RadicallyCentered

Judge violates Code of Judicial Ethics to support Miers

2005-10-19T11:32:00.000-07:00

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."

Letter to Sen. McCain re: Ohio

2005-10-15T09:21:00.000-07:00

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.

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

2005-06-30T14:24:00.000-07:00

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

2005-06-30T07:38:00.000-07:00

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.

A truly stupid proposal

2005-06-28T23:06:00.000-07:00

"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?

RHETORIC

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!

REQUIREMENTS FOR EMINENT DOMAIN

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.

WHY I AM REALLY PISSED

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.

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

2005-06-27T11:50:00.000-07:00

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.

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

2005-06-24T18:44:00.000-07:00

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?

"Rorschach Test"

2005-06-21T08:09:00.000-07:00

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" ?

Patriot Act Yields results against the President's "Enemies"

2005-06-20T07:44:00.000-07:00

I confess that I do not know all I should about the Patriot Act. There are arguments on both sides I am sure. That said, this LA Times editorial sure makes me like the Act less. (Via Kaus )

For those who don’t want to click through, short version: Cuban-American is dean at the U.S. Naval War College. Being moved by the previous Pope’s position toward Cuba, in the past five years or so he has come to side with anti-embargo advocates. This has upset many friends of the president. He goes to visit family in Cuba on a legal trip. While there he has an affair. He comes home and gets prosecuted for lying about the purposes of his trip. How did the government get the information? “Sources close to Coll believe that his liaison was discovered through secret wiretaps by the Justice Department at the behest of influential Cuban hard-liners.” {In an effort to be “fair and balanced” I include a link to this Washington Post which suggests that the affair was the “real reason for the trip” and that the disclosure of the purpose of the trip “came out during a standard debriefing at the Naval War College”. I link, you decide}

So the Patriot Act may not yield many arrests of terrorists, but at least it is nabbing the President’s enemies who are having extramarital affairs.

Schiavo questions

2005-06-18T12:34:00.000-07:00

Just a few questions and a couple of letter suggestions with regard to the latest round of the Terri Schiavo matter. My questions are not just what is Jeb Bush drinking (as The Moderate Voice puts it) they are actual things that I am confused about.

First, in the letter Jeb sent to the state attorney, he says he is urging an investigation “in light of this new information”. What “new information”? One of the comments at TMV points to this St. Peteresburg Times article from today (6/18/2005) which lays out some of the facts behind the timeline inquiry. Here is my summary: In 1990 Michael Schiavo called 911, in 1992 he gave testimony as to what time he called 911, in 2003 he told Larry King that he called 911 at a different time. So what is new? The only thing “new” is the fact that the medical examiner noted that there were different times reported over the course of the 15 years. Certainly all these facts were known by at least 2003. When she was first admitted to the hospital was Michael questioned at all?

Second, the article referenced above (and other articles I have read) notes that Jeb Bush met with the medical examiner before the medical examiner’s report was released. Just a couple of questions here: What was said at that meeting? Did the report change at all from before the meeting?

Third, if Michael was really trying to make sure his wife died, wouldn’t he have (as Pandagon points out) just waited until she died before calling 911? If he had done something to her it would be imperative for him that she die. Plus, given the hour and that he had come in late, couldn’t he have just said “I slept through it and woke up and found her dead.” But let’s assume that there was a delay. It is pretty clear from the medical examiner’s report that there is nothing to prove that Michael did something to cause her situation. So that leaves the possibility that he is guilty of delaying his call to 911. As a lawyer in the article above notes, that is a tough case to make.

So those are my questions, here are the two letters that I would like to see written:

First, a letter to the State’s Attorney asking for an investigation into the Medical Examiner’s conversation with the governor prior to release of the M.E.’s report. Did the governor use his office or the threat of discipline to have any part of the report changed. Or, more basically, did the report change as a result of the meeting.

Second, a letter to the State’s Attorney asking for an investigation into whether Jeb Bush aided and abetted his daughter’s drug use, whether he destroyed evidence of the drug use or obstructed justice in any investigation into his daughter’s drug use. Of course this second letter is mean spirited and petty, then again so is the letter in the Schiavo matter. (On the other hand, it is more recent and therefore more likely to yield results if investigate and it may have some basis in fact .

More Filibuster talk

2005-06-17T10:55:00.000-07:00

Yesterday I wrote about this Todd Zywicki post regarding political fall out from the filibuster compromise. I thought that a big chunk of it was political hackery. Today he revisits the subject and I think his piece today is much better.

He starts by acknowledging that “[S]ome have raised the fair point that some of the criticisms that I linked to in that post may actually be more about ideological views on votes on judges than the filibuster deal itself, especially for Democrats who signed onto the deal.” While this is not a criticism I leveled, it is well put because most of the editorial that he had linked to was devoted to Salazar’s vote on Justice Brown and only in passing to the role Salazar played in the filibuster compromise.

Prof. Zywicki today turns his attention to the political fall out for Sen. DeWine from Ohio. {As an aside, I think Pat DeWine was hurt more by his personal foibles and by a large field than he was by who his father is.} I was going to write about DeWine yesterday because I think that he would illustrate my point from yesterday that editorial writers do not necessarily indicate fairly whether a politician is in trouble “back home”. While I cannot find the editorials (because you have to pay for archives), my recollection is that both the Columbus Dispatch and Cleveland Plain-Dealer had favorable editorials regarding DeWine’s participation in the filibuster compromise. According to Prof. Zywicki’s logic from the piece I discussed yesterday, that would suggest that DeWine is not in trouble back home. This is not the case. I do believe he is in some trouble among his own party in Ohio.

That said, the result of that “trouble” will most likely be minimal. He may face a primary opponent. But if Arlen Specter (who is much more liberal than DeWine) can beat back a conservative primary opponent, I think DeWine should probably manage. Of course DeWine may be in trouble in the general election which in Ohio means that the Dems might only lose 56-43 in the senatorial race.

Two other points I wanted to make: First, worrying about how the filibuster compromise hurts the Dems is really pretty irrelevant (unless you are going to say that at least five of them are so hurt by it so as to vote with Republicans for cloture). Second, with regard to the Republicans (assuming it is only these 7 Senators) it only takes two of them to leave the group in order to blow up the deal. I think that Prof. Zywicki has identified the 2 most likely to flip both for ideological and political reasons.

(The Maine Senators, Chaffee and McCain are helped politically by it. Warner from VA, I believe, is part of the group because of his concerns about what the nuclear or constitutional(coughbullshitcough) option would do to the Senate.)

The Partisan Conspirator

2005-06-16T09:36:00.000-07:00

Todd Zywicki is striking me more and more like a wannabe political hack than a sharp legal mind and valued member of the Conspiracy. In his latest piece he says he is “reading increasing reports about home state, grass roots fall-out from the filibuster deal. . . . Especially interesting is the difference in perception of the deal back home versus inside the beltway.”

One link he provides is to a story out of South Carolina where the State Republican party chairman is talking about the hot water that Lindsey Graham is in for participating in the compromise. This story actually does add something, it provides some data, it says that Graham has some trouble with people who voted for him and supported him. The other link he provides is to an editorial from the Colorado Springs paper that blasts Salazar as a “run-of-the-mill liberal”. So Graham is in trouble back home because people who voted for him and supported him in the past are mad at him and Salazar is in trouble back home because an editorial writer thinks he is a liberal?

But this is not your average Colorado Springs editorial writer. This author (Sean Paige) works for an avowedly conservative news organization, Freedom Communications (which incidentally offers this summer internship through George Mason University’s Institute for Humne Studies and, oh by the way, Prof. Zywicki is a faculty member of the Institute). Mr. Paige probably knows more about “the beltway” than Colorado Springs. In his career he has worked for conservative politicians (such as Alan Keyes) and conservative publications (including a DC weekly owned by the publisher of the Washington Times).

