Friday, July 29, 2005

Asmussen

The latest two postings from The Bad Reporter can be found here. I love the part about New York Times reporter Judith Miller converting to Islam while in jail. That's a classic.

I'll be out during the day tomorrow but I will retun for more writing tomorrow evening and Senate Majority Leader Bill Frist's new stance on cloning and Secretary of Defense Donald Rumsfeld's statements concerning Iraq's political future will be included in those writings.

Thursday, July 28, 2005

Alberto Gonzalez and the Right to Overturn Judicial Precedents

U.S. Attorney General Alberto Gonzalez said BushSupreme Court nominee John Roberts could overturn Roev. Wade or any other legal precedent he believes were wrongly decided.The move probably will probably enrage the liberalinterest groups fighting what appears to be for now alosing battle to reject President George W. Bush’spick for moderate swing justice Sandra Day O’Connor’sreplacement. The Democrats do not have the votes toreject Mr. Roberts nor do they have enough to filibuster the nominee. Republican Senators John McCain, John Warner, and Lindsey Graham have all said the Democrats cannot filibuster this nominee and Democratic Senators Ben Nelson and Joe Lieberman seem to agree for now. Senator Arlen Specter has all but committed himself to vote Mr. Roberts’ name up to the floor for a vote, all but assuring Mr. Bush a majority vote in his favor.

Some Democrats may be extremely reluctant to oppose our president’s judicial nominees and may think their chances of regaining power on Capitol Hill and the White House would best be served if they attack the president on the war in Iraq and Mr. Karl Rove's involvement in the CIA leak and still others who do want to block the president from appointing a Supreme Court nominee believe it would be less risky to do so on the pretext of the president's failure to release some undisclosed documents concerning that nominee's dealings in the White House.

But these Democrats are doing the public no favor in moving on or failing to raise the debate on liberty and the reach of the Constitutional promises that are meant to protect it. The public is entitled to know what they bargained for when it voted to re-elect President George W. Bush and increase the Republican's majority in both houses of Congress.Democrats and moderate Republicans have an obligation to inform the public as to the political and constitutional impolications involved in moving the conservatives one step closer to the "states rights" anti-Roe SupremeCourt majority they seek.

Justices are appointed for life, as Mr. Gonzalez said,they can overturn judicial precedents that draw theline between state powers and individual rights at a whim if five justices can agree to that decision.However, precedents should not be overturned without serious thought as to how that would undermine other valued legal precedents (see my July 16 writings - “Post O'Connor Jurisprudence on Abortion Concerns Freedom In General More Than Abortion.”)

“for what is at issue here is not how far a state maygo in balancing the competing rights claims of thepregnant mother and fetus, but whether the state isobligated to defend or weigh the rights of either atall when they are not in alignment with that state'sown moral preferences. "Pro-choice" voters have everyreason to oppose a change but "pro-life" voters shouldbe wary of this largely conservative-dominated pushfor change as well.At heart, the battle over the judicial nominees hasmore to do with state power and the limits the Courtmay set upon those who would intrude upon our libertyinterests. If the conservatives succeed in overturning Roe v. Wade using this second approach, the legal validity of other court rulings protecting other non-enumerated rights, particularly relating to privacy (Griswold v. Connecticut protecting a married couple's right to contraception and consequently non-procreative intimate conduct, Eisenstadt v. Baird and Carey v. Population Services protecting unmarried single's right to contraception, and Lawrence v. Texas protecting a same-sex couple's right to anon-procreative intimate conduct) are in jeopardy …”.– The Political Heretic

and here

“…If the state can, with no appeal to some otherperson's individual rights, bar a pregnant woman froman abortion and force her to carry that fetus to term,it can also force her to abort the child that she doeswant, impose a limit on the number children she cangive birth to, or require her to produce enough tomake quota. And if the state can decide for itself howmuch it will value another person's life by decidingwhether to protect the fetus and ban the procedure orallow women to do whatever it wants to that fetus, thestate can certainly use them as guinea pigs inexperiments, or use any number of subjective criteriato determine if it is desirable enough to entitle itto welfare….” – The Political Heretic

Do we really want to live in a country where each state can decide for itself what value it would give to a human life at any stage of development? Where the obligations each state has to protect the rights of its own is minimal and is of no consequence to the courts set up to protect our rights as American citizens? Can weever be truly free if it the state can regulate our most intimate and personal choices merely because to keep us in alignment for its stated moral goals? Canthe Democrats get away from this document paper traildodge and force the White House and judicial nomineesanswer those very questions? For our sake, let us hope they will win.

Wednesday, July 27, 2005

An Apology

In light of some very serious problems with my computer's Internet Explorer program, problems that I have to date been unable to fix and have made it all but impossible to go on the internet using it (thankfully I still have Netscape but that is not good for blogging on this site), I have not been able to do much blogging. In the short term I will have to type what I need to on Word, e-mail it to myself, open it from another computer, and then post it onto my web site during the limited hours that I have to do that so when I get back tonight I'll write what I will have to post tomorrow morning. Sorry for the inconvenience. I hope to buy a new computer shortly, for I do not want to be in the situation of having no internet access at all.

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Tancredo's Foolish Comments

In a response to a conservative talk show host's question about an American response should Islamic terrorists strike American soil again, Congressman Tom Tancredo (R-Colorado) said we can bomb Islamic Holy Sites in Mecca and elsewhere. Several spokes persons linked to Muslim American groups and the Hispanic American groups that were already out to get him for his sponsorship of tougher immigration policies, have since called on him to resign. Congressman Tom Tancredo has not backed down, and in fact, in an op-ed published Monday's Denver Post, dismissed accusations that were offensive by pointing to comments we may deem offensive - those put foward by radical Muslims calling for a Jihad against American civilian and military personnel alike.

Mr. Tancredo has every right, as an American citizen, to say what he wants but the Political Heretic believes these remarks were grossly irresponsible, inaccurate, needlessly provocative, and need to be repudiated by the political community at large.

The agenda put forward by Al Qaeda is not shared by the larger Muslim population for which ti is only one part of. Most reared in that faith live what for them are normal lives and do not enlist in the terrorist causes pushed by Al Qaedand other radical groups and even those radical groups do not share in the same agenda. Some of the very terrorist insurgents we are fighting in Iraq are the very Baathists we overthrew. Their goals are more limited and their fighting has so far been limited to the war in Iraq. That may change over time, but they do not share in the jihadist religious agenda that rationalizes (as opposed to justifies) the attacks on American, British, or Spanish soil. And of course there are Muslim Americans who seek what every American wants - the opportunity to live a relatively successful, economically self-sufficient life.

The congressman's comments were unjustified and may be used by some radical elements within our own country to justify attacks against peace-loving Americans. Fear-mongering is uncalled for, particularly for a congressman who is bound to represent people of all religious faiths and none within his own district

His comments may also be used by the very enemies we are fighting. By even suggesting that we bomb holy sites, Mr. Tancredo invites Al Qaeda and other like-minded terrorist organization to portray this as a war on Islam and that will help them win even more recruits from those who might otherwise have been peaceful law-abiding Muslim citizens. Our war should be confined to those Muslim theocrats who are out to destroy us and our way of life and not the Muslims who want to go about their daily lives in peace.

Mr. Tancredo's remarks were unfortunate and this blogger is sorry he made them. He is by far one of the very few in Congress advocating for tighter immigration - something we should all be in favor of now that we know terrorists will strike us and our allies anywhere. The congressman's remarks invite ridicule, however, from those who oppose him in that endeavor. They will now portray his welcomed (at least in this blog corner) efforts as nativist-inspired bigotry.

Monday, July 25, 2005

Two Articles on North Korea of Interest

The New York Times has two interesting articles that are worth reading concerning North Korea. The first article concerns bilateral discussions between American and North Korean officials and the second concerns the divergence in opinions concerning North Korea's nuclear testing intentions.

