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Principles Can Matter

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Shakes is right, and it should be noted that Yglesias called this last year, to much skepticism here and elsewhere. Ashcroft, in fact, was a far better AG than Alberto Gonzales. The worst part of Ashcroft’s tenure–his awful ordering of priorities–have been carried over or even expanded. I doubt that Gonzales actually cares about the porn and pot crusades that suck up DOJ resources that might be expended on something important, but since they end up in the same place it doesn’t matter (and I certainly have more respect for actual cultural conservatives than people who pretend to be cultural conservatives for political reasons.) But on things like the Plame leak and the illegal wiretapping program, Ashcroft–an arch-reactionary but not a Bush salad-tosser or someone who thinks that the law can just be ignored if it’s contrary to the interests of the current White House–and his department was one of the few places where some internal resistance to the administration could be found.

And, to reiterate, it’s worth nothing that this is also true of Alito vs. Scalia. Despite the claims of the Stuart Taylors and Ann Althouses of the world that liberals should be happy with Alito, given two similarly reactionary judges, it’s much better to have one with some semblance of principles. (It’s better, in terms of votes to have an unprincipled but moderate conservative, but there’s nothing about being unprincipled that requires moderation.) A Scalia, who has at least sporadic commitment to certain legal principles, will occasionally surprise you, discerning some constitutional limits to executive authority even where the War on Terra and the War on (Some Classes of People Who Use Some) Drugs are concerned. Someone like Alito, equally reactionary but not (according to either his supporters or detractors) bound by any well-worked-out theoretical commitments, won’t. Try to imagine Strip Search Sammy writing something like this:

I decline to join the Court’s opinion in the present case because neither frequency of use nor connection to harm is demonstrated or even likely. In my view the Customs Service rules are a kind of immolation of privacy and human dignity in symbolic opposition to drug use…

The Court’s opinion in the present case, however, will be searched in vain for real evidence of a real problem that will be solved by urine testing of Customs Service employees…Instead, there are assurances that “[t]he Customs Service is our Nation’s first line of defense against one of the greatest problems affecting the health and welfare of our population,” that “[m]any of the Service’s employees are often exposed to [drug smugglers] and to the controlled substances [they seek] to smuggle into the country,” ante, that “Customs officers have been the targets of bribery by drug smugglers on numerous occasions, and several have been removed from the Service for accepting bribes and other integrity violations,”; that “the Government has a compelling interest in ensuring that front-line interdiction personnel are physically fit, and have unimpeachable integrity and judgment,”; that the “national interest in self-protection could be irreparably damaged if those charged with safeguarding it were, because of their own drug use, unsympathetic to their mission of interdicting narcotics,” and that “the public should not bear the risk that employees who may suffer from impaired perception and judgment will be promoted to positions where they may need to employ deadly force.” To paraphrase Churchill, all this contains much that is obviously true, and much that is relevant; unfortunately, what is obviously true is not relevant, and what is relevant is not obviously true. The only pertinent points, it seems to me, are supported by nothing but speculation, and not very plausible speculation at that. It is not apparent to me that a Customs Service employee who uses drugs is significantly more likely to be bribed by a drug smuggler, any more than a Customs Service employee who wears diamonds is significantly more likely to be bribed by a diamond smuggler – unless, perhaps, the addiction to drugs is so severe, and requires so much money to maintain, that it would be detectable even without benefit of a urine test. Nor is it apparent to me that Customs officers who use drugs will be appreciably less “sympathetic” to their drug-interdiction mission, any more than police officers who exceed the speed limit in their private cars are appreciably less sympathetic to their mission of enforcing the traffic laws. (The only difference is that the Customs officer’s individual efforts, if they are irreplaceable, can theoretically affect the availability of his own drug supply – a prospect so remote as to be an absurd basis of motivation.) Nor, finally, is it apparent to me that urine tests will be even marginally more effective in preventing gun-carrying agents from risking “impaired perception and judgment” than is their current knowledge that, if impaired, they may be shot dead in unequal combat with unimpaired smugglers – unless, again, their addiction is so severe that no urine test is needed for detection.

What is absent in the Government’s justifications – notably absent, revealingly absent, and as far as I am concerned dispositively absent – is the recitation of even a single instance in which any of the speculated horribles actually occurred: an instance, that is, in which the cause of bribetaking, or of poor aim, or of unsympathetic law enforcement, or of compromise of classified information, was drug use. [cites omiitted]

Alito would be the Gonzales to Scalia’s Ashcroft; all of the demerits with none of the few redeeming qualities.

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