Read It Here First

So, Israel is calling off the aerial assault for 48 hours . . . or, that was the big story this evening. Is it any coincidence, gentle readers, that Condi left Jerusalem this evening, East Coast time? The Qana bombing didn't make the Sunday papers, and it will be pushed off the Monday front pages in the United States by the "cessation." By Tuesday, the story will have moved on. If you were skeptical, like me, you might imagine this conversation . . . .

CONDI: Look, Olmert, we need something good in the Monday morning papers. This Qana bombing, that's just too horrible. We need a good story for the front page. Public opinion and whatnot.

OLMERT: How about if we call Hizbollah a "terrorist organzation"?

CONDI: Shit. Shit. Who the f**k am I talking to? Get serious, man. What are you smoking? That is so-o-o-o last week.

OLMERT: How about if we claim that the civilians killed were "Hizbollah civilians"?

CONDI: Fox News already got that.

OLMERT: How about if we say we'll stop the air attacks?

CONDI: Wait a second. You're going to stop the air attacks?

OLMERT: Um, no. But what if we say that we will, long enough to get the story on the front pages?

CONDI: Olmert, my man. Now you're talking.

Now, of course, that is how it would sound in Jackie Brown. But I'm guessing that this "cessation" is a media ploy and no more. Think about it.

F*****g J*****h LAPD

So, Christ-loving Mad Max Mel Gibson got busted for a DUI late Friday night, and, after his arrest, spewed a series of anti-Semitic slurs. Like, um, the Jews pulled him over, or somesuch.

Now, everybody knew Mel Mel was an anti-Semite, but he's outta the closet now.

But here's the rub, gentle readers:

Gibson, 50, was arrested for investigation of driving under the influence of alcohol after deputies stopped his 2006 Lexus LS 430 for speeding at 2:36 a.m. Friday. Sheriff's spokesman Steve Whitmore said deputies clocked him doing 87 mph in a 45 mph zone.

A breath test indicated Gibson's blood-alcohol level was 0.12 percent, Whitmore said. The legal limit in California is 0.08 percent.

Driving 87 in a 45 zone? If you are driving drunk, and I'm not endorsing it, but still, rule number one is no speeding. And he was only .12? .12? Just .12, and he starts spewing jewhatespeak? In my honest opinion, there's really no "I was drunk" excuse worth a good G-d damn under .16. Oh, sure, I know the legal limit now is .08, but that's the result of the Morality Police cracking down on .09 driving. Period. So .12 is barely over the old, more humane, .10 limit. Barely. Mel Mel was barely drunk . . . and out comes the truth. He hates Jews. (Who knew?) Again, this is one man's opinion, but no self-respecting lifelong alcoholic, as Gibson now claims to be . . . would hide behind a .12 blow. (I had an aunt who crashed her car into a building at, I think, .35. She wasn't even hospitalized. Now, again, not endorsing, but if you want to claim "I've got a problem," that's a much stronger case.)

Mad Mel has apologized, but we still don't know exactly what was said. Maybe if he gets like .11 and goes on Oprah, we can all find out. I'm waiting . . . .

Strange Bedfellows, This Time Not in the Lincoln Bedroom but in the East Room

Juan Cole, on Democratic criticism of the Iraqi P.M., a member of the Dawa party (one of the largest parties in the Iraqi government of "national unity"):

The members of Congress also don't seem to realize that the Iraqi Dawa helped to form the Lebanese Hizbullah back in the early 1980s. The Dawa was in exile in Tehran, Damascus and Beirut and it formed a shadowy terror wing called, generically, Islamic Jihad. The IJ cell of the Dawa attacked the US and French embassies in Kuwait in 1983, in an operation probably directed by the Tehran branch, which was close to Khomeini.

My understanding is that Nuri al-Maliki was the bureau chief of the Dawa cell in Damascus in the 1980s. He must have been closely involved with the Iraqi Dawa in Beirut, which in turn was intimately involved in Hizbullah. I am not saying he himself did anything wrong. I don't know what he was doing in specific, other than trying to overthrow Saddam, which was heroic. But, did they really think he was going to condemn Hizbullah and take Israel's side?

OK, let me get this straight. The Iraqi P.M., our friend and ally in the war(s) against the terrorists, with whom our president held a press conference in the East Room of the White House yesterday, was the bureau chief of an Islamist party in Damascus in the 1980s, and was involved or even helped set up Hezbollah . . . . Today, of course, our leaders tell us that "Hezbollah is a terrorist organization." But this guy, standing next to the president in the East Room, has ties with that "terrorist organization." But that never gets brought up, by anyone, other than Juan Cole?

I can see that the terrorists were Saddam's enemies, and Saddam was "our" enemy, so the enemies of our enemy are our friends. But. But, doesn't that mean that we are no longer actually fighting against the terrorists? At least, I guess, not against the Shia ones.

Don't try to bring Iran into this. It will make your head explode.

What Would Jefferson Do?

I've been teaching Jefferson and Hamilton in my American Political Thought class over the last week, and it amazes me just how similar the debates of that era often sound to those of ours. Despite the tone of relative moderation he takes in the Federalist Papers, Hamilton is clearly a closet monarchist. As Madison records his remarks at the Convention,

The extent of the country to govern discouraged him. . . . This view of the subject almost led him to despair that a Republican Government could be established over so great an extent. He was sensible at the same time that it would be unwise to propose one of any other form. In his private opinion he had no scruple in declaring, supported as we was by the opinions of so many of the wise and good, that the British Government was the best in the world: and he doubted much whether anything short of it would do in America.

Drawing on Hume's teaching on factions and Montesquieu's "small republic" theory, Hamilton never stopped doubting that "republicanism" could succeed, which is why he favored strong and unaccountable executive power, a position that the Bushies have enthusiastically embraced. In a letter to Col. Edward Carrington, Hamilton even accused Jefferson and Madison of having a "womanish attachment to France," a reminder that the wingnuts didn't just invent that strategy for use against Mssr. Jean Kerry. (As an historical aside, it is interesting that Hamilton inverts the traditional explanation for French foppery, since the English view of French "effeminacy" developed in the 17th century at least in part because of France's comparative lack of freedom and self-government, whereas the authoritarian Hamilton now derides that very pursuit in the Jacobin radicals he sees as Jefferson's true allies.) Looking back at those debates at the Convention and the widespread fears of British monarchy expressed by the vast majority of delegates, even those favoring a strong executive, it really is amazing that the Bushies could claim Hamilton's view of executive power as the strict constructionist consensus of the era.

Jefferson's response to Hamiltonian influence on the Washington and Adams administrations was to mobilize the electorate for radical change. In rereading Jefferson, I'm always struck by just how radical his views were. He's an unapologetic champion of popular sovereignty, individual liberty, scientific rationality, limited government, and the separation of church and state. His views on the redistribution of wealth would place him on the left of today's Democratic Party. For Jefferson, "the earth belongs in usufruct to the living: that the dead have neither power nor rights over it. The portion occupied by any individual ceases to be his when himself ceases to be, and reverts to the society." The dead had no rights, so there can be no natural right to inherit their wealth. Jefferson was especially proud of his bills to prohibit entail and primogeniture: "These laws, drawn by myself, laid the axe to the foot of pseudo-aristocracy." He believed fervantly that "legislators cannot invent too many devices for subdividing property." What are the Bushies doing this week? Well, for one, they're firing half of the IRS staff that investigates estate tax cheats.

True, Jefferson had his famous flaws and contradictions. He was deeply sexist, and, although he hated slavery, he was also a racist, at least until late in his career. He never freed his slaves. In an anticipation of Clinton, he gave us our first presidential sex scandal, though it did no more damage to his popularity than it did to Clinton's. As conservatives like to point out, he also embraced laissez-faire, although, as they neglect to add, he was not advocating "laissez-faire capitalism," but a pre-industrial laissez-faire agrarianism, which is a VERY different thing. Jefferson's laissez-faire was an egalitarisn attack on Hamilton's policy of big government favoritism toward wealthy and powerful corporate interests, so it resembles today's populist critics of Halliburton more than anything else. Jefferson also favored a narrow reading of the Constitution, although he berated the view that it was a sacred document, or that the founding generation's views of it should be determinative: "no society can make a perpetual constitution, or even a perpetual law."

I don't know that Jeffersonian politics would fly today, or that they could dominate our landscape as they did that of the early American republic. The world certainly has changed in two centuries, and the U.S. has become a far more Hamiltonian place. Yet Jefferson is still the greatest of American visionaries, and his professed ideals touch the hearts of both liberals and conservatives far more than those of Hamilton. The Bushies may have been unwise to bite so fully upon the Hamiltonian apple. Maybe this would be a good time for a "little-r" republican revival. Jefferson claimed that you ought to have a revolution every 19 years. How long before we get ours?