Sunday, July 24, 2005

Dan Asmussen With a Bonus

I know the icing on a cake should be eaten last but an exception needs to be made for the sarcastic San Francisco Chronicle columnist Mark Morford. Leaving aside the gratuitious and un-called for remark concerning young Republicans, and I quote:


"And there's tons of guns and bazookas and knives and disposable slutty chicks and viciously corrupt cops and piles of blatant racism and drive-by shootings and pipe beatings and low-rider cars with massive silly chrome rims, and you can veritably feel the imminent heroin overdoses and taste the toxic prison food these thug characters will soon enjoy, and it's just all manner of bitchin' badass video-game glory of sufficient quality to numb your teenage soul to the point where you become so callous and lost and malicious you're ready to join the Young Republicans when WHOA, what the hell is this?"

his basic point concerning the latest expressed outrage over Grand Theft Auto is on target:


"Suddenly that downloadable patch you installed last night kicks in and there's, like, a lame and badly animated sex scene, right there, right between the graphic bloody part where you bazooka'd the police helicopter and the part where the gang-banger gets his lame ass beaten with a large handgun, and suddenly you're like, what the hell? Who stuck this lame badly animated sex in here? Where'd my soul-numbing ultraviolent racism go? I am outraged.
You are outraged. You are livid. You immediately show this lame and badly animated sex scene to your slightly catatonic mom who takes one look and nothing registers for a minute and she just sort of stares at you as if to say, yes, what? At which point you point out that it's, like, badly animated soft-core porn! In your favoritest violent video game, fer chrissakes! And she says oh. Oh! "


Objections to the porn one can obtain is misplaced when the criticism is directed at something that is obtained through a code when the graphic violence readily accessible is not condemned.

Remaining on topic, sort of, The Bad Reporter's lates cartoon concerns Sex videotapes.

Thursday, July 21, 2005

Libertarian Legal Scholar Randy Barnett's Reaction on Judge Roberts

From The Volokh Conspiracy

" Am I being too hard on Judge Roberts? Perhaps. But I do know this. Writing an article, giving a speech, or even writing a column or blog about how the Constitution should be interpreted--taking a position, and defending it against all comers--is hard. Not the same kind of hard as standing up to judicial questioning in oral argument, to be sure. Almost completely different, actually. It requires a knowledge of one's own principles and an ability to articulate them and defend them publicly against contrary views. This is a type of trial by ordeal that hones one's beliefs and commitments. Consider it the academic equivalent of briefing and oral argument about one's judicial philosophy. Even engaging in private debate is no substitute for public disclosure and scrutiny by other scholars. John Roberts has been able somehow to avoid this ordeal throughout a long and distinguished career. This degree of avoidance would seem to have taken effort and discipline.In contrast, Judge Michael McConnell, to name another conservative, has been through this ordeal. As a law professor, he has had to make such a commitment about judicial philosophy and defend it. When it comes to originalism, he has practiced it himself, and the fruits of his analysis have been subjected to severe academic scrutiny. In doing so, he has earned the respect of his academic adversaries. But because he has a paper trail, McConnell would have had a much tougher confirmation fight, which I imagine entered into the decision to pick Judge Roberts instead. So we are still ducking and hiding from a debate over how the Constitution should be interpreted, beyond "not legislate from the bench." Will these questions be asked by the Senators? Maybe, but not likely. Will they be answered by the nominee? Only if asked, and then I expect to get answers that the Senators want to hear, delivered in a calm, cool, articulate and thoughtful manner. In a word, "boring." I predict no gavel-to-gavel network coverage. Even CNN and Fox News will cut away. C*SPAN will end up having this one all to itself."

Oh I hope he's wrong and the networks do provide gavel-to-gavel network coverage.


Judge Roberts on Tracey v. Hedgepeth

Balkinization also provides the link to the Judge Robert's opinion on the girl who was arrested and held in detention for eating one french fry on the train. It may be an unpopular decision but the legal reasoning applied seems in line with the Supreme Court's ruling on a case in which a woman was arrested after the police saw her children sitting in the front of the car without a seatbelt.

Nothing in his opinion reveals anything about his view about Equal Protection Analysis. He correctly used rational basis analysis since age is not a suspect or even quasi-suspect class. The law treats adults and minors differently in a whole wide array of areas. They are banned from smoking, consuming alchohol, driving, signing up for the military without parental consent, and voting, tried as minors and just as recently, barred juvenile executions. Why? Because minors are less morally culpable, less immature, and less rational. Age-based discrimination, particularly that as applied to minors, is not based upon a desire to harm a prejudged group - we were, afterall, children once.

But I am digressing. Judge Robert's opinion says nothing about his equal protection clause jurisprudence. Rational basis can be applied in two different ways and this case allowed him to apply it by giving broad deference to the legislative body that issued this "no tolerance week" law enforcement without qualifying that deference to the case at hand. The Supreme Court's rulings in City of Cleburne v. Cleburne Living Center (which was mentioned but only insofar as he referred to the Court's decision to deny heightened scrutiny) , and Romer v. Evans (which, he did not acknowledge in his opinion at all).

In these two cases, the Supreme Court applied rational basis to strike down as unconstitutional a zoning ordinance that required special permits for housing for the mentally retarded (the first case), and a constitutional amendment forbidding any kind of protection from anti-gay discrimination in public.

It would have been reassuring if Judge Roberts, reaffirmed the six-member majority's viewpoint on Equal Protection that rational basis analysis cannot be used to legitimize discrimination bsaed upon prejudice, or irrational fears.

Just some More Links Concerning Legal Debate

"It means absolutely nothing that NARAL and Planned Parenthood attack him: They also attacked Sandra Day O'Connor, Anthony Kennedy and David Hackett Souter.

The only way a Supreme Court nominee could win the approval of NARAL and Planned Parenthood would be to actually perform an abortion during his confirmation hearing, live, on camera, and preferably a partial-birth one. " Ann Coulter


Stupid, and, no, she is wrong to suggest "stealth nominees have never turned out to be a pleasant surprise for conservatives." Justice Byron White (appointed by President John F. Kennedy) was a pretty good conservative, voting to uphold most religious-aid cases, and consistently against abortion and gay rights. Justice Byron White was fairly liberal on pornographic dance clubs but the same can be said about Justice Thomas and his votes against internet pornography restrictions.


For more substantive arguments from the conservative side of the issue (and of course, if you read my article on post-O'Connor jurisprudence, I'm not with the conservatives on Constitutional interpretations), check the National Review's editorial board and Senator Rick excerpts from Santorum's "It Takes a Family" that made it into the magazine. (I think I dwelved into some implications of his argument in "Post O'Connor Jurisprudence" and his latest - a call to end religious neutrality, has been addressed before. And he's a presidential prospect? Oh boy. Do we really need the Christian version of Iran?





Wednesday, July 20, 2005

Balkinization and Roberts

Jack M. Balkin has some interesting information concerning Circuit Judge Roberts (the french fry case) and, if you scroll down a bit, how abortion rights can be severely curtailed without overturning Roe v. Wade on technical grounds. I don't know how that would affect the other non-enumerated rights so there will be no comments on that for now but it is well worth a read.

For now I'm non-commital but I will read the latest posted on his site and perhaps later offer some comments on it.

Roberts Nominated To Succeed O'Connor

Well, the president once again fulled everybody in the journalism business and appointed a known solid conservative who once clerked for Chief Justice William Rehnquist to replace swing voting Sandra Day O'Connor. Circuit Court Judge John G. Roberts Jr. of the District of Columbia has the intellectual rigor anyone would be looking for, having graduated summa cum laude from Harvard and served as managing editor forthe Harvard Law Review.

The conservatives in the senate are uniting behind the president and moderate Senate Judiciary Committee Chairman Arlen Specter seemed quite impressed given his facial expression following the announcement though he has reserved comment as to whether Mr. Roberts' nomination will be ratified easily.

Most believe Mr Bush will get his justice. The conservative Republicans had the votes to change filibuster rules in their favor and several Democrats (Mark Pryor, Mary Landrieu, Robert Byrd, and Ken Salazar) were elected in Republican states and others like Joseph Lieberman said he would not filibuster this nominee.

Mr. Roberts' track record on the contentious moral issues cannot be pidgeon-holed. The nominee was acting on his employer's behalf when he joined in a brief urging the Supreme Court to overturn abortion rights and his comments affirming his commitment to stand by Roe since it was "settled law" while seeking a judgeship says nothing about his thoughts about overturning it as a Supreme Court justice.

I urge everyone to read my comments titled "Post O'Connor Jurisprudence below so they can see why I believe in a thorough but civilized hearing on this justice.

This blogger does not yet know whether he supports Mr. Roberts' nomination or not. He is keenly interested in how Mr. Roberts will answer challenges before the senate's judicial panel.
We know, from hearings conducted in 2003, that he expressly distinguished opinions he made as a lawyer acting on the government's behalf from his own personal views which he kept private, and that he declined to criticize judicial precedents that (at that time expected) he would be charged to uphold.

Mr. Roberts is conservative no doubt. In a response to a question put forward by Senator Charles E. Schumer (D-New York), he said the following:

"My own judicial philosophy begins with an appreciation of the limited role of a judge in our system of divided powers. Judges are not to legislate and are not to execute the laws. As Chief Justice Marshall explained in Marbury v. Madison, however, "[i] is, emphatically, the province and duty of the judicial department, to say what the law is." That duty arises from the constitutional responsibility to decide particular cases, which Marshall identified as the basis for independent judicial review -- the unique American contribution to political science. My judicial philosophy accordingly insists upon some rigor in ensuring that judges properly confine themselves to adjudication of the case before them, and seek neither legislate broadly nor to administer the law generally in deciding that case.

