Strengthening Constitutional Self-Government

No Left Turns

Canadians See U.S. As Bullies

Sixty-seven percent of Canadians surveyed agreed with the statement that the U.S. government is starting to act like a bully with the rest of the world. Explaining this statistic, Michael Sullivan of the Strategic Counsel states:

"As Canadians, we take pride in our role as peacemaking and peacekeeping," Mr. Sullivan said. "I think that that is part of our personality. We take pride in medicare, we take pride in our peacekeeping role. And when we look at the U.S., we don’t see those kind of values necessarily reflected."

Well, as for socialized medicine, I suppose he’s right: America doesn’t share Canadian values. We don’t think that you should have to wait weeks and months for necessary surgery. We also have this strange desire to innovate--using new technologies, medicines, and procedures, which seem to be inimical to the Canadian system.

And as for peacekeeping, we Americans have this nasty habit of doing the heavy lifting of actually creating the conditions for peace, leaving it to those nations like Canada whose moral indignation at the unpleasantness of international conflict prevents them from displaying the moral resolve necessary to make difficult choices.

Of course, this is not the first snowball of criticism lobbed from the icy north. Canada PM Chretien suggested on September 11th of this year that America was somehow to blame for the WTC attacks because of economic disparity throughout the world. Yet it is somehow difficult to take criticism from Canada seriously. What incenses Canada is that even they know that on their best day, they are sort of like the U.S.’s little brother. You know, the kid who would get beat up by every passing punk, but for the fact that his brother is the biggest kid on the block. No one really respects the little brother, because they know that there is no merit in this accident of birth. The big brother, however, gets respect, not just because he is big, but because he doesn’t throw his weight around without cause. Similarly, no one really thinks that Canada would amount to much more than a third-world country with a thriving hockey league if not for the U.S. In fact, if not for the U.S., they would probably have to make real world decisions about things like spending for defense and foreign policy.

If the Canadians are going to cast aspersions regarding "values," here is a thought to keep in mind: AQ attacked the United States because America typifies Western Democracy and represents beliefs inimical to these extremists, including freedom of religion, freedom of speech, freedom of the press, and recognition of the right of Israel to exist as an independent nation. Canada was not Bin Laden’s target not simply because blowing up ice is less impressive than blowing up buildings, but because on these issues Canada stands once again as America’s little brother, giving a meek and quiet "me too," but failing to take the responsibility necessary to be a leader among nations.

California Diary

Pardon the length of this blog, but as it will be my only entry for the day, I feel the need to go on a bit more than usual.

Tiring, as all sensible people do, with the cold weather in the east, I packed up the family for our summer home on the California coast for new year’s week, where it is often sunny, except in El Nino years, such as this one, which explains the 80 mile per hour winds that tore off a section of my roof last week. I’m hoping for enough sunshine on New Year’s Day to do the annual polar bear swim in the ocean at noon at the Cayucos pier.

But this morning’s local news brings some sunshine into my life: a California State Appeals Court, in a 3-0 decision, has ruled that the California Coastal Commission violates the constitutional principle of the separation of powers, and is thereby illegal. The Coastal Commission, for you non-Californians, is one of those modern administrative agencies that combine bureaucratic ideology of near-Stalinist zeal with petty corruption of the worst kind. (One former commission member went to prison for using his position for bribery and extortion; other obvious insider corruption goes un-prosecuted.) The Coastal Commission was created by ballot initiative in 1972 as a temporary agency to come up with a long-term plan to protect California’s coastline, but somehow became a permanent regulatory agency.

The Coastal Commission is merely the tip of the bureaucratic iceberg that has been sinking development in California for more than a generation. The little coastal town of Cambria I call my second home provides ample example of how this game works. Way back in 1984, a local bank proposed to build 100,000 square feet of commercial development on land it owns in town, including a hotel, shops, restaurants, and badly needed parking. Eighteen years later, after five environmental impact reports, the bank is finally going to be allowed to build—7,000 square feet.

Cambria is aggressively anti-growth, which is great for my own property value, but bad for the public interest. It is of course illegal to be openly anti-growth, so the local water authorities slow down the pace of development through the simple expedient of not adding any new water capacity for the town, and then say to building applicants: “Sorry—we don’t have enough water; you’ll have to wait.” And wait. And wait. Finally the area has become so short of water that a building moratorium has been enacted.

But then along came Habitat for Humanity, which wants to build one (1) affordable cost house here in town. It would be the height of embarrassment for the local water lords to say No to Habitat (Jimmy Carter would think ill of the town), so the water lords “discovered” a loophole in the moratorium to allow the Habitat project go ahead right away. Meanwhile, low-income Hispanic families, who provide the bulk of the labor for the retirees and tourist trade in town, are crowding two or three families into a single house or small apartment.

Just up the coast from here, the Hearst family still owns 128 square miles (square miles!—not acres) of land along the coast, and has long wanted to do some modest development. But they have always been stymied by the regulators. The latest Hearst proposal was to build a hotel and about 400 homes on the land (the homesites were approved decades ago in state land planning law), which would have a net population density of something like the Gobi Desert. All the local self-appointed activist “conservation” groups got into the act and said No, threatened endless lawsuits, and forced the Hearsts to back down. A “compromise” has just been reached: the Hearst may build a total of 27 homes on their 128 square miles, none of them near the beach or in sight of Highway 1, and they have to provide public access to 18 miles of previously inaccessible coastline. While several conservation groups now support the proposal, the Sierra Club has not yet “signed off” on the plan, and the “Friends of the Ranchland” remained “concerned” about exactly where the 27 homes are going to be sited, and “whether or not the Hearsts will set aside certain beach areas for themselves.” Imagine: setting aside beach areas for yourself on your own land!

And people still scratch their heads about why there is no affordable housing in California.

Happy New Year!

A nice line from the Poet:

The mortal moon hath her eclipse endured,
And the sad augurs mock their own presage.
(Sonnet 107, 5-6)

It’s 10:00 a.m. on New Years Eve . . . And 32 Congressmen Are Already Having Trouble Standing

No, I’m not talking about Ted Kennedy and his distinguished colleagues after a few too many Chivas-on-the-rocks. The Associated Press reports that a judge for the U.S. District Court for the District of Columbia dismissed a lawsuit filed by 32 congressmen challenging Bush’s withdrawal from the 1972 Anti-Ballistic Missile Treaty because the legislators lacked standing. For those unfamiliar with the law, courts are only permitted by the Constitution to decide actual cases or controversies, and therefore the courts require those bringing suit to have "standing"--that is, plaintiffs must be able to demonstrate actual or imminent injury which is traceable to the complained of matter and which is redressable by the court. The district court’s decision that the congressmen lack standing is clearly the correct opinion in light of the Supreme Court’s recent decision finding that members of Congress lacked standing to challenge the line-item veto bill. (NB: the line item veto was subsequently struck down by the Supreme Court when interested parties who suffered actual injury as the result of spending lines being vetoed brought suit.) The judge declared that "[p]ermitting individual congressmen to run to federal court any time they are on the losing end of some vote or issue would circumvent and undermine the legislative process." Thanks as always to Howard Bashman’s How Appealing Blog for providing a link to the decision, which you can see here.

More on the Five Sought by FBI

It is becoming increasingly clearer why those five whose photo has been plastered all over TV for days are being sought. They are thought to be involved in a passport smuggling operation, and have al Qaeda connections. It also seems that they are likely to be in the state of New York. Not good.

Ships of Concern

The Washington Post reports that U.S. intelligence has identified fifteen cargo freighters around the world that are thought to be controlled by al Qaeda. This is no easy job, and the newstory explains why.

A Reminder of Clinton Corruption

AP reports that Mark Jimenez, a a congressman in the Phillipines, made his first appearance in a Miami federal court. "The U.S. government accused Jimenez of using
corporate money to reimburse employees for illegal
donations to President Clinton and other candidates.
Donors were employees of Future Tech International
Inc., a Miami computer parts distribution business owned by Jimenez, and Mark
Vision Computer, another Miami company owned by a relative.

Jimenez was accused of illegally routing $50,000 to the Democratic National
Committee and $33,500 in donations to campaign committees."

GOP Dominates Rural Vote

The Chicago Sun Times reports that rural voters supported GOP congressional candidates by a 60-36 percent margin. As recently as 1988 the Democrats got 56 percent of the rural votes.

Ultimatum to Iraq?

According to the BBC the Saudis are denying the veracity of the New York Times story (Dec 29) which claimed that the Saudis would allow the bases to be used. And the Debka File reports that Syrian President Assad picked up a message while he was in London (from PM Tony Blair), a final ultimatum, from President Bush to Saddam Hussein, and delivered it to Hussein on December 21 or 22. The nine points listed make clear that unless certain things happen by mid-January war cannot be avoided. Interesting. May this explain Iraq’s recent willingness to allow scientists to be interviewed, Prime Minister Sharon’s assertion that MWD’s have been moved to Syria, and the latest Saudi flap? There is an implication in all of this that Saddam Hussein may be willing to give in, even be willing to go into exile, and that various Arab states are putting on the pressure for him to do so. Complicated.

Fried on Campaign Finance

Professor Charles Fried of Harvard Law School offers a nice article explaining the constitutional problems with McCain-Feingold in today’s New York Times. Worth a read.

Some Bad News

An American soldier was wounded in Afghanistan yesterday, while three American Baptist missionaries working in a hospital were killed in Yemen. A local in Yemeni said: The killings are "a crime unacceptable in any religion. This contradicts
Islam," said a Jibla woman who gave only her first name, Fatima, and said
she used the hospital. "They cared for us and looked after us. I can’t even
count the number of children they treated and saved." I hope Senator Patty Murray takes note of this.

The Unimpressive John Edwards

The New York Times runs its Edwards profile story today and the only thing I got out of it is that he wants to be president (and talked about it as early as 1975), that he doesn’t have any ideas, and he thinks people will vote for him because he is, well, sort of ordinary; people like him. This is what they mean by saying that he is the "anti-Gore candidate." Very unimpressive. The only reason he is being talked about is because he is from the South, is young, and good looking. He will announce on January 4th. See these few paragraphs on Edwards from The Scrum. He will not even get off the ground, in my humble opinion.

Not a Slaveholder, But He Played One on TV

In the tradition of Senators who should know better, the Washington Times reports that Senator Byrd (D-WV) will be playing the role of a confederate slaveholder in an upcoming movie. The NAACP has already denounced Byrd’s role, saying: "It’s not in keeping with his Senate position to be playing that kind of role," said West Virginia NAACP head James Tolbert. Now this insensitivity on the part of Senator Byrd could just be a misunderstanding, so like other recent Senatorial missteps it is useful to consider his past practices. As recently as 2001, Byrd used the "N" word on Fox News. In the 1940s, he was a recruiter for the KKK. In 1945, he wrote the following about the desegregation of the armed forces:

"[I will] never submit to fight beneath [the American flag] with a Negro by my side. Rather I should die a thousand times, and see Old Glory trampled in the dirt never to rise again, than to see this beloved land of ours become degraded by race mongrels, a throwback to the blackest specimen from the wilds."

And, of course, Byrd is not the only Democratic currently serving in the Senate with a segregationist past. Fritz Hollings (D-SC) is a former segregationist, and Zell Miller (D-GA) got his start in politics working for one of the staunchest segegationists in Georgia politics. I did not choose to bring these issues up during the Lott affair simply because it was important to get the GOP house in order without using the "but you do it" defense. But now that he has stepped down as Majority Leader, perhaps it is time for the Democratic party to look at the log in its own eye.

Voter News Service Dying

The New York Times reports that the major television networks and AP are considering dissolving their decadelong partnership with VNS, the election day polling organization that screwed things up in 2000, and altogether collepsed in 2002. I think this would be a good thing because news outlets (and professors) have become too dependent on the polling (note the emphasis) organization. Mickey Kaus considers how this will effect the Iowa caucuses which have, in his words, "been virtually creatures of the VNS." Iowa will become less important, and less liberal Demo candidates will have a better shot in the primaries.

Elk, Drunk, Attacks

In central Sweden an elk, drunk on rotten (fermented) apples, attacked an eight year old boy; he was only slightly hurt, the elk was killed. I note this as a cautionary note to my younger friends--those given to sports, to wildness, and much company--who may contemplate bringing in the new year by overindulging for the sake of general joy. The purpose does not always presage the result.

Al Qaeda, Diamonds, Africa, and the Importance of Intelligence

This story from today’s Washington Post reads like a James Bond thriller. There are spies, and shady characters a-plenty; cornering the diamond market and purchasing weapons, a lot of big weapons; African tyrants from Burkina Faso and Liberia and bad guys from Panama and Nicaragua to Bulgaria; and the value of the computer purchased for peanuts by the Wall Street Journal in Afghanistan a year ago. There are also signs of CIA mistakes (and European determination); signs of huge amount of money and weapons being at stake; signs that Al Qaeda is well organized and smart, very smart. This is a must read; worth reading as if it were a Platonic dialogue, and don’t forget to read between the lines.

Saudi Bases and Reality

The only reason for noting this story in today’s New York Times is that it shows (inadvertently) not only the extraordinary complications of our Iraq strategy/diplomacy, but its success. There has never been any doubt in my mind that the Saudis would go along with our plans. Ironically, their survival (in some form) may well be assured by a liberalisation of the Mid-East, of which the regime change in Iraq is only one piece. They learned this about six months after 9/11. Yet, these things are difficult for them to say, and not only out of self-interest, but because they are in the habit of saying things that they think their listeners want to hear, rather than saying something for the sake of clarity or the truth. Words are not the same as ideas, and ideas are not facts, not reality. Facts and reality are ignored. Remember Saddam claiming victory even before the "mother of all battles"? There is coming a point in all this diplomacy/strategy when the Arab fondness for the poetry of their language will have to start receding in favor of what reason may be found in and with the language; else, they will have to learn to think in a tongue that is able to represent reality.

American Imperialism?

This is a thoughtful and well-written essay (rather long, no doubt could have used some editing) by a blogger I know nothing about, a guy named William Whittle. It is on the American character, on empire, on hegemony, on the world’s cognative dissonance regarding America and her people. Here are a few paragraphs to whet your appetite:

"They went home is what they did. They did pause for a few years to rebuild the nations sworn to their destruction and the
murder of their people. They carbon-copied their own system of government and enforced it on their most bitterly hated
enemy, a people who have since given so much back to the world as a result of this generosity. They left troops in and
sent huge sums of money to Europe to rebuild what they all knew would eventually become trading partners, but also
determined competitors. Then they sent huge steel blades through their hard-earned fleets of ships and airplanes and
came home to get on with their lives in peace and quiet.

Oh, and some of the islands they had visited had asked to remain under the American flag as territories and
protectorates, free to leave whenever they choose.

We are still too close to our actions in those critical years to fully grasp the meaning of what we did. Distant history will
show it to be the most magnanimous act in human history, a test of national character passed with such glory and
distinction that it baffles and amazes both our friends and enemies to this day."

"In one sense perhaps, we are, in fact, an Empire. We are an empire of the mind, a place whose dreams and ideals have
colonized the world. We are a black hole of desire upon which billions place their unfocused hopes. And yet, to them it
seems as if we turn them away. We dangle freedom and hope and comfort in front of them with a glimpse into our
everyday lives though television and movies. They want what we have, desperately. And they hate us for not giving it to

Well, sooner or later they are going to have to grow up a little and face some unpleasant truths. These people want the
fruits of our success; they want our freedoms and our wealth and our confidence. But they are not willing to do the work.
They are not willing to pay for it."

Why is there so little money in U.S. politics?

George Will (who ought to be recovering this morning from sharing the same table at ABC with Al Franken!) has a good column on campaign financing, basing the logos on an article in an upcoming issue of Journal of Economic Perspectives. The thrust is this:

Although the growth of the regulatory state in the 20th century made
government vastly more important as an allocator of wealth and opportunity,
campaign spending as a fraction of national income did not grow during
the last nine decades of the 20th century. That is, it did not grow after the
coming of the secret ballot and civil service and other reforms that weakened
the vote-buying powers of political machines. This, the authors say, "suggests
that the private benefits bought through the campaign finance system are not
an increasing problem for our economy."

The consumption/participation model explains why political contributing, like
charitable giving and consumption generally, increases with per capita income
rather than with the value of government activity. It also explains why political
contributing by rent-seeking interest groups is so small relative to the
monetary value of government action.

The authors’ study of legislative decision-making accords with the extensive
social science literature that concludes that legislators’ voting is almost entirely
a function of their own beliefs and the preferences of their voters and their
party. The authors say that "after controlling adequately for legislator ideology,
[interest group] contributions have no detectable effects on legislative

The Gary Hart Campaign

This New Republic piece can be seen as a puff-piece for the upcoming Gary Hart campaign, but I think that would be a mistake. It tells a good story of Hart working in England (on his now published book, Restoration of the Republic), meeting a couple of students, befriending them, and how they persuaded him to run because the country needs a man who is driven by ideas, etc. What should not be underestimated is that Hart just may well be the most interesting of the potential Democratic candidates. While admitting that the standards of comparison are low, yet there will seen to be a difference between the dry-as-dust current crop of potential nominees (the amusing and witty Howard Dean to the hilarious Senator Daschle and the humble John Kerry) and someone who can talk the big talk of civic responsibility and principle. Hart will try to do that. He is being portrayed as a man of ideas (and a Demo who warned us about terrorism before 9/11). That is what’s significant; and that may sell given the fact that the Demos are at a nadir. There is much else to say on this subject, I know, including the now hackneyed (post Mondale) point of the Demos wanting to recycle old guys, etc., yet it would be a mistake to ignore this trial balloon. Hart is going to be giving a series of speeches starting in January and not only what he says, but how it is going to be received by the press (and Demo operatives and money guys) will start giving us an indication of this interesting possibility. Here are a couple of stories about how Hart is not denying that he may be interested. This from the Denver Post and this from Newsday.

Golfing (aka Hooters)

Eastman sure knows how to dampen a guy’s interest in the game! But Alt says that there might be an exception in the law in this case because of "bona fide occupational qualifications." I do hope he is right; it would be nice (for a change) for the law to be in line with not only interest, but the Good. And the Platonists keep on hoping....

On Golf

Poor Peter. He finally discovers a good excuse to take up golfing, but it is, alas, an excuse that will be short-lived. I predict Hooters Air will suffer the same fate that befell Southwest Airlines in 1989. Southwest, you will recall, developed a marketing campaign around the theme of "a little love in the air" (undoubtedly named because its base of operations was Love Field in Dallas). Pushing that theme, and catering to the then-predominantly male business travelling population, its stewardesses (that’s what they were called back then) dressed in hot pants and boots. No way, said the federal court in Texas, finding that Southwest violated Title VII of the Civil Rights Act in hiring only women. Good thing for Gregory Wilson, who brought the suit, that the Fifth Circuit had not at the time held that the Second Amendment guaranteed a personal right to keep and bear arms!

Hooters Air

Hooters of America (the restaurant chain) has announced that it has bought a small commuter airline called Pace Air, based in North Carolina. Pace air has specialized in corporate shuttles, catering to VIP business travellers and sports teams. I have no comment, except to say that I think this is a great country, a great big country. The CEO of Hooters says that he will "provide leisure travel service for the golf industry." Now, last word, without too many particulars: Will federal guidelines affect the quality of the service this company is renowned for? Will the flight attendants be hired just for their virtue(s) or will peripheral and non-consequential qualifications be pressed on them? These are pressing political questions asked by those who are about to take up the noble game of golf.

Hank Williams (Sr.) for Fifteen Hours!

This piece of great news is via Powerline in Minnesota:

"Hang on to Your (Cowboy) Hats and Get Ready for a 15-Hour Hank Williams
Tribute! This New Years Day marks the 50th anniversary of the passing of the
legendary Hank Williams. To commemorate this event, Good & Country [KFAI’s
weekly country show] will present a 15-hour special on Saturday December
28, 2002 from 6:00 AM-9:00 PM. It will include studio recordings, alternate
takes, radio appearances, the complete audio from the Kate Smith Evening
Hour shows (March and April 1952) when he was a guest, an exclusive
interview with his steel guitar player--Don Helms, insights into Hank Williams
in song and story by Hank Williams, Jr., and interview excerpts from those
who knew and worked with him during those heady days when Hank Williams
turned honky tonk music into a fine art and personalized country music as we
know it today. Hope you will tune in and log on."

And you can listen to all of it on your computer, live streaming, by clicking here on Saturday, December 28, at 6 a.m. (MN time). You might not understand America from Scorcese, but you will from Hank Williams.

America Not Born on the Streets

I am told by those who saw the movie "Gangs of New York" that Ken Masugi nails it. It’s too bad, Scorsese blew it. Masugi’s first paragraph gives you the crux:

Movies about gangs often raise enduring questions about justice and becoming American. Consider "The Godfather," which begins with the line, "I believe in America"; "The Warriors," which used a multiracial gang to retell Xenophon’s Anabasis; and "West Side Story," with Rita Moreno singing "America." For all its epic strivings, "Gangs of New York" never achieves these heights, for it stubbornly maintains the perspective of tribes.

