Wednesday, August 31, 2005

Just Some Links

I found this article on Iran and this one on Iraq in Newsweek worth reading.


I really can't say much about Hurricane Katrina. I don't live there and never had the unfortunate experience of having my livelihood claimed by a natural disaster nor can I say there are people I know to have experienced that problem. Some stories are best left for others to cover. The ones who really dserve a voice are the ones who are there - the ones trapped on their rooftops, the ones immersed in contaminated water, and the ones being moved from one shelter to the next. I nevertheless do wish to share these few words that I received in an e-mail at work.

Imagine you woke up this morning and realized that just like yesterday ... everything you owned was gone.
Imagine you had to go to the bathroom but couldn't because 15,000 people had already used the toilet without being able to flush it.
Imagine you haven't bathed in three days.
Imagine you want to brush your teeth or wash your face but you can't because the water is contaminated.
Imagine you have no idea when you'll be able to take a shower.
Imagine no television.
Imagine no cell phones.
Imagine. No. Electricity.
Imagine the sun as your only source of light and when it retires for the day ... total and complete darkness for the next ten hours.
Imagine intense daytime heat and no method of cooling off.
Imagine losing your job because your workplace is gone.
Imagine watching those around you turn into savages, unable to cope with the anxiety and fear that everyone around you is struggling to deal with and they begin taking out their frustrations in violence and breaking the law.
Imagine you haven't had a decent meal to eat in days. And the food that you are eating ... well ... it's starting to become scarce.
Imagine your health and your energy level quickly deteriorating.
Imagine not really knowing what's going on around you as people scream and babies cry constantly.
Imagine sitting on the roof of your home, trapped by toxic waters filled with alligators, venomous snakes and rats. You're sunburned and conserving all your energy to flag down helicopters to rescue you and when a helicopter does fly by it takes one look at you, decides you're healthy enough to wait longer for rescue and bypasses you.
Imagine being stripped of your home, your job, your possessions, your rig
hts, your health, your dignity, your hope, your confidence, your faith, your sanity, your money, your friends and your family.
Imagine dealing with all of this and still trying to map out a plan for your future. Your new home. Your new job. And yet ... no money to attain either.

But know that it is much worse living it and hope that for most there is someone they love to help share in it.

John Roberts

"In the gay-rights case, Roberts was advising on strategy and reportedly spent only a few hours on the case. Thus, there's probably not enough from which to draw conclusions about how Roberts personally views gay rights or how he might rule on gay issues.

Likewise, there's no predicting how he'd vote on abortion or affirmative action. What we do know is that he respects precedent, because he has said so. And we now also know that he's nimble enough to consider without bias issues he might find personally objectionable.

But that's not good enough in Looking Glass America, where right is seen as wrong, and good is viewed as bad. Some on the right apparently can't absorb the thought that their chosen one would entertain legal options that benefit homosexuals, as Rush Limbaugh asserted on his radio show.

"There's no question this is going to upset people on the right," he said. "There's no question the people on the right are going to say: 'Wait a minute . . . the guy is doing pro bono work and helping gay activists?'

"The fact that Roberts worked with gay activists seems perfectly cheery news that argues in favor of his confirmation, not because it endears him to gays and liberals, but because it demonstrates that Roberts is exactly what both conservatives and liberals say they want. Even if they don't really mean it." - conservative opinion columnist Kathleen Parker defending Bush Supreme Court nominee John Roberts from the left and the right.

By the way, several liberal gay rights groups have issued a press statement opposing Mr. Roberts' nomination (no surprise there).

And here is gay Chris Crain's response:

"But by pre-judging his nomination before Roberts can even answer basic questions about his judicial philosophy, these four groups have shown themselves to be every bit as ideologically-driven as the nominee they oppose. And by focusing so much on "how Roberts would vote," rather than examining his character and judicial philosophy, they demean the confirmation process by transforming it into a results-oriented guessing game."

Tuesday, August 30, 2005

Reject Iraq's "Constitution"

As we have all heard by now, the Iraqi Sunni negotiators rejected the latest compromises offered by their Kurdish and Shi'ite counterparts and have urged those whom they claim to represent to vote against the draft constitution on October 15. They cannot win a rejection by a popular vote, but the Sunnis could scuttle the agreement if the people in three of the four Sunni-dominated provinces vote to reject the constitution by a two-thirds majority.

Press reports from The New York Times and The Washington Post say our president has suffered a major setback. The president, it is suggested, desperately wanted the three sides to reach an agreement so that he could tell an increasingly skeptical and concerned public that we are indeed making some progress in Iraq, undermine the Sunni insurgency by winning the negotiators' approval, declare victory, and begin Iraqization so we could withdraw with honor.

If the president was planning to declare victory and cut our losses by withdrawing in the near future, the press reports are correct. President George W. Bush cannot declare victory if the three negotiating powers are unable to resolve their differences and the insurgents continue to bomb those involved in their country's reconstruction.

But as I said in my last two posts on this subject, his administration's emphasis on winning agreement on any constitution is misguided. Our interests will not be served if the three factions carve Iraq up into three mini-states. The proposed theodemocratic Shi'ite mini-state will seek closer ties to Iran, the aspiring regional nuclear state to its east. The Iranians and Iraq's central government will compete for the Sh'ites loyalty and may, in the future support its endeavor to supply Middle East terrorists fighting in the West Bank or planning for another strike against us.

Al Qaeda and other anti-American terrorist groups will have a new training camp. The former Baathists will blame us for Iraq's breakup, loss in oil revenue, and dependence upon their former rivals and oppressed peoples to the north and south for their energy needs. Expect anti-American terrorist groups to blame us and win them sympathy and support from the Sunni population at large should their proposed region fall into economic ruin.

Kurdish rebels living in Syria, Iran, and NATO ally Turkey might be inspired to fight for their own autonomous states, promoting further political instability in the Middle East.

Iraq may be a fiction as David Brooks suggests but we were a fiction too. Englightened self-interest brought us together. We were surrounded by rival superpowers. Divided, and even for a short time while united, we could not compete against the British, French and Spanish empires found to our north, west and south. That recognition brought these states' representatives and the people who jealously guarded their liberty to put aside their fears and unite behind a stronger federal union.

A similar set of circumstances exist in Iraq today. For now the Kurds have been protected by an American-led international force but once we leave they will be surrounded by three strong regional powers to the west, north, and east that have every reason to deny them success. Kurdish populations in their own country would clamor to join an economically successful Kurdistan. The Kurds will have to make their deal with the Sunnis who will desperately crave a share of the Kurdish or Shi'ite oil supplies. Whether they go their separate ways or not the two groups will find that they are bound to each other. If the Shi'ites want to preserve their identity they will have to unite with the Sunnis and Kurds to protect themselves from their more powerful Iraian neighbors to the north.

The PoliticalHeretic joins the Sunnis in rejecting the draft constitution. He views it as a new opporturnity for the three major factions to unite behind a viable Iraqi state that could best protect our interests and those of the parties involved more than a setback for our administration.

Monday, August 29, 2005

Iraqi Breakup Inevitable?

I've been saying it for a while now (or at least the last three weeks) but two news analysis articles, one in today's Washington Post and the other in today's New York Times, acknowledges our president's declining influence in Iraq. The Sunnis rejected the latest compromises as expected because they believe Kurd and Shi'ite negotiators are carving Iraq and its oil resources up while leaving the Sunnis with an economically-deprived, land-locked weak autonomous state in central Iraq. Neoconservatie New York Times' columnist David Brooks signs on to the view of those who say Iraq was always a fiction that was only held together by colonial powers and ruthless tyrants. This constitution, they say, reflects the reality we should be embracing.

I don't know if Iraq's eventual split-up was inevitable. Iraq was a fiction but so was the United States. The thirteen original states no doubt united to overthrow our British sovereigns but their differences and suspicions kept them from binding themselves together in anything more than a loose confederation for several years. The Iraqis are no doubt divided by religion, ethnicity and language and we weren't but that is largely irrelevant. The differences and between Quaker and Anglican, large and small state, or between rural and trade state may seem petty now but they were extremely important to the residents who guarded their cherished freedoms then.

