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Archive for November, 2005

Sub Silento

[ 0 ] November 30, 2005 |

Don’t believe me when I say that Alito wants to throw Roe from the caboose? Then take Alito’s word for it. To reiterate the obvious, the only serious question is whether Alito will vote to overturn Roe directly or incrementally.



[ 0 ] November 30, 2005 |

Oral arguments in the crucial abortion case Ayotte v. Planned Parenthood will be on C-SPAN at 12:15 ET. I’ll have live or post-blogging as interesting developments warrant.

…great question by Souter, which Ayotte simply can’t answer. New Hampshire seems to be arguing that despite the choice of New Hampshire not to include a health exception a doctor who provided an emergency abortion to protect a woman’s health without parental notification would be “constitutionally protected,” but when pressed (Souter asked twice where this constitutional protection came from, and Ayotte refused to answer) Ayotte wouldn’t acknowledge the obvious: that the heath exemption is clearly required by Roe and Carhart, and hence the New Hampshire law is obviously unconstitutional under current law.

…to put the facial challenge issue being dicussed in context, let’s consider what Salerno–the case the statute’s defenders would like to apply in order to protect the statute from being struck down based on a facial challenge–says:

“A facial challenge to a legislative act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the act would be valid. The fact that [a law] might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid…”

Compare this with Casey: “[t]he proper focus of constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant.” To state the obvious, as Souter and Breyer have pointed out repeatedly these two standards are utterly incompatible. And under the Salerno rule, virtually no abortion regulation could be struck down under the standard. The sick irony is that the fact that such regulations generally don’t have much impact on healthy middle-class women in stable families will make them impossible to strike down.

…interesting argument overall. Casey‘s supporters on the court, at least, for once aren’t going down without a fight; it was nice to see Souter going toe-to-toe with Scalia, and Breyer, Stevens and Ginsburg were all active and had good questions. Scalia wasn’t able to dominate proceedings like he normally does. Alas, unless they can get Kennedy’s 6th vote it’s all moot because the case will probably be re-argued.

…welcome to readers from Alas, A Blog! More detailed and considered thoughts about Ayotte here.

But the Tradition!

[ 0 ] November 30, 2005 |

You can count me among the utterly unsympathetic.

The flags from Southern states disappeared from the chapel. The ceremonial baton dedicated to a Confederate general who helped found the Ku Klux Klan vanished. The very name of the University of the South was tweaked, becoming Sewanee: The University of the South, with decided emphasis on Sewanee.

It all seemed eminently sensible to university administrators looking to appeal beyond the privileged white children of the South, who have long been the university’s base, and become a more national, selective and racially diverse university.

But the changes have sparked a passionate debate among alumni, many of whom view them as a betrayal of their history.

Some traditionalists say they fear that the name of the university’s guest house, Rebel’s Rest, will be next to go and that a monument donated by the United Daughters of the Confederacy commemorating Edmund Kirby-Smith, a Confederate general who taught at the university for nearly 20 years, will be removed.

“I think they ought to leave it the way it is,” said Dr. David W. Aiken, an alumnus who is an orthopedic surgeon in Metairie, La. “I wouldn’t be for changing anything. I think they’re doing quite well. What is the purpose of making it a more national school? Do I want kids from California, New York coming there? Not really.”

If you ask me, the fewer monuments we have commemorating treason, the better.

Point of Order

[ 0 ] November 29, 2005 |

Point of Order is again available on DVD. I highly recommend it, and it’s a fair bit more interesting than Good Night and Good Luck. Army lawyer Joseph Welch is the star, and although the film includes the “Have you at long last no decency” scene, my favorite line is Welch’s indirect mention of Roy Cohn’s sexuality:

WELCH: Did you think this came from a pixie? …
MCCARTHY: Will the counsel for my benefit define – I think he might be an expert on that – what a pixie is?
WELCH: Yes, I should say, Senator, that a pixie is a close relative of a fairy. Shall I proceed, sir? Have I enlightened you?

Welch later appeared as the judge in Anatomy of a Murder, which is one of my favorite Jimmy Stewart films.

But, if you don’t trust me, then at least listen to esteemed reviewer jtpaladin, at

This film is nothing but an attempt by left-wing degenerates to smear a great Senator who had the guts to stand up to communist infiltration of our government. Senator McCarthy used legal means and protected the innocent by giving those questioned an opportunity to meet in Executive Session and anyone found innocent, left without further issue. Sadly, the same can’t be said of the treatment that Senator McCarthy received. This film was edited in such a way as to make the Senator look bad.

