Saturday, October 29, 2005

Dan Asmussen

Anyone for the nomination of a frozen dead man or maybe a dead woman? Then, Mr. Fitzgerald's failure to indict Vice President Richard Cheney for the CIA leak.

Friday, October 28, 2005

Miers and Hypocrasy in Washington

Everyone in Washington expected a battle over Sondra Day O'Connor's seat on the Supreme Court. Justice O'Connor voted to uphold a school vouchers program in Cleveland, Ohio but voted to strike down two Ten Commandment displays and school prayer at high school graduation ceremonies and football games. She voted to uphold an obstensibly neutral sodomy statute in Georgia on Due Process grounds but struck down a homosexual-only version of it in Texas. She voted to uphold 24-hour waiting periods and parental notification requirements for minors requesting abortion rights but struck down a state's partial birth abortion restriction since it did not provide for a health-based exception. She upheld one affirmative action program but struck down another. OConnor voted to uphold a death penalty sentence on a mentally retarded criminal but reversed course a few years ago.

Conservatives and liberal alike waited for her retirement - the conservatives hoping she would step down sooner rather than later so they could move one step closer to their goal of remaking the Supreme Court in God's image. Justice Kennedy alone stands in their way should they seek to overturn abortion rights, (at the very least) homosexual privacy rights and school prayer but they do get a sympathetic hearing from him on partial birth abortion restrictions and most separation of church and state issues. Liberals fretted, knowing Bush would appoint someone that would shift the country to the right.

But they received a reprieve when the late Chief Justice William Rehnquist, a reliable conservative vote on the Supreme Court, passed away from complications associated with thyroid cancer. Conservative and liberalSenator alike united behind Appeals Court Judge John Roberts' elevation to the Supreme Court knowing full well there would be no shift in the Supreme Court's balance. Conservatives at best preserved their four-minority vote status on the Supreme Court. Liberals at worst confirmed it.

All bets were off after his confirmation. Most expected conservative Republicans to support President Bush's conservative but stealth nominee and accuse Democrats of grandstanding when they questioned Harriet Miers on abortion and privacy rights, the death penalty, environmental restrictions, Congressional authority, and war detention policies. They would insist that she not answer any questions which could jeapardize her integrity as a fair and balanced justice. Litmus tests, they would claim, are unbecoming when the person's job is to interpret the law of the land and hear the arguments made by those on opposing sides of any given issue.

That all changed when President Bush picked White House insider Harriet Miers. Had Mr. Bush appointed a solid conservative whose views were not in doubt, the conservative Republican lie would not have been exposed. Her credentials as a lawyer were not doubted but her knowledge of and opinion on constitutional law was. David Brooks and George F. Will questioned her judicial competence while Charles Krauthammer, William Kristol, Robert Bork (note the irony in that), Patrick J. Buchanan, and the editorial boards for conservative newpapers and magazines like The Wall Street Journal, The Washington Times, and The National Review questioned her adherence to originalist doctrine.

Conservative and liberal alike were not sure where she stood on the hot-button constitutional issues. Mr. Bush thought he could win their support by having her friends, James Dobson, and he himself vouch for her religious conservatism but they were not convinced. Harriet Miers, it was noted, supported Texas' two-standard sodomy law as a candidate for the Dallas City Council. Harriet Miers, it was noted, pushed for the removal of the pro-abortion stance taken by American Bar Association. The conservatives were not convinced. Harriet Miers also said she supported equal rights (whatever that includes according to her) for homosexuals, advocated for good quality lawyering for the poor and minorities, supported affirmative action within the Texas Bar, and issued a statement supporting religious and moral autonomy.

But the president's expected supporters were not convinced and even if they were beginning to warm on her viewpoints they deserved some credit. David Frum, Jonah Goldberg, and George F. Will are solid judicial conservatives but they sharply critiqued the results-oriented approach offered by the religious right and pushed for a solid judicial intellectual even when they could have settled for a C-rated but reliably conservative nominee. Harriet Miers was a Bush insider with C-rated judicial qualifications And that's with grade inflation. This nominee couldn't answer a questionnaire designed by the Judiciary Committee to its members' satisfaction.

While Republicans squabbled over Miers' conservative credentials, the Democratic opposition remained silent. Senate Majority Leader Harry Reid to be sure, offered some kind words for Harriet Miers when she was first nominated but he then back-tracked by saying it was too early to endorse her nomination and remained silent until she finally withdrew her nomination. Now the man who said almost nothing on her behalf cynically blames religious zealots for killing her nomination. Senator Charles Schumer initially said Mr. Bush could have picked worse but too now says she was not qualified.

Their cynical tactic worked for now but once again the Democrats had nothing of substance to add to the debate. Senator Ted Kennedy and company blamed Miers' withdrawal on "extremist elements" within the Republican Party without saying a word about her mainstream credentials or if they believe she had any. They never said how they would have voted, or what they are looking for in a "mainstream" judge. If qualifications were an issue, the Democrats would have joined conservatives like Mr. Will in opposing her nomination bu it obviously was not. Don't count on them to say who they would nominate for the Supreme Court either.

The Democratic opposition remains just that, an opposition bereft of any ideas of its own and that is why this political writer views it as an undesireable alternative to the increasingly frightening party in power.

Mr. Bush says Harriet Miers decided to give up on her own. She, being the loyal servant that won her the nomination in the first place, says Democrats and Republicans requesed legal documents pertaining to her advice while serving in the White House. That would breach confidentiality she claims. Yes, Democrats and Republicans asked for those documents because they want to pick a nominee who would vote their constituents' way on a given constitutional issue.

But Mr. Bush and Miers should have known it would happen long before she was picked for O'Connor's Supreme Court seat. Liberal committee members asked for that kind of documentation when Miguel Estrada was nominated for an appeals court seat and conservatives would have asked for it if there was no other records they could rely on. If the senate's confirmation process is to have any significance it must at minimum include the right for its members to review evidence necessary to make an informed decision.

Harriet Miers did not make that decision on her own. Earlier this week a conservative newspaper reported on the efforts White House officials made to get advice on how to save face while scuttling her nomination and he did so just in time. The Vice President's Chief of Staff was indicted today and many thought Karl Rove would be indicted as well. The president needed to win his conservative base and get the Harriet Miers controversy off the front pages. The Republicans' tepid support weakened further when the nominee's past statement affirming religious and moral autonomy made it to the press.

Mr. Bush needed all the help he can get and to do so he decided to win his base of support back and abandon Miers. Next week, the president can and probably will rebuild his bridges to his base of supporters by nominating an intellectually superior nominee with solid conservative legal credentials. Nominating a far right-wing nominee won't be good for the country. We don't need this polarization in the judicial branch. But it would be the politically expedient thing to do.


Wednesday, October 26, 2005

More on Long Hill Bumper Sticker Issue

Here's the coverage from the township's weekly.

Again, had the resident instead posted his anti-gay marriage sticker on his own car everything would be okay. There'd be no harrassment charge. Vandalism and devacement of private property charges would also suffice. But, as I said in my comments to the reader in my last post, this blogger does object to the hate crime charges. The state should not be in the business of making the beliefs attributed to a person the basis for treating illegal activities harsher or more leniently.

Free Speech Violation, of Sorts

Police in Long Hill Township, New Jersey are charging an anti-gay resisdent with a bias crime after he placed a bumper sticker condemning gay marriage on a lesbian township committeewoman's car. The Supreme Court has upheld hate crime legisation before so any challenge to the prosecution based on the constitutionality of hate crime legislation will probably be dismissed but I oppose hate crime legislation because it punishes citizens for behavior based upon the belief associated with it.

In the alternative, Long Hill can charge the defendant for vandalism and the township committee woman can always sue because her right to free speech was violated the moment her vehicle was used to endorse a belief she opposes (see Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, Inc., and Boy Scouts v. Dale for Supreme Court precedents dealing with the forced association with ideas one opposes).

Iraq's Constitution

Iraqi officials finally released the official results for the referendum on Iraq's constitution and to no one's surprise, it passed with 79% of the vote. The 60% turnout was depressingly low, given that Iraqis were voting on their country's future as a viable and independent state and the rights which are included within the constitution.

