Oh. Harriet Miers!

Last night, I realized that I had misspelled Harriet Miers' name in my post yesterday. I went back to correct the errors, but decided to leave them. While unintentional, they are in some sense a metaphor. No one, save Bush probably, really knows this woman.

While switching back and forth between "The Godfather" and "Die Hard 2" last night (the advertisements are so numerous and so long that I was able to watch most of both movies at the same time), I was cruising around the net trying to get a handle on the reactions. The contrast between this nomination and the Roberts nomination couldn't be more striking. It begins, as many have noted, with the absolutely bizarre timing. The Roberts announcement came in a prime time. The Miers announcement came at 8:00 am. What is up with THAT? The only theory I have heard is that Bush was making sure that news of the nomination would not appear in the morning papers. But in an age of round-the-clock news, when most people don't get their information, at least on big stories, from the papers anyway, what did that accomplish?

And then there were the reactions. Except for fringes on both sides, the Roberts nomination was nearly universally hailed as a masterstroke both in terms of the nominee himself ("brilliant" being the most common adjective) and in terms of the political acumen involved in choosing him. It was pretty obvious from the very beginning that Roberts was going to be confirmed, and there was some sense among those who had been itching for a fight that they had been outmaneuvered. The reactions to Miers could not have been more different. No one, and I mean no one, has called Miers a "brilliant choice". The overwhelming reaction has been puzzlement, tinged with relief on the Left ("It could have been worse") and "disappointment, depression and demoralization" on the Right. Miers may still turn out to have been a brilliant political stroke in that Bush will may be able to get her confirmed without an all-out war. But, if that is the case, the cause of political peace will have been bought at the price of putting an enigma on the Supreme Court.

Maybe that is OK. Given her training and experience, Harriet Miers does not strike me as a person who is likely to upset the applecart. She will probably be a good, workman-like if uninspiring Justice, someone who is unlikely to make big changes in either direction. Perhaps that is exactly what to Court and the Counrty both need right now.

Harriet Who?

Talk about stealth candidates. Not only does Harriet Meier not have any judicial experience, she is not even a public figure. My guess is that there is almost nothing she has written that is in the public record. Thus, there is going to be a huge push to get access to what she has written while part of the Bush legal team, and Bush is virtually certain to resist on the grounds of attorney-client privilege. After all, he asserted that privilege and refused to disclose John Roberts' writings during his daddy's administration. The claim is going to be even stronger with regard to advice Meier gave Bush himself. The fight over access si going to be BIG.

Apart from that, I am not immediately comforted by what little there is out there on her history. She has some fairly impressive crdentials as a successful woman (managing partner of a major Texas law firm; Prsident of the Dallas abd Texas Bar Associations) and commerical litigator, but the imporession I get is of a legal technocrat. When they ask her about her judicial philospohy, my guess is that she will be able to say with complete honesty, "I don't know. I've never really had to think about such things. The only thing that ever mattered to me were the interests of my client." As noted by one of her law partners in a profile in the Washington Post in June:

"The thing that comes to mind when I think of Harriet is that she basically puts her clients' interests ahead of everything, including her own personal life, sleeping hours and all those things," said Jerry Clements, a partner at Locke Liddell & Sapp, the 400-lawyer Texas firm where Miers was a co-managing partner before coming to Washington. "She is defined by hard work, dedication and client loyalty."

That's high praise if what you want is a talented and relentless advocate ("a pit-bull in size six shoes" as Bush is reported to have dubbed her), but I'm not sure it says much if anything if you are looking for a Supreme Court Justice.

A December 2004 profile in the Legal Times expressed serious concerns even about her ability to be an effective White House counsel:

She has also earned a reputation as exacting, detail-oriented, and meticulous -- to a fault, her critics say.

"She can't separate the forest from the trees," says one former White House staffer.

But Miers' supporters say her emphasis on detail and procedure are exactly what the Office of the White House Counsel requires.

"She is very thorough and very hard-working and very conscientious and very careful, which is why she was a good choice for staff secretary and why she's a good choice as counsel," notes Brett Kavanaugh, a former White House associate counsel who replaced Miers as staff secretary in the summer of 2003.

* * * *

Her critics say the problem goes beyond what Miers does or doesn't know about policy -- and right back to a near-obsession with detail and process.

"There's a stalemate there," says one person familiar with the chief of staff's office. "The process can't move forward because you have to get every conceivable piece of background before you can move onto the next level. People are talking about a focus on process that is so intense it gets in the way of substance."

One former White House official familiar with both the counsel's office and Miers is more blunt.

