Saturday, November 05, 2005

Selective intelligence: Building the case for war in Iraq

There may not be a smoking gun, at least not yet, but there sure is a lot of smoke. Here's what Douglas Jehl is reporting in Sunday's Times:

A high Qaeda official in American custody was identified as a likely fabricator months before the Bush administration began to use his statements as the foundation for its claims that Iraq trained Al Qaeda members to use biological and chemical weapons, according to newly declassified portions of a Defense Intelligence Agency document.

The document, an intelligence report from February 2002, said it was probable that the prisoner, Ibn al-Shaykh al-Libi, "was intentionally misleading the debriefers" in making claims about Iraqi support for Al Qaeda's work with illicit weapons.

The document provides the earliest and strongest indication of doubts voiced by American intelligence agencies about Mr. Libi's credibility. Without mentioning him by name, President Bush, Vice President Dick Cheney, Colin L. Powell, then secretary of state, and other administration officials repeatedly cited Mr. Libi's information as "credible" evidence that Iraq was training Al Qaeda members in the use of explosives and illicit weapons.

As I wrote in a recent post on impeachment: "I don't think that building a case for impeachment at the expense of ignoring Bush's conduct of the war makes much sense. The war happened. What's done is done. So focus on what went wrong and who may be to blame for what went wrong... Yes, much of the focus should be returned to the gross mismanagement of the war itself. But there is every reason to believe that the Bush Administration lied or otherwise manipulated the intelligence (i.e., the facts) to advance its case for war in the first place. Is that not serious? Is that not something that should be investigated further?"

So how serious is this latest revelation?

Andrew Sullivan: "Worth emphasizing here: this is not necessarily evidence of deception. It fits into a pattern of insufficient skepticism in advance of the war.

Kevin Drum: "On balance, the CIA genuinely appears to have believed that Saddam Hussein was pursuing WMD programs before the war started, but there were also significant doubts and dissents about some of their evidence... Liberals and conservatives alike should have an interest in setting this record straight. Even if you believe the war was justified, and even if you think the balance of the evidence at the time supported the notion that Saddam was actively producing WMD, the fact remains that marketing a war isn't like marketing a soft drink. Citizens of a democracy should demand an honest accounting of the known facts before committing troops overseas, and the Bush administration didn't give it to us."

As usual, exceptionally well put.

A democracy should demand better of its leaders.

America should demand better of its president.


See also Editor and Publisher, The Left Coaster, Ezra Klein, War and Piece, and Think Progress -- all excellent posts on this developing (and continuing) story.

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Pirates of the Indian Ocean

Yes, piracy is still alive and well: "A luxury cruise line will re-evaluate whether to offer future cruises off the coast of Somalia after pirates attempted to attack one of its ships early Saturday."

I'm thinking more cruises in that area -- one of the most dangerous in the world -- might not be such a good idea for the time being. But that's just me. Maybe you like some extracurricular excitement with your holiday cruises.

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Bush's White House: Ethics for the unethical

The Post is reporting that "President Bush has ordered White House staff to attend mandatory briefings beginning next week on ethical behavior and the handling of classified material after the indictment last week of a senior administration official in the CIA leak probe". (See also here.)

A little late, no?

(Who will be running this "ethics course"? None other than Harriet Miers -- who, despite her recent nomination debacle, looks mighty clean next to some of her colleagues in the White House. But why is it that a lawyer has been assigned to teach ethics? Is that even possible? Somewhere, Aristotle isn't impressed.)

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What's new at The Reaction?

Blogging continues to be busy at The Reaction. If you're on the main page, which includes all posts from the past two weeks, I invite you to scroll down and check out what we've been up to here, including round-ups of reaction to major stories, links to new and interesting stories from around the world, commentary and analysis on important issues, and, yes, more Signs of the Apocalypse. Or, for easier navigation, click on these links to recent posts (in reverse chronological order):

I hope you enjoy them. I'll be back with new posts later today. Stay tuned.

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Friday, November 04, 2005

Is there a right to privacy in the Constitution?

My new friend Greg Prince at Uncorrelated has written a thoughtful and thought-provoking post on whether or not the Constitution as is includes a right to privacy, a response in part to Dan Savage's suggestion at The Stranger that Democrats propose a so-called "Right to Privacy" amendment. It's an interesting idea, and Democrats might to well to go ahead with it (would Republicans or conservatives more specifically come out against privacy?), but, like Greg (and liberals generally) I tend to think that the Constitution already includes the right to privacy -- it's just not mentioned by name. (Andrew Sullivan weighs in here, John Cole here.)

Here's what Justice William Douglas wrote on behalf of the majority in Griswold v. Connecticut, a key privacy case that validated the use of contraception by married couples:

The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers "in any house" in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender tohis detriment. The Ninth Amendment provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

The Fourth and Fifth Amendments were described... as protection against all governmental invasions "of the sanctity of a man's home and the privacies of life."

We have had many controversies over these penumbral rights of "privacy and repose." These cases bear witness that the right of privacy which presses for recognition here is a legitimate one.

So then, in this case:

We deal with a right of privacy older than the Bill of Rights - older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.

I am not a lawyer and certainly not a constitutional scholar. And I admit that there are powerful and persuasive arguments against this "right" to privacy.

An amendment could help, no doubt, but we who hold that the Constitution already includes the right to privacy must be more vocal in our defence of that right and in our opposition to those who would take that right away from the American people.

America is a liberal country, liberal in its founding political philosophy and liberal in its ideals. Liberalism holds that there are by nature only limited and narrow justifications for the abrogation of privacy, individual and otherwise, in civil society.

Human beings possess by nature the inalienable rights to life, liberty, and the pursuit of happiness. In most cases, when the rights of one do not impede the rights of another or others, they must be able to pursue happiness in private. The Framers of the Constitution surely knew that. They may not have written the word "privacy" into the Bill of Rights, but it is inconceivable that they, good liberals that they were, would have denied a fundamental right to privacy to Americans.

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Sign of the Apocalypse #25: Jessica Simpson

The devil may be a commercialized seductress.

Jessica Simpson, images of whom I'm sure you can find out here on the internet, is a Sign of the Apocalypse all on her own.

Yes, I mean her very existence.

Her stardom just makes it worse.

As does her nauseating marriage to Nick Lachey, which seems to be on or off depending on how much manufactured media exposure she needs to prop up her completely unjustifiable stardom, which would quickly evaporate without said media exposure.