To no one's surprise, the voters split along religious and ethnic lines. Iraqis in theSunni-dominated Anbar and Salahuddin provinces rejected Iraq's proposed constitution overwhelmingly - 96% of the voters in Anbar and 81% of the voters in Salahuddin rejected it but the proportion of voters supporting it was just as strong if not stronger in the Shi'ite-dominated Southeast and Kurdish-dominated north (see the two maps provided from the BBC above).

Iraq's Kurds voted overwhelmingly for the constitution because it recognizes their rights to an autonomous state in Iraq. Their persh merga will police the borders in northern Iraq and maintain law and order. Although it will remain within Iraq, the Kurdish-dominated north will function as an independent state. The Persh Merga will maintain law and order and the constitution explicitly recognizes the Kurd's regional and federal authorities.

The Shi'ites officially were not given a region to call their own but the constitution provides them with the means to do so. Whether they unite and form one region or divide their territory among rival theocratic and secularist states is still unknown but the constitution does provide them with the means to do so.

Iraq's Sunnis opposed federalism for this reason. They overwhelmingly did not want Iraqis voting to carve their state into three or more mini-states which its more power neighbors would capitalize on. The Shi'ite-dominated south and the Kurdish-dominated north, moreover, possess Iraq's oil reserves, forcing Sunnis into an unfavorable negotiating position with respect to its neighbors to the north and south.

Calls for the return of American troops will intensify as time goes on and the justification for keeping American troops within the region weakens day by day. The search for the chemical and biological weapons which the president relied upon to justify our war to remove Saddam Hussein has ended with nothing found nothing. Two White House officials are under investigation because they might have illegally revealed the name of a CIA official - a CIA offical rleated to a former ambassador who accused Bush officials of distorting the intelligence used to justify the war in the first place.

Previous calls for troop withdrawal were turned down but most prominent war critics and supporters said we had to finish the job we started by training Iraqi troops and suppressing the terrorists. The terrroists have not been defeated. Foreigner terrorists have crossed Iraq's Syrian and Iranian borders with impunity.

Our training efforts have been undermined by the rise in Iraq's militias and a series of political events which reinforce regional and local parochial interests. The militias catering which cater to parochial interests are vying for the power to maintain law and order that we would have given to the American-trained army and police force. Iraq's constitution legitimizes this process by carving the country up into regions based upon ethnic and religious differences. One can hardly expect our effort to succeed if the very people we are training are confused as to whether they owe their loyalty to Iraq or to the Kurdish, Shi'ite, or Sunni faction they are a part of.

The burden has shifted. Those who believe we must keep American-led coalition forces in Iraq must now tell us why the our efforts to train Iraqi troopss have not been and are not being done in vain. Hope for unification depdnes upon Iraqi non-compliance. An Iraq which ignores its constitution can preserve its sovereign and territorial integrity but one which adheres to the basic guidelines will fail in its efforts to do so.

But the withdrawal of our troops are still too premature. Elections for Iraq's National Assembly will be conducted in December, so those favoring Iraqi unification have time to build support for constitutional revisions. The new Parliament will appoint a panel to review its key provisions and suggest changes to Iraq's constitution. Mr. Bush can bide his time and hope negotiators can agree on a set of constitutional revisions but should they fail, we might have to cut our losses and withdraw.

Tuesday, October 25, 2005

Gay as Anti-African? and Too American?

"If America does not stop going in the direction of Sodom and Gomorrah, I can see God's wrath coming heavily down," said the retired government worker, who views the devastation wreaked by Hurricane Katrina as divine punishment. "The Lord has favored them so much, they have started taking God for granted. They have become arrogant." - Julie Ade Cole

Jack Balkin: Three Scnarios for Democrats to Consider

"There are at least three scenarios. In the first scenario, Bush capitulates to his right wing base and nominates a known candidate with excellent credentials who is an ideological conservative in the Scalia/Thomas mold. Then Democrats are worse off than they would have been with Miers.

The second scenario is that Bush becomes angry at his conservative base for its disloyalty, and, weakened by his current political problems (Iraq, Katrina, indictments of his closest aides, etc), decides to nominate a decidedly moderate candidate in the mold of Sandra Day O'Connor, looking to cobble together a bi-partisan majority in the Senate. This strategy works to the Democrats' advantage.

The third scenario is that Bush, recognizing that the 2006 elections are coming up, decides to hold off nominating anyone until he regains some political strength. He hopes to nationalize the 2006 elections around the judiciary and social issues, hoping once again to distract the voters from Iraq, the economy, and corruption. The outcome of this strategy is uncertain, in part because the Republicans basic plan for 2006 is to localize the election, not nationalize it. Bush's plan may backfire if the Democrats do well in the fall elections he may eventually wind up having to choose someone more moderate. In the meantime, Justice Sandra Day O'Connor remains on the Court. This scenario is also fairly good for Democrats, at least in the short run and possibly in the longer run." - Jack Balkin

Monday, October 24, 2005

Poor Decision on Katrina Spending

Senator Ted Stevens' colleagues should have called his bluff and shifted the federal money allocated for two bridges in Alaska to the reconstruction effort in Louisiana. By the way, for those who are interested - this has to be the roll call by senator. It's the only 82-15 vote concerning the 2006 appropriations bill in the record.

Congratulations go out to:

Senators Allard, Allen, Bayh, Burr, Coburn, Conrad, DeMint, DeWine, Feingold, Graham, Kyle, Landrieu, Sessions, Sununu, Vitter. But especially to Coburn for proposing a whole array of amendments to offset the spending and to Bayh who provided the only "no" vote ont he bill itself.

Three senators did not vote on the amendment or for the bill that passed by a vote of 93-1
Senators McCain, Corzine, and Schumer for being no-shows.

Corzine was campaigning to be governor of New Jersey so his no-show was not a surprise. Senator John McCain was campaigning for Corzine's opponent Doublas Forrester and was a no-show for both, Coburns' amendment and the bill, though Senator McCain did vote for anothere of Coburn's anti-pork amendments earlier. . Why Schumer was absent I don't know, but there were no excuses for refusing to get on the record. This was an important vote involving the proper use of taxpayer money and their commitment as senators to put them on record federal spending is more important than the endorsements they make and the political campaigns they run. Senators John McCain and Jon Corzine should have postponed their trips to New Jersey or anything else which kept them from participating in the vote.

Shame also goes to those who voted in voted for the Louisiana Bridges Aid Bill while rejecting Coburn's amendment to pay for it using pork money reserved for Alaska's two bridges to nowhere. And this shame goes to blogging favorite Joe Biden as well.

Small Steps Toward Progress

"Lately, the three friends agreed, being gay in cities such as Windhoek and Swakopmund has even begun to acquire a certain image of urban hipness and going against the grain. So should there be a "Queer Eye for the Namibian Guy"? - passage from today's The Washington Post article on a debate on homosexuality starting in Namibia.

Well, the gay rights activists in Namibia have a lot more work to do but the article does bring to the light the difficulties gays have in sub-Saharan Africa (not that the Islam-dominated Northern Africa and the Middle East are any better). The silence is gone and the debate is out in the open.

Meanwhile, back here in the states, The Staten Island Advance did a series on gay marriage.

Saturday, October 22, 2005

Government By Law and Not Men

Lest we forget about the promise of living under a government by law and not by man.

“Maybe their rights were violated, but I don’t mind. I don’t like them.” - Jon Raiston, responding to a question of whether it is okay to out gay Uncle Toms in this week's Philadelphia Gay News.

Yeah, their rights were violated but who cares. I don't like them. Hmmm.

Double Standards and Miers' Nomination

"Miers's advocates tried the incense defense: Miers is pious. But that is irrelevant to her aptitude for constitutional reasoning. The crude people who crudely invoked it probably were sending a crude signal to conservatives who, the invokers evidently believe, are so crudely obsessed with abortion that they have an anti-constitutional willingness to overturn Roe v. Wade with an unreasoned act of judicial willfulness as raw as the 1973 decision itself.

