Posted 1:34 PM by Robert

Late Stage Paranoia At The New York Times

Buffalo Springfield sang with eerie, unknowing prescience about the future of the New York Times when they trilled: Paranoia strikes deep, Into your life it will creep, It starts when you're always afraid ... Many at the helm and keyboards of the New York Times have long teetered on the very edge of full blown paranoia, but yesterday's Times editorial "Mr. Cheney's Imperial Presidency", which says the vice president is literally attempting to make the United States into a dictatorship (among many other nefarious purposes) is a headlong plunge into the abyss:

George W. Bush has quipped several times during his political career that it would be so much easier to govern in a dictatorship. Apparently he never told his vice president that this was a joke.

Virtually from the time he chose himself to be Mr. Bush's running mate in 2000, Dick Cheney has spearheaded an extraordinary expansion of the powers of the presidency - from writing energy policy behind closed doors with oil executives to abrogating longstanding treaties and using the 9/11 attacks as a pretext to invade Iraq, scrap the Geneva Conventions and spy on American citizens.

It was a chance Mr. Cheney seems to have been dreaming about for decades. ... The president "needs to have his constitutional powers unimpaired, if you will, in terms of the conduct of national security policy," Mr. Cheney said ... Before 9/11, Mr. Cheney was trying to undermine the institutional and legal structure of multilateral foreign policy: he championed the abrogation of the Antiballistic Missile Treaty with Moscow in order to build an antimissile shield that doesn't work but makes military contractors rich. ... Mr. Cheney ... gathered his energy industry cronies at secret meetings in Washington to rewrite energy policy to their specifications. Mr. Cheney offered the usual excuses about the need to get candid advice on important matters, and the courts, sadly, bought it. ... Mr. Cheney gathered people who agreed with him, and allowed them to write national policy for an industry in which he had recently amassed a fortune.

The effort to expand presidential power accelerated after 9/11, taking advantage of a national consensus that the president should have additional powers to use judiciously against terrorists.

Mr. Cheney started agitating for an attack on Iraq immediately, pushing the intelligence community to come up with evidence about a link between Iraq and Al Qaeda that never existed. His team was central to writing the legal briefs justifying the abuse and torture of prisoners, the idea that the president can designate people to be "unlawful enemy combatants" and detain them indefinitely, and a secret program allowing the National Security Agency to eavesdrop on American citizens without warrants. And when Senator John McCain introduced a measure to reinstate the rule of law at American military prisons, Mr. Cheney not only led the effort to stop the amendment, but also tried to revise it to actually legalize torture at C.I.A. prisons.

Gone from the Times ranting is any hint of respect for Mr. Cheney or his office, or any concession that Mr. Cheney may have acted with good intentions or subjective good faith, even if he has acted (by the Times' lights) in error. But the Times does make the completely unsupported insinuation that the vice president acted out of intent to enrich his "cronies" - and makes very clear that federal court holdings contrary to the Times' thinking mean nothing except that the court was easily deluded. The Times generally absurdly presents Mr. Cheney as having powers that dwarf those of most presidents. The Richard Cheney described by the Times has much more power than was wielded by, say, Jimmy Carter.

On the whole, the tenor of the editorial might make one wonder why the Times doesn't just come right out and assert that Mr. Cheney is the Great Satan, roaming the world, seeking the ruin of souls. The image presented by the Times of Mr. Cheney's power is as distorted and false as the image it presents of Mr. Cheney's character and probable motivations. The vice presidency is an office that carries almost no active executive power. Mr. Cheney acts only at the behest of the president. But the Times cannot admit that relationship because the paper is wed to the preposterous, condescending image shared by many liberals of Mr. Bush as a dimwit princeling controlled by evil geniuses, including Mr. Cheney. The Times even goes so far as to accuse Mr. Cheney of appointing himself as the president's running mate - an assertion completely and disgracefully contemptuous of the president.

According to the Times, the vice president has committed a great sin by thinking outside of (but "taking advantage of") a "national consensus" that formed after 9/11 and whose precise parameters are authoritatively known to the paper. Whatever scope the Times might ascribe to that post-9/11 "consensus," this much is clear: The actual post 9/11 consensus includes by most people's calculation (even the Times) the conclusion that the very Watergate-era reforms that the Times lauds as sacred included some unwise restraint on executive power. It has been the Times - not Mr. Cheney - that has been outside the actual post-9/11 consensus. For example, in the middle of 2002 the Times furiously editorialized:

Congress passed the U.S.A. Patriot Act, rolling back civil liberties in key areas, and the Bush administration has held hundreds in secret detention. The court, meanwhile, said nothing. Yesterday the justices made themselves heard for the first time, blocking a federal judge's order to open to the public immigration hearings for terrorism suspects. It is a troubling move ...

So the post-9/11 "consensus" posited by the Times apparently did not include Congress, the administration or the Supreme Court. Who could have participated? Perhaps it was a "consensus" reached among those in the Times newsroom? Did they remember to send Mr. Cheney the memo laying out the "consensus?"

Although the Times savages him for his belief that the Presidency must be preserved from encroachment, Mr. Cheney is scarcely alone in thinking that many post-Watergate "reforms" have disastrously weakened the executive - and some such "reforms" have already been repudiated even by the left. For example, together with much of the liberal establishment, the Times fulsomely endorsed the Independent Prosecutor Law, as long as it hamstrung Republican presidents, as in this 1987 editorial:

[T]he Reagan Administration shamelessly pressed a legal attack on the Independent Counsel Act and lobbied Congress against its renewal ...

That supremely unwise law has now expired without any significant interest in Washington in again renewing it. Why? Simply because the near-paralysis of the Clinton administration brought on by that Act caused the scales to fall even from most Democratic eyes, resulting in a clear national consensus that the Independent Counsel Act was poor legislation. But the New York Times continued to defy that consensus: The Independent Counsel Act will expire ... and unfortunately most members of Congress would just as soon see the law fade into history. One might also note that the Supreme Court's post-Watergate era decisions have often reflected a serious concern over the erosion of the executive at the hands of Congress, as with the Court's spectacular overturning of the "legislative veto" as an unconstitutional usurpation of presidential power by Congress.

Any fact that might obstruct the demonization of Mr. Cheney is simply ignored by the Times. For example, the vice president is insinuated as having distorted intelligence analysis to bring about the Iraq war, despite the express repudiation of this suspicion by the 9/11 Commission report. And among many other supposedly evil acts, the Times assigns to the vice president (!) responsibility for the NSA warrantless but apparently legal surveillance program that the paper has recently been disparaging. But the editorial utterly ignores (to the point of making one wonder if the writer is even aware) that this "dictatorial" program has been strongly supported (in the form of a Chicago Tribune op-ed “President Had Legal Authority to OK Taps”) by former Clinton associate attorney general John Schmidt:

President Bush’s post- Sept. 11, 2001, authorization to the National Security Agency to carry out electronic surveillance into private phone calls and e-mails is consistent with court decisions and with the positions of the Justice Department under prior presidents.

The Times editorial also ignores the strong judicial precedent cited by Schmidt, including both the Supreme Court’s 1972 Keith decision (explicitly pointing out that the Court was not questioning the president’s authority to order warrantless wiretaps in response to threats from abroad) and direct holdings by four federal courts of appeal - and much more. Nor does the Times editorial give even a nod to other views and facts that contradict the ridiculous impression of Mr. Cheney that the paper is trying to create, including Carter and Clinton orders under the Foreign Intelligence Surveillance Act of 1978, including Executive Orders 12139 (Carter) or 12949 (Clinton), which are both squarely inconsistent with the Times' posture. And no mention is made of California Democratic Congresswoman Jane Harman's (not unalloyed) support for the NSA program:

A recently disclosed government surveillance program "is essential to U.S. security," but it may go "far beyond" the effort to target al-Qaida terrorists described in secret congressional briefings, Rep. Jane Harman, the top Democrat on the House Intelligence Committee, said Wednesday. In her most extensive comments on the matter since the National Security Agency program was revealed last week by The New York Times, Harman, D-El Segundo, said "its disclosure has damaged critical intelligence capabilities."

The Times is certainly entitled to its own take on matters of public interest, such as the vice president's conduct of his office. But screaming that he is corrupt, uberpotent, evil-willed, bent on acquisition of dictatorial powers and opposed to a fictitious "consensus" is mostly going to convince reasonable Times readers that the paper of record has more than a few screws loose.

MORE: Good comments from Hoystory.

STILL MORE: From Maguire and Miller.

Posted 12:36 PM by Robert

Cocoon With A View

Although one knows it is truly dark and thick, the dimensions and effectiveness of the liberal cocoon still have the power to astonish. Consider this passage from "The Trouble With Hillary" by Kurt Andersen in New York magazine:

Lacking her husband's uncanny knack for finessing left and right, however -- the famous triangulation strategy - [Hillary Clinton] plays the game awkwardly, like a very earnest Vulcan who has closely studied Earth politics . . . . Still, the Democratic nomination is hers to lose, just as the general election will be the Republicans’ to lose, which they might manage by failing to nominate McCain or Giuliani. If the race is John McCain versus Hillary Clinton—by far the most likely possibility—and the electorate craves competence and integrity and common sense after eight rotten years of Bush, both candidates will look like equally reasonable choices. But alas, like every modern Democratic nominee except her husband, Hillary Clinton comes across as wooden, priggish, cold, too much superego, and too little id. I bet she and McCain will engage in an unusually civilized campaign. And whoever the nominees are, I bet the more likable, lusty, obviously human candidate will win.

