Man Without Qualities

Saturday, October 05, 2002

The Museum of Sex

...has just now opened in New York.
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Not Florida Election Laws Again... and Again!

Astute reader Patrick R. Sullivan e-mails what appears to be the last word (O, how could I write such a thing where Florida election laws are involved!?) on Katherine Harris' supposedly "post dating" her resignation that was "required" by Florida law when she began her run for Congress.

As a preliminary matter, since some people (not, of course, the New Jersey or Florida Supreme Courts) care about the wording of actual election statutes, here is the actual, "controlling" Florida statute. As I refer to this statute I can barely restrain my laughter over how meaningless its actual wording would likely be considered by the Florida Supreme Court if anything ever actually depended on that wording. But, whomp, there it is - to be cherished by the Courts like some mothers cherish a premature, illegitimate baby born on prom night.

The relevant part of the statute is: "The failure of an officer who qualifies for federal public office to submit a resignation pursuant to this subsection constitutes an automatic irrevocable resignation, effective immediately, from the office he or she presently holds".

The key word, is "automatic." Katherine Harris automatically resigned at the time she "qualified" to run for Congress.

What about that "post dated" resignation?

This question has an easy answer, an answer which all of the media who covered the story appear to have got wrong: There simply is not now and never was a post-dated resignation by Katherine Harris. As noted above - Ms. Harris resigned automatically at the very same time she qualified to run for Congress. No resignation letter was needed. Florida law automatically “resigned” her from her office.

Well, some readers may be asking: What the heck was that back dated piece of paper that Ms. Harris sent to Governor Bush to which the media and Ms. Harris' critics keep pointing?

That piece of paper was a notice of her already-effective resignation. Since her resignation was already effective as of the date of her qualification to run for Congress, the notice of her resignation quite properly said: "Dear Governor Bush, You are hereby notified that the Secretary of State resigned two weeks ago. Yours truly, Katherine Harris "

Why would Ms. Harris sign and send that notice? Well, she sent that notice to Governor Bush because the Florida law also provides: "The Department of State shall send a notice of the automatic resignation to the Governor....".There doesn't seem to be any timeliness requirement for the notice.

But now the reader may be asking: If Ms. Harris automatically resigned as Secretary of State when she qualified to run for Congress, then what the heck was she doing signing and sending a notice to the Governor that the law says is supposed to be sent by the Department of State? She can't both have resigned and still have represented the Department of State, can she?

Well, as it turns out, the answer to the above question is Yes, Ms. Harris both resigned and still remained acting Secretary of State according to the Florida Constitution until the Governor appointed someone to replace her!

Got all that?

But it gets better. Ms. Harris’ Republican primary opponent in the Congressional race sued to get Ms. Harris' name removed from the primary ballot under yet another provision of the statute: "The name of any person who does not comply with this section may be removed from every ballot on which it appears when ordered by a circuit court upon the petition of an elector or the Department of State."

To which Ms. Harris successfully replied (she is, after all, now the Republican nominee) with two arguments: First, she pointed out that she was in compliance with the Florida law because her resignation was automatic (as described above). Second, she pointed out that even if she had not been in compliance with the Florida law, the ballot removal can only be imposed on candidates for state office because the U.S. Constitution determines the qualifications for the House – not Florida law. (This second argument was, of course, the very same argument on which the United States Supreme Court relied when it held that state term limit laws could not be applied to candidates for Congress.)

How could anyone not just fall in love with her?

UPDATE: There is yet another provision of the Florida LAW that addresses federal candidates:

(4)(a) Any officer who qualifies for federal public office must resign from the office he or she presently holds if the terms or any part thereof run concurrently with each other.

(b) The resignation is irrevocable.

(c) The resignation must be submitted no later than the date upon which the officer qualifies for office.

(d) The written resignation must be effective no later than the earlier of the following dates:

1. The date the officer would take office, if elected; or

2. The date the officer's successor is required to take office.

At first glance, this provision seems on point, since it says the federal canidate "must resign." But then the provision I already cited above fills the gap, since that provision deems the resignation automatic as soon as the candidate qualifies for federal office. Ms. Harris did resign, as required by this provision.

There is also some confusing language "The resignation must be submitted no later than the date upon which the officer qualifies for office" - but, again, the provision cited above already deems the resignation to have been submitted if no written resignation is sent. Moreover, contrary to what media reports, this provision DOES NOT require the officer to resign at the time she qualifies to runfor federal office. In fact, it specifically states that a written resignation must be effective no later than the earlier of the date the officer would take the federal office, if elected; or the date the officer's successor in her state office is required to take office. That is, if Ms. Harris had submitted a written resignation, she would have been entitled to date it forward well beyond the actual; date of her qualification to run for Congress. Since she did not submit a written resignation, she automatically resigned at the time she qualifierd to run for federal office.

Ms. Harris clearly did not "resign retroactively" as the media stated.

Further, as I (and she, in court) pointed out in the above post, the statute is unconstitutional if it is construed to actually require a written resignation as a qualification on a Congressional candidate. It would be improper and a violation of her oath to uphold the Constitution for the Secretary of State not to ignore an unconstitutional law or to appear to acknowledge its validity. For exactly the same reason, Alaska is now ignoring its own term limits laws - which are unconstitutional for the same reason the Florida law here is unconstitutional (as attempts to impose an additional qualification on the office of federal Representative). Could anyone think Alaska is wrong to do that? Similarly, many home deeds (including Senator Kennedy's house in Washington) continue to retain old, unconstitutional clauses prohibiting resale to racial minorities. No reasonable person could think the state officers that ignore those clauses throughout the country and record resales to minorities in county registers are doing something wrong.

Since Ms. Harris clearly resigned from her office automatically when she qualified to run for Congress, and she could have retained her office well beyond the date of her qualification to run for Congress if she had sent a resignation letter, and she most certainly cannot be excluded from the Congressional ballot for any supposed failure to comply with the state law, exactly what actual harms are her critics up in arms about? What person was harmed in their view by Ms. Harris' supposed "failure to comply" - whatever they may think that was?

FURTHER UPDATE: Further evidence that Florida election law disputes drink from the Fountain of Youth so long sought in that State, and therefore enjoy eternal life, can be found in the comment section at Jane Galt.


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I'll Fly Away

Bill Clinton: "Pre-emptive action today may come back with unwelcome consequences in the future because, I don't care— and I have done this, I have ordered this kind of action — I don't care how precise your bombs and weapons are, when you set them off, innocent people die." [The implication being, apparently, that if military action is not "pre-emptive", then innocent people will not die?]

Charles Lindbergh: "We came here to escape Europe's ceaseless wars. Why should we now go back in?" [Linked site includes interesting photograph of Lindbergh walking with Col. Norman Schwarzkopf, head of New Jersey State Police, and father of Persian Gulf Commander 'Stormin Norman' Schwarzkopf. Schwarzkopf headed the investigation into the Lindbergh baby kidnapping.]

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Pinned Down By Magic Fire Music?

One of the Volokhyries (I think it was Eugene, but I deleted the message before fully tracking the name) reply e-mailed that he was swamped and could not focus on this issue.

Too bad.
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Feeding the Beast

Senate Armed Services Committee Chairman Carl Levin, D-Mich. says that a strong show of support from Congress on the Iraq war resolution will not strengthen the President's hand at the United Nations, but could have the opposite effect — undermining the U.S. "It takes the U.N. off the hook," said Senator Levin, who has proposed an alternative resolution that would require Bush to first seek U.N. support.

Senator Levin is almost certainly and dangerously wrong.

If there are signs Mr. Bush's approach is not trusted at home, and might not be supported by Congress, the U.N is unlikely to think something beyond the ususal impotent fussing is required. The position of the U.N., most of its General Asembly members, and especially the Secretary General, is clear: They are making great efforts to convert the whole affair into a big, meaningless stage performance of various showy and irrelevant acts, such as sending inspectors into Iraq where "palace grounds" (some of which are bigger than the District of Columbia) are renedered effectively off limits by "advance notice requirements." To date, only Presidential resolve has produced even the modest movement towards rationality in the U.N. that has occurred. And, of course, the whole "inspector" approach is a farce given what we now know about Iraq's determination to undermine the inspectors' efforts. As the Pantagon puts it in the above linked article: "[A]ny inspections would be difficult, if not impossible, to carry out because Iraq was going to extreme lengths to conceal its arsenals. "It is a very organized, very comprehensive effort" ... one that that includes "inputs and guidance from the highest levels."