Enlightened self-interest eventually brought them to unite behind one banner. Their more powerful neighbors, the British, French, and Spanish empires, still threatened their freedoms and any hope of one day becoming a rival economic power difficult concessions from the states.

Whether the Iraqis will unite behind one banner I do not know but the president's inability and increasing unwillingness to persuade the Kurds and Shi'ites to unite behind a stronger federal system not unlike ours or the Swiss Confederation will lead to their country's undoing and we will pay the price.

Thursday, August 25, 2005

Thought Provoking Foreign Policy Op-Ed

The Washington Post published this thought-provoking op-ed by George F. Will.

Here's the money quote:

"Delicately dealing simultaneously with Iran and Iraq, U.S. policy regarding the former is preposterous yet useful, and U.S. policy regarding the latter is lucid but delusional. Regarding Iran, the faded and tattered flag of arms control is being unfurled for yet another pious salute, the predictable result of which will be redundant confirmation of the axiom that arms control is impossible until it is unimportant. Regarding Iraq, the hope is that the democratic transformation that took centuries in much more promising social settings can succeed in Iraq, given another week." - George F. Will

Certainly goes against the grain, which is of course arms control in the Middle East. And his comments concerning Iraq. Well, why am I giving it away?

Merely a Link to a Free Speech Column

Richard Cohen surprises me, comes out of his partisan shell and swings against hate crime legislation.

"I do not find it hard to believe that the accused in both cases may be first-class bigots. I just find it beside the point. Beating someone with baseball bats and iron pipes has long been against the law. Assault is a crime. Battery is a crime. Murder in all its gradations is a crime. What does it matter what words are spoken in the course of the crime? Is the injury to the victim greater?
Ah, but we are told it is not only the injury to the victim that matters but the injury to the community as well. A hate crime affects an entire group. I suppose sometimes it does. But so does ordinary crime. When a rapist is loose in a particular neighborhood, all women are affected. When criminals stalk the park, everyone keeps out. In that sense, hate crimes just affect a different -- or another -- group. I understand. But it is a dangerous concept. It punishes speech. It punishes thought. It punishes on account of the word blurted out in the heat of the moment -- maybe not an indication of bigotry but merely what comes to mind when the mind itself is engulfed with rage." -
Richard Cohen

Pat Robertson's Stupid Remarks - A Setback In War on Terror

On Monday Christian Right activist and telelvision broadcaster Pat Robertson called on United States Special Froces to kill Venezuelan President Hugo Chavez.The lefist leader of the oil-rich South American country is a known adversary of ours. President Chavez aligns himself with the communist dictator in Cuba, Fidel Castro, and has on several occasions accused us of trying to remove him from power.

Pat Robertson, however, went further than that on his show "The 700 Club" two days ago. He said Mr. Chavez would like to serve as a "launching pad" for communist infiltration and Muslim extremism, two charges that so far are unsubstantiated and he since the Venezuelan president talks about our assissination attempts we should prove him right and get rid of him. It would, in his view, save lives to remove him covertly than through a war as we did with Saddam Hussein.

I admittedly would have enjoyed to poke some fun at this known adversary of mine. This blogger, as a gay man, finds some delight whenever Christian Right activists like Pat Robertson makes a fool of him or herself. As the editorial board for The Washington Post notes, Mr. Robertson has made a fool of himself before. He said God would punish Florida with some hurricanes if Disneyworld, Orlando hosted gay pride events, wished for the nuclear bombing of our own State Department, nodded in agreement when fellow right-wing nut Reverend Jerry Falwell said God "lifted the veil" forthe World Trade Center bombings (because we are a hedonistic country that tolerates abortion, feminism and gays) and wished enough ill-will to force some liberal and moderate SupremeCourt jsutices into retirement (the editorial board forgot to mention that one)

Mr. Robertson's latest journey into stupidity cannot be dismissed or laughed off so easily. The president, Secretary of Defense Donald Rumsfeld, and a spokesperson for the State Department have distanced themselves from Pat Robertson's remarks. Pat Robertson himself, realizing how grossly irresponsible his remarks were, at first attempted to deny suggestions that he called for theVenezuelan president's assassination (oh yes, there are other ways to "take a person out" but only if you don't use the word "assissination" in the same or preceding sentence) but has since apologized for words "spoken in frustration."

But the damage was done. The editorial board writers for The Washington Post say he gave Venezuelan Presdident Hugo Chavez a rhetorical gift and indeed he has.Few would make the distinction between the words of a private citizen and the words of the administration spokespersons when he is perceived to speak for a significant part of the president's voter base. And given that our first amendment freedoms far surpass that of even our staunchest and most democratic of allies, those who do not live in our country may not even think that such a distinction is allowed.

Mr. Chavez can, as the editorial board writers note, "confirm" the worst of his "suspicions", and use that to portray us as an imperalist-driven hegemon that the other LatinAmerican countries should regard with suspicion. Fidel Castro, no doubt, will do the same.

The damage extends way beyond Latin America, however, for Al Qaeda could use his statements as a rallying point as would the Sunni insurgents who are calling for our withdrawal from Iraq. They now have a new weapon in their arsenal. Since we have failed to locate the very "weapons of massdestruction" that justified our invasion of their country to begin with, Islamic fundamentalists and former Baathists will use his comments to cast further suspicions on our motives for removing Saddam Hussein. Iran's new radical president could use the remarks asa pretext from withdrawing from future talks on nuclear weapons, and the North Korean dictator may usethese statements to confirm his paranoia regarding our supposed efforts to to topple his givernment.

Mr. Robertson could not apologize enough for his statements. In calling for Mr. Chavez' assissinationhe reminded the United States' adversaries of andperhaps confirmed, the worst of their suspicionstowards our foreign policy. The president's supporters no doubt must repudiate Mr.Robertson for his grossly irresponsible remarks but the loyal opposition must as well. Whether we agreewith the president's strategy or not, Mr. Robertson cast in doubt our motives in this war on terror. President Bush's term in office (and consequently hisstrategy for waging this war on terror) will come to an end in two years, but the suspicions harbored bythe leaders in the "Third World" developing countriesand potential allies in future endeavors will linger on.

Talk Show Host Shock Jock and First Amendment

WMAL fired Michael Graham, a Washington, D.C. talk show, because he repeatedly said we are out war with a terrorist organization called Islam (as opposed to Muslim extremists or fundamentalists) and refused to apologize forthose comments.

Below are quotes from the August 23 edition of "Hardball" related to this event. Chris Matthews' guests say the station had every right to terminate MIchael Graham's contract but they disagreed on whether it should have done so.

"I mean, when you put a talk show host out there,you‘re not asking for someone to be namby-pamby. You‘re asking for someone to have a point of view. But look at famous people who have taken a point of view who have really ticked off some of the people who have advertisers, such as Dr. Laura. You‘ve seen people like Howard Stern who have taken positions where the advertisers said, you know what? If you don‘t pull the plug, you know, we are not going to pay for time on that network. So, consequently, it is a fine line. But, frankly, the freedom of speech should prevail, because it is adark day in the country when the light of freedom of speech is turned off.