Mr. Andersen's critique of Senator Clinton's limitations has some merit, but his assertion that a 2008 presidential race of John McCain versus Hillary Clinton is "by far the most likely possibility" is nothing short of bizarre - for the simple reason that the chances of John McCain winning the Republican nomination are all but microscopic. Just for starters, one might begin with the basic observation that senators make terrible presidential candidates, and almost never win. (Kerry? Dole? Humphrey? Etc., etc.) In addition, Mr. Andersen and his deeply-cocooned ilk seem to forget that in Senator McCain's prior presidential run, he received very few Republican votes. His only primary "successes" depended heavily on crossover votes by non-Republicans. Since then, John McCain has done little to burnish his reputation with "his" party's base. His "anti-torture" harping is deeply offensive to most of the Republican Party, as have been his assaults on defense spending, his resistance to efforts to block "gay marriage", his opposition to the "nuclear option," and his nearly constant efforts to undermine the president in many ways. That may all play well with the likes of Mr. Andersen, but Mr. Bush, who will have significant influence on the Republican 2008 choice, is highly unlikely to favor Senator McCain - which again seriously reduces the senator's prospects to obtain the nomination. And his stunts such as those that led to the entirely justifiable headline "McCain to Star in Boob Raunch Fest" cast serious doubt on McCain's judgment - as Susan Estrich(!) correctly noted. McCain's alienation from the Republican base remains perfectly fresh despite some rather silly efforts to portrait the senator as mending fences on the right (it's probably no accident that not a single "movement conservative" suggesting that McCain is better than once thought is actually named in this linked article).

Nor has John McCain been playing well recently with his supposed core supporters nationally. If there is any place in the country where a McCain candidacy might resonate (outside of favorite-son-excepted Arizona, although even here it's worth noting that earlier this year the conservative Arizona Republican Assembly voted unanimously during its annual state convention to censure Senator McCain) with "moderate" Republicans, it would be New York. But McCain's support has shrunk to insignificance there in large part because the senator is too old, as noted by Robert Novak:

Sen. John McCain, a potential 2008 Republican presidential candidate, has gotten a tepid response to a New York City fund-raiser Monday for his "Straight Talk America" political action committee. ... Many New York contributors to McCain's 2000 presidential campaign were reluctant to attend this year's event. The fact McCain will be 72 years old for the 2008 presidential campaign was cited to explain lack of enthusiasm, as was the senator's support for the Iraq war.

In the highly unlikely event of a McCain Republican nomination, a substantial independent candidate would almost certainly run in the general election somewhere in the vast reaches to McCain's right. So, contrary to Mr. Andersen's assertion, even in that case the race would not be McCain v. Clinton, but McCain v. Clinton v. _________, with McCain and Clinton splitting the center-left and faux center-left vote. Are Republicans supposed to ignore that fairly obvious likelihood and nominate Senator McCain anyway?

Let's look at the list:

Has spent career in United States Senate, widely seen as a terrible launching pad for presidency. (check)

Alienated from Republican base. (check)

Too old in the eyes of most likely financial backers. (check)

Has alienated the president and others running the national Republican party. (check)

Faces possible rebellion by core Republican voters in home state. (check)

Nomination would probably lead to third-party conservative candidate, and split center-left constituency sought by Hillary Clinton. (check)

And yet, despite all of these fairly obvious points, to Kurt Andersen, a 2008 presidential race of John McCain versus Hillary Clinton is "by far the most likely possibility."

Needless to say, the likelihood of a Republican nomination of Mr. Giuliani - who should be spending his time working to be elected governor of New York if he has not tired of elective office - is yet another order of magnitude smaller than Senator McCain's chances.

Of course, the above comments are not intended to address every ludicrous idea in Mr. Andersen's screed - there are just too many of them. But his suggestion that the election may turn on "the electorate crav[ing] competence and integrity and common sense after eight rotten years of Bush" is worth a moment of consideration. Would those "eight rotten years" not include the four rotten years leading up to Mr. Bush's reelection, with increased Republican margins in both houses of Congress? Perhaps that aspect of recent political history is not so visible from Mr. Andersen's cocoon with a view.

Posted 2:20 AM by Robert

Suddenly, Very Picky

U.S. District Judge James Robertson, one of 11 members of the secret Foreign Intelligence Surveillance Court, has reportedly resigned from that court in protest of President Bush's secret authorization of a domestic spying program. Since the critics of the president's orders have argued that the disputed surveilance should have been authorized by a warrant of exactly the court from which Judge Robertson resigned, the resignation is a peculiar form of protest - to say the least.

Judge Robertson has not always been so picky regarding possible "taints" of his judicial office. This site contains quite a bit of information on Judge Robertson's rather extensive collection of highly questionable - and highly politicized - activities on the bench, including this pearl from the Washington Times (2/10/00):

The Judicial Council of the D.C. Circuit, in a terse two-paragraph ruling, ordered acting Appeals Court Chief Judge Stephen F. Williams to determine why a random computer assignment system at the court was bypassed in four campaign fund-raising prosecutions and a tax-evasion case against Clinton pal Webster L. Hubbell. Chief District Judge Norma Holloway Johnson abandoned the computer system to send the cases to judges appointed by Mr. Clinton. She has declined public comment on the decision, but told The Washington Times in a letter last month she was authorized to assign "protracted or complex criminal cases to consenting judges when circumstances warrant," although she did not elaborate. The new investigation was sought by Rep. Howard Coble, North Carolina Republican and chairman of a House subcommittee that oversees the courts, and Judicial Watch, a conservative public interest law firm…….Mr. Coble's concerns focused on cases involving Mr. Hubbell, former associate attorney general; Arkansas businessman Charles Yah Lin Trie; Democratic fund-raiser Howard Glicken; Thai lobbyist Pauline Kanchanalak; and Miami fund-raiser Mark B. Jimenez. The judges were Paul L. Friedman, James Robertson and Emmet G. Sullivan, all of whom were named to the bench by Mr. Clinton in 1994; and Henry H. Kennedy Jr., appointed by Mr. Clinton in 1997

And there's also this nugget from the Washington Post (6/28/00):

A federal appeals court yesterday reinstated the conviction of a Tyson Foods executive for providing an illegal gratuity to former agriculture secretary Mike Espy, ruling that Archibald R. Schaffer III was not entitled to a new trial…... A jury convicted him nearly two years ago, but a series of appeals delayed his sentencing……..Schaffer, director of government and media relations for the poultry giant, was convicted of providing Espy with $2,500 worth of air transportation so the agriculture secretary could attend a May 1993 Tyson family party in Arkansas. U.S. District Judge James Robertson overturned the verdict, saying prosecutors failed to tie favors to official acts on Espy's part. The U.S. Court of Appeals for the D.C. Circuit ruled last year that Robertson erred and sent the case back for sentencing…….The defense then sought a new trial, saying that Espy now was available to testify. At the time of Schaffer's trial, Espy was awaiting trial himself on gratuities charges. A jury acquitted Espy, who then offered to testify that Schaffer did nothing wrong.......Robertson ordered the new trial but was reversed once again yesterday.

There's so much more, even though the site is a bit out of date.

More recently, Judge Robertson ordered the Military Commission to stop hearings in the conspiracy case against Salim Hamdan, a former driver for Osama bin Laden. That order was reversed by the Court of Appeals for the D.C. Circuit (with now-Chief Justice Roberts joining the opinion), a decision that the Supreme Court has agreed to review. Here's more on the Hamdan case.

Posted 8:53 PM by Robert

The Former Commissioners That Didn't Bark: Don't They Care?

Just a few days ago - December 5, 2005, to be exact - the former 9/11 Commission blasted the U.S. government for failing to adopt many of its recommendations for preventing terrorist attacks. The commission was famously formed to study the Sept. 11, 2001 terror attacks. The commissioners "graded" the White House and Congress on the commission's suggestions for making the nation safer. Of 41 criteria, the commission gave the government five Fs, 12 Ds and only one A. "We're frustrated, all of us -- frustrated at the lack of urgency in addressing these various problems," former commission Chairman Thomas Kean, a Republican and former New Jersey governor, said.

That's all very nice. And the former members of the 9/11 commission (Thomas H. Kean, Chair; Lee H. Hamilton, Vice Chair; Richard Ben-Veniste; Fred F. Fielding; Jamie S. Gorelick; Slade Gorton; Bob Kerrey; John F. Lehman; Timothy J. Roemer; James R. Thompson) have not just been frustrated, they've been been chatty, chatty, chatty on the subject of national safety and security ever since they were appointed to that commission - and have repeatedly indicated their intention to continue to speak out on the subject of national security and terrorism.

So where the heck are the former members of the 9/11 commission with respect to the filibustering of the Patriot Act renewal and the ersatz "domestic spying" fluff? Thomas Kean once said, "We did have witness after witness tell us that the Patriot Act has been very, very helpful, and if the Patriot Act, or portions of it, had been in place before 9/11, that would have been very helpful." How about now? And is it just fine with, say, Jamie S. Gorelick - the author of the notorious "wall" memo that separated foreign intelligence information and criminal investigation data - that the Patriot Act is in extremis? Ms. Gorelick at one time also had lots to say about the president's "inherent authority" in foreign intelligence matters. Now she and Chairman Kean are as silent as the tomb. Has the hyperactive James Risen - or any other mainstream media type - bothered to ask Ms. Gorelick about any of these fusses, or to ask any other former member of the 9/11 commission? Why don't these former commissioners speak out now that it matters, where it was almost impossible to get them to shut up just a few weeks ago?

