Federalist Society -- University of Washington Chapter

Somebody bless us, or something

2007-12-25T15:46:00.000-08:00

This is an encouraging sign. The freedom to worship whatever God we find most pleasing is perhaps the most fundamental freedom; it signifies freedom of thought. The fact that Iraqis are now free to worship Jesus if the mood strikes them demonstrates the tremendous strides the big I has made over the past year. I can't speak for the Federalist Society as a whole, of course, but I can't imagine that any one of its members would decry the growth of liberty, wherever it might take place. Now, I'm going to erect the Festivus pole and air some grievances.

Fifth Amendment Victory

2007-12-15T18:56:00.000-08:00

Saw an interesting post over on The Volokh Conspiracy about a first dip into a murky 5th Amendment issue - can the gov't compel a suspect to enter a computer password? A man was detained at the Vermont-Canada border on suspicion of transporting child porn (ick) on his laptop across the border. The feds found some rather suggestively named files on the laptop but they couldn't open them, as they were encrypted. The grand jury issued a subpoena to compel the suspect to provide the password. The magistrate judge ruled that such production would amount to forced incriminating testimony and is thus forbidden under the 5th Amendment. Subpoena quashed. Prof Volokh thinks the magistrate got it wrong. Well, I'm no 5th Amendment scholar, but this decision seems to harmonize nicely with the spirit of the Amendment. The gov't confiscated the laptop - if they want to get files off the thing for the purpose of banging this guy up in chokey, that's their problem. Hardly fair to ask the suspect to do the government's work for them. The full decision of the magistrate is on TVC. Check it out if you're interested.

A note of interest: the encryption software used by the suspect is commercially available and apparently good enough to defeat all law enforcement efforts to beat it. Interesting.

Holiday (Second Amendment) Reading

2007-11-22T14:21:00.000-08:00

The Supreme Court's grant of cert. in DC v. Heller reminded me of an entertaining article on the Supreme Court's last Second Amendment ruling in 1939. I recommend Brian Frye, The Peculiar Story of United States vs. Miller, NYU Journal of Law & Liberty, Vol. 2 (2007), for light (by law review standards) holiday reading. It's available for download here.

A Farewell, a Thank You, and an Invitation

2007-10-15T14:30:00.000-07:00

This is my last post here. This blog is one of the things I'm the most proud of when I look back on my time at UW. We've had good, civil (most of the time) discussions, and in my mind, raised the level and diversity of the discourse at our school overall.

The Federalist Society is unique (and frankly, superior) among most advocacy groups, I believe, because mere presentation of ideas that may be underrepresented and unfairly maligned at such a liberal institution is not enough. Instead, the Society insists that the ideas be actively debated at every opportunity. If our principles are to thrive and ascend in the American legal culture, as most of us hope they will, they must be subject to rigorous, continuous, and public scrutiny - and they must withstand the assault. Cloistered clubs of like minds only numb our ability to critically think about things, and only ensure snarky factionalism instead of shared solutions.

Everyone who participated in that process - by attending our events and questioning our speakers, reading and commenting on the blog, and even arguing with us at the bar - has done a tremendous service to my own academic growth at the very least, and I think to the quality of our shared education in general. For that, I thank you all most sincerely. And I look forward to being a frequent reader of this blog in the future.

But as a wannabe pundit, it's time to move on post-graduation (UPDATE - and post bar passage, too - woo hoo!). I've started a new blog project called First Principles at www.orrinjohnson.com, where I seek to continue refining my ideas and political and legal philosophies in the forge of public scrutiny. I hope the people who have made this blog such a joy will join me there to further the conversation.

Thanks again, and good luck to you all.

Apparently 25 Feet Isn't Enough

2007-10-15T11:36:00.001-07:00

In order to comply with I-901, the University has adopted a new smoking policy which is currently being implemented. The "designated smoking area" for the law school is located here, all the way over by the Burke museum. I am not an expert on smoker's rights laws, but under I-901, smoking is only prohibited 25 feet from entrances to public places such as the law school. Granted, the old smoker's congregation near the law school patio was less than 25 feet and thus violated I-901. However, the current location is several hundred feet from the main entrance to the law school. This policy does not sseem to be a reasonable interpretation of the new laws.

The law was passed to infringe on the liberty of smoker's in the name of protecting us non-smokers. But do I really need such protection? It makes me sad that my smoking classmates must hike through the rain today if they want to legally light up.

Overview of I-901 [Davis Wright Tremaine]

Affirmative Action and Conservatives

2007-10-12T11:43:00.000-07:00

An interesting post by Harvard economist Greg Mankiw. Professor Mankiw had headlines earlier this year for his proposal to impose a tax on height. While I'm not a big fan of that plan, he does raise a good point in a post of his blog today. He notes that is the theory behind affirmative action is to promote diversity (this is an assumption that can be debated), then that principle would also support assisting underrepresented right-wing academics. Being a right-wing organization at a school with few right-wing students or professors, I thought this might be an interesting topic to discuss. Hat tip to Above the Law, a legal gossip site run by former Yale FedSoc Chapter President David Lat.

Affirmative Action for Federalist Society Members? [Above the Law]

Second Amendment Update

2007-10-09T08:51:00.000-07:00

A new lawsuit filed in Oregon will challenge a teacher's right to bring a concealed weapon to school. [MSNBC] This will be an interesting case that could test the limits of the second amendment. In the wake of school shootings, judges will likely be hesitant to allow weapons on school grounds, but we'll see how this turns out.

FedSoc in History

2007-10-02T16:58:00.000-07:00

CNN had an interesting article yesterday by their senior legal analyst Jeffrey Tobin. Tobin just published a book on the Supreme Court and the article is an excerpt from the book discussing the modern legal conservative movement. It also discusses the prominent role the Federalist Society has played in it. It is worth the read.

How conservatives won the court back [CNN]

Time for a second constitutional convention?

2007-09-29T09:29:00.000-07:00

Larry Sabato is discussing his new book "A More Perfect Constitution" over at the Daily Kos. Sabato argues that the overall design of the constitution remains brilliant, and must be retained, but that several aspects of it are in dire need of overhaul.

Among his suggestions are an expanded senate, 15 year terms for the judiciary and a restoration of Congress' original co-equal role in waging war.

There is no doubt that a Constitution that was designed 220 years ago for 13 largely agrarian colonies on the eastern seaboard sometimes forces awkward solutions to the problems encountered by a continental nation at the beginning of the 21st century. If we were to have a second constitutional convention, what are the changes you would make?

This just in...

2007-06-28T10:15:00.000-07:00

Court strikes down school integration plans

Here she comes...

2007-06-28T03:51:00.000-07:00

The decision in Seattle School District should be coming down today. Keep an eye out for it. I'll post comments later in the day.

For consistency's sake

2007-06-15T06:54:00.000-07:00

While this is old news, Washington passed a new law during this year's legislative session that will subject drivers talking on a cell phone to a fine of $101. Generally, I think that the government oversteps its bounds when it restricts the freedom of individuals. However, enacting such legislation is more than justified when it involves what may be an inherently dangerous activity that poses risks to other individuals. I'm not going to discuss the merits of the law and will assume that statistics concerning the safety concerns of cell phone usage are accurate. My general complaint about legislation is the arbitrariness and inconsistency of the law. While driving and talking on a cell phone will be against the law starting next summer, driving while using a hands free device will remain legal. This was an arbitrary decision.

Numerous studies have shown that, contrary to intuitive belief, using a hands free device provides little, if any, safety benefit. While a quick Google search has shown one study coming to the opposite conclusion, that study was also funded by GM, the owner of OnStar. This past winter I was in the Law and Legislative Process seminar in Olympia and know for a fact that the legislature was specifically confronted with testimony concerning these claims. They nevertheless decided to enact the bill. If they truly wanted to fix the problems and make our roads safer, they did not go about it properly. Instead they chose to remain inconsistent.

There are several tenants of the legislative process that should remain sacrosanct: promulgation, clarity, and consistency (feel free to add more as this is only a sampling). It is unjust to punish an individual for violating a law that was not in existence at the time of his actions. It is equally inequitable to punish a person for an activity while an equivalent activity goes unpunished. The latter principle is known as the doctrine of horizontal equity: those in like positions should be treated similarly. While discussion of horizontal equity is prevalent in debates on tax policy, this new law demonstrates its applicability elsewhere. The justice system should remain consistent in its punishment and the legislature should not make arbitrary laws that two like activities differently.

FedSoc Lawyer's Chapter Upcoming Activities

2007-06-14T19:31:00.000-07:00

I spoke today with Andy Cook, the new President of the FedSoc's Lawyer's Chapter here in Seattle. For those of you interested, UW FedSoc members are invited to a speech at noon on June 22nd by Cleveland State Law Professor, and well-dressed, David Forte
. The speech will be entitled "The Ten Commandments and the Constitution." Please RSVP with Andy by tomorrow at andyc [at] biaw [dot] com. The event will be hosted by the WAC.

The Lawyer's chapter also has some othere vents planned for this summer (including a discussion of Community Schools v. Seattle School Board planned for July 9th) and I'll keep you posted as I learn more.

The year ahead

2007-06-13T12:31:00.000-07:00

As the incoming President, one of my first tasks will be to fill the void created by Orrin Johnson's graduation. For those of you who are not familiar with the blog, Orrin has posted here a few times. I have been busy finishing the quarter and settling into a new city and summer job. But things are settling down and I expect to start writing more. I hope others will join in. If you would like the ability to post on the blog, please contact me and I can set you up with access.

More on Maleng

2007-06-13T12:27:00.000-07:00

Unless I am mistaken, I think Jason neglected to post one link:

http://seattlepi.nwsource.com/opinion/317271_malenged.html

Great writing. I guess he must have needed a distraction the week before finals. The University of Washington is planning a symposium on Mr. Maleng during the next school year. Students interested in serving on the planning committee need to fill out this form. I hear an Orrin Johnson Memorial Symposium is in the works for the 2009 school year.

It's in the P-I...a tribute to Norm Maleng

2007-06-01T00:25:00.000-07:00

Here are some other links to stories about one of our bar's finest:

http://seattlepi.nwsource.com/opinion/318067_bunting01.html
http://seattlepi.nwsource.com/jamieson/317410_robert26.html
http://seattlepi.nwsource.com/local/317256_maleng26.html
http://seattlepi.nwsource.com/local/6420ap_wa_prosecutor_remembered.html
http://seattlepi.nwsource.com/horsey/viewbydate.asp?id=1597
http://seattlepi.nwsource.com/opinion/317271_malenged.html
http://archives.seattletimes.nwsource.com/cgi-bin/texis.cgi/web/vortex/display?slug=edtoon052807&date=20070529&query=maleng
http://archives.seattletimes.nwsource.com/cgi-bin/texis.cgi/web/vortex/display?slug=malenged27&date=20070527&query=maleng
http://archives.seattletimes.nwsource.com/cgi-bin/texis.cgi/web/vortex/display?slug=malenglegacy26m&date=20070526&query=maleng
http://archives.seattletimes.nwsource.com/cgi-bin/texis.cgi/web/vortex/display?slug=normmaleng25&date=20070525&query=maleng

It's Gotta Be Those Darn Catholics!

2007-04-25T08:06:00.000-07:00

So suggests Professor Geoffrey Stone on the University of Chicago Law School's Faculty Blog, blaming our "faith based justices" for the Gonzales v. Carhart partial birth abortion decision correctly upholding the ban. After making his own factual assertions (including, amusingly, that partial birth abortion procedures are taught at many law schools) meant to show that the bi-partisan legislation enjoying overwhelming public support was completely irrational, he said:

"What, then, explains this decision? Here is a painfully awkward observation: All five justices in the majority in Gonzales are Catholic. The four justices who are either Protestant or Jewish all voted in accord with settled precedent. It is mortifying to have to point this out. But it is too obvious, and too telling, to ignore.
***
"By making this judgment, these justices have failed to respect the fundamental difference between religious belief and morality." (emphasis added)

That's right. It couldn't have anything to do with the fact that the five justices very correctly believe that Congress as a whole is better equipped to make factual findings than 9 lawyers, or that the "settled precedent" is hardly as iron clad as he claims, or that the entire line of abortion cases were wrongly decided from the start. It was the people of the United States, through their representatives in Congress across the political spectrum, who overwhelmingly came to the moral and factual conclusions - not just five justices who happen to be Catholic.

How typical. If a judge doesn't follow the reasoning of a most learn'd professor, it can't be that the professor is wrong, or even that there could be two legitimate but different interpretations of the existing law. No! There must be some nefarious motive! Perhaps the Court's opinions are now being routed through the Vatican for approval. Maybe the Freemasons have something to do with it. Wasn't it Justice Scalia holding the camera in the studio where they faked the moon landing?

When called out on this absurdity by many comments on his post, other bloggers, and even Professor Rick Garnett on the same blog, Professor Stone responded by resorting to what may be the most tired and dishonest meme in academia - "I was just trying to make people think."

"I also acknowledge that the fact that all five Catholic Justices voted together in this case to make up the 5-to-4 majority might have nothing to do with their religion. These five Justices often vote together on matters having nothing to do with religion. Perhaps Carhart was just coincidence. Perhaps it was a reflection of their common approach to constitutional law that has nothing to do with their religious convictions. The point of my post was to pose the question and to invite people to think about it." (emphasis added)

How good of him to so "acknowledge." But with respect to the Professor, that was not the point of the post. The point, made clear in the title "Our Faith-Based Justices" and made even clearer in the direct statement that "these justices have failed to respect the fundamental difference between religious belief and morality," was to answer a question, and make an (untrue) accusation - that the majority intentionally ignored settled law to make a decision based on their personal policy preference. How ironic that a defender of Roe v. Wade would be upset by such a thing...

Accusations like this seek not to inform the debate over how to use and interpret our Constitution, but to stifle that debate by making it illegitimate. "Limited government or a well documented history of judicial restraint isn't their motive, their real goal is to institute a papal theocracy! No reasonable person could have come to the majority's conclusion, this is what happens when we let those ignorant religious nuts vote!"

This attitude is intellectually bankrupt and profoundly un-democratic. Sadly, neither intellectual rigor nor respect for democracy are de rigeur in academia these days.

Encouraging the Enemy Kills American Troops

2007-04-24T11:40:00.000-07:00

Raise your hand if you think al-Qaida's deadly bombing in Baghdad yesterday had nothing to do with Harry Reid's "the war is lost" pep talk for the enemy? The Arab and Iranian press certainly had a good time with his comments. The soldiers seem to think increased violence and defeatism at home could be related.

Even if a US leader honestly was of the opinion that a war was lost, why would you say it? Somalia didn't have anything to do with 9/11, but our defeat there certainly emboldened our enemy, encouraging them to attack us. If the Democrats aren't going to join the fight for their civilization, is it at least too much to ask that they not actively fight for the enemy?

This is the danger of being so politically invested in defeat. If Iraq succeeds, the Democrats will face resounding defeats at the polls - and they know it. They need not have put themselves in this position, but they have through the language they've used. But they've gone so far over the line in their re-treaded Vietnam "America-causes-all-evil" rhetoric, that anything other than total failure there will eliminate their credibility for decades.

I'd rather the Republicans lose every election for the next 20 years than have us surrender in Iraq. The security of America comes first. It's unfortunate that the Democratic leadership can't say the same for their own strategies for power.

Reid clarifies

2007-04-23T12:10:00.000-07:00

In an earlier post I had referred to Harry Reid's inconsistency (a kind word) in voting for the Partial Birth Abortion ban and then criticizing the court's upholding that ban. Turns out he actually supports the decision, his criticism was apparently aimed only at Alito. In his usual clear-headed and well reasoned and well informed way, this is how he clarified what he said:

"Recalling his many votes against partial birth abortion, he indicated he supported the court's decision. "I just don't like what Alito has done on other cases," he said. What other cases? "I can't recall," Reid replied, but he promised aides would let me know."

A smart move to have his aides get back to the journalist, because when Reid recalls, he makes a complete hash of things. His aides eventually produced 5 cases out of the more than 50 that Alito's actually participated in. There is no record of Reid criticizing any of Alito's opinions or dissents till this vote on the Partial Birth Abortion case.

The man just talks rot nonstop. Surely the country deserves a better Senate Majority leader.

And the 2006-2007 award for Cognitive Dissonance goes to ...

2007-04-19T08:21:00.000-07:00

Harry "I routinely vote for legislation that I feel is unconstitutional and downright evil" Reid. His statement on the decision handed down yesterday:

"Senate Majority Leader Harry Reid (D-NV) was among those who denounced yesterday's Supreme Court ruling upholding the Federal Partial Birth Abortion Act. Commenting on the decision, Reid said "A lot of us wish that Alito weren't there and O'Connor were there," indicating his desire that there has been a fifth vote to invalidate the statute, as Justice O'Connor had provided the fifth vote to invalidate Nebraska's partial-birth abortion ban in Stenberg v. Carhart."

Reid's vote on this bit of legislation that he clearly seems to think violates the constitution? He voted for it ...

The Seattle Times Shills for the Enemy

2007-04-13T11:19:00.000-07:00

Today the Seattle Times published one of the most ridiculous excuses for surrender in Iraq that I've ever seen. Using this single photgraph ((c) 2007, Seattle Times), seemingly without context, they opined:

The image in Tuesday's newspapers was of a sea of Iraqi flags, as tens of thousands of Iraqis paraded in Najaf against the occupation of their country by the United States. If anyone were looking for an Iraqi answer to the "surge," it is in that photo.

There are those in America who still believe that a measured increase in manpower could bring about order and safety in Iraq. To them, we say: Look at the photos from Najaf. There is what they think of your idea. Ponder that crowd. See how many flags are in it. Think of the last time you saw American flags flying everywhere — what event had just happened. That was 9/11. Recall how people felt then. That is Najaf now. "Death to America," the crowd said. Thousands said it.
There is no arguing with a force like that.

The piece went on to argue that leaving with our tails between our legs was perfectly honorable, and not a surrender at all because we weren't giving our troops up as prisonoers.

Daring to, in fact, "argue[] with a force like that," I wrote the following letter to the editor. I've included links in this version.

Editor, The Times:

Your absurd editorial, “The Flags of Najaf,” represents perfectly the complete disconnect between the reality of Iraq and the head-in-the-sand leftist media vision of it.

You paint a picture of a popular uprising, a spontaneous demonstration from everyday people who just want America to leave so they can get back to their lives and businesses. Nothing could be further from the truth. First, you claim there were “tens of thousands” of demonstrators, when in reality, the numbers were closer to 5 – 7,000. Even the protesters themselves only were able to claim 10,000 – at most half of your claim. Either this is a sloppy oversight or flat dishonesty.

Second, you fail to mention that the demonstration was orchestrated by murderer Muqtada al Sadr from his hiding place in Iran, likely with logistical support and funding from Iran itself. This demonstration is actually a profound sign of this villain’s weakness, not strength. When the best he can do is get a few thousand people to waive flags as opposed to besting joint American/Iraqi forces in the field, things are definitely looking up. This was a failed attempt at enemy propaganda, and it takes a willful blindness to see it as anything other than that.

Finally, you laughably argue that leaving on a timeline demanded by those who have sworn to destroy our nation is not a surrender, as if Iraq is locked away in its own little hermetically sealed bubble. No serious person believes that leaving Iraq won’t have deadly consequences for the brave Iraqis still risking their lives to form their democracy, or for the safety of the United States itself. Iran’s fingerprints are all over the Najaf “protest” – does anyone seriously believe they aren’t a threat to us?

I urge the Times to stop going out of their way to shill for the enemies of America. Your readers deserve facts, not false jihadist propaganda.

I'm looking forward to their correction, of course.

Update: Shockingly, the Seattle Times didn't print my letter, or even include it in the "online only" letters. Oh, well. I suppose I understand, though - they had to make room for the guy informing us all about "Halliburton and the other fattening merchants of war" and "The unborn generations of Americans whose future has already been mortgaged by the Bush administration".

