Strengthening Constitutional Self-Government

No Left Turns

The Jewish Rift with the Democratic Party

Representatives John Lewis and Martin Frost address the growing rift between Jewish and Black Democrats in today’s Washington Post. The article establishes the "fact" of the "Jewish-African American partnership" by referring to the group’s common history of oppression. After this somewhat distasteful opening, the article makes a "concession":

Make no mistake, some leaders within our communities -- elected or otherwise -- have differences of opinion, and they deserve respect for the sincere, thoughtful positions they take. They also deserve the freedom to express themselves without being forced to bear the burden of speaking for an entire group.

For instance, some African Americans and Jews have approached recent debates on the Middle East from different perspectives. Of course, there is a long and distinguished tradition of nonviolence in the African American community. Jews should recognize that when some black elected officials advocate a peaceful resolution to the conflict in the Middle East, it does not necessarily make them anti-Israel. And a secure peace is what all of us ultimately want most of all.

This is white-washing of the worst kind. The rift he is referring to has been caused by the likes of Cynthia McKinney and her anti-semitic father. This is not a mere difference of opinion: McKinney sent a letter to Saudi Prince Talal apologizing for the fact that Giuliani returned his gift of $10 million, after Talal suggested that America shared responsibility for the 9/11 terror attacks because its policy toward Israel. One of her aides suggested that Jewish members of Congress should not sit on House International Relations Committee because they have dual loyalties. Then there was her father’s blaming the loss on the J-E-W-S.

Let’s be clear: this is not a mere difference of opinion. This is anti-semitism, and in its face the Democrats have offered a combination of silence and revisionism as artfully illustrated by Lewis and Frost’s article. It should be remembered that Republicans were (and continue to be) blasted as racist because David Duke attempted to run as a Republican, even though the Republican party made clear that there was no place for the ideas or person of Duke in the party. Yet the Democrats believe that they can remain silent and still be the party for Jewish voters. Jewish voters aren’t likely to buy this. Until the Democrats are willing to denounce members in its ranks like Cynthia McKinney, and until they are willing to seriously reassess their policy on the Middle-East, expect the rift to continue.

Mondale: Courting the Young Activists

The Washington Post reports that for Mondale to win in Minnesota, he needs to connect with the young activists who were behind the momentum in the Wellstone campaign. Perhaps that was why he was seen as a rally on Friday night "[w]ith scruffy twenty-somethings hopping up and down . . . awkwardly bobb[ing] his head and tapp[ing] his foot to the thumping rock song he didn’t seem to know."

You can fool some of the people some of the time. If there was any time before the election, this ploy would surely fail. The question is whether Mondale’s pandering to youth will be successful in the few days before the election.

Finland says no to Israel

Finland is refusing to sell to Israel the best gas-detection kits in the world.

Mortality’s Strong Hand

It seems as if the Russians will bury the Chechen terrorists in pigs’ skin. This, according to their Muslim belief, will ensure that they never get to heaven. I guess this is categorized as deterrence. Jonah Goldberg thinks it may be the answer to terrorism.

Mondale, Dead Party Walking

I have been trying to keep up with what Mondale is doing as a candidate. I watch him move around, talk, I even watch his body movements (slight). His person and his campaign is all recycled, all old, all utterly without value and passion. What passion there is--as they used to say twenty years ago--Scandinavian. The man is naturally boring, he just sighs away the days. Whatever vices he used to have at a younger age are now exacerbated. The New Republic had a good critical piece on his acceptance talk, and James Lileks finishes the job. I am thinking that he would lose big if the campaign lasted more than a week; now I am thinking it will be close, but he will lose.

The Bellesiles Case

One of the biggest controversies in the discipline of history in the past year has been the case of Michael Bellesiles’ Arming America. For those who might be unfamiliar with this book, its main thesis argued that guns were rare in the early Republic, and that the modern "gun culture" was invented by the National Rifle Association soon after the Civil War.

The initial reaction of the historical community, as well as the pro-gun control folks, was eager enthusiasm. Finally, it seemed, a major part of the anti-gun control argument--that guns played a key role in early America, and hence to take them away now would be an offense to tradition--had been swept away. But there was one problem: Bellesiles pretty much made the whole thing up. Several dedicated crusaders--particularly part-time amateur historian Clayton Cramer--revealed the awful truth; that the author had misrepresented many of his sources, and completely fabricated others. In any case, the whole, sad story is recounted here.

But the saddest part about l’affaire Bellesiles is that the initial whistle-blowers all came from outside the historical profession. True, some professional historians later joined the chorus, but for the most part historians slobbered all over Bellesiles’ thesis, and met the initial onslaught of Clayton and his allies by circling the wagons. How dare this...this SOFTWARE ENGINEER invade our sanctuary! How dare he challenge someone with a PhD and tenure at a major university! And, of course, there was the inevitable ad hominem--Bellesiles’ critics are part of the [gasp!] GUN LOBBY!

The upshot of all this is that it is clearer than ever that the historical profession is dominated by partisans who are quick to swallow any piece of "scholarship" that seems to back up their political agenda. Furthermore, if there is to be reform, it has to come at least in part from courageous outsiders like Clayton Cramer, who deserves our thanks for turning over this particular rock and exposing the nauseating stuff that lay beneath it.

Now, here’s the good news: a committee appointed by Emory University, Bellesiles’ employer, investigated the situation and has released a report which concludes that the author did, indeed, falsify his evidence. He has since resigned from the university.


OK, control of the Senate and the House may hang on results in a few close races. Sure, preelection shenanigans with absentee ballots, new ballots, and dead candidates may get you muttering about the fate of the Republic.

For an attitude adjustment I recommend the Website for California’s Proposition 49, the Schwartzenegger Initiative. Who doesn’t like a good afterschool program? -- and the picture of Arnold on the masthead is quite "becoming" as Mitt Romney might say.

Don’t miss the limited-edition print of Arnold in full weightlifting pose (and not much else) available to supporters.

My prediction is that this thing passes. Oh yeah, I also think Davis will probably win reelection, and be under indictment within 18 months. I don’t have any special knowledge on this matter -- its just a sense I have that the dam is about to break.

Employed Man to be new Senator from Minnesota?

It looks as if Jesse Ventura will do a great deed on his way out. In large measure because of the way Wellstone’s memorial service was handled he has decided not to appoint a Democrat. He has also made another decision: he will appoint an ordinary citizen to fill the job (whether it’s for one day, a few weeks, or a few months) and he thinks it may well be a man who’s current job is collecting garbage. I don’t think he is kidding, and I am glad of it. I see no reason why such a man wouldn’t do a great job. After all, the current nominee of one party is an unemployed man.

Middle East/U.N.

Charles Krauthammer has a fine column outlining where things are in the U.N. negotiations and reminding us not to go wobbly. And, I note in passing this significant development: Prime Minister Sharon has offered Benjamin Netanyahu the post of Foreign Minister; this is significant whether or not Bibi takes it.

Sabato’s Predictions

Larry Sabato’s
Crystal Ball Predictions
, which are generally pretty accurate, are saying that the Democrats will pick up around five governorships, but only one Senate seat, and are likely to lose three House seats to the GOP.

Is this a pessimistic or an optimistic outlook? Given that the incumbent party almost always takes a beating in midterm elections, I think we’d have to consider those sorts of results to be pretty darned good.

Low Voter Turnout

This is the AP story on the predicted low voter turnout next week. It is, says Curtis Gans, likely to be as low or lower than in 1998 (35.3%). If it is lower it will be the lowest in a non-presidential year since 1942.