Of course there is nothing wrong with any of this except that Prof. Zywicki refers to the opinion piece for proof that there is adverse reaction “back home” for Salazar. There may, indeed, be a backlash against Salazar for his position but I hardly think referring to someone who most probably did not support him is the best evidence of that.

Save the Filibuster by Filibustering Bolton

2005-05-13T15:59:00.000-07:00

Whenever the Republicans who favor the nuclear option talk they are able to make it out like the Dems are doing something “unprecedented” in blocking the nominees. Part of this comes from the fact that there is no precise definition of what a “filibuster” is (sure there are cloture votes but that is only part of the equation). Part of it is because they are (very good) liars.

If you point out to them that some of Clinton’s judicial nominees who took four years or more to confirm they will say that either the nominees were ultimately given an up or down vote which proves that there was not a filibuster. With this reason, couldn’t the Dems argue, you really can’t call what we are doing a filibuster until the end of GWB’s term?

Or they might say that they used blue slips. Of course they don’t mention how blue slips have changed since GWB has become president.

Or they say, we used tools of the majority and they could not get out of committee. Of course not answering the question, if a majority was truly opposed, why would they need to block an up or down vote.

So here is why Bolton should be filibustered. Because filibustering him is on “all fours” with prior unassailable Republican action. Namely the filibuster of Henry Foster. If Henry Foster doesn’t have the right to an up or down vote to be a (virtually) ceremonial federal officer then why should any nominee have such a right?

Of course they will respond, judges are different from other presidential nominees. I would love to know where that language is in Art. II, Sec. 2, Clause 2.

Actually I think that a President deserves more deference in appointees to his administration than to judicial posts but I would be fine to agree the deference is equally limited.

I am sure the Republicans won’t let Bolton “trigger” the nuclear option but one can wish.

Just Taxation

2005-05-02T15:14:00.001-07:00

Matthew Iglesias points me to a very important question being discussed over at Unqualified Offerings namely: “Would you identify any particular level of taxation as unjust?”

Here is my quaint (but unsexy) answer: The level of taxation is unjust if it results in revenues to the State that exceed the amount of money the State needs to perform the operations that the State has undertaken.

The inverse of this is that it is unjust for the State to spend more than it takes in, thereby running up substantial structural deficits.

(In neither instance would I require “exact” balancing. And I do believe that in some instances deficits are a good thing for short periods.)

The comments at both Yglesias’ and Unqualified Offerings’ site are interesting. Some of them demonstrate why some liberal arguments are like nails on a chalk board to me. For instance, Yglesias himself worries about the dreaded “sodomy tax” and a commenter at Unqualified Offerings tries to turn the question around by asking: “Is there any particular degree of wealth difference between the wealthiest and poorest quintiles of the population that’d strike you as unjust/immoral/unfair?”

It seems to me if you really want to turn the question around you should ask: “What level of government activities should be going on?” This used to be the traditional conservative vs. liberal debate. I once told my father (who is a consistent Republican voter) that conservatives don’t believe in lower taxes, they believe in smaller government and one of the consequences of smaller government is that you need less tax revenue to support government operations.

Some commenters at both sites say, quite rightly, that the necessary level depends on the circumstances. If we are at war, they argue, the level of justification is much higher to tax people at a high rate. This is the “conservative” argument that national defense is a core item that the State must provide. The difficulty with the current Republican Party is that the notion of what is “core” has expanded greatly. Is it unjust to tax people at 40% so that we can have a medicare prescription drug benefit? I would suggest that if it is, then we should look at getting rid of the drug benefit rather than complaining about actually paying for it. If democrats were derided as “tax and spend liberals” I wonder what moniker we should hang on the current administration and congress? “Debt Loving Republicans”? (If the liberal obfuscation is like nails on a chalk board, I cannot begin to describe how I react to the failure of Republicans to demonstrate anything resembling responsibility.)

My brother, who is considerably more “conservative” than I am, once argued to me that taxation for purposes of redistribution was “immoral” because it has the effect of the beneficiary “enslaving” the person paying the tax. Whether or not he is right, it seems to me this argument is even stronger inter-generationally. If we expend more than we have to spend we are “enslaving” subsequent generations that have to pay that burden and, unlike in the situation of redistributive programs, those being “enslaved” due to inter-generational transfers do not have an adequate voice in the process.

{Note: I fully comprehend that I am not talking about the same thing the others are. It just seems to me that before we decide who should pay, we should first decide that we should actually pay for the State’s activities. Put differently, who pays is quite irrelevant if we are not going to make serious attempts to actually pay the bill.}

[UPDATE: Andrew Sullivan links to this Cato Report which documents the Republicans’ spending ways.]

Revisiting Revisionism

2005-04-27T07:27:00.000-07:00

Prof. Reynolds is once again decrying “historical revisionism” in an Editorial by a MSM. In this case the culprit is this editorial over at the NYTimes (is there any more MS in the MSM?). Prof. Reynolds proclaims that the “claim that democratic transformation was some sort of new rationalization is, not to put too fine a point on it, an out-and-out lie.”

Here is the offending passage from the editorial:

The only plausible reason for keeping American troops in Iraq is to protect the democratic transformation that President Bush seized upon as a rationale for the invasion after his claims about weapons of mass destruction turned out to be fictitious. If that transformation is now allowed to run off the rails, the new rationale could prove to be as hollow as the original one.(emphasis in Prof. Reynolds’)

As I have said elsewhere

Anyone who says that the liberation of Iraqis was not a justification given by the administration going into the war is one or more of the following (a) forgetful, (b) unaware of their surroundings as they existed then, (c) illiterate or (d) a liar.

So where do I put the NYTimes editorial? Either (a), (d) or none of the above. To paraphrase a former President: “It depends on what the meaning of the word ‘seize’ is?”

If one reads the “seize upon” language to mean “seize upon a justification that was not previously given”, then I would agree with Prof. Reynolds that the editorial is in error. I think the best justification for this reading is the use of the article “a” (“seized upon as a rationale”) by the editorial. If this is what the editorial means, then they are either liars or forgetful.

If on the other hand, one reads the “seize upon” language to mean “seize upon a justification that was not previously the primary justification” then I would not contend that the editorial is guilty of historical revisionism. Of course if that is what it meant they should have said “seized upon as the primary rationale” (or words to that effect) rather than “seized upon as a rationale.”

As an aside, I will confess that I started out writing this to point out that I think that Prof. Reynolds and others are too quick to lambaste media outlets for such “revisionism”. I think that in this instance, his criticism is well put. The way the editorial is drafted demonstrates forgetfulness or deceit. I am left to ponder how Prof. Reynolds would react if a media outlet pointed out that the democratization/liberation of Iraqis was not the primary justification given going into the conflict.

[UPDATE: Over at The Mudville Gazette , the author observes

Perhaps there's a certain percentage of the American population that had to have the fear of their own death via a nuclear, biological, or chemical attack made clear to them before they would give their personal approval to sending someone else's kids off to defend them in a war.

If he needs an example of this sentiment, I would point him to Paul Wolfowitz who noted in May, 2003:

there have always been three fundamental concerns. One is weapons of mass destruction, the second is support for terrorism, the third is the criminal treatment of the Iraqi people. . . . The third one by itself . . . is a reason to help the Iraqis but it's not a reason to put American kids' lives at risk, certainly not on the scale we did it.

OK so they are not on all fours but it is clear that Mr. Wolfowitz was cognizant of the fact that many Americans would not support the effort solely based on the liberation/democratization of Iraqis.