GOP, Demos, and Race

Here are two very good articles (from Mac Owens and Scot Zentner) and the race issue that Lott raised, the ones that the Demos are trying to take to the bank; they have an obvious solution to the problem, as Zentner’s conclusion states:

"Most of those voters agree with Charles Krauthammer’s view that "the civil rights movement rose above sectarianism and insisted on defining itself far more broadly as a vindication of America’s very purpose." Indeed, the greatness of that movement derived from its validation of "America’s original promise of freedom and legal equality."

Republicans should look to this legacy. But forcing Lott out is not enough. President Bush rightly asserted that, "Every day our nation was segregated was a day that America was unfaithful to our founding ideals." The president should now affirm those ideals by moving to abolish affirmative action in his own administration. The party of Lincoln, then, would take a great step toward validating "America’s original promise."

The Two Towers, Good

Hayward has a great piece on "The Two Towers", on Tolkien, and whether the race of men have the strength and courage to survive and the moral clarity to do what’s right. Here is his last paragraph, but read the whole:

"Tolkien was not a political philosopher, and as his frequent protestations against interpreting Lord of the Rings as any kind of allegory remind us, it was no part of his purpose to reflect directly on the character of men in different kinds of regimes, or to suggest that it is the virtue peculiar to democracies that is central to saving Middle Earth. Yet as the differences in human excellence and sources of corruption are sewn into the nature of different types of regimes, it is impossible to tell a large tale of war and virtue, corruption and ruin, without opening a window onto these matters."

Guilty as Mudd

Andrew Ferguson writes a dozen clear pages regarding the question: Was Dr. Samuel A. Mudd--convicted by a military tribunal in the conspiracy to assassinate Abraham Lincoln--guilty? The answer shouldn’t surprise you, but it is worth a read over a good cup of coffee. It seems to me it’s all there, as concisely as I have ever seen it.

Post-Lott Politics

Alt mentioned USA Today’s front page story on the coming attempted shakedown of Senator Frist (and the GOP). I couldn’t help noticing that the one thing that is not mentioned in the article is a demand for quotas from the Leadership Conference on Civil Rights. This, of course, is the dog that didn’t bark: this will be the demand of the so-called civil rights groups, and it is the one that Frist and the GOP must oppose. I believe they will oppose it; it is a great opportunity for the GOP to talk about a color blind society. See this encapsulation of the Lott episode from Michael Barone . Also this on the coming Demo race-offensive from David Limbaugh and another on the same theme from John Leo .

It’s a Wonderful Country

Roger Clegg (Center for Equal Opportunity) does a pretty good take from "It’s a Wonderful Life" by having the angel Clarence look into what the world would be like without America. Pretty good!

Post-Lott Shakedown

USA Today reports that the Leadership Conference on Civil Rights is seeking a meeting with Frist to demand certain actions to show that he is going to make a "fresh start." Included in the actions sought is rejection of 5 of Bush’s current judicial nominees, who the group claims have "records of deep hostility to core civil rights principles." Among those who the Leadership Conference is seeking to block: Sixth Circuit nominee Jeff Sutton. What is Sutton’s record to which the Leadership Conference makes non-specific reference? Well, right now he is defending a capital defendant, and he just filed a brief defending an inmate for immigration offenses. The core complaint against Sutton is that he argued on behalf of Ohio that Congress couldn’t abrogate the State’s sovereign immunity in passing the American’s with Disabilities Act. They therefore claim that he is "anti-disability"--yet those who actually look at his record would know that he has actually filed lawsuits on behalf of the disabled: in particular he represented a blind woman who sued a university for discrimination. It becomes quickly apparent that the Leadership Conference has little basis to oppose Sutton’s record on Civil Rights issues--unless you consider lockstep support for a liberal agenda to be a civil right.

Can Congress Ban Cloning?

Following up on the cloning story, President Bush is pushing for Congress to pass a bill banning human cloning. Such a bill passed the House this past term, but died in the Senate. With the switch in Senate control, it is believed that the issues will arise with new fervor in the coming term. Current law prohibits those who receive federal funds from cloning, but does not restrict private groups, such as Clonaid (or more reputable groups) from experimenting so long as they don’t receive public funds. This limits the pool significantly, because most major research centers receive some federal funding.

Now the question I put to the fellows, and particularly to Eastman, Allison Hayward, and Masugi: is it permissible for Congress to ban human cloning? Congress’s power is not boundless: they must act within the scope of their constitutionally authorized power. The bill past by the House this past term relied on congressional power under the Commerce Clause to the Constitution to regulate interstate commerce. The bill states in relevant part:

It shall be unlawful for any person or entity, public or private, in or affecting interstate commerce, knowingly--

(1) to perform or attempt to perform human cloning ;

(2) to participate in an attempt to perform human cloning ; or

(3) to ship or receive for any purpose an embryo produced by human cloning or any product derived from such embryo. (emphasis added).

The Supreme Court in recent years has taken a skeptical look at laws past pursuant to Congress’s Commerce Clause power, striking down provisions which made it unlawful to carry a gun on school grounds, and striking down another provision which permitted federal civil suits for violence committed based on gender-based animus. It is not clear to me that cloning is economic activity (let alone interstate) for the purposes of Commerce Clause analysis. For example, the cloning could be done by a non-profit research organization rather than by a for-profit as a commercial exchange. It may be possible to save the statute by doing something like an "as applied" prosecution: prosecutors may only charge those whose cloning activity is actually economic in nature and is performed in interestate commerce. But this would fall short of the absolute ban that Bush seeks. For example, groups could maintain not-for-profit status, or take steps to assure that their activity was intrastate in nature.

There may be an argument under Section 5 of the Fourteenth Amendment (which authorizes Congress to enforce by appropriate legislation the provisions of Due Process, Equal Protection, and, once upon a time, the Privileges or Immunities of citizenship found in the Fourteenth Amendment) because cloning in animals has led to abnormalities including premature death, which we may assume will occur in humans as well. Even if such an argument could be constructed (which I have doubts about), it assumes that an unborn human clone is a person for the purposes of the Fourteenth Amendment, and that would seem highly implausible after Roe.

First Human Clone?

Reuters reports that Clonaid, a company associated "with a group that believes extraterrestrials created mankind" claimed yesterday to have produced the first cloned human being. Where was the announcement made? Where else: Hollywood. An "independent expert" selected by Clonaid will offer confirmation of whether the baby, named "Eve" is a clone in the next 8 days. Randall Prather, a biotech professor at the University of Missouri, gets the understatement award for his conclusion that "an independent expert not named by Clonaid would be essential to conduct DNA fingerprinting to determine the baby is in fact a clone."

Is Statutory Interpretation Just Policy Making?

In a clash of the University of Chicago titans, Seventh Circuit Judge Frank Easterbrook takes his colleague Judge Richard Posner to task for Posner’s pragmatist gloss of the Chevron opinion (which grants deference to certain administrative interpretations). Posner argues that "the interpretation of an ambiguous statute is an exercise in policy formulation rather than in reading." Easterbrook, known as a champion of the textualist approach to statutory interpretation, essentially argues that you don’t have to be a pinko pragmatist who believes that statutes are empty vessels to be filled with your wisdom in order to apply Chevron as a rule interpretating the division of decisionmaking between the branches. (Note: for those of you familiar with Easterbrook’s questioning style at oral arguments, I should specify that he did not actually use the word "pinko.") He goes on to offer what must really be heresy to Posner: the conclusion that "Interpretation differs fundamentally from regulation." Many thanks to Howard Bashman’s
How Appealing blog for bringing this to my attention. You can access Posner and Easterbrook’s respective opinions here.

Patty Murray Whitewash, continued

James Taranto has a couple of choice paragraphs (with plenty of links) on the continuing whitewash by The New York Times and others, of Senator Patty Murray’s ourageous comments extolling Osama bin Laden for his humanitarianism of a week ago. But it is kept alive by bloggers, and should have an effect on her re-election (and maybe even on the Democrats’ attempt to attack the Bush administration on its handling of the anti-terror war).

Breeding with Neanderthals?

This is a BBC report on a recent discovery stemming from the Human Genome Project. And, if I read it right, it’s only good news for some future Nazi-types. Instead of us having the same origins, some humans may have interbred with "archaic hominids." Note these two paragraphs:

"Some replacement models, and some genetic
data, suggest no interbreeding at all with
archaic peoples outside of Africa, while other
replacement models allow limited interbreeding
with the locals over the short time scale in
which they overlapped.

"This new research suggests there could have
been some interbreeding, but as the authors
recognise, it could have been limited, and
whether it happened at all is still an open

You can go to directly to the Proceedings of the National Aacademy of Sciences to get the summary, and you can download the whole thing in PDF.

Lysistrata in the Sudan

There is a movement in the Sudan--in a civil war for almost twenty years--among women to withold sex from their men until there peace is made. This sex-strike may be having some effect, according to this story from The Daily Telegraph .

USS New York and its Steel

This is a piece of good news from today’s Boston Globe :
"Steel salvaged from the wreckage of the World Trade Center will
be used to build the Navy’s USS New York, a warship named in honor of those who
perished in New York on Sept. 11, 2001."

Also note:
"The USS New York will be the fifth of 12 amphibious assault ships in the San
Antonio class, which the Navy calls one of its most technologically innovative. The
684-foot vessel will carry a Navy crew of 402 and up to 800 Marines.

The $800 million vessel should be ready for active duty in 2007.

If the trade center scrap meets specifications, it will be melted down and used to
configure the edge of the bow that cuts through the water, said Northrop Grumman
spokesman Jim McIngdale."

Bloggers Praised

This is from The Boston Globe on the rise of blogging and what effect it is having (and what effect it may have had on raising and keeping alive the Lott issue). Although the number of bloggers has increased tremendously, and most are just "navel gazing" it is true, there are plenty of good ones to keep journalists/reporters more honest than they would be without us. There is good reason why the Beltway types read bloggers (including NLT), just see Alt’s note below on the two New York Times stories having to do with the environment. Such praise of the miracle of a good story (and, more often, the criticism of the bias) will be noted; never mind the great commentary you had to gold-mine for before the rise of this medium. Bologgers are gravemakers, they hold up Adam’s profession.

Dumb Regulations that Dumb Down Education

Leave it to California. The New York Times ran a story about Gray Davis signing a bill banning textbooks that exceed a specified weight limit. Assuming that they don’t want to see the books dumbed down (I know, it is a big assumption) the move must be intended in part to get publishers to produce multivolume books. This will have two consquences: 1) the books will be more expensive; 2) the students’ backpacks will likely be even heavier. Why the last: because teachers tend to jump around in textbooks, which will likely require students to carry multiple volumes to each class. Thus, the weight of the books may actually increase. Another fine example of regulatory stupidity.

Drop in Fertility Rates in Europe

Although this has been going on for decades, according to a newstory by Frank Bruni in today’s New York Times it is getting progressively worse: Europe has the lowest fertility rate of any continent. Italy, with a fertlity rate of 1.2%, has the oldest population in the world, the percentage of those over 60 years old is 25%. All this has great political implications, of course.

A Christmas Miracle

Maybe it was a Christmas miracle, or maybe Howell Raines took Christmas Eve off. Whatever the reason, something amazing happened on December 24, 2002: the New York Times ran two reasonable stories on environmental issues.

The first is perhaps the most amazing. It was an article by Nicholas Kristof praising Bush’s decision to permit snowmobiles back in Yellowstone. As I read the article, I kept waiting for him to say something offensive--which is the hallmark of a Kristof article--but it didn’t happen. Instead, he presented the argument for why the alternative of no snowmobiles is actually more harmful to the environment (the larger coaches used to drag around tourists spew more pollution per person), and why the new Bush policy of permitting the quieter, more efficient 4-stoke engines is a good idea. Then he said what must simply be sacrilege to the green set:

Some environmentalists have forgotten, I think, that our aim should be not just to preserve nature for its own sake but to give Americans a chance to enjoy the outdoors.

At this point, I’m feeling a little light headed. My worldview has been shattered--a sensible statement on the NYT op-ed page. But then I turn to the feature-length piece on the page by Thomas Pakenham, who chides radical conservationist groups in Britain for buying up acres of forest only to chop them down because the trees were not native to the area as of the end of the last ice age. The article beautifully pointed out the silliness of these organizations, who would destroy the countryside in the name environmental purity.

So there you have it: two reasonable articles in one day by the NYT. You can try to tell me that Raines was on vacation, but I’m sticking to the miracle theory.

New Good Purpose at the NEH

George Will notes that Bruce Cole (unlike his Clintonian predecessors) is a sound thinker (on beauty, which he thinks does exist) and is doing some good things at the Nation al Endowment for the Humanities, including trying to make good citizens. This is passed along just in case you think it doesn’t matter who gets elected president. Here is the NEH site on it’s new initiative "We the People."

20th Century US History Quiz on Race

The English blogger John Hudock has a wonderful quiz for those those Demos (Clinton, et al) who are trying to make the GOP the party of racists. There are only two possible answers to each question, for example: "Jim Crow laws were passed by legislatures controlled by: a) Democrats, b) Republicans." Worth a look, as a reminder. It should be sent to all race-baiters (including Senator Byrd). It is the first blog under December 26th.

Torturing Our Enemies, Two Ways

The Washington Times has an interesting report on new weapons that have been developed and ready to use on Iraq. Seymour Hersh has an article worth reading in the current issue of The New Yorker, focusing on the Hellfire attack in Yemen and what we learned from it. And the Washington Post has an especially interesting article on how we are getting information from prisoners, and the great difference between our methods pre-9-11 and post-9-11. None of this should surprise us (or them), and it seems to be working. There are a few precious lines (the issue of "extraordinary renditions" to Syria, Morocco, Egypt, or Jordan; having women conduct some of the interrogations, pretending that they are being questioned by another country, not the US, etc.) but the whole is very much worth reading. I was struck by a sentence from one interrogator: "If you don’t violate someone’s human rights some of the time, you probably aren’t doing your job." Apparently during the last few months, especially, we have been getting a lot of information from these guys. That information is crucial, and is the main argument against killing them as we find them.

Frist and Happy Face Conservatism

This is Ron Brownstein’s article on the what the Frist selection will mean politically for both the GOP and the Demos. It emphasizes health care issues and the ideological connection to the Bush White House, and the difficulties the Demos might have in attacking him. The article is by no means perfect, but it is thoughtful, it tries to look at the strategic effects of this selection. And Fred Barnes adds more to the new "happy face conservatism" of the GOP leadership (i.e., not Newt-like); he claims Frist and his Senate leadership team (McConnell. Nickles, Santorum, and Kyle) will work well together.

Licensed to Kimchee

This courtesy of Steve Aftergood’s Secrecy News.

No word on how North Korea is viewing "Lord of the Rings The Two Towers" or Spielberg’s new one "Catch me if you Can"


"In what must be the oddest sign of escalating tensions between the
United States and the Democratic People’s Republic of Korea (DPRK),
the North Koreans have lashed out at the latest James Bond movie,
"Die Another Day."

"’The 20th installment of the American movie series James Bond 007
describes our Republic as an axis of evil and incites North-South
confrontation and has contents that groundlessly belittle and
humiliate our nation and even viciously insult our race,’ according
to a December 19 broadcast on the Korean Central Broadcast Station in

"’We view this not as a certain movie producer’s problem but as a
product of the United States’ policy of belittling the Korean nation
and its hostile policy toward the DPRK."

"’The movie is intolerable."

"See ’The United States’ Shoddy Act of Insulting the Korean Nation,"
translated by the Foreign Broadcast Information Service, here:


Turducken: L’esprit d’escalier

Steve Hayward’s recipe for his Turducken alternative reminds me of a French dish, a play off of coq au vin and canard l’orange: coq dans canard.

Thatcher and Reagan Legacies

This is a lengthy piece from the London Economist comparing the Thatcher and Reagan legacies and trying to answer why one didn’t last, and the other became "the citadel of modern conservatism." The piece is far from perfect, but it asks the right questions. It looks good for us, but the Brits are going to continue to suffer.

A Good Book

I have been reading Derek Leebaert’s The Fifty-Year Wound: The True Price of America’s Cold War Victory, at Steve Hayward’s recommendation. This is a great read, told as a thumping good story of good beating evil (open it at random and start, and you will see what I mean) and the author’s judgments are sound and clear; there is no moral ambiguity here. Hayward reviews it in the current Claremont Review of Books . Here is a paragraph from the review:

"Leebaert negotiates these treacherous crosscurrents with near-perfect pitch and refreshing honesty.
Beyond just the direct aspects of the Cold War such as diplomacy and military power, Leebaert
captures the cultural changes the conflict wrought. Yet Leebaert never indulges any of the fantasies
of the revisionist Left or libertarian Right. To the contrary, he devastates the cliché that the U.S.
embraced the Cold War in order to establish a militaristic national security state or to become a
self-conscious imperial power. Above all, he never questions the necessity of the overall conflict, or
expresses any doubt that the Soviet Union was the evil empire that Reagan understood it to be. In
fact, near the end of the book, Leebaert is indignant that the Soviet Union isn’t regarded as just as
evil as Nazi Germany. The Fifty-Year Wound is patriotic throughout, realistic ("It would have taken an
entirely different United States to have accomplished the task without the usual pork barrels,
bureaucratic archaism, and vagaries"), and rejoices that our side won."

Merry Christmas (and the continued threat)

A couple of sobering articles on this Christmas eve. The New York Times files this report on Hezbollah and quotes unnamed administration officials who claim that they are "the A team of terrorism" more menacing than al Queda. And The Washington Post reports that the terror threat is largely undiminshed and in some ways they are more capable than before 9/11.

Two Towers, Great!

I saw Two Towers with my youngest (John Winston, now fourteen). I thought it was very well done; enjoyed the whole thing. Johnny was enraptured by it, maybe more than the first. He thought it was terrific. A passing note; the theatre in Ashland was nearly full, and the vast majority of the people were (I’d say) between thirteen and eighteen. Maybe ten percent were thirty and above. Also, virtually no females. PejmanPundit has a few good paragraphs (Dec 23) on the movie with a good Tolkien quote; his response to Nazi publishers wanting to know if he was of "Ayan" extraction:

"I regret that I am not clear as to what you intend by
arisch [Aryan]. I am not of Aryan extraction: that is,
Indo-Iranian; as far as I am aware none of my
ancestors spoke Hindustani, Persian, Gypsy, or any
related dialects. But if I am to understand that you
are enquiring if I am of Jewish origin, I can only
reply that I regret that I appear to have no ancestors
of that gifted people."

The Right Name for the Job

In the "Getting the Right Man (or at least Right Name) for the Job" department, this morning’s WaPo reports that President Bush’s new director of congressional relations is named Hobbes (David Hobbes).

And in the "Truth is Stranger than Fiction" department, Hobbes used to be chief of staff to . . . Trent Lott.

Happy Hobbesian new year, Congress.

More Christmas reading

I strongly recommend Jody Bottum’s pieces in First Things, the one last month on South Dakota Thanksgiving and this month’s on South Dakota Christmas. Wonderful writing (a vocabulary for toys that evokes Mark Helprin’s characters), memories you had or, certainly wished you had.

More on Two Towers

I agree with Steven--The Two Towers was a very good film. No mushy moral relativism here!

Of course, Peter Jackson could be counted on to make the most of Tolkein’s hostility to modernity. I don’t believe the author ever used the word "industry," but near the beginning of the film the evil wizard Saruman makes it clear that his goal is to bring about a new order of "industry."

I also agree that Gollum stole the show. Did anyone else notice a strange resemblance between Gollum and actor Steve Buscemi?

In Praise of Marriage

This is a nice short piece praising Miss America, Erika Herold, and her positions on sex before marriage (no!) and what it may have to do with revivifying a conversation about the importance of family (and abstinance before marriage) in America.

Lott Leftovers and the Future of the GOP

Michael Barone goes through some of it again, and mentions that bloggers had to more to do with catching the meaning of the comments, and keeping it in play, than others. Diana West beat up Lott’s unprincipled ways in the Washington Timesthat I originally missed. And, I should say that judging by the way the talking heads chattered on about Frist on this Sunday morning, I don’t think The New York Times and its supporters will have any success in doing harm to Frist. The other thing made clear by the talk shows (and news surrounding the Frist victory) is that the White House is being given credit for pulling off, as David Broder said, a "coup." I think this this true and, yet, significant that their fingerprints are not all over it; very artful, very prudent. The results will give a huge opportunity for the President and the GOP to create a new majority on deeper principles than heretofore. Part of the judgment on that will be how they talk about affirmative action; if they take a principled stance on their ancient faith than we are off and running; if not, they’ll be even higher mountain to climb. I’m an optimist. See this good piece by Rogert George and also see Bill Bennett’s fine piece in yesterday’s NRO. I have my own stories from my first teaching job at Arkansas State, but that’s for another time. But I should mention to Bill that I have never been a Democrat!

New Holiday Cuisine

I have been getting reports that some people are planning to make the preposterous turducken for Christmas dinner. So I am fighting back.. .

