mockups -- many see the symbol of Islam, which was not exactly represented by its best ambassadors on Sept. 11, 2001. Even the design committee noted the Islamic implications of the word "crescent," but went with it anyway -- perhaps to show that they were Citizens of the World, ecumenical in their sorrow, and surely not Islamophobic. (Islam is peachy! Unless it's in the Iraqi constitution.)

From Memory to History

BeldarBlog:  As 9/11 Becomes History Instead of Memory.  Read the whole exposition.  Here's an excerpt:

What I know of Pearl Harbor Day and of World War II is mostly from books. 12/7/41 is all history, no memory, for me and my entire generation, and every generation that has or will come after mine.

But I do know quite a bit of history. I studied it in school (effectively minoring in it as an undergrad), and I've read all sorts of history books regularly, almost compulsively, during my whole life. And ya know what? 12/7/41 does make me mad! Not nearly as mad as I still am about 9/11, which I remember. But mad. And I guess that since I don't have any of the personal memories to go with 12/7/41, I don't particularly get mad at the Japanese. No, what makes me mad is contemporary people who don't know, don't care about, distort, and/or ignore history like 12/7/41.

And those are the same people who — as their personal memories of 9/11/01 fade, or become overlaid with others or tangled up with their domestic politics or whatever — will end up treating 9/11 as a day to grill hot dogs. I do regret — not despair over, but regret — that the Coalition of the Now-Merely-Miffed is almost certainly a growing one, whereas my own Coalition of the Weeping Shouting Fist-Shaking Dog-Confusers is probably shrinking. But thems the facts, as they stand now. Time only moves one direction, so the direct memories of 9/11/01 are indeed inevitably going to become less of a factor for America and Americans.

Bread and Circuses

Ann Althouse has a funny and informative review of yesterday's Roberts hearings.  Hat tip to Instapundit.  Like him, I think this line is the funniest and pretty much sums up the left's jurisprudence: "Or is one of Congress's enumerated powers the power to show it cares?"  To the left "something we think is really good" is equivalent to "protected by the Constitution."

Update: Here's another largely unsympathetic take on the Roberts hearings from Matthew Continetti of the Weekly Standard.

What Does Feinstein Believe?

In her questioning of John Roberts to be Chief Justice of the Supreme Court, Diane Feinstein used the phrase "the hard-earned autonomy of women" and approvingly cited Planned Parenthood vs. Casey in saying woman should have the "ability to control their reproductive lives."  Let us take this language to certain logical conclusions and ask some questions.
1. Is there a constitutional right to prostitution?  Or, put another way, are all laws outlawing prostitution unconstitutional?  If a woman has "autonomy" and can use her body and her reproductive system as she sees fit, why is it wrong for her to exchange her sexuality for money in a mutually beneficial exchange of goods?  If women (and men) can have sex for money in supposedly constitutionally protected pornographic films, why can't they do it when the cameras aren't rolling?  And yes, I am aware that there are male prostitutes. 
2.  Is there a constitutional right to adult consensual incest?  If we are autonomous and control our reproduction, what is wrong with sex between close relatives?  Some might argue that the chance of birth defect is higher in incestuous relations.  But I thought we had reproductive freedom?  If we control our own reproduction, who is the state to say we cannot have consensual relations with close family members and happily raise any children who result from those relations?
3. Feinstein no doubt, like most with a pro-choice position, is against parental notification or consent laws when it comes to abortion.  If girls are mature enough to consent to end a pregnancy without consulting their parents, why aren't they mature enough to consent to the act that leads to pregnancy?  And if they have the right to autonomy and reproductive freedom the same as adult women, why can't they use their autonomy to sell their sexuality for profit?  If young girls are mature enough to consent to ending a pregnancy, aren't they mature enough to consent to becoming prostitutes or starring in pornographic films?  And after all, aren't some young people very mature?  For example, we hold that some are mature enough to be tried as adults when they commit a crime.  Perhaps we can allow young girls the ability to go before a judge and if the judge thinks circumstances warrant she could be allowed to become a prostitute or star in pornographic films without their parents knowledge or approval. 

