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.

Just in Time?

Like a lot of people my age, the infamous "Limits to Growth" issued by the Club of Rome in 1972 made a profound impression on me when I read as a youngish, Gene McCarthy liberal, shortly after returning from a stint in the Peace Corps. I offer that as a confession of sorts, since it is a bit embarrassing to admit that I was so credulous as to actually take the predictions in the report seriously. Many of the premises of the report were demonstrably wrong and the results of their modeling wildly exaggerated. That realization coupled, now, with 25 years of working as an environmental lawyer have made me profoundly skeptical of claims that "the end is near." For some people, the "end" is always "near" -- even though they have to keep finding new causes for the demise. (Right now the doomsday scenario is global warming.) As a result, I have come to consider claims that growth will kill us to be little more than natterings of hysterical luddites.

But even I have to admit that with oil at $60 a barrel despite record levels of production and with the breathless press coverage of arguments about when we did or will pass "Hubbert's Peak," even I have been getting a bit queasy. Could it be that, for all of its simplism and speciousness, the Club of Rome might actually have been right in some broad general sense? Could it be that there might actually BE "Limits to Growth"?

Well, given that frame of mind, this came as what I see as ENORMOUSLY good news: France to Host World's First Nuclear Fusion Plant . Perhaps this is news to no one but me, but there is enough confidence in the feasibility of generating electricity from fusion (think infinite energy with no by-products but water) that the US, EU, Russia, China, Japan and South Korea are prepared to plunk down in excess of 10 billion Euros to build a fusion powered electrical generating station.

I looked it up: Enrico Fermi and friends built the first nuclear fission reactor at the University of Chicago in 1942. By late 1955, Arco Idaho had become the first town to be powered by nuclear energy, and by 1962 nuclear power had been fully commercialized with six nuclear generating stations in operation, two of them built entirely with private capital.

I would like to think we could duplicate that schedule here. Even though the pace of scientific achievement is accelerating, today there is one big impediment today that didn't exist in 1945-55: the hysterical luddites. The people need to believe the end is near and will oppose tooth and nail, hand and tong, anything that might actually reduce the likelihood or imminence of catastrophe. Also, the development effort is being pursued by multiple countries rather than only one. But still, the key to our energy future is right there being built even now in France. Let's hear it for human ingenuity!

Ten commandments

What could possible be sillier than this:Christian Groups Plan More Monuments. The issue that distinguishes the Supreme Court's two recent decisions on posting of religious materials in public places is the question of intent: given the totality of the circumstances, does the posting manifest an intent to promote religion. If so, then the display is improper. So, the Right goes out a promises to erect more monuments, thereby demonstrating exactly the intent that is fatal. The just don't get it: they can not use the instrumentalities of government to promote religion.

Supreme Court Armegeddon

This is so sad:

By most accounts, it [a Supreme Court nomination battle] would rival a presidential campaign, complete with extensive television advertising, mass e-mails, special Internet sites, opposition research, public rallies and news conferences. Both Democrats and Republicans have been raising money for this moment for years. The president's allies have promised to bankroll an $18 million public relations blitz, and administration opponents have set up a war room and enlisted veterans of the campaigns of Bill Clinton and Al Gore to devise strategy.

We don't even know if Rehnquist will resign. Nor do we know whom Bush will nominate if he does. Yet, we are gearing up for total war nonetheless.

One of the lessons of World War I was that mass mobilizations tend to make war inevitable even if there is nothing worth fighting for. You can't take the tropps, whip them up to a fever pitch and then say "Oh, never mind." You end up inventing a reason to fight just becuase you are prepared to do so.

Can't Bush find a jurist that 5 Democrats will support?

Can't the Left at least wait to see who will be nominated before declaring war?

And, can't BOTH sides recognize that the fate of the Republic depends much more on civility in the political processes than it does on the politics of the person appointed to the Supreme Court?

Sigh.

Medical Marijuana -- The lighter side

The lighter side of the Medical Marijuana issue.

And the NYT's prudish response.

Ed. Note: As you can tell (see the Update to this post), the NYT editorial page is on my feces list today. They can be so insufferably pompous at times.

The Supreme Court's "Takings" Decision: Maybe I am conservative after all

As much as Bush has done to re-awaken my innate but long-dormant liberalism, the "liberals" on the Supreme Court have made me yet again reconsider. First, there was the medical marijuana case, discussed here and here. Now there is this, KELO v. CITY OF NEW LONDON , another triumph of the State over individual rights.

The facts are pretty easy to summarize. New London is a "distressed city" with relatively high unemployment and declining population. Pfizer wanted to build a facility there, and, in an effort to parlay that investment into a broader effort at economic development, the City decided to convert the area adjacent to the proposed Pfizer facility -- a peninsula sticking out into the Thames River -- into a mixed use development zone consisting of hotels, office parks, marinas, etc. that would be leased to private parties. The City was able to buy most of the property involved, but 15 parcels were owned by private residents who did not want to sell their homes. The City moved to take these properties by eminent domain and the homeowners sued to enjoin the taking.

The Fifth Amendement to the US Constitution provides that "private property [shall not] be taken for public use, without just compensation." The homeowners argued that this provisions allowed takings only for "public use" and that the takings at issue here were not for "public use" but were rather transfers from the exisiting homeowners to other private parties (i.e the future lessees of the anticipated improvements). The four liberals (Stevens, Breyer, Douter and Ginsburg), joined this time by Justice Kennedy, held that "public use" requirment did not really mean that the public had to be entitled to actually "use" the improvements. It was enough that the improvements would redound to the public benefit. Further, the State did not have to demonstrate that the public would actually benefit. It was enough that the City concluded that it would. The four "conservatives" -- Rehnquist, O'Connor, Scalia and Thomas dissented.

To my mind Justice O'Connor is right when she says that if a state prediction of a public benefit is enough to justify a taking, then the "public use" restriction in the Fifth Amendment is of no practical effect. It would prevent a taking only if the state were silly or incompetent enough to "find" that there was no public benefit to what it proposed to do. Perhaps more important, though, is this point, also from Justice O'Connor's opinion:

Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more. The Founders cannot have intended this perverse result.

In the never-ending struggle to balance the interests of the government against the rights of the individual, the interests of the government have prevailed again. It is just so strange to see this happening -- as it did on the medical marjuana cases -- at the hands of those Justices commonly thought to be "liberal".

Update: The NYT editorial page today applauds this decision, characterizing it as "a welcome vindication of cities' ability to act in the public interest [and] a setback to the 'property rights' movement, which is trying to block government from imposing reasonable zoning and environmental regulations." That last bit about trying to block reasonable zoning and environmental regulations is gratuitous, facile and utterly beside the point. Kelo and her co-petitoners were not battling "reasonable zoning and environmental regulations." Indeed, they weren't battling "regulation" at all. They were battling to prevent the City of New London from evicting them, bulldozing their homes and giving their land to another private person whom the City concluded would put the land to "better" use. To treat this case as blow against those battling "reasonable" regulation demeans what is actually at issue.

The earlier characterization of the case as a "vindication of cities' ability to act in the public interest" is closer to the point, but whether that "vindication" is "welcome" is debatable. The problem here is that the Times has a lot more confidence than I do in (a) the integrity and competence of government and (b) the ability of the government to identify and then effectively pursue "the public interest." Even when pursued with the best of intentions and planning, these sorts of grandious "economic development" projects are little more than tax-payer-financed gambles in which the only sure winners are the developers. And many of them are not pursued with the best of intentions and planning. Indeed, there is a significant history of outright graft in connection with such projects. Still, I do not disagree that a government of a distressed City has the duty to at least try to make things better, and I also agree that individual landowners should not be able to derail these types of projects. Thus, where the property in question is purely commercial property, I guess I can live with the Court's approach, since, in theory at least, the owner of purely commercial property can always be adequately compensated with money. But where people's homes are at stake, I would sure like to require more from the government than a simple ipse dixit that the result of evicting them will be "in the public interest."

Update 2: And so it begins.

The Prospects For Victory in Iraq

David Brooks had an Op-Ed Piece in the NYT today arguing that it is too early to give up on beating the insurgency in Iraq.

Still, one thing is for sure: since we don't have the evidence upon which to pass judgment on the overall trajectory of this war, it's important we don't pass judgment prematurely.

It's too soon to accept the defeatism that seems to have gripped so many. If governments surrendered to insurgencies after just a couple of years, then insurgents would win every time. But they don't because insurgencies have weaknesses, exposed over time, especially when they oppose the will of the majority.

