Strengthening Constitutional Self-Government

No Left Turns

Running Commentary by Lileks

James Lileks has been closely following the televised coverage of the war, and commenting on it with his usual combination of common sense and humor. Some of my favorite bits:

On BBC coverage of the war: "It’s interesting, listening to these guys - I’m unsure how it’s possible to sneer the entire time you’re speaking. I fear the announcer’s face will stay that way. Perhaps you can recognize an old Beeb hand by the permanently curled lip."

On the Palestinian issue: "I say when this war is over we couple the issue of Palestinian rights with Saudi women’s rights. Self-determination for everyone. The Pals get autonomy; Saudi women get driver’s licenses. Agreed?"

On the Iraqi inspections: "Hans Blix admits that he would have never have found all the WMD. Thanks, Hans. Much obliged. I’m guessing that he was paid by the week, not by the discovery; if we’d given him a bonus for Finding Stuff, and the bonus exceeded what he would have made in a year of desultory squinting, we might have had the material breach in week one."

On antiwar protesters: "For these people there is no history before 1968, when the world sprang fully-formed from Timothy Leary’s forehead. The local news said that many high school students had walked out and gathered at the U to demand that the war stop now - the King Canute Brigade, if you will. The most delicious line came at the end of the report, noting that the University itself was currently on Spring Break, but many students planned to leave class when they resumed on Monday. God forbid you should leave St. Petersburg a few days early to assert your principles."

Endgame Questions

I would be grateful to hear from the bloggers more experienced and opinionated about international affairs than I am about these questions: First, how likely is it that the U.S. will agree to turn over supervision of a subdued post-Saddam Iraq to the U.N.? President Chirac seems pretty confident that the U.S. will, & news reports from Washington over the last 48 hours suggest the same.

Second, how much should the U.S. allow Turkey to participate in supervising a post-Saddam Iraq? On one hand, I can see why we’d want to be considerate of Turkey. More than any country except perhaps Israel or India, Turkey should have the same long-range interests as the U.S. when it comes to radical Islam. On the other hand, if the country acts as petulantly as it has the last month, it should be made to pay a price for non-cooperation. E.g., if Turkey only means to give us token assistance during the military conflict, I wonder why Turkey’s Kurd problem should be our problem while we sort out Iraq’s Kurd problem.

An Intelligent but Questionable View on Iraq

John Moser is right to cite Schroeder’s article. It is probably the best statement of the anti-war case or at least the best one that I know of. I was tacitly responding to it when I wrote the article “What the War in Iraq Means” now posted on the Ashbrook Center home page. To reiterate that argument with more explicit reference to Schroeder’s, I believe that Schroeder is right that the Bush administration’s preemptive war policy and our current fight in Iraq change the accepted norms of international conduct. But he is wrong to think that these norms do not need to change. In the article John cites, Schroeder writes, by way of explaining that no current threat justifies changing these norms, that “Terrorism has been around for centuries, and several countries in the 19th and 20th centuries, notably Spain, Russia, Italy, and the United Kingdom, survived worse terrorist campaigns and threats than we have experienced or are likely to experience. Right now the threat of terrorism is greater for the Philippines, Israel, Colombia, Peru, Nepal, and Sri Lanka than for us.” With the possible exception of Israel, Schroeder is wrong. The threat of the clandestine use of one or more weapons of mass destruction in the United States is real and growing, because technological advances put in the hands of our enemies enormous power in small packages. The norms that Schroeder describes evolved from calculations of self-interest on the part of sovereign states. Those calculations have changed and the norms will change as well. This does not answer the question (which has been mine) of whether this was the right time for war in Iraq.

An Intelligent Dissenting View on Iraq

Recently I’ve not been known for calling attention to thoughtful opposition to the Iraq war, mainly because there’s been so little of it (David Tucker’s reservations to the contrary). However, as the bombs fall on Iraq, a friend called my attention to this article, by Paul W. Schroeder, professor emeritus of international history at the University of Illinois at Urbana-Champaign. I recommend it to anyone who supports the war, if only to prove that at least some anti-war opponents are capable of doing more than mouthing bromides that are too simplistic for the average bumper sticker. Try to ignore the fact that it appears in Pat Buchanan’s nativist, isolationist rag.

Full disclosure: Paul Schroeder was my graduate adviser at Illinois, and one of the wisest and most learned individuals I’ve ever met--particularly on the subject of international affairs. The very fact that he opposes the war is not enough necessarily to change my views on Iraq, but certainly sufficient to make me subject them to serious scrutiny.

The Decision to go after Saddam

Michael O’Hanlon, a respected analyst at the Brookings institute, offers a critique of the effort to get Saddam on the first day of the war. He wants to know why it took so long to make the decision (he claims six hours). Since he admits that we probably do not know enough to offer such a critique, it is odd that he did. He thinks that a debate about the decision may emerge in the future. What strikes me as important is not the future but the past. If, as appears likely, we had information from a human source as well as from technical means that led to the decision to strike early to kill Saddam or senior leaders, how long have we had the human source? Has he told the USG things that the government could not share (or share only perhaps with the British) because the source was so sensitive? Does something this source revealed explain the adamant position of Bush and Blair over the past months?