This is where you end up when you turn one good thing, autonomy, into a categorical good to exclusion of all other goods and reject the idea that there is an iota of public concern with matters of pregnancy or human sexuality.  "Autonomy" and "consent" are two important values, but they are insufficient grounds for a decent ethic of sexuality and our public law regarding that subject. 

Umpires and Judges.

This by Jack Shafer writing in Slate:

In today's hearings, Sen. Joseph Biden, D-Del., and Sen. Herb Kohl, D-Wis., rejected the strikes and balls analogy as specious. But I think Roberts' analogy holds up remarkably well, so well that he could extend it further: Both groups of lawgivers come to work in dark costumes; both hold insufferably high opinions of themselves; both inure themselves to a crowd's catcalls; both worship tradition and their own authority; and perhaps most important, both regard themselves as absolute dictators within their domains.

Shafer goes on to make the "it ain't nothing till I call it" argument, especially concerning the strike zone. 

According to [Ken Kaiser, who umpired in the American League from 1978 to 1999] no two umps see the same strike zone. They view the plate from different angles, react differently to pitches, and change their opinion of what a strike is from batter to batter. When umpires say they call balls and strikes the way they see them, they mean it literally. They are the strike zone.

Yeah, but maybe an ump is not the best person to ask, precisely if they are the insufferable egomaniacs that Shafer thinks they are.  What you hear most often from players (especially pitchers) is that Umpires do enforce a more or less consistent strike zone, its just not the one in the rule book.  That's what conservatives complain about.  Not that judges, like Umpires, have their biases, but that as a group they tend to bend the rulebook. 

The Historical Memory of MacArthur

Today marks the 55th anniversary of an amphibious assault by Gen. Douglas MacArthur on Korea that turned the tide during the Korean War.  In South Korea, citizens paraded past a statue of MacArthur to defend  it, in contrast to last week where demonstrations were not so peaceful.  The debate now is how to remember MacArthur:

Hundreds of people marched peacefully through Inchon on Thursday to defend a statue of U.S. General Douglas MacArthur commemorating an amphibious assault 55 years ago that helped turn the tide of the Korean War.

Last weekend, the scene in this western port city was less calm. Those for and against the statue -- and the campaign the late general led -- traded blows and tossed rocks and bottles.

The violence exposed a generational divide between South Koreans who lived through the 1950-53 conflict and younger people more critical of the United States.

The city erected the imposing bronze statue in a public park in the late 1950s to honor a man whose bold landings inserted fresh U.N. troops behind North Korean lines, repelled the invading communist army and saved the South Korean state.

The statue, mounted on a stone base, shows MacArthur holding a pair of binoculars and surveying the port. These days it is under constant police guard.

On the anniversary of the September 15, 1950 assault, about 600 South Koreans marched through Inchon, west of Seoul on the Yellow Sea, to show their support for MacArthur and their appreciation for the U.S.-led United Nations forces who defended their state.

These days, though, vocal groups want the statue pulled down, saying Macarthur [sic] has Korean blood on his hands and the statue represents South Korean subservience to Washington.

...

Some older South Koreans who lived through the war revere Macarthur [sic], who died in 1964. Some younger people see him as a symbol of thwarted efforts to reunite the peninsula, split since the war, and of an overbearing U.S. military. More than 30,000 American troops remain in South Korea today to deter any communist aggression.

...

Chang Keum-suk, director of Inchon Solidarity for Peace and Participation, one of the first groups to call for the statue to go, said MacArthur had prolonged the war by taking the battle to the Chinese border and had cost more Koreans their lives.

"We need to seriously consider and review the hero-worship surrounding the general," Chang said.

South Korean President Roh Moo-hyun, a progressive who is supported by some leftist groups, said the statue must stay.

"Such illegal attempts to remove the statue are not only negative for Korea-U.S. ties, but also go against our society's view of history," Roh said in a statement on Monday.