"She failed in Card's office for two reasons," the official says. "First, because she can't make a decision, and second, because she can't delegate, she can't let anything go. And having failed for those two reasons, they move her to be the counsel for the president, which requires exactly those two talents."

Responds White House Deputy Counsel David Leitch: "She certainly delegates. She couldn't possibly dream of doing any of these jobs, this job or the job she has now, without delegating."

Does this sound like solid Supreme Court material to you?

Early reactions are summarized on the WaPO Supreme Court Blog and elsewhere (e.g. AP via The Guardian), so I won't repeat most of it. But it is confused. Naturally Frist and Hatch have issued statements supporting Meiers, while Schumer and Leahy are suspicious. And the abortion groups want a yes/no answer to the question of whether she will vote to uphold abortion rights

But, surprisingly, Harry Reid seems to support her, and, there's trouble on the Right:

From RedState.org:

"Mr. President, you've got some explaining to do. And please remember - we've been defending you these five years because of this moment."

From Public Advocate:

"The President’s nomination of Miers is a betrayal of the conservative, pro-family voters whose support put Bush in the White House in both the 2000 and 2004 elections and who were promised Supreme Court appointments in the mold of Thomas and Scalia. Instead we were given “stealth nominees,” who have never ruled on controversial issues, more in the mold of the disastrous choice of David Souter by this President’s father."

And from Manuel Miranda, columnist for the WSJ (as reported by AP):

The reaction of many conservatives today will be that the president has made possibly the most unqualified choice since Abe Fortas who had been the president’s lawyer. The nomination of a nominee with no judicial record is a significant failure for the advisers that the White House gathered around it. However, the president deserves the benefit of a doubt, the nominee deserves the benefit of hearings, and every nominee deserves an up or down vote.”

Should be a very interesting Fall.

Those Poor Republicans

The travails of the Bush administration continue. Now federal auditors have ruled that paying pundits to tout your policies and hiring PR firms to spin you message is illegal as well as stupid:

Federal auditors said on Friday that the Bush administration violated the law by buying favorable news coverage of President Bush's education policies, by making payments to the conservative commentator Armstrong Williams and by hiring a public relations company to analyze media perceptions of the Republican Party.

In a blistering report, the investigators, from the Government Accountability Office, said the administration had disseminated "covert propaganda" in the United States, in violation of a statutory ban.

The well oiled machine has become the gang that couldn't shoot straight. My sense: that's usually what happens (eventually) to people so overwhelmingly arrogant.

Judy Miller Update

There is nothing in today's "news" on Judy Miller that would lead me to be less cynical than I was yesterday. To the contrary:

But three recent letters from people involved in the case debate whether a similar deal may have been available for some time and raise questions about why Ms. Miller decided to testify now.

Hmmm.

Stick a Fork in Him

"The temporary departure of Tom DeLay as the majority leader of the United States House of Representatives is a loss to the Republican majority in Congress and the nation," Mr. Pence said in a statement, a sentiment repeated by various ranking members of the House.

"When this is over, I go back to being majority leader automatically," said Mr. DeLay.

"The important thing that is driving this is the temporary nature of it," said Kevin Madden, Mr. DeLay's spokesman.

It's temporary. It's temporary. It's temporary!

Who's kidding whom?

Here's the reality:

"Right now, the conference is interested in getting through this session under the current arrangement," said Representative Zach Wamp of Tennessee, who said he intends to run for the No. 3 post, party whip. By next year, he said, "I think the leadership team being formalized and finalized would be appropriate."

Though Mr. DeLay's absence is portrayed as temporary until the conspiracy charge lodged against him in an indictment filed in Texas on Wednesday is resolved, many lawmakers are skeptical that he will be able to return if the matter drags on. As a result, many of the ambitious politicians in this institution are surveying their chances for top positions should they open up.

"People have been waiting for somebody at the top to slip on a banana," said Representative Ray LaHood, Republican of Illinois. "This creates a once-in-a-lifetime political opportunity for people to get into leadership."

DeLay is done.

Ending with a Whimper

Perhaps I am just too cynical, but I must confess to a touch of incredulity at the explanation for Judy Miller's decision to testify in the Plame case. Recall, she went to jail in July because she refused to reveal a source (who now turns out to be Scooter Libby, surprise, surprise) even though she and the New York Times acknowledged that "the source" had given Miller a waiver. Now, after 12 weeks in jail she has decided that she can testify after all. What changed for this woman of principle? Why, she got a waiver from her source! Oh and this time it was voluntary and uncoerced:

"Judy has been unwavering in her commitment to protect the confidentiality of her source," Mr. Sulzberger said. "We are very pleased that she has finally received a direct and uncoerced waiver, both by phone and in writing, releasing her from any claim of confidentiality and enabling her to testify."