More Iraq Maps

This site is a comprehensive list of Iraq maps.

An Inferiority Complex

Since Alt and Schramm are on the road and our troops are in transit, now’s a good a time to take a short break from war coverage and go back to the federal-courts impasse. On Monday, John Eastman & I had an exchange about whether Congress could constitutionally pass a bill designating federal appeal & district judges as "inferior officers" and giving the President power to appoint them without confirmation by the Senate. After John’s post, I remained convinced that Congress may not short-circuit the confirmation process.

Most important, appellate and district court judges are not "inferior" officers within the meaning of "inferior" in the Appointments Clause, in art. III, sec. 2 of the Constitution. The Appointments Clause requires Senate advice and consent for "Ambassadors, other public Ministers and Consuls, and Judges of the supreme Court, and all other Officers of the United States," but not necessarily for "such inferior Officers, as [Congress] think proper." This is the sharpest point of disagreement between Eastman & me, and I do not think he gives enough consideration to the arguments against his proposal.

As I read John, he equates the phrases "all other Officers" in the first half of the Clause with the phrase "inferior Officers" in the second half. If so, the $64 question is whether or not an "officer" is an ambassador, minister, or Supreme Court Justice. If so, he must be treated as an officer; if not, the choice is presumptively up to Congress whether to designate his office as principal or inferior (and thus subject to advice & consent or not). (John makes an exception for Heads of Departments, which I’ll get to below, but this is the interpretation in his analysis that governs judges.)

This is not the best text--based reading of the Appointments Clause. To borrow a Bushism, it misunderestimates the work that the word "inferior" does in the Appointments Clause. The class of "inferior Officers" is not a backstop for all "officers" who aren’t specifically enumerated as ambassadors, ministers, or Justices (or Cabinet Secretaries). The first half of Appointments Clause requires advice and consent for all officers. The second half makes this requirement a default rule for "inferior officers," which Congress may change in its discretion. But by giving Congress power to change the requirement only for "inferior" officers, the Appointments Clause implicitly reserves from Congress the power to change the rules for appointing "Officers" who are substantively not "inferior" officers.

John cites the Opinion Clause in support of his narrow reading of the Appointments Clause, but it really supports the broader reading. The Opinion Clause describes the heads of "the executive Departments" as "principal Officer[s]." In the Appointments Clause, then, the term "Officers" includes some "officers" who aren’t ambassadors, ministers, or Justices but are still "principal." If the "officers" has such a comprehensive meaning for executive-branch officers, it has to have the same comprehensive meaning for judicial-branch officers in the Appointments Clause, which draws no distinctions between executive- and judicial-branch officers.

Which takes me to my second point of disagreement with John - how to interpret the provision of the Appointments Clause requiring that inferior-officer appointments be vested only "in the President alone, in the Courts of Law, or in the Heads of Department." John & I agree that the "Heads of Department" are principal officers because they correspond to the "principal Officer[s] in each of the executive Department[s]" mentioned in the Opinion Clause. John concludes by implication that the judges in the "Courts of Law" in the Appointments Clause are inferior officers, because there’s no clause like the Opinion Clause saying they’re principal officers. As a matter of structure, I would conclude just the opposite. If the only executive-branch officials who may appoint inferior officers are the President and Heads of Departments, and if the latter are principal executive officers, the "Courts of Law" should be filled with principal judicial officers - on a par with the principal executive officers who serve as the heads of departments.

Also in relation to this provision, I don’t think John responds satisfactorily to my concern about the consequences that would follow if appellate and district judges were inferior officers. "Courts of Law" get to appoint inferior officers. That provision makes sense if one thinks of courts appointing the clerk of the court, special masters, or magistrates with limited responsibilities like approving search warrants. (John tweaks me for my previous examples, but he misunderstood at least one and I hope he’ll agree the jobs I list here all must be filled by inferior judicial officers, not employees.)

The provision starts to look really goofy, though, if the judges on inferior courts are inferior officers. Yes, then the President may appoint them. But so may the Attorney General, the Secretary of Education, or the head of any other department. And the the judges in the "Courts of Law" may appoint their own successors. John disagrees on the ground that judges aren’t courts. I don’t think this is responsive. Maybe the chief judge of the court gets the appointment. Maybe the court makes the appointment upon a vote by a majority of the judges sitting on it. Either way, such an appointments process really seems to upset what we know about the structure of Article III.

So then the last piece of text is the Judiciary Vesting Clause, which calls the lower courts "inferior Courts." As I said in my last post, there’s no textual reason why judges must be inferior officers because they sit on courts inferior to the Supreme Court.

Put all this together, and I think the law needs to follow the approach Supreme Court Appointments Clause precedent has taken. The law needs a substance-over-form test to figure out whether an officer is "inferior" within the broad outlines created by the distinction between "Officers" and "inferior Officers" in the Appointments Clause. So list all the ways in which inferior-court judges are subordinate, list all the ways in which they’re not, compare the two and decide whether they’re "inferior." John objects that appellate and district judges’ decisions are potentially reviewable by the Supreme Court. Point taken. Put that fact on one side of the ledger. On the other side, lower-court judges presumptively get to exercise all of the Article III judicial power, they are actually not reviewed by the Supreme Court 99% of the time, and they can never be fired. Lower-court judges are not inferior enough in their responsibilities and job structure to count as inferior officers.