Thune Responds to the Pledge Decision

The Washington Times:

"This is yet another example of an irresponsible decision by a liberal activist judge unable to separate personal politics from public service," said Sen. John Thune, South Dakota Republican. "As we work to fill two vacancies in the highest court of the land, today's news only serves to underscore the importance of appointing judicial nominees who refuse to allow their personal views to shape decisions."

Roberts v. Schumer

This is priceless.  From yesterday's Senate Judiciary Committee Hearing.

SCHUMER: Let me just say, sir, in all due respect -- and I respect your intelligence and your career and your family -- this process is getting a little more absurd the further we move. You agree we should be finding out your philosophy and method of legal reasoning, modesty, stability, but when we try to find out what modesty and stability mean, what your philosophy means, we don't get any answers. It's as if I asked you: What kind of movies do you like? Tell me two or three good movies. And you say, I like movies with good acting. I like movies with good directing. I like movies with good cinematography. And I ask you, No, give me an example of a good movie. You don't name one. I say, Give me an example of a bad movie. . .   You won't name one. Then I ask you if you like Casablanca, and you respond by saying, Lots of people like 'Casablanca.' (LAUGHTER) You tell me it's widely settled that Casablanca is one of the great movies.

SPECTER: Senator Schumer, now that your time is over, are you asking him a question?

SCHUMER: Yes. (LAUGHTER) I am saying, sir -- I am making a plea here. I hope we're going to continue this for a while, that within the confines of what you think is appropriate and proper, you try to be a little more forthcoming with us in terms of trying to figure out what kind of justice you will become.

SPECTER: We will now take a 15-minute break, reconvene at 4:25.

ROBERTS: : Mr. Chairman, could I address some of the...

SPECTER: Oh, absolutely. Absolutely. I didn't hear any question, Judge Roberts...

ROBERTS: : Well, there were several along the way. (CROSSTALK)

LEAHY: ... want to break anyway. You go right ahead.

ROBERTS: : I'll be very succinct.

SPECTER: You are privileged to comment. This is coming out of his next round, if there is one. (LAUGHTER)

ROBERTS: : First, Dr. Zhivago and North by Northwest. (LAUGHTER)

Senator Schumer has met his match.  Tip to NPR and New York Times.

Lynn Swan: Going Deep

ESPN has a marvelous story about former Steeler wide receiver Lynn Swan's potential run for governor of Pennsylvania as a Republican. 

What News from the North?

This news, from Taking Back North Dakota.

Patrick Springer, writing in Sunday's Fargo Forum, points out a poll that is pretty exciting. PMR. Inc. out of Davenport, Iowa conducted a poll in North Dakota and the results were pretty much exactly what I expected.

The telephone survey, by PMR Inc. of Davenport, Iowa, showed Hoeven leading Conrad, 35 percent to 27 percent. The poll has a margin of error of 3.9 percentage points, plus or minus.

This isn't too surprising.  Here was what the exact question was...

Poll respondents were asked: “If the election for North Dakota’s 2006 U.S. Senate seat were held today, for whom would you vote? The current North Dakota Gov. John Hoeven; the current U.S. Sen. Kent Conrad or someone else?”

That's about as straight forward and fair as you can get.

It will be very nice if North Dakota gives the Republicans a new Senate seat.  Thanks to Brett Narloch. 

Pledge

FOXNews:  Federal Judge Rules Pledge Unconstitutional

Thune & the NRSC

14 September 2005 Roll Call:

A few days before a federal commission was scheduled to decide the fate of Ellsworth Air Force Base, South Dakota's two Senators preemptively released a lengthy statement pledging to work together on issues of importance to the state.

...

Within 72 hours, they were saved from their greatest fear, as the Base Realignment and Closure Commission shunned the Pentagon's recommendation to shutter Ellsworth and voted instead to keep the base open.

Now, the question is how long will the Thune-Johnson alliance remain intact, given that these two political rivals may be headed for yet another showdown in 2008.

Thune is the early frontrunner to lead the National Republican Senatorial Committee in the 2008 election cycle - the same year that Johnson will be seeking a third term. Johnson said he "anticipates" that Thune will be the chairman of the NRSC, and acknowledged "maybe this will come apart, but I hope not."

...

