I remember a song with that title by Katrina and the Waves. Yes, you read that right: a mid-80s pop band that had a big hit in Toronto and, I’m sure, elsewhere.

Well, after Katrina’s hit, I may well be walking. I was at a reception at the President’s house when my wife called to tell me to tank up on the way home, as gas prices were approaching $5/gallon and lines were quite long. It seems that much of Atlanta’s gas comes through two pipelines from Texas and Louisiana; service was obviously interrupted.

Well, I paid $4.30 a gallon (mid-grade, which was all that was available) at a station that closed soon thereafter.

It will be interesting to see how long this price bump lasts. As a short-term phenomenon, it won’t affect people’s behavior. If it persists, those who have an axe to grind or who are less well-informed will blame the President, who needs to respond much more effectively than did his predecessors in the 1970s.

But let me hasten to add that our quite trivial problems in Atlanta pale before those in Louisiana, Mississippi, and Alabama. Our thoughts and prayers are with the folks down there.

Update: If you must read more about crass political attempts to exploit the misery spawned by Katrina, go here (hat tip: The Politic).

Here’s the 46 page pdf. Here’s the web summary, which contains everything but the raw data and the precise questions asked.

The news stories emphasize either evidence of substantial public support for "teaching the conflict" between evolution and creationism or evidence that people regard the Democrats as less religion-friendly than the Republicans, not to mention less religion-friendly than they were a year ago, during the 2004 campaign.

My explanation for this last finding, not substantiated by anything in the poll, is that the anti-religious vitriol spewed by the Bush-hating Left in the aftermath of the election has come to be identified with the Democrats, Jim Wallis’s best efforts to the contrary notwithstanding. Howard Dean’s ill-advised wiscrack about the "white Christian party" surely hasn’t helped either.

Other interesting, but thus far unnoticed poll findings include these: Support for the faith-based initiative remains high (66-30 favor it), unless the question is posed in terms of "taking some of the federal funds spent on government anti-poverty programs and
giving them to religious groups to provide
social services," in which case the numbers roughly reverse (33-58). The latter formulation is of course oversimplified and misleading.

Regardless of whether they approve of the job he’s doing (he’s still down 45-47), people’s overall opinion of GWB is still favorable by a 51-46 margin. By contrast, the favorable-unfavorable ratings of other groups are as follows: Christian conservatives (42-34), corporations (49-40), the ACLU (38-35), Congress (49-40), Republicans (48-43), and Democrats (50-41).

Finally, by a 67-28 margin, respondents thought that liberals have gone too far in keeping religion out of schools and government. This sentiment is held by whites and blacks, in all regions, across all levels of education (though only by a 54-42 margin for college-educated folks [I should note that the poll in many ways suggests that college education seems to be the great secularizing influence in the U.S.]), in both parties and among independents, and among all groups of Protestants and Catholics. The only outliers are liberal Democrats (33-64) and secularists (42-50).

There are other nuggets in the report, but it’s late, and I’m tired.

Update: John Hinderaker has more.

Hadley Arkes wonders whether Arlen Specter knew what he was doing when he sent this letter to John Roberts.

Jude Wanniski has passed away. Jude was one of the pioneers of supply-side economics (although the story linked here is wrong--he didn’t come up with the name; Herb Stein--Ben Stein’s father--came up with the term first), and though I thought he was a bit nutty and often irresponsible (meeting and praising Farrakhan once, for example), his vivacity and creativity cannot be denied.

On the occasion of the issuance of these guidelines, the Washington Post offers these three stories.

While reporter Alan Cooperman (whose pieces on religion I generally find fair) catches almost everything, he doesn’t note this important proviso in the guidelines:

[T]here may be extraordinary circumstances where the potential benefits [of prayer] for the welfare of the
command outweigh the potential of causing discomfort. These circumstances might include mass
casualties, preparation for imminent combat, and natural disasters.

He also doesn’t note that the guidelines permit a moment of silence on routine occasions.

In general, the guidelines, which apply now only to the Air Force but may be extended to all the services, strike me as a commonsensical response to religious pluralism, urging accommodation of the religious needs of servicemen and women, placing national service and solidarity at the forefront of everyone’s concerns, and reminding officers that the hierarchical (I use this word self-consciously) nature of military service gives officers a special responsibility to avoid confusing their subordinates. These, by the way, are not the guidelines issued by a "theocracy."

Hunter Baker is apoplectic about a University of California admissions policy that does not permit certain courses taught to satisfy admissions requirements. Here, via Religion Clause, are some articles that cover the lawsuit filed by the Calvary Chapel Christian School and the Association of Christian Schools International.

The plaintiffs’ attorney is Wendell Bird, who represented the losing side in Edwards v. Aguillard, a case involving Louisiana’s effort in the 1980s to mandate the teaching of "creation science," along with evolution. He was also apparently once on the staff of the Institute for Creation Research.

I haven’t seen the complaint, but apparently the UC system has refused to allow certain courses taught from a Christian point of view (including biology, history, and American government) to satisfy admission requirements.

It will be interesting to see how this is litigated. The biology courses at issue apparently are biblically-based. The university system and the scientific community will of course say that the course is not science and can’t satisfy a science entrance requirement. Given the absence of scholarly consensus as to what constitutes "orthodox" history and political science, the university system will be somewhat harder pressed to defend its exclusion of those courses, especially if it has accepted other "perspectival" history and government courses in the past.

The strongest claims that the plaintiffs can make are that the system’s refusal to accept these courses burdens students’ free exercise of religion and denies them the equal protection of the laws. While no one is telling them that they can’t study what they want to study, their free exercise is arguably "burdened" by the admissions requirements. As I suggested above, it will likely be relatively easy to defend the science requirement, certainly if all that has to be satisfied is a "rational basis" test, and perhaps even if the pre-Smith "compelling state interest" test were invoked. I don’t think the courts will touch the more "philosophical" issue of whether science, as it is conventionally understood, also rests upon a kind of faith.

My own heart and mind are somewhat divided here. On the one hand, I think universities should be able to use admissions standards to demand a certain level of performance on the part of students and the schools that educate them. On the other hand, I don’t think that admissions standards should be used to promote "ideology," especially masquerading as neutral knowledge. I’m reluctant to let a judge sort these matters out, because the most interesting and difficult issues are not easily amenable to adjudication. I’m tempted to argue that the university system should find some way of accommodating these students, perhaps requiring science remediation, if in fact all they have learned is some version of young earth creationism. If the Calvary Chapel course already treats both creation and evolution, then I have much less sympathy for the university system, which would then seem to be enforcing a kind of orthodoxy unwilling to permit itself to be challenged. The system probably ought to let the history and government classes count. In other words, the best solution here is for the filing of the complaint to be a prelude to negotiation and conciliation, with the university system finding a way to accommodate this form of "diversity."

Update: This article suggests that the schools teach both evolution and young earth creationism (which is different from intelligent design inasmuch as it’s explicitly biblical), albeit in such a manner as to privilege the latter. Also interesting is this comment:

“If you don’t understand evolution, you don’t understand biology. If you don’t understand biology, you don’t understand modern science,” said Albert F. Bennett, chair of ecology and evolutionary biology at the university’s Irvine campus. “A student ill-versed in science is poorly prepared for university-level work.”

Such students, Bennett said, “will be incapable of understanding or helping to achieve the many benefits of modern biology, such as crop improvement, cancer therapies, and avoidance of antibiotic resistance, that critically depend on evolutionary theory.” As a result, he added, “the university has an obligation to ensure that entering students are properly prepared for a university-level education.”

Taken seriously, and applied to all aspects of university education, it would have the effect, not only of raising standards in such a way as to make it difficult for many incoming students to meet them (a good thing if they could rise to the challenge), but also of posing in a serious way the question of what a generally or liberally educated person needs to know. I wonder how many UC faculty really want to open that can of worms, especially in a very public manner, since it would seem to play into the hands of the
E.D. Hirsches and William Bennetts of the world.

Update #2: Here, via Religion Clause, is the complaint (107 page [!!] pdf).

My latest collection of blatherings, about Reading Lolita in Tehran, is up over at the Ashbrook main site. Delivered as part of a panel discussion on our summer reading assignment for freshmen, the talk focuses on what we can learn from the book about liberal education.

There are, of course, things that I couldn’t say, given the setting and the time constraints. Nafisi’s book is, among other things, a cautionary tale about politicizing the university as well as about having reasonable expectations regarding political change. When she was a graduate student in the U.S., Nafisi clearly had some affinity for the leftist opposition to the Shah. What she comes to realize in Tehran is that, for intellectual freedom and for the university, there’s little difference between Iranian Marxist-Leninists and the mullahs. For her (rightly or wrongly), totalitarianism is totalitarianism is totalitarianism.

And for those of you who are still dubious about the intellectual and political merits of this best-seller, take note of her acknowledgements, where she thanks "Paul" for introducing her to Persecution and the Art of Writing, as well as Hillel Fradkin and Bernard Lewis.

Cathy Young takes up, and demolishes, the charge that Roberts is anti-woman. Since she’s a libertarian, she can’t resist a dig about Roberts’s views on abortion, but nevertheless concludes this way:

Roberts’s views on abortion and other issues may be a legitimate cause for concern for women’s rights groups. Yet so far his critics have resorted to so many bad arguments that one must wonder if they have any good ones.

This is a nice piece. The conclusion:

Judge Roberts represents precisely the kind of nominee you’d expect from the president of the party shaped by Mr. Reagan.

Notably, Mr. Reagan appointed to the High Court lawyers (Sandra Day O’Connor and Anthony Kennedy) less conservative than the young lawyers who worked for him at Justice and in the White House. But if Mr. Reagan did not have available to him a John Roberts to put on the court, a Reagan legacy is surely the pool of distinguished lawyers of conservative views who served him and in some cases as well his immediate predecessor and who are now of sufficient age to be considered for the Supreme Court.

Which is to say: There are more lawyers like John Roberts. That prospect is not exactly a happy one for Senate Democrats – all 44 of them.

You can download or purchase this book, about the election of 1800 and the lessons it might hold for newly emerging democracies. And, while you’re at it, you could read this review essay, which offers a taste of his line of argument.

That America’s growing pains were not restricted to the 1790’s is clear from this conversation between Hugh Hewitt and John Eastman.

This time, via Power Line, it’s the law schools that turn out to be largely Democratic by at least one measure of political behavior (campaign contributions). All the reasonable caveats apply, as it’s not clear that the professors who write the checks use their classrooms to indoctrinate or that this form of political behavior is necessarily and ineluctably connected with a tilt in one’s scholarship. Nevertheless, it is reasonable to wonder if there might not be something of an echo chamber, especially in elite law schools:

The most serious problem pointed to by the study, Professor [John O.] McGinnis [the author] said, is that the ideas generated by the law schools are both uniform and untested.

"It may be," he added, "that the rise of conservative think tanks counterbalances this effect to a degree. As one who believes in markets, I think that alternative institutions in the long run will arise to supply ideas." Even so, he said, "liberal ideas might well be strengthened and made more effective if liberals had to run a more conservative gantlet among their own colleagues when developing them."

