Newsweek Stuff: And the "Duty To Die"

Newsweek rakes W over the coals, with considerable justification. But, what really caught me was this haunting suicide note, from Hunter Thompson, (in "Perspectives" via Rolling Stone):

No more games. No more bombs. No more walking. No more fun. No more swimming. 67. That is 17 years past 50. 17 more than I needed or wanted. Boring. I am always bitchy. No fun -- for anybody. 67. You are getting Greedy. Act your old age. Relax -- This won't hurt.

Is this what all of we baby boomers need to think through as we age, consuming more and more of our childrens' resourses, returning less and less value as each year passes?

It's an idea that haunts me.

Feeling Bad For Brownie -- And Mad At The Senate

Michael Brown has resigned as the head of FEMA. He and the White House both maintain that "This was Mike Brown's decision. This was a decision he made." But the fact that Bush nominated a replacement within minutes of Brownie's announcement makes that claim a bit preposterous. He was thrown to the lions, pure and simple.

Certainly, it is appropriate that Brown be replaced. His total lack of experience and his incredibly bad judgment in choosing his words have made him the butt of innumerable jokes and the lightening rod for all of the anger and frustration engendered not only by the problems with the relief effort but with the storm itself. But, I don't think Brown actually deserves the vituperation that has been visited on him. Brown is probably a good man, with a good heart, and he probably did the very best he could in responding to the emergency. Frankly, that is about all you can demand of a civil servant. The problem, in short, is not with Brown himself but with the fact that he was placed in a job for which he clearly was not qualified and the duties of which he was plainly not competent to discharge. The jokes, snide remarks, and particularly the anger directed at Brown would be far more fairly directed at the President who appointed and the Senators who confirmed him.

In this regard, I find particularly contemptible the righteous indignation of Senators. Senator Clinton, says "'I would never have appointed such a person.'" So, where were you, Senator, when the Senate voted to confirm his appointment? "'Let's bring in someone who is a professional,' urged Sen. Barbara Mikulski, D-Md." That advice would have been a heck of a lot more helpful before Brown was confirmed.

The "advice and consent" duties of the Senate are imposed by the Constitution precisely to provide a safeguard against the appointment of incompetents to posts of national importance. Rather than piling on Brown or even the President, these Senators, indeed the Senate as a whole, should be apologizing to the American People for so completely failing to perform their own duties.

UPDATE: This from an editorial in today's Washington Post:

As we wrote yesterday [see "Congress Heal Thyself"], Mr. Brown received only a 42-minute Senate confirmation hearing when he was nominated to be deputy director of FEMA, and no hearing at all when he became its boss. . . . Congress and the administration should now focus hard on R. David Paulison, head of FEMA's emergency preparedness force, who has been nominated to replace Mr. Brown. A former Miami-Dade County fire chief who helped Florida cope with Hurricane Andrew, Mr. Paulison may be qualified. But before coming to that conclusion, it would help if Congress and the White House take a bit more than 42 minutes to find out.

42 minutes?! Yes, indeedy, it sure would "help" if the Senate took its Constitutional responsibilities a bit more seriously than that.

Why I Like John Roberts

On the way home tonight, I heard on NPR the very end of John Robert's "opening statement" in the hearings on his confirmation. I found what little I heard to be appealing, so I got the full transcript of his statement (from USA Today of all places). (BTW: USA Today is actually turning into a pretty decent newspaper. Check it out some time).

The most puzzling part of the statement was this:

Judges are like umpires. Umpires don't make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire.

That analogy is completely bogus. The difference between an umpire and a judge is as simple as it is profound: the rules an umpire applies are so clear they require no interpretation; the rules a judge are anything but clear. The role of an umpire is to apply undisputed rules to disputed facts. The role of a Supreme Court Justice is to apply disputed law to undisputed facts.

In a way, I find the absurdity of the umpire analogy comforting. Roberts is, by all accounts a very, very smart man with a ton of experience in Supreme Court practice. I am reasonably confident, therefore, that he recognizes how lame the umpire-to-judge analogy is. If that is so, then the only explanation I can think of for him to use the analogy is to reassure the Right that he is not an activist. Yet, while the analogy may actually serve that purpose, it does not actually say anything about how Roberts will actually approach the only really important cases: where it is the law that is in dispute, not the facts. Perhaps it is I who is naive, but I take some comfort in the notion that Roberts has endeavored to appear to assure the Right without actually doing so.

