Strengthening Constitutional Self-Government

No Left Turns

Harvard Insanity

I have shied away from this story for days well, because, believe it or not gentle reader, I thought it too obscene. But I now bring it to your attention because it has taken on Aristophonic dimensions. You will find "gendered violence", "phallocentricity," "artistic expression" and "feminist perspectives" galore. It is both amusing and too pathetic not to be read.

Iraq Soldiers Preparing to Surrender

This note by Gertz and Scarborough claims that the morale of Iraq soldiers couldn’t be worse and that many are preparing to surrender.

Khalid Shaikh Mohammed Arrested

Mohammed, the suspected mastermind behind the 9/11 attacks, was arrested in Rawalpindi, Pakistan, it is being reported. The FBI has refused to confirm the arrest, or that it was involved.

The Farce of Courting U.N. Votes

Charles Krauthammer shows the absurdity of the U.S. wooing votes from Cameroon, Guinea, and Angola (never mind France) for a crucial Security Council vote; and this shows the absurdity of the U.N. itself. He has a few modest proposals. And then Victor Davis Hanson writes about the present farce by asking if it is the 1930’s all over again. Both are great reads.

Churchill and the Sudan

James W. Muller held forth yesterday on Winston Churchill’s The River War: An Historical Account of the Reconquest of the Soudan (2 vols) that will be re-published in the only definitive edition this fall, edited by Muller. It was a very engaging conversation with the Ashbrook Scholars, and not irrelevant to today’s affairs. It’s about an hour and a half.

No Cloture Vote Yet

I just spoke with someone in Majority Leader Frist’s office. He confirmed that Fox News was incorrect when it asserted that Frist had scheduled a cloture vote.

As Good As Reversed

Behavioral science has told us for years that animals including humans can be trained to alter improper behavior through negative reinforcement. In the world of judging, the strongest negative stimulus (outside of impeachment) is reversal by a higher court, particularly when that court is the United States Supreme Court. Yet in their never-ending quest to prove Pavlov and Skinner wrong, the Ninth Circuit persists in rendering decisions that are the stuff of constitutional punchlines.

Keeping to this fine tradition, the Ninth Circuit today decided not to review en banc its prior panel opinion striking down the Pledge of Allegiance based upon the contention that the phrase "under God" violates the Establishment Clause. The order also amended the prior decision to clarify that the decision only applies to public schools, and not in general. Wheww, I’m glad they made that clear!

I’d offer my thoughts, but it is easier and better simply to quote from Judge O’Scannlain’s dissent from the denial of en banc review:

We should have reheard Newdow I en benc, not because it was controversial, but because it was wrong, very wrong--wrong because reciting the Pledge of Allegiance is simply not "a religious act" as the two-judge majority asserts, wrong as a matter of Supreme Court precedent properly understood, wrong because it set up a direct conflict with the law of another circuit, and wrong as a matter of common sense.(1) . . . Reciting the Pledge of Allegiance cannot possibly be an "establishment of religion" under any reasonable interpretation of the Constitution.

Footnote (1): . . . My disagreement with the panel majority has nothing to do with bending to the will of an outraged populace, and everything to do with the fact that Judge Goodwin and Judge Reinhardt misinterpret the Constitution and 40 years of Supreme Court precedent. That most people understand this makes the decision no less wrong. It does not take an Article III judge to recognize that the voluntary recitation of the Pledge of Allegiance in public school does not violate the First Amendment.

You can read O’Scannlain’s complete dissent here. Three cup (sipped slowly) read.    

The Gauntlet Is Thrown Down

There have been a lot of rumors and innuendo regarding the status of the Estrada confirmation this morning. Fox News reported this morning that Maj. Leader Frist had scheduled a cloture vote for Tuesday, and that the Justice Department had released internal memos written by Estrada. Howard Bashman reported here that a well-placed source had told him that there was no scheduled cloture vote. Bashman’s source appears to have been correct, because the story on Fox no longer includes the reference to the precise timing of any cloture vote, but suggests that a cloture vote may occur next week.

There appears to be reason to question the alleged release of documents as well. White House Counsel Alberto Gonzales sent a letter to Senators First, Daschle, Hatch, and Leahy, in which he recommended that those Senators with questions about Mr. Estrada’s performance in previous government positions should contact his previous supervisors, who he listed by name. In sharp contrast to releasing the documents, Justice Gonzales suggested:

In our judgment, these [former supervisors/employers] could provide their views on Mr. Estrada’s background and suitability to be a Circuit Judge by March 4 without sacrificing the integrity of the decisionmaking processes of the Judiciary, United States Attorney’s office, and Solicitor General’s office. And their views could assist Senators who seek more information about Mr. Estrada.

This move would not have been necessary if the documents were released, so it appears that the Justice Department has rightly kept to its policy of not releasing these documents.

The letter also called the Democratic Senator’s bluff, restating that Estrada is available for personal meetings, and that he will answer questions submitted "forthrightly, appropriately, and in a manner consistent with the traditional practice and obligations of judicial nominees, as he has before." Justice Gonzales suggested that the questions should be forwarded by the end of today, and that Estrada would attempt to answer any questions in writing by Tuesday.

