Pat Robertson's crime against Chavez...

John Dean, in a column, writes that Pat Robertson could be guilty of violating at least one federal law in his remarks about assassinating and then later amending his call to instead kidnap Venezuelan president Hugo Chavez.

Dean admits, at the end of the article, that a conviction in a criminal prosecution could be tough to win against Robertson. After reading the article, though, particularly his discussion of the jurisprudence in this area of law by the Federal Fourth Circuit Court of Appeals (where Robertson resides; and a so-called "law and order conservative" district to boot!), I think Dean may be too kind to Robertson. The Fourth Circuit Court of Appeals, Dean writes, requires only a finding that a "reasonable" person would have been shown to have been concerned about his/her safety--a finding that may be supported by a showing that Chavez increased military police detail around him, for example or perhaps even circumstantial or other evidence that a foreign leader might be tempted to avoid visiting the United States based upon a remark of someone as well-known and watched by devoted followers across the nation as Robertson. I also found a case on the web, admittedly a US military court case, which states that the "majority" of the Federal appellate court circuits, not simply the Fourth Circuit, has applied this "reasonable" standard test as to whether the threat uttered was a "true threat" under the statute.

I am not a lawyer specializing criminal law and did not know of the second statute or its interpretation.

To test whether the Bush administration's tepid and relatively quiet scolding of Robertson is a reasonable one by the Bushies, one may wish to engage in a little alternative history and ask:

"What would have happened if a radical Muslim cleric, residing in the US, had called for assassinating the Bush family friend, the Crown Prince of Saudi Arabia?"

One may reasonably surmise that the Bush administration would immediately begin a criminal investigation and likely issue an indictment against such a radical Muslim cleric and we'd be all saying...Hmmmm, I guess that cleric should face at least some prison time. But one must remember the venerable modern rule of law and politics:

It's only okay if you're a Republican ("IOOKIYAR" is how some web loggers write it). It is also why I am skeptical of these types of laws; because of their uneven and often politically motivated enforcement throughout history.

(Edited)

Pharyngula on phire these past few days

As a recovering humanities major, I learn so much at Pharyngula and I highly recommend it to those of a similar background as me. While I find Professor Myers often too strident against us Big Sky God believers and religion in general, what he has to say about science, and the wide breadth of other science oriented blogs to which he links us, makes him most valuable and enlightening.

He's also in my "Links" list, by the way...

How Republicans Conduct Business in Congress

Via MaxSpeak, this Rolling Stone article by Mark Taibbi is frieghtening as to how popularly supported legislation is torn apart and destroyed by the cabal running Washington, DC right now. I won't say there is no precedent for this (One might read of the famously corrupt Congresses of the late 19th and early 20th Centuries). Nonetheless, it is still quite breathtaking.

The bit about big time lobbyists like Akin Gump paying homeless men to stand in line so that lobbyists can go re-write government reports to their liking or plot with Tom DeLay to threaten weak-minded legislators to oppose what they publicly support--well, that is beyond anything the most biting satire can create. My one beef is that Taibbi would rather use a lame joke about not wanting to be seen in Congress than understand that the reason these homeless men did not wish to be photographed is because they are afraid they'll lose what is likely the best paying local job they can find.

UPDATE: See Eric Alterman's nice and short article about how the Republicans replaced "non-Republicans" with Republican operatives at various loybbying firms and how this affects the legislative process.

Sharon: Planned provocation in the West Bank

This article in the leading Israeli newspaper, Ha'aretz, makes clear what too many corporate owned media in the US have missed in the past two days: Israeli Prime Minister Sharon's plan to remove settlers from the Gaza area was part of his larger plan to extend and enhance Israeli dominance over the West Bank.

The Ha'aretz editorial states, however, that Sharon's eminent doman action in the West Bank two days ago was a "poorly timed provocation." Not really. Once one gets into Sharon's mindset, his actions, particularly the assassination of the Islamic Jihad members are consistent with his plan. Sharon knows that the terrorist forces would (and did) say, as it has on previous occasions after Sharon provocations, that they will seek "revenge," which means more suicide bombers are suiting up. However, as Sharon knows and these Islamicist murderous thugs don't understand, every time there's a suicide bombing, Sharon gets to take further retailitory moves, including further control over the West Bank.

This is a deadly game that Prime Minister Sharon and his predecessors have pursued in a fairly effective manner. Sharon himself has long dismissed Gaza as a concern because of the construction of roads in Gaza that favor quick and relatively easy Israeli military access. Sharon's primary interest has been in retaining most of the West Bank. Nothing has changed in Sharon's intent in the past year as the Gaza withdrawal was planned and eventually implemented.

And while we're at it, let's look back over the past 20 years. The Palestinians, at first glance, seem to be gaining as they just received the Gaza. On the other hand, there is little doubt that the Palestinians, had they been able to rely upon a Martin-Luther-King-oriented leader, would likely have guilted enough of the Israeli public (which doesn't like putting their children at risk in the military to protect settlements in the "occupied territories", which is what the Israeli government officially has called the Gaza and West Bank) to give back both the West Bank and Gaza years ago (Jerusalem is a different story, though).

The late Israeli diplomat Abba Eban has famously quipped that the Palestinians "never miss an opportunity to miss an opportunity." Eban was talking about an opportunity for "peace."

However, one may properly say this quip applies to both the Israeli and Palestinian leadership. The Israeli government should have, long ago, jettisoned the West Bank and Gaza. A wall along the Green Line (Israel's 1967 borders) made the most sense and any incursion by Arab nations over that wall could have been met with a retaliation of full force against the incursion forces or terrorists no different than any other nation has pursued in the past 150 years, at least.

For those who are extremists on the Israeli side, please don't bother with the old European Jewish ghetto-mind set and paranoiac whine: "The world would condemn the Israelis anyway. They'll only applaud when we lay down and die!"

Sorry. The Israelis are tough and can take the criticism, as they have continued to take criticism over the years. For example, the Israelis were condemned for bombing Iraq's nuclear facilities in 1981. But it wasn't long before the world moved on and over the years, most commentators and diplomats were happy at the actions Israel had taken aginst Iraq's nuclear facilities. The leaders of the nations of the so-called "West" (US, Japan, what we have called "Western" Europe) will not condemn Israel for defending itself or even going all out after such a hypotetical incursion. And if there was grumbling or criticism, again, the Israelis are in a position to take it and shrug it off.

(Edited)

Excellent article on Judge Roberts' philosophical views and background

While researching the ethics rules discussed in the previous post, I came across this excellent article about Judge Roberts, his mentor, the late Judge Friendly, and Roberts' judicial philosophies.

The article also reveals the fairly large gulf between modern so-called "conservatives" and the "conservatives" of 40 years ago, such as Judge Friendly.

Did Judge Roberts violate ethics rule on conflict of interest?

There is a growing tempest in the "liberal"-"left" blogosphere that Judge John Roberts violated unstated conflict of interest rules by talking with the executive branch about his nomination to the US Supreme Court and yet not recusing himself from cases in which the US government (meaning executive branch) was a party.

According to this web site, Judge Roberts has been, and continues to be, a member of the Washington, D.C. Bar. Thus, we may look to the DC Ethics Rules for initial guidance, though applicability of these rules to judges is not necessarily clear or consistent. In any event, I saw nothing definitively applicable to a government employee seeking another government position--particularly since the only way Roberts could be nominated from his current judge position to the US Supreme Court is through the executive branch. Most of the rules govern going from government to non-government positions. Plus, the federal rules I initially read involve employees of the executive branch (the White House), not the judiciary.

There is a set of ethics rules, however, entitled "Code of Conduct of U.S. Judges," which is direcly applicable to Judge Roberts, a U.S. Judge at the time he was ruling on cases involving the U.S. government (brought by or involving the executive branch as a party) and having discussions about ascension to the US Supreme Court.

For those who don't want to read the minutiae: My conclusion is that Judge Roberts most likely did not violate any conflict rules unless someone can tell me that other judges recused themselves from government party cases where they were on the "short list" for a higher judicial position--or there is precedent from the interpretation of the Canons, which are advisory and not binding, by the way.