I am going a combo of pheasant and duck. Call it what you like.

Two Towers First Impressions

Peter asks for initial reactions.

The movie does not contain Aragorn’s reply to Eomer that I mentioned in a previous post as being essential for preserving the integrity of Tolkien’s moral vision. However, they make up for it with an original speech by Sam at the end of the film that makes the same moral argument, and it is quite effectively done. I suspect this was consciously done by the writers.

The movie took more liberties with the book than it should have, in my mind, a couple for the better, but most for the worse. But on the whole it is a success.

Gollum steals the movie.

Senator Patty Murray in Darkness

I can’t believe this stupid comment by Senator Patty Murray (D). She is talking to high school students, which makes it even more reprehensible. As my father would say, if anyone asks you why I am not a Democrat, use this as a reason why. This woman understands less about the United States and what good it has done for the world than my dog Jacob! Ask any country we have gone to war with--and rebuilt, after we beat them--about American magnanimity (including Afghanistan, most of whose roads we built before we bombed them!). I won’t quote from the news story; read the whole thing. This is the kind of stuff that makes me angry, and sometimes feeds doubt to my hope.

A Note on Frist

It shouldn’t surprise us that Bill Frist the man, the surgeon, the senator, the good samaritan, is everywhere. And its fine by me that he is being praised so. But also note in this ABC News report the start of a list of items that Demos are going to bring up, from voter intimidation to a membership in an all white golf club to inhumane treatments of cats. I couldn’t help noting in this WaPo article that he only gets four hours of sleep each night. I was also amused to hear a CNN anchor say that Dr. Frist saved the life of Senator Thurmond a few years ago when he collapsed on the Senate floor and the anchor said that if Frist wouldn’t have done it then none of this would have happened; the anchor then actually said that he had set the whole thing up. This is one smart guy.

Confederate General Byrd

It’s amusing to note that Senator Byrd will have a cameo appearance as a Confederate General in the movie "Gods and Generals." I don’t quite understand why he is playing a Confederate General when West Virginia became part of the Union in 1863. I bet there would be a huge outcry if Lott would have done this!

James Bond and Justice

This is a pretty good review of Die Another Day by Bruce Sanborn. It mixes up Bond, Reagan and Homer Simpson nicely. If anyone has seen "The Two Towers", give me your opinion.

Counsel Post-Trent

Well we won’t have him to pun about any more.

But what about the Democrat assault on Republicans generally, on race issues. I think the affirmative action debate should be ratcheted up a notch by conservatives: Supporters of preferences should be demonized as supporters of reparations. Let them deny they support reparations and see what this does to their black support, especially if Al Sharpton hits his stride.

Robert Alt: How does this Frist affirmative action plan differ from the provision on this for Hillary care-- Frist’s is splitting the difference, isn’t it? Good catch, not a good sign for the latest target for the liberal destruction machine.

Stanford and Stem Cell Research

Dr. Leon Kass, the chairman of President Bush’s bioethics council has chastized Stanford University for misleading the public about its stem cell research program.
Kass said: "Stanford has decided to proceed with cloning research without public scrutiny and
deliberation, and has hurt the cause of public understanding of this subject by its
confusion of the issue." The Weekly Standard has a good editorial on this case.

The Long National Nightmare Is Over

AP reports that senior GOP sources close to Lott confirm that he will step down as Majority Leader, but will remain in the Senate.

Real Corruption, not Mere Shadow

Today’s paper, filled as usual with holiday spirit, contains several examples of real corruption -- not the post-modern Common Cause kind that speaks of inchoate "access" or improper feelings of "gratitude" for political support.

No this is the good stuff, teacher’s union officials using Union dues funds for fur coats and Tiffany silver. LINK.

Or another installment in the continuing story of former Ill. Gov George Ryan’s administration, the exchange of bribes for licenses, then the use of that money for campaign contributions. LINK.

There’s also a story about a local investor who bilked numerous prominent Washingtonians out of their investment funds, including apparently columnist George Will. Unfortunately, I can’t find the link on the WaPo web page.

Now I’m no Blackstone, but my guess is that the conduct in these matter was prohibited at common law. Moreover, despite the fact that individuals still persist in this conduct, I do not see an uproar over the failure of our laws to "prevent" these bad acts, or the need for the federal government to take over areas traditionally governed by the states.

(Oops! Did I say something about States Rights? According to E.J. Dionne, I did. LINK).

Back to the point, it seems like we could recognize that some people are crooks, will commit crimes, and need to be apprehended and punished. That can be done without outlawing entire areas of legitimate activity - you can punish the extortionist, fund diverter, and defrauder without criminalizing investment advice, private unions, or political fundraising. That’my big thought for the season - happy holidays.

The Frist Momentum

The New York Times has this report on the move that Frist seems to be making. And here is the AP story. Note that Senators Warner and Alexander and Allen also seem to be aboard.
It is clear that this gambit will work, and Lott will be pushed out. Robert Alt’s warning about Frist’s imperfections should be noted, there will be many things to be worked out. My view is, first things first, so to speak.

Palestinians Continue to Support Suicide Bombings

This is a pretty depressing piece of information : 63% of Palestinians support suicide bombings; Arafat is still the most trusted man (25%) while Hamas leader Yassin comes in second (11%). Yet, 83% of Palestinians think that there is corruption in the Paletinian Authority.

Stuff on Lott

Here are a few more articles on Lott/GOP/race matters, without commentary, just so you can have them handy. George Will, from yesterday. Peggy Noonan from today’s WSJ, and Krauthammer and Goldberg’s response. Also take a look at a few good paragraphs from Andrew Sullivan on the generational split among conservatives, and you can get to Bob Novak’s NYT column through his site.

Frist’s Race Problem

If you thought Lott’s statements on affirmative action on BET were bad, what about a program which seeks to impose a predetermined level of diversity not in admissions, but in graduation. According to a policy analyst in DC, this is precisely what Frist proposed about four years ago for, of all things, medical schools. The program would have given a big pot of money to schools which met proportional graduation goals, creating incentives to consider race not just in admission, but in grading. Leaving aside the legal arguments and even the non-legal arguments associated with race--do we really want incentives for medical schools to simply give a pass to any student?

Frist now appears to be the front-runner for Majority Leader. If he wants to show that he is a leader on the racial issues which have provided the impetus for him to become leader, he must explain whether he still supports such a policy.

The Good, the Money and the Need

As most of you know Andrew Sullivan announced yesterday that he had raised almost $80,000 in a week-long on-line fundraiser, with over 3,000 people contributing to his worthy enterprise. This is important for two reasons. First, it shows that quality on-line journalism can be profitable (and the more primitive forms, from CNN to The New York Times, will have to pay more attention to bloggers). Second, it shows that attempts like ours can, eventually, become profitable (or at least pay for the necessities!). No Left Turns has only been at this since October 15th and we plan to be pontificating for a very long time. We will bring you some of the best, most interesting, and most high minded political and social commentary from some of the most thoughtful people in the country. But, there are costs involved. For now, we are fudging all that according to the Schrammian principle that the good will eventually be rewarded! We assume that if we talk folks will listen and, eventually, will contribute what they can towards our efforts. If you are willing to throw a few bucks our way even now, you may go here to do so. Thank you.

Fish Dying from Noise

Here is another example of environmentalism gone astray: a bridge being built in California could be delayed another two years and cost a $200 million more. It is an interesting and detailed story, worth a read. Of course, what’s another $200 million when the state is already $34.8 billion in the hole.

Piling on Lott

It has become clearer by the end of this day that Lott will not be able to hang on. Not only have Inhofe, Nickles, and Thomas called for new a new leader, but, most important Frist said this:
"I indicated to them that if it is clear that a
majority of the Republican caucus believes a
change in leadership would benefit the institution
of the United States Senate, I will likely step
forward for that role." Of course the supporters of Lott will warn that this means that the White House is going to be selecting the majority leader of the U.S. Senate--since it seems obvious that Frist is Bush’s preference--and isn’t that a dangerous thing, etc. Well, actually no, not if the distinguished senators need a little boost to set their part of the government in order. Besides, it is arguably the case that they’re back in the majority because of the White House. Maybe this could be the start of a real political party where there is some accountability and responsibility. It looks as though Bush is willing to take on that task. May he prosper.

Social Science at its Best

Reuters reports on a study about to be published in the British Medical Journal. "Researchers from Austria and Canada selflessly analyzed the bodies of
centerfold models in 577 consecutive issues of Playboy, from the
magazine’s launch in 1953 to December 2001." And these diligent social scientists "found that models’ weight had remained steady, but their bust and hip
measurements had decreased and their waists had thickened." This is social science at its best.

Military Killing Sleep?

Both Frederick the Great and I have tried it (without success) and now the military is trying to figure out a way not to enjoy the honey-heavy dew of slumber for about a week. See this ABC report.

Iraq and War

It would seem from this WaPo report that all will be ready by January. And John Moser considers the assertion that this is a war for oil.

More on Lott

I have been missing in action for most of the week because I’ve been up at the Cleveland Clinic with Vicki. She had her surgery and all is well! Thanks for your concern, she appreciates your good will.

Much good has been written on NLT on this Lott matter by others, so I will not (for now) add much to it except to send you to a good article by Mac Owens from the Ashbrook site. I do not think Lott can survive this (and I hope he doesn’t). This is very chaotic at the moment and not in the Republican Party’s interest since Lott (and others) are kowtowing to group based politics. However, the game is by no means finished. I have reason to think that a great deal of good might come out of it all: The GOP will have to talk about these matters and make the case for the basis of individual rights. They have always shied away from this because they were afraid; they now have no choice. And the President will have to take the lead; I am betting that he will because he must, both for the sake of right and for his own preservation. I trust his (and Rove’s) judgment on this matter.

Rallying on behalf of the Gipper

Time magazine’s premier race-baiter Jack White attacks Reagan as a racist this week in a completely scurrilous piece. I have offered a refutation today on National Review Online, which you can read here

Clark Entertains Presidential Bid

Here is an interesting article suggesting that former NATO supreme commander Wesley Clark is weighing a presidential bid on the Democratic ticket. As the article suggests, a Clark candidacy would give the Dems an asset they lack: a potentially strong and credible voice on national security and foreign affairs.

And How Did You Get Elected in Arkansas, Mr. Clinton?

President Clinton entered the Lott fray, accusing the Republican party of being hypocritical for criticizing Lott. CNN reports that Clinton said of Republicans: "How do they think they got a majority in the South anyway?" While he attempted to back up the statement with allegations of attempts to suppress Black voter turnout, the presumption inherent in his initial question seems to be that to be elected in the South, you must appeal to racism. Which begs one question: how is it that you think you got elected in Arkansas, Mr. Clinton?

Lott and the Michigan Case

The New York Times editorializes this morning that the Bush administration should offer a brief to the Supreme Court in favor of affirmative action, especially in light of Lott’s recent statements:

With Trent Lott’s recent remarks casting doubt on the Republican Party’s commitment to racial equality, there is more reason than ever for the administration to stand up for affirmative action.

They just don’t get it. Just because one member of a party makes an comment which tacitly supports a discriminatory policy does not mean that the proper response is counter with a Justice Department brief in favor of yet another racially discriminatory policy. Two equal protection wrongs do not make a right, particularly where, as here, the affirmative action policies are not tied to any notion of remedying the present effects of past discrimination, but are offered as justified in their own right.

The Times concludes:

In its brief to the Supreme Court, the Bush administration should say willingly what Mr. Lott said under pressure — that it sees carefully drawn affirmative action programs as the best way of opening up opportunity to all Americans.

This, of course, is one of the major problems with affirmative action policies for the sake of diversity at universities: they are not "carefully drawn." It took this lawsuit to get the University of Michigan to abandon its previous admissions policy, under which 100% of White applicants were rejected with entrance GPA and SAT scores in ranges which garnered minority groups approved for preferences nearly guaranteed admission. The new admission policies, while more subtle in their discrimination, are discriminatory nonetheless.

But of course the Times and liberal supporters really don’t care if it is carefully drawn or narrowly tailored. To demonstrate the point, I was on a cable talk show in New York about 6 years ago discussing the Hopwood case, which struck down the admission system at the University of Texas. The Texas system was so blatant they had zones in which applicants were automatically admitted or denied based on nothing other than their scores and race. They even color coded applications so that there was no mistaking which admissions pool the applicant fell into. The leader of a liberal advocacy group who was on the panel with me dismissed the practices at Texas, saying (and I paraphrase) "oh, well that activity was always impermissible. We are concerned with upholding narrowly tailored programs." While this may have been an accurate statement of what was or should have been required under the Equal Protection Clause, it was not an accurate statement of the public views of the group, which had opposed us in the Hopwood litigation--that is, they supported the "always impermissible" policies of the University. Similarly, I do not recall the Times ever saying that an affirmative action plan at a university was wrong because it wasn’t closely tailored, at least not before a court struck the program down. Let us then be serious: the affirmative action policies at universities are not carefully or narrowly tailored, and the Times does not care if they are, so long as the end numbers come out right.

Kristol on Coy Republicans

Bill Kristol has a wonderful piece in today’s WaPo on the problem of Republican leaders’ coy response to Lott. He wonders:

The hints and the feints and the background quotes are getting tiresome. Isn’t Republican honor in danger of turning into dust? And, if the evasions continue until Jan. 6, won’t the lusty exuberance of the president’s remarkable Nov. 5 election triumph be reduced to ashes?

It is a must read, particularly for Krisol’s reference to Churchill on the "boneless wonders" who wander freak shows and the halls of government.

How Big Should the DC Circuit Be?

The Post runs an editorial this morning calling for the Judicial Conference to examine whether the DC Circuit needs 12 judges before Bush sends nominations for the 11th and 12th seats. The question arises because members of the Senate and D.C. Circuit Judge Silberman have long argued that 10 is enough. Whatever the final count is, the court is currently understaffed, with by my count 8 sitting judges. Look for Senate Democrats to attempt to use this as an issue to block Estrada to the ninth position, saying that the study on the size of the circuit should be done first--despite the fact that no one disputes that there is a need to fill at least two more judgeships.

Lott Lashes Out at White House

The signs of desperation are growing. WaPo reports that Lott was critical of the White House for leaks which are unfavorable to him. Note to the soon to be ex-Majority Leader: leaks are the nice way of saying "In the name of God, Go!" Those with a modicum of sense and reflection would take that hint (and probably would not have made the offensive statement at Strom’s party, for that matter). If the White House stops speaking on background, they are likely to start speaking on the record. Take a hint.

In the race for Majority Leader, the Post suggests that some Republicans felt that Nickles statement calling for Lott to step aside was opportunistic. Frist therefore is playing it cool, and using the classic line that he would only run if he was recruited by Republicans. Translation: he’s probably campaigning behind the scenes more than anyone for the position.

Technical Difficulties

The site was down most of the morning due to technical problems with the server. Our apologies to those of you who could not get through sooner.

Lott Affirmative Action Concession May Be Spreading

WaPo reports this morning that the Bush Administration is split on whether to weigh in on the University of Michigan affirmative action case. Side note: to the headline writers at the Post, it is a discrimination case, not a bias case. This is actually not too big a surprise, and is just a little bit of history repeating itself. Ted Olson, the U.S. Solicitor General, reportedly is eager to take a position against the Michigan programs. He knows the issue well: he was counsel for Cheryl Hopwood in the landmark case of Hopwood v. Texas, which struck down the discriminatory admissions system at the University of Texas. President Bush was Governor at the time, and refused to take an official stance during the litigation. Indeed his office was adamant in their silence.

White House Counsel Alberto Gonzales is reported to be among the key White House advocates against weighing in on the issue, because of fears that this will impair Bush’s ability to appeal to Hispanic voters. This is something to keep an eye on, because Gonzales is considered the leading nominee for the next U.S. Supreme Court opening. At best, the statement suggests that he is willing to compromise taking a stand on the principle of equal protection for votes; at worst, it suggests that he has a one-way ratchet view of equal protection (EP applies to "bad" discrimination, but not "well-intentioned" discrimination). Neither suggests well for his jurisprudence.

Of course, the entire issue is complicated by Lott’s statements, which is likely to leave the administration running for cover. It is unlikely that Bush will make the mistake that Lott made on BET, in which he flipped on affirmative action to mitigate his political losses, but Lott’s statements make it far more likely that Bush will reserve his judgment until the Court releases its judgment.

The Last Throw of the Dice

Lott’s strategy should now be obvious from his craven performance on BET (i.e., betraying all Republican principles to save his hide). Rather than resigning the Senate and potentially throwing it into Democratic hands until a special election can be held, he has prepared the way to switch parties, thus depriving the GOP of the seat for the next four years.

Think about it: he has staked out Democratic party positions, and the Dems are clearly more forgiving of people like Robert Byrd, Klansman and race-baiter, than Republicans are. Remember, too, that Lott’s brother in law, Dick Scruggs, is among the most rapacious trial lawyers (and Democrat supporters) in the country, which means we can’t count on Lott to help out the much-needed tort reform agenda.

In the name of God, Go.

Right now the Lott saga is proceeding according to the usual byzantine Washington routine, with the endgame being dragged out with the usual winks, nods, confirmations by omission, etc. What is needed to stop the bleeding the the lingering damage this is doing to the GOP is for a leading Republican Senator to step forward and say to Lott, as Leo Amery said to Neville Chamberlain on May 7, 1940 in the House of Commons: "You have sat here too long for any good you have been doing. Depart, I say, and let us have done with you. In the name of God, go."

(Amery was of course quoting Cromwell’s words to the Long Parliament when he thought is was no longer fit to conduct the affairs of the nation. This is for thos eof you who jumped on me for misremembering Nixon on Laugh-In. This is no Laugh-In.)

Mississippi Election Law & The Governor’s Race

Commenter Gary Maxwell’s summary of Mississippi election law is essentially correct, with a picky clarification (if Lott resigns next year, the election will be held in November, and not in a year). MS Code SEC. 23-15-855 provides that the governor must call a special election within 90 days of a vacancy unless one of two things is true: 1) the unexpired term of office is less than a year (which is not a problem here, because Lott’s term isn’t up till January 2007); or 2) the vacancy occurs in a year in which there is a general or congressional election, in which case the governor sets the election to fill the seat at the time of the general election, and appoints a Senator in the interim. It so happens that there is a general election on November 4, 2003 for Governor and other assorted state offices.

Bottom line: if Lott resigns by December 31, 2002, then the Governor would have to call an election within 90 days, and could appoint a replacement only until the results are certified. If, however, Lott resigns on January 1, 2003 of later, then the Governor is required to set the election at the time of the general election, which is in November.

Maxwell asked who the Republicans would be running for Governor in MS. My understanding is that Haley Barbour, who served as Chairman of the RNC from 1993-1996, intends to run.

Lott’s "cave on principle"

Robert Alt writes that I was optimistic on how Lott would perform on BET, not anticipating that "Lott would cave on principle." Lott, and principle? Rush has been merciless to Lott today.

Masugi’s Optimistic Assessment

It seems that Masugi was optimistic in his assessment of Lott’s performance. While correct in his assessment that Lott would be a buffoon, he failed to prognosticate that Lott would cave on principle. Here are excerpts of Lott from WaPo’s transcript of the BET interview:

GORDON: What about affirmative action?

LOTT: I’m for that. I think you should reach out to people...

GORDON: Across the board?

LOTT: Absolutely, across the board. That’s why I’m so proud of my own alma mater now, University of Mississippi, that obviously had a difficult time in the 60s and 70s, now led by an outstanding chancellor, Robert Khayat, that has gotten rid of the Confederate flag, that has now has an institute of reconciliation, that has a leadership...

GORDON: Yet your votes in the past have not suggested that you are for affirmative action.

LOTT: I am for affirmative action. And I practice it. I have had African-Americans on my staff, and other minorities, but particularly African-Americans, since the mid-1970s.

I have had a particular program...

GORDON: But to have one on one’s staff--you understand the difference, though, to have a black on your staff and to push legislation that would help African-Americans, minorities across the board, are completely different.

LOTT: You know, again, you cam [sic] get into arguments about timetables and quotas.

Here’s what I think, though. I think you’ve got to have an aggressive effort in America to make everybody have a chance.

Harvard has a program where one in three of their students are alumni children. That’s--you know, we need to balance this out more, and I think that we should encourage minorities to have an opportunity across the board. And a number of states have done that in unique ways, University of Texas is one of them.

Lott clearly tried to walk a line, and suggest a distinction between outreach and quotas, but his endorsement will be seen as an endorsement of the policies of the University of Michigan (and perhaps the Ol’ Miss), which does not simply provide outreach but gives a hard preference on the basis of race.

Fighting Words and Mississippi

I’m crashing to finish a project here at my day job, but as soon as I am able I will address Lucas’s question about Chaplinsky fighting words and the relevance of this doctrine to the cross burning case, and Pestritto’s question about what happens if Lott resigns, which turns both on politics and on Mississippi election law.

On Justice Thomas

Agreed on how to interpret the First Amendment’s "the freedom of speech." I don’t know whether Justice Thomas reads the First Amendment that way or not, but as Robert Alt, JD, suggests, he may well.