Deciding the case calls for an appreciation of both the strengths and shortcomings of the adversary system, adherence to precedent and reliance on the traditional tools of the judicial craft, and an openness to the wisdom offered by colleagues on a panel. It also requires an essential humility grounded in the properly limited role of an undemocratic judiciary in a democratic judiciary in a democratic republic, a humility reflected in doctrines of deference to legislative policy judments and embodied in the often misunderstood term "judicial restraint." That restraint does not mean that judges should not act against the popular will -- that Framers expected them "calmly to poise the scales of justice," as Judge William Cranch put it, even "in dangerous times." But it does mean that, in doing so, they should be ever mindful that they are insulated from democratic pressures precisely because the Framers expected them to be discerning the law, not shaping policy. That means that judges should not look to their own personal views or preferences in deciding the cases before them. Their commission is no licse to impose those preferences from the bench."

Juge Roberts should not be asked how he would rule in any particular case. Justices are expected to confine their rulings to the facts in any given issue. But the panel should challenge him on his judicial philosophy and explore how that view would impact the claims of and obligations we impose upon, the state and federal governments in general. A good question to ask is how he, as a justice would draw the boundary between what is "discerning the law," as in "constitutional law" and what is "shaping policy." What does the Constitution define as the social contract between the individual and the state.

Does he believe that our Constitution grants state power (conducted by state, federal, and local governments) broad discretion to intrude upon our lives and narrowly define our rights to those that are explicitly stated in it or does he believe in the legal jurisprudence that, however inconsistently, limits the government's intrusion into our lives by requiring it to justify its regulations?

How does he interpret those explicitly stated rights found in the Constitution? Does the First Amendment's free speech protections extend beyond political speech to include that which most find unworthy (hate speech, pornography, obscenity, "indecent"?) Does the religious establishment clause prohibit coercion, endorsement, or religious funding? Does his interpretation of coercion include the psychological coerction Justice Kennedy referred to in Lee v. Weisman or is it limited to bodily compulsion? Can the state bring the church into the classroom or does the establishmentment clasue confine enforced religious practices to those areas where attendance is not obligated? Does the Second Amendment protect a right to bear arms or does it refer to powers granted to militias?

Here, again, Mr. Roberts' views regarding textualism and originalism are unclear.

"But I would not say that there is one Justice's judicial philosophy I would strive to copy. The reason is that I do not believe that beginning with an all-encompassing, categorical judicial philosophy or uniform approach to constitutional questions is the best way to faithfully construing the Constitution. In particular, the different approaches may be better suited to different constitutional provisions. To take one extreme example to illustrate the point, it seems clear that a literalist or textualist approach is the only suitable one for construing a provision like Article I, section 7, clause 3, requiring a "two thirds" vote to override a veto. Not even the most ardent believer that changing societal mores should inform constitutional interpretation woudl suggest that, in light of such changing norms, two-thirds ought to be read as three-fifths. At the same time, an approach focusing solely on the constitutional text sheds only limited light on what constitutes an "unreasonable" search or seizure prohibited by the Fouth Amendment."

Does the Equal Protection Amendment a promise that requires federal, state, and local government agencies to justify any class-based distinctions or will he overlook any non-gender or non-racial based discrimination claim? Justices Kennedy voted against affirmative action because he viewed it is discriminatory.

Justice O'Connor supported discrimination there because she believed it was needed to level the racial playing field and promote diversity. Both justices voted to strike down as uncosntitutional a law that rendered a whole class unequal and unworthy of protection because of their defined sexual attractions but they probably would uphold more limited sexual orientation-based class distinctions like those that define marriage in heteroexclusive terms. Neither justice were (or in Kennedy's case, still "is") guaranteed votes on equal protection cases but they were fair and interpreted the 14th broadly. Will Mr. Roberts keep an open mind in each discrimination case or will he vote along the lines of Scalia and simply defer without consideration of the merits in any case to the government in any discrimination case not involving race-based classifications?

The People For The American Way, to no one's surprise, has come out against the president's nomination. Its reasons can be found here (PDF) but it probably would have opposed any nominee the president put forward.

Let's hope for a civilized but thorough hearing on these issues.

President to Announce HIs First Justice Pick Tonight: Rumored to Be Judge From 5th Circuit

President George W. Bush will announce his pick for Justice Sondra Day O'Connor later on tonight. Judge Edith Clement, an appeals court judge from the 5th Circuit Court of Appeals, is rumored to be the odds on favorite. Judge Edith Clement is a member of the conservative Federalist Society but like has no real track record on the contentious social issues on abortion, gay rights, religious establishment, affirmative action, and privacy rights in general which will make it harder for the Democrats to paint her as an extremist. David Souter had no track record when President George Herbert Walker Bush nominated him for the Supreme Court but he sided with the liberals on most of these social issues when considered by the Court. Howard Arkes is cognizant of this risk, but as he points out it is a risk for those on both sides of the judicial divide. Conservatives may have a "stealth" candidate in Clement, one who will overturn forty-years worth of judicial precedents overturning privacy rights, establishment clause jurisprudence, and civil rights, or they may have another disappointment. Let's hope the Democrats and moderate Republicans ask the right questions.

By the way, notice how the media has up until now saturated its news content with the CIA leak? While journalists sandbagged Karl Rove, President Bush was able to review judicial nominees without any more pressure from the moderates. Now Bush turned the attention away from Rove and back onto the judicial selection when he wanted to. Clever.

Tuesday, July 19, 2005

Some Faint Hope for Moderate Justice?

In my last piece I suggested a reason as to why we those of us on both sides of the abortion debate should put those differences to the side for now, unite behind a consensus moderate justice who will not overturn judicial precedents, and reject a justice who shares Justice Antonin Scalia's constitutional jurisprudence.

I don't believe President George W. Bush will pick any moderates and I don't think any Republicans will break ranks and bar an up or down vote on the nominees but there is a slight, (and I do mean slight) chance that enough Republicans will break ranks and vote against a conservative extremist.

Senate Judiciary Committee Chairman Arlen Specter (R-PA) said the president should appoint a moderate to preserve the balance on the Court and according to this article, Senators Lincoln Chafee (R-R.I.), Susan Collins (R-Maine), Olympia Snowe (R-Maine), and Lisa Murkowski (R-Alaska) have also said they wanted someone "stike a balance."

I don't know if he was speaking seriously but Senator John McCain (R-Arizona) said Fred Thompson, a former senator from Tennesse, actor, and consultant on the president's judicial nominations" would make a good candidate on Jay's Leno's "The Tonight Show."

The key question of course, is if there are enough independent-minded Republicans willing to break from the president to offset any Democratic defections (Robert Byrd - W. Virginia, Mark Pryor - Arkansas, and especially Ben Nelson - Nebraska).

Saturday, July 16, 2005

Post O'Connor Jurisprudence on Abortion Concerns Freedom In General More Than Abortion

Justice Sandra Day O'Connor's pending retirement from the United States Supreme Court no doubt has caused some political infighting from abortion rights supporters and opponents because she cast the deciding swing vote striking down as unconstitutional a Nebraska statute prohibiting doctors from performing partial-birth abortions. (Anthony Kennedy, the other conservative swing justice who voted to affirm abortion rights in Planned Parenthood of Southeast Pennsylvania v. Casey , joined with the dissenters on this ruling). Whether President George W. Bush is successful in filling her seat with a more conservative justice or not, Roe v. Wade will not be overturned overnight. Justice Kennedy would still cast the deciding vote to affirm it as already explained in my previous writings and most conservatives expect that to be the case whether they like ot or not.

They look, however, to Justice John Paul Steven's future retirement and hope it will occur within the next two years of President Bush's administration or, failing that, in the next one should the Republicans hold on to the White House. Mr. Stevens is the oldest member of the liberal coalition on the Supreme Court and has voted against the most recent abortion restrictions, putting him to the left of Anthony Kennedy (the most right-leaning of pro-abortion rights justices), Sandra Day O'Connor, and David Souter. Mr. Kennedy's vote would not matter if O'Connor, William Rehnquist (who is expected to retire by the end of our president's second term) and Stevens were replaced by solid constitutional originalists in the tradition of Robert Bork or Justice Scalia.

Abortion rights may be front and center in the cultural war and in the judicial nominating process for today's senators and the abortion activists from both sides of the divide that are pressing them to vote one way or the other, but the consequences that would follow a reversal on abortion jurisprudence extend far beyond that - a fact that is not as widely known among those who are not involved in the battle over abortion.