ANALYSIS OF CANON LANGUAGE:

Here is the first relevant passage to consider:

"A. A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

"COMMENTARY

"Canon 2A. Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly. The prohibition against behaving with impropriety or the appearance of impropriety applies to both the professional and personal conduct of a judge. Because it is not practicable to list all prohibited acts, the proscription is necessarily cast in general terms that extend to conduct by judges that is harmful although not specifically mentioned in the Code. Actual improprieties under this standard include violations of law, court rules or other specific provisions of this Code. The test for appearance of impropriety is whether the conduct would create in reasonable minds, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired."

Pretty general, and in such generalities, Judge Roberts is in what we lawyers call a "gray" zone, meaning that he is potentially facing an ethics breach by conducting personal negotiations with and seeking a favor from a party with an action before the court.

Second, here are relevant sections of Canon 3 of the US Code of Conduct of US Judges:

"C. Disqualification.

"(1) A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances in which:

"(a) the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

"(b) the judge served as lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness;

"(c) the judge knows that the judge, individually or as a fiduciary, or the judge's spouse or minor child residing in the judge's household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be affected substantially by the outcome of the proceeding;

"(d) the judge or the judge's spouse, or a person related to either within the third degree of relationship, or the spouse of such a person:

"(i) is a party to the proceeding, or an officer, director, or trustee of a party;

"(ii) is acting as a lawyer in the proceeding;

"(iii) is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding; or

"(iv) is to the judge's knowledge likely to be a material witness in the proceeding.

"(e) the judge has served in governmental employment and in such capacity participated as counsel, advisor, or material witness concerning the proceeding or has expressed an opinion concerning the merits of the particular case in controversy." (Italics added--MJF)

Reading the italicized words, one may make a case that Judge Roberts violated these ethical rules. HOWEVER, I cannot support that conclusion based upon the words alone. First, I am unaware of any other judge in let's say, since the Canon was first prepared in 1973, who recused himself or herself from all legal actions before the court in which he/she was sitting involving the US government as a party while being considered for a higher level judicial position. One may, therefore, find a public policy exception that an application of the Code of Conduct against Judge Roberts in this instance would have adverse effects upon the operation of the courts. Think of how many judges would be constantly recusing themselves from government party cases because the executive branch approached judges at the district court level to become appellate judges. This is especially true of the DC Circuit Court of Appeals where most of the cases involve the executive branch as a party to actions before that court.

If, however, Judge Roberts was aware he was on the "short list" and was still agreeing to hear government party cases or ruling on government party cases, one may say he has ventured into a zone of a deeper gray. The canons are silent on this, but there is the following exception in the disqualification section conerning matters of a conflict based upon a financial matter (the word "financial" is sufficiently defined to not be twisted into meaning something that constitutes a raise as US Supreme Court justices make more money than an appellate judge):

"(4) Notwithstanding the preceding provisions of this Canon, if a judge to whom a matter has been assigned would be disqualified, after substantial judicial time has been devoted to the matter, because of the appearance or discovery, after the matter was assigned to him or her, that he or she individually or as a fiduciary, or his or her spouse or minor child residing in his or her household, has a financial interest in a party (other than an interest that could be substantially affected by the outcome), disqualification is not required if the judge, spouse or minor child, as the case may be, divests himself or herself of the interest that provides the grounds for the disqualification." (Italics added--MJF)

Here, one may argue Judge Roberts should not disqualify himself from cases which he has already "worked up", but should disqualify himself from new cases while on the short list. Or perhaps he should begin to exercise discretion in potentially controversial decisions such as the "terrorism" case (the Hamdan decision). Again, however, the Code of Conduct for US Judges is not a requirement to be followed, but merely a fairly strong "suggestion."

Finally, something tantalizing for those who want to be partisan, though again I have problems enforcing that statute here:

"18 United States Code § 211. Acceptance or solicitation to obtain appointive public office

"Release date: 2005-08-03

"Whoever solicits or receives, either as a political contribution, or for personal emolument, any money or thing of value, in consideration of the promise of support or use of influence in obtaining for any person any appointive office or place under the United States, shall be fined under this title or imprisoned not more than one year, or both.

"Whoever solicits or receives any thing of value in consideration of aiding a person to obtain employment under the United States either by referring his name to an executive department or agency of the United States or by requiring the payment of a fee because such person has secured such employment shall be fined under this title, or imprisoned not more than one year, or both. This section shall not apply to such services rendered by an employment agency pursuant to the written request of an executive department or agency of the United States." (Italics added--MJF)

This last quote came from Title 18, Chapter 11, of actual US laws (not "suggestions"), entitled "Bribery, Graft, and Conflicts of Interest" regarding all federal employees. The question, however, is this: Is an appointment to the US Supreme Court a "thing of value"? Not likely as it is a position, not a "thing." I would read that phrase "thing of value" as something material in the corporeal sense.

Should Senators nonetheless be able to question Judge Roberts about this if there was a violation of these ethical rules? Yes. Again, however, I would advise not doing so until someone further researches the law and deteremines that (a) Judge Roberts' conduct should be a test case for reasons that are grounded in good government, not partisan opposition, and (b) there is some reason to believe, either in precedent (one has to order opinions as they are not available on the web) or evidence of intent to cover this instance, the canons or 18 U.S.C. 211 would apply to Judge Roberts' conduct.

In other words, I remain a skeptic about this particular subject until I find information that would lead me to apply such a conflict rule, under the same or substantially the same circumstances, against a judge I supported for nomination or confirmation to the US Supreme Court. And for those who don't regularly read this blog, I strongly oppose Judge Roberts' nomination to the US Supreme Court to replace Justice O'Connor. If he was replacing Rehnquist, I would probably, if a Senator under these circumstances, consent to the appointment as it's essentially an even switch in that instance.

UPDATE: Here is an article by three partisan, anti-Roberts law professors from a week or so ago. They think Roberts violated conflict of interest rules and cite at least three court cases. However, only one of the cases has any relevance to the situation facing John Roberts. Even then, the facts in that single case involved a judge who was seeking a job with the US Attorney General's office local branch; the same local office which was trying a case in front of him at that very moment. Roberts is not trying to secure a management job at the A.G.'s office. Roberts has been seeking to stay a judge, is already an appellate justice at the DC Court of Appeal (the most prestigious appellate court in the nation) and is now simply going up to the last level: the US Supreme Court. Again, the three law professors don't show whether any other judge, such as Ginsburg or Breyer, recused themeselves from government prosecution cases during the Clinton administration's vetting process.

But, yuck! Moments after I blog this, I find that FoxNews agrees with me and states that Breyer and Ginsburg did not recuse themselves from government cases they were handling at the appellate level while being wined and dined for a nomination (See also: Think Progress' point that the pro-Roberts defender recently worked for the Bush administration). Oh well. I guess I'm gonna lose my anti-Bush street cred on this, aren't I?

(Edited, including the update, for clarity and correct some links)

Elite journalists in the village called Washington DC

Digby has an excellent post, citing this other post about how elitist and just plain deceitful our leading corporate media denizens can be--particularly those who work the NY-DC loop and are "in the know."

This is not new, though, and has gone on for the past one hundred years. It does not, however, make it acceptable. It remains an outrage in every generation.

Robert Parry, who was perhaps the best American investigative reporter during the 1980s (and to paraphrase Sy Hersh, "Aren't all reporters supposed to be investigating things?"), and who broke various important stories at the AP during that time, has written of a gathering-of-elites dinner he attended not too long after joining Newsweek. It was during the time of the trial of then-former President Ronald Reagan's aide, Adm. Poindexter, and the pressing question of the day was whether Poindexter would tell the truth: That Reagan knew damned well and alot about the Iran-Contra matters that became a series of scandals*. Here is Parry's illuminating story half-way through:

"A Deceitful Dinner

"That was the prevailing view on March 10, 1987, when I was asked to attend a dinner at Evan Thomas's home in Northwest Washington. The invited guests of honor were retired Gen. Brent Scowcroft, who had been one of three members of the Tower Board, and Rep. Dick Cheney, who was the ranking Republican on the House Iran-contra panel which was just beginning its work. Newsweek held these dinners so executives from New York and reporters in Washington could get to know key news figures in casual surroundings.

"The catered dinner was going well as a tuxedoed waiter delivered food servings and filled wine glasses. Across from me, the soft-spoken Scowcroft volunteered his thoughts. 'I probably shouldn't say this,' he mused, 'but if I were advising Admiral Poindexter and he had told the President about the diversion, I would advise him to say that he hadn't.'

