Occassional reflections of a moderate (hey at least I think I am)

Wednesday, October 19, 2005

Judge violates Code of Judicial Ethics to support Miers

Admittedly, this is kind of a minor point but it has gotten under my skin a bit and wanted to get my thoughts down.

By now we are all aware of the other shoe dropping on the Miers nomination. As John Fund reported, two judges participated in a conference call. According to Fund, Dobson introduced them by saying "Karl Rove suggested that we talk with these gentlemen because they can confirm specific reasons why Harriet Miers might be a better candidate than some of us think." In addition, it is fairly clear that Kinkeade has been active in supporting the Miers nomination.

Judge Hecht's participation does not bother me that much. He is a state court Judge and, given the laws as they are, he has to be a political animal. Judge Kinkeade on the other hand should not be involved in the process the way he has been. I am not saying this from sort of partisan perspective. Rather I am saying it from the perspective of the governing ethical code.

The ethical conduct of federal judges is governed by the Code of Conduct for United States Judges. When a Judge is commenting on the nomination of a judge or justice there are competing canons in the Code. Canon 4 (A JUDGE MAY ENGAGE IN EXTRA-JUDICIAL ACTIVITIES TO IMPROVE THE LAW, THE LEGAL SYSTEM, AND THE ADMINISTRATION OF JUSTICE) permits judges to participate in the betterment of the legal system. On the other hand Canon 7 (A JUDGE SHOULD REFRAIN FROM POLITICAL ACTIVITY) admonishes federal judges from participating in the political process. Further, Canon 2 (A JUDGE SHOULD AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY IN ALL ACTIVITIES) admonishes Judges to not be character witnesses if it can be avoided. Just reading these canons, one could throw their hands up and say it is questionable whether a sitting judge should voluntarily add his voice in support of a nominee.

Luckily, the Committee on Codes of Conduct is authorized by the Judicial Conference of the United States to publish formal advisory opinions on issues frequently raised or issues of broad application. They have actually issued an advisory opinion on this matter. In that opinion, it tells federal judges that they may participate in the nominating process by cooperating with "appointing authorities" which means "the President and Senators and their selection committees or commissions." In addition to constraining who the Judge can talk to, the advisory opinion goes on to admonish judges that "the judge should not lend his or her name to any publicity campaign for any candidate."

I know this is peripheral to the main issues in the Miers nomination but it does confirm the current culture that "ethics are optional."

Saturday, October 15, 2005

Letter to Sen. McCain re: Ohio

Senator McCain:

I am an Ohio voter. I had the pleasure of voting for you in the 2000 Republican Presidential primary. I look forward to the opportunity to vote for you again in both the 2008 Presidential primary and the 2008 general election.

I am writing because of the juxtaposition of two recent endorsements you have made. First, you have come out on record as supporting Proposition 77 in California. According to what I have read, this proposal will take district drawing out of the hands of the legislature. Second, you have come out in support of J. Kenneth Blackwell to be Governor of the State of Ohio. I understand why you would support Mr. Blackwell.

My concern is that here in Ohio we have a number of measures on the ballot which are aimed at reforming the way elections are conducted. Among the measures is Issue 4 which would take district drawing out of elected officials hands. I understand why Republicans do not want to reform the system in Ohio; they have had control over the district drawing and think they will on into the future (in part due to the line drawing).

I was not planning on writing to you until I saw the following quote from Mr. Blackwell in today’s Columbus Dispatch. “Blackwell said he opposes all the election-reform issues, but singled out State Issue 4, which would create an independent nine-member commission to redraw congressional and state legislative district boundary lines. . .
‘It’s just politics and there’s nothing wrong with that,’ he said.”

