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Archive for June, 2006

Poetry Corner

[ 0 ] June 30, 2006 |

From Chris Clarke–The Love Song Of J. Edgar Goldstein, a loving tribute to a blogger who has done so much to bring civility and dignity to the blogosphere:

And would I have been worth it, after all,
Without the quips, the martyrdom, the glee,
Without the one-act plays of Locke and Shannon Doherty?
Would I have been worth while,

If I’d cut off the flaming and the vile,
To have squeezed my ego down into a ball,
Endeavored to correct my misimpressions,
But no: I am Bob Heinlein, come from the dead,
Come back to fisk you all, I’ll rebut you all”—

And they, throwing my misquotes at my head,
Will say: “That is not what I said at all.
That is not it, at all.”


I have seen them running from me to the coop
Combing my thin hair with the mousse slicked back
Cackling “there blows another wingnut hack!”

I have stood up for the petit bourgeoisie
With ever more hysterical rebukes

Till sentient beings read them, and they puke.

Read the whole etc. (And the original, while you’re at it.)


I try hard not to become hysterical, but I’m not sure if I am laughing or crying

[ 0 ] June 30, 2006 |

Not surprisingly, Boalt Hall monarchist John Yoo has taken to the pages of the McPaper to argue that the Supreme Court went too far in constraining the powers of the King of America. His claim that the Court “tossed aside centuries of American history”–presumably based on his argument that the Constitution established a system in which the executive had similar powers to the powers Blackstone attributed to the British crown–is simply not serious. (And, indeed, even he seems to be aware that these arguments wouldn’t fly.) In addition to that, however, here’s some classic (to put it charitably) evasion of the key issue:

As commander in chief, President Bush has the authority to decide on wartime tactics and strategies. Presidents Washington, Jackson, Lincoln and FDR settled on military commissions, sometimes with congressional approval and sometimes without, as the best tool to punish and deter enemy war crimes.

Except, of course, that what Bush did doesn’t fall into either the “with” or “without” category of Congressional approval, but falls into the third category of acting against the will of Congress, and “[w]hen the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb.” As I mentioned in the previous post, Bush’s actions are nothing like Lincoln’s, and Lincoln never made anything like the assertions of presidential power than Yoo and Bush have. And, of course, You wants to have it both ways on the question of whether the conflict with Al Qaeda is a war. The President is “waging war” when this can be used to enlarge the powers of the presidency, but when the existing law constrains the President in some way the conflict with Al Qaeda becomes sui generis and requires even more power (and presumably Bush will no longer be “waging war” when it comes to the question of whether the Geneva Conventions are applicable as well.)

In addition, Yoo also claims that “[t]he circus that was the trial of Zacarias Moussaoui shows the dangers in trying to use normal courtroom rules to prosecute terrorists intent on harming the USA.” But, of course, there’s nothing about having the executive branch conduct trials that inherently prevents incompetent prosecution tactics or prevents crazy people from making spectacles of themselves during proceedings (assuming that these proceedings have any due process at all); it just means we wouldn’t know about it. Moreover, since the “pathetic (and probably insane) bit-player” was convicted, it is (to put it mildly) not clear how ordinary judicial processes can’t protect national security. And if they don’t, Bush is free to use military tribunals that conform to the requirements of legislative enactments, and if these are inadequate he can urge Congress to change the laws.

…In fairness, as Pithlord notes in comments, it’s not strictly accurate to say that Yoo wants to give the President the same powers Blackstone saw inherent in the British monarchy. He wants to read the Constitution to give the president more powers than an 18th century British monarch:

Blackstone did *not* claim that Crown prerogatives in relation to war and the military were beyond Parliamentary regulation. On the contrary, if Parliament had said that the King’s military commissions had to have the same procedures as his courts martial, then they damn well had to have the same procedures. (Indeed, it was an offence akin to treason in eighteenth century England to assert that there were prerogatives of the Crown that could not be modified by Parliament — a view associated with the Jacobites who wanted the Stuarts back. Blackstone would presumably have had Yoo handed over to the local constabulary.)

Hamdan, Checks And Balances

[ 0 ] June 30, 2006 |

Despite the hysterical reactions from some quarters of the right (“A victory for terrorists!”; “Can’t Try Them, So Fry Them!”; “Instrument of Surrender Signed by SCOTUS”), the Hamdan opinion was actually quite modest in scope. As Mark Tushnet explains:

And now to the final point: What would the legal position be were Congress to authorize exactly the same tribunals and Hamdan to be charged with a war crime before such a tribunal? It seems to me that the Hamdan opinion does not show, in any way, that such tribunals, authorized by Congress, would be impermissible. The only question the Court discusses is a separation-of-powers question, about the President’s power to convene these tribunals given the other processes Congress has authorized.