The speech also includes emotive paeans to the endless fields of his boyhood home in Indiana and the glories of "the rule of law" that serve no purpose but to wave the flag. But interspersed in this I think is actually the nub of John Roberts:

Judges have to have the humility to recognize that they operate within a system of precedent, shaped by other judges equally striving to live up to the judicial oath. And judges have to have the modesty to be open in the decisional process to the considered views of their colleagues on the bench.

* * * *

Mr. Chairman, I come before the committee with no agenda. I have no platform. Judges are not politicians who can promise to do certain things in exchange for votes. I have no agenda, but I do have a commitment. If I am confirmed, I will confront every case with an open mind. I will fully and fairly analyze the legal arguments that are presented. I will be open to the considered views of my colleagues on the bench. And I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability.

Perhaps this is so much BS. Perhaps this is simply his way of trying to reassure the Left. But, I don't think so. Everything I have read about Roberts leads me to believe that this is what he truly believes. And, if so, I am satisfied. I can ask no more of any person nominated for the Supreme Court than that he come to each case with an open mind, that he fully and fairly analyze the arguments presented, that he be open to the considered opinions of his colleagues on the bench, and that he decide every case based on the record, according to the rule of law as he understands it, without fear or favor, to the best of his ability.

In short, I am pretty comfortable with Roberts. I just hope the next one is as good.

Bush Bashing

I don't really like ad hominens, but these two are are just too rich to pass up.

First, there is this from from the Bush Family Vacation Photo Album (courtesy of Denise):

Then there is this from Billy Bob (posted it as a comment earlier but now being promoted)

Dear Mr. Bush:

Thank you for doing so much to educate people regarding God's Law. I have learned a great deal from you and understand why you would propose and support a constitutional amendment banning same sex marriage. As you said "in the eyes of God marriage is based between a man a woman." I try to share that knowledge with as many people as I can. When someone tries to defend the homosexual lifestyle, for example, I simply remind them that Leviticus 18:22 clearly states it to be an abomination... End of debate.

I do need some advice from you, however, regarding some other elements of God's Laws and how to follow them.

1. Leviticus 25:44 states that I may possess slaves, both male andfemale, provided they are purchased from neighboring nations. A friendof mine claims that this applies to Mexicans, but not Canadians. Can you clarify? Why can't I own Canadians?
2. I would like to sell my daughter into slavery, as sanctioned in Exodus 21:7. In this day and age, what do you think would be a fair price for her?
3. I know that I am allowed no contact with a woman while she is in her period of menstrual uncleanness -Lev.15: 19-24. The problem is how do I tell? I have tried asking, but most women take offense.
4. When I burn a bull on the altar as a sacrifice, I know it creates apleasing odor for the Lord - Lev.1:9. The problem is my neighbors. They claim the odor is not pleasing to them. Should I smite them?
5. I have a neighbor who insists on working on the Sabbath. Exodus35:2. clearly states he should be put to death. Am I morally obligatedto kill him myself, or should I ask the police to do it?
6. A friend of mine feels that even though eating shellfish is an abomination - Lev. 11:10, it is a lesser abomination thanhomosexuality. I don't agree. Can you settle this? Are there 'degrees'of abomination?
7. Lev.21:20 states that I may not approach the altar of God if I have a defect in my sight. I have to admit that I wear reading glasses. Does my vision have to be 20/20, or is theresome wiggle-room here?
8. Most of my male friends get their hair trimmed, including the hair around their temples, even though this is expressly forbidden by Lev.19:27. How should they die?
9. I know from Lev. 11:6-8 that touching the skin of a dead pig makes me unclean, but may I still play football if I wear gloves?
10. My uncle has a farm. He violates Lev. 9:19 by planting two different crops in the same field, as does his wife by wearing garments made of two different kinds of thread (cotton/polyesterblend). He also tends to curse and blaspheme a lot. Is it really necessary that we go to all the trouble of getting the whole town together to stone them? Lev. 24:10-16. Couldn't we just burn them to death at a private family affair, like we do with people who sleep with their in-laws?(Lev.20:14)

I know you have studied these things extensively and thus enjoyconsiderable expertise in such matters, so I am confident you can help.Thank you again for reminding us that God's word is eternal and unchanging.

Hermeneutics, Exegesis and Exposition

How's THAT for a title to a blog post?

A minute ago, I turned on the TV to see what football games were on, and for some reason (I didn't do it, I swear!), the TV was tuned to our 24-hour religious broadcasting station. I got there just in time to hear the following sentence:

"In hermeneutics, exegesis must precede exposition."