Anyone who would suggest there is nothing wrong with politics in the State of Ohio is not paying attention. Yes, the process has given us Republican control for the past decade and a half. However, the system has also given us one of the most corrupt State governments around. Here is a partial list of evidence:

1. State Treasurer used his office to funnel investment contracts to contributors.
2. House speaker finds a way to thwart tort reform because of contributions received from out of state trial lawyers.
3. Various politicians skirt campaign finance laws by collecting money in county party coffers (largely unregulated) and making contributions to other party funds.
4. Investing state moneys in coins because it is pushed by a contributor.
5. Governor breaks law by taking gifts from people he regulates.

I will leave it at five, but I won’t even mention Bob Ney, since you know more about his antics than I. It is so bad that when John Kasich was discussing a possible run for governor he was quoted as saying that he would run only if the “party commits to ending pay-to-play politics.” It is pretty bad when one of our own stalwarts (and my former Congressman) has to put it in those terms.

It would be one thing to be against the proposals for reform but have another platform to address the clear inadequacies of our system here. But no one opposed to the proposals are. They may propose band-aids but nothing that addresses the fundamental problem of the corrupting influence of money in politics in this State. It is a state that would make Jack Abramoff comfortable.

I know there is nothing you can or will do about this. I do not expect (or want) you to do anything vis a vis your endorsement of Mr. Blackwell. I guess more than anything I wish we had someone here would put competence over corruption; good governance over party.

Thursday, June 30, 2005

Do the 2 parties have different views on "the budget"?

Megan McArdle has a very interesting piece on “Making Markets in the political economy”. The piece looks at the current state of the democratic party and its prospects for success. What I took away from her comments can be summed up in two sentences
1. In order to be successful the Dems need to do more than just repackage and remarket their current ideas/assets.
2. Even if marketing were the key, they have the wrong lead marketer (Dean).
To the extent that is what she was saying, I couldn’t agree more. I would quibble with a few minor points that she makes, though the points themselves are not minor.

One thing she notes is
On big questions, such as taxes, the budget, the military, or what have you, the voters have a rough but workable idea of the differences between the two parties, and there is no evidence that there are systematic differences in their misperceptions of their politicians (which is to say, they believe some wrong things about Republicans, but about an equal number of wrong things about Democrats). The problem is not ignorance, or that they've been lied to. It is that they don't like what Democrats stand for.
This may a bit nitpicking but how could you include “budget” in the things that people have a good idea on the differences between the two parties? I suppose if one means “budget priorities” (e.g. Republicans prefer school vouchers, Dems support NEA programs) there is a point. If, however, one means “size of the budget” I do not see how one credibly can argue that the positions of the two parties are distinguishable.

It is true that you could say that (in general) Republicans believe in smaller budgets. I can say I believe in Santa Claus, it doesn’t make it so.

A somewhat related point is that she chides Dean by saying: “Howard Dean, like a lot of my acquaintances, seems to believe that the only reason Republicans keep winning is that people somehow don't understand what they're up to.” Let me first say that I find Dean shrill. Further, I find that many people who support the “people don’t understand” theory come across as paranoid or condescending. That said, when some very influential conservatives support a deceptive (“starve the beast”) approach to shrinking the federal government.

As this Cato Institute editorial (from December 2004) suggests, the “starve the beast” mentality is creating a crisis and “small government rarely does well in a crisis”.

Given the looming budget deficits there are four possible responses:

1. There could be massive spending/benefit cuts for a substantial portion of the population.
2. There could be significant tax increases.
3. There could (continue) to be significant budget deficits.
4. The U.S. could sustain above average growth for an extended period of time (of course, in order for growth to be used to balance the budget, lawmakers still need to exercise restraint on future spending).

I think the size of the tax increase after the crisis created by the “starve the beast” mentality will be strongly correlated with the size of the crisis itself. I suspect that the majority of the burden will be borne by the top income earners.

Kelo and analogies

As I said recently, the push to have Justice Souter’s house taken by eminent domain is a truly stupid idea . A good read is Eugene Volokh’s observations about this Dave Hoffman Prawfsblawg piece.