A brief word about internal DOJ memos--the idea that these documents would reveal the prejudices of the writer are pretty farcical. Lawyers who should know better like Eddie Lazarus have suggested that the documents might be revealing--a statement which shows more about his political proclivities and his disregard for nondisclosure standards (wait--we already knew that from his tell-all book "Closed Chambers) than his insight. But anyone who has worked with such documents knows that these sorts of memos generally contain about as much overt opinion as a laundry list. Rather, they give a bland statement of the law on a question. Even when advocating a position, the memos generally do so in classically sterile, legal fashion.

The Democratic Senators want information--they’ve got it. If the Senators still demand the memos rather when they have the option of receiving confirmation of the appropriateness of the analsyis from Clinton Justice Department officials, then the quest for information will be revealed once and for all for what it is: an excuse for obstruction.

How Many Cups Will Schramm Give This?

Reuters reports that Playboy is searching for talent in order to solute the ladies who put the frappe in frapuccino--yes, the Women of Starbucks. Suddenly, "worth two cups" takes on a whole new meaning.  

There you go again. . .

I interrupt my hiatus from blogging (just another few days more on my annual Earth Day report, and then as Arnold says, "I’ll be back. . .") to note this outrage from today’s E.J. Dionne column on "patriotic liberalism" in the Washington Post. Never mind Dionne’s attempt to rescue this oxymoron. Try out this sentence for size:

Jimmy Carter’s campaign for human rights created the ideological underpinning of Ronald Reagan’s successful Cold War policies."

Cheer up. We can expect that about 10 years from now, liberals will start, grudgingly at first, to say that President Bush’s war policy since 9/11 was a success--helped all along, of course, by the liberals’ loyal opposition.

Gods and Generals

Mac Owens’ long piece on the movie is but a reason to re-consider how the Civil War is portrayed in the American imagination, movies, and scholarship. This is a comprehensive and thoughtful treatise, and it not only reads well, but is true. Sit back with the best coffee your money can buy, and contemplate the fate of the most interesting nation in history, think of the statesmanship involved in all, let the valor and grit of it seep into your heart, and be grateful that you are an American.   

The Arc of Moderate Islam

This article by Tom Rose of ’The Jerusalem Post’ details the emergence of a moderate Islam in opposition to the militant Islam which continues to dominate the Middle East.

The difference between moderate and militant Islam is simple. Militant Islam hates and wants to destroy America, Israel and all Jews. Moderate Islam wants to reach out to the West and learn to live with America and Israel.

In this article, Rose details the willingness of the moderate Islamic states of Kazakhstan, Kyrsystan, Tajikstan, Azerbaijan, Turkey, and Afghanistan (now a moderate Islamic state)to work with the West. President Bush’s Grand Strategy is to remake the middle east in the image of these moderate Islamic states.

A Letter from Saddam

I thought I’d share the following, which is making the rounds of the internet:

"I’ve divided Europe, I’ve put NATO into disarray, I’ve got American and British forces on my doorstep wasting billions of dollars to do nothing. The stock market has fallen to its lowest in ages; the American economy is faltering, and the UK is not doing too well either. I’ve got the leading artists and intellectuals in Europe to march and sign petitions, helping me to perpetuate the tyrannical oppression of my people. I’ve got lovely people from all over coming to Baghdad to act as human shields against military attack, so I don’t need to waste Iraqi lives doing it. And best of all, I’ve got both Osama Bin Laden calling for suicide attacks against my enemies, and Harold Pinter writing verses against my enemies. Oppressors could never have had it so good."

A Real Former Senator Versus a Make Believe President

For those of you who missed it, Drudge has a great story about competing ads on the Iraq war--one by NBC’s "West Wing" star Martin Sheen, and the other by former Senator and NBC "Law and Order" star Fred Thompson. (Movie buffs will recall that Thompson played supporting actor roles in films including "In the Line of Fire" and "The Hunt for Red October."

In Sheen’s ad, he reportedly implores: "Don’t invade Iraq. Inspections work; war won’t." Senator Thompson, by comparison, offers these sober words: "Thank goodness we have a President with the courage to protect our country. . . . What should we do with the inevitable prospect of nuclear weapons in the hands of a murderous and aggressive enemy? Can we afford to appease Saddam?"

Kudos to Senator Thompson for offering a counterpoint to the Hollywood din.

So. Korea’s New President

The Washington Post has a lengthy story on the new leader of South Korea, Roh Moo Hyun (Monday’s edition). The standard story, but here is an interesting paragraph:
"While awaiting the results of an ill-fated parliamentary campaign in 2000, Roh said, he picked up a book that included Abraham Lincoln’s second inaugural speech, and recalls being thunderstruck at Lincoln’s call for reconciliation ’with malice toward none, charity for all.’

Roh compared the moment of ’thrilling inspiration’ to Mohandas Gandhi being thrown out of a segregated railcar or Paul’s conversion on the road to Damascus. ’I began to see the world in a different way,’ he says in a glossy 49-page account, quickly published by the Korea Information Service after the election, labeled ’Roh Moo Hyun’s encounter with Abraham Lincoln.’"

