Man! It Sure Seems Longer Than That

It's hard for me to belive that it has only been 8 months since the start of Bush's second term? and only 10 months since the election?

Maybe this study explains why I feel that way:

The results [of the study] revealed two things: (1) greater pain intensity is associated with overestimation of time and the majority of pain patients report a perceived slowing down of time while in pain; and (2) there were no differences in time perception as a function of pain type.

This promises to be a looooooooooong four years.

Frist Has His Spine Re-inserted?

At least since the 2004 election, Bill Frist has a sycophantic, obsequious (but thankfully largely ineffective) lapdog of the "Christian Right." Remember the Terri Schaivo tele-diagnosis, the "Justice Sunday" telecast, and the vaunted "nuclear option" that proved to be a dud?

All of which makes this morning's announcement especially surprising: Bill Frist has come out in favor of federal funding of embryonic stem cell research:

In a break with President Bush, the Senate Republican leader, Bill Frist, has decided to support a bill to expand federal financing for embryonic stem cell research, a move that could push it closer to passage and force a confrontation with the White House, which is threatening to veto the measure.

In fairness, this is not the first time Frist has supported stem cell research:

On July 18, 2001, Sen. Bill Frist (R-Tenn.) stood on the Senate floor urging his colleagues to buck conservative orthodoxy and support federally funded research on embryonic stem cells. As the Senate's only physician, Frist made headlines -- and gave momentum to the controversial science -- with his endorsement.

But that was 2001, probably before he decided he might one day be President and certainly before the 2004 election proved how dependent the Republicans are on the Religious Right. Since the election, he has acted like the only things he believed in were the policies of George Bush and the opinions of James Dobson and Tony Perkins.

Maybe his new willingness to do the right thing means Frist has now given up on the Presidency. But if he hasn't, probably he should. It is hard to believe that after all his shenanigans he has any credibility with moderate Republicans or Independents (to say nothing of Democrats) and he has now broken ranks the only remaining constituency. And he has done so on a issue with links to the "issue-of-issues" for the Christian Right: abortion. Here's James Dobson's position on the issue

Focus on the Family adamantly opposes the use of human embryos or tissue from aborted babies in medical research. We regard it as unconscionable that preborn life is destroyed (or created) and used for purposes of scientific experimentation. We further believe it to be one of the most profound signs of depravity in our society that government officials and leaders in the medical community have sanctioned this practice.

Oh oh! Frist has now become an advocate of, nay a partcipant in, depravity! Not good news for someone dependent on Dobson for his politial future.

Given that sort of rhetoric, Tony Perkins' initial public reaction to Frist's announcement is actually fairly mild:

Senator Frist's announcement is very disappointing but not a surprise. It is reminiscent of the speech he gave to the 2004 Republican platform committee, where he squelched open debate on the ethics of embryonic stem cell research, as well as a 2001 Senate hearing testimony where he advocated production of hundreds of human embryonic stem cell lines, which would have required destruction of thousands of human embryos.

Maybe the Right will decide that they still need Frist. But, these people have long memories and I suspect this issue will become for Frist what the "read my lips" tax flip-flop became for G.H.W. Bush.

I am not now, and am very unlikely ever to become, a Frist aficionado. But, I do wholeheartedly applaud both the position he has taken and the courage it probably required to take it.

Well, Well, Well: There Are Whackos Everywhere

From today's Washington Post:

Prayers had failed. Plan B called for a curse.

So a week ago, 20 men gathered in darkness around a grave in northern Israel to carry out the cabalist ritual pulsa denura , which in Aramaic means 'lash of fire.' The object of the curse was Prime Minister Ariel Sharon, who refuses to cancel his plan to evacuate 25 Jewish settlements in Palestinian territory.

According to participants, Sharon will be struck down by the Angels of Destruction in less than a month, or else the 20 men themselves will die.

The ritual might have drawn little attention at a quieter moment in a country that has long been a showcase for extreme beliefs. But as the evacuations approach, Israeli society is transfixed by every detail of what Sharon calls disengagement, and images of the chanting men have been played repeatedly on Israeli television.

Sober assessments also appeared in Israeli newspapers Wednesday noting that a pulsa denura was invoked nearly a decade ago against Prime Minister Yitzhak Rabin not long before he was killed by a Jewish extremist opposed to his support of the 1993 Oslo accords.

Another intriguing tid-bit: The grave around which "the men chanted for Sharon's swift death" was that of

Shlomo Ben-Yosef, a member of a radical Jewish underground group who was hanged by the British in 1938 for firing on a bus full of Arabs.

Old Shlomo should have worked for the other side. At least then he'd have gotten the 77 virgins (or however many it is).

Religion. Ain't it grand?