Mr. Bush is absolutely correct to understand that the only approach likely to cut through this U.N. intransigence is a clear showing that the United States will simply ignore the U.N. farce if the U.N. insists on its usual farce. Any indication that the U.N. has real influence in this process will not be viewed by the U.N. as "being on the hook" - it will be viewed there simply as another opportunity for "being an obstacle in the road."

Senator Levin's approach is exactly the wrong approach, and it is a good thing that there appears to be no chance that it will be included in the final resolution. But then he is Senator from Michigan - which has a large population of Arab Americans. Of course, Senator Levin is Jewish - and some might think on those grounds he would be more sympathetic to Israel's pleas that Iraq be taken out as soon as possible (although the Man Without Qualities is not sympathetic to the force of this kind of reasoning). Ironically, if Republican Spencer Abraham - who is an Arab-American - were still Senator from Michigan (he is now energy Secretary), my guess is that he would be more supportive of the President's position.

"Identity politics" certainly is getting complicated.

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Ring of the Layman

Layman posts a wonderful, sly image (scroll down to the ring if necessary).

[For some reason the image doesn't seem to persist in the "Archived" version of this post.]

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Friday, October 04, 2002

Now If They Called It SALOON More People Would Visit

But they didn't.

So it looks like there is a fast increasing chance of a full allignment of the financial, intellectual and political bankruptcies of Salon. Right now it looks like only a few dollars and Sully, Horowitz and Spinsanity stand in the way.

A coming internet syzygy!
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Not Florida Election Laws Again!

Remember the charges that Katherine Harris violated Florida election law when she failed to resign in time before running for Congress? Good, I don't remember very much either.

But John Cole received an interesting letter saying that she didn't break that law after all, and the law doesn't say what the media reported in any event.

As someone who doesn't know anything about Florida election laws except what I read in the papers, I just pass the message along without endorsement pro or con.

UPDATE: Well, we have an endorsement after all. That letter was written by Patrick R. Sullivan, so it's almost certainly correct. Patrick says by e-mail that the letter is based on what he found out during one of those "comments section" battles on Brad DeLong's website.

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Please Politicize the War

For some time the Man Without Qualities has been pointing out (here and here, for example) that "politicizing the war" is a necessary, correct, democratic activity - if by "politicization" one means including war related issues in the political debate and political campaigns. Senator Daschle, in particular, has been wildly out of tune with the basic principles of representative democracy on this point. Of course, conducting an unnecessary war as a distration from domestic political problems is wrong - but that is not what is happening in this country now.

As stated in a prior post:

With Mr. Gore intoning such things - and Senator Daschle treating them seriously and suggesting the rather obvious fact that a lot of other Democrats in Congress agree with Mr. Gore - how can Senator Daschle argue that a candidate's position on Iraq is not an important election issue? Is it Senator Daschle's view that voters shouldn't be thinking about and voting about whether the country should go to war? Senator Daschle thinks that a candidate's telling the voters where the candidate (and an opponent) stands on the war issue is prohibited "politicization." Are the voters just supposed to find out the details of their representative's positions on waging war as a surprise after the election - like someone popping out of a cake at a wild party? ....

Is that what Democracy means? What happened to all those Democrats calling for a "national debate" on war with Iraq? And what was the point of the "national debate" the Democrats have been demanding (even as they refused until recently to participate in such a debate) be if not to affect the composition of the decision-making bodies involved in determining whether and how such a war should be waged? If a particular Democratic candidate objects to being characterized as unsupportative of an Iraq war, then the candidate can just say to the media: "I support the President's position as much or more than my Republican opponent!" Of course, if that's not true, the Democrat has to choose between uttering a public lie and accepting accurate criticism. That's good.

So it's nice to see that at least some media coverage is being given to this point. The article is well worth reading.
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Psychoanalyzing the Supreme Court

Linda Greenhouse begins her New York Times article on the United States Supreme Court's involvement with the Torricelli ballot case with a sentiment expressed widely in the media: Is it conceivable that not even two years after the United States Supreme Court brought the presidential election to a close with its 5-to-4 decision in Bush v. Gore, the justices would put themselves on the line again in a state election case that this time could determine control of the Senate? She ends it with the same thought: "To this volatile mix, does the court want to start the year off by adding Bush v. Gore the Sequel? On the other hand, can anyone who lived through Bush v. Gore the Original be confident of the answer?" The Note characterizes Ms. Greenhouse's thoughts with only some exaggeration: "Her conclusion: if the justices are sane, and still (as Greenhouse suspects they are) feeling sore and wounded after the heat of Florida 2000, they won't touch the case with a 10-foot poll." Ms. Greenhouse herself summarizes the "challenge" she purports to identify as "psychoanalyzing the Supreme Court in the aftermath of Bush v. Gore."

Ms. Greenhouse should accept the wisdom of her own metaphor. Ludwig Wittgenstein remarked already in 1938 that "In a way, having oneself psychoanalyzed is like eating from the tree of knowledge. Knowledge acquired sets us (new) ethical problems; but contributes nothing to their solution." Wittgenstein's prescient comment nicely reflects the fact that after decades of psychoanalysis creating (or at least serving as a cover for) all kinds of literary, political and God-knows-what-other kinds of fuss, there is now almost a consensus in the medical community that psychoanalysis (as opposed to other types of psychotherapy) has no therapeutic value - and almost no meaningful predictive value. Of course, there are still a few die hard psychoanalysts, hunkered in the trenches for the last battles of the "Freud Wars," but their professional medical and scientific associations will likely soon be sharing office space with the Flat Earth Society or the Yale English Department. Ms. Greenhouse should take that into account in deciding where to retire.

"Can anyone who lived through Bush v. Gore the Original be confident of the answer?" The answer to Ms. Greenhouse's question is "Yes!" I, personally, can be. And, in fact, I am.

I hereby confidently and boldly assert that the citizens of the United States can be sure that their Supreme Court will not be deterred from any involvement in this case by any sense of personal or "institutional" discomfort in re-engaging the same or similar legal and political arguments and forces that drove Bush v. Gore.

Is the reader shocked?

The Justices of the United States Supreme Court routinely accept the heat, and they have no problem staying in the kitchen. Need someone to say that the Court has the power to overturn Congress if the law violates the Constitution, even if Mr. Jefferson will try to get us impeached? Send over the papers. Want us to tell you if a slave is "property" - thereby busting up the nation? We'll take the case. Packing some innocent Japanese American off to the camps? Let us review the matter. Racial discrimination throughout the South? No problem - for years and years and years, no problem. Abortion hysteria? Bring it on - give us a double helping. Death penalty madness? We can't get enough of it! Hotly contested Presidential election? We'll do what we think the law requires! WE'LL SAY WHAT THE LAW IS!

And you know what? The Court will do what they think the law requires this time, too, and they won't give a rat's ass if it creates a media or political stink. They won't care if it means running the risk that they won't be going out to tea with the same colleagues they do now. And they especially won't care if some silly law professors or Ms. Greenhouse and her ilk write nasty articles about the Justices in a few months time.

The Justices have their failings, so do we all. But they take their oaths of office and responsibilities seriously. They don't sit in that marble palace in quasi-retirement or to avoid trouble. Neither do they normally look for trouble. But they have no problem accepting it if it's what they think the law requires.

The Justices really do have guts - and life tenure with irreducible salaries.

They don't need to be "psychoanalysed" or subjected to any other kind of phony, non-predictive "political analysis" that purports to detect an agenda "deeper" than the ordinary legal agenda - a "deeper" agenda which can, of course, only be fully understood by expert Court watchers such as Ms. Greenhouse. Ms. Greenhouse's article mostly brings to mind all the other silly articles she has written hilariously suggesting by one theory or another that she can determine some kind of coherent meaning in the Court's refusal to hear one case or another - "Cert Denied" orders. There is no meaning in such orders, no matter what Ms. Greenhouse says or suggests to the contrary - and she has said a lot to the contrary over the years. There are lots of reasons why a particular Justice may or may not vote to review a case - and I am not saying that the Court will agree to hear this one. But those reasons will not include these particular considerations Ms. Greenhouse deems so profound.

She just won't stop putting the Court on the couch.

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Thursday, October 03, 2002

Are Articles I and II of the Federal Constitution Alike?

From Article II: Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress.

From Article I: The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof.

These provisions are at least superficially similar, as noted here, for example.