For Thune, the decision to keep Ellsworth open allows him to expand his political portfolio beyond South Dakota's borders. The Republican Senator had campaigned in 2004 on the idea that, as a Republican in a GOP-controlled capital, he would be best positioned to keep the base open. That's why the closing of Ellsworth, had it happened, would have been so damaging: It would have forced Thune to shore up support in his home state rather than advancing his national ambitions.

But by helping convince BRAC to keep the base open, Thune has instead added to his reputation of overcoming long odds to win. Less than a year earlier, Thune defeated Senate Minority Leader Tom Daschle (D-S.D.) in the most closely watched Senate race of 2004. His campaign victory earned him the title of "giant killer" for being the first challenger to defeat a Senate leader in more than half a century.

...

"I think anyone who has won a tough race, you develop the kind of campaign skills that are very useful in a job like that," said [Senate Majority Whip Mitch] McConnell [(R-Ky.)], himself a former two-term NRSC chairman. "He certainly demonstrated, I think, great political skill."


Even though Thune is generally considered a loyal soldier for the GOP, Thune confidants said he is not afraid to use his political skills against his own party if it aids his own state. His allies note that when the White House refused to help Thune in his bid to keep Ellsworth open, the freshman Senator openly opposed President Bush's nominee for U.N. ambassador, John Bolton, though Thune himself never made the linkage. 

Blogosphere Rules!

We have been discussing the "umpire" analogy used by John Roberts on Monday, and the take on the analogy by the folks at Volokh.  Imagine everyone's surprise when Sen. John Cornyn referenced the Volokh blog (albeit without attribution) in his questioning of Judge Roberts yesterday.  The blogosphere goes mainstream! 

New blog...and Herseth

Enter stage right, the newest blog to South Dakota, South Dakota Right to Life.  Welcome aboard.  They noted this yesturday:

On their website, EMILY's list notes that one of the pre-requisites of candidates they help to elect is that they are pro-abortion. It is notable that on the page that outlines the candidates they've helped elect, they proudly list Stephanie Herseth as one of their success stories. This really is not a surprise to those who paid attention during the election....it's just confirmation of what we already knew....and a glimpse of things we South Dakotans can expect in her political future.

My question is does she have a political future?  Apparently, the SD Dems are backing away from her (in fact, some advocate boycotting her), plus I would have to believe that she wouldn't make it onto a Republican ballot because of her abortion stance.  I may be wrong, but it's just a thought.

Keillor v. MNspeak

Garrison Keillor is suing the blog MNspeak:

A couple weeks ago, this website received, via the appropriately old-fashioned U.S. Postal Service, a cease and desist letter from Garrison Keillor's attorney. Click inside to read the letter and the unfinished saga of the humorless crank.
------

A Prairie Homeboy Companion

On a Tuesday night two weeks ago, the letter showed up in the mail. It is included below, so you can see for yourself the kind of verbal mastery it takes to make a legal document sound like Keillor's forlorn nostalgic prose.

Let's quickly review the situation: Garrison Keillor -- a liberal comedian! -- is threatening to sue MNspeak -- some blog! -- that uses a t-shirt to poke fun of his mega-gigantic media empire. You'd think we shot Guy Noir or something.

 

More On Umpires

I wish to add to the discussion of the umpire/judge analogy.  Of course the analogy is imperfect, but it is effective as far as it goes.  I would simply add this.  If there was an umpire who said, "Some are balls and some are strikes, but they ain't nothin' 'till I call 'em" we'd say he is a bad umpire.  There is a baseball rulebook which describes the strike zone.  That rulebook exists so that everyone knows ahead of time how the game will be judged.  A batter and pitcher must be able to anticipate what will be called a ball and what will be called a strike.  A game where no one really knows the rules would be chaos.  The same would go for a society where the rules "evolved" over time based on the latest intellectual fads to hit the law schools.  Umpires who make it up as they go would make for cruddy baseball games.  Judges who read preconceived notions of "progress" or "justice" into the Constitution practice cruddy law.