Iraq Maps

This site and this one provide some useful maps to follow and understand what is going on in Iraq.

On the road

I’m in Chicago today to give a speech to The Federalist Society about Conservatism and the New Media (i.e., blogging), and Schramm is in California giving the keynote at the conference he mentioned here, in which he will explain how he was born American, in the wrong place (Hungary).

BBC News Blog

The BBC has a news blog, with updates from their correspondents around the world on the war in Iraq. There seems a bit more open commentary, but it has the appeal of at least potentially being up-to-the-second. Worth a look.

Repaired Second Thoughts in Europe

I believe that the link mentioned below is now the right one.

Second Thoughts in Europe

An article in the International Herald Tribune reporting concern that France and Germany may have gone too far in opposing the United States.

Al Qaeda Recruiting, a Repsonse to a Response

Peter makes four point in his response: 1) we can’t trust the information in the article I referred to; 2) the French did us wrong and we should not forget that, even if we need their help, but should also not forget that it is in their interest to help us catch the bad guys; 3) we have to act even if the consequences are bad; and 4) although we can’t know for sure, a new Iraq is a more likely result of war than effective terrorists. To which I respond:

1) One must always pay attention to the source of one’s information. For the record, then, the article refers three times to unnamed American officials; three times to a named French official; three times to a named German official; and numerous times to unnamed officials whose nationality is not given. The French official referred to is Jean-Louis Bruguière, an investigating judge, not a politician, who has a reputation for intelligence, courage and tenacity in hunting down terrorists. No one, I believe, would consider him Chirac’s poodle.

2) The French did do us wrong, just as we did them wrong, one might argue, by denying them support in their struggles in Indochina and Algeria in the 1950s. (Not only did we not support them, we sold weapons to Algeria’s neighbors who were supporting the FLN in Algeria against France.) The French (the French socialists actually) did us right in the 1980s, when Mitterand traveled to Germany and literally stood by Helmut Kohl to support him when Kohl was under intense pressure to prohibit deployment of intermediate range missiles in Germany. What is the point of this history? Two points actually: First, we have a long history of agreement and disagreement with France that has produced damaging actions by both sides. Talk about cataclysmic ruptures or changes in our relations or of vast nefarious strategies on the part of the French may, therefore, given our common interests, be overblown. Second, nations act on their interests but what they understand to be in their interest often depends on their principles (e.g., anti-colonialism, anti-communism). It is not unreasonable for France to have doubts about the Bush administration’s doctrine of preemptive war or about attacking Iraq now and thus for them to have stood against us. Why? This brings us to points three and four.

3 and 4) Before we decide to act, we should try to calculate whether our action is likely to produce more good than harm. Peter, for example, believes that the war in Iraq is more likely to produce peace and prosperity there (and in the rest of the Middle East?) than lots of new recruits for al Qaeda elsewhere. I am inclined to the opposite view. Far from being a political mathematician who thinks that political problems can be solved in a definitive way, I am, like a good conservative, a historical pessimist. Therefore, I see more effective terrrorists as a more liley outcome of the war than a transformed Middle East. I see nothing in Iraq’s history, what little I know of it, or its circumstances to make me think otherwise. I hope, of course, that Peter will be proven right as usual.

Rumsfeld Praised

Mark Steyn praises Secretary of Defense Donald Rumsfeld, and then some. I agree with him, even though I realize that speaking the truth is not always diplomatic yet, in the end, it is good for everyone. Dilomatic-bureaucratic speak is intentionally vague and leads to mistrust. Clarity establishes trust. Here is a paragraph, but do read the whole thing.

"That’s Rumsfeld’s function -- to take the polite fictions and drag them back to the real world. During the Afghan campaign, CNN’s Larry King asked him, ’Is it very important that the coalition hold?’ The correct answer -- the Powell-Blair-Gore-Annan answer -- is, of course, ’Yes.’ But Rummy decided to give the truthful answer: ’No.’ He went on to explain why: ’The worst thing you can do is allow a coalition to determine what your mission is.’ Such a man cannot be happy at the sight of the Guinean tail wagging the French rectum of the British hind quarters of the American dog."

On the War

Mac Owens and David Tucker have written solid and thoughtful pieces on both some tactical and some strategic issues having to do with the war. Owens considers the possibility of Saddam using chemical and biological weapons. Tucker’s serious and cautionary article makes a special point regarding the meaning of the Bush doctrine of preemption and notes that it will change the way inrenational relations will be conducted in the future. It is a radical change with many consequences, not all of them--in the end--to our liking.

The Character of the American Soldier

With our soldiers about to go into battle, I am moved to thank them and to pray for their well being. You might want to look at Douglas MacArthur’s great speech at West Point in 1962, two years before he died. Of course you should read the whole speech, but let me just quote a few lines from it, ones that are most appropriate for this day and this action. If you ever get a chance to listen to the speech (it was recorded, but I couldn’t find it on line), please do so and be prepared to shed tears.
Thanks to PejmanPundit for bringing the speech to my attention yesterday. Here is MacArthur on the American soldier, speaking to future officers.

