Strengthening Constitutional Self-Government

No Left Turns

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?