Not to mention her recent trip to therapy: "I respect knowledge of the psyche. I would be a therapist if I weren't an entertainer."

And moronic statements like this: "Hopefully mine and Nick's story will continue for the rest of our lives, like what we vowed, through sickness and in health."

Indeed, even her award-winning cleavage, the bosom that she thrusts into the public spotlight with such eager determination, seems like a desperate Siren call to direct attention her way.

How sad that so many of us can't hear Orpheus above her hideous wailing.

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Oil drilling may go ahead in ANWR

This just sickens me: "The U.S. Senate on Thursday voted to allow oil drilling in Alaska's Arctic National Wildlife Refuge (ANWR), narrowly rejecting a Democratic attempt to strike the plan from a budget bill. Drilling supporters said developing the refuge's 10.4 billion barrels of crude would raise $2.4 billion in leasing fees for the government, reduce U.S. reliance on foreign oil imports and create thousands of American jobs."

Um, what about developing alternative energy sources? (Oh, right, the oil companies...)

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Iraq, the Democrats, and impeachment

Marshall Whittman of the Bull Moose (one of my favourite blogs and certainly one of the highlights of the centrist blogosphere) has an excellent post on "high crimes and misdemeanors" -- that is, on impeachment.

His argument is that "Congressional Democrats are settling on a 'narrative' and a 'frame' for the Iraq War" that leads to an inexorable conclusion: "[A] vast conspiracy concocted a war based on lies." Because of this, it follows, President Bush should be impeached.

The problem, Whittman argues, is that this focus on what happened before the war prevents us from focusing on what has happened during the war and subsequent occupation. So Congressional Democrats are "not pursuing the Administration's mishandling of the war and the failure to achieve victory". Yet "this Administration was negligent from the beginning in planning for the occupation" and "the President and the Administration grievously mismanaged the war".

Therefore: "This Administration should be held accountable for its grave errors and incompetence without opening a wound in our political life that will be very difficult to close." That is, the focus should be on the conduct of the war itself, not on the case made for war. Or, further, the focus should be on the gross mismanagement of the war, not on building a case for impeachment.

I tend to agree -- to a point. I don't think that building a case for impeachment at the expense of ignoring Bush's conduct of the war makes much sense. The war happened. What's done is done. So focus on what went wrong and who may be to blame for what went wrong. To some, impeachment may be the more appealing (and certainly the more satisfying) option, but it's not at all clear that impeachment is even a possibility and it seems to me that the gross mismanagement of the war provides more than enough ammunition for Democrats. (Besides, as we saw during last year's primaries, Democrats are deeply divided over the war, that is, over going to war in the first place, and consensus isn't likely.)

Of course, I say this as someone who supported the war but who then turned against it when it became abundantly clear that it was being grossly mismanaged. Like other liberal hawks, I had high hopes for the removal of Saddam, regime change, and the possible democratization of Iraq and, beyond that, the Middle East. And that may still happen -- whatever our skepticism, let's at least acknowledge it as a possibility (yes, I know that would more or less vindicate the neocons). But it's clear that the Bush Administration is very much to blame for what has gone wrong -- and that includes over 2,000 American deaths.

But I disagree with Whittman on this: The "narrative" or "frame" of the war shouldn't be ignored either. Although I do think that the focus should be on the conduct of the war rather than on the lead-up to war, or the case for war, it may very well be that the Bush Administration lied to the American people -- "deliberate deceit," Whittman calls it. Would this not be grounds for impeachment? If not, what exactly would be? Surely leading the country into war through "massive deceit" is worse than perjury or obstruction of justice, for example. Surely sending American men and women into harm's way for a lie is one of the worst, if not the worst, thing a president can do.

Yes, Congressional Democrats may be building that case. Yes, "the outer reaches of the left" may "already [have] reached this conclusion". Yes, much of the focus should be returned to the gross mismanagement of the war itself. But there is every reason to believe that the Bush Administration lied or otherwise manipulated the intelligence (i.e., the facts) to advance its case for war in the first place. Is that not serious? Is that not something that should be investigated further?

Don't Americans deserve to know what happened and why their country is now at war?


(I wrote about impeachment back in July -- see here.)

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The politics of panic: President Bush and avian flu

On Tuesday, to quote the Times, " President Bush announced... that he would ask Congress for $7.1 billion to prepare the nation for the possibility of a worldwide outbreak of deadly flu." Here's how he put it: "Our country has been given fair warning of this danger to our homeland and time to prepare. It's my responsibility as the president to take measures now to protect the American people... A flu pandemic would have global consequences, so no nation can afford to ignore this threat, and every nation has responsibilities to detect and stop its spread."

Senator Frist, a hack and possibly a crook, referred to Bush's "bold and decisive leadership," but this was clearly an attempt by the president to look presidential and to change the subject yet again after a particularly disastrous period of his generally disastrous presidency -- if Alito can't completely flatten Katrina, Plamegate, Iraq, and dreadfully low approval ratings, maybe manufacturing a massive threat will (and if it can't be terrorism, why not some mysterious virus?). Plus, he's already known as a big spender -- what's $7.1 billion more?

I've previously written about (the alleged pandemic of) avian flu here and here (and the dog flu here). Avian flu is real. Is the threat? Maybe. And maybe it will ultimately become a pandemic. But doesn't this over-reaction have the stink of desperation and manipulation about it? (What, from the Bush Administration? Would they do that?) After all, consider this "medical examiner" at Slate: "Americans tend to pour their fears into dangers that, however real, pose a relatively low risk for any individual—like terrorism, anthrax, smallpox, and now the avian flu..."

More: "[T]he science behind all the worry is questionable. It rests on the unproven claim that the avian flu will develop exactly like the strain that caused the flu pandemic of 1918... The current bird flu, however, has a different molecular structure than the 1918 bug. And though it has infected millions of birds, there is no direct evidence that it is about to mutate into a form that would transmit from human to human. In isolated cases, food handlers in Asia have gotten sick, but that doesn't mean that a wildly lethal mutation is about to occur... Even if the worst-case scenario does occur and the virus mutates, there is no current indication that it will spread the way the Spanish flu did in 1918."

What does it say about President Bush and his disastrous presidency that he is linking his fortunes in part to the politics of panic? Health officials around the world may be sounding the alarm, but, once again, he is misleading the American people.

Fear sells. Don't buy it.

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"Can I quit now? Can I come home?"