Update: I have just been watching Senator Biden from the CSPAN website.  He makes the argument that there are some "rules" in the Constitution that are just like the strike zone.  For example, it takes 2/3rds of Congress to override a veto.  But, he says, most things in the Constitution aren't so obvious, and so judges are not like umpires because most of the time judges get to make up the rules.  This is an explanation of dangerous judicial activism. If a judge is making the rules, he is acting out of will not of judgment.  This is the action of a legislator not an judge.  This is why some kind of standard of judgment, be it some kind of originalism or, as I'd prefer, a "plain meaning" viewpoint is so essential.  Judges who make it up as they go are abusing their power. 

Thoughts on John Roberts Hearings

I have had only slight opportunity to watch these hearings.  While the statements and questions of the Judiciary Committee members are largely predictable, and in that sense less than interesting, there are some nuggets that reveal certain mindsets.  Certainly the Democratic Senators have revealed their dedication to an activist judiciary committed to advancing the liberal agenda.  Yesterday, after a long litany extolling the virtues of liberal social programs from the 1960s, Senator Kennedy said:

Judge Roberts you are an intelligent, well-educated and serious man. You have vast legal experience and you are considered to be one of the finest legal advocates in America. These qualities are surely important qualifications for a potential Supreme Court Justice. But they do not end the inquiry or our responsibility. This Committee and the full Senate must also determine whether you have demonstrated a commitment to the constitutional principles that have been so vital in advancing fairness, decency and equal opportunity in our society.

For Ted Kennedy and his colleagues, it seems, it is not enough that John Roberts is a smart, highly respected, well credentialed and, according to a unanimous American Bar Association review board, well qualified judge. They want more.  They want him to defend liberalism. 

Today, in testimony I did see, Senator Kohl essentially let the cat out of the bag when he questioned Judge Roberts' umpire analogy referenced by Prof. Blanchard.  Kohl essentially said (and I am paraphrasing as there is no transcript yet) "Judges all have their biases, and so being an impartial umpire is impossible."  He went on to say that Brown v. Board of Education could not be defended on the original grounds of the 14th Amendment, and so in 1954 the Court had to ignore the Constitution to do the right thing.  Kohl apparently endorses ignoring the Constitution when it produces a decision we view as just.  Roberts disagreed, saying that Brown could be defended based on the intent of the 14th Amendment framers.  I, not surprisingly, side with Judge Roberts.  But that is not the point.  The point is the Democrats, in what I have seen, are transparently holding up Judge Roberts to a preconceived view of proper public policy and are unashamedly arguing for a Constitution so plastic that it means whatever the current generation means by "progress."  The Democrats want Roberts to uphold and, indeed, advance a liberal notion of progress, and if he doesn't he isn't qualified to be a member of the Supreme Court. 

Oliphant's slander

Tom Oliphant writes in the Boston Globe:

Roberts will have no trouble passing the litmus test. But his passing of it will mask the long record of his fealty to the true purpose of conservatism in civil rights for well over a generation -- the blocking of remedies to achieve broad desegregation and promote genuine integration and equal opportunity. His paper trail shows consistent fealty to the sideshows over affirmative action, ''quotas," and other manifestations of the effort to restrict civil rights gains as threats to white people.  (Hat Tip to Real Clear Politics).

This is a slander by someone who ought to know better.  He says that the "true purpose" of conservatism is to block desegregation and genuine integration because conservatives oppose affirmative action; but that is like saying that because liberals defend the Miranda Rule and the exclusionary rule, therefore they are in favor of murders getting off scott free.  Most conservatives oppose affirmative action both on principle and because they believe that it does not in fact promote civil rights.  Instead of taking that argument seriously, Oliphant prefers character assassination. 

 

Batter Up!

John Roberts made an analogy between Judges and Umpires that I have frequently used in my constitutional law class to explain the difference between judicial activism and judicial restraint.  Jim Lindgren at the Volokh Conspiracy has this shrewd comment:

Roberts' comparison of a judge to a baseball umpire reminds me of an old story about three different versions of judicial reasoning, built on the same analogy.

First umpire: “Some are balls and some are strikes, and I call them as they are.”