Two Ways to Overturn Roe v. Wade

I should at the moment explain why their (and the journalists') obsession with abortion is misplaced. Roe v. Wade can be overturned in one of two ways. The Supreme Court may:

(1) use the 14th Amendment's Due Process and Equal Protection Clauses to recognize, for once and for all, that a fetal being has a similar liberty interest in right to life as that of an infant and that because an infant has that right (due process substantial liberty claim), the fetal being that is similarly situated (equal protection standard) must have that right as well.

or

(2) say that no such right to an abortion is found in the Constitution and return the matter to the states, through their legislative bodies and people, to regulate.


The first approach would re-affirm judicial precedents affording a degree of protection to those who in the past were not thought of as entitled to such protection (Catholic parents who send their children to parochial schools, women, hippies, the disabled, the mentally retarded, unmarried intimate couples,, and gays) without seriously undermining other liberty claims relating to privacy and other non-enumerated rights, but at the cost (at least in the "pro-choice" mind) of a nation-wide ban on abortion and a new restriction on women's procreative rights. Abortion rights activicts have more to fear here, since the state would be authorized and requiredto (1) shut down businesses that provide abortion services and (2) will impose an absolute ban on a procedure many unmarried women take for granted as an opt out should they want to engage in sexual activities.

Vote-counters in the legal and journalistic communities know that if Roe v. Wade is overturned, the Supreme Court will use the legal reasoning applied in the second approachh owever (which is favored by conservatives and religious activists anyway) because Chief Justice William Rehnquist, and his "strict constructionist" associates Antonin Scalia, and Clarence Thomas have said that they would let the people, through their state legislatures and referendums, decide on such matters. Note this excerpt from Scalia's dissent (in which he was joined by the chief justice and Clarence Thomas) in Planned Parenthood of Southeastern Pennyslvania v. Casey:

My views on this matter are unchanged from those I set forth in my separate opinions in Webster v. Reproductive Health Services, 492 U.S. 490, 532 (1989) (opinion concurring in part and concurring in judgment), and Ohio v. Akron Center for Reproductive Health, 497 U.S. 502, 520 (1990) (Akron II) (concurring opinion)> The States may, if they wish, permit abortion on demand, but the Constitution does not require them to do so. The permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting. As the Court acknowledges, "where reasonable people disagree, the government can adopt one position or the other." Ante, at 851. The Court is correct in adding the qualification that this "assumes a state of affairs in which the choice does not intrude upon a protected liberty," ibid., - but the crucial part of that qualification is the penultimate word.

A State's choice between two positions on which reasonable people can disagree is constitutional even when (as is often the case) it intrudes upon a "liberty" in the absolute sense. Laws against bigamy, for example - with which entire societies of reasonable people disagree - intrude upon men and women's liberty to marry and live with one another. But bigamy happens not to be a liberty specially "protected" by the Constitution. - Justice Scalia

California's legislature has already passed a law upholding its abortion rights stand should the Supreme Court reverse course on abortion jurisprudence and it would be constitutionally acceptable to Justice Scalia if that or any other pro-choice leaning state like New York or New Jersey were to publicly fund abortion procedures, if otheranti-abortion states like Alabama or South Carolina decided to ban all such procedures that are not not performed to save a woman's life, and if other states like Pennsylvania and Michigan seek a middle-of-the-road position.

Not Just Abortion At Stake; This Is Primarily About State Power

And this leads us to consider why social conservatives, especially those who believe in a religious-centered state, would wholeheartedly support the second approach, for what is at issue here is not how far a state may go in balancing the competing rights claims of the pregnant mother and fetus, but whether the state is obligated to defend or weigh the the rights of either at all when they are not in alignment with that state's own moral preferences. "Pro-choice" voters have every reason to oppose a change but "pro-life" voters should be wary of this largely conservative-dominated push for change as well.

At heart, the battle over the judicial nominees has more to do with state power and the limits the Court may set upon those who would intrude upon our liberty interests. If the conservatives succeed in overturning Roe v. Wade using this second approach, the legal validity of other court rulings protecting other non-enumerated rights, particularly relating to privacy (Griswold v. Connecticut protecting a married couple's right to contraception and consequently non-procreative intimate conduct, Eisenstadt v. Baird and Carey v. Population Services protecting unmarried single's right to contraception, and Lawrence v. Texas protecting a same-sex couple's right to a non-procreative intimate conduct) are in jeopardy.


Conservative Jurisprudence: Democratic State Power Preferred over Individual Liberty Rights That Are Not Explicitly Stated or Commonly Accepted At Nation's Birth

Justices Scalia, Clarence Thomas, William Rehnquist, and others whom the president may pick who match their judicial viewpoints believe our rights are limited to those specifically outlined in the first ten constitutional amendments and those "rooted in our country's traditions."

Note this excerpt from Justice Scalia's Casey dissent:

That is , quite simply, the issue in this case: not whether the power of a woman to abort her unborn child is a "liberty" in the absolute sense; or even whether it is a liberty of great importance to many women. Of course it is both. The issue is whether it is a liberty protected by the Constitution of the United States. I reach this conclusion not because of anything so exalted as my views concerning the "concept of existence, of meaning, of the universe, and of the mystery of human life." Ibid. Rather, I reach it for the same reason I reach the conclusion that bigamy is not constitutionally protected - because of two simple facts: (1) the Constitution says absolutely nothing about it, and (2) the longstanding traditions of American society have permitted it to be legally proscribed. - Justice Scalia

Of course that argument applies to fetus' right to life as well. The fetal person's rights may be a "liberty in the absolute sense" and it may be a "liberty of great importance" but according to Scalia, "the issue is whether it is a liberty protected by the Constitution of the United States." Since the Constitution makes no reference to when life begins, or for that matter, whether or not that right can be taken away if "due process" is followed and he reaches "the conclusion not because of anything so exalted" as his "views concerning the 'concept of existence, of meaning, of the universe, and the mystery of life.'"

The religious conservatives have no problem with that ruling since it bolsters their claim that the society may impose its moral values on the dissenters in the name of "the public good" or biblical morality. They think moral relativism, religious indifference, and individualism are destroying the nation's social fabric and a ruling that overturns judicial precedents and places decisions about proper moral conduct in the hands of the society at large. The conservatives will gamble and let the public decide on abortion in each state since it gives them a chance to ban abortion that is not available now and bolsters their claim to regulate our moral conduct in other areas.

If the state can, with no appeal to some other person's individual rights, bar a pregnant woman from an abortion and force her to carry that fetus to term, it can also force her to abort the child that she does want, impose a limit on the number children she can give birth to, or require her to produce enough to make quota. And if the state can decide for itself how much it will value another person's life by deciding whether to protect the fetus and ban the procedure or allow women to do whatever it wants to that fetus, the state can certainly use them as guinea pigs in experiments, or use any number of subjective criteria to determine if it is desirable enough to entitle it to welfare.

In theory, the state can do anything to us our Founding Fathers never envisioned it having the capacity or moral authority to do in the name of its preferred moral standards, be they religiously-inspired or not if the Court adopted the originalist approach championed by Justice Scalia and company.


Current Legal Jurisprudence: Broad Non-Enumerated Individual Liberty Rights Are Protected From Overly Intrusive Democratic and Non-Democratic State Governments

The prevailing legal theory upheld by 5-4 majority in Casey and the 6-3 majority held on the present court voted to protect the woman's three- decade-long right to an abortion because they believe that our rights as American citizens are not limited to those clearly enunciated in a Bill of Rights but extend to any areas where the fundamental liberty of a person are at stake.

Note quote from the Casey opinion co-authored by Justices Kennedy, O'Connor, and Souter:

"It is also tempting, for the same reason, to suppose that the Due Process Clause protects only those practices, defined at the most specific level, that were protected against government interference by other rules of law when the Fourteenth Amendment was ratified. See Michael H. v. Gerald D., 491 U.S. 110, 127-128. n. 6 (1989) (opinion of SCALIA, J.). But such a view would be inconsistent with our law. It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter. We have vindicated this principle before. Marriage is mentioned nowhere in the Bill of Rights, and interracial marriage was illegal in most States in the 19th century, but the Court was no doubt correct in finding it to be an aspect of liberty protected against state interference by the substantive component of the Due Process Clause in Loving v. Virginia, 388 U.S. 1, 12 (1967) (relying, in an opinion for eight Justices, on the Due Process Clause). Similar examples may be found in Turner v. Safley, 482 U.S. 78, 94-99 (1987); in Carey v. Population Services International, 431 U.S. 678, 684-686 (1977); in Griswold v. Connecticut, 381 U.S. 479, 481-482 (1965), as well as in the separate opinions of a majority of the Members of the Court in that case. ..." - Justices Kennedy, O'Connor, and Souter

and

this "liberty" is not a series of isolated points pricked on in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, ... And which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment." - Justices Kennedy, O'Connor, and Souter.