"And what sort of soldiers are those you are to lead? Are they reliable, are they brave, are they capable of victory? Their story is known to all of you; it is the story of the American man-at-arms. My estimate of him was formed on the battlefield many, many years ago, and has never changed. I regarded him then as I regard him now - as one of the world’s noblest figures, not only as one of the finest military characters but also as one of the most stainless. His name and fame are the birthright of every American citizen. In his youth and strength, his love and loyalty he gave - all that mortality can give. He needs no eulogy from me or from any other man. He has written his own history and written it in red on his enemy’s breast. But when I think of his patience under adversity, of his courage under fire, and of his modesty in victory, I am filled with an emotion of admiration I cannot put into words. He belongs to history as furnishing one of the greatest examples of successful patriotism; he belongs to posterity as the instructor of future generations in the principles of liberty and freedom; he belongs to the present, to us, by his virtues and by his achievements. In 20 campaigns, on a hundred battlefields, around a thousand campfires, I have witnessed that enduring fortitude, that patriotic self-abnegation, and that invincible determination which have carved his statue in the hearts of his people. From one end of the world to the other he has drained deep the chalice of courage."

Naysayers and Copperheads

George Will and Hugh Hewitt and Michael Barone focus on Tom Daschle’s chaotic mind. Hewitt explains what he means when he says that Daschle is the American chairman of the new Copperhead Caucus, with branches in Paris and Berlin. And I especially like this paragraph from Will:

"So Daschle’s position is: America is ’forced to war’ because presidential diplomacy failed to produce a broader coalition for war. With that descent into absurdity, Daschle would have forfeited his reputation for seriousness, if he had one."

Climate Update

Several readers have written asking for links to the material referenced in my note yesterday about the CO2 gas bubbles in ice core samples, and the Australian critique of the IPCC climate change forecasting models. A summary of the Nature magazine article can be found here.

TYhe story about the Australian economists who blew a whole in the IPCC model was reported in the February 13 edition of The Economist, but the story is only available online to subscribers. A did a short write up of the story you can find here. I’m also planning to write all this up in greater detail for the American Enterprise Institute in a few weeks. Watch for updates here.

Al Qaeda Recruiting, A Response

David Tucker’s post below to the New York Times article about the surge of AQ recruitment efforts is worth reading. And Tucker is right to bring it to our attention.

I take his first point at face value, and agree: for this and other reasons the map I had referenced the other day is not gospel.

Second, I agree that Europe needs to be paid attention to in all this for the reasons the article mentions (excellent recruiting opportunities, many well organized cells, etc) and therefore for this reason (and others) I do not argue that we shouldn’t continue to have excellent relations with the Europeans (all, not just the Old): we need their help to get the bad guys, but, because it is also in their interest, I do not worry much about not getting their help. And yet, the French especially have done us ill at the UN on the Iraq matter, and this is no small thing. The French weren’t doing this just to protect a virtual client state. I believe their reasons were larger, their strategy more long ranged than that. I give them a great deal of credit for a noble attempt at both salvaging what is left of their honor, and of foreshadowing how they will attempt to stifle the hyper-power’s authority in the world now that it is clear to them that they are, alone, never to be a great power again. This was the first French attempt in a post-cold war world to build a coalition against us. This is not tiddlywinks.

Third, my point here is an obvious one: it is also in the interest of the Europeans to get us to think that they are indispensible in such operations; the main sources of the story are German and French officials, with unindentified American counterterrorism officials thrown in. This does not mean that the points brought up aren’t true; yet, the story line is by definition suspect because of its source. After all, it is the French and the Germans who have not wanted us to go into Iraq. And now the French and Germans are saying--just days before we go in--that there will be very grave consequences. It is even possible to see this as a threat.

And my fourth point leads beyond Europe, indeed, the article itself does so. It claims that terrorist training camps have been set up in Chechnya and the Pankisi Gorge in Georgia. We have known about this for many months, much before there was any talk about invading Iraq. Indeed, those camps were being set up right after our success in attacking Afghanistan. They looked for a new home immediately. We thought they would, and we even had suspicions where they might go. Does that mean we should not have attacked Afghanistan, therefore? The answer is no, we should have gone into Afghanistan even knowing the consequences. Is it possible that they will continue to relocate, each time we take them out? Yes it is. Besides, regarding Iraq, as Caesar said when he crossed the Rubicon, alea iacta est.

Tucker asks, in fine, "Are effective terrorists more likely to result from the war than a new Iraq?" The answer is simple. We don’t know. Yet, we can say that we might have more control over establishing a new Iraq than we will limiting AQ recruitment. It is a calculation that we can set up a better Iraq both for Iraqis and for the sake of our interests, than had existed before. It is a pretty good calculation (much easier to do in Iraq, in my opinion, than, for example Syria or Saudi Arabia), but it is only a calculation. There is no certainty in political matters. We are not mathematicians.

Al Qaeda Recruiting

Anarticle on the boost that the pending war is giving to al Qaeda’s recruiting. Much of the recruiting is taking place in Europe, which was, of course, the staging area for the September 11 attack. Three points:

First, the importance of Europe in the war on terrorism is one of several reasons to doubt the analysis behind "The Pentagon’s New Map," about which Peter blogged on March 14.