It's just wrong to seek withdrawal now, when the outcome of the war is unknowable and when the consequences of defeat are so vast.

Some liberal bloggers have taken Brooks to task for this. See, e.g. Ivo Daadler at TPM Cafe. Coincidentally, though, Max Boot at the L.A.Times makes essentially the same argument, albeit much more persuasively:

No wonder public support for the war is plummeting and finger-to-the-wind politicians are heading for the exits: All the headlines out of Iraq recently have been about the rebels' reign of terror. But, lest we build up the enemy into 10-foot-tall supermen, it's important to realize how weak they actually are. Most of the conditions that existed in previous wars won by guerrillas, from Algeria in the 1950s to Afghanistan in the 1980s, aren't present in Iraq. . . . .

The biggest weakness of the insurgency is that it is morphing from a war of national liberation into a revolutionary struggle against an elected government. That's a crucial difference. Since 1776, wars of national liberation have usually succeeded because nationalism is such a strong force. Revolutions against despots, from Czar Nicholas II to the shah of Iran, often succeed too, because there is no way to redress grievances within the political process. Successful uprisings against elected governments are much rarer because leaders with political legitimacy can more easily rally the population and accommodate aggrieved elements.

I hope Max is right.

Limits On The Commerce Power

From a comment by Mr. Scoggin on an earlier post:

Here's the thing about the commerce clause I never understood: How did this one phrase come to overwhelm the 10th amendment?

In passing the 10th amendment, it seemed to me that the framers explicitly wanted to limit the Federal government's role over the states. Given this expressed intent, how was the definition of "interstate commerce" so broadly interpreted as to make the 10th amendment almost forgotten.

That is a really fascinating question. Actually it is two fascinating questions: one historical -- how have the interpretations evolved over time? -- and one normative -- what limits should be placed on the Commerce Power given the 10th Amendment (and other aspects of the Constitution)? Answering either of these fully would probably require an entire book -- and a lot more knowledge than I have at my disposal right now. Still, I think I can give you the general outlines.

At the outset, though, it is important to recognize that the 10th Amendment itself is really not all that helpful in trying to define the scope of the commerce power (or indeed any other federal power). It provides, simply, that

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

As Gary notes, the purpose of this Amendment is to make it clear that the powers of the federal government are limited to those enumerated in the Constitution. However, having said that, one has not said much, since the scope of the enumerated powers is far from clear. And nowhere is this lack of clarity more obvious that with respect to the Commerce Clause.

Article I, Section 8 of the Constitution explicitly provides that Congress has the power:

"To regulate Commerce . . . among the several States" and "To make all Laws which shall be necessary and proper for carrying into Execution th[at] Power[].

Thus, the power to regulate interstate commerce is one of those powers that is "delegated to the United States by the Constitution, [and] prohibited by it to the States." And, consequently, the effectiveness of the 10th Amendment as a check on that power is entirely dependent on what is meant by the delegation to Congress of the power to "regulate Commerce . . . among the several States."

As with so much of the Constitution, these sweeping generalities are of little help in deciding specific cases. Inevitably, therefore, the scope of the Commerce Power (and by corollary the scope of the 10th Amendment) is whatever the Supreme Court says it is at a given point in time.
The Supreme Court's commerce clause decisions have never been a model of consistency. However, a fundamental shift in the Court's approach occurred in the 1930s. Prior to the New Deal, the Supreme Court took a fairly narrow view of the scope of the commerce power and invalidated a number of laws, particularly those regarding working conditions, on the grounds that those laws were regulating purely local activities occurring entirely intrastate and were therefore beyond the reach of the federal commerce power. See, e.g. Schecter Poultry (1935). Under this line of cases, only activities with a "direct" effect on interstate commerce fell within the Commerce Clause. Otherwise, the courts (presciently) opined, there would be no limit to what Congress could regulate:

If the commerce clause were construed to reach all enterprises and transactions which could be said to have an indirect effect upon interstate commerce, the federal authority would embrace practically all the activities of the people, and the authority of the state over its domestic concerns would exist only by sufferance of the federal government.

Schecter Poultry.

However, it was exactly this line of argument and the resulting invalidation some of the New Deal legislation that led to Roosevelt's famous "court packing" scheme. While that scheme was met with widespread popular opposition and went nowhere, the Supreme Court "got the message". And, in 1937, only two years after Schecter Poultry, the Supreme Court decided J&L Steel. While purporting to distinguish Schecter, the J&L decision effectively guts it by holding that it is primarily up to Congress, not the Courts, to determine what activities have a sufficient impact on commerce to warrant federal regulation:

The congressional authority to protect interstate commerce from burdens and obstructions is not limited to transactions which can be deemed to be an essential part of a 'flow' of interstate or foreign commerce. Burdens and obstructions may be due to injurious action springing from other sources. The fundamental principle is that the power to regulate commerce is . . . the power to enact 'all appropriate legislation' for its 'protection or advancement'. . . ; to adopt measures 'to promote its growth and insure its safety' . . . ; 'to foster, protect, control, and restrain.' . . . That power is plenary and may be exerted to protect interstate commerce 'no matter what the source of the dangers which threaten it.' . . . Although activities may be intrastate in character when separately considered, if they have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions, Congress cannot be denied the power to exercise that control. . . . Whatever amounts to more or less constant practice, and threatens to obstruct or unduly to burden the freedom of interstate commerce is within the regulatory power of Congress under the commerce clause, and it is primarily for Congress to consider and decide the fact of the danger and to meet it.

Over the next 60 years, this "deference" to Congress became almost complete: regardless of how tenuous the connection or impact, a "finding" by Congress that a particular activity "affected interstate commerce" was seen as sufficient to allow Congress to regulate that activity.

In recent years, the Rehnquist Court has appeared to be trying to step back from this abdication and to undertake a more searching inquiry into the reality of the impact on interstate commerce, and this led to the invalidation of several federal statutes and regulations on the grounds that the nexus between the regulated activity and interstate commerce was simply too remote to be within the commerce power. For instance, in United States v. Lopez, the court struck down a federal statute making it a crime to possess a firearm within a school zone. In United States v. Morrisonn, the Court struck down a federal statute providing a federal cause of action to victims of gender-motivated violence. And in my personal favorite, Solid Waste Agency v. U.S. Army Corps of Engineers, the Court held that an isolated water body having no connection with interstate waters was beyond the reach of the Commerce Clause even if it might be used by migratory birds.

All three of these cases were 5-4 decisions with Rehnquist, O'Connor, Kennedy, Scalia, and Thomas in the majority and Stevens, Souter, Ginsburg and Breyer in the minority. And together, these cases led to a widespread belief (hailed by conservatives and condemned by liberals) that the Rehnquist Court was in the process of breathing new life into the idea that there were actually limits to Congress' power under the Commerce Clause.

It is this that makes the recent medical marijuana case so interesting. Relying directly on Lopez and Morrison, the plaintiffs in that case argued that the purely personal possession of marijuana with no intent to sell or distribute it to third parties was an activity whose connection to interstate commerce was so remote as to place it beyond the reach of the Commerce Clause. Given those prior cases and the presumed desire of the Rehnquist Court to place limits on the Commerce Power, one could well be excused for assuming that the Lopez/Morrison/SWA majorities would hold. Indeed, given the privacy implications and the humanitarian purposes of the State law at issue, one might well have expected some of the more "liberal" justices who dissented in the prior cases to join the conservatives in the medical marijuana case. But, it did not happen. The liberal bloc (Stevens, Souter, Ginsburg and Breyer) held fast in its belief that there really were no limits to the Commerce Power and it was the "conservative" bloc that splintered with O'Connor and Scalia joining in asserting that the federal law banning marijuana possession was within the commerce power. This reversal has led some to question whether the "Rehnquist revolution" might well have already run its course.

Frankly, I hope not. Still, it has to be recognized that the outcome of this analysis is very result-oriented. For instance, it is the Commerce Clause that underlies many federal statutes that I fully support -- the 1964 Civil Rights Act being by far the best example of this. Yet it is not hard to argue that the connection between interstate commerce and racial discrimination at Joe's Diner is pretty remote. Thus, a more narrow interpretation of the Commerce Clause could well call into question some of the federal legislation that many of us value most. At the same time, the admonition in Schecter Poultry quoted above has proved all too true: construing the commerce clause to reach anything that can be said to have an indirect effect upon interstate commerce has in fact extended federal authority to practically all the activities of the people. That, it seems to me, is not a good thing either.

