Friday, September 30, 2005

Fiscal Waste

I wonder how often this goes on and in how many different government agencies.

One agency loses $10 million budget surplus in three years?

Justice Roberts and The Way Forward

The Senate voted by an overwhelming 78-22 vote to confirm former Appeals Court Judge John Roberts to the Supreme Court. President George W. Bush first nominated him to replace Associate Justice Sondra Day O'Connor, one of two pivotal swing votes on the Supreme Court after she announced her pending retirement, but revised his plans and nominated him to replace his former mentor, the late Chief Justice William Rehnquist after he passed on September3 of this year.

The GOP rallied behind the president. Religious conservatives like Senators John Cornyn of Texas, Lindsey Graham of South Carolina, Rick Santorum of Pennsylvania, and Sam Brownback of Kansas predicably backed their president in supporting a candidate with strong conservative credentials. But moderate Republicans who outspokenly dissent from their party on abortion and privacy rights in general like Senate Judicary Chairman Arlen Specter of Pennsyvlania, Olympia Snowe of Maine, and even Lincoln Chafee of Rhode Island, voted to confirm Mr. Roberts as well.

The Roberts' nomination effectively split the Democratic Party down the middle, with those moderates living in Republican-leaning or socially conservative states predictably voting for Mr. Roberts. Senators Mark Pryor and Blanche Lincoln voted for him as did Senators Robert Byrd of West Virginia, Mary Landrieu of Lousisana, Max Baucus of Montana, Jeff Bingaman of New Mexico, Kent Conrad and Byron Dorgan of North Dakota, and John Rockefeller and Robert Byrd of West Virginia.

Mr. Ben Nelson, the Republicans' answer to Lincoln Chafee, was a predicable shoe-in for the president, but Democrats from purple swing and liberal states like Senators Robert Kohl and Russell Feingold of Wisconsin, Chris Dodd and Joseph Lieberman of Connecticut, Maria Cantwell of Washington, Bill Nelson of Florida and Carl Levin of Wisconsin voted for him as well. Democratic Senators Chuck Schumer of New York, Edward Kennedy of Massachusetts and those who may be seeking the Democratic Presidential nomination like Hillary Rodham Clinton of New Yor, Evan Bayh of Indiana, and Joseph Biden of Delaware predicatably voted against Mr. Roberts.

The bipartisan support for Mr. Roberts' confirmation masks partisan divide that will open as soon as Mr. Bush appoints Sondra Day O'Connor's replacment. The new chief justice replaces a known and reliable conservative. The late William Rehnquist consistently voted to uphold state prohibitions and regulations on abortion and private sexual behavior while voting against affirmative action, a broad reading of the Equal Protection (non-discrimination) Clause, and the "wall separating church and state." The Democrats know that at worst, they are replacing a reliably conservative justice who found himself in the three-justice minority on contentious social issues, with another conservative. Mr. Roberts is highly regarded and has impeccable legal credentials yet even he received less votes than Clinton-appointees Stephen Breyer and Ruth Bader Ginsburg.

Sondra Day O'Connor, however, wants to retire in the near future and she is considered a pivotal swing vote on the Supreme Court. While Justice Kennedy joined her in re-affirming the "central tenet" of Roe v. Wade in Planned Parenthood of Southeastern Pennsylvania v. Casey, and in striking down school-mandated prayer ceremonies at graduation ceremonies (Lee v. Weisman) and football games (Santa Fe), Justice O'Connor cast the deciding vote that struck down a partial birth abortion ban in Stenberg v. Carhart. She also casted the deciding vote upholding an affirmative action program (
Grutter v. Bollinger), and the McCain-Feingold Campaign finance law (McConnell v. Federal Election Commission).

The Familiy Research Council issued a press release praising the senate for voting for Mr. Roberts nomination and promised to be "vigilant" against those who would use a "religious test" to thwart a future conservative nomination. The even more outlandish Traditional Values Organization accused some unnamed Democrats of voting for Mr. Roberts to excuse an expected filibuster which they would vote for should it come up. These senators, the press release asserts, want someone who believes in prostitution rights and lowering the age of sexual consent to twelve-years old.

Democratic National Committee Chairman Howard Dean, for his part, said Democrats should filibuster an "unqualified Republican nominee" since "Republicans don't seem to have any qualms about putting unqualified
in all manner of positions all over the government" and Senate Majority Leader Harry Reid said a nominee "more extreme than John Roberts" would be unacceptable to the Democratic caucus." Republican Senators Lindsey Graham and Mark DeWine promised to vote for the "nuclear" or "constitutional" option and eliminate the filibuster should that occur.

Filibuster threats are premature at this point. Mr. Bush has not announced his pick for O'Connor's seat yet and is not expected to do so until next week. The public would not look kindly upon and rightly so, a premature negative assessment of the president's nominating process when the candidate has not been announced and twenty-two Democrats are on record voting for his first nominee.

Mr. Dean's comments will be dismissed as the partisan statements that they are. The president's unimpressive response to the disaster at Katrina cannot realistically be used to argue for Republican incompetence in general. Mr. Roberts is no Michael Brown. Mr. Roberts is a well-respected by legal scholars of liberal and conservative ideological persuasions and was forced to answer the tough questions posed by Supreme Court justices on numerous occasions that he will now join. Mr. Brown was a political appointee with a legal background bu no undisputed background in emergency disaster relief management.

The prostitution and sex consent allegations raised in the Traditional Values Coalition web site are baseless and not worthy of a response. Democrats are parents too and as such I highly doubt they would encourage their twelve-year-old daughters to get pregnant or their twelve-year old son to father a child.

The Family Research Council's "religious test" rhetoric appeals to our sensibilities for fairness and religious pluralism but otherwise laughable since they are looking for a justice who will overturn important church-state Supreme Court precedents that protect us from state-imposed religious tests in the first place. They supported school-administered prayer services at graduation ceremonies, classrooms, and sporting events even though such practices are indistinguishable from activities one would engage in at a religious ceremony.

Mr. Bush, it is asserted, will appoint a conservative activist to succeed outgoing Associate Justice Sondra Day O'Connor in order to solidify his Republican base. The president's approval ratings do not look good right now. The American public was not impressed by the federal government's slow response to Hurricane Katrina. Fiscal conservatives, already furious because Mr. Bush refused to veto a single spending bill, said they oppose any disaster relief financial aid package that does not include offsets for spending elsewhere. And Republicans, desperate to put House Majority Leader Tom Delay's new legal troubles (the accusation refers to money laundering for political purposes) on the back burner, desperately want to change the subject as well.

The president is not up for re-election so he could theoretically defy this conventional wisdom and look for a man or woman who, like Mr. Roberts promises to be, would not provoke a strong reaction from ideological partisans on both sides of the political aisle. This blogger appreciates the open-minded and pragmatic approaches offered by Justices Anthony Kennedy, Stephen Breyer, and outgoing Justice O'Connor and hopes Mr. Bush will appoint a consensus candidate that can appeal to members from both sides and spare us the politcal showdown the senate narrowly avoided in spite of Harry Reid and Senate Majority Leader Bill Frist's failed leadership.

Tuesday, September 27, 2005

Drive Less Damnit!

So I shouldn't go to work? or grocery shopping? okay. I wouldn't mind sacrificing that to preserve our resources for the common good.

"Underutilized" Property and Eminent Domain

A City Council's Mercy
"City officials say they will use the authority only as a last resort. Still, they made some concessions to ease residents' fears. They cut the length of time the expanded eminent-domain authority would be in effect, from 12 years to eight, and stated more clearly in documents that eminent domain will not affect residences." - news exceprt from The (San Diego) Union Tribune

Why must residents of San Diego rely upon San Diego's good faith?
Township committeemen and state (PDF File) legislators everywhere should be passing laws and ordinances with this (PDF file) wording in mind.

How New Jersey Defines The Word"Blighted":
"But in recent decades, the use has expanded. In New Jersey, the definition of "blighted" properties has expanded to include not only abandoned or run-down sites but also those that are "underutilized" -- the way Lodi views the trailer parks." - The Star Ledger

"Underutilized." Hmmm. What isn't underutilized?

The Star Ledger news article, for those interested, concerns one citys' efforts to replace a trailor park now housing lower income (and I suspect) blue collar workers with a new apartment complex with senior housing and shops.

By the way, they use that word in Connecticut too.

"For 20 years we have thought that the property is under utilized and now it can be used to revitalize that portion of the city and bring economic value into the community" - City Manager Blaine Michaelis in The Connecticut Post. Mr. Michaelis says Costco would better utilize private residential and retail property. Well, at least San Diego gave its underutilizing residents a reprieve. They could waste their property use away for now.