Well, Mr. Kean? Ms. Gorelick? Cat got your tongue? Any other commissioner care to speak up? Yooo-hooo! Over here!

Posted 9:32 AM by Robert

Life Imitates ScrappleFace

ScrappleFace, August 04, 2003:

Episcopal Church Appoints First Openly-Muslim Bishop, by Scott Ott

Bishops in the Episcopal Church today approved the election of the first openly-Muslim bishop in the church's history.The Islamic cleric, who rejects the deity of Jesus Christ, received an overwhelming majority of the vote.A spokesman for the Episcopal Church said the move demonstrates, "Our church is open to all people, regardless of their beliefs, or whether they accept the teachings of the Bible."The election of the Muslim bishop comes as the church stands ready to approve its first homosexual Bishop, V. Gene Robinson. Later today, the bishops plan to vote on the election of the church's first openly-atheist bishop.

Financial Times, December 17, 2005:

Last of the true believers, By John Lloyd

When the former foreign secretary Robin Cook died, he was given a service in St Giles Cathedral, in his native Edinburgh, one of the historic worshipping places of the Church of Scotland. The former Episcopalian Primate of Scotland and Bishop of Edinburgh, Richard Holloway, took the service. He smiled broadly as he described it - "Here was I, an agnostic Anglican, taking the service in a Presbyterian church, for a dead atheist politician. And I thought that was just marvellous." ... Holloway had long been seen as a man living and ministering at the very edge of where religion meets benign disbelief. He publishes a slim volume of reflections most years; the latest is an effort at reconciliation of the human with what he calls "the massive indifference of the universe". ... Holloway's vision is what Christianity in Britain tends to become: a repository of presumed goodness and wisdom which has no, or at best a very distant, God, but owes a lot to Him.... He is in a line of doubting prelates: infamous in the 1960s was another Anglican bishop, John Robinson, whose book, Honest to God, sought the same "Out There" space as Holloway. Since this was at a time when it was still thought important that bishops believe in God, it provoked a storm of controversy because of its insistence that God had (perhaps) become unnecessary.

Posted 3:28 PM by Robert

Unsurprisingly, The Inevitable Now Happens

Following the 2004 election, the ManWithout Qualities asked:

How long will it be before the Democrats decide that the real problem was in the primary schedule, convention date and rules, and other minor procedural matters - as they have after every disaster since 1968 - and again start spending way too much time and energy running down those dead ends?

Now we have a partial answer:

Democratic presidential candidates will face a revised calendar of primaries and caucuses in 2008, including new contests between the traditional opening states of Iowa and New Hampshire, based on new recommendations that will be considered by a Democratic National Committee panel tomorrow.... A staff draft of the final report ... will be forwarded to DNC Chairman Howard Dean... It appeared to be a compromise between proposals pushed by Southern and Western states for two to four contests between Iowa and New Hampshire and a proposal from protesting New Hampshire Democrats for additional contests immediately after the Granite State's primary. The draft contains four principal recommendations ... but the most significant calls for the addition of one or two caucuses during the eight-day gap between the Iowa and New Hampshire events and one or two primaries in the period after the New Hampshire primary and the date that formally opens the nominating process to other states. ... The draft also calls on the national committee to select states for these early contests based on criteria that would guarantee greater diversity at the front of the nominating process. Finally, the draft urges the national party to consider new incentives, including bonus delegates to the national convention, to discourage states from pushing their events up to early February.

So Howard Dean will soon receive the report and turn his fine judgment and balanced approach to this most delicate subject. This is an effort rooted in the Democratic Party's adamant determination to fight the previous campaign - and this time, get it right.

In a sense, the Democrats may be the new Bourbons: They seem to learn nothing and forget nothing ... and of their own volition pace the road to extinction.

Posted 7:24 AM by Robert

The Hypocrisy Tsunami

Reports from the Supreme Court hearing strongly suggest that the Court will unanimously uphold federal laws (the Solomon Amendment) that require universities accepting federal grant money to allow military recruiters to interview on their campuses in equal dignity with other recruiters. The Solomon Amendment had been challenged by some universities (especially their law schools) as imposing an "unconstitutional condition" constituting violation of free speech and other rights under the First Amendment. The law schools' theory is essentially that recruiters' on campus statements constitute speech of the schools - and that requiring the schools to admit the recruiters therefore amounts to forcing the schools to speak in favor of the recruiters policies (including discrimination against gays). The law schools actually go so far as to analogize themselves to the Boy Scouts (!), with the Solomon Amendment's requirement that the schools allow recruiters as a condition for receipt of federal grant money being analogized to the New Jersey law that unconditionally required the Scouts to admit gays. (The irony of this gaggle of liberal the law schools, which mostly deplored the Supreme Court's vindication of the Boy Scouts' First Amendment rights, now seeking to invoke that decision though tenuous and far-fetched analogies, is obvious.)

The schools' argument is preposterous and bizarre - all the more so because a decision in the schools' favor would ultimately be a disaster for the schools. That the New Jersey law overturned by the Supreme Court imposed a mandate, not a condition, is only the beginning of the weirdness - but it's enough to indicate that the Boy Scout precedent is not very close. Statements made by recruiters have never been imputed by sensible people to the school on whose grounds the statements are made. Do the law schools maintain that their students are too stupid to figure that out? Most Boy Scouts I have known could figure that out right away.

The real issue here is not "forced speech." The law schools want to express their views by the action of barring recruiters and thereby deliberately infuse their action with expressive content. But merely designating an action as having expressive content doesn't alone make the action pure speech. All human action has some expressive content, but that doesn't mean all human action receives meaningful or equal First Amendment protection. The expressive content of the schools' action in this case may be enough to prevent the government from mandating that the schools not discriminate against military recruiters when hiring faculty or admitting students (although the schools would stand on weaker grounds with respect to a former recruiter), but the Boy Scout analogy obviously goes no further than that.

The schools' position is at least as absurd and disingenuous in practice as it is in legal theory. Different recruiting employers have many mutually inconsistent policies, and different recruiters make many mutually inconsistent statements to interviewees. Do the complaining law schools endorse all of those mutually inconsistent policies and statements? The schools certainly don't expressly disavow many such statements, policies and practices. Some law firm recruiters lean heavily and actively Democratic (with all the political views and policies that entails) and some lean Republican. Some law firms electronically monitor and record their associates' telephone calls and some consider such monitoring to be outrageous. Some law firms routinely misrepresent such things as advancement and partnership prospects to their associates, and some do not. A member of the Goldman Sachs executive committee once told me that he regarded all major New York law firms as essentially Ponzi schemes based on systematic lying by the firms to their associates. Does Harvard Law School post signs at the recruiting desk along the lines of: "Warning, Harvard Law School has determined that most law firm summer internship programs - as well as statements made by partners and other firm representatives to summer interns - are deliberately designed to give a much rosier view of associate life and prospects than is in fact the case." I've never heard of one, but there really does seem to be evidence that law students are misled in this respect.

The schools' position would lead to a complete disruption of federal funding of universities. If the law schools won, fundamentalist universities would be able to obtain federal scientific research grants without engaging in scientific research simply by arguing that the university is an "expressive association" (as the law schools do here) and the requirement that the federal money be spent on traditional science and not creation science is an "unconstitutional condition?" How long would the feds stay in the scientific grant business if that holding came down? Moreover, the law schools' assertion that a recruiter's policy and statements are somehow "endorsed" or "adopted" by the school would naturally lead to the conclusion that the schools should be legally liable for frauds and other infractions contained in recruiters' comments and policies. Is that what the schools desire? Maybe they should have run this one by their lawyers. Fortunately, the schools seem to have a hostile Supreme Court to save them from themselves.

Absurd as the law schools' argument is, it was bought by two judges sitting on a panel of the Third Circuit, which enjoined enforcement of the Solomon Amendment. The majority opinion is virtually a tour of First Amendment intellectual dishonesty. But there may be something else at work here. It goes without saying that the left despises the Supreme Court's Boy Scout decision in the same visceral and contemptuous manner in which it despises Bush v. Gore. A rogue panel of the Ninth Circuit seized on a deliberate and willful misreading of Bush v. Gore as grounds for enjoining the California recall of then Governor Gray Davis, a decision later overturned by the en banc Ninth Circuit. The decision of the three-judge Ninth Circuit panel leaves one with an the impression of an author (and a court) eager to "stick" the Supreme Court and conservatives with what the panel completely understands to be a misreading of the odious Bush v. Gore. Similarly, the Third Circuit majority opinion leaves one with the impression of an author (and a court) eager to "stick" the Court and conservatives with the Court's decision upholding the Boy Scouts' rights. The rapid and unanimous en banc rejection by the Ninth Circuit of its three-judge panel decision, and the likely unanimous Supreme Court rejection of the Third Circuit decision enjoining the Solomon Amendment, provide some insight into how unpersuasive and ridiculous lower courts make themselves appear when thye descend to such contemptuous "stick-it-to-them" misreadings of Supreme Court precedent.