Mexico, Pakistan are Likely to Support U.S.

If read carefully, this newstory makes clear that both Mexico and Pakistan will vote with us. It goes almost without saying that the Chinese will not veto. The French are getting desperate.

No Russian Veto of UN Resolution

In case any of you think the Russians would veto the next Security Council resolution, this newstory will put your mind at rest.

. . . Make That Three Judicial Nominees Clear Committee

The AP reports that Jay Bybee, nominee to the Ninth Circuit Court of Appeals, was voted favorably out of the Judiciary Committee by a tally of 12-6. This despite Democratic attempts to thwart the vote by exiting the room at various points throughout the proceeding to deny a quorum. Senators Hatch and Kennedy, who are known as the odd couple of the Senate given their off-camera comraderie, were anything but chummy today. Here is a sample of their exchange as conveyed in the AP story:

Sen. Hatch: We’re not going to have filibusters in committee. . . .

Sen. Kennedy: You may bully some but you’re not going to bully me. . . .

Sen. Hatch: You’re not going to bully me either. . . .

Given this highbrow dialogue, I almost expected to hear about the two distinguished gentlemen flinging Senate Navy Bean Soup at each other in the cafeteria. Some Democrats reportedly voted "present," and intend to voice their objections on the floor to Chairman Hatch’s "forcing" a vote over what the AP reports Leahy as calling a "committee filibuster." I must admit that I have never seen the term "committee filibuster" used before, and am somewhat incredulous as to its validity as an actual term. I was aware that you could suspend a vote in committee by denying a quorum (which the Democrats did for a time), but that is a far cry from a filibuster. Any insight readers can provide on "committee filibusters" would be greatly appreciated.

Two More Judges Clear the Judiciary Committee

The "How Appealing" blog reports that Justice Cook, nominee to the Sixth Circuit Court of Appeals, and John Roberts, nominee to the D.C. Circuit, both received favorable votes out of the Judiciary Committee. Justice Cook’s nomination cleared the committee on a vote of 12-2, and Mr. Roberts cleared by a margin of 14-3, with Biden, Edwards, Feinstein, and Kohl crossing party lines.

Cook and Roberts now join Sixth Circuit nominee Jeffrey Sutton awaiting confirmation by the full Senate. Of course, this would require the Senate to break through its current filibuster.

Deer Hunting Without the French

Going to war without the French is like hunting deer without an accordion.
Here’s the rest of the story.

Where is LaFayette when we need him?

Condi Rice for Governor?

This story claims that although Condi Rice has declined the opportunity to run against Senator Barbara Boxer (CA) in 2004, she is considering running for Governor in 2006. I bet this will discombobulate the Demos in the Golden State!

J. Harvey Wilkinson

A reader brought to my attention this interesting George Will Newsweek piece on Judge J. Harvey Wilkinson and the role of the courts. I take this as the opening salvo to get Wilkinson to be on the Supremes.

On Mr. Rogers

For those of you interested in some thoughtful points about what Mr. Rogers did and what effect he had, go to the NRO neighborhood where there is a good conversation about him. Neither my children or me were fans (hardly ever watched the program) but when I saw him interviewed (which was rare) I couldn’t help liking his quiet common sense. RIP.

University Affirmative Action Policy Half-Baked?

Fox News reports that students at UC Berkeley held a bake sale designed to highlight the disparities in treatment wrought by affirmative action admission systems. Here’s how the bake sale worked:

For the same chocolate chip cookie, whites were being charged $1.50, Asians $1.25, Latinos (Hispanics not from Mexico) $1.00, Chicanos (Hispanics from Mexico) 75 cents, American Indians 50 cents, and blacks 25 cents.

I have heard that similar bake sales have occurred at UCLA and the University of Michigan. One of the students was asked why legacies weren’t charged less for cookies. To put that issue to rest, the different treatment for legacies, while perhaps undesirable as a matter of policy, is not generally a constitutional question. The Constitution prohibits unequal protection of the laws on the basis of race, but does not cover distinctions based on other characteristics, such as legacy status, musical ability, or the ability to play football. To put it simply, we did not fight a civil war to end the practice of the government discriminating against individuals who are not legacies.

Estrada Nomination a Win-Win?

The New York Times reports today that Republican strategists are viewing the Estrada confirmation battle as a win-win situation. Note in particular the statements by Hispanic leaders and pollsters, suggesting that Hispanics are following the confirmation stalemate, and that this could portend trouble for the Democrats among Hispanic voters.

Not Such a Good Day in the Neighborhood

Fred Rogers, host of the children’s television program "Mr. Rogers’ Neighborhood," died of cancer yesterday at 74. The AP offers an obituary here.