Journalism at its finest.

Iran to Monitor Iran's Nuclear Program

2007-04-12T08:57:00.000-07:00

That's right. The UN - that "gravely concerned" international body charged with keeping world peace and dedicated to nuclear disarmament - has elected Iran as one of the vice-chairs of the UN Disarmament Commission.

In celebration, Iran once again threatened to wipe Israel off the map.

The most ardent foe of the United Nations couldn't make this kind of thing up. How is it that anyone thinks we should entrust our sovereignty or security to this organization? Does ANYONE seriously think the UN is in any way effective in keeping peace, preserving freedom, or saving lives?

Iran probes, the West retreats. They commit an act of war/piracy in another nation's territorial seas. As a result, they lost nothing and gained a humiliated ~~Great~~ Britain, some of the combatants they'd sent into Iraq to kill coalition soldiers back, and a cessation of any Royal Navy interdiction operations in the entire Persian Gulf. They openly pursue nuclear weapons, and are met with tepid concern from an international organization they (or oil customers who count on them) control - an organization known for doing nothing, at that. They attack Israel via Hezbollah, and even the United States accuses Israel of overreacting. They attack the United States in Iraq, and for fear of "starting" a war that they've waged against us for 28 years, our press and our government say nothing. In fact, with the full knowledge that Iran is the sole reason the insurgency is still able to exist (funding, training, etc.), our Congress is now attempting to surrender to Iran and their Iraqi fighters - fighting hard to accede to the demands of our enemy.

Perhaps they should save us all a lot of time and start drafting Constitutional Amendments that will conform with Sharia law.

And now, because both of them are heavily invested in an American failure in Iraq, Nancy Pelosi wants to once again violate the Constitution and the Logan Act, and visit Ahmahdinejad in Iran, further signalling that he can act at will with no reaction from the west save surrender.

When are liberals going to understand that the enemies we face, despite their shared hatred of George Bush, are not fellow liberals who just want to sit around, smoke weed, and like, get aLONG, man? That they aren't acting in good faith? That they are using our international institutions and press against us? That they already "understand us" just fine, and don't want to live in peace with us?

The genteel Europeans have already given up. British teachers have stopped teaching about the Holocaust because muslim students are offended. Scandinavian women wear headscarves and dye their hair black in many public areas to prevent the sometimes violent rape and harassment of the Islamic "youths" (who we are assured aren't radicalized, because some of them listen to rap - as if angry teens should follow some kind of consistent philosophy). Meanwhile, their governments cover up these crimes for fear of not being multi-cultural or tolerant enough. The intifada in France goes on, and typically, France is losing.

Are we to join them?

Iran has already determined that the west is doomed. The only question for them is whether the global caliphate with be Sunni or Shi'ite. And no western nation is doing anything to disabuse them of their assumptions.

80 years from now, when our great grandchildren are studying the history of this war, they will read about these events with the same incredulity as modern students have for the world's appeasement of Adolf Hitler in the 1930's. The only question is going to be how much damage we'll take before we decide to fight for our civilization. Or if it will survive at all.

SCOTUS Makes Up New Administrtive Law Standards out of Thin Hot Air

2007-04-04T16:30:00.000-07:00

Joining such renowned scientists as Leonardo DiCaprio and Al Gore, five justices of the Supreme Court have stepped into the realm of politics and policy, left aside any concept of Constitutional limits on judicial power or the rule of law, and declared themselves experts on the global climate. This absurd decision, Massachusetts v. EPA, which can only be explained by the 5 justices' policy preferences in this area (as opposed to their ability to dispassionately evaluate a factual record and the legal standards), contorts the state of the law radically to achieve a policy end. Shameful.

The Chief Justice's dissent is powerful, and hopefully, is an indicator of the future direction of the court when the 5 legislators-in-robes step aside from their usurpation:

If petitioners' particularized injury is loss of coastal land, it is also that injury that must be "actual or imminent, not conjectural or hypothetical," Defenders of Wildlife, supra, at 560, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (internal quotation marks omitted), "real and immediate," Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S. Ct. 1660, 75 L. Ed. 2d 675 (1983) (internal quotation marks omitted), and "certainly impending," Whitmore v. Arkansas, 495 U.S. 149, 158, 110 S. Ct. 1717, 109 L. Ed. 2d 135 (1990) (internal quotation marks omitted).

As to "actual" injury, the Court observes that "global sea levels rose somewhere between 10 and 20 centimeters over the 20th century as a result of global warming" and that "these rising seas have already begun to swallow Massachusetts' coastal land." Ante, at 19. But none of petitioners' declarations supports that connection. One declaration states that "a rise in sea level due to climate change is occurring on the coast of Massachusetts, in the metropolitan Boston area," but there is no elaboration. Petitioners' Standing Appendix in No. 03-1361, etc. (CADC), p. 196 (Stdg. App.). And the declarant goes on to identify a "significant" non-global-warming cause of Boston's rising sea level: land subsidence. Id., at 197; see also id., at 216. Thus, aside from a single conclusory statement, there is nothing in petitioners' 43 standing declarations and accompanying exhibits to support an inference of actual loss of Massachusetts coastal land from 20th century global sea level increases. It is pure conjecture.

The Court's attempts to identify "imminent" or "certainly impending" loss of Massachusetts coastal land fares no better. See ante, at 19-20. One of petitioners' declarants predicts global warming will cause sea level to rise by 20 to 70 centimeters by the year 2100. Stdg. App. 216. Another uses a computer modeling program to map the Commonwealth's coastal land and its current elevation, and calculates that the high-end estimate of sea level rise would result in the loss of significant state-owned coastal land. Id., at 179. But the computer modeling program has a conceded average error of about 30 centimeters and a maximum observed error of 70 centimeters. Id., at 177-178. As an initial matter, if it is possible that the model underrepresents the elevation of coastal land to an extent equal to or in excess of the projected sea level rise, it is difficult to put much stock in the predicted loss of land. But even placing that problem to the side, accepting a century-long time horizon and a series of compounded estimates renders requirements of imminence and immediacy utterly toothless. See Defenders of Wildlife, supra, at 565, n. 2, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (while the concept of "'imminence'" in standing doctrine is "somewhat elastic," it can be "stretched beyond the breaking point"). "Allegations of possible future injury do not satisfy the requirements of Art. III. A threatened injury must be certainly impending to constitute injury in fact." Whitmore, supra, at 158, 110 S. Ct. 1717, 109 L. Ed. 2d 135. (internal quotation marks omitted; emphasis added).

At least the court only remanded to give the EPA another chance to explain their decision - Justice Stevens stopped short at crafting world-saving emissions standards for the EPA to implement. But as Justice Scalia notes:

Even on the Court's own terms, however, the same conclusion follows. As mentioned above, the Court gives EPA the option of determining that the science is too uncertain to allow it to form a "judgment" as to whether greenhouse gases endanger public welfare. Attached to this option (on what basis is unclear) is an essay requirement: "If," the Court says, "the scientific uncertainty is so profound that it precludes EPA from making a reasoned judgment as to whether greenhouse gases contribute to global warming, EPA must say so." Ante, at 31. But EPA has said precisely that -- and at great length, based on information contained in a 2001 report by the National Research Council (NRC) entitled Climate Change Science: An Analysis of Some Key Questions[.] *** I simply cannot conceive of what else the Court would like EPA to say.

I've written on this before, when the DC Circuit made the correct legal decision. As I said then, "In addition to the activists and cities, no fewer than 12 States are plaintiffs here. That's 24 Senators and 151 Representatives - nearly a quarter of the US Congress! Surely they are not without political power. If those states wish to ensure the EPA is fixing global warming, the remedy is in the chambers of the Capitol, not in the courts."

The question is not whether or not global warming is a "crisis," or whether not the EPA should regulate car emissions. The question is whether five unelected judges should be able to dictate massive, unimaginably complex, economy-threatening policy over the objections of both the Executive branch and the Legislative branch, by taking a vague statute and assigning it meanings it couldn't possible have had when it was written.

There is no more inappropriate place for judicial law-making than in the realm global environmental policy. That five lawyers think they can or should go there, when actual experts struggle to predict what the climate will give us 10 days from now, is contrary to what the Constitution ever intended.

CORRECTION: Justice SteVens' name was misspelled above, and has been corrected.

The Pelosi Seven's Unconstitutional Globetrotting

2007-04-03T11:33:00.000-07:00

"Upon the principles of a free government, inconveniences from [multiple personalities in government] must necessarily be submitted to in the formation of the legislature; but it is unnecessary, and therefore unwise, to introduce them into the constitution of the Executive. It is here too that they may be most pernicious... In the conduct of war, in which the energy of the Executive is the bulwark of the national security, every thing would be to be apprehended from its plurality."
-- Federalist No. 70 (emphasis added)
"We have an alternative Democratic foreign policy. I view my job as beginning with restoring overseas credibility and respect for the United States."
-- Representative Tom Lantos (D-CA)

The danger inherent in Rep. Pelosi and her gang of seven's shameful trip to Syria was clearly foreseen by the framers of the Constitution. What Lantos doesn't understand is that how he views his job - and apparently how Pelosi sees hers - is directly at odds with the Constitution. In fact, how he "views his job" is irrelevant - his job description (at least as it relates to foreign policy) is pretty clearly laid out in the Constitution he swore to support and defend. In case he needs it spelled out, it doesn't include negotiations with foreign leaders in contravention of official US foreign policy.

The United States doesn't have separate Democrat or Republican foreign policies, it has A foreign policy. One. Period. And the execution of that foreign policy is the sole province of the President - the one the American people elected knowing full well he would be entrusted with that responsibility for the next four years, not the wanna-be one accountable to no one except a few hundred thousand hippies in the second smallest congressional district in the country.

It's bad enough when members of our government with more bombast than brains or influence do these kinds of things, like when Rep. McDermott went to Baghdad on the eve of war to show his support for terrorist-funding fascists over the President of the United States. This is the category in which I place the six shamefully seditious fools who followed Pelosi on her illegal errand, including the three Republicans. But when it's the Speaker of the House of Representatives, she's holding herself out as an alternative President - someone who will assure terror-sponsoring foreign leaders that they need not worry about the man in the White House who points out their evil or may impose sanctions. She's going as someone who announces - with credibility - that she has the power to thwart US interests and our Constitutional scheme, to the delight of our enemies. (And doing it while wearing a headscarf in submission to Islam, no less.) Whether that is her intent or not is irrelevant. She's aiding the enemies of freedom to the direct detriment of the people and the Constitution of the United States. What Jihadist can see one of the most powerful people in America treating a fascist terror leader as a statesman while wearing their religion's required attire and not believe victory over the blasphemy of liberal democracy is at hand?

This isn't a partisan issue, either. This is a precedent that, once set, can never go away. Imagine the howls that would have gone out from those now praising Pelosi had Newt Gingrich gone to negotiate with Slobodan Milosevic in between Clinton's ordered Tomahawk barrages. They would have been universal, loud, and correct. But not any more. There's no sanction for this beyond condemnation and outrage, short of a sedition charge (a card that sadly will never be played). If Pelosi gets away with this, we will forever have an "opposition foreign policy," with the party out of power seeking to undermine our own president in the halls of foreign governments.

Talk about the Constitution under assault.

Can any foreign power take a country seriously when independent factional heads each pursue their own foreign policies, each seeking to undermine the other? Lose tribal confederations do that, not Great Nations. Our Constitution gives us the method - we debate, then we decide, then one person acts with one voice beyond our shores. For two centuries, we've followed that model. Now the Speaker of the House (the only one of the seven with any real power, which is why her actions are the most worthy of scorn) has chosen to disregard that for her own short term ends. It's illegal and anti-American, and dangerous in the extreme at a time in history our lives and way of life depend on those who value freedom opposing theocratic fascism with one voice.

I can only hope the voters of this great nation choose to keep it so, and rebuke this behavior next year at the polls.

Why US Attorney Lam was Actually Fired...

2007-04-03T07:49:00.000-07:00

...Why She Deserved It, and Why AG Gonzales Should Be Let Go Anyway

In National Review last week, Byron York put together a detailed history of the poor conduct of US Attorney Carol Lam. Bottom line - when even Senator Feinstein complains about poor enforcement of immigration laws, maybe it's time to take out a want ad for a new attorney.

Lam, of course, is the poster child for those who desperately wish this "scandal" actually was one. The accusations are that she was fired to prevent her from widening the investigation that took down Republican Congressman Duke Cunningham, which may have implicated more California Republicans. As Senator Chuck Shumer (no stranger to dodging US Attorney investigations himself) put it, "It came out in the newspapers that she was continuing to pursue that investigation, and it might lead to others — legislative and others — and in the middle of this investigation, she was fired."

If that were the case, one might expect a single shred of evidence of it in the 3,000+ documents released by the Bush Administration. And of course, one might imagine that her firing would have taken place a little earlier. After all, Rep. Cunningham had been under investigation since at least June of 2005 and plead guilty later that year. If she was fired to halt an investigation, why let that investigation go on for over a year before doing anything about it? In a broader sense, if the White House is shielding corrupt Republicans and hunting innocent Democrats, why is Duke Cunningham in jail and William Jefferson, Sandy Berger, Alcee Hastings, John Murtha, and Harry Reid running around free of those irksome investigators? And now with the new revelations about Diane Feinstein's conflicts of interest with regard to defense contracts, who really had the most to gain by stymieing Lam's investigation in southern California?

So then what was the reason? As York Reports:

[T]he Associated Press [...] reported that “the vast majority of people caught smuggling immigrants across the border near San Diego are never prosecuted for the offense.” The story was then picked up by CNN’s Lou Dobbs. And that, finally, got the Justice Department’s attention.

The revelations came amid increasing concern about the problem of illegal immigration. Suddenly lots of people wanted to know why Carol Lam wasn’t doing more. Even California Democratic Sen. Dianne Feinstein inquired. And as they did with [Representative] Issa [R-CA], Justice Department officials told Feinstein that everything was O.K. “Please rest assured that the immigration laws in the Southern District of California are being vigorously enforced,” Moschella wrote to Feinstein — at a time when Department officials themselves were not at all assured that the immigration laws in the Southern District of California were being vigorously enforced.
***
[Justice Department] officials began a statistical study of Lam’s operation. The numbers showed that immigration prosecutions in the San Diego district had gone down since 2004, even as they continued to rise in other border U.S. attorney districts. “When you compare San Diego’s performance using 111 Assistant U.S. Attorneys…and New Mexico, with 59 Assistant U.S. Attorneys but still generating more cases than San Diego, it seems that San Diego should be doing much more,” said an internal email from the office of Deputy Attorney General Paul McNulty.

So why does it fall to National Review (among others) to lay this all out for Lam, and for others? Lam isn't the only one who had good reason to be fired - our own US Attorney McKay ignored King County voting problems and then publicly threw down with his boss over a database policy. Similar stories surround the others. So why is it so easy for a private journalist to make this case, and so impossible for the Attorney General to? Again, York puts it best:

The picture that emerges from the evidence in the Lam case is of a Justice Department at profound policy odds with the U.S. attorney, preparing to take action against her, but at the same time ignoring or brushing off outsiders who criticized Lam on the very grounds that troubled Department officials. Added to that was a bureaucratic morass that made it impossible for the Department to do anything quickly. Together, those factors created a situation in which Department officials pursued a reasonable goal — finding a new U.S. attorney for Southern California — while denying to outsiders that they were doing it, taking far too long to get it done, and mismanaging its execution. In other words, it was an operation in which Justice Department officials did virtually everything wrong — except what they’re accused by Democrats of doing. (emphasis added)

It is not enough that public officials do the right thing, follow the law, and pursue correct policy. They must also be prepared, when possible, to clearly communicate reasons behind potentially controversial actions and policies - especially when faced with a virulently hostile press and an investigation-trigger-happy opposition-led Congress. This may be the Bush Administration's single greatest failing, and Gonzales makes Bush look like a great communicator. For that, and for his failure to prevent this non-scandal from becoming one, the Attorney General needs to go.

Cross-town Conservative Camaraderie

2007-03-26T16:10:00.000-07:00

Bong Hits 4 Free Speech

2007-03-26T00:59:00.000-07:00

The Seattle Times has an uncharacteristically good editorial on the high school free speech case heard last week before the Supreme Court, Morse v. Frederick. The case, if you've not heard of it, involved an 18 year old Alaskan high school senior unfurling the home-made banner (shown in the picture on the left) as the Olympic Torch was carried by. The kid and the principal apparently had a relationship not unlike Bart Simpson and Principal Skinner. From the SCOTUSblog:

The core facts that the two sides can agree upon are these: when the Olympic torch was being carried along Glacier Avenue in Juneau, Alaska, on January 24, 2002, 18-year-old Joseph Frederick held up a 14-foot banner with the message, “BONG HITS 4 JESUS.” (“Bong hits” is slang for smoking marijuana.) Glacier Avenue runs in front of Juneau-Douglas High School, where Frederick was enrolled as a senior. School Principal Morse crossed the Avenue, and demanded that the sign be taken down; Frederick refused, and the principal grabbed the sign and crumpled it. Later, Morse suspended Frederick for ten days, citing a variety of infractions of school rules. The Ninth Circuit found a violation of Frederick’s First Amendment rights, and found that the law was so clear on this issue in January 2002 that the principal was not entitled to legal immunity to money damages.

The school claims that this was essentially a "field trip," but it wasn't. It was not supervised. It was off school grounds. The event wasn't sponsored by the school. The kid was skipping school anyway, and showed up to the rally on his own, and made the banner in his garage. As the Times put it:

With children under its charge, and particularly on its property, a school needs to have a degree of authority, including over speech. That is why, for example, The Seattle Times opposes the bill sponsored by Rep. Dave Upthegrove, D-Des Moines, to give editorial control of high-school newspapers to the students.
***
But somewhere comes a limit to the school's authority. Outside school grounds, where politics meet the streets, school regulations fade and the rules are the same as applies to citizens generally, including free speech. Within the schools, access to free speech — from gang clothing to graffiti to pronouncements at school ceremonies — is necessarily within the realm of controlled speech.

Well said.

My only beef with the article (and the rest of the media reports surrounding the case) is the worry about "overruling Tinker v. Des Moines", which I don't think this case necessarily could do. Even if the Court sides against the former student, the compromises that would have to be reached in order to get those votes, along with the Chief Justice's desire for narrow rulings, would probably merely follow existing caselaw which permits schools to control obscene speech. Whatever "Bong Hits 4 Jesus" actually means, it seems difficult to call it "political" like the black armbands clearly were in Tinker, which means it's distinguishable.

But I hope the right outcome is achieved - that this twerp's obnoxious action done for no other reason than to antagonize his principal (and make no mistake, this is ALL it was) is found to be protected.

The limits of "Advice and Consent"

2007-03-19T15:20:00.000-07:00

The current imbroglio over AG AG's handling of the U.S. Atty firings has me wondering: If the Senate wanted Mr. Gonzalez or any other cabinet-level officeholder gone, what are its options?

Its actions in the last few weeks demonstrate it can hold hearings and try to raise a big stink politically to force a resignation/firing.

But what if neither is forthcoming?

Actually, I'm not really concerned about the answer within the current context -- I doubt any of this will matter in 12 months.

But what if there was a truly, inarguably incompetent attorney general serving a second-term President whose VP has no desire to run for office ever again and who doesn't particularly like his own party's leading candidate to replace him. Under such a scenario, the President would be relatively well insulated from political pressure to remove any offending officials no matter how many p.1 headlines there were.

Again, constitutionally, what could the Senate do?

We all know that Art. II, Sec. 2 of the Constitution says the president "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint" officials like the AG. But the constitution is silent on whether, once given, the Senate has the power to withdraw that consent.

I have never really thought about this before, but it seems like an interesting question.

If the Senate were to vote tomorrow to withdraw their consent to Gonzalez's service (NY Post Headline: SENATE NOT GA-GA FOR AG AG) and President Bush were to insist he remain in office who would the Supreme Court side with and why?