Selling the Other Iraq

When you live in D.C., you get used to seeing political advertising, which is not "campaign advertising," but rather advertising paid for by interest groups that supports or opposes a particular piece of legislation. Often, the ads will reference a specific bill number. It's one of those things that you see on D.C. tv during, say, "The McLaughlin Group."

Last night, while cooking dinner, I saw this ad for The Other Iraq. The Other Iraq is Iraqi Kurdistan, which, if you follow the link, you will find is now advertising on U.S. television. I was watching some kind of cable news, and I'm in D.C., but I was wondering, have any of you guys out there in Fly Over Country seen these ads?

Follow the link and watch the ads. Does this look like more Administration P.R. to you? Something like this: "Well, sure, Baghdad is one big car-bombing killing field, and things in two-thirds of Iraq are well past 'verging on' on a civil war, but the northern third of Iraq is beautiful, peaceful, democratic, and, most important, grateful for the U.S. invasion of what was, well, not really their country, after all."

But I think that the Administration is still losing ground on the question whether the war itself was "worth it" to the American people.

News Adverts Are Sick

Every once in a while I punish myself and decide to watch the evening news on one of the original networks of ABC, NBC or CBS. Tonight I decided for a double dose of pain and watched CBS at 6:00 and ABC at 6:30. The news is really becoming progressively sick these days -- not just the coverage, but the commercials. Just about every ad deals with something to do with medicine or health. Here’s a breakdown of commercials:

CBS

1st Commercial Break:

1. Levitra, prescription for “ED” (Erectile Dysfunction)
2. Restasis, prescription for dry eyes
3. Wyeth, hormone therapy for menopause (undoubtedly prescription)
4. Advil
5. One-a-Day Cholesterol Plus
6. Just For Men
7. Beneful (food for older dogs – even the pets need supplements!!)

2nd Commercial Break:

1. Merckhelps.com (Merck helps subsidize delivering prescription medicines – of course their own, with which they make money.)
2. Serenity “Discreet Activewear” (diapers for old people)
3. Clear Eyes
4. Vytorin, prescription for cholesterol

3rd Commercial Break:

1. Plavix, prescription for “ACS” (acute coronary syndrome)
2. York Air-Conditioning
3. OFF! Mosquito spray (“Protects you against West Nile Virus!”)
4. Crest Mouthwash (“Kills germs, but doesn’t taste like medicine”)
5. Clear Eyes

Then as the news signed off, it was brought to us by “Wal-Mart, whose pharmacy accepts all Medicaid prescriptions...”

Over at ABC, we had:

1st Commercial Break

1. Advil
2. Edward Jones (investing)
3. Gas-X
4. Just For Men
5. Lipitor, prescription for cholesterol

2nd Commercial Break:

1. Nexium, prescription for “Acid Reflux Disease”
2. Vesicare, prescription to help manage “bladder leakage”.
3. Caltrate, calcium supplement
4. Red Lobster

3rd Commercial Break:

1. Ambien CR, prescription for sleep
2. York Air Conditioning
3. OFF!
4. Serenity Discreet Activewear


OK, so an overwhelming percentage of these ads have to do with health, especially for the elderly. Yeah, sure the average viewer of the evening news is probably 70 plus, but even so, are all these adverts for prescriptions and medicines a healthy thing? Remember about 10 years ago when the law was first changed that allowed the drug companies to bypass doctors and advertise prescription drugs directly to potential customers? The first generation of such adverts weren’t allowed to tell you the condition the product counteracted in order not to artificially create markets. Thus drugs like Claritin promised “Clearer days and brighter nights” without telling you what the hell they were selling. But soon the injunction not to name the sickness fell by the wayside, and so we are now inundated with acronyms like "ED" and "ACS". The benefit of all this direct advertising, so the argument goes, is that it educates and empowers consumers to help themselves. But it’s quite clear that these drug companies aren’t interested in education and empowering. They’re just creating drugs and markets, nay even sicknesses, with fancy acronyms to sell products. It’s about time the FDA changed it’s name to FDAA to reflect its real mission – The Food and Drug Advertisers’ Administration.

Lebanon Occupation, Round II

Well, the Israelis are lining up the heavy armor to rumble into Lebanon this weekend and set up their second occupation. What are they thinking? If they carve out a so-called buffer zone, Hezbollah will just move north in a tactical retreat from whatever line they draw and then harass their army and pick off Israeli soldiers as occupiers with or without those erratic missles. What could be sweeter for Hezbollah? But the thought that they just need to take the south is also stupid because, as an Israeli army chief just said on CNN, "Hezbollah is in every corner of Lebanon." Is Israel going to take over the entire country and push them into Syria? Bloody unlikely. Is some UN force going to be able to check Hezbollah in the south so that the Israeli army can withdraw? Bloody unlikely, because Hezbollah won't just roll over and no UN force will take the field without a truce. This is just going to be another disastrous occupation – one that brings down the moderate elements of the Lebanese government and radicalizes the north and the entire region even more. It appears there are no Solomons in Israel these days. At least he had the good sense to bargain for some of their cedars rather than trying to chop them all down after an invasion.

Apocalypse Now, part deux

In a post here I made a connection between Gingrich's WWIII analogy and the Christian fundamentalists' desire to see the apocalypse now, as foretold in the Bible. Well, I was just intuitively reacting to Gingrich's comments based on years'-ago over exposure to the rightwing nut religious sphere, but Sarah Posner publishes a piece here in which she makes a direct connection between Gingrich's and others' WWIII comments and a popular Texan evangelical named John Hagee, who is preaching that Iran must be attacked first for the Bible prophecies to come true. His book, Jerusalem Countdown, as Posner details, has apparently been selling like hotcakes amongst US fundies. I hadn't heard of it, nor would I recommend it, but different nut heads trying to make the case for Gog and Magog have been popular in evangelical circles for decades (or rather millennia). The difference now, however, is that they've got the ear of the President, as well as some in his inner circle and would-be Presidents like McCain and members of Congress. This is scary shit. These fundamentalists, at least 10-15% of the American population and growing, really want and would welcome WWIII and they're hoping Bush is their man to do it. If he doesn't consent to play the messianic role, then they'll keep trying to find another who will. Until or unless the Democratic party gets a spine and begins to attack and expose the ideologies of these Biblical literalists, these fundies will have a better chance of taking us and the rest of the world back 3,500 years (hell, I won't say 2,000 because they all seem want to follow the OT more than the NT), and if they can't do it via laws, then they'll bomb us back that far.

Cell Division

So, watching the Today show just now (it's a character flaw, I know) . . . big story on Hezbollah "cells" in the United States and whether those "cells" might stage terror attacks within the U.S. Hmmm. The story made clear, after appropriate fear mongering, that these groups are really fundraising groups rather than, um, "terrorist cells." But the emphasis of the story was on, well, just how dangerous these Hezbollah fundraisers are. To make things even worse, while the "terror expert" was talking, on a split screen, on the other half of the screen NBC was running the most disturbing terror porn it could find in its files of Hezbollah military demonstrations, including the obligatory terrorist training camp footage of guys in military fatigues on rope bridges and what looked like Hezbollah members (most of whom looked to be about 20-30 lbs. overweight) giving something that looked like a Nazi salute. The sound folks at Today had also set the levels so you could hear something that sounded like a call to prayer under the conversation between the anchor and the "terror expert." Nice touch.

I laughed, but the better half reminded me that this is not really funny. And she's right, of course. Not funny at all.

TN GOP Three-Way

The Tennessee Senate race to replace the retiring Majority Leader, Bill Frist (R-Panderville), has garnered national attention, especially because of the star power of the Democratic candidate, Harold Ford, Jr., who at 36 would become the first African-American senator from the south since, oh, you know when. The three-way race for the GOP nomination has gotten less ink, but truth be told, that's where the real action is.

In all the early polls, Van Hilleary, an undistinguished former congressman from the infamous class of 1994, took an early lead over his fellow Newtoid, Ed Bryant, a one-time House impeachment manager, and Bob Corker, a former state Secretary of the Treasury and Mayor of Chattanooga. Hilleary's early edge came from name recognition and credibility with the base: he was the GOP nominee for governor four years ago, but lost to the Democrat, Phil Bredesen. Hilleary and Bryant are both hard-core conservatives, while Corker has a reputation for what we used to call "sanity" but we now refer to as dangerously "liberal" ideas. Or at least that's what Bryant and Hilleary have been charging in their ads. As most of you know, TN leans strongly GOP, so this primary should produce the presumptive favorite. Ford must hope for three things: that 2006 shapes up to be an anti-Bush tidal wave, that the GOP nominates someone who looks extreme, and that, in the process, the troika bloodies up their eventual nominee.