I’m looking forward to the article, which will appear in the
Georgetown Law Journal this fall.

Update: Professor Bainbridge has more, with links.

Martha Bayles has a very interesting piece on public diplomacy and American cultural exports. Is it any wonder that more than a few Muslims abroad think of Americans as immoral if what they’re exposed to is reruns of Sex in the City and videos of Britney Spears? Bayles whether government outlets like Radio Sawa and Radio Farda need to be counterbalancing the overwhelming presence of Hollywood and the recording industry, rather than serving as yet another vehicle for it:

American popular culture is no longer a beacon of freedom to huddled masses in closed societies. Instead, it’s a glut on the market and, absent any countervailing cultural diplomacy, our de facto ambassador to the world. The solution to this problem is far from clear. Censorship is not the answer, because even if it were technologically possible to censor our cultural exports, it would not be politic. The United States must affirm the crucial importance of free speech in a world that has serious doubts about it, and the best way to do this is to show that freedom is self-correcting -- that Americans have not only liberty but also a civilization worthy of liberty.

From Franklin’s days, U.S. cultural diplomacy has had both an elite and a popular dimension. Needless to say, it has rarely been easy to achieve a perfect balance between the two. What we could do is try harder to convey what the USIA mandate used to call "a full and fair picture of the United States." But to succeed even a little, our new efforts must counter the negative self-portrait we are now exporting. Along with worrying about what popular culture is teaching our children about life, we need also to worry about what it is teaching the world about America.

Read the whole thing.
  

It will be interesting to watch what happens in Montgomery County, Maryland as churches seek to take advantage of their entitlement to build in the suburban county’s "agricultural reserve," virtually its last affordable real estate. For the most part, Montomery County (which sits on the northwest border of Washington, D.C.) si densely developed, though roughly one-third has intentionally been left in agriculture (with the aforementioned exemption for churches).

Now, a number of growing and rather large churches are seeking to build sanctuaries and campuses there. These same churches likely couldn’t afford to build elsewhere in the county and, given their size and the traffic they would generate, wouldn’t necessarily be welcomed with open arms in or near residential neighborhoods. (This, by the way was one of the issues that led to the passage of the Religious Land Use and Institutionalized Persons Act of 2000.) In this case, however, the churches are’t facing NIMBYs but rather NIMARs (Not In My Agricultural Reserve)--environmentalists and lovers of green spaces. That some of the congregations that are seeking to build are African-American adds yet another complicating dimension to the issue.

As I said, it will be interesting to see how the county’s elected officials (mostly Democrats, I would imagine) deal with this hot potato.

I missed this op-ed a couple of days ago. Mario Cuomo has clearly learned nothing from his exchange with Douglas Kmiec, since he repeats most of what he said then, arguing that if conservative Catholics give Roberts a pass for upholding the Constitution (over against his "deeply held personal beliefs"), then they should also give Catholic politicians like Kennedy and Kerry the same leeway.

There are at least two things wrong with this argument. First, Cuomo doesn’t distinguish between judges and politicians (which isn’t a surprise). Judges aren’t supposed to vote their consciences; their "office" is to interpret the law. A political leader can act on his or her conscience, working to change the Constitution, if need be. If a judge worked to "change the Constitution," by (say) reading into it provisions that aren’t there (however otherwise desirable they might be), he or she would be violating his or her oath (or affirmation).

Second, what troubles conservative Catholics about Kennedy and Kerry (here I’m speculating, since I’m merely a conservative ex-Catholic) is not that they refuse to act conscientiously to uphold church teaching against the Constitution, but that it’s not clear that they actually "privately" support church teaching.

The good news, such as there is, from this article is that Cuomo is looking for ways to leverage Roberts’s inevitable appointment to the Court to get his friends of the hook onto which they have wriggled. He argues that Roberts should be taken at his word when he promises to uphold the Constitution, and that the Kerry/Kennedy version of the Constitution should provide them with all the cover they need to go on their merry ways.

Update: Rick Garnett and Thomas Berg, two smart law professors, have more.

The Yale Law School chapter of the Federalist Society has a new blog, which should be a great resource for readers looking for discussions relating to legal issues and judicial nominations. The chapter’s website also includes a brief response to some of the media’s recent coverage of the organization and its supposed "secret influence." So what are the Society’s core principles that "raise questions" about alleged member John Roberts’ judicial temperament? The beliefs "that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be."

Are these principles supposed to be "controversial" or "outside the mainstream"? Those of you who share a belief in liberty and a dedication to the Constitution need not fret about the effect that John Roberts’ alleged membership will have on his chances of being confirmed. Apparently, "[j]ust because someone belongs to the Federalist Society does not inherently disqualify them." I should certainly hope not.    

Andrew Busch has a new editorial over on the main Ashbrook site. He argues that the Left’s fond dream of an American failure in Iraq would if realized, be destructive, not only of their domestic political aims, but ultimately of U.S. principled self-restraint in the face of inevitable terrorist provocation (likely directed not against the conservative hinterlands, but rather against those prominent symbols of America--New York, Washington, D.C., Los Angeles, to name a few--where many on the Left hang their hats.

Read the whole thing. 

Daniel Akst notes that William Weld is both a politician and a novelist.

The candidate’s dark literary past immediately casts a shadow on his motivations. Everyone knows that novelists will do almost anything to sell a few books; I’m thinking of running for president to move a few of my own. Is it really so far-fetched to imagine that Mr. Weld would launch a gubernatorial campaign to gain better placement at Barnes & Noble? What novelist wouldn’t? If the gambit succeeds, I wouldn’t be surprised to see writers emerging like termites from the literary woodwork, driven to run for offices all over the country just to escape midlist hell.

Which living novelist could you support if he or she ran for office? My vote goes to Mark Helprin, though I’m also somewhat tempted by Leon de Winter. Those more widely read than I am are more than welcome to enlighten me.

This post at MyDD is quite interesting. The author, who proudly calls himself a hack, thinks that the Democratic Party’s problems are not intellectual or ideological, but amenable to nuts-and-bolts movement construction (hackery, in other words). What this means is simply the politics of ideological opposition at the national level and the construction and pursuit of local and state agendas:

We are going to need an alternative agenda that has not only a practical appeal, but an ideological one. We are going to have to start implementing this agenda at the local and statewide level, because right now we simply can’t implement one in Washington.

Time was when party hacks weren’t ideological at all, but largely interested in the perquisites of power. This redefinition of hackery amounts to an affirmation, not of party loyalty, but of blind ideological zeal, buttressed by such organizational sophistication as zealots are capable of. This strikes me as the domestic political equivalent of the "insurgency" in Iraq: capable of making a lot of noise and wounding those who are trying to govern, but not capable of (or interested in?) governing itself.

Hat tip: Beltway Blogroll.

I know, I know. I’m a broken record on this subject, but I can’t resist calling your attention to this fine piece, which nicely summarizes and lampoons some of the typical responses. The author also highlights Brown University’s genuine contribution to intellectual diversity.

Here, via Hugh Hewitt, is some exceptional combat journalism from Mosul.

This book looks like it’s worth purchasing and even reading.

Tom Cerber calls our attention to this very long Lee Harris article, in which he contends that even scientists have to believe in "intelligent design." Here are a few of the relevant paragraphs:

The notion that there was an intelligent designer who created absolutely everything from scratch and in accordance with a rational plan is the psychological precondition of the willingness to look for patterns that are hidden to the ordinary gaze. Unless we believe that there is a code to be deciphered, we are psychologically reluctant to devote hours of our life, let alone our life itself, to the pursuit of deciphering it. We think, "Oh well, it may be all meaningless garbage," and decline the challenge of explicating the possibly inexplicable.

In short, the belief, or illusion, if you will, that the world is the result of intelligent design has been the necessary condition for the construction of Western science, and it explains the otherwise mysterious fact that science, in any genuine sense of this world, arose only in countries that were part of Christendom.

Intelligent design, in other words, was a constructive illusion. Who cares if an idea be true, if it has proven so fruitful in generating insights into the nature of things-a point that Immanuel Kant makes in his last great work, The Critique of Judgment, where he argues that in order to do science at all, scientists must begin by assuming that the universe has a far greater orderliness and intelligibility than these same scientists can ever hope to prove. Rather, they must begin by having a faith that the universe has been intelligently designed, in order to inspire them with the determination to discover this design, no matter how long it takes or however serious the obstacles to such a discovery prove to be. If, on the other hand, scientists began by assuming that the universe was simply a random, capricious, lawless hodge-podge of unconnected events, then who would ever be stirred to seek hidden patterns of regularity and veiled orders of significance?

If you can’t find the time to read all of Harris’ article, at least read Cerber’s excellent summary.

It is not difficult to convince conservatives today that many Progressives -- Wilson, Croly, Goodnow, etc. -- were enemies of the American founding and its principles of limited, constitutional government. But Theodore Roosevelt remains, in some ways at least, an attractive figure for some conservatives.

A few weeks ago, the very capable Andy Busch posted an editorial which pointed to certain virtues in TR’s progressivism (while being careful to criticize other elements of it). I have offered a friendly critique of his argument in an essay recently posted here.

Don’t Miss George Will’s thorough smackdown of the Democratic Party in today’s WaPo: Tone-Deafness Among Democrats.

He also includes a hard swipe at Republicans along the way: "[The Republican Party] is showing signs of becoming an exhausted volcano. Regarding Iraq, it is mistaking truculent asperity and tiresome repetition for Churchillian wartime eloquence. Regarding domestic policy, intellectual anemia has given rise to behavioral patterns not easily distinguished from corruption, as with the energy and transportation bills."

In the course of commenting on two recent books on campus life, Naomi Schaefer Riley offers a radical suggestion:

What if it became hard to get good grades in college without devoting, say, at least 40 hours a week to attending classes and actually studying for them? One suspects that the alcohol problem--and many problems derived from idleness--would sort themselves out.

What think you, my professorial, parental, and student readers?

Hat tip: Brad Smith.

So asks Dahlia Litwick, in what seems to be a frank admission of the bankruptcy or dotage of liberal jurisprudence. Here are my favorite paragraphs:

A Nexis search for the words "living Constitution" turns up literally dozens of stories by conservatives bashing the premise into a hopeless pulp. But it’s hard to find a creditable recent defense of the Constitution as something greater than the span of its own four corners. And I wonder why.

Is it because the words "living Constitution," like the words "feminist" or "liberal," have become wholly appropriated by the Rush Limbaughs of the world? Or is it something deeper—a sense on the part of serious liberal thinkers that Roe v. Wade, with its kabbalistic talk of constitutional penumbras and emanations, really is indefensible? Is it, as I have argued before, that we are all secretly afraid that Scalia is right? That a living Constitution is nothing more than a bunch of monkeys on chandeliers?

Calls for minimalism or pragmatism or incrementalism are now in vogue for progressives. That has all the taste of penumbras and emanations, but only half the calories.