The other arguments Alt, Esq., raises suggest how Justice Thomas is a natural law thinker-- he goes to the constitutional heart of the problem and maintains the principles of the regime, all derived from natural rights. Thus, he is the purest "originalist" on the Court because of his natural law orientation.

The Evolution of Blondes

This may be an amusing way to end the day. It is a Reuters dispatch from London about a woman who has written a book on blonde locks (and created an exhibition "on their startling evolution" for the National Portrait Gallery). Blondes are now being taken more seriously, the lady asserts, and the tale starts with Aphrodite and Diana (no, the English princess) and Maggie and Madonna with her "hard working hair" (she sells more records when she is a blonde).

Virginia v. Black (cross-burning case)

Virginia Code 18.2-423, the cross burning statute, states:

It shall be unlawful for any person or persons, with the intent of intimidating any person or group of persons, to burn, or cause to be burned, a cross on the property of another, a highway or other public place. Any person who shall violate any provision of this section shall be guilty of a Class 6 felony.

Any such burning of a cross shall be
prima facie evidence of an intent to
a person or group of persons. (Emphasis added.)

That second part is a big problem. The mere burning of a cross constitutes initial evidence of intent to intimidate, which places the burden on the defendant to show he did not mean to intimidate. The Supreme Court does not like to read the 1st Amendment as placing the burden of defending one’s free speech on the individual; instead, the govt must prove its case that someone’s speech does not deserve protection.

Otherwise, a govt statute prohibiting this or that form of expression has a "chilling effect" on speech, as folks decide not to speak for fear of prosecution.

Now, cross-burning might be legitimately prohibited IF it can be covered under the "fighting words" category of unprotected speech. Robert Alt, esq., chime in here whenever you are ready. I just don’t like the view that blacks or Catholics (or whatever minority group of individuals) deserve govt protection ONLY if
their sensibilities are offended. Rights are not supposed to be that alienable. As Ken Masugi noted, this sends us back to Kennedy’s bad opinion in Lee V. Weisman, or Warren’s inane argument (though not result) in Brown v. Board.

Souter’s remark about the supposedly Pavlovian response of blacks to burning crosses is condescending in the extreme; moreover, I don’t think Scalia’s bit about blacks preferring to see a man with a rifle in their yard as opposed to seeing him burn a cross is much different.

Also, Ginsburg was just plain idiotic to say that you can burn a flag because "anyone can attack the government" and then say burning a cross was different because it means "attacking people, threatening life and limb." In one of the cases grouped under Virginia v. Black, the racist yahoos got permission from a private citizen to burn a cross on her yard. How does this threaten life and limb? What is considered under law an intimidating act? Does the Nazi symbol now qualify as verboten
under the 1st Amendment?

Thomas on Free Speech

Masugi is right that Justice Thomas has a manly understanding of liberty, and this is particularly true in the First Amendment context. Anyone who is unfamiliar with his free speech bona fides need only look to his opinions regarding political speech to understand that this is someone who uniquely understands both the importance and the limitations of liberty.

While most of the press focused on how experience likely shaped Thomas’s questions, I believe that it was his understanding of what constitutes the proper bounds of constitutional liberty that provided the foundation for his inquiry. More than any other Justice, Thomas takes seriously the Founder’s understanding of the Constitution, and his questions therefore seem consistent with the idea that the term "Freedom" in the First Amendment is actually a term of limitation. To see what I mean, it is useful to examine the words: the First Amendment does not say that "Congress shall make no law . . . abridging speech . . ." but rather "Congress shall make no law . . . abridging the freedom of speech" (emphasis added). Thus, for the Founders, the freedom of speech was not unbounded, and did not include, for example, the right to disturb the peace. A wise friend of mine suggested that Thomas’s questions seemed to bear on this distinction--a proposition I now open to Masugi et al.

Oh, and "still less than a man," . . . that was harsh. I actually considered the lawyer comment a compliment by comparison, especially coming from Schramm.

Lott, what else?

I dare say, Lott’s decision to go on the BET show this evening is precisely what’s wrong with the man. He thinks that blacks are just another constituency that can be appeased-- Wait a second, he’s thinking like a . . . Democrat. So THAT’s what’s wrong with him!

Why can’t he be satisfied that he was GOP leader for a stretch, sit himself down for the sake of the NEW Republican majority (and leader)--and thereby help Bush get done what most GOPers want him to get done--but fulfill his responsibilities to his state by staying in office (and denying the Demos another seat in the Senate), and eat his humble pie in peace, far from the madding crowd? My goodness, I thought politicians were supposed to have the stomach for these sort of things.

Lott on BET

Can he outdo Gore, McCain, Jackson, et al., on SNL? BET predictions:

a. Lott will appear in blackface
b. He will do the hambone
c. He will devour watermelon
d. He will allow eaten-up chicken wings to be thrown at him.
e. All of the above
f. None of the above, but he’ll manage to make a buffoon of himself nonetheless.

The Drumbeat Continues

NR’s editors today call for Lott to step aside and allow someone else to take the position of majority leader. Because some reader’s of NLT have suggested that we need to "screw our courage to the sticking place" and support Lott because times are tough and the accusations are at times overstated, I offer NR’s conclusion:

Many conservatives will be tempted to defend Lott because of the nature of some of the attacks on him. It’s an understandable impulse. But it is possible for someone simultaneously to suffer unfair attacks, handle himself and his predicament poorly, and be an underwhelming political figure. Trent Lott has managed a trifecta. For NR to rally to his side now would amount to defending him because he is being accused of racism. We usually pride ourselves on being fair-weather critics of, and foul-weather friends to, conservative politicians. Lott is in for a long bout of foul weather. But we can’t be loyal to a Majority Leader who we didn’t support in the first place.

I would simply add that not all the attacks appear to be unfair, and fair or not, these attacks will continue as long as Lott remains in a position that makes him a leader in the party. The continuing presence of these attacks is not necessarily a reason to abandon Lott as Majority Leader--but his lackluster support for the principles of the party of Lincoln is.

Dowd, Thomas

Well done, "more than a lawyer" (but still less than a man?) Alt, on Maureen Dowd’s put-down of Justice Thomas. We need to compare her to Trent Lott. It really is the same phenomenon of regarding blacks as an instrument for a political agenda at odds with the Declaration of Independence.

To deepen this argument: Lucas Morel was bothered by Justice Thomas’s arguments about burning crosses terrorizing blacks and therefore not qualifying as speech. Is this not akin to the psychological effects arguments made by Justice Kennedy in that Rhode Island school prayer case, Lee v. Weisman, and of course to the doll test in Brown?

As usual, Lucas is on to something. But, based on my reading of the Justices’ questioning as reported, the thrust of Justice Thomas’s remarks difers from thatof the others. I believe it was Kennedy (again!) who used the term "Pavlovian" about blacks’ reaction to a burning cross. But Thomas was referring to something more like Justice Scalia’s example of brandishing a gun. Thomas stands for manliness in his understanding of constitutional liberty, most of the other Justices for lower principles.

By the way, on the Klan and the use of the seemingly bland and neutral statement "separation of church and state," see Philip Hamburger’s book of that title. There he lays a convincing case that this ACLU-liberal slogan was the darling slogan of the KKK, as it waged war against Catholics, even to the point of inviting black Protestants into their fanatical crusade.

Big Bro Smells a Rat

Better put on my cologne . . . This from Secrecy News:

DARPA is "soliciting innovative proposals to (1) determine whether
genetically-determined odortypes can be used to identify specific
individuals, and if so (2) to develop the science and enabling
technology for detecting and identifying specific individuals by
such odortypes."

See DARPA’s presolicitation notice for the "Odortype Detection
Program," :


Are Lott’s Days Numbered?

The AP reports that Senate Republicans will meet on January 6, the day before the Senate convenes, to decide what to do about Lott. If this report is accurate, look for Lott to do some strong-arming and vote counting leading up to the 6th. If the votes aren’t there and he can’t get them there, he won’t wait for the meeting, but will in all probability pull himself out of the running for Majority Leader.

Arafat Scolds bin Laden

Arafat has demanded that bin Laden stop using the Paletinian issue as a reason for his terrorist attacks. I’m glad to hear this, but I wonder why Arafat had to wait almost a year and a half after September 11 to say this!

Goodnight, Dick

The Nixon appearance on Laugh In was the opener of the second season,
September 16th, 1968. Candidate Nixon turned to the camera, and said
it to me?" in an episode where everyone in the cast, except Judy Carne
was the "socked" girl in the first season) got hit with stuff after
the line.

No, Nixon didn’t get hit with anything, not even the bucket of water.
was the last "sock it" reference, and the punch line to the running gag
the show. That’s why the line is in the form of a question. See?

According to the producer of the show, it took six takes before Nixon
deliver the line without sounding angry or offended.

According to one authority on the topic, "Hubert Humphrey had been
by Laugh in to do a similar cameo bit, but after consulting with his
advisors, Humphrey turned the opportunity down as being beneath his

Thomas’s Rejection of Intellectual Servitude

As an antidote to the Dowd column, I commend to you Justice Thomas’s speech before the National Bar Association. It is worth quoting at length:

I have come here today not in anger or to anger, though my mere presence has been sufficient, obviously, to anger some. Nor have I come to defend my views, but rather to assert my right to think for myself, to refuse to have my ideas assigned to me as though I was an intellectual slave because I’m black.

I come to state that I’m a man, free to think for myself and do as I please.

I’ve come to assert that I am a judge and I will not be consigned the unquestioned opinions of others.

But even more than that, I have come to say that isn’t it time to move on? Isn’t it time to realize that being angry with me solves no problems?

Alt on Dowd’s Racism

I am not normally in favor of praising Alt, but I think he nails Dowd to the wall on the post below. Well done, for a lawyer.

Why Lott Cannot Stay Leader

I had a chance to look at Bush’s remarks on Lott in Philadelphia last week, and it seemed stronger when I read it (than having heard a few lines on the news). If Lott isn’t replaced as GOP leader in the Senate, Bush loses. Because a Republican president can’t lose a battle like this, Lott will be out. It will take a few more days for the Senators to see this, but they will, and you can be assured that the White House (not excluding Rove) will help them see it (not publicly, of course, until the very end where the White House will say it welcomes new leadership). Andrew Sullivan is good on this in the latest issue of Time.

Dowd’s Racism

Maureen Dowd has a dreadful column in yesterday’s New York Times on the Lott issue. What made it "dreadful" was the last line. After pointing out the racial mistakes of the would-be Majority Leader’s career, she compared him to Clarence Thomas, who offered a passionate denunciation of the cross burning last week. Dowd concluded: "You know you’re in trouble when Clarence Thomas is playing Martin Luther King to your David Duke."

Let’s analyze this for a moment. Why would she say this? Anyone who actually follows the Court, rather than someone who simply accepts the liberal spin about Thomas without thinking for herself, knows that he is quite impassioned about these issues. Indeed, the last time there was a Klan speech case before the Court involving the placement by the Klan of a cross on the Columbus Capitol grounds, he offered not only his thoughts during oral arguments but a separate opinion to clarify that a cross is not a religious symbol to the Klan, but one with deep overtones of racism and threat.

One quickly turns to the affirmative action cases as the cause for Dowd’s comments. It seems that Dowd falls in with the camp which finds that you are not truly "Black" unless you embrace affirmative action. To do otherwise makes you an "Uncle Tom,"--and who better to make such implicit assertions than an elite White journalist at the New York Times? There are some racists who seek to place chains on men’s legs, and to physically separate them based on their color, and there are other racists who would shackle men’s minds, and who seek not physical separation, but separation based on racially "appropriate" thought. Both are pernicious, and it appears that Dowd subscribes to the latter theory.

Gore is not Running

Apparently Gore announced in a (taped) interview for 60 Minutes that he will not run in 2004, or "this time around." Maybe Masugi’s cryptic comment below can be explained in this way: he is hoping for an inconclusive primary season, and then get the Demo convention to ask him to carry the flag. Although anything is possible (a Nixon-like comeback?), yet, I don’t think so. I think he tested the waters and decided that he couldn’t warm it up. After all, the more TV appearances he made, the fewer books he sold. He took this to mean something. And it does. Now we shall see if Senator Lieberman is man enough to run as a moderate. I think this will make primary season (and Spring training) very interesting.

In the meantime, Clinton--speaking in Rotterdam--said "We drew up plans to destroy the reactor," and he told
Pyongyang the facility would be attacked unless it were frozen. Don’t you just love politics? Why would anyone want to study physics?

Burn his Books!

O.K. I got the message from a few rowdies (not only Masugi) that Steve Hayward misquoted Nixon; he didn’t say "baby," he just said, "sock it to me." They are sure of his error, although none have offered ocular proof and truth be told I can’t remember Nixon saying it, nor how old I was at the time. Yet, I take them at their word. So what is the proper course of action? I will go halfway to Mr. Lamb’s recommendation: I will not remove Hayward as an Adjunct Fellow, but more in sorrow than in anger I will remove all the benefits thereof, forthwith.

Gore seeks "viabiilty"

Saying he won’t run is his best chance at getting the nomination again.

Louisiana Election Details

For those of you curious to know the details of the Louisiana Senate runoff take a look at Patrick Ruffini’s blog (date 12-12). It’s pretty good. Note especially the paragraph on how blacks voted; Terrell seems to have received fewer votes from predominately black districts in the runoff than she did in the Novemeber vote. The maps are also useful.

Correcting a distinguished historian

Steve Hayward misquotes Nixon’s line on Laugh-In: I believe he said "Sock it to me?" But others present for this world-historical moment may have yet another account.

As Charles Kesler’s annual Christmas party wound down (raves to Sally for the wonderful menu, though there was no turducken), I managed to catch part of Gore’s appearance on SNL. I can no more imagine him being a good comedian than being a good President.

Berkeley Mayor a Thief

Perhaps this is not surprising: If you call yourself a progressive, you can get away with anything, including stealing a thousand newspapers that endorses your opponent in the city that is the home of "free speech."

Monica Banned from Italian TV Show

This is just plain amusing, in part because it is surprising. Monica Lewinsky was to appear on an Italian talk show and there was a bit of an outrage, so her paid visit was cancelled.

Russian Super Sniffer Dogs now at Work

NRO brought this to my attention, from the London Telegraph. The Russians have created a new breed of dog, with a superior ability to sniff things, including guns and bombs. They are using it at airports; forty have been bred. They are part Turkmen jackal and Siberian Husky.

If You Want War, then Prepare for Peace

Niall Ferguson has a thoughtful meditation on the current war and how Clausewitz fits into it, in today’s New York Times Magazine. I think this is especially thoughtful and worth reading, note especially the parallels he draws between the U.S.’s position now and that of the Brits in the 19th century and what that has to do with "pre-emptive" wars. Do read this (registration required).

Nickles calls for vote on Lott

Since I slept through the talk shows I only now caught that Senator Don Nickles has called on the GOP to have an election for new leader. This is the story from theWashington Post. This is good news, and it surely means that Lott will not survive, especially if he doesn’t have Bush’s support, which he doesn’t. It is all over for him, in my opinion. What I’m guessing should happen is that over the next few days/weeks, it will become clear to Lott that he will not survive and therefore will resign, as a matter of (Southern) honor, rather than allowing for a vote. That’s what should happen. And Nickles just might be elected as leader as a result of his early and proper stance.

Lott Ought to be Ousted

Much that is true and useful has been said on this blog by my friends, so I will not add more to it than to say that Lott ought to go, and it seems to me that conservatives ought to be the ones urging his exit from the leadership position, and continue to do it on principled grounds. See this from Ken Masugi, and then this editorial from The New York Sun. Furthermore, it is no longer a viable argument to say that the Demos are using this for political purposes (which they are; surprise!) or that Lott is getting harsher treatment than someone else on their side (for example, Byrd). This no longer matters. Lott is foolish, if not stupid, and he shouldn’t be allowed to bring further mischief to the party fo Lincoln. If he continues to be so obstinate in what he perceives as his self-interest by staying as majority lader, then he ought to be ousted. Are there not a half-dozen Republican Senators willing to call for a vote in the caucus?

LOTR Continued

I was pleased to see Hayward’s blog on LOTR, and in fact spent a good chunk of last evening reading the book in anticipation of the movie. Something tells me that this was time more pleasantly spent than the alternative of watching Gore Live.

LOTR Scorecard

We’re less than 48 hours away from the opening of The Two Towers, the second installment of Peter Jackson’s adaptation of Tolkien’s Lord of the Rings. I gave the first installment a B grade after seeing it in the theatre, mostly because I thought the music was too loud and dominated the film. But this is typical of most movies and theatres these days, which have overinvested in sound systems; and when I saw Fellowship again on DVD, I had a better impression of it--a B+.

The book is impossible to fully adapt into even a three-part film, but the key criteria for judging the effort is the extent to which the filmakers remain true to Tolkien’s moral teaching. The first movie passed the test by keeping in one of Gandalf’s major speeches (thugh they moved it from near the beginning in the book to the mines of Moria in the film), where Frodo suggests that Gollum deserved death from the hand of Bilbo.

"Deserves it!" Gandalf says; "I daresay he does. Many that live deserve death. And some that die deserve life. Can you give it to them? Do not be so eager to deal out death in judgment. For even the very wise cannot see all ends."

The criteria for The Two Towers will be whether they keep Aragorn’s reply to Eomer’s question "How shall a man judge what to do in such times?" Aragorn’s answer gives Tolkien’s attack on modern moral relativism: "As he has ever judged. Good and ill have not changed since yesteryear; nor are they one thing among Elves and Dwarves and another among men. It is a man’s part to discern them, as much in the Golden Wood as in his own house."

Early word is that The Two Towers is better than the first installment in terms of a filmgoing spectacle. But to have any chance at getting an A grade from me, Aragorn’s line must survive.

Tricky Al

I didn’t stay up last night to watch Al Gore, comedian, host Saturday Night Live, but it does deepen the parallels between Gore and Richard Nixon. During Nixon’s long comback before running again in 1968, he made a cameo appearance on "Laugh-In," to deliver the line, "Sock it to me, baby!"

We didn’t, but he did.

South Dakota and Voting Fraud

Byron York has a short piece on the continuing questions and lawsuits in South Dakota in NRO that is worth reading, but so is his longer piece in the current issue (December 23) of National Review, alas, only on paper. If only half of what he says about vote buying, etc., is true, this is awful and it may be becoming a habit worthy of Albania or Romania.

Germany’s Economic Decline

This is a crisp short editorial in the Frankfurter Allgemeine Zeitung (translated) about why Germany’s economy continues to decline. I hope we pay attention.

Teenage Girl Tackles Robber

This is the thrust of this story out of Ohio:
"A petite 17-year-old, irate after seeing three men
running from her home in the wee morning hours Tuesday, sprinted outdoors
barefoot, clad in pajamas, outran one of the trespassers, tackled and
straddled him, then hog-tied him with a rope until police arrived minutes later." Good story.

Mecca Cola

It looks like a Tunisian-French entrepreneur has come up with a politically correct (anti-American, pro-Palestinian) brand of cola in France, "Mecca Cola." Ten percent of profits will go to Palestinian "charities." Their motto is "Drink engaged! Not like an idiot." I’ll stick to Coors.

He Sleeps with the Fishes

A well-placed hill staffer suggested that Lott’s statement will be another apology. That said, the strategist believes that Bush’s stern condemnation yesterday sent a clear message: "Lott sleeps with the fishes."

Was the 2002 Election a Realignment?

I’m back from sunny SoCal (all four days were between 68-72 degrees!) and now to work. The first item I would like to bring to your attention is Steve Hayward’s article in the latest On Principle; it is called "Give ’em Hell George." It is (of course) well written and is (perhaps surprisngly?) very thoughtful. Among other things he argues that there is a very interesting connection between the stunning 1948 Truman upset, and the 2002 GOP victories. You will see what he is driving at. Do read it. Let’s argue about it. This is worth a lengthy conversation. Perhaps Sir Hayward will come down to earth for a bit and mingle with the peasants.

Lott Statement Update

Affirming my lack of skill as prognosticator, the latest scuttle I have received from the Hill is that Lott’s statement will most likely be another apology, and not a statement stepping down from the position of majority leader.

Lott Press Conference

The Washington Post reports that Trent Lott will hold a press conference today at 5:30 ET. Drudge reports that he will not be stepping down from Majority Leader, but will be issuing a stronger apology at the request of Bush and Rove. But speculation is growing that this may be a more significant announcement. My sense is that he is done, and that if he is smart, this will be the announcement that he is stepping down from majority leader. If he doesn’t, I think it will delay what is increasingly looking to be the inevitable.

If he does step down from majority leader, the smart money seems to be on McConnell to take the position, with Nickles coming in at a distant second.

While the Dems have been content to have him remain in power as an object of scorn, as soon as it becomes obvious that he is stepping down from majority leader, look for a concerted cry for his resignation. This would permit Democratic Governor Ronnie Musgrove to fill the seat, and throw the Senate back to 50-49-1.