Bush’s Statesmanship

The President gave two great speeches on Wednesday. Because both are worth reading in full, I withold my temptation to quote at length from them. Please read both. One was on the Democrats’ stonewalling and filibustering the Miguel Estrada nomination. The President was as critical of Demos as I have ever heard him. The talk is worth reading because it foreshadows the tone the President is going to take with the opposition when they become irrational and obstreporous. He is not only right to do this, but it will also be useful politically. He is going to try to make them pay for being petty and base on a matter of grave consequence. He will have the people on his side (never mind Hispanics). It’s a no win situation for the Demos.

The second was the speech on Iraq and the Middle East at AEI. Bush articulated in entirely American and non-partisan terms what should happen after Saddam is deposed; what should happen in Iraq and the area as a whole. While no on expects Iraq to turn into Ohio overnight, we have good reason to think--and history to back us up, from Japan and Germany to the Phillipines and Bulgaria--that we can help establish relatively free and relatively prsoperous regimes in places around the world where, before we got there, no one thought moderate and democratic governments could flourish. The vision is grand yet it is not impractical. Iraq’s defeat will have an effect on the whole region, including Iran and the possibility of real peace (not another "peace process") between a democratic Palestine and Israel. Even if the President is only half right, he will have done a great deal of good both for America and the region, indeed the world. Combine this with the careful and deliberate diplomacy at the UN, the isolation of France (I still predict France will not veto the next resolution) and one has to say that this is not a man who will need to spend time worrying about his legacy, as his predecessor did ad nauseam. At the risk of sounding pollyannish about Bush and his ways, I continue to be very impressed, and grateful. Godspeed, Mr. President, Godspeed.

Good News from Afghanistan

The Washington Post runs a great and heartwarming story about how good things have gotten in Afghanistan. While not very much is happening with the foreign aid that is supposed to rebuild schools and roads and such, the small local entrepreneurs are thriving. A local says this: "The government and [international aid organizations] won’t make Afghans stand on their own feet. Businessmen will do it." Great story, not unrelated to what the administration is going to try to do in Iraq. Worth a strong coffee. 

Senior Anglican Bishop Approves of War

One of the Church of England’s most senior bishops, Michael Nazir-Ali, broke ranks with his colleagues (here are the prayers offered for Saddam Hussein by the General Synod) by suggesting that Britain and the US could be justified in using force against Saddam Hussein. He had been a contender to be Archbishop of Canterbury.

"It would be desirable, surely, to seek a UN mandate ... but if the security council produces irrefutable evidence of a material breach of its own resolutions but fails to act, national governments may judge that such a breach constituted a threat to their security and that of the region. They could then be justified in taking action.

"Pre-emptive action could be justified ... if such a state was forbidden by international sanction from possessing such weapons, if it had a past record and present involvement in the use of such weapons ... and if there was reliable intelligence that it intended to use [them] against us and our allies.

While we pray for peace, we need to recognise that the Iraqi regime may have to be disarmed by force."

Demo Primary Compared to 1972

Dave Koppel at The Corner notes that a columnist in the National Journal draws some interesting parallels between the 1972 Democratic primaries and that of 2004. Aside from these compared he mentions that Dennis Kucinich is the Sam Yorty of 2004 (getting no support from anyone). Amusing and useful.

"National Journal columnist Chuck Todd suggests that the current Democratic Presidential slate resembles the field from 1972. John Kerry is the "seasoned front-runner" (like Maine Senator Ed Muskie); Gephardt is the labor favorite (like Hubert Humphrey); Dean the darling of the anti-war Left (like McGovern); Lieberman is the lone hawk (like Washington Senator Henry Jackson); Mosley-Braun is the purely symbolic female black candidate (like Shirley Chisholm). But the best parallel is Al Charlatan and George Wallace. Todd delicately writes that "No one thought Wallace could win the Democratic nomination, but everyone in the field believed he would be a key factor in certain primary states." I would put the comparison a little more directly: Like Wallace, Sharpton is an excellent orator and race-baiting demagogue who--despite claiming to fight for the little guy--appeals to the most paranoid and racist instincts of poorly-educated Democratic primary voters, especially in the South and Northeast."

Questions for Anti-War Protesters

This is a very good op-ed by an Iraqi in the Christian Science Monitor asking a couple of dozen questions of protesters, starting with this:
"What if you antiwar protesters and politicians succeed in stopping a US-led war to change the regime in Baghdad? What then will you do?" And this Iraqi, Amir Taheri, elaborates on similar themes by reflecting on his experiences with the peace marchers in London.

Netanyahu Replaced

Israeli Prime Minister Ariel Sharon has announced that Benjamin Netanyahu is no longer Foreign Minister. He will be replaced by Finance Minister Silvan Shalom.

Diplomatic Uncertainty

Tony Blankley has a worthy piece in today’s Washington Times on how the ground has shifted under the feet of world leaders since 9/11, how large this shift is, and how some political leaders are finding it difficult to find their footing. Thoughtful. One coffee. 

Bush is Not an Existentialist, Darn

Joe Klein regrets that President Bush shows no angst or existential trauma in his decision making on Iraq. This is not only the Clintonian ("I feel your pain," etc.) but the liberal-left view in which you trust nothing, including the value of the ends you are pursuing. This is worth reading if for no other reason than to see what angst Bush causes liberals. Bush’s faith--surprise--is also attacked.
"And this, I think, is at the heart of what is disturbing about Bush’s faith in this moment of national crisis: it does not discomfort him enough; it does not impel him to have second thoughts, to explore other intellectual possibilities or question the possible consequences of his actions."