In Favor of Optimism

There are a few articles already out in support of my general optimistic disposition about this election. Here is one indicating that Democrats (of course, unnamed) are starting to talk more publicly about what they should have done during the past few months that would have made their party seem less hollow and more principled. And here is another showing that Demo candidates in the South have a chance at victory only if they don’t seem like they’re Democrats; indeed, some of them are trying to run to the right of the GOP candidates.

Double Standard II: Case Proven

I wrote on Monday suggesting that a Republican never would have received the soft treatment given to Alex Sanders, a Democratic candidate in South Carolina, or Max Baucus (D-MT), both of whom made statements or ran ads suggesting that gay values were not the values of their state.

Well the proof is in. California Democratic Chair Art Torres is asking gubernatorial candidate Bill Simon to apologize not for making a statement himself, but for failing to criticize an ad run independently by a county party group which is critical of public schools teaching about gay values.

Before Simon says a word in response, he should ask Torres what he thinks about the statements and advertisements by Sanders and Baucus. Don’t let Torres off the hook by saying "that’s not California"--after all, Torres fancies himself a mover and shaker in the national Democratic party. It is the height of hypocrisy for him to criticize Simon for failing to criticize an ad which was run independently of Simon, when members of his party are advocating the same message directly.

The Cynic

As readers know, Schramm, Hayward and I will be offering our election predictions on Monday, with the one who gets closest to the actual outcome receiving the honor and accolades appropriate to a member of the pundit-class, and all others receiving ignominy and shame. Schramm and Hayward have both given previews of their predictions. Both have mentioned the turnaround in the economy, and suggested that this will help the Republicans.

Those who know me will not be shocked to hear that I have a more cynical view. I am afraid that the economic recovery is not resonating sufficiently to provide a boost for the President yet. Remember, the economy was recovering prior to the ’92 defeat of Bush the elder, yet people still believed that it was the economy stupid. Admittedly, there are differences. Bush the elder ran a lackluster campaign, and the economy was the issue. But don’t underestimate the fact that many Democrats are still running with an emphasis on the economy, despite the fact that we are in a growth period.

Don’t get me wrong, while I am a pessimist, I think that there are several races where Republicans will pull rabbits out of the electoral hats. More on that Monday . . . .

More Prediction warm-up

Hayward makes good points. However (I just love that word!), consider the following.
Bush is very popular. We are in a war (admittedly a strange one, but one is reminded of it everyday in some way). The economy, although wobbly, has not only not tanked but the news has been getting better the last three weeks. The Democrats haven’t been able to pull out any issue (war, Iraq, economy, corporate corruption, etc.) that had sufficient meat and national breadth which could have been used to focus on as an enduring theme. They have had less money to spend. And last, it is now being reported that that this year’s turnout may be the lowest in a non-presidential election in circa sixty years. A lower turnout hurts Democrats more. And because Bush is campaigning hard in strategically based locations and he is sending other big guns out (including his wife to Minnesota) to do the same, and because he is truly popular, his involvement might mean as much as three points in key races. In other words, GOP turnout will be abnormally high. And, I repeat a point made yesterday: the Democrats seem to be worried and scrambling more than they ought to be. Yet, having said all that, I admit that the critical Senate races will be close. The House will not be.

Prediction warm-up

According to which political scientist or politician you listen to, mid-term elections are a referendum on the party in the White House, or, as Tip O’ Neill had it, "all politics is are local." Neither of these are quite right for thinking about this election.

I came to this view afer reading a 20 year old article by Pat Caddell, whose polling expertise should not be slighted even if his opinions are often loopy. He wrote in 1981 that there is always a small segment of voters who move away from seeing an election as a candidate versus candidate situation, and see the election as a referendum type situation instead. If enough of these voters move as a block in one direction, a large swing occurs, such as happened in 1980 and again in 1994 for the Republicans. It may have happened in a small way in 1998, when Republicans lost across the board after reasonably expecting modest gains.

It is hard to read the tea leaves for next Tuesday with this possibility in mind. But the case for Republican pessimism is stronger than the case for optimism. The economy is a source of anxiety, though polls show this close as between which party would do a better job. The Iraq issue is supposed to help Republicans, but I have some naggng doubts; I think a lot of swing voters may be nervous about the issue--many people tend to be skittish about war until the shooting actually starts. Iraq might actually cut against Republicans with a few voters who think that it would be good to have more Democrats as a check on Bush. (Never underestimate the cognitive dissonance of the American voter, is a useful maxim to keep in mind.) These voters might make the difference in a few close races.

So the interesting question to watch is whether there will be a discernable and directional referendum phenomenon at work in this election. Despite the intensity of the two parties, it is hard to pick up right now. But then, it didn’t show up in the 1980 and 1994 elections until the last 72 hours or so, and it never showed up ahead of time at all in 1998.

Stay tuned for Monday’s predictions. . .

Floridization of the Nation

George Will has a punchy column that ties the Democratic Party’s mode and disposition in a nice bundle; how you should look at the Wellstone rally, the now permanent fixture of post-election litigation, and generally looking at laws as nothing more than suggestions. And Andrew Sullivan adds that the Demos in turning the memorial service into a farce revealed that "partisanship as the reason for living" is their only principle. And Peggy Noonan’s article (she has Wellstone write a memo to Democrats) is very good in showing the same problem.

How Not to Solve the Judicial Impasse

E.J. Dionne writes an op-ed in today’s Washington Post critical of President Bush’s proposal to expedite to judicial confirmations. This is not news. What is interesting is Dionne’s recommendation for solving the problem:

Ending the judicial impasse would require Bush and the Democrats to agree that this moment requires a thoughtful balance in the judiciary, and it could be easily achieved. The two sides could agree on balanced slates of highly qualified and respected judges representing strong and opposing points of view, or they could jointly agree on moderate candidates known for good sense and restraint.

The first question is why this this ideological balanced slate of judges is necessary? No such requirement was imposed upon the liberal judges of the 70s, or the conservative judges of the 80s. Rather than requiring ideological balance, the confirmation process has generally permitted the President to appoint judges of his choosing. The Senate generally reserved their fire for what they thought to be particularly questionable candidates. But what we have seen with the current Judiciary Committee is unparalleled: an unmitigated attempt to stop every possible nominee, all the way down to the lowest steps of the judiciary. The rancor over appellate judges is also unprecedented. And yet, for Dionne, the proper response is for the President to take a step back and do what no other President has done: change the Senatorial "advise" function into something roughly equivalent with a co-nominating function. Rather than attempting to alter the historical process, perhaps he should take solace in it: after all, if history in the form of Justices Brennan, Blackmun, Stevens, and Souter has taught us anything, it is that Republican presidents aren’t that great at picking "conservative" judges.

The second question is who is to define who is to define the ideology of the judges. If you listen to Charles Schumer, anyone who doesn’t agree with NARAL and the Democratic party platform is "out of the mainstream" or a rabid conservative. Even liberal scholars like Cass Sunstein have the audacity to say that there are no liberals on the Supreme Court today--and this despite the fact that Ginsburg had previously been an activist for the ACLU.

Indeed, a strong argument could be made that many of Bush’s judicial picks already meet the moderate standard. Justice Owens, for example, is not seen as a carbon-copy of Scalia, and yet that is how she was portrayed by the committee. Miguel Estrada joined with the National Organization of Women in a case suggesting punitive damages for abortion protesters, and yet he is villified as "the Hispanic Clarence Thomas." The bottom line is that a requirement to appoint moderates is silly, because the term is too subject to manipulation.

