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 The company argued that federal immigration laws superseded the state's system for treating victims of workplace injuries.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.

MORE

Posted 8:47 AM by Robert

So What's New With Judith? II

It seems that I was closer to the truth of the whole Judith Miller affair than I had dared to hope.

Man Without Qualities (October 2, 2005):

Perhaps, just before the last flickering of institutional memory went out, somebody at the Times - maybe Mr. Bill Keller - woke up to a thought along the lines of:

"Gee, since nobody gives a rat's ass anymore about that Plum affair... (or is it Plume? ... Flame? ... Flambe? ... well, whatever - I'll look it up on Google when I get to the office), maybe there's no point in leaving old what's-her-name, our 1st Amendment heroine (note to self: Google) locked in Fitzgerald's iron mask? Must ask Pinch."

New York Times (October 16, 2005):

In a notebook belonging to Judith Miller, a reporter for The New York Times, amid notations about Iraq and nuclear weapons, appear two small words: "Valerie Flame." .... And when the prosecutor in the case asked her to explain how "Valerie Flame" appeared in the same notebook she used in interviewing Mr. Libby, Ms. Miller said she "didn't think" she heard it from [Libby]. "I said I believed the information came from another source, whom I could not recall," she wrote on Friday, recounting her testimony for an article that appears today.

Yes, as the Times article relates, there has been great frustration in the Gray Lady newsroom over having been scooped again and again on stories relating to Ms. Miller. By the Washington Post. By TIME. By the Man Without Qualities.

Sad, that.