Schramm’s Return

For those of you tired of reading my name at the bottom of the blogs, relief is in sight. Schramm is supposed to be back from his west coast tour, and should be back on line today.

Evidence of Possible Iranian Nuclear Program

CNN reports that satellite photos (which are available on the web site) show two nuclear facilities in Iran which could be part of a weapons program. Iran’s spokesman said that the sites have been regularly inspected by International Atomic Energy Agency, but IAEA says they have been denied access to date.

Peggy Noonan on Lott

I realize that we have hit oversaturation on this story, but Peggy Noonan transforms her pen into a dagger in this devastating piece, which is worth a read.

Governor Davis Loses at the FERC

The Federal Energy Regulatory Commission ruled yesterday against California and Gray Davis, who was seeking a $9 billion refund from energy producers. Instead, the FERC found that California owed $1.2 billion to energy producers. This is a fitting tribute to Davis’s mismanagement. Since this controversy began in the wake of a series of rolling blackouts and skyrocketing energy costs, Davis has treated the entire ordeal as nothing more than a political operation. He has screamed for $9 billion in refunds, but has been repudiated time after time for what is at best "fuzzy" math. The message is clear: when conditions (some of which had to do with inflated natural gas prices, and some of which have to do with state regulation) make it costly to produce energy in your state, the consumers end up paying the price. Even in the post-Enron era, simply blaming companies for the state’s failure to properly manage its energy policy won’t do.

Lott and Pickering II

A few days ago I said here that Lott’s comments would come back to haunt him with regards to the nomination of Judge Pickering to the Fifth Circuit. Well, the Washington Post yesterday said that liberal advocacy groups are planning on using the comments to help derail the nomination. This presents a significant difficulty for the party. Lott was intent on bringing Pickering forward, but in doing so he may hand the Democrats a perfect case to test the filibuster. The filibuster is fundamentally an exercise in political gambling: if it is successful, the party exercising it gains in power and political capital, while if it fails, the failure weakens your standing. At best, Lott’s position as foot-in-mouth orator and Pickering proponent gift wraps an issue for the Democrats to beat up the majority over; at worst, if could give them a formula to draw first blood by blocking a judge after the change in leadership.

Bush’s Statement of Principles

Uber-commenter David Bird brought the following Washington Post article to my attention. Bush yesterday offered a very strong and very well put statement on the Lott situation which is worth quoting at length:

Recent comments by Senator Lott do not reflect the spirit of our country. . . . He has apologized, and rightly so. Every day our nation was segregated was a day that America was unfaithful to our founding ideals. And the founding ideals of our nation and, in fact, the founding ideals of the political party I represent was, and remains today, the equal dignity and equal rights of every American."

This is well said. My only regret is that Bush stopped short of pulling Lott from the starting lineup. I understand that politically this is not something that would have been done during the speech, but would likely have been done with Mr. Rove and a set of brass knuckles behind closed doors, but the political winds suggest that this is not going to happen.

Tucker’s Hypothetical

At the outset, I readily concede that Tucker is a genuine expert on these matters, and that my comments are at best those of a casual observer. That said, a few thoughts. First, Tucker says that the question was never either/or. I concede that this is true as a matter of official policy and for those like Tucker who understand the issues, but for those in the pundit class or on the political left, the question was often framed in either/or dimensions. When some of these commentators said "why are we going into Iraq when the real threat is terror," the idea was not that we should wait and address Iraq later, it was often a challenge to the idea that there was any relation, and a criticism of ever addressing Iraq. This seems to have been at least a partial catalyst behind the "Bush hasn’t made the case" school of thought, which still has carried some marginal resonance. A similar situation arises in how the left looks at missile defense. There are some who question whether we should focus our efforts on costly systems to shoot down missiles when there are suitcase bombs. While there are some who are making an argument based on priorities, there are many who simply think we shouldn’t do missile defense period. Thus, my comment was not directed at those who have questions about the timing of America’s response to Iraq--that is, those who see a correlation between Iraq and terror--but rather was directed at those who see America’s response to Iraq as unnecessary or unrelated to the war on terror.

As for the thought experiment, my only question would be whether what America is facing is more like a face-to-face confrontation with a gunman, or a series of guerilla attacks by a band of outlaws. If faced with a gunman, you certainly disarm him before worrying about who gave him the gun. If, however, you are facing random attacks by a band of outlaws, it may be necessary to knock out those who you know are supplying them with weapons and money, so that you aren’t confronted with better armed outlaws.

Iraq May Have Provided AQ With Nerve Gas

A comment on Robert Alt’s remark that “the argument regarding the need to fight terror versus the need to oust Hussein may now officially be over” : it was never either/or. It was and is a question of priorities. In that regard, I pose the following thought experiment. If someone is pointing a gun at you, what is most urgent, to disarm him or to get the person who gave him the gun?

Which Way to the DMV?

Howard Bashman’s How Appealing Blog brought this article by Lloyd Grove to my attention. It seems that Doug Kmiec failed to change the license plates on one of his cars to DC after leaving California. Tony Bullock, a spokesman for Mayor Williams, referred to this as "a delicious irony," given that "[t]he law is not ambiguous." Well, I suppose the law there isn’t ambiguous, but then neither is the D.C. law prohibiting forged signatures on mayoral nomination petitions. Based on the DC election board’s throwing out thousands of signatures which were allegedly forged by Williams workers, I suppose Mr. Bullock knows a thing or two about the law and irony.

Why Wait Till He’s Nominated?

The Alliance for Justice has issued a press release expressing their opposition to Doug Kmiec’s nomination to the D.C. Circuit. It seems that the Alliance for Justice is no longer satisfied with opposing actual nominees--they are now opposing potential nominees (it is rumored that the White House is considering nominating Kmiec, but he has not been nominated yet). Considering all the money they spend pouring over the writings of judicial nominees, they should perhaps think about spending a few dollars to have someone proof their press releases: the headline on the release says "Alliance for Justice Statement on Walter Kmiec" (emphasis added), rather than Douglas Kmiec.

The Senate Majority

Here is an interesting article from Roll Call explaining how Democrats, emboldened by Landrieu’s win, are threatening to hold up reorganization of Senate Committees if the Republicans don’t agree to nearly equal budgets for the majority and minority committees. The parties have agreed that Republicans will have a one seat advantage on all committees, but it has not yet been decided how this will be accomplished: whether by adding to Republicans to each committee, or removing a Democrat from each.

In a move that may be a portend of things to come, Hatch has already struck a deal with Leahy, under which the funding for the Judiciary Committee will be equal regardless of the distribution for the rest of the Senate. Many Republican analysts--including your humble correspondent--are anxiously following developments in Judiciary Committee, where Chairman Hatch will need great resolve against what will likely be stalwart opposition to getting judicial confirmations back on track.

Sins of Omission

Commenter David Bird makes a strong case for why Lott’s second apology is inadequate given his inability to say the word segregation, let alone to place it in the same sentence with the words "morally wrong." His most intriguing point, however, is that elected Republicans should be held accountable not only for what they have said, but by what they have failed to say. It’s all good and fine that Kemp, and pundits, and the writers of this blog beat up on Lott on a regular basis, but it is high time that the elected Republican officials took him to task. I couldn’t agree more.

Lott’s Damage to the GOP

Anyone doubting the fallout of Lott’s statements need only read Bob Herbert’s column in today’s New York Times. Herbert asserts that Lott is endemic of the GOP, which he claims to be a party of racism. Lott’s continued presence as Majority Leader will give cover for this kind of race-baiting. Better to send Lott to pasture and to reaffirm the GOP as the party of Lincoln, and let the Democrats explain why they remain the party of Cynthia McKinney.

The Same War

The New York Times offers an op-ed today expressing the observation of a visitor to Washington that Washingtonians view the war with Iraq as inevitable, and that they view it as part and parcel of the war on terror. This should not come as a suprise, given the revelation that Iraq may have supplied AQ with nerve gas. The article is worth a read, if only for the following line: "With his 12,000-page report to the United Nations, Saddam Hussein has written perhaps the longest suicide note in history."

Gore’s Friends Say He Won’t Run

The New York Times reports today that several of Gore’s associates speaking on the condition of anonymity say he won’t run, and that he will announce this in January. This assessment seems to correspond with what I have been hearing from the chattering class. Only time will tell.

Bush Authorizes Use of Smallpox Vaccine

The President has authorized a program to provide smallpox vaccines to military and emergency personnel, and then to all Americans on a voluntary basis. The authorization suggests just how serious the potential threat is, given that the vaccine carries serious side effects. The Washington Post reports that
"[h]istorical data show that between 15 and 50 of every 1 million people vaccinated will suffer life-threatening complications and that one or two of them will die." Given these statistics, the President must have been advised the potential risk was too high not to go forward with the program.

Iraq May Have Provided AQ With Nerve Gas

The argument regarding the need to fight terror versus the need to oust Hussein may now officially be over. The U.S. has received credible reports that Iraq supplied AQ with deadly VX nerve gas. If true, this provides solid evidence of cooperation between Iraq and the terror organization, and undermines Iraq’s claim that they do not have weapons of mass destruction.

North Korea Reactivates Nuclear Reactor

North Korea announced that it will be reactivating a nuclear reactor near Pyongyang which was thought to have been used to produce weapons grade plutonium in 1994. The announcement is predicated on the decision of Washington, Japan and South Korea to cut off heating oil subsidies that were offered in exchange for North Korea ceasing its nuclear program. The decision to cut off the supplies was triggered by North Korea’s recent revelation that they had continued their nuclear weapons program.

He’s Really Sorry This Time

Under pressure from all sides, Lott offered a second apology yesterday, calling his previous words "terrible," and for the first time suggesting a repudiation of segregation by saying "I don’t accept those policies of the past at all." Aside from the fact that this still seems weak--it fails to make the case--one has the feeling that this is too little, too late. The Republican and Democratic villagers had torches and pitchforks, and under this duress he offers a more acceptable statement. Jack Kemp put forth perhaps the strongest Republican rebuke of Lott to date, calling his statements "’inexplicable, indefensible and inexcusable.’ Kemp warned that until Lott does more to repudiate them, the party will suffer long-term damage."

Atantic Article link

My faithful correspondent Kevin Whited has helpfully tracked down the link to the Atlantic Monthly artice I mentioned previously by Chris Caldwell on "The Southern Captivity of the GOP." It appeared in 1998 here

In Defense of Commercial Speech

Reader James Coleman writes in with criticism of my blog on the Supreme Court’s decision not to hear the commercial speech case earlier this week. I reprint his comments in whole here:

Mr. Alt, in defense of his firm’s client, never expresses an iota of concern for whether the speech of the dentist is truthfull [sic] or misleading. In fact he infers without providing any support that the dentist’s attempted advertisement was "truthful commercial speech." Presumably, this means that, if something is commercial speech, it is per se "truthful" no matter how dishonest or misleading the statement may be. What a strange world indeed when any dishonest statement is to be considered per se truthful if only it is made in a setting where someone will make a buck from it.

First, let me be clear that I was not and am not speaking on behalf of any firm or client, but only on an area of First Amendment interest. While I admittedly did not develop the full case for why the speech was truthful and nonmisleading, this is a function of the ordinary space limitations of blogging (which I abuse enough as it is). If we are ticking off criticisms, it could also have been noted that I did not offer a discourse on the development 1st Amendment commercial speech law--much to the solace of the eye-weary readers of this blog. I did offer some support for the truthfulness of the ads: I stated that there was ample emperical evidence that the certifying agency was legitimate, and that the dentist was certified by the agency. Indeed, as the AP noted, the dentist had received the highest level of certification offered by the organization, attending over 400 hours of class and passing multiple exams. And the certifying organization was previously found to be a "bona fide organization." Thus, any ad by the dentist expressing a specialty in this area or certification by this agency were truthful, a point not disputed by the state.

The best argument offered for the disclaimer was that it was necessary to assure that people didn’t mistakenly believe that the agency was recognized by the state, or a part of the ADA. It is not that the speech was misleading as written, but simply that people may make incorrect inferences. This seems like a bit of a stretch, because it infers that any reference to an accrediting agency is inherently misleading because people will infer state impramatur by the action of private agencies. Even assuming for the sake of argument that this is true, the means selected to alleviate this misunderstanding were excessive. I abbreviated the disclaimer in my previous blog, which was required to be printed in capitalized letters (or similarly distinguishable font) as follows:


While the disclaimer could have been written to convey the idea without making impossible any advertisement, this method assures that no one will advertise.Furthermore, the disclaimer is more likely misleading than the advertisement, because the Florida Board of Dentistry has recognized the AAID as a bona fide organization.

As for Mr. Coleman’s statement that "[p]resumably, this means that, if something is commercial speech, it is per se ’truthful’ no matter how dishonest or misleading the statement may be," there simply is no support for that in anything I wrote.

There are commercial regulations which are designed to prevent fraud on the public, and there are regulations that are intended to effectively ban advertising. The latter are clearly disfavored by the First Amendment, and this regulation was clearly among the latter.

Law Without Values

Professor Albert Alschuler of the University of Chicago is giving a speech here in Columbus, Ohio today on the life and work of Justice Oliver Wendell Holmes. I highly recommend his book, Law Without Values, which details the morbid relativism of Holmes, and explains how Holmes’s true legacy is his assault on the natural law tradition. Definitely worth a read.

From North Korea With Love

Spanish warships intercepted a ship carrying North Korean SCUD missiles toward Yemen. While Yemen has deployed SCUD missiles, it is unclear whether Yemen was the ultimate destination of the missiles. Just another friendly reminder of why those who oppose missile defense are more than willing to put our troops and allies in harms way.

NYT on the Cheney Case

The New York Times editorial page argues today that the district court decision finding a lack of standing for the comptroller to bring an action to get documents from Cheney should be overturned on appeal. The argument would have been somewhat more effective if they made an argument that resembled a legal one, rather than huffing and puffing about the necessity for open government.

The closest that the Times gets to the legal question is asserting: "But his [Judge Bates’s] decision ignores the fact that the General Accounting Office was established by Congress for the express purpose of helping it to investigate and analyze matters like this." As the opinion makes clear, it is not that apparent how broad the investigative authority is meant to be. Even if we assume for the sake of argument that it is that broad, and if we recognize that Congress said that the Comptroller could sue to get documents, that still does not per force give rise to standing. Congress’s grant of statutory or prudential standing does not supercede the requirement for constitutional standing--that is, even when Congress says that someone may sue, they still have to have an interest or injury in the matter sufficient to meet the constitutional requirements of standing. This is an interesting question upon which the Cheney case turns, and it is one which the Times ignores.

If They Pull a Knife, You Pull a Gun . . .

The New York Times reports that Bush Administration published a document yesterday stating that "[t]he United States will continue to make clear that it reserves the right to respond with overwhelming force — including through resort to all our options — to the use of W.M.D. [weapons of mass destruction] against the United States, our forces abroad, and friends and allies." The implication is clear, and clearly reminiscent of statements made by Baker prior to the Gulf War: if Saddam uses chemical weapons, we reserve the right to retaliate with a nuclear strike.

A Lott of Similarity

What at first appeared to be a ripple in the water is turning into a tsunami. The Washington Post reports this morning that Lott said of Strom Thurmond:

You know, if we had elected this man 30 years ago, we wouldn’t be in the mess we are today."

No, this wasn’t at Strom’s 100 birthday party. It was at a campaign speech in 1980 in Jackson, Mississippi. Those who read this blog will note that I was willing to chalk up his comment at Strom’s party to the words of a thoughtless sycophant (although I still was in favor of ousting him for general incompetence), but the fact that he said virtually the same thing 22-years ago is disturbing, and suggests that this comment gives us a window into the man’s mind. And the window does not provide a pleasant view.

With this revelation, it is surely time for Lott to "step down" (with the able assistance of Mr. Rove) as Majority Leader. The difficulty will be, as Masugi noted, making sure that the public understands that this is being done for the right reasons. It should not be an homage to those who play racial politics, but must be a clarification that the party of Lincoln still stands for the basic principle of human equality--and that those who pay honor to political systems which do not respect these principles should not and will not lead that party.

Let Lott rot?

What Steve Hayward pointed out about Lott’s virtues-- his ability to play the inside game-- reflects the whole problem with Congress that John Marini, Tom West, and others have been pointing out for years: That Congress has suffered a constitutional transformation since the time of the Founding. This is not the Founders’ Congress.

While Lott’s skills are important, his recent stupid utterance not only reflects the pettiness that always pervades collective bodies. That pettiness becomes transformed under the aegis of the administrative state and hence arise petty fiefdoms, or should I say, in this case,a plantation. Lott’s low qualities were suppressed or brushed aside by the constitutional qualities the Founders required in a Senate designed to bring forth virtue. But when he speaks on his own, he is Lott the low. What would he be like if he were not restrained by his post? I would be interested in finding out.

The political problem is of course how to drop Lott without handing liberals a greater victory than they’ve already won. His going down has to be part of an assertion of constitutional principle and devotion to Republican party principles as properly understood-- in brief, as defenses of natural rights and limited government, not as assertions of affirmative action, redistribution, and all the perquisites of the administrative state.

Sandra Day’s Swan Song

Regarding foreseeable Supreme Court vacancies, look for Associate Justice O’Connor to make the Grutter and Gratz affirmative action cases her swan song.

There’s no way the present Court can muster a Brown v. Board-style unanimous decision or opinion in an attempt to cut the Gordian knot of 21st-century affirmative action. Prediction: O’Connor (who wrote the Adarand and Richmond v. Croson opinions, which were majority decisions but neither of which garnered a majority in support of her opinion) will again write for the Court. She’s unlikely to write an opinion that gets four other votes, given Scalia’s and Thomas’s consistent concurrences, to say nothing about the complexity of the lower court rulings. In Adarand, she laid out pretty neatly a summation, "three general propositions," of court precedent on affirmative action, which neither she nor the other conservative judges have shown signs they will back away from.

It helps that O’Connor acknowledged (in Croson) that Bakke did not produce a majority opinion, which means she will try to do just that with this case. It’s been almost a quarter century since the Supremes ruled on affirmative action in education, so O’Connor will try to improve upon Powell’s lone opinion (but majority decision) in Bakke by getting the Court to speak more clearly: namely, by emphasizing stare decisis as applied to the Court’s racial discrimination decisions. She may try to turn this case, if she gets to write the opinion, into a swan song for her general legacy as the first female Supreme--helping the Court to stabilize its rulings, esp. given its split decisions on controversial subjects, through a heightened reinforcement of the role of precedent. This is how she interpreted the abortion cases and was able to steal the Casey opinion away from Rehnquist.

In short, strict scrutiny lives to fight another quarter century.

Quick note on Stevens: In 1999 or 2000, during the one oral argument session I have witnessed before the Supremes, Justice Stevens was the most engaged and vigorous of the nine inquisitors.

Blog on!

Summary of D.C. Court’s Decision in Favor of Cheney

I’ve finally had a chance to read the U.S. District Court for D.C.’s opinion holding that the Comptroller did not have standing to bring a lawsuit seeking to force Vice-President Cheney to turn over documents related to his National Energy Policy Development Group. Unlike popular impressions, the case did not turn on or even raise the issue of privilege. Rather, the question was whether the Comptroller suffered the sort of injury which is necessary to allow standing in a federal case. The district court, relying extensively on an opinion by the Supreme Court finding that Congressmen don’t have standing to litigate the constitutionality of their legislation simply on the basis of their position as legislators, found that the Comptroller did not have this kind of particularized interest and therefore lacked standing. The court showed a notable restraint, suggesting that the judiciary was not intended to resolve these kind of inter-branch disputes, especially where there are other political means available. The full opinion is online here.

Supreme Court Vacancies?

U.S. News reports in their Washington Whispers column that in addition to Rehnquist, "Bush aides also expect John Paul Stevens, 82, and Sandra Day O’Connor, 72, to quit soon." Stevens is probably the most difficult to believe. While it was previously fairly common-knowledge that Stevens, who was appointed by a Republican, wished to stay in office to be replaced by a Republican (despite his liberal voting practice), that presumption has recently switched, and many believe that the 82 year-old Justice is trying to wait it out until at least the ’04 elections.

Washington Whispers also suggests that the leading contenders to take the job of Chief Justice are Scalia and Thomas. While it is possible that Bush would tap one of these current Justices, I don’t think either would particularly like the job. Scalia relishes the role of bombthrower too much, which is a vital function he could not perform if he were in the conciliatory position of Chief. And Thomas rightly has no desire to sit before the unsavory jackals which make up the Senate Judiciary Committee again. No, I still think the smart money says that Bush will appoint someone from outside the Supreme Court to become Chief Justice.

Death Penalty Is Constitutional

In the "duh" category, the Second Circuit today overruled a district court judge who had previously ruled the death penalty unconstitutional and equal to "state-sponsored murder" of innocent people. The Second Circuit’s decision, which essentially reminded the lower court that district court judges cannot overrule Supreme Court decisions, must have come as quite a shock. You can read a story about the opinion here, or get the full decision here.

Lott Must Go

I don’t care how good Lott is supposed to be at the backroom dealing of the Senate (which is his reputed strength); he has to go.