This just seems all too preposterous. If you assume the first waiver was coerced, why would you assume the second was not? Because it came both by phone and in writing? More to the point, I guess, why would you have ever considered the first one to have been coerced.

Perhaps there really is something of substance here. But from the facts we know, it is also possible that the Judith Miller is simply a drama queen who decided that being a martyr would be cool and good for her tattered journalisitc credentials, but then found that jail was boring and got Scooter Libby to give her a fig leaf so she could come back in from the cold -- and get her name back in the news.

An Alternative Approach To College Rankings

Here's something interesting for anyone frustrated by the methodology used in the USNWR annual college rankings. The Washington Monthly has published its own list based on an entirely different set of criteria, and,not surprisingly, the list looks a lot different.

The USNWR criteria are summarized here, but fall into 7 general categories: Peer Assessment (i.e. reputation) - 25%, Retention(% of freshman who return)- 20-25%, Faculty resources - 20%; Admissions Selectivity - 15%, Financial Resources - 10%, Graduation Rate - 5% and Alumni Giving - 5%.

I have never been a big fan of these criteria or of the relative weightings assigned to them because the seem to be less designed to measure the quality of the education and educational experience than to assure that Harvard, Princeton and Yale are always on top.

The Washington Monthly apparently had a similar problem and came up with a completely different set of criteria:

The first question we asked was, what does America need from its universities? From this starting point, we came up with three central criteria: Universities should be engines of social mobility, they should produce the academic minds and scientific research that advance knowledge and drive economic growth, and they should inculcate and encourage an ethic of service. We designed our evaluation system accordingly.

(For a more detailed breakdown on how they measured colleges and universities on these criteria see this "Note on Methodology").

Using these criteria, the came up with the following rankings, which, not surprisingly, look quite different from the USNWR rankings:



I don't know whether the WM criteria are the right ones either. Frankly, they seem a bit biased in favor of an egalitarian impulse. But it is interesting to look at how colleges and universities stack up on criteria other than reputation.

Tom Friedman on "The Endgame In Iraq"

Now that the Times has moved it's Op-Ed columnists to a new web site that is accessible only to paid subscribers, I'm not sure that links to their articles will work. But, if they do, Tom Friedman's piece today on "The Endgame In Iraq" bears reading.

Friedman's thesis is that the next few months will "tell the tale" on whether future efforts to stabilize Iraq are worth the effort and lives that will be required. As Iraqis go to the polls to vote first on a constitution and next for a new government (assuming the constitution passes), Friedman thinks that we will be able to see just what role that the minority Sunnis intend to play. If they decide to "play nice," then Iraq will be on the road to stability; if they do not, then there is no hope.

The role that the Sunnis play in the political process is unquestionably one of the key uncertainties. But it is not the only one by any means. And, even that one is hardly so simple as to make it reasonable to expect we will have an answer to it anytime soon. In short, I think that Friedman's analysis is simplistic in describing the hurdles Iraq faces and naive in suggesting that the one hurdle he does describe will resolve itself one way or the other in the next few months.

But, aside from that, the startling part of Friedman's piece comes at the end, when he suggests the courses of action the United States should pursue:

Maybe the cynical Europeans were right. Maybe this neighborhood is just beyond transformation. That will become clear in the next few months as we see just what kind of minority the Sunnis in Iraq intend to be. If they come around, a decent outcome in Iraq is still possible, and we should stay to help build it. If they won't, then we are wasting our time. We should arm the Shiites and Kurds and leave the Sunnis of Iraq to reap the wind. We must not throw more good American lives after good American lives for people who hate others more than they love their own children.

Wow.

Friedman is obviously frustrated, as we all are, by the seeming mindlessness of the Sunni "insurgency," and perhaps this frustration has led him to be a bit intemperate in his proposed solutions. But, to me, the suggestion that we should ever -- to say nothing of soon -- "arm the Shiites and Kurds and leave the Sunnis of Iraq to reap the wind" sounds chillingly like a suggestion that genocide is the answer to the political violence and instability that currently plagues the country.