... They‘re people who have taken a point of view and slam it on the table, and they basically cause you to think. They use words that are very provocative, that cause a person to maybe pull by the side of the road and say, I‘m going to pick up that phone and I‘m going to call. I‘m going to tell the person I either disagree with him or agree with him. I love him or I hate him. I‘mgoing to call the advertiser. I‘m calling the station. And that‘s how talk is put out there in the talk show world." Blanquita Cullum on "Hardball"

" Well, maybe he is. Let me ask you about the business. Now, you‘ve both been on both sides of contracts with people in this business we‘re in right now. I want to ask you, Blanquita, at the risk of your own career, do you think there may have been some hypocrisy here? When you hire people like—like Michael Graham, aren‘t you in fact saying, we want a mouthy, outspoken, provocative troublemaker, to some extent? I think theYiddish term is tummler. You want somebody to shake things up. Then, when he shakes things up this way, you say, oh,we did not mean that, because we got some calls on it." - Chris Matthews

"I think he had the right to say it. And I think theyhad the right to fire him for saying it. I mean, as one who has been a civil rights activistall my life, you know, if you cross the line, you‘regoing to pay for it. I did 90 days in jail one time for leading a protest. If he felt that strongly about it, he should have said it and he should take his unemployment status like a man. ... Imagine the outrage if it had been—this is a biased statement against a group of people, that advertisers have a right to say, I am not going to engage in bias. Stern, with all of his obscenity, I don‘t know if we would let him get on there and say, all Jews or all Christians or all anything is one way. And there‘s a big difference between shock jock and an outright biased statement. And that is what this guy made." -Rev. Al Sharpton

I tend to agree with Mrs. Cullum. WMAL may or may not have a right to decide who it will and won't sign contracts to but as a radio station it should not as a matter of practice fire or cancel the shows of those who make controversial or offensive statements. Michael Graham's comments are outrageous and inaccurate. As with Pat Robertson's latest comments (see above) these remarks will be used by the extremists to cast this war on terrorism as a war on a religion with a growing bse of adherents but the station is in the position where it could allow for other points of view. It could have used some of its time to allow Muslims to call in and contest Mr. Graham's viewpoint, invited some scholars who have studied Islam to debate the point or send out a disclaimer during every commercial break to remind the audience that Mr. Graham speaks only for himself and not the radio station in general.

Mr. Sharpton says there is a difference between a shock jock and an "outright biased statement." I do not see a limiting principle which would allow us to distinguish beween on and the other. Radio listeners will find statements made by either grossly offensive. They may vehemently object to a talk show hosts' language and thoughts. So be it. Change the station and find one that does agree with you. If the Republicans could watch Fox and the Democrats, CNN, why should it be any different in the talk show world?

Tuesday, August 23, 2005

Iraq's Draft Constitution

Negotiators for the three major factions governing Iraq submitted a rough draft of their uncompleted Constitution to the National Assembly without reaching agreement on the most contentious issues that have plagued them since Iraqi dictator Saddam Hussein was deposed. Iraq’s legislative body agreed to postpone a vote by three days to give the negotiators a chance to win the Sunni negotiators’ support. Their support is critical, for while they lack the votes to reject it within the National Assembly, they do represent a population with majority-control in three Iraqi provinces and that would be enough to reject it once the people at large vote on it.

At issue are references to the federalist and Islamic principles embodied in the constitutional draft, aswell as the distribution of Iraq’s oil revenue. The proposed constitution says little about the centralgovernment’s role in preserving the state’sterritorial and sovereign integrity other to say thatit will be responsible for the state’s security,defense, and an undefined role in oil revenuedistribution.

The Kurds are all but guaranteed an autonomous regionin the north but the Sunnis adamantly oppose effortsby some leading fundamentalist Shi’ites to createtheir own autonomous region in southern Iraq, therebydepriving the Sunnis of a fair share in oil revenue.

U.S. Secretary of State Condoleeza Rice, and now President George W. Bush, praised Iraq’s negotiators for completing a draft Constitution whilepostponing a vote on it in the name of national unity and good will but Zalmay Khalizad, our ambassador toIraq, was more candid in urging the Sunnis to back the constitution.

The administration’s emphasis on ramming any constitution through the National Assembly at the expense of substance is misguided. Our interests will be served best if the three major factions, through enlightened self-interest, can sign onto a federal system not unlike that found in Switzerland or theUnited States. Iran’s efforts to contest our hegemony on the continent will greatly improve should the Iraqi state bordering it prove weak. Tehran could exploit the rivalry between Iraqi Shi’ite and Sunni, forcing both groups to seek it as their mediator in any disputes.

Little can be said in favor of the draft submitted to the National Assembly so far. It includes a Bill of Rights guaranteeing some individual liberties we take for granted as well as some ethnic cultural rights while banning torture and the detention/interrogation of any Iraqi citizen without a court order.

But the document says very little concerning the central government's responsibilities or the prerogatives it is given to fulfill those responsibilities. The Constitution includes some vague reference to the federal government’s responsibilities to security, territorial integrity and oil revenue distribution but nothing is said ofthe central government’s taxing powers in anyh proposed Kurdish, Shi’ite or Sunni regions, the manner inwhich it would enforce security and Iraq’s territorial integrity, or the extent to which it will controlIraq’s oil revenue distribution.

The Constitution includes nothing about the proposed army’s right to patrol Iraq’s borders in the north, or the disarming of paramilitary groups. It includes no judicial branch to unify the regions around a common understanding of the law.

What the administration can do about the recent turn of events is anybody’s guess. Our president aligned himself with groups who do not share our vision for stability in the MiddleEast in order to depose a regime that at one time deposed us and then failed to include the requisite number of troops to keep the new victors in check. By removing our formal rival and tyrant,we unleashed forces swayed by dreams and visions waybeyond our control.

The Kurds, emboldened by his removal, now seek control over northern Iraq’s oilfields, a redrawing of its region’s boundaries toinclude the Kirkuk oil fields, and its autonomy formalized. The Shi’ite fundamentalists are seeking their own theocratic-light autonomous region in the south.

Our dreams of a pluralistic democratic state led by a strong pro-western secularist like Chalabi or former \interim \prime \minister Ayad Allawi has all but dissipated. Iraq's new prime minister obtained his suppot from Shi'ite clerics and their followers and two paramilitary groups now enforce the parochial interests of the two major victors - the Kurds and the Shi'ite clerics.

Our senators are growing nervous. Senator RussFeingold of Wisconsin has called for a timetable fortroop withdrawal and Senator Chuck Hagel of Nebraska,a Republican no less, said Iraq is looking likeVietnam every day. Withdrawal is not an option atthis moment. If we leave now, chaos will ensue. The Iraqi army has failed to suppress the Sunni terroristsand won’t do any better controlling its borders and preserving its independence from influence-peddling Iran.

The administration may already have conceded this fight for Iraq’s stability however and its emphasis on the procedure in drafting this constitution may be its way of providing for a grace-saving way to withdraw from an ungovernable Iraq before more American lives are wasted. For those of us who supported this war because we thought it would further our national security, this rwould be a bitter pill to swallow.

Saturday, August 20, 2005

Friday, August 19, 2005

Two Unpopular Forms of Expression: Hate Speech and Porn

"Decency advocates are so intent on their objective, so convinced of their rightness and so submerged in their own time that they always should be aware of the possibility of mistake. Otherwise, they fall victim to the sort of hubris that led Comstock to dismiss the redoubtable George Bernard Shaw as “this Irish smut-dealer.”

Good and smart people differ over what indecency means. But there are two ways we can respond when dealing with whatever it is that we determine indecency to be. The easy way is to get a government official or agency to ban it or regulate it. The hard way is to engage it, decry it, discourage it, present a better alternative.

That is the hard way, but it should be the American way." - Paul McMasters

I fully agree with Mr. McMasters but liberals remember, the same can be said with hate speech. This school district decided it would be best to ban all kinds of flags, banners, noisemakers, and "other objects" from football games. Why? Because the school didn't want people waving confederate flags.

The school obviously did not exercise viewpoint discrimination, which would require it to allow for some modes of expression conveying an approved message while prohibiting disfavored messages, but it is depriving its students and others in attendance from expressing their message and this is wrong. If someone decides to wave the confederate flag at a game, so be it. Let them. Afterall, "the answer to hate speech is more speech" or, as Mr. McMaster says, "engage it, decry it, discourage it, present a better altnerative. That is the hard way, but it should be the American way."