The third question is whether Dionne really would be willing to stick with the system he has outlined in the future. Clinton had two appointments to the Supreme Court, and nominated two solidly liberal votes. If this were to happen again, would Dionne really be satisfied with two moderates, or with one liberal and one conservative? What if the balance of the Supreme Court were on the line, and a solid liberal were appointed first, and now it was time for the conservative appointment. Do you really think that Dionne and a Democratic president would abide by such a system when NOW activists were marching outside their doors?

Perhaps I am too cynical, or perhaps I just think that we should stick with the historical system: Let the President choose, and let the Senate actually vote up or down nominees. That’s how we’ll solve the impasse.

Minnesota Court Decides Ballot Challenge

The Minnesota Supreme Court yesterday issued an order in response to the DFL’s challenge to balloting procedures in the wake of Senator Paul Wellstone’s death. In addition to finding that supplemental ballots for the physical polls must be produced listing Mondale as the DFL candidate (which was not in dispute), the court found that voters who have already cast absentee ballots should be able to request a new ballot, either by mail or in person. The court also ruled that if two absentee ballots are submitted, the later should count. The court also clarified that if only the original absentee ballot is received, it should be counted "in the same manner as if the vacancy had not occurred."

There has been some confusion about what this ruling means. Pointing to one of the ambiguities, Howard Bashman’s excellent blog "How Appealing" asks the question of whether the court’s language about counting non-substituted ballots "as if the vacancy had not occurred" means that these votes will be counted for Mondale. First, the language regarding counting the Wellstone absentee ballots in the absence of a replacement ballot is taken directly from Minnesota statute section 204B.41. Simply put, this means that if a voter does not replace their previously mailed ballot, a vote for Wellstone will count as a vote for Wellstone, and not for Mondale, because Wellstone was the candidate if the vacancy did not occur. This is consistent with ordinary voter law: we don’t let parties change people’s votes. While Minnesota law permits a party to replace its candidate on the ballot due to extraordinary circumstances, voting law presumes that a voter selects a candidate, and not a party. Even under the loosest conceptions of voter intent, a voting official cannot presume that a vote for one candidate is functionally equivalent to a vote for any candidate of that same party. In this respect, the Minnesota Supreme Court’s decision is consistent with Minnesota law and with general principles of election law.

Second, the court basically split the baby with regard to issuing new ballots. The court required elections officials to provide new ballots either via mail or in person for voters who have already cast an absentee ballot. By limiting the requirement to those who have already cast a vote, the court tacitly recognized that those who have yet to return their ballot may simply write-in Mondale (keeping in mind that there is not an unmitigated constitutional right to appear on the ballot).

This was far less than the Democrats sought in the case. The DFL wanted the court to require elections officials to produce a complete new set of absentee ballots (which is expressly contrary to the requirements of Minnesota election law), and they also sought to make the ballots available via email and the internet. The court rejected this option (wisely, considering the large probability of fraud with such untested methods), and stuck with either in person delivery or good ol’ fashioned snail mail. The court did not alter the Minnesota elecation day deadline for receipt of the ballots, however, and therefore the use of snail mail may be a poor option for those who wish to assure that their vote is received by the deadline. This will tend to mean that those seeking to change their absentee votes will need to show up in person to request and return their ballot to assure that it is received in time.

Just call me Mrs. Megatech

That’s what I am for Halloween. Mrs. Megatech.

What has happened to Halloween? The Wall Street Journal reports that sales related to Halloween may become Christmas-like. Meanwhile, my daughter’s pre-school doesn’t allow costumes on Halloween. (It makes things difficult, I’m told). Dismally, we received only a handful of trick-or-treaters tonight. But it appears adult halloween festivities are bigger than ever. What does it mean when a kid’s holiday that playfully invokes spooks and witches and the forces of evil becomes a grown-up holiday, involving participants who -- shall we say -- should know better?


Nanotechnology? Isn’t this the sport where the guys in lab coats stand around and brag, "Mine’s smaller"?


Glen Reynolds has a piece in favor of nanotechnology, with some good links in the article. A number of "green" types are coming out against it. Remarkable stuff. Worth paying attention to.

Endorsing the Dead

While eating an early lunch, I perused one of my favorite sites on the web: the Barbra Streisand web page. If you haven’t discovered it yet, you have to give it a look--it’s like buttah. It is one of the best comedy sites on the web, and the fact that she thinks it offers serious political commentary makes it all the more amusing. If you needed any more reason to visit, she has posted her election endorsements. My personal favorite is Patsy Mink for Hawaii. Babs even puts (deceased) after her name. Given that endorsement, the actress/singer/activist/fundraiser/polical hack must really be torn about who to endorse in Minnesota.

Democrat Panic

I’ll start going out on a limb now, even though I will not make my detailed predictions on the elections until Monday. I believe that the Wellstone political rally/memorial hurt Democrats. Before the event I had a hunch that it could backfire on them, if badly handled. It was badly handled. They know it, even Dan Rather knows it. Jesse Ventura knows it, and he said it most clearly: "The Democrats ought to be ashamed of themselves." The American people now know it. At least Wellstone’s campaign manager has apologized. This will help them to nationalize the elections, but not to their advantage, not in the way they had hoped. It will not help them bring out the vote in any other state, maybe not even in Minnesota. And it will have the effect of bringing out the GOP vote, and even some independents. And in Minnesota they will now send out that great campaigner Walter Mondale to make a go of it and I hope he will bring his beef with him. I think Mondale only has a fifty-fifty shot at winning. See this recounting by Howard Kurtz for some details. All this shows how tough the Democrats are, and how hollow at the core. They are interested only in winning elections, the purpose for the victories no longer matter. Everyone is seeing this. Take a look at these two pieces on these issues, one by Jonah Goldberg and the other by Robert Novak.

Now for my hunches. I am climbing out on the limb. There, I am on it. One, The Republicans will retain the House. They may even gain two or three seats. Needless to say (given the historic losses by the party not holding the White House in off year elections) this will have to be seen to be a massive defeat for the Democrats. Two, The GOP will take back the Senate, barely. You can start sawing off the limb, if you like, but I think I’m right. (I’ll give you the details on Monday). I think I’m right because the only thing that would save the hollow-at-the-core Democratic Party in this election is a great Demo turnout. And I see no sign of that. They are now talking about just holding their own. Drudge reports that McAuliffe is already in trouble. I am smelling panic among the Democratic operatives as I am smelling the need for immediate cash. They are now playing defense, but you can only win if you play offense. Oh, yes, one more thing: The economy raced ahead at a 3.1% annual rate during the third quarter, and I predict that the market will be up for the third straight week in a row.

Haitian Hijinks

Recent efforts by the Democrats to make a political issue out of the arrival of Haitian refugees in Florida is perhaps the most disgusting in a series of desperate maneuvers in this campaign. Democratic accusations of a "double standard"--one set of rules for Cuban emigres and another for Haitians--is a transparent attempt to mobilize the African-American vote next week.

There is, of course, a critical difference between Cuban refugees and Haitian ones--the former are fleeing a tyrannical communist regime that the United States does not even recognize, while the latter are coming from a country ruled by a democratic regime; in fact, one that the Clinton administration helped to keep in power. Simply put, Cubans arrive on our shores as political refugees seeking asylum; the most recent group of Haitians arrived as illegal immigrants, not fundamentally different from those who cross the Mexican border every day.