Busy with finals but...

2007-03-14T22:27:00.000-07:00

I was curious what people's thoughts were on the U.S. Attorney controversy. Seems like a pretty interesting convergence of law, professional and political issues and the blog's never been short on those.

DC Circuit Strikes Down Gun Ban

2007-03-11T22:35:00.000-07:00

The beer is flowing like wine at NRA HQ. From the AP:

The U.S. Court of Appeals for the District of Columbia Circuit ruled that the city cannot prevent people from keeping handguns in their homes. The ruling also struck down a requirement that owners of registered firearms must keep them unloaded and disassembled. The court did not address provisions that prohibit people from carrying unregistered guns outside the home.

The court correctly declared that the Second Amendment's use of the words "the people" conferred an individual right to bear arms, and that the - an enormous triumph for freedom, and for the safety of the beleaguered citizens of our crime-ridden capital.

From the 2-1 opinion in Parker v. District of Columbia:

To summarize, we conclude that the Second Amendment protects an individual right to keep and bear arms. That right existed prior to the formation of the new government under the Constitution and was premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government (or a threat from abroad). In addition, the right to keep and bear arms had the important and salutary civic purpose of helping to preserve the citizen militia. The civic purpose was also a political expedient for the Federalists in the First Congress as it served, in part, to placate their Antifederalist opponents. The individual right facilitated militia service by ensuring that citizens would not be barred from keeping the arms they would need when called forth for militia duty. Despite the importance of the Second Amendment's civic purpose, however, the activities it protects are not limited to militia service, nor is an individual's enjoyment of the right contingent upon his or her continued or intermittent enrollment in the militia.

More reaction from Volokh and the Cato Institute. (Cato assisted the plaintiffs in the case.)

My favorite, though, is the D.C. Mayor Adrian Fenty's take:

"I am personally, deeply disappointed and quite frankly outraged... [This decision] flies in the face of laws that have helped decrease gun violence [in Washington, D.C.]"

Ah, yes. I can see why he might be outraged. That city has been sooooo safe since the ban went into effect in 1976. I mean, it's just a coincidence that the city with the strictest gun laws was also crowned the "Murder Capital" of the nation in the 1990s, right? Maybe we just should have just given the mayor a little more time to declare a few more "crime emergencies" - yeah, those seem to be doing the trick.

Not only is this a profound victory for individual liberty and the Constitution, but it's about time the criminals plaguing our nations capital no longer can safely assume their victims can't fight back. Good law and good policy - God bless conservative Constitutional law.

Teaching Socialism in Seattle

2007-03-11T17:01:00.000-07:00

A reader tipped me off to this little piece of amusement/horror. The Hilltop Children's Center, essentially a hippy playhouse thinly disguised as a place of "learning," banned Lego blocks as a way to teach kids the evils of the Bill of Rights, Declaration of Independence, or anything else that espouses the dangerous and inhuman notion of "private property rights."

[T]he students had been building an elaborate "Legotown," but it was accidentally demolished. The teachers decided its destruction was an opportunity to explore "the inequities of private ownership." According to the teachers, "Our intention was to promote a contrasting set of values: collectivity, collaboration, resource-sharing, and full democratic participation."

The children were allegedly incorporating into Legotown "their assumptions about ownership and the social power it conveys." These assumptions "mirrored those of a class-based, capitalist society -- a society that we teachers believe to be unjust and oppressive."

The article then goes on to describe how the school successfully Marx-ized these budding little robber barons. At least according to the school. What they did is take all the legos away, force the children to play with them in a certain way, and ensuring that (while children are supposedly encouraged to follow their own passions) they could never control their own destinies because The Grownups were in charge, and that was how to run a society. Essentially, they're teaching the children all the benefits of fascist tyranny the Soviet Union once enjoyed, and now serves the people of North Korea and Cuba so well. But at least they have "social justice" in the new, improved People's Republic of Legotown. Ah, the equality of universal poverty! How noble.

What's sad is that these "teachers" are just plain too wilfully dumb to realize that a) humans (including children) are naturally possessive, b) it's both important and natural for kids (especially boys) to stake out their own turf, c) "ownership" and "power" are inherent human traits, irrespective of culture, and d) no matter how many times it's tried, socialism just plain doesn't work alongside freedom, democracy, or prosperity.

Here's the full article the school submitted to "Rethinking Schools," the magazine for all those folks who think kids, like, just need to like, BE, man. MAN! It is priceless. Be careful, though - it is a concentrated and unvarnished look at the socialist mind. It can be painful to those with a pre-existing condition of common sense.

I wonder what John Edwards thinks about all of this...

Normally a free burrito and a lunch speaker is a good thing...

2007-03-08T23:29:00.000-08:00

For those of you who don't know who Lynne Stewart is, you can read about her here (Orrin and others' take) or here (her own website, and the propaganda video we sat through when she came to visit today).

The skinny is she represented a convicted Islamic terrorist, intentionally broke some rules regarding her contact with him, got prosecuted and convicted for it (and, if justice prevails, will be going to jail soon) and is now being lionized by some on the left as a symbol of courage in a time of tyranny.

Here's how I would try to explain to my more liberal friends why I find Stewart (and her story) so unappealing:

Let's say I represented an anti-abortion activist who happened to primarily speak a foreign language.

And let's say he was convicted of plotting to blow up an abortion clinic and running a group that had successfully pulled off several of these mass murders.

And let's say that as a precaution against more bombings occurring at his direction the government was keeping my client in maximum-security lock up and not allowing him any contact with the outside world.

And let's say they made an exception for me as his lawyer, and told me I could bring support staff (translator, assistant) but our conversations with my client had to be limited to issues surrounding his legal defense and under no circumstances could I (or my staff) communicate on his behalf with his followers either personally or via the media.

And let's say I agreed to all of this in writing.

Now let's say I decide to patently disregard this agreement.

Let's say the "staff" I choose to bring for my client meetings are people who have ties to my client's demonstrably violent organization.

And let's say I allow my client to talk to these associates in their shared language (which I don't speak or understand) about issues wholly unrelated to his legal defense -- and I know they're talking, not translating, because the entire time they're doing it I'm making loud remarks about nothing, presumably to make it harder for the government to listen in to their conversations which it has informed me it might be doing.

And let's say a few months later another abortion clinic is bombed, killing or maiming dozens of doctors, nurses, staff, patients and bystanders...and my client's organization takes responsibility and demands his release.

And let's say even after this tragedy I continue to allow my client to meet with these conduits to his organization and speak with them as he chooses.

And let's say I issue a press release on my client's behalf wherein he urges followers to reject any peace with the "baby killers".

Again, let's say I did all this.

Would you praise me as a "zealous advocate"? Would you laud me as a "civil rights champion"?

Let's just say I wouldn't.
----

Bottom line, Lynne Stewart deserves to go to jail.

If she thought the restrictions the government was placing on her contact with her convicted-terrorist client were unconstitutional she could have challenged them. I might even have supported her in some of her objections...

Instead she made an agreement with the U.S. Government in obvious bad faith, broke it intentionally, and (at the very least) endangered innocent lives by doing so. (During the period when she was facilitating her client's communication with his organization it murdered 60 people and issued a demand for his release.)

I'll say it again, she deserves to go to jail.

Also, all the burritos were vegan.

Anarchist Blogger Rightly Spends 200 Days In Jail

2007-03-08T08:26:00.000-08:00

This story about a man self described as "an artist, an activist, an anarchist and an archivist" is no doubt going to be used by some to bolster the idea that our free press is under siege, and that we need more "journalist privilege" rules for the very sake of democracy. (Most of those people - coincidentally - will make their living at newspapers, know bloggers and other online media are obliterating their circulation numbers and profits, and merely want to make their club more exclusive.) But it actually says just the opposite - that such rules are absurd, arguably unconstitutional, and certainly unworkable.

Here's what happened:

Josh Wolf, a 24-year-old blogger, has spent more than six months behind bars in California -- the longest contempt-of-court term ever served by someone in the media -- for refusing to turn over a videotape he shot of a violent San Francisco demonstration against a Group of Eight summit meeting. Unless a mediation session today can break the impasse, he will likely remain imprisoned at least until the current grand jury's term expires in July.
***
Wolf taped the anarchists' San Francisco protest, against a G-8 summit meeting in Scotland, in July 2005. One police officer, Peter Shields, had his skull fractured by a hooded assailant with a pipe or baseball bat. Three people were charged in the attack. Police say protesters also put a mattress under Shields's police car and tried to set it on fire.

The First Amendment makes us ALL journalists by birthright, and the Internet gives reality to this great promise. Some journalists are professionals, but enough of us are part-timers (especially now) that any definition that would include this guy would necessarily include more US citizens that it would exclude. The Constitution and subsequent amendments made no provision for an insulated journalist class, nor should it have. Creating standards to define "real" journalists only limits the proliferation of a robust, diverse, and free information distribution system that is accessible to all.

In other words, journalist shield laws passed in the name of a free press would actually abridge that free press, in direct contravention of the clear language of the First Amendment.

We are all citizens with the same rights to see, report, publish, and disseminate information. We are also all citizens with the same responsibilities to our justice system - to report for jury duty when asked, to answer subpoenas when served, and to testify truthfully at a tribunal when properly summoned. No penumbra emanating from anywhere grants an exception just because you happen to own a New York Times press pass - or a blog URL.

I'm just glad the judge in this case has the fortitude to keep him in jail, refusing to let justice take a back seat to big-media pressure groups.

Libby Guilty

2007-03-06T11:09:00.000-08:00

I haven't been following this case closely enough to have any intelligent direct comments. I DO know enough about the Plame "leak" case to know it's full of [garbage], but often non-cases get people into trouble when they try to overdefend, feeling it's justified because the accusors are so full of it.

If Libby had a suspiciously selective memory, jerked investigators around, and fibbed under oath, I'm glad he was found guilty, no matter how stupid the original cause of the investigation was. I don't know enough to say he wasn't, and so I'll leave the outrage to others better informed. I'm not one of those people (say, for example, Clinton apologists) who thinks perjury is less serious just because the thing lied about isn't serious (say, for example, sex) - perjury is a direct assault on the entire system of due process, and should be mercilessly weeded out, no matter what the lie was about. I don't care which President or party or elections it hurts. I don't have any sympathy for perjurers no matter how sympathetic the witness or how obnoxious, overbearing, or abusive the prosecutor.

But I am bothered by some of the juror comments. I'm bothered by some of the legal rulings, and bothered that the jury seemed to be confused about some material facts and the narrowness of the issues they seemed to have considered. I'm bothered by the political nature of the original investigation. But that's why we have an appeals process.

Whether Libby is guilty or not, I don't know. What I DO know is that the fact Joe Wilson is running around doing Vanity Fair pictorials while Libby faces jail time is absurd. David Frum puts it best:

Scooter Libby is convicted in the Plame leak case. The man who actually did the leaking continues to earn millions of dollars, go out to dinner, and be respectfully quoted by attentive journalists.
Scooter Libby is publicly branded an oath-breaker on the basis of diverging recollections. Yet it was the man who set this case in motion, former ambassador Joe Wilson, who was caught in lie after lie by the Senate Intelligence committee.

Frum also noted the penalties Clinton suffered for his perjury, including all the jail time HE had to serve.

More cogent (if partisan) running reax on NRO's the Corner.

Michelle Malkin has updating reporting and more links.

A more diverse smattering of opinion compiled at RealClearPolitics.

Quote of the Day

2007-03-05T23:39:00.000-08:00

"I think that Jesus would be disappointed in our ignoring the plight of those around us who are suffering and our focus on our own selfish short-term needs. I think he would be appalled, actually."

...said John Edwards, the man who just spent $4.3+ million on a 28,000 square foot mansion for his family of four. (Yup - that's his actual palace-in-progress.)

I don't presume to know the mind of Jesus, but I don't know that he would define "selflessness" as "attempting to simultaneously pander to religious folk your campaign just offended while attempting to shame them into spending other people's money, all while spending millions of your own money on yourself." I could be wrong - I'm no priest - but I've read the Gospels and that's just my take.

Not that I begrudge John Edwards on his success. Just don't tell me I should be ashamed if I want to achieve some of that myself.

Terrorist Abettor Lynne Stewart to Speak in Seattle

2007-03-05T12:08:00.000-08:00

According to the announcement in The Crier (the Law School's official newsletter),

Celebrate International Women's Day with special guest Lynne Stewart speaking on “My fight for justice in Patriot Act America”

Acclaimed for defending poor people, radicals of color, and controversial figures, Stewart, a civil rights attorney, was sentenced to 28 months in prison on charges of abetting terrorism in a trial described as “a triumph of fear over reason” by Mumia Abu-Jamal. Stewart will discuss her appeal and the inspiration she draws from the legacy of female resistance to repression.

Co-sponsors: Radical Women, Seattle University Departments and Programs: Anthropology, Sociology & Social Work, Criminal Justice, Political Science, Pre-Law, Women’s Studies; the Black Panther Party Reunion Committee, National Lawyers Guild - Seattle and SU Law School Chapter.

This free event is at Seattle University, Pigott Auditorium. Enter campus on East Marion at 12th Ave. Continue straight past the visitor parking lot. The auditorium is in the Pigott Building, the first building on the right. For more information call 206-722-6057 or email RWseattle@mindspring.com.

The sponsors of the event are radical socialist groups and an otherwise respectable University down town. She's endorsed by a cop killer. But she's simply a "civil rights attorney," "acclaimed for defending the poor." There's no mention of the crime her legal defense fund is attempting to defend her against, nor of the 60 dead people she helped to kill in the name of world-wide imposition of Sharia law and the oppression of all women. That the "Radical Women" are one of the prime sponsors of this is a sick joke.

Here's some background on Stewart I put together last year, from a side comment thread on this blog on another topic.

The College Years of Justice Thomas

2007-03-05T11:55:00.000-08:00

An extraordinary interview in Business Week with Justice Thomas, focusing on his college years, his activities, the truth behind the meme that he himself is a product of affirmative action, and more. A sample:

Why do you think some people are so eager to cast you as a beneficiary of affirmative action?
That was the creation of the politicians, the people with a lot of mouth and nothing to say and your industry. They had a story and everything had to fit into their story. It discounts other people's achievements. Ask Ted how many all-nighters he pulled. It discounts those. It's so discouraging to see the fraudulent renditions of very complicated and different lives of people who were struggling in a new world for them. Everything becomes affirmative action. There wasn't some grand plan. I just showed up.

Read the whole thing. The more I read and learn about this man, the more respect I have for him.

Military Medicine - The Argument Against Socialized Health Care

2007-03-04T14:02:00.000-08:00

As an aside to the Walter Reed post below, and a veteran of the military's awful HMO/single payer hybrid health care system (not the care itself - that was pretty good), this highlights the fundamental reasons why liberal proposals of socialized medicine are ridiculous.

Even the best intentioned government run health service can break down. And when it's the only game in town, and the bureaucrats in charge of it are about as accountable for their performance and at risk of being fired as a professor with tenure, that breakdown is inevitable.

To all the liberals who see the Walter Reed scandal (rightly) as an example of government failing its people, why do you insist on foisting such a system on the whole of the American public (except those rich enough to buy foreign insurance, as Canadians have been doing in droves for years)? And wounded war vets tend to get the attention of the public, and thus Congress - how about the rest of the regular schlubs who aren't as useful as political props? Do you want George W. Bush in charge of your health care decisions? Why is it that listening to international phone calls to Afghani caves is the historically unprecedented trammeling of our civil rights and is proof of a sinister American fascist state, but demanding that all US Citizens be forced under penalty of law to turn over ALL control of their medical records and treatment options (among the most personal and private of our lives and choices) to the Federal Government isn't?

Walter Reed - A Casualty of the Political War

2007-03-04T12:52:00.000-08:00

The emerging scandal surrounding the deteriorating level of care for wounded vets at Walter Reed Army Medical Center is a serious one, and one which even now seems not to be garnering the level of press attention it deserves. The reason for this, I'm convinced, is the heightened hyperbole of the political debate, and the cries of "Wolf!" coming from the left, and the smug, blind arrogance on the right.

Specifically, the left has been making charges against the Army's logistical, financial, and materiel support (this time around) since 2002. Not enough pay, not enough armor, not enough medical support. Some of them have been important and valid criticisms. Many (especially more recently) have been flatly ridiculous. But because the universal conclusion of these bomb throwers was, "So that means we shouldn't fight terrorists at all - run away!" the complaints were ignored for what in many cases they really were - an attempt to be anti-war and anti-military without sounding anti-war or anti-troop. Most telling was that almost none of them couched their critiques in terms of how to better improve the fighting efficiency and efficacy of the Army - They were nothing more than calls for pre-emptive American surrender. As a result, no one who took seriously America's crucial role in battling tyranny, fascism, and Islamo-terrorism world wide took any of the complaints seriously - even when they deserved to be soberly addressed.

Usually, I don't mind "partisanship" or "politicization." I usually consider those synonyms for "standing firm on principle" and "robust debate and democracy." But this is a case where the line has been crossed, and the team sport mentality causes substantial harm to those we can least afford to hurt - the volunteer bulwarks of freedom.

The absurdity of many of the left's complaints allowed the right - who "knew" that their status as the only serious party when it came to national security was secure - to ignore ALL the complaints. The were entrenched in power - why should they bother with introspection? Why should they give any ammunition to their political enemies, who they (not incorrectly) feared would only use it to further undermine the American war effort?

And so it was that the conditions at Walter Reed continued to deteriorate, American heroes were left to fight through the red tape of the world's largest HMO on their own, and those who have sacrificed for our freedom were given lip service instead of real help.

I'm glad that heads have rolled at the highest level. I'm glad that the Bush administration has begun taking action to remedy the situation. I hope that the Republicans have gulped enough humble pie to take the time to sort the serious complaints from the chaff thrown up by pacifist appeasers of tyranny. And I hope that Democrats, now under the weight of leadership, will tamp down the shrill and the dishonest, so they can better serve the American military.

But I'm not going to hold my breath. Thanks be to the bloggers and the few reporters who wouldn't let this problem simply melt into the roar of partisanship.

Laughing All the Way to the Carbon Bank

2007-03-04T11:05:00.000-08:00

Mark Steyn's column on Al Gore's carbon offset absurdity is simply too hilarious not to share. Here's some precious bits:

Two hundred twenty-one thousand kilowatt-hours? What's he doing in there? Clamping Tipper to the electrodes and zapping her across the rec room every night? No, no, don't worry. Al's massive energy consumption is due entirely to his concern about the way we're depleting the Earth's resources. When I say "we," I don't mean Al, of course. I mean you -- yes, you, Earl Schlub, in the basement apartment at 29 Elm St. You're irresponsibly depleting the Earth's resources by using that electric washer when you could be down by the river with the native women beating your loin cloth dry on the rock while singing traditional village work chants all morning long. But up at the Gore mansion -- the Nashville Electric Service's own personal gold mine, the shining Cathedral of St. Al, Tennessee's very own Palace of Versal -- the Reverend Al is being far more environmentally responsible. As his spokesperson attempted to argue, his high energy usage derives from his brave calls for low energy usage. He's burning up all that electricity by sending out faxes every couple of minutes urging you to use less electricity.

But what about those carbon offsets? Don't those make it OK?

How do "carbon offsets" work? Well, let's say you're a former vice president and you want to reduce your "carbon footprint," but the gorgeous go-go Gore gals are using the hair dryer every night. So you go to a carbon-credits firm and pay some money and they'll find a way of getting somebody on the other side of the planet to reduce his emissions and the net result will be "carbon neutral." It's like in Henry VIII's day. He'd be planning a big ox roast and piling on the calories but he'd give a groat to a starving peasant to carry on starving for another day and the result would be calorie-neutral. (emphasis added)

It's a moral issue alright. Just not the way they say it is.

Read the whole thing. I just about fell out of my chair.

Newt the Feminist?