Look anyone who says that the liberation/democratization of Iraq was not a reason or one of the primary reasons for the military action is not right. At the same time, anyone who says the liberation/democratization of Iraq was the reason or even the primary reason given to the American people for the military action is not correct either. It may have been (and I suspect it will prove to be) the best reason but without the WMD angle and/or links to Al-qaeda style terrorists the military action would not, initially, have been supported by a majority of the American people.

With regard to the Gazette’s observation that the NYTimes’ editorial could be read to support the “nuclear option” with respect to Senate filibusters, I will tell you what. I will write a letter to the editorial staff there demanding that they take such a position if the Gazette if the Gazette writes to Senator Isakson (.mov file) and demand that he take to the Senate floor and support the filibuster here as he does in Iraq. Let me know.]

Are religious tests justified for some nominees?

2005-04-26T20:12:00.000-07:00

Professor Bainbridge (and Juan Non-Volokh , among others) are arguing with Cathy Young (and Prof. Volokh , among others) about whether it is fair to say that Senate Democrats are engaging in religious bigotry against devout Catholic or Evangelical judicial nominees. I think it is fair to say that Prof. Bainbridge argues that the Democrats are -- in effect -- discriminating against devout Roman Catholics and Evangelical Christians since certain Democrats are referring to reservations about the nominees "values". Young and Volokh (among others) argue that (I think it is fair to characterize) we should refrain from saying that the disparate impact is evidence of discrimination against Roman Catholics and Evangelical Christians.

Here is how screwed up I am. I am more interested in the question that Stop the Bleating (who Prof. Bainbridge cites with approval) states, namely:

If Schumer truly does intend to create a test for judges on the basis of their deeply held moral beliefs about abortion, that test arguably isn't job-related.

and that Mark Kleiman goes some way to answering it (at least as it relates to devout Roman Catholics) when he points to a story where a Vatican official encourages Roman Catholic governmental officials not to execute the duties of their office, even on pain of losing their job.

The case in question there is a proposed law in Spain authorizing homosexual marriage. The Vatican argues that Roman Catholic officials should not officiate same-sex weddings even if it is their duty to. (Curious what the guidance would be for an official called upon to officiate a “civil union”.)

In light of this pronouncement by the Vatican would it be inappropriate for a Senator to ask the following question of a Roman Catholic judicial nominee:

Mr. Nominee you are aware that the Vatican has advised Roman Catholics who are governmental officials that these governmental officials should refuse to comply with appropriately enacted civil laws, even on pain of forfeiting their position. Let us assume that there are some laws of the United States, either by statute or by binding legal precedent, that are contrary to Roman Catholic teaching. Mr. Nominee if the Vatican were to advise judges of the Roman Catholic faith that these were not to approve of certain legal positions or civil laws that violate Roman Catholic teaching would you (a) follow the law, (b) refuse to follow the law or (c) resign your position?

Presumably answering (a) would be good and answering (b) would disqualify the nominee. What would happen if someone answered (c)?

Personally, I think nominees should be taken at their word if they assert that they can put aside personal beliefs (religious or otherwise) and follow the law, unless there is something in their statements to suggest otherwise.

Chile -- It just doesn't matter

2005-04-26T14:42:00.000-07:00

Prof. Reynolds points us to this editorial by John Tierney which concludes that we have it much worse off here than they do in Chile. Ok, he really says that “our”social security is worse that Chile’s private system. It may be the case that the U.S. should scrap Social Security in favor of personal private accounts. I wish, however, that both sides would stop having us look to Chile for answers.

When pro-privatizers point to Chile, they generally (I realize that this is, in itself a generalization) they look anecdotally at the situation. They find a “man on the street” ask him how his pension account is doing and go from there. Mr. Tierney is no different. Only the man on the street he uses is a friend of his from second grade when Mr. Tierney was in school in Chile. Tierney frames his editorial as “an accidental experiment”. Mr. Tierney was the unfortunate soul who came to the United States and had to be subjected to our Social Security system. His friend, Pablo Serra stayed behind in Chile. In 1981, Chile replaced its social security system a “pioneering” system of private accounts.

It bears mentioning at this point that in 1981, Chile was not (in any real sense) a representative form of government. So one thing that Chile cannot teach us is how you convince people that they should support the change. This is not to say that we should dismiss the Chilean experience because it was not a representative government at the time the changes occurred, just to note that they did not have to deal with the ugliness of public discourse on the matter. (Call me old fashioned but I prefer such ugliness to a dictatorship.)

[Let me interject for a moment and say that choosing Pablo as the “man on the street” (admittedly my term and not Mr. Tierney’s) is suspect. I think it is a fair assumption to say that any Chilean who attended school with Mr. Tierney while Mr. Tierney’s family lived in Chile was upper-middle class at a minimum. Not only that but Pablo “grew up to become an economist”. Not only that (assuming this is the same economist Pablo Serra from the University of Chile), Pablo is an economist who has written (for the most part) favorably about the privatization (in .pdf format) of social services in Chile. That would be like taking the pulse of the American populace on the Iraq war and using Juan Cole as the barometer.]

Rather than comparing Mr. Tierney’s and Mr. Serra’s experiences, there is a better “accidental experiment”. As Mr. Parra and his co-authors note (on page 4), some individuals chose to stay in the old pension system. This sets up a real “apples to apples” comparison opportunity. As someone closer to the situation has noted (though probably with an axe to grind)

”if two work colleagues reach retirement age in Chile today, both with the same salary and the same number of years contributing to social security, one of them who remained in the old pay-as-you-go and the other who changed to the AFP system back in 1981, the latter will receive less than one-half of the pension of the former.”

My point is not that Chile’s experience has been good or bad – if you ask CATO they will tell you it is a success, if you ask the World Bank (among its milder critics) they will tell you that, despite its successes, “failure to extend access to formal financial protection for old age to a broader segment of society has been a major disappointment.” With all due respect to the all the ink that has been spilled debating Chile’s success or failure with the experience, I do not see why the debate in the United States should depend at all on the experiences of a country that is part of the “developing world”.

I would respect pro-privatizers more if they would say they don’ want 4% of wages to go into private accounts, they want all of the contributions to go to private accounts. At that point Social Security is just a paternalistic forced savings program by the federal government and I would think those individuals would be more consistent to say they don’t want Social Security at all.

Selective Filibuster History

2005-04-25T19:41:00.000-07:00

Over at the Conspiracy, Prof. Zywicki asks, with respect to the filibuster conundrum facing the Senate,

“Is there still some debate going on with respect to Justice Owen, for instance, whose nomination has now been pending for 4 years? Are there some Senators who are still on the fence, undecided on how they want to vote on her nomination?”

Here are a few points.

First, before 4:30 p.m. last Tuesday it was common knowledge that John Bolton would be approved by the Senate Foreign Relations Committee. Somewhere along the line someone presented arguments such that he was not approved by the committee. So, while I concede that there are more than 50 (but fewer than 60) Senators who would support Justice Owen, it certainly is possible that further debate will change some votes. Who knows maybe she, when screaming, chased a clerk through a hotel 10 years ago?

Second, while I think that the distinction Prof. Zywicki makes between a “deliberative” filibuster and a filibuster designed to “kill” legislation (or a nominee) has merit; I think it is a quaint view of the Senate that we could expect Senators to declare whether they were invoking a filibuster to delay or obstruct. How would you police such a distinction? It seems like people want to continually write things into Rule XXII that are not there (in addition to this, some argue that the filibuster should apply to legislative matters but not to executive calendar matters). The Rule does not say “you only get unlimited debate if there is a {realistic?} possibility that extended debate will result in changing votes”. The Rule says (essentially) that there will be unlimited debate unless 3/5 of the Senators say otherwise.