We know that Michael Brown, former FEMA chief, fiddled while Rome burned, that is, ate dinner while New Orleans flooded and people died.

But did you know it was even worse? Yes, the title of this post is a direct quote from an e-mail Brown wrote to a high-ranking FEMA official the day of the hurricane. Want more? A few days later: "I'm trapped now, please rescue me." Then there's some madly narcissistic banter about his clothing.

Read the whole CNN piece (link above). It's truly unfathomable how low Brown sunk -- or, rather, how low he really is. (But, Mr, President, wasn't he doing a bang-up job?)

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From bad to worse for 43

ABC News has Bush's latest approval numbers here: "An increasingly unpopular war, an ethics cloud, and broad economic discontent have pushed public opinion of the Bush administration from bad to worse, infecting not only the president's ratings on political issues but his personal credentials for honesty and leadership as well. George W. Bush's approval ratings for handling his job, Iraq, terrorism and the economy are all at career-lows. Sixty percent of Americans disapprove of his work in office overall, a level of discontent unseen since recession chased his father from office."

For more, see The Moderate Voice, The Carpetbagger Report, Political Animal, Donklephant, and Oliver Willis.

And, on the right, Outside the Beltway: "So, presidents have hit 40 and recovered. But Bush is fighting the twin dragons of an unpopular war and worries over the economy."

It's not looking good for 43.

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Alito and public opinion: The return of polarization

I'll be back with Part 3 of Scalitovision 2005 -- or, as I may call it, Alitovision 2005 (just to be more respectful, just to be more accurate now that Alito's differences with Scalia are more apparent) -- later today or over the weekend. In the meantime, let's have a look at public reaction to the Alito nomination:

The Post is reporting on a new poll that shows that "Alito begins the confirmation process with the support of 49 percent of the public". 30 percent are against the nomination and 24 percent are undecided. How this leads to 103 percent is beyond me. I never took statistics.


The poll suggests that Alito's supporters had some reason for concern. Initial public reaction to Alito was considerably less favorable than it has been to a number of other successful court nominees...

The survey also suggests that the Alito nomination may quickly emerge as one of the most divisive partisan and ideological battles of the Bush presidency.

And that's saying something. More: "Currently, 73 percent of all Republicans say he should be confirmed, compared to 33 percent of all Democrats. Six in 10 political conservatives support Alito, compared to slightly more than a third of all liberals and about half of all moderates."

From the unifying incompetence of Harriet Miers to the polarizing competence of Samuel Alito. Ah, it's good to be back to normal again.


See Scalitovision 2005, Part 1 and Scalitovision 2005, Part 2.

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You'll be missed, Aaron Brown

Aaron Brown is out and Anderson Cooper is moving up. I don't mind Cooper, but I've always like Aaron Brown, from the days I first watched him doing the overnight show on ABC. While Cooper showboats in hurricanes and empathizes incessantly with victims of one tragedy or another, Brown brings a quiet, calming assuredness to television news. Where Cooper is the one who feels, however smart he may be, Brown is the one who thinks. Cooper is the rising star with the hot ratings, Brown is the writer and intellectual who lifts television news to a higher plane. Cooper has his place, to be sure, but so does Brown -- even if it's no longer at CNN, which is trying so desperately to compete with the Fox News and its debasing sensationalism.

Perhaps it says something about Brown that he's not what CNN wants anymore. Yet how does CNN justify keeping the likes of the bombastic Wolf Blitzer, the xenophobic Lou Dobbs, the superficial Paula Zahn, and the senile Larry King on the air? Cooper stands out in that crowd, but is that really much of a compliment? Two truly intelligent men, Cooper and Brown complemented and balanced each other -- action and contemplation. Now we're left with Cooper, who needs to contemplate more and act less, as the sole stand-out in a line-up of unwatchables.

I'll miss Aaron Brown's soothing and reassuring presence on CNN. Let's hope he turns up again soon -- on a network that truly appreciates what he brings to television news.

(Joe Gandelman, who knows a think or two about journalism, has more at The Moderate Voice.)

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Thursday, November 03, 2005

Great news for public broadcasting

Corporation for Public Broadcasting Chairman Ken Tomlinson has resigned. A CPB inspector general investigated "Tomlinson's attempts to add more conservative programming," and the board of directors has been reviewing the as-yet unreleased report.

But this was the real problem: "Tomlinson came under heavy fire for adding conservative shows to balance what he saw as liberal bias, and for hiring an outside consultant to gauge the bias in shows, particularly Now with Bill Moyers." In short, Tomlinson is yet another conservative hack. He was needlessly politicizing public broadcasting by claiming liberal bias and attempting to impose his own conservative bias through ideological programming.

As Congressman Ed Markey (D-Mass.) put it, "[t]his is a welcome opportunity for the Bush Administration to appoint a replacement for Mr. Tomlinson who will be a defender of outstanding public affairs, educational, cultural as well as high quality children's programming".

Don't count on it. Tomlinson's resignation is great news, but his replacement might not be much better.

(I wonder what Michael Brown's up to. Maybe he needs a new job for which he's thoroughly unqualified.)

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Libby pleads not guilty

No surprise here. In his first court appearance, Scooter Libby entered a plea of not guilty and was released on his own recognizance by U.S. District Judge Reggie Walton. The next court date has been scheduled for February 3, 2006.

At The Carpetbagger Report, my friend Steve Benen has more on this -- including an interesting tidbit about Judge Walton.

See also The Brad Blog, which has video of Libby leaving the courthouse.

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A civilized debate on the Alito nomination

I've previous posted here on my friend Alexandra's center-right blog All Things Beautiful, which, like all the blogs listed on the right sidebar, I highly recommend.

Well, Alexandra and I have linked up in support of my Scalitovision 2005 series (see Part 1 and Part 2, with much more to come). See her "Joining Forces" post here. It includes an introduction by Alexandra that includes a list of important questions for both liberals and conservatives pertaining to the Alito nomination, as well as a fairly lengthy argument for civility in the blogosphere by me. I may post it in full here at The Reaction, but here's how it begins:

Disparate elements of the political blogosphere united for a brief time around the Harriet Miers nomination, but President Bush's recent nomination of Samuel Alito to replace Justice O'Connor on the Supreme Court has renewed hostilities between left and right and returned the blogosphere to a medium of warring echo chambers blustering on the extremes.