(2) What about the Geneva Convention and Common Article Three? First, as I read the opinion, the Court holds that Common Article Three requires trial before a regularly constituted tribunal, and interprets the term “regularly constituted” to mean, “constituted pursuant to the ordinary methods of establishing tribunals.” And, again as I read the opinion, a statute enacted by Congress creating these tribunals would satisfy that requirement. But, second, and even more obvious, Common Article Three is a provision in a treaty, and well-established law in the United States holds that subsequently enacted statutes can override preexisting treaty requirements (the last-in-time rule). So, even if the tribunals the President constituted violate Common Article Three, a congressional statute explicitly reconstituting them would not be unlawful as a matter of U.S. law.

Far from being overreach, if anything the case doesn’t go far enough; it is true that the case may have the effect of “sanitizing a vicious policy.” Nonetheless, this is not to say that the decision isn’t important. The tradition of the courts deferring to the political branches during times of conflict, while it clearly has gone too far in some cases, exists for sound reasons. I think, for example, that Lincoln was within his powers to initiate a blockade in 1861, and the Supreme Court was right to uphold his actions. Military conflicts do require some leeway for executive action.

However, there are two key distinctions here: 1)Lincoln (unlike Bush) was not acting against Congressional statutes, and 2)Lincoln never claimed that his Article II powers were unreguable. As Lederman and Balkin point out, the most important aspect of the decision is that it forces Congress to actually exercise its proper constitutional functions. The Court did not attempt to usurp the roles of the other branches, but simply Perhaps the conflict with Al Qaeda does require a different set of procedures than Congress has previously established. But if that’s true, it’s up to the administration to make the case to Congress and the public, and to get the law changed, rather than to simply exercise arbitrary power and ignore existing statutes. Hopefully Congress will create better procedures than the administration tried to use, but even legislative ratification of the bad procedures would be better in the long run than the Court simply ratifying lawless executive power, particularly in the case of a conflict that is essentially unbounded by time. Bad laws can be changed; the idea that the President is above the law is much, much worse.

[ 0 ] June 30, 2006 |

Friday Cat Blogging… Starbuck and Nelson

"Dear Mr. President: There are too many states nowadays. Please eliminate three. I am not a crackpot."

[ 0 ] June 29, 2006 |

Shorter Verbatim Lee Siegel: “The baseball cap’s insinuation that life is a game with transparent rules gets to me. Also the insinuation that by wearing a baseball cap in inappropriate situations–like indoors–you have what it takes to break the rules and win the game. And I’m bothered by the herdlike nature of the baseball-cap trend mixed with its affectation of insouciance.”

And it goes on like that, in dead earnest. I think the blogofascism stuff may have been less embarrassing…

Hilzoy: “that explains a lot about why Lee Siegel seems not to notice the line between calling people wankers and sending them to Auschwitz.”

…an open letter from Arthur Silber.

Hamdan Handed Down: Court Slaps Down the Lawless Administration

[ 0 ] June 29, 2006 |

More when I have the chance to read it, but it sounds like good news: the Court–in a majority opinion by John Paul Stevens–has ruled, 5-3, that the procedures used at Guantanamo were illegal.

Lyle Denniston: the Court “found the “military commissions” illegal under both military justice law and the Geneva Convention.” Still no word on who was the fifth vote for the majority.

…apparently it was Kennedy.

…this outcome was indeed the downside for Bush of appointing Roberts, who had to recuse himself. However, it should be noted that a tie would have gone to the administration because the lower court ruled in its favor, so Kennedy could have taken the decision away from the court’s more liberal members, but didn’t.