Thursday, August 18, 2005

Utah Flag Desecration Law on Trial

I couldn't believe this could still happen but apparently one Utah resident was charged with flag desecration violations after he inserted a "smiley face" onto an American flag he hung on the outside of his house. Witnesses at the trial said he was frustrated at the judicial system at the time he burned the image onto the flag.

The charges against Krins Winsness were eventually dismissed but he is now seeking to have that law removed so no uninformed police officer could charge other would-be flag "desecrators" with the same Class B misdemeanor. A three-judge panel of the 10th Circuit Court of Appeals which included judges Michael McConnell (Supreme Court watchers should be familiar with his name since he was and posssibly still is ont he president's list of potential Supreme Court replacements), Timiothy Tymkovich (leading attorney who argued for the upholding of Colorado's anti-gay Amendment 2), and Monroe McKay heard the case just recently and will issue a ruling that probably will be appealed by the losing side.

If the Associated Press reporter is correct, a majority if not all three judges will rule in Mr. Winsness's favor and strike down as uncosntitutional the flag desecration law, as they should. The Supreme Court heard a similar case sixteen years ago in Texas v. Johnson and overturned a criminal verdict against a man who burned his American flag in protest because it violated his right to free speech and expression.

While the current Utah law in question is unenforceable and the charges against this protestor were dismissed, nothing prevents an uninformed police officer from charging a would-be flag "desecrator" with the crime in the future. Protestors with politically incorrect viewpoints could still be harrassed from police officers who find flag burning or the message behind the flag burning offensive. While such charges would eventually be dismissed, the police officer who finds the political speech in question offensive could still burden the protestor with the inconvenience and stressful task of fighting his charges before a court of law.

The charges were rightfully dismissed but the freedom of all would-be protestors is still at risk so long as the law remains "on the books." The panel should remove the law in question so no malicious police officer (however few they would be in number) could excuse his or her trumped up or bogus charges as ignorance.

By the way, the First Amendment Center where I obtained this news has issued its own report on the effects of any flag amendment. I haven't read it yet but it probably is of some interest.

Tuesday, August 16, 2005

Constitution Delay in Iraq

Leading negotiators for the three major factions involved in writing Iraq’s constitution failed to reach an agreement and submit a draft on schedule. The United States pressed the leaders to reach an agreement by the Monday, August 15 deadline but the differences were too fundamental to paper over, forcing the National Assembly to either dissolve itself and call for new elections or extend its deadline by seven days.

President George W. Bush and Secretary of State Condoleeza Rice tried to downplay the major setback by suggesting that negotiators have made substantial progress through the peaceful, democratic process but the differences are so fundamental that such progress seems to be elusive. The Kurds are not only insisting upon autonomy and control over the Kirkuk oil fields, and a secular state, but also the right to secede from Iraq should it choose to and the Shi’ites have now insisted upon similar demands for autonomy and oil field revenue control while pushing for a near-theocratic Islamic state.. Lacking oil revenues and militia of their own, the Sunnis insist upon a strong national government which could provide for them.

The disputes over federalism and religion in a new Iraq were expected but the American administration hoped that the leading factions would make some progress on these difficult questions. Apparently they did not.

Iraq’s Kurds don’t share our vision for a democratic, Iraq with a strong centralized government in Baghdad. Saddam Hussein brutally suppressed a Kurdish-led rebellion after his army was pushed out of Kuwait. They were pushed out of the Kirkuk region but created their own parallel administrative institutions in the protected zone in the north. The Shi’ites were also brutally repressed and now seek autonomy and the oil reserves in the south.

Our national interests will be undermined if the Kurds and Shi’ites succeed, for the Iraqi vision they share will fundamentally deprive any centralized government from the very revenues it will need to maintain an army and control its borders, and the coercive force needed to bound the three main ethnic groups together. The Shi’ite-controlled region will develop closer ties with the anti-American regime governing Iran while the Kurdish-controlled north will encourage Kurdish rebellions in Syria, Iran and Turkey, an important strategic ally of ours in southwest Asia. The free-for-all that will follow will only help the terrorists who could then transport weapons between Pakistan and Lebanon.

What the Bush administration can do is questionable. We allied ourselves with groups that do not share in our vision for stability in the Middle East in order to depose a regime that at one time opposed us. Now Saddam Hussein is deposed and the winners have every opportunity to fight for their competing visions which Hussein denied to them. The Kurds will push for independence and the Shi’ites for control over the remaining oil reserves in the south leaving the Sunnis with a resource-deprived region in the center which will be forced to rely upon the Shi’ites and Kurds for their energy needs.

For some of us who supported this war, this is indeed a bitter pill to swallow. We knew that Saddam Hussein was “detained.” He invaded two countries in violation of international norms but the first ended in stale-mate and the second ended with his troops being pushed out of Kuwait..

We correctly ignored arguments using that information to oppose warfare because Saddam Hussein’s political calculations were unpredictable. He ordered his military to fire on the American fighter jets that entered Iraqi air space and he defied United Nation orders to allow for unfettered access for weapons inspections, first by kicking them out and then by at first refusing to admit its inspectors back in. Given his willingness to fire on American and British aircraft, we thought he would have no problem selling or giving his chemical and biological weapons to some terrorists who would strike us, and avenge himself for his failure in Kuwait.
But our intelligence information was wrong. Whether Mr. Hussein knew it or not, his chemical and biological weapons programs were either dismantled or sold before we could prevent our enemies from acquiring them. The Kurds and Shi’ites certainly gained a lot from Saddam Hussein’s demise, but this blogger is beginning to think that we did not and in fact, may have lost more than we have gained by this endeavor

Monday, August 15, 2005

Some Thoughts On Gaza Strip Settlement Withdrawal

Israeli troops began serving eviction notices to Israeli settlers in the Gaza Strip, a narrow strip of land bordering Egypt’s Sinai Peninsula and the Mediterranean Sea it seized after winning the 1968 Six-Day War. Israelis seized the Gaza Strip, West Bank, and Golan Heights after defeating its hostile neighbors to the northeast (Syria), West (Jordan) and Southwest (Egypt). They hoped these acquisitions would improve their security but occupation won them new enemies from the displaced Palestinians who lost their homeland.

Rival Palestinian groups are now claming credit for the withdrawal. On Sunday Hamas representatives strung up a green banner saying “Resistance wins” and the Palestinian National Authority held a rally earlier on Friday. Neither group can legitimately claim full credit for planned Israeli withdrawal. Palestinian terrorist attacks failed to dislodge Israeli troops from the Gaza Strip and West Bank for almost 38 years and furthered the Israeli government’s resolve to find and try the terrorists who killed innocent civilians but it did undermine claims that such an occupation would allow the people to live secure and peaceful lives.

The Palestinian moderates who signed onto the Oslo accords have won some important political victories. The Palestinians have won autonomy in the Palestinian-populated areas of the West Bank and the withdrawal from Israeli settlements today end the Zionist dream for a “Greater Israel.” The withdrawal from the Gaza Strip provides a new precedent which can be followed later in the West Bank should the Palestinians prove themselves to be worthy negotiating partners.

But the moderates’ own role in winning this withdrawal depended in part on their more radical terrorists’ rebellion. If no one was willing to kill innocent Israeli citizens, Prime Minister Sharon and his predecessors probably would not have agreed to bargain in the first place.

Much too, can be said for the Israel’s improved relations with its neighbors. The Jordanians and Egyptians have made their peace with the Israelis. Israel returned the Sinai Peninsula to Egypt, and has increased its trading relationship with the Jordanians. The Syrians have all but conceded Israel’s right to exist and only insist upon the return of the Golan Heights before it makes its peace with them and it is losing its hold over puppet state Lebanon.

Israeli Prime Minister Ariel Sharon had every reason to believe he could relinquish control over the Gaza Strip. Mr. Sharon knows that the occupation has outlived its usefulness now that Egypt and Jordan have made their peace with the Israelis. Combine that with Palestinian terrorist attacks and the moderates’ promise to achieve their coveted independence; Israelis were losing more than they gained by holding onto the Gaza Strip.