Second, the importance of Europe in the war on terrorism is one thing we need to remember in the midst of our anger at the behavior of the French and Germans.

Third, this recruiting may not lead to anything, but neither may our hopes for a democratic and prosperous Iraq. Are effective terrorists more likely to result from the war than a new Iraq?

From Pacifist Christian to Bonhoeffer Christian

Obedient Hound blogger was a pacifist. He was a member of Doctors Without Borders, visited Iraq after the Gulf War and went from pacifism to become, in his words a "Bonhoeffer Christian". (Bonhoeffer was the pastor who was killed by the Nazis because of his involvement in an assassination attempt on Hitler). It is about half-way down under the title, "How a visit to Iraq can change your mind, or, Has the new left become the old right?". It is worth a read. Thanks to Stuart Buck

Bollixed Blix

While we wait for the tanks to start rolling, lat us pause one more moment to savor Hans Blix’s absurd remark to MTV (why is that MTV seems to bring out the most ludicrous in public figures, like Clinton’s straddling what kind of underwear he prefers?) that global warming is a greater threat than weapons of mass destruction.

A new study reported in this week in Nature magazine provides strong evidence in support of a major claim of global wamring skeptics: the rise of carbon dioxide in the atmosphere is a lagging indicator of warming, rather than the cause of warming. More detailed analysis of samples from ice cores finds that CO2 levels increased in the past after warming had already taken place.

It is unfortunate that larger events will drown out this news, as it has a previous bombshell a month ago, in which two highly regarded Australian economists blew a big hole in the key assumptions in the UN’s climate predictions. This house of cards may be starting to tumble down.

Born American, but in the Wrong Place

There is a very interesting conference coming up in Southern California (at Chapman University School of Law) this Friday and Saturday. The subject is "American Citizenship in the Age of Multicultural Immigration." The impressive lineup includes fine minds like John Fonte, John Zvesper, Bill Allen, Tom West, Peter Skerry, Paul Gigot, John Eastman, Viet Dinh, Joel Kotkin, et al. My participation will be rather simple. I will try to explain what my father meant in response to a question when we were about to leave Hungary (I was ten years old). I asked him where we were going. He said we were going to America. I asked why to America, and he said this: "We were born Americans but in the wrong place." Smart guy, my father. No Ph.D.

Public Sentiment in Britain Changing

As you will note from this Guardian report, public opinion in Britain has shifted massively in Blair’s direction on Iraq. This is only a surprise to you if you have been listening to the BBC or CNN, who keep warning us that Blair’s days are numbered. In the meantime, seven out of ten Americans say going to war against Saddam is just fine.

Saddam Look-alike Prospering

Apparently, there is a guy in California who looks just like Saddam. He is a lobbyist who is a sometime actor, portraying Saddam in movies like "Hot Shots." I wish all actors shared his sentiments:

"As an actor," Haleva says, "I hope he goes into exile, and my career extends. But as an American, I hope I get to do his epitaph."

Statesman Tony Blair in the House

Here is Prime Minister Tony Blair in the House of Commons this afternoon, after a few more ministers quit, and before the vote tonight. Very good, very strong, very impressive. I refuse to believe that he’ll lose the vote.

"I believe we must hold firm."

"Who will celebrate and who will weep if we take our troops back from the Gulf now?"

"If we do act, we should do so with a clear conscience and a strong heart. Our fault has not been impatience. The truth is that our patience should have been exhausted weeks and months and even years ago."

And he said that to retreat now, he believed, "would put at hazard all that we hold dearest ... tell our allies that at the very moment of action, at the very moment they need our determination, that Britain faltered. I will not be party to such a cause."

Pocket Guide to Smart Bombs

Cato the Youngest has a very cool "pocket guide" to smart bombs (video, GPS, etc.) that we should be interested in.

Les Anglo-Saxons and France

Paul Johnson
has a fine piece in today’s WSJ that is not available on line (unless you are subscriber). Here are a couple of paragraphs:

"At the heart of the new diplomacy will be, of course, what Charles De Gaulle then (and Jacques Chirac now) bitterly called ’Les Anglo-Saxons’ -- America and Britain, whose common culture and attachments to freedom and democracy make them not just allies, but ’family.’ Building on this sure foundation, the U.S., as the sole superpower, will make its arrangements with other states on an ad hoc basis rather than through international organizations.

We have to face the ugly fact: Internationalism -- the principle of collective security and the attempt to regulate the world through representative bodies -- has been dealt a vicious blow by Mr. Chirac’s bid to present himself as a world statesman, whatever the cost to the world. France is a second-rate power militarily. But because of its geographic position at the center of Western Europe and its nominal possession of nuclear weapons, which ensures its permanent place on the U.N. Security Council, it wields considerable negative and destructive power. On this occasion, it has exercised such power to the full, and the consequences are likely to be permanent."