His blooper only makes evident what Chris Caldwell warned out about in a terrific article several years ago in the Atlantic Monthly called "The Southern Captivity of the GOP." I am not sure if it available online anywhere, but it is worth tracking down.

The trouble here is that the Party of Lincoln can only deal with issues of race and identity politics by being the Party of Lincoln’s Principles. Lott (and many other Republican) are oblivious to this. Not only did Lott say this recent outrage, but in the 1980s, according to NY Post columnist Robert George, he said that the platform of Jefferson Davis was in the Republican Platform of 1984.

This is unacceptable. The time has come to have it out with the Lincoln’ bashers who find their convenient home in the GOP. It should be made less convenient for them.

The Not-So Ambiguously Gay Duo

Jonah Goldberg brought this to my attention. CNN reports that Marvel Comics is launching a new gay comic about a character called--I’m not making this up--"The Rawhide Kid." The First Edition will be "Rawhide Kid: Slap Leather." This surely will inspire a college course such as "homosexual themes in comic literature." In this class, the professor will explore the wearing of tights and the use of names such as "Superman," "Batman," and "the boy wonder."

Governor Davis’s California

Governor Davis declared a fiscal crisis in California yesterday, with deficits spiraling toward $20 billion. Congratulations once again to the state of my youth for reelecting "rolling-blackouts" Davis--I’m sure that the Davis will demonstrate the same leadership in the next four years that he has in the past.

So Much for the USO

A cavalcade of celebrities is set to release a letter today to President Bush asking him to "stop his war rhetoric toward Iraq." Would they prefer that he replace his words with action? The letter is organized by Mike Farrell and Anjelica Huston, who are said to be joined by "hundreds" of stars, including Samuel L. Jackson. Now, I could be wrong, but I think that anyone whose fame rests on being a self-proclaimed bad M*F* could appreciate the need to speak harshly to someone harboring weapons of mass destruction.

Just Say It

The New York Times offers an editorial today which actually seems to argue in favor of commercial speech. This is an astounding development from an editorial page which does it best on a daily basis to quash political speech through the invention of campaign finance regulations.

The paper suggests that the U.S. Supreme Court should hear a challenge to a California ruling against Nike, in which the sportswear company was found liable under a consumer protection statute which prohibits false and misleading advertisements for statements made about its labor practices in third-world countries. I’m glad to see that the NYT has expanded its view of free speech beyond the freedom of the press. Perhaps soon they will embrace political speech as well.

August or Trivial

Anne Applebaum offers her thoughts on why the New York Times and feminist obsession with allowing women into Augusta is misplaced, and why the feminists are out of touch with American women.

Lott’s Mea Culpa and the Pickering Issue

Lott apologized yesterday for his "poor choice of words" in suggesting that the country would have been better off if Strom Thurmond were elected in 1948. Now there’s an understatement. Gore offered some simplistic denunciation of Lott’s original comments on CNN’s Inside Politics, which reaffirmed that he can’t talk about anything without seeming preachy.

But the Lott comments become more serious because Lott wants to push through Judge Pickering, a native of Mississippi, for the Fifth Circuit Court of Appeals. Pickering was voted down by the Judiciary Committee this year, but may be renominated by Bush. The race issue may again become prominent because Pickering wrote an article on anti-miscegenation law back in I believe the 50s which did not condemn the practice. Lott nonetheless has expressed his desire to have Pickering’s nomination handled as one of the first in the new session. Look for Lott’s comments to come back to haunt him, and the party at these hearings.

The Coming Natural Law Debate

The New York Times reports that Catholic University Law School Dean Doug Kmiec is being considered for an appointment to the D.C. Circuit Court of Appeals. Doug is a very thoughtful scholar, and this would be a fine choice. But he is a scholar who may excite the left, for he has written about natural law theory, which the Times notes toward the end of the column. The left is of course wildly inconsistent about this: for example, Laurence Tribe skewered Bork for not subscribing to natural law theory, and then went after Justice Thomas for subscribing to the theory. The Times brought out the ultimate boogeyman, suggesting that the natural law could be used to overturn Roe v. Wade--a question that Kmiec can almost certainly anticipate.

The Senate debate over natural law was somewhat short-circuited in the Thomas hearings because of the scurrilous charges of Ms. Hill. With Dean Kmiec, we may see a fuller debate of these issues.

The Odd Couple of Free Speech

The Supreme Court today opted not to hear a case raising an interesting commercial speech question involving what disclosure statements can be required for those who wish to advertise that they are specialists in a particular field. [In the interest of full disclosure, the petition asking the Court to hear the case was filed by my law firm, and I had some microscopic role in it.] Justice Thomas, joined by Justice Ginsburg, dissented from the court’s decision not to hear the case, and made a convincing argument as to why the court should have allowed arguments.

The case arises from Florida, where a dentist wished to advertise that he was a specialist in implant dentistry. Because this specialty is not recognized by the state dental board, state law required that any advertisement include a lengthy disclaimer stating that implant destirstry is not a recognized specialty area. The law further required that any reference to the professional association that certified him be accompanied by an even longer statement asserting that the organization is not recognized as "BONA FIDE." The sub-text to the case seems to have been a special interest deal: the organization that certifies implant dentists is a competitor of the ADA, which appears to have been the driving force behind this law. Interested parties were thus able to use the power of the state to neutralize competition by effectively preventing dentists from advertising a specialty in this area: the disclaimer was too long to allow a dentist to refer to the specialty in business cards or yellow page ads, and it was sufficiently negative as to make people think that the competing organization was little more than a diploma mill, despite emperical evidence regarding the agency’s certification requirements to the contrary.

What a strange world we live in, when truthful commercial speech and campaign speech are given less protection by courts than nude dancing.

USA Today

A reference to USA Today . . . the surest sign that Schramm is blogging while traveling.

Segregation on College Campuses

Suzanne Fields has a good article about how colleges continue to allow (and encourage) segregation in housing, etc. I found this comment insightful; the student came to Amherst on his way toward becoming human, and was persuaded while there to be a Latino. This is called higher education.
"A Latino student gives away the insidiousness of this
approach, describing how he found his blood roots at Amherst: ’For me, there’s
more consciousness of my background as a Latino male,’ he says. ’Before I came
to Amherst, I wasn’t thinking about race or class or gender or sexual orientation, I
was just thinking about people wanting to learn.’ "

Goldberg on Lott’s Comment

Jonah Goldberg calls Lott’s remark about the 1948 election "incandescently idiotic" and then he gets even harder on him. I think he’s right. Since no one likes Lott, and no one thinks he is doing a good job, maybe this is a good opportunity to get rid of him as leader.

How to be Happy

The lead article in today’s USA Today is on happiness. It claims that psychologists (Seligman, et al) are coming to the conclusion that human beings are happy when in a family, with friends, and are forgiving. This is a view that represents the bugeoning "positive psychology" movement, a view that emphasizes people’s strengths and talents instead of their weaknesses. Even though all this seems common sense-like, and in some ways unremarkable, it ought to be encouraged. Will it be possible to come to all the right conclusions through so-called modern scientific methods? We can only hope. There was one interesting sentence (not elaborated upon) in the article: "A person’s cheer level is about half genetic, scientists say." I also note, in passing that Mihaly Csikszentmihalyi (who’s at Claremont now) concept of "flow" is mentioned favorably in this context of "positive psychology." My only comment on that is: wouldn’t it be ironic if a Hungarian understood happiness better than anyone? Have you ever read the Hungarian national anthem? Pretty depressing.

I was wrong!

Somehow, sitting here in Los Angeles, looking at the barren hills and letting the sunshine permeate my little room, things don’t seem as bad as they could be. The Louisiana senate race is history. I was wrong about the outcome. Hats off to the Landrieu campaign, they overcame all the big guns the GOP brought in, and possibly were even able to use it to their advantage. Certainly the canning of O’Neill could not have helped; bad timing. And, arguably, allowing her to vote in favor of Homeland Security took that issue off the table, to Landrieu’s advantage. It would appear that black voter turnout was a key. The only warning this victory brings to Democrats is that Landrieu won, in the end, by trying to be a moderate Demo, attaching herself as much as possible to the president. It’s good thing I didn’t make any bets on this prediction!

The Feingold Filibuster

Senator Russ Feingold of Wisconsin suggested that he would be willing to use the filibuster to block some judicial nominees. He nonetheless noted that they could not sustain a filibuster for all nominees, but would have to "pick and choose" their battles. Daschle joined the chorus with regard to filibustering Supreme Court nominees. In a statement which confused qualifications and judicial philosophy, Daschle stated:

"I think it just depends on how qualified the nominee will be and if there is such an opening," he said. "If a replacement for the Chief Justice of the U.S. Supreme Court represents an extreme far-right position on most of the issues of the day, or issues relating to the Constitution, I think he or she would be in for a rough ride, in terms of the confirmation."

Frum on Lott

David Frum begins with the view I suggested, which was that Lott intended only flattery in his comment. But Frum continues with the following stinging critique:

What came out of his mouth was the most emphatic repudiation of desegregation to be heard from a national political figure since George Wallace’s first presidential campaign. Lott’s words suggest that one of the three most powerful and visible Republicans in the nation privately thinks that desegregation, civil rights, and equal voting rights were all a big mistake.

His recommendation is that Lott should make it clear that he really doesn’t believe this, and that this will require something more serious than an "I’m sorry." This seems right, but who wants to make bets that Lott can put his foot in his mouth here as well.

Hayward on the McCain-Feingold Challenge

Allison Hayward offers a look into the district court proceedings on the McCain-Feingold act which occurred last week. From her report, it looks like we can expect a decision from the court in January, following which the act provides for discretionary appeal directly to the U.S. Supreme Court.

Iraqi Disclosure

The best comment on the Iraqi report yesterday was offered by Joe Lieberman on Fox Sunday Morning, who referred to it as a 14,000-page, 100-pound lie.

The New Economic Team

The Washington Post reports that Bush will tap CSX Corporation chairman John Snow for the position of Secretary of Treasury today, and will formally announce Stephen Friedman of Goldman Sachs for White House Economic advisor tomorrow.

What to Make of the Landrieu Victory

Since Schramm is off in a different time zone, I get the first shot at making sense of the Landrieu win. The talk show pundits yesterday universally spoke of it as being a huge victory for the Democrats. To the extent that it showed that they are still on life support, I agree. If Landrieu would have lost, it would have been difficult to view this election cycle as anything but cataclysmic for the Democratics; now it is simply a disaster.

A few bits of the conventional wisdom on this do seem right. First, the victory was the result of massive Black voter turnout. This seems consistent with recent election trends, and suggests once again that Democrats in 2004 are going to need to offer some incentive--be it a VP nominee or top cabinet positions, or a legislative agenda aimed at increasing minority admissions to universities--in order to energize this voting base.

Second, as Bill Kristol noted on Sunday, the timing of Bush’s sacking of the key economic advisors was poor. To have the ousting of O’Neill and Lindsey be the headline on election day was not good thinking by the Bushies. They should have waited till at least Sunday to drop the news.

Finally, the Republicans arguably got too cocky toward the end. While the Republicans were bringing the big guns into the state, Donna Brazile was working behind the scenes to whip the grassroots vote, and it paid dividends.

It is somewhat disappointing to lose the runoff (which no one thought we would win before November 5), if for no other reason that this is the last memory of this election cycle. That said, it is ordinarily not seen as a great accomplishment to hold a Senate seat, and to lose control of the Senate.

Lott’s Idiocy, Continued

Lott should step down from majority leader, but less because of his ridiculous comment and more because of his feckless leadership. While it was shameful, I am willing to dismiss Lott’s comment at Strom’s birthday as someone who was being overly effusive in praise, and in an attempt to offer a gratuity lost their head. I quite frankly doubt that Lott even thought about the fact that Strom ran as a segregationist--I rather doubt he thinks often for that matter. Rather, I think he was trying to be "nice" to the old codger.

By contrast, Lott’s generally spineless administration, and his inability to articulate a message, is something which cannot be dismissed as haphazard. It is systematic idiocy. He has been a bad face for the Republican party, because he gives the appearance--if not the reality--of being an empty suit. But this is what happens when you nominate an Ol’ Miss cheerleader to be Majority Leader for the United States Senate.

Fraud and idiocy

To answer Peter’s question in part, I believe what happened in South Dakota was that, after election day, the national Senate Republicans lacked the stomach to make a big deal of the narrow margin and allegations of fraud - sort of a hangover from 2000. The state party probably felt otherwise, and has beeen gathering evidence. We haven’t heard much, perhaps because the state party hasn’t seen it in their interest to tell the world what was going on.

Now, dear Jaffaphiles who read this blog, I have a question -- should Trent Lott resign as Senate Leader, if not for the above then given his incredibly stupid (and vile) comments about Strom Thurmond’s 1948 candidacy? If not, why not?

South Dakota Voter Fraud?

I saw something on Fox News last night, and then this UPI story this morning, on some new (?) revelations about fraud in South Dakota. It seems odd to me that it is coming up now; I had thought it was over a few weeks ago. If anyone has any more information on this I would appreciate hearing about it.

Why Landrieu Will Lose

A reader (PChuck) thinks I’m too optimistic about Terrell winning in Louisiana. Here is why, briefly, I think Landrieu cannot win. There has to be at least a 25% turnout of Black voters, and she must get 90% of them. (The highest black voter turnout recorded in LA was in 1991 when David Duke ran for governor, and that was only 26%.) And she has to get at least 33% of the white votes. I don’t think she will do either, in the end. Black voters are utterly unenthusiastic about her. It is clear from press reports that Black Demo leaders are very worried. The white liberal/moderate vote might go her way, but that’s only about 30% of white voters. I don’t think she is going to do any better among white voters than any other Demo Senate candidates in other Southern states have in the November election. She needs to make a large inroad of more conservative white voters and she will not for two big reasons: 1) Bush’s support of Terrell and 2) Terrell up front anti-abortion stance. And last, I don’t think that the GOP’s get out the vote effort should be underestimated (and the Demos affort is almost always overestimated). Furthermore, the momentum has been on Terrell’s side for the last two weeks of the campaign; that is deadly for an incumbent. It might be close (say 51-49%) but I doubt it. I predict it will be more like 53-47%. There, I’ve stuck my neck out. Thanks for your comment Chuck.

Lott’s Comments on Thurmond

It’s one thing (although tacky) to get a so-called Marilyn Monroe look-alike to sing happy birthday to Thurmond, and it is another for Lott to say that it would have been better for the country to have Thurmond elected as president in 1948. Lott should remember (as Kristol says) that this is the party of Lincoln and while we are glad that Southerners have joined it, it should be clear to all of them that they joined us and not vice versa.
It is shocking, is it not, how foolish and thoughtless some Republican politicians can be?

Clinton’s DLC Speech

Here is a copy of Clinton’s speech in front of the Democratic Leadership Council last week. It is long (surprise!). I saw a good bit of it on C-Span. What the written version will not reveal is all the lip-biting and head tilting.

USS Truman Battlegroup Moves Out

Marv Krinsky brought this to my attention. Note in this story about the USS Truman leaving Norfolk for the Persian Gulf that the following announcement was made:

"Peace on Earth to men of
goodwill," a voice said over the
loudspeakers. "All others stand by."

Preemption and Neutrality Re-considered

This is a thoughtful article by Jeffrey Tiel on how the war against terror has changed the terms of the discussion; it is not clear that the Bush administration is perfectly clear on this.

Bloggers and the Iraq War

This Reuters dispatch (via Forbes) reflects on the following: as CNN was to the Gulf War so Bloggers may be to the war war on Iraq. Short, to the point, with many good bloggers mentioned. Bloggers will be faster with real news and will cut through the superficial much more quickly than ordinary news outlets; they will also be more analytical.

Landrieu Will Lose

This CNN report makes perfectly clear--not by design--why Terrell will win in the Liusiana Senate run-off today. The first paragraph from the story: "Republican Suzanne Haik Terrell hopes to win
the runoff election by surrounding herself with
every GOP luminary she can find -- while
embattled incumbent Democratic Sen. Mary
Landrieu fights a lonely campaign for survival,
shunning party leaders whose fate could not
be more closely tied to her own." What an extraordinary situation for the national Democratic Party: The less they are tied to her, the better chance she has of winning. And this is not the first, nor the last, of such a predicament.

Environmentalist Panic Over Cork

This is a typically over-the-top environmental crisis article (from the BBC) that says the following: Because wine makers are moving away from the use of corks as stoppers, local wildlife will be threatened in the Mediterranean area because these cork forests will be replaced by other crops; or, if just let be and no longer cultivated, the area will turn into a desert.

Wolfowitz and Turkey

Here is Stephen Hayes’ article form The Weekly Standard on what Wolfowitz was doing in Turkey and the military preparations that are under way. By February, he thinks, everything will be in place. Sounds reasonable in this high stakes poker game.

Tiger Woods’ Interview

Here is an interview with Woods. Especially note the section "On Augusta and the Masters" wherein Tiger reveals how sensible he is generally, and specifically with regard to why he is the one being asked to boycott. He seems like a very good guy to me, smarter than the editorial writers at the New York Times and most of his interlocutors.

MSNBC Hits Bottom

Drudge reports that MSNBC is doing very badly. Both Donahue and Matthews are at the bottom (O’Reilly and Hannity are at the top). This is not surprising news to any of us, but it occurs to me that it is related to the Demos whine about Rush and the so called conservative talk-show/news conspiracy. In short, the various attempts of liberal leaning talking heads is not working, just like trying to find a liberal Rush counterpart a few years back (remember Cuomo’s attempt?) is not working.

First O’Neill, Then Lindsey

UPI reports that White House economic advisory Larry Lindsey joined Treasury Secretary O’Neill in resigning today, with both resignations reportedly occurring at the request of the White House. UPI reports no official statements on replacements, but lists Dick Armey, Steve Forbes, and, yes, you guessed it, Phil Gramm as possible contenders.

Treasury Secretary O’Neill Resigns

Over a week ago I said that Treasury Secretary Paul O’Neill was on the way out. Well, it’s official. He resigned in order to return to the Yankees, and to end this horrible two-year Western curse. O.K., not really. But seriously, he did resign today and now the fun of speculation begins. I’ll take this chance to renew my appeal for Phil Gramm to take O’Neill’s spot, both because of Gramm’s fiscal soundness and his backbone for the national security aspects of the job. Another dark horse would be Chris Cox of California, the man who should be a judge on the dubious Ninth Circuit, if he didn’t hail from a state where both Senators would likely blue slip him.

Dennis Miller, Neocon

I didn’t see Jay Leno last night, but I am told that Dennis Miller, who has been whacking the s--- (as Miller would say) out of the Democrats since the election, said that if Al Gore runs for President again, "he’ll get his ass handed to him faster than someone in a liposuction clinic."

More Good Enviro News

By the way, it should be noted that the CI study was funded by the Gordon Moore (Intel) Foundation. Because both Intel stock and Hewlett-Packard (another huge environmental donor) stock have tanked, their grants to green groups have shrunk by two-thirds or more this year and into next. Not all of these grants are bad, nor is everything the green gropos do suspect (like the CI study, which is very good). But many green groups are facing layoffs and shrinking programs at the very moment they want to scream the loudest about Bush, etc. Makes my day.

Environmental Wilderness

The study Peter refers to finding that 46 percent of the planet’s land area is still wilderness is extremely significant, because it comes from Conservational International, which is a heavyweight global player on environmental matters. And because they focus (mostly) on practical conservation projects rather than preaching to us about our green sin, they are going to anger the World Wildlife Fund and other alarmist groups who are always banging the drum for the green apocalypse. The fact that "only" 7 percent of this land is permanently preserved should not be taken as bad news at all; 7 percent is a HUGE amount of land. Moreover, some of the best environmental scientists think that about 80 percent of all endangered species could be perserved if we work on preserving just 20 important "hot spots" around the world, which would only require preserving a small additional percentage of wilderness area. The CI study shows that we have a lot to choose from, and more latitude than we think. This means the mass extinction crisis is effectively over.

While the news keeps getting better on the environment, look for the rhetoric from Democrats to get much worse. Polls right now show that the environment is the issue where Democrats enjoy their largest advantage over Republicans with voters. So expect Dems and their lackey environmental groups to crank up the volume full blast. Dick Morris is advising Dems to do this, and argues that Gore have won in 2000 if he had pushed the environment harder. This is more than doubtful; it is wrong. I have a piece coming out shortly from AEI that will analyze this issue, showing how the environment is not helping Democrats much, and may well have hurt them badly in some places. I’ll link it when it is out.

Clinton Whine and the GOP Destruction Machine

Here is John Fund’s take on the most recent Clinton whine (aka his DLC speech) about how the GOP has at its disposal a destruction machine (he probably meant Rush). Good article. Here is his last paragraph: "So here’s a little advice for the party out of power: Start by looking at how successful
centrist Democrats who are out of favor with the Clinton-Gore-Daschle axis have won,
among them Pennsylvania’s Gov.-elect Ed Rendell and Sens. Zell Miller of Georgia, Evan
Bayh of Indiana and Joe Lieberman of Connecticut. All of them hail from states with
powerful conservative talk-show hosts, but you’ve never heard them whine about a vast
right-wing media conspiracy".