But the similarity may be dangerous and possibly misleading because voters have a direct right under the Constitution to vote for their Senators and Representative - but have no right to vote for the President or for any elector who votes for the President.

Instead, Presidential electors are chosen entirely in the discretion of the state legislature, as the Supreme Court pointed out in Bush v. Gore:

The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College. U. S. Const., Art. II, §1. This is the source for the statement in McPherson v. Blacker, 146 U. S. 1, 35 (1892), that the State legislature's power to select the manner for appointing electors is plenary; it may, if it so chooses, select the electors itself, which indeed was the manner used by State legislatures in several States for many years after the Framing of our Constitution.

At first the grant of state legislative power under Article I seems broader than the Article II grant: "Time, place and manner" are be determined by the legislature, where Article II only says that the legislature may choose only "the manner" in which Presidential electors are appointed. But something is wrong here. Article II allows the legislature complete control over the actual selection of Presidential electors, but Article I only allows the legislature to stipulate the "time, place and manner" under which other people (the voters) do the selection. A right to stipulate the "time, place and manner" under which a certain activity is to be conducted normally carries with it the meaning that the "time, place and manner" are procedural and are not to be formulated to unduly burden the governed activity. In short, the legislature's right to determine the "time, place and manner" of an election under Article I is not plenary, but the legislature's right to choose Presidential electors under Article II is plenary.

Whether the legislature's power is plenary is not the ultimate question. The ultimate question is: Does this provision of Article I grant power to the state or to the legislature of the state? It seems much less likely that the Article I grant runs directly to the legislature than in the case of the Article II grant.

Consider the case in which the legislature of a state itself simply votes directly to appoint Presidential electors - which was the old way many states chose electors. Is there any room for the state courts to function in the choice process? It's hard to find one. If the question comes up whether one person or the other was appointed as an elector, the legislature can answer for itself. Legislatures generally function as the court of last resort for their own rules.

But running a popular election cannot ever be like the legislature just voting for a list of names. An election requires the full apparatus of the state, legislative, executive and judicial branches - that is, the full state. By its very nature, an election requires the executive to put whatever election laws the legislature passes into effect. Problems will come up in construing the laws. Are the state courts to be barred from construing those laws? Have the state courts ever been so barred? Of course not. Have state legislatures ever passed election laws then vetoed by the Governor? Of course they have. Would any sensible person think such a vetoed law actually controlled as to Senate and Congressional elections but not otherwise - just because Article I cuts the state executive out of the process? Not very likely. Have state election laws applicable to Congressional elections ever been construed that way in the history of this country? No. In sum, Article I seems to contemplate that states will pass and construe their election laws in the usual way - not by direct, independent legislative resolution independent of the executive and the courts.

But even if the state courts have more of a role to play in Senate elections than they do in Presidential elections, is that role limited even in the case of Senate elections to construing statutes? Possibly. And it is at least possible that the New Jersey Supreme Court may come to regret it's relative failure to cloak its decision in at least a pretense of construing legislative intent.

But the New Jersey Court's relative failure was not a complete failure. The New Jersey Court said it was "liberally" construing the election laws. One way of interpreting this rather gnostic assertion is that the New Jersey Court meant to say that it found that the legislature had delegated to it (the court) the right and obligation to "fill gaps" in the election laws. In this way the New Jersey Court's decision might be reconciled with Article I.

The New Jersey Court's decision - at least so far, since no full opinion has been provided - is a disgrace. One possible avenue might be for the United States Supreme Court to stay the New Jersey Court's decision and remand the case for clarification. Of course, since there is little time left, that might have the practical effect of overruling the New Jersey Court.

UPDATE: Could the United States Supreme Court adopt a more restrained position on Article I and hold that where the state legislature is in session, or can be immediately called into session, the state courts cannot exerise as much discretion over the election law process as the New Jersey Court did in this case without a clear statement of delegation by the legislature to the state court? That would have the effect of reversing the New Jersy opinion and point the finger of responsibility directly at the Democrat-controlled New Jersey legislature and Democrat governor. If they want to change the law, then they could do it now by statute - or expressly delegate sufficient power to the New Jersey Court. But of course they will then have to face the voters themselves.

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Certified as the World's Funniest Joke

"A couple of New Jersey hunters are out in the woods when one of them falls to the ground. He doesn't seem to be breathing, his eyes are rolled back in his head.

"The other guy whips out his cell phone and calls the emergency services. He gasps to the operator: 'My friend is dead! What can I do?'

"The operator, in a calm soothing voice says: 'Just take it easy. I can help. First, let's make sure he's dead.'

"There is a silence, then a shot is heard. The guy's voice comes back on the line. He says: 'OK, now what?'"

That this joke is the "world's funniest" may explain more about the current global political situation that one cares to contemplate.

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About that OTHER New Jersey Senator

The Wall Street Journal is reporting (the New York Times has a less impressive article):

Prominent executives at 21 U.S. companies personally received hot IPO shares from Goldman Sachs Group Inc., which pocketed lucrative investment-banking fees from those companies during the stock market's extraordinary rise in the late 1990s, according to congressional investigators. Two executives of major Goldman clients -- eBay Inc. Chief Executive Margaret Whitman and Yahoo Inc. co-founder Jerry Yang -- each received shares in more than 100 initial public offerings of stock managed by Goldman since 1996, and quickly resold many of the shares at a profit. Among others, executives or directors of WorldCom Inc., Enron Corp. eToys Inc., and Global Crossing Ltd. also received IPO shares.

The list of recipients of Goldman largess that follows in the Journal article reads like a Who's Who of the corporate Go-Go nineties. The Times is less detailed.

Such an extensive list of prominent executives, and such huge amounts, all bespeak a policy made at the very top of Goldman.

And just who was at the top of Goldman while most of this generosity was being effected?

Jon Corzine ran Goldman until shortly before he was elected as the junior United States Senator from New Jersey.

As a side note, Mr. Corzine was persuaded to run for that office (a run which cost him $65 Million of his own money) by senior United States Senator for New Jersey, Democrat Robert Torricelli.

Mr. Corzine's own biography says:

Jon Corzine was elected to his first term in the United States Senate in November 2000, after a long and successful career as an investment banker. The former co-chairman and co-chief executive officer of the investment company Goldman Sachs, Senator Corzine's private sector experience and financial expertise has put him in the forefront of a number of major economic and regulatory issues confronting the Congress. He is a member of the Senate Budget Committee, the Senate Environment and Public Works Committee, the Senate Banking, Housing and Urban Affairs Committee, and the Joint Economic Committee.....

In 1975, Senator Corzine was hired as a bond trader at Goldman Sachs, and he and his family moved to New Jersey. He was named a partner in 1980. He became chairman and chief executive officer in 1994. He left Goldman Sachs in May 1999 after successfully converting the investment firm from a private partnership to a public company.

So Mr. Corzine left Goldman in May 1999, and he ran it from 1994 until he left. That covers just about all of the period of Goldman generosity now under investigation.

And by November 2000 Mr. Corzine had been elected Senator from New Jersey at Mr. Torricelli's urging! Could these alleged Goldman shenanigans help explain Mr. Torricelli's attraction to, and admiration of, Mr. Corzine?

Does it make the reader feel better to see all that biographical information in official print?

Of course, before getting carried away, please keep in mind that Goldman denies every insinuation of wrongdoing. That is, Goldman is denying the very same kind of insinuations of wrongdoing that the Democrats had been counting on to make "corporate accountability" their issue this election.
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Now the Appeal

The Republicans, at least, and perhaps other political parties, are appealing the New Jersey Supreme Court ruling which overrode that state's election law to allow Frank Lautenberg's name to be substituted for Bob Torricelli's.

We may he hearing as much about certain provisions of Article I of the Constitution as we heard about Article II in 2000.

I am frankly amazed that the New Jersey Supreme Court did not attempt to base its decision as much as possible on New Jersey statutes, precedent and state constitution. I had predicted that there would be no meaningful chance of appeal to the United States Supreme Court. I was wrong - although I still do not count the prospects for a successful federal appeal as strong.

But the prospects for such an appeal have been greatly enhanced by the New Jersey Supreme Court's outlandish admission that its decision is not guided by statute but is a frank exercise of unbounded equity power (thereby opening the ruling to attack under Article I - although the full Bush v Gore majority did not subscribe to the corresponding Article II argument in that case, and therfore is unlikely to accept that Article I requires the federal courts to look only to the state legislature and not to state courts for state "time, place and manner" laws in Senate elections), an exercise which is confessed in the ruling itself to be based on a prohibited intent to "preserve the two-party system" (thereby opening the ruling to attack under the First Amendment). The New Jersey court's failure to account for New Jersey's noncompliance with federal laws guaranteeing those in the military the right to vote is yet another amazing omission on that court's part.