The Palestinians are worried about the future. They are not sure if the withdrawal is for real or if the Israelis would re-occupy the territory if Hamas launched further attacks upon Israeli citizens in Israel proper. The Palestinians have no confidence in their own government’s ability to provide for their security and economic needs. The Gaza Strip has no resources to speak of, requiring it to rely on tourism. Private organizations have raised money to preserve the green houses so they could raise some of their own food and sustain a living not totally dependent upon Israel proper.

But the Palestinian authority has little to show for itself yet. Israeli leaders trust President Mahmoud Abbas more than Yasser Arafat but he still has yet to prove himself. To date he keeps the peace by negotiating with the terrorists but has not yet asserted his authority as the true representative for the Palestinian people. Mr. Abbas will have to challenge Hamas, and arrest those conspire with suicide bombers if he is going to maintain his working relationship with the Israeli administration. The government will not remove its settlers in the West Bank and risk further alienation if it gets no peace in return.

With the Israelis gone, Mr. Abbas will have only himself and Hamas to blame for Gaza Strip’s difficulties. He would do his party and his cause well by focusing on his people’s economic needs. If he gives his people a future to look forward to and cuts terrorist attacks, Israelis may agree to relinquish some more settlements in the West Bank.

Saturday, August 13, 2005

Dan Asmussen

Steroid-using God makes it in this week's Bad Reporter.

Roberts and Strict Constructionism

Now that The National Abortion Rights Action League (NARAL) pulled their controversial ad and baseless and consequently unfair charges linking Mr. John Roberts’ own judicial views to the violent tactics adopted by some anti-abortion protestors, we can return to the substantial constitutional questions he may address as a future Supreme Court justice.

As stated in my previous post concerning this topic, the ad deflected attention from the issues he may vote on and weakened the credibility of those who probably are or may eventually oppose him. This blogger does not believe our senators shouldn’t ask Mr. Roberts to commit to a vote one way or the other on any given constitutional question which the Supreme Court would consider.

Since they are appointed to serve during good behavior and consequently make rulings that affect future generations, we must expect them to decide these cases after serious reflection and discussion from their fellow justices. Mr. Roberts has never been a Supreme Court justice, so he might (with good reason I might add) choose to defer to those who have been there longer before making a decision that could either undermine precedents or open a Pandora’s box inspire a whole new line of judicial challenges never considered before.

The senate nevertheless must push Mr. Roberts’ to give us some idea about his pre-conceived attitude about his future role as a Supreme Court justice since he and his colleagues will decide on matters that affect our constitutional rights. No one in their right mind believes our government will ban free speech carte blanche but interest groups from the left and right have from time to time pushed their local officials to censor or set aside out of site and reach art work, television programming, writings, and speech of those whose views they find undesirable. Every now and then we hear of liberals who ban students of a christian persuasion from distributing fliers concerning after-school religious clubs or the conservatives who try to ban sex-ed books with homosexual themes from school and other public libraries.

In response to questions Senator Charles E. Schumer asked when the judiciary committee was considering his nomination to the circuit court seat he eventually obtained, Mr. Roberts submitted a brief essay on how “strict constructionist” judges impact the civil rights of plaintiffs. Posted here is one excerpt from that response:

If by “strict constructionist” one means a judge who strictly adheres to what the Framers intended, including by giving a broad and expansive meaning to those provisions the Framers intended to bear an expansive construction, then there is no reason to suppose such a judge would be “hostile to civil rights plaintiffs.” I believe Justice Black, for example, considered himself a strict constructionist when it came to the First Amendment. It was his famous view that when the Framers wrote in that Amendment that “Congress shall make no law,” they meant “NO LAW.” Such a view is obviously not hostile to First Amendment claims.

But if by “strict constructionist” one means a judge who superimposes on the Constitution a narrow and crabbed reading – no matter what the interpretive evidence to the contrary – that is a different story. My concern with such a judge, however, would be that he or she was likely to get it wrong, whether that benefits or disadvantages civil rights plaintiffs in any given case. A narrow and crabbed reading of provisions affording defenses to civil rights claims may be beneficial, not hostile, to civil rights plaintiffs. The question ought to be not whether the reading was strict or broad, but which reading more accurately reflects the intent of the draftsmen in any particular instance.

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 law. As Chief Justice Marshall explained in Marbury v. Madison, however, “(i)t 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 the adjudication of the cases before them, and seek neither to legislate broadly nor to administer the law generally in deciding that case.

To be sure, Mr. Roberts’ was trying to alleviate the concerns from those who believe that strict constructionist views like his deprive those who are short-changed by laws passed by Congress, and his reference to Justice Black should remind those of us that suspicions like that, are not entirely accurate. Mr. Black’s own brand of strict constructionist rulings led him to author the opinion solidifying the separation of church and state, vote to ban teacher-led classroom prayers and most religious school funding programs, protect the free speech rights of the most unpopular controversial groups in his day and other causes dear to the hearts of liberals as well as dissent (with conservatives) when the Court said married and un-married couples have a general right to privacy.

But as we saw in Hamdi v. Rumsfeld, Mitchell v. Helms, and Ashcroft v. American Civil Liberties Union, the strict constructionists themselves have difficulty interpreting the Framers’ intent. And like the more liberal justices they criticize, the strict constructionists are not immune from the criticism of “creating” or “finding” new rights in the Constitution.

Justice Antonin Scalia’s interpretation led him to author the most pro-liberty and anti-administration opinion concerning the president’s war detention policies as it applies to American citizens and Justice Clarence Thomas’ led him to give the president the most deference. While Justices Thomas and Scalia come down on the side of the government on promoting religious views more often than not, Justice Thomas alone says the federal government’s reach in prohibiting religious establishment in the states is severely limited. His views on free speech led him to give more deference to porn rights than Scalia or even Justice Breyer (who definitely is not a strict constructionist) but Scalia voted with Justices Kennedy and the liberals in overturning a Congressional law banning flag burning.

Mr. Roberts should be asked to clarify his view so that we have a better understanding of his view of the strict obstructionist philosophy. What would help him decide whether he as a strict constructionist should give deference to the legislature and when he must overrule them?

Must the right to free speech, for instance, include within it a right to free expression? Justices Scalia (with his flag burning vote) and Thomas (with his vote on internet pornography) clearly believe the two are interconnected but they disagree as to when expression rights must be respected. Are the two one and the same and if not, and the state can’t deny free speech, when can it intrude on one’s free expression rights? What criteria would he use to help him decide what legislatures may appropriately censor and what they must tolerate in deference to individual rights?

The same could be said about any number of issues. Justices Scalia and Thomas voted to uphold the president’s war detention policy with respect to foreign nationals but reached diametrically opposed positions on its application to American citizens held indefinitely as American war combatants.

Amendment Six states that:

“in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury in the State and district wherein the crime shall have been committed, which the district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witness against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.”

And incorporated within Article I of the Constitution are general probations against bills of attainder, ex post facto laws, and the suspension of habeas corpus rights.
Inherent in their dispute is that first phrase. Justice Thomas was able to give the president deference because no criminal prosecution took place but Scalia interpreted that amendment and the general prohibition more broadly to require such proceedings whenever an American citizen is detained.

The nominee's record on this matter is thin. We know he voted the government’s way in one war detention case by voting to uphold military tribunals but the particular facts in any given case could lead him to vote for the government in one case and against it in another. What specifically, senators should ask, does the Sixth Amendment protect in his view?

If history is any guide, the Democrats and Republicans on the Judiciary Committee will focus on pet issues and how the Court’s interpretation will impact their ability as legislators to deal with those projects. The liberals no doubt will ask questions about abortion rights, a hot-button issue for one of their primary constituencies and we can expect Mr. Schumer to ask about privacy rights in general. Senator Edward Kennedy will ask questions relating to labor and education rights, and Leahy some questions concerning the environment. On the other side, Senator Cornyn will ask general, soft-button questions on “judicial activism” (whatever that means) and Arlen Specter on legislative deference and how the Court’s “judicial activism” (there’s that phrase again) interfered with causes dear to the hearts of, you guessed it, liberals and moderates. Both sides will ask about equal protection. Conservatives may ask him questions about his contribution to the gay rights cause in Romer v. Evans (god forbid anyone represent a gay client or think the constitution applies to them) and both sides will ask about his views concerning Affirmative Action.