Muslim Voices Condemning Terrorism

I found this from the Washington Post encouraging:

An organization of top American Muslim religious scholars plans to issue a formal ruling [fatwa] today condemning terrorism and forbidding Muslims to cooperate with anyone involved in a terrorist act, according to officials of two leading Islamic organizations.

Later, a link at Instapundit directed me to a whole collection of articles along the same lines compiled by Judith Klinghoffer over at Andrew Sullivan.

Could it be that Tom Friedman's wish is beginning, just beginning mind you, to come true?

More on Profiling

Here's another story illustrating the problems around profiling. Based on a report by a ticket agent that five "suspicious" men had boarded a Gray Line bus, the NYPD, in body armor and with automatic weapons, stopped the bus, told all the passengers to raise their hands and get off the bus, then handcuffed the five men, segregated them from the rest of the passengers and had them kneel on the pavement while the police searched the bus.

The "probable cause" for all of this? The ticket agent reported to a Gray Line supervisor, who then reported to police that:

the men had purchased their tickets in advance; that they carried backpacks; and that they wore something else - perhaps fanny packs - that caused bulges to appear around their waists.

Oh and one other detail: the five men "appeared to be South Asian."

To his credit, Mayor Bloomberg issued an official apology to both the men and to the British government, whose citizens the men turned out to be.

I suppose these sorts of incidents are inevitable given the climate, and when they happen, apologies are certainly in order. But, unless we can to prevent such incidents from becoming commonplace or accepted, apologies will quickly begin to sound hollow.

Without great care, our efforts to prevent bombings will do more damage than the bombings themselves. Indeed, that is exactly the fact that provides the motivation for such bombings. As such, to effectively fight such tactics, we have to heighten our watchfulness not only for bombers but also for our own principles.

The Farce Of Their Logic Astounds Me

That's not a typo in the title. A "farce" it is. Or would be if it weren't so tragic in its consequences.

It looks like a law banning discrimination against gays is going to be on the ballot in Maine for the third time. I admire the persistence of State government, which has twice before enacted similar state laws only to have them repealed via referendum. Undeterred, the legislature and the governor have tried again. I wish them well.

But what struck me most about this article were two passages describing why people oppose this law. The first:

"We just felt like we had to stop it," said Paul Madore . . . . This is a bad law. It uses the weight of the legal system to force an acceptance of a lifestyle that the majority of people have a strong objection to."

It does no such thing, of course. All it does is to make it illegal to penalize that lifestyle. Why is it that people keep getting confused on this issue. Oh, and by the way, homosexuality is not a "lifestyle." It is something you are, not something you do.

And, then there was this:

Although the law that passed this year contains an amendment saying it does not endorse same-sex marriage - and although Maine has a defense of marriage law - opponents fear that a judge could declare the marriage law unconstitutional based on the antidiscrimination statute.

My Lord. Where do people get these ideas.

The vacuousness of the arguments advanced demonstrates (as if demonstrations were needed) how completely opposition to such laws is rooted in neither logic nor policy but in utterly irrational, unthinking, unfeeling prejudice.

Either Way They Have A Lock on Darwin Awards

This is interesting and, in a bizarre way, hopeful: Police Debate if London Plotters Were Suicide Bombers, or Dupes It is sick enough to be wiling to engage in mass murder, but it is something beyond sick to want to kill yourself in the process. Assassins who are not suicidal are easier to deter and to catch. And, when they find out that their handlers mean to kill them as well as the infidels, they might be harder to recruit as well. We can only hope.

On Racial Profiling

I had a bit of coincidence in my e-mail in-box this morning. I am on several e-mail lists authored by people who passionately support Israel. One of them is Mordechai Ben-Menachem at Ben-Gurion University. This morning I had this from Mordechai:

HISTORY TEST

Please pause a moment, reflect back, and take the following multiple choice test. The events are actual events from history. They actually happened! Do you remember?

1. 1968 Bobby Kennedy was shot and killed by:

a. Superman
b. Jay Leno
c. Harry Potter
d. a Muslim male extremist between the ages of 17 and 40

2. In 1972 at the Munich Olympics, athletes were kidnapped and
massacred by:

a. Olga Corbett
b. Sitting Bull
c. Arnold Schwarzenegger
d. Muslim male extremists mostly between the ages of 17 and 40

3. In 1979, the US embassy in Iran was taken over by:

a. Lost Norwegians
b. Elvis
c. A tour bus full of 80-year-old women
d. Muslim male extremists mostly between the ages of 17 and 40

And so on an so on. A list of 13 questions to which the "right" answer was always "Muslim male extremists between the ages of 17 and 40." At the end was the punch line:

Nope, I really don't see a pattern here to justify profiling, do you?

Not ten minutes later, I find that my inbox also contains this from the Washington Post:

Seven bullets fired into a young Brazilian man's head by an undercover policeman who mistook him for a suicide bomber have set off an impassioned debate over the rights and wrongs of anti-terrorism tactics and racial profiling in one of the world's most ethnically diverse cities.