Third, Prof. Zywicki suggests that four years is certainly long enough to debate a nominee and that further debate is “quite clearly an abuse of the power”. I suspect Prof. Zywicki would agree (though I could find no evidence of this) that four years was long enough for Richard A. Paez to be have his nomination considered for the Ninth Circuit but there were fourteen Republican Senators (including now Majority Leader Frist) who would disagree. Now according to Sen. Bennett, ”There was no Republican filibuster on the floor of any circuit court judge” ; so I will not refer to a four year delay as a filibuster. I guess I shouldn’t refer to the fact that Senators would not cease debating the nomination as a filibuster either until cloture was invoked. At a minimum it is an “attempted filibuster”. If there were 41 Senators who had voted against cloture, then there would have been a filibuster. One can be against filibusters and in favor of attempted filibusters (i.e. failed filibusters) but it seems like an odd position to me.

Further, Prof. Zywicki notes that the “non-deliberative” filibuster “may explain why in the public mind the abuse of the filibuster is associated with such stunts as Senators reading names from a phone book, because these sorts of speeches are seen as abuse of the filibuster”. I am not sure what “public” he is talking about but I doubt the “average” Joe knows anything about Senators reading the phone book or other such tactics. It does point out another way out of this mess. If Republicans believe so strongly that Democrats will be punished for using the filibuster against nominees, they could actually make the Democrats sustain the debate. Make them go to the floor and debate the nominees and the Republicans can run TV spots telling constituents to tune into CSPAN2 to watch the Democrats make asses of themselves.

Finally, in Sen. Bennett’s comments above he notes that:

In 1995, there were nine Senators who voted in favor of eliminating all filibusters, not just judicial filibusters, all filibusters--nine Senators still serving, Senator Bingaman, Senator Boxer, Senator Feingold, Senator Harkin, Senator Kennedy, Senator Kerry, Senator Lautenberg, Senator Lieberman, and Senator Sarbanes. They voted in favor of eliminating all filibusters. They have now changed their minds. They have the right to change their minds. And I respect that. What indication do we have they will not change their minds back if we do not get this thing settled in this Congress?

I will admit that changing one’s mind on such an issue may be an outlandish thing, something that calls one’s credibility to speak on an issue. But guess how many Republican Senators voted to keep the then existing cloture rules? 100% Two notable Republicans who believed then that it should still require 3/5 of Senators to require cloture: Bennett and Frist. So if they believe now that the rule should be changed they seem to have “changed their minds”.

Sen. Bennett also observes:

I remember very clearly when President Clinton sent some nominees to this body which members of my conference decided were left-wing whackos, if I might use that phrase. . . . But they felt these nominees were too extreme to be on the bench.

When it was clear we did not have the votes to prevent them from going on the bench, there were those in the conference who said: We have to filibuster. Let's use the filibuster to prevent them. We can muster 41 votes.

The chairman of the Senate Judiciary Committee, my colleague from Utah, ORRIN HATCH, and the then-majority leader, the Senator from Mississippi, TRENT LOTT, both pled with us: Don't do it. Don't start down that road.

That doesn’t sound like a “constitutional” argument to me. Don’t you think they should have said instead “Don’t filibuster because it is unconstitutional”? At it’s core, on both sides, this is a political argument. Can the majority impose it’s will on the minority, you bet. But it is because of political power not because it is “constitutional”.

Personally, I have not had an issue with using the filibuster to “kill” nominees since 1995 when each of my (then) Senators wrote me a letter telling me that they would filibuster the President’s nominee for one of the most ceremonial positions in all of the U.S. government. Unfortunately, now one of those Senators (Sen. Lugar) will not support further filibusters of Presidential nominees; even when the nominees are more consequential than the Surgeon General.

Retiree benefits and Bankruptcy

2005-04-22T14:51:00.000-07:00

The other day both Robert Reich and Mark Kleiman were talking about the interplay between commitments companies have made to retirees and bankruptcy. My exposure to bankruptcy has led me to believe that, in those cases where there are outstanding commitments to retirees; retirees get a pretty raw deal. For the most part, they are not organized or present like current labor, creditors, debt holders or even stockholders. Plus many of the commitments made to them are partially covered by the PBGC.

Given that these commitments are such a potential drag to the competitiveness of older companies because they are costs that are not generally faced by newer entrants or foreign employers I wouldn’t be surprised to see more bankruptcies of older companies as a result.

If these companies go bankrupt the retirees will get whatever PBGC covers . Which may or not be all that the retirees had contemplated. I wonder if anyone has given any consideration to amending the bankruptcy laws, as was done with the asbestos matter, to allow corporations to retain some shareholder value while funding trusts to pay benefits that are due to retirees. Of course in the asbestos matters, the groups left holding the bag were injured people and insurance companies. In this case, I suppose it would mainly serve to accelerate the PBGC crisis that is looming but it might be the case that if it can be structured properly, retirees could end up at least as well off as if the company had just gone bankrupt and the company may be better situated to be competitive. Of course, if the incentives are such that even companies with adequately funded benefits programs choose to reorganize it would almost certainly be disastrous.

I am sure this is a horrid idea which would be made worse by the current Congress making it a sop for corporate interests but it seems to me if the PBGC crisis and the Social Security/Medicare crises occur in the same decade there are going to be some seriously bad results.

Supreme Court and Foreign Authority

2005-04-22T11:47:00.000-07:00

In response to this post over at Prof. Althouse’s site relating to the question whether Supreme Court citations to foreign authorities is “incredibly outrageous” I tried (Blogger was acting funny) to post the following:

I suppose whether or not you believe the recent decisions citing foreign authorities are "incredibly outrageous" depends on how you view the use of those citations. If you believe (as Scalia, Delay, and several commenters here believe) that the citations are made as "part of the basis for the Court’s judgment" then you believe they are bad. If you believe these citations merely reflect "respected and significant confirmation" of the Court's judgment then you are not necessarily offended by the citations.
I actually went and read the decision in Roper v. Simmons as a result of this thread. I know that Scalia is an incredible legal mind, an excellent writer and, from what I have heard, a genuinely engaging personality. Reading this decision reminded me how derisive he can be. I don't read many Supreme Court cases anymore, does anyone know if he picks and chooses when he "respectfully" dissents (as opposed to merely "dissent")?

A couple of further points. I think that Scalia has a good point near the end of his dissent when he says “’Acknowledgment’ of foreign approval has no place in the legal opinion of this Court unless it is part of the basis for the Court’s judgment.” I think including these references to foreign authorities invites the conclusion that those authorities are the basis for the decision despite protestations of the majority to the contrary. I would have preferred a decision which did not focus so much on the foreign aspects including amici but at least the majority is always careful to say that they are not basing the decision on foreign law.

[I think that, if the majority and Justice O’Connor are to be believed, the decision rests on the analysis of whether there is a “national consensus against the death penalty for juveniles”. The majority thinks there is, O’Connor thinks there is not. (Scalia doesn’t think this is the right question but is willing to say (paraphrasing here) “Even if it were the right question, hey Anthony (Kennedy) you can’t count!”)]

The degree to which he derides both the majority opinion and the separate dissenting opinion really struck me. Like I said, I haven’t read Supreme Court cases as much as I used to but he seems even more caustic than I remember him. His insistence that the majority bases their decision on foreign authorities, basically calls the majority liars. It seems to me though that he saves some of his harshest tones for Justice O’Connor as if to say “You like to think you are different than them, but you are just as bad.” If anyone knows of an article or a book about the collegiality of the Court as currently composed I would be fascinated to read it.