One doesn't often hear any of these words on television, much less all three in one six word sentence, so I was intrigued. Hermeneutics is the science and art of determining the meaning of biblical text. The point the speaker was making was that before you can "expound" (even to yourself) on those meanings, you have to engage in a process of exegesis in which you seek to discover, first and foremost, what the language used meant to the original audience. The point, I take it, is that the meaning of a message gets blurred by translation (from Greek, say, into English, or worse yet from Arameic into Greek into English) and further, even with a "perfect" translation, the words themselves may not have the same meaning for us that it they had for the initial audience for those words. As a consequence, before one can really even begin to talk meaningful about the "message" embedded in a biblical text, one must first endeavor to discover what the language meant to those to whom it was initially directed. Context, in other words is, if not everything, at least essential to understanding. It is only when you have un\covered as much as you can of he context that you can even begin to discern, much less "expostulate on," the implications of the message for ourselves and our times.

As concepts, these are hardly novel to any lawyer. One of the very first lessons taught in law school is that, when reading and trying to understand a judicial decision, the first and frequently most important question you have to ask yourself is "What was really going on here; what were the facts that led to the decision and what interests were really at stake; what did the decision mean to the people involved?" In short, the decision itself is simply the tip of a vast iceberg; the endpoint of an involved and sometimes long process involving much more than the particular litigants that end up before the court. To understand what the decision really means and how it relates to issues of concern to you and your clients, you have to try, insofar as possible, to understand what preceded the decision and what it meant to the people actually involved.

Thus, it should not have surprised me to hear a theologian argue that the same process needs to be used in trying to understand the Bible. Yet, it did. Few people I respect take the Bible literally. Most see much of what the Bible says as metaphor. However, even these people tend to think that the metaphors have a single meaning that has not changed over time. And, I have largely thought that one had to accept at least that premise to treat the Bible as "gospel." Yet, even a moment's reflection makes me realize that even this is not true. Having recognized the metaphorical nature of the message one still has to ask "What did that metaphor mean to the original audience?" The message is buried in THAT meaning, and if we automatically assume that the meaning of the metaphor has not changed we are very likely to miss the true message altogether.

There is not enough in this to allay my doubts that the Bible is divinely inspired. However, it does tend to help me understand how those who do believe it to be divinely inspired can "live with" some of what's in it.

Also, there is a relativism buried in this approach to the Bible that makes me smile.

Note to New Orleans?: Next Time You Are On Your Own

Here's a provocative -- perhaps incendiary -- thought that we probably should, but almost certainly will not, think seriously about as we move away from responding to the Katrina catastrophe and toward the process of rebuilding New Orleans: Should we tell the City and its residents that, while we will help them re-build this time, the next time they are on their own.

I don't pretend to have the answers to that question. But I do think it needs to be debated, and, for the moment, I propose to play devil's advocate. That is, I want to try to make the case for telling New Orleans that, while we are willing to help them re-build, we are not willing to subsidize a reconstruction in the same location.

Several hundred billion dollars of taxpayer money will be spent responding to the Katrina catastrophe. The vast, vast majority of that money will come from taxpayers who do not live in or anywhere near New Orleans and obtain little or no benefit from its particular location. I do not begrudge the victims that money. However, I do question the extent to which taxpayers in the rest of the country have the duty to act as insurers of New Orleans' future if the residents choose to rebuild the City in the same, utterly stupid, place.

There is something bordering on madness in building a City of a million or more people in a bowl that is mostly below sea level and located only a few miles from a stretch of ocean that sees multiple hurricanes every year. That madness has always been obvious to anyone who has ever thought even briefly about the issue. Yet, prior to Katrina, we were faced with a fait accompli: the City already existed, and moving the City and its people to some more sensible location was simply not possible.

Things have changed now, though. A significant proton of the City has been destroyed and virtually all of its residents have been driven into a diaspora. The homes and businesses of these people need to be rebuilt, and the rest of the country does have an obligation to assist in this effort, since it is so plainly far beyond the resources of both the victims themselves and local governments. But, to the extent the rest of the country is footing the bill, we also have some say in how our money is spent.

The instinctive impulse of everyone involved will be try to restore what was lost and to seek to better protect the affected people and property with ever higher levees and ever stronger anti-flood defenses. But that impulse is driven more by nostalgia and stubbornness than it is by good sense. Moreover, the enormous costs of that alternative will be borne primarily by millions of people who obtain no benefits from New Orleans' location while the benefits, if any, will be enjoyed only by those who live or visit there.