Profiling is a necessary evil in trying to prevent and solve crimes, and, with respect to today's brand of terrorism, ethnicity is necessarily an element of such a profile. Inevitably, also, we have to do some profiling of our own: In walking down a deserted urban street at night, I am justifiably more concerned about the potential threat posed by six teenagers in gang colors than I am about three couples in their 60s.

But as we go about this daily ritual of threat assessment, we need to keep ever in our mind the danger that can flow from such prejudgments. It is for this reason that I found the angst in the Washington Post article so much more humane than the glib near-advocacy of collective guilt in Mordechai's "history test."

Maybe They Just Aren't As Used To Rude Reporters As We Are

This is a hoot.

Driving home yesterday, I heard an NPR report on Sudanese security guards "roughing up" an American female reporter when she tried to ask Sudanese President Bashir a question. Defending its own, the NPR report made it sound like this was simply more evidence of Sudanese repression and thuggery. Maybe it was. But a report in today's New York Times casts a whole new light on the incident:

After the [private] meeting [between President Bashir and Secretary Rice], American and Sudanese reporters and photographers were allowed to enter the room to take pictures and observe. Mr. Bashir was telling Ms. Rice about the historical significance of his ancestral home when Andrea Mitchell of NBC News shouted a question to him: "Why should Americans believe your promises" regarding Darfur, when "your government is still supporting the militias?"
Two Sudanese security officers grabbed her from behind and dragged her from the room. Mr. Bashir did not respond to the question or otherwise comment.

So, let's see. Reporters are invited in, not to ask questions, but "to take pictures and observe." The President of Sudan is telling Secretary Rice a story that has significance to him and therefore at least potential significance to Secretary Rice and perhaps the United States. Andrea Mitchell, the chief foreign correspondent for NBC News, is a woman visiting a Muslim country and is there ostensibly to report on the discussions between Secretary Rice and the President. Yet, she is so far uninterested in what the President is actually saying, and so smugly confident of her own moral and cultural superiorty that she not only interrupts but does so by "shouting" at him a "question" that is actually an accusation: "When will you stop beating your wife?" The President ignores her and his guards drag her out of the room.

And the press condemns the guards!?

There may be more to this story than is reported in the Times. But, if the Times report is a fair description of what went on, Ms. Mitchell got exactly what she deserved.

Why is it the American reporters -- not merely the "ambulance chasers" but national correspondents for major news organizations --f eel that they have the right -- nay, even the duty -- to be rude, overbearing, shrill and argumentative. When was the last time you wished there were some "Sudanese Guards" around in this country as you watched some idiot television reporter stick a mike in the face of some target and ask "Why should the American People believe you when everyone knows you are a lying sack of shit?" or "Tell the American People: How does it feel to see your son get hit by a car?"

There are many reasons for the ambivalence Americans fell about the press, but an appalling lack of both manners and good judgment is right up there on the list.

Be My Buddy -- Or Else!

Oh my. AOL has found a way to use social insecurity to fuel its marketing:IM Someone: The Online Popularity Test . But just in case you think this sort of thing appeals only to teenagers, you should check out how blog ratings are done!

Guantanamo Detainees By The Numbers

Here are some interesting statistics. The lead for the story is that 3 Guantanamo Detainees [Were] Freed on the grounds that they "no longer pose a threat to the United States or its allies." But what was to me more interesting was the context. According to the article:

752 people have been detained at Guantanamo since January 2002.
538 of these have had hearings into whether they were, in fact, enemy combatants
520 of these were found to have been properly detained
162 have had hearings into whether the were still a threat
159 were found to be a continuing threat
41 have been released (38 wrongly detained and 3 who were no longer a threat)
201 have been trensferred to other countries
510 are still in custody at Guantanamo

One thing that impresses me about these numbers is the very small percentage of "mistakes" the government has made. Out of a toal population of 752, only 38 (5%) have been found to have been wrongly detained. Given that most of these people were detained under combat conditions or other conditions not conducive to a measured consideration of evidence and probable cause, "getting it right" 95% of the time is pretty impressive. Assuming, of course, you belive that the status hearings do accurately distinguish those who are enemy combatants from those who are not. The other possibility, of course is that, in all but the most egregious cases, the combatant status hearing are pretty much a rubber stamp of the original determination that brought the detainee to Guantanamo in the first place. I'd like to believe the former, but my instinct tells me that it is unlikely that the original determinations were 95% accurate -- which leads inevtiably to the suspicion that the status hearings may not be as much af a search for truth as one would hope. (Toungue stuck firmly in cheek).