"I was startled. Here was a Tower Board member suggesting to a group of journalists that he really wasn't interested in the truth after all. Not familiar with the etiquette of these Newsweek affairs, I stopped eating and asked Scowcroft if he understood the implication of his remark. 'General,' I said, 'you're not suggesting that the admiral should commit perjury, are you?'

"There was a brief silence around the table as if I had committed some social faux pas. Then, (Newsweek editor Maynard) Parker who was sitting next to me boomed out, "Sometimes, you have to do what's good for the country." (Parenthesis added--MJF)

"Parker's riposte was greeted with some guffaws and the uncomfortable moment quickly passed. But I was shaken by the exchange and the notion that an editor of a major publication would make light about proposed high-level perjury.

"In the following months, it also became clear that Parker wasn't simply joking. The opportunity inside Newsweek to pursue the truth about the Iran-contra scandal quickly ended. The deceptive testimony of senior officials, such as Defense Secretary Caspar Weinberger and Secretary of State George Shultz, was accepted with the same lack of skepticism as the pre-scandal denials had been."

Parry's article is here. And needless to say, Parry's time was relatively short with Newsweek. Parry's Consortium News on the web doesn't break stories as much as one would expect from a bloodhound like Parry, but, then again, Parry has not been given the opportunity that Sy Hersh has had at the New Yorker.

What is particularly galling is that Scowcroft had a personal motive for his outrageous statement: He was part of the so-called Tower Commission that had "investigated" this series of scandals and issued a report before the Poindexter trial that said Reagan's "laid back" style had left him the victim of zealous aides. How ironic, too, that I found the report's summary in a real-time 1987 Newsweek article that seems scathing, but really protects Reagan from impeachment.

Final comments: Gore Vidal often identified Washington DC as a village where there is endless gossip and cliques among the permanent village residents--except these villagers are more likely to cause the deaths of a few million people around the globe as they gossip. I would add to that observation that the permanent residents of the village tended to hate and therefore seek to "expose" and "ridicule" those particular presidents who came from middle class backgrounds and who never quite outgrew middle class sensibilities: Harry Truman, Richard Nixon, Jimmy Carter, and Bill Clinton. Reagan was an exception because he was a movie star who exuded "high class" and "charm."

One can hear these horrible people in those same places where Robert Parry happened to be one evening, saying things such as:

"I mean, really! Clinton running around eating those...those BigMac things from that fast-food restaurant. How dreadful!"

"Oh, you're so right! And his tasteless affairs--I thought we'd never recover as a nation from that embarrassment. I so wish he'd been impeached and sent back to that backwater town who-knows-where."

"Just like Nixon, who at least had the decency to leave when asked. Confidentially, I never forgave Nixon for that speech he made where he talked about his dog and his wife's cloth coat. Disgraceful! His poor wife, though. She didn't know how to entertain. And she had no sense of taste in clothing--"

"--or men!"

"Definitely."

While those fictional quotes are from rather old inhabitants, they represent the essential and continuing sensibility of our elite class of reporters and editors in the power corridor from NY to DC when they are among themselves at their private gatherings. They are less liberal or conservative than they are toadies to a certain power elite that remains no matter who was elected. These sorts of folks may have feared for their positions during the New Deal, but until recently, they haven't had a good scare since. The Internet, however, may be their upending, which is why they attack blogs with a ferocity they largely ignore the sickness that often spews out of so-called "talk radio" or the television chat and scream shows.

* (Don't believe Reagan knew? Then read this short piece by Mike Kinsley, or read Theodore Draper's brilliant "A Very Thin Line" (Hill & Wang, 1991); the Publishers' Weekly blurb at Amazon is unfortunate as the reviewer obviously did not read the book very carefully).

(Edited)

"Living Document" doesn't mean "nihilist"

This is perhaps the most cyncial column I've ever read by Professor Erwin Chemerinsky (I have no experience reading his co-author, Catherine Fisk, and cannot discern her contribution to this article). Their article in USA Today on August 23, 2005 is a brief for judicial nihilism more than anything else, particularly because it was written for a non-lawyer audience. In their article, which tells us how "judges make law and always have," they showed little understanding as to how a non-lawyer audience will respond to such a statement as they expressed it.

For example, the professors write:

"Supreme Court justices must interpret the broadly worded provisions of the Constitution and decide the meaning of vague terms that protect 'liberty' or prevent government from the 'establishment of religion' or from imposing 'cruel and unusual punishment.'"

This is in support of their point that "judges make law." Well, yes, these constitutional terms are vague terms (as I argued here). However, 200 years of jurisprudence have made these terms and phrases far less vague than when Madison wrote Federalist Paper no. 37 (see again my post).

I now return to the professors' ultimate ending statement that set me on edge:

"We can disagree over court decisions. We should debate the kind of law that John Roberts would make as a member of the country's most powerful court. But we should do so in a way that accurately reflects what everyone knows about the legal system: Judges do make law and always have." (Italics mine)

Here the professors are at least implying, if not expressly stating, that judges are "making law" the way the legislature do. The professors know this is wrong, but don't say so in any way that a non-lawyer would recognize. For example, courts must work with and as much as humanly possible, respect and defer to precedent, i.e. previous higher court opinions. While the US Supreme Court has less fealty to precedent, nonetheless, precedent is highly prized for any justice's opinion on a given case. Further, courts must use legislative history and interpretative tools in applying statutes to facts before them. Both of these examples are clearly unlike legislatures, which can decide to completely revamp or reject previous law and rewrite the law almost at will, or at least political will.

With so many people believing that "living document" means "nihilism," the professors' clever rhetoric reenforces the negative view of what it means when one says the US Constitution is a living document.

What then does it mean to have a constitution be a "living" document, especially since the two professors won't define it, either?

To this trial attorney, a liviing document means what the esteemed professor Ronald Dworkin was talking about when he spoke of judges maintaining "integrity" in the law. More specifically, this means that if one is a justice at the US Supreme Court and hearing only 50 to 80 cases a year, that justice ought to think and read an awful lot before deciding a case--and should actively take part in oral argument and use one's practical life experiences, which hopefully are more broad than we've seen too often in Supreme Court justices in recent decades (Justice William Douglas being a bad example of practical life experience, for reasons Dworkin has written elsewhere, but not available on the web).

A justice who wishes to maintain integrity in the law must first and foremost review and understand the facts of a given case by giving due credence to not only the briefs of the parties, but the briefs of experts and other amicus briefs from interested outside parties. Too often, we allow ourselves to let our ideology lead and denigrate facts that may interfere with our ideology. The facts, however, are often vital to helping us understand the limits of our ideological views and to recognize that we often have competing ideologies within each of us; meaning our ideologies conflict more often than we think!

After the facts are reviewed, we must review, analyze and parse the text of the law to be applied, particularly when concerning ourselves with a statute or a constitution (whether state or federal). However, unlike so-called texturalists, one does not end one's analysis there. One must also consult court precedent. If there is none, or if there is something that precedent has not covered, one must then consult legislative history, US general history and sub-histories (womens', black, labor, business, etc.) and understand how political battles shape people's points of view at different times in US history. When deciding matters such as abortion or creationism, one must also consult theological and scientific history, and understand the role of the judge should be to limit the court's involvement in such matters as opposed to displacing God and nature.

As I said in my previous post on originalism, a judge, in addition to the above, should be honest in putting oneself in the shoes of those he/she might rule against. The judge should live with the view of those on the possible losing end by analyzing the consequences of abuse of following the rule of law that favors the ones who may prevail. This exercise re-exposes one's own biases and forces a vital reexamination of...you know, the facts as well as the often competing law to be applied. It may also cause the judge to realize that overturning a precedent could have terrible consequences that are unintended (a trait that should appeal to people who style themselves "conservatives," no?).

If one follows these rules, and is in a position to find someone coming from a different ideological bent (which is usually the case with not only the competing briefs of parties, but the aforementioned amicus briefs), one can, using good faith--or integrity--reach decisions most of the time that can be understood by those who disagree as well as agree with the decisions.