The danger we face in Iraq is that, if we leave, and even if we do nothing to promote it, the country could well descend into exactly the maelstrom of sectarian violence that Friedman seems willing to contemplate. If that occurs, the very best we could hope for would be the emergence of a secular autocrat not unlike the regime we went in to eliminate. As bad as that outcome would be, the alternatives are even worse: the rise of a Taliban-like regime that would pose an enormous threat to American security, to the fledgling Afghan Republic and, indeed, to the entire Middle East, or worse yet, a descent into barbarism comparable to that in Rwanda, Sudan and the former Yugoslavia.

As bad as "staying the course" is, the possible alternatives seem much, much worse. Inevitably, I think, we have to stay there until stability (not democracy) is assured. This might take a decade or more. And, it will costs thousands more Americans their lives. But, in the end, I don't see what choice we have. We have created a toxic stew of a mess, and, while it is sorely tempting to simply wash our hands of it, our own security, to say nothing of our moral responsibility, depends on seeing to it that the mess gets cleaned up.

A Coming Political Re-Alignment?

We could be in the midst of an historic political realignment in this country. "Moral conservatives" and "fiscal conservatives" have always made strange bedfellows, since enforcing morality requires a big, intrusive federal government, something that the fiscal conservatives are dead set against. Also, for moral conservatives, fiscal restraint is simply not an issue, while it is the whole nine yards for the fiscal conservatives. With Bush's ironclad hold on the Republican Party starting to slip badly, these fault lines are becoming increasingly obvious. See this: GOP Leaders Try to Soothe Conservatives. And this: Deep Pockets, Small Government and the Man in the Middle .

According to an Op-Ed piece by Brendan Miniter in yesterday's WSJ Opinion Journal, as "traditional" Republicans (those favoring small government, low taxes and low deficits) become increasingly disenchanted with the "borrow and spend" policies of their party, the Democratic Party is positioning itself to pick up the pieces:

If Democrats retake the House next year, we can mark the start of the party's resurgence to a speech Nancy Pelosi delivered on Capitol Hill last week. It was there, at a press conference called to attack Republicans over their response to Hurricane Katrina, that the House minority leader actually used the words "waste, fraud and abuse" in talking about government spending.

What Ms. Pelosi and a few other Democrats seem to be figuring out in the wake of Katrina is that Americans aren't happy with their government throwing billions of dollars around with little if any accountability. Therefore she's laying out a legislative agenda aimed at capturing the mantle of fiscal responsibility.

As if to confirm Miniter's point, the Washington Post (never a particular bastion of fiscal conservatism) published an editorial that same day comparing the Louisiana Congressional delegation to looters:

Like looters who seize six televisions when their homes have room for only two, the Louisiana legislators are out to grab more federal cash than they could possibly spend usefully. . . . The Louisiana bill is so preposterous that its authors can't possibly expect it to pass; it's just the first round in a process of negotiation. But the risk is that the administration and congressional leaders will accept the $250 billion as a starting point, then declare a victory for fiscal sanity when they bring the number down to, say, $150 billion. Instead, Congress should ignore the Louisiana bill and force itself to think seriously about the sort of reconstruction that makes sense.

When Nancy Pelosi starts railing against "waste, fraud and abuse" in federal spending and the Washington Post issues a call for "fiscal sanity" in helping vicitms of a natural disaster, something important may be going on.

The American electorate can, I believe, be broken down into three roughly equal groups. First, there are the traditional "liberals," more properly referred to as "progressives," who form the base of the Democratic Party. For these people, the political imperative is to assist the underprivileged, and they believe government programs are the best or at least only available instruments for furthering that goal. Second, there are the proto-libertarians who have, at least traditionally, formed the base of the Republican Party. These people believe that the best, maybe even the only, way to effectively help the poor is through economic growth and that economic growth and even freedom demands small government, low taxes, and low deficits. Finally, and newly come upon the scene, there are the social conservatives: those for whom the political imperative is to further and if necessary enforce a particular moral code. On issues other than morality, this group is amazingly diverse, including everything from ultra-progressive Minnesota DFLers to ultra-conservative John Birchers. But for all of them, morality now trumps any other domestic issue. The Republican Party has achieved its current political dominance by keeping most of the proto-libertarians within the Party while adding the social conservatives.

But, the proto-libertarians aren't all that happy with the arrangement. Being libertarian, they are pretty tolerant on social/moral issues. Moreover, the social conservative desire to see government take on an ever expanding role in enforcing morality is fundamentally at odds with the central premise of proto-libertarianism: that government governs best when it governs least. For this reason, I do not think that the current Republican coalition can endure.

In almost any other country in the world, the solution to this problem would be easy: form a third party designed to appeal to those who believe in being "liberal" on social issues and "conservative" on fiscal/monetary issues; a party of, say, "responsible liberals" and/or (truly) "compassionate conservatives." But in America, third parties just don't happen in any meaningful way. Rather, these sorts of tensions are resolved by shifts within the two major parties themselves.