In their unseemly eagerness to assure Miers's conservative detractors that she will reach the "right" results, her advocates betray complete incomprehension of this: Thoughtful conservatives' highest aim is not to achieve this or that particular outcome concerning this or that controversy. Rather, their aim for the Supreme Court is to replace semi-legislative reasoning with genuine constitutional reasoning about the Constitution's meaning as derived from close consideration of its text and structure. Such conservatives understand that how you get to a result is as important as the result. Indeed, in an important sense, the path that the Supreme Court takes to the result often is the result". - George F. Will

Wow. George F. Will calling Pat Robertson and company to task for their unwillingness to abide by their own self-declared principles.

David Frum
does so here and it is posted here in full:

OCT. 18, 2005: OWN GOAL

"It seems that the pro-Miers forces really are bent on burning down the village in order to save it.

White House and pro-Miers bloggers are trumpeting the revelation that Harriet Miers as a candidate for municipal office in Dallas checked the box on a questionnaire declaring herself in favor of a Human Life Amendment to the US Constitution.

This news is supposed to reassure conservatives. But think for a minute about the wound the pro-Miers forces have just inflicted on conservatism - and themselves. They have just scored a goal against themselves, an "own goal" as the soccer players call it.

John Roberts at his hearing refused to answer questions about his personal views on abortion. He argued - as other Republican judicial nominees have argued before him - that he should be judged on his legal philosophy, not his private religious and moral convictions.

This is the right and wise response from a juridical point of view. It is also by the way very important from a conservative point of view. The fact is that 40 years of liberal legalism have filled the law with liberal decisions that conservative judges may personally disagree with - but that do carry the power of precedent.

Liberals have tried to exploit this advantage to bar conservatives from judgeships as "out of the mainstream" and "ideological." Too often this exploitive tactic has succeeded.

So for both philosophical reasons and for reasons of self-protection, judicial conservatives have argued that nominees should be judged not on their inward conscience, not on their religion or their personal views of abortion, but on their judicial philosophy and their record. This stance has served both the nation and conservatism well. Now in an effort to salvage the Miers nomination, the White House is jettisoning it.

To the extent that the proponents of the Miers nomination offer any case at all for their nominee, they argue that her religion and her personal views on abortion be treated as relevant information, indeed as decisive information.

But if this information is relevant for Miers, it is relevant to all judges. In other words, the example of this nomination invites senators - Democratic as well as Republican senators - to quiz every Catholic nominee, every Evangelical nominee about their faith and their personal views of morality. Are they anti-abortion? How do they feel about homosexuality? Do they attend a traditional or progressive church?

And how can those future Catholic and Evangelical nominees refuse to answer after a Republican White House made personal conviction the one and only criterion of the Miers' nomination?

With every passing day, this nomination is laying down precedents that conservatives will regret for the next half century. In its effort to carry this nomination past an unwilling Senate and an increasingly skeptical country, the Bush White House is surrendering principles conservatives have fought courageously to defend and offering concessions that conservatives will rue for years and decades to come. The arguments used today to put Miers on the Court will be gleefully exploited by Democrats tomorrow to keep religious Catholics and Evangelicals off.

And for what? It's not as if Miers' personal views on abortion tell us anything useful about her judicial philosophy. Anthony Kennedy is personally pro-life too. That has not stopped him from reaffirming Roe v. Wade.

The fact that Harriet Miers favored a human life amendment back in 1989 tells us very little about how she personally feels today. She has obviously changed her mind on many things over the intervening time. The senators interviewing her perceived her to change her mind about Griswold v. Connecticut twice in just the past 24 hours. But even if she still today feels precisely in every particular as she did when seeking conservative votes to the Dallas City Council 16 years ago, that tells us zero about how she will act as a justice of the Supreme Court.

We remain as ignorant of this nominee's legal beliefs today as we did when she was introduced. She remains a huge and unknown ideological risk - even as she remains on the merits unqualified on the merits. It is still not too late to turn to a wiser course. Please join me in urging the president to withdraw the nomination of Harriet Miers to the Supreme Court by signing the petition here, as 1,000 NRO readers have done each day since October 13." - David Frum

09:33 PM

By the way, we might be looking at the beginning of the end. The White House might pull her nomination before the hearings start in November.

Dan Asmussen

I do want to comment on these revelations concerning the assassination of a former Lebanese Prime Minister and Assad-rival sometime this weekend but before I do, here's the latest from Dan Asmussen on God's faulty "revelations" intel and Harriet Miers' conservative credentials.

Miers Twist

The rhetorical heat over President George W. Bush's nomination for Sondra Day O'Connors' seat on the Supreme Court took a new turn as Harriet Miers' apparent support for, affirmative action programs was revealed. While serving as the Texas State Bar's president, the future Supreme Court nominee pushed for increased minority and woman representation on the bar's own leadership ranks and within law firms in general. She voted to pass a resolution urging law firms to hire at least one qualified minority lawyer out of 10 new lawyers who are asked to join. A spokesperson for the Center for Equal Opportunity, a conservative group that opposes affirmative action on the grounds that it is unconstitutionally discriminatory, said her past stance is troubling.

These revelations complicate her already troubled-nomination and in a way that may benefit the White House. Up until now, the conservatives alone were divided on her nomination. Most believe she is a conservative at heart who, because of her evangelical roots with a very conservative church, would vote to overturn Roe v. Wade and Lawrence v. Texas. Her friends say she is strongly pro-life and, in a questionnaire developed by a leading Texas gay-rights group, said she does not believe in repealing Texas' Homosexual Conduct Law which barred anal and oral sex performed between two people of the same sex while permitting the same type of conduct if performed by members of the opposite sex.

But some conservatives believed that her response on the questionnaire were nevertheless troubling. Harriet Miers said gays are entitled to equal rights and that troubled anti-gay groups who adopt similar rhetoric while legitimizing all anti-gay discrimination laws as attempts to deny people of their sexual inclination "special rights." Gay rights groups are troubled for that same reason. No one knows where she stands. Social conservatives want someone who will vote against the gay rights claim in every case and gays want someone who will vote their way. No one but her knows how she will vote. Some conservatives of course objected because her legal qualifications are in doubt and they really are in doubt.

Up to now, Democrats have remained silent and let the Republicans argue against one another but the latest revelations will force them to choose between two of their constituencies - the socially conservative but economically liberal racial minorities and gays. Most African Americans support affirmative action, as do a substantial number of Hispanics. Since they tend to be more conservative on the religious issues they are not troubled by Harriet Miers' anti-gay viewpoint and may in fact consider that a plus when it comes to any Supreme Court rulings on gay marriage, or employment discrimination claims based on one's sexual orientation. Gays, however, are very troubled.

When she visted members of a major Texas gay rights group while running for the Dallas City Council, she said that here religious views were "incompatible" to their sexual "lifestyle" and, as noted above, said she did not believe Texas' discriminatory Homosexual Conduct law should be repealed. She is described as a "born-again" evangelical Christian who converted from the Roman Catholic faith and obviously does not believe that the right to sexual privacy extends to those who engage in homosexual intimate conduct.

What will the Democrats do? Will they vote thinking this is the best they can get and abandon one of their most loyal constiuents or will they vote against her and offend the other loyal constituency? Principles aside, a vote to abandon gays seems less politcally risky than a vote to preserve affirmative action.

Do the Democrats stand for any principle though? Do they stand for judicial competence? Do they stand for equality all around? Or will they go by the number of votes a loyal constituency can provide for them?

Hmmm. One would hope they would stick to their principles but I bet there will be a divide and some Democrats will vote for Harriet Myers if they believe that minorities will rally to her side.

Limon's Delayed Justice

In a blow for justice Kansas' Supreme Court unanimously overturned a 17-year prison sentence for a young adult who was convicted of engaging in "illegal voluntary sexual conduct" (in this case, oral sex) with a 14-year old minor. The state's authority to punish those convicted statutory rape and other crimes involving sexual conduct with aminor is not at issue; it's so-called "Romeo and Juliet" law, which allows for a sentencing disparity based upon the sexual orientation of the criminalized conduct was.