I’d write more, but it’s late, and I’ve been working on a talk I have to give to the incoming freshmen (title: "Reading Lolita in Atlanta").

Hat tip:
Southern Appeal.

I have been involved in an extended conversation regarding judicial review over at NRO’s Bench Memos Blog. Because I thought it would be of interest to NLT readers, I reprint it below. Some of the references are to previous posts and the writers who posted them, but all-in-all it should make sense from context.

I have resisted rejoining the discussion of judicial activism (which morphed into a discussion of judicial review) because I thought that we had wandered from practical topics to academic ones less relevant to Roberts’s nomination. However, Specter’s recent misguided letter to Judge Roberts emphasized that some elements of judicial review will be relevant to the nomination process, and so I offer a few thoughts about the recent discussion between Matt, Gerry, Robby, and Mark.

Gerry and Robby ably point out the difference between judicial review and judicial supremacy. The prior does not require the latter. Or, to put it in wonky terms, Marbury does not require Cooper v. Aaron’s delusions of grandeur about every page of the U.S. Reports constituting the supreme law of the land. There is ample room for coordinate branch construction. Each branch has a duty to interpret the Constitution. At a elementary level, this is accomplished by Congress passing laws which it believes to be constitutional, the Executive by signing and enforcing laws it believes to be constitutional laws, and the judiciary interpreting the laws. The branches need not agree. Thus, Jefferson instructed his U.S. Attorneys not to enforce the Alien and Sedition Acts because he believed the law to be unconstitutional, even though some courts, and implicitly Congress in passing the law, had expressed opinions differing from his. To provide another example, in 1862, Lincoln’s Attorney General was asked by Treasury Secretary Chase whether a Black men are "citizens of the United States, and therefore competent to command American vessels?" Finding that the binding precedent of Dred Scott was limited to the facts, law, and ultimately parties of the case, the Attorney General found that Black men born in the U.S. were citizens, and therefore could command U.S. vessels.

However, the fact that the other branches could exercise their powers of constitutional interpretation regarding these issues (as they could on any constitutional issue) does not remove these issues from the proper jurisdiction of the Court. Coordinate branch construction does not equal the political question doctrine: just because another branch is capable of interpreting a question doesn’t mean that the issue is withheld from the other branches (or, more specifically, from the jurisdiction of the Court), unless the Constitution clearly reserves determination to a particular branch. In the cases of the Commerce Clause, for example, there is no such plain reservation of the issue, and so I must respectfully disagree with Matt concerning the appropriateness of courts exercising judicial review by striking down laws which have nothing to do with interstate commerce.

Matt argues that the Courts have no business deciding a Commerce Clause case "unless as an ancillary matter the legislation or duly-authorized executive action happens to violate a constitutional right quite apart from the commerce-power or implied-power issue." He argues that "[t]he business of courts is to vindicate the rights of individuals. But it has never been demonstrated that any individual has a constitutional right, which can be vindicated in a court of law, to be free from the strictures of any and all unconstitutional actions of legislatures or other government agencies." First, I would submit that his view of the business of the courts does not comport with the text of the Constitution or the view of the Founders. Unless one sips particularly deeply from the Caroline Products footnote 4 Kool-Aid, Art. III’s grant of the judicial power of the United States to the Supreme Court and inferior tribunals is not simply limited to cases of individual rights, but on its plain terms extends to all cases or controversies arising under the Constitution. Marshall rightly understood this general grant of "judicial power" to include the power of judicial review (which is not inherently limited to individual rights cases), and the founders generally saw the courts as exercising a check on the other branches. Second, Matt’s repeated questioning of the basis for Gerry and Robby’s assertion that an individual is entitled to only have constitutionally valid rules applied can be answered by the text of the Constitution: specifically the Due Process Clause. Even a narrow understanding of Due Process would encompass the right not to be prosecuted under laws improperly passed—laws which are not law at all—in this case, because the legislature exceeded its authority.

There have also been various rumblings about the anti-Democratic nature of striking down a popularly enacted law. This line of argument seems to neglect that the Constitution itself was Democratically enacted, and is superior to simple legislative enactments. (Yes, the process wasn’t perfectly Democratic, but neither is our system of passing laws, which includes the non-proportional Senate as well as the anti-Democratic check of Presidential veto.) Consider the following hypo: Angered by the Supreme Court’s recent decision in Kelo, the legislatures of two-thirds of the states convene a convention, during which they recommend an amendment clarifying that taking private property for the purpose of transferring said property to private entities in order to enhance tax revenue does not constitute public use. Three fourths of the states ratify the amendment. Congress, in clear violation of the amendment, subsequently proceeds to take Matt’s house to build an outlet mall. Would the Court be acting anti-Democratically by striking down the taking as violative of the constitutional amendment? Does it act anti-Democratically when it enforces other provisions enacted by Constitutional conventions in the several states, such as the Commerce Clause? And even if it were, in some sense, anti-Democratic, does that mean that it is not part of our constitutional system, like the veto, which likewise is intended to serve as a check to unconstitutional legislation (but again does NOT serve as a basis for precluding judicial review)?

The writers on this page have done well to illustrate that the legislative and executive branches have a duty to interpret the Constitution. Unfortunately, if one reads the floor statements on McCain-Feingold, or the signing statement of President Bush for the same bill (in which both branches declared their respective belief that sections of the bill were unconstitutional, but suggested that it was not their job to make such a determination), it becomes clear that these branches have bought into the theory that it is exclusively the Court’s job to make constitutional determinations. This is wrong. However, we should not make the opposite error and presume that the courts have no proper authority to review the constitutionality of these enactments.

What, then does all of this have to do with Specter’s letters to Judge Roberts, which complain about the Supreme Court’s decisions striking down congressional enactments in Lopez, Morrison, and Garrett? Specter suggests these decisions are activist, and argues for greater deference for legislative fact finding. While there is a general presumption in favor of the constitutionality of congressionally-passed legislation, that presumption is predicated upon the understanding that Congress fulfills its collateral duty of passing only legislation within its constitutional competence. As the McCain-Feingold example illustrates, however, many in Congress now view those determinations to be outside their scope, so that they can pass legislation they believe to be unconstitutional, while leaving it to the courts to figure out the details. Admittedly, this is in large measure a result of the Cooper-judicial-supremacy understanding of judicial review, but there is more to it than that. For years, the Supreme Court had a co-dependent relationship with Congress—each facilitating the other’s aggrandizement of power. Thus, Congress yielded to the Courts as the sole arbiter of all things constitutional, and the Supreme Court signed off on Congress’s increasingly bloated theory of its own power. Regrettably, it has gotten to the point that even reliable Congressmen no longer understand the first branch to be one of limited powers—at least, they give no hint of this based on the legislation they offer and support. Findings are larded into the record without serious consideration, and these same findings are in turn used to support boilerplate language concerning Congress’s authority to pass particular legislation under provisions of the Constitution intended to be limited, but now relied upon to be plenary grants of power. So in response to Specter, the enforcement of these constitutional limitations by the Court is not judicial activism, even where Congress disagrees. It is not the assertion of will over judgment. Rather, it is simply the Court carrying out its constitutional duty to use judicial review as a check against the flagrant abuses of the legislative branch.

Here’s the report, which I’ll try to read tonight. You would, of course, not be shocked by the bottom line: the PFAW doesn’t think he should be confirmed.

This is a heartening portrait of the American Muslim community. It highlights the differences between the circumstances of most American Muslims and a substantial portion of their European counterparts. With a few exceptions, Muslims seem to be integrating into American society economically and socially. Of course, the exceptions are worrisome, for obvious reasons. It may take a village to raise a child, but it only takes a cell to level a building.

According to this AP report, the state legislature of North Carolina has recently passed a law requiring that courts give information on how to apply for a concealed-carry permit to all battered spouses when they come forward to request restraining orders.

"We’re not interested in them shooting their abusers," said Paul Valone, president of Grass Roots North Carolina. "We’re interested in delivering a message: When police can’t protect these people, they are capable of protecting themselves."

Now here’s a feminist cause worth getting behind.

Hat tip: Division of Labour

And now, a story from just up the road from Ashland, where 65 high school girls (our of a total of 450 or so) are pregnant at Timkin High Schoolin Akron.

The punch line in the story reads: "School officials are not sure what has caused so many pregnancies. . ."

Um, maybe they need some more No Child Left Behind funds for this one.

(Hat tip: The Corner.

Michael Barone gets around to summarizing some of the findings of this survey report, released last month. Here’s a taste:

support for terrorism in defense of Islam has "declined dramatically," in the Pew report’s words, in Muslim countries, except in Jordan (which has a Palestinian majority) and Turkey, where support has remained a low 14 percent. It has fallen in Indonesia (from 27 percent to 15 percent since 2002), Pakistan (from 41 percent to 25 percent since 2004) and Morocco (from 40 percent to 13 percent since 2004), and among Muslims in Lebanon (from 73 percent to 26 percent since 2002).

Support for suicide bombings against Americans in Iraq has also declined. The percentage reporting some confidence in Osama bin Laden is now under 10 percent in Lebanon and Turkey, and has fallen sharply in Indonesia.

Similarly, when asked whether democracy was a Western way of doing things or could work well in their own country, between 77 percent and 83 percent in Lebanon, Morocco, Jordan and Indonesia say it could work in their country -- in each case a significant increase from earlier surveys. In Turkey, with its sharp political divisions, and Pakistan, with its checkered history, the percentages hover around 50 percent.

It is fair to wonder whether any of this would have happened without U.S. intervention in Afghanistan and Iraq and the U.S. push for greater responsiveness and public involvement in government there.

A few weeks back we had a thread going here about "bovine emissions" in California’s central valley. Now, according to LA Times fine environmental writer Miguel Bustillo, another source has come under the magnifying glass: wineries.

Win Myers has left the building, though the Democracy Project site will remain one of my favorites. Win has all sorts of fun stuff to divert him from blogging, so I expect that his voice will still be heard and his influence felt.

Update: Win and his blog get some well-deserved recognition here.

If you missed this Mark Steyn column, you can read it now. A taste:

They’re not children in Iraq; they’re grown-ups who made their own decision to join the military. That seems to be difficult for the left to grasp. Ever since America’s all-adult, all-volunteer army went into Iraq, the anti-war crowd have made a sustained effort to characterize them as "children." If a 13-year-old wants to have an abortion, that’s her decision and her parents shouldn’t get a look-in. If a 21-year-old wants to drop to the broadloom in Bill Clinton’s Oval Office, she’s a grown woman and free to do what she wants. But, if a 22- or 25- or 37-year-old is serving his country overseas, he’s a wee "child" who isn’t really old enough to know what he’s doing.

Read the whole thing.

Here’s news of a different college ranking. While I’m at it, here’s yet another approach to ranking liberal arts colleges.

And if I couldn’t spend the first day of class handing out a syllabus, I’d tear out what little hair I had left.

These two NYT articles range from skeptical to hostile, but are nevertheless useful. The Discovery Institute couldn’t afford to pay for such publicity, given its remarkably modest budget.

This is how the landlord-tenant relationship should work, not at all like this.