This morning on Fox and Friends, a representative of the Democratic National Committee clearly admitted the motive behind this. Asked what the fallout from this issue will be, she confidently predicted that Florida governor Jeb Bush would be defeated. This, of course, would reflect badly on the President, "if he can’t even get his own brother reelected." Is it too much to hope that Florida’s African-American community will see through this obvious ploy?

Gerontocracy III

No sooner do I declaim about the senescence of the Democratic Party than, a few days after my 44th birthday, I receive my first AARP membership card in the mail. Haven’t they heard that people are living longer now?

My AEI colleague Michael Greve helpfully suggests that AARP really stands for "Angry Advocates for Rapacious Pensioners." Next to "Anti-Christian Litigation Unit" for the ACLU, this is one of the most accurate alternate descriptions around. We should use it widely.

Gerontocracy II: The New, Old Left

Of course, it is not just the return of old players, but "old" left ideas. Even Maureen Dowd, in between her rants about Rumsfeld, has noted the change:

Even though the Congressional leadership went along with the White House on the Iraq war, the Democrats have still been painted as the wimpy McGovernite party.

And now, with Walter Mondale and Jimmy Carter back at center stage, and with the Democrats beatifying the far-left Paul Wellstone as a way of holding on to the Senate, the ghosts of the A.F.L.-C.I.O.-E.R.A. are supposed to save the party?

The real Reagan made mincemeat of Mr. Carter and Mr. Mondale, casting them as girly-boys who lacked the swagger necessary to lead the world.

But Dowd mistakes when the tranformation occurred. As a particularly perceptive reader of noleftturns pointed out in an email, the shift in Democratic politics began with Gore’s disavowing the "New Democrat" policies and labels of Clinton in favor of a decidedly more populist message.

Dowd is right though: the Democrats took a beating when they espoused these policies before. In a world where people are again concerned with national security, the shift to the old line appeasement is likely to lead to similar results for the Democrats. Oh well, out with the new, in with the old.

Free Speech That Gives You the Munchies

The New York Times today praises the recent decision of the Ninth Circuit holding that the Federal government cannot prevent doctors from recommending marijuana to their patients, because these restrictions violate the free speech rights of doctors.

It is first worth noting that the op-ed page at the NY Times should really take the time to run their articles past someone with a law degree. O.K., that’s too much to ask. They should at least run them past a regular viewer of Law & Order. Take for example this statement:

The ruling gives new life to the medical marijuana initiative, also known as Proposition 215, which California voters passed in 1996. The law permits seriously ill people to use marijuana on the advice of their physicians, and it says that doctors may not be punished for recommending marijuana to their patients.

Those familiar with the law will recognize this as an overstatement. Last year, the Supreme Court found in analyzing claims brought incidental to Prop. 215 that there is no medical exception to the federal law’s prohibition on manufacturing and distributing marijuana. Thus, under the "new life" of the 9th Circuit’s ruling, a doctor may generally recommend toking, but the pharmacy may not sell it. In fact, if the doctor recommends a "distributor," he could likely be prosecuted for conspiracy to distribute illegal narcotics--something which even the Ninth Circuit opinion entertains. Indeed, the Ninth Circuit recognizes that giving a prescription for the drug would violate federal law. The most a doctor may do is recommend generally marijuana.

More interesting to me is the fact that the NY Times continues its cafeteria-style approach to the First Amendment. It doesn’t like campaign speech (unless of course the campaign speech is by the press--that is sacrosanct), so the First Amendment really doesn’t apply there. It likes liberalized drug policy, so the First Amendment is "core" there. You can fault them for being inconsistent in their legal theory at the Times, but not in the liberal rhetoric.


Is it just me, or is the Democratic party lineup coming to look like the Kremlin in its terminal stages, where the old guys had to lean against each other to stand up atop the Lenin wall during the military parades? Maybe the Democrats have suddenly taken to Thurmond-env

It is hard to predict what may happen next. Back before the 2000 election, it was said that if the Senate ended up tied, the Thurmond death watch would start. Who knew that control of the Senate would hang not on Thurmond’s physical health, but Jeffords’ mental health.

It is hard to believe that Mondale intends to serve a complete six year term if he wins, but the Republican candidate for governor in Minnesota, Tim Pawlenty, is leading in the polls, so Mondale may have to tough it out.

Will Mondale still declare himself to be the candidate of "the sad" as he did in 1984? Inquiring minds want to know.

Money and Politics II

The Republicans do have more small ($1000) donors than do the Democrats. This is attributed at least in part to extraordinary efforts at donor list development. While the Republicans have been known to raise more hard and soft money than the Democrats, as a general rule soft money constitutes a larger percentage of the Democrats overall funds--that is, soft money is arguably more important to the Democrats.

As for the impact of the "reform" legislation on the Democratic party, the immediate result is that any soft money the Democrats have on hand will need to be refunded after the elections, or the law requires that it be "disgorged" to the federal government by the end of the year.

The second result is that the fundraising efforts which currently direct soft money to parties will be used to direct funds to certain advocacy groups (most likely 501(c)(4)s, which are non-profits that can lobby). Members of Congress are permitted under the reform bill to do some fundraising for these groups--a concession the black caucus and the NAACP received in order to get their support for the bill. While the law places the same onerous restrictions on advertisements run within 60 days of a campaign on these 501(c)(4)s, no one believes that this part of the bill will survive judicial review. That means that 501(c)(4)s are very strong in the new reform world, and parties become much weaker.

Money and Politics

I would like clarification of something. The New York Times reports today that the GOP has raised about $190 million in this election cycle (mostly hard money) and the Demos about $130 million (mostly soft money). Two questions: 1) does this mean that the GOP raises a lot from small donors, while the Demos raise a lot from big donors? 2) What will this mean for the Demos after the so-called reforms kick in the day after the election? Will not the Demos be massively disadvantaged by the new law? Somebody explain this to me. Simply, clearly, please, I teach theory.

Johnny Cochran’s Threat Against NFL

There is some clarity in racial matters in the sports world. Cochran threatens to sue the NFL because there aren’t enough black head coaches. Note the response of the head of the NFL Player’s Association, and especially the response of Jim Irsay, the owners of the Colts: "I have a (black) head coach and, I can tell you, he got his job because he is a tremendous football coach. Ours was not a decision based on skin color, that’s for sure." Good for Irsay, and good for Tony Dungy (the Colts’ Head Coach).

Huck and Jim and Sensitivity Training

In Portland, Oregon, it is demanded by some that if a teacher wants to read Huckleberry Finn he should do so only after "on-going" sensitivity training.
I find all this amazing considering the true greatness of the book, especially as it relates to blacks and whites. In his great lecture entitled "What Would America be Without Blacks?", Ralph Ellison said: "without the presence of blacks, the book could not have been written. No Huck and Jim, no American novel as we know it. For not only is the black man a co-creator of the language that Mark Twain raised to the level of literary eloquence, but Jim’s condition as American and Huck’s commitment to freedom are at the moral center of the novel."

Blacks Identify Less with Democrats

This is an interesting survey showing that now 10% of blacks identify themselves with the GOP (it was 4% two years ago) and 63% identify themselves as Demos (it was 74% two years ago). Jesse Jackson’s approval rating is now 60% (it was 83% two years ago) and Colin Powell’s approval rating is 73% (only Clinton is higher). Also note this massive fact that is mentioned only in passing in the article: The shift in Black attitudes is driven by the 36 and younger crowd! The article claims that all this will have no effect on next weeks’ election. Oh, really, but the two hundred or so geriatric liberals (see below) deciding to vote in order to honor Wellstone will? Pleeease!