Better Utilized Housing
"This is about liberty for everyone. You can't sacrifice someone's liberty because you want to put a different type of improvement on their property. If that is the case, level Keyport and North Middletown, those little modest capes and ranches. Level the whole area and put up $500,000, $600,000 houses. If you do it here, you can do it anywhere."
- a part-time Long Branch resident, opposing the seizure of his and his neighbors' home for a condominium project. Do note the pressure imposed upon the residents. Long Branch is threatening its residents into a deal and wny not? The Supreme Court said it has every right to force them to sell if it can gain more tax revenue from higher-priced homes or a shopping center The residents have no recourse. The developers must be ecstatic.

Your State Do Anything Yet?
The National Conference of State Legislatures provided a list of eminent domain bills making their way through the state legislatures. It's still small and it may not be complete given favorable property rights developments before Kelo but it is better than nothing.

Sunday, September 25, 2005

Bush's Wrongheaded Approach in Iraq

"The only way for Iraq to avoid catastrophe is a political accord among Shiites, Kurds and Sunnis, one that can be based only on the preservation of Iraq as a federal but unified state in which resources and political power are fairly shared and human rights protected. The Bush administration, and Iraqi leaders themselves, ought to be focused on striking that national compromise rather than on prematurely enshrining pieces of paper or adhering to deadlines that were set arbitrarily 18 months ago. The longer the delay in achieving real compromise, the greater the risk that Iraqis will be locked into a march toward ruinous civil war, whether the political calendar is followed or not" - The Washington Post editorial board

I don't think I have to add to this statement given my past comments on how we are proceeding. For those who are interested they can take a look here in 'Reject Iraq's "Constitution.'

Future Court Nominee Pivotal on Religious Establishment

The news media focused on abortion and privacy rights during the hearings in part because those who opposed him were being hounded by the feminist and gay rights groups on the subject. Just as important, however, was his view on Church Establishment. Replace Justice O'Connor with a conservative like the late Chief Justice and religious neutrality is gone. It's good to see Charles C. Haynes make that point but it would have been more effective if he pointed to the consequences.

Would the Christian parent mind if the teacher or school adopted Islamic prayers or offered Islamic religious courses instead of Christian ones at school? Would the Christian parent mind if students associated with the Good Islamic Club (I just made it up for a comparison to Good News Clubs) pass out its literature to their young impressionable children? Would lthey mind if the school celebrated the Winter Solstice and were exposed to some religious beliefs shared by Wiccans? if graduation ceremony prayer were performed by a Native American medicine man?

I'm sure they would and with good reason. Basic fairness requires that they treat those of religious minority sects in the manner they would like to be treated if placed in the same situation.

Justice Scalia and Art

“The line between protected pornography and unprotected obscenity lies between appealing to a good healthy interest in sex and appealing to a depraved interest, whatever that means,” - Antonin Scalia at Julliard

Good point. I cannot for the life of me understand what is "obscene" and what is is "indecent" but politically protected speech but what art would appeal to a "healthy interest in sex" (whatever that means) and what would appeal to a "depraved interest?" How can anyone predict whether one will have a "good healthy interest in sex" or a "depraved interest" by looking at sexually implicit art? or how can one say they will have one but not the other?

This blogger wouldn't mind if the government got out of the art funding business but does not join Mr. Scalia in defending viewpoint discrimination. Fund one idea and you must fund another, and if, as Mr. Scalia pointedly observes, there is no clear delineation between art work that appeals to a "good healthy interest in sex" and one that appeals to a "depraved interest," then any such distinction in funding would be arbitrary and more vulnerable to government abuse.

Dan Asmussen

'No Meal/No Wheel deals and price fixing suicide virgin deals make in this Friday's "Bad Reporter." And on Wednesday, the efforts from snortin' Moss to bring New Orleans' flood waters down.

Saturday, September 24, 2005

Hand Gun Ban Proposition H

This November San Francisco residents will vote on a gun control measure unlike any other that made its way in the headlines with former President Bill Clinton and the Republican majority in Congress battled over the waiting period necessary to perform background checks. The ex-president and most Democratic colleagues favored a three-day waiting period while Republicans insisted upon a more limited 24-hour waiting period or instant background checks.

San Francisco's gun control measure, Proposition H, would impose a ban on the sale, distribution, and possession of handguns within the city, with exceptions being made for government employees like "peace officers" (the police), animal control officers, the military, and security personnel who use them for their job at public or private business. If passed, the ordinance would go into effect on January 1, 2006. Residents would have 90 days to surrender their firearm to the San Francisco Police Department or the San Francisco Sheriffs Department, something even Chicago and Washington D.C., did not require from those who already possessed those weapons when they passed their own hand gun bans.

The bill sets no penalty upon noncompliance but instructs the mayor to consult with the Chief of Police, Sherriff's Office, and District of Attorney before submitting a list of penalty and enforcement recommendations to the Board of Supervisors within the 30-day time limit. And the Board of Supervisors would have 90 days from the day the law went into effect to impose a set of penalties for gun violations.

Few outside of San Francisco expect this measure to fail at the ballot box. San Francisco is a liberal and anti-gun city. It was endorsed by the San Francisco Democratic Party, and the Committee to Ban Handgun Violence. Supervisors Tom Ammiano, Bevan Duffy, and Chris Daly support the measure the measure as well. The Democrats know their politics. Its opponents include the San Francisco Republican Party, the National Rifle Association, the Libertarian Party of San Francisco, the homosexual gun rights organization Pink Pistols, and the Coalition Against Prohibition, a self-described "non-partisan grassroots organization that reflects the diverse population of San Francisco."

Supporters refer to a San Francisco Department of Health Report published in 2002 to make their case that hand gun incidents account for the overwhelming majority of fire-arm related injuries and death, a statistic that is cited in Proposition H. Supervisor Chris Daly says the handgun restriction could reduce suicides and the number of domestic arguments that escalate into murder

In theory, handgun bans like the one proposed in San Francisco might reduce the homicide risk in the home but the anti-handgun activists may be wrong. Law-abiding citizens who could not by law own a handgun for homeland security could purchase a shotgun and, in the heat of a serious argument, the shotgun or rifle might go off. San Francisco residents who want to curtail domestic violence by reducing the number of lethal devices on the home would presumably want a more inclusive ban than the one now proposed. The same logic for banning handguns can certainly be applied to rifles and shotguns. Or should the Board of Supervisors go after stores that sell sharp cutting knives? Anyone for banning the sale of cutting knives with a blunt point?

The need for this ban is questionable. Responsible gunowers presumably would lock their shotgun (or handgun for that matter) away and keep it out of reach so it cannot be used during a heated argument. More often than not, these gunowers won't use their weapons though it might help them feel more secure.

But whether San Francisco passed a theoretically more effective handgun ban or the one now under consideration , enforcement by the police will be minimal at best. One could not expect the city's police officers (or should I say, "peace officers") to barge into the homes of citizens and confiscate their weapons without a warrant and a reason to believe that they do have a firearm.

The "peace officers" will spend their time inspecting gun stores to make sure these weapons aren't sold and add a possession of illegal weapons charge to those implicated in a robbery, assault, rape, or homicide - the very people who wouldn't surrender their handguns within the 90-day amnesty period anyway.

Background checks would provide law enforcement and sellers the tools necessary to keep these weapons out of the hands of known criminals, newly-released prisoners, pyschotic people, and those who are too immature to handle the awesome responsibilities associated with gun ownership.

Those who support firearms restrictions are of course making a broader point. Guns have but one function which the state has every reason to minimize - they are used to kill or to ward off those who would kill by functioning as a threat to kill. But as with any device, a person is needed. One can use the gun sparingly or every day. One may use it for hunting, for warding off the home intruder or suspected group of thugs following him or her on the street, for law enforcement, as backup to the military if there is an invasion or a war, or as a means to overthrow a corrupt, oppressive and tyrannical regime. Or, of course, for the illicit purposes that most residents fear.

Criminals prefer handguns because it is easier to conceal handguns than rifles or shotguns. I don't know if this is true or not. I guess if we were talking about a surprise attack on a rival gang member that might be true but that might not be an advantage in a robbery. The smart robber knows he or she would need to wear a mask and that alone should warn the store owner to alert the police right away.

But say they are the weapon of choice for criminals. Say they had no access to handguns. Criminals in the past used rifles and shotguns and, if they needed to do without the handgun or more sophisticated weaponry, they could purchase these rifles or shotguns again. The typical store owner may concern him or herself with the easy acess to guns but only for his or her own safety.They want loitering teenagers removed from their property for the same reason.

Police can address these concerns by enforcing late night curfews by arresting loitering teens and have their parents pick them up at the county jail or the local precinct and increase patrols at crime-ridden areas. And they could address those concerns by forbidding their residents and those who travel through it from carrying rifles, shotguns, handguns, or any concealed gun in public without depriving responsible gun owers a handgun for their own safety.

San Francisco residents will nevertheless vote for Proposition H. The framers of our Constitution would be turning in their graves. They knew what it was like to live in an oppressive state. Their fathers came from countries where religious and economic freedom was suppressed, and where trumped up charges were used to execute or incarcerate indefinitely political opponents. They carried guns to hunt and defend themselves, and when George Washington formed an army for the war for independence, local citizens formed their own militias and joined in the war effort. They didn't rely upon the government alone.