In the end, I guess, how you come out on this question depends a lot on whether you believe in federalism itself. Insofar as the United States is a single country, should its laws be essentially uniform or should differences among the states be allowed, even encouraged? Allowing differences among the States tends to make the Country more free. But, allowing states to have different rules also allows them to depart from what the vast majority of the Country as a whole believes to be "acceptable". Consider, for instance, Mississippi in 1964. It is this very tension that has led to the shifting views of the Court on this issue over time, and I for one have no better way of addressing this issue that the essentially ad hoc approach that has been used by the Court so far, reflecting, as it does, the evolving values of the Country as a whole.

A Guide to the Patriot Act

As you must know, unless you have been living under a rock for the last couple of years, a number of the most controversial provisions of the Patriot Act will sunset this year unless Congress extends them. The battle lines over these provisions have been drawn, with civil libertarians pushing hard for repeal and the Administration pushing hard to retain and even broaden federal investigative powers.

I am a passionate supporter of civil liberties and, having come of age during the Nixon Administration, I am deeply, deeply skeptical when the government asserts "national security" as a basis for significant privacy invasions. As a result, I was pretty much dead set against the Patriot Act even when first adopted shortly after 9/11, and I have become even more opposed since then as I have watched the Bush administration's aggressive moralism and the influence the Religious Right has over that Administration.

Still, I must confess with some embarrassment that my opposition has been purely instinctive. I have never read the Act itself, nor have I even tried to learn from other sources what it actually does or does not do. I decided to rectify that today, but was dismayed to find that it is several hundred pages long. So, to try and ease my way into this effort, I decided to look for an analysis. That took a while, since most of what is written about the Act is either very superficial or pure screed -- or both. However, after some looking, I did find an excellent four part summary and analysis that was published in Slate. To save all of you the trouble of looking yourself, here are the links:

Patriot Act, Part 1
Patriot Act, Part 2
Patriot Act, Part 3
Patriot Act, Part 4

I urge you to read all four parts. Then, if you're really into it, you can read the Act itself here.

It Really Wasn't About Marijuana At All -- A Quiz

A number of States, including California, have adopted laws authorizing people to grow and possess marijuana for personal medical use when such use is prescribed by a doctor. That virulent prude, defender of federal power (when used in righteous ways of course), and scourge of State's Rights (when used in the promotion of evil)John Ashcoft did not like that. Using marijuana is a sin don't you know, even when being used under a doctor's supervisions by terminally ill cancer patients for palliative reasons. So, righteous John ginned up a test case by sending the DEA into some private homes in California to seize marijuana being grown in conformance with State law.

On Monday, the Supreme Court issued its decision in the case: federal law controls and States may not allow anyone to possess marijuana for any reason. That's too bad, of course, but, for the Justices at least, the case had almost nothing to do with marijuana. One can divine this much simply by looking at how the Justices split.

I want you to guess how each Justice voted. To help you here is a list of the Justices ordered (approximately) from most "liberal" to most "conservative":

Ginsberg
Breyer
Souter
Stevens
Kennedy
O'Connor
Rhenquist
Scalia
Thomas

Don't cheat now. Given their political leanings, try to guess who voted for allowing medical marijuana and who voted against. The answer -- and the reasons -- will be provided in the next post.

It Really Wasn't About Marijuana At All -- The Answer

Here the decision:Gonzalez v. Raich. The split:

For John Ashcroft and his campaign to stamp out reefer madness among cancer patients:

Ginsburg
Breyer
Souter
Stevens
Kennedy

For allowing the terminally ill to use marijuana:

O'Connor
Rhenquist
Thomas

And Scalia? He's off by himself, voting with the majority but writing a separate (and amazingly tortured) opinion.

The reason for this split was, again, that the real issue was not medical marijuana, but the scope of Congress' power to regulate interstate commerce. This power provides the foundation for virtually every regulatory statute enacted by Congress in the last 75 years. As a consequence, those who believe in federal control and activism favor a broad interpretation of the commerce clause. Those who distrust federal power and favor federalism (i.e. greater power of the states to make their own rules free of federal interference) tend to want to read the commerce power more narrowly.

The federal Controlled Substances Act, which was the federal statute at issue in Gonzales, is based on the commerce clause. It is, literally, a ban on "commerce" in controlled substances. The Plaintiff medical marijuana users argued that the activities at issue in Gonzales did not involve commerce and did not significantly impact commerce. Thus, they argued that applying the prohibitions of the CSA to those activities in derogation of state laws authorizing them exceeded Congress' power.

The five most "liberal" members of the court rejected that argument. Why? Because, in the end, they were more interested in preserving federal power than they in vindicating the rights of states to depart from federal standards. The conservatives (Scalia excepted) would have accepted the argument for precisely the opposite reason.

Perhaps the wierdest thing about this whole case is that, in it, we have the most conservative Administration since Calvin Coolidge urging the court to confirm (and perhaps expand) federal power in derogation of State's rights. My how the worm has turned from 1964. Liberals have always favored federal intervention. After all, that's how civil rights law and other aspects of the liberl agenda was imposed on recalcitrant states. We no learn, hawever, that, despite their historic peaens to federalism, State's Rights and limited government, Conservatives are not actually opposed to federal power in principle. They are only opposed to liberals wielding it.

Bush Things I Like

I had dinner the other night with a friend from Texas. He is one of the few people to have actually left tracks here on occasion, and he was needling me a bit, suggesting that I had become boringly predictable in my constant Bush bashing. I'm not sure it's really as bad as all that, but it is true that I have rarely had much good to say for Georgie. So, as a change of pace, let me confess that there are a number of Bush's ideas I do support. There may be more, but here are five that jump immediately to mind:

Invading Afghanistan: This is probably the no-brainer in the bunch. Immediately after 9/11, when talk about going into Afghanistan first started circulating, I was appalled. Not by the idea, mind you. I shared with most people the sense that the United States had to take effective action in response to the 9/11 attacks, and, given the despicable nature of the Taliban in general and its support of bin Laden in particular, nothing would have pleased me more than to take the bastards out. No, it was not the concept that horrified me, it was the "obvious" impracticality of an invasion. After all, the Soviet Union at the height of its power had tried the same thing and had failed miserably despite having a common border with the country. Not only did the United States not have a common border, it did not even have any friends or vassals that had a common border. And the country was completely landlocked, so invasion forces could not even be supplied by sea. An invasion seemed to me to offer only two possible outcomes, one very bad and the other even worse. Either it would turn out like Viet Nam, getting us permanently bogged down in a war we could not win and in so doing vitiating the international sympathy support that the 9/11 attacks generated. Or, worse yet, it would turn out like Reagan's foray into Lebanon or Bush's/Clinton's foray into Somalia, with the US turning tail and running, an outcome that would only serve to make us look helpless and scared and to further embolden Al Queda. The only practical option for "punishing" the Taliban appeared to be bombing and cruise missiles. But in a country as backward as Afghanistan, could anything be more futile? Indeed, Clinton had already tried this, and the net result was to make us look silly and impotent.

But Bush had the courage to act despite the odds and he and his administration had the diplomatic and military skill to pull it off. Had he stopped there and focused on building a working country in Afghanistan, he would have been my hero. Instead, the success of the Afghan operation, which probably surprised even Bush, gave him and his administration a bad case of megalomania, and they decided that if they could do it in Afghanistan, then they could do it anywhere. Thus, we took our triumph in Afghanistan and threw it down the rat hole of Iraq. That is so sad. (For a description of what I think might have been, see this). But, the aftermath should not blind us to the remarkable courage and skill involved in the Afghan operation itself.

Israel/Palestine: I am slightly more ambivalent about Bush's actions with respect to Israel and the Palestinians. The ambivalence stems from Bush's April 2004 letter to Sharon, saying that "[i]n light of new realities on the ground, including already existing major Israeli populations centers, it is unrealistic to expect that the outcome of final status negotiations will be a full and complete return to the armistice lines of 1949." That statement, which appears to endorse Israeli retention of at least some of the West Bank settlements represented a major shift in US policy and is something I believe the United States will come to regret. Having given that prize to Sharon, though, enabled Bush to continue to pressure Sharon to follow through on the Gaza withdrawal (an truly wrenching event for Israel) and to pursue a policy, with which I whole heartedly agree, of providing financial and political support for the Palestinians. As I have argued elsewhere, the threat to US interests posed by radical Islam cannot be won by force of arms alone. The US must also address some of the causes of Arab antipathy to the US. And, while the plight of the Palestinians is not the only one of those causes, it is probably the single most important of them. Nothing would do more to improve US relations with the Arab world than for the Arabs to begin to see the US as an honest broker, as concerned about the Palestinians as it is about the Israelis. Bush seems to be moving in that direction, and, as such, this is another area in which he has my support.