Iraqi Horrors

This op-ed from the London Times is not for the faint hearted. It is by a Labour MP and recites in graphic detail some of the horrors that Saddam and his sons have been intimately involved in. It is amazing what evil human beings are capable of; and we will be equally amazed at what good we are capable of, even thought the anti-war (or Pro-Iraq) demonstrators will not likely admit it. I should mention that yesterday afternoon, as I was going over to the student center for lunch there were about a dozen anti-war demonstrators standing on a street corner. I knew them all. All faculty, save one fifty year old student. Average age was fifty five. One faculty member said this: "War is bad for children." I replied: "So is tyranny." No answer. There were a half dozen anti-Iraq demonstrators about thirty feet away. They were all students, average age of nineteen. This is, of course, a good sign. It occured to me that these same faculty have been demonstrating for approximately thirty five years; they started young, but they are impotent, they have no children.

Bush Speech

The speech last night giving Saddam and his tyrant sons 48 hours, was a good enough speech. It started a little awkwardly, I thought; he looked like a deer in headlights. But this passed quickly as he got into his sober mode. I especially liked it when he talked directly to the Iraqi people. It was effective. I hope that we broadcast it into Iraqi radio for 24 hours a day for the next few days. It seems to me that he was a bit too gentle with the UN, but, in general he gave a good accounting of the whole problem. I especially liked these two lines:

"The United Nations Security Council has not lived up to its responsibilities, so we will rise to ours."

"Instead of drifting along toward tragedy, we will set a course toward safety."

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Inferior Courts, Inferior Officers

My good friend Eric Claeys raises a serious constitutional challenge to my proposal, first floated in testimony before the U.S. House Judiciary Subcommittee on the Constitution last October (and a week later in the Wall Street Journal), suggesting that the Congress could enact legislation assigning the power to appoint lower court judges to the President alone if the Senate failed to act within 6 months.

As I understand Eric’s position (and the position of Steven Calabresi and Gary Lawson, on whom he relies, and presumably on Lee Liberman Otis, on whom they in turn rely--heady company, to be sure), although the Constitution in Article III expressly refers to lower courts as "inferior," we should treat all lower court judges as "principal" officers because the use of the phrase, "Courts of Law," in the appointments clause itself "strongly implies" that those courts are principal officers.

With all due respect to Eric’s thoughtful post, I think the explicit description in Article III of the lower courts as "inferior" needs to prevail over the implication he would like to draw, particularly when the implication is itself not compelling.

The Appointments Clause allows for the appointment of inferior officers to be vested "in the President alone, in the Courts of Law, or in the Heads of Departments." The "Courts of law" are not the same thing as the particular judges who occupy them, so I don’t think it a fair implication that the Appointments clause itself treats lower court judges as principal officers. (Particularly in contrast with department heads, which are expressly described elsewhere in Art. II (the Opinion Clause) as "principal Officers).

Moreover, the grammatical structure of the Appointments Clause itself suggests that lower court judges are inferior officers. The clause first lists Ambassadors, other public Ministers and Consuls, and Judges of the Supreme Court as officers who are to be appointed only after Senate confirmation. It then addes "and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law" -- such as all lower federal judges, to courts that Congress, under Art. III, "may from time to time ordain and establish." It is with respect to this latter category of "all other Officers" that the appointments clause confers upon Congress the ability to change the default method of appointment: "but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone," etc. (emphasis added).

Eric also contends that lower court judges must be treated as principal officers because they can themselves appoint other court employees and because they exercise the whole of Article III powers, often without appellate review. With respect to the former point, Eric has shifted the line an entire category. He claims that because clerks and bailiffs (whom he terms "inferior officers") can be appointed by judges, the judges must themselves be principal officers. But clerks and bailiffs are not officers -- they are employees, not covered by the appointments clause at all. Such employees are routinely "appointed" by inferior officers throughout government. If they are "inferior officers," as Eric contends, then we have been violating the Constitution for a very long time, because they are often hired ("appointed") by individual judges alone, not by the "Courts of Law," as the Constitution specifies, or worse, by the Court clerk.

The latter point is a closer call, but the fact that the decisions of lower court judges often do not get reviewed does not mean they are unreviewable. The decision by an appellate court, including the Supreme Court, NOT to review a lower court’s decision is itself a supervisory power. As the result, all lower court federal judges are supervised, more or less loosely as the need arises, by the Supreme Court. It is the potential for supervision, not the fact of actual supervision in any given case, that has weighed heavily in the Supreme Court’s recent Appointments Clause jurisprudence.

Although my proposal created quite a firestorm some time back on the Conlawprofs listserve (I was accused of playing "constitutional hardball"!), I am not alone in taking this position. See Akhil Amar, "A Neo-Federalist View of Article III: Separating the Two Tiers of Federal Jurisdiction," 65 B.U.L. REV. 205, 235 n. 103 (1985); and William S. Dodge, "Congressional Control of Supreme Court Appellate Jurisdiction: Why the Original Jurisdiction Clause Suggests an "Essential Role," 100 YALE L.J. 1013, 1019 (1991).


Appointment of "Inferior Officers"

I hate to disagree with John Eastman on anything, but I think the answer to Alt’s question has to be "no." For those of you who aren’t separation of powers nerds, Alt’s question, and Eastman’s proposal to let the President appoint judges as "inferior officers," raise a constitutional issue under the Appointments Clause, Art. II, sec. 2, cl. 2. That clause requires "Officers" (also known as "principal" officers) to be appointed with the Senate’s advice and consent, but it lets "inferior Officers" be appointed without advice and consent -- directly by the President, "the Courts of Law," or department heads.