2007-03-04T10:44:00.000-08:00

I still don't particularly care for Newt Gingrich personally, but I have to admit, he's got a lot of compelling things to say. He probably articulates the junction between a (not "the") principled conservative approach and practical efficacy of that approach better than any other right-leaner out there, politician or pundit.

In this recent interview with the New York Post, he lays out a great deal of the problems - and solutions - facing the country and conservatives. Take this tack on the War on Jihad:

For example, we should be talking about women's rights. I mean, women's rights is the easiest, cleanest single fight worldwide in taking on [the most radical forms of Islam]. . .

What better way to mobilize and/or shame liberals into understanding the dangers we face? He understands that there are a thousand good reasons for fighting this fight, and all of them resonate differently with different groups. It's ironic that this icon of divisiveness (admittedly an unfair caricature largely inflated by the MSM) understands so well how to build a broad coalition. I just don't think he's the one to do it.

Nominating Newt would guarantee the inauguration of President Hillary in January 2009. I wouldn't vote for him. But I sincerely hope he enters the race. His presence will force serious attention to serious issues that need to be faced by the Republican party - lest conservatism fall into irrelevance and the US becomes just another Eutopian Socialist society slowly committing cultural suicide.

Separation of War Powers

2007-03-04T10:34:00.000-08:00

A very good rundown/overview by Jeffrey Rosen on the Constitutional issues surrounding Congressional contemplations on Commander-in-Chief encroachment. (That's called alliteration, folks! Woo hoo!)

Quote of the Day

2007-03-04T10:23:00.000-08:00

The always inimitable George Will:

"This year we are told to be horrified by the fact that by November 2008 the presidential contest will have cost $1 billion. Which means that the two-year process will cost half as much as Americans spend every year on Easter candy."

Exactly.

The Updated Blog

2007-03-04T00:03:00.000-08:00

Blogger finally switched us over to their updated version, with all the new fancy bells and whistles that's supposed to make purty-ing up the site, spell-checking, finding your favorite post, and managing the blog in general simpler. I've adjusted and updated the blog to take advantage of the new features. If you have difficulty posting, accessing, or seeing any links or other things, let me know, but hopefully it'll be ship shape and better than ever without anyone missing a thing!

Loan Repayments for the "Public Interest"

2007-03-01T11:41:00.000-08:00

We're currently being spammed by E-mails from the official law school E-mail distribution list urging us to lobby our state legislators on behalf of HB 2024/SB 6039. The efforts are complete with a slick, fluffy, and misleading policy paper that we're supposed to cut-and-paste to our local law makers. This bill creates a fund to repay the loans of any student who works for either a non-profit or the government out of law school. That means that tax dollars support the ACLU, extreme environmental groups like the Sierra Club, religious organizations, abortion advocacy groups, etc. I find this unacceptable, even where the funded non-profits are for conservative causes.

I'm also annoyed as hell that, in spite of the ethical hot water our Dean has found himself in recently with regard to using University resources for private use, and the admonitions we've received against using those same University resources for political lobbying, I'm getting several E-mails a week blatantly doing just that. Have we learned nothing?

Well, I took the advice of the E-mail and wrote my legislator - just not in the way they probably intended. My arguments against this absurdity are contained there. My opposition letter is reproduced below in the comments section.

I also intend to write to the Dean, registering my irritation with the Law School's role in this purely political lobbying effort. Maybe I can get some equal time...

(As always, the opinions are my own. The Federalist Society itself does not lobby for particular policies, nor does it endorse or oppose any specific legislation.)

War and US History

2007-03-01T07:59:00.000-08:00

A great perspective piece from Victor Davis Hanson on our national successes, failures, and political silliness in times of war and conflict.

Even our most successful wars witnessed far more lethal stupidity than anything seen in Baghdad. Thousands of American dead resulted from lapses like the Confederate surprise at Shiloh, Japanese surprise attacks on Pearl Harbor and the Philippines, and the German surprise attacks in the Ardennes.

Peace: "Not just another top-heavy bureaucratic organization..."

2007-02-27T10:01:00.000-08:00

Saddam cheerleader and my district's Representative Jim McDermott has an op-ed today championing Dennis Kucinich's "Department of Peace" proposal.

Essentially, it's a catchall department for universal gun control, socialism, appeasement of foreign dictators, K-12 social engineering - things which apparently "represent[] the ideals on which this country was founded."

(That those "founding ideals" would no doubt come as a shock to the individual-liberty minded signers of the Declaration of Independence doesn't seem to interfere with any of this high-mindedness. I think Rep. McDermott could use a few more civics and history classes...)

Let's take a look at some of the more amusing/troubling highlights:

"In a world torn by conflict, I can't think of a better time, or a greater need, for America to act as a force for good at home and around the world."

By implication, of course, this means we haven't been a force for good either at home or abroad, at least not in recent memory. Riiight. If only we were as benevolent and helpful as France and Russia.

"The legislation, which I am co-sponsoring, would fund, support and coordinate programs already in existence - in schools, prisons, police departments, educational institutions, charitable organizations and elsewhere - that are proven to reduce domestic and international violence and enhance the security and health of all Americans."

Schools, prisons, police departments, educational institutions are Constitutionally the province of the states. The federal government already has far too heavy a hand in these plenary powers, and to what end? Success? Improvement? No! Why do we want MORE federal control? Does McDermott, who no doubt is among those fools who thinks Bush is basically Hitler without the dashing mustache, seriously want the President directly in charge of local police departments, schools, and prisons? And government funding and "coordination" of private charities means they aren't private charities any more. It's not like government will make them more efficient. No thanks.

"In my years as a congressman and as a physician in the U.S. military, I have recognized repeatedly that the interests of the one cannot triumph over the interests of the many; that the security concerns of the United States are best served by diplomacy and cooperation rather than brute force."

Yet another way to say, "interests of the one" is "individual liberty." Again, I think the founders would be shocked to discover that their founding ideals included stamping out individual interests. This is nothing more than a call to socialism. And rejecting "brute force" so completely requires the belief that we should have "cooperated" with Hitler. At least he didn't imply he's a Vietnam veteran this time.

"It will create a Peace Academy, on par with the Military Service Academies, to train civilian peacekeepers and the military in the latest nonviolent conflict-resolution strategies and approaches."

Ah, yes - because the UN's success with "peacekeepers" has been so profound. Is there a single example of them actually being successful without a prior military success? Maybe if we had a few Peace Academy graduates to try out their nonviolent conflict-resolution strategies on the animals slaughtering their countrymen in the Sudan, they'd be singing Kumbaya by the end of the year... The sight of a battalion of USPA graduates massing in great strategic drum circles is surely enough to bring dictators, warlords, wife beaters, and terrorists to their knees!

"I've learned there's something about the human spirit, about the spirit of Americans everywhere, that strives for cooperation rather than domination. We all yearn for peace, and for the prosperity that peace brings. We all yearn for a better world for our children and our children's children. We want for them the best education possible; health care that encompasses and embraces everyone; a retirement secure from the plagues and worries that come with inadequate income and support; a healthy environment; and a world freed from the horrors of war.

"By reducing the immense costs of violence both domestically and internationally, a U.S. Department of Peace will help secure these essentials. It will demonstrate to our citizens and to the world that the United States is committed to using its great strength in partnership with all peoples to work for, and champion, peace. And, it will provide a beacon of hope for everyone that the peace we yearn for is not an unachievable dream, but an obtainable reality."

All for just $8 Billion dollars. It's so easy! If only we had thought of it earlier. For $8 billion, we can have universal health care, fix Social Security, implement socialism, and eliminate war and crime forever! Brilliant! If only Bush wasn't standing in the way of this wisdom...

Unfortunately, many humans ARE motivated to dominate and conquer, not to "cooperate." The enemy we fight has no ambition to get along with Christians and Jews, they want us either converted, subjugated, or dead. The only way to achieve "peace" with a group with such ambitions is to kill them, scare them off, or surrender to them. I know which option I prefer. I think McDermott could save the $8 billion and simply surrender now. I'm sure his wife wouldn't mind "cooperating" by putting on a burqua. And the upside is that a more peaceful law enforcement system wouldn't be so darn mean to him when he violates federal wiretap laws.

Stand by for more good ideas. We can have a "Department of Fairness," a "Department of Niceness," and a "Department of Sharing." We can outlaw crime and it will magically go away! We can have a "Department of Un-Biased Media" that will ensure we're only exposed to the correct, fair, and peaceful ideas - Dennis Kucinich would LOVE that! Or we could form an umbrella organization simply called the "Department of Good Things." That would save even more money by covering it all under one (how did Jim put it) "a uniting framework for existing organizations scattered throughout the U.S. currently working to bring peace to our communities and the world."

World. Problems. Solved.

That this un-serious perpetual adolescent is an elected US representative who is routinely reelected with 75% - 80% of the vote is shameful. Is there seriously not a single grown-up Democrat in the entire 7th District Seattle could send instead?

Gore's Carbon Footprint

2007-02-27T09:37:00.000-08:00

Al Gore has responded to (without denying) this report that notes that just one of the former veep's mansions uses twice as much energy in a single month than the average American family does in an entire year.

Allow me to summarize by paraphrasing:

"I have enough money to make other people live with even LESS than zero net carbon output. I hate the greedy elitists who try to buy their way out of guilt, unless those people are me, and then they're noble oracles of disaster. Besides, I'm, like, really important. I NEED two mansions, and once I'm living with the resources I need, then my guilt is assuaged. Don't believe me? Doesn't matter - I have an Oscar that proves I'm right! Suckers!!!"

Again - if Gore honestly thought this was a crisis, carbon neutrality wouldn't be enough - he would aggressively be trying to have a net negative carbon footprint. Beware of politicians and activists who will in no way be negatively impacted by the draconian policies they propose.

By the way, same thing goes for the local yokels who think that by recycling their beer bottles and driving a Prius, they're "part of the solution." If this is truly a life-or-death crisis, every TV turned on, every website read, every microwave oven used, every trip taken to the movie theater, every meal eaten out, every CD bought, every A/C turned on, every heater used above 45 degrees, every mile in a car or product purchased not strictly required for survival is another unnecessary nail in the global warming coffin.

I buy none of it. Neither does anyone else, judging by their behavior.

Federalism - Good for Liberals, Too!

2007-02-26T10:41:00.000-08:00

Here's an interesting piece in today's Seattle times, where a liberal columnist comes alive to the fact that states are the better platform for a whole bevy of policy issues he prefers. Well - no freakin' duh!

While those of us in the Federalist Society tend to favor more conservative or libertarian policies, our biggest and uniting concerns are structural. Our federal system allows 50 simultaneous experiments with environmental policy, health care, crime control, marriage, etc. That means that a good idea can be adopted and adapted, and bad ideas don't infect the rest of the nation. Liberal or conservative, an adherence to the original design of the Constitution benefits us all.

Euro-Civil Rights and Terrorism

2007-02-25T23:27:00.000-08:00

The Wall Street Journal's Bret Stephens has an interesting piece on the European approach to civil rights in their own domestic fights against the Jihadists:

Consider the powers granted to Mr. Bruguiere and his colleagues. Warrantless wiretaps? Not a problem under French law, as long as the Interior Ministry approves. Court-issued search warrants based on probable cause? Not needed to conduct a search. Hearsay evidence? Admissible in court. Habeas corpus? Suspects can be held and questioned by authorities for up to 96 hours without judicial supervision or the notification of third parties. Profiling? French officials commonly boast of having a "spy in every mosque." A wall of separation between intelligence and law enforcement agencies? France's domestic and foreign intelligence bureaus work hand-in-glove. Bail? Authorities can detain suspects in "investigative" detentions for up to a year. Mr. Bruguiere once held 138 suspects on terrorism-related charges. The courts eventually cleared 51 of the suspects--some of whom had spent four years in preventive detention--at their 1998 trial.

I may be a powerful executive, lock-'em-all-up neo-con fascist, but I just can't get behind this at all. I can't tell if Stephens is endorsing it per se, but he clearly thinks it's worth thinking about.

I think we can fight this enemy without shredding our due process tradition like that. I think we have the tools in our own Constitution to aggressively defend ourselves here at home, especially if we remain willing to fight threats overseas. Despite the problems in Iraq, I firmly believe it has already been (and continues to be) a success for America - if for no other reason than it continues to be a sink for Jihadi money, manpower, planning, and weaponry. I am convinced that our presence in Iraq (and wider robust military approach) is directly responsible for the failure of any terror organization large or small to mount an attack in the US since 9/11 more substantial than a single gunman in Seattle, another lone attacker in Salt Lake City (brought down by a citizen with a gun), and a sidewalk-driver in San Francisco. Despite the wailings of the anti-Bush crowd and self-professed civil libertarians, we've had that success while keeping our basic rights well in tact - certainly no less so than in any past conflict our nation has been involved in.

This is one of the very real ways our military is protecting our freedoms, directly, right here and now. I hope Congress considers this before putting those freedoms at risk by thinking we can simply hide here at home behind our porous borders and our libertarian Bill of Rights.

Quote of the Day

2007-02-23T16:14:00.000-08:00

Peggy Noonan, discussing the Hillary-Geffen-Obama political dramatics:

Mrs. Clinton is like the little girl who steals the boy next door's candy and hits him on the head with a hammer. He runs, "Mommy, she stole my Snickers and hit me on the head!" She turns to the mother, hammer in hand, and gestures at the boy. "This . . . is the politics of personal destruction."

Public Funding for Judicial Elections

2007-02-22T14:40:00.000-08:00

I missed last week's lawyer's chapter event on money in judicial elections, but yesterday's Seattle Times had a piece by Bruce Ramsey discussing it - and the topic at large.

Seattle attorney Jenny Durkan spoke for the bill at a recent meeting of the Federalist Society, arguing that all the mudslinging undermines the public image of an impartial court.

Ah, yes. "Mudslinging." Yet another way to say "mudslinging" is "stuff that may be true and relevant but makes my guy look bad." And still another way to pronounce "mudslinging" is "freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

Up for discussion was a pending proposal in the state legislature to allow public funding for those elections, supposedly because they would then be more high minded, less "political," and would allow each side to look "impartial." Whatever that means. According to Ramsey:

Under this proposed system, if you were an unknown figure challenging a sitting justice, you would essentially be forced to file as a private-sector candidate. You would raise your own money. When your spending topped $84,836, for every additional dollar you spent, the government would cut your publicly funded rival (or rivals) a check for the same amount. If you spent $50,000 on a fundraiser that grossed you $60,000, it would be a gain of $10,000 for you, but your opponent would bank a $50,000 check, because that is what you spent.

If a group friendly to you spent $100,000 to slime your government-financed opponent, your opponent would get a check for $100,000. If a group friendly to him did that to you, you would get nothing.
The government would match the spending on your side up to $678,691 in the primary and the same in the general election, if there remained a contest. Your opponent could continue collecting beyond $678,691 if there were any money left, and if there weren't, he would be freed to solicit his private donors. By that time, your private donors might be tapped out.

This, of course, solves none of the "problems" that are being complained about. Mud would still be slung, sides would be taken, "private money" and "special interest groups" (i.e., politically astute and engaged citizens exercising their Constitutional rights) would still spend hundreds of thousands of dollars. Washington Supreme Court Justices would still be linked to the people and groups who endorsed, supported, and funded their campaigns.

That's democracy. And democracy isn't a "problem" I want to "solve."

What this is really about, of course, is that liberal members of our liberal court actually had to fight for their seats last November, and there were real discussions about issues of judicial activism, the role of the high court, and the extraordinary power of the Justices. And liberals like Durkan and state Senator Oemig (sponsor of the "reform") don't for a second want their hold over the judiciary to be even threatened to be threatened by some moron redneck out in Moses Lake who doesn't even listen to NPR. The concern over the horrors of actually allowing campaigns to influence voters has nothing to do with methodology and everything to do with content of political speech and ideology.

Personally, this is why I think judges should be appointed by the Governor. No judge who must stand for election and re-election can truly look "impartial." The way to insulate the judiciary from political influence is to not let them be politicians. Otherwise, we simply elect a redundant Super-Legislature increasingly signaling their willingness to use their power to mandate their personal policy agendas.

So long as we vote for judges, the state judiciary will be a political (even if remaining officially non-partisan) branch of the government. For better or worse, the people of this state have chosen a political method for checking the power of the judiciary. Until we amend the state Constitution, we need to accept that method of accountability, with all the warts that go with it - including all those dirty, biased, and very partial exercises of our First Amendment rights.

DC Circuit: Military Commissions Act Constitutional

2007-02-20T12:02:00.000-08:00

Here's the story.

As I've written before, this is the right decision. I hope the Supreme Court agrees.

It also gives me the opportunity to respond to something Professor Epstein said two weeks ago opposed to the MCA - that a military tribunal is unconstitutional because the ajudicator is part of the executive branch. If that were true, then every single court-martial and non-judicial punishment ever imposed by the military in the past 220 years or so has been unconstitutional. And that's just absurd.

America's Baghdad?

2007-02-20T10:39:00.000-08:00

This story detailing the spiraling crime in New Orleans is a great example of democracy guaranteeing the people the government they deserve. This line struck me particularly:

Before Katrina struck on August 29, 2005, there was little public pressure to do something about the number of murders, which peaked in 1994 with 425 killings.

Considering they re-elected the incompetent Ray Nagin as Mayor, who thought race-baiting and Bush bashing would be just as effective as filling busses with refugees before the storm, not to mention sending the coldly dishonest William Jefferson back to Congress, one wonders just how much pressure there was after the storm, either.

But taking a cue from the Congressional Democrats, I have a solution to this mess. We should set a date six months from now to withdraw all federal monetary, logistics, and personnel support from Louisiana. This will send a signal to the corrupt state and local officials that the American People's patience with incompetent government, rampant corruption, and out-of-control violence is not limitless. If we set a date to withdrawal, they will know they have to get on the ball themselves.

Any takers? Didn't think so. So why does this sound logical when people are talking about retreating from Iraq? And as far as I know, no Cajuns have threatened to blow up landmarks in New York, if only they were left alone by the feds long enough to hatch an appropriate plot.

Yes, yes, I know New Orleans is in our country, and Baghdad isn't. But isn't it a liberal argument that international borders are outmoded, and that humanitarian efforts should not be determined by geopolitical considerations?

The idea that withdrawing from Iraq will motivate the Iraqi democratically elected government as opposed to destroying it is a pipe dream, a preemptive salve to the consciences of the Democrats who can't bring themselves to face the fact that their policy proposals will result in wholesale slaughter for years to come. If they're OK with that, fine - but let's be honest about the results of our actions: Freedom lost, democracy stillborn, millions dead, thousands more dead in vain, and a victory which will embolden the Islamofascists for generations to come.

SCOTUS: The Movie?

2007-02-12T18:37:00.000-08:00

Senator Arlen Specter has once again introduced legislation to put cameras in the Supreme Court, citing the increased willingness of Justices to speak with the media.

I think it's a bad idea. It's not as if the transcripts of oral arguments are unavailable, or spectators excluded, or the reasoning of the Justices concealed. But it would mean that video clips would be shown - necessarily out of context due to time constraints - nightly on the news. And lawyers may attempt to play more to the audience at home than to address the specifics of the legal questions to the judges. In how many political ads might an out-of-context reducto ad absurdum hypothetical posed to an attorney appear?

And frankly, I think any courtroom cameras invite a profound collapse of dignity. Think Judge Judy. Or the OJ trial.

Limiting the public access to either live attendance or easily available transcripts limits the contextual problems unique to video without sacrificing transparency - or dignity.

Other thoughts?

What Flags Are OK To Desecrate?

2007-02-12T17:06:00.000-08:00

What do you call it when a group selectively uses the mechanisms of the State to suppress expression of a point of view they find politically objectionable?

If you're the San Francisco State University administration, the SFSU student council, Students Against War, the International Socialist Organization, or the General Union of Palestinian Students, you call it "protecting diversity," "preventing violence," or "promoting tolerance."

