Strengthening Constitutional Self-Government

No Left Turns

Toryism and Americanism

Richard Brookhiser has a few quick thoughts on Toryism and Americanism, the two pulls he feels as a conservative; re Iran specifically and freedom struggles around the world generally. And then Nicholas Antongiavanni clarifies it all. Good.   

J.K. Rodham

Mark Steyn writes a clever column confounding Hillary and Rowling, and their books.  

Afghanistan and Iran

This article from the Asia Times claims that the US is losing the peace in Afghanistan. The story is based on this report from the Council on Foreign Relations (a PDF file). In the meantime, another Asia Times story claims that Iran is meddling in a serious way in Afghan affairs. "Very much as in Iraq, there are clear indications that with the help of more than a dozen important Hezb-i-Islami leaders based in Tehran, Iran has established a supply line for the resistance movement in Afghanistan to consolidate in areas where it has yet to establish itself fully. The Hezb-i-Islami, led by famed Afghan warlord Gulbuddin Hekmatyar, is the most organized resistance force in Afghanistan. Hekmatyar recently returned to Afghanistan after several years of exile in Iran."

A Wet Ride

Well, I made it to Washington on my steady old bike, got there just in time for the meeting, had dinner, slept like a log, and rode back the next morning. Got back early this afternoon. The ride back was a bit slow because it rained the whole way, until I crossed into Ohio. Then it stopped. I am a bit surprised at how well it all went considering not only the weather, but the fact that I came down with a miserable cold the day before I was to leave. But, I had no choice, had to ride. And to my surprise, the cold didn’t get any worse; in fact, the more I rode, the better I felt (even in the constant rain). This just proves that my mother is wrong about colds (have soup and go to bed, she instructs). Next time I get a cold I am going to find a wet spot and ride (although I admit, it was a bit difficult using a handkerchief at 70-plus miles an hour!). By the way, I 68 between Hagerstown (MD) and Morgantown (WVA) is a great road; nice sweeping curves, great vistas, hardly any traffic (almost no big trucks!) and everyone is doing 80. I also found the only straight road in West Virginia! It is the 522 going South from Berkeley Springs; although hilly, it is straight for maybe ten miles. Amazing.

Clinton’s Memoir/Campaign Missive

Among the many reviews of Hillary Clinton’s Living History, I wanted to call attention to one last Sunday by WA Post Book World editor Jonathan Yardley. The telling line is where he says

predictably, her book is as much campaign document as memoir, designed not merely for the eyes of historians but for those of voters in New York who presumably will be asked to send her back to Washington three years hence and, perhaps, for those of voters around the country who may well be asked to elevate her to the presidency in 2008 or 2012.

Yardley’s no conservative, which shows in his discussion of the Starr report, but his good sense shines through to understand what Clinton’s and Blumenthal’s books are about: the future of either Clinton’s political prospects, plain and simple. Here’s his closer:

But between the first inauguration and the pardons lay eight years of bumbling, dissembling, concupiscence and amorality. That the American people not merely tolerated this but gave Clinton the benefit of just about every doubt is a sign, perhaps, of their capacity for forgiveness, but it is a sign of moral obtuseness as well. These are matters with which Clinton’s defenders must contend, but from the two books at hand you’d never know they existed.

Needless to say, every statement and action by Sen. Clinton will be, as Yardley puts it, "carefully calibrated to present an image." Unless Nancy Pelosi makes some serious headway politically in the next few years (i.e., getting into the Senate or the gubernatorial chair), my prediction is that the 2008 Democratic nomination is Hillary’s for the taking. Sorry: Men need not apply after next year’s Democratic convention.

On a Gratz and a Grutter, Baby!

Re: Hayward’s Supreme Court challenge, I’m told NPR will air a panel discussion of the Grutter and Gratz cases on affirmative action next Tuesday. So, with the Supreme Court likely to announce their decision in those cases on Monday, what do I think the Court will say? My opinion has not changed much since I blogged on the subject last December (see my blog entitled "Sandra Day’s Swan Song").