The threat assessment results are also interesting. Presumably, all 162 of the people who have had such hearings have previously had combatant status hearings and have been determined to have been "enemy combatants." If you believe that those determinations were accurate, what is amazing is that anyone has been found to no longer be a threat. If the person was prepared to do the US harm when he got to Guantanamo, what could have happened there to change his mind? Has 3 years of incarceration caused them to see the error of their ways? And, in any event, what possible assurance could they provide on that score that would satisfy DOD? The facts are admittedly scanty, and perhaps there are other explanations, but what seems most likely here is that the 3 never were a threat and probably shouldn't have been detained to begin with.

In high school (maybe it was even grade school), I remember learning that a fundamental premise of the American criminal justice system was that it was better to have 99 guilty men go free than to imprison one innocent man. The advent of DNA testing has pretty much given the lie to any idea that this was how things worked in practice. Still, it was a principle to which I think most of us aspired to have our system meet. But, it appears that the 9/11 attacks killed that principle even as an aspiration. I have no doubt that there are many at Guantanamo who pose a threat to American lives and property. Sadly, even if they did not pose such a threat when they were detained, they probably do now. Three years of imprisonment by a foreign, infidel power has an inevitable tendency to radicalize people who probably needed no additional motivation to hate America any way. So, at some level, I can understand the impetus to keep them all locked up. It's just safer that way. But I also wonder if we aren't doing to ourselves more damage than they could ever do.

Early Returns On The Roberts Nomination

There's a long way to go yet, and we may yet get the partisan donnybrook for which both sides have been gearing up for so long, but if the early returns hold up, it looks like I might actually get my wish: a war for which no one shows up.

The New York Times has nothing bad to say about Roberts. Neither does the Washington Post. Both portray him as conservative but smart and non-ideological. The Times goes so far as to use the following as the headline it's its "analysis" piece: " Bush's Supreme Court Choice Is a Judge Anchored in Modern Law." It's hard to see how the Left could effectively mount a challenge to the nomination without the support of such left-leaning MSM as the NYT and the WaPo.

Even the Left doesn't appear to be all that exercised -- at least for now. Oh, sure, MoveOn.org is urging people to "Tell Your Senators to OPPOSE JOHN ROBERTS," but the plea feels more like a knee-jerk reaction than committed opposition. Apart from a short blurb characterizing Roberts as "a right wing corporate lawyer and ideologue [who] opposed clean air rules and worked to help coal companies strip-mine mountaintops, . . . worked with Ken Starr, . . . tried to keep Congress from defending the Voting Rights Act, and [wrote briefs on behalf of clients arguing that] Roe v. Wade should be 'overruled,' " I can't find anything on the MoveOn site that tells people why they should oppose the nomination. For MoveOn, of course, it is enough that Bush appointed him. But they are going to have to come up with a lot more than that to generate much grassroots opposition.

There is also some name-calling and some angst about the danger Roberts could pose to abortion rights, but some on the Left appear to feel that the biggest problem with the nomination is that it takes attention away from the effort to get Karl Rove fired over the Valerie Plame imbroglio. In fact, at least one Left-leaning blogger appears to think the nomination was an "excellent, excellent pick."

In general, though, the sense is one of wariness combined with resignation. No one really has any idea what Roberts thinks. He has been a judge for only two years and has spent the rest of his legal career being a practicing lawyer rather than an academic, so he has virtually none of the written intellectual baggage that so bedeviled Bork. (As such he is exactly the type of nominee the WSJ so ardently wished to avoid. Nonetheless, sycophant that it is, the Journal is jubillant). As a consequence, there is precious little for the Left to point to as a basis for opposition other than the fact that he was appointed by Bush. Nan Aron tacitly admits as much [as quoted in the New York Times]:

"Let's be clear: Judge Roberts is not a stealth nominee, because the president's inner circle knows his views well, even if Americans do not."

But, beyond that, there is a sense that things could have been a lot worse and that the Left should probably save its slings and arrows for a more outrageous fortune.

What do I think? I'm actually moderately pleased by what I have read so far. Exhibit A is this excerpt from Robert's testimony in the Senate confirmation hearings on his nomination to the DC Circuit (courtesy of Greg Anrig at TPM Cafe):

I don't know if that's a flaw for a judicial nominee or not, not to have a omprehensive philosophy about constitutional interpretation, to be able to say, "I'm an originalist, I'm a textualist, I'm a literalist or this or that." I just don't feel comfortable with any of those particular labels. . . . [I]n my review over the years and looking at Supreme Court constitutional decisions, I don't necessarily think that it's the best approach to have an all-encompassing philosophy. The Supreme Court certainly doesn't. There are some areas where they apply what you might think of as a strict construction; there are other areas where they don't. And I don't accept the proposition that a strict constructionist is necessarily hostile to civil rights.

Frankly, apart from smarts, which Roberts apparently has in abundance, that is the one thing I most want in a nominee: an open mind.