Whatever you think of the way in which the federal courts treat other structural provisions in the Constitution, the courts have been pretty sensible when it comes to distinguishing between principal and inferior Officers. An officer isn’t "inferior" simply because Congress and the President pass a bill calling the officer "inferior." Substance has to win out over form when reading a constitution, especially in separation of powers law, or else the government does end-runs around the basic structure very quickly. Once you accept this, a federal district or appellate judge just has to be a principal officer within the judiciary. Federal judges can’t be fired. Even the lowliest district court judge gets to apply the whole of the Article III judicial power in the case before him if there’s no appellate review, and in most cases there isn’t. Same goes for appellate judges, whose decisions are unreviewed 99% of the time, even when one of the parties does ask the Supreme Court for review. Nice work if you can get it.

The Appointments Clause confirms all this in a roundabout way. Whoever the "inferior Officers" are in the judiciary (clerks and bailiffs seem like two good examples), the Clause allows the "Courts of Law" to appoint them without checking with the President or the Senate. (As long as Congress has already established such an appointments process by law.) If the courts of law are appointing inferior officers, it seems like a pretty safe bet that they must be principal officers themselves.

To be sure, Article III, sec. 1 does indeed vest the national judicial power in the Supreme Court "and in such inferior Courts as the Congress may from time to time establish." But it just can’t be the case that inferior courts are automatically inferior officers. Most people, including strict constructionists, would agree that the term "inferior" can mean different things when describing different nouns in different contexts. Especially when the Appointments Clause speaks of the "Courts of Law" in a way that strongly implies that those courts are principal officers. Federal appeals judges, it seems to me, can be "principal" for the purposes of figuring out whether they’re important enough that the President must appoint them, but then "inferior" once they’re appointed, for the purposes of figuring out where they fit in the Article III food chain.

For those of you who are interested, constitutional law professors Steven Calabresi and Gary Lawson treated this issue in an 1992 article in the Yale Law Journal, volume 102, pages 255-77, specifically on page 275 n. 103.

If I’m belaboring the point, it’s really important to get issues right in separation of powers law. Mistakes in this area can have huge unintended consequences. Each year in my administrative law class, I teach Humphrey’s Executor, in which the so-called "conservatives" on the Court declared that separation of powers doctrine didn’t stop Congress from preventing President Roosevelt from firing a commissioner on the Federal Trade Commission. At the time, the decision was seen as a blow to President Roosevelt; it was decided on the same day that the Court handed down a decision declaring unconstitutional the National Industrial Recovery Act, the centerpiece of the first New Deal. But New Dealers quickly seized on Humphrey’s Executor as authority for the principle that there are no constitutional problems with government-by-independent-experts. So understood, the precedent sucked the life out of separation of powers law until the 1970s.

With respect to the standoff on judges now, there’s a simple and constitutional fix -- make the Senate revise its rules to allow for expedited consideration of nominees if there’s a stall. The unconstitutional fix could easily have unintended consequences. If the Appointments Clause lets the President appoint federal judges, it also lets courts of law appoint federal judges. We can all think of at least one federal judge who should not be allowed to pick his replacement.

Iraqi Troops Deserting

A paper from London reports that between 20,000 and 30,000 Iraqi troops have already deserted. And another London paper reported yesterday that Saddam’ most important Kurdish ally, the leader of the Herki tribe, deserted him.

Cultural Literacy

Terrence Moore offers us another nice piece on education from "The Principal’s Perspective." This one focuses on cultural literacy. Here’s the start of it.

"The classical view of education holds that human beings are thinking creatures. Unlike other living beings, humans live by their intelligence. We want to know things. Specifically, we want to know the truth. From birth, the curiosity of children is astounding. Children observe everything around them. They pick up language at an astonishing rate. And as soon as they begin to speak, they ask the question "What is it?" of everything that catches their attention. Children demonstrate what is true of all people: we are natural learners. Therefore, any plan of education should take advantage of young people’s natural curiosity."

Ben and Jerry’s or American Ice Cream

Apparently, there is a company that claims to produce great ice cream and, unlike with the other brand, they are not funding left-wing causes. I haven’t tried it, but I do love the names of their flavors. Some examples: Iraqi Road, Smaller Governmint, Peanut Malaise, Clinton Impeach, I Hate the French Vanilla, and Nutty Environmentalist.

The Strategy of Obstruction

For a little lighter Monday morning fare, here is a parody I wrote for NRO. In honor of the warmer weather, I would read this one with an iced mocha. 

Romanian Example

Ion Iliescu, the President of Romania writes with the hope that Iraq will be able to emulate Romania’s movement from tyranny to freedom. Just a few months after Ceaucescu was overthrown, I spent hours in Bucharest listening to Iliescu pontificate as he changed from being a communist to becoming a socialist. Ex-communists won the first elections, hands down. I was sceptical. I even thought that war between Hungary and Romania was possible in early 1990. Both he and Romania have come a long way.