An eighteen-year old man with no criminal record who performs oral sex on a 14-year old boy could get a 51-66 month (4.25-5.5 year) prison sentence while the eighteen-year old first time offender who does so with a 14-year old girl receives a 5-7 months (not even a year) term.

Kansas' "Romoe and Juliet Law" provides a lesser charge for 18-year olds and others who are under the age of 19 and charged as adults, who engage in "sodomy, lewd touching, or unlawful voluntary sexual conduct" with 14 and 15-year old minors if the minor is of the opposite sexand no more than four years younger than the defendant. The authors who passed this law thought it wise to be lenient on two love birds whose age difference is minimal and both parties consented to the sexual activity involved.

Matthew Limon was convicted of criminal sodomy after he engaged in illegal voluntary sexual conduct with a fellow student at a school for the developmentally disabled children. Mr. Limon had just turned 18 and his "victim," would turn 15 one month later. This was not his first offense. Since Mr. Limon was twice convicted for aggravated sodomy while he was a minor, the judge sentenced him 206 months (17 years) in prison. However, a person of his age with his background who performed oral sex on a 14-year old girl would get at most 15 months (1 1/4 years) behind bars.

He challenged his sentence in state courts with no success at first. The trial court turned his sentence-disparity equal protection claim down and that ruling was affirmd by the Court of Appeals in 2002. The Court of Appeals relied upon the U.S. Supreme Court's ruling in Bowers v. Hardwick, in which five of the nine Supreme Court justices declined to extend to those who engage in homosexual conduct private intimacy rights generally afforded to those who engage in heterosexual conduct.

But the U.S. Supreme Court overturned its ruling in Bowers v. Hardwick when it struck down as unconstitutional Texas' "Homosexual Conduct Law" in Lawrence v. Texas on "Due Process" privacy rights grounds. One day later, it vacated the decision reached by Kansas' Court of Appeals with respect to Limon's prison sentence and the state's "Romeo and Juliet" law and ordered a new hearing.

A three-judge panel for that same Court of Appeals which affirmed his sentence in the first place voted 2-1 to re-affirm the prison sentence upon re-hearing the case, citing the state's arguments for promoting "traditional moral values," marriage and procreation while limiting the spread of sexually transmitted diseases as legitimate reasons for distinguishing between heterosexual and homosexual sexual conduct performed on minors.

It distinguished Limon's case, which concerned an equal protection (discrimination) claim regarding acts performed on minors from Lawrence, which involved the sexual privacy rights of two adults. Lawrence, the two justices in the majority said, was not implicated because Justice O'Connor alone voted to overturn Texas' Homosexual Conduct Law on equal protection grounds.

Kansas' Supreme Court rejected the Court of Appeals' ruling for good reason - the state's objectives provided to legitimize the orientation-based sentencing disparity(the protection of procreation, marriage, the control of sexually-transmitted disease) are not served by the adopted discriminatory classification system.

The sexual acts in question (lewd acts, oral sex, and anal sex) do not involve procreation, whether they are performed between members of the same or opposite sex. These acts are non-procreative in their nature whether performed by members of the same or opposite sex.

The distinction does not protect the marital institution since these acts since (1) these acts are not prohibited when conducted between unmarried adults, and (2) the law forgives unlawful activitiese performed by one type of couple (the adult with an opposite sex consenting minor) sexual activiitesgroup of people who obviously are not married.

The health-based rationale for the discriminatory sentencing disparity does not work either. Anal sex is risky whether it is performed within the confines of a heterosexual or homosexual relationship and oral sex is generally not risky when performed within the confines of a monogamous heterosexual or homosexual relationship. Nor are exceptions made for those who are STD-free.

The state's sexual orientation-based discrimination makes sense only if Kansas sought to express its moral disapproval or animosity towards those with homosexual inclinations and that subjectively-based rationale alone does not justify the sentencing disparity in question.

See the Court's opinion in Lawrence v. Texas here:

"It must be acknowledged, of course, that the Court in Bowers was making the broader point that for centuries there have been powerful voices to condemn homosexual conduct as immoral. The condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives. These considerations do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law."

See also, Justice O'Connor in her concurring opinion here:

"This case raises a different issue than Bowers: whether, under the Equal Protection Clause, moral disapproval is a legitimate state interest to justify by itself a statute that bans homosexual sodomy, but not heterosexual sodomy. It is not. Moral disapproval of this group, like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause. Indeed, we have never held that moral disapproval, without any other asserted state interest, is a sufficient rationale under the Equal Protection Clause to justify a law that discriminates among groups of person.

The reason is simple, if not clearly, enunciated in Lawrence. Nations goverened by laws and not men cannot subject its citizens to arbitrarily-defined discriminatory conduct. The moment a nation authorizes discrimination based upon subjective and not objective criteria or standards (and religious-based morality by its nature is subjective), it ceases to be a nation governed by laws. Legislation is crafted to suit the whims and passions of the more powerful or favored group - and the legislative process is itself reduced to a tool used to legitimize government by man.

See Romer v. Evans:

"By requiring that the classifcation bear a rational relationship to an independent and legitimate legislative end, we ensure that classifications are not drawn for the purpose of disadvantaging the group burdened by the law. ... Central both to the idea of the rule of law and to our own Constitution's guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek assistance."

The Appeals Court's distinction between the claim made in Lawrence and that made in Limonhas no merit. Justices Kennedy, Stevens, Souter, Breyer, and Ginsburg may not have ruled against Texas on equal protection grounds but they, as much as Justice O'Connor, were mindful of and concerned with the homosexual petitioners' equal protection claim. Note here:

"As an alternative argument in this case, counsel for the petitioners and some amici contend that Romer provides the basis for declaring the Texas statute invalid under the Equal Protection Clause. That is a tenable argument, but we conclude the instant case requires us to address whether Bowers itself has continuing validity. Were we to hold the statute invalid under the Equal Protection Clause some might question whether a prohibition would be valid if drawn differently, say, to prohibit the conduct both between same-sex and different-sex participants."

And any doubts of the Supreme Court's discrimination concerns must be put to rest here:

"Equality of treatment and the due process right to demand respect for conduct protected by the substantitve guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests. If the protected conduct is made criminal and the law which does so remains unexamined for its substantive validity, its stigma might remain even if it were not enforceable as drawn for equal protection reasons. When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discimination both in the public and in the private spheres. The central holding of Bowers has been brought in question by this case, and it should be addressed. Its continuance as precedent demeans the lives of homosexual persons. "

If the homosexual petitioners' liberty alone were at issue, the court would have no reason to speak of the law's discriminatory and demeaning effect on those with the homosexual inclination. Liberty does not protect one from the stigma associated with the conduct in the first place. (A neo-Nazi can, for example, say that Jews deserved what they got during the Holocaust and the government can do nothing about it. The First Amendment protects his or her right to say what he or she wants but it would not protect him or her from the stigma associated with the condemnation which inevitably would follow from those statements. Many would rightly brand him or her an anti-Jew bigot).

Kansas' Supreme Court recognized this when it took the case and decided that it had no choice but to interpret the U.S. Supreme Court's order for a re-hearing as a sign that it wanted Mr. Limon's sentence reduced.

Mr. Limon deserved a prison sentence because he committed a criminal sexual act akin to statutory rape. Some might say he deserved the 17-year prison sentence originally given to him. I doubt it. He is, like his victim, mentally disabled and that required as much consideration as his repetitive offending status.

But even if he deserved his 17-year prison sentence it was because he committed a crime akin to statutory rape. The sexual inclination that led him to perform these illegal sexual activities on a boy instead of a girl should have no bearing on his prison sentence.

Mr. Limon has been in prison for the past five years. His timely release will not, however, erase the years which he sat in prison knowing that the state hated him while providing more lenient sentences and sympathy to those whose sexual inclinations led them to perform the same acts on victims of the opposite sex.

Friday, October 21, 2005

North Korea and the Light Water Reactor

Governor Bill Richardson of New Mexico returned from his trip to North Korea with what he believes to be good news. The American envoy said Mr. Bush's counterparts in Pyongyang are totally committed to denuclearization and will compromise on the lightwater reactor they have up to now insisted upon in return for their cooperation.