Mr. Roberts’ view on privacy rights are not known or for that matter, entirely developed. We know he contributed to the federal government’s brief asking for the repeal of Roe v. Wade and there are good reasons to believe he will vote with Scalia and Thomas on this matter like any strict constructionist but his respect for precedent may lead him to uphold the general right to abortion and other privacy rights as well. Mr. Roberts should be challenged to provide us with a clearer understanding of when he believes the Court should uphold or overturn judicial precedents he disagrees with. What criteria, what standard of proof, in other words, would he rely on before he votes to reconsider and overturn precedent?

A thorough examination of Mr. Roberts’ view will not only help senators decide for themselves whether they should vote for or against his confirmation as departing Justice Sondra Day O’Connor’s successor, but also illuminate for the public his vision for the Court’s future and how he intends to lead the public and governing bodies that represent them to fulfill that vision for a constitutionally just society.

The Sunday Preview

Okay. It’s time for the previews. Our ambassador to the Iraq will be making the rounds on all but one of the major talk shows. Do note some issues of balance. “Fox News Sunday” will air the views of one senator, a Republican, on how we should deal with Iran’s latest decision to resume uranium conversion and “Face The Nation” will interview the spokes person for the Democratic Party, Howard Dean, about his party without giving a Republican the time to rebut. The focus obviously is on Iraq since the negotiators must reach an agreement on Iraq’s constitution shortly and because some rumors have been going around about possible troop withdrawals but give “Fox News Sunday” some credit for reminding us of our problems with Iran, “This Week” for an interview with Lance Armstrong, and “Face The Nation” for a segment on the Democratic Party’s future.

1. “Meet The Press:” U.S. Ambassador to Iraq Zalmay Kahlizad and Senator Joseph Biden (D-Delaware) speak about the war in Iraq and troop levels, political negotiations on Iraq’s constitution and an exit strategy. E.J. Dionne and Byron York are in a roundtable discussion.

2. “Fox News Sunday:” Senator John McCain (R-Arizona) on Iran and whether the administration should take a more forceful stance on Iran now that it will resume “uranium conversion activities.” Zalmay Kahlizad will talk about the progress on Iraq’s constitution and an exit strategy. Roundtable discussion includes Charles Krauthammer, Nina Easton, Bill Kristol, and Juan Williams.

3. “Late Edition:” Ambassador Kahlizad will talk about the Iraqi constitution now being negotiated and an exit strategy for the American troops stationed there.

4. “Face The Nation:” Democratic National Committee Chairman Howard Dean and John Harris of The Washington Post talk about the war in Iraq and the Democratic Party’s future.

5. “This Week:” Seven-time Tour de France winner Lance Armstrong is interviewed as is Kahlizad about Iraq’s constitution.

6. “The Chris Matthews Show:” New signs of a withdrawal from Iraq, what vacations tell us about our presidents, and whether rock and roll will survive.

Thursday, August 11, 2005

Did Anyone Catch This Plug

on Hardball last week?

MATTHEWS: We‘re back with Governors Ed Rendell of Pennsylvania and Mike Huckabee of Arkansas.
Governor Rendell, the latest front-runners for the party nominations for next time are Hillary Clinton, obviously, on the Democratic side, and Rudy Giuliani, and, of course, McCain on the other side.
Are you amazed had Giuliani is doing so well among Republicans?
RENDELL: Well, no, because I think, at this stage, presidential sweepstakes tend to be name recognition, Chris. And Mayor Giuliani and Senator McCain are probably the two best known Republicans in the field, once you take Jeb Bush out. So it‘s name recognition.
And although I‘m a big Hillary Clinton supporter in so many ways, Hillary is also way ahead in the polls because of name recognition. You know, someone like a Joe Biden, who I think would be a great candidate, hasn‘t got that name recognition yet. And, of course, it depends on the campaign, whether he‘ll ever get it. But...
MATTHEWS: Do you think he might her chief...
RENDELL: ... name recognition.
MATTHEWS: Governor, do you think he might end up being her chief challenger for the primary, for the nomination?
RENDELL: Before—before it is over, that could be the case, Chris.
MATTHEWS: That will be a tough one for you to make.
RENDELL: Well, it sure would. That would be a real tough one for me.
MATTHEWS: Let‘s go, because...
MATTHEWS: ... a lot of people think Joe Biden is the third senator from Pennsylvania, if not one or two in that ranking.

Roberts and NARAL Ad

When then- Texas Governor George W. Bush was running to succeed Bill Clinton as president, a civil rights group ran an ad purporting to link the governor’s opposition to hate crime legislation to the violent death of a black man whose body was chained to a car and dragged several hundred feet. One could not forget the image – an aerial view of a chain and the ground “shifting” downward so as to suggest that a car dragging the chain was moving forward at a high speed.

The ad was appalling and unfair to the governor and others who oppose hate crime legislation. Most oppose such legislation on free speech grounds but would have no problem aggressively prosecuting and sentencing to death, a person who engages in a brutally violent act against another human being..

Supreme Court nominee John Roberts Jr. is the latest but certainly not the last recipient of a malicious smear campaign. The National Abortion Rights Action League (NARAL) has recently aired an ad linking his views with that of abortion clinic bombers. Mr. Robert’s ideology purportedly “leads him to excuse violence against other Americans” because he argued against a broad interpretation of the Ku Klux Klan Act. The law in question was first used to protect freed slaves from Ku Klux Klan members who would use First Amendment free speech protections in a way that would intimidate the freed slaves.

Over the years, courts have applied it more broadly to include other disfavored groups and abortion rights organizations hoped to use it to block protests designed to prohibit women from entering abortion clinics. Mr. Roberts, acting on the administration’s behalf, said the law did not apply to abortion clinics since the protestors were not engaging in sex discrimination.

Technically he was right. Abortion restrictions do implicate a woman’s liberty interests and the tactics used by some abortion protestors do as well but the case did not discriminate against women. Women and the men who may have been providing them with moral support were blocked from entering the clinics.

Whether the protestors had a right to block them is another question. Certainly, police have an obligation to protect a woman for exercising her rights and the Supreme Court said pregnant women have that right. The question at issue was not whether the a crowd of anti-abortion protestors could use strong arm tactics to overwhelm women who would abort and the police charged with protecting them (for those who would condone that violence would be far and few between) but whether the anti-abortion protestors had a right to protest in the first place.

The NARAL ad confuses the two and leads one to believe that Mr. Roberts’ supported the tactics used by the violent few even though he was really protecting the overwhelming majority who only want the women entering the abortion clinics to see the fetus pictures signs calling them murderers. That may be offensive, but the Constitution makes no distinction between offensive and acceptable speech.

Monday, August 08, 2005

Anyone Catch This?

I watched Tucker Carlson's new show on MSNBC Friday and was quite surprised to this from Reverend Jerry Falwell. His admission will come in handy when the people of Maine eventually vote on gay's newly-acquired employment rights. Welcome aboard Jerry Falwell.