San Francisco's residents are rejecting their understanding of government nature. The Framers' jealously guarded their rights from the government but the residents in this Californian city have a mentality that will allow them to yield to powers reserved for a police state.

The PoliticalHeretic does not support them in this endeavor and hopes other cities and towns do not follow suit and impose broad bands like this one. Like the sodomy laws which the Supreme Court struck down in 2003, these laws impose a burden upon the freedom of those who do no harm to the public good. And maybe one day, a Supreme Court will reverse its own course on gun rights and strike down as unconstitutional laws banning hand guns.

Wednesday, September 21, 2005

The North Korean Statement of Principles

The six nations negotiating for nuclear disarmament on the Korean peninsula signed onto a state of principles this Monday. North Korea promised to disarm its nuclear programs and bind itself to the nuclear nonproliferation treaty and IAEA (International Atomic Energy Association) security standards "at an early date."

In return United States, promised to keep nuclear weapons off South Korea, reassured the communist led-north that it has no intention of invading it, and committed itself to future talks on a 1994 lightwater nuclear reactor plan it scuttled in 2002.

Former President Bill Clinton agreed to help build two South Korean financed lightwater power plants in return for a North Korean freeze in its nuclear weapons program and submit to IAEA inspections to verify disarmament. The North Koreans agreed and construction for the new reactors began until information led the Bush administration to suspect noncompliance. President George W. Bush scuttled that plan in 2002 after information of concerning a hidden uranium-enrichment program surfaced.

Pyongyang subsequently withdrew from the Nuclear Non-Proliferation Treaty (NPT) and declared itself to be a nuclear power forcing, creating a new sense of urgency for detente and nuclear disarmament.

Unnamed administrative officials quoted in the news stories linked to in my last two posts believe Mr. Bush was pressured into this agreement lest it get blamed for an eventual showdown with the communist-led north. His reluctance to sign onto this agreement was understandable.

The president conceded in principle to future talks on the lightwater reactor agreement it revoked as punishment for North Korean noncompliance. Nuclear disarmament can not be accomplished absent an admission of wrongdoing and a weapons inspection regime authorized to inspect and help dismantle the suspected uranium enrichment program that led our president to suspend power plant construction to begin with.

He also cconeded in principle just short of unilateral nuclear disarmament (we aren't dismantling our nuclear weapons program so it is not complete unilateral nuclear disarmament but we are unilaterally promising to keep them off the Korean battlefield). North Korea's administration no doubt committed itself to nuclear disarmament but that promise is subject to future negotiations but the South Korean and Bush administrations promised to keep the democratic-goverened southern part of the peninsula nuclear free. The United States may be lying and have a secret weapons program on the Korean peninsula or it may not. That is besides the point. Mr. Bush undermined future claims against unilateral disarmament.

Mr. Bush was in no position to deliver an ultimatum. Vital government resources are devoted to Afghanistan, Iraq, the Serbian-breakaway province of Kosovo, Bosnia, a hurricane relief effort in New Orleans, and an expected one that would follow Hurricane Rita. The Pyongyang's neighbors could not present a united front to pressure the North Korea to back down. The South Koreans adamantly opposed confrontation with their neighbor to the north. The Chinese refused to bring the matter to the National Security Council. Mr. Bush was told that he could either take and continue the negotiations or leave it and get the blame for undermining the six parties' chance to work towards a nuclear-free peninsula.

North Korea's victory is not absolute, however. Mr. Bush and those who will succeed him can still insist upon an inspection regime and the permanent suspenion of its suspected uranium enrichment program before committing to new lightwater reactors. And while the president and his successors are committed to future talks on the light-water reactor, nothing in the agreement commits to permit, let alone build or finance, one. A positive reference to South Korea's electric power-sharing provision was included in the statement as well.

I don't particularly like the agreement and don't view Pyongyang as a reliable negotiating partner but Mr. Bush ultimately made the right decision since he promised little if anything of substance. Better to give China the victory for its tactics and fight another day when the North Koreans demand more.

Tuesday, September 20, 2005

The North Korean "Agreement"

Text of the joint statement issued Monday by six nations at talks in Beijing on North Korea's nuclear program:

For the cause of peace and stability on the Korean Peninsula and in northeast Asia at large, the six parties held in a spirit of mutual respect and equality serious and practical talks concerning the denuclearization of the Korean Peninsula on the basis of the common understanding of the previous three rounds of talks and agreed in this context to the following:

1) The six parties unanimously reaffirmed that the goal of the six-party talks is the verifiable denuclearization of the Korean Peninsula in a peaceful manner.

The Democratic People's Republic of Korea (North Korea) committed to abandoning all nuclear weapons and existing nuclear programs and returning at an early date to the treaty on the nonproliferation of nuclear weapons (NPT) and to IAEA (International Atomic Energy Agency) safeguards.

The United States affirmed that is has no nuclear weapons on the Korean Peninsula and has no intention to attack or invade the DPRK with nuclear or conventional weapons.

The ROK (South Korea) reaffirmed its commitment not to receive or deploy nuclear weapons in accordance with the 1992 joint declaration of the Denuclearization of the Korean Peninsula, while affirming that there exist no nuclear weapons within its territory.

The 1992 joint declaration of the Denuclearization of the Korean Peninsula should be observed and implemented.

The DPRK stated that it has the right to peaceful uses of nuclear energy.

The other parties expressed their respect and agreed to discuss at an appropriate time the subject of the provision of light-water reactor to the DPRK.

2) The six parties undertook, in their relations, to abide by the purposes and principles of the Charter of the United Nations and recognized norms of international relations.

The DPRK and the United States undertook to respect each other's sovereignty, exist peacefully together and take steps to normalize their relations subject to their respective bilateral policies.

The DPRK and Japan undertook to take steps to normalize their relations in accordance with the (2002) Pyongyang Declaration, on the basis of the settlement of unfortunate past and the outstanding issues of concern.

3) The six parties undertook to promote economic cooperation in the fields of energy, trade and investment, bilaterally and/or multilaterally.

China, Japan, the Republic of Korea (ROK), Russia and the U.S. stated their willingness to provide energy assistance to the DPRK. The ROK reaffirmed its proposal of July 12, 2005, concerning the provision of 2 million kilowatts of electric power to the DPRK.

4) Committed to joint efforts for lasting peace and stability in northeast Asia. The directly related parties will negotiate a permanent peace regime on the Korean Peninsula at an appropriate separate forum.

The six parties agreed to explore ways and means for promoting security cooperation in northeast Asia.

5) The six parties agreed to take coordinated steps to implement the aforementioned consensus in a phased manner in line with the principle of ''commitment for commitment, action for action.''

6) The six parties agreed to hold the fifth round of the six party talks in Beijing in early November 2005 at a date to be determined through consultations.

Provided by The Associated Press off of The New York Times' web site

Excerpts from News Coverage on North Korean Agreement

"As described by senior Bush administration officials and Asian participants in the talks, Mr. Bush agreed to eventual discussions on providing a nuclear plant only after China turned over a draft of an agreement and told the Americans they had hours to decide whether to take it or leave it.

The North Koreans, dependent on China for food and oil, were unhappy but ready to sign. "They said, 'Here's the text, and we're not going to change it, and we suggest you don't walk away,' " said one senior American official at the center of the debate. "
from The New York Times

"The lesson of Iraq," said one senior American official, who is deeply skeptical about the deal, "is that we can never again confront a country about its weapons unless we show that we have tried every available alternative to disarm it." from another story in The New York Times My comment: And never again confont a county about its weapons unless we can prove their existence. don't cry wolf if you can't point to one.

"Some officials say they suspect that the North entered the talks ready to give up its plutonium program, which it "froze" under an agreement with the Clinton administration in 1994, because those facilities are out in the open, impossible to protect if a conflict with the United States erupted.
Under that theory, the North is more interested in protecting a clandestine uranium enrichment program that, the administration says, the North secretly started to evade the provisions of the 1994 agreement.
After initially appearing to acknowledge the program when confronted in 2002, the North now denies it exists. It is never explicitly mentioned in the statement signed Monday, though the administration says it is covered by the commitment to "abandoning all nuclear weapons and existing nuclear programs."
from the second story I linked to. Bold-faced my emphasis.

"At an appropriate time we are prepared to discuss - discuss" the idea of building a nuclear reactor" - Secretary of State Condoleeza Rice as quoted in The New York Times

Fiscal Insanity on Katrina: A Conservative Recommends Spending Cuts

Conservative Stephen Moore has few kind words to say for those who are unwilling to make some cuts to offset federal aid for Katrina victims and then questions why conservatives are supporting anti-federalist spending measures like this in the first place. I wouldn't go as far as he does and get the federal government out of there but I do wish more people from both ends of the political spectrum would join him in attacking Washington's fiscal insanity and propose a lot of cuts. Anyone with a sense of priorities?