Here are the most revealing Roberts church/state memos readily available on the web. On p. 10 of the pdf, he offers a very subtle analysis of the conflicting opinions in Wallace v. Jaffree, a 1985 school prayer/moment of silence case. Roberts speculates that Rehnquist’s long (and, I think, quite compelling) dissent--aimed pretty squarely at the much-controverted Lemon test--was drafted as a majority opinion, but failed to persuade Sandra Day O’Connor and Lewis Powell. According to Roberts:

Thus, as I see it, Rehnquist took a tenuous five-person majority and tried to revolutionize Establishment Clause jurisprudence, and ended up losing the majority. Which is not to say the effort was misguided. In the larger scheme of things what is important is not whether this law is upheld or struck down, but what test is applied.

Roberts’s implicit criticism of the Lemon test is quite consistent with the lines of argument I (and others) have found in our examination of the briefs he authored or co-authored. The contrast between Roberts’s doctrinally driven approval of Rehnquist’s efforts and O’Connor’s disapproval could not be clearer and could not, to my mind, redound more in Roberts’s favor.

If you feel like reading more about these matters, see this WaPo article, which reports on memos not yet available on-line, and this overview, written by the Kansas City Star’s well-regarded religion writer.

A number of discussion threads on previous posts on Cindy Sheehan and other subjects have come back to the purpose and justness of the Iraq war. And as has been the case for more than two years, the matter gets wrapped up in the red herring of the WMD issue.

Why red herring? Because, as several commentators have noted, WMD was only one among several reasons given for the invasion of Iraq, and focusing in this alone is to ignore grand strategy. That WMD was overemphasized is the result of pure legalism (probably deferring to British insistence, I am told around DC), since WMD was the live legal issue that might have got UN blessing. A clear mistake, in retrospect. But does anyone think that if we had found WMD, the carnage and difficulty in Iraq today would be any less controversial? Would Cindy Sheehan not have gone to Texas if we had found a huge sarin gas plant? (Remember: She has said she opposes our actions in Afghanistan, too.)

Iraq, it is said, didn’t attack us on September 11 (though we were in a de facto state of war already, with Iraq shooting at our UN-sanctioned flights every day and having attempted to assassinate a former U.S. president, among other things). True, but neither did Germany attack us in 1941. Yet after Pearl Harbor, where did we land troops first? North Africa. Go figure.

Throughout 1942 there were numerous opportunistic Republicans criticizing FDR’s "Europe first" strategy, saying, "Japan attacked us, not Germany; why are we getting involved in Europe again. It ended badly last time, etc." (See Fred Siegel’s fine account of this in his book Troubled Journey.) Sounds rather like the other party today. Democrats lost something like 60 House seats in the 1942 election; the great collective memory of American unity in the early innings of WWII is a myth.

The grand strategy after September 11 is fairly clear: we are going to attempt to restructure the Middle East. It is put in more idealistic terms (democracy, etc), but then transforming Japan and Germany into stable democracies was not the explicit endgame of WWII grand strategy either. In this case we are more forthright about the desirable endgame. Today we have reversed the rhetoric, which, conversely, makes the policy more difficult to judge a success along the way. Perhaps we should have started with Iran instead (this is Michael Ledeen’s argument) or with Saudi Arabia or Syria (Libya seems to have got the message), but it cannot be denied that this, and not WMDs, is the central purpose afoot.

It could be put even simpler. In a conversation with a moderate liberal journalist friend in Washington who hates the war and has become a huge Bush critic, I remarked that the whole thing was rather more straightforward: When something like September 11 happens, someone is going to lose their country. Iraq is at or near the top of any short list of candidates. To which he replied: If Bush had said that, I’d could support it.

Richard Cohen tells the story of Nicolas Morse, who is being prosecuted in New York City for a hate crime because he used racial epithets while he participated in a group attack on a black man. That it was a crime there is no doubt--but what makes it a "hate crime"? Morse himself, as Cohen points out, is half Filipino, and his sister is half black; it’s hard to believe that he’s a bigot. Yet this is inevitably the road that we find ourselves traveling once we start punishing people for their thoughts, rather than their actions.

Incidentally, it’s difficult to argue in this case that the elimination of hate crime laws serves the interest of white males. Cohen writes:

As if to show how absurd the hate crime law can be, Westchester District Attorney Jeanine Pirro last month charged a deranged and homeless black man with a hate crime for killing a white woman only on account of her race.

Peter’s illness has left an enormous void here at NLT (no doubt elsewhere as well), one that I couldn’t fill even under the best of circumstances. But my blogging circumstances this week have been less than ideal. I’m currently sitting in the tiny lobby of our resort complex, connecting through their wireless router. I have about an hour a day to catch up with email, cruise around the ’net, and blog. The rest of the time I have to suffer through sun, sand, and pool. But our time in this little share of paradise ends tomorrow, after which I’ll be up to my usual tricks. See y’all soon!

Many months ago, I took note of the case of Richard Sternberg, a Smithsonian research associate who was under fire for publishing an article on "intelligent design" in a journal he edited. Today’s WaPo has this update.

Here are the concluding paragraphs:

Sternberg has seen stress piled upon stress in the past year. His marriage has dissolved, and he no longer comes into the Smithsonian. When the biological society issued a statement disavowing Meyer’s article, Sternberg was advised not to attend. "I was told that feelings were running so high, they could not guarantee me that they could keep order," Sternberg said.

A former professor of Sternberg’s says the researcher has an intellectual penchant for going against the system. Sternberg does not deny it.

"I loathe careerism and the herd mentality," he said. "I really think that objective truth can be discovered and that popular opinion and consensus thinking does more to obscure than to reveal."

Nothing has shaken my sense that what we’re seeing here is the defense of an orthodoxy rather than encouragement of free inquiry.

The Sheehan story now looks to run on as long as the Iranian hostage crisis. No doubt CBS News will soon end its broadcast with a signoff line inspired by Cronkite’s "That;’s the way it is, on Day 325 of the Iranian hostage crisis."

Here’s today’s Sheehan commentary roundup, courtesy of realclearpolitics:

David Gelernter doesn’t care for Sheehan (LA Times). In the Wall Street Journal, Dan Henninger compares the media fascsination with Sheehan to their similar fascination with Natalee Holloway’s mom in the Aruba case. (By the way, hasn’t the media solved that case yet?) Finally, for liberals who are on decaf and blood pressure meds, there’s Ann Coulter’s take on the story.

One of the more interesting commentaries out is from Patti Davis, President Reagan’s rebellious daughter who has blossomed into a first class writer. In this piece, she offers a poignant personal reflection: "During the course of my life, I have accumulated a lengthy list of regrets that I seem incapable of editing down, but this regret remains perhaps the most prominent. It was so immature, so disrespectful, to essentially say to someone—in this case, my father—no, I have no interest in listening to what you want to say to me."

But then she goes on to show that she hasn’t quite learned her lesson, though. She thinks Bush should see Sheehan again. She should ponder Edmund Morris’s reflections on this question, with reminiscences about Patti’s own father.   

Don’t miss David Ignatius in today’s Washington Post. Money graph:

So where are the Democrats amid this GOP disarray? Frankly, they are nowhere. They are failing utterly in the role of an opposition party, which is to provide a coherent alternative account of how the nation might solve its problems. Rather than lead a responsible examination of America’s strategy for Iraq, they have handed off the debate to a distraught mother who is grieving for her lost son. Rather than address the nation’s long-term fiscal problems, they have decided to play politics and let President Bush squirm on the hook of his unpopular plan to create private Social Security accounts.

Because they lack coherent plans for how to govern the country, the Democrats have become captive of the most shrill voices in the party, who seem motivated these days mainly by visceral dislike of George W. Bush. Sorry, folks, but loathing is not a strategy -- especially when much of the country finds the object of your loathing a likable guy.

Like Steve, I have felt very little need to comment on the Sheehan story. No one can question the sincerity of her grief at the loss of her son. However, a post on TAPPED this morning causes me to break the silence. Garance Franke-Ruta offers the following quote from a Dana Milbank article in WaPo:

In a broader sense, none of the particulars about Sheehan matters: not her remarks about Israel and neocons, not her lefty politics, not her divorce and not whether she’s entitled to a second presidential audience. What matters is her ability is to serve as an icon, a symbolic rallying point for an antiwar movement. And all she needs to achieve that is the moral claim she already has, being the mother of a kid who was killed in Iraq.

I find this a bit ironic, because I have serious doubts about whether the source of her standing--her fallen son Casey--would have wanted her to do this. I spent 5 months in Iraq last year reporting for NRO and the Ashbrook Center, and I met a lot of Caseys—men who felt a sense of duty to serve, and men who understood why they were there. Remember: Casey did not just volunteer, he re-upped after the war started. The men in Iraq were appalled by the attempts of politicos in the U.S. to use the deaths and injuries of their comrades as anti-war rallying cries. They were appalled by Senator Kennedy’s grandstanding about the casualties as evidence of quagmire.

I must admit that I had my own fears about being used in such a way, which is why I wrote an article for Ashbrook and NRO which, thankfully, was never published. You see, my parents are liberal, and opposed the war. I feared that if I were killed in Iraq, either my parents, or Ted Kennedy-types might use my passing for their political ends. Admittedly, I do not think that my parents would have taken to the media blitz of Sheehan, but I could understand how their own politics might have entered into conversations with reporters who called, and the reporters could have used it to forward an agenda that I had seen far too vividly among the reporter-class in Iraq. I therefore drafted a final article which I left with my office, explaining why any politicization would be inappropriate based upon my experiences in Iraq. It is the sort of letter that I think most soldiers, who see the day-to-day good that is occurring in Iraq, would also likely write, given their comments to me in the field. Casey left no such letter to my knowledge, and while I cannot speak for him, my own experience with soldiers on the ground and with my parents, who I love but with whom I disagree, gives me graves doubts as to whether Cindy speaks for him either.

I’ve been watching this Able Danger train wreck unfold for the last week or so, believing that the conservative media was probably getting ahead of the full facts. Today Mickey Kaus suggests that what Able Danger came up with was a different Mohammed Atta.

I’ve met Mickey and like him, but sometimes I’m never sure whether he is pulling our leg on his blog. And even if something like this is true, it wouldn’t absolve the Clinton administration from the foolhardiness of the FISA "wall" between intelligence services and domestic law enforcement.

Manuel Miranda reminds us that a month before the hearings Clarence Thomas looked like a shoo-in too.

My very favorite Saturday Night Live sketch ever, "Plato’s Cave," with Steve Martin as a Beat poet, aired in the fall of 1976. Bliss was it to be alive in those days.

I’ve wanted to stay far away from the Sheehan protest, which is generating more heat than light, but someone on a discussion thread noted the absence of any Sheehan-related analysis on NLT. Okay, I offer as Exhibit One James Lileks’ column, which is a pretty hard hit on the latest media darling.

Here is a study that ranks America’s most liberal and conservative cities. Check it out: see how your metro area scores.