In short, I still think O’Connor will write the decision for the court majority, 5-4, but will not garner a majority for her opinion, i.e., the reason for her decision to strike down Michigan’s racial preference programs at the state’s flagship law school and university. Rehnquist, Kennedy, Thomas, and Scalia will agree with her conclusion that Michigan’s programs fail the Court’s well-established strict scrutiny test. I’m guessing that O’Connor will try to improve upon (while reinforcing, unfortunately) the 1978 Bakke precedent by emphasizing the "narrowly tailored" prong of the two-part test, leaving aside the "compelling state interest" prong for a future Court to deal with.

O’Connor has explicitly cited the part of Powell’s lone opinion in Bakke that supported racial diversity in higher education as a compelling state interest. Here’s what she wrote in the Wygant case:

Additionally, although its precise contours are uncertain, a state interest in the promotion of racial diversity has been found sufficiently "compelling," at least in the context of higher education, to support the use of racial considerations in furthering that interest.

However, Rehnquist, Thomas, and Scalia won’t buy that rationale. So O’Connor will maintain her court majority of five by finding that Michigan programs are also not narrowly tailored enough because they act as de facto quotas (thus violating Bakke in spirit if not in letter) as well as lacking a defined terminating point to indicate the achievement of "enough" diversity that would call for the end of affirmative action by the state university.

I would emphasize this last point, given her concern (and Scalia’s) at oral argument that affirmative action be limited in scope and duration. For example, in a June 1 NY Times Magazine essay "How I Learned to Love Quotas", Jeffrey Rosen noted O’Connor’s shock to hear a Supreme Court justice from India say that their caste-based quota system would never end: "O’Connor raised her eyebrow in response and gave me a meaningful glance of reproach."

Thus, O’Connor’s majority co-signers will agree with some of her arguments, ignore others, and weigh in with their own--as they have done in previous affirmative action cases. Alas, Powell’s lone opinion in Bakke will still continue to stand as the precedent in affirmative action cases involving higher education.

The danger for O’Connor is the risk of having her opinion become another repeat of Powell’s, with four members of the Court (Stevens, Souter, Ginsberg, and Breyer) joining one of her arugments (racial diversity IS a compelling state interest), while four other members (Rehnquist, Scalia, Kennedy, and Thomas) side with another argument (racial diversity as a rationale for affirmative action is NOT narrowly tailored enough). The question is, will O’Connor be prudent enough during the opinion-circulation stage to remove any reference to a compelling state interest argument (for racial diversity) to focus on the narrowly tailored argument (against racial diversity) to strike down Michigan’s affirmative action? One hopes she will stick with the narrowly tailored test, if only to give the nation a chance to rid itself of affirmative action in the near future.

As I noted in my previous blog, O’Connor may try to turn this case into a swan song for her general legacy as the first female Supreme: namely, helping the Court to stabilize its rulings (esp. given its split decisions on controversial subjects) through a heightened reinforcement of the role of precedent. This is how she interpreted the abortion cases and was able to steal the Casey opinion away from Rehnquist. This means Bakke and strict scrutiny are here to stay, even if Michigan’s current affirmative action regime dies next Monday.

Will O’Connor retire soon after this term? I think it’s likely. She’s published two books in the last year or so with nostalgic themes, has had family and friends attend oral arguments this term like there’s no tomorrow, and clearly wants to enjoy her retirement back West and away from the Beltway. I wouldn’t be surprised if Stevens (age 83) followed O’Connor’s lead and jumped ship before the Oct 2003 term. But my prediction is O’Connor will not retire if she was unable to corral (cowgirl that she is) a majority to join her on Grutter and Gratz. Rehnquist, however, is good for another year, at least.