Therefore,

Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. Carey v. Population Services International, 431 U.S., at 685. Our cases recognize the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child. Eisenstadt v. Baird, supra, 405 U.S., at 453 (emphasis in original). Our precedents "have respected the private realm of family life which the state cannot enter." Prince v. Massachusetts, 321 U.S. 158 166 (1944). These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personating were they formed under compulsion of the state. - Justices Kennedy, O'Connor, and Souter.


Here:

Men and women of good conscience can disagree, and we suppose some always shall disagree, about the profound moral and spiritual implications of terminating a pregnancy, even in its earliest stage. Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code. The underlying constitutional issue is whether the State can resolve these philosophic questions in such a definitive way that a woman lacks all choice in the matter, except perhaps in those rare circumstances in which the pregnancy is itself a danger to her own life or health, or is the result of rape or incest. - Justices Kennedy, O'Connor, and Souter

And finally here:

It should be recognized, moreover, that in some critical respects, the abortion decision is of the same character as the decision to use contraception, to which Griswold v. Connecticut, Eisenstadt v. Baird, and Carey v. Population Services International afford constitutional protection. We have no doubt as to the correctness of those decisions. They support the reasoning in Roe relating to the woman's liberty, because they involve personal decisions concerning not only the meaning of procreation but also human responsibility and respect for it. As with abortion, reasonable people will have differences of opinion about these matters. One view is based on such reverence for the wonder of creation that any pregnancy ought to be welcomed and carried to full term, no matter how difficult it will be to provide for the child and censure its wellbeing. Another is that the inability to provide for the nurture and care of the infant is a cruelty to the child and the anguish to the parent. These are intimate views with infinite variations, and their deep, personal character underlay our decisions in Griswold, Eisenstadt, and Carey. The same concerns are present when the woman confronts the reality that, perhaps despite her attempts to avoid it, she has become pregnant. - Justices Kennedy, O'Connor, and Souter

In their view, the conservatives have it backwards. . The question is now what limited rights the Constitution grants to the citizens but what limited powers it grants to the state and what rational basis the state can offer to subject the individuals to restrictions on their liberty.

The constitutional Bill of Rights offer vague promises, particularly when dealing with the 2nd, 9th and 10th Amendments but the pro-Roe majority know that a government given the broad authority to intrude upon people's lives and only limited by those rights the public is able or willing to explicitly list in a Constitution is not in conformance with a free state or the tradition of a people who expressed very crtical view towards big government.

Free people do not have to explain when, how, and where they obtained certain rights; they force the government to explain, why and how it will impose restrictions upon their lives and how it could do so as narrowly as possible. Liberty rights are assumed to be valid until it can be shown that restrictions are needed to protect the rights of others. The state must provide a rational basis upon which to justify that restriction and the subjective religious morality of any given majority is not enough to justify intrusions upon intimate decisions.

Roe v Wade and Casey v Planned parenthood Relied Upon Freedom-Affirming Legal Jurisprudence But Overturning Abortion Rights Can And Should Be Done Without Overturning The Right To Privacy

I do not wish for a moment to dismiss the claim put forward by the "pro-life" movement or for that matter wish to affirm the right to an abortion. This blogger does not support the abortion of a fetus or for that matter an embryo that has a developed neurological system. He believes Roe v. Wade and Planned Parenthood v.Casey were incorrectly decided and hopes the Court will someday overturn them utilizing the equal protection and due process grounds described in option 1.

When Justice Blackmun wrote the 7-2 opinion striking down a Texas abortion prohibition in Roe v. Wade, he unduly gave too much weight to the differences in opinions on the fetus' life claim, and too much credence to societal attitudes regarding the fetal organism's humanity or lackthereof when such dismissive attitudes justified discrimination to others given the short end of the stick (note for instance, Americans shortly before and during our entry into World War I, Japanese-American citizens held at interment camps during World War II, African Americans subjected to slavery and Jim Crow laws, Catholics long regarded as the pope's subjects, and gay couples deprived of newly-found rights other unmarried heterosexual couples took for granted).
Here, again, an excerpt but this time from the opinion in Roe.

It should be sufficient to note briefly the wide divergence of thinking on this most sensitive and difficult question. There has always been strong support for the view that life does not begin until live birth. This was the belief of the Stoics. It appears to be the predominant, though not the unanimous, attitude of the Jewish faith. It may be taken to represent also the position of a large segment of the Protestant community, insofar as that can be ascertained; organized groups that have taken a formal position on the abortion issue have generally regarded abortion as a matter for the conscience of the individual and her family. As we have noted, the common law found greater significance in quickening. ... In areas other than criminal abortion, the law has been reluctant to endorse any theory that life, as we recognize it, begins before live birth or to accord legal rights to the unborn except in narrowly defined situations and except when the rights are contingent upon live birth. For example, the traditional rule of tort law denied recovery for prenatal injuries even though the child was born alive. That rule has been changed in almost every jurisdiction. In most states, recovery is said to be permitted only if the fetus was viable, or at least quick, when the injuries were sustained, though few courts have squarely held. " - Justice Blackmun

The fact that society never recognized a person's rights does not mean that he or she never had them to begin with and it is surprising that he would resort to such antiquated thinking in line with Justice Scalia's own appeal to tradition when dismissing the fetus' due process right interest while resorting to the liberal "penumbra" of non-enumerated liberty interest laim put foward by pregnant women.who want to abort their fetus.

Court majorities have admitted to faulty mudgments before and those have been overturned The Court's reliance on stare decisis (the court's preference to uphold its rulings lest they be dismissed as disputed political decisions of no constitutional value) is not absolute; it does nor require a pre-determined ruling for upholding abortion rights.

In addressing why the Supreme Court reversed course on Plessy v. Ferguson and repudiated its "separate but equal" characterization of segregation in Brown v. Board of Education the Casey majority relied upon facts not presently known or adequately considered at the time of Plessy.

They began with Plessy v. Ferguson, 163 U.S. 537 (1896), holding that legislatively mandated racial segregation in public transportation works no denial of equal protection, rejecting the argument that racial separation enforced by the legal machinery of American society treats the black race as inferior. The Plessy Court considered the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with the badge of inferiority. If this be so, it is not by reason of anything found into he act, but solely because the colored race chooses to put that construction upon it. Whether, as a matter of historical fact, the Justices in the Plessy majority believed this or not, see id., 557, 562 (Harlan, J., dissenting), this understanding of the implication of segregation was the stated justification of the Court's opinion. But this understanding of the facts and the rule it was stated to justify were repudiated in Brown v. Board of Education, 347 U.S. 483 (1954) (Brown I1). As one commentator observed, the question before the Court in Brown was whether discrimination inheres in that segregation which is imposed by law into he twentieth century in certain specific states in the American Union. ... The Court in Brown addressed these facts of life by observing that whatever may have been the understanding in Plessy's time of the power of segregation to stigmatize those who were segregated with a "badge of inferiority," it was clear by 1954 that legally sanctioned segregation had just such an effect, to the point that racially separate public educational facilities were deemed inherently unequal. Society's understanding of the facts upon which a constitutional ruling was sought in 1954 was thus fundamentally different from the basis claimed for the decision claimed in 1896.





The same was true in when the Supreme Court in Lawrence v. Texas struck down as unconstitutional sodomy laws on the basis that it was not in conformance with the legal precedents that came before it:

The Court began its substantive discussion in Bowers as follows: “The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very longtime.” Id., at 190. That statement, we now conclude, discloses the Court’s own failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse. The laws involved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.
This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects.
It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.
Having misapprehended the claim of liberty there presented to it, and thus stating the claim to be whether there is a fundamental right to engage in consensual sodomy, the Bowers Court said: Â&#proscriptionions against that conduct have ancirootsots.” Id., at 192. In academic writings, and in many of the scholarly amicus briefs filed to assist the Court in this case, there are fundamental criticisms of the historical premises relied upon by the majority and concurring opinions in Bowers. Brief for Cato Institute as Amicus Curiae 16—17; Brief for American Civil Liberties Union et al. as Amici Curiae 15—21; Brief for Professors of History et al. as Amici Curiae 3—10. We need not enter this debate in the attempt to reach a definitive historical judgment, but the following considerations counsel against adopting the definitive conclusions upon which Bowers placed such reliance. - Justice Kennedy, writing for the 5-justice majority.