And then there is this, from no less an anti-Bush partisan than Charles Schumer [also as quoted in the NYT]:

'[There is] no question that Judge Roberts has outstanding legal credentials' and an appropriate judicial temperament.

Smart, open-minded, outstanding legal credentials, and an appropriate judicial temperment. What more can you ask?

Well, there is this from John Yoo, a former member of the Bush Justice Department [as reported in the Washington Post]:

John C. Yoo, a conservative professor of law at University of California at Berkeley who served in the Justice Department in the current administration, emphasizes what he called Roberts's traditional approach to the law. In the 39 cases that Roberts argued before the Supreme Court -- 25 of which he won -- Yoo said he never pushed the court to adopt "big new theories" but rather argued the facts of his cases.

"He's the type of person that business conservatives and judicial-restraint conservatives will like but the social conservatives may not like," Yoo said.

"What the social conservatives want is someone who will overturn Roe. v. Wade and change the court's direction on privacy," he added. "But he represents the Washington establishment. These Washington establishment people are not revolutionaries, and they're not out to shake up constitutional law. They might make course corrections, but they're not trying to sail the boat to a different port."

Say what? Small government conservatives will like Roberts but social conservatives may not? He sounds like my kind of guy!

Again, it's early yet. But from what I know so far, I am pretty damn comfortable with John Roberts. Certainly he is the very best we could have hoped for from Messers Bush and Rove both in terms of the nomination process and the characteristics of the nominee.

The WSJ To Bush: No More Souters!

Well, I remain "0-for-many" in my efforts to get published by the MSM.

In an editorial today entitled "No More Souters," The Wall Street Journal argued that, in selecting someone to succeed Justice O'Conner, Bush should refrain from nominating anyone whose judicial philosophy is unknown.

If you want to understand why many of Mr. Bush's supporters are worried that he might nominate Attorney General Alberto Gonzales, this is the reason.

The objection isn't personal, and it isn't even about what Mr. Gonzales thinks; the concern is that virtually no one knows what he thinks. Mr. Gonzales's brief tenure on the Texas Supreme Court and his behind-closed-doors advice as chief White House counsel shed little light on what his judicial philosophy would be. And the record across recent decades is that justices who join the High Court without a clear and confident jurisprudence eventually become part of what has been a longstanding liberal majority.

The editorial drives this point home with a list of examples that would have to hearten any "liberal":

[S]even of the nine current Justices were appointed by Republican Presidents.

Earl Warren, the father of modern judicial activism, was an Eisenhower appointee. So was William Brennan, who inherited Warren's mantle as the Court's liberal giant. Harry Blackmun, the author of Roe v. Wade, was a Nixon appointee.

The most liberal member of the current court, John Paul Stevens, was a Gerald Ford selection. David Souter, a George H. W. Bush and Warren Rudman choice, told the Senate he saw himself in the tradition of the great Justice John Harlan, who revered precedent. But on the court he's arguably been more of a liberal activist than either of Bill Clinton's two justices (Ruth Bader Ginsburg and Stephen Breyer).

Anthony Kennedy, selected by Reagan after Robert Bork was defeated, was said at the time to share 80% of Mr. Bork's philosophy. But Mr. Kennedy's jurisprudence has proven to be nearly as malleable as Justice Souter's, especially on the cultural and church-state issues where the Court has become the de facto national legislature.

Even Justice Scalia appears to be a disappointment, despite having what the WSJ doubtless considers to be the apotheosis of a "a clear and confident jurisprudence." In ticking off a list of cases "[i]n which the post-Warren justices have arrogated to themselves an almost legislative authority," the editorial includes two in which Justice Scalia joined "the liberal majority:" Raich, the medical marijuana case and Kelo, the eminent domain case.

In my response to this editorial, I suggested that the really interesting question lurking behind these facts was "why?" Why is it that so many ostentibly "conservative" judges turn out to be such a disappointment to the conservatives who supported them? I offered my own views on this question (thorougly well-reasoned and insightful, of course) , but they didn't publish it. I neglected to save a copy myself, and have no desire to try to reproduce it here in its entirety, but the gist of it was as follows:

1. Becuase they have a life-time appointment and no concern about being reversed by a higher court, Supreme Court justices are uniquely free to "do the right thing;" and
2. Inevitably, even the most "conservative" Justices sooner or later realize that "doing the right thing" involves leadership (aka "activism").

The WSJ decries such leadership (activism) on the grounds that it "hijack[s] those social disputes from democratic debate, preventing the kind of legislative compromises that would allow a social and political consensus to form." To which I responded, "Nonsense."

The Supreme Court is not, can not, and should not be removed from the "democratic debate;" it is always a part of, and very frequently the initiator of, that debate. The debate continues well after the decision is rendered, and anyone who believes that the the durability of individual decisions is not affected by that debate should compare Plessy v Ferguson (separate can be equal) with Brown v Bd. Of Education (separate cannot be equal), Schecter Poultry with J&L Steel and SWANCC with Raich (see this post), and Bowers with Lawrence(see this post).