Learning Disability and Schools

This is from Reason and is very much worth reading. It shows how so called LDS students (no about 12% of K-12 students!) are used as a cover for the failure of schools. This categorization of students (only about 10% of that 12% are really "diabled") is a travesty and must stop, for the children’s sake. Yet, everything in the system encourages it.

46% of Earth is Wilderness

A bunch of scientists have determined that:

"Despite population growth, logging and other environmental threats,
nearly half the land on Earth remains wilderness -- undeveloped and
nearly unpopulated, according to a study released today. The study by
200 international scientists, the most comprehensive analysis ever done
on Earth’s wild places and population trends, was seen by some experts
as a surprising cause for optimism. Biologists also viewed it as a warning,
since only 7 percent of the wilderness is protected." Let human beings attack their minds and hands to all this wilderness and we’ll make something of it! But, as the last sentence implies, it would not surprise me if there will now be a movement to protect what’s left; the "Forty-six percent club for no growth," or something like that.

Chechen Connection to Saudis?

This report from England claims that there might be a connection between the Chechen terrorists that took over the Moscow theatre and the Saudis. There were several phone calls to them from the theatre, for example. The Saudis are being pressed from all sides. I suspect this is about to become really inetresting

Landrieu’s Panic Time

The sense that I have had for weeks is now manifest in public: Landrieu cannot win this race. As one pollster says , there is no reason to think that anyone who didn’t vote for her in November will vote for her this Saturday. This means she can’t get more than 46% of the vote. That sounds about right. You can also smell the defeat by reading this from Roll Call . Even Donna Brazile can’t put a good spin on it. The Demos in Louisiana are trying to win a war by placing not-so-many conventional troops on the ground, while the GOP is using the biggest guns they have from the air, and have amassed a huge number of ground troops. This defeat will be demoralizing to the already disorganized and discombobulated national (sic) Democratic Party. And their spinmeister’s better take a month long break because there will be nothing for them to say (accept the truth, which they refuse to say).

What to Make of the Inspections Continued

The Washington Times reports this morning that the U.S. intends to cite Iraq for material breach if it fails to disclose weapons that the U.S. knows to be in its possession. Intelligence which the U.S. has not yet revealed to the inspectors includes details of a cache of over 1800 gallons of anthrax. While the Washington Times’s source suggested that the breach would not be used as an immediate predicate to war, the source did say that they would use this to press the U.N. inspectors to do more.

I previously predicted that Bush’s strategy hinged on the December 8 report, and his comparison of this to undisclosed intelligence data. That said, I am not quite sure what using this information to press the inspectors will do. I understand the need for prudence, but the question is whether we can really expect much more from the U.N., or any more cooperation from Iraq. I’d be happy to hear what the other fellows think.

Thurmond at 100

Strom Thurmond marks his 100th birthday today, making him the oldest American to serve as U.S. Senator. To give some idea of the length of his career, it is useful to recall that on D-Day he landed in Normandy (at age 40) having already served 6 years as a school teacher, 4 years as a superintendent of education for his county, 8 years as a attorney, 5 years as a state senator (overlapping his time as a lawyer), and 8 years as a circuit court judge. Following his service in WWII, he became governor of South Carolina, and ran for President against Truman. All of this before becoming a U.S. Senator for South Carolina in 1954, where he has served ever since. And to this day Strom has a certain fondness for . . . life, as evidenced by his parting speech to the Senate:

"I love all of you," Thurmond told colleagues in a farewell speech in the Senate last month, "and especially your wives."

Ninth Circuit’s latest order in the Pledge case

The Ninth Circuit just ruled on various intervention and other motions in Newdow v. U.S. Congress, denying Mrs. Banning (the mother of the school child at the center of the Pledge case) leave to intervene, denying the U.S. Senate’s motion to intervene, upholding Newdow’s standing to have brought the suit, and directing that he file a brief in opposition to the petition for rehearing and rehearing en banc by (ironically?) Christmas eve. The principal order is available HERE

The Court had earlier (Oct. 9) denied the motions for leave to file amicus curiae briefs in support of the petition for rehearing en banc to every group that filed such motions, including my brief on behalf of the Claremont Institute.

Apart from the troubling refusal of the panel to even consider arguments by amici challenging its ruling, I question whether the panel even had the authority to deny a motion for leave to file an amicus brief in support of a petition for rehearing en banc; such a decision should probably have been made by the full court itself. It looks as though the panel is going to extraordinary efforts not to have to consider arguments challenging the validity of its initial ruling.

National Security as Cause of Demos’ Losses in November

Andrew Busch argues persuasively that the key issue for the Demos poor showing in November was national security. He analyzes Daschle’s outrage at Bush’s suggestion that Democrats cared less about national security than about special interests. Busch thinks that Daschle admitted that and, even though not widely reported in the press, the American people caught it and voted accordingly.

More on Preferences

NLT reader Gary Maxwell, a former Michigan resident, writes in support of the theory that we should not permit blatant discrimination to prevail if only to prevent more subtle discrimination. He notes that the true believers at Ann Arbor will find a way to meet their diversity goals, but suggests that any plan should be constitutional.

The proposition that any plan should comply with the constitution is one with which I surely agree. Most schools attempt to take the unconstitutional road, however. An example in this regard is the University of California. After the Regents voted to prohibit race-based preferences, the University began running a series of complex studies to determine what precise weighting of socio-economic factors would give the University the level of racial diversity they desired. For those who have a second’s hesitation as to whether or not this sort of facially neutral criteria implemented with discriminatory intent meets the requirements of equal protection, simply reverse the favored and non-favored groups. Thus, do you really think that a court would permit a school that had discriminated against Black students in the past to institute a new admissions system which did not overtly take race into account, but was designed with the express purpose of reaching the same racial composition as the prior overtly race-based system?

Smallpox in Iraq?

Here is the ABC News report that the CIA is investigating an allegation whether a Russian scientist transferred a particularly lethal strain of smallpox to the government of Iraq in 1990. Short, worth a read.

Bush in Louisiana

Dubya made his last bid to whack the Demos yesterday by going to Louisiana to campaign for Terrell. Nothing in the press reports (here’s the AP and USA Today versions) indicate anything other than what I have been aserting: Things are tough for Landrieu. She is running scared and trying to attach herself to Bush as much as possible. This, of course, is ticking off a lot of Democrats who are claiming that she is not giving the liberals enough reasons to vote for her. But, of course, Landrieu knows better; her only chance at victory is to seem as moderate (read, Republican) as possible. This is not a sign of a great candidate, or of a party that proudly stands for something. The few nationally known Democrats who are helping her (Donna Brazile, for example) are kept hidden from the public eye. Except for Senator Breaux; if he weren’t helping her, she’s lose by another ten percent. Note this comment by Douglas Brinkley:

"If there’s such a thing as a Republican revolution now, the defeat of
Mary Landrieu would be a good sign of it,
it would be a real sign that everything is going wrong for the Democratic

Israel Interrogates U.S. Citizen with AQ Ties

Reuters reports that Israel has arrested and is interrogating Khaled Nazem Diab, a U.S. citizen who was allegedly in Israel for the purpose of distributing funds to terrorist organizations. In addition to AQ ties, he is known to have had dealings with the Taliban and Hamas.

The Ingenuity and Treachery of Youth

As someone who is about to begin adjunct teaching, it is important to keep in mind the ingenuity and treachery of youth. Case in point is this offering from Drudge, which explains how 26 students in Japan cheated on an exam by emailing each other with their internet ready phones.

Preferences Now! Preferences Forever!

The Washington Post offers an editorial today explaining why the Supreme Court should let the affirmative action policy in Michigan stand. The editorial has something to contribute when it is making an argument based on public policy, but the moment it crosses the divide into law, it is laughable. Take, for instance, the Post’s definition of the question before the court:

But the question for the court is not whether preference programs are a good idea or whether their social costs outweigh their benefits. It is whether they so violate the basic ground rules of American democracy that they should be removed from the policymaking table altogether.

I have to admit that I don’t know what they mean by "violate the basic ground rules of American democracy," but an easier way of saying this would have been: violates the Equal Protection Clause of the Constitution. But that is difficult for them to say, because the very words betray the legitimacy of treating people differently on account of race--even if this is done with the best of intentions.

But perhaps most telling is the last paragraph, which reads best if you compare it to the words of Orval Faubus or George Wallace:

In reality, diversity in higher education is so widely demanded that the political system will find ways of making it happen -- using whatever surrogates for race and ethnicity it can -- even if the legal system forbids the most obvious means of achieving it. When the courts blocked affirmative action in Texas, the Legislature responded by mandating that the university system admit any student who graduated in the top 10 percent of his or her high school class. This relatively crude instrument is nominally race-blind and well inoculated against legal challenge.

In other words, we should permit naked racial preferences, because otherwise states will devise more subtle and less effective racial preferences. This is precisely the theory that was used during desegregation to maintain segregation in the South, and the Supreme Court was nonetheless capable of striking down the more subtle forms of discrimination. Contrary to the Post’s assertion, Supreme Court precedent suggests that a facially neutral program such as the Texas plan passed with discriminatory intent (i.e., maintaining diversity) following a judicial finding of discrimination (i.e., the Hopwood decision) is on shaky legal ground indeed.

Iran’s Reformation?

Thomas Friedman of the New York Timesreflects on the meaning of what’s going on today in Iran today, "a drive for an Islamic reformation combined with a spontaneous student-led democracy movement." He focuses on the thought of Hashem Aghajari, the college professor condemned to death. Aghajari’s speech may be found on the MEMRI site here .

Continuing the Leftward Spiral

As a recent transplant from the Chicagoland area, I can say that Blagojevich entertaining a run for President is more evidence that the Democratic party is looking for a return to liberalism at the top of the ticket. Blagojevich ran a very populist campaign in Illinois, and I think it is fair to say that he would have been soundly defeated if not for the scandals that have plagued the Republican party there.

Very Funny

These are newspaper clippings, ads, odds and ends, that are entirely amusing. It will take a few extra seconds to load. Although all are worthy, I am especially fond of the one on the left, at the bottom of the page.

German Military Cutback

This is an interesting article from Aerospace Daily on how the Germans are thinking of cutting back on defense spending by nearly 6 billion dollars by 2006. Whatever happened to NATO, rapid deployment force, etc.? They hardly spend anything on defense as it is. Do they think this will help their sagging economy? The reds are no longer running part of the country, but the greens are now running all of it.

Another Democratic Contender?

Rod Blagojevich, the newly elected Democratic Governor of Illinois, is talking about running for president, if not in 2004, then in 2008. Is this another sign of the trouble that this party finds itself in? It seems to me the guy could have waited until a day or two after he takes office to talk about his ambitions.

Thome as Traitor

If Churchill can praise Rommel in the middle of the war, I can praise Jim Thome. A good man, if not a good citizen, with the greatest swing in baseball. I love to watch him play. I am sorry he has gone to the other side. Yet, you cannot help but notice that he wants to be with certain kind of players, players that are tough, players that are like him. What probably sealed the deal is that David Bell signed on. Thome said this about Bell: "He’s a tough player. He makes no excuses. The bottom line is those are the kind of guys you want to go to war with." War, he says, baseball is war. It is impossible not to love a guy like this, even if his allergies kick in occasionally.

Greatest Living American

This Washington Times new story is on the Esquire magazine survey that chose Reagan as the greatest living American (followed by Carter, Powell, "my dada," and Clinton). Clinton also headed the list of "the most loathesome living American." About 55% knew that Paul Wolfowitz is deputy secretary of Defense, yet 6% thought that he was the "starting left fielder for the Colorado Rockies."

Re: Bad Girls Want Good Contracts


Isn’t that one picket line you’d gladly cross?

Comment on Tucker

There is an irony to the thought, apparently alive in the Middle East according to the polls David is seeing, that our troops are in Saudi Arabia because of oil. If this is true, it is only true in the narrow sense that we are there to stabilize the international oil market at a higher price than the market would dictate in the absence of Middle East unrest.

OPEC is obsolete. I am dead certain that our troops and the uneasy status of the Middle East actually prop up oil prices as much as 30 to 50 percent. The prospect of Saudi Arabia shutting down or of other short-term disruptions is behind a large part of the reason for our Russian diplomacy these days, and probably among the reason the Saudis aren’t supportive of our Iraq policy. In the aftermath of a (successful) Iraq war, I predict world oil prices will gradually drift down to about $15 a barrel, from today’s roughly $30 price. The Saudis and other Arab oil states will not like this.

Tricky Bill

One hesitates to draw a comparison between Clinton and Nixon (Clinton as the Democrats’ "Tricky Dick" is just a bit too close to the bo. . . No, better not go to that metaphor either. . .) But what conservatives used to say about Nixon applies to Clinton’s DLC speech: He is better out of office than in office.

Bloom is off the Bloomberg

Bloomberg’s incredible property tax hike may be the spark that prompts a Proposition 13-style tax revolt in the Big Apple. The cigarette tax is not that big a deal (sorry, Peter) because it is essentially voluntary, and easily evaded through Indian reservations and internet sales. But the property tax hike is going to filter down through every sector of the economy. Watch for an eruption. We are going to be sorry that Bloomberg became a Republican; better if Mark Green had been in charge of this disaster.

Bring back Rudy in 2005?

Huge Tax Hike in N.Y.

Mayor Bloomberg signed into law a property tax increase of 18.5%, the largest increase ever. And there is more to come next year. I don’t claim to understanding these things, but is this the best way to deal with an economy that’s playing with recession? First the cigarette taxes, and now this. Not good.

Clinton Offers Advice

Bill Clinton spoke to the Democratic Leadership Council today. Although I haven’t yet seen the full speech, here is an AP report on it. Among other things, it is reported that he advises the Democratic Party to present a new unified message with national security and a revived economy as national priorities. Clinton said that it was the party’s lack of clarity on these issues that led to the November losses. He is reported to have said: "When people feel uncertain, they’d rather have somebody that’s strong and
wrong than somebody who’s weak and right." He also said this: "We don’t have to be more liberal, but we do have to be more relevant in a
positive way."

These may be serious comments, I’ll have to look at them in context.

Stephanopoulos & West Wing Sinking

Boy George still isn’t doing well in the ratings. In fact, he is third (behind CBS and NBC). And The West Wing isn’t doing much better, it is also sinking. It is possible that they are both declining for the same reason: Too earnest, too sober (how is Aaron Sorkin doing?), too preachy, too liberal? They are both entirely predictable, I only see bits of them now, by accident. These declining ratings are a good sign that our fellow citizens are able to make sound judgments.

Kerry’s Warmth Problem

John Kerry spoke in Cleveland today. I was busy and couldn’t hear the talk, but there are already reports on what he was going to say. And this from Howard Kurz talking about Kerry’s unimpressive performance with Tim Russert on Sunday. Kurtz says:
"To put it mildly, Kerry has a
warmth problem." Maybe this guy will be the perfect running mate for Al Gore, he may make Gore look exciting, or at least normal.

War on Terror, Turkey and Iraq

This speech given Monday by Deputy Secretary of Defense Paul Wolfowitz touches on many of the issues that have come up as we have blogged about the war on terrorism and the war on Iraq. It implicitly gives the administration’s answer to Steve’s question about when it will be time to go to use force with Iraq. The speech also addresses Turkey’s admission to the EU and the administration’s hopes for the development of a liberal democratic Iraq once Saddam is gone.

War on Terror, War on Iraq

I don’t have a good answer to Steve’s first question, so let me turn to the second one first. I think conducting both the war against terrorism and a war against Iraq effectively at the same time will be difficult and perhaps impossible because our resources are limited and it might make international cooperation more difficult while increasing support for al Qaeda. Polling in the Middle East shows that majorities outside Kuwait do not have a favorable opinion of the Gulf War. I think this is because we are still in Saudi Arabia and everyone thinks we did it for the oil. They will think the same if we go into Iraq and especially if we stay there. Important military capabilities are in limited supply but more importantly so is attention in the Pentagon. The Pentagon prefers conventional wars. When one starts in Iraq, chances are it will get all the attention.

When should we go to war with Iraq? When we have no other choice. That is simple but not very helpful. We will need a reason and we will have to make a case. The administration through the UN has laid out a clear set of requirements. When they are not met, we will have the reason. The important thing of course is the political effort to make sure that we and others act on that reason. In his recent speech, President Bush began the political work necessary to induce action. High ranking people in the administration are apparently going to various capitals to continue and deepen this work.

It might help if the administration highlighted the critical importance of countering the proliferation of weapons of mass destruction. New reports have just been published that a Russian scientist may have given the Iraqis a virulent strain of small pox. The problem is not just Iraq obviously. My impression is that the administration and conservatives in general have not paid sufficient attention to counterproliferation (CP). Conservatives in Congress, for example, have resisted efforts to give money to the Russians to help them get rid of their weapons of mass destruction. They argue, among other things, that money should not come out of the defense budget and the Russians can’t be trusted. There is probably also some suspicion of CP because it was such a high priority in the Clinton administration. It deserves more emphasis, however. Iraq is a small part of a much bigger problem.

Bad Girls Want Good Contracts

This is out of San Francisco, surprise. Workers at the nation’s only unionized peep show are not satisfied with the management’s contract offer. They chanted, "Two, four six, eight, pay me more to gyrate." Sorry, I couldn’t resist.

Buckley on Gore’s Whine

Bill Buckley divulges how the whole GOP conspiracy operates, how the zeitgeist really works. Pretty good.

West on Jaffa & Mansfield

This is a long article by Thomas G. West, originally published in Perspectives in Political Science, that considers the question: "Does America Have a Constitutional or a Declaration of Independence Soul?" A dozen coffee or three Knob Creek whisky article; but worth it.

From Turkey to Tucker

Moving on from turducken to Tucker: David makes a compelling argument against war on Iraq at this time. I am part way to being persuaded. Two interrogatories: At what point or under what conditions would David say that war on Iraq should be conducted? (Liberal smush-heads also say they are against war on Iraq at this time, but for them it is clearly a dodge, which I know would not be the case with David.)

Second: why is it not possible to carry on a war against Iraq and the war on terrorism at the same time? Is it because our capabilities are limited, or that it will make it difficult to work with other countries in the region, or because it will scatter AQ and other terrorists, or some combination of all these factors?

Last Word on Turkey

The bird, not the country.

I cannot let Alt’s last blog boasting of the superiority of the ridiculous turducken go unrebutted. He boasts that the fatty dark meat of the duck made the turkey more tender. Try my method, which is to barbeque a turkey on a Weber kettle BBQ (aside: the inventor of the Weber kettle deserves the Nobel Prize in physics). The trick is to cook the turkey upsidedown, which makes the breast meat very tender and quite juicy. No need for exotic birds like ducks to midwive a happy outcome to the otherwise dry turkey.

I don’t normally boast of my grilling (though I am called "The Cool Duke of the Coals" around certain coastal sections of California), but the unanimous verdict from the T-day dinner I catered was that it was the best turkey they had ever had.

Defending Human Rights

The London Evening Standard reports that Amnesty International criticized the UK dossier on Iraqi human rights abuses (which Schramm references just below this entry) by saying:

The human rights situation in Iraq is being invoked with unusual frequency by some western political leaders to justify military action. This selective attention to human rights is nothing but a cold and calculated manipulation of the work of human rights activists.

This quotation is from a statement by Irene Khan, Amnesty’s Secretary General, which you can view in whole here. Elsewhere on Amnesty’s page, the organization claims that the statement was actually made in September in response to other U.S. and UK documents which cited to Amnesty reports, and by implication was not meant to address the current dossier. Even so, the group did not appear to have stepped back from its previously stated position.

I heard it said following the fall of the Taliban regime in Afghanistan that the U.S. military had done more for women’s rights in a few weeks than the National Organization for Women had in its entire existence. Of course, we can already say that the U.S. military has done more for human rights than Amnesty International based on WWII--but we may soon be able to add achievements in Iraq to that auspicious list.

Britain Releases Dossier on Iraq

Britain just relased a dossier on human rights abuses in Iraq, according to The London Times. The full dossier can be found here (PDF file).

Iraq and the War on Terrorism

I would like to restate the argument and then comment on some related points raised by Steve.

The argument rests on the proposition that the terrorists pose a more immediate threat to us than does Saddam. Neither Peter nor Steve has disputed this, as far as I can tell. Assuming that the terrorists are the more immediate problem, it seems to me that we ought to deal with them first and do nothing that will make it harder for us to deal with them. If invading Iraq makes it harder for us to deal with the terrorists, then we should not invade Iraq. On balance, I believe that invading Iraq will make it harder for us to deal with the terrorists, for the reasons I have given, so I would not now propose an invasion.

Steve objects that Iraq may have supported or even directed al Qaeda’s (AQ) attacks on the United States. He thereby implies that going after Iraq is a way of going after AQ. In my view, at most the available evidence shows that Iraq may have provided some support to AQ. I think that removing that support will not hurt AQ much but does risk making AQ’s job much easier. Weighing the pros and cons in this way leads me to think that going after Iraq now is not the right thing to do.