The blogosphere should be a network of information and communication, a place for diverse voices to be heard, for opinions popular and unpopular to be debated and considered. It should be a place where we learn from one another and where we have our opinions challenged by the best voices from across the spectrum. Instead, it is often a state of nature where only the loudest and most extreme are heard and where the voices of reason and contemplation are drowned out by partisanship and ideological fervor.

The blogosphere's greatest strength, its unregulated diversity, may also be its greatest weakness.

Now, with the Alito nomination, as with the Plame leak, the war in Iraq, and other such divisive issues and stories, we find ourselves subjected once again to juvenile name-calling and the general debasement of political discourse. But there are also intelligent, thoughtful voices out there, and those are the voices that must be heard above the din of extremist rhetoric.

Let me be clear about something: I am certainly not suggesting that we liberals and moderates capitulate and support the Alito nomination without reservation. Alexandra and I have linked up, but we don't necessarily agree. I was anti-Miers, she was pro-Miers. She's pro-Alito, I'm withholding judgement despite serious concerns about his hardcore conservatism and the potential tipping of the balance of the Court well to the right. Indeed, as I read more and more about his record, and about what he might do on the Court, I'm more and more inclined not to support his nomination. But we'll see.

Alito is in many respects the anti-Miers. He has years of judicial experience and seems to have a formidable legal mind, a strong character, and a congenial personality. Andrew Siegel, writing about "Alito's fightening geniality" at TNR, calls Alito the "worst nightmare" for liberals:

If you are a fan of the justices who fought throughout the Rehnquist years to pull the Supreme Court to the right, Alito is a home run -- a strong and consistent conservative with the skill to craft opinions that make radical results appear inevitable and the ability to build trusting professional relationships across ideological lines. If, on the other hand, you are a committed opponent of the Scalia-Thomas-Rehnquist agenda who has been carefully evaluating O'Connor's potential replacements with concern for the Court's future direction, Alito might be the most dangerous possible nominee.

See also Robert Gordon at Slate:

In the great Alito-Scalito debate, everyone makes one mistake: They seem to assume that if Samuel Alito is as conservative as Antonin Scalia, that's about as conservative as a judge can be. Not so. In important ways, Samuel Alito could prove more conservative than Antonin Scalia. And the record suggests he will...

If you are the sort of person who believes conservatives are always right, Alito's consistency in many matters will cheer you. Maybe it will even send you into the same earthly rapture that America's right has experienced since Monday morning. But if you are the sort of person who believes that conservatives and liberals both tell some of the truth and neither tells all of it, you may prefer the sort of conservative judge who ventures out of camp more often. Most Americans probably feel that way, which is why most Americans probably should think carefully about Samuel Alito's confirmation.

When Antonin Scalia starts looking good, you know you're in trouble.

True enough.

But if I was anti-Miers, and Alito is the anti-Miers, does that mean that I must be pro-Alito? No. I am not yet ready to judge him one way or the other, that is, to support his nomination or not, but what I would like to see, to repeat, is greater civility in the blogosphere. And, as a liberal who is proud to be a liberal and who may end up opposing Alito, I say this for two reasons:

1) If we are to oppose Alito, we must do so on the merits, by looking at his record and judging it accordingly. We won't help our cause by throwing around ad hominem attacks. We shouldn't lower ourselves by calling him names and otherwise refusing to participate in an intelligent debate on his nomination.

2) If we end up supporting Alito, for whatever reason(s), we should do so by respecting the process and by expressing our concerns maturely.

This isn't easy. I know that many of you out there are vocal opponents of the Bush Administration, the Republican Party, and the conservative movement. And I'm very much with you in my opposition to what they've done so far and what they're still trying to do. Let us stand up for what we believe in, let us seek victory on the electoral stage, let us engage our ideas for the good of America and of the world that is so heavily influenced and impacted by America. But let us also reach out to those who oppose us, and those who challenge us, by listening to what they have to say and by responding to them with decency and respect.

So to all my fellow bloggers out there, I say:

Let's have a more civilized debate on the Alito nomination. And let's have more civilized debates on all the issues that divide us. This great medium deserves no less. And certainly our readers deserve no less.

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Wednesday, November 02, 2005

The postmodern genius of George Lucas

Is Star Wars -- the whole six-part series -- "just one big elephantine postmodern art film" wherein George Lucas presents "a complex and interwoven narrative" and grapples with "the fundamental mechanics of storytelling itself"?

See here. I'm not entirely convinced, but it's an interesting critique.

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Democrats close Senate to discuss Iraq

From the Times: "Democrats invoked a rarely used rule today that sent the Senate into a two-hour closed session, infuriating Republicans but producing an agreement for a bipartisan look at whether the Republican leadership was dragging its feet on a promised inquiry into the Bush administration's use of prewar intelligence on Iraq." The GOP was not amused.

I'm happy that the Democrats are refusing to play the White House's spin game and move on from Plamegate to Alito, and I think that Reid deserves a good deal of praise. It's an attention-grabber, to be sure, which may be partly why the Democrats did it, but of course it does bring Iraq and the WMD debacle back to the fore after Bush and the Republicans tried to turn the page with the Alito nomination and some presidential speeches and photo-ops (and fear-mongering: avian flu, anyone?).

There's a ton of reaction in the blogosphere, but make sure to check out Steve Clemons at The Washington Note: "I think it was bold and a very constructive move by Reid." Reid "has done the nation a great service by making sure that our public attention is still focused on the mismanagement and serious abuses of the national security circumstances of the United States." Indeed, Steve thinks it's "very important".

Okay, I'm willing to give him that. But it's a big deal because of the issue, Iraq, not because of how the Democrats closed the Senate (which is what too much of the focus in the MSM is on).

At TPM Cafe, Mark Schmitt thinks that this is "a moment when the effective majority switches, when the minority takes control of the agenda well before an election".

See also Political Animal, The Carpetbagger Report, The Left Coaster, Tapped, Pandagon, Iddybud, and, of course, The Moderate Voice.

(On the right, see Professor Bainbridge.)

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SCOTUS and the hallucinogenic tea

From Bloomberg:

U.S. Chief Justice John G. Roberts Jr. led a chorus of Supreme Court skepticism aimed at a Bush administration effort to bar a 130-member New Mexico church from using a hallucinogenic tea in religious ceremonies.

Roberts today was one of several justices who suggested that a U.S. religious-freedom law trumped the Justice Department's contention that hoasca is dangerous and illegal under both a federal controlled-substances law and a treaty. Roberts questioned the government's argument that it needs to bar all use of hoasca to prevent diversion to non-religious uses...