I have said it before, and no doubt will say it again: The Supreme Court plays a vital role in the Nation's political processes, in defining who we are and what are values are. And it is wishful thinking to suppose this can be changed and very bad policy to try.

Update: Well, now I am really hurt. Here is one of the comments the WSJ did publish:

Abolish the Court
R.LaBonte - Sacramento, Calif.

We don't need three political branches. The answer is to get rid of the Supreme Court. Start by reducing the number of judges to three. Rehnquist, Scalia, and Thomas. Then limit the Court's jurisdiction to one area--treaties and foreign policy. The Supreme Court is anachronistic, unnecessary, unhelpful, and contributes the national disintegration. America would be much better off without a bunch of elitist petty princesses. Get rid of the Supremes.

This is the kind of thing that gives free speech -- to say nothing of democracy -- a bad name.

Postmodernist Constitutional Interpretation

Stanley Fish, the controversial apostle of postmodernism, had an interesting Op-Ed piece in the NY times this morning on theories of Constitutional interpretation and their implications for the coming debate on a replacement for Sandra Day O'Connor. His take-off point is to critique what he characterizes as Justice Scalia's devotion to "textulaism". According to Fish, "Textualists insist that what an interpreter seeks to establish is the meaning of the text as it exists apart from anyone's intention. According to Justice Scalia, it is what is "said," not what is "meant," that is "the object of our inquiry."

Fish, points out that unless one divines an intent to communicate, you can not even be sure that marks on paper are writing. Moreover, he argues, "even then you are not home free", since even if you know that what you are looking at is an attempt to communicate, the language does not speak for itself. To understand it, you have to divine what the writer was trying to say. Inevitably, therefore, Fish argues, any effort to decode a writing involves a search for the writer's intention.

This much is actually a bit of a red herring, since Scalia would not disagree. Scalia's basic philosophy is not "textualism" so much as it is "originalism." That is, he believes that the effort to "interpret" any legal document" begins (and ends) with the intentions of the drafters. The language the drafters actually used is the starting point for this inquiry, and in extreme cases the extreme, the language used may even trump intention. For instance, if a statute says you shall pay 10% of your income in taxes, the court will not "interpret" this to require you to pay 20% even if there is clear evidence that this was what the drafters actually "meant." But, most cases that reach the Supreme Court do not involve an obvious conflict between what is said and what is meant. Rather, the language used gives rise to uncertainty about what was meant: e.g. what does "due process of law" mean as applied to the particular case now before us? In these sorts of cases, Scalia would agree with Fish that "interpreting the Constitution - as opposed to rewriting it - . . . necessarily [is limited to] trying to figure out what the framers had in mind. Intentionalism is not a style of interpretation, it is another name for interpretation itself. "

In short, according to Fish, the world breaks down into only two camps: those who would "interpret" the Constitution -- a process confined to determining the intent of the drafters -- and those who would"re-write" the Constitution -- a process that allows one to give the words a "meaning" that they did not have for the people who wrote it.

As a purely logical matter, this dichotomy is pretty hard to dispute. But it is also pretty hard to find any use for it.

Let's accept the dichotomy. Let's also assume, as do Scalia -- and perhaps Fish, although this is less clear -- that "interpretation" as defined by Fish is "good" and "proper" but "re-writing" is not. Where does that leave is in, say, trying to decide whether capital punishment is or is not "cruel and unusual" under the Eighth Amendment? An originalist would argue that since capital punishment was prevalent at the time the Bill of Rights was adopted, the Framers could not have considered it to be either cruel or unusual. Thus, to declare it to be cruel or unusual today would be to "re-write" the Constitution.

But it isn't that easy.

One of the most powerful ways to divine the intention of a drafter is to compare the language he did use to the language he could have used but did not. In the case of the 8th Amendment, the drafters could have provided a list of banned punishments. But, they didn't do that. They chose instead to articulate a broad and manifestly vague principle they had to know at the time would be subject to differing interpretations. So, any effort to divine their "intent" on this issue has to consider the question of why they intentionally opted for ambiguity.

There are two possibilities. First, it may be that they themselves could not reach a sufficient concensus on what was and was not "cruel and unusual" to allow for ratification. So, they compromised by adopting a general principle with which all could agree and left it to the Courts to figure out how that principle applied in particular cases. Second, it may be that they intended the Constitution to be a "living document," one that could be adapted over time, by the Courts, to accommodate changing circumstances and societal values without the need for an actual Amendment. If either of these possibilities is actually the case, then it is the advocates of the "living constitution," rather than Scalia and his apostles, who are actually being true to the original intent.