My guess is that the Supreme Court opinion overturning the Third Circuit decision will not be at all kind to that decision or its authors. The Supreme Court has its own genteel ways of expressing its contempt for such lower court frolics.

And when that reversal comes down, just how many universities will choose to "express" themselves on what they have told the Court they consider a most important issue by actually refusing the federal money? My guess is that we will see exactly none take that route. Already, as noted by an item linked abouve, Harvard - by far the wealthiest school in the nation and perfectly able to give up federal funding - has grudgingly admitted military recruiters. The schools with straight faces tell the Supreme Court that the issue is centrally important to them as a matter of high principle - but only so long as it doesn't cost them anything. The Hypocrisy Tsunami.

Posted 5:30 PM by Robert

Earth To Howard Fineman: Another Collect Call For You

Senator Clinton's core constituencies are certainly getting restless, as reported by the New York Daily News:

Anti-war activists furious with Sen. Hillary Clinton are vowing to bird-dog her everywhere she goes, starting with a swanky Manhattan fund-raiser tonight. Clinton's letter last week clarifying her position on Iraq--which included rejecting a timetable for withdrawal--fanned the anger of some war opponents, who decided to launch a campaign against New York's junior senator. "We're calling it Bird-Dog Hillary," said Medea Benjamin of the peace group Codepink.

Unfortuneately for Senator Clinton, this particular bird dog won't hunt in national election.

Posted 10:22 AM by Robert

Earth To Howard Fineman: Collect Call For You

Howard Fineman, writes in Newsweek about the infatuation of the left with anti-war activist Cindy Sheehan as an example of how the Democratic Beltway has parted ways with the Democratic Blogosphere:

Beltway Democrats avoided her like the plague; the Blogosphere embraced her as a heroine of the grass roots. It wasn’t so much the content of what she said; she was, after all, claiming mostly to be asking questions. It was the WAY she came to prominence—quickly, virally, seemingly from out of nowhere—and her stubbornly confrontational tone.

Cindy Sheehan "was, after all, claiming mostly to be asking questions?" Does Howard Fineman actually live on Earth? How could he? As fulsomely reported by the media, Ms. Sheehan gained national attention in early August 2005 when she camped out down the road from President Bush's Crawford Ranch, demanding a second meeting with the President and an "explanation" of the "unjust" Iraq war. She came to Texas claiming to do anything but "ask questions." On August 20, 2005 Ms. Sheehan published an article, "Hypocrites and Liars," describing what in her mind "Camp Casey is all about:"

I just read an article posted today on LewRockwell.com by artist Robert Shetterly who painted my portrait. The article reminded me of something I said at the Veteran's for Peace Convention the night before I set out to Bush's ranch in my probable futile quest for the truth. This is what I said:

"I got an e-mail the other day and it said, 'Cindy if you didn't use so much profanity '. There's people on the fence that get offended.'

And you know what I said? 'You know what? You know what, god damn it? How in the world is anybody still sitting on that fence?'

"If you fall on the side that is pro-George and pro-war, you get your ass over to Iraq, and take the place of somebody who wants to come home. And if you fall on the side that is against this war and against George Bush, stand up and speak out."

This is what the Camp Casey miracle is all about.

Cindy Sheehan had obviously stopped "asking questions" and started "giving orders" many months before she rose to prominence at Crawford. For example (and there are hundreds of such examples), on July 4, 2005 she told a paper in Fort Lewis, Washington, that her meeting with President Bush was "one of the most disgusting experiences I ever had and it took me almost a year to even talk about it" and described President Bush as "detached from humanity." On October 4, 2004 she stated that her son's death had compelled her to speak out against the "unjust" war in Iraq, to "bring the troops home" and "hold politicians accountable." Her trips ever further into the political ozone layer have been well documented.

The liberal and left-Blogosphere infatuation with Ms. Sheehan is (and from the very beginning of her rise to prominence, has always been), based exactly on "the content of what she said." Of course, the content of what she said has proved to be highly embarrassing - especially to anyone actually trying to win an election in this country. She's almost always nutty. Sometimes antisemitic. Increasingly extreme. It is easy to see why anyone would want some distance from that "content of what she said." But the fact is that the left embraced the "content of what she said," contrary to what Mr. Fineman says. That's a fact obvious to anyone actually of this Earth.

Mr. Fineman's entire analysis of the growing rift between the "Beltway" and "Blogosphere" factions of the Democratic Party is as unsound and shallow as his understanding of the Cindy Sheehan phenomenon he deploys as an example. Mr. Fineman presents the theories of the apparently gormless Simon Rosenberg (with minimal distancing ticks such as "if Mr. Rosenberg is right" and the like) that the rift is one of "tone" and differing "narratives." But what Mr. Rosenberg (and Mr. Fineman) says is simply wrong. For example, Hillary Clinton's eccentric support of the Iraq invasion is not a matter of "tone," "narrative" or "vocabulary." She voted more than once for a war that her core constituencies detest and consider a central issue. Senator Clinton's strategy has relied heavily on her core constituencies understanding that her faux-moderate positions were just political dodges on tangential and non-essential issues designed to put her in the White House. But the Iraq War has become too big an issue for those constituencies to see her position as an acceptable faux-moderate political expediency. Put another way: By bearing down on the Iraq War as a (or the) central issue, Democrats are causing Senator Clinton's former strategy to come unglued. After all, if (as the Democratic establishment has been intoning) Iraq is the important issue, a politician who treats it as a minor point to be finessed is not smart and realistic, she's a traitor. So Hillary Clinton's left-wing core constituencies are acting up. And she's scared because if she openly accommodates them very much, she probably cannot win the general election. That's not political "narrative." That's standard political "content."

Senator Clinton is hardly the first would-be candidate to face the problem of having to appease restless activists in her own party at the cost of damaging her national electability. For example, in 1992 George H.W. Bush, who had neglected the conservative activists in his own party, found himself obligated to give them great play at the Republican Convention. The result was a set of high profile appearances by people without general political appeal - including the notorious Pat Buchanan speech - that seriously damaged Mr. Bush's efforts in the general election. That Senator Clinton is now facing the same problem as a result of her faux "moderate" positioning only demonstrates that irony is cheap and plentiful in politics.

Here's how Mr. Fineman gussies up what is, in fact, a very common (but difficult) problem:

The consensus, among the insiders and in the early national polls, is that the 2008 nomination is hers to lose. .... I am waiting to see which, if any, of the crop of likely Democratic challengers tries to make himself the avatar of the “emerging activist class.” Dean did it without even knowing he was doing it. I don’t think Cindy Sheehan is running. Who will it be? Unless somehow it turns out to be Hillary—who voted for the prewar resolution on Iraq and in other ways has tried to burnish her “moderate” credentials.

But if Rosenberg is right, the key is not ideological purity but combativeness, and an appreciation of the power and tone of the Internet. Hillary must adapt—she has to “join the Resistance”—and her history has shown that she is nothing if not adaptable.

So for Mr. Fineman ( or is it Mr. Rosenberg, who is "worth listening to?"), the winning "adaptation" for Senator Clinton is doing by calculation something like what Howard Dean did by instinct? Howard Dean is now supposed to be the "success" model - not Bill Clinton? Whatever you say, Mr. Rosenberg or Fineman or whoever is talking.

It is a curious and recurring fact that the inclusion of anything related to the internet (including the Blogoshpere) often completely disorients mainstream media types such as Mr. Fineman, causing them to perceive very standard problems as unprecedented. In this case, the banal problem of how one tacks towards the party activists to win the nomination without appearing too "extreme" for the general election is presented as the fresh and new "Beltway v Blogosphere." But "Beltway v Blogosphere" is not the essential variable here. Nor is "narrative."

And Howard Dean, who has reportedly been as big a disaster for Democratic National Committee fund raising as he was a presidential candidate, is no role model - not even a little bit. That's another point that should be obvious to anyone not frequenting the Plutonic surface.

Posted 7:05 PM by Robert

"RATS" Then And "X's" Now

CNN claims that a large "X" the network flashed (for what it says was 1/7th of a second) over Vice President Dick Cheney's face during his recent speech was a mere "technical glitch" - not a subliminal message. CNN claims that the "X" image is a place-holding to cue up graphics that is not supposed to be visible to viewers but was "inadvertently projected" onto the screen by a malfunction in a "switcher" device. "CNN Live Today" anchor Daryn Kagan and the network's technical manager, Steve Alperin, argued: "So, for all the conspiracy theories out there ... that's not what this is about. It's a computer bug that people deal with everyday. It's just that ours was in front of millions of people."

Maybe so. But the 2000 presidential campaign buzzed over a Republican television ad that had the word ‘rats' spelled out for a mere 1/30th second. The ad criticized Al Gore's health plans. The ad maker explained that an "editing error" allowed the last half of the word "bureaucrats" to stay on screen as ‘rats'. At that time CNN treated the Republican "technical glitch" explanation with a good deal of skepticism, as exhibited in this CNN transcript of an interview by very-insistent CNN anchor Judy Woodruff of Alex Castellanos, the Republican consultant who created the 2000 ad:

WOODRUFF: Well, we are joined now by the man who produced that controversial RNC ad, he is GOP Media Consultant Alex Castellanos.

All right, Alex Castellanos, how did the word "RATS" end up in this commercial?

CASTELLANOS: Well, it's obviously part of our clever rodent strategy to get the anti-rodent vote.