So how's it looking on the ground? If I had to bet, I'd say that Corker wins by a surprisingly comfortable margin, despite having been a distant third a few months ago. Why? Well, first of all, there's money. Corker has raised more than Hilleary and Bryant combined, despite the fact that they've both run statewide campaigns in the last five years (Corker hasn't since 1994, and that was a weak run against Frist for Senate.) It shows too. Corker is everywhere on TV, and his commercials are pretty good. He's got a really light touch, and his ads make him seem likeable and human, even when he's, say, bashing illegal immigrants. (In one ad, he's walking along a desert fence line, making one wonder, "I didn't remember barbed wire and cactus sealing off the TN-AL border!") He's put his mom in one of his ads, and she's become a kind of campaign mascot. Plus, Corker signs are everywhere--especially in wealthy neighborhoods in Nashville and Chattanooga. Hilleary and Bryant, hard to find.

The main line of attack against Corker is that he's a tax and spend "liberal" who's squishy on "moral" issues. In response, Corker has moved to the right on pretty much everything. He's no longer pro-choice on abortion, where he's been aggressively courting the Xian right (although he downplays his exceptions for rape and incest). He's hawkish on Iraq, and he's also been riding hard on illegals. He even puts the banner "Republican" in a prominent place in his ads, violating that old rule that you must blur the party label distinctions to cater to the middle of the electorate. To put this in a nutshell, Corker just seems to want this race more than the other guys, and he'll do what it takes to win. He represents the old, moderate, Howard Baker money wing of the state GOP, and he seems to have figured out how to neutralize the grass-roots Xian cons. Hilleary and Bryant have yet to do him any damage, and he's now leading in the polls.

All of this is bad news for Harold, Jr., who is running an aggressive campaign of his own. Ford has been bashing away on national security and gas prices, but he's facing an uphill battle, and recent polls show him faring worse against Corker than against either of the other guys, which makes intuitive sense. This race is still anybody's to win, but right now, Corker looks like he's the white boy to beat.

Must Read: The Plot Against America by Philip Roth (2004)

First, let me assure you that this book is fiction. So, even if you fear a plot, or plots, against America, no help here. But this is truly one of the most amazing novels I've read in a long time. It's really three books in one, which is quite an achievement:

(1) It's an alternative history of 1940-42, where Charles A. Lindbergh defeated FDR in the 1940 election, and the United States spiralled toward Nazism.

(2) At the same time, it's a personal memoir of childhood--the main character is a nine-year-old named, well, Philip Roth. The characters are, I think, mostly, real people. Just in a different historical context. It's a rather touching coming of age story, of a boy realizing that his father and mother are just people, but still admirable people, at the same time. And

(3) It's an eerie reflection on what it feels like when "your Government" doesn't really feel like . . . "yours" anymore. As Roth's mother says at some point, it's now "their government." So not really a book about George W., but about an experience that many of us have had, in recent years.

I found the book a real page turner--I started it at the beach on Sunday and finished this morning, on the way to work. I stayed up late last night and got up early this morning to finish it. I've noticed that some critics dislike the ending, which is a bit abrupt. But really, the first 300 pages is so good, it's hard to criticize the last 60 pages or so (and they are great, too).

Simply put, you must read this book.

Cruella'a Last Dance

Remember Katherine Harris? Jeb Bush's psycho, heiress ex-girlfriend who helped W rig the 2000 recount and then won a seat in Congress from a very right-wing district in the Florida panhandle? One of my college buddies used to be one of her top staffers, and we had some entertaining debates about whether she was an enlightened public servant or, well, an election-stealin' ho and complete frickin' loon. I took the latter position. Well, her run for the U.S. Senate against Bill Nelson (D-FL) keeps getting better and better.

Her campaign staff has quit several times over, citing her micromanagement and "tantrums," and she's been tagged for accepting thousands in bribes from Mitchell Wade at MZM, one of the defense contractors that greased Duke Cunnigham's palms. Unlike Duke, Kat was a cheap date, but she also couldn't put out like the Dukestir, so maybe you get what you pay for. On one occasion, she accepted a $2800 dinner. When called on it by the press, she claimed that she had reimbursed the restaurant, despite the facts that she hadn't (or maybe she just lost the receipt), and that it was the contractor who had already paid (and not the restaurant who got stiffed on the check). Caught in the fib, she then gave a small $100 check to a creepy evangelical church in Jacksonville called Global Dominion Impact Ministries as some kind of bizarre attempt at charity penance. The Feds are finally investigating. No big surprise.

But the best part of the story so far is a recent revelation about how she kept MSNBC host (and former congressman) Joe Scarborough out of the primary race: she called up all of Florida's big GOP donors and told them that Joe was involved in the mysterious death of one of his staffers. Hmmm. . . . Missing white woman. Mysterious death. Powerful TV personalities covering things up. This sounds like the kind of story they should be investigating. . . on MSNBC. And maybe Dan Burton can get the House Oversight Committee involved in a reenactment. I'm sure they've got some leftover pumpkins from the Vince Foster investigation.

Is this his Way of Reenacting the D-Day Invasion?

So apparently Clinton's not the only American president to have travelled to Russia to pick up chicks. What would the wingnuts have said if it had been the "big dog" on the mack instead of lil' G? Get a room? You'll have this image in your head for days. Click the link at your own risk.

Bush League

OK, so television and the blogosphere are lighting up with the taped video of Bush talkin’ shit with Blair. I’m sure the press is going to focus on his naughty word and the religious right in the US will want his mouth washed out with soap. But what is really scandalous is how unpresidential, isolated and disconnected this guy is sitting at a table of world leaders. He is so Bush league it’s embarrassing. It’s almost as if Blair has become his personal courrier trying to figure out how to prod the American president to become engaged in averting a worldwide catastrophe. Meanwhile Bush clearly demonstrates nothing but contempt for Kofi Annan. At least we learn that Bush is going to dispatch Condi Rice to the Middle East to smooth things over. As was noted here , sending Condi off on another mission really gives me comfort.

War War War

I see that I'm not the only one brooding over recent events. But I am a little more "optimistic," if that is the right word, than Paul. Not optimistic about the situation in Lebanon and Gaza. I heard Condi say on Faux News Sunday that cessation of violence, a cease-fire, was not the real goal of the administration, but a solution to the underlying problem. This appears to me to be one of those situations where the best one might achieve would be a cease-fire. To press for more, when Israel is hard at work destroying Lebanon's entire infrastructure (and Gaza's) . . . well, what does one expect from the "greeted as liberators" folks, I guess?

But I am less inclined to think that the United States will be involved in a war with Iran, any time soom. I've been worried about a looming war with Iran for awhile. And here. But I don't think that it would be possible to sell the American people on such a war, at this point. There may have been a point, but the falling apart of American support for the war in Iraq would seem to doom escalation.

Things might change. But I think the current effort by the neocons to link everything bad happening to Iran is not enough. I can't imagine that the idea that "Israel is fighting our enemies," as Bill Kristol, I think, said on FNS yesterday will catch on.

The best response was Juan Williams's. He mocked "General Kristol" and said something like, "All you guys ever talk about is war war war." Indeed. That strikes me as a great line, one that a cleer politician might do something with.

Because no matter what fantasies harbored by Kristol and his ilk, the American people have clearly had enough war war war.

Apocalypse Now

Well, the events of the last week have left me speechless so that I haven’t felt much like writing, but Newt Gingrich gave two separate interviews today, one for The Seattle Times and one on Meet the Press , that have roused me from my quietude. In them he declared “I mean, we, we are in the early stages of what I would describe as the third world war, and frankly...”. I always get worried when Gingrich uses the word frankly, because throughout his career I’ve noticed it’s like a red flare shooting up and declaring, “Hello, this is a rhetorical mask for a calculated political argument.” He then when on to spin out a very seductive and calculated political argument of connecting the crap-dots of all the latest bowel movements by various US enemies throughout the world to make one big turd that backs up his WWIII analogy and, according to The Seattle Times reporter David Postman, urged Bush to convene “a joint session of Congress the first week of September and talk about global military conflicts in much starker terms than have been heard from the president.” A recent article I read somewhere pointed out how the Bush administration had used marketing techniques to sell the Iraq War and they pushed for it in the fall because “nothing sells in August” or something like that. Just one of those things that makes you go hmm.