Whew! My final recommendation is to read a sensible op-ed on this whole affirmative action mess by Robert Samuelson from Wednesday’s WA Post: "Affirmative Ambiguity". He notes, "Minority students have been academic trophies" for elite colleges, who exclaim that the world will come to an end if an affirmative-action-less academy leads most minorities to attend less prestigious colleges and universties. Looking for a silver lining to the cloud of affirmative action, Samuelson lauds what he calls the "more open society" produced by forced racial integration of schools. While he does not give due attention to the kind of state control that must be ceded by free citizens in order to engineer his "open society," Samuelson at least highlights the specious "moral superiority" of elite colleges who defend affirmative action.

Let’s Make This More Interesting

I accept Hayward’s Supreme Court challenge, but think we need to add a few factors to make it more interesting. I fear that all the contestants are going to give similar answers to the Grutter question, so I would suggest that all contestants should also give their predictions on who will retire from the Supreme Court this term.

I personally predict a very dismal coming week for NLT readers who follow the Supreme Court. The best I think we could hope for from the Supreme Court would be if the Supreme Court dodged the question of whether diversity is a compelling state interest, deciding instead that the University of Michigan’s program is clearly not narrowly tailored. That isn’t my bet, however. Here, then, are my predictions:

(1) The Supreme Court states in the Michigan cases something slightly stronger than Bakke, but just as undefined. Look for a classic O’Connoresque ruling to the effect of "diversity is almost never a compelling interest except for sometimes . . . ." The decision will likely be written by the Chief if it has any merit to it at all. You will know that all hope is lost if he assigns it to O’Connor.

(2) There will be NO retirements. The Supremes have set the campaign finance case for oral arguments a month before the regular session begins. This suggests to me that the Chief does not intend to go anywhere. I have heard the argument that the Chief might be doing this to press the Senate’s hand--that is, to encourage them to fill the seat by September. I’m not buying it. I think he’s hunkering down for the long haul. O’Connor has been making all the motions of a farewell tour, but the sense, at least among outsiders, has been that she would take her cue from the Chief. The other unspoken candidate for retirement is Stevens. Most people forget that he was appointed by Ford, and up until Bush v. Gore made rumblings about wanting to wait to retire until a Republican was in office. But his opinion in Bush v. Gore suggests that he may live to 100 just out of spite. Don’t look for him to retire before the next Presidential term. Thus I predict that barring health failures, we will see the same court after the 2004 election as we see today.

Finally, my bonus prediction. The Court will strike down the Texas sodomy law in Lawrence v. Texas in an opinion written by Kennedy. The decision will be based exclusively on Equal Protection grounds, and will not reach the privacy arguments (although there will likely be arguments made in the concurrences suggesting that the court should have reached the issue, and should overturn Bowers v. Hardwick). The decision will come very close to ratcheting up review of sexual orientation discrimination to intermediate scrutiny, but will not do so, at least not expressly. Kennedy and O’Connor will attempt to put language in the opinion to distinguish this from "slippery slope" arguments, such as gay marriage. Finally, Scalia will issue a dissent which will peel paint off the Supreme Court’s walls.

Those are my predictions, now I open it to my co-bloggers, particularly Claeys and Eastman, to play along.

Michigan Handicapping Time

The news papes today are awash with imnportant stories about the diversity industry. The Washington Post has a story about "whiteness studies" at Amherst and elsewhere (Hadley--look what’s happened while you were vacationing at Princeton this year!), which are thinly disguised efforts to instill racial guilt in whites. The Post, to its credit, rightly characterizes such programs as "left-leaning.

The Wall Street Journal (sorry, no link--I read the dead tree version) has a front-page story about how UCLA Law School is evading the ban on racial quotas in California by offering admission to applicants with lower grades and test scores than average if they commit to signing up for a program in critical race theory and the law. The program is open to all applicants, but (wink, wink, nudge, nudge) guess who its really intended for?

Which brings us to the Supreme Court’s decision in the Michigan case, due out in the next 10 days or so. NoLeftTurn-ers should now make their predictions on the outcome (Lucas, Ken, and my old roommate the Eastguy should all weigh in, at the very least); let Schramm decide who comes closest and award a coffee mug.