The pro-Fascist Left

Martin Gross asks why the demonstrations, why the left is supporting fascist tyrannies. Thoughtful.

"The left is angry and resentful of the string of victories of America under the center-right governments of Ronald Reagan, George Bush Sr., and now under the spiritual-political heir to the mantle of Mr. Reagan, George W. Bush. They intend to see these victories stop, lest the world continue to mimic the democratic free-market capitalism of the United States, especially an America headed by relatively conservative interventionist governments.
The left has witnessed defeat after defeat. They have seen the Soviet Union collapse, to be replaced by a capitalist democratic Russia, creating more than dozen free-market, generally conservative, governments of Eastern Europe. They have witnessed China — still a totalitarian power — move inexorably into the capitalist orbit. They have seen one left government of Continental Europe after another fall to center-right governments, whether in Italy, Spain or elsewhere."

Post-Iraq European Developments

William Safire makes some suggestions on what to do after the war. For example, move our troops from Germany to Bulgaria, move NATO HQ from Brussels to Budapest. Thoughtful, everything is in play. 

France’s Role in the World

Charles Krauthammer writes in Time about how France perceives itself in the world: giant killer. That France has backtracked a bit is an indication that this gambit hasn’t quite worked yet; never mind that Americans are now aware of what the French are up to and they no longer consider France an ally. Here is another view of the same theme.

Polls Support War

CNN/USA Today/Gallup reveals that 64% of the American people favor war against Iraq, the highest since November of 2001, and up by 5% from two weeks ago.

The Beginning

The U.S. has advised UN weapons inspectors to pull out. Here is a Washington Post report on psy-ops operations. "The Central Command has received anecdotal reports from journalists inside Iraq, the official said, that the leaflets are starting to show up in Baghdad, and that coalition radio is among the most popular in Iraq with young people."

Military Buildup in the Middle East

Here are the numbers of American, British, and Iraqi soldiers in the area. This is from Saturday’s Asia Times. Simple, easy to comprehend, and roughly correct.

Bin Laden Niece a Pop Star?

Waffa bin Laden (her father is a brother to the evil one) is a potential recording star, according to this Observer story out of London (via NRO Corner). She is described as an American trained lawyer, and a player on the London party circuit; mini skirts, booze, the whole deal, and will have a single out by the end of the year. She is said to be working with one of Madonna’s producers. I think we got Stalin’s and Khruschev’s daughters more honestly, but I’ll take it.

Azores Press Conference

I didn’t think there was too much to the press conference (here is the transcript)
itself; although not much new was said, it did show resolve. The meaning of it will revolve around this sentence from President Bush: "Tomorrow’s the day that we will determine whether or not diplomacy can work." The question is, what does this mean? Does it mean that all the phone conversations over the last week (and those that took place today or tonight) will have born some fruit? If we think that we will have at least nine votes in the Security Council in favor of some resolution (and disregarding the possibility of a French veto) that might lead to war but give Saddam a few days to surrender, then we will have the vote. If we don’t think we have such a majority then we will not have the vote and, most probably, announce--as early as Monday night--that we will give Saddam a few days to leave (this will also allow the press, inspectors, et al, to leave), before we go in. There is a remote possibility that the French will push for a compromise of sorts at the last minute--give Saddam, say, two weeks--but I don’t think this will be taken seriously because there is no trust left. If President Bush delays any longer than one week, I believe he will have made a grievious mistake. So far, in my opinion--despite the diplomatic difficulties of the last two weeks--the administration has not yet made any strategic mistakes. War, therefore should take place sometime between March 21st to March 25th.

The Anti-War Movement

I haven’t really taken note of these so called peace demonstrations (and not only because organizations like ANSWER are simply anti-American front groups) and I will not make a habit of it, but I do think that this op-ed by Ralph Peters nicely lays out why they are wrong, if not foolish.

American Power in the World

Ralph Peters is interviewed at length in the current issue of American Heritage. If you don’t know who he is, he is fully identified on the first few pages. He is a serious person. He considers everything, geopolitics, empires, Islam, the basis of wealth, etc. There is much food for thought and, inevitably, much that can be disagreed with. Yet, this is very thoughtful stuff and I recommend it heartily. Great read.   

Clinton’s Dereliction of Duty

President Clinton’s military aide from May 1996 to May 1998 (he carried the nuclear "football") has written a book in which he claims that Clinton, among other things, lost the nuclear launch codes tha day the Lewinsky scandal broke, how he hesitated on catching bin Laden, the contempt that Hillary had for the military, etc. This is the note on the book from U.S. News & World Report

Democratic Contenders in California

A number of contenders for the Democratic presidential nomination addressed the California Democratic party. It seems that Howard Dean’s attack on Bush’s Iraq policy got the rowdiest reception. This comment by the spokesman for the Republican Party is good, and shows the problem the Democrats have, and are not yet overcoming (as you can see from the reception that Senator
John Edwards, who supports Bush’s Iraq policy, received):

"The Democratic presidential candidates in town this weekend are telling liberal activists what they want to hear, but they’re not offering a message that resonates with mainstream voters. Their message appeals to only two audiences -- the most liberal base of the Democratic Party and the French. And the majority of voters in America don’t identify with either one."