The case poses the first religious-freedom test during Roberts's watch as chief justice. It pits the Bush administration against religious groups including the U.S. Conference of Catholic Bishops and the National Association of Evangelicals.

The case centers on the 1993 Religious Freedom Restoration Act, which says the U.S. government can't restrict religious activities except to meet a "compelling interest."

Congress passed the law in reaction to a 1990 Supreme Court ruling that said governments could enforce generally applicable laws, even if they incidentally restricted religious practices. That ruling, which involved a different hallucinogen known as peyote, limited the scope of the constitutional clause that protects the free exercise of religion.

Ann Althouse responds. As does SCOTUSblog: "The government’s no-exception, zero-tolerance approach to the religious use of a hallucinogen ran into considerable skepticism among the Justices. Only one, Justice Anthony M. Kennedy, seemed ready to go most of the way to support the government side... Perhaps the most telling development of the argument was that Justice Antonin Scalia displayed almost no sympathy for the government’s position."

I wonder if Alito will be asked about this at his confirmation hearings. (Kidding.)

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Canada's scandal: The Gomery Report unveils corruption

How odd. "Gomery" is currently the #9 search item at Technorati. Who knew there would be so much blogospheric attention on corruption in Canada?

For those of you who have no idea what I'm talking about, here's all the latest from The Globe and Mail (the lead article in today's paper edition is here, the Gomery page here).

As a Canadian, shouldn't I have something to say about Gomery? No, it's probably because I'm a Canadian that I don't really want to. Not now, anyway. Suffice it to say that we've got our share of scandals up here, too.

Mr. Justice John Gomery, our version of a special prosecutor, led a Commission of Inquiry into "a pro-federalism advertising and sponsorship campaign in 1996... to promote the visibility of the federal government in Quebec, where separatist sentiment was still strong". In short: "[A]n advertising and sponsorship program set up to promote federal unity was little more than a way to funnel funds to Liberal [Party] supporters." Here's what Gomery found:

  • clear evidence of political involvement in the administration of the Sponsorship Program;
  • insufficient oversight at the very senior levels of the public service which allowed program managers to circumvent proper contracting procedures and reporting lines;
  • a veil of secrecy surrounding the administration of the Sponsorship Program and an absence of transparency in the contracting process;
  • reluctance, for fear of reprisal, by virtually all public servants to go against the will of a manager who was circumventing established policies and who had access to senior political officials;
  • gross overcharging by communication agencies for hours worked and goods and services provided;
  • inflated commissions, production costs and other expenses charged by communication agencies and their subcontractors, many of which were related businesses;
  • the use of the Sponsorship Program for purposes other than national unity or federal visibility because of a lack of objectives, criteria and guidelines for the Program;
  • deliberate actions to avoid compliance with federal legislation and policies, including the Canada Elections Act, Lobbyists Registration Act, the Access to Information Act and Financial Administration Act, as well as federal contracting policy and the Treasury Board Transfer Payments Policy;
  • a complex web of financial transactions among Public Works and Government Services Canada (PWGSC), Crown Corporations and communication agencies, involving kickbacks and illegal contributions to a political party in the context of the Sponsorship Program;
  • five agencies that received large sponsorship contracts regularly channelling money, via legitimate donations or unrecorded cash gifts, to political fundraising activities in Quebec, with the expectation of receiving lucrative government contracts;
  • certain agencies carrying on their payrolls individuals who were, in effect, working on Liberal Party matters;
  • the existence of a "culture of entitlement" among political officials and bureaucrats involved with the Sponsorship Program, including the receipt of monetary and non-monetary benefits;
  • a pattern of activity whereby a public servant in retirement did extensive business with former recipients of Sponsorship Program contracts; and
  • the refusal of Ministers, senior officials in the Prime Minister's Office and public servants to acknowledge their responsibility for the problems of mismanagment that occurred.
Nice, eh? It's bad and it's dominating our news like the Alito nomination. Prime Minister Paul Martin, the finance minister back in 1996, did not receive a finding of blame, but former Prime Minister Jean Chretien did. All of which is to say that the Liberals are up to their earlobes in this, though they remain well ahead in the polls. An election is expected to be called for early next year.

My friend Grace Miao, with a fresh new look to her blog, has more here and here.

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The disappearing rain forest

This is serious. The BBC is also reporting that "[s]cientists from Brazil and the US say new research suggests deforestation of the Brazilian Amazon has been underestimated by at least 60%". Apparently, "selective logging" is to blame for part of it.

The researchers, who used satellite technology from NASA, "concluded that the area of rainforest destroyed between 1999 and 2002 was thousands of square kilometres bigger than previously thought. They also found that about 25% more carbon had been released into the atmosphere than estimated -- possibly enough to affect climate change."

For my previous posts on climate change and related issues, see here, here, here, and here.

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The power of cow entrails

Yes, that's right, cow entrails. The BBC reports that "[t]he world's first biogas-powered passenger train is taking its first passengers between the Swedish cities of Linkoping and Vastervik. And the biogas comes from the entrails of dead cows." So, too, Linkoping's buses and taxis.

And there's more from these forward-looking Swedes: "This year, Saab started selling a biopowered version of their 95 model. Its engine will take a fuel cocktail which is up to 85% bioethanol, made, principally, from Brazilian sugar beet."

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Lott contra Rove

Crooks and Liars has the video of Trent Lott on Hardball more or less saying Karl Rove should go. Lott's a bit of a maverick now, and he's got nothing to lose, but he may be right about this. At least for Bush and the Republicans. Would Democrats prefer he stayed on as a reminder of this White House's corruption and ongoing scandals?

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Tuesday, November 01, 2005

Scalitovision 2005, Part 2

Scalitovision 2005, Part 1 is here.

See SCOTUSblog's initial response here.

The Times has a good backgrounder on Alito here.

At The Moderate Voice, Joe Gandelman weighs in here, Jack Grant here.


Alright, let's look at some reaction from the blogosphere, specifically from the right (broadly speaking):

Behold, conservatives are happy again (even as liberals worry about Casey).

Professor Bainbridge (who just linked to me here): "I think it's a great choice. Alito is everything Harriet Miers was not..." McConnell was his first choice, but "this is a solid pick that should unite the base behind it".

Outside the Beltway: "So far, this looks like a home run pick."

Confirm Them calls it "an excellent selection".

Ann Althouse calls Alito "a stronger nominee than Roberts".