It's an accident, it's unintended, and this is really just a cheesy effort by the Gore people to divert from the real issue here, which is...

WOODRUFF: But wait a minute... CASTELLANOS: ... which I emphasize one phrase in that ad, "bureaucrats decide," because under the Gore plan, bureaucrats decide whether you get your medicines or not.

That's real political manipulation, when you promise seniors a prescription drug plan, but then you don't tell them how it's going to work.

WOODRUFF: But when you put an ad together, you look at every frame of that ad. You had to know -- did you know that that word was in there?

CASTELLANOS: I didn't know it. I didn't know it until it was pointed out to me, and since I didn't intend to do that it didn't mean anything to me.

When you put an ad together you put the music together.

WOODRUFF: But why would you put part of a word, and the "R-A-T- S" part of it?

CASTELLANOS: It's a four-step, little thing just to draw emphasis to one phrase -- bureaucrats decide. Under Gore's plan, bureaucrats decide whether you get your medicines or not.

WOODRUFF: But "bureau" isn't there. It's just "RATS."

CASTELLANOS: It happens to be right in the middle. And, it was pointed out to me, you know, that's the way it turned out.

I think that it's -- the real important thing here is that they don't want to talk about the issue, they want to attack the messenger instead of the message.

The message is -- the real bad word he's scared about here is bureaucrats not "RATS."

WOODRUFF: Let me quote two -- or cite, what two Republican media -- two consultants said today; Greg Stevens, he's a veteran Republican advertising consultant, Scott Reed, Bob Dole's '96 campaign manager, both of them said they don't think this was done by accident.

CASTELLANOS: Well, you know, I'm sure that they're probably closer to infallibility than yours truly. But look, all we're -- there's no reason to do anything like this, for a Republican or a Democrat to try to get the anti-rat vote here, this is not really a clever political strategy.

The important thing people care about is who's going to decide whether you get your medicines, bureaucrats, or you and doctor.

WOODRUFF: I talked today with Kathleen Hall Jamieson, Dr. Jamieson, who's head of -- dean, as you know, dean of the Annenberg School of Communications, University of Pennsylvania; respected scholar on political communication. I want to be careful about this. She wrote a book in 1992 about negative campaigning in which she singled out an ad you did in 1990 for Jesse Helms running for the Senate in the state of North Carolina.

She pointed out what she called a priming technique, and I'm going to show just a portion of that Helms ad here, in which we show a white job applicant saying that he was being notified in a letter that he was shut out of a job because of a minority applicant. Let's just show just a small portion of that ad, Alex.

CNN also gave a good deal of sympathetic play to Democratic Party whines about the 2000 Republican ad, as in this CNN article from 2000:

Two Democratic senators have asked the Federal Communications Commission for an "immediate and impartial" review of the Republican National Committee's controversial "RATS" ad, according to sources in Vice President Al Gore's presidential campaign.

In a letter provided to CNN, Sens. John Breaux, D-Louisiana, and Ron Wyden, D-Oregon, wrote to FCC Chairman William Kennard that they were "deeply troubled" by the ad and believed that a review would be in "the best interests of both political parties, and all Americans."

A political stir erupted Tuesday when it was discovered that if the ad was slowed down, the word "RATS" appeared clearly while an announcer criticized Gore's prescription drug plan as one in which "Bureaucrats Decide."

Texas Gov. George W. Bush, the Republican presidential nominee, told reporters on Tuesday that he believed the appearance of "RATS" in the RNC ad was accidental.

But Gore, the Democratic nominee, said he was "disappointed" by the ad. .... Gore's campaign contacted news organizations about the ad, apparently trying to exploit the gaffe for political gain. A spokesman for the Texas governor on Tuesday brushed aside suggestions of subliminal advertising as "bizarre and weird," while the RNC had no immediate comment.

CNN slowed down a copy of the ad, and the word "RATS" clearly appeared on the screen in large, white letters superimposed over the words "The Gore Prescription Plan." In a fraction of a second, the word disappeared, and the words "BUREAUCRATS DECIDE" showed up in smaller letters. To viewers aware of the presence of the word, it is noticeable when the ad is played at normal speed.

Campaigning in Middletown, Ohio, on Tuesday, Gore told reporters he considered the ad a "disappointing development" in the presidential race. .... Gore told reporters Tuesday, "I've never seen anything like it. I think it speaks for itself." When asked whom he felt was responsible for the "RATS" message, he replied, "That's obvious," but did not elaborate on whether he was referring to the Bush campaign or the RNC.

Earlier in the day, Democratic vice presidential candidate Joe Lieberman characterized the ad as "very disappointing and strange."

Posted 9:58 PM by Robert

A Little Something To Remember Gerhard By?

Speaking up for what is said to be the first time, five senior officials from Germany's Federal Intelligence Service, or BND, just said in interviews with the Los Angeles Times that they warned U.S. intelligence authorities that the source, an Iraqi defector code-named Curveball, never claimed to produce germ weapons and never saw anyone else do so ... and lots of other unflattering things.

So why now? Why would the German government authorize its intelligence officers to speak up now - in a manner that can scarcely be expected to help relations between Berlin and Washington?

Could it have something to do with the fact that the person these "five senior officers" currently work for, departing Social Democratic Chancellor Gerhard Schröder, despises George Bush and is just about to leave office and the German government entirely? Could it have something to do with the fact that incoming Chancellor Angela Merkel, the leader of the conservative Christian Democratic Party, is known to be quite a bit more sympathetic to Mr. Bush than is Herr Schröder?

Could anyone have imagined that even Herr Schröder was so small and personally vain as to exploit his country's intelligence service in such a petty and improper fashion?

Posted 7:32 PM by Robert

Inconsistent Refrains

The long established Democratic refrain that there are not enough Allied "boots on the ground" in Iraq continues unabated, as reflected in this TIME magazine article, for example:

There are about 160,000 U.S. troops now in Iraq, a number U.S. commanders in the region plan to maintain at least through the Iraqi national assembly elections on Dec. 15. But the battalion commanders, according to sources close to last week's meeting, said that because there are not enough troops, they have to "leapfrog" around Iraq to keep insurgents from returning to towns that have been cleared out. The officers also stressed that the lack of manpower--rather than of protective armor or signal jammers--posed one of the biggest obstacles in dealing with roadside bombs, which have caused the majority of U.S. casualties in Iraq.

Yet, more recently, there has been a new refrain, as represented for example by the confused and ambiguous statements of Rep. John Murtha, a Pennsylvania Democrat, who last week called for an American troop withdrawal from Iraq either "within the next six months" or perhaps immediately. Whatever Mr. Murtha's intentions might have been, Senator Biden says he disagrees with "respected voices on military matters" like Rep. John Murtha in saying that the Senator "does not support bringing the troops home now. Rather, he said, 50,000 U.S. troops should leave Iraq by the end of 2006 and "a significant number" of the remaining 100,000 should leave in 2007."

This all raises the puzzling issue for such Democrats: If it is the absence of sufficient "boots on the ground" that creates the worst of the security problems (and results in most of the fatalities) for American troops in Iraq (as the TIME refrain insists), then doesn't an extended 2006-2007-and-beyond withdrawal of the type Senator Biden contemplates all but guarantee at least two years of greatly increasing this exact security risk and therefore the resulting American fatalities? What does Senator Biden think will happen during the more than two-year withdrawal period he is proposing, a period during which American troop levels will be much lower than they are now? He seems to think that at least as things stand now, what he is proposing would sharply increase casualties, but that somehow that increase can also be avoided:

"I still believe we can preserve our fundamental security interests in Iraq as we begin to redeploy our forces," Sen. Joseph Biden .... "Right now, our troops are the only guarantor against chaos," he said, but the military presence "is also, increasingly, part of the problem."

Do "our fundamental security interests" (as Senator Biden uses this term) include minimizing the loss of the lives of our servicemen? And if the Senator (or any Democrat) knows of some way of doing that better than is now the case while reducing the number of Americans in Iraq, why won't he share his secret?

Of course, if one thinks that the overall political and security situation in Iraq is improving and will continue to improve, then a phased withdrawal of the type contemplated by the Senator makes perfect sense, and is fully consistent with reducing American casualties. Indeed, that is what the Bush administration is hoping for. But Democrats advocating a phased withdrawal seem to be in the position of arguing that (1) the overall situation in Iraq is improving and that a phased withdrawal therefore will not increase American casualities during the years of withdrawal or (2) a multi-year period of increased casualities is acceptable or (3) the whole "not enough boots on the ground" refrain is simply wrong.

None of these alternatives seem to be politically viable. Perhaps that is why Senator Clinton, who also construes Rep. Murtha as calling for an "immediate withdrawal," has distanced herself from whatever it is he proposed as well as from timelines such as that proposed by Senator Biden:

Clinton, who is running for re-election to the Senate and is seen as a likely presidential candidate in 2008, suggested that the United States wait for Iraq's Dec. 15 elections for an indication about how soon the Iraqis can take over. "Until they vote for a government, I don't know that we will have adequate information about how prepared they are," she said.

Posted 9:02 PM by Robert

Trashing Your Own

It's time for the author of a book reviewed by the very same paper in which the author writes a twice-weekly column to sit up and pay attention when the review includes passages like this:

But what makes Dowd an exceptionally good columnist on the Op-Ed page - her ability to compress and juxtapose, her incisiveness, her ear for hypocrisy and eye for the absurd - does not enable her to produce a book-length exploration of a topic as complex as the relations between the sexes. Consumed over a cup of coffee, 800 words provide Dowd the ideal length to call her readers' attention to the ephemera at hand that may reveal larger trends and developments. But smart remarks are reductive and anti-ruminative; not only do they not encourage deeper analysis, they stymie it.