This story starts with an "anti-terrorism rally" held last October on campus by the College Republicans. To emphasize their point, students stomped on Hezbollah and Hamas flags. According to the college paper, the Golden Gate (X)Press, members of Students Against War and the International Socialist Organization showed up to call the Republicans "racists," while the president of the General Union of Palestinian Students accused the Repubs of spreading false information about Muslims.
In November, the Associated Students board passed a unanimous resolution, which the (X)Press reported, denounced the California Republicans for "hateful religious intolerance" and criticized those who "pre-meditated the stomping of the flags knowing it would offend some people and possibly incite violence."
Now you know that there are students who are opposed to desecrating flags on campus -- that is, if the flags represent terrorist organizations.
But wait -- there's more. A student filed a complaint with the Office of Student Programs and Leadership Development. OSPLD Director Joey Greenwell wrote to the College Republicans informing them that his office had completed an investigation of the complaint and forwarded the report to the Student Organization Hearing Panel, which will adjudicate the charge. At issue is the charge that College Republicans had walked on "a banner with the world 'Allah' written in Arabic script" -- it turns out Allah's name is incorporated into Hamas and Hezbollah flags -- and "allegations of attempts to incite violence and create a hostile environment," as well as "actions of incivility."
At an unnamed date, the student panel could decide to issue a warning to, suspend or expel the GOP club from campus.
***
The university's response? [SFSU] Spokesperson Ellen Griffin [said], "The university stands behind this process. [...] I don't believe the complaint is about the desecration of the flag. I believe that the complaint is the desecration of Allah."

So what if it is? If a student put a crucifix in a jar of urine, they probably would have gotten a scholarship from the art department. And if people will be uncontrollably driven to violence because someone expresses disgust with a terror organization who acts in the name of Allah, maybe they aren't ready to be Americans. At the very least, they should have had to re-take high school civics.

I oppose American flag burning legislation, because, as much as I'm offended by such action, real Americans respond to expression with either expression of their own, or by walking away. That's what it means to live in freedom. I imagine the SFSU folks also oppose laws against American flag burning, but considering the flag-selectivity of the administration and the complaining student organizations, I have to wonder if their reasons for that opposition have more to do with an approval of the message than any free speech principles.

Alas, this isn't limited to the rarefied atmosphere of San Francisco. At our own institution, the College Republicans had their "Affirmative Action" bake sale shut down by the University. Minute Men and their supporters were shouted down last October and ousted from their speaking event at Columbia. And speakers who violate the campus orthodoxy often face pies, disruption, and threats. At some law schools, new students are publicly warned away from the Federalist Society, and no faculty member will serve as their advisor.

None of this is new or surprising. But this kind of thuggery deserves to be exposed and mocked again and again and again. As often as it takes.

The Futility of War?

2007-02-12T15:11:00.000-08:00

Clint Eastwood, on the message of his two new movies, "Flags of Our Fathers" and "Letters From Iwo Jima":

"I think every war has a certain parallel in the futility of it and that's one of the reasons for telling these stories -- they are not pro-war stories." ***

"I grew up in the war pictures in the 1940s where everything was propagandized. (In) all the movies, we were the good guys and everybody else were bad guys," [Eastwood] said. "I just wanted to tell two different stories where there were good guys and bad guys everywhere and just tell something about the human condition."

Except that WWII wasn't futile. It was a life or death struggle for freedom, against the forces of evil. And had the US and the Allies (who really were the "good guys") chosen not to fight the fascist Imperial Japanese, or Nazi Germany, (who really were the "bad guys"), the world undoubtedly would be a darker place.

War is a dark, terrible, awful thing. It destroys families and often shatters the lives of the soldiers on either side. Innocent people die, and cities are demolished. At no time in the national debate should we loose sight of that. But as terrible as war is, sometimes the alternative is worse. As John Stewart Mill said,

"War is an ugly thing, but not the ugliest of things. The decayed and degraded state of moral and patriotic feeling which thinks that nothing is worth war is much worse. The person who has nothing for which he is willing to fight, nothing which is more important than his own personal safety, is a miserable creature and has no chance of being free unless made and kept so by the exertions of better men than himself."

Some wars are futile. The one we currently find ourselves waging is not. The choices we make now will determine the fates of millions for centuries to come. Life or death? Freedom or slavery? Theocratic Fascism or liberal secular democracy? Calling these choices "futile" is to discount these differences; and to declare our disagreements illegitimate. It is to say that our history is no more noble than that of the USSR's. Or to Nazi Germany's. It is the worst kind of moral relativism.

The veterans of WWII were fighting for more than futility, as the millions they liberated can attest to. I am a fan of Clint's movies, and I even look forward to seeing these. But I can only shake my head that the disappointing simplemindedness of this American icon.

Quote of the Day

2007-02-12T12:03:00.000-08:00

Czech President Vaclav Klaus in an interview on his loud derision of the Global Warming cultists:

Q: Isn't there enough empirical evidence and facts we can see with our eyes that imply that Man is demolishing the planet and himself?
A: It's such a nonsense that I have probably not heard a bigger nonsense yet.

He goes on to wonder if the interviewer is even conscious, and if "Mr. Al Gore" is even sane. The whole thing made me laugh out loud. I love this guy.

Denial

2007-02-12T10:48:00.000-08:00

I honestly can't think of anything more evil than the people who attempt to downplay or deny the Holocaust. While it's good science to re-study history to ensure our shared narrative is a true one, those who claim Nazism wasn't "that bad" or worse, that it was all a setup by those nefarious Jews to steal land from the poor, innocent Palestinians, are excusing, justifying, and in some cases even promoting the great evil of fascism. (Now, if only we can get similar outrage directed at people who didn't think Communism was all that bad...)

So, having been compared to one of those excusers of evil by Ellen Goodman last week because I happen to think most of the Global Warming "science" is a lot of political hooey, I felt moved to respond. Goodman said:

I would like to say we're at a point where global warming is impossible to deny. Let's just say that global warming deniers are now on a par with Holocaust deniers, though one denies the past and the other denies the present and future.

She then, of course, breaks her arm patting herself on the back for using three whole fluorescent lightbulbs. (I have at least 5 in use in my condo, Ellen. NOW who's Hitler!?!)

Unfortunately, minor things like "bar applications" and "homework" were getting in my way. So fortunately, James Taranto at the Wall Street Journal summed it up brilliantly for me:

Imagine if someone in 1937 had foreknowledge of the Holocaust and began sounding the alarms, describing in detail what was going to happen just a few years later. Most people probably wouldn't believe him. They would be, to use Goodman's phrase, denying the future. But would they be "on par" with people who deny the Holocaust after it has happened?
That seems a stretch. There's an enormous difference between doubting an outlandish prediction (even one that comes true) and denying the grotesque facts of history. Because we are ignorant of the future, we can innocently misjudge it. Holocaust deniers are neither ignorant nor innocent (though extremely ignorant people may innocently accept their claims). They are falsifying history for evil purposes.

To Taranto's wisdom I would add only this. Iran has, in fact, denied the holocaust, and at the same time, not-so-subtly threatened a new, nuclear extermination of Israel (and, incidentally, of the US). Many on the left have their heads in the sand over this threat, and deny that Ahmadinejad really means it, deny that Iran has the ability to make good their threat, deny that the UN is incapable of responding (and in fact is complicit), deny that Iran is currently making war on the US, and has been since 1979, and deny that there is no negotiating with a fascist madman who uses the language of Der Fuher. (Goodman herself thinks Ahmadinejad is nothing like Hitler, because... he denies the Holocaust!)

To me, this is a much closer parallel to the Holocaust deniers. But it would still be absurd to claim the modern Iran-ostriches are "on par" with Illinois Nazis. Almost as absurd as believing that three fluorescent lightbulbs and a Prius are the moral equivalent of liberating Auschwitz.

Great FedSoc Events Next Week

2007-02-09T10:51:00.000-08:00

One on the death penalty, another on race - should be extremely interesting if you can make it! Note: I wasn't clear before - the two events advertized below are at Seattle University. Also, don't forget about the lawyer's chapter discussion this Wednesday on money in judicial elections with none other than Justice Sanders.

Watada Played Chicken - And Won (For Now...)

2007-02-08T10:43:00.000-08:00

Yesterday's mistrial of Ehren Watada will no doubt be taught as a case study to new JAGs, new military judges, and base commanders for years to come as an example of how to most effectively botch what should have been a five minute court martial.

He missed movement. He admitted it. After assuring his superiors that it was about him, and would face the consequences quietly, he broke faith and began touring around the country bragging about his crime. He didn't just "speak out against the war" (which hundreds of soldiers HAVE done legally, without legal consequence), he urged soldiers to join him in open insurrection against the elected civilian leadership of the military, and did it in public. He attempted to foment a coup. By declaring that merely getting on a plane to Iraq would be a war crime, he accused the hundreds of thousands who have served there of being war criminals. I personally witnessed his remarks, as did thousands of others. Many of his proud admissions were recorded on videotape (posted on Watada's own website, no less!), and made available to the court officers.

But he didn't understand what he was admitting to. Really! Right...

His intended defense was clearly inapplicable, and his activist lawyer (who I think cares far more about being a liberal activist than being a realistic advocate for his client) no doubt knew that Supreme Court precedent would clearly bar the judge from considering an "illegal war" defense. (Parker v. Levy, et al.)

Why would the prosecution make a deal? Why would they sign a sloppy factual stipulation - which they KNEW would for all intents and purposes be an admission of guilt - without making it clear to the defendant that such a stipulation could be used as a confession? Why did the judge, knowing its importance, not question him on the "meeting of the minds" before the jury had heard the Government's case in chief? In fact, why did the prosecution make a deal at all? Did they not have enough videotape? Did they need him to urge a military led rebellion at a few more "peace" rallies? Was he seriously going to be able to argue that he hadn't missed movement after all, or that he REALLY meant to go but simply forgot to set his alarm that morning?

The sad truth is that the most powerful military history has ever known is being cowed by the likes of Sean Penn. Despite the fact that this case has nothing whatsoever to do with free speech or political opposition to policy, the DoD is deathly afraid to be accused of creating a political prisoner. A more senior and experienced officer should have been appointed to prosecute the case - one who would less intimated by the high profile and public nature of this trial. And there should have been no deal struck unless it included an out and out guilty plea. It's not as if the evidence was ever in any meaningful dispute.

Indeed, from the absurd double jeopardy arguments now being made, one has to wonder if this wasn't the strategy all along. Sign a stipulation that could later be used as a dodge. That a lawyer who specializes in defending draft dodgers and deserters, a loose ethical foundation is to be expected. But still...

For their timidity, the military officers overseeing this debacle have guaranteed that the media will shield all future deserters from punishment, and have made the maintenance of a well disciplined force that much harder. Their last hope is to do it the right way in March, if they haven't blown it completely already. If that fails, then they should order him to re-join his unit, or another one in Iraq, wait for him to refuse again, and then try him for the second refusal. We'll see if the military leadership has enough courage to tell all the tens-of-thousands of war criminals currently in Iraq that Watada's slander of them won't go unpunished.

Ehren Watada is not a coward in the sense that he is any more or less afraid than anyone else to head into a combat zone. I truly don't believe that's the case. But he is a moral coward in that he has made his bed, and now refuses to lie in it. His central argument is that no one should be held accountable for their actions, as long as they really, really mean it, and that civil disobedience is a legitimate form of protest that, when undertaken for a really good reason, should be protected. And that just isn't the case.

If he were a man of moral courage, he would have plead guilty from the start, saying he'd rather sit in jail than do something he felt was illegal. He probably would have been given a suspended sentence and an Other Than Honorable discharge, but even if not, he would be accepting the consequences of his decision. But instead he ran behind the skirts of socialist anti-American activists, seeking to avoid negative consequences at all costs while courting celebrity political clout - all at the expense of the Constitution he swore to uphold, his country he swore to defend, and his fellow soldiers he swore to bear true faith and allegiance to.

This is not a matter of conscience. It is a matter of honor and of law. Watada has no respect for either.

Candidates, Judges, and Social Conservatism

2007-02-06T11:12:00.000-08:00

There is a lot of discussion surrounding the two GOP Presidential front runners (if such a thing can exist 21 months away from an election) about their conservative bona fides. For John McCain, this relates mostly to his assault on political speech, opposition to tax cuts, and his amnesty-esque stance on immigration. For Giuliani, it has to do with his checkered love life, support for civil unions, gun control stance, and pro-abortion views.

But do these things matter? What do conservatives really want - and what do they really need - from a President?

Ultimately, it comes down to judges. A president's personal views on abortion are less important to abortion foes than his willingness to appoint judges and justices who understand Roe v. Wade is a terrible abuse of judicial power and needs to be overturned. The executive's inclination toward gay marriage or even civil unions is far less relevant than his understanding that the Constitution doesn't require those outcomes via the Fourteenth Amendment. The fear is that the social liberal will, in order to protect his or her policy preferences, are willing to appoint judges who are willing to flex and stretch the Constitution to fit those notions, whether the Constitution actually applies or not.

I've always been worried that a President McCain, when interviewing judges, will sit them down and say, "Here's the thing - campaign finance reform is my baby. You aren't going to consider any part of McCain-Feingold (or anything subsequent I do to make it even tougher) unconstitutional, are you?" While it certainly can be fairly said that there are too many lawyers in government, one of the downsides about not having a legal education is not fully understanding how judges fit into the conservative scheme. And that leads to nominating Republicans (like Souter, Kennedy, O'Connor, and Harriet Miers) instead of conservatives - not exactly a formula for consistent or conservative jurisprudence.

What's more, I haven't heard anything from McCain about judges. What kind of justices will he appoint? What does he look for in his potential appointees? What is his understanding of the role of judges in the Constitutional scheme?

Giuliani, on the other hand, is an attorney. And he's correctly downplaying his more liberal social views and talking about what kind of judges he'll nominate. As he recently said in South Carolina,

On the Federal judiciary I would want judges who are strict constructionists because I am. I'm a lawyer. I've argued cases in the Supreme Court. I've argued cases in the Court of Appeals in different parts of the country. I have a very, very strong view that for this country to work, for our freedoms to be protected, judges have to interpret not invent the Constitution. Otherwise you end up, when judges invent the constitution, with your liberties being hurt. Because legislatures get to make those decisions and the legislature in South Carolina might make that decision one way and the legislature in California a different one. And that's part of our freedom and when that's taken away from you that's terrible.
President Bush has the great model because I think as the President he did appointed some really good ones and both of them are former colleagues of mine - Chief Justice Roberts and Justice Alito. Justice Scalia is a former colleague of mine. Somebody that... I think Chief Justice Roberts is a great chief justice and he's young and he can have a long career and that's probably the reason the President and Vice President chose him. I think those are the kinds of justices I would appoint - Scalia, Alito and Roberts. If you can find anybody as good as that, you are very, very fortunate.

I think voters - especially Republican primary voters - are smart enough to understand the balance and tension between personal social views, the role of the judiciary in social issues, and which is more important. (Indeed, I believe the failure to make this a campaign issue last year likely cost the GOP control of the Senate.) The question will be who broaches the subject the correct way - or at all.

Bump: The Return of Professor Epstein - TOPIC UPDATE

2007-02-06T09:18:00.000-08:00

*** Update! ***

TODAY - February 6, 2007, 4:00 PM, Room 119

Room change - note it is now in 119, not 118.

Professor Epstein will be discussing his view on war powers and executive authority as it relates to the War on Terror. He has a very different take from our last speaker, but from a legally (as opposed to politically) conservative point of view. Here's a preview.

It also looks like we won't have the food, per the Academic Services rules about not befouling the classrooms outside of the lunch hour. However, several of us are planning to grab some food and perhaps a tasty mug or two at the College Inn Pub after the event, and the FedSoc will pick up the first couple of pitchers in lieu of food at the event. All are welcome!

**************

World renowned University of Chicago Professor Richard Epstein will be giving a talk next Tuesday, February 6th at 4:00 PM in room 118. The topic and possible debate adversary is TBD (check back here for updates), but we can tell you for sure that:

a) it will be from a very different point of view than the standard conservative/liberal camps,
b) it will be an extremely interesting talk, and
c) ~~there will be free food.~~

See you there!

Law School - A Waste of Time (And Anti-Competitive)?

2007-02-05T11:58:00.000-08:00

Maybe it's just the malaise of being a 3L, but this piece arguing just that struck quite a chord with me.

I've argued since law school began that the actual schooling portion should be about half the time, with some kind of apprenticeship/"residency" requirement at an approved training firm (some sufficient breadth of practice area, and training for the partners in the firm). And the monopolistic self-appointed ABA gatekeeping has always troubled me. But the investment in the status quo by the academics-in-chief has always left me with the conclusion that things aren't going to change any time soon.

But who knows? Maybe this report is the start of something new...

Global Warming - Betting Our Life(styles) On It

2007-02-03T17:10:00.000-08:00

The Canadian National Post has a phenomenal series profiling the so-called global warming "Deniers," which put the lie to much of the slander heaped upon the scientists who dare to defy the groupthink and junk science that has become the new Religion of the Left. Indeed, more and more and more scientists are coming forward with the courage to stand up to this nonsense.

Indeed - it's difficult to figure out why this global "consensus" exists in the first place in the face of so little supporting evidence, until you understand the agenda of the pushers of this insipidness - anti-capitalism and anti-Americanism. Why would China, India, France, Russia, and the multitude of nations who want strong economies sign off on this suicide manifesto? Easy - they are either exempt from the proposed regulations or can ignore them without consequence, and they know that because of our integrity, the US will suffer the most from these policies. And the socialists have the perfect excuse for overarching government control of our property. It's like a perverse version of Ronald Reagan's outspending of the Soviets - our economic and political competitors (even the ones here at home) may suffer, too, but they know we'll suffer more. And they're gambling it will hurt us so much that they can gain supremacy before we come to our senses.

And I wonder if the academics, who twist their data to a pre-ordained conclusion so as not to lose next year's grant money (and to justify more of it) understand that without a robust economy, society won't have the tax revenue to fund luxuries like insulated, ivory tower intellectuals making 6 figures? (Judging from academia's decades-old love affair with militant socialism, this question unfortunately answers itself.)

Not that there aren't true believers, just as there are in any religion. And they fulfill every stereotype of the naive and hypocritical evangelical adherent - basing their own "science" on anecdote (whether they remember more or less snow growing up 10 years ago in Minnesota) and blind allegiance to every word of The Prophet Al. With a straight face, they exhort people to conserve energy by (not kidding) unplugging their cell phone chargers when they aren't actually charging their phone - while burning uncountable carbon atoms powering their amps, riding in their busses and private jets, and keeping the lights on in their many mansions.

If a single one of these mindless celebs (and that includes Al Gore and even - dare I say it - His Royal Dumbo Ears the Prince) actually feared that humanity faced immediate danger to its very existence, they would all move out of their mansions and into one bedroom flats and keep their thermostats at 60 all winter. None of them would travel unless absolutely necessary - and then certainly not on private jets! None of them would heat their pools - or even have pools. Every Ferrari and tricked out Cadillac would be abandoned. Never again would they buy foreign made luxury items - Armani suits, BMWs, and Italian marble slabs take a lot of marine diesel to cart across the sea (not to mention the overboard discharges that taint the oceans with waste oil). Every dollar they made beyond the $30,000 needed to live day to day would be donated to environmental causes, European governments, the UN, and buying controlling stock in oil companies so as to shut them down. They would donate their estates to build new nuclear power plants. They would all switch to acoustic guitars, and beg people to stay home and read books instead of driving to the movie theater or even turning on their TVs. Democrats would denounce NASCAR fans.

You see, our true priorities, fears, and agendas are shown not in what we say, but in what we do. And none of the global warming cultists, by their energy gobbling, lavish lifestyle supporting, conspicuous consumption actions, are actually afraid of global warming. It's not a priority to them. Their agenda is not to stop polar ice from melting, it's to look cool and feel like they matter beyond the fantasy worlds in which they live.