The rest of his 106 reviews are genuinely fascinating; he combines a hatred of various gadgets and “left wing” books and films with a deep affection for Sex and the City and the Village People. I confess that I found this deeply reassuring.

"We burn the Poles"

[ 0 ] November 29, 2005 |

One of my few moments that I have truly enjoyed myself at a political science conference came during the late 1990s on a panel somewhere in Southern California. The topic of the panel was nuclear proliferation, and I seem to recall that I was giving some paper on the effect of Sino-American rapproachment on the Pakistani nuclear program. The chair of the panel took it upon himself to explain pre-emption to the audience (one young scholar gave a very bad paper trying to describe nuclear warfare as a game of Chicken) and got onto the topic of the use of nuclear weapons in Europe in the context of a NATO-Warsaw Pact general war. “In this scenario” he said, with a deep German accent, “we burn the Poles, the Hungarians, and the Germans; well, maybe not the Germans, and they burn the Belgians and the French, and hopefully we do not burn each other.” It occured to me at the time to think about how bizarre this truly was; we were thinking about using American nuclear weapons not just against Russian civilians, who, of course, could hardly be blamed for the behavior of their government, but also against Polish civilians whose only crime had been to be enslaved by the Russians. And the use of the word “burn” really brought the point home. Ethics and nuclear war don’t go well together.

This article reminded me of that panel. It seems that the Polish Defense Minister, irritated in some fashion by the Russians, has gone and decided to publish various Warsaw Pact plans for war against NATO. One plan in particular involved a Russian nuclear attack on Western Europe either in response to or in expectation of a Western nuclear attack on Poland. According to the article, this is supposed to embarass the Russians and cause a further rift in Russo-Polish relations.

I’ll confess that I don’t really see what the fuss is. Of course the Soviets contemplated war plans that would result in the destruction of their allies; so did we. Also, it’s hardly news that the Russians had somewhat less regard for and trust of their Eastern European allies than we did of out Western European friends. Nevertheless, it’s a mildly interesting bit of news, although really a lot less interesting than the revelation a few years ago that the central task of Polish forces in a general war would be the “liberation” of Denmark.


[ 0 ] November 29, 2005 |

We can’t let the terrorists know that we’re incompetent. Letting that little secret out could lead to disaster.

"What A Republican Calls Himself When He Wants To Get Laid"

[ 0 ] November 29, 2005 |

Wow, Roy points out that some people are still claiming that Glenn “Husband Notification Laws Are A Refreshing Balm For My Misogynist Ressentiment” Reynolds is a “libertarian.” Pathetic, really.

In other XFL Media (TM) news, I see that Charles Johnson is taking a page from his colleague’s playbook, claiming that Ward Churchill is “a hero of the progressive movement.” (Omitted: evidence for this alleged hero-worship among progressives of any influence.) No surprise there; Instapundit is, after all, nothing but Little Green Footballs with a law degree.

A Vote of Non-Confidence…For Wingnut Blog Triumphalism

[ 0 ] November 29, 2005 |

The Martin government has been felled by a non-confidence vote, which means that the holiday season in Canada will be saturated with a bitterly contested election. At least at this early date, it’s difficult to see a majority government emerging from the new election, so the political situation could remain very unstable.

Liberalism Without Cynicism finds Instapundit–via his emailers–giving Captain Cubicle credit for bringing down the “fricken Canadian Government.” As Laura points out, there are some rather monumental problems with this thesis, starting with the fact minority governments in Canada have historically had the shelf life of an Andrew Ridgely solo album, and the fact that all the relevant information has (and would have been) released in Canada by now. Anyway, it’s reassuring to know that Reynolds knows about as much about Canadian politics as he does about most of the stuff he blogs about, although perhaps blog triumphalists just means that they have blogs of an analogous quality to the wank-metal of Canadian mainstays Triumph, which would make much more sense…