I agree with Manuel Miranda that trying too hard to win friends on Roberts may well come back to bite the Bush Administration if and when there’s another nomination opportunity. They’re almost conceding that something approaching consensus should be the goal, which in effect hands a weapon to the obstructionists.

Christopher Levenick has a very nice piece in the current Weekly Standard contrasting Sandra Day O’Connor and John Roberts on church/state matters. Here’s a telling paragraph:

O’Connor’s endorsement test ultimately relies on how people perceive themselves, whether they sense themselves as outsiders or full members of the political community. Her overwhelming concern is how people feel, rather than how they are actually treated. Unfortunately, subjective feelings are a notoriously unreliable legal criterion, and one that inevitably leads--as O’Connor herself learned in the Pledge case--to a tyranny of the easily offended. Roberts, in marked contrast, proceeds on the basis of tradition and of common sense, both of which suggest that religious establishments trespass the Constitution only when they preferentially receive public funds, or rely on the force of the state.

Read the whole thing.
   

For those of you thinking about sending your good wishes to Peter during his hospital stay, here is his address:

Peter Schramm

Intensive Care Unit - Room 10

Baylor Medical Center at Irving

1901 N. MacArthur Blvd.

Irving, TX 75061

Since he is in intensive care, flowers and gifts cannot be accepted--although a card would be fine.

Also, please refrain from calling the hospital to inquire about Peter’s condition. Occasional updates will appear on this blog, as appropriate.

For a time in the late 1980s and 1990s it was a frequent theme that the U.S. was running out of landfills. It struck me then as another overheated mini-crisis, but it led to a number of counterproductive and inefficient laws and regulations. Today the New York Times discusses this exaggeration.

Hat tip: Instapundit.

I will keep you up-to-date on Peter's condition. I hope you will remember Peter, his wife Vicki, and their family in your prayers.

Sincerely,
G. William Benz
President, Ashland University

Michelle Malkin has the details of deaths associated with the use of the abortion pill RU-486. If this were any other drug (Vioxx perhaps??), "consumer groups" and other watchdogs would be screaming for the FDA to take it off the market.

As I speculated in my post below, the Christopher Walken presidential candidacy is a hoax.

This sounds revolting, but if it works, days like today here would be even more pleasant than they already are.

As some of you may be aware, I am an amusement park junkie--although of a particular sort. I don’t go in for the Six Flags/Cedar Point superparks, I prefer the old independently-owned ones that have somehow managed to survive. My favorite is probably Kennywood in my hometown of Pittsburgh.

This week I finally had a chance to visit Knoebels in Elysburg, Pennsylvania, and even though it was beastly hot (90s and humid) my wife and I had a fine day. Knoebels has two great wooden coasters, both of which have been built in the past ten years. But what I really came to ride was the Haunted Mansion (not to be confused with the Disney ride of the same name), which is legendary among fans of dark rides (good sites on this subject are the Darkride and Fun House Enthusiasts page and Laff in the Dark). Now I’ve been through a lot of haunted houses in my day, and this stands out as perhaps the best. The special effects weren’t Disney quality, of course, and a lot of the stunts will be familiar to any dark ride fan--the old snake-in-the-clock, the oncoming bus (complete with deafening air horn), the waterfall that stops just as you’re about to pass under it, etc. But on this ride the action happens only inches from where the cars go past. As a result you spend the entire ride wondering what’s going to pop out at you next. Lots of fun.

By the way, if you like dark rides, another good one is the Whacky Shack at Waldameer Park in Erie.

By the way, Cedar Point, despite its huge size, doesn’t have a single dark ride. No wonder I don’t like it.

Orlando Sentinel columnist Peter Brown makes a compelling case that the AMT (alternaive minimum tax--grrr) results in the blue states subsidizing the red states (since state taxes tend to be lower in red states), and such ought to be kept. Hmmm. Almost makes me change my mind about this hated tax. I have noticed since the election that not a few liberals have started to discover the virtues of federalism, since blue states pay more taxes than red states and thereby subsidize the red states. Could it be? Liberals leading a tax revolt?

Michelle Malkin takes liberals to the woodshed for their hypocrisy in their continued and unrelenting attacks on Florida Congresswoman, Katherine Harris for her appearance and also for their repeated and coarse references to her breasts while crying "sexism" for every other real or imagined slight. For my part, I am not surprised. People (of all political stripes) often react so when confronted by successful, intelligent and attractive women--particularly when their own arguments are lacking. They foolishly think that by insulting a woman’s vanity, they will shut her up. But Katherine Harris is a big girl and I don’t think she will be moved by any of this. Besides, while I’m no judge of these matters, I think she looks great for woman of her age and position.

Still, it is interesting to note some of the vile things these "enlightened" purveyors of liberal wisdom are willing to say for their cause. Odd that their hypocrisy--first and formost among all sins with most liberals--does not smack them in the face.

that I will be out of town for the next week. Since I don’t know about internet access where I’m going, blogging may be light or even non-existent. I’ll likely be suffering withdrawal pains.

A few parting thoughts: First, if you’re in the Atlanta area on Monday, September 12th, drop by Oglethorpe University in the late afternoon. I’m hosting a discussion of approaches to constitutional interpretation featuring Michael DeBow, who teaches at Cumberland School of Law and blogs over at Southern Appeal, and Gerald Weber, Legal Director of the ACLU’s Georgia Chapter. I’ll post more details as the time grows nearer.

Second, if you have the opportunity to see this phenomenal one-man show, don’t hesitate. We’ve been fans of hometown boy Brad Sherrill for a long time, and his presentation of the Gospel of John is absolutely compelling. Here’s the schedule.

See ya soon!

Hollywood actor Christopher Walken is supposedly running for president in 2008. From the looks of this website, this is a joke, but then when it comes to Hollywood types, who can tell?

Under withering fire from some ordinarily friendly places, NARAL has decided to pull its ad accusing John Roberts of supporting abortion clinic bombers, though a "NARAL spokesman said it will remain on the air for another day or more until the substitute ad is produced and made available."

While many leading Democrats (Edward Kennedy, Harry Reid, and Nancy Pelosi, for example), have distanced themselves from the ad without repudiating its contents,
former Clinton Administration official Lanny Davis has been actively denouncing it.

On the other hand, Barbara Boxer has
embraced the charges, repeating virtually word for word the line about siding with "the nation’s most violent anti-choice extremists." Of course, the speech reveals more about her than about Roberts. While these events were surely awful and demanded an effective law enforcement response, it doesn’t mean, as Boxer (and others) seem to think, that we should simply grab any legal tool at hand, regardless of its appropriateness. Nor does it mean that we should always involve the federal government. On these issues, compared with Boxer, Roberts looks great, which comes perilously close, of course, to damning him with faint praise.

One last point about Boxer’s speech. In this passage, she reveals that she is either ignorant or mendacious:

We can never forget the days before Roe…the days of back alley dangerous illegal abortions when thousands of women died every year. We cannot go back to those dark days.

As everyone ought to know, the overruling of Roe at most simply leaves the regulation of abortion up to the states. If, as she contends, 65% of the American people support abortion rights, what does she have to worry about? Is she not confident about that number? Does she fear that that number includes many who support limited access to abortion (restricted, perhaps, to cases of rape, incest, and threats to the mother’s health)? Hmmm.

George Will delivers a well-deserved smackdown to the perpetually truth-challenged Jimmy Carter in today’s Washington Post. Will leaves out one telling detail about that episode. Carter’s debate briefing book was nearly 1,000 pages long, as befits Carter’s control-freak personality (its very length, to paraphrase a Churchill quip, defended it from the risk of being useful to the Reagan campaign). Reagan’s debate briefing book, by contrast, was only 72 pages. There he went again. . .

All I can say is WOW! I’ve bookmarked it.

From north of the border, Tom Cerber calls our attention to this piece by Keith Whittington.

Cerber is--rightly, I think--a little dubious regarding what appears to be Whittington’s "official" thesis--that Presidents have "always sought to pick justices who would, by the president’s lights, get the Constitution right." This surely underestimates the political considerations that have in part motivated some nominations. But by keeping our eye on the central responsibility of the judiciary and on the way in which Presidents should respect that role in their own choices, Whittington does us a service. Whatever roles "diversity" and "balance" may have in legislatures and in the choices made by individual voters, they ought to have no role in judicial nominations. We ought to want a Supreme Court that looks at the Constitution, rather than one that looks like America.

Update: Gerard Bradley has more, almost all of it much smarter than anything I said.

. . . it would look like this.

Dan Balz, writing in the Washington Post. on the "culture gap" facing Democrats.

On the other hand, see this book, by Mo Fiorina of Stanford University/Hoover Institution, who argues that the whole "red-blue" schematic is way overstated, as does lefty Robert Kuttner in today’s Boston Globe.

This article offers an account of a New York City lawsuit regarding religious groups’ use of school buildings for worship. In a nutshell, the argument against it is Sandra Day O’Connor’s "endorsement" test; the argument for it is equal treatment and access. Note these statistics:

• On Fridays, the district issued 2,717 permits to groups ranging from the Girl Scouts to labor unions. Thirteen permits went to religious organizations: six Buddhist, six Christian and one Jewish.

• On Saturdays, 7,450 permits were issued. Forty-four of those went to 15 religious organizations: eight Christian, four Jewish, two Buddhist and one Jehovah’s Witnesses. (The board requires some groups to get several permits for one meeting.)

• On Sundays, the board issued 2,168 permits. Fifty went to religious groups: 35 Christian, 11 Buddhist, three Hindu and one Muslim. In some cases, multiple groups use the same building.

The religious groups ought to win this at all levels, without any problem.

This article summarizes this focus group study (10 page pdf), conducted among possible swing voters in four "middle American" states (Arkansas, Kentucky, Colorado, and Wisconsin). The people in the groups were independents, weak partisans, and those who voted for GWB in 2004 but now disapproved of his performance. The big takeaway is that even among these swing voters, national defense and cultural issues loom so large as to make it difficult for Democrats to gain much ground. Here’s a snippet:

These focus groups powerfully demonstrated that as Democrats seek to redefine their
party, both for the 2006 election and beyond, they face some hard truths. No matter how
disaffected they are over Republican failures in Iraq and here at home, a large chunk of white
non-college voters, particularly in rural areas, will remain simply unreachable for Democrats at
the national level. Furthermore, Republicans and their allies on the right have very effectively
used their bully pulpit and their media echo chamber to define Democrats as weak on defense
and security issues, hostile to religious faith and the role it plays in most Americans’ lives,
enamored with big government solutions to every problem, and obstructionists with no positive
agenda or new ideas of their own.

Democrats who seek to draw parallels to 1994 and Republicans’ success in turning
dissatisfaction with Washington and the country’s direction into a sweeping off-year
congressional victory must recognize that Democrats are not making any gains, even as
Republicans continue to lose ground, and no such victories will be possible until Democrats can
rebuild their own standing in voters’ minds. The unity Democrats showed in opposing President
Bush’s Social Security privatization plans was an important first step for a party seen as weak
and standing for nothing, although it also served to reinforce the belief among many red state and
rural voters that Democrats are quick to oppose Republican initiatives but have no positive
agenda of their own.