The special envoy's former boss, Bill Clinton, promised to help the North Koreans build two South Korean-financed light water reactors if the North Koreans freezed their nuclear program and dismantle its nucleear program. Pyongyang signed onto the agreement but his successor George W. Bush scuttled the plan after information concerning a hidden uranium enrichment program led him to suspect non-compliance. The North Koreans have, or at least claim to have, nuclear weapons, though administration officials.

Mr. Richardson says Pyongyang is willing to let our government participate in the "fuel cycle at the front and back end" in return for the nuclear reactor, and back off from its insistence that all foreign aid workers leave their country. The North Koreeans, New Mexico's governor says, will let them remain if they called their "humanitarian" aid "development."

The PoliticalHeretic believes Mr. Richardson's analysis is accurate with respect to their willingness to compromise on the foreign aid workers. Pyongyang, gains more from that deal. The state will let the relief workers continue their mission if they reject the "humanitarian" label that points to North Korea's failure to meet its own obligations to provide for its own citizens.

As abhorrent as it may sound, the Bush administration can accept this proposition, which Mr. Richardson describes as a means to "save face," with no problem if the North Koreans are willing to compromise on the light water reactor. Cautious optimism is warranted but we don't know if and how that negotiating position will change once the six nation talks continue in November. Pyongyang have backed out of commitments before. The promise of daily inspections and substantial control over North Korea's lightwater reactors are meaningless without verified nuclear dismarmament.

Thursday, October 20, 2005

Iraq Vote

"When America's Constitution was ratified in 1789, federalism was an unfinished fact. (It still is, but today's adjustments of states' rights and responsibilities are minor matters.) If the federal government of 1789 had not grown in strength, relative to the states, far more than most ratifiers of the Constitution anticipated or desired, the United States probably would not have remained united. So the question today, which will be answered in coming years by the political process framed by Iraq's new constitution, is whether that constitution "stands up" a nation, or presages the partitioning of it, perhaps by the serrated blade of civil war." - George F. Will

An official count may be days away but it seems as if the Iraqi citizens who went to the polls voted to support the draft constitution authored by Iraqi Kurdish and Shi'ite negotiators. The Sunnis failed to muster the 2/3 "no" vote they needed in three governorates to have the constitution rejected and will be forced to rely upon a parliament-approved panel that will be chosen after new elections for Iraq's National Assembly are held.

Our presence in Iraq have to be re-examined now that the Iraqi people voted in favor of the constitution drafted by the Kurdish and Shi'ite negotiators. The American armed forces which were sent to remove Saddam Hussein were charged with the search for his biological and chemical weapons. None were found, but the American troops were instructed to stay. Iraq's armed forces, it was argued, needed training so that it could one day defend Iraq from inurgents, terrorists, and foreign invaders. In the meantime, the Americans and the others who joined in its "coalition of the willing" conducted military exercises against Sunni-led insurgents and foreign terrorists entering Iraq from Syria and Iraq with mixed results.

Saddam Hussein was removed from power and will be tried for the crimes against humanity. Mr. Hussein will probably get the death penalty and get shot by a firing squad after he is, as predicted, be found guilty by a jury of his peers. Iraqis have joined American and coalition-led military forces in joint exercises, and Iraqi citizens within the Kurdish and Shi'ite communities have voted in the country's first two free elections - once for their representatives in the National Assembly and once on the draft constitution.

If the Iraqis have any intention of uniting behind one banner or one government, however, more work needs to be done. Its military and police cannot by themselves maintain law and order. The Iraqi and coalition armed forces have so far failed to thwart the Baathist and Al Quaida terrorists who are responsible for bombings in heavily populated cities. The Kurdish Perh Merga and rival Shi'ite militias with parochial interests have infiltrated Iraq's police forces and are allowed to conduct their activities with impunity since the Iraqi government and its American protectors have done nothing serious to dismantle them.

Political developments needed to reinforce unification have not materialized. The Iraqi armed forces' legitimacy was undermined by our failure to dismantle the Persh Merga, Al Badr Brigades, and other militias which might compete with it and provide for their mutually shared clients' security.

The vaguely-worded constitution seriously weakens its legitimacy even further by carving Iraq up into two and possibly three or more autonomous mini-states. The Kurds and Shi'ites had the most to gain from this constitution so it won't be surprising if they overwhelmingly voted for it. The constitution officially recognizes a Kurdish-dominated autonomous mini-state in northern Iraq and Shi'ites have a chance to create a mini-state of their own in the oil-rich south, if they can agree on its political nature. The Sunnis, who were given privileged status under Saddam Hussein's reign of terror, lost that status and might possibly be left with an oil-deprived mini-state in central Iraq.

Last weekend's vote did nothing to change the situation on the ground militarily, but the president's case for keeping our troops in Iraq has been undermined by this vote on Iraq's constitution. If the Iraqis refuse to unite bhind one central government and reject a Western-styled federalist democracy like ours for a loosely orgnaized confederation, our military training efforts would have been done in vain. Iraq's armed forces would have nothing to defend Iraqis from which the Persh Merga and other militias more closely aligned with their parochial interests couldn't do by themselves.

The Bush administration has to move beyond his "stay the course" rhetoric now that Iraq's cosntitution was passed. He must tell us whether the administration will defy those who voted to pass this constitution, pressure the leading negotiators into mkaing important compromises designed to reunite their country or withdraw our troops.

Wednesday, October 19, 2005

Saddam Hussein's Popularity

Well, the former Iraqi president's poll numbers have declined somwhat from his last election. The superman undewear costume didn't help.

Saturday, October 15, 2005

Iraqi Elections

Iraqis will be going to the polls this Saturday to vote on its constitution, which effectively carves Iraq into at least two and quite possibly three autonomous mini-states. "Federal authorities" are charged with the task of preserving Iraq's "unity, integrity, independence, and sovereignty of Iraq," but in effect, the very federal powers which are supposed to bind the Kurdish and Arabic regions together in one country are split between the Kurdish mini-state and Iraq proper. One need only look one paragraph down to see why:

The Constitution approves the region of Kurdistan and its regional
and federal authorites at the time this constitution comes into force. (italicized my emphasis)

The Kurds really want independence but will settle for autonomy with de facto independence in the short term. When Saddam Hussein's troops invaded Iran, the Iraqi Kurds rebelled (as did the Iranian Kurds against their own oppressors) and after the first Persian Gulf War, they rebelled again, this time with the encouragement of then President George H.W. Bush. That rebellion was quashed but American-led forces protected the remaining Kurdish-populated territory in the north. The Kurds gained de facto autonomy while Saddam Hussein remained in power but once Saddam Hussein was removed from power, they had to negotiate with his successors over their status, which would be settled in their favor if the constitution is approved.

While the Kurdish region alone is officially recognized as an autonomous entity, a governorate can on its own or with others, seek regional status like that achieved by the Kurds:

The constitution shall approve of new regions established in accordance with its provisions. One or more governorates shall have the right to organize into a region. (italicized my emphasis)

The Sunnis believe this newly-created right to unofficial self-determination will be exercised by the predominantly theocratic and pro-Iranian Shi'ite populated areas in the south, leaving the Sunnis to fend for themselves.

No one can say for sure if they are correct. The Shi'ties are themselves divided. Federalist Shi'ite theocratics may break away and form their own region while Sunnis, secularist Shi'ites, and anti-federalist theocratic Shi'ites fight for control over a smaller, diministed Iraqi state. The Rival theocratic milias may turn on each other and fight over an autonomous region or split it into two or carve it up.

New provisions have weakened to an unknown extent, Sunni opposition to this constitution. One group which adamantly opposes federalism has now signed onto the constitution. Anti-federalist Sunnis will be given one more chance to re-negotiate key provisions after a new Parliament sets up a panel specifically designed to investigate recommendations for change. A clarification limiting the Baathist purge to principle figures was added as well.