Perhaps it is only because I am one of them, but I think the next few federal elections will be battles for the votes of what I am calling the proto-libertarians. It seems doubtful that the Republican Party can soon free itself of the influence of the social conservatives. And, more and more, the positions the Party takes in deference to that faction will tend to drive the proto-libertarians away. Whether they just give up or move to the Democratic Party probably depends to a large degree on whether the Democratic Party can move toward them on issues of fiscal responsibility, taxes and deficits. If Miniter is right, that movement is already starting to occur. And, if it continues, many more voters who (like I) once counted themselves as staunch Republicans will end up finding in the Democratic Party much the lesser of two evils. At that point, if it occurs, the rise of Republican political power that began with Richard Nixon will begin to wane.

Martha Stewart Redux

I couldn't help but smile when I saw this headline in today's Washingtomn Post: Frist Says He Had No Inside Data On Stock. Oh really? That's what Martha said too.

There is no escaping this kind of things once it has started. Just ask Martha. Frist is toast. I can only hope that he "takes his medicine" as gracefully as Martha did.

Roe: The Poisonous Decision

"In our lifetime has there been a more politically poisonous Supreme Court decision than Roe v. Wade?"

So asked Charles Krauthammer in a Washington Post Op-ed piece a week ago Friday (September 16). He goes on to explain that, even though he himself favors legalized abortion, he thinks the consequences of the Supreme Court's decision have been terrible for the Republic:

Set aside for a moment your thoughts on the substance of the ruling. (I happen to be a supporter of legalized abortion.) I'm talking about the continuing damage to the republic: disenfranchising, instantly and without recourse, an enormous part of the American population; preventing, as even Ruth Bader Ginsburg once said, proper political settlement of the issue by the people and their representatives; making us the only nation in the West to have legalized abortion by judicial fiat rather than by the popular will expressed democratically.

Actually, I think the damge is even worse that Krauthammer realizes. Roe did not, by any means, disenfranchise anyone. Those who hate abortion are still free to vote and have done so in ever increasing numbers, culminating in the re-election of Geroge Bush in 2004 despite a four-year record of deceipt and ineptitude that was almost mind-boggling. Had it not been for Roe, it is very possible that there would be no Christian Right as a political entity. Had there been no Roe, something other than morality might well be the deciding factor in national elections.

And, worse yet, it is very likely that abortion would probably be legal in many if not most jurisdictions.

One needs to ask if it was worth it.

The Latest From The Culture Wars

The latest round in the evolution/intelligent design debate is being played out in Dover Pa: "A Web of Faith, Law and Science in Evolution Suit."

Frankly, the suit looks like a tempest in a tea pot, since here is all that it is really about:

The legal battle came to a head on Oct. 18 last year when the Dover school board voted 6 to 3 to require ninth-grade biology students to listen to a brief statement saying that there was a controversy over evolution, that intelligent design is a competing theory and that if they wanted to learn more the school library had the textbook "Of Pandas and People: the Central Question of Biological Origins." The book is published by an intelligent design advocacy group, the Foundation for Thought and Ethics, based in Texas.

I am no intelligent design devotee (see this earlier post) and I tend to agree with Steven Stough, who is quoted as comparing the debate over intelligent design to a "debate" over whether we are tied to the ground by gravity or rubber bands. But, I have to say that we probably do neither our children nor the cause of science much good by trying to hide the fact that there is controversy. After all, the students themselves already know there's controversy. Ignoring that controversy makes the class a bit irrelevant.

It seems to me that there is a "teachable moment" in all this. Rather trying to bury the controversy, why not bring it right out into the open and use the controversy to teach the scientific method: "OK, we have two theories here. Let's see what the evidence for each is."

My sense is that the best way to end this debate is not to hide intelligent design from, but rather to expose it to, academic consideration.

I am reminded in this of a very famous statement by Oliver Wendell Holmes in his dissent in Abrams v. United States:

But when men have realized that time has upset many fighting faiths, they may come to believe . . . that the ultimate good desired is better reached by free trade in ideas - that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.

In the free marketplace of ideas, I have little doubt that evolution will triumph over intelligent design. By refusing to allow the competition to be waged, however, we give intelligent design a patina of fearsomeness that, perversely, makes evolution appear weak and intelligent design strong.

Things Fall Apart. The Center Cannot Hold.