I now get back to Judge Roberts: If Judge Roberts was replacing Rehnquist, I'd say give him the seat. Now. But, we just had a very close election where even Republicans who voted for Bush II a second time around want to maintain the right to privacy (not merely Roe v. Wade); do not want to have the Court return to a crabbed, non-originalist, late 19th Century view of the commerce clause, nor want to give the executive a wide-open deference with regard to personal (as opposed to economic) liberty. Replacing O'Connor with Roberts on two of these three main constitutional issues moves the Supreme Court further right (I'd even say on the commerce clause, Roberts could be more right-wing than O'Connor, based upon his "contracts" clause law review article).

Does this sound "political" and lacking in "integrity"? Yes. But I'm not dealing with how Judge Roberts should behave on the bench when I discuss the upcoming Senate hearings. I'm dealing with the political question of whether the Senate should confirm Judge Roberts to a lifetime appointment on the US Supreme Court. If the Senate engages in "politics" in choosing to decide whether to give a person a lifetime tenure judgeship on the Supreme Court, that is perfectly appropriate. The funny thing to me is that pundits want judges to be political, but Senators to be deferring and held to legal standards they should be holding for judges!

Personal story:

It is also funny to me that most people who know me think I'm a "radical" on many things, particularly economics. But, my judicial philosophy is more like Felix Frankfurter's than anyone else. For example, I did not agree with Justice Kennedy's jurisprudence in taking away our society's right to legislate for or against sodomy (I could see the same result based upon an "equal protection" argument regarding uneven enforcement, but Kennedy went further and in an elitist-wealthy-corporate liberal-Republican mode, decided what was "good" for the "culture." This was different from Brown because the 13th, 14th, and 15th Amendments needed some restoration for black Americans after very poor jurisprudence and interpetation by 19th Century justices on the US Supreme Court after the Civil War. Justice Kennedy's decision on sodomy was also different from Roe because, unlike homosexuality, abortion had a far more ambiguous and tolerant history, even within the Catholic Church (read Roe, dammit!). Plus, medical technology had changed from the 1700s to make it more safe to have an early pregnancy abortion than go through pregnancy. And since when did our Founders consider a fetus a person? Ironically, Roe gives fetal rights a trump over women's rights to the extent the fetus is viable--why anti-abortion group leaders don't seek legislation to define "health of the mother" in the 3rd trimester (see: Doe v. Bolton, the companion case to Roe) tells us much about their leaders' agenda against women's autonomy in general).

As a final statement, is there anything good about Chermininsky/Fisk's article in my non-humble view? Yes. Their best point was to remind people that there is right-wing "judicial legislation" as well as left-wing--er, rarely left-wing--or "liberal" versions of "judicial legislation." But the professors' are wrong to have inadvertently reenforced the trashing of a "living document" by implying "They all do it. Sit back and enjoy it." All of us should reject judicial nihilism. Instead, we should demand from our judges that they remain in awe of the judiciary as an institution. Further, they must do their best to represent most, if not all of the people, including the people with whom they disagree.

(Edited)

US Constitution: Originalism means the Constitution is a "living document"

Kevin Drum, over at the Washington Monthly, wades into the issue of originalism. Why we who support New Deal sensibilities buy into the garbage from rightwingers that they are the originialists is one of my most profound disappointments regarding our public discourse. Here is what I emailed to Kevin (and those who wish to peruse a prior post on the subject at MF blog, see here):

(UPDATE: Kevin linked to me in a follow up post. Thanks Kevin! And thanks to the commenters who found me from Kevin's posting.)

"Kevin,

Take a gander at Federalist paper no. 37. Then, read M'Colloch v. Maryland and Gibbons v. Ogden. The point of Madison (in Fed 37) and Chief Justice Marshall in the two decisions is that the use of broad terms in the Constitution recognized differences among the founders and that only experience will provide a sense of meaning to the broad terms. In fact, in M'Colloch, Marshall states the constitution must be a living document to have a fealty to it.

The three citations above also, somewhat paradoxically, posit a strong federal presence in the area of economic regulation passed by legislatures--as opposed to courts, which is what makes Scalia, Thomas, Roberts and the 19th Century Justices of the US Supreme Court so anti-originalist when they knock down economic regulations particularly designed to ameliorate capitalism's adverse effects on people. Really, now: The US Supreme Court, in M'Culloch sanctions a federally-owned bank for goodness sakes! A socialist system of banking? But of course. The Founders were mercantilists, not capitalists, which is a big difference as you well know.

About 10 or so years ago, I went toe to toe with Scalia on this when he was in Orange County. When I pointed this out, he agreed with me to the extent that, too often, we have no idea what "the Founders' intent" was in deciding a particular case. That is why, however, Scalia is a mess and not very bright in his thinking. His texturalism is a way to avoid messy constitutional history, but he has no problem pulling the rug out from under texturalism when he decides to wade into legislative and constitutional history in say...school prayer (though we know that Souter's concurring opinion in Lee v. Weisman (1991) had a great take down on Scalia's history). And worse, when it came to state sovereignty cases, he pulled out a theory (with his brethren, O'Connor, Kennedy, Rehnquist and Thomas) that made advocates of the right of privacy and a living constitution wince in pain (I note for example that Eugene Volokh and other "conservative" law professors are appalled by the reasoning of the state sovereignty five). Worst, when faced with the rejection of the Virginia Plan for term limits of Congressmen, Scalia ignored that in his support of Thomas' dissent in the term limits case in the mid-1990s. What happened to original intent there, Tony?

If I mean to say anything, it is this: Just as "liberal" and "conservative" are meaningless without a qualifier of "cultural" "economic" or "political" in front of those words, so too are averments that one is a "strict constructionist" or "originalist." The key issue for any judge who wants to be a great justice is understanding the deep and often contradictory currents that run through the history of our nation. To be an honest judge, one should always make sure, before one signs off on the opinion, to go through the exercise of how one would feel if one was on the losing end of the decision--and then going further to understand what is the potential abuse from the rule of law one is affirming. Stanley Mosk, the great and honest justice of the California Supreme Court, once remarked to me at a dinner we attended that my analysis of great and honest was the best he'd heard. I was very proud to hear that from him as I consider Mosk one of the best justices ever.

Yes, I'm a lawyer, gosh darn it! And I also think Bush has no "right" in a close election to put up for a nominee someone as extreme in his views as Roberts. It's that simple and the Dems should filibuster the heck out of that nomination."

End of email to Kevin Drum.

Note to readers: The key quote in Federalist Paper 37:


"All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications. Besides the obscurity arising from the complexity of objects, and the imperfection of the human faculties, the medium through which the conceptions of men are conveyed to each other adds a fresh embarrassment. The use of words is to express ideas. Perspicuity, therefore, requires not only that the ideas should be distinctly formed, but that they should be expressed by words distinctly and exclusively appropriate to them. But no language is so copious as to supply words and phrases for every complex idea, or so correct as not to include many equivocally denoting different ideas. Hence it must happen that however accurately objects may be discriminated in themselves, and however accurately the discrimination may be considered, the definition of them may be rendered inaccurate by the inaccuracy of the terms in which it is delivered. And this unavoidable inaccuracy must be greater or less, according to the complexity and novelty of the objects defined. When the Almighty himself condescends to address mankind in their own language, his meaning, luminous as it must be, is rendered dim and doubtful by the cloudy medium through which it is communicated."

I love that last line as it puts to rest what Madison would have thought of the Pat Robertson crowd who claim the Bible is perfectly understood or even understandable.

MJF

Fangs come out from right wing clerics...as usual

Pat Robertson has called for assassinating the Venezeulan president, Hugo Chavez, who, in addition to surviving an unpopular coup, has won two elections--including a referendum--in the past several years. And unlike a certain president in the US that Robertson supports, Chavez has maintained high poll ratings.

Robertson is afraid of Chavez because Chavez uses oil revenue to help people, unlike the Saudis, who do use oil as a weapon against the US. Chavez remains committed to selling oil to the US through Citgo oil stations, interestingly enough--though for some reason he's okay with selling a majority stake to the dreaded oil companies. To support this point, here is an interesting quote from a snarky and elitist article on KPBS' (San Diego public t.v.) web site on the 2004 election in Venezuela:

"Chavez has siphoned $1.7 billion dollars from the hulking, state-run Petroleos de Venezuela, or PDVSA as it is known worldwide, to pay for literacy programs, expanded educational programs, mobile clinics and subsidized markets for the country's poor, who make up more than 60 percent of the population. Cuba, meanwhile, has shipped thousands of medics to the country's hardscrabble barrios in return for cut-rate Venezuelan crude. As oil analyst Lawrence Goldstein, president of the New York-based Petroleum Industry Research Foundation, put it, 'Oil has allowed Chavez to be all things to all people.'"