If there were some way to assure that a similar catastrophe will not recur, nostalgia and stubbornness might provide sufficient justifitication for the investment. But there is no such assurance. In fact, regardless of what is done to provide greater protection, another similar catastrophe is a statistical certainty so long as the City remains where it is. And, at that point, the rest of the Country will be faced with yet another fait accompli requiring the residents of Iowa to spend yet more money to extricate the residents of New Orleans from the consequences of their folly in living where they do.

We cannot refuse to help the City re-build itself. We can, however, refuse to subsidize folly. The current situation must be stabilized. But before we pour hundreds of billions of dollars into the effort to re-build New Orleans and protect it from the consequences of Katrina II, the alternative of using that money to relocate the City to higher ground ought to be seriously considered.

In light of this, I offer the following modest proposal. First, we should refuse to invest in significant improvements to the existing levee system. What is there already should be repaired and we should be willing to participate in that effort. However, since there is no way to construct a system of defenses that will eliminate the risk that areas below sea level will be inundated, we do not intend even to try.

Second, federal dollars should only be used for the construction or reconstruction of buildings and infrastructure that are above sea level. Areas of the City that are below sea level need to be abandoned so as to provide "defense in depth" as a backup to the existing levee system. The additional land needed to replace abandoned homes and businesses will have to be found on the landward side of the Mississippi River or in other locations that are above sea level if federal help is expected.

Finally, and perhaps most important, if State and local authorities choose to allow sub-sea-level portions of the City to be restored, they, the people who elect them, and most especially the people who choose to build in such locations, must be made to understand that the nation is not responsible for protecting those homes and businesses and will not pay to have the damage repaired if they are destroyed by another hurricane.

Contrary thoughts are welcome, even hoped for.

Evolution and Religion

I found these somewhat amazing statistics in the New York Times today:

Can it really be that 42% of the American people really do believe that there have been no biological changes since "creation" and 40% of the remainder believe that whatever changes have occurred have been guided by a supreme being rather than natural selection? Is it possible that they are just not aware of the facts? Or is it that they are aware but refuse to believe?

For any of you that happen to fall within this 60% (or within the other 14% who "don't know") but are still willing to look at the evidence, I would strongly recommend reading "Finding Darwin's God" by Kenneth R. Miller. Miller is a cellular biologist who believes deeply in both evolution and God and his book is does a pretty convincing job of demolishing both the Creationist/Intelligent Design "theories" and the underlying idea that evolution is antithetical to religious belief.

But just in case you don't want to read 300 pages on this issue, here is the Cliff Notes version:

First, there is not one scintilla of scientific support for creationism/intelligent design. Rather this whole "theory" is based on the absence of proof. That is, rather than pointing to observable facts that support it, the Creationist/ID argument is based entirely on the following syllogism:

1. Evolution has not explained everything.
2. Therefore, evolution can not explain everything.
3. Therefore, evolution is wrong and there must be a supernatural force at work.

The premise is true enough. For instance, there is (I gather) a so-called "missing link" in the evolutionary chain between apes and humans. The problem with the syllogism comes in the second step: the leap of faith inherent in arguing that because science has not yet explained something, it never will be able to. Religion has made that gamble any number of times in history and it has lost every time. For instance, the Catholic Church forced Galileo to recant his theory that the universe was not be geocentric, since it was inconceivable that the Creator might have placed the pinnacle -- indeed the purpose -- of his Creation on a fifth rate planet, orbiting a mediocre star, somewhere off on the edge of a very ordinary galaxy located amongst billions of other galaxies. Yet, the fact that the Church forced Galileo to recant did not end up making the geocentric theory true. It ended up, instead, providing one of the more famous embarrassments for the Church. (To its credit, the Catholic Church learned its lesson and today has no trouble embracing evolution, even of human beings. It simply insists that whatever the origins of man's body and mind may be, his soul is a gift from God: "Pius XII stressed this essential point: if the human body takes its origin from pre-existent living matter, the spiritual soul is immediately created by God". The American evangelicalism has yet to mature to this point.)