The news ia awash in stories like this one from the Washington Post:

Congressional Republicans from across the ideological spectrum yesterday rejected the White House's open-wallet approach to rebuilding the Gulf Coast, a sign that the lockstep GOP discipline that George W. Bush has enjoyed for most of his presidency is eroding on Capitol Hill.

The Republican Party has painted itself into a corner from which, barring a miracle, I very much doubt they can extricate themselves. Abadoning the grandiose, "we will do whatever it takes" promises their President made to the Gulf Coast last week will make Bush look even more ridculous and inept than he already does, will make Republican Congressmen look cheap and uncaring, and will give still more ammunition to those who argue that the Republican Party is racist and concerned only with the rich. Yet, they cannot keep those promises without totally alienating a significant chunk of their "base", since keeping the promises will involve tax increases (or at least deferral of promised tax cuts), massive increases in the national debt, and/or a Vietnamesque declaration of victory in and withdrwal from Iraq.

The situation we are in now demands genuine leadership. We are once again coming up against the Limits of Power, and we need to make hard choices. But, I am not at all sure where we will find the leadership needed to define those choices and make the right ones.

The Roe Effect

I missed it when it was first published, but in July James Taranto published an Op-Ed piece in the WSJ arguing (apparently serioulsy) that Republican political ascenedancy was the result, at least in part, of the fact that "The right to abortion has diminished the number of Democratic voters."

It is a statement of fact, not a moral judgment, to observe that every pregnancy aborted today results in one fewer eligible voter 18 years from now. More than 40 million legal abortions have occurred in the United States since 1973, and these are not randomly distributed across the population. Black women, for example, have a higher abortion ratio (percentage of pregnancies aborted) than Hispanic women, whose abortion ratio in turn is higher than that of non-Hispanic whites. Since blacks vote Democratic in far greater proportions than Hispanics, and whites are more Republican than Hispanics or blacks, ethnic disparities in abortion ratios would be sufficient to give the GOP a significant boost--surely enough to account for George W. Bush's razor-thin Florida victory in 2000.

Taranto goes on to suggest that this process has become something of a vicious circle for the Democratic Party:

It seems self-evident that pro-choice women are more likely to have abortions than pro-life ones, and common sense suggests that children tend to gravitate toward their parents' values. This would seem to ensure that Americans born after Roe v. Wade have a greater propensity to vote for the pro-life party--that is, Republican--than they otherwise would have.

There was another article I read a while back that made a similar argument about the well-publicized drop in the nation's crime rate; i.e. that the reduction in crime was due, in part, to the fact that the poor had a disproprtionately large number of abortions. My guess is that one could probably make a similar argument with regard to welfare: since the poor have more abortions per capita than the rich, and since the children of the poor are much more likely than children of the rich to be on welfare, abortion is the answer to the problem of welfare and, indeed, to poverty itself! Far from being a "bad" thing, it seems, abortion may be the key to solving many of the nation's most intractable problems.

In case you are wondering, I think all of this is nonsense. Moreoever, even if abortion has produced some collateral benefits, there is something profoundly depraved about thinking of abortion in these terms. Still, there is an enormous irony in Taranto's piece that made me smile. If he is right, then the Republican position on abortion is an act of attempted political suicide. If they succeed in making abortion illegal again, their "reward" will be a tide of poor, Democratic-voting, welfare- abusing criminals. One can almost hear Karl Rove tellling his acolytes: "We have to appear to be opposed to abortion to keep the 'base' happy, but the very last thing we ever want is for abortion to actually be limited." If the Democrats had soimebady like Karl Rove, of course, he would be saying the converse.

As they say, be careful what you wish for.

Causes of the New Orleans Levee Breaches

The sequence of events that resulted in the breach of the New Orleans levees, and how those breaches related to Karina itself, has puzzled me ever since my brother pointed out that the breaches appeared to have occured after the worst of the winds (and therefore, presumably, the worst of the strom surge) had passed. I have not fully figured it out yet, and I expect that it will be months if not years before all of the gory details are available. But I did finally find an article on that exact subject by John MacQuaid of the New House News Service entitled Anatomy of a Disaster.

The entire article is reprinted below. However, when I first read it, I had some trouble with the geography it describes, so I have added a couple of maps that helped sort that part out.

The first of these is a very simple map from CNN showing the levee system and points of collapse :

















(BTW: CNN also has by far the best set of satellite images I have seen so far. Well worth exploring).