I am pessimistic. Especially if O’Connor is about to retire (the signs are there; lots of her family members have shown up for oral arguments this spring, which looks rather like a valedictory to me), I doubt she will want to go out with the New York Times and other observers saying her departure was "marred" by a "mean-spirited," "right-wing" decision on race. I predict she will reprise the Powell role from Bakke, and give us a Bakke-lite decision that will muddle the waters so badly that the issue will bet set back another 20 years. So she will side with the court’s liberals and write the controlling opinion; saving "affirmative action" from total abolition will be the legacy she seeks.

I’d love to be wrong about this, but there it is.

Gore TV, Futurama Taxing

Let’s not laugh too quickly-- think of the ads corporations would buy as a kind of tribute they pay to future rulers.

Gore-TV, or "Bore-TV"

News yesterday said that Al Gore is in the throes of trying to put together a TV or radio network to combat the sinister influence of conservatives on cable and talk radio. Now, this venture faces all the problems Chris Flannery observes in his fine piece about why there is no liberal talk radio in the latest edition of the Claremont Review of Books (find it here).

Today’s Washington Post "Style" section offers several plausible shows the Gore network might offer:

Good Morning Blue States--News & Talk

Lock Box--Market News

Earth Tones in the Balance--Fashion

Karenna Says the Darndest Things--After School

Who’s (Not) the Boss--Sitcom

Recount!--News & Debate

Countdown to Recount--Debate

Recount Showdown!--Breaking News

Gore Dance Fever--Medical

Tipper’s Banned Record Party--Variety

Politically Correct--Labored Humor

Miami Fraud--Political Crime Drama

America’s Least Wanted--Political Crime Drama

No Left Turns invites further programming suggestions. My own view is that the Post missed a great chance to cast Al as Lurch in a film noir remake of The Munsters.

Pending Supreme Court decisions

The NY Times’ veteran court reporter, Linda Greenhouse, wrote yesterday
that we can expect the Supremes to hand down their remaining ten decisions next Monday and Thursday. These include the Michigan affirmative action cases (Grutter and Gratz).

Barring a late request by one of the justices to address an opposing view in an opinion still circulating, Greenhouse expects Chief Justice William Rehnquist to end the term by next Thursday, June 26. That is when he is due to attend the annual conference of the U.S. Court of Appeals for the 4th Circuit. Therefore, we will know fairly soon whether or not our civil rights depend upon the color of our skin or on our individual standing as citizens of the United States.

Deja Vu All Over Again

There was a lot of brave talk in the news media a few weeks about about wealthy Democrats founding their own liberal think tank in Washington (what’s wrong with Brookings?? Never mind. . .) to compete with the Heritage Foundation, Cato, and AEI. They may want to ponder this wire service report from February 1981 that I recently stumbled across:

"A group of high-ranking refugees from the Kennedy, Johnson, and Carter administrations is setting up a Washington-based ’think tank’ to serve as a rival to Republican-oriented research groups like the American Enterprise Institute and the Heritage Foundation. Tentatively called Democratic Forum, the group hopes to riase $1 million this year and $2 million next year, to churn out studies and policy recommendations."

Boy, we all remember what an impact that effort made. . . don’t we? . . . we don’t?? Oh.

AMA endorses human embryonic cloning

The AMA yesterday endorsed human embryonic cloning for research purposes. You can read the news account here. I will have more detailed thoughts on this in the coming days.

Seizing the Ace of Diamonds

Fox News is reporting that U.S. forces have captured Gen. Abid Hamid Mahmud al-Tikriti--the number three man in Saddam Hussein’s deposed government, the number four man on Central Command’s most wanted list, and more popularly, the Ace of Diamonds in the Iraqi’s Most Wanted deck.

Fuhgettaboutit . . . for one more year

AP reports today that The Sopranos will be producing a sixth season next year. While I do not have HBO, I am hooked, and have taken to what at first seemed to me to be the extraordinary measure of renting the seasons on DVD. For those of you who teach law, I found that the series offers plenty of hypos for class, and gets you in the right frame of mind for Professor Kingsfield-style Socratic inquiry.