Clean Air Act Reform:This one is a bit esoteric, but it is something I know a bit about, since I have been working with the Clean Air Act for over 25 years now. With the possible exception of his rejection of the Kyoto Treaty, Bush's efforts to reform the Clean Air Act's "new source review" programs have been the most wildly controversial of any of Bush's environmental policies. See, for instance, NRDC's attack, which is (believe it or not) one of the milder of the distortions leveled at Bush's proposals. I am not going to bore you with a point-by-point rebuttal, but virtually every statement made by NRDC is simply wrong as a matter of both fact and law.

The NSR program was originally designed, not to force reductions in emissions, but to prevent new sources and significant modification to existing sources from causing significant increases in emissions. Requirements for reductions needed to meet various health-based standards are contained in other provisions of the Act. Until the mid-90s, the NSR programs functioned fairly well in this regard, although there was widespread recognition that there were elements of the NSR program that needed to be changed. Indeed, EPA conducted NSR reform proceedings and rulemaking for nearly two decades. However, late in the Clinton Administration, USEPA's enforcement branch decided that it could use the NSR programs to produce emission reductions by initiating lawsuits and launching extraordinarily burdensome administrative investigations based on a theory that entire industries (refining, electric utilities, paper, etc.) had systematically violated NSR requirements for over 20 years. This claim appealed to environmental groups, who are readily inclined, even eager, to accept the notion that all companies are scofflaws. But anyone other than a dedicated conspiracy theorist would have realized, had he actually thought about it, that a claim that entire industries were ignoring the law is preposterous. It's like arguing that the entire Army is out of step. When everyone is out of compliance, no one is. Nevertheless, EPA launched its various NSR "enforcement initiatives" basing its claims on interpretations of the rules which were at least arguably at odds with EPA's own prior interpretations and which were clearly at odds with the common understanding of those rules that had emerged over the 20 or so years they had been in effect. Purporting to have "discovered" widespread (actually universal) noncompliance, what EPA actually did was to create it.

Not surprisingly, industry cried foul, and when Bush/Cheney were elected, industry gained an audience willing to listen. The result has been what the environmental mafia characterize as a sell-out. What Bush/Cheney actually proposed, though, was nothing of the kind. First, they adopted changes to the NSR rules that served to clarify what was required and to return the NSR program to its original purposes: assuring the significant new projects would not result in significant increases in emissions. Far from gutting these rules, the Bush changes are in a number of respects more stringent that what at least two courts have determined is required under the pre-existing rules. Second they proposed legislation that would have directly mandated significant emission reductions in nitrogen oxides, sulfur oxides and mercury -- exactly what the enviros had said they wanted from NSR.

The enviro response: they opposed both. They want EPA to keep the NSR rules and continue to pursue emission reductions through enforcement actions. And, they oppose Clear Skies because it doesn't do enough.

This position is absolutely perverse. Despite almost ten years and millions upon millions of dollars, EPA has achieved almost nothing in it's litigation efforts. And, after a couple of early favorable judicial decisions, it has now lost three straight cases. In one of these, the 11th Circuit declared part of the Clean Air Act unconstitutional. And, in the two others, district court judges adopted interpretations of the "old" NSR rules that have been advocated by industry for years and that are actually substantially less stringent that the "reformed" rules the enviros so despise. And, by opposing Clear Skies because it didn't go far enough, they have successfully assured than nothing would be done in terms of mandating additional emission reductions.

I am very, very skeptical of the need for significant additional emission reductions. So, I am not alll that unhappy that the enviros have been so effective in preventing them. But, this is a case study in why liberal willingness to vehemently oppose "anything Bush just becuase it is Bush" is so totally counter- productive to the liberals' own interests.

Private Accounts For Social Security: For reasons discussed in more detail here, I agree with Bush that private accounts should be a component of Social Security reform.

CAFTA: While I must confess to knowing little about the details of CAFTA, I am a true believer when it comes to reducing trade barriers. So, I support anything which moves in this direction.

It's true, I do not believe Bush's "virtues" make up for his "vices." However, neither to I oppose everything he is doing.

Liberals Rethinking Senate Filibuster Deal

Not surprisingly, some Democrats are unhappy that the result of the filibuster deal worked out a couple weeks ago will be the confirmation of several judges they have long opposed. This, they say, was too high a price. Indeed, they are coming to believe that they may not have accomplished anything, since there is no guarantee that Bush will not continue to push the same slate of judges he would have before the deal in any event. Given that Bush's most obvious character trait is an absolute refusal to ever depart from a particular course once he has set out on it, I must say that the Democrats were silly to think the filibuster deal would make Bush more moderate on this point.

James Taranto has a lot of fun with the Democrats' discomfiture in this regard. Here's a sample:

The first stage of the compromise--the end of the filibusters of Priscilla Owen, Brown and William Pryor--is a political disaster for the Democrats. Not only are the three judges they condemned as "extremist" almost certain to be confirmed (Owen already has been), but the smear campaigns against them are being exposed as ridiculous.

But, I think his gloating is as overblown and premature as is the Democratic hand-wringing.

Democratic angst over the filibuster deal would be justified only if there were some reason to believe that the Democrats could have stopped any of these judges from being confirmed had they "hung tough". They could not have. In the face of an obdurate refusal of Bush to compromise and of moderate Republicans to oppose any of Bush's nominations, a 55 to 45 Republican majority is simply too big for the Democrats to overcome. If they had decided to go to the mat on the issue, all they would have succeeded in doing is losing the right to filibuster at all. This, in fact, would have made things a lot worse from their perspective. In the end, having a sizable majority matters. Given this situation they are in, the most the Democrats could have hoped for was to live to fight another day. This is what the filibuster deal gave them. And it is silly to suggest that that is worthless.

On the other hand, James Taranto's glee is probably unwarranted as well. What Bush has won so far is only this: He has gotten five or so additional Court of Appeals judges appointed. Frankly, even if these five people were as "extreme" or as "out of the mainstream" (whatever THAT means) as the Democrats claim them to be, having five more such judges spread among the 11 Courts of Appeals is simply not going have all that much of an effect. Taranto, in short, greatly overstates the significance of these appointments. The battle that is potentially significant is the one over the next Supreme Court nominee. And, no one doubts that given the significance of such an appointment it would be exactly the sort of "extraordinary circumstances" that would leave the Democrats free to filibuster. In short, all the Republicans have won so far is an initial and not very significant skirmish. The important battle is yet to come.

The really interesting question, then, is what impact the filibuster deal will have on a Bush Supreme Court nomination, assuming there is one. Initially, atleast, such a nomination is likely to put the Senate back where it was before the filibuster deal, with the Democrats vowing to filibuster and Frist vowing to end filibusters altogether. One could hope for a different outcome, of course -- some sort of compromise -- but Bush seems irreversibly in the thrall of the Christian Right and the Democrats are so pathologically ant-Bush that they would probably oppose Earl Warren if Bush nominated him. So a fight seems inevitable. The outcome of that fight will depend on how the Republican "gang of 7" responds.

The expectation, of course, is that, when push comes to shove, party discipline will prevail and the 7 will fall in line. If so, the Democrats will lose, and the only question will be whether they lose only the confirmation or both the confirmation and the filibuster. But, I'm not sure that's what will actually happen. A lot depends, of course, on how outrageous the nominee is. If the Dems are opposing someone solely because Bush nominated him/her, they will lose. But, if Bush actually proposes someone that is a right wing idealogue, my guess is that the Republican gang of 7 is going to be in a tough, tough spot.

This then is the principal benefit of the filibuster deal for the Democrats: it creates risk for Bush. And the existance of risk tempers action. That is about the best the Democrats can do right now.

PS: I think the importance of this whole issue is vastly overblown. As I pointed out in an earlier post, there is something about becoming a Supreme Court Justice that changes people. They become very concious of their place in history and the awesome power they wield. That, coupled with the freedom from political pressure provided by a lifetime appointment makes even very apparently doctrinaire nominees considerably more introspective about what positions they take. Witness Justice Kennedy.

Thinking Big On Civil Rights

Casting about for something interesting to opine on today, I came across Kevin Drums' challenge to "think big" on the issue of civil rights:

BIG IDEAS....PART 1....Here's a question for you. I am going to choose a series of broad subjects and ask my readers what single thing they would like to see done about them. Today's subject is....civil rights.