Environmental policy is important. Pollution choking the air we breath and the water we drink is a serious threat to our health and economic vibrancy, as well as to the inherent value our natural places provide to our souls just by existing. There are plenty of very good reasons to limit dirty emissions and discharges, and to regulate our industries so we don't expose entire communities to deadly chemicals. And the climate is not stable - it will warm and cool, maybe even dramatically, and humans will have to adapt. Just as we've always done. But none of this justifies the Global Warming absurdity currently underway.

Understanding what the true threats are - and more importantly, what they aren't - is crucial to crafting policies that actually solve problems as opposed to making rich celebrities feel good about themselves. And in solving problems, we must recognize that when we monkey with the economy, it doesn't just hurt the profits of millionaires working for Exxon - it stifles job growth, entrepreneurship, tax revenue, technological innovation, and class mobility. It destroys the ability of the third world to improve their living conditions, leading inevitably to more poverty, disease, famine, war, fighting over resources, ethnic strife, and violent tribalism - conditions not easily remedied with a dike. And the solutions offered thus far involve more epherial (but no less destructive) dangers, threatening individual freedom, state and national sovereignty, and property rights.

That's right, environmentalists. No free lunch. Your proposals are, if implemented, going to doom millions to poverty and early death. All for a problem even the UN Doomsday Report says is "unstoppable." Just so everyone's clear what the tradeoff is.

The global warming fad is a frightening harbinger of Western un-seriousness. We half heartedly (or not at all) fight against the rising Global Jihad - a REAL clear, present, and immediate threat to our existence and to our freedoms - instead choosing to spend billions of dollars (usually of other people's money) to combat something which even if it actually exists can't be stopped at this point (at least not without dooming ourselves to the poverty of a pre-industrial existence). We're willing to stifle foreign investment that would substantially reduce the risk of military conflict just so John Kerry will have nicer things to say to fascist Mullahs about us the next time he takes his wife's private jet to Europe.

The enviro-cultists are ironically betting their lives and lifestyles that they're wrong, and that they'll fail in their lobbying efforts. I'm also betting my life (and my own lifestyle), but on the assumption that I'm right. I'm going to continue to participate in the US industrial economy, use electricity unnecessarily to do things like watch TV and use this computer. My wife and I are going to buy more house than we absolutely need, and heat it in the winter. I will buy things I don't need that were delivered to the store by a truck burning fossil fuels. And in 50 years when emissions are tripled and the Florida peninsula still exists, I'm going to say "I told you so."

Hopefully, the cultists won't have to apologize for having needlessly tanked our economy in the meantime.

President Finally Gets Runaway Administrative Agencies Under Control

2007-01-30T08:46:00.000-08:00

There is much wailing and gnashing of teeth about President Bush's new executive order achieving more direct oversight by the administration over various administrative agencies' rulemaking bodies. I say it's about time someone attempts to rein in this unelected, hopelessly bloated, inefficient, and largely unaccountable 4th branch of government.

Here's a great example of the criticism, which only makes sense if you completely ignore the Constitutional scheme or the importance of accountability to the voters:

Representative Henry A. Waxman, Democrat of California and chairman of the Committee on Oversight and Government Reform, said: "The executive order allows the political staff at the White House to dictate decisions on health and safety issues, even if the government's own impartial experts disagree. This is a terrible way to govern, but great news for special interests."

Waxman, of course, would much prefer that CONGRESS dictate decisions on health and safety issues. Or perhaps that unelected and un-fireable government bureaucrats dictate decisions on health and safety issues. (Anything that would prevent those nefarious businesses or incompetent ordinary people from makidecisionsons about their health and safety!) And I love the assumption that those who might disagree with the administration are necessarily "impartial." It's interesting how concerns about government intrusion never seem to apply

And then there is the sinisterism associated with "the political staff at the White House". The nice thing about "political staffs" is that they're accountable to voters through the executive. Elections should have consequences, but administrative agencies are almost impervious to them.

Administrative agencies are of questionable Constitutional legitimacy, I think, but even if Justice Thomas was cloned and appointed to the bench 8 times, they aren't going away. Therefore, because they clearly serve an executive function, they should be more closely administered by the executive. The elected, accountable executive. Any other option either gives too many executive powers to Congress, or leaves the bureaucracy to plow forward on its own - unaccountable, unrelenting, ever more intrusive, and ever harder to stop.

I'd like to see him go a step further - every federal agency and program should be carefully reviewed every ten years, just as military bases, units, and programs are, with an eye towards trimming them down, cutting them entirely, and looking at actual results rather than merely the feel-good-goals. Alas - cutting an EPA sub-agency that is sucking money without producing results makes total sense, and so it will die a quick death in Congress by people who will claim cutting such a program is "anti-environment."

I don't think Bush has the courage or political capital (or the desire, frankly) to go that far, but this executive order is a good step. It's about time a President attempted to wrestle this extra-Constitutional beast back under control.

Iraq vs. Darfur - Just What Is a Worthy Call to One's Conscience?

2007-01-29T15:03:00.000-08:00

These pictures, taken at the University Temple United Methodist Church across the street from the UW law school, illustrate perfectly the moral bankruptcy, hypocrisy, and vapidity of the left's foreign policy worldview:

Around the country this weekend, tens of thousands of people marched in favor of the killing of countless Iraqis - the certain outcome if we were to ~~retreat~~ redeploy from that country. Whatever their signs may have said, it was clear what they wanted. They marched in favor of American defeat, in favor of the anti-democratic forces in Iraq, in favor of Fascist Iran's geopolitical goals. They literally spat at an OIF veteran who dared to disagree with them. Why? Because Bush lied about WMDs, because our presence there only creates more terrorists, and because we're only there for the oil anyway. (That none of these claims are in any way supported by facts have no impact, remember.) They claim to be anti-war, but the truth is that they don't care about war unless the US has something to do with it. Or at least, they care far less about mass killings than about being anti-Bush. A call to one's conscience indeed.

Why are the Christians in Darfur more worthy of being saved than the Kurds or Shi'ites were under Saddam's Iraq? Why is the sectarian violence (some could say civil war) in the Sudan worthy of sending American troops to battle al Qaeda, IEDs, and an "endless war" in a country without any real government, when at the same time, it is a moral imperative that we guarantee the same deadly results in Iraq by withdrawing immediately?

Because of the fact that Russia, France, India, and China buy substantial supplies of their oil from the same Sudanese government which is happily allowing the killings to continue (much as those governments prevented action against Saddam for the same reasons), why do they imagine the UN will do anything? And since it's by now obvious that these three permanent vetoes will prevent any kind of action in the Sudan, does this "Crisis of Conscience" require that we go in unilaterally? Or is intervention only morally justified if we can get a corrupt international debating club to sign off on it?

SaveDarfur.org, the organization the banner asks us to donate to, has four goals:

Strengthen the understaffed and overwhelmed African Union peackeeping force already in Darfur.
Push for the deployment of a strong UN peacekeeping force.
Increase humanitarian aid and ensure access for aid delivery.
Establish a no-fly zone.

How are these things any different than what we have tried and are trying to do in Iraq? How will they NOT result in US soldiers being killed, or in "distracting" us from the "real" war on terror? Wouldn't we be invading a sovereign nation that isn't a threat to us? There's no WMDs there! Wouldn't we just recruit more terrorists who can claim we're oppressing the Muslims because we are intervening on behalf of the Christians? Wouldn't we open ourselves up to accusations that we're only there to take the oil for ourselves? What's SaveDarfur.org's exit strategy? If Bush is an incompetent buffoon who only makes things worse for the locals by his military interventions, why are they demanding he lead the charge? Are these people Chickenhawks for advocating Darfur intervention without volunteering to go there themselves?

Why is it that being a super power means we can only use force when it's NOT related to our national interests? Even if the absurd conspiratorial accusations against Bush lying and terrorizing his way into Iraq were true, how do people who think it is worth American lives to prevent mass sectarian violence not demand we stay there?

There are no answers to these questions, of course. Darfur is hip, Iraq is not. That's it. That's the real difference. And Darfur has the added bonus of "never going to happen" because of French, Chinese, and Russian interests there. Which means the high school idealists, college-know-it-all hippies, academics, and other assorted activists can feel good about "making a difference" without ever having to face the consequences which come with the best intentioned humanitarian interventions.

I would love to intervene in the Sudan. I wish we had the military to do it. Unfortunately, our military is too small to solve every world problem at once. So how about we finish solidifying our victories for freedom and human rights against murderous oppressors where we already are first? Don't think success in Iraq will be able to be ignored by the Sudanese thugs who know they're next on the radar...
"Blessed are the Peacemakers" indeed. Too bad neither this church, nor the "anti-war" crowd, nor the defeatists in Congress can claim such a title.

Western Civilization's Fall to the Barbarians - Part II?

2007-01-29T11:35:00.000-08:00

This story should scare the hell out of everyone who believes in and loves western style liberal democracy.
The RealClearPolitics blog has the quick breakdown:

> 37% of British Muslims aged 16-24 want to live under Sharia - compared to 28% overall and only 17% of those over 55.

> 36% of British Muslims aged 16-24 believe Muslims who convert to other religions should be punished by death - compared to 19% of those over 55.

> 74% of British Muslims aged 16-24 prefer Muslim women wear a veil - only 28% of those over 55 agree.

And the most concerning number of all:

> 13% of British Muslims aged 16-24 agree with the statement "I admire organizations al-Qaeda that are prepared to fight the West." Only 3% of those over 55 agreed with the same statement.

The obvious question is, "Why didn't they just stay/go to a country that does live under Sharia law? There's plenty of them. Why are they bother coming to Britain? To Europe? The US?"

Maybe the terrifying answer is that they aren't here to Westernize themselves, or to take advantage of our free and open society. Maybe they're here to Sharia-cize the West. And maybe right now, Europe is letting them succeed...

How Do We Measure Troop Morale?

2007-01-28T23:14:00.000-08:00

Much has been made of this Military Times poll from last December, which purportedly shows a drop in support for the way the Iraq war has been prosecuted. Senator Webb even referred to it in his attack on the war in his State of the Union response (although he didn't specifically cite it). The tiny handful of actively engaged anti-war activists in uniform are given as much press time as they can handle. So we're about to face a Carter-era crisis of troop defection, necessitating either a full scale retreat or a draft, right?

I don't think so.

The media (2003) has been banging this drum (2004) for years, now (2005), based on anecdote, inaccurate polls, and wishful thinking. What's more, I don't doubt that there's a hell of a lot of folks in uniform (a substantial majority, in fact) who wouldn't much rather be at home raising families than being shot at and bombed by fascists. I'm quite concerned about the effect on Reservists, who I think have been overused in a system still designed for a WWII type mobilization effort. And there's no question, I think, that we have too small of an overall force, that our people are spread too thin, and as a consequence, we are not as flexible and are more vulnerable now than is prudent.

But to the narrower question of morale. How to judge it? Polls of military members are difficult to conduct scientifically. The phrase, "A [griping] sailor is a happy sailor" is a truism older than Noah, which makes the results difficult to decipher. And the various press reports are hopelessly biased.

So let's just count heads. If they're staying, it probably means they're generally optimistic, and think they're being treated fairly. In an economy boasting 4.5% employment, with veterans even less than that, it's not like they can't take that training and get a better deal. So what is it?

They're joining. And they're staying. In ever increasing numbers. Higher than pre-9/11 rates. Voting with their feet. And that's a poll you can track with certainty.

Marine veteran W. Thomas Smith, Jr. explains why the retention and recruitment rates aren't reflective of the doom and gloom picture of imminent collapse distributed by the MSM:

What the numbers do suggest, and what we who have worn the uniform of the United States have always known, is that soldiers and sailors gripe. They get frustrated like everyone else. They blow off steam. And they have been doing so since armies first marched and navies sailed. They complain about the food (even when it is superb). They dismiss the equipment as being worthless (even when it is the best in the world). And they sometimes grumble that their leaders are stupid (though those leaders might be tactical masters on the battlefield). The unhappiest and most rebellious of those who gripe are also the most vocal in their griping.

To me, this doesn't validate or invalidate the Iraq policy per se. If war policy was based on how cushy we can make the lives of soldiers, I'm not so sure we'd be speaking English today. But undoubtedly, the probability of victory is a powerful retention motivator, while certainty of defeat would drive those numbers down. And that gives me a lot of cause for optimism.

In Defense of Justice Thomas

2007-01-28T16:18:00.000-08:00

For all those who want to know the truth behind the most-snickered-at-Justice-in-any-law-school-class:

Clarence Thomas has borne some of the most vitriolic personal attacks in Supreme Court history. But the persistent stereotypes about his views on the law and subordinate role on the court are equally offensive--and demonstrably false. An extensive documentary record shows that Justice Thomas has been a significant force in shaping the direction and decisions of the court for the past 15 years.
That's not the standard storyline. Immediately upon his arrival at the court, Justice Thomas was savaged by court-watchers as Antonin Scalia's dutiful apprentice, blindly following his mentor's lead. It's a grossly inaccurate portrayal, imbued with politically incorrect innuendo, as documents and notes from Justice Thomas's very first days on the court conclusively show. Far from being a Scalia lackey, the rookie jurist made clear to the other justices that he was willing to be the solo dissenter, sending a strong signal that he would not moderate his opinions for the sake of comity.

Read the whole thing.

What Are the Justices Saying Off the Bench?

2007-01-28T15:58:00.000-08:00

Here's a very interesting piece in Slate about the increased press time our Supreme Court Justices are willing to engage in, and what they are - and, more interestingly, are not - willing to talk about.

I think it's good - the more the public understands the difference between judicial philosophies, the more likely they are to make an informed decision when they vote for the person who appoints judges, or the Senators who confirm them. Or, for that matter, when they vote for judges in the several states. (Moreover, I think that debate favors a more conservative, humble judiciary, but even if it didn't, more information for voters is usually better.)

But the pitfalls of loose-lipped jurists certainly exist, and are worth a pause to consider. Any other thoughts out there? Does increased time before the cameras risk increasingly politicizing what is supposed to be the non-political branch of government?

"Censorship," Public Arts Funding, and Media Bias

2007-01-28T13:39:00.000-08:00

I am acutely aware of media bias, and have been trained to read between the lines of newspaper stories since my first debate class my sophomore year of high school. I consider myself a discerning consumer of news, and not easily fooled. But it's amazing how a headline can still inflame. Consider the following story, with the headlines I saw, accompanied by my thought processes:

(From Drudge) "Politician Wants Government to Review Movie Scripts -- Before Cameras Start Rolling..." Me: What the hell? This must be about that Dakota Fanning movie. Imagine - the federal government reviewing every movie script - what is this, North Korea? Outrageous! I wonder if it's a Democrat like Al Gore, who's music censorship insanity now gets a free pass, or if it's some nanny state "conservative." It'll never fly, but the fact that it even is up for debate is shameful! I need to check this out... Click.

The headline from the Wilmington Star, a North Carolina paper: "Republican: Scripts Need Reviewing" Me: Great. Even though I know the headline would read differently if a Democrat had proposed this, way to fulfill every negative stereotype about conservatives. I need to blog about this offensive and unconstitutional attack on free speech. Not only is it outrageous, but it'll be good to show those who think the FedSoc is just a GOP shill that principles trump party politics here. Government pre-screening of movie scripts - Outrageous!

And then I actually read it. In my head was the sound of the abrupt record scratch as the jukebox stops playing and everyone in the bar looks up.

That system, said state Sen. Phil Berger, R-Rockingham, would apply only to films seeking the state's lucrative filmmaker incentive, which refunds as much as 15 percent of what productions spend in North Carolina from the state treasury.

Me: Well I'll be darned. I just got punk'd by two headlines in a row. Not only is it entirely reasonable for a 15% stakeholder to want to review a script before committing to it, it has nothing to do with the First Amendment or government censorship of private art (however disgusting) at all. It doesn't have anything to do with the federal government, either.

I think it's a dangerous road to start down, to offer this kind of incentive package. I understand the state's desire to incentivize filmmakers to come to their state and show it off (hopefully in a positive light). But then comes the murky world of deciding what's "objectionable," allegations of "arbitrary and capricious" decision making, etc.

Regardless, nothing in the actual facts being reported has anything to do with the implications of the headline, which is that "Republicans hate free speech and want to censor Hollywood." It is a dishonest way to support an entitlement mentality - "I have the right to make a movie, therefore, the I have a right to government money that may help me do that."

One of the truisms behind the principles of limited government that most of us here share is that if government pays for it, they can control it. We generally therefore seek to limit government control and intrusion by cutting the purse strings. It is one of the logical absurdities of liberalism we here tend to reject - that one is entitled to the government's (other people's) money for our own benefit without any strings attached, and that the Constitution requires it.

How We See Poverty

2007-01-25T14:20:00.000-08:00

I thought this was a very interesting way of phrasing the differences between conservatives and liberals on the topic of wealth and poverty, using the SOTU and Sen. Webb's response:

President Bush's proposals tend to target various aspects of what might be called absolute poverty. By contrast, Sen. Webb is interested in relative poverty.

***
Corresponding to the emphasis on absolute poverty and relative poverty are feelings of altruism and envy respectively.

President Bush seeks to inspire altruism by encouraging Americans to compare themselves with those who have less[...]

Sen. Webb, by contrast, encourages Americans to compare themselves to those who have more, and feel envy.

I've always hated the "relative wealth" argument, and love hearing it only because it means that we're so prosperous as a nation that populists can't point to the terrible conditions of the lower classes any more as some kind of problem that needs big (socialist) fixing. In fact, the great unwashed masses apparently in need of all this government rescue have it pretty darn good.

Most conservatives I know don't oppose some kind of safety net, such that even those who have spent their life making terrible choices aren't freezing to death in the gutter. (Most of us do ask that the people seeking the net at least stop the behavior that put them in the gutter in the first place, or that they take up some part of the responsibility of getting help.) Likewise, most of us agree that helping those truly unable to help themselves - children, the truly mentally ill, the very elderly - is a proper role of the (state and local) government.

But to extend that net to a working class that is more well off than at any time and in any place in the history of the planet, simply because a few people make even MORE money, is absurd. Robbing from the rich to give to the poor may make for fun movies, but it's a terrible way to run an economy, or more importantly, protect individual freedoms.

Money in Judicial Elections - Lawyer's Chapter Event

2007-01-25T11:22:00.000-08:00

THE PUGET SOUND LAWYERS’ CHAPTER

of the FEDERALIST SOCIETY

cordially invites you to a panel on:

Money and Politics in Washington

Judicial Elections

Moderated by:

The Honorable Richard Sanders – Justice, Washington State Supreme Court

Featuring a distinguished panel:

John Groen – Former Candidate for the Washington State Supreme Court and Partner, Groen, Stephens, and Klinge, LLP

Charlie Wiggins – Partner, Wiggins & Masters, President of the Washington Chapter of the American Judicature Society, and former Court of Appeals, Division II Judge

William Maurer – Executive Director, Institute for Justice Washington Chapter

Jenny Durkan – Office of Jenny A. Durkan, Co-Chair of Citizens to Uphold Constitution

Monday, February 12, 2007

6:30 p.m. to 8:30 pm

The Washington Athletic Club

1325 6^th Avenue

Seattle, WA 98101

$25.00 (includes hors d’oeuvres and hosted bar)

*CLE Credits Pending

RSVP

Diana Kirchheim at 425.453.6206 or dianak@gsklegal.pro

Nifong The Victim

2007-01-25T09:01:00.000-08:00

"He's devastated. It's very upsetting to be attacked. It's like he's public enemy No. 1," said David Freedman, Nifong's attorney.

Awwww... It's so saaaaad. Well gosh, Mr. Nifong. Maybe you should have thought of that before you violated ethics, discovery, and media communications rules in order to railroad some kids in a cynical race-baiting political maneuver. At least now he knows how the victims of his prosecutorial abuse felt. Thank God they had the means to fight back, both in the media and in the courtroom.

If there's real justice in the world, Nifong won't just get disbarred - he'll live forever in infamy in every Professional Responsibility casebook in every law school in the country. I wouldn't count on it, though - then law professors might have to admit that sometimes whites can be victims of racial politics, too.