…little elves whose institutions can afford Westlaw have forwarded me the text. One key paragraph from the Stevens opinion:

The charge’s shortcomings are not merely formal, but are indicative of a broader inability on the Executive’s part here to satisfy the most basic precondition-at least in the absence of specific congressional authorization-for establishment of military commissions: military necessity. Hamdan’s tribunal was appointed not by a military commander in the field of battle, but by a retired major general stationed away from any active hostilities. Hamdan is charged not with an overt act for which he was caught redhanded in a theater of war and which military efficiency demands be tried expeditiously, but with an agreement the inception of which long predated the attacks of September 11, 2001 and the AUMF. That may well be a crime,but it is not an offense that “by the law of war may be tried by military commissio[n].” None of the overt acts alleged to have been committed in furtherance of the agreement is itself a war crime, or even necessarily occurred during time of, or in a theater of, war. Any urgent need for imposition or execution of judgment is utterly belied by the record; Hamdan was arrested in November 2001 and he was not charged until mid-2004. These simply are not the circumstances in which, by any stretch of the historical evidence or this Court’s precedents, a military commission established by Executive Order under the authority of Article 21 of the UCMJ may lawfully try a person and subject him to punishment.

This is exactly right. The way in which the adminsitration has proceeded with this case makes claims that basic legal procedures and constraints are a luxury that urgency can’t afford self-evident nonsense.

…the Court’s logic, of course, also makes it more clear that the illegal wiretapping program is in fact illegal.

Still Nothing on Hamdan

[ 0 ] June 28, 2006 |

The Supreme Court announced three opinions today, but the biggest one (Hamdan v. Rumsfeld) wasn’t among them. The court did rule that Texas’ redistricting plan was constitutional (finding, regrettably but probably correctly, that only redistricting every ten years is an informal norm rather than a legal requirement) but that one of the districts violated the Voting Rights Act.

The Myth Of Conservative "Judicial Restraint"

[ 0 ] June 28, 2006 |

To follow up on my point about abortion centrists who inexplicably assert that Roe’s opponents have some sort of principled opposition to “judicial activism”, Seth Rosenthal has an excellent summary of what abject nonsense this is:

As the Supreme Court’s term nears its conclusion, columnist George Will has asserted that the John Roberts and Samuel Alito confirmation debates were all about preventing “the nation’s courts [from being pulled] even more deeply than they already are into supervising American life.” The implication is that those who championed the recent nominations believe in a limited role for the courts, while those with reservations idealize an expansive one.

This characterization, taken directly from the right wing’s playbook, sounds nice and neat. There’s only one problem: It isn’t true.


But contrary to what Will suggests, that’s just not the end of the story. Though you’ll rarely hear them admit it, today’s movement conservatives do embrace muscular courts that “supervise American life,” often in the very same cases in which liberals want courts to take a hands-off approach. The most fervent Roberts and Alito supporters would use the power of judicial review to wipe out or weaken land-use regulations, campaign-finance reform, affirmative action, and gun control. Perhaps more significant, they cheered—and hope that the additions of Alito and Roberts re-invigorate—the Rehnquist Court’s recently slowed assault on Congress’ legislative authority. Generating the highest-ever annual rate of invalidating federal legislation, the “hands-off” Rehnquist Court scotched laws safeguarding workers, seniors, people with disabilities, school children, and religious minorities and established standards threatening to scuttle even more, including important environmental achievements.

Among other things, these rulings provide that when deciding cases in which state government officials stand accused of violating a federal antidiscrimination law (such as the Americans with Disabilities Act), courts must strike the law down unless they determine that it is a “congruent and proportional” response to a demonstrable history of state-sponsored discrimination. Another landmark conservative favorite brushed aside a “mountain of data”—four years of fact-finding, studies from task forces in 21 states, and eight different congressional reports—to condemn as unconstitutional the “method of reasoning” Congress employed to enact legislation that would have protected women against violence. Talk about supervising American life.

The public evaluates judicial opinions in terms of results, full stop. The idea that any significant percentage of the opposition to Roe is based on opposition to “impositions” by the federal courts per se is just self-evidently false.

The Left Coast Lieberman

[ 0 ] June 28, 2006 |

One remarkable aspect of the vote on the proposed (and blissfully failed) constitutional amendment to address the enormously consequential problem of flag-burning is this name from the vote tally:

Feinstein (D-CA), Yea

Ye Gods, what a wet. This tops, although it’s admittedly not as consequential as, her generally appalling performance on the judiciary committee. (Indeed, in this case my title is unfair; even Holy Joe didn’t roll over for this crap.) California really could do a lot better than this.


[ 0 ] June 28, 2006 |

I spend three days in DC, and it rains nine and a half inches. Much flooding, as you may have heard, prevented an investigation of any of the major museums. Will post a bit later on the craptastic World War II Memorial. Now I’m in New York, and it’s still raining, albeit with considerably less intensity.