Logan’s Heroes

Glenn Logan was the first correct answer to today’s question, in which I asked for the name of the Justice and the case I paraphrased in this entry. The phrase I loosely quoted was "[t]his is somewhat like referring to shackles as an effective means of locomotion." The answer ably provided by Mr. Logan was Justice Scalia’s famous dissent in Morrison v. Olsen, the case in which the Supreme Court upheld the constitutionality of the now-no-more independent counsel statute. Scalia’s dissent is worth reading in whole, which you can do here. For those unfamiliar with the case, yes, the Olsen in the case is Ted Olsen, the current Solicitor General of the United States. As a last anecdote, I will offer what a law professor I know said to his class when teaching the case after the Clinton impeachment: "Now, I know there’s not a Democrat in the room who disagrees with Justice Scalia in this case."

Mr. Logan’s correct answer comes on the heels of his insightful question about the pre-Marbury case of U.S. v. Hylton, which you can read here, and to which I offer my thoughts here. Thanks again to Logan for reading and playing along.

White House Responds to Cooked Up Delay

The White House sent a letter yesterday responding to a letter issued by Democratic Senators yesterday requesting a second hearing for Sixth Circuit nominee Deborah Cook and D.C. Circuit nominee John Roberts--both of whom are tentatively scheduled for a vote by the Judiciary Committee tomorrow. The essence of the letter is: you’ve stalled long enough, thank you. These nominees were sent forward nearly two years ago. During the first hearing, Chairman Hatch permitted Senators to question both nominees as long as they liked. What the letter didn’t say is that if the Senators chose to go home early, or to use their time to recite questions written by Ralph Neas in opposition to Jeff Sutton, that was their choice, but it will NOT be sufficient cause to further delay a process which to date has moved with the speed of someone who mistakenly believes shackles to be an effective means of locomotion. The letter is available online compliments of "How Appealing Extra" here.

For those of you paying careful attention, I paraphrased a line from a famous Supreme Court dissent. This one is too easy to earn you a mug, but first person to name the Justice and decision gets honorable mention, and the respect of his or her peers.

Bush to Speak on the Future of the Middle East

The President will give a major foreign policy speech tonight at AEI. According to the Washington Post, "President Bush intends to outline his postwar vision for Iraq and the Middle East in a speech tonight designed in part to showcase the administration’s belief that Iraqi President Saddam Hussein’s overthrow would be a significant step toward broad democratic change in the Arab world." The story is worth a quick read, there are some nuggets in it. The speech should be viewed by everyone.

Rabinowitz essay/photo

For those interested in the fine artwork accompanying Dorothy Rabinowitz’s fine essay in the Wall St. Journal, please see the following webpage for the original color version:

"Somalia" by Matt Hall

Additional artwork by Matt Hall can be viewed at the following webpage of the Congressional Medal of Honor Society:


Estrada’s Connection to Today’s Abortion-RICO Case

The Supreme Court ruled 8-1 today that because abortion protesters did not commit extortion under the Hobbs Act--that is, they did not "obtain" property from another by "wrongful use of actual or threatened force, violence, or fear . . ."--such groups therefore did not violate the Racketeer Influenced Corrupt Organizations Act (RICO), which allows for more aggressive prosecution of, in this case, a pattern of extortion. The Supreme Court opinion in the case, Scheidler v. NOW, is available here, and the AP has an early story here.

Court watchers will recall that this is not the first time that this case came before the court. In 1994, the Supreme Court first took up the case, deciding unanimously that RICO did not require proof that the predicate criminal activity was motivated by economic purpose. This previous opinion is available online here. Now for the interesting part: the Justice Department filed a brief in the 1994 case supporting the position of the National Organization of Women and abortion providers. Who did the Justice Department choose to file the brief on behalf of NOW and the clinics? Miguel Estrada. Can we please have a vote . . . NOW?

Lincoln and War

Tom Krannawitter finds Paul Berman’s piece in The New Republic ("What Lincoln Knew About War") to be both interesting and wrong. Yet, Berman is worth reading, especially with Krannawitter’s rejoinder. This is not an abstract question being discussed: Can a self governing republic exercise power in defending itself? I recommend the lingering study of both. Off to my Shakespeare Seminar, we’ll try to focus on Brutus’ lack of prudence in Julius Caesar. Ah, for those Stoics, intention is everything!

Standards of Speaking

Terrence Moore has another "Principal’s Perspective" out in favor of standards of study and of speaking. The piece is worth contemplating: "The classical works of Greece and Rome are not great simply because they are old. They are great because they employ harmonious language to depict remarkable human events and to explain the transcendent ideals of human existence." While I am no orator, as Terrence is, but (as you all know me) a plain blunt man, I still say read the whole thing. 