You may interpret that broadly to mean race issues of any kind. So here is my question: if you could pass any single piece of federal legislation related to civil rights, what would it be? Think big! Assume we have a liberal president and big liberal majorities in Congress. Don't worry overmuch about the Supreme Court. The only real rule is that you only get to choose one thing.

What would it be?

UPDATE: Quick note: the subject is "civil rights," not "civil liberties." I'm thinking primarily of race issues, but you're welcome to suggest legislation dealing with other aspects of civil rights if you wish. I do intend to address feminist issues separately, though.

As the quote indicates, Kevin was thinking primarily in terms of race. But I agree with several of his commenters that race is probably not the "big" civil rights issue anymore, especially if you are talking about what might be accomplished through legislation. This is not to say that racism has ceased to exist or is no longer a concern. It does exist and it is a concern. But it is hard to see what more could be accomplished legislatively at this point. At best, laws can only regulate overt conduct. Racism and, with one notable exception, other forms of suspect class discrimination (gender, religion, national origin, etc.) are today much more a matter of attitude that they are of overt action, and the law is a very poor instrument by which to seek to change attitudes. Indeed, seeking to use law to change attitudes is when civil rights and civil liberties come most clearly into direct conflict.

As noted, there is one exception to this: gays. Discrimination based on sexual orientation is probably the last form of de jure discrimination still widely practiced in this country. As such, it is a form of discrimination where legislation could make a huge difference. So, my first reaction to Kevin's question was that what I would most want to see (ignoring as he suggests the practicalities of achieving this) would be legislation outlawing discrimination based on sexual orientation.

But, as I thought about it, what I would really like is something broader; something that would achieve the same result for gays and yet offer benefits to us heteros as well. That something is an explicit and general right of privacy: a right to be "let alone" both by the government and by private institutions with respect to my personal, private actions and activities so long as those actions and activities do not unreasonably interfere with the correlative right of others to be similarly left alone. In fact, as long as we are thinking big, I would eschew legislation and incorporate that right into the Constitution itself. Something along the following lines:

Section 1. The right of privacy being the cornerstone of liberty, neither the United States nor any State shall make any law prohibiting, regulating, or authorizing inquiry into the private activities of any person who is 18 years of age or older, except insofar as such a prohibition, regulation or inquiry is shown by the United States or the State to be reasonably necessary to protect the health, safety, welfare, or property of another person or the rights guaranteed to such other person under the Constitution.

Section 2. Except as may be authorized by legislation consistent with Section 1 of this article, no person shall unreasonably discriminate against another person based on that person's private activities or inquire into the private activities of another without consent.

Section 3. The Congress shall have power to implement and enforce this article by appropriate legislation.

Sex is the area in which a need for such a right is most obvious. Nothing could be more personal or private than sex. And, so long as the sex is between consenting adults, nothing could have less of an impact on the rights of others to be similarly left alone. Thus, the right of privacy I have in mind would be explicitly designed to invalidate most state and private regulation of adult, consensual, sexual activity and would make both government and private discrimination based on those choices unlawful.

The right to marry the person of one's choosing, even if of the same gender, would also be protected. This too is a quintessentially private matter and there is no evidence to suggest that such marriages have any adverse impact on the health, safety, welfare or property or rights of any third party.

Even laws against such things as prostitution and polygamy would be inherently suspect and before the state would be permitted to ban or regulate such activities, it would have to show (a) that such activities posed an appreciable threat to the safety, health, welfare or property of third parties and (b) that the a ban or lesser methods chosen to regulate such activities imposed no greater constraint on the right of privacy than was necessary to protect such third parties.

But what I have in mind is broader than sex. For instance, laws criminalizing possession or use of drugs vel non would also be suspect, although laws banning or regulating the trafficking in such drugs would be acceptable. Also, it would still be permissible for the government and private entities to exclude drug users from certain positions based on a demonstrated potential for harm to third parties that might result from drug use in those positions.

Also, the right of privacy would extend to government and private investigations into private activities, except as authorized by legislation that has itself been shown to be necessary to protect third parties.

I am sure that this proposal is fully subject to the law of unintended consequences, and I will not pretend to have thought through all of the problems that might arise under such an amendment. But, I do believe that the right of privacy is by far the single most important right inherent in the concept of freedom, and I would like to at least hear a debate on ways to better protect that right.

How Mark Felt Became 'Deep Throat'

I am sick of the coverage of the "Deep Throat" revelations. It somehow seems so seedy, so self-serving, and so yesterday. But this, at least, is interesting: How Mark Felt Became 'Deep Throat' It is Bob Woodward's story of how he first met and cultivated Felt as a source.

The Cure Is Worse Than The Disease: Using The Thought Police To Fight Al Queda

Apparently, two Arab-Americans have been indicted for swearing loyalty to Al Queda. The actual charge, it appears, is conspiracy to aid Al Queda. Admittedly, it has been 30 years, but my recollection from law school is that there are two elements to a conspiracy charge: (1) an agreement by two or more people to commit an illegal act and (2) an overt act in furtherance of that agreement. In this case, assuming that the NYT reporting is accurate, a government undercover agent, pretending to be an Al Queda recruiter, spent two years trying to persuade two men to agree to provide support for Al Queda. To make the conspiracy rap stick, the feds had to bring the two men together. They did so for the first and only time about 10 days ago in New York. At that time, the feds allege, both swore allegiance to Al Queda. The feds apparently believe this oath was a criminal act.

I have more than a few problems with this. First, the purely legal ones:

1. It's hard to see what agreement the two men made with each other. By taking the oath, they each arguably promised to help Al Queda, but those promises were not between the two men but were made separately to a third party.

2. Even if the taking of the oath in each others' presence is enough to establish an agreement between them to aid Al Queda (and to thereby commit an illegal act), it is hard to see how the oaths constituted an overt act in furtherance of that agreement. Indeed, according to the Times at least, the feds themselves concede that neither man had any immediate plans to do anything. At most, their actions consist of generalized statements of sympathy for and support of Al Queda.

3. Finally, this whole case appears to bear all of the hallmarks of a classic "entrapment": the government appears to have worked very hard to persuade the defendants to commit an act (i.e. conspire with each other) that from all appearances they would never have committed if the government had just let them alone.

But none of those are the points that really bother me. Presumably, the criminal justice system with sort this out eventually, and this case, like so many other of the government's anti-terrorism prosecutions will fall apart. Sure, the lives of two men will have been ruined in the process, but even that is not the real problem.

What really concerns me is the fact that the government appears to have fully embraced the idea that even thoughts and private speech can be criminal. Indeed, they are so far around the bend on this issue that they are actually proud of what they are doing in this case.

As the Times reports, this indictment is the first in what could be a string of indictments resulting from a two-year effort by the feds "aimed at identifying and arresting people disposed to provide aid to terrorists." I have no problem with government efforts to identify such people, provided that those efforts do not unlawfully intrude into protected privacy rights. Further, if there were reason to believe that the a person identified in this effort was actually likely to act on his "disposition", I could even countenance heightened surveillance of that person. But since when is it a crime to be "disposed" to do something?

If I may be so immodest as to quote myself:

What happened on 9/11 was horrible. But the uses to which the Bush Administration is putting those events are far worse. The Administration's rhetoric would have us believe that 9/11 was an attack on freedom and liberty. It was not. It was an attack on symbolic buildings and people. The attack on liberty and freedom (and all of the other values we associate with America like fairness, due process, a presumption of innocence, rights of privacy and freedom from unreasonable searches) came later and was perpetrated by the Administration (with a big assist from Congress).

September 11th has become the Bush Administration's Reichstag fire: a pretext for a relentless expansion of the perceived right and actual ability of the federal government to control peoples' lives. Three years ago, it would have been unthinkable for the federal government to claim the right to imprison thousands of people indefinitely, without charges or trial, without access to counsel, and in many cases without even having to reveal who is being held. Now, it not only claims those rights, it is actually doing all of those things. Three years ago, it would have been unthinkable for the federal government to claim the power to monitor and record and investigate the thoughts, ideas, expressions, affiliations and movements of American citizens without warrant or notice and without any basis beyond some vague "national security" claim. Now it is the accepted practice. In the name of defending freedom, the Bush administration is in the process of destroying it.

We now need to add another "unthinkable" to this litany: Prior to 9/11, it would have been unthinkable for the government to claim that having a certain "disposition" was a criminal act. Now it has so far embraced that concept that it trumpets its efforts to bring such "thought criminals" to justice.

I Wonder If They Are Subject To Sarbanes-Oxley?