Second umpire: “Some are balls and some are strikes, and I call them as I see 'em.”

Third umpire: “Some are balls and some are strikes, but they ain’t nothin' ‘til I call 'em.”

Three views of legal reasoning are represented here, with the first umpire representing some form of essentialist jurisprudence such as so-called “mechanical jurisprudence.” The second umpire would be close to the role attributed to a traditional judge in a liberal democratic society, believing in the existence of truth and in the wisdom of attempted impartiality, but also in the imperfection of people to see or understand truth. The view of the third umpire is usually attributed to legal realism or critical legal studies, though it would fit only a subset of adherents to those quite different philosophies.

While I think that Roberts with his talk of modesty was expressing a belief in the second sort of umpire, one should realize that the analogy of the umpire can cover the third sort, who thinks that he creates the existence that he is assigned to judge.

Further, I have heard that in Major League Baseball, umpires are rated on how well they call balls and strikes and demoted (or at least influenced in their future calls) if they call balls and strikes poorly. I question whether the press provides a similarly effective role judging the performance of justices.

The real argument is between umpires 2 and 3.  But the analogy clearly favors Roberts.  Very few people would endorse the idea that the constitution has no meaning apart from how judges interpret it. 

The War on Terror

9/12/05 Mitchell Daily Republic:

America is succeeding in the fight against terrorism, and South Dakotans have played a strong role in that fight, said U.S. Sen. John Thune, R-S.D., while speaking during Sunday’s Sept. 11 Memorial Service in Mitchell.

The memorial service, created through the joint efforts of the Mitchell Area Americanism Committee and the Mitchell Exchange Club, was designed to honor the victims of 9/11 as well as fallen firefighters, law enforcement officers and military personnel who have died in the war against terrorism.

...

“Our men and women in uniform represent all that is good about our country,” he said, acknowledging the families of fallen soldiers in the audience. He said South Dakota’s contribution to progress in the war against terrorism has been strong.

“Thousands of full-time soldiers and nearly 1,700 Army National Guard members from South Dakota have served on the front lines of freedom, and we all pray for their success in concluding their mission and for their safe return home,” he said.

Thune said veteran issues continue to be important issues of debate in Congress. He said he planned to use his seat on the Armed Services Committee and on the Veterans Affairs Committee to work with his colleagues to address shortfalls in veteran’s healthcare, adding that soldiers fighting on America’s behalf should get all the care they deserve.

“Freedom’s light does not shine without a price,” said Thune, but he added that America can be proud of the changes that have already occurred in the Middle East and Iraq - “the one and only democracy in the Arab world.”

Thune chided critics who compared the Guantanamo detention center to Nazi concentration camps, Soviet gulags and the depredations of Pol Pot and the Khmer Rouge.

“Ladies and gentlemen, that is an outrageous comparison,” he said.

Such comparisons “are irresponsible in the extreme,” said Thune, who said 12 million died in those camps, while no terrorist prisoners died at Guantanamo Bay.

Just A Coincidence

Great Britain considers getting rid of National Holocaust Day because it might offend Muslims.  Meanwhile, Palestinians are gleefully burning synagogues in Gaza.  What an amazing world we live in. 

"Many liberal voters in South Dakota are now considering a boycott of Herseth"

Letter in today's Argus Leader:

Herseth voting record

Published: 09/12/05

It's annoying to see letters promoting Rep. Stephanie Herseth's work in Congress. What's interesting about her sales angle is the notion that Herseth works well with Republicans. Many liberal voters have observed that there's little difference between the Republican agenda and Herseth's voting record. What South Dakota needs is a Democratic representative in Congress, not a Democrat with a Republican voting record.

Many liberal voters in South Dakota are now considering a boycott of Herseth on the ballot. Other candidates will apply for the office, and they deserve the support more than Herseth. I favor a Native American independent candidate. Progressive Democrats should send a clear message to Herseth that if she ignores her voting base, they should withdraw support for her reelection bid.