Wellstone Effect to Help with Turnout?

This is from a Minnesota paper. Aside from being useful for quickly running through the latest polls (who’s up and who’s down) it is significant because it reports that now Democrats hope that the Wellstone rally might get a "few hundred additional votes from old liberals stunned back into political activism" and those votes might be enough (according to Zogby) because the Senate elections will be so close. I don’t buy it. I don’t believe that a few hundred ancient liberals are going to determine whether or not the Senate stays in Democratic hands. The pollsters are covering their you-know-what by claiming that everything is oh-so-close that we can’t call anything. This is shameful. These pollsters are paid for guessing and they can’t even do that. But I will take some very unscientific guesses soon, and I am betting that my batting average will prove better. For example, this poll from the same MN paper says that the numbers haven’t changed on Mondale-Coleman since the last polls when it Coleman vs. Wellstone. Well, I am betting that Mondale will not go up, will not get above fifty percent by Sunday, and that Coleman will hover around 47-49 percent by Sunday. And then how will we guess? Will the two hundred geriatric liberals (is that Mondale’s extended family?) make the difference?

Fallout From the Wellstone Funeral

AP reports that Governor Ventura has decided to appoint an independent to fill Wellstone’s seat until election day. This reversal from his previous decision to appoint a Democrat was caused by the partisan tone of Wellstone’s funeral, which offended his wife so much that it drove her to tears and caused the Governor to walk out. This suggests that Schramm may be on to something with his theory that the partisan funeral will cause a backlash.

Election Law Commentary on "The Corner"

Have I mentioned how much I agree with "The Corner’s" new election law commentator?

Doctors Take the Capitol

While getting my morning bagel, I was surprised to see a large gathering of doctors on the Ohio State Capitol grounds. Apparently, they are there to lobby the legislature to cap malpractice claims. That seems reasonable. That said, several of the doctors almost forcibly removed my spleen (better that than some alternatives I suppose) before I explained that I am not a plaintiffs’ lawyer.

Wellstone Funeral/Campaign Rally

An addition to Robert’s previous posting. I saw some of this on C-Span. I thought the thing was appalling. This was not a funeral it was a campaign rally, and highly inappropriate. Even liberal commentators have noticed this. William Saletan says that there was "creepy arrogance" about some (almost all, I would say) of the speakers. Howard Kurtz also notes this (more even handedly) and has some useful links that give a fuller picture of the event and the Demos use of Wellstone to "nationalize" the election. I have a feeling this will backfire on Mondale and the Democrats. At the least, the event has really energized Minnesota Republicans. We’ll pay attention to the polls.

Honoring the Memory

For days, the Republicans have been chided for any attempts to do polling or conduct anything approaching election activity in Minnesota, because this was disrespectful to the memory of Paul Wellstone. Any political activity should wait, at the very least, until after his memorial service.

Well, Wellstone’s memorial service was last evening, and from what I can tell, honoring Wellstone’s memory functionally meant holding a campaign rally. The Star Tribune reports that the event was "acidly partisan." When Harkin took the stage, "the crowd cheered as if for a star’s return to a basketball game." Mondale was greeted to chants of "Fritz, Fritz, Fritz." And Trent Lott entered to, oh yes, boos.

In case there was any question left in people’s mind, Rick Kahn, one of Wellstone’s friends, urged the crowd to help win the Senate race for Paul Wellstone. He also urged Republicans to drop their "partisanship" and work for Wellstone’s reelection.

So keep in mind, partisanship honors the memory of Wellstone if it is done by Democrats, but partisan activity is unseemly and disrespectful to Wellstone if it is carried out by Republicans.

French Supports War . . . on Fat?

The New York Times reports that McDonald’s France ran an "advertorial" in the magazine Femme Actuelle, stating that children should not eat McDonald’s food more than once per week. McDonald’s U.S.A. disagreed with the advertorial, but not before the lawyers involved in lawsuits against the fast-food industry could follow the example of so many tyrants past and present and offer their thanks to France.

One wonders what possessed McDonald’s France to run these ads. Is the alternative to McDonald’s in France that much healthier? No, no, don’t eat a hamburger. Go home (or to a non-fast food restaurant), and enjoy some vegetables (covered in hollandaise), or a nice lean cut of meat (covered in bernaise sauce), or if all else fails, just gnaw a stick of butter.

New Jersey, Part II?

A lawsuit was filed yesterday in Minnesota by the Democrats seeking to force the state to mail out new absentee ballots. The Minnesota Supreme Court is scheduled to hear the matter tomorrow. It will be interesting to see if the party is seeking to force the state to use overnight mail to send the new ballots, or whether the election should simply be extended for a month or so to permit the ballots to get to the voters and back to the election officials.

Those Radical Conservative Judges

I failed to mention in the last posting on the Hobbs Act that Judge Garza voted to affirm the conviction and to uphold the Hobbs Act. This is interesting because Garza dissented in the 1999 Hickman case, which raised a nearly identical challenge to the Hobbs Act. Garza is considered to be on the short list of potential Bush nominees to the Supreme Court.

Like Ted Kennedy Doing an Interview In Front of a Bridge

Imus reports that Minnesota Senate candidate Norm Coleman did an interview for the Today show standing in front of an airplane--a very strange move given the tragic events of this past week. As Imus’s sidekick Bernard said, this makes about as much sense as Ted Kennedy doing an interview in front of a bridge.

Hobbs Act Unconstitutional?

Yesterday the Justice Department filed charges against the sniper suspects under the Hobbs Act, which prohibits obstructing commerce by extortion or threatened physical violence. On Monday, the Fifth Circuit Court of Appeals split evenly (8-8) over whether the Hobbs Act was unconstitutional in light of recent Supreme Court opinions which more appropriately limit congressional power under the commerce clause. Because the court split evenly, the lower court’s decision upholding the prosecution for local robberies under the act was upheld. Notably, the eight justices voting to affirm did not write an opinion, a move that was rightly criticized by Judge Edith Jones. The case will likely be appealed to the U.S. Supreme Court from here. While the Court has taken a strong interest in commerce clause cases, my bet is that they are unlikely to take this one unless a circuit split (that is, unless another federal circuit issues a conflicting ruling) develops.


Does lightning strike twice? No.

In New Jersey, a political insider convicted of related crimes informs on an elected official in a sealed proffer. The sealed document is released, and Bob Torricelli decides it is time to spend more time with his family.

In California, a political insider convicted of related crimes informs on an elected official, and when the court released the document we hear . . . what? Gray Davis soldiers on.

Why the difference? Is it the time zone? It can’t be that Bill Simon’s a less impressive candidate than Doug Forrester. If the poll numbers had cratered for Davis like Torricelli, would he have decided to take a break? If Nathanson had bought carpets and suits for Davis, instead of (allegedly) conspiring with him to shake down developers, would that have made a difference?

The SF Chronicle’s article on the release of Mark Nathanson’s letter is here. N.B. In both cases, prosecutors apparently chose not to pursue because the declarant was "unreliable."

Bye, bye, Chad?

The President signed the election reform bill today.

Washington Post Story.

As I understand it, the bill contains provisions for ID checks, and that’s great. But the major focus in the press is of course on the ballot requirements, and the whole Florida 2000 mess.