It could have all been so easy for them.

UPDATE: Volokh elaborates somewhat and without enthusiasm on the Article I challenge to the New Jersey opinion. The point is made there that the United States Supreme Court seemed to be embracing the Article II version of this "the-legislature-makes-the-rules,-not-the-courts" argument in Bush v. Palm Beach County Canvassing Bd, but since no majority of the Court embraced this argument in Bush v. Gore, that's not much to go on. On the other hand, it's hard to read much into Justices shifting from one argument to the other where there is no express repudiation of the prior argument. Perhaps if there were no alternative a majority of the Court might embrace the Article I argument.

There are no reports that the Republicans plan to advance a First Amendment argument (although they do advance an argument based on the rights of military voters), which (if this argument is indeed not being made) may be a mistake. The Court has shown edginess over embracing the Article I -style argument and previously sought cover (in Bush v. Gore) in other precedent they considered "more established." However, at least some of the First Amendment objections could be corrected by the New Jersey Court simply withdrawing the justification that it intended to "preserve the two party system." Indeed, if the New Jersey Court issues a full opinion, much of the First Amendment problem could probably be fixed there. A federal victory on those grounds might not hold up on remand to the New Jersey Court. So not making the First Amendment arguments may be a reasonable strategic decision.
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Torricelli, Out. Harkin - ?

The Washington Times reports that :

A Sept. 18-19 poll by a Republican firm of 400 likely voters ... had Mr. Harkin [, the incumbent Democratic Iowa Senator,] ahead by only four percentage points, and actually behind [his Republican opponent,] Mr. Ganske among voters 65 and older.

Let's see. Social Security is a Democratic issue, right?

Cornfield Commentary may have a lot of ground to cover on this one.

And, let's face it, Senator Harkin is going to have a problem in that Iowa has generally and genuinely nice people.

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Wednesday, October 02, 2002

Saints Preserve Us!

Saints preserve us and our sacred two party system!

Elizabeth Macron, a member of a scary political party from which the saints who occupy the New Jersey Supreme Court say the two party system must be "preserved," sent this copy of her comments to that court to John Cole (I copy it out in full because the deep link doesn't seem to work).

Ms. Macron probably didn't spook the New Jersey Supreme Court with the notes below. My guess is that what really frightened them is that she had the temerity to actually run for the office. OOOOOO. And she sounds so reasonable. That's probably just to sucker us in. Thank God the New Jersey Supreme Court knows better. Knows what a terrible, terrible person Ms. Macron really is, and what terrible, terrible things her party - any third party - wants to do! Not like that sainted Independent Senator Jim Jeffords - he doesn't "belong" to any party. No. No. He's different. The two party system doesn't need to be preserved from him. It's all very different, and the New Jersey Supreme Court knows just how different it all is.

Can somebody tell me?

Anyway, here's her statement:

Good Afternoon. My name is Elizabeth Macron. I am the Libertarian Party candidate for United States Senate.

The Democratic Party cites Kilmurray v. Gilfert, 10 N.J. 435 as dispositive of the issue. In Kilmurray, this Court noted the relationship between N.J.S.A. 19:13-19 (nominations by petition) and N.J.S.A. 19:13-20 (nomination by primary). In that particular case, this Court found that while the vacancy was not filled by the 37-day deadline of N.J.S.A. 19:13-20, the more lenient deadline required by N.J.S.A. 19:13-19 had been met. A candidate had been selected within the 34-day deadline that would apply to candidates nominated by petition. The Kilmurray decision treated the earlier deadline liberally while upholding the law equally for all candidates on the ballot. In this case before this Court, today, plaintiff has missed both deadlines and they have yet to present a nomination for the vacancy.

The Democratic Party says it acted in good faith. They have to show their own clean hands before they can ask the Court to bend the law on principles of equity. They say that the fifty-one day statutory requirement is a mere technicality. They call it a non-material requirement and argue that no harm is done if new Ballots can be printed and distributed in time. The harm they ignore is the harm that results from allowing a party machine to circumvent the law for political reasons. The plaintiffs have, thus far, been permitted to completely flaunt the law. They have filed procedurally deficient papers, without consequence. They have skirted the notice requirements of the court rules in bringing this matter before the court. They have obtained Injunctive Relief against parties not properly notified. They have filed a Verified Complaint that is not properly verified, thus calling into question the jurisdiction of the court. (Rule 1:4-7 and State v. One Datsun, 189 N.J. Super. 209 (App. Div. 1983)
What sort of precedent is set by permitting party machines to add and subtract candidates at will--without regard to the Rules of court, the Election Law or any of the ballot access rules and procedures? The plaintiffs seem to think that the "very purpose" of the election law is to insure the dominance of the two existing major parties. Why should that be so? The purpose of the election laws is to permit the citizens to vote for whomever they choose. Not whomever the party machine chooses.

Voter choice will not be impaired in the slightest by denial of plaintiff's application. Mr. Genova says on page 12 of his brief that voter choice is compromised when ballot access is denied to any candidate and "in particular candidates of the major parties". He cites page 441 of the Kilmurray decision as authority for this claim. Kilmurray says no such thing. The decision says: “It is in the public interest and the general intent of the election laws to preserve the two-party system and to submit to the electorate a ballot bearing the names of candidates of both major political parties as well as of all other qualifying parties and groups."
It does not say that the public interest is particularly served or better served by the presence of the two major party candidates. It is my position that the public interest is best served by fair ballots containing the names of all qualified candidates. The qualification process includes meeting the deadlines imposed by the statute.

The statutory deadlines do more than just facilitate the work of the County Clerks in preparing ballots. The reason we have laws--process, deadlines and fixed rules is to protect the citizens against the abuse of power. That is what the rule of law is about. The two major parties are diligent about making sure that third party candidates dot all the I's and cross the T's. We believe they should be held to strict compliance as well. If this is a nation of laws, and not men, then the laws should be applied and enforced as written.

Consider the power politics underlying all of this. Mr. Toricelli himself told us that he discussed his decision with President Clinton, Governor McGreavey and Senator Corzine. Mr. Toricelli's decision was a political one. He admitted as much. He said he did not want his party to lose control of the Senate. This "vacancy" did not come about as a surprise to the Democratic party. It did not arise through circumstances beyond their control, such as the death or incapacity of a candidate. Rather, it arose because of their control. This vacancy was created because of power politics.
I object to the procedure by which this matter is being brought to the Court. My objection is based on Lack of Reasonable Notice and Lack of Proper Service. R.4:52-1(b) requires the Order to Show Cause with Temporary Restraints and supporting affidavits to be served at least ten (10) days before the return date. Although the rule does authorize the Court to fix a “shorter or longer time” it defies reason and is and was totally unfair to require, in the best of circumstance, a response time of just a few hours. It certainly is not my fault that Mr. Torricelli waited until the eleventh hour before withdrawing from the Senate Race.

The plaintiffs suggest that it is in the best interests of the voters of this state for their application to be granted. I submit that it is not in the best interest of any voter for the plaintiff’s application to be considered and granted in such a rushed manner with little or no opportunity for the other candidates or political parties to respond.

Not having complied with the election law’s time deadlines, the Democratic party should not be permitted to avoid the law. Their argument that strict application of the law prevents a real choice for the voters is flawed. The New Jersey Democratic State Committee may, if they choose, endorse as their candidate, one of the other candidates on the ballot for United States Senate.

Or they may pursue election as a write-in candidate, an option that was mentioned in the Hand v. Larrison decision. 163 N.J. Super. 78-79. There the court noted that the statutory conditions being challenged did not preclude the candidate from " holding himself out as a candidate and promoting a write-in campaign.” Such a procedure would avoid the alleged irreparable harm, while not violating the applicable statute.

The fact that the Democratic Party is willing to bear the costs of reprinting ballots should raise suspicion and supports my position that this is all about power. These costs and this confusion only exist because of the political maneuvers of the Democratic Party. No cost or confusion will result if the law is simply upheld.

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They Want to Test the Limit

MWQ: Just how stupid do the Germans think they are entitled to be?