Second, there is nothing inconsistent between evolution and religious belief. At its most basic level, evolution says that biological change happens randomly and by chance and that the ruthless struggle for survival "selects" which changes will be preserved (for a time at least) and which will disappear. The scientific support for this explanation is overwhelming. Even more important, there is not one single fact known to man that is inconsistent with it. It has been proven with every bit as great a degree of certainty as has the theory that the earth is round and that it revolves around the Sun rather than vice versa. Yet, people -- 60% of them if you believe the polls -- resist. It is the randomness of this process that so bothers believers. They believe, as Einstein did at one point, that "God does not play dice with the Universe." But as Einstein himself ended up accepting in the end, if there is a God at all, then He does, in fact, do exactly that: he allows his creation to evolve by chance, confident, it would seem, that sooner or later chance plus natural selection will end up producing man (or whatever creature it is His ultimate goal to produce). Who among believers would deny to God the ability to use chance and randomness to achieve His ends (whatever they are)?

If "creationism" or "intelligent design" is to be taught in schools, then it should be taught in the same manner that one would teach the "theory" that sun is a burning chariot hauled across the sky by a team of horses driven by Apollo: i.e. as a myth used by people at one time to explain what to them appeared inexplicable.

Pat Robertson: Christian Extraordinaire

It's been big news, so you've undoubtedly heard already that Pat Robertson, that warrior for "traditional values," publicly advocated the assassination of Venezuela's President Hugo Chavez in a recent broadcast of his 700 Club television show. Even James Taranto felt called upon to condemn this, pointing out that calls for assassination might be seen to be inconsistent with the "culture of life" Robertson advocates when it comes to abortion, stem cell research and Terri Schaivo. As Taranto concludes, "It goes to show that one can be religious without being morally serious."

But there are a couple of other tid bits in this story that bear emphasis.

Secretary of Defense Rumsfeld pointed out that "Private citizens say all kinds of things all the time." Yet, both the Departments of both State and Defense felt compelled to issue statements repudiating Robertson's remarks. When is the last time the Departments of State and Defense felt compelled to repudiate your remarks? Robertson and his ilk have insinuated themselves so deeply into this administration that even the administration recognizes they can justifiably be seen to be speaking for the President.

Some of Mr. Robertson's evangelical brethren did issue statements condemning his remarks. However, "the Traditional Values Coalition, the Family Research Council and the Christian Coalition sa[id] they were too busy to comment." Huh?! Too busy to comment?? "Commenting" is what these people DO!

Mr. Robertson's rationale was, if anything, even stranger than the his call for assassination:

Speaking live in the studio, Mr. Robertson said Mr. Chávez had "destroyed the Venezuelan economy" and was turning the country into "a launching pad for communist infiltration and Muslim extremism."

Muslim extremism? In South America? And, can you imagine a more unlikely combination: atheistic communists allied with Muslim holy warriors? To paraphrase Mr. Taranto, it goes to show that one can amass a huge following without being intellectually serious.

And, lest we forget, the NY Times closes it's piece with a reminder of some of the other pearls this great Christian has cast before the faithful:

In May he said the threat to the United States from activist judges was "probably more serious than a few bearded terrorists who fly into buildings." In 1998, he warned that hurricanes and other natural disasters would sweep down on Orlando, Fla., because gay men and lesbians were flocking to Disney World on special "gay days." And he has often denounced the United Nations as a first step toward a dangerous "one world government."

Sheesh. How is it possible that anyone can take this man seriously?

Enforcing Morality Continues To Trump Everything Else

From a Washington Post article on a focus group study by the Democratic Party this is depressing:

"As powerful as the concern over [the economy and Iraq] is, the introduction of cultural themes -- specifically gay marriage, abortion, the importance of the traditional family unit and the role of religion in public life -- quickly renders them almost irrelevant in terms of electoral politics at the national level."

Many of these voters . . . see the Democrats as weak on national security, and on cultural and moral issues, they view Democrats as both inconsistent and hostile to traditional values. "Most referred to Democrats as 'liberal' on issues of morality, but some even go so far as to label them 'immoral,' 'morally bankrupt,' or even 'anti-religious,' ".

. . . . "No matter how disaffected [voters] are over Republican failures in Iraq and here at home, . . . a large chunk of white, non-college voters, particularly in rural areas, will remain unreachable for Democrats at the national level."

Somehow we must resurrect the idea that there is a difference between morality and legality. Morality is a private matter. It is the code of conduct that individuals apply to themselves. Legality is a public matter. It is the code of conduct that government imposes on all of us. We get into trouble when we try to turn our own personal moral code into a legal code that applies to others. For, in so doing, we deprive others of that which we would never surrender ourselves: the right to decide for ourselves what we believe to be right and wrong.

The fact that something is considered immoral by many or even most people is not alone sufficient basis to make it illegal.