More on Cohen and Cook

Professor Lawrence Solum offers a detailed analysis of one of the cases referenced by Cohen in his column today attacking 6th Circuit nominee Deborah Cook. His conclusion regarding the case is worth quoting at length, particularly given his statement that he is not necessarily a proponent of Bush’s judicial nominees, and his further concession that he did not know much about Justice Cook’s record:

An assessment of Justice Cook’s performance in Wal-Mart should not be based on the question whether she favored the little guy or the big corporation. It should be based on the quality of her reasoning. Her opinion should damn her if it shows she lacks judicial integrity, fidelity to the law and concern for its coherence. But her opinion in Wal-Mart simply does not show those things.

Worth a cup.  

The White House Responds

Byron York offers the full text of White House Counsel Alberto Gonzales’s letter to Senator Schumer, in which Justice Gonzales responds to Schumer’s most recent claims regarding D.C. Circuit nominee Miguel Estrada. A thorough refutation, worth a tureen of coffee sufficient to sustain Senators through a real, as opposed to a "gentleman’s" filibuster.  

Medal of Honor

Dorothy Rabinowitz writes of the heroism of the two men who received the Medal of Honor (the first since Vitnam) for their acts of courage in Mogadishu in 1993. Great read.

Honorable Mugtion

Honorable mention in yesterday’s Marbury competition goes to Constitutional Law professor Rafael Madan, who suggested Cooper v. Telfair (1800) as a pre-Marbury exercise of judicial review by the Supreme Court. One has to be very careful when drafting questions addressed to smart lawyers, and Professor Madan’s answer shows that he ably discerned that I never said that the judicial review needed to be of the United States Constitution. In Telfair, the Supreme Court reviewed whether a statute violated Georgia’s state Constitution. A very nice catch.

Playing the Final Hand

The two paragraphs Andrew Sullivan has on a story from today’s Washington Post about the poker game going on at the U.N. says everything I want to say on the matter, and says it with perfect clarity. The end is here and as long as we win the war, all be well. Do read it.

Estrada Filibuster

Terry Eastland has a nice overview of the Democrat filibuster against President Bush’s nominee to the circuit court, Miguel Estrada.

Iranian Opinion

This is an interesting story from Monday’s Los Angeles Times. Notice the youth of Iran hoping and waiting for Iraq to fall and thinking that it will have a good effect on Iran. And one is quoted as saying she hoped the U.S. will invade Iran to liberate them. I am not if favor of such an invasion for I think internal change in Iran will happen even more quickly in Iran when Iraq is liberated. Good, short story. 

The Law Doesn’t Matter

Adam Cohen has what can only be characterized as a screed in today’s New York Times entitled "Deborah Cook Is the Typical Bush Judicial Nominee--So Watch Out." In the article, he marches through a list of cases, trying to make the argument that Justice Cook, who sits on the Ohio Supreme Court and is awaiting Senate confirmation to the United States Court of Appeals for the Sixth Circuit, is biased in favor of corporations and hates the little guy. But instead of succeeding, he only shows that Justice Cook is the kind of jurist that liberals claim that they want: one who defers to legislative judgments.

You see, in most if not all of the cases Cohen listed, the proper question was whether the plaintiffs filed their claims within the time prescribed by the legislature. Justice Cook followed the direction of the legislature, even when her colleagues chose not to do so. Anyone who read left-wing law professor Cass Suntein’s latest article, "The Right-Wing Assault," would think that Justice Cook is a model judge. Sunstein argues that the problem with Republican nominees is that they are activist, and that these same judges are on a rampage of striking down laws passed by popularly elected legislatures. Using Sunstein’s methodology, Justice Cook’s colleagues were on a rampage of ignoring the filing requirements established by the legislature, and she chose instead to follow the direction of the elected branch and to dissent. Justice Cook should therefore be a fine selection for messrs. Cohen and Sunstein. Of course, that would assume that Cohen and Sunstein were interested in something other than a base, results-oriented jurisprudence. But Cohen’s article looked only to the results of the cases without pausing even for a moment to consider the law, and Sunstein’s article chose selectively from decisions in which he did not like the outcome, while ignoring decisions in which he approves of the outcome like Romer v. Evans--a decision for which he has publicly praised the Supreme Court for striking down a popularly enacted initiative based on, to borrow his phrase, a Constitution of "ambiguities and generalities."

Despite all the lofty rhetoric, Cohen and Sunstein’s recent articles make their position abundantly clear: the law doesn’t really matter--only the outcomes do.

New Poll on Demos

A CNN-Time poll of Democrats find that Lieberman leads with 16%, followed by Gephardt with 13%. All the others (too many to count) are in the single digits. It is clear that no one has yet enchanted the Party. Yet it is being reported that Howard Dean did very well with the Demos at the DNC winter meeting. He was the star! According to the report:

"Dean challenged his party to ’stand for something’ and, unlike his rivals who played it very safe, was the only one who managed to elicit sustained cheers while generating that all-important buzz in the lobby of the Hyatt Regency Hotel on Capitol Hill.

"’What I want to know is why in the world the Democratic Party leadership is supporting the president’s unilateral attack on Iraq,’ he said right off."