Herseth even boasted about being a Blue Dog Democrat (aka conservative Democrat rat-finks.) This is the conservative group formed by Democrats who have to compete in close races with Republicans, so they pretend to be all things to all people. Former Rep. Gary Condit, D-Calif., used to have a leadership position in this group, so the honesty factor doesn't flourish in this House deception club.

Please join me in the next election for the Anyone but Herseth Campaign.

Jack R. Thompson Sioux Falls

Katrina Relief Efforts Compared to Past Hurricaines

In blaming FEMA and POTUS for the disasterous response to Katrina, the Press seems altogether uninterested in how these relief efforts compare to past Hurricaines.  Here's Jack Kelly from the Pittsburgh Post-Gazette. 

Jason van Steenwyk is a Florida Army National Guardsman who has been mobilized six times for hurricane relief. He notes that:

"The federal government pretty much met its standard time lines, but the volume of support provided during the 72-96 hour was unprecedented. The federal response here was faster than Hugo, faster than Andrew, faster than Iniki, faster than Francine and Jeanne."

For instance, it took five days for National Guard troops to arrive in strength on the scene in Homestead, Fla. after Hurricane Andrew hit in 2002. But after Katrina, there was a significant National Guard presence in the afflicted region in three.

Have You Forgotten?

I hear people saying we don't need this war
I say there's some things worth fighting for
What about our freedom and this piece of ground
We didn't get to keep 'em by backing down
They say we don't realize the mess we're getting in
Before you start your preaching let me ask you this my friend

Have you forgotten how it felt that day?
To see your homeland under fire
And her people blown away
Have you forgotten when those towers fell?
We had neighbors still inside going through a living hell
And you say we shouldn't worry 'bout bin Laden
Have you forgotten?

They took all the footage off my T.V.
Said it's too disturbing for you and me
It'll just breed anger that's what the experts say
If it was up to me I'd show it everyday
Some say this country's just out looking for a fight
After 9/11 man I'd have to say that's right

Have you forgotten how it felt that day?
To see your homeland under fire
And her people blown away
Have you forgotten when those towers fell?
We had neighbors still inside going through a living hell
And you say we shouldn't worry 'bout bin Laden
Have you forgotten?

I've been there with the soldiers
Who've gone away to war
And you can bet that they remember
Just what they're fighting for

Have you forgotten how it felt that day?
To see your homeland under fire
And her people blown away
Have you forgotten when those towers fell?
We had neighbors still inside going through a living hell
And you say we shouldn't worry 'bout bin Laden
Have you forgotten?

Have you forgotten all the people killed?
Some went down like heros in that Pennsylvania field
Have you forgotten about our Pentagon?
All the loved ones that we lost and those left to carry on
Don't you tell me not to worry about bin Laden
Have you forgotten?

Have you forgotten?
Have you forgotten?

- Darryl Worley

In Katrina's Wake

David Brooks and Ruben Navarrette have different takes on the government's response on all levels to hurricane Katrina.  Not surprisingly I find myself siding with Brooks.  Brooks argues:

Katrina was the most anticipated natural disaster in American history, and still government managed to fail at every level.

For the brutal fact is, government tends toward bureaucracy, which means elaborate paper flow but ineffective action. Government depends on planning, but planners can never really anticipate the inevitable complexity of events. And American government is inevitably divided and power is inevitably devolved...

So of course we need limited but energetic government. But liberals who think this disaster is going to set off a progressive revival need to explain how a comprehensive governmental failure is going to restore America's faith in big government.

Navarrette argues that Oprah is doing a better job than the government. 

While the bureaucrats in Baton Rogue and Washington were still pointing fingers, [Oprah] dispatched 33 trucks filled with food, water and supplies to aid the victims of Katrina and pulled together her own network of celebrity "angels" — John Travolta, Kelly Preston, Lisa Marie Presley, Julia Roberts — to do likewise, or to simply show up at shelters and give moral support to people who thought they had been forgotten.

This is what really caught my eye from Navarrette:

That's because, more than tax cuts or education reform or prescription-drug credits, this is what presidents are for. They take charge in times of crisis. They offer compassion and strength to the suffering. They protect the lives of their people. They don't point fingers or tolerate it when underlings do. They make sure that, as Harry Truman said, the buck stops here.