NYT reports: C.I.A. Expanding Terror Battle Under Guise of Charter Flights:

While posing as a private charter outfit - "aircraft rental with pilot" is the listing in Dun and Bradstreet - Aero Contractors is in fact a major domestic hub of the Central Intelligence Agency's secret air service. The company was founded in 1979 by a legendary C.I.A. officer and chief pilot for Air America, the agency's Vietnam-era air company, and it appears to be controlled by the agency, according to former employees.

Behind a surprisingly thin cover of rural hideaways, front companies and shell corporations that share officers who appear to exist only on paper, the C.I.A. has rapidly expanded its air operations since 2001 as it has pursued and questioned terrorism suspects around the world.

Things Fall Apart?

Much in the news to generate some hope that America is returning to her senses:

The filibuster deal (full text here)

James Dobson foaming at the mouth, making himself ever more offensive to the American mainstream.

Voinovich on Bolton

Stem Cell revolt

And even Glenn Reynolds and John Henke think the Right is overplaying its hand.

Ain't democracy grand?

Democracy at Work

I LOVE this stuff! The Washington Post has a great article today on the digestive processes of democracy (as illustrated by the give-and-take around the judicial filibuster issue): it sure ain't pretty and it sure is slow but the fact that it is going on is proof that the patient is alive.

I am going to go out on a limb and make two predictions about all of this:

1. Frist will not push the button on the nuclear option. He won't, because he knows he will lose regardless of the outcome. The biggest blow would be if he pushed the button and lost the vote. That is a very real possibility. All that is necessary is for six Republican senators to vote in favor of keeping the filibuster. Three -- McCain, Chaffe and Snowe -- have already said that they would do so if it comes to a vote. Three others -- Warner, Specter, and Collins -- are pointedly undeclared and seem likely to stay that way until actually forced to vote. Two others reportedly "in play" are Breaux and Collins. In short, if Frist were to push the button he would have to do so without being sure he could win. And losing would be unthinkable. On the other hand, even if he did win the vote, he would lose in the long run. He would be the man that turned the Senate in the House of Representatives. His actions would come to be seen as a raw power play in which he sacrificed the traditions of the Senate and its historic commitment to the rights of the minority on the altar of political expediency. The day after the vote it will be obvious to everyone that something important was lost over an issue that in reality is pretty trivial: whether Patricia Owens gets a seat on the Fifth Circuit. And Frist will be the guy who did it. Frist, in short, has no upside in forcing this to a vote. His upside lies in fighting the fight, since in doing so he demonstrates to the Right that he is a standup guy.

2. The issue will be resolved the way such issues always are in a Democracy: by a compromise that allows both sides to declare victory. Bush will get 3 or 4 but not all of his nominees confirmed and Frist will be able to say -- truthfully -- that he "fought the good fight" and made the Democrats blink. The Democrats will have defeated 2 or 3 of the nominations despite being in a minority and despite the enormous influence of the Presidency, and that they too "fought the good fight" and preserved the filibuster for another, more important day. Yet, neither side will have won so clear a victory as to embolden them to (greater) arrogance.

As I have said before, I believe Judges should bring their personal beliefs on what the law should be to bear on their decisions. As a result, I also believe that the process of appointment is -- must be -- a fundamentally political process, since that is the way the People ultimately influence the direction in which the Court is leading the Country. So, while the shenanigans going on now around (a very small number of) Bush's the judicial nominations are like watching sausage being made, it is nonetheless the epitome of a democratic process. And, I think, everything will be fine in the end. As a good friend likes to say: The Sturm and Drang notwithstanding, "the Republic is safe."

Update: Told you so!

The Unreliability Of Supreme Court Nominees

Here's something interesting: Republicans have appointed 7 of the 9 sitting Justices of the Supreme Court:

Rhenquist: 1971 Nixon
Kennedy: 1975 Ford
Stevens: 1975 Ford
O'Conner: 1981 Reagan
Scalia: 1986 Reagan
Souter: 1990 GHW Bush
Thomas: 1991 GHW Bush
Ginsburg: 1993 Clinton
Breyer: 1994 Clinton

I suppose they would argue that Ford wasn't a "real" Republican and thus appointed the Right's current bete noir, Justice Kenndy, author of the opinions holding that laws criminalizing homosexual sex and allowing execution of minors were unconstitutional. But even so, how do you explain O'Connor, who voted with Kennedy in the sodomy case and Souter who voted with Kenndy in both? Is it possible that neither Reagan nor GHW Bush was a "real" Republican either?

The point has been made before: Being on the Supreme Court changes people, often in ways the Republicans don't anticipate or like very mauch.

WSJ: But Here They Are Spot On

Redeeming itself somewhat, the WSJ also published this editorial today: Liberal Fundamentalism: Who are the intolerant extremists? It is actually a reprint of an editorial originally published in 1984 arguing that the ise of the Religious Right was actually a reaction to the fundamentalism of 1970s liberalism. It is presumably republished today to remind us that the Liberal Left is simply reaping what it sowed.

I agree. The arrogant and intolerant liberalism of the 1970s is what made me a Republican. The arrogant and intolerant conservatism of the 2000s is what has made me a Democrat again. The problem is fundamentalism itself. True belivers are scary and, fortunately, they eventually self-destruct.

I hope the WSJ keeps this editorial, becuase my guess is they will be able to publish it again in 2014 as an explanation of why religious conservatism has by then become so powerless, even embarassing. Although, at that point, I suspect there will be with a bit less "I told you so" and a bit more "Why did we let this happen?"

WSJ: Defending the Indefensible

I rarely read a WSJ editorial with no redeeming social value. I almost invariably find something that makes me think about my own conclusions, and I can generally respect their position even if I disagree deeply with their argument or conclusion. As a result, when I saw the headline and subhead for this morning's editorial, How we got here: Why Republicans Can't Let The Judicial Filibuster Succeed, I thought: "Aha! Finally! An intelligent explanation of why the Republicans are willing to go to such lengths to get 3 or4 lower court nominees confirmed."

Man, was I disappointed.

As John McCain reportedly said on the weekend news circuit, the very point of the Senate, with two members from each State regardless of size, it to protect minoritiy interests from the tyranny of the majority. Judicial appointments are political. And, they are important. I do not support the trashing that Robert Bork or Clarence Thomas got at the hands of the Democrats. But neither do I believe, as the editorial argues, that a Presiedent has an absolute right to appoint whomever he wants to the federal bench simply becuase 50 Senators plus the Vice President are members of his own Party.

The editorial concludes: "This is at its core a political fight, and elections ought to mean something." I agree on both counts. But what gets missed in this is that the Republicans did not win THAT big. Having 55 Senators just isn't a big enough majority to have everything they want. They have to compromise. But that is simply not in their lexicon these days and they would prefer to do permanent damage to the Senate and the Country than to give even one inch on the childish mantra: I won! Therefore I get everything I want!

I say again, any judicial nominee who has the benefit of a Presidential nomination and all of the benefits that Presedential backing brings to bear on his/her confirmation, but who still cannot get at least the acquience of 60 Senators, has no buisness getting a lifetime appointment to anything, much less to the federal bench.

Privacy vs. Morality

Reading the federal district court case striking down the Nebraska same-sex-marriage amendment launched me on a hyperlink-assisted voyage to a number of the major islands in the archipelago of the Supreme Court's privacy jurisprudence. Some of these I had visited before, though not recently. I had read descriptions of the others, but never actually visited them. The trip was fascinating, sometimes moving, and overwhelming relevant to -- indeed largely the source of-- what Justice Scalia calls "the Kulturkampf" that is going on in America today. It is a tour I would highly recommend you take, and, to make that easier, I am providing free "tickets" below:

GRISWOLD v. CONNECTICUT, 381 U.S. 479 (1965): The start of it all. A married couple has a "fundamental" right to privacy with respect to their sexual relations that is protected by the Due Process Clause of the US Constitution (even though a right to privacy is nowhere mentioned in the Constitution) and a state ban that prohibits a doctor from providing contraceptives to a married couple is unconstitutional because it significantly intrudes on that right without serving any significant State interest.

LOVING v. VIRGINIA, 388 U.S. 1 (1967): "Marriage is one of the basic civil rights of man, fundamental to our very existence and survival" and the state may not restrict that right so as to ban marriage between people of different races. (Note: the possible relevance of this holding to the issue of gay marriage was almost certainly not recognized by the court at the time. However, it has since been recognized by others, since the statute at issue did not preclude marriage as such. It only precluded marriage between two classes of people. What the court was saying, really, was that there is a fundamental right not merely to marry, but to marry the person you want to, and the state may not restrict that right based on some sense of what is "right" or "wrong").