The Court reversed its ruling in Bowers because the majority had, in its views, "misapprehended the claim of liberty" by attempting to "define the meaning of the relationship" and failed to distinguish that from the similar claims recognized by married and unmarried couples seeking non-procreative intimacy and then, to add on to that, it relied upon "historical presmises" that were subject to "fundamental criticisms."

And the same may eventually be said about the abortion today. Our understanding of the facts involved may change overtime. The Court might give more weight to the fetus' sentient and other human-like qualities (like bodily organs not unlike that of fully developed human) that entitle it to nearly the same if not equal deference given to the infant. And it could do so by distinguishing between the risks abortion rights places on the claims of a sentient fetus from the lack of competing liberty right claims implicated in its rulings on contraception and "sodomy."

Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew that times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress." - Justice Kennedy, for the Court

The effect on abortion rights is for sure broader than that conservatives would impose, but the claim on liberty in general would be tightly restricted stricted to those claims where another's rights are implicated.

"The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny" subjecting their claim to life to the whims and fantasies of either itself or the pregnant mother.

I added the last part, but as can be shown from that example and above, such a ruling would be in full conformance with liberal constitutional jurisprudence and would not damage our claims to privacy right sin other situations.

No To Scalias Though

But the immediate question before us is not the fetus' claim to a right to life or a woman's claim to an abortion but whether we as a society want a justice who will place restrictions on the government's ability to regulate our private lives or one who believes in a political free for all in which the state can choose whose rights it will value without concern, nod or deference to any others' constitutional rights. Those on both sides of the abortion issue should duly note that the legal reasoning used to justify a change in abortion rights jurisprudence can have far-reaching affects on liberty in general, and that is just as important as the judgment itself.

Those "pro-lifers" who understand what it could lead to should think twice before supporting the largely conservative-led push for a reversal for now and wait a more favorable line of judges and a voting public that would validate it.

Friday, July 15, 2005

No Photos

You're kidding me, right?

If Mexicans can sneak across the southern border with impunity, terrorists who fly to Mexico can do so too. Border control is essential for our safety.

Dan Asmussen

The Bad Reporter reminds us that launches into space are not alone in having defects. Then, the likely response from Republicans and Democrats should Scott McClellan enter a persistent vegetative state following Karl Rove's disclosure as Matt Cooper's source on the CIA agent.

Thursday, July 14, 2005

Some People are Sooo Dumb!

1. Flip-flops during the bull run? Come on! She was asking for it.

Brought to you by Keith Olbermann on his MSNBC show:

"And number one: It's that time of the year in Spain, July's nine-day festival of boozing and animal cruelty known as the running of the bulls in Pamplona. Each day, nine bulls, who have no idea they're headed for execution in the ring, charge through the cobblestone streets being taunted by drunken morons who actually think they are the ones cheating death. So far, there have been no major injuries among the drunken morons, but the same cannot be said for the four-legged runners.
It is for this reason we always say root for the bulls, the only participants who did not volunteer for this.
(END VIDEOTAPE)
Flip-flops. The woman who got hurt, from Canada, was wearing flip-flops during the running in Spain—of the bulls in Pamplona, Spain."



Dr. Rice Missing In Action

Secretary of State Condoleeza Rice said she will not attend this year's meeting among the Association of Southeast Asian Nations and will instead be sending her deputy, Robert B. Zoellick, instead. The convention will start on July 24 and it is supposed to end on July 29 but she apparently has a scheduled trip in Africa at that time.

According to press reports, Dr. Rice would be the first secretary of state in nearly two decades to miss this diplomatic convention and some high-level officials from within Asia are treating this as a diplomatic snub. The press report goes on to suggest that she views meetings of this sort as "routine summitry" but these meetings may be important to the very people she may want or have to negotiate with in the future. China is an emerging superpower which is competing with us for Central Asia's oil supplies and it has been courting relationships with its neigbors to the west, south and east. We may want to re-affirm and solidify our relationships with these countries just in case China decides to use its new status in a way that is not in alignment with our own interests in the region.

And Islamic terrorists struck Bali, Indonesia almost 3 years ago, killing 200 people. Indonesia, Malaysia, the sultanate of Brunei, and India have sizable Muslim populations that cannot be ignored. While they cannot all be lumped in with the terrorist extremists who maim and kill in the name of Allah, they may have nationalistic pride and religious concerns that can be used against us when we are perceived as uncaring. Dr. Rice's visit to tsunami relief areas was important but a meeting with those countries which deal with Muslim extremists in their own countries is just as important. Islamic extremists struck Bali, Indonesia 2 years ago, killing 200, and they may strike again.

Our war with terrorist extremists is global. Those who identify with Osama bin Laden's values have now struck in New York City twice, Bali, Madrid, and London. They may yet strike again at either a place they already hit or somewhere else, now or sometime in the future.

However insignificant these international meetings may be, they remain for those who participate a means to solidify, establish and re-affirm important negotiating channels that may be needed in the future. Symbolic acts of friendship can go a long way in solving disputes that may arise between and among nations and the Secretary's presence for a meanigful period of time is warranted. Dr. Rice should at minimum re-schedule her trip to Africa so that she can be there for at least two of the five days.

A Gonzalez Pick in Trouble

I don't believe Alberto Gonzalez will be chosen to replace Sondra Day O'Connor. The conservatives who believe he is squishy on abortion and affirmative action won't have him, and the Democrats made a big deal (with good reason I might add) about his record on terrorism when he was appointed to replace John Ashcroft when he resigned. They could choose to avoid that question but then reporters would ask again, for good reason, why he was given a pass if he supported activities that they consider beyond the pale.

President Bush said he likes Mr. Gonzalez did not approve of any attacks on Mr. Gonzalez' character but that does not matter for the conservatives have found a new way to deny him a nomination by focusing on any terrorist-related cases that would be taken up by the Supreme Court.

South Korea's Generous Offer

South Korea's Unification Minister Chung Dong Young said his government is giving the North Koreans "one last chance" to dismantle its nuclear weapons program and offered to provide the communist-led north with electric power comparable to the output of the two nuclear power plants it would have received under a 1994 agreement with the United States and South Korea.

The Clinton administration agreed to help finance the construction of two nuclear power plants if the North Koreans agreed to scuttle its nuclear weapons program at a suspected facility and open its country up for weapons inspections. President George W. Bush said the North Korean regime continued its nuclear weapons program, withdrew his predecessor's offer for two power plants, and lumped North Korea with Iran and Iraq as members of an "axis of evil" in a speech he delivered before going to war with Iraq.

In February the North Korean government "admitted" that it has nuclear weapons, and weapon production capabilities and insisted upon bilateral talks with the United States but last week it announced its intention to return to the six-member talks on or about July 25.

Press reports credit South Korea's effort for enticing North Korea back to the negotiating table. South Korea's Unification Minister spoke to officials in Pyongyang before making the announcement and said other countries (including the US) would have to offer its own incentives for a successful resolution of this stalemate at the negotiating table.

U.S. Secretary of State Condoleeza Rice called it a "very creative idea" that would provide for North Korea's energy needs without increasing the risk of nuclear proliferation and now suggests that it was a part of the American strategy all along.

Coupled with the threat of sanctions for noncompliance and an American guarantee against invasion this plan may work and far better from our outlook than the one proposed by the Clinton administration. If the six nations could agree on this proposal, the North Koreans would be deprived of not only those nuclear warheads they created but also any means to hide its weapons program behind a similar program designated for "civilian use." One must wonder if the South Korean government and the Clinton administration proposed this and if not why they did not and instead opted to give the North Koreans something of higher value.

South Korea's agreement may lead to a comprehensive peace agreement with the communist-led regime in the north but skepticism is warranted. The North Koreans have in the past, agreed to enter six-member talks and then withdraw from them with nothing accomplished and by its own admission it did not comply with the 1994 agreement it reached with its neighbor to the south and the United States.

Pyongyang has every incentive to keep its nuclear weapons program. It's government has squandered its limited resources - resources it could have given to feed the civiians at their mercy - on military expenditures and luxury items for those high up in the leadership and the only means it can placate the public is through assistance from its neighbors. North Korean officials suspect with good reason that it would not gain assistance of this magnitude if it was not a nuclear power and it knows that sometime in the future, the South Korean people who will be forced to pay for expenditures like the electric power lines through higher taxes may grow wary and pressure their government to end this assistance once North Korea's relinquishment of nuclear capabilities is verified.

The current administration's support for this proposal is welcomed by this blogger. South Korea offers the North Koreans a reasonable agreement to provide for and placate a populace it could not effectively do on its own without providing it with a means to develop new nuclear weapons but the Political Heretic nevertheless believes we should get its neighbors behind a strict sanctioning regime should Pyongyang fail to comply and dismantle its weapons.