Fish summarizes his argument thusly:

And that is why the only coherent answer to the question "What does the Constitution mean?" is that the Constitution means what its authors intended it to mean. The alternative answers just don't work: the Constitution can't mean what the text alone says because there is no text alone; and it can't mean what present-day society needs and wants it to mean because any meaning arrived at under that imperative will not be the Constitution's.

I pretty much agree with this up to the very last clause: "it can't mean what present-day society needs and wants it to mean because any meaning arrived at under that imperative will not be the Constitution's. Excuse me, but isn't that simply an ipse dixit? Doesn't it ignore the possibility that the "imperative" of the drafters was to create a fundamental document that could and would evolve?

Both Fish and Scalia argue that accepting an evolutionary approach to Constitutional interpretation will end up making the Constitution mean whatever a majority of the nine justices believe it should mean at a given point in time. Hasn't that, in fact, always been the case? And why is that a assumed to be a "bad" thing? And, most important for present purposes, why is that assumed to be contrary to the "intention" of the drafters?

For more on this last set of question, see this earlier post:"On Judicial Acitivism".

Take It To Tombstone -- Please

N.R.A. Cancels Convention in Columbus Because of [Assualt Weapon] Ban

More on Judith Miller and Reportorial Privilege

In this post form July 8, I took the New York Times to task a bit for arguing that the jailing of Judy Miller raised significant Constitutional issues:

The Times would have us believe that sending Ms. Miller to jail is an attack on the First Amendment. It is nothing of the sort. The First Amendment guarantees the Times -- and Judith Miller -- the right to publish what they know. It does not, however, guarantee them the right to know anything. There is no constitutionally sanctioned right of the "public," much less the New York Times, to know anything.

I also argued that it would be a mistake to adopt shield laws that would protect reporters from Miller's fate:

The Times argues that the Constitution (or, failing that, legislation) should prevent the government from seeking to force her to break that promise. But the effect granting such protection is to cheapen the promise. With such protection, reporters take no risk by promising anonymity. As a consequence, such promises get made willy-nilly.

There is much debate today about the propriety of using confidential sources at all. Even the Times itself recognizes the risks inherent in this procedure and the necessity of taking steps to impose safeguards. What better safeguard could there be in this regard than to have the reporters themselves understand that, when they promise anonymity, they could someday be forced to choose between breaking that promise and going to jail?

The Miller case does not undermine the ability of the press to guarantee anonymity. To the contrary it demonstrates that the press CAN guarantee anonymity: after all, Judith Miller has not disclosed her source(s). But what the case does undermine is the belief by the press that promises of anonymity can be provided cost-free. To my mind, that is a good thing.

That same day, Bob Garfield made much the same point in an editorial on NPR's "On The Media." It took me a week to track down links to this editorial, but here they are: Audio Clip, Transcript . He also offered a solution to the problem that I like:

[T]he nub of the affair [is] not whether anonymous sources are important in revealing the inner workings of government, especially one as secretive as the Bush Administration--of course they are--and not whether reporters need to protect their sources. Of course, they do. The moral of this story is that not every anonymous source is himself or herself a principled participant. Some of them are simply Machiavellian scoundrels, and we should take care about whom we make professional commitments to, and equal care about what commitments we are making. The solution is simple contingency, a promise of confidentiality with strings attached, each string specified in advance. . . . a journalistic Miranda warning, one that says this agreement is null and void if you, Mr. Source, are a liar or a fraud or engaged in criminal behavior unknown to this reporter right now because then, pal, all bets are off. Would that have a chilling effect on the flow of information inside the beltway? Probably. It would also have a chilling effect on the naked manipulation of the press. Judy Miller, considering her Pulitzer-prize winning way of conducting journalistic business, might be especially chilled. But she also wouldn't be in the cooler right now.

Sports: Mixed Emotions All Around

I have two remaining avocations -- golf and poker -- and there is a lot going on in each this week. But much of it engeders mixed feelings.

Tiger Woods appears to be running away with the British Open, with a 5 shot lead after two rounds. This is a good thing. He is, without a doubt, the greatest golfer who ever lived and it is fun to watch hime make history. But, Jack Nickluas, the only potential challenger to Woods for the "greatest golfer" title did not make the cut. (Here's Jack's final tounament scorecard). I would really have liked to see Jack make his parting bows on Sunday, rather than Friday. But that's not to be.

Michele Wie was finally eliminated from the Mens US Public Links chamionship, but not before making it to the quarter finals. As much as I like watching Wie play in men's tournaments (in addition to the golf she is so damn pretty!), I have to admit that I think it is bad news for the women's tour. Wie could do for that tour what Billie Jean King did for women's tennis, but only if she makes that tour the focus of her career. To the extent she sets her sights on playing on the mens' tour -- or is precieved to have done so -- she will inevtiably devalue the women's tour in the public eye (it's only for thiose who can't compete on the real tour) and will doom herself to mediocrity. She could be a legend of women's golf or a curisoity in men's. I prefer legends.