Recall Gray Davis Update (Again)

Pat Buchanan reports on the Recall Gray Davis petition. Buchanan takes it for granted that Davis will be removed from office.

He argues that Senator Feinstien is not likely to allow her name to go on the ballot. Buchanan believes that with perhaps 15 or 20 names on the ballot that Arnold Schwarzenneger will win.

The real sleeper in all of this is whether or not Congressman Darrell Issa is really willing, as rumor as has it, to spend $50 million of his own money to become the next Governor of California.

Dennis Miller Moves to Fox

I had heard reports for the past few days that Dennis Miller would be joining Fox News, but I just got confirmation from a friend who is a news writer for Fox. The comedian will be offering what fans will recognize as his "rants" as a segment on the Friday edition of Hannity and Colmes. I must admit that I am a fan of Miller (before I get endless comments, I do realize that he is not a conservative--but he is funny), although I always thought that his placement on Monday Night Football was odd. While I was worried that the move to Fox might be a similar reach, the fact that they will be using Miller for a stinging commentary segment bodes well for the Fox Execs decision, for by doing so they are putting Miller in a position in which he is strong. Contrast this decision with, say, putting Keith Olberman behind a desk for "news."


Here’s the Democratic National Committee’s cartoon, portraying Bush creating a vast right wing Supreme Court Justice.

If Bush gets to appoint a Supreme Court Justice, the Bork and Thomas Hearings will look like a game of paddy cake, paddy cake.

Hitchens on Blumenthal

Christopher Hitchens has an outstanding review of Sidney Blumenthal’s book in the July/August issue of The Atlantic. The title alone--"Thinking Like an Apparatchik"--makes it worth the read.

Away for a few days

I am off to Washington for a few days, and will not be blogging again until the weekend.

How the West grew rich

Dinesh D’Souza thinks that the West became rich because it introduced three new things: science, democracy, and capitalism. Nice short essay on a big subject. 

9/11 Detainees Court Decision

A federal appeals court ruled that the Justice Department properly withheld the names and other details about hundreds of foreigners detained in the months after the Sept. 11 attacks.

Dirty Bomb attack likely

MI5 has announced this, according to the Telegraph: A biological, chemical or nuclear terrorist attack on a Western city is "only a matter of time", the head of MI5 has said.

Eliza Manningham-Buller said: "We are faced with a realistic possibility of a form of unconventional attack that could include chemical, biological, radiological or nuclear (CBRN)."

Prepare to attack Iran?

This from London: "British and American intelligence and special forces have been put on alert for a conflict with Iran within the next 12 months, as fears grow that Tehran is building a nuclear weapons programme." In the meantime, Morton Kondracke thinks the U.S. doesn’t have a plan to deal with Iran.

Al Qaeda in America

Newsweek runs a long and, I think, a very interesting article on the extent of terrorist operations within the US. Some of the information comes via interrogations of Khalid Shaik Mohammad. Worth reading. 

Gray Davis’s fate

In response to Steve Hayward’s and Mickey Craig’s posts on recalling Gray Davis: While I prefer the Gray Davis resignation scenario, my own prediction is that Senator Dianne Feinstein will become Governor Feinstein and appoint an Hispanic as her successor in the Senate. This tactic could be Terminated, of course.

But a post-recall Democratic victory could prove advantageous to the Republicans. After all, the Democrats would still be responsible, and this time as a party for the budget mess in Sacramento.

Any Republican who got elected would be delegitimized as having gained office through a "stolen election," especially if the winner attained office with fewer popular votes than loser Bill Simon in 2002.

Moreover, election through recall helps fulfil the Progressive agenda of transforming our form of government into something more like the parliamentary system, where the principle of consent expresses itself through the impulses of the electorate. The opportunities for statesmanship are diminished, and the bureaucracy whose foundations were established by Progressivism lies undisturbed.