Finally, many people are upset that as a result of the decision capital punishment cannot be imposed on anyone under the age of 18. I wonder how many of those people, if any, would be concerned about executing 14 year olds or 8 year olds. It is clear that there are 3 Justice who support capital punishment as to 14 year olds and as to 8 year olds (assuming a State could overcome a presumption of incapacity).

McCain's Committee investigates Reed and Norquist

2005-04-21T12:19:00.000-07:00

With this (via Atrios) can we now say that John McCain has even less chance of winning the Republican nomination? Maybe Reed and Norquist will come out unscathed but if they don’t I can’t imagine that it will endear McCain anymore to a group of people who already view him with some suspicion if not disdain.

Juan Non-Volokh and Filibuster myths

2005-04-21T10:44:00.000-07:00

The anonymous conspirator talks about David Brooks’ piece regarding Roe v. Wade, the filibuster and the nuclear option. While I find myself in agreement with many of the conspirators, I would take Juan to task on a couple of points.

First, he(?) appears to accept Brooks’ claim that the filibuster of Presidential nominees is “unprincipled and unprecedented”. While it may be unprincipled (what would the principle be) it is not the case that filibustering Presidential nominees is “unrecendented”. As I have written elsewhere, when you include all nominees, there are few Republican Senators who have always voted for cloture on nominees. (Put another way there are few Republican Senators who have not participated in filibusters of nominees.) It is true that Clinton’s nominees (with the exception of Henry Foster) had an up or down vote. But many of those nominees were only approved after having consideration be subjected to a cloture motion (i.e., they were filibustered). The fact that cloture was invoke only demonstrates that the filibusters in those cases failed. I suppose one could be against “successful filibusters” while approving of “failed filibusters” but it seems like an odd position to me.

The second point I would quibble with Juan on is his(?) statement that

It is also important to note that overturning Roe, by itself, would not be a pro-life victory. All it would accomplish is returning abortion policy to the states, many of which would never severely restrict, let alone prohibit, the practice.

Many have lamented that the Roe decision is problematic because (a) it made a judicial decision out of something that should be a legislative matter and (b) it took a matter that should be left to the states and made it a federal matter. Just as Brooks’ proposal to put the judicial genie back in the bottle is problematic (see here and here ) I believe that saying that pro-life/anti-abortion advocates will allow this to be a state decision is unrealistic. They will seek legislation to prohibit the practice nation wide.

David Brooks on the Filibuster

2005-04-21T09:18:00.000-07:00

Even David Brooks is expressing concerns about the nuclear option. You have to wade through some of his thoughts on Roe v. Wade, some of which I would disagree with, but he makes the following points:

Once the filibuster was barred from judicial nomination fights, it would be barred entirely. . . .The culture of deliberation would be voided. Minority rights would be unprotected. . . . Those who believe in smaller government would suffer most.

It would be interesting to see, when the time comes for debate on the nuclear option (assuming there will be any debate), whether any Dems make precisely this very conservative argument.

As an aside, if I were a “pro-choice” Republican I would be troubled by this observation of Brooks: “If [Republican Senators who love the institution] turn back now, their abortion activists will destroy them.” (Not surprised, troubled.)

Paul Wolfowitz -- Prophet

2005-04-20T09:57:00.000-07:00

Atrios points out this new poll which says that 53% of Americans don’t believe the Iraq invasion was “worth it”. The story asks why “there has been very little press coverage of why, in light of some positive developments in Iraq, this is true.”

Well in fact there has been much coverage of why support has eroded for the invasion. Simply put, the failure to find WMDs and significant connections between Saddam Hussein and Al-Qaeda type terrorist organizations has diminished the American public’s support for the invasion despite the fact that some of the fruits of the labor may be here or on the horizon.

As Paul Wolfowitz noted:

there have always been three fundamental concerns. One is weapons of mass destruction, the second is support for terrorism, the third is the criminal treatment of the Iraqi people. . . . The third one by itself . . . is a reason to help the Iraqis but it's not a reason to put American kids' lives at risk, certainly not on the scale we did it.

It is not historical revisionism to point out that what “sold” the American people on the invasion was WMD and Saddam’s connection to Osama. Some people (including I suspect Mr. Wolfowitz and Prof. Reynolds) always believed that the third reason was the best reason. I suspect that history will prove them right that this was the best of the three reasons (if only because history may show the weakness of evidence for the first two reasons). These people cannot, however, legitimately claim that that reason was the primary reason given to the American people for the invasion.

As I have said previously I hope that history proves Wolfowitz’ statement wrong and the liberation of the Iraqi people was worth putting American kids’ lives at risk on the scale we did.

My e-mail to Sen. Voinovich re: the Bolton nomination

2005-04-19T19:06:00.000-07:00

I am a resident and voter in Ohio. Today I was watching the Senate Committee discussing the Bolton nomination. I am kind of on the fence about this. While I think he is a horrid nominee, I do believe that the President deserves great deference in selecting his administration (thouh I think that leeway does not extend to the same degree to Judicial nominees). So I am sitting there watching and my Senator, Senator Voinovich steps up and says there should be a delay in the vote (I am oversimplifying things here but that is the result) so that the issues surrounding the nominee can be more carefully considered and resolved.

This took a lot of courage and the Senator should be commended.

This is what I wrote in an e-mail to the Senator:

I was actually watching the committee hearing today at which the Bolton nomination was being discussed. Personally, if you end up supporting the nominee under the theory that “the President deserves great deference on his nominees” I would not bat an eye. That being said, I did want to commend you for the courage and independence you displayed in the committee. At a minimum I think the additional time will allow for the issues to be more carefully evaluated. Thank you for your courage and independence.

Tom DeLay and the "Whatever"

2005-04-19T18:28:00.000-07:00

Prof. Kerr notes some of the latest pronouncements out of the mouth of the fearless majority leader. Namely that Justice Kennedy’s conduct is “outrageous” because he cites foreign authority and uses the internet for research. Silly Justice, don’t you know you are supposed to base your decisions on ”the, whatever, the Constitution”.

Martin and Malcolm (Revisited)

2005-04-18T05:39:00.000-07:00

While I admire both a great deal, I quite frequently go over with myself why I am a bigger fan of Malcolm X while so many of my friends tend to favor Dr. Rev. Martin Luther King, Jr. Though I have read a good deal of what Dr. King wrote, I do not recall having read this quote (via Instadpundit ):

“if your opponent has a conscience, then follow Gandhi. But if your enemy has no conscience, like Hitler, then follow Bonhoeffer.”

In an odd way this quote goes a good ways to explaining why I prefer Malcolm to Martin. Intellectually, I was introduced to Dr. King's writings in the context of non-violent resistance. While the quote above evidences a good deal of pramatism which undoubtedly Dr. King needed to exercise to achieve his goals, it does not evidence a comittment to non-violence. Stated another way, he was a "tactical pacifist". This may be a great position for a leader, but it was not what I admired when I was studying philosophy.

As an aside, in reference to the quote above, Prof. Reynolds states

“[A reader] asks: 'Now consider: MLK chose nonviolence to advance his cause. What does that say, then, about his beliefs about his opponent?'"

My take away from that quote is that MLK believed that America in the 1960s was more like British colonialists (who incidentally merited being violently overthrown a century and a half before by Amercian colonists) suppressing a majority half a world away rather than Nazi Germany. This is faint praise indeed.