The PoliticalHeretic welcomes these changes and the intent to win over Sunni support but does not believe they would sufficiently win their support. Sunnis can vote aginst this draft constitution knowing full well it would pass and still have every opportunity to participate in new parliamentary elections and consequently, negotiations for major constitutional revisions. It will do nothing to quell the Baathist insurgents or the Sunni population in general. The Kurdish and Shi'ite factions gained the most from this constitution. Kurds have their de facto independence and Shi'ites, the prospect of one to call their own. Iraq's oil reserves are found in the region surrounding the Kirkuk near Iraqi Kurdistan and in Iraq's Shi'ite populated southern governorates.

A vote for the constitution in effect carves Iraq up into two autonomous mini-states while leaving unsettled further political divisions. The Political Heretic believes it invites, rather than quells, violence. The Kurds will go their own way and left alone to deal with its hostile neighbors in the short term but rival militias will fight over Iraq proper. Theocratic Shi'ites who oppose federalism may join forces with Sunnis to quash any rebellion from breakaway Shi'ite governorates in the south. They, in turn, may fight Baathists and al Quaida's terrorist groups for control in Baghdad.

The Iranians have the most to gain from this politically divisive constitution. The pro-federalist theocratic Shi'ite factions in the south have close ties to Iran's political leaders and will receive that larger power's blessing and protection in return for favorable oil deals, something it could use as a bargaining chip in its negotiations with the West and United States. The rival political factions in the remainder of Iraq proper will be too weak to counter Iran's growing influence or role as arbiter in their political disputes.

Kurds will fair better if only because they had years to develop and reorganize its political institutions but they will be surrounded by hostile powers to the north, west and east. The Turks and Syrians will unite to quash Kurdish-inspired rebellions in their own territory and may use such rebellions and have no intention of befriending the PKK or any other Kurdish governing body in northern Iraq. Turkish, Syrian, and Iranian forces may act on the behalf of Turkomens, Sunnis, and others whom Kurds wish to expel from their autonomous region and the oil-rich Kirkuk oil fields.

Iraq's future as a unified, viable state is in serious jeapardy. This constitution does nothing to quell factions which support its de facto dissolution or encourage its factions to resolve their political disputes in a peaceful manner. The PoliticalHeretic rejects the approach taken by Iraq's leading negotiators and the Bush administration and hopes new parliamentary elections will lead to something better. Whether voters pass this constitution or not, American troops will have to remain and American negotiators will have to press for more political changes if we are ever to declare Iraq a success story.

"Storktelligent Design"

Dan Asmussen takes a shot at intelligent design proponents with this new cartoon on the origin of human babies. And then, a cartoon on how to contain the avian flu and another on "Grand Theft Auto."

Thursday, October 13, 2005

Bush's Tacit Understanding With Religious Conservatives Was Breached

"Now they're going to turn against a Christian who is a conservative picked by a conservative president and they're going to vote against her for confirmation?" he asked on his show. "Not on your sweet life if they want to stay in office." - Pat Robertson as quoted in The Washington Post

"It's hypocrisy doubled and quadrupled," Neas said. "What's wrong for John Roberts can't be right for Harriet Miers. . . . The president and his people are using repeated assurances about Miers's religion to send not-so-subtle messages about how she might rule on the court on issues important to the president's political supporters." - Ralph G. Neas as quoted in The Washington Post

"People ask me why I picked Harriet Miers," Bush said in response to a reporter's question at an Oval Office appearance with Polish President Aleksander Kwasniewski. "They want to know Harriet Miers's background. They want to know as much as they possibly can before they form opinions. And part of Harriet Miers's life is her religion."
- President George W. Bush as quoted in The Washington Post

If the president nominated a justice who "will interpret the law" and refuse to "legislate from the bench" then he would have no reason to inform us of her religoius beliefs. The Constitution recognizes and imposes no religious test on anybody and as a Supreme Court justic, Harriet Miers would be required to adhere to Constitutional guidelines whether they conflict with her religious beliefs or not.

If, however, the president's intent was to nominate someone who, because of her known religious beliefs, would probably vote a given way on any constitutional issue (say abortion, gay sex, contraception, school prayer, etc), then, Mr. Bush had every reason to say she is a born-again evangelical. A president who promised religious conservatives he would nominate a jsutice who would shift the Supreme Court to the right would point them to her religious background if they had any doubts. Mr. Bush made that promise, albeit tacitly, and they in turn promised to keep their mouths shut so these nominees would be confirmed.

The tacit understanding President George W. Bush made with his conservative base was forced out into the open. As long as Mr. Bush appointed reliably justices whose judicial track record was reliably conservative, right-leaning evangelicals would let him appeal to the masses and centrists utilizing non-threatening mainstream rhetoric. Mr. Bush could say he was appointing justices who would "interpret the laws" of the land, justices who, as "strict constructionists" wouldn't "legislate from the bench" while assuring his conservative base they are getting one of their own.

But that has changed. President George W. Bush picked Harriet Miers for the Supreme Court. She is an evangelical conservative whose beliefs are closely aligned with those of her conservative evangelical church in Texas. Her friends say she is pro-life and when she first ran for the city council and met with a local gay rights group, she told its members that their "lifestyle" was "incompatible" with her religious beliefs. For the most part it worked and it was guaranteed to work as long as the conservatives knew what they were getting. But if one party in the agreement did not, with enough certainty, know what they were getting, all bets were off.

Mr. Bush was caught off guard. The president believed he upheld his part of the tacit agreement by picking someone whose religious beliefs are in line with those of his base. Conservatives would have no objection because she was a "born again" Christian who presumably would vote to permit mandated school prayer announcements, instruction in bible-reading and creation science, and laws barring abortion, and non-procreative heterosexual and homosexual conduct, and gay marriage.

But he was wrong. She does not have a track record like Michael Luttig or Michael McConnell and unlike them there is nothing in the record to suggest that she has thought of how the government may resolve these conentious social issues constitutionally. One can, afterall, vote to affirm practices which they abhor. Justice Anthony Kennedy is a practicing Catholic who nevertheless felt it necessary to affirm limited abortion rights and overturn a Supreme Court ruling that affirmed laws barring homosexual activity. Former Congressmen Bob Barr and Joe Scarborough supported the reversal of Bowers v. Hardwick even though they view homosexual conduct as sinful. Beliefs can be an indicator but are no guarantee to Supreme Court rulings.

That guarantee is what the social conservatives who voted for him wanted and since they didn't get it some religious conservatives are out in force pressing Mrs. Miers to withdraw her nomination.


Wednesday, October 12, 2005

Hope In Iraq

In a last-ditch effort to win Sunni-backing, Iraq's political leaders have agreed to a major revision in the draft constitution Iraqi voters are going to vote on in a nationwide referendum conducted this Saturday. Sunnis have up to now rejected our efforts to create a democratic and pluralistic Iraqi state. They boycotted the national elections and their lead negotiators rejected the draft cconstitution which in their view, will lead to the de facto split of the country into a secularist and oil-rich Kurdish mini-state in the north, a pro-Iranian and oil-rich theocratic Shi'ite mini-state in the south, and an oil-deprived secular Sunni state in central Iraq. Sunnis have also objected to pro-theocratic and anti-Baathist references that are found in the draft constitution as well.

Sunni leaders had learned their lesson. The boycott, they now understand, cost them the representation needed to make them power brokers during negotiations over the draft constitution. They have urged their fellow Sunnis to go to the polls and vote against the constitution but that may change.

Language inserted within the constitution authorizes the creation of a new panel which will have the power to propose major changes to the constitution after a new Parliament is sworn in. In effect, re-opens the negotiations over Iraq's future by creating a new panel which will convene after new parliamentary elections in order to propose changes to the constitution. Sunnis will have one more chance to boost their representation in the National Assembly and win the right to negotiate with the Kurds and Shi'ites as equal partners.