If you know anything about the Newtster it’s that he likes to play the historian card. Postman notes,

An historian, Gingrich said he has been studying recently how Abraham Lincoln talked to Americans about the Civil War, and what turned out to be a much longer and deadlier war than Lincoln expected.

Of course all this sounds strikingly similar to Rumsfeld’s oft-repeated refrain of our current War on Terror as “The Long War”. For those of you who followed the Newtie’s career, as Speaker of the House he was once asked the inevitable question about what books influenced him most, and he included Peter Green’s Alexander to Actium . Peter Green, in an article in the October 9, 1995 issue of New Republic (subscription required), was not flattered and complained about how Newt used and abused the lessons of his book. You see, in 1995 Newt believed that the US was adrift in a cultural wilderness like the degraded Hellenistic period of the Macedonian successor kingdoms and needed to be more like the Romans and establish a Pax Americana. In short, he was a Neoconservative before it was fashionable. One significant fact that Newt and the other Neocrusaders like to leave out of the equation, however, is that Roman success at Actium marked the end of the Roman Republic -- the ensuing Empire was incompatible with what virtues there were of the Republic, including democratic elections of multiple parties.

At any rate, I believe Newt's salvo is merely the tip of a very shit-laced spear that’s going to be hurled at the Dems this fall because things are so constipated in Iraq and with North Korea. All this recent talk of diplomacy by Bush appears to me to be nothing more than a half-hearted CYA charade. He and the Neocrusaders are really cheerleading for the Israelis in Lebanon and are looking for any pretext to expand the disastrous War on Terror into WWIII with Iran, Syria and North Korea, and by God, come hell or high water they’re going to have it. Look for some trivial military event, whether real or manufactured (like Tonkin), to get the ball rolling. It’s all standard military operating procedure after that -- once it’s WWIII how can the Democrats oppose that?

Well, the Democrats better be ready to stand up and be a true opposition party and throw overboard any Joseph Lieberman’s on deck. There’s no way the Dems can win unless they make a united, frontal assault on this vision of the Neocrusaders. I don’t even think 5 bucks for gas, which we will quickly see if this war expands, will stop the Republicans if they can successfully sell the WWIII argument. The Democrats must make the argument that this doesn’t have to be WWIII, and the only way to possibly avert WWIII is to elect a Democratic House and Senate.

What is really disturbing to me is how fundamentally crazy these guys are. This war, if uncorked, would unleash a level of suffering the world has not yet witnessed. There’s no way to win it unless you flat out flatten (almost certainly with nuclear weapons) significant parts of the Middle East, North Korea and any other region that joins in (which scarily enough is consistent with Neocrusader ideology). Are we really prepared to do that alone? Are we really prepared for 10 bucks a gallon for gas, the draft and the attacks on us and the unabashed Empire status? Will that really bring peace and prosperity to the US? Do they really think we can't be hit too? It seems to me that if you want peace and prosperity, you do all that is within your power to maintain and make peace, which involves an aggressive policy of containment and defense. You hold the line or only take steps forward when under your own power, but you do not recklessly go out and look to shed blood at slight provocations, because the more blood that gets spilled on the ground the more berserk mankind goes and the harder it is to move forward again. Ares is not a god to be invoked lightly. He delights in the blood letting but is never predictable nor impartial, touching all sides alike. That is the lesson of Iraq.

One thing is for sure, if Newt’s advice is followed, the US isn’t going to be inheriting the earth anytime soon. Of course, none of this matters if you believe, like about a third of Americans, that Jesus will only return after a third of the world has been destroyed in the final apocalypse. You might even welcome such suffering as a sign that “all the Bible’s prophecies are finally coming true.” We shouldn’t have to inflict so much needless tribulations on others and ourselves only in the end to discover there will never be any blessed kingdom ushered in.

Freedom on the March III: Is Freedom Still on the March?

Here and here I discussed the meme that "Freedom is on the march."

No one has pushed the "freedom is on the march" line more aggressively than David Brooks. But I just heard him, on the NewsHour, say that "Iran is on the march," and that "Iran and Syria are on the march." Oops. If Iran and Syria are marching, then is Freedom, that nebulous concept, still marching, too? (Because we know that Iran and Syria hate Freedom, or, at least "our freedom.")

If Freedom has stopped marching, is it in retreat? In Russia? In the United States?

Oh, Freedom, where art thou?

Oh My

If TMcD can post about the All-Star game, then I can post on women's swimwear. The WaPo ran an article today about WholesomeWear, swimsuits for the modest and Bible-thumping among us. Or should I say, ultra-modest, ultra-thumpin'? Check it out. It even comes in culottes.

This Time It Counts!

There's been a lot of sports commentary again this year about the MLB All-Star Game and Bud Selig's decision, following the Hindenbergian tied-score game of 2002, to give the winning league home field advantage in the World Series. The much-ridiculed slogan at the always-subtle FOX Broadcasting: "This Time it Counts!"

I've read several pieces on this over the last few years, including King Kaufman at Salon.com and Joe Biddle in the Nashville Tennessean, and I don't think I've seen a single defense of Selig's decision. The basic argument is that home field advantage in the World Series is just too big a prize to hinge on some dumb exhibition game that the players don't take very seriously. As a result, the WS will give a big edge to one team based arbitrarily on whether its league won the All-Star Game, which might very well have been determined by a player who had little chance of playing in the Series itself (as happened this year when Michael Young of the middling Texas Rangers had the game-winning triple). If you want the players to treat the All-Star Game like something other than a bore or a hassle--leaving for the airport after their two innings, skipping altogether on the slightest pretense, etc.--you should just go to them and say, "Hey, take this more seriously." But don't swing the World Series on such piffle.

Hmmm. . . Why don't I think that little pep talk will work? I hate to defend Bud Selig, but I gotta say, this time I think he got it right. The major problem with the hand-wringing is this: what's the alternative? Prior to Bud's decision, home field advantage in the Series alternated between the leagues. Talk about arbitrary. That may be fair to the "leagues," giving each a year of advantage, but last I looked it wasn't leagues but "teams" that actually competed in that series. And the teams that won their leagues in any given year would have absolutely zero affect on home field advantage under the old system. If I'm the Braves, and I win the NL in a year without home field, what do I care that last year's NL team had the edge? I don't, and nothing I did during the season could have any affect on whether or not I get the edge this year--it's a crap shoot.

Using the All-Star Game as the decisive factor may not be perfect, but it is certainly better than that old system where it all depended on odd vs. even calendar dates. If your team is competitive, odds are that you've got a few All-Stars. I'd guess that at least half the All-Star players think they've got a good chance at the Series, and several will make it there. Plus, the All-Star Game does give you a good sense of which league is actually better, especially when one league, the AL, is on a hot streak over a decade or so (9-0-1). If you win the penant in the tougher league, you should have home field advantage for the Series. If there's a better way to do this, I haven't heard it yet.

A Good Day . . . to Die?

Tarn posts on the fear of flying and a Sioux term, "hoke hay," which translates as "today is a good day to die." I won't comment on, well, how few words in the Sioux language it takes to say "today is a good day to die," but it does take fewer than English--or Italian, I might add.

I had always thought or, rather, believed, that the Klingons had come up with the whole "today is a good day to die" thing. But then I kick myself and remember that sci-fi only reveals to us things that we already know, like alien cultures and warp drive, cloaking devices and environmental apocalypses.

Speaking of warrior cultures, is anyone else a little disturbed that Chairman of the Joint Chiefs of Staff, Marine General Peter Pace cried at a Senate hearing today? (It's at the WP. Go there your own self.) I mean, maybe "It takes a strong Marine to cry," as one senator said. But maybe, just maybe, the stress is getting to Pete. Because in Baghdad, these days, no day is a good day to die . . .

World Cup Butt Head

For those of you who watched the final yesterday and are wondering why Zidane possibly ended his career last night with an ignomious head butt to the chest of Materazzi, the Italian papers are reporting that Materazzi called him a "terrorista". It's a fairly common sarcastic remark these days in Italy and is said more to friends than anyone else (I've been called it a few times myself...), although one can understand how the sarcasm might be lost on someone born in Algeria after the riots in France. Interesting how world events such as the so-called War on Terror impinge upon the field of play.

Update: Now the Italian press is reporting their source for the "terrorista" comment was a report on the UK's Guardian web site, which has since been withdrawn. Now I'm seeing reports that Materazzi may have called Zidane's mother a name or his sister a prostitute. I wouldn't be surprised to see if all the insults pan out -- sounds like the normal trash talking.