On Sen. Lugar

2005-04-17T07:55:00.000-07:00

I just watched Sen. Lugar on FoxNews Sunday regarding the filibuster. Unfortunately, it appears that he will support the “nuclear option”. He articulately made the case for filibusters applying to legislation but not to “executive” matters such as nominations. Two problems with this:

First, Senate Rule XXII does not make a distinction between the two types of actions. If the filibuster can be removed for this purpose, the rule no longer exists. The leadership may promise Sen. Lugar and others that the filibuster will not be removed with respect to “legislative” matters, but there is nothing that assures that.

The second point I would make is that Sen. Lugar has participated in filibusters of “executive” calendar matters. In addition to filibustering a judicial nominee in 1980 (now Justice Breyer), Sen. Lugar filibustered a nominee for one of the most ceremonial and symbolic positions in all of the government. I know that I should not expect FoxNews to question Sen. Lugar on these discrepancies but I do expect more of Mr. Wallace.

Historical Revisionism

2005-04-14T14:25:00.000-07:00

Over at Instapundit Prof. Reynolds has the faithful fired up about lefties engaging in a bit of historical revisionism. The culprit is an editorial in St. Louis paper which states "I don't recall any prewar speeches about delivering democracy to the Middle East." The Professor’s troops are busy tracking down the earliest statements demonstrating that the administration used the liberation of the Iraqis as a justification for the war. As far as I am concerned, they can stop the search.

Anyone who says that the liberation of Iraqis was not a justification given by the administration going into the war is one or more of the following (a) forgetful, (b) unaware of their surroundings as they existed then, (c) illiterate or (d) a liar.

But I would like to note a different kind of historical revisionism that is taking place; namely the notion that the liberation of Iraqis and democratization of Iraq was the primary reason for the war. Anyone who claims that the primary reason given to the American people for invading Iraq was the liberation of the Iraqi people is one or more of the following (a) forgetful, (b) unaware of their surroundings as they existed then, (c) illiterate or (d) a liar.

I think that Paul Wolfowitz summarized the matter about right when he said:

there have always been three fundamental concerns. One is weapons of mass destruction, the second is support for terrorism, the third is the criminal treatment of the Iraqi people.

Now one could say that they personally believed that the third reason was the best reason but I do not think it can be argued that the third argument was the one which was used to convince most of the American people that we should overthrow Iraq. (Did anyone do any pre-invasion polling asking “Assuming Iraq does not possess WMD and there are no connections between Iraq and Al Qaeda, do you support invading Iraq to liberate Iraqis from the oppression of Saddam Hussein?”? I kind of doubt it, but my sense is that if such polling were done it would be a small minority of people supporting an invasion under those circumstances. )

As Wolfowitz notes in the link above:

The third one by itself . . . is a reason to help the Iraqis but it's not a reason to put American kids' lives at risk, certainly not on the scale we did it.

In hindsight, there are no WMD. I think the connections to the kind of terrorism that the American people were sold on have not been proven. So that leaves the third reason. Perhaps history will prove Wolfowitz wrong and the liberation of Iraqis will prove to have been worth putting American kids’ lives at risk on the scale we did. It would, however, be disingenuous to say that was why America decided to put American kids’ lives at risk on the scale we did.

As a general rule (reasons for which may become painfully obvious) I refrain from using analogies to illustrate my point, but here goes. Saying that we went to war to liberate Iraqis is a bit like a kid going to buy a sports car. He sees the commercial that tells him how fast the car goes and he knows the ladies love the car. As he is signing the paperwork the salesman tells him about the excellent airbag system that the car has. He drives off the lot hoping to entice the ladies with his new ride, before he is able to reach 40 mph he is plowed into by an SUV. If not for the excellent airbag system he would have been killed, instead he walks away unscathed. You see the reason he bought the car was because of the excellent airbag system.

In Defense of the Filibuster

2005-04-13T19:51:00.000-07:00

In response to a comment at Ann Althouse's site questioning whether the filibuster should be allowed to apply to Presidential nominees, I wrote the following:

John says that "I think there is a radical difference between using this provision to block some proposed legislation--its traditional use--and to block the effort to fill vacant governmental posts on the other."
Two points. First, "its traditional use" is kind of like beauty being in the eye of the beholder. There were Republican filibusters of judicial nominees and other appointees.
Second, as John notes, Senate Rule XXII "does not differentiate the matters on which it may be used". If the rule can be abrogated when a majority is tired of suffering the obstructionist tactics of the minority with regard to nominees, what is to stop the majority from getting rid of the rule whenever the majority tires of the minority obstructing whatever (e.g. drilling in ANWR). Once the rule is taken down for this purpose, the rule exists only at the will of the majority. In other words, the rule does not exist.
(John does raise a very interesting question about the interplay of Rule II and Rule XXII and asks "are we to believe that it will take 60 senators to demand a vote on the credentials?" My answer would be a very qualified "yes". It is quite clear to me that the credentials referred to in Rule II are credentials of being properly elected (or appointed as the case may be) by the respective States. If the reason that some Senators were seeking to extend debate on the credentials of a prospective Senator were because of questions regarding the conduct of the election in the State (or, less likely, the appointment) then I would think that Rule XXII would apply and you would need to have three fifths of the the then duly chosen and sworn Senators to invoke cloture. On the other hand, if there were no questions about the conduct of the election and the Senators were seeking to obstruct a Senator from being sworn in because he was regarded "as too far out of the mainstream" (e.g. "We will not accept the Socialist that the people of Vermont have sent here") then I would think that the Courts would be able to step in to enforce Amendment XVII. That would make one heck of a moot court problem. [As a complete aside, I would note that the number that would be needed to invoke cloture would be south of 60.])
Personally, I agree with George Will's position that the appointments should be made, the filibusters be allowed to take place, then if the argument favors the executive, the executive should run against the obstructionist Senators.

[UPDATE: In the comments over at Prof. Althouse's site, I am reminded that Art. I, Section 5 of the Constitution provides, "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members,...." Accordingly a court would never step in. I could walk through how I missed this, but "excuses are for losers".]

I wanted to add a few more comments. Current opponents of applying filibusters to Presidential nominees claim 1) Republicans did not filibuster democratic nominees and/or 2) Republicans filibustered a lot fewer nominees. Those who claim (1) are liars (if you can find a more politically correct term for it please let me know). For a brief introduction to filibusters of Presidential nominees see this report (in .pdf) by the Congressional Research Service.

With regard to the argument that Republicans filibustered fewer nominees I say "so what"? The decision is is really, it seems to me, a binary one. You are either for them or against them. If you can't filibuster any then what does it matter whether one was filibustered or a hundred?

Here's a fun report that proves the adage "lies, damn lies and statistics". The study looks at how the current Senators have voted on filibusters of Judicial nominees and completed in 2003. An astonishing 38 of the 40 Senators who have never voted in favor of a filibuster of a Judicial nominee are Republican. Geez these Republicans really do respect the President’s right to have his judicial appointees approved. But wait a second, how many of these 38 have been serving only since 2001 and therefore have only been faced with approving nominees offered by their own party. By my count there are 11 that fall into this category.

But even if you eliminate those 11 that leaves us with at least 27 principled Republicans who have never voted to filibuster a Presidential Judicial nominee. Wait one gosh darned minute, why do we limit the universe to “judicial nominees”? Presumably if the President deserves some leeway in appointing judges who have life tenure then he should also have leeway in appointing individuals to serve in his administration. Personally, I think the President should have more leeway in appointing his administration than in appointing judges but let’s assume that they should be afforded the same degree of deference. Then let us take the most ceremonial and feckless post in a President’s administration and see how much deference should be given to the President’s nominee. Of the 27 principled Republican Senators who would never consider filibustering a President’s Judicial nominee, 14 of them had the opportunity to show their deference to a President’s nominee for a pretty symbolic post in a President’s administration – the Surgeon General. Of these 14, thirteen of them decided it was appropriate to filibuster the President’s nominee. (The lone exception was Ben Nighthorse Campbell.)