I like fairness and certainty as much as the next guy, but I’m not sure buckets of tax dollars for voting computers and training will do the trick. I can foresee in rural areas, where the clerk’s office (and its technicians) is some distance from the precinct that election administration might be smoother and fairer if the jurisdiction remained with punch cards. I administered a precinct with punch cards once, and our voters, accustomed to the routine, did just fine. In fact, since most of the precinct captains I know about are members of Our Greatest Generation, with perhaps more than a little antipathy for computers anyway, unnecessary conversion to computers may create more problems than it solves.

The Wellstone Effect

Gore invokes his name in Maine, Daschle in Iowa claims a "new chemistry" has been created by his death and there is "so much more energy than there was two or three weeks ago" and this will mean Democratic gains next week. And the Wellstone effect continues. All the while Demos are saying that Republicans (especially in Minnesota) cannot start campaigning against Mondale because that would be unseemly.

Bush in Free Fall?

Dick Morris claims that Bush’s popularity is in free fall, the Democrats have succeeded in nationalizing the election to their advantage, and implies that the last time things were this bad for a sitting president is 1994. You read the bad news yourself, it’s short enough. I don’t agree, and I’ll have more to say on these matters later.

The King Is Dead: Long Live Fox

The L.A. Times reports that Larry King Live, CNN’s top-rate show, fell in the ratings to Fox’s Hannity & Colmes. This dropped LKL to fourth place among primetime cable news programs, with Fox claiming the top three spots.

Maybe John Madden Is on to Something

The AP reports that a plane carrying Senators Lott, Santorum, and Fitzgerald to a scheduled event in Missouri was forced to land in Alabama after reporting landing gear problems. This comes days after a tragic plane crash claimed the life of Senator Paul Wellstone, and almost two years after a plane crash claimed Senate candidate Mel Carnahan. If you are in the United States Senate, John Madden’s bus has to look pretty good about now.

Bribes for Peace

Everyone’s favorite America-hater, Nicholas Kristof, writes today about the threat from North Korea. He argues that even sanctions will only lead to escalation. He quotes from an unofficial North Korean spokesman, who said that if we attacked the nuclear reactor at Yongbyon, "North Korea will retaliate immediately on New York and Washington, wipe out South Korea, wipe out Japan." It was ever so good of Kristof to tell the spokesman that he was in New York, garnering the concession of Chicago as an alternate target.

Thus for Kristof, the only solution is to cut a deal with North Korea. The deal would be essentially the same one outlined by Carter over the weekend, including elimination of the nuclear weapons program and peace talks with S. Korea in exchange for normalized relations with the West. But once again he like Carter fails to take into account the harsh realities of the situation: the North Koreans said that they wouldn’t build nuclear weapons if we just bribed them before. We put in nominal inspection, and they built the program anyway. No continuing system of bribes for peace is going to be sufficient. There will have to be real security measures--and real security measures mean having a gaggle of inspectors with free reign to go anywhere at any time. Neither Carter nor Kristof talk about how the nonproliferation is going to be enforced, presumably because they know that Kim Jong Il is going to fight any measure with teeth. Until they are willing to confront the tough issue of enforcement, their suggestions should be taken for what they are: at best fanciful hopes, and at worst the irresponsible enabling of tyrants.

Al Qaeda’s New Leadership

The Washington Post reports that recent Al Qaeda terror attacks and plots in Bali, Tunisia, and Singapore are being directed by six veterans of the terrorist organization who have risen to power in the absence of Bin Laden and his chief lieutenants. Worth a read.

Low Voter Turnout

An article in the Washington Post today suggests that there is not a coherent national issue driving voters this term. Rather, voters are concerned about numerous issues, including the economy, terrorism, and the possible war with Iraq. This really isn’t news. What is interesting, however, is reading the quotes from voters they interviewed, which suggested a low-level of voter enthusiasm. This is confirmed by Republican pollster Ed Goeas, who notes that polls show only around 65% of registered voters saying that they are "extremely likely" to vote, compared with the normal level of the high 70s for this time of the election year.

All this points to low voter turnout, and that means that it is anyone’s game. When there is low voter turnout, a highly mobilized constituency can be the difference in key elections. The push for the parties will then be get-out-the-vote activities. Look for heavy union activities in the days leading into elections, including perhaps a repeat of the practice of giving union members election day off to vote.

Assassination in Jordan

An American diplomat was gunned down in his driveway in Amman Jordan yesterday. The New York Times suggests that this was connected to the recent string of terror attacks in the middle east which have targeted Americans.

Triggerman Requirement

Fox News this morning interviewed the Bob Cleary, the unabomber prosecutor. Cleary noted that a major problem for the prosecution will be proving who pulled the trigger in each incident, given that some states (like Virginia) do not permit capital sentences for accomplices. The solution may be to go to a state like Alabama, which has law permitting capital punishment for accomplices to intentional murder.

The Aging Democratic Party

A call yesterday from a reporter from the Los Angeles Times led me to thinking about something. She wanted to know if I thought that both the Lautenberg and Mondale replacements indicated whether or not the "boomers" are being replaced or disowned in politics. Are the old folks making a comeback? I thought about it for a while and thought the question was badly put. The real question is: What does it mean for the Democratic Party when two guys in the mid-seventies are being seen as the heroes of this election, of pulling the party’s chestnuts out of the fire, of keeping the Senate in Democratic hands? This is especially odd, I argued, given that Clinton was a boomer (and played up his youth), claimed to be a moderate who overcame the post-McGovern leftward tilt of the party, and therefore was the only Demo president re-elected to a second term since FDR. In short, he was a successful president (from the Demo point of view). Now, in their attempt to win an election (and hold the Senate) the Demos are going backwards. They are already in the process of nationalizing the election by using the tragedy of Wellstone’s death as a replacement for a political philosophy that they have been disowning. Wellstone was on the fringes of the party. Yet, in being used as a symbol, his left wing political ideology is being revivified. They are saying "let’s win this for Wellstone." Well, this clarion call may prove to be successful in the short term, but it will have bad long term consequences for the Democrats. They are on their way toward re-defining their party as more liberal, they are on their way toward justifying the left-wingers in the party, the very thing they have been trying to overcome--with success--over the last twenty years. Also, what will happen to those younger and ambitious Democrats who are trying to climb up the ladder by following in the supposed Clinton moderate mode? This could become very interesting. Especially if they are successful in holding the Senate--and it is almost inevitable that the old gezeers get the credit--there will be an open ideological battle within the party that 1) the new turks will end up losing, yet the old liberal-left cannot end up winning and, therefore, 2) the Clintons (plural) will end up dominating. This will almost certainly insure that Hillary becomes the nominee in 2008. She will be seen as the center.

Muhammed Tied to Synagogue Shooting

The AP reports that John Muhammad has been tied to a murder in the state of Washington and to a shooting at a synagogue. This should surprise no one.

More Political Endorsements

The Washington Post today announced its endorsement of Anthony Wiliams for another term as DC mayor. I’m sure that Frasier star Kelsey Grammer, British Prime Minister Tony Blair, and U.N. Secretary General Kofi Annan, who joined hundreds of other people who had their names forged on Mr. William’s nomination petitions, will be pleased to hear about the endorsement.