The authors sketch an agenda they think might be helpful to Democrats, focusing on matters such as health care, veterans’ benefits, and stem cell research.

Here’s what they have to say about the stem cells:

Polling has consistently demonstrated the broad public support for
stem cell research, and these focus groups clearly reinforced those findings. However,
the real power of this issue is its ability to confound many voters who otherwise align
themselves with Republicans on cultural issues and to change the very definition of
‘moral values’ from the narrow classification of abortion and gay marriage advanced by
the religious right and its allies.

While much of the debate in Washington and in the media has been focused on the
science, voters discuss stem cell research in strictly moral tones. They don’t differentiate
between existing and new lines, nor do they discuss embryonic vs. cord blood; they
simply see the opportunity to develop new medical breakthroughs as a moral imperative.

Here’s an article to read in conjunction with these last two paragraphs. I agree that this is an oportunity for the Democrats. If (or is it when?) the President vetoes the stem cell legislation that arrives on his desk, he had better offer a very compelling explanation of what’s at stake.

If you want to have a happy marriage.

Of course, my other not-so-well-known guilty pleasure was this band, which came to an end 10 years ago today with the death of Jerry Garcia. Fellow rocker (and NRA spokesman) Ted Nugent supplied the obvious lesson in a bit of doggerel that goes something like this (I quote from memory):

Jerry did drugs
And Jerry’s dead.
I went hunting,
And I’m still Ted.

Slate magazine offers a compelling cultural history of one of my favorite guilty pleasures: ranch dressing.

This NYT op-ed argues in favor of Tony Blair’s new-found (and dearly-bought) domestic toughness.

Here’s a taste:

As Westerners bow down before multiculturalism, we anesthetize ourselves into believing that anything goes. We see our readiness to accommodate as a strength - even a form of cultural superiority (though few will admit that). Radical Muslims, on the other hand, see our inclusive instincts as a form of corruption that makes us soft and rudderless. They believe the weak deserve to be vanquished.

Paradoxically, then, the more we accommodate to placate, the more their contempt for our "weakness" grows. And ultimate paradox may be that in order to defend our diversity, we’ll need to be less tolerant. Or, at the very least, more vigilant. And this vigilance demands more than new antiterror laws. It requires asking: What guiding values can most of us live with? Given the panoply of ideologies and faiths out there, what filter will distill almost everybody’s right to free expression?

Of course, Ashland’s own
David Foster still says it better.

This article nicely summarizes Jon Roberts’s record on the D.C. Court of Appeals. A couple of snippets:

"He’s a conservative. He’s not an extreme ideological conservative," said Thomas Goldstein, founder of Goldstein & Howe, a District-based law firm that specializes in Supreme Court cases. "He’s what I would call a federal-power conservative. I don’t think he’s a states-rights conservative, and I don’t think he’s an anti-government conservative. And this may reflect his time in the executive branch."

Bradford Berenson, who worked in the White House counsel’s office from 2001 to 2003, was among those whose recommended that President Bush put Judge Roberts on the first slate of candidates for appeals court slots.

He said Judge Roberts is "not the kind of judge you can predict based on the identity of the parties" or by the politics of the litigants.

"He wants to find the right answer, and he will go where the law takes him," Mr. Berenson said. "He’s an ump who calls the balls and strikes as he sees them."

Mr. Berenson said it is impossible to know how Judge Roberts would approach Supreme Court precedent were he to be confirmed to the high court.

"But everything we know about him thus far suggests he is rather more reluctant to do that than some of the more aggressive conservative judges," Mr. Berenson said.

Read the whole thing.

I don’t need to say any more than this about NARAL’s mendacious and despicable ad. If, however, you have the need to read more, go here, here, here, and here.

Update: Here’s factcheck.org’s analysis of the ad, headlined "NARAL Falsely Accuses Supreme Court Nominee Roberts."

Win Myers assures us that the dirndl is probably safe from EU regulation. Whew!

Of course I don’t care much for network news, and ABC gives CBS a run for the title of having the worst bias, but Peter Jennings was a gentleman. Through a long chain of events that take too long to recount, I got to meet Jennings and spend an hour talking with him in his office at ABC in New York back in the fall of 1993. He couldn’t have been nicer or more cordial, even though I was there to argue with him and his chief producer about their coverage of health care issues and other things. (This was during the run-up to Hillarycare.) He fiddled with his Dunhill cagarette pack through much of the conversation, I remember.

One thing that became apparent from our conversation was the insularity of network news. Jennings asked what was the leading conservative idea for health care. I told him, "medical savings accounts." "Never heard of it," he said, which struck me as rather amazing since he had had John Goodman of the NCPA, one of the inventors and popularizers of the idea, on a townhall show that he (Jennings) had hosted, and had obviously not absorbed a thing Goodman had said. But recall that TV news people have an earpiece in their ear, and listen more to producers than to the guests, as their fundamental obligation is to keep the show moving along. This all goes to remind us that even TV news is show biz.

Jennings also said he respected the critiques of the Media Research Center, the conservative media watchdog. Yet when the Republicans captured Congress a year later, he seemed to move more overtly to the left, comparing the election result to a child’s temper tantrum.

Here, via Religion Clause (indispensable for First Amendment coverage, by the way), is the transcript of yesterday’s "Meet the Press" session with Douglas Kmiec and Mario Cuomo. Not surprisingly, the subject was the relevance of Catholicism to judges.

A few thoughts. First, Kmiec rightly calls our attention to the difference between judges and legislators, between enforcing, interpreting, and upholding law, on the one hand, and making it, on the other. This is a distinction that many, especially on the Left, do not appreciate. However relevant Catholicism may be for a lawmaker, it is much less so, not to say altogether irrelevant for the office of judge.

Second, both Kmiec and Cuomo make much of the fact that judges take an oath (or an affirmation) to uphold the Constitution. The distinction between oath and affirmation is the distinction between a promise guaranteed by God (or by any other deity or deities) and one guaranteed by the individual himself or herself. In this provision, the Constitution itself recognizes that some (perhaps most)individuals will look to a higher authority and regard themselves as answerable to a higher authority than the Constitution itself. We rely on the integrity of their oath to guarantee their (subordinate) allegiance to the Constitution. Perhaps Roberts should say, in response to the question (if asked) that he has already once taken the oath of office, so that he has promised to God that he will uphold the Constitution.

Finally, Cuomo presumes that one can only follow the Church’s teachings "privately," that an observant and obedient Catholic cannot act politically on the basis of his or her faith. Kmiec, of course, disagrees, offering this very nice statement:

When Catholic politicians bring their faith to the legislative branch, they’re not imposing. They’re sharing. If their view is going to be adopted, it’s because the consent of the governed has decided to accept their view. When judges bring their faith, covertly or overtly, to the bench, they’re not accountable politically. They’re given independence only for one reason, because they promise--and here the governor and I completely agree--they promise to observe the text of the Constitution, its history, its structure and the traditions and the Declaration of Independence that undergirds it.

He doesn’t use the expression "natural law," but part of bearing witness or sharing in the public square surely involves making arguments using the reason that the Roman Catholic Church believes all human beings share. Acting legislatively on the basis of one’s conscience is emphatically not imposing one’s private, idiosyncratic views, but participating in and expressing a shared and/or shareable moral understanding.

If you want more, Rick Garnett has it.

The American Political Science Association is moving its 2006 annual meeting from San Francisco to Philadelphia because of labor disputes in the former. Oh well. I love San Francisco as a convention city, but quite like Philadelphia, which has some significant historical, cultural, and culinary charms.

I will be in D.C. this year, but will unfortunately miss this panel, as well as this one.. I will, however, be here and here. Drinks, anyone?

This month’s issue of The Atlantic cites an empirical study testing the old hypothesis that minority students who achieve high grades are accused of "acting white." Harvard researchers Ronald G. Fryer, Jr., and Paul Torelli have found that there is a clear negative correlation between academic achievement and popularity among black and Hispanic teenagers. The problem is especially noticeable among the latter: "popularity begins to decline at a GPA of 2.5 (C+), and a Hispanic student with a 4.0 average is less popular among other Hispanics than one with a 1.0." Interestingly, though, these results only seem to hold true in racially integrated schools; in predominantly black and Hispanic schools the stigma is far less noticeable.

Unless this problem can be dealt with effectively, all the affirmative action programs in the world will fail to bring equality for members of these groups. Indeed, inasmuch as affirmative action serves to reward underachievement by lowering expectations for blacks and Hispanics, it will ultimately only make things worse.

David Brooks offers some interesting statistics that are sure to cheer those who believe in traditional morality. Instances of family violence have fallen by half since 1993, while violent crime in general has dropped by more than half. The number of drunken driving fatalities has declined by 38 percent, teenage pregnancies by 28 percent. What’s going on here? Brooks suggests that were in the midst of a genuine moral revival:

I always thought it would be dramatic to live through a moral revival. Great leaders would emerge. There would be important books, speeches, marches and crusades. We’re in the middle of a moral revival now, and there has been very little of that. This revival has been a bottom-up, prosaic, un-self-conscious one, led by normal parents, normal neighbors and normal community activists.

But, I hear traditionalists say, hasn’t our culture been in steady decline during the past twenty years? What about the rise of violent video games? What about the ubiquity of sex in movies and song lyrics? What about the general coarsening of public discourse? Could it be that these things aren’t as important as traditionalists have suggested? Might it not be possible that in spite of Howard Stern, Grand Theft Auto, and internet porn we’re becoming a better nation? Or--perish the thought--that people might even indulge in such guilty pleasures without becoming chronic ne’er-do-wells?

This review of a new book on Benjamin Franklin makes much of the undeniable rationalism of many of the Founders. Here are a couple of representative passages:

Dray makes clear that Franklin brought to his political work the same rationalism that informed his science. Franklin wasn’t irreligious; he believed in a Creator who paid some attention to what His creatures were up to. But he had no patience with theology; he considered sectarianism a blight and judged reason the appropriate measure of faith rather than vice versa. His parents, solid Puritans, lamented his lapse from orthodoxy; he responded with his own statement of faith: "At the last Day, we shall not be examined [by] what we thought but what we did; and our recommendation will not be that we said Lord, Lord , but that we did GOOD to our Fellow Creatures." One of Franklin’s revisions to Jefferson’s draft Declaration replaced "sacred and undeniable," in reference to the truths the Americans were defending, with "self-evident." The difference was crucial: "sacred" summoned the authority of God, "self-evident" the authority of human reason.

Franklin would no more have looked to Heaven for political guidance than he would have consulted the Bible in fashioning his lightning rod. God gave man reason, he believed, and expected man to use it. Franklin did so with confidence, as did his colleagues.