Lest We Forget

I have, at times, been hard on Israelis. But the following headline, from the Detroit Free Presss, tells an important story: Israeli slays 4 [Arabs] on bus; [Israeli] crowd kills him.

Nearly as telling is this, from the same story:

Israeli Prime Minister Ariel Sharon called it "a reprehensible act by a bloodthirsty Jewish terrorist" and "a deliberate attempt to harm the fabric of relations among all Israeli citizens."

If only Muslims would do with and say the same about their own whackos.

Pat Robertson's "Prayer Points"

Now that Bill Frist is persona non grata with the Religious Right because of his stand on embryonic stem cell research, Tom DeLay has apparently agreed to fill the void and appear in the upcoming "Justice Sunday II" telecast.

Everything I have to say about that I have already said here. But buried in the NYT story is this:

In a televised prayer on Tuesday for Judge Roberts' confirmation, for example, the television evangelist Pat Robertson asked his viewers to pray: "Take control, Lord! We ask for additional vacancies on the court." (A "prayer point" on the Web site for Mr. Robertson's "Supreme Court Freedom Project" includes "additional vacancies" as well.)

I couldn't quite believe that, so I went looking. Sure enough, Pat Robertson has posted a list of "Prayer Points" on the CBN website, advising his followers on what to pray for in connection with what he calls "Operation Supreme Court." Included as the fourth item on the list is an injunction to:

Pray that additional vacancies occur within the Supreme Court.

He says he is only suggesting prayers that someone else will retire, ala Justice O'Connor. Maybe. But "retirement" is not what the "Prayer Point" asks for, and one will be excused for thinking that what he really wants is for God to strike some of them dead, starting, probably, with Justice Kennedy. *

What CAN these people be thinking?

* A member of the majority in Casey v. Planned Parenthood, "that kept abortion alive" and the author of Lawrence v. Texas, that " basically established a constitutional right to sodomy". [Note: characterizations are Robertson's].

It's The Substance, Stupid

Anyone who does much discursive writing sooner or later realizes that difficulty in articulation is usually a sign, not of writer's block or of an inability to "find the right words," but of confusion over the substance of what is being discussed. Judge John Roberts made exactly this point in his response to Congressional questions he submitted yesterday:

"I and most judges have had the experience of attempting to draft an opinion that would just 'not write' - because the analysis could not withstand the discipline of careful, written exposition," he wrote, adding that when that happens, it is time to revisit the issue.

The Bush Administration is having the same sort of problem in finding a labelfor what we are doing vis-a-vis "terrorism" :

President Bush publicly overruled some of his top advisers on Wednesday in a debate about what to call the conflict with Islamic extremists, saying, "Make no mistake about it, we are at war."

In a speech here, Mr. Bush used the phrase "war on terror" no less than five times. Not once did he refer to the "global struggle against violent extremism," the wording consciously adopted by Defense Secretary Donald H. Rumsfeld and other officials in recent weeks after internal deliberations about the best way to communicate how the United States views the challenge it is facing.

In recent public appearances, Mr. Rumsfeld and senior military officers have avoided formulations using the word "war," and some of Mr. Bush's top advisers have suggested that the administration wanted to jettison what had been its semiofficial wording of choice, "the global war on terror."

In an interview last week about the new wording, Stephen J. Hadley, Mr. Bush's national security adviser, said that the conflict was "more than just a military war on terror" and that the United States needed to counter "the gloomy vision" of the extremists and "offer a positive alternative."

. . . .

[But, even] Mr. Bush made a nod to the criticism that "war on terror" was a misleading phrase in the sense that the enemy is not terrorism, but those who used it to achieve their goals. In doing so, he used the word "war," as he did at least 13 other times in his 47-minute speech, most of which was about domestic policy.

"Make no mistake about it, this is a war against people who profess an ideology, and they use terror as a means to achieve their objectives," he said.

Hmmm. Well, THAT clears things up!

The problem here is not the language, it is the substance. The difficulty in coming up with an appropriate label is simply a reflection of the fact that the Administration has no clear vision as to what it is doing or what it hopes to accomplish.

A Rape In Pakistan

Nicholas Kristof has two Op-Ed pieces, one last Sunday and the other today, on the aftermath of the rape of a Pakistani doctor, Shazia Khalid. It seems like there has to be more to this story than Kristof reports: another side, perhaps, or more details that would make the reported actions and reactions of Dr. Shazia's family and government at least explicable, if not defensible. But if Kristof has told the whole story, those actions and reactions can only leave one with a sense of disgust, not simply at the individuals involved, but at the culture that would condone, even encourage, such actions.