Reuters: Asked if he should apologise to U.S. President George W. Bush for a general election campaign which U.S. officials say badly damaged ties between Washington and Berlin, traditionally a dependable U.S. ally, Schroeder said bluntly: "I do not understand the question."
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Tom Sure Knows How to Pick 'Em

New Jersey Times.Com reports:

In what may be the strangest twist yet in a bizarre election year, New Jersey Democratic leaders last night chose Lautenberg as their standard bearer on the insistence of Senate Majority Leader Tom Daschle, the same Tom Daschle who last week came to Trenton to lead an emotional rally aimed at rekindling Torricelli's sinking re-election campaign. The choice was, said one Democrat, "Lautenberg or nothing."

So Tom Daschle, who is from South Dakota, dictated who would replace Mr. Torricelli on the New Jersey ballot.

And this is all supposed to be about the "rights of New Jersey voters."

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The Latest Torricelli Folly

As expected (at least in this space) the New Jersey Supreme Court will allow the Democrats to place a new name on the state ballot, holding in a unanimous decision:

"It is in the public interest and the general interest of the election laws to preserve the two-party system and to submit to the electorate ballot bearing the names of candidates of both major political parties as well as of all qualifying parties and groups."

There's more than one problem with this "reasoning", but one could start with the fact that neither the United States Constitution nor the constitutions of the various states establishes or enshrines "the two-party system."

In fact, with this amazingly undemocratic wording, the New Jersey Supreme Court may have accomplished the near-impossible: providing the United States Supreme Court with grounds to reverse the decision. The states are allowed a lot of leeway under the federal Constitution. But one thing they are absolutely and clearly prohibited from doing under the federal constitution is establishing a two-party system. Has the New Jersey Supreme Court never read the First Amendment? I suppose the United States Supreme Court will now get to determine whether the New Jersey Supreme Court can exercise its equity jurisdiction "to preserve the two-party system," with this decision as a kind of confession of unconstitutional intent in the New Jersey court's own hand


UPDATE: Volokh has some musings, but I can't say they strike me as getting to the core of the issues here - and they don't even try to come to terms with the issues posed in a federal appeal (other than the military ballot side issue). But the Republicans had already said they would appeal such a ruling even before the New Jersey Court hearing. Still, the musings are interesting in their own way. And the "military ballots" issue (already out, hard to get replaced) is an interesting sideshow. It's odd how the Democrats keep trying to screw the guys in the military in these election dust-ups. Is there a message in that? In addition, there are federal statutes that rather strictly protect the rights of those serving in the military to vote. It would be odd if that particular side issue drove this case on appeal. Odd, but possible.

FURTHER UPDATE: To get some idea of how bizarre the New Jersey Supreme Court's reasoning actually is from a First Amendment perspective, consider what would happen if New Jersey passed a law (or, since the New Jersey legislature seems to have become essentially irrelevant, the New Jersey Supreme Court issued an equity ruling) providing that only the names of Democrat and Republican candidates will appear on New Jersey ballots - everyone else must be a write-in. No exceptions. Also, all Republicans and Democrats can vote at a polling place within 1/2 mile of their homes - but only five locations in the state will accept write-ins. Or suppose New Jersey passes a law requiring that driver's licenses be issued only to registered Republicans and Democrats.

Now suppose the reason stated for these new laws is to "preserve the two party system" (that is, burden the minor parties).

Can any sensible person doubt that these new laws would fail to pass First Amendment scrutiny? An intent to "preserve the two party system" is nothing but another way of describing an intent to discriminate against people not in those two parties for their political views. We went through all that in the McCarthy era! Indeed, the Federal Civil Rights statutes would probably be violated by these laws. And the reason is that it clearly violates the First Amendment for a state to pass a law specifically intended to discriminate against specified political parties.

It's one thing for a state to say it is imposing election laws and restrictions to address the practical realities of voting - even if those restrictions have the effect of favoring one or two parties. But for the state to actually come out and say it did what it did expressly to favor some political parties over others clearly violates the First Amendment. The New Jersey decision is therefore vastly more egregious than the gerrymandering cases with which it is being compared.

What is particularly strange here is that it is the New Jersey's Court's superfluous explanation of its ruling that establishes its unconstitutional intent, thereby exposing its decision to reversal on these grounds.

Is Trenton still part of the United States? How can these New Jersey "justices" have done something like this on these particular, express weird grounds? How could any American judge do something like this?

Some relevant Constitutional law appears here [cite via MinuteMan]. Too bad the New Jersey Supreme Court didn't bother to read it.

It will be interesting to see where the ACLU weighs in on this one. I have some lingering faith in that organization - at least in some cases. My guess is that the ACLU will argue at least that the justification given by the New Jersey Court be expressly repudiated by the United States Supreme Court. Won't that be comfortable for the Democrats?

Whoa! Even Tony Adragna thinks this decision is bad law.

And, of course, there are some alternative theories.

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The Germans' Problem

The Times of London reports [link via Best of the Web]:

GERMANY edged closer to a U-turn on its policy towards Iraq yesterday by making clear that new evidence of President Saddam Hussein’s weapons plans could dilute its resistance to a war.

Leading Social Democrats are starting to open a line of retreat for the Government. They are suggesting that new evidence, beyond the Blair dossier, could bring Germany into line with other European countries.

The problem with all this is that the Social Democrats can't run Germany alone - they don't have a majority in the legislature. So if Herr Schröder wanders too far in this direction he will hit the adamant Green position, which shows no sign of softening:

Joschka Fischer, the Foreign Minister, was yesterday showing no signs of wanting to shift the Government position and was dismissive of Tony Blair’s dossier setting out Iraq’s supposed war plans. “The dossier is being tested, but, on first glance, it seems to just record known facts,” he told Stern magazine. Herr Fischer said that Germany would not take part in a war — “that is a central election promise” — nor contribute to a military presence after an attack on Iraq.

It is highly unlikely that the Greens would remain in the government if the government moves substantially towards the US position. This is because the Greens were re-energized in the last election by the return to the voting booth of many Green voters who had become disaffected by previous Green compromises.

No. There is unlikely to be a further rationalization of the German position until much more has changed. And make no mistake about it: There will be extensive consequences from this election and the attendant acts of the rank stupidity (Bush=Hitler, etc) that seems to have again resumed its periodic permeation of the German mind, consequences very much to Germany's economic and political disadvantage. Boycotts of German goods, which German business is beginning to fear, will eventually be the smallest part of it - in my opinion. Just how stupid do the Germans think they are entitled to be? As I believe Bugs Bunny once said: "They've buttered their bread, now they can sleep in it."
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Our Crummy Media

The Associated Press and New York Times both cover the hearing before the New Jersey Supreme Court about the Democrats' right to name Torricelli's replacement on the ballot. The Times reports, for example: After hearing arguments for about two-and-a-half hours, the state Supreme Court justices adjourned without indicating when they would rule.

That's all very nice. But neither the AP nor the Times report describes anything any Justice said. In two and one half hours did not a single Justice ask not a single question or give not a single indication of a single fact or legal consideration that he or she thought was important?

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If You're Going to Make Federal Case Out of It

According to the New York Times and many others, Republicans have already indicated that if today's New Jersey Supreme Court decision goes against them — and a ruling could come as early as this afternoon — they will appeal it to the United States Supreme Court. A Fox News talking head even predicted last night that the same 5-4 majority of the United States Supreme Court would reverse the New Jersey Court.

Not very likely.

The United States Supreme Court decision in Bush v. Gore was bottomed on two independent arguments: first, part of the majority subscribed to the argument that the Constitution assigned a special role in United States Presidential elections to the state legislature - separately from the state. Without going into details, suffice to say that this argument is specific to Presidential races and would not apply to the New Jersey Senate race.

Some Bush v. Gore majority justices relied on a different "equal protection" argument which terminated the counting on the grounds that given the amount of time left in that case there was no practical way to formulate and conduct a constitutionally fair recount. Since over a month remains before the New Jersy election, it would be a stretch for the Court to find that there is no practical way for New Jersey to conduct a fair election with Lautenberg as the Democratic candidate. Indeed, as pointed out in a prior post, some countries call "snap elections" on less notice than that. Looked at from another perspective: if New Jersey law squarely allowed substitution now, would anyone be arguing that the law was unconstitutional because it would impose an "unfair" election? Of course not.