Alabama Offers the Toughest Death Penalty Law

The AP reports today that the states involved in the sniper shooting are vying to demonstrate which has the toughest death penalty law in order to convince the federal government to give them the first opportunity to prosecute the suspects. On this count, a brief review I have performed suggests that the state with the toughest law is Alabama. While Virginia does have the death penalty for minors, thereby permitting capital charges against Mr. Malvo, it also has a "triggerman" requirement (requiring the prosecutor to show that the defendant actually pulled the trigger for a fatal shot) for capital convictions. Given this, it is predictable that Malvo and Muhammed will get into a he-said/he-said defense, each claiming that the other actually pulled the trigger in a concerted attempt to avoid the death penalty. Even with the triggerman requirement, this defense is likely to fail: the evidence seems to suggest more than one shooter, and it is unlikely that a jury would be convinced by the defendants’ fingerpointing. That said, however, Alabama does not have a "triggerman" requirement, but rather permits capital punishment for accomplices to intentional murder. Accordingly, when combined with Alabama’s law permitting the death penalty for minors, and Alabama’s strong record for upholding capital convictions on appeal, it appears that Alabama would have the toughest capital law.

On the Wrong Anthrax Trail?

This is a fascinating (and long) newstory from the Washington Post on the still unsolved anthrax investigation. It is being suggested by scientists that the FBI has been unjustifiably holding on to an incorrect assumption, viz., that a single person is responsible. Here is an interesting paragraph: "Instead, suggested Spertzel and more than a dozen experts interviewed by The Washington Post in recent weeks, investigators might want to reexamine the possibility of state-sponsored
, or try to determine whether weaponized spores may have been stolen by the attacker from an existing, but secret, biodefense program or perhaps given to the attacker by an accomplice."

Who’s on First II: Virginia is for Prosecutors

A wise reader sent me an email noting a couple of things about my previous post. One, the federal government is not the only entity which has restrictions on prosecuting where other states have brought a prosecutorial action for the same offense: some states have similar requirements. This is true, but as the Heath case demonstrates, Alabama has demonstrated that it is willing to prosecute after another sovereign in order to vindicate its interests.

The second point made by the reader was that the suspects are in federal custody, rather than Maryland custody as I stated. Mea culpa. I still stand by my argument that whoever is holding the suspects will have a strong political incentive to prosecute them. That said, given the administration’s stance on federalism, and the fact that, notwithstanding the Hobbs Act, murder is more appropriately a local crime, the feds will likely look to dish them off to a state. If so, I must agree with the reader that Virginia is the likely recipient of the suspects, given their strong death penalty statute, which includes the death penalty for minors.

Shelby Steele Article

Last night, just before the last game of the Series (the outcome of which, I mention in passing, I predicted!) I went to the local Barnes and Noble (OK, it’s really fiteen miles away) and picked up a copy of the November Harper’s. Now, I don’t normally buy the thing, because it is almost always filled with predictably liberal and pseudo-sophisticated over-writing, but I look at the cover, just in case. Well, it turns out that the lead essay is by Shelby Steele and is entitled "The Age of White Guilt."
Steele is very good, as we know. But this essay may be the best he has ever written. I read it just before the last game of the Series. Two great pleasures, back to back. It is not on-line so you will have to get your own copy. Get it. Read it.

The Double Standard

In a South Carolina Senate debate, Democratic candidate Alex Sanders attacked Republican candidate Lindsey Graham for a campaign ad featuring an endorsement by Giuliani. At a time when Giuliani is one of the most popular political figures in the country, this seems like an odd move. More interesting is the wording of the accusation:

"He’s [Giuliani’s] an ultra-liberal," Sanders said. "His wife kicked him out and he moved in with two gay men and a Shih Tzu. Is that South Carolina values? I don’t think so."

This comes on the heals of an ad by Senator Max Baucus (D-MT), which opponent Mike Taylor said insinuated that Taylor was homosexual. The ad, which shows Taylor applying makeup to a man in a cosmetology school that Taylor operated, talks about the poor financial management of the school, and concludes with the punchline: "not the way we do business here in Montana"--a phrase that Taylor supporters believe had a double meaning when viewed in the context of the commercial.

I just thought it was worth mentioning the double-standard on this issue. If either of these statements/commercials were made by Republicans, gay rights groups like the Human Rights Campaign would be marching on the state capitals and running ads against the candidates. The Democrats would be denouncing their opposition as homophobic or worse. Yet when the Democrats make such statements, the silence is deafening.

The Mondale Delay

John Eastman correctly points out the difficulty for Mondale with the absentee ballots, and I fully agree that there is legal action on the horizon. I would only add that the delay in announcing the candidacy may be more politically than legally strategic. Those who watched the talk shows this weekend noted that liberal commentators got free reign to praise Mondale, while any comments about his record of tax increases were quickly swatted down, claiming that it was improper to talk about such things before "we have had a chance to mourn" and before Mondale formally announces his candidacy. It now appears that Mondale will announce his decision to run after after the Wellstone memorial service tomorrow. In addition to showing some actual respect for the deceased, it also gives Mondale a maximum opportunity for criticism-free campaigning. Essentially, the media and liberal analysts get a few days to talk about what a great choice Mondale is, while shouting SHAME to anyone who would politicize the moment by talking about issues.

This is not to say that I disagree with John--to the contrary I think he is right to point out that legal calculations are impacting the timing--rather I simply add these political calculations to the timing question.

Who’s On First?

There has been a lot of smoke cast about over the weekend about who should be first to prosecute the sniper suspects. Maryland is making a hard pitch, saying that because they have more victims, they should get the first chance. Virginia and Alabama are not pleased by such an option, because Maryland is a more liberal state--one with a moratorium on the death penalty, and one in which Mr. Malvo may not be given a capital sentence because he is a minor. The Feds also think that they should get the first shot, asserting that because this is an interstate spree involving extortion and murder, the Hobbs Act applies. Who then should get the first opportunity? The shocking answer is that in the long run, it really doesn’t matter.

Maryland’s prosecutor was on Meet the Press yesterday, trying to make it appear that he wasn’t trying to build a political name off of the prosecution. At the same time, he made at least one clear blunder in his claim that the Federal Government should not bring the claims first: he suggested that this would raise double jeopardy issues. But this neglects the fact that double jeopardy doesn’t apply where charges are brought by different sovereigns, whether the charges are brought by different states, or by the state and the federal government. In Heath v. Alabama, for example, a suspect entered into a plea bargain to avoid the death penalty in Georgia after he kidnapped an individual in Alabama and killed her in Georgia. The U.S. Supreme Court found that this prosecution did not preclude Alabama from prosecuting the individual (and from seeking the death penalty), because Alabama had its own interests as a separate sovereign to vindicate. There is an equally long line of cases supporting such action by the federal government. The one limitation on the federal government is found in the DOJ policy procedures, which precludes federal prosecution after a state prosecution unless the matter raises a substantial federal interest. The bottom line is that if the feds go second, there will be enough momentum within the DOJ to support this internal finding.

So where does this leave the question of who prosecutes first? First, the presumption has to be that Maryland will get the first chance. Contrary to all the commentary, it is not because they have more victims, but rather because the suspects are in custody there. Any transport of the suspects would be an act of comity, something which commonly occurs, but not where there is big political capital on the line. Here, Maryland has solid reasons to prosecute, and the prosecutor will be seeking to make a name for himself, which he can carry to state-wide office. The only entity who may have a chance of short-circuiting this process is the feds. To quote my law school professor, Richard Epstein, when it comes to the federal government, the general rule is "what Lola wants, Lola gets." How the feds would put a squeeze on the locals is unclear to me, but they seem to be the one entity who could make a play--particularly because they could carry out a prosecution in Maryland, and thereby avoid the issues of transferring the suspects out of state. Either way, however, the double jeopardy law does not prohibit Virginia or Alabama from prosecuting the suspects after Maryland. Given the more effecient judicial systems in those states, you can almost be assured that the suspects, if guilty, will be executed in either Virginia or Alabama before their appeals run in Maryland.