The woman who wrote that ought to be ashamed. Cheney "siphons" money for himself and his company Haliburton. It is not siphoning when one uses oil proceeds to help an impoverished people. Notice also the quote from the president of the petrol industry foundation, attacking Chavez for having the audacity to use oil proceeds to benefit the people of Venezuela. "How dare he!?" these economic royalists (fascists?) cry.

Pat Robertson has essentially issued a "fatwa" no different than if he was a fundamentalist Muslim cleric. Birds of a feather...

A musical ray of hope

Roger Waters, one of the masterminds behind Pink Floyd, has written music for an ambitious opera about the French Revolution. It sounds excellent and shows once again what Western culture lost when the progressive rockers of the 1970s were hounded out of existence by greedy radio station general managers who wanted music to be almost as short as, and indistinguishable from, the commercials being played on their stations; rock critics, who were stupid, bigoted, failed English lit majors who wouldn't know a diminished chord from a major chord, attacking progressive rock in the pages of the Village Voice, Rolling Stone and major newspapers; and the demise of music appreciation courses in public schools that, in turn, spread ignorance of music theory to levels we haven't seen since the Dark Ages.

These factors fed into technological and economic trends as our public radio airwaves corporatized, a phenomenon that produced Madonna in the 80s, where marketing a personality became more important than the music (Does anyone play Madonna records from the 1980s' in their car or home these days? Not many, I bet). Worse, there is now the music-killing machine known as rap that spews forth nearly everywhere in corporate-owned media, including Disney Radio and its television programs. Disco in the '70s was bad enough, but rap is even worse in its degredation of music. Music has become merely a commodity no different than peanut butter. It is now almost impossible to imagine that there were bands like early Genesis, Gentle Giant, and King Crimson, or Emerson, Lake & Palmer and early Yes.

Notwithstanding the above rant, I have no idea if Waters' opera will be well-written and inspiring from a musical standpoint. I was not as impressed with "The Wall" as were many others; I'm more partial to earlier Pink Floyd works such as "Meddle" (1971) or "Atom Heart Mother" (1970). In any event, I look forward to hearing the opera and hope it may yet be brought to the US for a live performance. If it is well-written and inspiring, it may cause some of our nation's youth to want to learn and appreciate quality music.

The state of the corporate-owned media

Another sports commentator, Bob Costas, shows dignity in refusing to take part in the "missing cute blonde gal" circus. Kind of like Keith Olbermann (mentioned in the article, too) who essentially walked off his show in 1998 when he became tired of the wall-to-wall Clinton sex scandal coverage. I happened to see that moment and was jumping for joy that someone finally told the corporate media "emperor" that it had no clothes on.

We don't hear a peep, though, from the so-called "news" reporters, which tells us a lot about the different cultures of the "sports" commentators and "news" commentators in corproate-owned media. The sports guys, maybe because they see sports figures saying and doing what they want, decide they can stand up for themselves, too. However, unlike too many sports players, Costas' remarks about the incident, as stated in the article, show a degree of class very rare these days.

Costas is a favorite of mine and he proved once again why I admire him.

Homeowners in New London include landlords

I received a nice and prompt response from Dave Goebel, the Chief Operating Officer of the New London Development Corporation to my letter regarding the homeowners in the Kelo decision who are being made to pay court costs and attorneys' fees (note: the homeowners would likely have recovered attorneys' fees in addition to costs had they prevailed).

Mr. Goebel informs me of the following, which I think is quite interesting and shows how reporters have been misleading in making it appear this is merely about a neighborhood of long-time residents being kicked out of their homes in which they reside:

"Contrary to popular perception, quite a few of the Plaintiffs are
Landlords who do not reside in the structures. (In fact, only one individual has not rented out all or a portion of the structure in question for them, and that person may have done so for at least part of the time). For the past five years, since the properties were taken, the plaintiffs who are landlords have rented out apartments to tenants and retained the money. When the properties were taken by eminent domain the City was required to, and did, deposit with the clerk of the court the full fair market value for each property. This amounted to about $1,600,000. Each property owner had (and has) the option of taking this money out of court and, if they
consider that the amount is too low; requesting the court to increase the amount to what they think is the accurate fair market value.

"For example, the City paid $638,000 for a small apartment house owned by one of the plaintiffs. Although the highest court in the land has confirmed the City’s ownership of this property for the past five years, this plaintiff has retained more than $400,000 in rent collected from tenants during that time, while the City has continued to bear the burden of providing municipal services. (Italics mine)

"New London is a relatively small city, and many of our taxpayers
are aware of circumstances such as this. They would not necessarily
regard it as a 'punishment' if we ask the plaintiffs to account for the
us of properties paid for with taxpayers’ money. Very few cities would allow people to occupy property owned by the city for free.

"Like many aspects of this case, things are not as simple as they
first appear. We must remember that we are dealing with taxpayers'
money, while at the same time be cognizant of the circumstances of the
Plaintiffs. It is trying to balance all this that it necessary to arrive at any final decision in a reasoned manner."

After reading this, I went back to the Supreme Court decision in Kelo and was reminded of the following from the majority opinion:

"In all, the nine petitioners own 15 properties in Fort Trumbull--4 in parcel 3 of the development plan and 11 in parcel 4A. Ten of the parcels are occupied by the owner or a family member; the other five are held as investment properties."

So a third of the homes are not lived in by the owners who are suing. Also, parts of the other homes may be being used as rentals. Remember this too from the court opinion:

"The city of New London (hereinafter City) sits at the junction of the Thames River and the Long Island Sound in southeastern Connecticut. Decades of economic decline led a state agency in 1990 to designate the City a 'distressed municipality.' In 1996, the Federal Government closed the Naval Undersea Warfare Center, which had been located in the Fort Trumbull area of the City and had employed over 1,500 people. In 1998, the City's unemployment rate was nearly double that of the State, and its population of just under 24,000 residents was at its lowest since 1920." (Italics mine)

And let's recall that the definition of unemployment is when one is actively seeking work. A retired person, a student, a homemaker spouse, etc. are not considered within the definition of "unemployed."

Also, consider that, since the suit was filed at least five years ago, these landlords have had the advantage of taking and keeping rent monies throughout that time--after the legal transfer of the homes to city property through eminent domain in the year 2000. Some may say: "Make the landlords pay for the fees and costs, not the retired person who may only own his or her home and live in it." From a law perspective, such a position is neither viable nor fair. It shouldn't be about punishing business folks renting out their properties, either. It's just that we ought to have a more balanced image of who the petitioners were.

As usual, the story one hears of a lawsuit in the media is often dictated by the saaviness of the spokespeople on either side. It appears to me the Institute for Justice, which is a right wing organization that pushes the envelope for property rights the way the ACLU does for personal liberties, has better spokespeople in making us believe this is all about little old ladies kicked out of their homes to make way for the big drug company, Pfizer.

The above causes me to stand by my two posts on the Kelo decision: I would have reluctantly upheld the Connecticut Supreme Court's findings as passing constitutional muster (as in Justice Kennedy's concurring opinion). However, I have said, from a legislator's perspective, that the New London Development Corp. should have found a way to put in more park space or truly public facilities. Thus, I welcome and favor laws that will put more stringent limitations on eminent domain powers of city councils and local communities, particularly as it concerns sports stadiums and big box retailers such as WalMart.

Paul Begala on the anti-military right

Paul Begala (!) writes the following at the Talking Points Memo Cafe (Josh Marshall) (scroll down to second entry on page):

"I don't think they taught Larry Chad to desecrate crosses at the Columbus Avenue Baptist Church. And I doubt his Army buddies from Vietnam are proud to see him running over American flags and disrespecting a memorial for the war dead.

"So what could drive a true-blue - or should I say Bush red? - American patriot to commit such a heinous act

"Such is the hatred of the far right at the dawn of the 21st Century. And my how the optical worm has turned. Today it is the left invoking faith, flag and family, while the right destroys crosses. Today it is the left that honors the war dead, raises up a Gold Star Mother and publicly prays for our troops, while the right viciously attacks a woman who gave her country everything. Today it is the left that patiently and peacefully respects the Office of the Presidency, while the right diminishes the office by claiming it's more important for the President to go bike-riding with a sports hero than comfort the mother of a war hero.