STANLEY v. GEORGIA, 394 U.S. 557 (1969): The State may not criminalize the private possession of pornography.

EISENSTADT v. BAIRD, 405 U.S. 438 (1972): The right to sexual privacy recognized in Griswold is an individual right that extends to individuals whether or not married and the state may not make it a crime to provide contraception to individuals who are not married.

ROE v. WADE, 410 U.S. 113 (1973) : The right of a woman to control her own body is "fundamental" and the State may not entirely preclude abortions, although it may impose restrictions once the fetus achieves viability.

BOWERS v. HARDWICK, 478 U.S. 186 (1986) : This is the first of the post-Griswold cases involving homosexuals, although the anti-sodomy statute at issue actually applied to both homosexuals and heterosexuals. The Court characterized the issue as whether there was a "fundamental" right to commit sodomy, and, not surprisingly, concluded that there was not. Therefore, it held that statutes criminalizing sodomy (both heterosexual and homosexual) were not unconstitutional.

ROMER v. EVANS, 517 U.S. 620(1996) : The state may not enact a constitutional amendment barring the state and its political subdivisions from extending the state's anti-discrimination laws to homosexuals, lesbians and bisexuals.

LAWRENCE et al. v. TEXAS, Case no. 02-102 (June 26, 2003): Reversing Bowers. According to the Court this time around, the issue was not, as Bowers had held, whether there was a fundamental right to sodomy but whether there was a fundamental right to privacy with respect to sexual relations. Five of the Justices decided the case on substantive Due Process grounds, holding that, ala Griswold and Eisenstadt, state statutes criminalizing homosexual sexual relations were unconstitutional because they intruded on the fundamental right to sexual privacy without serving any legitimate state interest. Justice O'Connor agreed with the outcome, but based her concurring opinion on Equal Protection grounds (and would therefore not have overruled Bowers), since the Texas statute, unlike the Georgia statue at issue in Bowers, applied only to homosexual sodomy. In other words, O'Connor did not hold that homosexuals have a fundamental right to sexual privacy. Rather, she held that the sodomy statute was unconstitutional because there was no rational basis for the State's decision to criminalize it only for homosexuals.

As is often the case, the most interesting part of the Lawrence decision is Scalia's truly scathing dissent, in which he was joined by Justices Rhenquist and Thomas. No matter which side of this issue you come down on, I urge you to read it. If you disagree with the outcome, Scalia will provide you with all of the ammunition you could ever want. If you agree with the outcome, Scalia will, as always, make you think.

Among other things, Scalia points out that, if homosexual sodomy cannot be outlawed, it is very hard to find a constitutionally permissible rationale for bans on gay marriage. Indeed, he argues, it is very hard to find a basis for any law that is based primarily on morality. It is this aspect of Scalia's argument that primarily interests me about these cases.

As you will note, all of these cases are about sex, and each raises essentially the same question: to what extent (if at all) may the state regulate or criminalize purely private sexual activity where the only justification for such regulation is an effort to enforce a majoritarian sense of morality? With an amazing degree of consistency, despite significant changes in the make-up of the court over time, the answer is that the state's power in this regard is very limited, at least where there is no "victim" involved.

This last point -- about the absence of a victim -- is key, obviously. This line of cases does not lead inexorably to the de-criminalization of rape or child molestation. In the first of these there is no consent in fact and in the second there is no consent in law and probably not in fact either. The state has an obvious interest in protecting people from sexual predators and I doubt if anyone would argue that a right of privacy trumps that state interest. The existence of a putative victim is also what makes the abortion cases so difficult. Plainly there is more at issue in these cases than "just" morality.

But, there are lots of other kinds of "victimless sex" that are still criminalized solely for moral reasons in most if not all states. Prostitution is the most obvious example, but some others include polygamy and voluntary incest between consenting adults. Admittedly, in particular cases involving these types of sexual relations it may be hard to determine whether "consent" is freely and knowingly given; and if it is not, then the case would present an entirely different and much easier issue. However, in all three there are undoubtedly cases in which the participants are full grown adults acting entirely independently and voluntarily. What does the Griswold-to-Lawrence line of cases have to say about those? If we believe that majoritarian morality is not a basis, by itself, for regulating voluntary sexual relations among consenting adults, then are statutes outlawing prostitution, polygamy and incest between consenting adults also unconstitutional? And, if your answer to that question is "yes", how do you feel about laws against bestiality? In short, what role, if any, does morality have to play in state regulation of private consensual sex?

For now, at least, I just want to pose the question. If you want MY answer to it, you'll have to wait, since I haven't quite got it figured out in my own head yet. But, as prelude, let me say this: I have a great deal of trouble with any law that has as its sole basis the enforcement of majoritarian morality, and I am therefore inclined to argue that individual interests in privacy -- in "being let alone" -- outwieghs the State's interests in enforcing morality even in these cases.

And Now the Deluge

Yesterday, Judge Joseph F. Bataillon of the Nebraska Federal District Court struck down Nebraska's state constitutional ant-gay-marriage amendment, holding that it violated the federal constitution. In searching for a copy of the opinion (which I have not found yet), I ran across this: the record of Judge Bataillon's confirmation vote in the Senate: 100-to-0. My guess is he'd have a hard time mustering half that many votes today. And, needless to say, his near-term prospects for an appointment to the Court of Appeals, to say nothing of the Supreme Court are pretty much toast.

UPDATE: Here's a link to Judge Bataillon's Decison:Citizens For Equal Protection, et al. v. Bruning, Attorney General

I have to admit I have mixed feelings about this decision. Not about the outcome, of course. It's the timing that concerns me. Obviously, this is going to re-energize the movement to put a same-sex-marriage amendment in the US Constitution. But that's not really the concern either. That will take years and, frankly, I think there is almost zero chance that such an amendment would ever get adopted. Indeed it would probably not even get out of Congress, since to do so requires concurrence of 2/3 of both houses.

No, my real concern is that this issue is now in play the federal courts and seems very likely to end up at the Supreme Court sometime in the next two years. In ordinary times, I would welcome that prospect, since, in ordinary times, I think the Supreme Court -- even this Supreme Court -- would end up doing the right thing. See, e.g., Lawrence v. Texas (2003)(laws banning consensual sex are unconstitutional)and Romer v. Evans (1996) (striking down a Colorado constitutional provision barring the State, and any agencies or political subdivisions thereof, from outlawing discrimination based on homosexual sexual orientation). However, these are not ordinary times. The Courts in general, and the Supreme Court in particular, are already under attack and this case simply adds more fuel to the fire. Courts are not immune to such pressure for one very simple reason: They need the support of the Executive to be effective. The Supreme Court's ability to take any action that means anything depends entirely on the willingness of the executive branch to abide by and if necessary enforce it's judgments. We are in a time where that willingness is being tested to a significant extent. In some sense, the Justices' first duty is to make sure that this comity is not destroyed, for if it ever is, the Court will cease to be an effective check on anything. This practical political reality has to weigh heavily in the mind of even those Justices who would normally be inclined to see sexual-preference discrimination as wrong and as inconsistent with basic notions of equal protection. Thus, despite the fact that I applaud the decision, and believe that eventually this issue needs to come before the Supreme Court, I frankly wish a couple more years had passed before it did.

The other timing downside is that it comes on the very eve of the long-awaited showdown on the right of a minority part to filibuster judicial nominations with which they disagree. I believe this is a vital check on the power of the majority party (whichever party that is). After all, if the President, with all of his power and influence can't persuade 60 Senators to vote for a nominee, there is no way that nominee should be given a lifetime appointment to anything, much less to the judiciary. Yesterday, it was not at all clear that Frist had the votes to change the filibuster rule. According to the New York Times today, there are three Republican Senators who have come out against changing the rule -- McCain, Chaffe and Snowe -- and three others who appear to be "on the fence" -- Specter, Breaux and Collins. Also, Voinovich has shown some willingness to stand up to the Administration with his refusal to support the Bolton nomination. But the Right will see the Nebraska gay marriage decision as being yet more evidence of the need for haste in getting the federal judiciary "reformed" and will raise the stakes yet again for those few Republican Senators who actually have the guts to try to moderate the zealotry of the current Republican Leadership. I am afeared, in short, that the filibuster may be an unintened victim of this decision, to the long term detriment of the Country.

Ohio's Not ALL bad

Ohio may be the state that gave us another four years of W & Co. but it does have some redeeming social value nonethless: a Senator with at least a bit of both judgment and spine. Now if we can just get him (and 3-4 others) to tell Bill Frist to cool it on the filibuster thing, I would begin to see hope again for the Party of Lincoln.