I never understood why this case was anything more than a blip on the national news radar, until Publius pointed it out. One of the liberal articles of faith is that rich white people run around and oppress poor black victims whenever they can, especially in the South. Because actual examples of this are increasingly hard to find, when a story that reinforces that mode of belief comes along, the liberal MSM will blow it up into ridiculous proportions. And because it's what they expect to see in the world, there's no need for healthy skepticism, fact checking, balance, or any other journalistic skill they were supposedly taught. Rich white southern boys rape poor black ~~stripper~~ student? Well, duh! That's the sun rising in the east!

Nifong, of course, counted on this MSM complicity, and rode it all the way to re-election. Nothing like a little race baiting to score a few votes - so what if innocent people are flayed because of the color of their skin!

At this point, no one is defending Nifong, except apparently, his attorney helped out by the above linked ABC softball piece. Well, that and a bunch of isolated college professors who aren't about to let the truth get in the way of their social views. But it's important to remember that Nifong was only exposed, despite the best efforts of his abettors in the media and academia who want to shape our perception of the world as racist, because they accidentally picked on victims with the means - and evidence - to defend themselves. As long as we as a society continue to give race baiters a pass so long as they're the right color, the Duke lacrosse players won't be the last victims of this kind of abuse.

Who Will Protect Free Speech?

2007-01-23T09:52:00.000-08:00

The New York Sun is declaring that Sen. McCain has finally seen the light on free speech:

Mr. McCain's epiphany came during debate on the new "ethics" bill the Senate passed earlier this month. Mr. McCain and the Republicans, joined by seven Democrats for free speech, voted down a provision that would have redefined the word "lobbyist" to include groups like politically active churches, direct mail companies, small nonprofit organizations, and even bloggers.

Under the provision, known as Section 220 of the Legislative Transparency and Accountability Act of 2007, these "paid efforts to stimulate grassroots lobbying" would have been considered lobbying, meaning that organizations that asked the public to contact their elected representatives would have been regulated like multimillion dollar K Street firms.

As much as I do like John McCain, his poor understanding of the First Amendment is troublesome to me. And I'm not going to hold my breath that he's suddenly become a free speech libertarian. But what's far worse is the fact that the party in power - the one supposedly swept in by people indignant over Bush's imperial and fascist presidency - overwhelmingly voted for the measure.

And it gets worse. Led by Dennis Kucinich, the head of the newly created "Domestic Policy Subcommittee of the House Government Reform Committee" (which is apparently more interested in ferreting out subversives than in addressing out-and-out corruption), the Democrats are once again pursuing a return to the ironically named FCC "Fairness Doctrine." This intrusive balancing requirement would kill an entire medium of overt (and usually conservative) political speech - talk radio - but would leave in tact left leaning but putatively un-political "news" like NPR (where you can't even call in to challenge the speaker). Serious attempts have even been made by Congress to expand this concept to the internet - the ultimate expression of a free press surpassing the wildest dreams of by the Founding Fathers.

Meanwhile, one of those Senators who voted for the measure is, of course, rejecting any public funds for support of her Presidential campaign (as ar most of the candidates) , in order to avoid government control of that money. Good for her, but she ironically argues that her choice to opt out of government control is actually proof of why we need even MORE government control of free speech. Government control of speech is good for you, but not for her.

Political contributions, which fund both political speech and are necessary to petition the government for redress of our variougrievanceses through the political process, are at the heart of what should be protected by the First Amendment. Attempts at "reform" through additional regulation only serve (consciously or not) to suppress and control political speech.

The rich always have had an access advantage to political power, and they always will. Nothing will ever change that. In this country, that's not even always a bad thing - it usually takes hard work, vision, ambition, and leadership to become wealthy. But another big part of that advantage comes from their ability to use their wealth to bypass government control by hiring better lawyers, or even creating a completely independent media outlet (think George Soros).

Logically, then, the more regulation that exists, the harder it will be for the non-wealthy to get their views out, run for office, oachieveve their political ends.

So why are liberals (and too many conservatives) so intent on pushing such regulation? The simple answer is that they don't trust us little people to sift through all that speech out there, and make decisions based on it. That's it. And that attitude is flatly un-democratic and un-American.

The only regulation we should see on political speech is transparency and reporting. Let's keep the marketplace of ideas free. I believe deeply in the wisdom of the American people when we get together and determine the direction of our destiny, more than I have faith in politicians to give me the right answers. Our leaders need to harness this wisdom by opening the floodgates - not trying to restrict and control the information flow. That - far more than Jesus in a jar of urine - is what the First Amendment is really all about.

Man bites dog

2007-01-16T18:01:00.000-08:00

Per SCOTUSblog: dog bites man, man wins!

U.S. loses important terrorism case ... for now

2007-01-16T16:45:00.000-08:00

U.S. v. Ressam (No. 05-30422). See here and here. You'll recall the millenium plot to bomb LAX. Ressam came into the U.S. through Port Angeles and was tried in Seattle. See 221 F. Supp. 2d 1252 (W.D. Wash. 2002). He was sentenced to 22 years on charges carrying a 65-year maximum. The government appealed the sentence as unreasonably lenient. Ressam appealed his convictions.

Today the Ninth Circuit reversed the conviction on one count--carrying an explosive in the commission of a felony--because: 1) the statute requires a relationship between the underlying crime and the act of carrying an explosive; 2) the jury was not instructed on such an element; and 3) the government did not offer evidence that defendant's explosives were used to facilitate his false customs declaration. The court did not reach the sentencing issue, but vacated the whole sentence. So the court gave Ressam a cookie and the U.S. a cookie. And they go back to the District Court to fight over the crumbs.

My sense is it'll turn out worse for Ressam. Granted it's rare you woundn't want to appeal a conviction garnering 22 years, but does it get any better under the circumstances? If I'm not mistaken, the U.S. wanted life at the outset of the trial; if they can ask for life on remand I'm sure they will. Perhaps better to fight the government's lenient-sentence appeal and rely on trial court discretion than to press reset as to one count and hope for the best.

Who Should Be Allowed to Make Policy?

2007-01-16T09:12:00.000-08:00

By now, pretty much everyone has recognized that Senator Boxer was wrong (and beyond stupid both politically and logically) in implying that Secretary Rice couldn't understand the implications of her policy decisions because she doesn't have children. But like John Kerry's "botched joke," Senator Boxer's comment was simply a Freudian slip that showed the end result of the absurd logic employed by many of the anti-war activists.

This is an issue that's always been particularly irritating to me, from the "absolute moral authority" of Cindy Sheehan (which ignores pro-war mothers), to the defenders of draft dodgers who only now demand that a President have served before he makes national security decisions. This absurd and un-democratic line of thinking is evident with every "chickenhawk" argument ever made. But I was moved to write today by a letter to the editor in today's Seattle Times which condemned Senator McCain for being pro-war despite him having a son serving in Iraq right now. Apparently, even if you DO have a "personal stake" in the Iraq war, you're only allowed to make the "correct" (liberal and selfish) decision.

So - if you're for the Iraq war, and have a son or daughter serving in Iraq (no one has children serving - those in Iraq are adults who have their own votes, opinions, and freedom to volunteer or not), you're exploiting your children for political gain. Pro-war and no kids, you're a cold hearted villain making decisions without understanding the impact on "real people." Pro-war and a veteran? Cynically exploiting your service for political gain. Pro-war and not a vet? Chickenhawk.

Of course, these are just the opposite on the other side of the isle. Anti-war with a family member in a combat zone? "Absolute moral authority." Anti-war with no family involved? Brave souls speaking out and "taking their democracy back." Anti-war and a vet? "How DARE you question a war hero!!!" Anti-war and not a vet? Well, they're speaking out for the soldiers who aren't allowed to because they've been silenced by their military-industrialist slave masters.

So how about this? Let's follow the "Chickenhawk!" shouters down their rabbit hole, and adopt their logic. Only veterans vote on national security issues, or parents whose soldier children are still minors and can't yet vote. Direct family members of active duty members get one half-vote, since they are impacted, but aren't risking their own lives. (I wonder how many hours the current Democratic Party would survive under this scheme - the shouters should be careful what they ask for...)

And then lets extend that to everything. Only taxpayers are allowed to vote on any issue which involves government expenditures, with more votes granted to those who pay more taxes. Only property owners are allowed to vote on eminent domain rules. Only people with children are allowed to vote on education policy.

And it doesn't need to just be about voting. We can have separate issue-specific legislatures, where only people directly affected by those issues are allowed to run for office. Only judges who have been through divorces can be on the bench in family court, only those with a history of drug use can prosecute drug crimes, and only convicted criminals can be Public Defenders. Better, let's require our judges, prosecutors, and public defenders to all have a personal stake in the outcome of the case they're involved with.

Or we can recognize that ALL Americans have a personal stake in national security, tax policy, education, and objective jurists. We can all recognize that "You don't know what it's like, man!" is a cowardly way to avoid having to make a hard policy decision yourself, and is "logic" best left on the playground. It has no place in the editorial page of the newspaper, or in the chambers of Congress.

Should a Triage Mentality Apply to Civil Rights?

2007-01-11T11:36:00.000-08:00

Last Monday, a class-action trial began in federal court alleging various civil rights violations of people who were arrested during the WTO protests in Seattle in 1999. Specifically, according to the plaintiffs, the issue is this:

[P]olice arrested about 200 demonstrators gathered in Westlake Park -- primarily for pedestrian interference and obstructing an officer -- without any individualized evidence that they had broken the law.
In pretrial proceedings before U.S. District Judge Marsha Pechman, the city recanted earlier testimony and admitted that the police didn't order the demonstrators to disperse before arresting them. Once they were in custody, police used a boilerplate, photocopied arrest record for everyone.

It always chaps my hide when violent protesters - or those who refuse to self-police their fellow protestors - whine about the violations of their rights. The rest of the people of the city, who actually work and contribute to the economy, could not get to work, suffered tremendous damage to their property, and in many cases, feared for their safety. I would love to see a class action suit from those folks against the professional protest groups who spearheaded the destruction.

(All of this property destruction and wasted tax dollars, I might add, in the name of restricting the ability of the Third World to join our prosperity by denying them the ability to engage in capitalism. American liberals love the myth of the Noble Savage, and will fight to preserve it - wishes and life expectancy of said "savages" not withstanding.)

But even if these particular people weren't breaking the law, should a different standard apply when a city is under siege? When large groups have broken into full scale riot, arson has been attempted and is being threatened, city and personal property is being destroyed, and the safety of innocent citizens city-wide is in question, should we be as strict with standards of probable cause as we would be with an individualized suspect at a routine traffic stop?

When a large disaster takes place which injures many people at once, acceptable standards of medical care change. Doctors in a triage situation make decisions they would never make even in an emergency room. They give up on certain patients who might otherwise be saved, they
provide the most cursory of diagnoses, and they don't bother with minor injuries that otherwise would be treated to prevent infection. We accept and understand this change of standards, because we understand the heightened danger, limited resources, and speed at which decisions must be made requires it.

The same thinking should apply to police responses when civil order has broken down, and the city faces immediate and direct threats to the safety of a city's property and citizenry. "Probable Cause" should encompass the situation - groups of protesters ignoring the police are more likely to break the law when wide-scale lawlessness brought about by their fellow protesters is already underway. We can't and shouldn't issue blank checks to riot police, but we need to be honest with the way riots and their participants work.

The price of not doing that is to allow riots to become even more violent, and indeed deadly. This is not idle conjecture, but exactly what happened in Seattle two years later when Mardi Gras revelry became violent, but the mayor and the police were afraid of "over reacting." The results were far worse riots (despite fewer people being involved), leaving one man dead. And I believe that Seattle's current rise in violent crime is directly related to a continuation of this failure to learn the right lessons from the WTO disaster.

In the meantime, the best way for hippy protesters to safeguard their rights - and ours as well - is to behave and police themselves. If civil disorder and property damage is threatened every time a rally takes place, then we'll start seeing some real encroachments on free speech and assembly. Licensing schemes will become more onerous, police will become less willing to hope for the best before they start swinging batons, city officials will face enormous incentive to lie, and an even wider swath of innocent bystanders will be impacted.

By using the circumstances of an arrest to more correctly define the law under which that arrest occurred, to include giving the police more leeway in times of emergency and large scale disorder, we will actually protect our rights. But if these protesters are successful in suckerpunching the city yet another time, this time with costly lawsuits, all of our freedoms will suffer.

"Giving" America a Raise?

2007-01-10T14:41:00.000-08:00

I despise the idea that lies behind this particular Democratic slogan, which is, of course, used to sell the idea of raising the federal minimum wage. It assumes that all Americans in all industry - public and private - work for the government. It sounds generous, but the reality is that it's generosity with other people's money. And there's another word to describe being generous with other people's money: Theft.

It's dishonest, too. Most people make far more than the minimum wage, and those who do don't stay at that wage very long. Indeed - raising the minimum wage would only hurt the people at the bottom the the economic ladder (so called because all Americans have the ability to climb higher on it). If we require a "living wage" which can support a family of four, then we deprive high school students and other young people the opportunity to break into the system, while at the same time depriving an entrepreneur - the real strength of the American economy - the opportunity to mitigate the risk to his investment by hiring cheaper (and legal) labor. There's nothing wrong with expecting an 18 year old to live with three of his buddies and share the rent when he's first entering the work force.

Nor does raising the minimum wage really do anything to reduce poverty - just ask anyone who was around in 1938 facing 19% unemployment how much it helped Americans support their families.

Not only is it bad policy, but it's one of the most egregious abuses of the Interstate Commerce Clause the federal government has ever foisted upon the country. Even if a minimum wage was necessary, this is exactly the kind of policy best left to the states with their highly varied economies, costs of living, etc. "One Size Fits All" programs rarely do, and all this does is take away the ability of states to manage their own economies. If you have told the founders that the Constitution they were signing would make it legal for a Massachusetts Senator who grew up on his father's money to set wage scales for a Pennsylvanian factory, it never would have been ratified. Indeed, most states have their own minimum wages, higher than the proposed federal hike. There is no pattern of better economies or decreases in poverty rates in those states, or such patterns would be part of the selling package. It is nothing more than an abuse of federal power, and a naked attempt to buy votes with other people's money.

George Will puts it best:

But the minimum wage should be the same everywhere: $0. Labor is a commodity; governments make messes when they decree commodities' prices. Washington, which has its hands full delivering the mail and defending the shores, should let the market do well what Washington does poorly.

If Nancy Pelosi wants to "Give America a Raise," I'll thank her to use her own money to do so. Or support more tax cuts, which have the same effect sans the negative economic impact that comes when startup businesses can't afford low-skilled employees. The federal minimum wage is bad for workers, bad for employers, bad for the economy, and makes a mockery of the federal system which once protected our freedoms (of which economic freedoms are a crucial part) by "splitting the atom of sovereignty."

The "Plight" of the Poor

2007-01-10T11:12:00.000-08:00

This is anecdotal to be sure, but this story written by a Montana woman who lost a good job through no fault of her own, and is now living on $6.50 an hour, is worth a read. (Thanks to my wife for forwarding me the story.)

Notably, she states emphatically that she's not a victim. She doesn't scream about the unfairness of life, nor does she blame a politician. She doesn't decry the lack of government regulation that might have prevented her layoff, nor does she ask anyone to force her current employer to pay her more.

In fact, she says she's not even really "poor." She owns her own home and has made the decision not to touch her retirement fund. She's not in danger of starvation, and enjoys heat and potable running water and sanitation. And without including a single demand that the government come save her, she outlines the steps she has taken and is taking to climb out of the hole she finds herself in.

To many, this story is a blasphemy to the Religion of Victimhood. The idea that this woman has had and still has choices, that her situation is not immutable, that she is bettering her situation without the government doing it for her, and that she rejects the notion of poverty all demolish the argument for more Robin Hood-esque wealth redistribution. In order to justify further intervention in our lives and further encroachment upon our liberties, they have to believe that such freedom-crushing intervention is absolutely necessary. Stories like this one show that this worldview - usually held by wealthy white liberals who feel compelled to save everyone whether they want to be saved or not - simply isn't true.

This isn't to say that we shouldn't have any safety net at all. But discussion of poverty in this country is usually profoundly dishonest. Many, many of the poor in this country would have
been considered middle class only 20 or 30 years ago. And the author is not alone - many "poor" people own their own homes, have cars, have savings, etc. I don't want people starving and dying in gutters, but it's worth remembering that personal liberty is at least as important of a virtue than is living at some ever-increasing "minimum" standard of quality of life. And if you aren't free to fail, you simply aren't free.

Employment Law Myopia

2007-01-04T12:01:00.000-08:00

"But if it's good policy [for the employer to treat employees a certain way], why shouldn't the government require it?"

It is because, my dear Employment Law classmate (yup, it's an actual quote from class), a benevolent tyranny is still tyranny, and how and under what authority the government makes laws is at least as important as the substance of the laws themselves.

It's because if the government makes a bad employment policy decision, we all suffer. But if one company makes a bad policy decision, only they go out of business, keeping the door of opportunity open to smarter businessmen.

It's because even good policy administered by a middleman government bureaucrat grows more costly and less efficient.

It's because government regulations cost employers money, which is then passed on to the consumer through the increased cost of the goods and services, sparking inflation. It decreases the number of employees that can afford to be hired, making jobs less plentiful for everyone. These things are not only bad for the economy at large, but they ironically impact the poorest people the most. A job with no benefits is far better than no job at all.

It's because good policy for one employer isn't necessarily good policy for another.

It's because employers have rights too, and the employers are the ones taking all the risk if their enterprise fails. Not the employee. Certainly not the government. And despite the socialist propaganda filling our casebook, even the Big Bad Corporations are not evil oppressors, nor do they have unlimited funds to hand out to the people they hire.

It's because when companies maximize profits, everyone benefits. Government revenue goes up without increasing taxes, companies can hire more people, and charities benefit.

It's because if government has the power to tell an employer he can't fire someone but for previously delineated reasons, the government has the power to tell an employee she can't quit but for previously delineated reasons. And if the later is slavery and an undermining of any concept of freedom of contract, than the former surely is as well.

It's because we have over a century of the history of World Socialism to show us the futility of state-micromanaged economies.

In essence, my erstwhile classmate is demanding that George W. Bush run every business in the nation. I wonder if putting it in those terms would make people think twice the next time they spout, "Why, the government oughta..."

Sigh. Forgive the rant. Two days in, and already the banal and juvenile tripe that so often passes for critical thinking in law school is in full sway. It is stunning that people so professedly concerned about the government stripping away of our civil rights are so willing to demand that this same government step in and manage our pocket books, our businesses, our health care decisions, our associations, ad infinitum. That the above truisms are hardly mentioned in an employment law class shows how badly the education I and the tax payers are buying suffers when ideological diversity among a university staff is so completely lacking.

Can someone please tell me again who exactly is threatening my liberty?

Free to Choose

2006-12-19T13:23:00.000-08:00

Milton Friedman's PBS TV series "Free to Choose" is available online here . The 1990 series has a fantastic introduction by the Governator ...

Posner on Trans Fats

2006-12-17T21:27:00.000-08:00

Judge Posner commented on the trans fat ban in his blog today. His analysis was much more of a cost-benefit analysis than was my look at the issue a few days ago. His conclusions stated "My cost-benefit analysis is, necessarily, highly tentative. However, it inclines me to a sympathetic view of the trans-fats ban. I anticipate strong opposition from libertarians."

I have one quick comment on his analysis. He states that "no one wants his restaurant experience poisoned by having to read a menu that lists beside each item the number of grams of trans fats it contains." He quickly disregards this option while I feel that it may be the best option available.

I do not think that this statement is necessarily true. The presence of trans fat does not have to be so intrusive. Many restaurants do use an asterisk to indicate that something is spicy. Some similar universal symbol could be used for the presence of trans fats. I do not think the precise number of grams needs to be stated on the menu (although it should be available upon request). This will not "poison" the restaurant experience. It will get people thinking about the issue and will cause some change.