Monday, September 19, 2005

Confirm Roberts

Within the next two weeks senators are expected to vote on Appeals Court Judge John John Roberts' elevation to the Supreme Court and all indications point to a vote in the affirmative. Hopes for any anti-Roberts coalition of moderate Republicans and Democrats largely dissipated once Chief Justice William Rehnquist passed away and gave privacy rights activists who feared a shift to the right a necessary reprieve. Senate Judiciary Chairman Arlen Specter requested our president to appoint a nominee like Justice Roberts and other moderate Republicans are expected to vote for his nominee as well.

Mr. Roberts performed well. He did not lose his temper or give away too much when Democrats on the committee badgered him on Roe v. Wade but that was to be expected from a person who appeared before the tougher interrogators he will join on the Supreme Court. The senate chairman was the most effective of his interrogators, particularly when he focused on judicial precedent and the qualifications necessary for overturning decisions but he could bind him in a legal trap that would force him to make a commitment. Again, no surprise there. Mr. Roberts appeared before the Supreme Court and learned how to anticipate and respond to follow-up questions the hard way.

Though Mr. Roberts has strong conservative credentials, he left senate judiciary committee members on both sides of the political confused. Mr. Roberts conceded to a right to privacy, affirmed marital couples' contraceptive rights (Griswold v. Connecticut), and did not object to the equal protection ruling protecting similar rights for unmarried heterosexual couples (Eisenstadt v. Baird) but he refused to commit one way or the other on two of the more controversial Supreme Court rulings implicating similar rights (Roe v. Wade involving abortion, and Lawrence v. Texas which involved gay and heterosexual sodomy). Judicial liberals could point to his respect for stare decisis; conservatives to his commennts regarding political controversy, changes in facts, his dimissal of Court reliance on legal developments in Europe, and new precedents which might lead one to reverse an earlier ruling.

Few know he Mr. Roberts will rule on any given issue. He could shift the Court away from privacy rights, a broad protection for legal equality and trial rights, towards stronger protections or against it. This blogger strongly identifies with a liberal-to-libertarian interpretation which gives deference to individual rights and liberty and would understandably be wary of any nonminee appointed by a sitting conservative president.

An exception can and should be made here. Mr. Roberts may prove to be a Scalia or, worse yet, another Thomas on the Supreme Court but he is replacing a known and fairly reliable conservative on the Supreme Court anyway. The late Chief Justice voted with these two conservatives on the important controversial social issues as much as Thomas and Scalia. Mr. Roberts' elevation from the Court of Appeals will not shift the balance of power on the Court but the nominee for swing-justice Sondra Day O'Connor's seat could. His future conservative votes on abortion, gay privacy, affirmative action, the death penalty, and church-state issues can be forgiven or tossed aside as a part of the three-vote conservative dissent we are used to by now.

His statements and responses to questions raised during the hearings give those of us on the left some hope. While every justice should look to the text as a guide, Mr. Roberts said that he does not identify with a single judicial legal theory. Some amendments, he conceded, are broadly written and deserve a broader level of protection than others. In a nod to conservatives who oppose affirmative action, he rejected a results-oriented interpretation of the Supreme Court's ruling in Brown v. Board of Education to be sure but he did not reject affirmative action programs in general. Judge Roberts might not vote to affirm Lawrence and gay privacy rights, but his support for the equal protection analysis used in Eisenstadt should give them some hope that he would treat gay discrimination cases with the same level of respect that Justice Kennedy gave in Romer v. Evans and O'Connor gave in Romer and Lawrence. That alone, would separate him from the dismissive views shared by the late Chief Justice and the two reliably conservative justices that remain.

Mr. Roberts's academic and legal credentials were not challenged by those who opposed them. He is, in their estimation, would be more than qualified for the role he was chosen for if they could set aside his judicial philosophy. In this instance, they could and they should. The senate should overwhelmingly vote to confirm Mr. Roberts.

Doing so would send the message of good will to those within the administration, moderate Republican senators, and centrist voters that Democrats are willing to put their partisanship aside for the greater good. The nomination procedures in place will be affirmed and we will move one more step away from the abyss right-wing and left-wing extremists pushed us toward with endless filibusters and a proposed vote to do away with them. The Democrats have nothing to lose.

Friday, September 16, 2005

Watch for Romney

George W. Bush cannot run for re-election so candidates from both the Democratic and Republican parties won't have to run against an incumbent (though former President Bill Clinton's connections will come in handy for his wife Senator Hillary Rodham Clinton should she enter the race). Governor Mitt Romney is re-positioning himself from the moderate who won the governor's race to the New England's conservative "speck" Republican. He backs the Massachusetts initiative that bans gay marriage without providing for civil unions (and without explicitly denying partner benefits). He has come out against some stem cell research. The governor vetoed a bill requiring emergency rooms to offer morning-after birth control pills (though this was over-ridden) . He said we should closely monitor, perhaps even wiretap, mosques within the United States and students granted visas from the Middle East, and he is now opposing efforts to bring gambling or slot machines in Massachusetts.

I don't know if this would help him in Massachusetts should he decide to run for re-election but it just might help him in his bid for the Republican nomination for president. They might want a conservative Republican who can win in the northeast.

The Funnies

David Brooks pokes some fun at the Judiciary Committee members and Judge Roberts here as does Dan Asmussen in a more partisan way, does here. Mr. Asmussen takes some cheap shots at Republicans and the president over here.

The Bush Promise and a Test for Leadership

Last night President George W. Bush promised to help rebuild New Orleans and the other communities hit by Hurricane Katrina. The state and local governments in Louisiana, Mississippi, and Alabama will pay for some of the costs associated with infrastructure repair but the federal government will pay for most of those costs. To help bring life back to New Orleans, Mr. Bush said he will offer a mix of tax benefits and loans to small and large entrepreneurs who establish their businesses within the newly-created enterprise zone consisting of those areas hit by Katrina. The president offered to give federal land away for low-income housing and set up a worker recovery account to allocate up to $5,000 for job training, education, or child care . This probably is not enough from their standpoint but it certainly would be accepted by those who will take whatever they can get.

Mr. Bush's commitment to the people recovery of New New Orleans is welcomed by the PoliticalHeretic. Their lives were uprooted. Friends, family members, and neighbors died and others lost their homes and jobs. Children were placed in new schools with unfamiliar faces. To leave these people to fend for themselves without help would be unforgiveable.

The president noted "acts of courage and kindness" from those more fortunate. The Coast Guard and other military organizations rescued many who were trapped within and on top of their homes. Doctors and nurses denied themselves nourishment and sleep for those who were hungry and in need of care. Houseowners who provided room and board for displaced survivors. And, as usual, the relief efforts made by the Red Cross, Salvation Army, and other religious and secular humanitarian relief services.

Their sacrifices should not be forgotten when the president looks for a means to pay for this ambitious undertaking. Mr. Bush did not inform us as to the cost but, according to The Washington Post, some officials and legislators say it may cost over $200 billion and it could be more. Efforts to push this burden on future generations should be rejected, given this country's indefinite commitments to faraway places like Bosnia, the Serbian-renegade province of Kosovo, Iraq, and Afghanistan and the looming crisis in medicare and social security funding. Great leaders know when they have to ask fellow citizens to sacrifice. President Franklin Delano Roosevelt mobilized the whole country behind the war effort. Mr. Bush has failed to do that with the war on terror so far, but it is not too late for him to ask his fellow Americans to share in the burden.

Mr. Bush should ask Congress to repeal most, if not all, of those tax cuts passed earlier in his presidency and reconsider those commitments made in the costly transportation bill passed in August. If a doctors and nurses could forgo breakfast, lunch and dinner for the malnourished and if rescue workers can deprive themselves of all but one hour of sleep, Senator Stevens could forego a $270 million-plus bridge out ot the middle of nowhere, Beans Cafe could forego kitchen expansion, Teterboro could do without federal funding for a new smoking booth, the Urban League could ask for more private donations for their planned Northwest African American Museum, and well, you get the idea. Be sure of that, and in almost every state.

There are more where those came from and as much as Senate Minority Leader Harry Reid may not want spending cuts, that as well as tax increases may be needed to pay for our old and almost limitless new commitments. And some multi-millionaires could either donate more to the relief efforts or pay Uncle Sam to help the displaced New Orleans residents and still be left with more than enough to pay for their wardrobes, vacations, fancy dinners, penthouse suites or mega-mansions. It would be a travesty in justice if we expected millions of hard-working middle class taxpayers who struggle to make ends meet and pay for the children's college education be left with the burden without exacting a higher toll from those who could afford it with no struggle.

Nor should we expect the federal government to pay for most of the bill. Louisiana, Alabama, and Mississippi were hit. These states should have kept enough money in escrow to deal with emergencies such as this. We should expect them to pay for at least half of the costs associated with this development project and most definitely require them to forgo on their pork barrel projects to help pay for the bill.