That means the entire federal case would have to be spun out of the proposition that it is somehow "constitutionally unfair" to change the election laws now - even though the resulting scheme would have been fair if it had been in place previously. That is a weak argument, and, to my knowledge, is not supported by any precedent whatsoever. For such a change to be "constitutionally unfair" it would have to somehow violate the basic principles of American democracy. It's silly to suggest such an inconsistency in this case, where a perfectly good argument can be advanced that the change will actually increase the voters' choice and therefore make things "fairer" and "more consistent" with democratic principles than not changing (or twisting) the law. This is not a "strict scrutiny" case - so the Supreme Court will let it go at that. So there is no federal case worth the name - unless somebody can come up with a federal voting rights statute that supposedly applies, and to my knowledge there is none.

All of which means that the entire matter will turn on New Jersey law, including the power of the Supreme Court of that state to craft free-form "equity" remedies that override statutes. The Supreme Court of New Jersey is, in fact, the appropriate court of last resort for constructions of New Jersey law - not the United States Supreme Court.

There will be no United States Supreme Court reversal.

Of course, the Democrats control both the Governorship and the New Jersey legislature - so they could change the law today. There is no need for an extraordinary New Jersey Supreme Court equity remedy. Under basic principles of equity the New Jersey Supreme Court should not grant any such relief. Also the Democratic Party should be charged with the decision of its nominee, Mr. Torricelli, to remain in the race past the statutory deadline. It is improper and inequitable for the Democratic Party to ask for extraordinary relief from the consequences of its own decision. A hundred other good reasons could be provided to defeat this attempted Democratic burlesque. But all of that is for the New Jersey Supreme Court to decide, not the people in the marble palace at the base of Capitol Hill.

And my guess is that the Democrats will probably win this one - even though not the law, nor the facts, nor equity is on their side. But I'm not taking any bets.

UPDATE: Jacob Levy has some good thoughts on the matter.

FURTHER UPDATE: The argument that this case before the New Jersey Supreme Court is not "about" the political parties, but "about" the right of the voters to have a choice could hardly be more specious. Of course it would be nice for the voters to have a broad choice. It would be nice if everyone who wanted to be on the ballot could be on the ballot. But that is quite properly not allowed by the election laws. Here, the Republicans and various minor parties have complied with those laws and the Democrats have not. The Republican, the Libertarian and Green parties all argued to the New Jersey court against allowing a replacement. This case is very much about "the parties." In particular, it is "about" the right of one particular party - the Democratic Party - to name one of the choices on the ballot even though they have not complied with the law, where other people do not have that right exactly because they have not complied with the law. For example, I repeat my demand to be personally named on that ballot. Of course, I have not complied with the election laws, but neither have the Democrats. Why should the ten or twenty big-shot New Jersey Democrats who have picked Mr. Lautenberg as the "consensus candidate" of the Democratic Party have more power than I do? They are in effect asking the State Supreme Court to declare them a "natural party of New Jersey governance." If the New Jersey Court thinks it has that much power, why doesn't the court just by-pass the election and the legislature entirely and effectively appoint the Senator by naming its favored candidate on each and every ballot line.

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Tuesday, October 01, 2002

Now It's Supposedly Lautenberg!

Maybe the Democrat thinking was that with Thurmond on his way out, the Senate needs a 78 year old junior Senator.

That's OK with me if he runs as a write-in. He's so well known in New Jersey that he shouldn't need the Party line on the ballot if he campaigns effectively.

UPDATE: A talking head on Fox News says write-ins are not practical in New Jersey because of the nature of the voting machines. Talk about political party entrenchment. If this is true, then the legislature and both main parties must have known the system they have created discriminates against write-in candidates. It's loathsome to allow one of those same entrenched parties (here, the Democrats) to appeal to this argument now.

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Bye Bye Pallone

In an extraordinary burst of good judgment Frank Pallone has now reportedly changed his mind, perhaps awakening to a certain "democratic deficit" in his selection? Earlier this afternoon, Mr. Pallone told Governor McGreevey that Pallone would accept the Democratic nomination to fill Bob Torricelli's seat, but an hour later, he backed out of the race. Sources say that he changed his mind at the urging of his wife, Sarah. Perhaps Sarah advised him: "You can do anything you want, Frank, but if you do this YOU ARE OUT OF YOUR FRIGGIN MIND!"

That kind of thing happens, you know. A good spouse is a priceless asset. Perhaps Sarah had reservations about activating a frantic, hostile investigation of every single thing her husband and everyone else in her family and circle of friends has ever done over the last, say, 20 years.

Now former Senator Frank Lautenberg, who recently celebrated his one millionth birthday, is the leading contender.

But an especially droll report has it that: "Other Democrats said that Rep. Rob Andrews, a Camden County Democrat with a $1.3 million warchest, is now receiving increased consideration as a Senate candidate."

So it seems the top New Jersey Democrats are cooing: "O! Representative Andrews! I love your big, muscular, hairy warchest!"

Explain that to the New Jersey Supreme Court!

Gee, if this keeps up, the Democrats may have to run Torricelli. You know, that guy the voters picked in the Democratic primary?

But if that's too disgusting, here's an idea that is probably on the new side for the court-obsessed Democrats: If you don't like the law, and you think you have an argument, why not call the New Jersey Legislature into emergency session TOMORROW to amend the election law to allow you to add your new candidate? THAT'S CALLED REPRESENTATIVE DEMOCRACY!

But maybe the Democratic-controlled Legislature wouldn't want to take that kind of bizarre action so close to an election. Maybe that would make it all too clear that the Democrats are trying to radically change the rules in the middle of the game, which a lot of voters might not like. Better to go to the activist * New Jersey Supreme Court - where they can pretend that they're just getting a judicial interpretation of "existing law."

CORRECTION: * Originaly read "Democrat-appointed." Six of the seven members of the state's Supreme Court, including Chief Justice Deborah T. Poritz, were appointed by Gov. Christine Todd Whitman, a Republican.

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New Jersey Democrats to Pick Pallone!

Wow! Who the heck is Pallone?

He's not Bradley, he's not Lautenberg, he's not any present or former state-wide office holder.

He is described as "the consensus choice" - but this must be a "consensus" of, say, twenty (?) ten (?) insider Democrats. Torricelli, Senate Majority Leader Tom Daschle, Gov. Jim McGreevey, Sen. Jon Corzine, and other powerful Democrats all weighed in. It was so nice of the Democrats to give the doomed-and-ethically-tainted Senator Torricelli a say in choosing his successor after the voters showed they don't trust the Senator - actually think he's a likely crook and a bribe taker. And it's especially generous that Senator Daschle - who isn't even from New Jersey - got a say.

But no actual, ordinary New Jersey voters or ordinary Democrats need trouble themselves, not even for a snap caucus! Other countries hold national elections on a few days' notice - but it was just too much for the Democrats to hold a caucus next week. Better let the big boys do it all.

Now they just need to get the New Jersey Supreme Court (another few Democrats) to tamper with the ballot to get rid of the name of that Torricelli guy the voters picked in the primary just a few weeks ago.

And the voters will have less than five weeks to get educated about a man most of them know nothing about! Wheeeee!

It only took six years in the Senate to show how bad Torricelli's ethics problems were - and he was a long-time congressman. In less than five weeks the voters will have about as much time as it takes to learn his middle name. Wheeeee!

And, best of all, there will be no time for those pesky media types and the Republicans to investigate what's-his-name with the level of scrutiny appropriate to a candidate for the United States Senate. Wheeeee! Wheeeee!
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Regime Change in the Senate III

There has been a lot of chatter in the media, the Blogosphere and across ordinary family dinner tables about how "control of the Senate" hinges on the fate of Senator Torricelli's seat.


But in the frenzy over Senator Torricelli's departure, it is worth keeping in mind that Republican Senator Chaffee of Rhode Island has said that if Republicans took back the majority in the Senate, he would consider leaving the party -- tipping the balance back to the Democrats.

It may be time for Republicans to start some serious negotiations with Senator Chaffee.
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Put My Name on the New Jersey Ballot as the Democratic Nominee

A hilariously dishonest festival of statute-misreading is of course underway in New Jersey. The New York Times, for example, predictably misrepresents the matter as follows:

Title 19 of the New Jersey election law clearly states that if a ballot vacancy occurs 51 days or more before an election, the party may nominate a new candidate. What it does not say, and what lawyers say will be the crux of the coming battle between Democrats and Republicans over Senator Robert G. Torricelli's ballot line on Nov. 5, is what happens when the vacancy occurs 36 days before the election.