Presidents act decisively and firmly, sending whatever resources need to be sent as quickly as they need to be sent and firing whichever incompetent pencil pusher deserves to be fired.

This is an interesting and all to typical take on the presidency.  More than marshalling together and administrating policies to make our nation strong, the president is supposed to make us feel better when bad things happen.  I would point out that Navarrettee is essentially asking the President to become the national governor or mayor.  This same thought process makes Thomas Roeser sure that Rudy Giuliani will be our next president, because he is good at doing things that mayors do. 

One hopes that people don't need to be reminded that the federal government is not city government and presidents are not mayors.  Yes, it would be best if Presidents could offer words of encouragement in times of crisis.  And yes, to the extent that the national government has both responsibility and resources to aid those in need we want the feds to do their job well.  But the "energy" and "dispatch" of the executive, to use Hamilton's words, is directed towards national crises, not local crises.  It does baffle one that those who are most worried about the supposed abuse of civil liberties under the Patriot Act are disappointed that the federal government did not just come in and militarily take over southern Louisiana and Mississippi.  These folks should be reminded that in our federal system Louisiana and Mississippi are states that retain some element of sovereignty.  The federal government must get state permission before it can do most of the things associated with hurricane relief. 

People need to be reminded that we live under limited government.  Brooks and I tend to agree that conservatives are too narrow in their view of governmental power, but the left is worse in that it tends to throw the idea of limited government out the window.  Brooks is correct in today's piece that the federal government is big, unwieldy, and full of perverse incentives.  People looking for quick and nimble government need to look to places other than the federal government for those qualities.  One reason to argue for smaller government is that it would allow the government to better do those things it is essentially meant to do.  And we need to stop laboring under the belief that we are children and it's the president's job to solve all our problems. 

Nothing in this post is meant to absolve the national government or the current administration from mistakes made under their proper authority in hurricane Katrina relief.

Update:  Michael Kinsley points out that if you ask everything from your government, you are likely to get a government that is good at just about nothing: 

Everybody is having a fine fit about our politicians, governments at every level and "institutions" (current vogue word) for failing us in this crisis and others. The TV news networks, which only a few months ago were piously suppressing emotional fireworks by their pundits, are now piously encouraging their news anchors to break out of the emotional straitjackets and express outrage. A Los Angeles Times colleague of mine, appearing on CNN last week to talk about Katrina, was told by a producer to "get angry." But just Google a phrase like "commission warns," or "urgent steps" or "our children's future" — or simply "crisis" — and you may develop a bit of sympathy for the people who stand accused today of ignoring the warnings about anything in particular. Far from complacent about potential perils, we suffer from peril gridlock.

 

 

September 11, 2001

Do we still remember?  Was it the day that changed us forever?  Here are some thoughts from Mark Steyn, and Todd Bevan.  My favorite contemporary pieces were this one by John Derbyshire, and a Sept. 12, 2001 piece by Charles Krauthammer.  Here is the Kipling poem referenced by Derbyshire:

“For All we Have and Are”

By Rudyard Kipling

FOR all we have and are, For all our children’s fate, Stand up and meet the war. The Hun is at the gate! Our world has passed away         5 In wantonness o’erthrown. There is nothing left to-day But steel and fire and stone.       Though all we knew depart,     The old commandments stand:         10     “In courage keep your heart,     In strength lift up your hand.”   Once more we hear the word That sickened earth of old: “No law except the sword         15 Unsheathed and uncontrolled,” Once more it knits mankind, Once more the nations go To meet and break and bind A crazed and driven foe.         20   Comfort, content, delight— The ages’ slow-bought gain— They shrivelled in a night, Only ourselves remain To face the naked days         25 In silent fortitude, Through perils and dismays Renewed and re-renewed.       Though all we made depart,     The old commandments stand:         30     “In patience keep your heart,     In strength lift up your hand.”   No easy hopes or lies Shall bring us to our goal, But iron sacrifice         35 Of body, will, and soul There is but one task for all— For each one life to give. Who stands if freedom fall? Who dies if England live?         40