Youch!

The New York Times review also describes the present state of the "research" on which the book's title is derived:

The title, "Are Men Necessary?," refers nominally to scientific speculation that the Y chromosome, which has been shedding genes over evolutionary time, may disappear entirely within the next ten million years, a hypothesis countered by newer studies showing that the Y of the human species has been stable for the past six million years.

I haven't read the book, but the phrasing of this passage suggests that the book does not mention the fate of the quickly faded research. If that's correct, it would just be one more example of Ms. Dowd's common approach to her source material: "It's better than true, it makes for a good shallow quip without enough substance to be wit."

Posted 8:49 AM by Robert

Bird Flu Droppings

Public health officials and politicians world wide are fostering and exploiting fear of Asian bird flu virus A(H5N1) as a justification for enhancing influenza defenses generally, as noted in this article:

Some 400 animal and health experts meeting at the World Health Organization in Geneva want to build up regional stockpiles of antiviral drugs to counter a possible pandemic virus that could travel around the world in 3-4 months. .... Margaret Chan, the top WHO pandemic official, said the global health agency was in talks with drug makers and looking into the logistics of how to deliver the treatments. "We have taken up the challenge," she said. The global health agency already has a stockpile of 3 million antivirals that can be quickly deployed.

Indeed, some health authorities seem to be willfully confusing risks from influenza generally with risks from A(H5N1) in their public statements:

A three-day council of war on avian influenza opened here to warnings that a flu pandemic was inevitable, could kill millions and inflict up to 800 billion dollars in economic damage if the world failed to defend itself.

An influenza pandemic, potentially unleashed by a mutation of the H5N1 bird flu virus, "is only a matter of time," World Health Organisation (WHO) Director General Lee Jong-Wook said Monday.

"We don't know when this will happen, but we know it will happen," Lee said. "(...) If we are unprepared, the next pandemic will cause incalculable human misery... no society will be exempt and no economy will be unscathed."

Samuel Jutzi, director of the animal production and health division at the Food and Agricultural Organisation (FAO), said "the window of opportunity" remained open for tackling the threat at its source: on the farm.

"The virus has not yet reassorted or mutated," said Jutzi. "Action is required now. There is no time to lose here."

Of course, there is no "inevitable" A(H5N1) pandemic coming. What is thought to be "inevitable" is that the world will experience an influenza pandemic from some influenza virus. In fact, the risks of such a pandemic from A(H5N1) seem to be rather low compared to other viruses:

"The idea of a pandemic among humans is something from science fiction," Spanish Agricultural Minister Elena Espinosa said on the private radio station Cadena Ser, as Europe braced for the further spread of the H5N1 strain of the bird flu, which has killed 60 people in Asia during the past three years.

One particularly powerful argument being employed in the ongoing public relations and political campaigns exploiting fear of A(H5N1) is the supposed similarity of that virus to the 1918 Spanish Flu virus that is said to have killed 50 million people worldwide. But this comparision seems very shakey. Consider this story about Dr. Jeffery Taubenberger, a molecular pathologist at the Armed Forces Institute of Technology who led the research team that reconstructed the long-extinct 1918 virus:

[If the 1918 virus] is from a bird, it is not a bird anyone has studied before. It is not like the A(H5N1) strain of bird flus in Asia, which has sickened at least 116 people, and killed 60. It is not like the influenza viruses that infect fowl in North America. Yet many researchers believe that the 1918 virus, which caused the worst infectious disease epidemic in human history, is a bird flu virus. And if so, it is the only one that has ever been known to cause a human pandemic. That, Dr. Taubenberger said, gives rise to a question. Are scientists looking for the next pandemic flu virus in all the wrong places?

So without the "precedent" of the Spanish Flu, there would apparently be no case of an avian flu mutating into a virus capable of a human pandemic. Researchers cannot even determine what kind of bird the Spanish Flu supposedly infected - if it was a bird flu virus at all.

How wise is it to frighten billions of people and divert billions of dollars of public health money into a project with such a shoddy scientific foundation? The risks of a disatrous collapse in the credibility of world health authorities, at least with respect to influenza, seems to be high. The risks of diverting scarce public health resources from other projects which are known to help millions of people seem high. How much "inevitable" malaria could be avoided with the billions of dollars now proposed for flu? But the chances that an intense world wide effort is needed seems to be low, although monitoring and other low-intensity efforts seem to be warranted.

Posted 2:27 PM by Robert

Closed Senate Sessions

Senate Democrats have forced the Senate into closed door (sometimes called "secret") session, as detailed here. This Democratic stunt is being taken pursuant to Standing Rules of The Senate RULE XXI - SESSION WITH CLOSED DOORS. For those who may be interested, that rule reads as follows:

1. On a motion made and seconded to close the doors of the Senate, on the discussion of any business which may, in the opinion of a Senator, require secrecy, the Presiding Officer shall direct the galleries to be cleared; and during the discussion of such motion the doors shall remain closed.

2. When the Senate meets in closed session, any applicable provisions of rules XXIX and XXXI, including the confidentiality of information shall apply to any information and to the conduct of any debate transacted.

Posted 8:19 AM by Robert

Rove Apparently Clear III

As noted in prior posts (here and here), special prosecutor Patrick Fitzgerald has not been acting at all like a federal prosecutor intending or likely to indict Karl Rove. Yet much of the mainstream media has found ways to misconstrue virtually every scrap of information into a sign that Mr. Rove likely to be indicted. Now the mainstream media has decided that Mr. Rove won't be indicted "today," but will "remain under investigation." The same people tell us that Scooter Libby will be indicted today.

Perhaps. Mr. Fitzgerald's visible actions with respect to Mr. Libby have been more ambiguous than those respecting Mr. Rove. For example, there are no reports that Mr. Libby testified for hours before the grand jury late in the case without benefit of pre-testimonial target letter or the equivalent, as did Mr. Rove. But neither have Mr. Fitzgerald's apparent Libby-centric actions been intensely suggestive of in intent to indict that man, either. The reporters writing these articles claim special knowledge, so perhaps Mr. Libby's lawyer has been chattering to them, although it's hard to see why he would do that.

Not much time will tell. We are reportedly to know within the next few minutes.

Posted 9:38 AM by Robert

Driving Them Off With Kindness

It is curious that those who say they seriously wish to restrict the inflow of illegal (or "undocumented") workers into the United Staes spend so little time on the most economically obvious approach: If illegal workers' cost advantage over native workers were removed, then there would be no incentive to hire illegal workers.

It is equally curious that the breach is being filled by those purporting to "protect" the illegals. A prior post noted that California courts have held that illegal workers are entitled to sue their employers for back pay to the extentn their actual pay is less than minimun wage. Most illegals are paid far more than minimun wage, so the effect of that decision will be trivial. The going rate for the Home Depot parking lot guys in Los Angeles is $10 per hour, for example.

But those who say they oppose the presence and employment of illegal immigants continue to oppose measures that would reduce their cost advantages. And those who would protect illegal workers continue in their ceaseless quest to drive them out of the United States (or at least California) by showering them with unalienable and expensive rights, including workers compensation and medical care:

Illegal immigrants hurt on the job are entitled to workers' compensation benefits, a state appeals court panel has ruled, upholding California's policy of granting workplace rights to undocumented employees. Torrance coffee roaster Farmer Bros. Co. had sought to deny workers' comp benefits to an injured employee who was in the country illegally. The company argued that federal immigration laws superseded the state's system for treating victims of workplace injuries.

But the 2nd District Court of Appeal in Los Angeles, in a ruling published late Monday, said federal immigration statutes didn't preempt state laws governing workers' comp insurance, minimum wage guarantees and occupational health and safety protections.

"California law has expressly declared immigration status irrelevant to the issue of liability to pay compensation to an injured worker," the court ruled, upholding an earlier decision by the state Workers' Compensation Appeals Board against Farmer Bros.

Experts said the unanimous ruling by the three-judge panel was the first time an appeals court in California had specifically upheld the right of illegal immigrants to receive medical care and disability benefits for on-the-job injuries.

A finding in favor of Farmer Bros. would have been "devastating" and "would have put hundreds of thousands of workers at real risk," said Merle Rabine, a commissioner on the workers' comp appeals board, which had previously ruled that illegal immigrants were entitled to benefits.

An estimated 2.6 million illegal immigrants live in California, according to the state Department of Finance. ....

Advocates for tougher immigration control criticized the ruling and called for the federal government to get tough in penalizing employers who hire illegal immigrants.

"We can't reward people for breaking the law," said Andy Ramirez, a spokesman for Friends of the Border Patrol, a Covina-based group that sends members to patrol the U.S. border with Mexico.

"Employers of illegal aliens should be charged and prosecuted to the full extent of the law," he said.

Ah, yes, Mr. Ramirez. Whatever you say.

Posted 9:03 AM by Robert

Condi For Senate

There has been a great deal of misplaced enthusiasm for Condi Rice running for president, especially in 2008 against Hillary Clinton. Such arguments push for the elevation of Ms. Rice to the highest elected office in the land, despite her never having held any elected office whatsoever, have even been observed issuing from the lips and pens of some of those finding Harriet Miers' lack of judicial experience to foreclose her current nomination to the Supreme Court. Go figure.