Vive Le Judicial Filibuster: Requiring 60% For Confirmation Of A Lifetime Appointment Is A Good Idea

As reported in both the New York Times yesterday and the Washington Post today, it appears that the issue of whether to try to end the potential for a filibuster of judicial nominees is coming to a head. As a result, I wrote e-mails this morning to both of my Senators (Voinovich and DeWine, both Republicans) urging them to vote against that rule change. I would urge all of you to do the same. It has nothing to do with Bush's nominees, though; I would have the same position if the Republicans were in the minority and were threatenting to filibuster the nominees of a Democratic President. Quite simply, I believe that, insofar as federal jdges are appointed for life, limiting the President's power of appointment to individuals who can garner at least acquiesence of 60% of the Senate is an important check on the President's power.

Lest We Forget . . .

In the "I'm shocked! Just SHOCKED!" category,Bush lied to us about Iraq and manipulated intelligence to ensure that it conformed to a predetermined policy decision! But Kevin is right. It is important that we keep reminding ourselves of this.

Where The Heck Is China?

Read this article, U.S. Cites Signs of Korean Preparations for Nuclear Test, take a close look at the map that accompanies it, and then ask yourself why China is putting up with this nuclear nonsense. Is China really going to let Kim test a nuke right on it's own border?

Crocodile Tears From Tom DeLay

This is just too rich: DeLay Calls for Greater Humility

Some Context That Does Matter: On The Battle Over The Judiciary

Nice piece of historical perspective in the NYT today on the uneasy relationship that has always existed between the legislative/executive branches and the judiciary: Chopping Off the Weakest Branch . It's probably true that there is no one of the stature of John Marshall on the federal bench today. But, even so, if the judiciary in its infancy can survive and even out-maneuver the likes of Thomas Jefferson, I don't think we need to worry too much about a mature judiciary being threatened by the likes of Tom Delay and James Dobson.

Context Matters- but only to a point

Oh, Matt c'mon, just stop it. Your list of desireable social welfare benefits might all be well worth pursuing, but it is silly to argue that we should reject the benefits that might flow from private accounts simply becuase we do not yet have them all. The exisiting social security system doesn't provide any of these benefits either. Rejecting private accounts simply becuase we don't have everything else you might want smacks of cutting off you nose to spite your face.

Internet surveillance

Courtesy of Instapunit here is a moderately interesting piece on remedies for violation of the laws -- including the Patriot Act -- defining and to some extent limiting the government's right snoop into internet communications: The Volokh Conspiracy . The blog, as well as the Law Review article it references, argue that development of the law related to what the government can and cannot do in this area would be better served if the statues authorized courts to suppress evidence collected in contravention of whatever limitations are imposed by these statutes. For reasons that are not entirely clear to me, the author, Orin Kerr, a law professor at George Washington University, concludes that the Fourth Amendment suppression jurisprudence is of limited practical applicability in these types of cases. As a result, he argues, there is a need for the statutes that authorize (and to some extent limit) government internet surveillance to include a provisions authorizing suppression of evidence obtained in violation of the statutory limitations.

I have no doubt that Professor Kerr is right about this. However, my bigger concern is not with remedies but with authorizations. My sense is -- and admittedly it is only a sense because I have not given the Patriot Act the study it deserves -- is that the lack of a suppression remedy is the least of our worries. After all, suppression is only a remedy if the surveillance itself was unlawful. A far more serious problem, I suspect, is that far too much surveillance is authorized by these statutes.

In reality, this is simply a note to myself (and you): The Patriot Act is up for renewal this year. I (and you) need to better educate myself (and yourself) on what needs to be changed.

The Thrift Imperative -- and Private Accounts

I wonderhow this -- The Thrift Imperative, pointing out (again) arguing that America's the anemic savings rate is threatening our economic well being -- relates to the issue of private accounts for social security. The article argues that the biggest cause of the low net savings rate is the Bush Administration's deficits, which the article claims, alomost completely offset the economy's net private savings. If that is the case, then private accounts by themsleves won't help much since re-directing even a portion of FICA taxes to private accounts will eventually require increases in federal borrowing to pay benefits. But, it does seem that private accounts, coupled with tax increases, could be a part of the answer. My point really is this: private accounts have some significant benefits and we should not reject them simply becuase they are being pushed by George Bush.

This Is A "Pay-To-Play" Blog

I understand that there are actually people who read this blog. I know because I have gotten e-mails etc. from people wondering why I have not written much recently. I haven't written much becuase it feels like I am talking to myself. I don't need to do that, though. I already know what I think long before I sit down to write about it. In short, if you want me to keep writing, you have to leave "tracks" (in the way of comments). So, if you actually are interested in reading my meanderings, get off your duff and SAY something even if you do it "anonomously" and don't sign your name. Otherwise, I'm gonna just take my keyboard and go home! Nananananaa!

What's So Wrong With Progressive Indexing of Social Security Benefits?

Yesterday's lead editorial in the NYT -- Hitting the Middle Class, Again -- seems just plain silly.

Mr. Bush endorsed a proposal that would take a huge bite out of the Social Security retirement benefits for the middle class, claiming that would close some 70 percent of the system's financing gap. That figure is almost certainly overstated. Under the proposed reductions, young workers who now earn about $36,000 would face a 16 percent cut; those earning about $58,000 would face a cut of 25 percent, and those earning $90,000, 29 percent. People not yet in the work force would face even larger reductions.

The proposal to which this refers, of course, is to change the way increases in social security benefits are determined. Under present rules, the benefits to which one will be entitled in the future are increased each year at the rate at which wages increase. Bush is proposing is that, for higher income people, the rate of increase should be pegged to the rate of inflation instead. (The rate of inflation is generally lower than the rate at which raises rise). Thus, what Bush is suggesting is not really a cut in benefits. It is a cut in the rate at which benefits increase. And this cut in the rate of increase would apply only to higher income people. The benefits for lower income people would continue to be indexed to the wage increase rate. One can describe this as a "reduction in benefits" only if one takes it as a given that today's 21 year old has an absolute right to see his benefits grow at the wage rate rather than the inflation rate for the next 40 years. But that's a pretty silly way to look at things. First, no one is entitled to anything. What A 21 year old (or really any person) gets from social security the electorate is prepared to pay him at the time he retires. Not a penny more, or less. My guess is that that is likely to change over time by a percentage far greater than the percentage difference between the wage and inflation rates. Second, even if we want to say that the promises made today should be inviolable, the only promise actually made to anyone is to pay currently scheduled benefits until the trust fund runs out (currently projected to be somewhere around 2047 if nothing changes). At that point, the promise is to pay the retiree only that percentage of his scheduled benefits that can be paid out of then-current receipts. Present estimates are that, after the trust fund is exhausted, Social Security will be able to pay only 72% of scheduled benefits. In short, under present law, a person who is 21 today is only "entitled" to 72% of currently scheduled benefits. It is, at present, against the law to pay him any more than that. So, if the effect of indexing the benefits for higher income people to inflation rather than wages is to defer the date at which the trust fund is exhausted, then the effect is to give everyone an increase in the benefits to which they would otherwise be entitled.

For a more honest -- if far less readable -- explanation of the impacts of Bush's proposals, see this from the WSJ.

But the New York Times' yellow editorialism is not really the point. I agree that, for people who are less than 10, maybe even 20, years from retirement, it is probably unfair to change the rules now. Rightly or wrongly, many of these people may have counted on social security to provide them with the bulk of their retirement income and it is now too late in their lives to make up the difference if the rules were to change. But the real question is what we want to tell the "20-somethings" about what social security will do for them. After all, it is the people who are 40 years from retirement who are the ones facing big benefit cuts if nothing changes.

My sense, from both a fairness and a policy perspective, is that we should tell them -- especially the upper income portion of them -- that they should not think of social security as a program that will replace some specified percentage of their pre-retirement income (which is the rationale for indexing benefits to wage growth). Rather, we should say, by the time you reach retirement, the purpose of social security is going to be simply to keep you out of poverty. That is, over the next 30-40 years, we are going to convert social security from something like a pension program to something like a welfare program. As a result, your benefits from social security will be indexed to the inflation rate, since the purpose will be to maintain a certain level of purchasing power, independent of what you actually earned. In return, we are going to let you -- actually make you -- invest a portion of what you pay in FICA taxes in private accounts that you will own.

I advocate, in short, something similar (in concept at least) to the Cato plan discussed in this post