Will the president call on those who are well off to sacrifice and ask Congressmen and Senators to revisit their pork projects or he, like his predecessors, force those not yet born to pay for another bill?

Thursday, September 15, 2005

Well Said

Will the Palestinian Authority govern or will he stay on the sidelines and let terrorists and looters do what they want? Why trust in a peace partner if it cannot deliver on law, order and peace?

And the Next Judicial Nominee

Lyle Denniston posted the following comments on SCOTUS Blog:

"Judge John G. Roberts, Jr., has now finished his appearance before the Senate Judiciary Committee on his nomination to be Chief Justice. The only real question about his prospects, it appears, is how many votes he will get from Democratic senators. (The hearing continues Thursday afternoon with outside witnesses, but no one expects them to make a difference.) A factor that looms large now in answering the question about Democratic votes is the second vacancy that remains for now in the background -- the seat from which Justice Sandra Day O'Connor expects to retire.
That approaching vacancy has gone almost completely unmentioned during the Roberts hearings over the past four days, but it seems sure to become a central consideration as Democrats ponder how they will vote on Roberts. The judge, by who he is and especially by how he has performed in the witness chair, has made it more difficult for Democrats to vote against him to replace Chief Justice William H. Rehnquist. That has been most evident, this week, in the anguished musings of Sen. Dianne Feinstein, California Democrat, who openly confesses to facing "a dilemma." Sharing that dilemma, to some extent, seem to be such hardy Democratic liberals on the Committee as Sens. Joseph Biden of Delaware and -- more surprisingly -- Charles Schumer of New York.

That phenomenon, by itself, would tend to make a no vote on Roberts less credible. But a no vote this time also could have a political effect that may well lessen the effectiveness of any resistance that Democrats very likely will put up when President Bush sends up a nominee to replace Justice O'Connor. An appearance of opposition for opposition's sake would quickly be labeled obstructionism, and that could cost Democrats popular support if they do mean to contest the next nominee. Utah's Sen. Orrin Hatch, a senior Republican on the Judiciary Committee, was apparently thinking along these lines on Wednesday when he told Judge Roberts: "If people can't vote for you, then I doubt that they can vote for any Republican nominee."

The President is, of course, still pondering the O'Connor succession, and has given no reliable hints of what he is likely to do. But few political observers expect him to choose someone who will be more acceptable to Democrats than Roberts has turned out to be. Considering those assumed to be on the President's short list for that vacancy, not one would be as appealing to Democrats. Thus, there is virtually certain to be a fight -- far more energetic, and perhaps less predictable on outcome -- when a new nominee is put forth.
Although there has been no point during the Roberts hearings when the Democrats showed they had any chance of blocking his nomination, they have made it very plain that they are capable of significant resistance. For all of the ease of Roberts' handling of questions from that side of the podium, and despite the fact they know they are going to be out-voted, the Democrats have sent a message that they do not intend to let any nominee go unchallenged. And, perhaps more importantly, they have shown that the process can get testy at times, even with a nominee as unfailingly courteous as Roberts has been.

Democrats are definitely aware that the balance of power on the Court is more likely to shift with a replacement for O'Connor than with Rehnquist's successor. And their performance this week has disclosed their agenda for the next time around: focusing on the right of privacy and Roe v. Wade, on affirmative action and employment rights, on voting rights, presidential power, and more generally on Congress' authority to emact progressive legislation. They have thoroughly tested these themes, and honed their arguments.
In a way, therefore, this week has turned into a dress-rehearsal for the next nomination hearing. And, the chances are, the Democrats' task the next time around may well be made somewhat easier. It is hard to imagine a nominee who would be as talented a witness as Roberts has been, or one as deft as he has been in neutralizing the possible points of opposition. Moreover, despite the vivid conservatism that was on display in the thousands of pages of Roberts memos written as a young government lawyer, the next nominee probably will be a more ideological conservative, certainly more visibly so. (The President could hardly satisfy his most conservative following by using the O'Connor succession to nominate a consensus figure.)

To some degree, then, it could be argued that the advantage may shift, perhaps noticeably, to the Democrats with the next nomination. But that is an advantage that could be largely thrown away, in advance, by an array of hard-to-explain Democratic votes against Roberts."

Perhaps but that is not necessarily true. Mr. Roberts has been able to squeak by since he does not have a voluminous record to fall back on. He authored no real opinion pieces concerning hot-button topics so Democrats could, even if they suspect he would repudiate those statements on liberty like Justice Clarence Thomas did, pretend that he wouldn't and save their battle for Justice O'Connor's seat since, more than likely, he will appoint someone with a record on these topics (assuming of course he chooses a judge with a record - Edith Jones, Luttig, Wilkinson, etc).

If , however, the president picked someone whose only experience comes from that person's work in the Justice Department or some other executive agency, Denniston's case would be much stronger.

Nope, the Governator is Note Quite Catering to the Far Right

I guess gay marriage activists should take back their accusations concerning Governor Schwartzenegger's allegiance to the far-right wing in California. I think leaders on the religious right would be fuming if a Republican met with gay people. Did not some on the right act that way when then-Republican National Committee Chairman Marc Raricot met with the Log Cabin Republicans? We have to thank him, the governor and those neoconservatives like David Horowitz (who rebuked them and called them out for their intolerance) for their commonsense and respect.

The Boundaries on Privacy and Roberts

SCHUMER: Thank you, Mr. Chairman. And, Judge Roberts, it's nice to talk to you so early in the day.
Yesterday, you stated that you, quote, agree with the Griswold court's conclusion that marital privacy extends to contraception and availability of that, unquote. And you noted that the court's later decisions have based the constitutional right to privacy on the liberty component of the due process clause of the 14th Amendment. Now, Justice Thomas, at his confirmation hearing, answered in a way very similar to the way you did. During his confirmation hearing, here's what he said, quote: I believe the approach that Justice Harlan took in Griswold in determining the -- or assessing -- the right to privacy was an appropriate way to go, unquote. Now, we all know that Justice Harlan's approach located the right to privacy in the liberty interests of the due process clause of the 14th Amendment. And Justice Thomas also said at his confirmation hearings, along the same lines, that he agreed with the court decision in Eisenstadt v. Baird, where the court held that single people have the same right to privacy as married people on the issue of procreation. However, since he's been confirmed to the court, Justice Thomas has not applied the right to privacy to keep protections -- for instance, in Lawrence, in 2003, he declared that there is no general right to privacy in the Constitution. Now, yesterday you said that, quote, Liberty is not limited to freedom from physical restraint.
SCHUMER: It does cover areas, as you said, such as privacy. It's not only protected in procedural terms, but protected substantively as well. You said that you agreed that, quote, There's a right to privacy to be found in the liberty clause of the Fourteenth Amendment. So that seems directly to contradict Justice Thomas' view, once he got on the court, as I outlined, in Lawrence. I assume that you disagree with Justice Thomas's view that there is no general right to privacy, as he stated in Lawrence.
ROBERTS: Well, I think that question depends, obviously, on the modifier and what you mean by general.
I noted in going over the nomination hearings of Justice Breyer, he also said that the privacy interest is protected as part of the liberty protected by the due process clause. I think that is the general approach.
Now, the...
SCHUMER: Let's talk about Justice Thomas. He said there is no general right of privacy. You seemed to say yesterday -- you didn't seem to say; you said, that there was a right to privacy.
Let's forget that Justice Thomas said it. You would disagree that there is no general right to privacy in the Constitution.
ROBERTS: I wouldn't use the phrase general, because I don't know what that means. I don't know if by saying general they're trying to describe the particular scope to the right to privacy or not.