CARLSON: Show a little self-restraint.
All right, the SCOTUS situation may not be as black and white as it first appeared. John Roberts nominated for a lifetime appointment to the Supreme Court, once argued against such appointments for federal judges. Earlier this week, we found out that Roberts once did pro bono work helping gay activists win a landmark case before the Supreme Court. That was in 1996, when the court struck down a Colorado law allowing employers and landlords to exclude gays from jobs and housing.
Now supporters and opponents of the nominee are wondering what it all means. Well, we don‘t know exactly what it means. We do know this wasn‘t a case he was paid to take. This is something he did for free, voluntarily. It‘s impossible believe—believe—to believe he would have done it if it violated his conscience. So, he had to, in some way, agree with it.
It makes me think that the people who have commented on this so far have no clue what they‘re talking about.
CARLSON: Conservatives, spurred on by the White House, have said, he‘s great; he‘s one of us.
They don‘t know that, right? And the left has gone completely bananas. The head of the Human Rights Campaign wrote a piece, the headline, “Anti-Gay Extremists Trying to Gain A Stranglehold on Government,” implying this guy is an anti-gay extremist. Neither side knows what it‘s doing.
Jerry Falwell, I notice you wrote a piece supporting Mr. Roberts. Are you rethinking that?
FALWELL: Oh, not at all.
You know, I—if I were an attorney, I‘d certainly fight for the right of gays or anyone else to be employed or be housed wherever they wished to be housed. I may not agree with the lifestyle. And I don‘t. But that has nothing do with the civil rights of that member of our—that part of our constituency.
John Roberts would probably have been not a very good lawyer if he had not been willing, when asked by his partners in the law firm to assist in guaranteeing the civil rights of employment and housing to any and all Americans.
CARLSON: But wait a second. I thought conservatives are always arguing against special rights for gays. And the idea is that...
FALWELL: Well, housing and employment are not special rights. I think—I think the right to live somewhere and to live where you please or to work where you please, as long as you‘re not bothering anybody else, is a basic right, not a—not a special right.
MADDOW: I think—I‘m happy to agree with you on this.
I mean, I think that if you look at Romer v. Evans, it‘s pretty hard to say that you‘re against the decision in Romer v. Evans that was originally arrived at. I mean, Scalia and Thomas were definitely against it. But the fact is, this—this—this case was about...
CARLSON: And Rehnquist.
MADDOW: And Rehnquist. I think you‘re right there—was—this case was about whether or not you can put an ad in the paper that says, I want to rent this apartment, but no gays need apply, or, I want to put up a for-hire sign that says, no lesbians will be hired for this job. If you think that‘s an American value and that we ought to be supporting that, then you‘re with the minority in Romer v. Evans. If you‘re not, then you‘re on the side of John Roberts.
CARLSON: I‘m—of course, I‘m not even arguing that.
MADDOW: Right.
CARLSON: I‘m merely saying, this gives us a window into Judge Roberts‘ thinking and it suggests that he‘s not nearly as conservative as his critics and his supporters have suggested. And I think that, if he winds up being a Tony Kennedy clone on the Supreme Court, we shouldn‘t be surprised. I won‘t be.
FALWELL: Well, Tony—Tucker, I‘m very conservative. I think I‘m to the right of most people you know, but...
CARLSON: Not to the right of me, but yes.
FALWELL: But civil—civil rights for all Americans, black, white, red, yellow, the rich, poor, young, old, gay, straight, et cetera, is not a liberal or a conservative value. It‘s an American value that I would think that we pretty much all agree on.
CARLSON: All right.
MADDOW: I hope—I hope that, when your colleagues on the right get upset about this Roberts‘ revelation, that you‘ll speak out about that, because it‘s nice to hear you say it.
FALWELL: They‘re not upset. They are—they—the people I know on the right are very much for this guy. And while we don‘t know a lot about him, he‘s—he‘s got to be, with his record, his background—I met him when he worked for Mr. Reagan—he‘s got to be a healthy addition to the court.
CARLSON: All right.
Next up, what do politics, cable television shows and advertising have in common? Well, they make pretty strange bedfellows. Watch this.

Saturday, August 06, 2005

The Sunday Preview

1. “Meet The Press:” Douglas Kmiec and former New York Governor Mario Cuomo talk about the role of religion in the Judge Roberts hearings. Author David Kirby and Institute of Medicine Dr. Harvey Fineberg talk about autism and vaccines.

2. “Fox News Sunday:” Senators Richard Lugar (R-Indiana) and Joe Biden (D-Delaware) debate the war on Iraq. Senator Jim Bunning (R-Kentucky) and Representative Tom Davis (R-Virginia) talk about legislative regulations designed to prohibit steroid use in baseball. Roundtable discussion includes Charles Krauthammer, William Kristol, Nina Easton, and Morton Kondracke.

3. “This Week:” Nothing to report as of yet.

4. “Face The Nation:” Senator Jack Reed (D-Rhode Island), Representative Duncan Hunter (R-California) and Former Assistant Secretary of Defense Francis “Bing” West talk about the war in Iraq.

5. “Late Edition:” Gen. David H. Petraeus, Senator George Allen (R-Virginia), and Senator Barbara Boxer (D-California) on the war in Iraq and whether Iraq’s troops are ready to take over. Chief Palestinian negotiator Saeb Erakat, Israeli Vice Prime Minister Ehud Olmert, and former Lebanese Prime Minister and opposition leader General Michel Aoun also make appearances on the show.

6. “The Chris Matthews Show:” Nothing to report as of yet.

John Roberts and the Activists on Romer v. Evans

Many religious conservatives were until recently quite pleased with President George W. Bush’s decision to appoint John Roberts, a Circuit Judge of the District of Columbia, as retiring Justice Sondra Day O’Connor’s successor on the highest court of the land.

Tony Perkins of the Family Research Council said the Supreme Court nominee is well respected for his “fair judgment, intellect and integrity ”who“will strictly interpret the Constitution and not legislate from the bench.” Jan LaRue of Concerned Women for America said that “everything we know about Judge Roberts tells us that he fulfills the President’s promise to nominate a judge who will strictly interpret the Constitution and not legislate from the bench” but the enthusiasm coming from their side of the aisle has dampened somewhat after The Los Angeles Times published an article concerning his involvement in a landmark gay rights case back in 1996.

Mr. Perkins now expresses some reservations concerning Mr. Roberts nomination though he still backs the president and as of yet, did not retract his statement of support for the Supreme Court nominee. His “initial reaction” to the news was that Mr. Roberts was “aiding and abetting” a group whose values are in conflict with that of the religious conservatives and Mr. Paul Weyrich said the judge should have risked his job and declined to take this pro bono case on behalf of gay rights advocates.

Mr. Roberts, then affiliated with the Hogan & Hartson, was approached by the head of the pro bono department at the firm and asked to help Jean Dubofsky, the lead attorney seeking to overturn a state constitutional amendment barring Colorado’s governing bodies from protecting gays and lesbians from discrimination:

The amendment reads as follows:

"No Protected Status Based on Homosexual, Lesbian, or Bisexual Orientation. Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination. This Section of the Constitution shall be in all respects self-executing."

In effect, the amendment, which passed with 54% voter approval in 1992, repealed the governor’s 1990 executive order barring employment discrimination against gays Colorado’s Insurance Code forbidding insurers from considering one’s sexual orientation when reviewing one’s eligibility and premiums, and similar level of protection offered by any other state or local governing body within the state. Gays could not seek redress for what they viewed as wrongful discrimination without first appealing to the state to repeal is own constitutional amendment.

The state’s highest court overturned the amendment but gay rights activists feared a reversal after the Supreme Court decided to hear the state’s petition for a reversal. Jean Dubofsky was ultimately successful, however, and the activists’ fear proved unfounded. The six-justice majority led by swing Justice Anthony Kennedy ruled against the state and affirmed the decision reached by the state and lower courts because it imposed a substantial disadvantage in a whole wide array of civic activities on a single group of people subject to ridicule, contempt, and scorn.

Mr. Roberts’ own role in this effort is not clear. He did not partake in the oral arguments for those familiar with that case would know that Jean Dubofsky herself went in front of the judges and answered oral arguments, but Mr. Roberts did serve on a moot court panel to prepare her for the oral arguments and Mrs. Dubofsky viewed his limited time with her as “crucial” in winning a majority on the Supreme Court.