"For the last two presidential elections it has been the Democratic Party whose nominee was a Vietnam War veteran, while the Republicans have sputtered out spurious defenses of their candidate's deceitful draft-dodging.

"On Thursday, Dick Cheney, who said he had "other priorities" in the Vietnam era, and so helped himself to five draft deferments, will address the 73rd Convention of the Military Order of the Purple Heart. I do not think he will express remorse for the callousness with which he explained his cowardice. Nor do I expect him to apologize for the shocking, mocking Republicans who, at their New York Convention a year ago, sported Band-Aids with tiny purple hearts to mock the blood shed by John Kerry and so many other heroes in that misbegotten war.

"No, Mr. Cheney, surrounded by body guards who would gladly give their life for him, will no doubt wrap himself in the flag. A flag Larry Chad Northern wrapped around his axle on Prairie Chapel Road."

MJF comments: 'Nuff said.

Kelo effect: Getting last pound of flesh?

Via MaxSpeak, we learn that the New London (Connecticut) Development Corporation (NLDC) has decided they want their attorneys' fees and costs from the losing parties, the homeowners who sued to protect their homes. While this is normally par for the course in such litigation, there is an air of punishment and retribution in this demand that is more than distasteful under the circumstances.

I have written the following letter to the Chief Operating Officer of the NLDC:

Mr. Goebel,

I'm an attorney in California who, at my blog, MF Blog, supported the jurisprudence in the majority and concurring opinions in the Kelo decision, though I was troubled by its facts. As one who supports New Deal values, I thought it important for the Supreme Court to defer to legislative action where the overriding primary intent was to restore a tax base to a non-rural community facing decline and blight.

However, that does not mean I support punishing people who are losing their homes in a case that was, after all, 5-4 at the Supreme Court, and contained facts that put this project at the far edge of fairness and close to a private land grab.

I humbly request that the NLDC forego seeking that last pound of flesh from the homeowners who, largely in good faith (I can only speak for some of the homeowners I read about) did not want to lose their homes. As an alternative, the NLDC could hold a few fund raisers and say, "We are pursuing an alternative method of raising money because we recognized that securing the money against the people losing their homes was wrong. We have never intended to penalize anyone. Our goal has always been to re-develop New London into a community in which we can all be proud."

It's your call, but your decision in seeking the fees and costs from the people who were fighting to save their homes will have an adverse effect on all redevelopment actions. The nation is watching.

Sincerely,

Mitchell J. Freedman

_____

As a side note, the article linked to above states the homeowners are being offered buyouts based upon the year 2000 values. This is less objectionable because why should those who fought receive a potential windfall for fighting the NLDC compared to those who chose not to fight and agreed to the buy out when it was offered? Fairness needs to work both ways to be...fair.

Lying, hypocritical bags of...

From Daily Kos, a list of the infamous quotes of leading Republicans talking trash about the president of the United States in a war situation. I recall several of these quotes very well and can only say that the title of this post is still too kind.

As I said, these people scream into mirrors when they think they're talking about someone else.

UPDATE: Bigger list from Crooks and Liars.

Both lists contain this juicy quote:

"Victory means exit strategy, and it's important for the President to explain to us what the exit strategy is."--George W. Bush, then governor of Texas talking about Clinton ordering US military action in Bosnia.

Caving in on the Roberts nomination?

Via David Sirota, the Washington Post has an article this morning that says there are already 56 votes for Roberts to ascend to a lifetime position on the US Supreme Court. That means it is likely that almost every Republican--including those "mavericks" like McCain, Hegel, Collins, and Chaffee (Specter may be the lone holdout)--are likely supporting a guy whose writings include his attack on the right to privacy in our Constitution and not merely abortion, who has written about reviving the jurisprudence that limits government actions in areas of economics (at least on behalf of the working class), and has shown an indifference in the areas of civil liberties that ought to concern libertarian-oriented Republicans.*

There is another way to look at the facts presented in the article, however: The nomination is still four votes shy of being able to stop a filibuster, which means Roberts remains a filibuster candidate. Yes, Frist could force a showdown over the filibuster, but that would create instant drama and the opportunity for grass roots activists to contact their Senators, including the so-called mavericks to not vote to stop debate. And I note in the article that Barbara Boxer is perhaps being shrewd in following Andy Card's famous advice about the war build up in Iraq: You don't begin selling a new product in August. You start in September, which is when the hearings on Roberts begin.

I am not happy to read the article in the Post this morning. However, let's just see how this all plays out, shall we? It remains more than possible that Boxer, Kennedy, Leahy, and Durbin are preparing for a filibuster. As they say in the westerns, "It's quiet out there. Too quiet..."

* Reason magazine, the premier libertarian journal in the nation, has taken a very passive position on Roberts' nomination, preferring to speak about process and horse race issues. The Reason folks' main problem--as with most of their fellow business libertarians--is that they are less concerned about the loss of private civil liberties than promoting a crabbed view of the commerce clause and contracts clause to help business interests at the expense of the community (the Kelo decision being the lone exception).

War and the intellectuals, part IX

Ever since Randolph Bourne dissected the war crier intellectuals who pushed our nation and the world deeper into what has become known as World War I, we have seen the spectacle of various insider commentators who claim to be "in the know" wind up being the most gullible or worse, biggest liars walking. The Bourne essay is worth reading as it applies very well today--even if it includes some assumptions that may be considered "pacifist." If it is too difficult to read online, download it. It is that powerfully argued and written.

Bourne was a first rate mind and an honest one, compared to the jokers dissected by Harold Meyerson in today's on line edition (issue date will be Sept 10, 2005) in the American Prospect. Meyerson identifies a few of the various war mongers who not only led (intentionally or unintentionally) the misleading of our nation, but shouted down critics as anti-American. These intellectuals, including William Kristol, Charles "the Mad Doctor" Krauthammer, Victor Davis Hanson, Thomas Friedman, and, most sadly, Christopher Hitchens were cheerleaders for the Bush & Co. deviousness, either out of ignorance, sloppiness or mendacity.

While Meyerson's article is must reading, I also cannot resist providing a taste of Bourne's essay cited above:

"The results of war on the intellectual class are already apparent. Their thought becomes little more than a description and justification of what is going on. They turn upon any rash one who continues idly to speculate. Once the war is on, the conviction spreads that individual thought is helpless, that the only way one can count is as a cog in the great wheel. There is no good holding back. We are told to dry our unnoticed and ineffective tears and plunge into the great work. Not only is everyone forced into line, but the new certitude becomes idealized. It is a noble realism which opposes itself to futile obstruction and the cowardly refusal to face facts. This realistic boast is so loud and sonorous that one wonders whether realism is always a stern and intelligent grappling with realities. May it not be sometimes a mere surrender to the actual, an abdication of the ideal through a sheer fatigue from intellectual suspense? The pacifist is roundly scolded for refusing to face the facts, and for retiring into his own world of sentimental desire. But is the realist, who refuses to challenge or criticise facts, entitled to any more credit than that which comes from following the line of least resistance? The realist thinks he at least can control events by linking himself to the forces that are moving. Perhaps he can. But if it is a question of controlling war, it is difficult to see how the child on the back of a mad elephant is to be any more effective in stopping the beast than is the child who tries to stop him from the ground. The ex-humanitarian, turned realist, sneers at the snobbish neutrality, colossal conceit, crooked thinking, dazed sensibilities, of those who are still unable to find any balm of consolation for this war. We manufacture consolations here in America while there are probably not a dozen men fighting in Europe who did not long ago give up every reason for their being there except that nobody knew how to get them away.