To make a long story short, Dr. Khalid spent a night being repeatedly raped and beaten. When she "tumbled into the nurse's quarters that morning[,] 'semiconscious . . . with a swelling on her forehead and bleeding from nose and ear:'

"They told me to be quiet and not to tell anybody because it would ruin my reputation," Dr. Shazia remembers. One official warned that if she reported the crime, she could be arrested.

That was a genuine risk. Under Pakistan's hudood laws, a woman who reports that she has been raped is liable to be arrested for adultery or fornication - since she admits to sex outside of marriage - unless she can provide four male eyewitnesses to the rape.

When she "asked permission" to at least inform her family, officials drugged her and sent her to a mental hospital. Small wonder, since, given her family's reaction, she probably was "insane" to tell even them.

The family's patriarch, Mr. Khalid's grandfather, sent word that because Dr. Shazia had been raped, she was "kari" - a stain on the family's honor - and must be killed or at least divorced. Then, Mr. Khalid said, his grandfather began gathering a mob to murder Dr. Shazia.

Even so, Dr. Shazia persisted, with her husband's support, to seek punishment of her attacker. In response, her government

ordered them to leave the country, and warned that if they stayed, they would be killed - by government "agencies" - and that no one would even find their bodies.

When Dr. Shazia demanded that Adnan [her adopted son] be allowed to accompany her, the officials warned that there was no time and that she would be murdered if she delayed. Then the officials forced Dr. Shazia to make a video recording in which she thanked the government for helping her. And, she said, they warned her that if she had any contact with journalists or human rights groups, they would strike back at her - or at her relatives still in Pakistan.

Today, Dr. Shazia and her husband are living, without their son, "in a one-room dive in a bad neighborhood in London, while applying for asylum in Britain."

I am reading Robert Bork's puritanical screed "Slouching Toward Gommorah" -- struggling through it, actually, since I can take his sanctimonious, vitriolic, condescending moralising only in small doses. The basic tenet of the book is that the demise of religious authority and traditional morality and the substitution of a belief in individual liberty and equality (Bork puts the modifier "radical" in front of each, of course) has caused America to collapse into decadence and degeneracy. Well, Mr. Bork, we have in the story of Dr. Shazia something of a case study in the kinds of "benefits" that flow from obdeience to religious authority and traditional notions of morality. Frankly, if that is really my choice, I would prefer Gomorrah.

In Defense of "Bolton-ing"

Having successfully derailed Senate approval of Bolton as UN ambassador (although not his appointment) by demanding ever more in the way of information about the nominee, the Democrats appear poised to try a similar tactic with the Roberts nomination to the Supreme Court. A significant number of documents written by Roberts during his tenure in the Reagan Administration Justice Department and White House Counsel's office have already been released. However, the Democrats want more. In particular, they want any documents Roberts wrote when he worked as an Assistant Solicitor General in George Bush Sr.'s Administration. The White House is resisting, asserting, inter alia, a claim of attorney-client privilege.

Senator Leahy notwithstanding, I think Bush's privilege claim is actually pretty solid. But that's beside the point. The attorney-client privilege allows one to keep documents subject to it confidential. But is does not require that. The President, as the owner of the privilege, may elect to waive it and produce the documents. So, the question before Bush is not may he produce the documents but should he.

The WSJ maintains (of course) that Bush has already gone to far in releasing documents, arguing that:

By authorizing the release of documents from Judge Roberts' work in the Reagan Justice Department and White House Counsel's office, the Bush Administration had made it that much harder to refuse Democratic demands for his later work product from the Solicitor General's office. More important, it makes it harder for the White House to defend the vital constitutional principle of executive privilege.

This is not some fine legal matter. It is essential for the workings of government that decision-makers hear the candid views of the people who work for them. That won't happen if they believe Dick Durbin might one day be reading from their memos on the Senate floor. Or, as Clinton White House Counsel Jack Quinn put it the other day, if the public has unfettered access to the advice that Presidents get, "Presidents won't get very good advice."

I don't dispute the importance of the attorney-client privilege, or even of executive privilege, and I agree that "unfettered" public access to the advice the President is getting is a very bad idea. But that's not at all the issue here. We are not talking about "unfettered" public access to all advice this (or indeed any) President is getting or even has gotten. We are talking solely about the advice that one man -- and not a very senior man at that -- gave more than a decade ago, not to the President, but to the senior staff of a President who has been out of office for 13 years. Even so, I do not really dispute the right of the President to keep that advice confidential if we wants to.