The filibuster of Henry Foster is also important with regard to why there were fewer filibusters of Clinton nominees. It showed that Republicans were willing to sustain filibuster’s against his nominees. In the first two and a half years of the Clinton administration, before that confrontation, 12 filibusters were attempted against his nominees. Eleven of these nominees were confirmed (the twelfth being withdrawn by Clinton). In the remaining five and half years of the Clinton administration (after the Henry Foster successful filibuster) there were only five filibusters attempted of Clinton nominees.

So what happened? Well, after they demonstrated that they could sustain a filibuster Clinton only nominated people he thought (probably after conferring with key Republicans such as Hatch) would not be filibustered. Hence, there were fewer opportunities for Republicans to filibuster his nominees, because he didn’t nominate the people who couldn’t survive the filibuster attempt.

George W. Bush has a different view of the prerogatives of the Executive Branch. This is true most obviously in the nomination process but it can be seen elsewhere. He believes in the primacy of the Executive Branch. He thinks “I am the executive, why should I consult with people about who I nominate?” (Note: I do not mean to suggest that he is more arrogant than Clinton, just that, in this instance, Clinton was more pragmatic.) This also explains (more so than political considerations in my eyes) why he was so hot to get Frist in as Majority Leader. I can’t see Lott, Lugar, Warner or Nickles (to name a few) letting the Executive steam roll the Senate like this. If he is able to successfully reshape the dynamic between Senate and the President, this will be his biggest domestic legacy. (Other than massive, continuing structural budget deficits, but who really cares about that.)

Impeach Scalia Now

2005-04-12T19:25:00.000-07:00

Orin Kerr at the Volokh Conspiracy puts forth a persuasive case for impeaching Antonin Scalia. How did that miscreant ever get nominated much less confirmed?

On a serious note, the post does point out what I really enjoy about that site; whether I agree with the conspirators or not, they are always smart, usually sharp with words and rarely too partisan for my tastes.

Bankruptcy Reform

2005-04-12T07:43:00.000-07:00

Jane Galt writes about the pending bankruptcy reform measures and mentions, in passing, a point which I have thought about. Namely the scarcity of attention drawn to the benefits which could be gained from reforming bankruptcy provisions as they relate to the corporate side. Because she mentions it in passing I do not know exactly what she has in mind when she talks about "the corporate side of puzzle" so I will not venture a guess on her position on that topic.

In my prior job I had the opportunity to work with crediotr committees on a number of corporate bankruptcies and from what I saw, it is a minor miracle that any companies ever emerge from bankruptcy. You take a company that had various fiscal problems then foist upon it a whole cadre of professionals (consultants to run the company, new accountants for the company, accountants for the creditors, three [or more] sets of lawyers). I seriously wonder if most bankruptcies would not yield better results to the creditors by having an immediate auction of the company's assets as soon as it was determined that the company needed bankruptcy protection.

A couple of other random thoughts on the current bankruptcy measures. While I think that most of the liberal wailing and gnashing of teeth has been overblown about how there are too many ways for the wealthy to protect assets, I do think that more efforts should have been taken to reduce the ability to use the "homestead exemption" as a way to shield assets.

Finally, it will be interesting to see when credit card companies begin reducing their interest rates. I do believe that (apart from credit card companies) the biggest beneficiaries of the proposed changes are those who do not seek bankruptcy. By my way of thinking, the interest rates should come down fast and hard.

State and Local Comity

2005-04-11T20:12:00.000-07:00

Ann Althouse writes (http://althouse.blogspot.com/2005/04/should-state-block-city-from-having.html#comments):

These days, there is a lot of attention to federalism -- the division of power between the federal government and the states -- but we do not often think about the division of power between the state government and the cities. We don't even have a word for that relationship, do we?

I think she is correct that there is no one succinct term that captures the state-municipal relationship the way "federalism" captures the federal-state relationship. However, most states (including Wisconsin) are governed by the "Dillon Rule" which basically states that "power of municipalities [is] limited to those powers 'expressly granted, necessarily or fairly implied, or absolutely indispencible' to the local governments"
( http://shakti.trincoll.edu/~bgermano/dillon.html) . Many of the States where Dillon's Rule is in place, however, have amended their constitutions to give local governments power over local affairs subject to state laws of "statewide concern". In most jurisidictions the interpretation of "statewide concern" (or similar language) reverts back to the Dillon's Rule presumption in favor of statewide legislation. (See http://www.legis.state.wi.us/lrb/pubs/consthi/04consthiIV3.htm for application in Wisconsin.)

My letter to my congressman re: DeLay

2005-04-11T09:03:00.000-07:00

I just wated to drop you a quick note, as one of your constituents, to express my concerns about Tom DeLay continuing as the majority leader in the House of Representatives. More troubling than his corruption (even if it is not illegal) and his arrogance, is the fact that under his leadership I do not see how we get out from under persistent massive structural budget deficits. In addition, his comments on the judiciary strike me as intemperate.

If you don't believe in an independent judiciary, continue to support him. If you believe in the continued growth of government, then continue to support him. If you believe in exploding amounts of money being spent on Medicare, continue to support him.

I believe that the Medicare changes he forced down the throats of House members are such that it is irresponsible to even discuss changing Social Security until the problems with Medicare (which are much larger and loom much sooner) are addressed. If you and your colleagues do not get spending under control, which cannot be done with Mr. DeLay as majority leader, you will be forced to rescind tax cuts or to foist the bill on my three children.

Please have some courage (I know it will take much) and oppose Mr. DeLay.

Sen. DeWine and the "nuclear" option

2005-04-06T11:31:00.000-07:00

In today's Columbus Dispatch there is a story (“Voinovich in favor of rules change”) in which it says that Senator Mike DeWine "refused to disclose his position on an issue that threatens to derail most Senate business this year." This is a curious statement coming from someone who participated in filibusters of two judicial nominees which required the Senate to invoke cloture on their nominations in 2000. I hope that his silence is informed by his prior votes.

With regard to Sen. Voinovich, I do not believe that he has ever been part of a filibuster with regard to a Presidential nominee (though he was only a Senator for a few years of the Clinton Administration). Nonetheless I would point out to him that there is not one Senate rule regarding cloture on nominees and another rule regarding cloture votes on legislation. Accordingly how long will it be before the majority tires of "obstructionists" who (for example) insist on some degree of sanity in the budget process as Voinovich does. If you take away this tool with regard to nominees, then the Rule exists for any Senate action only to the extent the majority agrees the Rule should apply.

Why the "left" dominates the Academy

2005-03-30T09:38:00.000-08:00

Summary

I really did set out to jot down a few comments about "the academy" and "the left". It got out of hand. Here is the punchline: I think the left dominates the academy because academically successful lefties are (on average) more willing to work for less.

What I think I think about the "Academy" and the "left"

Todd Zywicki at the Volokh Conspiracy http://volokh.com/archives/archive_2005_03_27-2005_04_02.shtml#1112111400 writes about the revelations in a new study confirming that liberals/democrats are disproportionately represented on college faculties. I do not doubt this conclusion one bit. So let's agree that the studies Prof. Zywicki cites (including this one (http://swopec.hhs.se/ratioi/abs/ratioi0053.htm) by Prof. Daniel Klein and colleague Charlotta Stern) accurately describe the way the world is.

I think, however, the more important and interesting questions are "so what" and "why".