Threatdown: Bears

So, no posts yesterday as the two of us "stole" a day from the calendar. I don't think that there's any other way to describe a pleasant, non-humid day in the mid-70's here in the D.C. area in July. So we made a last-minute decision to drive out to Shenandoah National Park and hike the Old Rag trail. The weather was beautiful, and the park was not crowded at all. I guess that no one plans on taking a strenuous hike on July 8 in Virginia. It was also the weekend after the July 4 weekend, which has to be a slow tourist weekend, in general. For most of the 8.8 mile hike, we were all by ourselves.

All by ourselves, that is, except for the bear. On the return down the fire road, we were walking along, minding our own business, when I spotted some movement in the brush to the left of the road. (I am pretty good at spotting wildlife, given my upbringing among the great hunters of the North.) There it was--a fully grown, or mostly fully grown, black bear, not more than twenty yards away.

According to the park's guidelines, fifty yards is the minimum safe distance.

The bear didn't seem that concerned about us, but to be honest, it kind of freaked me out. So much so, that I forgot that I had the camera. I did take a picture, eventually, but it's not very good--that could be a black bear, or a Bigfoot, or a dark-colored rock. Now I know why there aren't any clear shots of a Bigfoot.

OK, so add black bear to the list of animals spotted in the wild. Actually, we saw a black bear once in Great Smoky Mountains National Park, but we were in the car, so that's a little different.

Link bonuses:

Is this guy my doppelganger?

Sage Blue Ridge advice on avoiding bears.

(I've been having some fun the last few days playing with the "Search All Blogs" feature in Blogger.)

The Limit of Political Narratives

TMcD fires off a response to my earlier post on process theories of judging. TMcD is right, that the post I was responding to was more about politics than about theories of judging, per se. The issue, of course, is how does a political movement generate a narrative to both criticize the courts, when its useful, and defend the courts, when needed.

The problem with the idea, implicit in Publius' and TMcD's arguments, is that both assume that one can generate a political narrative . . . from scratch. But that's not how conservatives came up with "judicial activism." They came up with "judicial activism" as a response to particular decisions, including, most famously, Brown v. Board of Education and Roe v. Wade. The reason that the narrative works is that it is both an arguably accurate description of the decisions in question and reflects the dislike of conservatives, especially, of the decisions in question. (At least at the time of the decisions, in the case of Brown.) Or, maybe more accurately, "judicial activism" taps into the anger of many conservatives with judicial decisions.

But the point here is that the term taps into anger with particular decisions.

Publius may be trying to generate a narrative with Hamdan, but I think this is misguided for a couple of reasons. First, in order to generate that political narrative, I think you have to lose the case in question. Think Dred Scott, in addition to the cases mentioned above. So, to the extent liberals "won" Hamdan, I don't think one can generate political support based on, well, agreement with the decision. If anyone is angry with Hamdan, it's not liberals.

Second, I don't get a sense that Hamdan's "rule of law" approach is a very useful one, at least with respect to the courts (it may be more useful with respect to Bush administration policies). Is government lawlessness a more generalized problem? Maybe, but I'm not that sure.

Finally, I think that one shouldn't argue, too much, within the "judicial activism"/"judicial restraint" framework. If I'm right, descriptively, that these concepts are pretty worthless, then one must rethink their normative usefulness. In addition, I think that liberals should be proud of the Warren Court's so-called "activism" and not accept a "restraint" meme that tells us that the Court's greatest accomplishments were flawed because "activist." Liberals need to realize that Brown, the granddaddy of "judicial activism," is probably the single most popular Court decision of all time, the one decision that laypeople point to, to support the proposition that the Court protects our rights.

Defending "Principled" Democratic Judging

In a post from a few days (and, like, a thousand entries) ago, Emery raised some significant points of contention with Publius's call at Legal Fiction for a "process model" of democratic judging, the idea that judges should intervene as activists only when the political process itself is broken in some fundamental way. Emery defends a messier model of "moral intuitionism," one that would, in good Emersonian or pragmatist fashion, avoid the perils of an overly consistent and ideological jurisprudence. His argument harks back to the "legal realism" of Oliver Wendell Holmes, who commented that

The life of the law has never been logic: it has been experience. The felt necessities of time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.

There's a lot to be said for this argument, especially from the standpoint of descriptive honesty. From the scholarly view, Emery and Holmes surely offer a better analysis of what judges are actually doing than those commentators who seek overly logical explanations. Why is Scalia's "originalism" so selective--applying to federalism but not executive power, privacy but not equal protection? How could you explain Bush v. Gore on the basis of "logic"? Why does Scalia get his panties in a twist defending crossburners but not flagburners? Intuition. OK, that last example wasn't really fair: Scalia votes on the "free speech" side on both issues, even though I'm pretty sure he personally despises flag burners. So maybe theory counts for something now and then. And maybe we're better for it, as we were for Scalia swallowing his tongue to support flagburning in Texas v. Johnson, and as we would have been if the Kingmaker Five had actually bothered to read the Constitution before they endorsed the bloodless judicial coup of 2000.

In short, "principled" judging is indispensible from a practical perspective, even if it often fails to restrain judges from chasing their worst instincts, and even if sometimes leads justices (like Scalia and Thomas) to get up on their rhetorical high horses even as they're voting for something repellant, like the idea that George Bush is a monarch, beeyatch.

But there's another equally important reason that Democratic judges and legal theorists need to think through a consistent and principled theory of judging, one that could answer the conservative "originalism." In a word: politics. Simply put, originalism has been a great rhetorical weapon for the right over the last generation. Of course, we know their theory is mostly B.S., a way to dress up ill-conceived reactionary ideas in fancy clothes ("the founders didn't think _____________ [insert liberal idea here: economic regulation, privacy, racial equality, voting!] was important, so why should we?"), while conveniently ignoring all those places where the founders were farther to the "left" than most contemporary liberals (religion, search and seizure, executive power, etc.). But having a theory like originalism makes conservatives look principled, a great political advantage. You can't rally the shock troops without a flag. The most prominent liberal counterpart in recent years--the "living constitution"--sounds way too squishy to compete. Or, to put it another way, the living const. has been largely discredited by two issues, abortion and death penalty, where it seems unprincipled and expedient.

In general, I'd say that liberals need to disavow "activist" approaches. We've been moving toward an activist right-wing court for decades now, and when Stevens dies the critical mass will finally be achieved. Get ready now with a principled theory of democratic restraint, I say, and use it as a bludgeon. Publius's post goes a good bit of the way toward that goal, and he's building on important legal theorists like Holmes (who was less "intuitionist" here than the quote above might indicate) and John Hart Ely, whose Democracy and Distrust was the best book I read in grad school on jurisprudence.

Publius's question is this: when should judges defer to elected bodies, and when should they intervene more aggressively? As Democrats, we need to trust elected bodies the vast majority of the time, even when we don't like the outcomes. But when the process is broken (and that's a fairly high bar), there are grounds for narrow activism on the basis of democratic principle. Hamdan is a great example. The court didn't decide what should happen to Hamdan, they demanded that Congress set out procedures for trial that accorded with US law and treaty obligations. On the current court, Breyer is working toward this kind of restrained democratic jurisprudence. I hope he's just the beginning.

Into the Maelstrom

This George Packer review of Beinart's book, The Good Fight at the New Yorker is troubling on many levels, not the least of which is Packer's "I've been on the front lines of this 'long war' for a long time, and Beinart and his ilk are fancy-pants who couldn't carry my kit bag" machismo. (I'm not exaggerating, folks.) But it's late, so I'll just leave you to ponder these grafs for now:

Francis Fukuyama, the ex-neoconservative who publicly broke with his former comrades and now embraces what he calls “realistic Wilsonianism” (as opposed to Madeleine Albright’s “realistic idealism,” or the “democratic realism” of Fukuyama’s friend turned foe Charles Krauthammer, foreign-policy manifestos being largely a matter of tempering the right ism with the right adjective), has urged a toning down of rhetoric. “We are fighting hot counterinsurgency wars in Afghanistan and Iraq, and against the international jihadist movement, that we need to win,” Fukuyama wrote in his recent book “America at the Crossroads.” “But conceiving the larger struggle as a global war comparable to the world wars or the Cold War vastly overstates the scope of the problem, suggesting that we are taking on a large part of the Arab and Muslim worlds. Before the Iraq war, we were probably at war with no more than a few thousand people around the world who would consider martyring themselves and causing nihilistic damage to the United States. The scale of the problem has grown because we have unleashed a maelstrom.”