I think there is a right to privacy protected as part of the liberty guarantee in the due process clause.
SCHUMER: A substantive right to privacy?
ROBERTS: It's protected substantively, yes.
SCHUMER: Your reading of Justice Thomas' case in Lawrence, that he does not believe in that?
ROBERTS: No. I think his statement obviously focused on general. And his conclusion in that case was that the right to privacy protected under the due process clause that you noted he acknowledged at his hearings did not extend to include the activity at issue in Lawrence.
SCHUMER: This is obviously very important, because Justice Thomas seemed to be more full in his view of privacy at his confirmation hearing than later, when he was on the court, at least if you read his decisions.
And you are not willing to say that your view is different than the view Justice Thomas stated in Lawrence.
ROBERTS: I'm not willing to state a particular view on the Lawrence decision. And that's consistent with the approach that I've taken...
SCHUMER: Let me ask you a broader question. Do you disagree with Justice Thomas' interpretation of the right to privacy in any decided case?
ROBERTS: Senator, I'm not going to comment on whether I think particular cases were correctly decided or not, in areas...
SCHUMER: I didn't ask that.
ROBERTS: Well, I don't know which cases you're talking about.
SCHUMER: Any -- any one you want.
ROBERTS: Well, that would be commenting on whether that decision was correctly decided or not. If I'm agreeing or disagreeing with one of the justice's views in that case, that would be commenting on whether that view was correct or not. If it was in a dissent, it would be disagreeing.
ROBERTS: If it was in the majority, it would be agreeing. And because those are in areas that could come before the court, like every other nominee to come before this committee who's on the court today, I think it's inappropriate to comment on the correctness or incorrectness of those decisions in areas that could come before the court.
SCHUMER: So, you're not -- you don't have to answer this. It's obvious you will not state where you disagree with Justice Thomas, and it could well be that what he said at his hearing and you said at your hearing might lead to -- might -- lead you to rule in the same way on privacy.
ROBERTS: Well, again, my view on privacy -- as I've expressed, but there is a right to privacy, protected as part of the liberty under the due process clause.
SCHUMER: Would you say there's a general right to privacy?
ROBERTS: I don't know what general means.
SCHUMER: Substantive right to privacy.
ROBERTS: Well, substantive, yes. I have said that, that the protection extends to substantive protection. But when you say general, I don't know what that means. I don't know if that means...
SCHUMER: Excuse me. Didn't Justice Thomas disagree with the substantive right to privacy in Lawrence?
ROBERTS: His conclusion was that the liberty protected by the due process clause did not extend to that right, yes.
SCHUMER: Thank you. So, it would seem to me you disagree with him. I think you said it without saying it.
ROBERTS: No, Senator, you're asking me whether the right to privacy protected under the liberty clause extends to a particular right, the right at issue in Lawrence.
SCHUMER: I think what I'm asking you: Is there a substantive right to privacy? I don't apply it to a particular case.
ROBERTS: I have said there is a substantive right to privacy.
SCHUMER: And in Lawrence, Justice Thomas seemed to say there is no substantive right to privacy.
ROBERTS: No, as I understand it -- again, his testimony as a nominee was that there was. What he said was -- the quote you read in Lawrence --said there's no general right to privacy. Now, I don't know...
SCHUMER: His holding was that there was no substantive right to privacy under the liberty clause. Wasn't it? Wasn't that the whole thrust of his argument?
ROBERTS: No, I think, Senator, that his conclusion in Lawrence was that whatever right there was, it did not extend to the activity that was at issue in Lawrence.
SCHUMER: Bottom line is: You're unwilling to differentiate yourself from Justice Thomas's view on Lawrence.
ROBERTS: Well, it's consistent with the approach I've taken that I don't think it's appropriate to protect -- necessary to protect the independence and integrity of the court, to comment on whether that decision was correctly decided or not. And that is consistent with the approach that every member of the court...
SCHUMER: Yes, I just didn't ask you that. I asked if you disagreed with his particular holding.

Senator Charles Schumer failed get John Roberts to either distance or associate himself from Justice Clarence Thomas, Antonin Scalia, and the late William Rehnquist on privacy rights. The Supreme Court nominee said he believed substantive privacy rights exist and affirmed, Griwsold v. Connecticut, a ruling that affirmed the right of a married couple to acquire and use contraceptive devices so they could engage in protected, non-procreative intimate conduct. The senator from New York asked him if that right applies to ummarried homosexual couples as well but Mr. Roberts refused to give an answer one way or the other.

I personally don't see how the Court could distinguish in principle between the heterosexual intimate conduct protected in Eisenstadt v. Baird (Griswold for unmarried heterosexuals) and the intimate conduct reviewed in Bowers v. Hardwick and revisisted in Lawrence v. Texas. To say that Eisenstadt was merely about the right to not bear a child is at best facetious, for one can decide against bearing children by remaining celibate. The Court obviously was protecting one's right to engage in non-procreative, recreational sexual conduct on on that point the homosexual couple and the unmarried couple are similarly situated.

A originalist conservative may I guess, can distinguish those cases from that involved in Griswold by suggesting that our Founding Fathers would not given the state power over their marital lives while giving them that power over those who are not involved in a marital relationship, so Mr. Schumer should have asked Mr. Roberts if he agreed with the central ruling in Eisenstadt before moving to Lawrence.

But we don't need to figure that out given his statements to Senator Dianne Feinstein:

FEINSTEIN: Now, yesterday you said this: I agree with the Griswold court's conclusion that marital privacy extends to contraception and availability of that. The courts since Griswold has grounded the privacy right discussed in that case in the liberty interest protected under the due process clause.
Do you think that right of privacy that you're talking about there extends to single people, as well as married people?
ROBERTS: The courts held that in the Eisenstat case, which came shortly after Griswold, largely under principles of equal protection, and I don't have any quarrel with that conclusion in Eisenstat.
FEINSTEIN: OK. Do you think that that same right extends beyond family choices then about a child's education?
ROBERTS: Well, that's where it actually got started 80 years ago in the earliest cases. Meyer and Pierce involved questions about how to raise children, whether you could teach them a foreign language, whether you could send them to a private school. And those decisions are really what started that body of law.

So now Roberts undermined the principle an originalist can rely upon to overturn Lawrence v. Texas and now Democrats and moderate Republicans should ask the Supreme Court nominee how he would find for a privacy claim in one instance but not for another. Mr. Roberts said we must look to the text when deciphering the author's (founders') intent but what happens when there is no such text? He already conceded to a general right to privacy? Does that get interpreted broadly or narrowly? It's not in the Constitution so the only way we can derive such a right is either by looking at several rights that touch upon it (the 3rd with respect to troop quartering, the 1st with respect to association rights, and the 4th with respect to searches and seizures), habeus corpus rights, and the 14th Amendment's Due Process Clause (which he endorses). There are no boundaries set for liberty described in the 14th Amendment so theoretically he would have to interpret liberty and privacy rights to include the homosexual conduct at issue in Bowers and Lawrence.

ROBERTS: Well, the general approach of recognizing the values that inform the interpretation of the Constitution -- it applies to modern times. But, just to take the example that you gave of the equal protection clause, the framers chose broad terms, a broad applicability, and they state a broad principle. And the fact that it may have been inconsistent with their practice may have meant that they were adopting a broad principle that was inconsistent with their practice, and their practices would have to change -- as they did -- with respect to segregation in the Senate galleries, with respect to segregation in other areas. .

But when they adopt broad terms and broad principles, we should hold them to their word and imply them consistent with those terms and those principles. And that means, when they've adopted principles like liberty, that doesn't get a crabbed or narrow construction. It is a broad principle that should be applied consistent with their intent, which was to adopt a broad principle.

What constitutional principle would lead us to believe he is acting like the "modest" umpire enforcing fair rules by "interpreting" the [constitutiona] law" and not succumbing to his own moral biases in "making law" if he were to set aside as unprotected a gay privacy rights claim while preserving a heterosexual's privacy rights claim?

Wednesday, September 14, 2005

Biden Op-ed on Iraq

"First, if negotiators don't reach reasonable compromises that bring moderate Sunnis on board, the Bush administration should support postponing the constitutional referendum until after elections for a new National Assembly are held in December, which would allow a new committee with elected Sunni members to reconsider the draft.
This would encourage the growing desire among Sunnis to participate in the political process. It would empower legitimate Sunni leaders who can sell the constitution to their community. And it could split the Sunni population from the insurgents and foreign jihadists. Moderate Kurds and Shiites, many of whom privately admit that some of their leaders overreached, will welcome the balance legitimate Sunni representation would bring to the process."
Senator Joseph Biden in The Washington Post

I concur, for the most part that is, with Mr. Biden. The draft constitution which the public is expected to vote on accurately reflects the views held by the winners in the last elections. The Kurd and Shi'ite negotiators knew it could pass overwhelmingly in The National Assembly because the Sunnis refused to vote and denied themselves adequate representation there. Realizing their mistake, the Sunnis will vote against the Constitution and greately resent the unwanted fate imposed upon them. If, however, the Sunnis were provided a chance to correct their mistake through new elections for the National Assembly, they might gain enough votes to force some changes in the draft. Better to delay a vote on this unworkable constitutional draft and wait until it is either changed significantly or discarded for something better.

Mr. Biden's reliance on the European powers is misplaced. We need Turkey, Saudi Arabia, and Jordan supporting our effort more than Europe. The Turks and Saudis need a viable Iraqi state more than we do. A Kuridsh mini-state in northern Iraq would challenge Turkey's hold on its own Kurdish population, and an Iranian-influenced Shi'ite mini-state in southern Iraq poses a challenge to Saudis in the south. We can use the European's help for sure. Turkey's desire to enter the European Union and Iran's desire to reach any agreement with the Europeans over nuclear power will come in handy if the European powers cooperate, but the real powers in that region are the Middle Eastern countries surrounding Iraq.

Mr. Roberts and Eminent Domain

Supreme Court nominee John Roberts said the Court's ruling in Kelo v. The City of New London does not bar Congress and state legislatures from enacting statutues limiting its power to seize private property and on that he is factually correct. The question at issue concerned the state's ability to seize property owned by one individual or group of individuals and give it to another private property if that would lead to greater tax revenue.