That was their genius, and it’s what separates Franklin’s generation from ours. Religion hasn’t driven reason from the public square, but it has gained political leverage it never enjoyed in the days of the Founding. Biblical literalism (currently cloaked as "intelligent design") has fought the science of evolution to a standstill in many schools. The very idea of the Enlightenment evokes derisive sneers. Orthodoxy of some Judeo-Christian sort has become a de facto requirement for American elective office; deists in the mold of Franklin, Washington, and Jefferson need not apply. Franklin’s partners weren’t all as scientifically minded as Dray reveals Franklin to be, but they all believed that reason was a surer guide to political progress than religion. And in this belief they accomplished the great things they did.

Yes, the contemporary defenders of reason have lost some confidence, though in the universities this has for the most part come through post-modernism and post-Marxism (e.g., the materialist emphasis on "race, class, and gender"), not through religions. But what they lack in confidence, they often make up in vitriol and condescension toward religious belief. Not only were there orthodox believers among the Founders, but many of them (even many of the rationalists) regarded religion as an ally, not an enemy. Consider, for example, this famous passage from
Washington’s "Farewell Address":

Of all the dispositions and habits which lead to political prosperity, Religion and morality are indispensable supports. In vain would that man claim the tribute of Patriotism who should labour to subvert these great Pillars of human happiness, these firmest props of the duties of Men and citizens. The mere Politician, equally with the pious man ought to respect and to cherish them. A volume could not trace all their connections with private and public felicity. Let it simply be asked where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths, which are the instruments of investigation in Courts of Justice? And let us with caution indulge the supposition that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that National morality can prevail in exclusion of religious principle. ’Tis substantially true, that virtue or morality is a necessary spring of popular government. The rule indeed extends with more or less force to every species of free Government. Who that is a sincere friend to it, can look with indifference upon attempts to shake the foundation of the fabric.

Mere politicians, who may not themselves be pious, would still have a healthy regard for the civic role played by religion. They would welcome it in the public square, not lament its appearance there, or attempt to drive it out. I have explained many times (for example,
here) that talk about theocracy is way overblown. The public square is big and varied, and we ought to be generous in welcoming religious voices into it. The hypersensitivity of the separationists (worrying about the merest hint of "endorsement," for example) needlessly turns up the heat and makes it hard to differences to be addressed and accommodated "reasonably."

Charles Krauthammer has some suggestions. I’m not sure they’re sufficient to ungrease the slippery slope.

Read about it here.

An article in The New York Times talks about Tony Blair’s new plans for attacking Islamist terrorism. According to the Times, "In a 12-point list of measures, Mr. Blair said Britain planned as of today to broaden the grounds for deportation to include ’fostering hatred, advocating violence to further a person’s beliefs or justifying or validating such violence.’" The article misleadingly contends that the "British moves, part of an ongoing debate about the balance between civil liberties and national security, seemed to nudge Britain closer to the hardline attitudes against perceived extremists that emerged in the United States after the Sept. 11, 2001, attacks."

Actually, the American standard for violent speech is much more liberal. In a case that remains the foundation for how courts think about such speech, Brandenburg v. Ohio (1969), the Warren Court overruled many years of precedent and legal tradition and held that advocating violence against a legitimate government or its officials is protected under freedom of speech. According to that decision, speech can only be punished when a person incites someone else to "imminent lawless action" that is likely to happen under the circumstances (for example, telling an angry mob gathered in front of a city hall occupied by officials that "You should string up these infidel dogs right now!"). Until that point, government is powerless to intervene.

So far in the war on terror, the problem of violent advocacy has not mattered much in the US because we have been able to prosecute terrorist cells based on their actions under anti-conspiracy laws. But if the problem of radical imams preaching violence ever surfaces here, American authorities will be powerless to act directly, at least according to the Supreme Court’s current view.

Maybe this is the price we pay for free speech. But contrary to what many Americans might think, this is a new view and it is far from clear that it was the original meaning of the First Amendment.

In Southern California you can find all sorts. The problem, however, is that our diversity has the paradoxical tendency of becoming or encouraging parochialism. I can’t begin to tell you how many "natives" I’ve met here think the sun rises and sets for and because of their little city and its concerns. Unless they have business in some other part of the country, few ever go east of the Rockies. Many apparently "educated" people that I have met here have never even left the state. This, of course, does not prevent them from passing judgment (usually negative or at least smirking) on their fellow Americans in fly-over country. Today, however, thanks to Laura Ingraham’s radio show I am reminded of yet another reason why I miss Ohio.

The United States Lawn Mower Racing Association--soon to have their major annual competition in Mansfield, Ohio--explains, I think, why the "diversity" of Ohio (and the mid-West in general) is so appealing. Here are some real guys, living regular work-a-day lives, who don’t take themselves too seriously, having a good time and making a major industry out of it. Good for them. If I were still in Ashland, I think I’d make time to go and see them.

The media is breathlessly touting recent stories that this year’s extra frequent and strong hurricanes are a sign of global warming, even though the IPCC has discounted this idea in its recent reports. The media is ignoring this statement from NOAA (the National Oceanographic and Atmospheric Administration). Money graph:

"(The) confluence of optimal ocean and atmosphere conditions has been known to produce increased tropical storm activity in multi-decadal (approximately 20-30 year) cycles. Because of this, NOAA expects a continuation of above-normal seasons for another decade or perhaps longer. NOAA’s research shows that this reoccurring cycle is the dominant climate factor that controls Atlantic hurricane activity. Any
potentially weak signal associated with longer-term climate change appears to be a minor factor."

I would have blogged about the brouhaha around this article last night (having listened to a radio rant on my way home from work), but I was enjoying the company of friends at this production of Chekhov’s The Cherry Orchard (excellent, by the way).

First of all, here are today’s stories on the subject. I have two thoughts. In the first place, Roberts’s participation (limited as it was) indicates something of his generosity, capacious enough to encompass those with whom he might have an ideological disagreement, as well as his collegiality. Both of these strike me as indicators of the requisite "judicial temperament." Second, it seems to me that one could argue that the adversarial process works best when both sides are making their strongest arguments, and compelled to respond to the other side’s strongest arguments. Roberts could be said to have contributed (generously) to the most effective possible functioning of the adversarial process, which could matter more than (or at least as much as) a particular outcome. If you want the result of a case to have a chance of standing the test of time, you hope for and work toward effective advocacy on both sides. As an attorney, that’s all you can do.

As a President, however, you also do what you can to assure that the judges deciding the cases can distinguish good from bad arguments and do not permit extraneous ideological considerations to sway their judgment. I still think President Bush has done a good job here.

Andrew Busch, co-author of this classic account of the 2000 election and this soon-to-be classic about the 2004 election, offers his thoughts on progressivism then and now over on the main site. The progressivism of 1906, embodied in Theodore Roosevelt’s State of the Union Message, has a lot more in common with the conservatism of 2005 than it does with contemporary so-called progressivism. Unlike their contemporary namesakes (I hesitate to call them cousins or descendants), the progressives of 1906 believed in national greatness, supported the traditional family, and did not hesitate to criticize the judiciary. If you wonder why Kansans liked progressives then and seem to dislike them now, here’s Busch’s answer:

The left is now perceived, correctly, as the political home of anti-Americanism, unwilling to carry (let alone wield) the big stick or to forthrightly decry the wicked will of despots and barbarians, and willing (if not anxious) to hand over American sovereignty to international bureaucrats. It has furthermore become the political home of social and moral libertinism, whose adherents complain that the Constitution should not be cluttered up with trivialities like marriage because the home life of the commonwealth has few public consequences worth worrying about. And it has become the force in American politics most wedded to government by judiciary, and most reflexively opposed to any effort to put the judiciary under greater scrutiny or accountability. In the process, it has managed to ignite the most highly charged cultural issues of the day.

Busch hastens to add that we shouldn’t all necessarily embrace the Bull Moose. And I would hasten to add that we need to think about the coherence of the Rooseveltian positions we seem to have inherited with other tenets of conservatism (not to mention among themselves).

Read the whole thing and think deep thoughts.
 

Win Myers has the story. Next they’ll be going after Lederhosen.

On Wednesday the Washington Post published an article, Judges Should Have ’Limited’ Role, Roberts Says, that quotes from the questionnaire Judge Roberts answered for the Senate Judiciary Committee. Regarding judicial activism, Roberts wrote:

"When the other branches of government exceed their constitutionally-mandated limits, the courts can act to confine them to the proper bounds. It is judicial self-restraint, however, that confines judges to their proper constitutional responsibilities."

The article also includes a sidebar that gives an on-line, PDF copy (in 3 parts) of the completed 76-page questionnaire and financial disclosure Roberts submitted to the Committee. It includes a paragraph about his involvement with the Federalist Society, where he acknowledges participating in their events (between 1993 and 2003) but has no recollection of serving on any of their committees or ever being a member.

Part 3 of the questionnaire also includes his description of the selection process he went through (e.g., first interviewed on April 1, so and so was present, no I was never asked how I would rule on a given case or issue) and his view of judicial activism.

We scholars never do this, but, since Peter is out of town (here, perhaps?), I’ll have to engage in some shameless self-promotion. Desperate times call for desperate measures.

I’ve written a very long piece examining the publicly available evidence regarding John Roberts’s position on the First Amendment religion clauses. Did I mention that it is VERY LONG?

Here’s the relatively short conclusion:

A careful review of the publicly available evidence suggests that John Roberts has put his name to positions solidly within the mainstream of judicial interpretation of the First Amendment religion clauses. As seems to be the case in many other areas of law, he would be careful to stay within the proper bounds of judicial competence and be respectful of the role and judgments of the political branches. Above all, he would apparently continue and perhaps extend somewhat the Court’s tendency to look favorably on attempts to accommodate religious expression, not necessarily as a matter of judicially-enforced constitutional right, but rather as a matter of what might be called legislative grace. This deference and "judicial restraint" would require a rethinking of the Court’s Establishment Clause jurisprudence, continuing the move away from a mechanical application of the Lemon test and perhaps an abandonment of Sandra Day O’Connor’s "endorsement" test, in favor of a return to a focus on the traditional elements of establishment ("force and funds").

This would, of course, mark a change in the Court, just as Ruth Bader Ginsburg’s replacement of Byron White marked a change in the Court. Our first opportunity to see what sort of change will come in the next term, when the Court hears Ashcroft et al. v. O Centro Espirita Beneficiente Uniao do Vegetal, a case addressing a Religious Freedom Restoration Act-based challenge to the Controlled Substances Act. Will Roberts take the opportunity—as Sandra Day O’Connor did in her dissent in City of Boerne v. Flores—to call for a reexamination of the Court’s holding in Employment Division v. Smith, stare decisis to the contrary notwithstanding? Or will he likely follow Antonin Scalia in deferring to the legislative judgment of "compelling state interest" embodied in the Controlled Substances Act itself? We will see soon enough how he balances his apparent clear concern with religious liberty with his deference to the political branches.

I saw nothing in the seven briefs I read to dampen my enthusiasm for Roberts; if he believes what he wrote, he’ll generally vote with Scalia, Thomas, and Rehnquist. When Kennedy can be brought along for the ride (which is a somewhat more frequent occurrence than was O’Connor’s fellow traveling), there is a working majority on Establishment Clause cases.