Both Peter and Steve suggest that attacking Iraq may have salutary consequences beyond removing some (possible) support for the terrorists. Both suggest (Peter citing Max Boot) that using force against Iraq will discourage Islamists and others from attacking us. Boot says “Islamists are emboldened by U.S. weakness (e.g., the pullout from Beirut in 1984 and from Somalia in 1993), not by U.S. strength.” This argument conveniently forgets that it was one of the most effective uses of U.S. strength (the Gulf War) that inspired bin Ladin to attack us.

To return to the issue that began this exchange, on balance, I still think that the Bush administration is pursuing the right policy. It should go without saying that any number of events or new evidence could change this picture. Also, at some point, we will have made sufficient progress against the terrorists that we can turn, for example, to the longer term problem of countering the proliferation of weapons of mass destruction.

Some related points: Steve believes that the U.S. is too fettered in its use of force. He cites Vietnam to support this claim, saying that we used half measures there. This is not true. Those conducting the ground war got everything they asked for, and used it all. The Air Force was restricted with regard to the timing of its bombing but did eventually get to bomb just about everything it wanted to bomb. The problem in Vietnam was not a lack of force but a bad strategy. Vigorously pursuing a bad strategy does not lead to victory. It leads more quickly to defeat. This is the danger we face in the war on terrorism.

It is also important to point out that it was military leaders who thought up and pursued the bad strategy. Others in the Army—Chief of Staff Harold Johnson and Creighton Abrams, who eventually replaced Westmoreland—thought Westmoreland’s strategy was bad. It is not the case that civilians have fettered the military.

Steve also raises the issue of overt or latent support for the US in the Middle East, suggesting that if it is there, military action will encourage it. It may well be the case that lots of Iraqis would like us to get rid of Saddam. This does not mean that Iraqis will like having us in Baghdad five years later nor does it mean that liberal democracy will bloom in the desert. More generally, polling that has been done shows mixed sentiments toward the US. Iranians like our technology and movies and television, for example, but not our freedom and democracy or the American people. We should not believe that military action on our part will lead to greater support.

Electioneering Communications

First, let me say how great it is to have a campaign law expert like Allison on the blog. Contrary to the reports of the DNC suggesting that they were going to send 10,000 campaign lawyers to oversee elections, there really aren’t that many lawyers who specialize in this area. I certainly agree with Allison that the exception the FEC carved out for non-profit issue advocacy groups is way too narrow (although this is largely the fault of the statute rather than the Commission). Indeed, when I last read the proposed regulations, they only excepted 501(c)(3) non-profits, and not 501(c)(4) groups (which are non-profits allowed to do limited lobbying). The 501(c)(4) groups tend to be major issue advocacy arms, yet the Wellstone Amendment to McCain-Feingold expressly includes such groups under the 60-day limit on advertisements prior to a federal campaign. This provision must be struck down, unless the Court is willing to overturn the MCFL decision. I would say that even Souter has to see that, but I have no desire to tempt the fates.

No kissy-kissy at Boalt

The LA Times reported 11/28 that the dean of Boalt Hall (the law school at Berkeley for those readers from other planets) has resigned after a sexual harassment charge was filed against him.

According to the article, Dean John Dwyer was accused of a single encounter with a female student two years ago. States the article "there is no allegation that any form of sexual intercourse occurred." The woman was never a student of his. She managed to file her complaint Oct 11 of this year.

I for one, do not believe that this is the entire story. Why the two-year wait? Why file a harassment complaint over s single encounter, rather than deal with it in some less-apocalyptic manner. I’ve known of cases where faculty cliques atempt to depose other faculty by dredging up students to file unwarranted complaints. Is this one of those? For the Dean’s part, why resign if this is all there is? Has he declined to fight because of other potential problems? I’d really like to know whether he is a cad or a victim. Any ideas?

UPDATE: I found an article from today’s SF Chronicle, in which the attorney for the student tells what she asserts happened. Not exactly in the spirit of a confidential inquiry -- and you wouldn’t want you kids reading this, either. Here’s the link: ARTICLE

Hawaii Right to Life

First, welcome back, Mr. Alt.

Second, the injunction in Hawaii Right to Life seems to be confusing people. As I understand it, the court held that the group qualified as a not-for-profit ideological corporation, which the court concluded was constitutionally protected from any political speech restrictions under the precedent MCFL v. FEC. I would provide a link, but I can’t find the case online.

That would include bans on corporate express advocacy communications (at issue in MCFL) and the "electioneering" ban in the new BCRA. The court decined to rule more broadly that the electioneering restrictions were illegit.

This is a wonderful decision on its own merits, since the FEC’s regulatory definition of such exempt non-profits -- ostensibly adopting the MCFL standard -- was WAY too narrow. Of course, to the extent this is a harbinger of things to come, that’s nice too.

In general it is my observation that the free speech side does well in campaign finance cases so long as Souter isn’t writing the opinion. George W., call your father.

Supreme Court to Hear Sodomy Case

The Supreme Court agreed today to hear a case challenging a Texas statute which prohibits same-sex sodomy. The tea leaves suggest that the law is likely to be struck down. The Supreme Court upheld a Georgia anti-sodomy statute in 1986 in the case of Bowers v. Hardwick, but that statute was not limited to same-sex sodomy. Because the challenged statute is limited to same-sex acts, the case therefore has a stronger equal protection component than the previous challenge. Then there is the 1996 decision in Romer v. Evans, in which the Supreme Court struck down a Colorado state initiative which restricted the ability of municipalities to enact laws granting gays favored status in antidiscrimination laws. While the case is not necessarily a precedent--it specifically did not cite to the Bowers case, and the current case does not involve equal access to the political process as the Romer case ostensibly did--many view it more in positivist tones as a statement of the sense of the voting majority court, rather than as a limited judgment of law. The final consideration which suggests that the law is in peril of being struck down is the simple fact that the Court agreed to take the case. The Supreme Court has a very limited case load of around 80 cases per year. If a majority of the Court still agreed that such a law was constitutional, they would have been unlikely to have granted review.

Supreme Court to Hear U of Michigan Affirmative Action Cases

The Supreme Court agreed to hear two cases today challenging the affirmative action policies at the University of Michigan Law School and Undergrad. The Court’s decision to hear the undergrad case is a bit unusual, because the court of appeals had not yet heard the case. In addition to general concerns about judicial economy, the Court likely opted to take the undergrad case because of concerns about procedural irregularities which have plagued the cases, including allegations that the Chief judge manipulated the process to assemble a panel (ultimately en banc) more favorable to the affirmative action policy. This intervention theme is further supported by the fact that the Supreme Court was asked (but refused) to intervene in a death penalty case last year where execution was postponed by a reporedly "informal" vote of only those judges who favored the stay. The Supreme Court was therefore aware of multiple procedural irregularities which have arisen in the circuit recently.

What to Think of the Inspections . . .

I know better than to enter the fray with Hayward and Tucker on foreign policy, so I will simply add the observation a friend made over the weekend: The selection of a Swedish bureaucrat to lead the inspection team is an odd choice. Hans Blix is about as likely to find weapons of mass destruction as the Swedish Chef is to finally find the chicken he has been searching for low these many years.

Blame it on the Raines

Newsweeks has a nice piece suggesting that the liberal activist bent taken by NY Times Executive Editor Howell Raines is having repercussions even within the Times. Staffers went on background to complain about the paper taking a decidedly political edge and making controversies where none really existed, as demonstrated by the Times article concerning CBS’s coverage of the Masters. In perhaps the most telling quote, one staffer suggested "[t]he Masters coverage is so overheated . . . that executive editor Howell Raines is ’in danger of losing the building.’" Here’s to Raines losing the building, so that at least some of the news would actually be fit to print.

Stability and Instability in the Middle-East

This lengthy piece by Max Boot from The Weekly Standard fits right into our conversations regarding the question of de-stabilizing the area. In part the article is a response to the letter that Bishop Wilton D. Gregory sent to President Bush on September 13. I hasten to add, just to tick Tucker off, that I am in agreement with it. I think it’s persuasive.

Hanson on the Duke of Wellington

Victor Davis Hanson reviews two books about the Duke of Wellington in the current issue of The New Criterion. A good read that in itself yet made better because Hanson connects Wellington and his purposes to the contemporary world.

Portable Missiles and Airliners

David Tucker has a clear piece on what the press is missing about the possibility of an airliner being brought down by a portable missile, the kind used in the failed attempt in Kenya. The first thing to note is that this isn’t new; an airliner was shot down (in Africa) in the 1970’s using such a weapon. He also says this, and explains:
"Considering why more portable missile attacks have not
occurred helps us understand how terrorists think about
their business and provides some perspective on the
recent attack. It reminds us that what terrorists attack is
not decided just by our vulnerabilities. It is decided also
by the cost to the terrorists of exploiting those

The Loophole of Free Speech

WaPo editorializes today about the loophole in reform law created by, well by the Constitution. You think I’m kidding, but no. They actually say it: "Since this exception is rooted in the Constitution, Congress can do little about it."

Aside from taking their usual swipes at the FEC, the op-ed focuses on a decision by a judge in Hawaii saying that the campaign reform law did not apply to non-profits seeking to run ads in a special election, and suggests that this is not a ruling against McCain-Feingold. While I have not seen the opinion, it appears that both the judge and the Post get this one wrong. According to the Post, the judge ruled that the new law doesn’t apply to runoffs, and therefore the court didn’t need to reach the question of the constitutionality of provisions in McCain-Feingold which would otherwise apply. It is true that the law doesn’t apply to runoffs, but the race to fill Patsy Mink’s seat isn’t a runoff, but rather is a special election. Special elections are covered by the act if they occur after November 5 (and the FEC has suggested specifically that this race is covered). Second, the Post fails to recognize that McCain-Feingold doesn’t permit what even the Post recognizes as a constitutionally required exception. Therefore, the ruling about the constitutional need to permit these kind of ads is very relevant to the constitutionality of McCain-Feingold. At any rate, the Hawaii case was just a prelude to the larger constitutional challenge to the bill, which has formal proceedings beginning in D.C. Federal District Court later this week.

Don’t Light ’Em If You’ve Got ’Em

In a story that may provoke me to join Schramm in the smoking section, Norway has proposed a total ban on smoking inside all public places. Now don’t get me wrong--I have relatives with lung problems (not caused by smoking) and I understand the need for non-smoking sections. But the idea that an individual cannot light up in a bar--or for that matter run an establishment that caters to cigar smokers, strikes me as taking things too far. This brings to mind Peggy Noonan’s article about smoking and the lack of civility among those who seek to curb it.

Rothenberg on Louisiana Senate Race

This is a perfectly clear summary on what’s going on in the Landrieu-Terrell campaign by Stuart Rothenberg. The first line of the article reflects the whole: "Louisiana Senator Mary Landrieu (D) has a problem." What that means for Rothenberg is that she must run the exact opposite of the campaign she ran in November; she must now get the Demo base to come out and vote for her, whereas in November she had to appeal to the swing voters. She failed to do that in November (only getting 46%) and I believe she will fail to get her base out on Saturday. And Dubyia is coming to town tomorrow.

Now Open For Comments

While the rest of us were lollygagging around indulging in turkey and turducken, the technical wizard behind NLT added the comments section to the blog. Now every entry has a link for reader comments, where you can post what you think about the topic. Give it a try.

Returned From Thanksgiving

I have returned home from Jackson, and am happy to report that the turducken lived up to the hype. The duck made the three-in-one bird very tender, and the cajun spices added just the right kick. Now we can return to the ordinary law and politics blogging.

Demo Party in Trouble

There are two interesting articles in yesterday’s and today’s The Los Angeles Times (registration required) reflecting on the state of the Democratic Party. The one by Kevin Phillips is--characteristically--odd, yet worth reading. He thinks it a very bad sign that blacks, Latinos, and poorer whites did not vote in the numbers the Demos have come to rely on. The other is by Jack Pitney at Claremont and his point is even simpler: The Democrats can only win the White House with a candidate from the South, i.e., Gore or Edwards; the last non-Southern Demo to become president was JFK. And, it should be noted that John Kerry of Massachusetts has taken the first steps toward announcing his candidacy.

Hayward v. Tucker, Part II

David’s rejoinder might be summarized as a counsel of caution, along with a meditation on what course prudence demands.

I seldom worry that American government is being incautious anymore (except when it comes to domestic social policy, where there is seldom any caution. . .) To the contrary, I worry about an excess of caution, of the kind that leads to the kind of half-measures we saw in Vietnam. This is especially the case, I think, in our national security structure. As Churchill once remarked of such a process, "Everyone claims his margin at every stage, and the sum of the margins is usually ’no.’" In the current context, I am guessing the role of caution is being very well represented by Colin Powell (whom I suspect is not as bad as many conservatives think).

A more interesting problem is the question that both David and I have raised: If we smash up Iraq, then what? Are we prepared to run the place as we did Japan after 1945? And on what basis do we expect to succeed? We have, I think, debated and thought through the idea of pre-emptive war, but we have not had a serious debate about the prospect of American empire which this entails, an empire, however temporary, that derives from America’s principles as well as its interests, as Peter suggests. I think we need to have this discussion soon. (It might, by the way, have salutary benefits on the calculations of the Iraqi military and other leaders to hear talk of the U.S. deciding that it IS willing to run the place for the next five years. They might decide to start reforming the country on its own.)

I am in heated agreement with David that an American occupation of Iraq may be a very bad idea, though I am less persuaded that there is mass anti-American sentiment in Iraq and other Middle East nations. I think there is a chance that there may be a large number of Iraqis who would welcome liberation by Americans from Saddam’s tyranny, just as there were in Afghanistan, and from such people ther core of a decent polity might be forged. I have had one conversation with a member of the exiled opposition Iraqi National Congress who argues this case, though obviously he has an ax to grind. (We might we be able to win the trust of the Kurds, if we can persuade them that they won’t be abandoned again.) It is hard to tell from here. (Michael Ledeen argues forcefully that ordinary Iranians have become very pro-American and would welcome our help in ousting the mullahs.) Ultimately Bush’s decision will likely be guided by another Churchill maxim: "Assume that the favorable and adverse chances equate, and then eliminate them from the calculation."

Finally, I am not sure I agree with David that the war on AQ and the war against Iraq are separate enterprises. To do so means rejecting the case made by Laurie Mylroie, former CIA chief James Woolsey, and others that Iraq is deeply involved with AQ, had a role in the 1993 WTC bombing, etc. Perhaps Mylroie and Woolsey are wrong (the supposed meeting in Prague between Atta and an Iraqi intelligence operative is in hot dispute, as is the claim that Iraq has a Boeing airplane for terrorists to train in--I think that if such a plane exists, it would be kept in a hangar away from snooping US satellites and not out in plain sight where it can be shown on Fox News. . .). To repeat what I said before, it is strange to me that the U.S. wouldn’t cite such evidence if they have it, unless it is too circumstantial.

It may be a more prudent course to go about patiently rolling up terrorists bit by bit. I have my doubts. It seemed to me that one of the virtues of the hellfile missile attack on the car in Yemen was that it sent the signal that the U.S. was able and willing to kill terrorists in other nations besides Afghanistan.

Middle East Policy and Terrorism

Peter’s blog raises a number of issues. I will comment on only two at this point.

First, when we talk about rearranging or fixing the Middle East, we should remember that someone tried this before. The Middle East looks and acts as it does today in large part because of rearranging that Europeans performed after WWI. Why do we think we will do any better?

Two, contrary to Peter’s suggestion, I do not think it will do us much good to have troops and ships permanently stationed in the Middle East. In fact, I think it will probably make things worse.

Middle East Policy and Terrorism

The conversation that has started (Pestritto, Tucker, Hayward) as a consideration of the Iraq inspection issue is slowly turning into a larger and broader conversation, as it should, on what American policy should be with regard to the Mid-East. To say this is complicated is an understatement. It is primarily a matter of deliberation because of our war on terrorists. It’s not that we didn’t know before 9/11 that Saddam was a bad guy, or that the Saudis are not to be trusted (just because we have had relatively good relations with them over the years based on common interests doesn’t mean we have reason to trust them beyond those interests). But now we have arrived at a point where those more abstract considerations have become more practical, yet our public statements on the issue continue to be full of diplomatic niceties. I don’t really have a problem with this apparent disjunction between what we say and what we do, as long as we do the right things. Besides, when you are a hyper-power you don’t have to be beat your chest every time you want to make a point; and, you have the luxury that your enemies (and soft allies, or the UN) will pay attention even if you whisper. (See this thoughtful piece by Mark Steyn--even though he objects to the charade--where he compares Bush and Bandar with James Bond and the supervillain meeting face to face and are most polite, yet each knows who the other is, and what he is about to do.)

In short, what I am trying to say is that it is one thing to say that these guys are SOB’s, and another to say whether or not it is in our interest to do something (e.g., take Iraq, overthrow the Saudis, encourage a revolution in Iran). It sems to me plausible that our whole campaign against Iraq is a feint, it is a sideshow. We have essentially gotten the UN to do our work for us, and it is only a matter of time before the chips fall our way (by peace or war). We are not in a hurry. Furthermore, this feint allows us to do certain things in the region that otherwise we couldn’t have done; including a huge buildup in the region (which, it goes almost without saying will be useful for other purposes, not just going into Iraq) and allowing the Israeli’s to do some necessary housecleaning. Think Trojan Horse here; or, war by proxy. In the meantime, our military and diplomatic investment in the region makes perfectly clear to the various tyrannies there that we are serious and that we will stay, if it proves to be in our interest. And that interest has primarily to do with our war on terrorists. Our policy therefore does instill fear in these regimes (remember our success in Afghanistan as well); they know we will act if we think it is in our interest. So help us clean out the terrorists. It looks like most of them--to one extent or another--are helping. We will continue to have to make those judgments along the way, and each will be a tough call.

Yet, it is a matter of no small consequence that in this process of pursuing our interests in the region, we are finding that the whole region is quite unstable and that some of that instability is--at least indirectly--caused by our actions. Then the next question will have to be whether or not we want to maintain stability in the region or attempt to seriously reorganize it. I am open to the possibility that we can help establish more moderate regimes in the area (even though I admit that they are not likely to become liberal democracies) if those moderate regimes pursue policies more in line with our interests. But these possibilities will have to be taken on one at a time.

Looking Like America

Alex Kuczynski’s marriage was announced today in the pages of the Sunday New York Times. I have provided portions of it before. Who says that Times writers aren’t representative of Americans as a whole?

Alexandra Louise Kuczynski and Charles Porter Stevenson Jr. were married in New York yesterday. David N. Dinkins, the former mayor, officiated at the couple’s apartment.

The bride, 34, who is known professionally as Alex Kuczynski, is a reporter for The New York Times. She graduated from Barnard College.

Her father, Pedro-Pablo Kuczynski of Miami and Lima, Peru, was until July the finance minister of Peru. He is now the president of the Latin American Enterprise Fund, a private investment concern in Miami. . . .

Ms. Kuczynski’s stepfather, Thomas L. Hughes, is emeritus president of the Carnegie Endowment for International Peace. . . .

The bridegroom, 55, is a private investor. He is a trustee of Bard College and of the John Simon Guggenheim Memorial Foundation, . . . His previous marriages ended in divorce.

You can read the entire announcement at, whic is a subscription service, so I haven’t included the link.

Louisiana Senate Race Reflects Demos Problems

In reading both these articles, from a conservative and a liberal (Stephen Hayes and Eleanor Clift) you cannot help but think that whatever happens on December 7th, it is very clear that Landrieu is hurting. She is desparate and on the defense. (And she will lose.) Also note the great disadvantage she is running with: No Democratic national "leader" can come to her aid for if he should, it would be to her disadvantage; she would likely lose votes. Isn’t it extraordinary that no Al Gore or any other Democrat interested in running for president can go down there and campaign on her behalf? How long can the Democratic Party place their former presidents (and former presidential candidates) on the shelf for fear that they will actually hurt Demos in an election? This happened to Carter, Mondale, Dukakis, et al. It is arguably the case that it hasn’t happened to Clinton, yet, even Clinton is not as useful as folks thought he would be, say, a year ago. And we already have confirmed cases of Gore going into Maryland and campaigning for Kennedy-Townsend and then watching her drop by a couple of points the next day. Jesse Jackson goes down and endorses Ladrieu, and she virtually disowns the endorsement (despite her problem with black support). These are signs of a deep seated problem within that party. I don’t think there is enough attention being paid to the fact that the Democratic Party as a national entity is on the verge of collapse, or, if you like, has been falling apart for three decades. Only things outside of itself has saved it from such a collapse (Carter comes in as an outsider and is succesful in part because of watergate, Clinton as a new Demo reacting almost solely to GOP initiatives and policies, etc.); and the glue that holds it together is reflected in the over-emphasis on getting the so-called base to come out. It is based on group interest and fear; it is in an utterly reactive mode. Not only does it stand for nothing, it has no authoritative leaders to carry that non-message. It looks bleak. You can’t create a political party by attacking a radio talk-show host.