SO WHAT

There are two main concerns that arise (for me at least) out of the disparate representation of liberals/democrats on campuses. First, faculty may express their biases against students by grading students poorly based on their biases or do a disservice to the students' (and their own) intellectual development because of their biases. While I think that the complaints put forth by David Horowitz and Students for Academic freedom are overblown, I do not deny that these things occur. The piece at the Volkh Conspiracy and a link from there ( http://www.petetheelder.com/archives/2005/03/liberal_scholar.html) actually partially undermine the position of Students for Academic Freedom. Prof. Zywicki comments that

"Perhaps the fact that students are largely unchanged by their university experience is the most damning comment of all about what is going on at universities today."

It strikes me that that is not damning at all when you realize that the "change" he is referring to is a change on the ideological left/right spectrum. It seems to me that the fact that students are not swayed is proof that the leftist professors are not indoctrinating students (at least not successfully). Pete the Elder puts it very well when he says:

"I had some pretty liberal professors as an undergraduate, usually post modernist types, but none of them ever had a problem with me disagreeing with them as long as I did it well and some even seemed to enjoy good disagreements."

Which brings me to another point: just because a professor is a raving loon of a lefty, it does not mean that you are being graded poorly because you disagree with him/her. Case in point, over at the website for Students for Academic Freedom a student complains of biased grading in an English class and says:

"We have exchanged various emails asking her to discontinue discussing politics, and other controvirsial things that have nothing to do with english. but she seems to sneak them in. We are deffinitly at odds, I am actually scared to go to class because she always finds a way to beliddle what i say."

I know that the student could just be being careless on the web (goodness knows there are undoubtedly errors in grammar in this post) but it seems to me certainly plausible that this student is not the best at english composition.

The second concern I have with an imbalance in academia is that I do happen to believe that diversity of intellectual views is necessary for a thriving academy. The lack of diversity can be overcome in part by the conversations that academics have with non-academics. These conversations are perhaps most notable in the field of economics where there are usually substantial conversations going on between academics, economists at think tanks and applied economists. That being said, I do not believe that these opportunities are adequate to facilitate the kind of the intellectual diversity which would optimize the academic experience.

So "Why" do Liberals dominate the Academy?

This question is important because, it seems to me, that if a solution is to be devised to adequately address the situation, we first must understand why the situation exists.

The primary reason put forth as to why the situation exists is a kind of self-selection made more pronounced by the environment. In the study by Prof. Klein referenced above, a David Brooks op ed is quoted in which a conservative Princeton faculty member laments:

"Here's what I'm thinking when an outstanding kid comes in," says George, of Princeton. "If the kid applies to one of the top graduate schools, he's likely to be not admitted. Say he gets past that first screen. He's going to face pressure to conform, or he'll be the victim of discrimination. It's a lot harder to hide then than it was as an undergrad.
"But say he gets through. He's going to run into intense discrimination trying to find a job. But say he lands a tenure-track job. He'll run into even more intense discrimination because the establishment gets more concerned the closer you get to the golden ring. By the time you come up for tenure, you're in your mid-30's with a spouse and a couple of kids. It's the worst time to be uncertain about your career. Can I really
take the responsibility of advising a kid to take these kinds of risks?"

I have no doubt that these considerations come into play but they are certainly difficult to quantify. Worse still, trying to reverse the situation is darn near impossible given that such "discrimination" is usually "not conscious". Even the "Academic Bill of Rights" proposed by Horowitz would do little, if anything, to address the situation because seldom if ever is a college going to come out and say that they will not hire or will not advance an individual because of political beliefs.

In his comments on the subject Prof. Zywicki complains that people nitpick Prof. Klein's study but never address his fundamental conclusions. As I said earlier, I do not doubt Prof. Klein's conclusions at all. If I have a complaint about Prof. Klein is that he (being a professor of Economcs) does not appear to consider that there may be an economic (or at least financial) reason for the situation.

Specifically, my hypothesis is that conservatives (on average) who are academically successful are not as willing as their liberal counterparts to invest six years (give or take) in an education without receiving better compensation for their skills and investment.

I am not saying that conservatives are bad or greedy just that they are more likely to seek more compensation for their skills and investment.

An interesting point raised by Prof. Zywicki in this post (http://volokh.com/archives/archive_2005_02_20-2005_02_26.shtml#1109340158) "is that the faculties are becoming less intellectually diverse over time." That is to say, conservatives tend to be older faculty members. By looking at changes in faculty salary since 1972 ( http://www.aaup.org/surveys/04z/tablea.pdf) and comparing that to changes in per capita personal income (http://www.bea.doc.gov/bea/dn/nipaweb/TableView.asp?SelectedTable=253&FirstYear=2002&LastYear=2004&Freq=Qtr) my conclusion is that per capita personal income has increased at a greater pace than faculty salaries. [I realize that taking numbers from the AAUP may not be the best source and that I might not have chosen the best comparison but hey it is the data I could find.] If my hypothesis is right that conservatives are more likely to make career decisions based on compensation then it does stand to reason that if faculty income growth is less than that of other employment then conservatives will be less likely to become faculty which may partially explain why there are more older conservative faculty members.

It would be interesting to see (if I knew where to find the data) how faculty salaries have changed relative to income of individuals with advanced degrees.

{Disclosure: I am not an academic [they would have to pay me a lot more than they would to put myself through all that work to spend a lot of time dealing with whiny students] but my wife is.}

Something I wrote Re: Schiavo

2005-03-30T07:54:00.000-08:00

This is something I wrote on March 18, 2005, the Friday before Congress enacted the Schiavo legislation.

I know too much ink has been spilled about the tragedy that is the Terri Schiavo matter but I wanted to chime in with a few comments about what the current manuevers say about Republican views on very important issues.

First, it reminds me that Republicans don't much respect separation of powers particularly as it relates to the judiciary. While this is not shocking I would just add that from what I have read about the legal proceedings it would take an "activist" judge "making" law to overturn the decision. If judge made law is bad, it should be bad even if a superior moral decision is reached.
Second, whatever happened to a respect for State's rights and principles of federalism? This used to be a major concern for Republicans but now they don't trust the legislature and courts of a states to have control over such an issue.
Third, they don't seem to have much respect for the institution of marriage. In Genesis it says: "Therefore shall a man leave his father and his mother, and shall cleave unto his wife: and they shall be one flesh." If there comes a time when I am incapacitated and a decisionmaker is allowed to listen to someone else to determine my wishes, I hope that they listen to my wife and not my parents.
I am not making light of the biblical passage. The situation is a painful one and I am not trying to make light of that either. In fact, I think that the husband is making a bad moral decision in this case. However, I think it is an extraordinarily dangerous precedent if laws are made after the fact to set aside the decision made by the husband once it is determined that he is in the best position to make the decision for the wife. If we are willing to step in and set aside his decision for her (based on the wishes she expressed) because of political pressure what would stop someone for seeking to overturn a true living will?

The fricking name of this blog

2004-12-03T10:30:00.000-08:00

Ok so i decide to start a blog on November 8 but my first "real" entry isn't until December 2. A fair question would be "why". First off, I procrastinate like nobody's business. Second, I had a million thoughts going at that time and couldn't figure out which ones were at all important to me.

However, the biggest reason I didn't have another entry was because I came up with such a horrible name for a blog. I have this book titled "Reflections of a Radical Moderate" which talks about life in the political center and I was trying to capture that. Instead I come up with a title that is at once pompous and ambiguous. I certainly don't mean to suggest that I am centered morally or anything like that. It certainly isn't a reference to centered in an eastern religion/philosophy sense. At any rate, now that I have said that maybe I will actually start to blog.

First post

2004-11-08T10:48:00.000-08:00

I have decided to start a little blog to keep track of my thoughts.