NRO: "Conservatives will have little reason to complain; in fact, they ought to be enthused."

Michelle Malkin: "This is a nominee the Right can get behind." She's also got a substantial round-up.

Captain's Quarters: "Now Bush has nominated a jurist with a solid track record and a reputation for a scholarly and consistent approach to Constitutional issues... In this nomination, Bush may have hit the home run we wanted with the first nomination." Still, Alito may not quite be the activist some on the right would like to see on the Court; indeed, he may have a "libertarian streak" to him.

Power Line: "We're about to get the fight over Constitutional principles that conservatives have looked forward to for years." Yes, but liberals are ready for it, too.

Don Surber has a round-up, plus this: "Good job, George."

Alexandra at All Things Beautiful has a better round-up.

The Political Teen posts on a conference call of conservative bloggers with RNC Chairman Ken Mehlman. And here's Michelle Malkin on the same.

Underneath Their Robes has some insider stuff.

PoliPundit looks at the votes: "With the vice president’s tie-breaking vote, confirmation is almost certainly assured." What do they say about not counting your chickens?


Hard to believe the right was so divided just last week. It's like Miers never happened. How will Democrats respond?


On the left, The Rude Pundit is, well, rude. Too rude, in my view. I'm not sure he advances the anti-Alito case one bit. In fact, I know he doesn't. Such rhetoric may appeal to the far left, but extremism of the left is just as ugly as extremism of the right, and I would rather our political discourse were slightly more civilized. If you want to oppose (or even attack) Alito, fine. Go for it. But don't resort to facile name-calling. (Shakespeare's Sister calls him a "retrograde reprobate," which is at least less offensive. I do understand the anger, however.)

Besides, there's some really good stuff out there:

The Heretik, as usual, has a great round-up with a distinctive voice.

MyDD has some links.

AMERICAblog says it's "war".

Pam Spaulding at Pandagon: "If there was any doubt, particularly among the moderates in his party, where this President turns to when he's got his tail between his legs, there isn't now." Yup. (Jedmunds weighs in here.)

Magpie at Pacific Views: "Dubya's nomination of Alito is obviously a response to the continuing political problems faced by the White House. The prez has decided that what he needs to do is firm up his base and — hopefully — unite Republicans around a nominee that they all can support, unlike the situation with the disastrous nomination of Harriet Miers."

The Next Hurrah: "The choice likely will widen a rift between Bush and the rest of the country. Alito's competence won't be an issue, but his judicial philosophy will. Down in the polls, desperate to both rally his base and change the subject, Alito will do both. He will also be the subject of intense opposition from the Democrats." Yes, this does seem to have a lot to do with Bush's "weakness," but I'm not sure Democrats will remain united long enough to challenge the nomination past the SJC.

Armando at Daily Kos claims that the right got its "Wingnut," a nominee "to the RIGHT of Scalia and Thomas". We'll see about that.

Liberal Oasis: "What's Samuel Alito's trademark? Hostility to equality."

Avedon Carol at The Sideshow: "The Republicans are going to try to pretend this guy is not an extremist, but he really is, you know. We knew this was going to happen, didn't we, boys and girls?"

Digby at Hullaballoo: "Alito is for Bush as Oxycontin is for Limbaugh. Alito is intended to ease the pain of Fitzgerald's indictments and continuing investigation by changing the subject... I'm NOT saying ignore Alito. What I'm saying is DON'T LET BUSH CHANGE THE SUBJECT." Agreed.

Firedoglake, responding to Alito on Casey: "Why is it that Republicans preach non-stop about making government smaller and the thing they most want to do is stick their noses directly into the most personal part of our lives?" Good blog, good question.

See also The Left Coaster (though I'm less worried about a Catholic Court than is my friend Steve Soto -- another good post here), Echidne of the Snakes, The Mahablog, TalkLeft, Majikthise, Billmon, and Ezra Klain at Tapped.

For reference, here's from People for the American Way: "President Bush put the demands of his far-right political base above Americans’ constitutional rights and legal protections by nominating federal appeals court Judge Samuel Alito to replace retiring Supreme Court Justice Sandra Day O’Connor."

In an excellent post, looks for "a reasonably objective Democratic voice".

I'll have much more liberal reaction to the Alito nomination in future Scalitovisions.


Justin Gardner at Donklephant:

Rejoicing from the right.

Screams of heresy from the left.

And in the middle... it’s anybody’s guess.


Food for thought (from some of the smarter conservatives out there):

Captain Ed at Captain's Quarters predicts that Alito will be confirmed 65-35. Hence no filibuster and no nuclear option. Sounds about right to me, though it could be more like 62-38 if abortion remains the key issue.

Eugene Volokh at the quasi-eponymous The Volokh Conspiracy disagrees with Dahlia Lithwick's charge at Slate that Alito has offered "an explicit [promise] to reverse" Roe: "Judge Alito was applying the 'undue burden' test -- a test that would strike down pre-viability abortion bans, but that would uphold some not very well-defined set of regulations that fall short of bans -- to determine the constitutionality of a spousal notification requirement, a requirement that was indeed quite short of a ban. He read 'undue burden' narrowly; the Court read it more broadly." It's a very good point, I must admit, though I do think liberals and other pro-choicers have cause for concern.

Elsewhere, TVC tackles the subject of Alito and "the nature of modern conservatism".

NRO's The Corner looks at Alito and abortion (beyond Casey): "If media outlets are going to report on the Casey opinion, they need to review all of Alito's opinions that relate to the abortion issue. What they show, in toto, is a careful jurist committed to the rule of law, not a 'pro-life' judge or a 'pro-choice' judge."

Ann Althouse discusses Alito's view of the Family and Medical Leave Act in Chittister v. Department of Community and Economic Development. (On the center-left, Angry Bear discusses the case here.) Much of the focus will be on abortion and other hot-button issues, but let's not forget that there's more to Alito's record than Casey -- for better and for worse.

More to come.

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Scooter Libby and the dustbin of history

Now that it's all Alito all the time, surely we must ask, we the stupid, we the manipulated, we of the short-term memories, we who live in the moment and for the next big thing:

Scooter who?


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Scalitovision 2005, Part 1

So apparently there's only one big news item today. Forget Syria's obstruction of the investigation into the murder of Rafik Hariri. Forget the evil that is Wal-Mart. Forget more U.S. deaths in Iraq. Forget the violent unrest in Rwanda and the Congo. Forget the continuing political turmoil in Germany. Forget avian flu.