"But the intellectuals whom the crisis has crystalized into an acceptance of war have put themselves into a terrifying strategic position. It is only on the craft, in the stream, they say, that one has any chance of controlling the current forces for liberal purposes. If we obstruct, we surrender all power for influence. If we responsibly approve, we then retain our power for guiding. We will be listened to as responsible thinkers, while those who obstucted the coming of war have committed intellectual suicide and shall be cast into outer darkness. Criticism by the ruling powers will only be accepted from those intellectuals who are in sympathy with the general tendency of the war. Well, it is true that they may guide, but if their stream leads to disaster and the frustration of national life, is their guiding any more than a preference whether they shall go over the right-hand or the left-hand side of the precipice? Meanwhile, however, there is comfort on board. Be with us, they call, or be negligible, irrrelevant. Dissenters are already excommunicated. Irreconcilable radicals, wringing their hands among the debris, become the most despicable and impotent of men. There seems no choice for the intellectual but to join the mass of acceptance. But again the terrible dilemma arises, - either support what is going on, in which case you count for nothing because you are swallowed in the mass and great incalculable forces bear you on; or remain aloof, passively resistant, in which case you count for nothing because you are outside the machinery of reality."

And if you are feeling a bit scholarly and duty bound as a citizen to understand patterns in human history when there is the onset of war, please consider reading another of Bourne's noteworthy essays, "War is the health of the State."

The good news today, however, is something of which Bourne may be most proud: The Internet is providing a voice to dissenters such as Cindy Sheehan when the coroprate dominated media commentators ignore dissenters and then attempt to slander them when finally deciding they can no longer be ignored. Plus, the jurisprudence of Supreme Court Justices Holmes and Brandeis as to the scope of the First Amendement have become fairly bedrock to the point that even a Scalia has been uncertain about applying the type of restrictions we have seen proposed by the Busheviks--at least so far.

(Edited)

Social Security and Rove/Plame

Not related except by the fact that each shows how mendacious Bush administration offices are:

1. NY Times' Paul Krugman on Social Security's 70th birthday. Here is an interesting money quote from the article:

"Last week Jo Anne Barnhart, the commissioner of Social Security, published an op-ed article claiming that Social Security as we know it was designed for a society in which people didn't live long enough to collect a lot of benefits. 'The number of older Americans living now,' wrote Ms. Barnhart, 'is greater than anyone could have imagined in 1935.'

...

"(Yet,) the current number of older Americans as a share of the population is just about what the founders of Social Security expected. The 1934 report of F.D.R.'s Commission on Economic Security, which laid the groundwork for the Social Security Act, projected that 12.7 percent of Americans would be 65 or older by the year 2000. The actual number was 12.4 percent."

With a commissioner that stupid or dishonest about such a basic fact, is it any wonder that the commission consistently undervalues the gross domestic product in its analyses that, in turn, create doomsday scenarios that keep getting pushed back?

UPDATE: Here is Ms. Barnhart's contact information. I called the number there and learned she is "traveling" this week. I spoke with her communication director and gave her the Krugman citation and information. I also provided her information as to the trustees' dishonest method of calculating gross domestic product information. I said Ms. Barnhart would do well to attempt to respond to Krugman's article and that she should also explain how and why the trustees consistently undervalue the social security system's solvency when they are supposed to be trustees. Surprising to me, the communications director said she would ask Ms. Barnhart to contact me to discuss this when she returns. I'll be amazed if that happens, but I would love to speak to her about it.

2. This Village Voice article by reporter Murray Waas (an excellent investigative reporter with sources deep inside the Plame investigation) has me thinking that some of special prosecutor's chief lieutenants are now leaking specific information because they sense the Busheviks will never let this investigation go to indictment. They are hoping to release enough information to create enough momentum to support indictments of Rove, Libby, and folks up the line to "unindicted co-conspirators" Ashcroft and Bush himself.

Bush's ignoble cause--and the last opportunity to help Iraqis

Digby nails it. A must read. Bush and Cheney should be impeached if we as a nation are to have credibility in Iraq and elsewhere.

The only hope for Iraq that I have is that Cheney-Rove-Rumsfeld-Rice take advantage of the latest position of the Shi'ites and push for a federalism that may effectively separate the Kurds in northern Iraq, Sunnis in central Iraq, and Shi'ites in southern Iraq. I know the Sunnis don't like it because they won't have much oil, but my continued concern has been for the mostly secular Sunnis near and in Baghdad. Either they take autonomy and save their lives without oil or Iraq descends deeper into civil war fighting over oil. Without more US and other nations' troops to simply treat Iraq as fully occupied (which is not bringing "freedom" to Iraq; a prospect I can no longer support), that is really the choice Iraqis face.

(Edited)

Must find script...to stay on the script written by my handlers...

From Crooks and Liars (who I am putting on permanent links tonight!), this is a priceless moment as silly prosecutor, Jeanine Pirro reads her speech against dull, corporate centrist Hillary in NY.

The ad, which is produced admittedly by the Dems, has a wonderful ending as you hear her get back on script about what New Yorkers are not supposed to like about Hillary Clinton. Pirro is a pathetic opportunist. The only thing that worries me is that the Republicans are putting out their weakest candidates to help Hillary gain momentum toward 2008.

And for that, we who wish to wrest the government from the incompetent bunch running the executive and legislative (and increasingly judicial) branches, should be most worried.

Even Georgie Anne Geyer gets it...

James Wolcott, in the course of a deliciously tough post against neo-con bloggers like Instapundit and Roger L. Simon (no links deserved for those guys), links to an article I missed by Georgie Anne Geyer, who was a Cold Warrior "We-shoulda-kept-killing-Vietnamese" with regard to America's invasion and war against Vietnam back in the 1970s. Read the whole article as it is spot on.

Seems ol' Georgie, like Brent Scowcroft, Richard Clarke, and Chalmers Johnson, has become a "dirty rotten leftist like Chomsky" in realizing that GW Bush's invasion of Iraq has not simply harmed America's best interests--which should be horrible enough to any true patriot--but has actually helped the interests of mullahs in Iran.

The title of my post, to those uninitiated in the ways of the political insider world, is a take off on the canard, used by right wingers for the past two or so decades: "Even the liberal New Republic gets it! You left wingers are so out of touch!" Well, now. Even Georgie Anne Geyer knows that Bush (Cheney-Rove) is not simply a liar in his (their) policies, but, just as bad, incompetent to lead America.

Let's get that impeachment rolling, shall we? If anything, it will only be the latest example of how politicians follow public opinion; this time regarding Bush's continued stewardship of our nation.

Bush helps create al-Queda connection to Iraq

After the CIA informs us that Iraq is the new training ground for al-Queda, we have this report today from the Associated Press: "Alleged bin Laden Contact in Iraq Government."

Well, Mr. President, you finally proved there is a link between al-Queda and Iraq; except it was a link created by your policies.

Time for "conservatives" to show conscience

Here is the article from June 24, 2004 where Cindy Sheehan, the woman whose son was killed in Iraq, and who is now protesting in front of Bush's vacation home, made clear she was not happy with Bush even then.

Right wing propaganda outlet, FoxNews, has been shown to have lied (relying on Matt Drudge's twisted version of this article) by saying Sheehan was happy with Bush then and now is not. All anyone on FoxNews could have done is read the article on the web that shows how Drudge (wilfully?) misread the article to wrongfully argue that Cindy Sheehan was inconsistent--and realize she has been consistent at least since 2004.

And when one watches this O'Reilly segment from the web site Crooks and Liars, one sees Bill O'Reilly (scroll down to "Bill O'Reilly lowers the bar again") hold up a hard copy of a Newshounds web site article showing Sheehan's reaction to FoxNews' lies, which she called an osbcenity. However, O'Reilly never explained why she said what she said. This is particularly egregious when we note that it was O'Reilly who was leading the Drudge charge on FoxNews that Sheehan was inconsistent.

Any so-called "conservative" who thinks the smearing of this lady is not an outrage has no conscience and deserves no respect whatsoever. I am not suggesting for a moment that a "conservative" who supports the Bush invasion of Iraq repent on his or her views over this smear. I am instead demanding that such "conservatives" step forward and state that FoxNews, Drudge, Michelle Malkin, and a host of others have misrepresented Cindy Sheehan's views and that it is wrong to attack her based upon a distortion of her views.

As for O'Reilly and FoxNews, my opinion of them has never been lower.

UPDATE: A conservative blogger has stepped forward to hit the Busheviks and their toadies for their Stalinist attacks on Cindy Sheehan ("Stalinist" is my word, not his--though as a conservative, he may find it useful). His site is a fairly respected one and we can expect he will not be invited on any television talk show or radio show the way that putz Peter Beinhart of the New Republic as when he attacks "liberals" for not supporting Bush (Cheney-Rove) & Co.

"Justice" Roberts? Not yet. And kind words about them personally.