The Solomon Amendment

[ 0 ] November 29, 2005 |

While the big case that will be having oral arguments in front of the Supreme Court this week is Ayottewhich I will have more about later this week–another interesting upcoming case is Rumsfeld v. FAIR, which concerns the constitutionality of the Solomon Amendment. The Amendment denies funding to a university that “either prohibits, or in effect prevents’ military recruiters access to students equal in quality and scope to that provided to other recruiters,” which the 3CA issued an injunction against enforcing. The question is a difficult one, which hasn’t gotten a lot of attention on liberal law blogs yet. Fortunately, Fantasy Life has a very detailed treatment of the background to the case. It’s a close and difficult case, but like her I am reluctantly inclined to think that the Amendment–while very bad policy–does not violate the First Amendment. The state’s leeway under its spending powers are much greater than if it’s enacting direct prohibitions. I certainly agree with the made by several conservatives that any exclusion from federal law based on “expressive association” has to apply to Bob Jones University just as much as it applies to the Harvard Law School. If the Solomon Amendment cannot be applied to universities, then could schools that lose funding under Title IX sue to be exempt from that too? It’s hard to come up with a principled reason why not. Making the Solomon Amendment non-applicable could have wide-ranging effects on civil rights law, and I think that the government can use its spending power to promote these kinds of purposes.

However, there’s another question of interest: assuming that the Amendment is constitutional, do the policies of most law schools violate it? The amicus brief filed by the Harvard Law School faculty argues that the policy does not. The question turns on whether the military is being denied access “on equal terms.” A policy that banned military recruiting per se would obviously violate the amendment. But Harvard’s policy doesn’t; it has neutral rules requiring businesses that want special access to on-campus recruiting to be non-discriminatory, and the military does not adhere to these rules. If it wants access to campus, it has the option of stopping its discrimination against gay people. As it stands, the military wants a special exemption to rules that apply to other recruiters. The brief argues, quite persuasively, that the language of the statute does not require such special privileges:

In short, the government has chosen to enforce the Solomon Amendment as if it conferred upon the military a unique privilege–one shared by no other employer, including other agencies of the Federal Government–to disregard neutral and generally applicable rules designed to govern the conduct of all recruiters. There is, however, a better way to read the statute–one that could resolve this case without requiring this Court to venture into the constitutional tangle presented in the parties’ briefs. Consistent with the statute’s text, its history, and the government’s own rhetoric, the Court should hold that the statute confers no such unprecedented trump. Rather, like all of its legislative predecessors, the Solomon Amendment applies only to policies that single out military recruiters for special disfavored treatment, not evenhanded policies that incidentally affect the military. Because there is nothing in the statutory text that would support a special rule for anti-discrimination policies, the only alternative would be to hold that the Solomon Amendment confers upon military employers the extraordinary right to claim immunity from any policy–no matter how evenhanded–that they deem burdensome to their recruiting efforts.


If the government’s enforcement policies with respect to the Solomon Amendment reflected an accurate view of the meaning of “in effect prevents,” then the school’s requirement would presumably be one that “in effect prevented [the] student . . . from enrolling in a[n ROTC] unit . . . at another institution.” And if that were true, institutions of higher learning could presumably be required to modify scores of neutral and generally applicable policies to ensure that their students’ ability to participate in ROTC was not impaired. Like the Solomon Amendment, then, the ROTC provision is most sensibly read to rule out only policies that target ROTC programs and participants for special negative treatment.

This interpretation of the statute seems reasonable to me. I would be tentatively inclined to defer the complex constitutional issues, and simply rule that policies that do not explicitly single out the military for differential treatment do not violate the Solomon Amendment.

Scenes From a Philistine

[ 0 ] November 28, 2005 |

TBogg notes that XFL Media (TM) co-founder Roger Simon is excited about the prospect of a pro-Iraq War film (apparently designed for those who found The Green Berets a little too subtle), which will obviously do the kind of gangbuster business that America’s Heart and Soul did against Fahrenheit 9/11. (As TBogg notes, the war movies that Willis has recently appeared in have really raked in the dough too.) Simon’s optimism seems to have a solid base. Roy has used his prodigious showbiz connections to acquire a copy of Willis’ script. I think we can all agree that if the executives don’t butcher it this movie will a classic–in the sense of a movie frequently aired on American Movie Classics between Delta Force 8: Delta Against Venus and Iron Eagle 4: This Time, We Know Lou Gosset Jr. Has A Higher Script Approval Ratio Than Nic Cage.