Tuesday, July 12, 2005

Some Blogging Plans or Preview

Okay. I've been too busy having fun on the weekend and was way too tired yesterday to blog but I promise to get back to my regular schedule shortly. The media in general is focusing on Karl Rove's involvement in CIA leak, the London bombing and the British police raids that followed them, the ongoing negotiations over Sondra Day O'Connor's replacement, Hurricane Dennis and the ongoing investigation over a missing young woman who spent some vacation time in Aruba (this story is getting way too much coverage but I'd rather not go there and give it any more credit or coverage than what it is due on this blog). I will comment on two if not all three of those stories within the next two days because they are all worthy of comment but ...

In the meantime, there are two news articles in The New York Times and The Washington Post concerning a South Korean provide its neighbor to the north with their electricity that would equal that which could have been provided by two American-promised nuclear reactors had the North Koreans abandoned their nuclear weapons ambitions. Details have yet to be disclosed and the administration is keeping its options open for now. This story deserves more attention in the tv media than it is getting and I will comment on it later on tomorrow if not tonight.

Until later.

Saturday, July 09, 2005

Dan Asmussen

Gonzalez' repositioning on abortion, the constitutional amendments' failure to deter Al Qaeda, and this crazy story tying in Russell Crowe's temper, Bush's faulty intelligence analysis, Kenny Rogers, and accusations concerning Iranian hostage takers.

Jack M. Balkin on O'Connor's Reading on Church Establishment

"The problem for a democracy like ours is accommodating these clashing views about morals, religion and politics, when they are made so fervently by people of such different prespectives. Some believe the country is falling into moral decay and can only be redeemed by their values; while others think government should impose their beliefs instead.
In Justice Sandra Day O'Connor's view, the key question was not whose values were right. It was how to preserve a deeper value in our constitutional tradition: equal citizenship. In a democracy, people may fight in the public square about the values government should uphold. But government must always treat its citizens as equal participants; it cannot favor one set over another because of their religious beliefs.
The principle of equal citizenship is often confused with separation of church and state, but the two are distinct. To secure equal citizenship, government need not cut itself off from religion or banish religious expression from the public square; what it must do is treat both the religious and the non-religious with an even hand."
Jack M. Balkin

I couldn't have said it any better. The Supreme Court struggled with its own precedents before Justice O'Connor offered her standard on non-endorsement and religious neutrality. It's ruling Everson v. Board of Education permitting local school boards the authority to reimburse parents for school transportation for those in public and religious schools were followed by cases involving textbooks, teacher salaries (including those at religious schools) multiple choice test grading machines, computers, overhead projectors and other teacher supplmentary materials.

The nine justices would ask if the public funding for such equipment aided religion directly and the student indirectly or whether that help aided the students first and the religion incidentally.
Justice O'Connor moved the Court away from that line of thinking and recaputred what the Founders believed to be its most fundamental purpose - to protect any of us from a government that makes our religious values relevant to our standing as full and equally dignified American citizens. Her split rulings on religious displays are case and point. Christian and non-Christian Americans alike celebrate Christmas with their family members for both secular and religious reasons. She saw no reason to exclude the religious component from government displays if it was a part of display which acknowledges the secularist and other non-Christian Americans as well. The government could acknowledge religious law as exemplified by the Ten Commandments as a part of its display of other laws that influenced our development as a country of law. But once a government chooses to focus on the religious components exclusively, it divides Americans by singling out one group's religious beliefs for public reverence while denying others rights.

His point on equal citizenship applies just as equally to her ruling on "sodomy" and her vote to join in Justice Kennedy's opinion striking down a constitutional amendment barring any and all government bodies operating on Colorado or its local communities' behalf from protecting gays from any discriminatory acts perpetrated against them. She left undecided the proper boundaries for discrimination based upon one's sexual attractions in Romer v. Evans but her vote was nevertheless a vote for equality and against needlessly and questionably broad unequal treatment.

Her two votes on are even more relevant. She voted with the majority in the now discarded Bowers v. Hardwick ruling that affirmed a state law barring certain sexual acts conducted by heterosexual and homosexual alike but rejected in Lawrence v. Texas a law that allowed one group (heterosexual couples) but not not the other (homosexual couples) the right to engage in those same acts. The first purportedly treats everyone equally in focusing on the nature of the said conduct but the second makes one's sexual attraction and consequently, that person's sexual identity, relevant in determining what is and is at minimum tolerated and what is at worst scorned or criminalized. The first was in her view, was a proper exercise in morals-based legislation but the second an act to make one unequal before the law. Agree or disagree (I prefer Kennedy's opinion myself, whatever its defects) but that's how she thought about religion and morality. The two are in her view relevant to our way of life but neither could be used to deny equality.

And What Bush Should Do

"Many people viewed Justice O'Connor as a fact- sensitive compromiser who lacked deep convictions. Her views on religion belie this reputation. She operated from a deep, powerful, and consistent principle: the principle of equal citizenship. It was simply a principle that others did not fully recognize or honor.
President Bush will soon nominate a new Justice to replace Justice O'Connor. The President is likely to choose someone who will please his political base of religious conservatives. But he would do the country a far greater service if he chose someone who respected Justice O' Connor's deepest insight: because we are a country of fundamentally differing views, the government's first obligation is not to save the country by instilling particular religious values. It is to treat all of its citizens, religious and secular, with equal respect."


Again, I have to agree. For the sake of our country President Bush should appoint someone who thinks like Justice O'Connor and Justice Breyer (I have some problems with Mr. Breyer's focus on divisiveness as a constitutional principle but it can inform a judge or justice as to whether a certain act, religious display or law endorses religion). The religious right want someone who will overturn long-recognized constitutional rights and a country that does make one's adherence to religion relevant to American citizenship and in particular want to idenfity American patriotism with Christianity. But we are a more pluralistic country now than we were when our country was founded. There were to be sure some Jews and some Moslems but the denominations have split further since then and we now recognize that the rights which extend to those groups must in principle extend to Hindus, Buddhists, and those associated with pagan religions. The same fear and entitlement that would lead a conservative Christian parent would have should their children be exposed to religious and moral values they oppose should lead them to fight for the non-adherent who does not want their child inculcated in religious and moral values they do not believe in. Schools that allow students to form an extracurricular club around religious values should allow gays and those who espouse secular morality to form their own clubs lest they be viewed as outsiders and as groups worthy of discrimination across the board.

And vice versa. The school that recognizes gay clubs and a host of secular clubs should also allow for the creation of religiously-inspired clubs so that the students there are not led to believe that their values are not as legitimate as those who can form their own ideologically-based clubs.

Justices that Mr. Bush said he would appoint do not follow this line of reasoning. The president said he would appoint justices like Antonin Scalia and Clarence Thomas, justices who would "interpret the law" rather than "make" law. Justice Scalia has voted to uphold school-sponsored prayers at graduation ceemonies and at extracurricular activities and would likely do the same if a case involving teacher-led prayer came up as well. Justice Thomas has voted with Scalia but he goes even further by suggesting that our national government alone is obligated to follow Establishment law jurisprudence while letting the states do what they want with respect to their preferred religious values.

The religious dissenter, be he or she, a Christian, Jew, Hindu, atheist or anyone else in a predominantly Muslim public school or any of the above in a Christian-dominated public school would have little recourse should those of his views one day have a majority on the court. The dissenter trapped in these schools would feel shunned as his or her religious values are treated as second-class. The student who was raised to follow his or her parents' god and religious beliefs learns that he must respect the majority's religion by standing or (kneeling) silently as they pray when the others would not have to show that same respect to him or her. That dissenter learns that his values are considered less worthy of respect than others and that certainly is not in keeping with the values of a free state with free thought.

President Bush should choose a successor who will preserve O'Connor's legacy on religious equality and one who, like O'Connor, has an exemplary career in a state legislature as a consensus builder.

Friday, July 08, 2005

The Bombings and the Message Behind It

They were supposed to celebrate but one day after the International Olympic Committee announced its decision to let the city of London host the 2012 Olympics and Prime Minister Tony Blair began hosting the G-8 summit in Scotland, terrorists purportedly linked to al Quaida detonated bombs in several tunnels and a bus - killing over 30 people and injuring another 700.

Prime Minister Tony Blair and a host of international leaders condemned the attacks and vowed to bring those who helped plan these attacks to justice. The fact that London's death toll pales in comparison to World Trade Center bombings in New York or the Madrid bombing that brought down the conservative Spanish government is and should be of no comfort to the survivors, the victim's loved ones, and the millions who watch this on television.