But the maelstrom is always the point of the provocation. Although the Iraq war wasn’t inevitable after September 11th, a global polarization along religious lines probably was. Much of the Muslim world already felt persecuted by the West before the attacks, and Bush’s unfortunate use of the word “crusade” immediately afterward has been remembered, while his and Tony Blair’s many declarations that Islam is a religion of peace have been ignored or forgotten. In spite of Bush’s efforts not to unleash a civilizational war (thus the “war on terror,” rather than the more apt “war on radical Islamism”), the battle lines were already forming well before shock and awe and Abu Ghraib. I was in Somalia during the Afghanistan war, and even Westernoriented Muslims there saw the overthrow of the Taliban as the start of a war against Islam. What Fukuyama calls “the international jihadist movement” might include only a few tens of thousands of militants, but for passive sympathy or active support it can count on tens of millions of Muslims in Europe, North Africa, the Middle East, and Southeast Asia. Fukuyama, a political philosopher, ignores the political nature of the problem.

"I was in Somalia during the Afghanistan war, beeyatch." If anyone out there can explain "the maelstron is always the point of the provocation" to me, I would appreciate it.

France Versus Italy for World Domination

The World Cup final is set: France versus Italy. I, for one, am glad that we avoided a France versus Germany final, seeing how the last few Franco-German conflagrations ended up.

I'm sure Paul is pulling for Italy, and not just because of his mamismo. I mean, he's got Italian connections, if you know what I mean.

My guess is TMcD is not pulling for the French, but I could be wrong (?).

Sam has written several posts about the World Cup, but I don't whether he's an Italy or a France person (?).

I have to say, I don't have a strong preference here. But I'm willing to be persuaded, one way or the other, in comments.

Dumbest Post I Ever Wrote: Retrospective

Well, it's July, and the Detroit Tigers are where they belong, in first place, with the best record in baseball, an unstoppable juggernaut, if you will. But last October I wrote this post . . . bemoaning the firing of Alan Trammell as manager and the hiring of Jim Leyland . . . and predicting that the results with Leyland would be the same . . . almost certainly the dumbest post I've ever written. In retrospect.

But really, did this look like a good move to any of you at the time?

I will add that Kenny Rogers, a/k/a "the Gambler," won his eleventh game of the season for the Tigers today. Anyone else out there remember when the Gambler pitched for the Tribe a few years ago and looked, well, like he was done? I was wrong about that one, too. Guess he just didn't like the Jake.

Head Games

I've been watching a lot of coverage of the North Korean missile launches, and what always amazes me is how comfortable talking heads are discussing what, exactly, Kim Jong-Il is thinking. This strikes me as a pretty speculative area, given (a) Kim is Korean, so he's from a different cultural context, (b) he was raised the son of a totalitarian dictator, so his assumptions in life are probably "unusual," to say the least, and (c) he's probably a psychotic. So, to say, "This is what Kim is thinking" strikes me as a bit of a stretch. It may be that Kim is thinking what the talking heads say he's thinking. Or, he might be batshit crazy. I'm a little skeptical here.

Moreover, we really have no reason to believe that the launches don't represent the result of (unspecified) internal struggles among factions within the North Korean regime. Every discussion of the launches, or North Korea in general, assumes that Kim's every thought is carried out in action, and therefore that North Korean actions map Kim's thoughts. This may be the case, but we know that that's not how most complex organizations work. There's almost certainly more going on here than Uncle Sam versus Kim Jong-Il.

This is part of a bigger problem, the over-personalization of politics, as covered in the media. The larger picture is often obscured by an endless fascination with individuals. A more interesting question in the case of North Korea, for example, would be, Why do other Koreans support Kim? He doesn't stay in power without some cooperation. So what motivates that cooperation, and how does the missile launch affect internal support for Kim? Everything I see suggests that this was meant to be "provocative" toward the United States and its allies (Japan). But why would Kim want to provoke the United States and Japan? I never hear a rational answer to this, in all these analyses, even when the analysts suggest that Kim is very "shrewd," or even (ABC news tonite) "crazy like a fox." Maybe Kim needs to provoke external threats to maintain his internal grip on power (?). In that case, aren't we helping Kim out?

Maybe Kim knows what George W. Bush is thinking? (But then, Bush should do what Kim doesn't expect. But Kim already knows that Bush knows that, so . . . Bush goes to the U.N.)

Or, just one more point: Is it really significant that the North Koreans launched the missile on July Fourth, and on the same day as the Shuttle Discovery was launched? "Clearly, there was a high propaganda level for the North Koreans, here." That's what a talking head just said on MSNBC. But is this really so clear? This may be the case, but there's never any evidence offered, other than the coincidence, that there was meaning in the choice of dates. The question I would ask is, Wasn't the shuttle launch delayed by weather? Did the North Koreans wait to launch, too? The coincidence might be more than that. But I doubt that the talking heads are basing their confident assertions on more than the coincidence.

Keeping Pace

General Peter Pace, Chairman of the Joint Chiefs of Staff, was just on the Today show. Ann Currie asked about the Sy Hersh story I linked to yesterday, in which Hersh reports that Pace is advising the administration against attacking Iran. Pace said that he hadn't read the report, but from what he's heard, it's based on "fantasy," not reality.

A good follow-up would have been: "Which is based on fantasy? The plan to attack Iran, or the article, sir?"

Eerie Parallels

TMcD posted on the connections b/w Enron and the Bush presidency last month. I wanted to add a post on the subject, having just seen Enron: The Smartest Guys in the Room. The documentary is excellent, and I highly recommend it, if you haven't already seen it.

The parallels b/w Enron and the Bush presidency are eerie. Uncanny. Enron was a money-making operation, but for many years it was a bit of a mystery how, exactly, they made their money. But if you asked questions, you were fired, shut-out, excluded from doing business with the juggernaut that was. (There's an amusing anecdote in the film in which Skilling called a business reporter an "asshole" at meeting for asking uncomfortable, but perfectly legitimate, questions.) In the end, it became clear that they hadn't actually been making money. Instead, they had been fooling everyone, Wall Street, their own employees, for years with bluster and self-confidence. Amd threats. Skilling and Lay had managed to override every check and balance in the business and financial world--the accountants signed off on bad accounting practices, the stock analysts were cowed or bullied, the regulators were captured. In other words, all the safeguards preventing corrupt behavior had been switched off, and human nature took over.

With Enron, the pressures on the key participants to keep the whole thing rolling grew and grew until they were living in a kind of alternative, or alternating, realities. In one of those realities, they were the biggest players on Wall Street, titans of finance, men admired and respected. In the other reality, they were looking at massive losses, potential criminal charges, and the crash to come. The documentary makes a good case that, up until the end, Skilling and others were able to "compartmentalize" the bad alternative reality and tell themselves that they were still titans of industry.

Sound familiar?

The documentary also makes a good case for the political connections b/w the Enron guys (who were not that smart, really, as it turns out) and the Bush family. We'll never know how things would have turned out, on this front, had 9-11 been prevented.

Son of Iraq

Read.

Perhaps the scariest graf: In contrast, some conservatives are arguing that America’s position in Iraq would improve if Iran chose to retaliate there [in response to a U.S. bombing of Iran], according to a government consultant with close ties to the Pentagon’s civilian leaders, because Iranian interference would divide the Shiites into pro- and anti-Iranian camps, and unify the Kurds and the Sunnis. The Iran hawks in the White House and the State Department, including Elliott Abrams and Michael Doran, both of whom are National Security Council advisers on the Middle East, also have an answer for those who believe that the bombing of Iran would put American soldiers in Iraq at risk, the consultant said. He described the counterargument this way: “Yes, there will be Americans under attack, but they are under attack now.”

Neocons to U.S. troops: You're screwed anyway.

The Limits of Process Theories of Judging

Publius writes a lengthy post on Hamdan and process theories of judging, which is worth a read. Publius is a big believer in the premise that liberals must have an answer to the (normative) question, how should judges decide cases? His answer, which is an oldie but a goodie, is that judges should employ judicial review to police the political process rather than its outputs, and that judges should only step in when the political process which arrived at a particular policy is "broken" in some way.

My general take on such macro theories of judging is that few judges, in their natural, wild state, actually employ a consistent macro theory of their role as judges. And that, rather than that being a problem (e.g., "unprincipled decision-making"), it's probably a good thing. I would draw a comparison to moral thinking. Few people employ a consistent, macro theory of their moral obligations. Instead, they follow some form of moral intuitionism. They have a sense, sometimes a vague sense, of what is the right thing to do in a particular situation, and that sense is usually a better guide, certainly a more efficient guide, than a full-blown moral analysis. Indeed, as someone who has thought a great deal about moral theory and has experimented with the idea of applying one theory consistently, I would say that it's either (1) undoable, because it makes one's decision process incredibly difficult, and/or (2) leads to perverse consequences, at least from the perspective of moral intuitionism.