Cope India 2006

[ 0 ] November 28, 2005 |

F-16s flying against Su-30s? My heart beats faster…

Cope India 2002 focused on airlift operations. The 2004 joint exercise involved F-15s and a variety of Indian aircraft, including SU-30s. The surprising this about Cope India 2004 was that the Indians won; it has been remarked that they won because the USAF threw the game in order to provide a better case for the F-22. Indeed, the 2004 exercise was clearly cooked in favor of the Indians, who were able to fly with superior numbers and more tactical flexibility.

Now they’ve played again, and it looks as if the Indians have won again. The IAF is flying some pretty advanced aircraft, including the Su-30, which some argue is the most advanced aircraft in the world outside of the F-22. However, the Indians are also flying refurbished Mig-21s, which are probably somewhat more advanced than a F-4. You can continue to color me skeptical about the actual effectiveness of the IAF against the USAF. The most important thing to remember is that the USAF has an incentive to lose with both its F-16s and F-15s; it wants new aircraft, and it does not want to showcase its best tactics in an arena accessible to potential foes. Now, whether those considerations outweigh concerns about institutional pride and, frankly, fighter jock arrogance remains unclear.

Still, such exercises can only please the PLAAF, which has an undetermined but growing stable of Su-30 fighters, as well as many older models.

Copyrights and the Court

[ 1 ] November 27, 2005 |

The discussion of copyrights chez Ygelsias and Atrios compelled me to take another look at the Supreme Court’s recent decision in Eldred v. Ashcroft. One of the things that’s fascinating about the case is that, as Atrios notes, the Copyright Clause in Article I essentially requires itself to be read pragmatically and consequentially, granting Congress the power to grant copyrights only for the purpose of promoting “the Progress of Science and useful Arts.” As many of you may remember, the case concerned the “Sonny Bono Copyright Term Extension Act,” which (among other things) gave a 20-year extension to most existing copyrights, extending them to 95 years. The question of the case is whether this extension was consistent with this limitation on Congressional power. The Court ruled 7-2 that the Act was constitutional. This is a tough case, at least for a non-libertarian such as myself, because Congress is entitled to a large degree of deference when it comes to determining what constitutes scientific or artistic progress. While it’s certainly terrible public policy, I would probably even go along with the Court in upholding the extension of the term of new copyrights; as long as the grant isn’t literally perpetual, I don’t know of any principled way of adjudicating when, exactly, a new copyright is too long.

Where I would unquestionably vote with the dissenters, however, is with respect to the extension of existing copyrights. Particularly given how long the original grants are, there simply isn’t any remotely rational connection between expanding existing copyrights and artistic progress. The artistic products in question have already been created; extending the existing copyright cannot contribute to “progress,” and indeed can only inhibit it. The really striking thing about this case is the dissent by Breyer. As many of you are aware, Breyer is famous for his deference to Congressional power, sometimes upholding it by constructing elaborate ex post facto rationales for legislation whose relationship to the actual purposes of Congress are often highly dubious. When even Breyer can’t come up with a halfway plausible story to connect an act of Congress to the public interest, you know you’ve got nothing. As he points out, this is nothing but corporate rent-seeking that simply doesn’t have any connection whatsoever to the ends required by the Copyright Clause:

The economic effect of this 20-year extension–the longest blanket extension since the Nation’s founding–is to make the copyright term not limited, but virtually perpetual. Its primary legal effect is to grant the extended term not to authors, but to their heirs, estates, or corporate successors. And most importantly, its practical effect is not to promote, but to inhibit, the progress of “Science”–by which word the Framers meant learning or knowledge…I would find that the statute lacks the constitutionally necessary rational support (1) if the significant benefits that it bestows are private, not public; (2) if it threatens seriously to undermine the expressive values that the Copyright Clause embodies; and (3) if it cannot find justification in any significant Clause-related objective. Where, after examination of the statute, it becomes difficult, if not impossible, even to dispute these characterizations, Congress’ “choice is clearly wrong.”

I think Breyer is right. On all three points, which I think represent a reasonable standard, the legislation clearly fails; it’s not even close. Moreover, the copyright clause is fairly narrow; the possibility of a less deferential reading of the standard by a future court would not have the dire consequences that, say, returning Commerce Clause jurisprudence to its pre-New Deal state would have. As both dissenters point out, to uphold this Act would be to essentially render the Copyright Clause judicially unenforceable, and I don’t think that this is wise or necessary. But I turn the discussion over to you.

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