Finally, there's the World Series of Poker. Down to the final table, there is almost no one you have ever heard of. Where are "the legends": Johnny Chan, Dan Harrington, David Negranu, Phil Helmuth, Sammy Farha, Doyle Brunson, etc. etc? All long gone. The tounament gets bigger and richer every year, yet it is losing a lot of its character by becoming a contest between unknown neophytes: A cross between reality TV and a lottery; more like "American Idol" than a US Open. This "democratization" of the biggest event is poker is fun, since it engenders in suckers like me a sense that, "Hey, I could do this!" But, my enjoyment is tempered by a realization that it is probably no longer possible for the tournament to produce legends rather than simply winner. Again, I prefer legends.

What If They Gave A War And Nobody Came?

I suppose this will probably turn out to have been wishful thinking, but I'm beginning to think there is a chance we will avoid a pitched battle over a replacement for Justice O'Connor: Senators Advise Bush on Picking a Court Nominee. For Bush to even listen is amazing. And, it appears that the Dems are actually trying to recommend some people that Buch might realistically consider. Could it be that the brinksmanship we had a few months back over the "nuclear option" ended up scaring everyone so much that they are now willing to compromise?

Wouldn't THAT be nice?

Judith Miller and Promises of Anonymity

Here is the NY Times editorial from yesterday on Judge Hogan's decision to send Judith Miller to jail, at the behest of federal prosecutor Patrick Fitzgerald, for failing to reveal the identity of a confidential source for an article she never wrote.

I have a good deal of sympathy and respect for Ms. Miller. She's obviously a woman of principle who is willing to make an extraordinary sacrifice to remain true to those principles. In so doing she is acting -- as the Times correctly points out -- in a tradition of non-violent civil disobedience that includes such luminaries as Henry David Thoreau, Mahatma Ghandi, and Martin Luther King. This is a tradition that we all should cherish.

But the fact that Ms. Miller's is acting nobly does not mean the government is acting ignobly. The Times would have us believe that sending Ms. Miller to jail is an attack on the First Amendment. It is nothing of the sort. The First Amendment guarantees the Times -- and Judith Miller -- the right to publish what they know. It does not, however, guarantee them the right to know anything. There is no constitutionally sanctioned right of the "public," much less the New York Times, to know anything.

I agree with the Times that the First Amendment's free press guarantee arose out of a conviction by the Founders that a free press was the best check on government abuse. I also agree that it is difficult for the press to perform this watchdog function without the ability to delve into matters that the government would prefer be kept secret. Finally, I recognize that the easiest way, and in some cases the only way, for the press to get information on government secrets is provide its informants with a promise of anonymity. But it does not follow from this that the promise of anonymity by a reporter to a source should be entitled to constitutional protection.

What is at issue in these cases is the credibility of the reporter's promise, not the First Amendment. Ms. Miler is admirable because she made a promise and is willing to go to jail rather than break it. The Times argues that the Constitution (or, failing that, legislation) should prevent the government from seeking to force her to break that promise. But the effect granting such protection is to cheapen the promise. With such protection, reporters take no risk by promising anonymity. As a consequence, such promises get made willy-nilly.

There is much debate today about the propriety of using confidential sources at all. Even the Times itself recognizes the risks inherent in this procedure and the necessity of taking steps to impose safeguards. What better safeguard could there be in this regard than to have the reporters themselves understand that, when they promise anonymity, they could someday be forced to choose between breaking that promise and going to jail?

The Miller case does not undermine the ability of the press to guarantee anonymity. To the contrary it demonstrates that the press CAN guarantee anonymity: after all, Judith Miller has not disclosed her source(s). But what the case does undermine is the belief by the press that promises of anonymity can be provided cost-free. To my mind, that is a good thing.

Bush Bitten By His Own Mad Dog

Bush Answers Gonzales Critics

I can't believe I (and Harry Reid?!) are now going to be declaring victory if Bush nominates Alberto "toture memo" Gonzales to replace Justice O'Connor. But, there it is. "Bad" is, as always, a relative term.

The silver lining, though, is that the Right has so far overplayed its hand that it has alienated even Bush. Given Bush's bulldog mentality, pissing him off will only serve to accelerate the marginalization of the whackos.

Seeing Gonzales appointed to the Supreme Court, where he could sit for 30+ years (he's 50) is a high a price to pay for this, but seeing the Right get slapped upside th head is a small spoonfull of sugar that will make the medicine go down a bit easier.

Update: The bookies seem to have recognized that the rabid Right's opposition to Gonzales has actually improved his chances of getting nominated. See Bettor Days for Gonzales. One backs George Bush into a corner at his peril.