Two other useful maps are linked below:

From the NYT: a whole series of maps showing more info on elevantions, Parish/Ward names, areas of flodding, etc., etc. For present purposes the most useful of those maps is the "Elevation Information" map under the "In New Orleans" tab at the top of the page)

From Google maps: an interacitve map of the entire area (linked with satlellite images) that you can zoom in and out and scroll up/down/right/left to get a good overview of the entire area.

One final note: Hurricanes rotate counterclockwise. Thus, as the eye of Katrina passed east of New Orleans, the winds initially came from the east and then gradullay shifted in a counterclockwise direction: coming from the east, then northeast, then the north, then the northwest, then, finally, the west. In a storm that moves north onto an east-west coast, as Katrina did, the worst of the storm surge generally occurs in the northwest quadrant of the storm, since this is the quadrant that is blowing seawater directly at the coast. This the reason the Gulfport/Biloxi area was so devastated. It is also the reason why initial reactions were that New Orleans itself had "dodged a bullet." It did dodge one bullet, since the last-minute northeasterly turn of the storm meant that Mississippi, rather than New Orleans took the brunt of the initial northerly surge of the Gulf waters. But New Orleans' peculiar geography meant that there were a couple bullets yet to come, since New Orleans also has signifianct bodies or water on its eastern side (Lakes Borgne and the Mississippi Sound -- see the Google Map linked above) and, more importantly, to the north (Lake Pontchartrain).

With the geopgraphy lesson complete, here's McQuaid's Article:

Hurricane Katrina dealt a devastating double blow to the New Orleans area on Monday, Aug. 29. First, storm surge waters from the east rapidly swamped suburban St. Bernard Parish and eastern New Orleans before the eye of the storm had passed the city around 9 a.m. Within hours, surge waters collapsed city canal floodwalls and began to "fill the bowl," while top officials continued to believe for another day that the danger had passed.

A rough reconstruction of the flooding, based on anecdotal accounts, interviews and computer modeling, shows that the huge scale of the overlapping floods -- one fast, one slow -- should have been clear to some officials by midafternoon that Monday when city officials confirmed the 17th Street Canal floodwall had been breached, say experts familiar with the city's extreme flood risks.

At that point areas to the east were submerged from the earlier flooding, trapping thousands, and low, gradually rising waters stretched from the Lakefront area near the breach across the city's center.

Federal officials have referred to the levee breaches as a separate and much later event from the flooding to the east, and said that they were unaware of the gravity of the problem until Tuesday, Aug. 30, suggesting valuable response time was lost.

"It was midday Tuesday that I became aware of the fact that there was no possibility of plugging the gap and that essentially the lake was going to start to drain into the city. I think that second catastrophe really caught everybody by surprise," Homeland Security Secretary Michael Chertoff said Sunday, adding that he believed the breaches had occurred that Monday night or Tuesday morning. But flooding from at least one and probably both of the two breached canals was under way all day that Monday.

Even that Tuesday, as still-rising waters covered most of New Orleans, FEMA official Bill Lokey sounded a reassuring note in a Baton Rouge, La., briefing.

"I don't want to alarm everybody that, you know, New Orleans is filling up like a bowl," Lokey said. "That's just not happening."

Once a levee or floodwall is breached by a hurricane storm surge, engineers say, it often widens and cannot be quickly sealed. Storm surges push waters in Lake Pontchartrain well above sea level and they may take a day or more to subside. So they keep pouring into the city -- most of which lies below sea level -- until the levels inside and outside the levee are equal.

Experts familiar with the hurricane risks in the New Orleans area said they were stunned that no one had conveyed the information about the breaches or grave risk they posed to upper-level officials, or made an effort to warn residents after winds subsided that Monday afternoon.

"I'm shocked. I don't understand why the response wasn't instantaneous," said Louisiana State University geology professor Greg Stone, who studies coastal storm surge dynamics.

"They should have been monitoring this and informed people all the way to the top, then they should have warned people," said Ivor Van Heerden, who models storm surges at the LSU Hurricane Center and provided officials in the Louisiana Office of Emergency Preparedness headquarters with models indicating the potential for flooding that could result from Katrina.

As Katrina approached the coast early that Monday, the easterly winds from its northern quadrant pumped a rising storm surge from the Gulf of Mexico into a marshy area due east of the city. There, two hurricane levees come together into a large V-shape. Storm surge modelers say that point acts as a giant funnel: Water pouring into the confined area rises up -- perhaps as much as 20 feet in this case -- and is funneled between the levees all the way into New Orleans.

The water likely overtopped the levee along the north side adjacent to eastern New Orleans, according to Army Corps of Engineers New Orleans project manager Al Naomi.