It's now all Alito all the time.

So let me begin a new series at The Reaction:

Scalitovision 2005

Yes, as you all know by now, now that it's late Monday evening and the Steelers have just taken a 17-10 lead over the Ravens (Steelers fanaticism is perhaps the only thing's Mike Krempasky and I have in common), Bush today nominated Samuel A. Alito Jr., a judge on the U.S. Court of Appeals for the Third Circuit, to be Sandra Day O'Connor's replacement on the Supreme Court -- for his bio, click on his name.

(Trivia question: What does the 'A' stand for? Answer at end of post.)

Here's how the Post put it:

President Bush nominated [Alito] to the Supreme Court yesterday, rallying his estranged Republican base back to his side and triggering a torrent of liberal attacks that could foreshadow a bruising ideological showdown over the future of the judiciary.

In effect relaunching the nomination four days after Harriet Miers withdrew under fire, Bush selected a long-standing New Jersey judge with an extensive record of conservative rulings on abortion, federalism, discrimination and religion in public spaces. If confirmed to replace retiring Justice Sandra Day O'Connor, the swing vote in recent years, Alito seems likely to shift the court to the right.

The conventional wisdom: "If confirmed to replace retiring [O'Connor], the swing vote in recent years, Alito seems likely to shift the court to the right." Which is precisely why conservatives have "rejoiced at the selection" and why liberals have "accused Bush of bowing to the most extreme elements of his party".

There's a reason this is the story of the day and why it'll be with us for a long time. Get ready for an immense, and intense, political battle over Alito's nomination.

Fairly or not, let's do what others are doing and call him "Scalito" -- or Little Scalia, at least in our post titles. Why? See for an explanation.

Hence Scalitovision -- with this the first of presumably many entries in the series.


Before heading off into the blogosphere, let's look at what Slate has said:

Back in July, a round-up of the Supreme Court "shortlist" described Alito, otherwise known as "Little Nino" (just how "little" is he?), as "especially filibuster-prone". Why? Abortion, of course. (He's, uh, against it.)

Today, Emily Bazelon contrasted Alito and O'Connor on -- what else? -- abortion. Specifically, what troubles Bazelon (and, one presumes, liberals generally -- and it certainly troubles me) is Alito's "partial dissent" in Planned Parenthood v. Casey (1991), a case that ultimately upheld "the core of Roe v. Wade" but that "also upheld Pennsylvania's 24-hour waiting period, its informed-consent requirement, and its rule that women had to hear all about the growth and development of their fetuses." The problem, if you see it as a problem (which I do) is that Alito's "partial dissent" involved arguing for "spousal notification" (i.e., a married woman must notify her husband before having an abortion). Rehnquist, Scalia, Thomas, and White sided with Alito. O'Connor, Souter, Kennedy, Stevens, and Blackmun (the author of Roe) united against them in support of O'Connor's "undue burden test".

Also today, Dahlia Lithwick is much harsher: "In the true spirit of Halloween, a month of vicious attacks from the right has been papered over, and this nomination is dressed up as if the last one never occurred... So rededicated is President Bush to keeping his promise to elevate a Clarence Thomas or an Antonin Scalia to the high court, that he picked the guy in the Scalia costume. Alito offers no surprises to anyone. If explicit promises to reverse Roe v. Wade are in fact the only qualification now needed to be confirmed to the Supreme Court, Alito has offered that pledge in spades."

No wonder liberals are up in arms... and ready for a fight.

But so are conservatives, united once again, as John Dickerson informs us: "Finally, the battle everyone has been waiting for... Now, with the nomination of Samuel Alito, both parties can revert to type."

More from the MSM (not that Slate's really the MSM) in future Scalitovisions.


I won't do a full round-up of blogospheric reaction to the Alito nomination tonight. There's just too much out there, and I'd rather take some time to sift through the more worthwhile posts from across the spectrum.

For a quick recap, see The Debate at the Post.

I'll have a lot on this story. Keep coming back for more.

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Monday, October 31, 2005

Wal-Mart is still evil

On Tuesday, September 20, 2005, I declared in this space that Wal-Mart is evil. Some might see that as a self-evident truth that didn't need declaring, but declared it I did, and let me declare it again: Wal-Mart is still evil. Yes, the retail giant is launching a "counteroffensive," war room and all, designed "to sell a new, improved image to reluctant consumers" now that its existing image has been justifiably tarnished by... well, by being Wal-Mart.

Memo to Wal-Mart: You're Wal-Mart! We know what you are! We know that you squeeze your suppliers, screw your employees (illegally, I might add), destroy small-town shops, and sell crap. Spin yourselves into a frenzy of deceit and marketing mayhem. Do what you will. In the end, you're still Wal-Mart! You're still evil!

(Alright, so I'm in an angry mood tonight.)

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The Post is reporting that President Bush will "announce a new Supreme Court nomination today, moving quickly after a weekend of consultations to put forward a replacement for the ill-fated choice of Harriet Miers in hopes of recapturing political momentum, according to Republicans close to the White House".

The three leading candidates: Alito, Luttig, and Batchelder.

"Any of the three would draw support from many conservative activists, lawyers and columnists who vigorously attacked Miers as an underqualified presidential crony. At the same time, the three have years of court rulings that liberals could use against them."

Indeed, "Senate Minority Leader Harry M. Reid (D-Nev.) said yesterday that he has already warned the White House that nominating Alito -- who is often compared to Justice Antonin Scalia -- would 'create a lot of problems'."

Look for the Republican Party -- and its disparate conservative elements, including those that rebelled over the Miers nomination -- to unite behind Bush's nominee, whomever it may be (unless it's, say, Gonzales, who would provoke further cries of cronyism and heresy from the right).

And look for the Democratic Party to stand firm, at least at first and through the confirmation hearings.


Around the blogosphere:

TalkLeft: "Quick action, calculated to distract the news media from the Plame investigation, may also be calculated to consolidate the Republican Party behind a nominee who is trusted to advance a conservative agenda."

Southern Appeal thinks it might be Brown (JRB). I doubt it, but anything's possible. (At least the reasoning is sound.)

If it's Alito, Confirm Them will be "delighted".

And it looks like it will be, if is to be believed: "Luttig is a possibility, but there is some concern that Luttig could 'grow' in office." (As if growth is so bad!)

All the more reason why, of the leading candidates, I hope it's Luttig.


Our previous posts on all this (in chronological order):

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Will Bush be the next Comeback Kid?