Among the questions John Roberts will be asked in his confirmation hearings are a number regarding his respect for precedent (above all, of course, Roe v. Wade). See, for example, here and here.

I just came across a nice, and nicely problematical, statement of the regard one should have for precedent in Sandra Day O’Connor’s dissent in City of Boerne v. Flores:

Stare decisis concerns should not prevent us from revisiting our holding in Smith. " `[S]tare decisis is a principle of policy and not a mechanical formula of adherence to the latest decision, however recent and questionable, when such adherence involves collision with a prior doctrine more embracing in its scope, intrinsically sounder, and verified by experience.’" [citations omitted] This principle is particularly true in constitutional cases, where--as this case so plainly illustrates--correction through legislative action is practically impossible." [citation omitted] I believe that, in light of both our precedent and our Nation’s tradition of religious liberty, Smith is demonstrably wrong. Moreover, it is a recent decision. As such, it has not engendered the kind of reliance on its continued application that would militate against overruling it. Cf. Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 855 -856 (1992).

Aside from the ad hoc defense of Roe, O’Connor puts precedent in its place. When important doctrinal or constitutional matters supervene, precedent should give way. The fact that the precedent is long-standing (think Plessy v. Ferguson, much older in 1954 than Roe is now) pales in the face of these other considerations.

I wonder if someone who uttered all but the last two sentences of that opinion could win any support in the left wing of the Democratic Party.

In case you need further evidence for Democrats’ dependence upon the left-wing blogosphere, consider this quote:

DCCC Executive Director John Lapp issued a statement defending the committee. Saying the DCCC would like to fund every House race, he said: "Resources are not infinite. That is why MyDD, the Daily Kos, and the larger blogosphere are so important. You are critical in the effort to expand the playing field well above and beyond the 30 or 40 districts typically in play."

When the Democratic Congressional Campaign Committee embraces and applauds what can only be described as the far Left, where conspiracy theories abound and invective and profanity often replace argument, the party is simply further marginalizing itself.

This of course does not mean that the Republicans have no problems of their own, as the article (quoting Newt Gingrich) indicates. But Democratic extremism makes it easier for Republicans to avoid facing their own weaknesses.

It has been a bad week for US casualties in Iraq, especially for Marines from Ohio. Our local paper, the Ashland Times-Gazette, ran a front page story on one of those Marines, a reservist from Lima Company, 3rd Battalion, 25th Regiment named Christopher Lyons, who was from the Mansfield area and was killed in action last week in western Iraq.

I didn’t know Lance Corporal Lyons, but my wife and I were in the same hospital birthing class as his wife Bethany, who had their daughter Ella three months ago while he was in Iraq. He never saw his daughter in person, but Bethany once talked in class -- with tears in her eyes and ours -- about how she looked forward every day to him coming home. It was moving then; it is even more moving now.

Christopher Lyons gone, but his service never forgotten.

The victory yesterday of Jean Schmidt in Ohio’s 2nd Congressional district special election, points not only to the obvious weakness of the Dems (they had to run a guy who appeared to be a Republican) but also to the problems brewing within the Ohio GOP. The narrownesss of the victory in a district that should have been a slam-dunk cannot be attributed solely to Hackett’s attempt to disguise his true identity as a liberal. Rush has been all over this today and you can read more here at NRO. The pathetic recent performances of Ohio’s two senators surely did much to deflate the base in this election and, by all accounts, Schmidt gives the impression of being cut from the same cloth. It’s time for some new talent to emerge in Ohio. The left is right about Ohio being a microcosm of the nation. It is ripe for a conservative revolution. Can anyone say Ken Blackwell?

The California Supreme Court, according to The Washington Post ruled today that: "country clubs must offer gay members who register as domestic partners the same discounts given to married ones _ a decision that could apply to other businesses such as insurance companies and mortgage lenders." California instituted the "domestic partners" registry after the state voted overwhelmingly a few years ago NOT to permit gay marriage. I’m no country club Republican but I don’t think the courts have any place in deciding what kind of rules should govern a PRIVATE club.

Guess what? Cows are now a larger source of pollution than cars in California’s central valley, which still have a significant smog problem. So says a terrific story in today’s Los Angeles Times, by Miguel Bustillo, one of the better environmental beat reporters in the country.

Once again, we see another vindication of Ronald Reagan’s much ridiculed view that there were lots of natural (or non-human) sources of smog. About 15 years ago the LA smog regulators did a study of emissions from trees, and concluded that they might not be able to meet the Clean Air Act targets for the LA basin unless they began to regulate . . . landscaping. The LA Times reported this quite well; It turned out that Japanese trees were lower-emitting trees than native American trees. The head of Tree People, a local tree-planting group, told the Times that they were very concerned, but would be sure to make sure that their members "planted low-emitting trees." Evelyn Waugh could hardly have written better satire.

Monty Python’s famous satire of political extremism, updated for our times.

Hat tip: Skepticseye.com.

Staff Sgt. Dale Horn is now Sheik Horn. Good story, good work. "Some sheiks later gave him five sheep and a postage stamp of land, fulfilling some of the requirements for sheikdom. Others encouraged him to start looking for a second wife, which Horn’s spouse back in Florida immediately vetoed."

Congratulations to this month’s winners of a No Left Turns mug! The winners are as follows:

Norman Vance

Gerald Inman

Roger Stern

Gary Hunt

Thanks to all who entered. An email has been sent to the winners. If you are listed as a winner and did not receive an email, contact Ben Kunkel. If you didn’t win this month, enter August’s drawing.

E. J. Dionne, Jr. thinks that it’s a good thing for politicians to discuss their faith in the public square, especially when it has some bearing on the positions they take. I agree.

But a judge is not a politician, a distinction that seems to be lost on all those who think judges "make law" (an expression I first heard out of the mouth of NPR’s Nina Totenberg almost twenty years ago when she lectured on my campus). Being guided by one’s conscience in lawmaking is one thing. But judges are called to interpret and apply the law, not enact the contents of their conscience. Dionne’s position, Durbin’s alleged query, and all the brouhaha about William Pryor’s "deeply held beliefs" all take for granted an understanding of adjudication as activist lawmaking or constitution-writing. And while I’ll take Dionne’s word for it when he agrees with conservatives that "religiously inspired voices have a legitimate place in the public square," Senator Durbin and his colleagues are playing the religion card to insinuate that some voices (or consciences) don’t belong on the bench. By failing to distinguish between judging and legislating, Dionne is offering cover to those who would mutter about divided loyalties and imply that the law cannot be consistent with religiously orthodox moral and social teaching.

This WaPo article is far superior to the poor and misleading piece of work in the LAT I discussed here. Of course, it still begins by trivializing all disputes over privilege by reducing them to politics. And it doesn’t carefully distinguish between the Clinton Administration’s unsuccessful attempts to assert privilege in the face of criminal investigations and the current case. Nonetheless, there are some nice blurbs worth reading, like this one:

"For better or worse, the Bush administration has done a much more effective job than we did of protecting privileges," said Ronald A. Klain, a lawyer who served as chief of staff to Vice President Al Gore.

Clinton waged many battles over privileges but lost some of them in court and surrendered others in the interest of damage control. In a showdown with the Senate opposition over something like the Roberts papers, Klain recalled, a politically and legally weakened Clinton White House often would find a compromise to end the dispute.

"I have no doubt that if that had been us, we would have turned over the papers," Klain said. "I’m not saying that’s a good thing; I’m not saying that’s a bad thing. But whenever we walked up to the brink, we blinked. And these guys don’t, and they’re prepared to pay the price for it."

Being prepared to pay a price for something suggests that it’s a matter of principle, rather than politics, something Peter Baker, the author’s article, would have done well to reflect on.

I spent an interesting morning yesterday with Ken Masugi going over some final edits for the upcoming issue of Local Liberty, a quarterly newsletter of the Claremont Institute. The upcoming issue has several very good articles on the problem of illegal immigration for local communities and from the point of view of the American Constitution. Of particular note is a wonderfully descriptive article by E. Anderson whose family owns property in Cochise County, Arizona where more than 3,000 illegals pass over the border each night. There is also an important update on the Kelo case and its implications. Subscriptions to the newsletter are free and you can subscribe here and view back issues if you are so inclined.

A group based in Florida called "Hillary Now" is running this cartoon style ad in New Hampshire. They also have some other ads on their site--including one that has Hillary pointing at Bush in the famous flight suit with the word "BOOB" blazened across his chest. An odd choice of words--particularly when you take note of where her hand is pointing.

Peter’s post below about the effect of eBay on flea markets brings to mind a few thoughts:
eBay is o.k., but the whole "PayPal" thing is kind of a hassle. Also, I’m still the sort of person who likes to touch something before I buy it. For that reason, especially, I much prefer Craig’s List. The problem with all of these things, however, is that it is increasingly difficult to find anything at a steal. The virtue of the information age is that everyone can be informed. That can also be its vice. Everyone is too savvy these days about pricing.

A great read on the old style "flea markets" and the culture of always pursuing the elusive bargain is Larry McMurtry’s Cadillac Jack. I liked it also for its prominent mention of my hometown of Zanesville, Ohio--famous for its world class pottery and antiques.

Clinton W. Taylor examines, and, despite the tragic death of the Brazilian man, approves of, the Britain’s shoot to kill (in the head) policy for suspected terrorists. Also see this.

e-Bay is putting an end to old-fashioned flea markets. Too bad.

Michael Uhlmann on Bill Buckley and the conservative movement.   

Robert Novak has not said anything about this (in public) for two years. Now, against the advice of his lawyers, he writes on it again. Kind of interesting, read the whole thing, but especially note this: "According to CIA sources, she was brought home from foreign assignments in 1997, when agency officials feared she had been ’outed’ by the traitor Aldrich Ames."

Bush has made a recess appointment, John Bolton is now our ambassador to the U.N. Here is a list (via Drudge) of some other recess appointments: Clinton had 140. Democrats are angry.

NLT readers should look into this story at Michelle Malkin’s site about Al Franken’s "Air America" and their apparent misuse of funds meant for something called the Gloria Wise Boys and Girls Club--which is now defunct (probably due at least in part to this fund diversion). More can be found here and at HughHewitt.com.

This is President Bush’s speech to some 30,000 Boy Scouts. Good read. He was, of course, well received.

It is a lovely morning, sun and blue skies. Yet, the morning starts rough. I am trying to play catch-up as we head into our last week of classes in the Master’s
program (it has been terrific, by the way!), and the first thing I see this morning is that Gore TV is up and running. AP says: "Much of the talk around
Al Gore’s new Current TV network has been broadly philosophical, like the former vice president’s statement that ’we want to be the television home page for the Internet generation.’" O.K., so it’s turning into a philosophical morning, you know, the relationship between between justice and equality, or between happiness and Hegel’s Befriedigung; this is the Bildung, for sure. Very deep, very impressive, very broadly philosophical, you know, kind of like inventing happiness and blinking. Surely this is an example of in die Tiefe steigen. Surely this is Gore’s spirit of revenge. Tough morning, this.