Religious conservatives were not pleased with the outcome or the legal reasoning involved but they have not yet come out against Mr. Roberts. Mr. Perkins’s press release following these revelations urges caution before leaping to conclusions:

"As a former policy maker and now full-time advocate for family values, my first thought in response to the LA Times story was 'aiding and abetting,' which I would venture to say is how many of our supporters would see this news. However, I urge caution in jumping to that conclusion. "Judge Roberts was an attorney with a large firm where helping colleagues when called upon was expected. Attorneys are not necessarily advocates or activists. In fact, activists are exactly what we don't want on the court. I spent the good part of yesterday on the phone and in meetings to get the facts. I have verified that his involvement was limited to about 5 hours of participation in a moot court as he played the role of one of the High Court's conservative members asking tough hypothetical questions of the attorneys who actually prepared and argued the case.”

The latest revelation may say more about President Bush’s nomination strategy and activists who are taking sides more than the nominee himself. The president’s nomination strategy has up to now been to minimize Mr. Roberts’ own legal views on school prayer and overturning abortion rights by suggesting that he was acting on behalf of his client – the United States government. We have been told that Mr. Roberts will not answer any questions about pending legal cases or those concerning hot button social issues because that would require him to prejudge cases without reading the briefs, and deliberating with his potential colleagues on the Court.

Mr. Roberts’ legal analysis made on behalf of the government and in private practice may reveal something about the man as judge or it may not. He says that he was acting on behalf of his clients and like any good attorney, he provided sound legal counsel for those clients.

Liberal activists are not buying it and are using the legal work he did on behalf of the United States government to portray him as a right-wing conservative judge who will vote with Justice Antonin Scalia, William Rehnquist, and Clarence Thomas to overturn privacy rights, narrow protections from government-based discrimination, and overturn environmental protection legislation.

Fair enough. He chose to align himself with conservative administrations and he chose to sign onto legal memorandums, briefs, and opinions limiting the role of the judicial branch and questioning the right to privacy. If he found the opinions reached by his bosses morally objectionable he could have resigned.

But the same can be said for his pro bono work for Jean Dubofsky. Mr. Roberts could have told the law partner that he found it morally objectionable to advance the gay rights cause and declined to help Mrs. Dubofsky but he chose to give her the best legal advice he could so she could win a landmark gay rights ruling.

The conservative religious activists pretended to buy into the president’s argument because they thought they had a reliable ally who opposes abortion and homosexual rights but are now beginning to doubt it. Mr. Perkin’s prefaced his remarks about his initial concern of ‘aiding and abetting’ by noting that he is “an advocate for family values” and some conservatives have said a lawyer would not take a case that is viewed as morally objectionable. Mr. Weyrich said Mr. Roberts should have risked his career and job by declining to take the case.

If the religious conservatives truly wanted a judge who is capable of separating his personal views from his legal obligations they would have no problem with his work on behalf of his gay clients but they were troubled and until “reassured” by those working for the Bush administration, expressed that concern because they don’t want a person who will not prejudge a gay rights claim in their favor. A true strict constructionist could, after all, rule (as any strict constructionist would) against a gay person’s gay privacy rights and a woman’s abortion rights and still use the Fourteenth Amendment’s Equal Protection promise to strike down as unconstitutional anti-gay amendments like the one at issue in Romer.

The White House says Mr. Roberts should not be asked to prejudge a case. To buy into this argument however, we must assume that every nominee joins the court with a clean slate with the ability to put his or her own biases and preconceptions aside and look at the merits for the positions taken by the opposing side. The president cannot say he wants a strict constructionist who will “interpret the Constitution” without also admitting that one of that persuasion does have preconceived negative views on the decisions handed down privacy rights in Roe v. Wade, Lawrence v. Texas, Griswold v. Connecticut, and Planned Parenthood of Southeastern Pennsylvania v. Connecticut. And that exactly is what the White House and the activists on both sides of the political aisle were and probably still are counting on that.

Thursday, August 04, 2005

Roberts Surprise?

I cannot vouch for the accuracy of this but if Jean Dubofsky, the lead attorney who presented oral arguments for the gay rights advocates in Romer v. Evans is right and if this accurately reflects Mr. Roberts' own legal views, we might be in for a pleasant surprise. I'm not expecting a Souter or Stevens but do we have another Kennedy or another O'Connor when it comes to gay rights claims? One could only hope.


Video Games and the First Amendment

"Although those of us who seek a less coarse, less crude culture for ourselves and our children are reluctant to characterize it this way, when we contemplate regulation of speech we consider out of bounds, our real target becomes too much freedom or the misuse of freedom.

Thus, in making that choice between our freedom and government’s authority, we must take care. Certainly, freedom can be misused, but that is a choice each of us makes. If the individual exercise of that freedom is unwise, at least it is self-imposed and usually self-correcting.

On the other hand, when political power is misused to restrict or suppress speech, all of us are affected in one way or the other. That power is imposed, not chosen, and generally it is anything but self-correcting." - Paul McMasters

And there is no real or significant difference in principle between "too much freedom" or the "misuse of freedom" and "properly used" freedom.

John R. Bolton and The Recess Appointment

To no one’s surprise, President George W. Bush appointed John R. Bolton to serve as our ambassador to the United Nations and claimed that he had no choice but to bypass the senate and use his recess appointment powers because “the post is too important to leave vacant any longer.”

Senate Democrats have opposed Mr. Bolton’s nomination and have demanded the release of information pertaining to his involvement on the information dissemination our administration relied upon to justify war against Iraq. One Republican senator said he opposed Mr. Bolton’s nomination because his management style and abrasive personality were unbecoming for the position he was ultimately appointed to.

President Bush has a constitutional right to nominate the person of his choosing for this and other executive-branch leadership posts. Article 2, Section 2 of the Constitution clearly grants him and any successor the power to nominate “and with the Advice and Consent of the Senate,” appoint “Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States whose Appointments are not herein otherwise provided for, and which shall be established by Law.”

As a general rule, senators are advised to give the sitting president is picking those who will serve in his administration even if they themselves would not have picked that nominee or signed onto that nominee’s ideological agenda. The president was elected to lead the country in a given direction and giving the president deference to appoint those he trusts to implement his program most effectively makes sense.

The president said he trusts Mr. Bolton to be the staunch advocate of United Nations reform, and liberty that he seeks so he would have been entitled to a floor vote under normal circumstances.
Senators nevertheless are charged with the power to advise the president and give their consent. They have every right to question Mr. Bolton about his policies and insist that he turn over documents that would lead them to fulfill their constitutional duties responsibly. Questions concerning the newly-appointed ambassador’s role in providing the president with erroneous intelligence information are serious and worthy of senate hearings. Inept nominees who hastily leap to conclusions on erronious information and otherwise do not get along well with their co-workers can and should be rejected without undermining the president’s general policy direction.

In this case, Mr. Bush avoided that process altogether by appointing Mr. Bolton after the senate went into recess. The Constitution allows the president to make such recess appointments and “fill up all Vacancies that may happen during the Recess of the Senate,” but it is not altogether clear how far the president may go in making those kinds of appointments. A literal reading of the Constitution would suggest a narrow interpretation limiting its use to those instances in which an official resigns while the senate is not in session but most scholars believe the president could use it to appoint a controversial nominee as soon as the senate goes into recess.

President Bush no doubt had every opportunity to find a suitable replacement but instead chose to use his constitutional power to appoint someone whose nomination stalled in the senate. President Clinton appointed James C. Hormel to be his ambassador to small land-locked Luxembourg when the senate went into recess after his appointment process in the senate stalled because was gay.

The literalist approach briefly described above, however, seems more in line with the Founders’ vision for our country. The Constitution’s drafters would not have granted the senate the power of “advice and consent” in one statement and then negate it by granting the president the unlimited power to make recess appointments. If the senate’s own role in guiding our foreign policy is to have any meaning, the president’s power to appoint whoever he wants when the legislative body goes into recess has to be sharply curtailed.

Note to Readers: The time refers to hour and minutes in which entry was composed and not published.