New UN Resolution Submitted

The U.S., U.K., and Spain just submitted the new resolution. It claims that Iraq has missed the final opportunity to disarm peacefully and has been, and is, in material breach of its obligations. The diplomatic game is now publicly afoot. The President, speaking to the governors, said: "It’s a moment for this body … to determine whether or not it’s going to be relevant as the world confronts threats in the 21st century. Is it going to be a body that means what it says? We certainly hope so." This is the ABC report on it.

Book of the Day

Keeping to the Marbury theme for the day, I highly recommend David P. Currie’s "The Constitution in the Supreme Court: The First Hundred Years, 1789-1888." Readers interested in finding out more about the cases discussed today on the blog (or for that matter just about any important case in that period) will find that Currie provides a detailed and eminently readable discussion. Worth three good, strong cups of coffee, unadulterated by cream, sugar, or emanations of penumbra.    

We Have A Winner Three Winners

I obviously needed a tougher question, because we received not one, but three correct answers before noon, with more following that. The first out of the gate was Lucas Morel, who despite being first nearly got overlooked in the email bin. Professor Morel suggested Hylton v. United States for the federal statute, and Van Horne’s Lessee v. Dorrance for the state statute. Hylton v. United States, is a winning answer. In Hylton, the court determined that a congressionally authorized geographically uniform tax on carriages was not a "direct" tax in violation of art. I of the Constitution. While Van Horne’s Lessee is also a case involving judicial review, it is not a Supreme Court case, but rather was a circuit court decision. Professor Morel goes one-for-two and quickest draw, and therefore he scores the coveted mug.

Showing that we’re a bunch of softies at NLT, however, we noted that reader David Bird was the first to offer the other of the two cases: Ware v. Hylton, a case in which the Supreme Court struck down a state law as violative of a treaty pursuant to the dictates of the Supremecy Clause in 1796. Mr. Bird also earns a a well-deserved mug.

Finally, reader Moe Freedman offered Chandler’s Case and United States v. Yale Todd, both of which do indeed involve Supreme Court review regarding the constitutionality of congressional acts prior to Marbury. I must admit that I had not considered these cases when I wrote the question because they were not published, and we know about them only through indirect references. See, e.g., Marbury, 5 U.S. (1 Cranch) 137, 171-72 (1803) (describing Chandler, although not by name); see also United States v. Ferreira, 54 U.S. (13 How.) 40, 52-53 (1851) (note of Justice Taney inserted by order of court, speaking about Yale Todd). That said, they certainly are correct, and based upon the shear obscurity of the references, Mr. Freedman has earned a mug. Thanks again to everyone who competed.

Waterloo as a French Victory

This is a very thoughtful article by Robert Kagan. Kagan cautions us through the Waterloo analogy (and deeply felt experience for the French wherein a defeat is made into a victory) that while France may be defeated in the Iraq crisis, she yet still might be able to be victorious in principle--who is the master of Europe, France or the American behemoth?--if the war or the peace following proves a disaster for the U.S. It still might prove to be the case, in short, that France will end up representing Europe’s future. And in this attempt, France is prepared to wreak havoc on institutions not to its liking, including NATO, EU, and the UN. France is not only being surly, they may yet again find glory in defeat. One good coffee. 

The Mug Is Still Up For Grabs

Good guesses so far, but no one has yet seized the cup. A reader calling himself Felix Frankfurter had the best guess so far with Hayburn’s Case. But Hayburn’s case provided details about the holdings of circuit courts striking down federal laws, while the Supreme Court in that case did not reach the question of judicial review or practice it in analyzing the statute, but rather merely recited what occurred below. Hayburn’s case is in fact the reason for my statement that I wanted a case in which the Supreme Court and not a circuit court exercised the power of judicial review. Good luck, and keep the guesses coming.

A Mug For Marbury

Today marks the 200th anniversary of the Supreme Court’s landmark decision in Marbury v. Madison, in which Chief Justice Marshall famously announced the doctrine of judicial review. In honor of the event, the Washington Post offers an article here discussing the opinion. Students in my class have heard too much about this case, but will recognize the WaPo article as advocating a "strong" form reading of Marbury as an aggressive check on the other branches. For those who haven’t read the case before, the decision is available here. (Thanks to Howard Bashman of How Appealing for bringing this story to my attention.

Now to the contest. Everyone knows that Marbury was the first time that the Supreme Court exercised judicial review, right? Wrong. The Supreme Court used the power of judicial review to strike down a state law in one case preceding Marbury, and while expressly reserving the question of its power to do so, had reviewed the constitutionality of a federal statute in another. (Careful readers will note that circuits courts also exercised this power, but I’m looking for Supreme Court cases.) The first reader to name one of the two Supreme Court cases wins a No Left Turns Mug.  (Hint: I’m not looking for a dissenting or separate opinion.)

Post-War Iraq

Michael Barone has a nice short piece in U.S. News about how we had better start emphasizing what to do with Iraq after the war and why. He clearly thinks we can build a relatively democratic and free Iraq. One coffee. 