What is obviously wrong about this approach is that unless there is affirmative statutory authorization for anyone to put a name on the ballot, there is no right to tamper with a ballot. The New Jersey statute's authorization extends only to 51 days - there is no statutory authorization for the Democratic party to modify the New Jersey ballot after that. So there is no right of the Democratic Party to alter the ballot. Nor has it ever been an accepted principle of fair elections that adding names to a ballot lies within some free-form equity power of any court - including the New Jersey Supreme Court.

So the statute does quite clearly answer the relevant question - contrary to the deliberate misreading the Times makes pari passu with the statute's plain meaning.

If any further argument were needed: Why would the legislature have inserted any number (51? 50? ..36? ... 8? ...2?... 0!) if it wasn't intended to be a cut-off?

I hereby demand that my pseudonym be added to the ballot in lieu of Senator Torricelli's! To what authority can the Democratic Party point that gives it a right superior to mine? Not this statute or any other New Jersey or federal law.

Just how dishonest are the Democrats, the Times, the liberal legal academics interviewed by the Times and the New Jersey courts willing to be to override this statute?

And will the federal courts have to step in, again?

UPDATE: KausFiles pretty much nails the New Jersey election laws and how wildly out of control the New York Times spin on this topic really is.

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Monday, September 30, 2002

What's It All About?

Wondering what the Turkish-uranium incident was really all about?

Well, apparently it's NOT about uranium
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The Passing of the Torch

Reports are circulating that Senate Majority Leader Tom Daschle (who recently campaigned for Robert Torricelli in Trenton, telling voters that, "You can't possibly appreciate the job Torricelli does") and New Jersey Senator Jon Corzine (who at the same time declared that he had "never been prouder to be on a dais as I have this afternoon with the leadership you've got in the state of New Jersey") will jointly propose a novel tribute to the career-end of New Jersey's now-departing senior Senator.

Senator Torricelli's political career was finally extinguished over the weekend by an Eagleton poll showing a 13-point gap, apparently evidence that there are just not - even in New Jersey - as many amoral, totally cynical voters completely obsessed with keeping the Senate in Democratic control to the exclusion of even serious ethical deficiencies in their representative as Mr. Torricelli and the amoral, totally cynical and completely-obsessed-with-keeping-the-Senate-in-Democratic-control-to-the-exclusion-of-even-serious-ethical-deficiencies-in-the-senior-New-Jersey-Senator New York Times had been banking on.

Senators Daschle and Corzine are said to have prepared a joint statement describing their proposed tribute:

"So that Bob Torricelli's Senate career may end with on the same moral note that has characterized it from the outset, the New Jersey Democratic Party will join with the National Democratic Party in making a squalid politicized effort to force the hyper activist New Jersey Supreme Court to annul rather clear New Jersey State Election law and permit the Democratic Party to place another candidate on the ballot in lieu of Mr. Torricelli. We are confident that the ensuing uproar over the degradation of the Court will completely drown out any of the "issues" we purport to wish to become the focus of the remaining few weeks of the campaign. We are also confident that the New Jersey Court will comply with our motion and allow the "Torch" to be passed to the man that a majority of Democratic Poobahs chooses in lieu of the man chosen by primary voters only weeks ago. Of course, we cannot predict who that man will be - since all the bids have not yet been received - but we can say that we don't want to be forced into the kind of degrading "write-in" strategy that Washington, D.C Mayor Williams was forced to resort to when he screwed up his election laws.

Once the new candidate is selected and rubber-stamped by the compliant New Jersey Court, Senator Torricelli's name will formally and ceremonially be removed from the ballot and replaced with the new name. On that date we ask all Americans - from coast to coast - to stand by in their bathrooms and, at exactly midnight on the appointed day, to mark the occasion by simultaneously flushing once or twice while observing a solemn moment of silence. Small paper torches may be lit and dropped in at the same time, if desired. The resulting drop in national water pressure - together with what will then be an ongoing chaos in the courts - will serve as a fitting and touching memorial to mark the end of this great career. We believe this simple and dignified ceremony will help to bring together everyone in the nation, and especially the troubled citizens of New Jersey, at this sensitive but disturbing moment in our nation's history for a true "Hands Across the Waters" experience. Those concerned about the potential for water waste attendant to this ceremony are advised to reserve an appropriate deposit before hand.

May God have mercy on Senator Torricelli as he passes into the unknowable void beyond the Beltway.

United States Senate Majority Leader Tom Daschle
New Jersey Senator Jon Corzine"

UPDATE: Best of the Web notes:

McGreevey, New Jersey's governor, appeared with Torricelli, and the Washington Post's transcript, produced by the error-prone folks at eMediaMillWorks, includes this telling typo in a McGreevey comment: "The Democratic State Committee will petition the New Jersey Supreme Court for the ability to replace Robert toilette's name with another candidate."

Some things are just too good to be made up.

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The Democrats' Continuing Descent Into Madness

The same two loopy Democratic Congressman who embarrassed themselves on television a few days ago are now comforting Saddam from Bagdad. Hanoi Jane had nothing on these guys.

Surely these guys are Republican moles, right? Inserted into the Democratic Party in the Nixon era as a "dirty trick," there to lie in wait pretending to be ultra-liberal Democrats until the critical moment when they could emerge and destroy "their" Party's election prospects.

The Congressman want inspections. But even the U.N. weapons inspectors are now demanding the right to roam freely around Saddam Hussein's palaces and other suspect sites, a demand which Saddam has refused.

Of course, the concept of "inspectors" reliably determining that, say, there are no mobile biological weapons production facilities in Iraq, is grimly hilarious even if the inspectors could roam freely.

Let's see how Mr. Gephardt Op-Ed's this one.
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The Torch goes out.

Good God, another Federal election ends up in the courts over the meaning of State election laws!

UPDATE: Now if only Senator Harkin would show Torricelli's sensitivity ....
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More on Our Relative, the Chimp

Paul Orwin of TurnedUpToEleven posts a very interesting (at least to me) continuation of our discussion regarding the significance of studies purporting to show that chimps and humans have similar genomes (with perhaps 95% to 99% of their DNA in common).

Referring to the proposition that comparable "useful" DNA should have more similarity than "junk" DNA, Professor Orwin, among other interesting things, makes two points:

"1) I was probably understating the case when I called it a "best guess". There have been many efforts to study human and ape genes, and all have borne out the very close relationship. 2). Functionality certainly constrains genome structure, in highly specific ways."

Taking the second question first: of course functionality constrains genome structure. But I don't think that is a correct formulation of the issue. If my questions were put in this form they might look like: "How much does external functionality constrain genome structure compared to internal functionality and other factors?" How can we measure the difference? My questions were: (1) doesn't the 95-99% overlap in non-functional DNA suggest that factors other than external (expressive) functionality may play a major role in determining the structure of this "junk" DNA? (2) In particular, if the "junk" does actually serve some kind of "internal" function, isn't it possible that internal function plays a major role in determining the structure of this "junk."

For example, to look at the simplest case, bacteria have little or no junk in their DNA. Isn't that consistent with a model in which there is no function for "junk" in such a unicellular organism, and that evolutionary pressures have therefore ejected entirely the DNA for which there is no internal structural role (in other words, constrained its "structure" to zero)? After all, I understand that one possible source of "junk" is retroviral insertions - which, I believe, bacteria have to contend with, too. So it's not as if there aren't candidates for "junked up" bacterial strains being produced. They just don't seem to survive.

The link between expressive functionality and genome structure is not, to my knowledge, always so clear as Professor Orwin suggests. For example, there is an immune system receptor common to rodents and humans called CD-32. In rodents it appears to correspond entirely to one gene. But in humans, it corresponds to two genes (CD-32A and CD-32B), but it is my understanding that there are also other ancillary variants of at least CD-32B involved. In this case, there is a lot of difference in genome coding for little or no apparent difference in expressive results (that is, the CD-32 receptor).

I'm not sure what lies between "best guess" (which I already construed as "best guess by an informed, highly competent expert" - and I don't think one generally makes money in Vegas betting against that kind of thing, already) and "scientific fact." But I'll construe this point to mean that Professor Orwin has a high degree of confidence in this guess, and that other experts do, too, and that confidence is probably manifested practically in the direction he and other experts choose for their research. Since to my knowledge nobody has even mapped the chimp genome, I'm not sure how much further one can wisely go at this point, but it's interesting that Professor Orwin is willing to climb out on that particular limb. I am certainly not saying Professor Orwin is wrong, or likely wrong in any of this. My original and continuing focus was on the meaning of the studies that purport to "prove" genome similarities - I don't see any popular articles about what even very good scientists think is probably right, or almost certainly going to turn out to be right, or whatever else may lie between "best guess" and "scientific fact.".