Ms. Rice might well turn out to be a formidable campaigner and elected official. She should start below the very top level, but there is no reason to start at anyone's idea of the "bottom" (a state assembly seat is not in her future). So how about trying for a U.S. Senate seat now held by one of those California Democrats? At least in the case of Senator Boxer, Condi would have the advantage of not being utterly nutty. That's a characteristic her opponent has in abundance:

Life Imitates Literature
Interview by DEBORAH SOLOMON

Q: What are we to make of the fact that you, a Democratic senator from the Bay Area, have just written a novel about a Democratic senator from the Bay Area who appears to be the most decent person in all of Washington?

The Senator: I worked on this book for seven years. I just want to tell people what my world is like. Show them the great parts of it, the terrible parts of it, the toughness, the idealism, the corruption, all of this.

But how can you say that "A Time to Run," your first novel, represents the world of Washington politics when the Democratic characters are portrayed as saints, the Republicans as snakes?

Let the reader judge. I come to the book with a point of view. But my characters, I believe they're multidimensional.

What about Greg, who becomes an operative for a wealthy Republican businessman and tries to destroy the career of a Democratic congressman who was his friend in college? Do you think Democrats are just more virtuous than Republicans?

As individuals? No. But as parties, I think the Democrats have virtuous goals.

The senator in your novel, by a nice coincidence, is trying to block the nomination of a conservative nominee to the Supreme Court. What do you make of Harriet Miers?

She doesn't bring stellar experience to the job. That's a fact. That's not a disqualifier in my mind. What is a disqualifier is if I can't find out what the heck she will do. With her we have a blank slate. We need to demand information.

I am surprised to hear you say that you don't care about qualifications. Aren't we supposedly looking for a brilliant legal mind to fill the post?

Does he or she have to be the smartest person in America? That's not my bar. Other people have that bar. If the nominee went to a good school - that's not my bar.

You voted against Judge Roberts, and I am wondering if there are any conservatives you could ever vote for.

Sure. I sent two recommendations to the president. One was Ron George, the chief justice of the California Supreme Court, and the other was Kate Werdegar, an associate justice. Two Republicans.

Did President Bush answer your letter?

No. He did not. It didn't come across my desk, let me put it that way.

Do you frequently write to the president?

About once a month. I sent a letter to him right after Katrina and said that the National Guard troops from Louisiana and Mississippi should be pulled out of Iraq and brought home.

Why do you think so many people insist that Democrats have no ideas?

It's hard at this stage because we don't really have a soap box. We don't run anything, not the Senate, not the House, not the White House. Zero, zippo. We fight for the microphone when we can, and we will have the microphone as we get closer to the midterm elections in 2006.

Do you live with any other senators in Washington?

I have a house, and let me tell you the joy of my life. I share it with my daughter and my grandson. And I found out today that my grandson got elected as class representative of the fifth grade.

I hope you're not advising him to enter politics.

No. It's so hard right now, and if you love someone to the core of your stomach, then you don't tell them to go into politics. Which doesn't mean they won't do it.

Your daughter was married to Hillary Clinton's kid brother, Tony Rodham. Does that make Hillary a relative of yours?

We share a bond, because she is my grandson's aunt. My grandson is the only person that we know of in the history of this country who has both a grandmother and an aunt in the U.S. Senate.

It seems as if you're one of the few senators who aren't considering a bid for the presidency in 2008.

No. Someone has to stay in the Senate. And the Senate is not chopped liver.

Posted 8:13 PM by Robert

Companion Pieces

A little while ago a friend of ours, a senior member of one of the wealthiest and best connected families in Jordan, sent me this report, which he viewed as a bad sign of what is happening in Iraq:

Jordan's property boom has been attracting new investors and start ups both locally and from further afield recently, with the kingdom's political stability, reforms in foreign ownership and bank initiatives catching property buyers' eyes. At the same time, more negative factors are also feeding the boom, as an increase in Iraqis fleeing their war-torn country has sent real estate prices through the roof. Recent claims in the sector suggest that Iraqi purchases of Jordanian real estate may have gone up by as much as 170% in the last 12 months.

Now, with the Iraq constitution tentatively accepted, we have this interesting companion item, which I have forwarded to our friend for comment:

A five-bedroom river-view house sold three years ago for $45,000. Two years ago it sold again, this time for $80,000. It sold a third time in August. The latest price tag? $300,000. It's not in Charlotte or Kansas City or Philadelphia; it's in Baghdad. The market here is booming. ... Still, despite steadily increasing levels of violence, a great deal of money flows into Iraq, enough that property values have increased close to 1,000 percent in the past three years in parts of town.

Posted 1:02 PM by Robert

Bad Religion

A history of vigorous personal religious belief no more demonstrates that a judicial candidate will support sound Constitutional interpretation than a history of valiant personal military service demonstrates that a political candidate will support sound defense and national security policy.

With the disaster of Anthony Kennedy before him, one hopes that the president did not rely on the illusion of the former in choosing Ms. Miers - and in any event that the administration will cease all references to her religion to advance her appointment to the Supreme Court.

John Kerry argued the latter, again playing this long established liberal Democratic ruse on the electorate, and foundered badly. He deserved it.

Posted 12:33 PM by Robert

Sailing To Washington II

A prior post took note of the dramatic shifts in Robert Bork's Constitutional philosophies over the years, especially in the areas of First Amendment and "substantive due process" rights.

A dramatic example of a brilliant legal mind (and Robert Bork is surely that) whose well thought out Constitutional philosophy changed dramatically while its possessor possessed a seat on the Supreme Court is Justice Oliver Wendell Holmes. His 1915 Fox v. Washington concerned an editor sent to prison for an editorial titled ''The Nude and the Prudes." The editorial criticized ''opponents of nude swimming," which violated a Washington State law making it a crime ''to encourage or advocate disrespect for law." The Supreme Court, speaking through Holmes, upheld the conviction because the ''article encourages and incites" -- albeit ''by indirection but unmistakably" -- a persistence in what ''we must assume would be a breach of the state laws against indecent exposure."

Addressing criticism of Fox, Holmes later famously told Judge Learned Hand that a state should be as free to protect itself against dangerous opinions as against the spread of smallpox: ''Free speech stands no differently than freedom from vaccination." Well, he held a worked-out Constitutional philosophy.

But not a philosophy that lasted - and we're better off for that. In a series of opinions starting in 1919, only four years after Fox, Holmes launched the the Supreme Court on to its current, vastly more activist, First Amendment journey. It has been said that Holmes virtually invented modern First Amendment protection of free speech.

Frankfurter? Bork? Holmes? All had elaborately worked out Constitutional philosophies. Each stunned supporters and opponents with directions subsequently taken.

Details. Details.

Postscript: There are those who view Justice Holmes' First Amendment voyage as beginning with his honoring the social Darwinian winners in the legislature, and ending with his honoring the social Darwinian winners in the marketplace of ideas. In substance, that is perhaps not much of a voyage. That is also a rather harsh view of the good Justice, but it may be a correct one. In any event, it is a view that certainly highlights just how much the effects of his views changed over time - even if substance of his Constitutional philoosophy changed less. That a smallish shift in the substance of a justice's Constitutional philosophy could result in such dramatic differences in effect should give a good deal of pause to those who emphasize the significance of Constituional philosophy. Perhaps such people would answer that such a sensitivity makes it is all the more important to get someone with the "right" Constitutional philosophy on the Court. But since Constitutional philosophy seems to be inherently a rather unstable variable - at least if Messrs. Frankfurter, Bork and Holmes are any indication - perhaps a better approach is to seek other attributes of a judicial candidate as indicating future performance on the Court.

In fact, the intense criticism of Ms. Miers' personality, focus on procedure and formal social structures and decision making style found in some criticisms of her candidacy suggests that her critics may already be doing exactly that.

Posted 10:00 AM by Robert

Valediction, A Little In Advance

Remember Herr Doktorprofessor Paul Von Krugman? He's been laid so long in his TimesSelect tomb that some of the very young are said to confuse Herr Doktorprofessor with Professor Poopypants. Alarming. Merger of the memory of the real Vlad the Impaler with long existing middle European vampire folk legends eventually created Dracula. Could such a future lie in store for Herr Doktorprofessor's memory? Que sera, sera! But whatever his future may be, his present seems a definite gloaming, as the most recent list of "most e-mailed" from the Times indicates, a list he once strode as a colossus - as an emperor:

1. As Young Adults Drink to Win, Marketers Join In.

2. Meet the Life Hackers.

3. Item: Sisters Think Parents Did O.K.

4. At Public Universities, Warnings of Privatization

5. Chasing Ground

6. Op-Ed Columnist: It's Bush-Cheney, Not Rove-Libby

7. The Miller Case: A Notebook, a Cause, a Jail Cell and a Deal

8. Op-Ed Contributor: God Is in the Rules

9. Stem Cell Test Tried on Mice Saves Embryo

10. Classes in Chinese Grow as the Language Rides a Wave of Popularity

11. Power Companies Enter the High-Speed Internet Market

12. The Coroner: For Trumpet-Playing Coroner, Hurricane Provides Swan Song

13. Op-Ed Contributors: Recipe for Destruction

14. Op-Ed Contributor: Beethoven's Paper Trail

15. News Analysis: Administration's Tone Signals a Longer, Broader Iraq Conflict

16. Long Island Journal: Confronting Bullies Who Wound With Words

17. Poet, 79, Wins Prize and New Audience

18. The Short of It

19. Op-Ed Columnist: Mind Over Muscle

20. The Hidden Cost of Documentaries

21. Belgrade Rocks

22. Program Disorder: At Clinic, Hurdles to Clear Before Medicaid Care

23. A Personal Account: My Four Hours Testifying in the Federal Grand Jury Room

24. Restoring Slumberland

25. Op-Ed Columnist: The Big Squeeze By PAUL KRUGMAN If large corporations continue to cut wages, America's already-eroding working middle class may wash away completely. Something must be done.