Posner's Comments

Reyes for President?

2006-12-11T14:42:00.000-08:00

Apparently the in-coming (Democratic) head of the House Intel committee does n't know that Al Qaeda is primarily Sunni. He also appears not to know a great deal about the inner workings of Hezbollah.

Big frickin deal. Good for him. This kind of knowledge is largely irrelevant to his role in Congress. The Intelligence Committe is primarily concerned with oversight and crafting authorizing legislation. One does n't need an encyclopedic knowledge of the various flavors of Islamic thought and the nuanced and finely wrought doctrinal distinctions between them to be effective at oversight, or crafting intelligence legislation.

Banning Fat

2006-12-08T14:05:00.000-08:00

New York City recently decided to ban the use of trans fats by restaurants in the city. While some have equated this move with the smoking bans being passed around the country, I think that the issue deserves individual treatment.

While the lay person may cite saturated facts as the most dangerous type of fat, the fact is that trans fats are actually more dangerous. Trans fats, commonly found in such foods as margarine, Crisco, potato chips, peanut butter, etc., are made by passing hydrogen through the fact. As a result, the fat can stay in a solid state at room temperature. As one doctor described the effect of the process: "It's not good for body to digest; it's like eating plastic." The FDA even concluded that the recommended daily allowance of trans fats is 0 grams (for comparison, the RDA of saturated fats is around 20 grams). As a result of this, I have avoided trans fats since high school and feel that this has helped improve my health.

Now, the same dangerous side effects can be said of smoking (which I am against banning). However, the case for a ban of trans fats is stronger for three reasons: (1) people unknowingly ingest trans fats; (2) people are not privy to the health problems related to the trans fats; and (3) there are already alternative fats available that do not significantly affect the taste of the food (albeit with a slightly higher cost due to their lower availability at this time). With smoking, everyone is aware of the health issues and individuals consciously make the decision to smoke. At restaurants, trans fats are often used without the customers knowledge. Even if one knows that they are used, few people know about the health concerns related to their ingestion.

While I think that the personal and social cost of trans fats are high and that they ought not to be eaten, I think an all-out ban is too much at this point. One of the reasons that trans fats are used is because they are cheaper and, for the time being, more readily available than comparable fats. By banning their use, the government is forcing a cost on the restaurant. In addition, many companies have complained that transitioning to a substitute fat has been difficult. The individual no longer has the option to make a choice of being cheap food now and paying for it down the road with higher health costs. The problem with the current situation is that individuals are not making informed decisions because they are not aware of the presence of trans fats in their foods. This would be ameliorated by a labeling requirement. Restaurants would be given the option to continue to use trans fats so long as they notified the customers.

The FDA imposed a labeling requirement on groceries that went into effect January 1, 2006. Now, products must state the quantity of trans fats contained in them. While the regulation has its flaws (products can state "0g trans fat" or "trans fat free" even though they contain small amounts of trans fat per serving), it has served to entice companies reduce and eliminate trans fats in their products. For instance, a couple of years ago, few potato chips were made without trans fats. Now many brands are trans fat free. Labeling has also helped raise public awareness of the issue. While the case is stronger for a ban, requiring restaurants to merely notify customers of the presence of trans fats would help serve the same ends as a total ban without the extra costs imposed on business and individual freedom. If someone wants a Big Mac soaked in trans fats, let them have it. It should be their choice so long as they know whats in it.

Breyer vs. Scalia: The Movie

2006-12-08T13:21:00.000-08:00

Here's the video of the ACS/FedSoc Breyer/Scalia discussion I blogged about yesterday, available in either full video or just the audio.

Choices and War

2006-12-08T10:05:00.000-08:00

Exactly.

It's frustrating that we've lost sight of who has what choices in this war. We didn't choose to fight it. We CAN'T choose NOT to fight it, except by surrendering and converting wholesale to Shariah Strength Islam. ("Peace" activists take note - if "peace" is the absence of fighting, and that "peace" is the ultimate "good," then this is the option for you. Enjoy your gay marriages and nose rings under Shariah. But for my part, I would rather be a free man at war than a slave and a prisoner at peace, as would most Americans. Some things are more important than "peace," and far worse than "war.")

The only choices we have are where, when, and how we fight. We currently control those three factors absolutely - we can set our table anywhere we please, but we have to set it. If we refuse to make a choice, we'll merely be surrendering that choice to our enemies.

After 9/11, we absolutely made the correct choice on the when. It was now, or it was later - and it wasn't going to be cheaper later. After every Jihadist attack prior to 9/11, we kept choosing "later" - and the result was a MORE entrenched enemy with MORE recruits who had seen us run away time after time. Iraq may rally new jihadists to the cause, but no more so than did Somalia, the first WTC attack, Khobar Towers, Beirut, USS Cole, or even our unfinished business in Gulf War I. For some odd reason, we're turning to the same geniuses who kept choosing "later" as the Jihadists grew in strength until they could attack us here at home, and once again, those "realists" are saying "later." What are they waiting for? A dirty bomb in LA?

Indeed, if Iraq is in fact a cause celebre that attracts more fighters, it is only because of the perception that we are losing and on the brink of running again - helped in no small part by the defeatist left and their anti-Bush media enablers who have been declaring "Quagmire!" from the beginning. This report itself is already rallying them on with its hung-headed hand wringing and non-solutions to the cancer of Global Jihad.

The where was tougher - Afghanistan was the obvious choice, but with so many local governments eager and willing to keep supplying our enemies, we couldn't simply stay holed up in Central Asia. You can't win "Whack-A-Mole" with a single mallet. And so our choices were Iraq, Iran, Syria, Somalia, the Sudan, etc. - or the United States. It could be that Iraq wasn't the best option in 2002-3, although I still think it was. Today, we seem intent on choosing the United States, for if we pull back behind our borders with our tails between our legs, that is where we will fight it. Anyone who seriously doubts this, and thinks our enemy will adopt a "live-and-let-live" policy, simply hasn't been paying attention.

But it is the how that is the most crucial. From the start, we have fought hobbled. Afraid of what dictators, Europe (who has abrogated their military responsibility in the world to us while surrendering their cultures at home), or corrupt UN officials might say about us, we refused to shoot looters, refused to fire on mosques that are being used as firing towers, and released detained terrorists who must then be re-captured on the battlefield. We ignored Iran and Syria's active involvement against us. We were RE-active. Against a culture which above all respects strength, we chose to be weak and half-hearted. Worse, that's the AGGRESSIVE half of our government - the rest worked as hard as they could to feed the enemy propaganda, assure them we could not win if only they would be a little more patient...

The American People were right last month to repudiate our tepid how of warfighting (which would change very little even if we followed the Baker-Hamilton report to the letter). Do this for real, or don't do it at all, they said, and as usual, the wisdom of the electorate is worthy of our ear. But unfortunately, we cannot chose to simply not do it at all, which leaves only to DO IT RIGHT. We must unequivocally crush the enemy first, and only then rebuild his cities and governments.

There is no exit strategy but through total victory, no "peace" until every last Jihadist is dead or captured and Islamo-Fascism is as universally repudiated as Nazism. To accept less is to ensure an "Iraq" every ten years or so, each time leaving us weaker and our enemies stronger, until our culture and freedoms are lost to attrition after millions are slaughtered in the name of "pure" Islam both here and abroad. The liberal refrain has been how evil we were to support Afghani mujahadeen or Iraq in the 80s (ignoring the more severe threat at the time from the USSR), and how it led to today's problems. Those same liberals who now demand we adopt the Baker plan have apparently changed their minds, demanding we support Iran and Syria if they'll help up "stabilize" the region. What will they say in 10 years when we're battling a nuclear armed Iran? You guessed it - it'll be Bush's fault for not listening.

Unfortunately, if we adopt the Baker "plan," we choose less - along with the consequences that go with it. And we will have given our remaining choices to our enemy. Be certain they well care far less about UN protocol or NGO admonitions on human rights violations, and that they will not give anything less than their all. It must be admitted that this choice is indeed a path to peace, but not a peace worth having.

Media Alert II (Morning Edition)

2006-12-07T21:13:00.000-08:00

Tomorrow morning I'll be on the Sytman & Boze Show on AM 770 KTTH at 7:00 AM to discuss the Watada craziness. Give it a listen!

Scalia and Breyer, Head to Head

2006-12-07T17:38:00.000-08:00

This is just good stuff:

Scalia is charming and, as ever, riotously funny. For each time Breyer says his own constitutional approach is "complicated" or "hard," Scalia retorts that his is "easy as pie" and a "piece of cake." And if this debate mirrors a marketplace of ideas, Breyer will make the sale through the earnest personal connection of a Wal-Mart greeter, while Scalia opts for the aloof certainty of the Tiffany's salesman: "Sure, you can buy some other, cheaper constitutional theory, but really. Ew."

A fun look at some good - and illuminating - banter and philosophy behind the bench.

Media Alert

2006-12-07T14:09:00.000-08:00

I'll be making my radio debut in a couple hours at 4:00 PM today on the Bryan Suits Show on KVI 570 (AM, of course) to discuss my impressions of the Ehren Watada silliness. Should be fun!

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UPDATE: Here's the link for the live feed.

The Watada Report

2006-12-07T01:32:00.000-08:00

Well, just came back from the Ehren Watada event. Wow. There are simply no words of invective strong enough to adequately convey an accurate picture of this guy, or of the hippies, socialists, and (I’ll say it) anti-Americans who were there to laud this criminal. Somewhere, members of al Qaeda are laughing. Going in, I strongly suspected he joined planning to desert like this as a political stunt. Having heard him speak, I am now certain of it.

The absurdities of his legal claims have already been discussed on this blog. Indeed – there was really no attempt to refute them at the event (more on that below).

The event was carefully controlled and orchestrated from the beginning. There was no panelist who would be the least bit critical of his actions. There was no opportunity for direct questioning – questions had to be written on a small slip of notecard and passed to the moderator, where they were subsequently censored and/or modified to soften the ball. More on that in a bit. The bottom line is that this was an event supposedly about the courage to state an unpopular point of view, but done in a liberal echo chamber with no opportunity to challenge the speaker.

Said echo chamber was surreal. The aged hippies had come out of the woodwork. Next to me sat a woman with one of those “united socialist” newspapers, printed complete with red ink. She was writing a letter to Watada praising his courage and “real patriotism,” and pledging her support.

[The post continues in the comments section below...]

Ignorant Americans?

2006-12-06T08:45:00.000-08:00

It is astonishing that hippies like Gwyneth Paltrow can rail against ignorant Americans while at the same time, her political allies in the American academy (very few of which are "capitalistic"), exacerbate what ignorance problem there is with tripe like the University of Washington's new minor in "diversity studies."

If we want to emulate the English, instead of forswearing work and money, perhaps we can start by eradicating these stupid PC majors - I doubt they'd pass the laugh test at Cambridge.

Newt - Destroying the 1st Amendment, or Restoring it For the Sake of Survival?

2006-12-05T13:53:00.000-08:00

Last week, Newt Gingrich made headlines by suggesting we needed to rethink our current thinking about what the 1st Amendment does and does not allow in terms of free speech in order to protect ourselves. The expected wailing an gnashing of teeth followed about sacred protections, dissent being patriotic, etc. As usual, Ben Franklin's quote about essential liberties vs. "a little temporary safety" was misquoted and/or used out of context.

But the problem is that while Gingrich's general thrust is correct, the way he posited it was very wrong. Here's what he said:

"Either before we lose a city, or, if we are truly stupid, after we lose a city, we will adopt rules of engagement that use every technology we can find to break up [terrorists'] capacity to use the Internet, to break up their capacity to use free speech [protections] and to go after people who want to kill us -- to stop them from recruiting people before they get to reach out and convince young people to destroy their lives while destroying us."

Gingrich spoke in his piece in terms of "limiting free speech." That's not the argument, in my mind. Worse, putting it in those terms instantly raises the specter of censorship, 1984, etc., making it far less politically viable. Instead, the debate must be what defines "speech" within the meaning of the First Amendment - and what crosses the line into action. It may sound like semantics, but our very lives rest on the distinction.

When a Minneapolis Imam preaches that all good Muslims should rise up and destroy America by force, that is protected. When an American Communist urges college students to violent revolution, that is protected. When an Army officer urges fellow soldiers to ignore lawful orders from their elected civilian leaders, liberals argue it should be protected. What madness or self loathing requires us to suicidally accept such threats to our freedom and indeed, to our very existence?

Such advocacy is not merely speech - it is action. It is no more speech and no less action than Tony Soprano ordering his goon to kill someone, and deserves no more protection.

The kicker is that allowing these verbal threats against our very survival is far from the immutable American tradition. We have recognized throughout the majority of our history that advocating the violent overthrow of the US government - especially in times of war - is outside the bounds of speech, and can and should be proscribed. Where exactly the line is may be fuzzy, but common sense makes clear that an Imam declaring jihad is on the wrong side of that line. As late as 1951 in United States v. Dennis, 341 U.S. 494 (1951), the Supreme Court correctly recognized that the Communist Party was a real threat to this country, and that organizing a party and using its mechanisms to advocate subversion was not and should not be protected. The thought that we were not a free country prior to 1951 is simply absurd. But then, that was back before we chose to lose wars...

(Andrew McCarthy has a fantastic historical breakdown of free speech protections and their nexuses with our various conflicts - and brilliantly points out the current risk we face for our indulgence of terrorists. It's also a good review for next week's Free Expression final...)

I don't want a Sedition Act. I don't want people jailed for being critical of the President. The effort to conflate a return to Dennis with American Fascism is intellectually and historically bankrupt. What I do want is to simply return to our senses. Let's RE-recognize that the Constitution is and never was a suicide pact, and that it need not tolerate advocates for its violent destruction in the name of its protection.

The Court Tackles Racism Diversity

2006-12-05T09:55:00.000-08:00

"It is a sordid business, this divvying us up by race."

- Chief Justice John Roberts, LULAC v. Perry, (concurring)

Yes, it is. And the Court is once again faced with the question of just how sordid it is today as it decides whether a "racial tiebreaker" is Constitutional in determining which high school Seattle students should attend.

It seems to me to be difficult to justify as a "compelling state interest" the idea that a 60-40 racial makeup will provide a significantly different educational experience than 70-30, or even 80-20. And that's really all the school district has. (It's also worth wondering, although less legally germane, why Seattle Schools are spending all this time, money, and effort on minor racial redistribution when the schools themselves are failing so miserably and completely. Do they seriously think this racial window dressing will raise test scores or inprove math skills? Of course, when "diversity" is your unquestioned religious dogma, the real motivations behind the school district's proposed policies become more clear...)

But what's really at stake is the idea of racial preferences, and how hostile the Roberts Court will be towards them. Likely swing voter Justice Kennedy said, "We're not writing just on a very fact-specific issue." (So much for case and controversy limits, eh?) The outcome will determine if we're still willing to be held hostage by fear of being called "racists" as a society by people who ignore the harm racial quotas and preferences have caused, ignore the very real progress we've made as a country on issues of race, and if we're going to finally repudiate the liberal Cult of Victimhood that has been used throughout the past century to justify socialism.

Here's hoping we ignore the likes of Senator Kennedy, accept that segregated lunch counters aren't coming back, and finally recognize that the Prophets of Diversity for its own sake is antithetical to the idea of a color blind Constitution.

How Liberal?

2006-12-04T21:09:00.000-08:00

The Volokh Conspiracy is buzzing with debate about whether (little "l") libertarians should jump ship and support the Democratic Party. Prompted by this Cato dispatch, the Volokh bloggers consider whether a liberal-libertarian alliance could do more to advance classical liberal thinking ... and come to an obvious conclusion. To wit, civil liberties would be advanced by punishing the "Party of Lincoln" (yes, at least insofar as the only three presidents to have puportedly suspended habeas have all called themselves "Republicans"). But free markets? Isn't the first thing on the new Congress' agenda a significant hike in the federal minimum wage? We remain as conflicted as ever.

As a matter of practical politics, I'd say the discussion is more important than it might at first seem. While Cato research indicates 13% of voting-age Americans have a libertarian bent, (big "L") Libertarians--all 235,540 of them--commanded but 2% of the vote in the mid-terms.

"Conscience" vs. National Defense - 1st LT Watada's Absurd Excuses

2006-12-04T11:08:00.000-08:00

As you may know, Ehren Watada is the commissioned Army officer who has refused to deploy to Iraq as ordered, and now face court martial for missing movement and conduct unbecoming an officer. His defense against the charge of "Conduct Unbecoming an Officer" is based on going out on the anti-war speaking circuit and encouraging other soldiers to refuse to go.

Our esteemed University is putting on a "panel" discussion, starring Lt. Watada himself. From the risible title - "A Matter of Conscience" - you can guess just how diverse this panel will be. The event is this Wednesday at 3:30 - I encourage all to attend.

Fortunately for the country, and UNfortunately for Watada and his ACLU enablers, the law is not on his side. This isn't the first time an activist and/or coward has offered this type of excuse. Adam Ake, a 3L here and a Major in the Army National Guard, has put together a very powerful outline explaining the state of the law in this case for the Military Law Association. With his permission, I've reproduced it in the comments section below. Well worth a read.

To this I can only add these thoughts. If a military member (and a junior one at that) is allowed to make his own judgments on the veracity or even legality of policy made by elected civilians, then those elected civilians no longer have control over the military. That conclusion portends only two outcomes - either the military establishment begins acting on its own and we have a coup, or the military is emasculated and could no longer be counted upon to defend American interests. Make no mistake - Watada's backers are too short sighted to fear the first outcome, while working hard to ensure the second.

Comments on "Quiet Revolution"

2006-11-28T00:09:00.000-08:00

I was going to write tonight about the absurd Alliance for Justice film "Quiet Revolution," and judging from the jump in hits today, it looks like some people were curious as to our rebuttals. But since it took me 4 1/2 hours to get my wife and myself home tonight thanks to the weather, and I'm now enjoying a stiff drink to recover from yelling at non-South Dakota trained snow drivers, I think it best that I leave it for tomorrow.

For now, I'll merely sum it up this way:

HAHAHAHAHA!!!!!! HAHAHAHAHAHA!!!!

One of the most over the top, tabloid-esque, dishonest, and unintentionally funny things I've seen in a really long time. Watch it here and see for yourself. Details to follow.

Supreme Court Hears Important Antitrust Case Today

2006-11-27T00:18:00.000-08:00

SCOTUSblog lays out (in plain English) Bell Atlantic Corp. v. Twombly (U.S. No. 05-1126) here.

The plaintiff-respondents allege a conspiracy on the part of the Baby Bells and other competitive local exchange carriers (CLECs) (read the big guys) to prevent incumbent local exchange carriers (ILECs) (read, the little guys) from entering formerly monopolized markets. In support of this averment, plaintiffs offer ... well nothing ... at least not until they get a shot at discovery. The district court dismissed the claim on the pleadings.

The 2d. Cir. reversed, holding no evidence was necessary--indeed, that the burden on antitrust claimants is "relatively modest." Among other curious rulings, the 2d Cir. would shift antitrust pleading's "plus factors"--necessary where there are hazy allegations such as the conspiracy here alleged--to after discovery is completed. What pleading?

The plaintiff-respondents principally argue notice pleading. They say Fed. R. Civ. Pro. 8(e)(1) & 9(b) are broad enough to encompass bare assertions of conspiracy--even under the Sherman Act, where the S. Ct. has been tightening the screws on plaintiffs for decades. Treble damages and attorney fees are more than enough to incentivize fishing in every single nook of every business. The 2d Cir.'s standard would create a real moral hazard--an industry of antitrust investigation to the extent one does not already exist.

I think the S. Ct. will see the plaintiff-respondent's claim for the fishing invitation it would seem to be, and dismiss the case.

As those in antitrust can attest, Prof. Drake thinks this one's huge. Oral arguments should be here later today or tomorrow.