It is certainly well reported in the popular scientific press that various efforts to compare specific human and primate genes have been made, and - at least by the measures described by those researchers - all have borne out very close relationships. Indeed, Professor Orwin cites to one such popular report about a study of the "Y" Chromosome, a report which includes this passage:

The amount of variation in the human Y chromosome, for example, says something about the size of the population from whom we descended. The greater the variety, the larger the starting population must have been. Likewise for the chimpanzees and bonobos. Chimpanzees and bonobos, she found, show significant variety. "I found a ton of variation in chimps and bonobos," she said. Not so with humans, where little variation means we all evolved, recently, from a very small population, a few tens of thousands of individuals less than 200,000 years ago. In that small initial population, the key mutations that made us human could have spread quickly, Stone theorized.

Now, Professor Orwin described this report as a particularly good one supporting his position, but the qualitative language in the above excerpt doesn't seem to have the same confidence he suggests. And while the report does include quotes from the researcher such as: "Chimp and human chromosomes look virtually identical," the details of the report just says the researcher "looked at a stretch of DNA on the Y chromosome," which is hardly enough to determine how extensive the DNA segment studied there actually was. Moreover, the report does not state whether that researcher attempted to isolate a completely "useful;" piece of DNA - although one does get the impression that at least some of the examined DNA was "useful."

What is particularly striking to me about this article is the assertion: "DNA sequences in humans and chimpanzees are more than 99 percent identical .... It is that last 1 percent that makes us human." But as little as 1.5% of all human DNA may be "useful." The Man Without Qualities is not alone in expressing reservations about how meaningful it is to study the "junk": "They say 99 percent of the genome is not genes. I believe it's 3 percent that is genes," said Bill Haseltine, president of Human Genome Sciences.... At any rate, Haseltine believes studying the whole genome is a waste. "It's clear we should focus on genes and not the genome," he said.

In any event, there have been to my knowledge no attempts to simply compare the "useful" DNA of chimps and humans in the aggregate. Indeed, it is my understanding of the current state of molecular genetics that although some pieces of DNA are known to be "useful" there is actually quite a bit to be learned in the area of sorting the "useful" from the "junk." Indeed, there are quite active research efforts underway (including commercial efforts) to find (and patent!) new "useful" DNA concealed within the masses of "junk." So we seem to be rather far from a direct comparision of aggregate "useful" DNA.

I, personally, have difficulty in accepting naked percentages (99% or 95% or whatever) even of "useful" DNA as a very meaningful measure of species similarity. For one thing, as Professor Orwin points out, certain life functions are more basic than others. To use Professor Orwin's example, pretty much every cell in every organism needs to use adenosine tri-phosphate. So why should the presence of the genomic structure that corresponds to the ATP cycle be counted as a very significant point of "similarity" between chimps and humans? The "hedgehog" gene in a fly is considered very similar to the human hedgehog gene, and to the hedgehog gene as it occurs in most animals. Why should that not be a reason for discounting the hedgehog gene as a point of similarity?

If one were to count things like "lights," "desks," "windows," "teachers," "lab hoods," "reagent bottles" and the like at the CalTech biology department one could probably find a very high level of "overlap" with the biology department at "Poly" (the private school that runs through 12th grade down the street from the CalTech department). Would that show that the two biology departments were "very similar"? Isn't there something subtle and different about what goes on in Professor Orwin's head and the heads of his Tech colleagues that gets swamped in all this naive counting ?

Professor Orwin also states:

I think Musil is overstating the case here. In fact, there are tremendous similarities between mouse and human immune systems. Can he name even one "theory" that was "demolished" by the differences?

Well, yes, of course I can. But I'll instead do something which Professor Orwin may find more intriguing: I'll describe a current theory that will soon be demolished in exactly this way. Specifically, there is a "hot" theory stemming from certain assumptions of rodent/human immune system similarities which is hoped in many quarters to have potentially direct application to a certain experimental cancer treatment. That theory will be demolished by a paper soon to be published. The paper will show that instead of the presumed rodent/human similarities at the gene level one species entirely lacks the genes being studied in the other species.

In any event, I hope that Professor Orwin does not find anything I have said above offensive or impertinent. I have been absolutely charmed that he took the time and effort to share his expertise with me, an expertise wildly beyond my own. After all, Professor Orwin could have done what Charles Murtaugh did - link to Professor Orwin and another blog that responded to my original post while refusing to acknowledge my existence, and this although I have permalinked to Charles almost from the inception of this blog. That's fine, everyone has their own view of Blogosphere civility. It's still my best guess that Charles is a wonderful, perfectly charming person.
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The Torch: Going, Going ... Out?
There are reports that Senator Robert Torricelli may drop out of the election. Perhaps as early as today.

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Sunday, September 29, 2002

A Few Second Amendment Thoughts

James Lindgren's article "Fall from Grace: Arming America and the Bellesiles Scandal" does a pretty thorough job of debunking "Arming America," even inverting much of Bellesiles' argument:

If guns were already more common in the eighteenth century than Bellesiles says they were on the eve of the Civil War, then his narrative of how we got from low gun ownership to high gun ownership collapses into the opposite story of a shift from high gun ownership to somewhat lower gun ownership.

But after reading Lindgren's article I found myself asking if there is still a research project to be accomplished there, the one that Bellesiles should have focused on in the first place: Can we determine how widespread was late 18th century and early 19th century ownership of guns of the type used by state militias.- not just of guns. Did ownership of militia-type guns increase over the 19th century.

For example, Professor Lindgren points out at one juncture:

"Bellesiles confuses arms produced at militia musters with arms owned. There were many guns that would have been suitable for shooting birds (“ fowling pieces” ) or vermin, or for hunting larger animals, that would not meet the standards of the day for battle muskets, which were very heavy with extremely long barrels. It is somewhat akin to confusing an M-16 with a shotgun."

As Professor Lindgren also points out (although he is certainly not the first to do so and does not claim to be) as a work of history, Arming America does not directly advocate any gun policies, one argument that emerges from his conclusions is that if guns were not widely owned in the late 18th century and early 19th century, then it is unlikely that gun owning was understood as an individual right in the Second Amendment.

Today, there seems to be a growing belief (if not yet a consensus) that "an individual right in the Second Amendment" may extend only to guns of the type used or potentially used in a militia.

It therefore seems relevant to try to determine historically not just whether ownership of all guns was widespread in the late 18th century and early 19th century. "[G]uns that would have been suitable for shooting birds (“ fowling pieces” ) or vermin, or for hunting larger animals, that would not meet the standards of the day for battle muskets' may not be as relevant in determining whether the Framers of the Second Amendment meant it to create an "individual" or "individual and fundamental" right.

Perhaps such research has already been done, or perhaps it can be extracted from the raw data already accumulated in the process of cleaning up after Bellesiles. There is some suggestion that such extraction may already have been done, as where Professor Lindgren writes:

As to the Providence, Rhode Island, data, Bellesiles has dropped the claim from the hardback edition of Arming America that the guns in the inventories were evaluated is old or broken and now claims that the majority of guns are so low-valued that he reappraises them as old or broken. There are a number of problems with this claim. Most important, historians should not reappraise 300-year old guns that they have never seen based solely on evidence of their monetary value. Bellesiles does not provide a sufficient basis for his reappraisal. He does not reappraise a few very low-valued guns. Rather, he appraises the median-priced gun in Providence as old or broken.The best evidence we have for what a typical gun cost in Providence, Rhode Island, is the very probate data showing that guns cost about one pound. This is consistent with other data, as I show in the next Section. A new military-quality weapon in a time of war might go for two to three times that amount, but that does not mean that an ordinary working gun or fowling piece in a time of peace would go for more than about a pound.

Finally, as to the frontier data on dysfunctional guns, Bellesiles says that they are listed as such. It is not possible to change this claim based on a reappraisal. Of the estates that Heather and I examined, 83-91% of them listed guns that were not described as old or broken.136 This does not, of course, indicate that most of these guns were of military quality or even suitable for battle. Many were undoubtedly fowling pieces, better suited for hunting birds. But this is solid evidence that many Americans owned functioning guns.

In any event, it would be interesting, to me at least, to know if militia-worthy gun ownership was common in late 18th century and early 19th century America.

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