Today’s Nominee For Best Campaign Ad

While watching Meet the Press over the weekend, I saw an advertisement for Evelyn Stratton for Ohio Supreme Court. The ad was set up to look like a personal injury commercial, with two lawyers explaining that if you are stealing a hubcap, and the car rolls over your hand, then "that would hurt, and you can sue." They repeated this punchline with another hypo about drying your poodle in a microwave: that could hurt, you could sue. For someone who grew up in L.A., where every child knows the attorney slogan "Larry H. Parker got me $2.1 million," the ad was particularly funny. Stratton then offers the more serious point that frivolous lawsuits cost Ohio families $2500 per year. It’s hard to come up with good ads for judges, but this one gets the prize for today.

To Be A Kennedy

With the Maryland Gubernatorial race coming to the wire (the last poll I saw gave Erlich (R) a 1 point lead over Kathleen Kennedy Townsend (D)), the Washington Post offers a lengthy puff piece on Townsend for anyone who forgot that her maiden name is "Kennedy."

Kristol and Hume predictions missing a key piece

As Robert Alt notes below, on Fox News this morning Bill Kristol and Brit Hume predicted a Mondale victory in Minnesota. Kristol and Hume are, I think, ignoring a key piece of Minnesota state law -- all those absentee ballots already mailed and cast for Wellstone will still be counted as Wellstone votes, even if the Democrats decide to "nominate" Mondale to fill the vacancy. (See Minnesota statute and Sec. of State explanation). So, unless the Democrats have been uncharacteristically lax in their absentee efforts in Minnesota this year (hard to imagine, given the closeness of the race and Democrat efforts nationwide in nursing homes, etc., to boost absentee votes to 30% of the total, as reported in Friday’s WSJ), Mondale would have to win a pretty big landslide on election day in order to prevail. Assuming total turnout of 2.3 million and about 5% going to minor party candidates (based on recent turnout trends, and taking into account that this is not a Presidential election year), an absentee vote of 30%, with 70% already cast (or that will be cast using the original ballots), and further assuming Democrat absentee efforts produced a 55-40% margin (first for Wellstone, then for Mondale), Mondale would have to win by more than 10 percentage points on election day in order to prevail.

I believe this is the reason that Mondale has not already committed to being on the ballot -- I expect to see litigation filed Monday asking a court to treat the absentee votes already cast for Wellstone as Mondale votes. Without that, it might be better for the Democrat party simply to urge Democrat voters to cast a vote for Wellstone and have a repeat of 2000 Missouri, if they can.

World Series, Angels Will Win

I have been trying to watch as much of this series as possible (although I did fall asleep by the seventh inning of the fifth game). I am rooting for the Angels because I was for so many lean years an Angel fan when I lived in California (couldn’t stand the Dodgers; pencil necks and would be movie stars, all). So here is Thomas Boswell’s article on yesterday’s game and what may happen tonight. A good read (even if you read it after the last game). I predict that the Angels will win because 1) they are more hungry and hence tougher in the clutch, and 2) they are playing at home; in the seventh game of the World Series this matters a lot.

Muslim Ties of Snipers

Mark Steyn writes on why we shouldn’t be surprised that these two killers were Muslims (I hadn’t yet heard that the younger illegal immigrant was also one) and that this is a bad sign: radical Islamists are a highly decentralized operation, but with enough organized cooperation to get things done. The point is, it doesn’t matter if they were acting on orders or simply improvising.

There He Goes Again

Jimmy Carter has an op-ed in today’s New York Times, in which he lays out his objectives for "engaging North Korea." In describing his actions in bringing about the 1994 agreement, in which the United States essentially paid the North Koreans not to build nuclear weapons, he paints a false dichotomy. In Carter’s world, there were two options: placate the dictator and ply him with cash (we’ll call this diplomacy), or face all-out-war. There seem to be a lot of possible steps in between, including notably cutting off funds through sanctions, rather than giving North Korea more money to develop its military capabilities.

Faced with the abysmal failure of his policies, Carter once again paints the false dichotomy: we can have peace talks or all-out-war. If North Korea forgoes any nuclear weapon program and enters into good faith talks with South Korea, then Carter thinks that America should move toward normal relations with North Korea. In other words, without saying how it is that we are to verify that North Korea no longer has a nuclear weapons program, Carter suggests that if Kim Jong Il makes a few more potentially empty gestures, we should send him more money. No one wants to rush into a war with North Korea, especially now that they have benefited from years of U.S. funding to build their military and nuclear resources. But there are options other than bribing North Korea to play nice on the peninsula. To begin with, we need genuine inspection of the nuclear capabilities, and not the equivalent of Carter’s inspection of the alleged Cuban biological weapons facilities (paraphrase: Mr. Castro told me nothing is here, and I don’t see anything here). Carter avoided suggesting inspection because it is unlikely that Kim Jong Il would give inspectors unfettered access, and he knows that that would be a deal breaker for both sides. Better to gloss over this point, and make an unalloyed pitch for equivocation. With due respect to the WSJ’s Best of the Web, Jimmy Carter won the Nobel Peace Prize in 2002.

Mondale to Accept Nomination; Hume "Almost Guarantees" Return of Senator Mondale

Fox News Sunday, relying on the reporting of Fox News Channel’s Carl Cameron, stated that Walter Mondale is likely to accept the nomination to appear on the Minnesota ballot on Wednesday or Thursday. Bill Kristol stated that he believed the Democrats would hold the Minnesota seat with Mondale on the ticket. Brit Hume went even further, saying that he would "almost guarantee that Walter Mondale will be the new Senator."

Smith: On Rove’s Bad Side?

With the NH race so close, a key feature may be supporters of Senator Bob Smith, who are mounting a write-in campaign for Smith. While Smith has coolly endorsed Sununu, he has made no public efforts to rein in his supporters from carrying out the write-in campaign.

With Smith’s career winding down in the Senate, he is believed to desire a position in the administration. If Smith fails to swallow his pride and to provide direction to his supporters, instead of a cushy administration job, he may find out just how bad it is to be on the wrong side of Karl Rove.

Down to the Wire in NH

The Washington Post reports that the New Hampshire Senate race is almost dead even entering the final week. I confirmed this story against the latest poll by American Research Group, which shows John Sununu with a 2 percent lead over Jeanne Shaheen (+/- 4% margin of error). The Post article runs the same day that the Boston Globe unsurprisingly announced their endorsement of Shaheen. (Shouldn’t a Globe endorsement carry negative value in NH?)

Age and Inexperience

David Broder reports that Democrats are seeking Walter Mondale to replace Senator Wellstone on the Minnesota ballot. Continuing the "retro" candidacy tradition of Frank Lautenberg, Mondale last served in the Senate prior to his Vice Presidential run in 1976. The move for Mondale is a logical one for the Democrats, who need to recruit someone with a high name identification in order to stand a chance in the 8 days leading up to election day.

Mondale is 74. It is worth noting that the Mondale presidential campaign attempted to make an issue of Reagan’s age during the 1984 campaign. Reagan was 73. One wonders if "age and inexperience" will be an issue once again.