The surge poured into the Industrial Canal running through New Orleans before dawn and quickly overflowed it on both sides, the canal lockmaster reported to the corps. At some point not long afterward, corps officials believe a barge broke loose and crashed through the floodwall, opening a breach that accelerated flooding into New Orleans' Lower Ninth Ward and St. Bernard Parish.

The floodwaters moved quickly.

By around 8 a.m., authorities reported rising water on both sides of the Industrial Canal in New Orleans, in St. Bernard and in eastern New Orleans. The Coast Guard reported sighting residents on rooftops in the Upper Ninth Ward.

At 9 a.m., there was six to eight feet of water in the Lower Ninth Ward, state officials said. Less than two hours later, most of St. Bernard was a lake 10 feet deep. "We know people were up in the attics hollering for help," state Sen. Walter Boasso said that morning.

Sometime that Monday morning, the 17th Street Canal levee burst when storm surge waters pressed against it and possibly overtopped it, corps officials say.

Naomi said he believed the breach occurred mid- or late-morning after Katrina's eye had passed east of the city. By that time, north winds would have pushed storm surge water in Lake Pontchartrain south against the hurricane levees and into the canals, which normally drain water from the city into the lake.

Then the wind shifted to the west.

"As I remember it the worst of the storm had passed when we got word the floodwall had collapsed," Naomi said. "It could have been when we were experiencing westerly winds in the aftermath of the storm, which would have been pushing water against it."

Naomi and other corps officials say they believe that the water in the canal overtopped the levee on the Orleans Parish side, weakening its structure on the interior side and precipitating its collapse. However, Van Heerden said he does not believe the water was high enough in the lake to top the 14-foot wall and that instead the pressure caused a "catastrophic structural failure."

It's not clear when floodwalls in the London Avenue canal were breached, but Naomi said it may have been around the same time.

Once the floodwalls failed, water -- then at about eight feet or higher in the lake -- began to pour into New Orleans from the west, beginning the full-scale nightmare emergency managers and other officials most feared.

Naomi said that he believed corps officials had communicated the information about the breaches to the Baton Rouge Office of Emergency Preparedness

"It was disseminated. It went to our OEP in Baton Rouge, to the state, FEMA, the corps," Naomi said. "The people in the field knew it. The people here (in corps offices) in Louisiana and Mississippi knew it. I don't know how communication worked in those agencies."

Officials at the OEP and the Federal Emergency Management Agency could not be reached for comment. New Orleans officials were also aware of the 17th Street Canal breach and publicly confirmed it at 2 p.m. that Monday.

As the day wore on, the flood from the breaches made its way across the city, penetrating neighborhood after neighborhood.

As night fell that Monday, many outside New Orleans breathed a sigh of relief believing the city had been largely spared the worst.

But thousands were stranded on rooftops. And waters continued to rise overnight throughout central New Orleans from the breaches. By dawn, the flood stretched all the way from east to west and south into the city's crescent-shaped Uptown neighborhoods, and was coursing through the Central Business District. As TV helicopters flew over the city and beamed out pictures of the flooding, the extent of the catastrophe was clear. For most, help was days away.

Sept. 8, 2005

(John McQuaid can be contacted at john.mcquaid@newhouse.com)

Newsweek Stuff: And the "Duty To Die"

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

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

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

It's an idea that haunts me.

Feeling Bad For Brownie -- And Mad At The Senate

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

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

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

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

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

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

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

Why I Like John Roberts

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

The most puzzling part of the statement was this:

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

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

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

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

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

* * * *

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

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

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

Bush Bashing

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

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

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

Dear Mr. Bush:

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

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

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

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

Hermeneutics, Exegesis and Exposition

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

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

"In hermeneutics, exegesis must precede exposition."

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Contrary thoughts are welcome, even hoped for.

Evolution and Religion

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

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

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

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

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

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

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

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

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

Pat Robertson: Christian Extraordinaire

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

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

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

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

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

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

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

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

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

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

Enforcing Morality Continues To Trump Everything Else

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

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

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

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

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

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

Lest We Forget

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

Nearly as telling is this, from the same story:

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

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

Pat Robertson's "Prayer Points"

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

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

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

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

Pray that additional vacancies occur within the Supreme Court.

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

What CAN these people be thinking?

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

It's The Substance, Stupid

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

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

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

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

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

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

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

. . . .

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

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

Hmmm. Well, THAT clears things up!

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

A Rape In Pakistan

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

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

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

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

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

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

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

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

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

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

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

In Defense of "Bolton-ing"

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

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

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

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

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

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

But should he want to?

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

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

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

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

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

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

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

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

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

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