Today's NY Times contains the stunning announcement that Senator Arlen Specter (R-PA) has raised some pointed questions about Judge Roberts' extreme judicial philosophy against economic-oriented legislation.

And via Atrios, we learn why the NY Times might have had some reason to look into the Roberts' adoption of their two children. However, Atrios calls it "weird," while my reading of the information led me to believe it is entirely consistent with Mrs. Roberts' now-rigid Catholicism that probably appeared after years of secular-oriented, hard-nosed litigation in a large international law firm. It therefore causes me, as such media privacy invasions often do, to become more sympathetic to the Roberts, though not even close enough to vote him onto the Supreme Court. And if I am permitted to be more clear about my pop psychology, one wonders if career-woman extraordinaire Jane Roberts (more so than Hillary, who took some time during her early lawyer years to have Chelsea, appears to not have been as active a lawyer at the Rose Law Firm, and was probably maintained there as much due to her husband's political status in Arkansas as anything else) had guilt about not marrying younger and not having children before she reached an age where fertility treatments may have been necessary to help her conceive. Many litigation lawyers, by their late 30s, begin to wonder, "Is this it--forever?" and I deeply sympathize with her plight, if my assumptions are correct.

The point the snotty Washington Post article raised about the traditional clothes her children wore to the nomination ceremony could suggest overcorrection--though I believe we should all compliment Judge and Mrs. Roberts and say, "Good taste, Judge and Mrs. Roberts. And respectful, too. Thank you."

Overall, the more one learns about the story behind the adoption, the more I say, stick to the issues being raised about Judge Roberts' judicial philosophy and statements he has made publicly to others about important and sometimes controversial judicial decisions. Private lives tend to be complicated and people do what they can to cope with their private life decisions. The Roberts seem to me to have been a couple genuinely interested in adopting and nobody has even raised any inkling that they are anything other than doting, loving parents to these two young children.

The right wing commentators are correct, for once, that digging into private matters among consenting adults is wrong. However, they obviously have much to atone for in their treatment of the extramarital affairs of Bill Clinton. Their outrage regarding a prominent news organization checking out how the Roberts managed to adopt two different, non-related Irish-born children in Latin America in a relatively short period of time was, just as obviously, hypocritical.

CORRECTION: Sorry, Atrios. I re-read your post and realized you were merely saying the circumstances were "weird," not that it was weird for them to adopt children at their age and station in life. Again, sorry!

(Edited)

Religion equals love...doesn't it?

From Mark Kleiman, a post with a few links to articles showing how, too often, organized religion tends to organize hate fests more than it organizes festivals of tolerance and love.

And remember, it is the rightwing in America that gave bin Laden and Islamicists succor in the 1980s and into the 1990s. And it is the current rightwing in America who brought us chaos in Iraq that has played into the hands of al Queda...again.

Yet, all we hear on most talk shows from Sean Hannity, Rush Limbaugh, Bill O'Reilly, and the other television and radio commentators is that the "left" hates America and the "left" supports--wittingly or not--al Queda. These people are screaming into a mirror.

Attack of spam commenters

A spam commenter--someone selling a product--attacked this blog. I deleted the comment from each of the posts that were posted over the past 10 days. The spammer operates on Blogger and I have alerted Blogger as well.

I was not censoring someone's thoughts as to the substance of my posts, just in case anyone was wondering.

A trip to Grand Canyon

I've been away with my family for a few days. We visited Grand Canyon (no "the" as I learned--or more accurately, realized--that is the proper name).

None of us had been there before and we were all duly amazed and awed as we crept to the edge at different points along what is called the South Rim. However, my wife and I each experienced something disappointing which I believe stems from our modern sensibilities of viewing television and computer screens where all sorts of awesome things occur before our eyes: There was a nagging sense that as one looked out further into the vast distance, the canyon did not seem real.*

For me, however, the way I fought that sense was through the science of Grand Canyon, particularly the geology of the canyon and the immense power of the Colorado River. This summary of the river also tells us of the effects of damming it in the early 20th Century, though such a view ignores the damming's salutary effects in terms of providing water and power to the southwest region.

While there, I also became enamored with the life and story of the architect Mary Colter (I purchased this brillantly written and illustated (photographed) book I linked to and have been avidly reading it. While the photos alone are worth its price, the prose has been superb).

Mary Elizabeth Jane Colter (1869-1958) designed various buildings inside Grand Canyon National Park (the linked photos do not do the structures justice) and also designed portions of the Union Station in Los Angeles and other public places. She was ahead of her time in understanding how to design buildings that were consistent with the cultural and natural history of a particular area, and apparently unlike other architects of her time, she was meticulous to the point of designing not merely the buildings, but also its interior decorations right down to the cups and other silverware to be used within the building.

Robert Hughes, the wonderful art and architecture critic, has an interesting take on Colter. He says:

"A gifted architect named Mary Colter, whose name deserves a permanent place among the pioneers of the American theme-park mentality, constructed ancicent kivas and 'prehistoric' watchtowers with still 'older' ruins on the south rim of the Canyon (sic), with a close eye for archaeological accuracy."

My response is that while she can be seen as a pioneer in the presentation of what Daniel Boorstin perceptively called "The Image" of American life (particularly with regard to the myths of cowboys and "westerns"), we should focus our attention on her creativity and respect for the culture and land she showed in designing her structures.

Having said that, I should note that Mary Colter never married and there is an understanding she was a lesbian (scroll down on link); my research on the web revealed no books (including the linked book above) to confirm this understanding, however. While this aspect of her private life is of little relevance, again our modern sensibilities cause us to wonder: "Oh, she never married? Never seemed to have a boyfriend? Ah-ha! She was a lesbian!" This wonderment as to who she had sex with again causes us to lose focus on her awesome achievements, much as we may lose the grandeur and majesty of a natural wonder such as Grand Canyon after seeing so many films where all sorts of reality-bending images occur before our eyes.

A final comment: Every time I visit a national park or museum, I am reminded of the dedication and knowledge of the park employees that goes unremarked when we discuss the importance of government in our lives. The rangers and guides at the park and canyon were well-versed in the details of the science and history of the park and canyon, as well as the people, animals, insects, and plants that have lived there throughout the ages. Also, the last night we were there, we attended a lecture by one of the rangers who delivered a clever and often funny slide show where he used various lines from William Shakespeare plays to describe an apochyphal hiking trip with Shakespeare through parts of the canyon. One "poetic license"-based line concerned bees that attacked another hiker who had surprised the bees: "Oh what bees these mortals fool!"

* My wife has a different reason for her same nagging sense. She says, matter of factly, that our eyes lose perspective in attempting to discern vast distances. I cannot disagree with that, though I believe this sense is heightened by the modern world of blue screens where actors interact (actually fight) with creatures in "places" that reside at the edge of imagination.

(edited for links and some phrasing)

A Must-Read Opinion-Editorial in the WashPost

Via Atrios, I read this Uwe (pronounced oo-vuh) Reinhardt essay in the Washington Post this morning. It nails the phony "support of our troops" mantra from those who want to stay the course in a disaster that was based upon the administration's lies and incompetence.

Reinhardt is a giant in analyzing the misallocation and waste of resources in our medical insurance system. I recall him as a voice of sanity during the early to mid-1990s when he appeared on McNeil-Leherer with the morons who could not get passed the banshee scream of "no socialized mediciene!" He would politely explain with factually-based detail, in his polite, soft German accent (Reinhardt is a native of Germany who knows well the abuse of nationalism by demogogues), how and why the American medical insurance system is inefficient and wasteful. Here is Reinhardt's class day speech to Princeton students in 1995. It has his mischevious and playful meter turned up, but there is one line in it that sums up Reinhardt, told to him by a rabbi: "A culture will be vibrant, strong and lasting if every decision a generation makes is washed by one fundamental question: What will it do to or for our grandchildren?" And here is a brief interview with him that gives us a glimpse of his knowledge of his area of study.

That his son joined the Marine Corps upon graduating Princeton in 2001, despite his father's particular, emprically-based arguments over how our society devalues its soldiers, tells us that despite those particular arguments, Reinhardt's raised his son with his best values that we as a society owe a duty to help and protect each other through our government. Uwe knew our society has failed in that duty, however, and he was merely trying to protect his son from harm, which is another admirable value.