But should he want to?

The WSJ argument that releasing such documents would establish a "precedent" that will undermine any future claim of executive/attorney-client privilege does not seem credible. At least where Congress is not involved in investigating possible criminal activity by the President or his staff (cf. United States v. Nixon), the right of the President to keep communications to and within the Administration confidential was recently, and pretty resoundingly, affirmed by the Supreme Court in its 7-2 decision in Cheney v. District Court. Given that, the general validity of the privilege seems pretty safe even if a President decides to waive it in particular cases.

The more important point, though, is that "precedents" are necessarily confined to their facts. Thus, even if Bush did allow "unfettered" access to everything John Roberts ever said or wrote, the most that could be said to have been established is a precedent allowing (but not requiring) public access to the advice that a person has given to a former President if, but only if, a subsequent President decides to appoint that person to the Supreme Court. That does not seem like a particularly dangerous precedent even if you support the general principle that Presidents are entitled to keep the advice they get confidential.

So, given that we do not have to worry too much about precedential aspect of Bush's decision, should Bush release the documents?

I believe he should for two reasons: one practical and one normative.

First, as a practical matter, refusing to release the documents is foolish. By doing so, Bush inevitably creates the impression that he is hiding something. The public does not like those sorts of "games" in any event, but particularly when the issue is a lifetime appointment to Supreme Court. So, by fighting disclosure, Bush gives the Left a powerful tool in seeking to derail or at least delay the confirmation. And it is a tool that he could entirely eliminate simply by giving the Democrats what they have asked for. Moreover, the fight over disclosure (and the sense it creates of a possible "cover-up") inevitably tends to give the contents of the documents an importance they would not have if they were disclosed immediately. This, in turn, makes whatever is contained in the documents appear to be something the President is ashamed of, even if he is not in fact.

It is possible of course, that there is something truly nefarious in these documents. And, if there is, that makes the normative case for disclosure all the stronger. But in reality, I suspect, the very most the documents would show is that Roberts is a smart, perhaps acerbic, "strict constructionist" ala Scalia or Thomas. Perhaps is will even show that Roberts believes or at least believed, that Roe v. Wade was wrongly decided. Ask yourself, though: who would be surprised to find that out? That is exactly the type of Justice Bush promised to appoint and if there is one thing for which W is dependable, it is doing what he says he will do. If that is, in fact, all that the documents would prove, Bush would be far better off releasing the documents and defending their contents than hiding the documents and making it appear that there is more at issue here than judicial philosophy.

This practical argument is probably one that would appeal to Bush himself, and a debate around these practical political pros and cons is probably going on in the White House even as we speak. To me, though, the more important argument for release of the documents is a normative one: the public, or at least the Senate, does have a right to whatever information is available on the judicial philosophy of the men and women nominated for the Supreme Court. In this regard, a Supreme Court nominee is no different from any person "running" for high federal office.

No President -- Republican or Democrat -- is likely to concede this point. Regardless of Party, the goal of any sitting President is to get his or her nominees confirmed as quickly and as painlessly as possible. Allowing the opposition access any information about a nominee inevitably complicates that process. But, I submit, this principle would be a very good thing on which to reach consensus that would be at least morally binding on future Presidents.

My reason for saying this stems from an argument I have made before in these pages: The Supreme Court is now, and probably always has been, a political branch of our government, and through its power to invalidate actions of the other two Branches it wields enormous political power. In a democracy, all such political power must utlimately be subject to the will of the people as expressed through the ballot box. By requiring that Justices be appointed rather than elected and then providing them with life tenure, the Constitution (quite wisely) goes to great lengths to insulate the Justices from the "will of the people." But, as with all else in our Constitution, the insulation is not complete. The nomination/confirmation process, coupled with the inexorability of mortality, ultimately provides the method by which Supreme Court jurisprudence that is out of touch with the views of the majority is ultimately realigned to conform to those views. For that mechanism to work, however, the Senate, at least, has to have access to the information it needs to judge how the nominee will approach the work of the Supreme Court and the issues likely to come before it if he is confirmed.

Inevitably, of course, such "full disclosure" increases the potential for the sorts of vituperative nomination processes that surrounded the nominations of Robert Bork and Clarence Thomas. I, like so many others, deplore the tenor of such proceedings. But I do not believe that justifiable distaste for manner in which such a debate is likely to be conducted should deter us from seeking to have the debate itself. And, inqury into the writings and thinking of the nominee is an indespnsible part of that debate.

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?