The Iraqi Islamic Army, a Sunni-led party which has up to now opposed the constitution will now endorse it. Others may join in the effort and push for constitutional ratification before the Saturday vote as well but there is no guarantee. If the Sunnis voted en masse to reject the constitution and it goes down into defeat, leaders from Kurdish, Shi'ite and Sunni factions would be forced re-ngotiate over Iraq's future and consequently give the Sunnis a chance to win a less objectionable draft constitution. The three principle factions would be required to meet and propose constitutional revisions when appropriate should Iraqis vote to approve its new constitution, but their neogiationg power would be stronger if the constitution is not passed. Any proposed changes that are made would have to be approved by the Iraqi people at large, so the burden will still be on those like the Sunnis who seek changes to the constitution.

Those who join the Iraqi Islamic Army in endorsing the constitution will do so however, because they fear what will happen if the constitution passes in spite of a united Sunni vote against it. The Sunni population can only rely upon the terrorists so long if they want to move on with their lives.

Credit must be given to the Bush administration and the American negotiating team, including U.S. Abmassador Zalmay Khalizad, who insisted upon further changes before a vote on the Constitution. When some Kurdish and Shi'ite leaders, fearing a vote against the constitution, revised the election rules, American and United Nations officials advised them along another course. That threatened vote change was probably a part of their negotiating tactics to compel Sunni support but they had to backtrack and now they can vote for the political process without voting for the very flawed constitution that goes with it.

Tuesday, October 11, 2005

The President's Miscalculation

President George W. Bush surprised Democrats when he nominated John Roberts to fill a vacancy on the Supreme Court. Mr. Roberts had an impressive resume which partisans on both sides of the political divide admired. Republicans said Mr. Bush was entitled to his pick and urged Democrats to support their ideological opponent as they did when they did when former President Bill Clinton nominated Ruth Bader Ginsburg and Stephen Breyer to the Supreme Court. Both received strong bipartisan support in the senate.

Some Republicans on the judiciary committee in fact advised Judge Roberts to answer as few questions as possible, and he was expected to do just that.. Many Democrats broke ranks and voted for Judge Roberts anyway. Some came from Republican-leaning states and were up up for re-election. Others thought it wiser to conserve their strenth for the real fight over swing Justice Sondra Day O'Connor's seat and most did not want to be perceived as obstructionists..

The conservatives won the battle for public perception as well. Mr. Bush was able to get his reliably conservative nominee through the full senate while his opponents on the Senate Judiciary Committee made themselvese and not he, look like the extremists. Mr. Bush could go out in public and say he was looking for justices who would interpret the law and deny assertions that he had a litmus test. By focusing on abortion, however, Democrats made themselves out to be the party with litmus tests.

Mr. Bush, to be sure, was aided by the moderate Democrats who had nothing to lose by replacing an almost reliable conservative Supreme Court Justice with another reliable conservative, but again, the Democrats were at a loss from the very moment Mr. Bush selected John Roberts for the bench - even when he was expected to replace a moderate swing justice.

The president lost that high ground when he nominated Justice Miers. Conservatives, already disappointed with his spending initiatives, failure to reform social security, and the deteriorating situation in Iraq, hoped he would at the very least move the Supreme Court to the right. Harriet Miers may in the end do just that and James Dobson of Focus of the Family said he received assurances that she will do just that. But many conservatives aren't taking his or the president's words for granted and are waiting to see if she will be the kind of judge who would vote with Antonina Scalia and Clarence Thomas on these contentious social issues or not.

Mr. Bush has asked the conservatives to trust him and told them and us that Harriet Miers will not change her opinions or outlook on the role of the judicial branch for the next 10-20 years she will serve on the Court. Vice President Cheney said she will be a strict constructionist they will like. It was a ridiculous assertion and undermined his persona as one who is above partisan politics.

The president may eventually win their support of his nomination but the tables have turned. Democrats, for the most part, have said little about Harriet Miers' nomination. Senate Minority Leader Harry Reid said he was pleased with the nomination and Senator Charles Schumer said the president could have picked worse but for the most part they have sat back while the conservatives argue over Harriet Miers' qualifications and judicial philosophy. George F. Will and Jonah Goldberg are not buying into the results-oriented approach adopted by the religious right but David Frum, Patrick J. Buchanan and Rush Limbaugh are frustrated because, as they themselves now admit publicly on television, Mr. Bush missed an opportunity to pick a conservative who most assuredly would push the Court to the right on the social issues.

Conservatives lost the high ground. Their claim for a non-partisan, open-minded and fair justice can be dismissed as the empty but ultimately false rhetoric that it is and any claim by Republicans that Democrats have a litmus test can be countered with statements that point to a Republican litmus test. The rift within the Republican Party may and probably will subside, but this nomination exposed the rift and allows the public to see for the first time perhaps, a Republican ideological agenda on the Supreme Court.


Monday, October 10, 2005


I would like to point readers to two articles in yesterday's The New York Times concerning the state of affairs in Iraq. The first concerns rival militias and their ability to infiltrate the police forces in Basara, Iraq and the second one is a thought-provoking reflection on what the proposed constitution will mean for Iraq.

Here's the quote of interest:

And hanging over all of those calculations is a set of much broader questions on whether the details of the language matter at all given that the Sunnis, whose people form the base of the insurgency, have not agreed on the draft and that even the finest-sounding constitutions in the Middle East are ignored by the ruling elite in country after country.

As Mr. Ajami delicately put it, "I don't think countries in the region are ruled by constitutions."

That may be our only hope. The constitution itself is a disaster which should but probably won't be rejected.

Sunday, October 09, 2005

Double Talk On Miers Continued -Quote From Ann Quillyer

From Quin Hillyer:
Okay, what do John Dean, Chuck Colson, Bernard Nussbaum, Jack Quinn and Lanny Davis have in common with Harriet Miers? They were all White House counsels, of course. Does ANYBODY here think that any of these people, by virtue of being White House counsel, were qualified for the Supreme Court?!? Or isn't it more likely that if Clinton had tried to appoint Lanny Davis to the high court, EVERY SINGLE person on this web site would have been yelling at the top of their lungs that Davis wasn't anywhere NEAR qualified for the job? Well, the same goes for Harrier Miers. It has NOTHING to do with elitism - look at the list of other acceptable judges, and you'll see a wide variety of schools they went to. It has EVERYTHING to do with proven experience dealing with issues of the Constitution. I would even argue that a supremely respected History or Gov't/PoliSci professor, one who specialized in constitutional studies and had written extensively on the Constitution and on Madison, etc., to great acclaim, would be more qualified for the high court than Harriet Miers is. Can Harriet Miers knowledgeably discuss the important issues raised by Saenz v Roe? What does she think of Clarence THomas' separate opinion in it concerning the applicability of privileges/immunities? Does she even have a clue? Maybe so - but we should know she has a clue already. She shouldn't be a cipher. And if we are supposed to trust her "heart" rather than her brain, as the president suggested, we already are in Feinstein territory, as in "Tell me what you feel about things as a husband and a father." That's why the president's press conference made things worse, not better. Trusting somebody's heart is pure, unadulterated cr@p. And it is an insult to all those who supported John Roberts on the explicit grounds that the president is deserved deference IF his pick is brilliant, super-qualified, and eminent in the field of constitutional law. Indeed, it's an insult to all conservative who care about the courts for the sake of law based on right reason. Reasoning is crucial. If Miers votes "right," but she can't explain her vote on paper with any more persuasiveness than is evident in the logical mush offered consistently by A. Kennedy and S.D. O'Connor, then she will be a disaster. Meanwhile, she remains a crony, in the very sense warned against by Hamilton. Senators should have no compunction about opposing her.

From The Corner

And the reasoning is important because, as Jonah Goldberg said, ideas have consequences and the Supreme Court justifies its opinions through reasons grounded in principle. If she has no guiding principle nothing will save Miers from succumbing to her own biases when her more conservative companions find themselves on opposing sides on a given issue.

Miers and the Religoius Conservative Argument

RELIABLE VOTE [Jonah Goldberg]

"The more I think about it, the more I think there's something inherently corrupt about the "she's a reliable vote" argument. I'm not singling any reader, blogger or activist out because this argument tends to reside amidst a lot of other arguments and other rhetoric. At its core, the "reliable vote" argument suggests that that's all that matters -- a conservative vote. Without casting aspersions on others, that's not good enough for me (and it may be grotesquely unfair to Miers). If all that's required is a reliable vote, National Review and the Heritage Foundation have plenty of interns who will do just fine. As George Will writes this morning, Bush's pick of Miers smacks of identity politics (a point several of us have made around here) and how it suggests that Bush sees the Court as a representative body. The reliable vote argument is imbedded in this view of the court. It says that arguments and due dilligence don't matter. What matters is that "our side" gets its voice on the Court, period.