These terrorists do not discriminate between government official and dissenting resident, or an armed sergeant in Iraq and the infant held in his or her mother's arms in London and they have found a means to attack us where we are most vulnerable. They will try to kill us when we go to dinner, when we go to work or when we go out for sightseeing. They will try to kill us when we are above ground, in the air, or underground.

Their timing could not have been more perfect. If the London's residents thought their city was safe enough to host a major international sporting event the terrorists have told them otherwise. The British and New York City officials are now on heightened alert as they should be but as former Mayor Rudolp Giuliani, himself only a block or two away the Liverpool Street Station, said on one of the talk shows today, time will go by, people may forget, and complacency may take over.

Our president had repeatedly justifed our wars in Iraq and Afghanistan by suggesting that we are taking our fight to the enemey on their territory. This blogger has sided with the president on this war and on the right to pre-emptive warfare. Know, however, that what happened in London yesterday could happen anywhere tomorrow. New York City could be hit tomorrow, Philadelphia a week later, Rome a month from now and New Delhi a year from now. We may be safer now then we were before 9-11, but our coalition's efforts in Baghdad and Kabul have not deterred isolated cells and like-minded terrorists from striking us at our homes.

The president's assertive diplomatic and war politicies are no substitute for heighened security at home. Security at major train and subway stations must be increased dramatically. Police patrols must increase and city officials everywhere must look for the most up-to-date and acurate bomb-detecting equipment possible.

This blogger has in the past opposed efforts to curtail our civil liberties in the name of security and he will continue to do so but this will come at a cost. If we are not going to surrender our liberties, our government has to intensify its efforts to control our borders to the north and south. If the typical illegal immigrant crosses our borders with impunity and is allowed to ask for a day-job without being photographed (or ask for a day job period), obtain a driver's license, the aspiring terrorist could do so as well. Big business, big labor, and those purportedly representing ethnic groups may oppose a crackdown but our very security may depend upon it.

Terrorism Bombing - Some Excerpts

"There was part of the side wall missing. Some of the seats were missing. People were still in their seats and they were screaming with pain and were covered in blood down one side of their body. There was other people that were trapped and they were just left there." - survivor Michael Henning


"It was very dark all around us," Mr Henning said. "People panicked and were screaming and a few of us were telling them to calm down. The girls were the calmest and they got things under control quickly. We tried to open the side doors, we were trying to pull them. The London underground drivers were trying to get them open from the outside but they weren't moving. There was a lot of dust and smoke. There was no communication, no Tannoy, no feedback." - Michael Henning again

Among the walking wounded was Jack Linton, 14, who suffered cuts to his face. The schoolboy, from Hawkwell, Essex, was on his way to a work experience placement when he was caught in the blast. "I've got glass in my hair and my pockets, and my ear hurts," he said. - excerpt from same news story

and more from that story:

John Sandy, in an email to Guardian Unlimited, said there was an eerie calm on the train. "As people started to panic, I turned to the man on my right and asked his name. He said he was Mark and he worked in HR. Then I asked the same of the girl on my left. Her name was Emma and she too worked in HR. Mark and Emma then began to talk to each other and we started to reassure the other passengers around us that everything would be OK," he said. "We left the train within around half an hour. I feel very lucky. The emergency services got everyone they could out in a calm and safe way but I would like to praise Mark and Emma for being so level-headed."

Thursday, July 07, 2005

David Frum Undercutting Gonzalez and Bob Shrum Propping Him Up

"MITCHELL: Good to be with you.
First to you, David Frum.
Is this a situation where President Bush, knowing that he will most likely have another opportunity to name a Supreme Court justice, could go to his—an Hispanic attorney general, could make political points, and also do something that he clearly wants to do, the legacy of being the president to appoint the first Hispanic Supreme Court justice?
FRUM: I'm sure he would love to be the—to appoint the first Hispanic Supreme Court justice. But I think it's really quite unlikely that he would choose Gonzales, and not for the reasons that people have been talking about earlier, but for this point.
One of the things that this administration has been very concerned about, especially since 9/11, is restoring executive power, that they see the executive powers worn away in the 1970s and '80s, and they want to bring it back. And that's going to come up in a lot of war issues.
Well, Al Gonzales wrote the memos. He was White House counsel and then attorney general. He can't rule on his own memos. He will be recusing himself. So, at exactly—exactly the vote you want him to give, he can't give. So, I don't think the president is going to pick him. "


Several paragraphs down,

"MITCHELL: And what about the timing?
Bob Shrum, what would you think the timing of this is going to be? Do you think they'll try to delay it until the end of the summer to prevent liberals, such as yourself, from having enough time to develop ammunition?
SHRUM: I think they can't delay until the end of the summer, because then they lose the argument, you have to get this all done in time for the beginning of the court.
I think there's a possibility they'll delay this until the beginning of August. And I thought the president's comments this morning were very interesting, because he seemed to me to be talking as much to the right wing as he was to anybody else, especially when he defended Attorney General Gonzales.
By the way, I want to say that that is a very neat effort by David Frum to get him off the Gonzales hook. But the fact of the matter is that Thurgood Marshall was solicitor-general of the United States, arguing major civil rights cases between '65, '67, went on the Supreme Court and ruled on case after case after case in the area of civil rights.
There may be a specific case or two that could not be considered by a Justice Gonzales. And, by the way, I don't want to sound like I'm endorsing him. I don't know enough about him and I don't really want to hurt the guy. But he could rule on almost all of these cases."


Is this a sideshow? Is he telling the truth? Or is it both? Conservative David Frum is a conservative on social issues but President Bush likes his friends so the former speechwriter may be trying to undercut a proppective judge he doesn't like without attacking his character by forcing the president to think of how appointing Mr. Gonzalez might undermine their war combatant strategy in the courts.

Bob Shrum knows his party will not get a Stevens, Souter, Ginsburg, or even a Breyer or O'Connor so he will settle for a Gonzalez thinking that's the best they can get. Mr. Gonzalez's views on Roe v. Wade are unknown but the conservatives believe his conservative credentials on abortion and affirmative action are suspect. Mr. Shrum may be right and Gonzalez may not be reqired to step aside on most war combatant appeals or he may be wrong but either way he is fighting to keep a nomination alive.

Wednesday, July 06, 2005

Judicial Strategy for the White House

Gary Bauer, president of American Values and a Christian conservative candidate for the 2000 Republican presidential nomination, said, "A lot of people feel that the administration shouldn't be reluctant to talk about the values we hope the nominee will embrace."

White House strategists just don't want him to say things like that for it casts suspicion their claim that Mr. Bush has no litmus test.

By the way, former White House speech writer David Frum made some news on "Hardball" last night when he said our president probably will not pick Alberto Gonzalez because he wants to expand his power on war crime conduct and thinks Mr. Gonzalez may have to step aside on any cases that involve his torture memos. I'll post the transcripts later when they are released. Democratic strategist Bob Shrum said that will not be an issue since, in his view, the cases Mr. Gonzalez will have to step aside on will be minimal.

I don't know who is right but an interesting twist to the Gonzalez speculation was added last night.

Olympics Selection

I was kind of hoping for New York City but at least it's not Paris.

Sunday, July 03, 2005

More O'Connor

Okay. It's 10:28 pm on a Saturday night and I'm posting a link on retiring Justice O'Connor?

Here's the money quote.


"Most of what we have been hearing about potential nominees is about their "judicial philosophy" or their "theory of the Constitution." During last year's presidential campaign debates, Bush said, "I would pick people that would be strict constructionists."
And now, in anticipation not of O'Connor's retirement but of Chief Justice William Rehnquist's departure, activist groups on the left and the right have raised millions of dollars to promote or fight against nominees depending on their judicial philosophies. We're asked to support Janice Rogers Brown because she is dedicated to "preserving the Constitution as ratified," Michael McConnell because of his theory of the establishment clause, Emilio Garza or Edith Jones because they are constitutional originalists, Alberto Gonzales because of his position on substantive due process and abortion rights.
But these positions and writings reveal just one part of what the president should know to make his next decision. Character and range of human experience should also matter. Does the nominee have truly practical wisdom -- an on-the-muddy-ground understanding of the sheer diversity of human aspiration, emotion, frailty, and passion? Does the nominee have a sense of justice to prevail where simple theory proves inadequate? O'Connor did, and a court without members of these qualities does not bode well for our future."


By the way, the news coverage from The Washington Post here, here, here, here, here, here, here, here, here, here (editorial), here (editorial), and here (op-ed).

The New York Times has some news analysis concerning the upcoming battle and O'Connor here, here, here, here, here, here, here, here, here, here, here, here, here (Kennedy) and here (editorial).

The Washington Times's coverage can be found here, here, here, here, and here (editorial).

Thirty-two links in all. Probably too much and redundant but oh well.