While contemplating his flooded basement, PTJ had the following thoughts:

Talk about a disaster. Talk about a socially constructed disaster.
While endlessly bailing water I was thinking — because, honestly, there’s not much else to think about while trying desperately to keep water out of one’s basement — about the conceptual oddity of calling something, anything, a “natural disaster.” This strikes me as a curious locution indeed, as though “nature” were causally to blame for some set of observed outcomes. And that’s just weird, since “nature” isn’t a conscious being as far as I know, and isn’t really even a discrete entity at all; blaming “nature” is kind of like blaming “reality” or “existence.” Very odd, if you stop to think about it.

Read the whole thing.

TAP on Abortion

[ 0 ] June 27, 2006 |

The American Prospect’s three-article package on abortion rights–including an article by yours truly–is now up and accessible to all; make sure to check it out. Because many of my arguments will be familiar to this site’s tens of longtime readers, just to provoke some discussion let me highlight this part, which I see as the must puzzling aspect of the “If Roe is overturned the issue will pretty much go away” argument:

The evidence is overwhelming that abortion is a divisive issue in the United States because it is divisive, not because of procedural objections to the methods by which policy has emerged.

Abortion centrists appear to take cultural conservatives at their word when the latter say they’d be mollified if only the courts stepped out of the debate. But cultural reactionaries employ anti-elitist rhetoric against any and all institutions they are hostile to, not just against “activist judges.” Consider the anti-gay constitutional amendment in Colorado struck down by the Supreme Court in Romer v. Evans, which was passed as a response to the protection of gay rights by democratically elected city councils. Affirmative action and the recent eminent domain decision in Kelo are also instructive examples: Conservatives are able to mine fury against courts that refuse to overturn the policies of democratically accountable officials. Arguments against “judicial activism” are equally applicable against “elites” and “Congress” and “those bureaucrats down at the state capital.” To believe this resentment would go away if only the courts gave up protecting abortion is to be stuck in a dream-like state in which politics functions as it does in bad sixth-grade civics textbooks.

I really, really don’t understand why people take the jufiscatory rhetoric of cultural reactionaries at face value, particularly when their actions are so transparently inconsistent with their arguments. Lest you think this is a strawman, let me give you my favorite example of the argument that–against all of the empirical evidence on the issue–that the general public evaluates judicial opinions in the way law professors do, from Jeffrey Rosen’s 2004 NYT Magazine article “How to Re-ignite the Culture Wars?”:

Might Roe serve as a cautionary tale for supporters of Lawrence? If any single Supreme Court decision can reinvigorate the culture wars today, conservatives say, the court has just handed it to them on a silver platter.

“It isn’t so much the facts of the case; it’s the reasoning of Kennedy’s majority opinion that was really very offensive to a lot of people,” Phyllis Schlafly, the president of the conservative Eagle Forum, told me. In Lawrence, the defendants were prosecuted for having consensual sex with each other under a Texas law that forbade sodomy by homosexuals but not by heterosexuals. Texas is one of only four states in America that banned sodomy only when committed by gays and lesbians, and the court could have struck down these four laws as a violation of the constitutional guarantee of equal protection, as Justice Sandra Day O’Connor recommended. This would have left states free to ban sodomy, as long as they did so in an evenhanded way, treating heterosexuals and homosexuals alike. Libertarian conservatives insist that they would not have objected had the court simply struck down these four discriminatory state laws.

Social conservatives would have been mollified had O’Connor’s concurrence been the majority opinion rather than Kennedy’s right to privacy argument (oddly, because an equal protection argument would have considerably more radical implications for gay marriage, but never mind). And we know this because…Phyllis Schlafly said so. If you find this convincing evidence, you’re probably a good candidate for the “pro-choice” anti-Roe cult, where a permanent slot on the nation’s liberal op-ed pages and magazines awaits.

Go Beavs!!!!!

[ 0 ] June 27, 2006 |

Congratulations to the Oregon State Beavers on winning the College World Series! I know that as a Duck I should never take a pro-Beav stance, but the University of Oregon lacks a baseball team, and in truth most of the bile and darkness in the heart of an Oregon fan remains reserved for the University of Washington.

So today I raise a glass to Corvallis, which certainly is a town in Oregon. And a glass to Oregon State University; let no one dispute that it, uh… hmm…. er…. educates(!?) some students. But, most importantly, a toast to Oregon State Beavers baseball, which has demonstrated itself to be the finest squad in the land.


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