Defending the French

Dan Mahoney has a defense (sort of) of the French view of things (In an Australian newspaper; isn’t the blogosphere great! Got it through innocentsabroad). It’s perfectly sensible, even if I think he overdoes it: He stresses that these guys are no knee-jerk anti-Americans, they’re not cowards, and they’re just seeking to push their countries’ interest. OK, maybe. In the end, though Mahoney ignores much that is implied in the French position vis-a-vis Europe and America. Mahoney ends up blaming the Germans for misguiding the French. Still, worth reading. I’d still like him to answer the TNR piece I mentioned yesterday, as well as Krauthammer. Here are a few lines.

"In my view, French foreign policy is guided by considerations of national interest that are not reducible to crude anti-Americanism, no matter what the talking heads say. And French intellectual life long ago ceased to be dominated by the crass anti-Americanism and leftism that Revel rightly continues to excoriate.

I, for one, believe that it was a terrible mistake for President Jacques Chirac to abruptly shift course several weeks ago at his summit with Chancellor Gerhard Schroder. For the first time, he seemed to identify French policy with the kind of humanitarian pacifism that has become the official German position. The French have had to backtrack ever since, with Chirac most recently insisting that France is ’not a pacifist country’."

Gods and Generals

Gods and Generals was just relased. Before I start pontificating on it, I’d like you to go and see it. It will be worth the price, even if you might end up being critical of aspects of it. In the meantime read Bill Kaufmann’s good review of it for the American Enterprise.

Bush Lacks Chivalry & Manhood

According to Saddam, at least. So the guy that killed untold thousands of his own people by the vilest methods now claims the mantle of chivalry. Notice the reference to Ramsey Clark, one old Stalinist visiting another. Oh, yes, and a special Russian envoy arrives in Baghdad on a surprise visit.

Techno Stuff

A study claims that Special Forces’ brains work differently than regular regular guys; this explains their toughness or at least why they suffer less from stress.

"Special Forces soldiers have neurological differences that make them more resilient to post-traumatic stress disorder than the average soldier, say researchers....The elite soldiers produced more of a molecule called neuropeptide Y in their blood than regular soldiers. This molecule is generated by the body to help calm the brain in times of extreme stress."

This article from MSNBC explain why the U-2 Spy Planes are better than satellites. The military is ready to deploy something called "Bugsplat." It is a computer program that better predicts potential bomb damage. Among other uses, this
Washington Post article claims that it will help to limit civilian casualties. The military has starting using bandages that have a clotting agent in it; CNN says it stops bleeding in two minutes. And here is the Airborne Lazer (and some details in PDF) aboard a modified 747 that can shoot down rockets, but not yet; we’ve been wporking on it for some years. And it seems to be the case that there is a difference between long and short gamma ray bursts, the most powerful explosions in the universe. I don’t understand what this means but I thought I would bring it to your attention because all the scientists associated with it seem to have Hungarian names. This is an example of why I’ve never understood these people.

Wesley Clark as Candidate?

It has been rumored for about two months that Wesley Clark, former NATO Commander and now a CNN analyst, is (eventually) going to announce that he is a candidate for the Democratic nomination. I believe he will announce--although he cannot yet, for it will jepordize his CNN contract, and he needs to be on the air as much as possible--and that he will do quite well. In fact, I am going to bet that he will be assured of the VP slot, if he wants it. The Democrats are in desperate need of someone with foreign policy/national security credibility.
Mickey Kaus (go to Feb 20th) has some good notes, and links about the small groundswell building for Clark.

Weasel Politics and Economics

I know that I may seem to be (according to some of you) overemphasizing the European question in my notes. I think I am not. I think that the French Gambit is serious, has less to do with Iraq than it seems at first sight, and has more to do with French ambition in Europe, misperception of reality, and (as George Will calls it) moral infantilism and monomania--anti-Americanism. A news story in Sunday’s New York Times, as well as an op-ed by Niall Ferguson, confirms the seriousness of the French ambition and what is at stake. This has had a great deal to do with the semi-suicide that Europe attempted in the twentieth century. And this explains why my grandfather, my father’s father, said to me when I went back to Hungary to visit him for the first time in 1968: "Don’t come back here again. Go back to America, far away from this place. It is hopeless." He was talking about Europe as a whole, not just Hungary.

While this British writer puts a more Anglo-European spin on the issue, he admits that Chirac has made a "strategic choice" that will have massive consequences. This French writer essentially agrees. And it is unlikely that the old Europe will come out on top, says the Editor of The Jerusalem Post (also note Chirac’s peccadilloes, amusing).
See this UPI article and then this one for a good history of the problem from an economic point of view; how France and Germany went from robust economies of the mid-1960’s to very restricted economic growth by the 1990’s. And there is no plan to get out of it; only an attempt to waylay the impending disaster. While I understand that the most immediate question is how France will vote when we present a new resolution on Iraq to the Security Council, these larger concerns are the matters driving things and they will have long term consequences, lasting well after the time Iraq has been rebuilt and the political landscape of the Middle East has been changed. Besides, I still think that France has played its last card and will go along with us on another Security Council resolution. They can’t afford complete isolation.