Prof. Volokh notes that Prof. Hoffman’s analogy to “mugger [going] to Justice Scalia on the street and [asking] for his wallet, on the ground that the Justice has, through his jurisprudence, eroded the protection against seizure on the thoroughfare” is not apt. I agree that the analogy is not apt, but I have been wondering what an appropriate analogy might be. So here is my first attempt:

Bowers v. Hardwick (ignoring Lawrence of course). As I recall, the statute in question in that case criminalized both homosexual and heterosexual sodomy, though the only question the court addressed was homosexual sodomy. What if a homosexual activist was upset by this decision and petitioned his local police force so that when a member of that majority opinion visited Georgia with his spouse, the couple is surveilled (let’s assume legally) and caught in an illegal act?

I have no problem with the rhetorical flourishes surrounding the “poetic justice” angle of the story. It may be a perfect thing for a libertarian/conservative Michael Moore wannabe. And (other than concerns about “punishing” or intimidating justices) I see no problem with Justices being subject to the laws they enact.

If, however, one thinks that not only was Kelo an affront to constitutional rights but also an offense to a human/inalienable right, then I do not see how one can justify actually pursuing it. To do so would be to say “I am going to make you pay for your errors by making you less human.” At the extreme, could a death penalty opponent take solace if a Justice who upheld the death penalty was put to death? Perhaps none of the proponents think that there is anything but a state granted right at stake.

Tuesday, June 28, 2005

A truly stupid proposal

"This is not a prank." Um, BULLSHIT ! First off, ask yourself, why would a media company (based in California) that is trying to raise $300 thousand to become the “pro-freedom counter” to Michael Moore, shift gears to try its hand at the hotel business in New Hampshire. I suspect that it is a publicity stunt. Second, if they were serious wouldn’t they include some sense of how much money they were willing to pay?


I get the whole “poetic justice” or “chickens coming home to roost” angle. I understand people saying things like: "I hope the project moves ahead." However, if one really does believe that a greater deference to property rights is appropriate than that expressed in Kelo, then wouldn’t a more productive (yet still sarcastic) comment be something along the line of “I hope the good people of Weare have more respect for private property than the folks in New London.”

At the Conspiracy, Prof. Barnett posted a link “facetiously”. After reading how the comments were heading he decided to update to add:
Retaliating against a judge for the good faith exercise of his duty is not only a bad idea, it violates the holding of Kelo itself, for the intent would be to take from A to give to B, in this case to punish A. I had considered deleting this post altogether--and perhaps this would still be a good idea--but, since other blogs had linked to it, decided instead to add this postscript.

After he added this, another thoughtful blogger chimed in with the following observations (1) under Kelo Souter’s house can be taken {I suspect that, with the proper record, he is probably right}, (2) Souter is like “Hitler, Stalin and Bin Laden”, and (3) not only can Souter’s house be taken, it should be taken. What I love is that after Prof. Barnett’s comments, this is the author’s response:
They [the Justices] are cautious, however, only because they fear the retaliation that Barnett wants to avoid. If they were sure nobody would retaliate by impeaching them, armed resistance, court-packing, and so forth, they would be more honest and more aggressive. Thus, if we go after Souter’s house now, we may induce the Court to retreat a bit, and preserve a few freedoms that we will otherwise lose.

That is right, the property should not be taken for the symbolism or the “poetic justice” of the situation, the property should be taken to intimidate the Justice. Great!


I don’t mean to get into the specific procedures here but just conceptually. The first thing that you need is unwilling seller. If you are serious about this silly project, get an offer to Justice Souter. Who knows, maybe the price will be right.

Second, you need a government entity willing to exercise eminent domain. This breaks down into at least three considerations. First, there are some places which prohibit takings for economic development purposes in most instances. Even if not prohibited by state law, the condemning agency could look to the values of the community and refuse to exercise eminent domain. It seems to me that if you are the mindset that Kelo does not give the proper deference to property rights, then you should get active with your local agencies and make sure they understand the importance of the matter.