The same with judges: My sense is that most judges arrive at a "sense" of the right outcome in a particular case, based on the facts, the state of the law, the equities, etc., and that that sense of the right outcome strongly influences the judge's decision, despite the fact that lawyers on both sides of the case can make somewhat plausible arguments, at least in a significant percentage of cases.

The same problems with a consistent, macro theory of judging: It's either undoable/unworkable, or it would lead to perverse consequences.

In terms of unworkability: How, exactly, does one know when the political process is "broken"? There are some obvious cases, of course: Publius always reverts to the disenfranchisement of African-Americans, which is the paradigmatic case. But consider the state of Congress today, which has been well documented in the liberal blogosphere. In my opinion, it could be argued that the legislative process today is broken. But does that mean that the courts should step in and force Congress to fix itself? If so, how? Would it be better to simply "pretend" that, for example, Congress is not corrupt, hyper-partisan, and non-deliberative?

It seems to me that, in interpreting new laws, judges applying Publius' perferred theories would have to come to some conclusion on these issues. Say, for example, you were a bankruptcy judge applying the 2005 bankruptcy legislation, which was drafted by the credit card companies. Would it be appropriate to hold that the 2005 bankruptcy legislation was invalid because the "deliberative" function of Congress was short-circuited by lobbyists? Under a particularly vigorous form of the process theory, it might be. But this would require the judge in question (1) to understand the enactment history of the legislation, which was, understandably, hidden from view, and (2) to go way out on that limb. Most judges, most of the time, are not nearly so bold.

So, outside of some pretty extreme cases (disenfranchisement, presidential overreaching), process theories make demands on judges to act, if not as legislators, then as experts in the legislative process and in the enactment history of particular pieces of legislation, of particular provisions. That's probably too much to ask. On the other hand, a default assumption that the political and legislative process is functioning properly will often bear little resemblance to (political) reality.

In terms of perverse consequences, a consistent theory of judging cuts against stare decisis, at least at the highest level, i.e., the Supreme Court. Thus, Justice Scalia has even recognized that originalism must give way before precedent, at least in some cases.

But even worse: Some pretty crummy legislation can be validly enacted by a properly functioning political process. Sometimes the majority will just run roughshod over a minority, even when that minority has full political rights. The Texas redistricting cases might be a good example of this. Sometimes the majority might even run roughshod over a minority by accident. I'm thinking of Shebery v. Verner here, but I'm sure that there are many other examples. In some of these cases, at least, it's probably a bit much to ask certain groups to go back to the legislature and ask for "special legislation" to protect their interests. When those interests receive constitutional protection, it doesn't seem perverse to me to think that the courts have a role in policing the substance of legislative outputs and not just the process.

This is not an argument for judicial activism or judicial maximalism. It's just to say that one theory might not be sufficient to cover all the situations that judges will face. Or, in other words, a little inconsistency may not be a bad thing.

You Asked

I've been pretty busy this week, and I have to admit I haven't read every last word of Hamdan. But I've read most of it, and I've read a fair amount of commentary. So here are my initial thoughts:

(1) It's amazing to me that the congressional GOP's effort at jurisdiction-stripping was almost successful. Despite the fact that the Detainee Treatment Act ("DTA") was passed based on an agreement that the law would not apply to pending cases, two senators inserted in the Congressional Record a colloquy stating their position that the DTA did apply to pending cases, which would mean, in turn, that the Supreme Court would no longer have jurisdiction to decide Hamdan. These sections of the opinions (Stevens for the majority, here, and Scalia in dissent) are dense and highly technical, with lots of discussion of canons of construction, Councilman abstention, and so forth. (Don’t get me started on Councilman here.) But I think that the issue boils down to this: At least three members of the Court were willing to participate, passively, at minimum, in a pretty dishonest and transparent legislative ploy. In the past few years, many of us have worried about the breakdown in the separation of powers and checks and balances, but had their been just two more votes for this position . . . there would have been no check or balance at all here.

This is not to say that Congress cannot strip the Court of appellate jurisdiction, if it chooses. But it seems to me that to hold that Congress stripped the Court of that jurisdiction, where the Record, fairly read, cannot be read that way, based only on an ambiguous cross-reference and a bogus colloquy . . . just can't be taken seriously.

(2) I’ve seen quite a bit of discussion of Ex parte Quirin in relation to Hamdan, but most of this discussion is misleading, if not intentionally so. Quirin is, of course, the “Nazi saboteurs” case from WWII. Supporters of the president’s policies argue that the Court in Quirin upheld just the sort of policy that is at issue in Hamdan, so that if FDR did it, it’s fine for GWB to do the same thing. The first problem with this argument is that the Quirin Court held that the commission in that case was authorized by the Articles of War. If, as I think is the case, the key issue in Hamdan is legislative authorization, then the fact that the Court in the latter case held the commissions as not authorized . . . then the comparison has to move to whether the legislative authorization in Quirin was comparable to that in Hamdan, which is really a non-starter. (I.e., the Hamdan argument would have to be based on the “AUMF,” which would then become a blank check for anything the president wants to do.)

Second, the commission in Quirin held (I believe) a nineteen day trial, including (if I remember correctly) seventeen days of evidence, presented by the Government in the presence of the defendants. The commissions in Hamdan involve “hearings” in which classified evidence may be withheld, etc. In short, the military commissions in Guantanamo Bay bear as little resemblance to the Quirin proceeding as GWB bears to FDR. So the comparison doesn’t work, if you know anything about Quirin at all.

Third, quickly, the evidence in Quirin was much better than in the cases against the Guantanamo detainees. This doesn’t matter for the question of legal authorization, but again, in terms of making a historical comparison, it does matter.

It also matters for the coming congressional debate. More below.

(3) Hamdan is less important legally then it is politically. This would not have been true, had the case come out the other way. Then Hamdan would stand for some scary propositions. But I read the case as stating, simply, that the president muct conform to the laws (and treaties) enacted (ratified) by the Congress (Senate). In the present era, that might be controversial, politically, but as a legal matter, I don’t think so.

Hamdan is not a “constitutional” decision, except to the extent that it backs a pretty standard version of the separation of powers. Again, legally, Justice Stevens’s invocation of “the Rule of Law” is pretty much dead-on.

Politically, this is a big “rebuke” for the War President. How much it matters, long-term, I have no idea. Some have speculated that this helps the president, but I don’t see it. (This strikes me as Rovian mindfuck.) The theory is, I guess, that this gives the GOP an issue for the fall elections. They don’t want legislation, they want an issue. I’ll have to think on this one a bit more, and see how things come out.

Finally:

Many people have already said this, of course, but Justice Stevens is 86, and many, many important points of law hang in the balance with his continuing good health. Here’s to your continuing good health, Justice Stevens.

Kansas v. Marsh Quick Point

TMcD chides me to post on the Court's end of Term decisions. I've been working on a post on Hamdan, but haven't finished it yet. Unlike the nattering nabobs of knownothing on the television, some of us need time to think about the meaning of landmark decisions.

I will oblige, however, with a quickie on the Kansas death penalty case, Kansas v. Marsh. TMcD writes: The Kansas sentencing case, for example, in which the conservative majority upheld a "tie goes to the hangman" rule, strikes me as reasonable judicial restraint. States are due a fair amount of deference in sentencing guidelines, and the idea that mitigating factors must "outweigh," not merely "balance out," aggravating factors in DP cases seems a plausible enough rule.

I don't really have a view on the merits of the "tie goes to the hangman" rule, in the abstract. It's not 100% clear to me that that rule is consistent with the Court's previous death penalty jurisprudence, but that jurisprudence is about as clear as mud, anyway. In other words, a close question, and no surprise how it came out. Anyhoo. My point is that Marsh cannot plausibly be described as "reasonable judicial restraint." The case caption gives this one away. Note that Kansas comes first, which means that the State of Kansas is the petitioner here. Which means that the State of Kansas lost this case in its own state court of last resort and then appealed to the U.S. Supreme Court. Four justices, at least, voted to grant certiorari, almost certainly with reversing the Kansas high court in mind. In sum, at least four justices decided that this was a sleeping dog that should be poked with the cert stick.

This is a pretty aggressive grant of cert, in my opinion. The Kansas decision applied only to the Kansas death penalty statute, which the state legislature could have easily redrafted to avoid the "tie goes to the hangman" situation. (I believe, but don't quote me, that the statute has actually been redrafted.) So deciding this case only impacts Kansas cases, and there aren't that many Kansas death penalty cases . . . so, taking this case, not an example of restraint.