What happened to the losing families in New London was a travesty that cannot be fixed but the Court's narrow ruling allows and even acknowledges efforts by state legislatures to limit these forced property transactions so Congress and states have the opportunity to protect future victims from a similar fate. Congress should adopt legislation limiting these transactions to hospitals, airports, train stations and other undisputed things needed to protect its (or the local township's) infrastructure and shift the burden of proof upon the seizing government body or agency.

Future Supreme Court rulings can still dictate the terms of this debate, however. We can expect challenges to Congresional legislation from local municipalities and states which may have a vested interest in seizing property in blighted neighborhoods or whenever else they see fit. A conservative Supreme Court may strike down any legislation passed on Congress and send the issue to the fifty states, and Mr. Roberts, remaining true to his promise to answer nothing that he might consider as a Supreme Court justice, gave no indication of how he would vote on a Congressional resolution or act protecting citizens from eminent domain abuse.

While I would support a Congressional bill sharply curtailing a municipality's ability to redistribute private property, our focus should turn to our state legislators.

Tuesday, September 13, 2005

Roberts' Quote on Equal Protection and What it Tells Us About "Legislating From The Bench"

Roberts on Equal Protection and Texualist Originalism
"GRASSLEY: In your confirmation for the D.C. Circuit, you answered a question asking whether -- by another member -- whether you supported the originalist approach to constitutional interpretation by saying this, so I hope I'm quoting you accurately: I do not have an all-encompassing approach to constitutional interpretation. The appropriate approach depends, to some degree, on the specific provisions at issue. Some provisions of the Constitution provide considerable guidance on how they should be construed; others are less precise. I would not hue to a particular school of interpretation, but would follow the approach or approaches that seem most suited in the particular case to correctly discerning the meaning of the provision at issue, end of quote. Could you explain what approaches you're talking about? I'm not sure, in your quote, what you're getting at. Secondly, can you give some examples? And three, I would like to know when you don't believe that the originalist approach is the right approach.

ROBERTS: Well, I think it's very important to define these terms. Let's take the originalist approach. I do think that the framers' intent is the guiding principle that should apply. However, you do need to be very careful and make sure that you're giving appropriate weight to the words that the framers used to embody their intent. I think of, in particular, the Fourth Amendment and the equal protection clause. There are some who may think they're being originalists who will tell you, Well, the problem they were getting at were the rights of the newly freed slaves. And so that's all that the equal protection clause applies to. But, in fact, they didn't write the equal protection clause in such narrow terms. They wrote more generally. That may have been a particular problem motivating them, but they chose to use broader terms, and we should take them at their word, so that is perfectly appropriate to apply the equal protection clause to issues of gender and other types of discrimination beyond the racial discrimination that was obviously the driving force behind it.

Remember when I said an originalist who had no care for privacy rights could still join in Justice Anthony Kennedy's opinion in Romer v. Evans? Most conservatives opposed that ruling because it overturned an amendment the public used to affirm their religious values, and, whether the conservative spokespersons believed in those values or not, they believe moral discretion is not an exercise in unjust discrimination.

The Supreme Court overturned a popular constitutional amendment that barred any non-federal governmental institution within Colorado from passing laws or enacting policies designed to protect gays from discrimination. The Court struck it down because the state singled out for consideration a person's sexual characteristic (their sexual attraction) for the purpose of legitimizing discrimination across the board against those witht he disfavored trait (homosexual attraction).

I don't know how if Mr. Roberts would have signed onto the Court's opinion authored by Justice Anthony Kennedy or the dissent written by Antonin Scalia and I would not expect Judge Roberts to answer that question before the judiciary committee should it come up. He did, however , say one thing of significance - the Equal Protection Clause was not written in such a way as to bar only race-based discrimination:

"I think of, in particular, the Fourth Amendment and the equal protection clause. There are some who may think they're being originalists who will tell you, Well, the problem they were getting at were the rights of the newly freed slaves. And so that's all that the equal protection clause applies to. But, in fact, they didn't write the equal protection clause in such narrow terms. They wrote more generally."

And note that he referred back to the text. The Framers "didn't write" the non-discrimination clause "in such narrow terms." They "wrote more generally." We may have an originalist who focuses on the text found in the Constitution, which brings me back the point I wrote about last night raised by Craig and I today. Craig said these justices are selected to interpret "loose set of rules to the best of their ability" but "as much as they try, bias will always play a pivotal role in their decisions."

Of course, and that was my point. We don't have a choice between nominees who "interpret" the law and those who "make" it. We don't have a choice between an umpire who enforces the rules of a game and one who makes them. We can't because the justices are forced to interpret rules which no one seems to agree on. And that's what I think the public needs to know and what I hope it would take out of these hearings.

Monday, September 12, 2005

The Confirmation Hearings Start

The Senate's Judiciary Committee finally began its hearings on the president's first nominee to the Supreme Court. President George W. Bush said he would appoint justices who would "interpret" and not "make" the law and cited Justices Antonin Scalia and Clarence Thomas as his models for future appointments. President George W. Bush appointed someone with known conservative credentials. Mr. John Roberts Jr. has served as a circuit judge for the District Court of Appeals for several years but his track record on hot button social issues comes from his service within the Reagan and Bush administrations where he and those he worked for pushed for greater restrictions on privacy rights, weaker barriers between church and state, and a narrow reading of laws and constitutional orders to limit unwarranted discrimination. Whether his work on these administration's behalf reflects his judicial views as a justice is another matter. His internal memos suggest he is a conservative who will vote like William Rehnquist, Scalia, and Thomas.

The senators began the hearing with their opening statements. Senate Judiciary Committee Chairman Arlen Specter said he will ask Mr. Roberts about the right to privacy, stare decisis, and the role of Congressional authority but would not ask him how he would rule in any case. His more conservative counterparts on the Republican side of the aisle referred back to the president's own talking points. Orrin Hatch said Mr. Roberts should not be forced to answer questions on issues that may one day reach the Supreme Court and Chuck Grassley said he was looking for a judge who wouldn't impose their moral judgements on a populace that holds to different views on matters open for debate. Republican senators Tom Coburn and Sam Brownback however may try to pidgeonhole Mr. Roberts on abortion as well.

Democrats on the committee have focused on a litany of issues dear to the hearts of their liberal core - privacy, abortion rights, equal protection, and the federal government's involvement on behalf of the poor and environmental conservation.

The PoliticalHeretic believes these are important issues that senators need to address. Mr. Roberts' judicial philosophy will remain with us long after George W. Bush leaves the White House. Fundamental questions of liberty, equality, and the separation of powers are at stake.

But I come into this hearing with another way of looking at these issues and how the debate should proceed. Judge Robert's confirmation to the Supreme Court is all but a given. The Republicans have a 10-8 senate majority on the judiciary committee and a 55-voting majority in the full Senate. At worst, Mr. Roberts will lose a three or four Republican moderates but probably will pick up enough moderate-to-conservative Democrats to offset that loss. And given that he will be replacing a known conservative on the Supreme court, the precarious balance on the Supreme Court (three conservatives, three liberals, two "swing" voting conservatives, 1 "swing" voting liberal) will not change yet. Liberals and moderates could afford to give the president his Supreme Court pick in this case and conserve their resources for when Sondra Day O'Connor's successor is chosen.

Liberals and moderates can, however, undermine the president's argument for a judicial branch, which relies upon a false distinction between a justice who "makes" law and one who "interprets" the law. They could ask Mr. Roberts when a justice does one and not the other and then point to the voting differences between conservative "originalist" justices like Antonin Scalia and Clarence Thomas who apparently vote to "interpret" the law differently and then compare them to the votes made by the late Justice Black, a liberal who used his conservative, textualist interpretation of the Constitution to support some rights liberals pushed for. Were Scalia and Thomas "making" Constitutional law when they disagreed or were they "interpreting" it differently? Who was "interpreting" law and "legislating from the bench" when Scalia and Thomas disagreed on pornography rights or on the detention of U.S. citizens as war combatants? Makes me wonder.

Friday, September 09, 2005

Post Cold War New Order "Integration"?

Check this thought-provoking essay in The National Interest.

" I would argue strongly for "integration."

An American foreign policy based upon a doctrine of integration would have three dimensions. First, it would aim to create a cooperative relationship among the world's major powers, built on a common commitment to promoting certain principles and outcomes. Second, it would seek to translate this commitment into effective arrangements and actions. Third, it would work to bring in other countries, organizations and peoples so that they come to enjoy the benefits of physical security, economic opportunity and political freedom. The goal would be to create a more integrated world, both in the sense of integrating (involving) as many governments and organizations and societies as possible and in the sense of bringing about a more integrated (cooperative) international community so that the challenges central to the modern era could better be met.
Integration is thus the natural successor to containment, which was the necessary and correct policy construct for the Cold War.