Even in defeat and following further Democrat failures in Sacramento, Republicans would have the opportunity of blaming the entire Democratic party, not the craven politics of Gray Davis, who embarasses most Democrats. Democrats of course would try to claim a mandate to reform the budget crisis through tax increases and pander on moral issues. That is the gamble Californians take on recalling Gray Davis, the enemy we know.

Baghdad Museum Staff Revolt

The London Guardian reports that the staff of the "looted" museum are not amused, and are demanding that its directors resign. "Staff said they believed that some of the thefts from the museum were an inside job. They also accused Dony George, the board’s head of research, of arming them and ordering them to fight US forces.

Mr George admitted to the Guardian that he armed staff but denied instructing them to shoot US troops. He said none of the directors had a hand in the looting."

Jessica Lynch

Dana Priest and others write this long Washington Post story on Jessica Lynch and her rescue. The authors claim that while this is still an inconclusive cut at the history, it is more complete than any previous ones.  

Steyn on Hillary

Here is a Mark Steyn column of Hillary’s book. What can I say? There are some people who can write, and Steyn is one of them. Envy. Envy. Read it and laugh, read it and weep.   

The Roadmap to Peace: Step One

The Roadmap to Peace between Israel and its Arab neighbors is more than a 12 step program.

To paraphrase Victor Davis Hansen, "Peace does not come through a process, peace comes when one side defeats the other. Then you have peace. The United States has peace with Germany, Japan, and Vietnam because one side defeated the other."

So is any Roadmap to Peace in the Middle East far gone in utopian speculation until one side defeats the other? Probably so, but here are two articles which outline the first steps to peace. Ruth Wisse argues that the first step to peace is very simple, the Arabs simply have to stop hating Jews and the State of Israel. Michael Oren points out how generous Israel has been when any Arab state has done the simple thing of recognizing Israel’s right to exist.

Let’s hope that President Bush succeeds where other American Presidents have failed.

Airbus wins orders

Airbus SAS, the world’s second-largest planemaker, won an order from Emirates, the Middle East’s fastest-growing airline, for 41 new planes, including 21 of the double- decker A380s, worth as much as $8.5 billion at list prices. And Airbus is projected to surpass Boeing as the world’s largest planemaker this year.

Democracy, Whisky, and Sexy in Persian

Pejman asks how to say "democracy, whisky, and sexy," in Farsi. And, in the process, you can learn a bit about both Persian and the current Iranian political situation, if you follow the links. In the meantime, FOX is reporting that American Iranian university faculty are demanding an end to tyranny.

The Wolfowitz mis-quote

The London Times runs a good article on the mess that the Guardian caused when it misquoted Wolfowitz recently. This article is worth a read because it clearly shows that the left will publish anything if it meets their agenda. It is an almost absurdly ridiculous story, but again, brought to light by bloggers (rather than editors at the Guardian).

Just War Theory

Michael Uhlmann has a nice and clear essay on just war theory in the latest Claremont Review of Books.

Dirty Bomb?

Materials that could be used to make a dirty bomb have been found in Tbilisi, Georgia, according to Reuters.

Democratic Primary

The draft Gore effort didn’t come off too well, only 100 people showed up, reprts the Tennessean. In the meantime General Clark looks more and more like a candidate. Here is the transcript of his interview from Meet the Press. Robert Novak outlines why he thinks Gephardt is doing well in Iowa. Boston Globe runs an article on Kerry’s college years. No surprises here; acts as an aristocrat who will (he thinks) someday be president.

George Will on Brinkley

George Will has a lovely column on David Brinkley as a man, and what standards he set for the profession.

Recall Gray Davis Update: Fair and Balanced

It must be true. According to the fair and balanced Fox News, the recall Gray Davis effort will qualify for the ballot.

The leading GOP candidates to replace Davis are California Congressman, Darrell Issa, and Arnold Schwarzenegger. The leading Democratic candidate to replace Davis is U.S. Senator Diane Feinstein.

The more likely scenario is that Davis will resign so the Democratic Lt. Governor can replace him.