Little, gentle, wandering soul,
My body's guest and friend,
To what far places are you borne?
Naked, cold and pale.
As the warmth and joy of life
You loved so slips away.

Posted 8:05 PM by Robert

Sailing To Washington

O sages standing in God's holy fire
As in the gold mosaic of a wall,
Come from the holy fire, perne in a gyre,
And be the singing-masters of my soul.
Consume my heart away; sick with desire
And fastened to a dying animal
It knows not what it is; and gather me
Into the artifice of eternity.

Once out of nature I shall never take
My bodily form from any natural thing,
But such a form as Grecian goldsmiths make
Of hammered gold and gold enamelling
To keep a drowsy Emperor awake;
Or set upon a golden bough to sing
To lords and ladies of Byzantium
Of what is past, or passing, or to come.

Sailing to Byzantium - William Butler Yeats

Many conservative lords, ladies and sages of Washington (including many actually located in that city) despair of Harriet Miers' scant record, as expressed in this National Review editorial:

We are left with only stray clues to Miers’s value system. Unlike John Roberts, or for that matter Ruth Bader Ginsburg, Stephen Breyer, or Clarence Thomas, Miers comes to the highest Court in the land as practically unknown quality, a gamble for incredibly high stakes.

There seem to be two related concerns: It is said that we don't know what Ms. Miers now is, and, even if she is acceptable now, her lack of a well developed "Constitutional philosophy" means that we cannot know what she will become. Ms. Miers' critics sometimes seem seriously confused between the two. For example, this National Review editorial absurdly argues that Justice Blackmun "was a loyal Republican; but almost as soon as he arrived on the Court, he was transformed." In fact, Justice Blackmun was famously dominated by Warren Burger (could there be worse evidence of Blackmun's intellectual frailty than this) for many of Blackmun's first years on the Court, to the point where the two were known as the "Minnesota Twins." It was only in his later years that the "twins" diverged. Or are we suppose to believe that Warren Burger was also "transformed?" (On the other hand, the editorial's concern that Ms. Miers' personality suggests that she is at risk of becoming a justice in the mold of Sandra Day O'Connor may be better placed - I haven't settled that point in my own mind.)

Looming over all, like T.J. Eckleberg loomed over the Valley of the Ashes, is the brooding omnipresence of Robert Bork. Practically every conservative criticism of Harriet Miers cries out, sometimes explicitly, sometimes in secret harmonies: This is so disappointing! We could have had a Robert Bork! Indeed, Mr. Bork himself, not content to watch silently while disaster looms as Dr. Eckleberg did, stated that the Miers' nomination was "a disaster on every level," and, lest anyone mistake him for understated, further explained:

[S]o far as anyone can tell she has no experience with constitutional law whatever. Now it’s a little late to develop a constitutional philosophy or begin to work it out when you’re on the court already. So that—I’m afraid she’s likely to be influenced by factors, such as personal sympathies and so forth, that she shouldn’t be influenced by. ... There’s all kinds of people, now, on the federal bench and some in the law schools who have worked out consistent philosophies of sticking with the original principles of the Constitution. And all of those people have been overlooked.

But set aside for the moment questions about what Ms. Miers - or any candidate - is at the time of elevation to the Court. Assume for the purpose of the argument that it can be firmly established that Ms. Miers is now a conservative in all relevant terms. (This may be a non-trivial assumption in Ms. Miers' case. The National Review argues, for example: There is very little evidence that Harriet Miers is a judicial conservative, and there are some warnings that she is not. ) Is it right that one can obtain a significantly better grasp of what a candidate will become once on the Court for a while where the candidate has a well developed Constitutional philosophy that can be reviewed? That seems to be what Robert Bork is suggesting. Such an assumption also seems to animate David Frum. And there are many others.

But I'm not so sure. One thing one knows is likely true about someone who is brilliant and has worked out an entire personal consistent Constitutional philosophy is that such a person likes to constantly tinker with their own thinking on the Constitution. So why shouldn't one expect that such a person will continue to tinker and change his or her thinking about the Constitution more than other people? For example, think "brilliant judge and academic legal thinker" and pretty quickly you're probably thinking "Richard Posner." But Richard Posner would be the first to tell you that his thinking about the law has changed vastly over the years - and the propensity of his thinking to change seems not to have been inhibited by any particular philosophy that possessed it at any particular point in time.

But perhaps the most spectacular example of someone whose very elaborate and worked out Constitutional philosophies did not inhibit his subsequent changes at all may well be Robert Bork. As late as 1968, for example, Robert Bork celebrated Griswold v. Connecticut. In that year Mr. Bork wrote in Fortune magazine that Griswold showed that the "idea of deriving new rights from old is valid and valuable. The construction of new rights can start from existing constitutional guarantees, particularly the first eight amendments, which may properly be taken as specific examples of the general set of natural rights contemplated." His 1968 Fortune article completely rejected the need - even the possibility - of finding the "original meaning" of the Constitution. In "The Supreme Court Needs A New Philosophy," in the December 1968 edition of Fortune (pp 140-141), Mr. Bork put it this way:

[I]t is naive to suppose that the [Supreme] Court's present difficulties could be cured by appointing Justices determined to give the Constitution its true meaning," to work at "finding the law" instead of reforming society. The possibility implied by these comforting phrases does not exist.... History can be of considerable help, but it tells us much too little about the specific intentions of the men who framed, adopted and ratified the great clauses. The record is incomplete, the men involved often had vague or even conflicting intentions, and no one foresaw, or could have foreseen, the disputes that changing social conditions and outlooks would bring before the Court.

That hardly seems like the Robert Bork we know today. But Mr. Bork's evolutionary path was not linear or simple. In 1968 he wrote that the First Amendment protected not only political but non-political speech, and a lot more:

[N]on-political speech too, of course, is entitled to some degree of constitutional protection. Brandeis cited other values of speech that are not unique to the political variety. For both speaker and hearer, speech may be a source of enjoyment, of self-fulfillment, of personal development. It is often mundane or vulgar or self-serving, but it may be exalted, inspired by the highest motives. It may affect attitudes that ultimately impinge on the political process. All this has implications that, though generally overlooked, seem inescapable. For in these respects nonpolitical speech does not differ from nonverbal behavior, whether it customarily bears the label "sexual," "economic," "artistic," or some other. One could argue, then, that all human behavior should be entitled to the same level of constitutional consideration, the same judicial scrutiny of governmental regulation, that is currently afforded to nonpolitical speech.

"All human behavior?" Really? Sex? And drugs? And rock-and-roll? From such sweeping comments, it seems as though in 1968 at least Mr. Bork thought Mr. Bork had a well worked out Constitutional philosophy - and one that allowed for plenty of left-wing (or libertarian) judicial activism.

It didn't last three years. In 1971, he published a famous article "Neutral Principles and some First Amendment Problems" in the Indiana Law Journal, which argued that the First Amendment only covered political speech, narrowly defined. In that article Mr. Bork also openly admitted that he had reversed his position on Griswold. Where in 1968 he had written that Griswold was "a salutary demonstration of the Court's ability to protect fundamental human values," his 1971 article said of Griswold: "[A]t the time [that is, 1968] I thought, quite erroneously, that new basic rights could be derived logically by finding and extrapolating a more general principle of individual autonomy underlying the particular guarantees of the Bill of Rights." Mr. Bork also wrote in the 1971 article that Griswold was "an unprincipled decision, both in the way in which it derives a new constitutional right and in the way it defines that right, or rather fails to define it."

By the time of his confirmation hearings in 1987, Mr. Bork was still characterizing Griswold is illegitimate - and, as far as I know, that has not changed. But somewhere during the 1970's Mr. Bork's view of the First Amendment widened again, and he expressly repudiated the claim he had made in his 1971 article that the First Amendment applied only to political speech. Indeed, it is almost impossible to overstate the dimensions of the swings in Mr. Bork's understanding of the First Amendment. In 1968, he indicates that it not only protects non-political speech, but all human activity. Three years later, the Amendment protects only political speech - with a narrow definition. A few years after that, the scope of the Amendment's protection has widened considerably.

I do not intend to criticize any aspect of Robert Bork, or the evolution of his thinking, or any aspect of his thinking. But it is clear that his possession of a whole set of various Constitutional philosophies has never encumbered his ability to change them - in very serious and surprising ways. No Constitutional philosophy of Robert Bork has ever been sufficient to gather him into the artifice of eternity. Of what is past, or passing, we can and should investigate and question. But, contrary to many of Harriet Miers' finer critics, I'm not convinced that a candidate's worked out Constitutional philosophy gives us a substantially and incrementally surer understanding of what is to come.

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