A doctrine relevant to this era, however, must find a way to bring others in, not keep them out. In addition, integration offers the most coherent response to globalization and to the transnational threats that constitute the defining challenges of our time. It reflects the reality that the principal threat to U.S. security and prosperity today comes not from a great power rival--the gap in capabilities is too large, the chance of conflict too remote--but from what can best be described as the dark dimension of globalization: terrorism, nuclear proliferation, infectious disease, trade protectionism and global climate change. The choice of integration reflects the reality that the United States requires partners to meet these threats. As a result, integration, in stark contrast to the alternatives, meets the necessary criteria of a foreign policy doctrine. It reflects existing international realities, addresses the principal national security challenges confronting the United States, sets forth ambitious but achievable objectives, provides "first order" guidance to policymakers that can be applied on a consistent basis, and is supportable at home." - Richard Haas

"Rules of the road are just as necessary today. What is needed, though, are not simply "negative" understandings among the major powers that constrain competition, but "positive" commitments about how to work together to meet pressing challenges. The challenge is not simply to erect an international society with commonly accepted restraints but to fashion coalitions and institutions that promote certain objectives sought by the United States and embraced by others." - Richard Haas

Link on Iraq

From Foreign Policy, an interview with Juan Cole with a link to his blog. He is described as a profressor from the University of Michigan and his area of expertise - Middle Eastern and South Asian history.

Embryo Cloning Link

For anyone interested in new embryonic cloning development there is this article in today's Guardian. Yes, this is taking place in the United Kingdom and has not been authorized here but sooner or later scientists here might propose these kinds of genetic experiments.

Comments from this blogger will be made another time. For now, I just want my small audience of readers know what is going on around the globe.

Thursday, September 08, 2005

Governor Schwartzenegger's Gay Marriage Veto

Through his press secretary, California Governor Arnold Schwartzenegger announced his intention to veto a new bill legalizing gay marriages because the issue, he claims, should be decided by the voting public and the courts. The statement is istself rather interesting, because Republicans generally say these matters should be left with the people or at worst, those they choose to represent them. It would be nice to hear why Mr. Schwartzenegger would leave this issue with either the most representative of bodies that could debate this issue (the people) or the least representative (the Supreme Court, where justices are initially appointed by the governor and then have to seek re-election) . But that is another question best saved for another day.

Assemblyman Jackie Goldberg and bill-author Mark Leno said the governor is appealing to the right-wing members of his party. If he is trying to cater to the right-wing of the Republican Party is is not doing a good job. Governor Schwartzenegger used his press statement to affirm gay relationships and included their push for equal respect within the history of the civil rights movement. His statement would not have cited with pride, California's domestic partnership legislation that members of the religious right hope to write out of their state laws or suggest that gay couples are entitled "to full protection under the law" if he was appealing to the religious right. Nowhere in his statement does he resort to their code words - "family values," morality, or any other reference that intentionally or not denigrates gay people's lives.

Mr. Schwartzenegger is appealing to the center. The governor's aides know most people oppose gay marriage and overwhelmingly voted for Proposition 22, and that it would likely vote to for another gay marrigae ban again. But at the same time he knows the people in California, unlike those in say, Alabama or Mississippi, wouldn't go for the gay-bashing and the far right, knowing this, are downplaying any harm their proposed constitutional amendment would have on gay Californians. If they succeed, the public may fall for it and vote accordingly without knowing how it would affect gay couples' hospital visitation , inheritence, and property rights. Mr. Leno and Goldberg desperately need a reality check and they do their gay constituents no favor in appealing to their desires without giving them the tough-to-handle political facts. They will not win needed support from generally sympathetic politicians and citizens if they call everyone who opposes gay marriage a bigot, right-wing extremist, or theocrat. Some really do believe gays have no place in society and will do their best to censor their works from libraries, pressuer city governments to deny them parade permits, and push the cops to crack down on every public display of same-sex affection. And yes, there are those who believe gays are entitled to everything, including gay marriage (with the "word.")

But most fall somewhere in the middle, trying to make some kinds of distinctions to placate their mixed, perhaps conflicting and uncomfortable feelings about the issue. They may support laws protecting gays from job and public accommodation discrimination but draw the line at open displays of gay affection or any state acknowledgement of their relationships. Some draw the line after sodomy laws and still others may go further and support gay marriage without the name.

The governor's expected veto may save what the gay couples in that state from a worse fate.

Illegal Immigration and Drivers Licenses

The California Assembly voted late last night to pass a bill authorizing the creation of special driver's licenses for illegal immigrants. The state senate passed a similar bill in June but will have to vote on it again since revisions were made to it while in the Assembly. Governor Arnold Schwartzeneggar has not committed sign or veto the bill yet but he did veto an immigration license bill last year.

New licenses would be given to those illegal immigrants who apply for them. The new licenses could not be used as a valid form of identification in any financial transaction or for boarding airplanes. The governor's office claims it would rather wait until the federal government establishes its own requirements for state licenses but some Democrats say it would make the roadways safer by making sure everyone is trained and ensured. Most arguments, however, revolved around the status of illegal immigrants with some who oppose the license bill questioning why they were giving driving permission to those who shouldn't even be there and encouraging them to break the law further while those who support the bill appeal to the human needs of those who cross the border looking to send a decent paycheck to family members living at home.

Any discussion on illegal immigration would be incomplete if there was no consideration of its impact on the war on terrorism. If Mexican citizens (and most crossing from the south are probably Mexicans) could sneek across the borders with impunity, an aspiring terrorist from Saudi Arabia, Indonesia or Nigeria could do so. They need only fly to Mexico and eventually make their way up to the Mexican-American border.

Assemblyman Jerome Horton, one of those supporting the bill, is quoted as saying that "it is the right thing to do because individuals are here and they're driving and that's the reality." Mr. Horton's defeatest attitude isn't needed and should not be welcomed at a time when others who have every desire to harm us will do their best to do so. We were attacked on September 11, 2001 by religious fanatics who have no qualms about killing innocent civilians and while they may be focusing their new time and energy at our allies for now but they might strike us again sometime in the future.

Their decision to focus their efforts elsewhere provide us with a unique opportunity to address our security needs at home and aside from stronger security at our airports nothing can be more obvious than border security (and this applies to both, entrance from Canada and entrance from Mexico). The Bush administration and its successors should be working with the governors to developt tighter border security by increasing border controls and raising fines on those who hire undocumented workers and not make it easier for those who do cross the border. Hospitals that care for illegals should immediately report them to the police and border control.

As time goes by and we set up a new system to control illegal immigration into our country we may, out of our good nature, extend some sort of amnesty to those already within our country should they go to the proper authorities and register their names as such but now, when there is no such control over immigration into and out of our country, is not the time. Governor Schartzenagger should veto this latest bill like the one that preceded it. California alone cannot be responsible for illegal immigration - not when people can move from state to across with ease.

Wednesday, September 07, 2005

Pressure or No Pressure for Sharon

"A senior administration official also said: "There's no question that we are aware of the toll that the whole disengagement debate took on Israelis. In our view, the message to Prime Minister Sharon from people in New York should be one of congratulations, not one of new pressures." excerpt from The New York Times

Some within the Bush administration say we should not pressuer Israeli Prime Minister Ariel Sharon into making any new concessions to the Palestinians for a while since he unilaterally ordered his troops and citizens to abandon the settlements in the Gaza Strip. The Palestinians have yet to fulfill their part of the bargain, such officials would argue and for good reason. Palestinian terrorists have and may continue to, in the future, bomb Israeli citizens living within Israel proper and the West Bank and Palestinian President Mahmoud Abbas has yet to disarm Hamas and restore law and order in the West Bank. Moussa Arafat, the cousin of the late chairman who shared that last name, was gunned down in the Gaza Strip at 5 am. He formerly head Gaza's general security and was, according to The Washington Post, a corrupt man. The public did not like him, so the apprehension of his murderers might not seem popular but Mr. Abbas must assert himself and restore law and order. His failure to do so will not be look upon favorably by the Israelis and the United States.

The administration's reluctance to pressure Mr. Sharon any further is understandable. The Israeli withdrawal provides his people and those who are negotiating a chance to test Mr. Abbas and see if he and the Palestinians are reliable negotiating partners. Further concessions should be tied to the Palestinian leaders' progress in restoring order and solidifying his base of support for peaceful co-existence.

But our administration must nevertheless pressure those who seek further settlement expansion in the West Bank. The Palestinians will need and dream for a viable independent state to call for their own, and the prime minister's push for more settlement expansion in Maale Adumim, a settlement with 31,000 Israelis. Mr. Sharon supports efforts to build closer to East Jerusalem and increase the settlement population in Maale Adumim. Some Gaza Strip settlers may eventually be moved there, for all we know.

The negotiations cannot in good faith be stopped if it will be used by Mr. Sharon to consolidate his strength and seize land that both sides claim for their own. Administrative pressure must be used to stop this settlement from expanding any further than it has already until both sides have agreed upon a final Israeli-Palestinian border.