The second aspect of local oversight relates to the surrounding area. What is Souter’s house zoned? Does a “hotel” fit the surrounding uses?

The third aspect relates to the economic benefits that may result from the project. How much does the Town of Weare need a hotel? I am guessing that it is not as much as New London wanted a $270 million dollar investment that would bring high-tech, high-wage, low pollution jobs but I could be wrong.


Ok, but here is why I am really pissed. I am going to have to watch representatives of this little town answering questions. This in and of itself doesn’t bother me. The problem I have is that there is some resident in that Town who is planning to have a fence, a deck or an addition to their house built. But they won’t be able to get a hold of the right person because the code enforcement officer is responding to media requests. And if Town officials ignore the asinine and ill prepared proposal? My guess is that the good folks at FreeStar media will make a story about how the "Goliath" out-of-control government of the Town of Weare is being confronted.

Monday, June 27, 2005

Santorum went hunting in Boston rather than taking shots closer to home.

I ran across this nearly three year old editorial by Rick Santorum (via Capitol Buzz via Atrios ). In the piece Santorum observes:
[W]hile it is no excuse for this scandal, it is no surprise that Boston, a seat of academic, political and cultural liberalism in America, lies at the center of the storm.

I suppose that this proposition may be insulting to those from Boston or even academic, political and cultural liberals. However, this fails to identify others who may be offended by the notion that Boston liberals are to blame for the sex abuse scandal. Perhaps among those offended by the Senator’s comments might be the young men who were abused by Priests from the Diocese of Pittsburgh.

In 1990, Mr. Santorum was elected to the House of Representatives from the South Hills of Pittsburgh. I used to attend the same Roman Catholic Church as he did. I cannot recall if he was a member of the parish in 1988 (or prior to that) but even if he just moved into the area in 1990 it would have been impossible for him not to have been aware of the fact that a Roman Catholic priest assigned to the parish was, by 1990, in jail serving time for molesting young boys. I cannot recall this priest’s educational background but I do not recall him being a product of New England liberalism or any other liberalism for that matter.

All that being said, I do think that the approach that Bishop Wuerl has and continues to pursue in these matters is clearly distinguishable from (and superior to) that of Law’s. At some peril to his own career and, in some instances, at some peril to the Church’s legal position he has put the families need for pastoral care above those of pedophiles.

Friday, June 24, 2005

What happens if credit card rates do not decrease as a result of the bankruptcy law?

Prof. Zywicki is revisiting the bankruptcy reform act and, specifically, its impact on credit card interest rates. He notes that after the law was passed credit card rates “shot up above those for personal loans” for the first time since the rates have been tracked by the source he uses. He points out that this discrepancy might be (is likely?) caused by the fact that many portions of the law do not take effect until later this year and that there has been a surge in bankruptcy filings by folks trying to get treated under the prior law.

He concludes by saying “if economic theory holds equally well once the law takes effect, we can expect lower credit costs in the long run.” He, of course, is correct with a few caveats. Most notable among these is that there needs to be real competition among the credit providers and that they will not act like a cartel. In any event, this is an empirical question (though I am not convinced the “personal loans” rate vs. “credit card” rate is the proper comparison) which we will have an answer to in six months and from there on out.

One thing I am curious about is: What happens if credit card rates do not decrease as a result of the bankruptcy law?

Tuesday, June 21, 2005

"Rorschach Test"

The TaxProf (via Andrew Sullivan ) points to this this Tax Foundation report indicating that the number of Americans who pay no income taxes is at an all time high. I think the report’s observation that the fact that so few are paying taxes is “[O]ne of the biggest obstacles facing President Bush’s Advisory Panel on Federal Tax Reform" is very true.

What is interesting to me, however, is how these facts are a kind of “rorschach test”. Do you look at the data and worry “that as the number of people paying taxes dwindles, they could become an abused and persecuted minority” or do you worry that the underlying income disparity "is not the type of thing which a democratic society - a capitalist democratic society - can really accept without addressing" ?