Time comments on Bush's "week from hell" and what may be left for this bruised and battered president.

It won't be easy for Bush to come back from this mess: "More than anything else, it was the Miers meltdown that dissolved once and for all the image of a President whom no one defies and whose luck never runs out. The whole debacle, even Bush insiders say, reflects the problem of a leader who doesn't hear from enough people."

Plus, Rove has not been "in top form" and "Cheney's standing has suffered".

And here, perhaps, is the problem (for all of us): "'These guys are very good at campaigning,' says an outside adviser to the White House, 'and not so good at governing.' As long as there is an election on the horizon, they function like a humming machine and their coalition stays in line. But in an environment where that isn't there, they fall apart."

Great. But look where that leaves America (and the rest of us).

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Loyalty and dissent in the Bush Administration

Jonathan Alter has a must-read column in Newsweek. Key passages:

The same president who seeks democracy, transparency and dissent in Iraq is irritated by it at home...

Instead of reaching out and encouraging disagreement, Bush let neocons like [Scooter] Libby and Paul Wolfowitz hijack his foreign policy. Amazingly, the pros and cons of invading Iraq were never even debated in the National Security Council. If you had doubts, like Colin Powell, you were marginalized.

And the conclusion:

The good news about the president's bad week is that even his conservative backers are no longer willing to keep quiet when they think he's wrong. And Fitzgerald was so impressive that the normal White House response—to savage the critic—was not an option this time. So Karl Rove survives, but the fear he stoked is easing. Four years after September 11, we're beginning to get our democracy back.

Make sure to read the whole thing.

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Sunday, October 30, 2005

Conservatism, originalism, and precedent: Going back to the source

I don't think that anyone who would think of overturning a well-established precedent (such as Roe v. Wade) deserves to call himself or herself a conservative or to serve on the Supreme Court for that matter. Conservatism, at least in the sense in which I've always understood it, is about leaving well enough alone, of avoiding change for the sake of change, particularly when it proves disruptive, for as Edmund Burke was fond of saying, "in every revolution there is something of evil."

Those on the bench who condemn the "judicial activism" of liberal judges but who have the hubris to overturn a great mass of law when they think that it runs counter to their interpretation of what the founders intended (quite a stretch already) should go back to the constitutional law textbooks and read the great Justice John Marshall's opinion in McCulloch v. Maryland. In upholding the constitutionality of the federal government granting a charter of incorporation to the Second Bank of the United States in the absence of any explicit constitutional grant of power to do so, Marshall writes:

But it is conceived, that a doubtful question, one on which human reason may pause, and the human judgment be suspended, in the decision of which the great principles of liberty are not concerned, but the respective powers of those who are equally the representatives of the people, are to be adjusted; if not put at rest by the practice of the government, ought to receive a considerable impression from that practice. An exposition of the constitution, deliberately established by legislative acts, on the faith of which an immense property has been advanced, ought not to be lightly disregarded.

And this from a man who could claim to know the intent of the founders... since he knew almost all of them, personally! It's about time that modern originalists dispensed with their pretentions to be able to divine the intent of the founders.

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What the hell's a "superprecedent"? -- or, why Luttig is looking better and better

Generally, they're good for liberals and bad for conservatives -- at least for conservatives who claim to be originalists (as if it's possible to know the "original intent" of the Framers, as if what applied back in 1789 can possibly apply in full in 2005). Jeffrey Rosen explains in the Times:

Many conservatives say they hope that the new nominee will follow the lead of Justice Antonin Scalia and, even more, Justice Clarence Thomas, who has become a conservative hero because of his willingness to overturn many liberal precedents of the last 70 years, from Roe v. Wade to cases upholding the New Deal.

But social conservatives face a problem: a new theory of "superprecedents" that is gaining currency on the right as well as the left.

The term superprecedents first surfaced at the Supreme Court confirmation hearings of Judge John Roberts, when Senator Arlen Specter of
Pennsylvania, the chairman of the Judiciary Committee, asked him whether he agreed that certain cases like Roe had become superprecedents or "super-duper" precedents -- that is, that they were so deeply embedded in the fabric of law they should be especially hard to overturn.

And so:

In response, Judge Roberts embraced the traditional doctrine of "stare decisis" -- or, "let the decision stand" -- and seemed to agree that judges should be reluctant to overturn cases that had been repeatedly reaffirmed.

If that is the case, Chief Justice Roberts would be at odds with the influential part of the conservative movement that argues that the Constitution should be strictly construed in accordance with the intention of the framers, regardless of the consequences.

It would seem that Luttig is with Roberts on this -- that is, for superprecedent and against pure originalism:

Striking down a Virginia ban on a procedure that opponents call partial-birth abortion, Judge Luttig wrote, "I understand the Supreme Court to have intended its decision in Planned Parenthood v. Casey," the case that reaffirmed Roe in 1992, "to be a decision of super-stare decisis with respect to a woman's fundamental right to choose whether or not to proceed with a pregnancy."

Before the Roberts confirmation hearings, Mr. Specter talked informally to several law professors, including this writer, who mentioned the theory of super-stare decisis, noting that Judge Luttig thought it was important that Roe had been repeatedly reaffirmed by different Supreme Courts, composed of justices appointed by presidents from different parties and confirmed by Senates controlled at times by Democrats and Republicans.

Yes, Luttig is looking better and better. (Maybe...)


Around the blogosphere:

Ann Althouse responds: "Quite clearly, Luttig is not saying that there is a such thing as super-stare decisis. He's a Court of Appeals judge bound by Supreme Court precedent and subject to Supreme Court review. He's paying attention to what that Supreme Court has written about abortion rights, and he's reading the Court to have intended [Planned Parenthood v. Casey] to serve as an especially strong precedent."

Confirm Them posts on Luttig on superprecedents and Alito on spousal notification.

Daily Kos has an open thread.

Kevin Drum at Political Animal makes an excellent point: "It seems to me though, that the focus on Roe is misguided in any case. If my understanding of Roe is correct, it's based on a generalized right of privacy as decided in Griswold v. Connecticut, which in turn was based on our current understanding of the doctrine of substantive due process. I suspect you can't overturn Roe without also substantially overturning Griswold and significantly weakening the modern application of substantive due process at the same time. Rosen mentions this, and it seems like it's really the key issue: not whether Roe is a superprecedent, but whether Griswold's interpretation of substantive due process is a superprecedent."

More to come -- obviously.

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