Add to that that the Court had this case re-argued after O'Connor was replaced by Alito. It would be hard to argue that this case was important enough for that treatment. (Btw, this issue is discussed in the opinions in the case--Scalia's concurrence and Stevens's dissent, I think.)

Supreme Court Roundup

Hey, Em! You've been on blog hiatus all week, a week that's seen a flurry of monumental court decisions handed down at end of term, and all you give us in your Saturday morning dispatch is SamCyborgs and Sprite (or is it Gatorade?) slogans about how we need to "get in the game"? C'mon, Dawg. I've been Jonesin' for some legal analysis. Has your job turned you into a self-censoring diplomat? Don't tell me that you've started to identify with the beltway establishment. Next thing you know, you'll be quoting David Broder and the WaPost editorial board as if they peed chablis. Time to put the brakes on that. Let "the guru" speak, I say.

To help, I'll get things started. Obviously, the dog that barked this week was Hamdan v. Rumsfeld, in which the court (or at least five of them) decided that they were not, in fact, castrati, and that the United States did actually have a Constitution and a "rule of law" that the preznit was capable of violating. A remarkable finding. More remarkable? That three justices (Scalia, Alito, Thomas--or is that really just one?; if you're counting brains or backbones the number could go even lower) could disagree on this point. "Silent Cal" Thomas distinguished himself by breaking his vow of monkish quietude to read his dissent from the bench, and letting us know that he's really, really afraid, so he needs a big, bad king-daddy to protect his sorry-ass from the monsters hiding under his crib. Frankly, this is exactly why Locke and Sidney argued that a functioning republic couldn't extend religious and political tolerance to Catholics: they'll sell you out to the authoritarians and absolutists every time. [Before our Catholic readers get upset, I'll quickly add that Catholicism has changed a lot for the better over the last 300 years--thanks largely to the Protestant challenge--and has often been a progressive force and valuable voice in American democracy; Anthony Kennedy, another Catholic, was decisive in saving the Constitution in this case. But Locke and Sidney's point could be justly refined to say that right-wing Catholics can't be trusted to preserve a constitutional order.] This case has been getting a lot of comparisons to US v. Nixon and Youngstown Steel, but I think it may be a Brown v. Board moment too, going beyond a narrow claim on executive power to affirm an essential precedent for American liberty in the law. The Court announced that it will no longer tolerate a corrupted legal system, one based on presidential assertions of infallibility.

There were lots of other interesting findings this week. Surprisingly enough, I'm not with the liberals on all of them. The Kansas sentencing case, for example, in which the conservative majority upheld a "tie goes to the hangman" rule, strikes me as reasonable judicial restraint. States are due a fair amount of deference in sentencing guidelines, and the idea that mitigating factors must "outweigh," not merely "balance out," aggravating factors in DP cases seems a plausible enough rule. The Court has shot itself in the foot before when it moved too far against capital punishment; it should be wary of doing the same again. I'm also somewhat divided on the Texas redistricting case. The basic issue--whether or not the mid-decade DeLay gerrymander hurt minority voting power in violation of the amended Voting Rights Act--was a dog from day one. The minority delegations from Texas were never seriosuly affected by the redraw: Hispanic reps remained the same before and after. Although DeLay's move was corrupt and contemptible from the start, it's hard to see how exactly it violates the Constitution or the VRA. But Walter Dellinger, writing in a superb series of exchanges with Dahlia Lithwick at Slate, has convinced me that the redraw should have fallen on other grounds: that it had no conceivable "legislative" purpose other than sheer partisan advantage. Kennedy is clearly troubled by the gerrymander, but he doesn't want to make a move without a clear principle upon which to decide such cases. I respect that restraint, but, as Dellinger suggests, Kennedy could have found such a principle had he just worked a little harder.

There are other interesting cases I'm leaving out. But someone needed to drop a bomb and wake Emery from his jurisprudential slumber. As always, I'm happy to oblige.

Neo-Malthusian or Cornucopian?

There's an interesting synchronicity about futurism going on. First, TMcD predicts the political future. Then I read as Sam pens a paean to Productivity, reading which I muse, yet again, that if there ever is a singularity in which human beings implant their consciousnesses into transhuman cyborgs, Sam will be one of the "early adopters." SamCyborg will then pen a blog post on how he can't really explain why being a cyborg is so much better than being "merely human," but that if you just try it, you will see why. ("Resistance is futile." Indeed.)

Then there's the Slate piece on "The Future of Futurism", and the Yglesias rejoinder, both of which are pretty interesting.

The Slate piece divides futurists up into two groups: Neo-Malthusians, who, generally speaking, predict overpopulation, war, famine, pestilence, etc., and Cornucopians, who "promise great riches" through growth and technology.

My question for you: Are you a Neo-Malthusian, or a Cornucopian? And does seeing "the Al Gore movie" change your mind, my Cornucopian friends?

Prime-A Prime Minister?

Last night, at a picnic, I was informed by more than one female of the species that Japanese Prime Minister Koizumi is kind of, well, attractive. Really? Any thoughts? I would have thought that that hair, alone, would have been an issue. But apparently, that hair is part of his cool.

Anyway, another one that I don't get. But, then, I'm on record as one who doesn't understand women.

Sporting Times

So, a major doping scandal rocks the cycling world just before the start of the Tour de France. This can't be a surprise, can it?

Cycling, track and field, ML baseball here in the United States, even the NFL, if some of the reports I've heard are true . . . are drowning in a sea of performance-enhancing drugs and techniques. This era of world-class athletics will be remembered as the age of performance-enhancing drugs. But I think that this may be a good thing, if sports fans react in the right way. Namely, by turning off the television.

This may sound a bit like heresy, but the lesson here, I think, is that sports should be something that you do, not something that you watch. Instead of watching the Tour, or coverage of it, at least, why not hop on the bike and put in some miles yourself? Instead of spending precious time watching baseball, why not join a league of your own? Instead of watching the World Cup, join in a soccer match on the local pitch.

Sure, you won't be as good as Lance or Barry Bonds or . . . some soccer player, but why should that matter? Plus, it will do your body some good.

If sports were more participatory, one might still be interested in "the best of the best," but from a different angle. Indeed, participating in a sport is the best way to understand it. I think that I really appreciate the little running that I follow (the Boston Marathon, the Olympics) much better than I do baseball, or even the NFL games I've wasted so many Sundays watching. Because I run. So the runners I watch on the tv are engaged in an activity that I understand, in a very physical sense. But I'd much rather go for a run than watch others running.

There are two things that complicate matters here. First, and this is the 800-pound pink gorilla in the room, much of the interest in sport isn't in sport, but really in wagering. And one thing that gamblers like to have is a sense that they know something about the game on which they're betting. (Not true of Bertie Wooster, who is eager to bet on middle school sporting events, but he is, after all, fictional.) So, premier leagues serve a market niche for gamblers. Gamblers aren't going to turn off their televisions . . . and as long as there is gambling, there will be sports.

This is the 800-pound pink gorilla because no one, or almost no one, talks about this aspect of sports, and interest in sports. At least not in the United States.

Second, sports is largely a question of marketing today. (But what isn't? This is, overall, the Age of Marketing.) I would amend an earlier post on how sports is purely conventional to add that new conventions can be created, like consumer demand . . . or, rather, consumer demand for new sports can be created. Not for everything, mind you. You can't convince people that they really want to watch Arena Football, or hockey. (Sorry, hockey fans.) But you can persuade people that things like, say, the World Cup are interesting and "must-see."

My theory of a more participatory sports meets the Age of Marketing at an odd angle. It's not that a more participatory sporting world would provide less in the way of revenue. Indeed, people would need to buy more sporting equipment. (And, of course, elite athletes would be in demand for advertising. Think here of the sport of rock climbing, which I don't really follow, but of which I do know that elite rock climbers get sponsored by companies like Patagonia, in order that Patagonia can sell more rock climbing gear.) But it would mean less in terms of advertising revenue, which would complicate television, for example. But television, in its present form, is a dying technology, anyway. So why worry about that?

The point, I guess, is that if we were less consumers of sports programming, and more consumers of sporting gear, and, actually, users of sporting gear, we would be better for it, and then things like steroids and human growth hormone . . . these would be things that we wouldn't have to ever hear about. And that would be great.

Btw, it's human growth hormone in the NFL, not steroids. Or that's what I hear, at least. Plus, some thoughts on steroids and records from last October's baseball playoffs.