This sounds to me a bit like the "results-oriented conservatism" some on the web are touting in Miers' defense. Who needs all that pointy-headed intellectual stuff if at the end of the day she votes the same way? (I assume some of these people defended Clarence Thomas against the charge that he's Scalia's sidekick. But why bother if the vote is all that matters?) Conservatives, I thought, were supposed to believe ideas have consequences, that American institutions -- chief among them the Supreme Court and the Constitution -- have specific and organic roles to play in the culture which depend on intellectual honesty, opposition to cant, and a dispassionate rejection of the politicization of the law. The reliable vote argument -- absent other rationales -- runs counter to all of these. This becomes obvious when you imagine a Democratic President appointing a confidante with few obvious credentials for the Supreme Court. A president Kerry could hardly convince any of us that his pick should be confirmed because she's a reliable vote."

Kudos go to Jonah Goldberg. He is at least willing to call his ideological supporters to task for their failure to live up to the very principles they preach. If the conservatives are going to hide behind the judicial impartiality facade to defend those nominees who won't commit to upholding Roe v. Wade, they should be the last to object when a justice won't commit to its reversal.

Mr. Goldberg would like to see Roe v. Wade reversed and returened to the states. I would like the Court to overturn it if it used the Fourteenth Amendment's Due Process and Equal Protection Clauses to declare abortion procedures an unconstitutional violation of the fetal being's right to life and liberty. Most liberals would like the Supreme Court to uphold Roe v. Wade.

So there are of course sharp disagreements on this issue. And liberals and conservatives have been forthright in making that clear. Liberals and moderates said they want a "mainstream" candidate who will not shift the ideological balance on the court. Conservatives have, in defending John Roberts' nomination, said he is entitled to withold his view on those issues which may come up before the court. Well here we are again with another Supreme Court nominee and some within the neoconservative and theoconservative communities are not pleased because Bush appointed someone who has no record on these social issues.

And now the White House is trapped into the same double-talk. The President says he wanted to appoint the most qualified fair and impartial nominee - someone who will "interpret the constitution" and decline to "legislate from the bench" and then he is forced to backtrack and reassure his base and tell them Miers is what they are looking for.

Then we have George F. Will say she is not constitutionally bright enough and Johnah Goldberg, whose views on Miers are not known by this blogger at this time, say their standards are too low and demeaning to a branch of government that should, in his mind, should avoid the vote-counting and unprincipled decisions made in the democratic branches of government.

Saturday, October 08, 2005


An important reminder to those who think illegal immigration and the debate about what to do with it is reserved for those who live in the border states.

Mayor John Destefano Jr. of New Haven, Connecticut has come out in favor of id cards for illegal immigrants so they could open up bank accounts, obtain social services (and health care), and prove their identity to the police.

The mayor, who is running for governor, said that the federal government's refusal to helpand embrace these "hard working" people amounts to "exploitation" and "abuse." Mr. Destefano said his office will see if the city can legally issue id cards for illegal immigrants.

Legal options for breaking the law? Hmm.

That's a new one for me.

Dan Asmussen

Well, I have fallen behind on Dan Asmussen's "The Bad Reporter" political cartoon strips but they are posted here.

The most recent one pokes fun at Judith Miller. New York Times reporter Judith Miller was sent to prison for contempt of court after she refused to reveal her source for the leak of CIA agent Valerie Plame's name. Mrs. Miller spoke with Lewis "Scooter" Libby, the Vice President's Chief of Staff and aid to the White House after former Ambassador Joseph Wilson's sharply critical op-ed on the war in Iraq was published in The New York Times. Mrs. Miller agreed to testify before a grand jury and released from prison last month.

Mr. Asmussen also pokes fun at the court nomination process, Senator Fris about his stock options, a new but unconfirmed policy barring gays from becoming Catholic priests, and Jet Blue.

Better late than never.

Friday, October 07, 2005

Oregon: "She Flies On Her Own Wings"

New Hampshire may be known for its state motto, "Live Free or Die," but the Supreme Court was deliberating over an Oregon law that literally allows its residents to do just that.

At issue was Oregon's Death With Dignity Act, a law that allows mentally competent but terminally ill Oregon residents of age the right to end their life. Oregon's voters passed a referendum in 1994 establishing this act and reaffirmed their support for assisted suicide in 1997.

Former Attorney General Janet Reno refused to challenge the law and and prosecute doctors who complied with Oregon's law but her successor and favorite in religious conservative circles, John Ashcroft, issued a directive in 2001 and threatened to revoke from doctors who helped their patients commit science, the right to prescribe federally controlled medications. Oregon filed a suit and won an injunction in the federal district court. The liberal Court of Appeals for the Ninth Circuit affirmed that decision. In its opinion, the circuit court said that the Controlled Substance Act passed by Congress was designed to help the federal and state governments crack down on drugs and did not give the attorney general the authority to overturn Oregon's assisted suicide law.

The Supreme Court will not, it is expected, rule on one's right to acquire and use prescribed medications to end his or her life and in the relevant court proceedings that have come before it, the court declined to support the right to die. The debate in oral arguments in part focused on Congressional intent and specificially, whether it assisted suicide medicines fall under the authority of the Controlled Substance Act, but a ruling to overturn Oregon's law would seriously undermine efforts to address the terminally illl patients' concerns. If the Controlled Substance Act bars the implementation of state-approved assisted suicide laws, those seeking relief from doctors will have to appeal to the Republican-controlled Congress and the White House.

Some religious conservatives oppose Oregon's assisted suicide law and hope it will be struck down by the Supreme Court later this year. The Family Research Council filed a brief in support of then-Attorney General John Ashcroft's claim that the Controlled Substance Act authorizes him to take the measures he did to deny this state law's enforcement.

Their support for this action is interesting to say the least. For years, the FRC and other religious conservative organizations have fought to let the people, either through their state legislatures or through popular referendums decide on moral issues like the one in the spotligh. Most believe (or claim to believe) that all life, born or unborn, is sacred. The religious conservatives say no one can take a person's life away and would hope that Roe v. Wade is overturned yet they are pushing to return the abortion debate back to the states, not for a national policy for protecting the right to the fetal being's life.

The justification for nationalizing fetal protections from abortion are equal to, if not stronger, than those now offered to protect the terminally ill patients that seek to end their life. Afterall, the former have no say in the matter; the terminally ill kill themselves at their own volition.

Oregon's law requires careful documentation before a terminally ill person could receive lethal doses in medication and the procedures described are designed to protect its benefactors from those who may pressure them into this decision. The patient must orally request and, in the presence of two witnesses, one of whom is not a family member, financial benefactor, or someone associated with the doctor or a facility charged with caring for the patient, submit written and signed documentation confirming that wish.

The attending physician is required to make an initial assessment of whether the patient in fact is terminally ill and capable of voluntarily making a rational decision on his or her own. The doctor must then inform the patient of his or her medical diagnosis, prognosis, any "feasible alternatives" to alleviate pain, the risks associated with the prescription of lethal medication and suggest to the patient that he or she notify the next of kin. A second consulting doctor would be called in to confirm or dispute the original medical diagnosis and prognosis.

Fifteen days must pass before the patient can obtain the lethal dosage of medication and he or she will get it after a second verbal request. During and at the end of that waiting period, the doctor must remind the patient that he or she can rescind that request and decline to follow through on that request to die.

The law's proponents clearly thought of the abuse which may take place and have done their best to minimize it. They narrowly provided this right to a subset of those who are terminally ill (those who are expected to "pass away" within a 6-month period), required a physical assessment from two doctors, and the submission of three requests from the patient. If there is anything to fault the authors on, it is their failure to require a written confirmation following the 15-day waiting period.

I believe in the right to what is described above as assisted suicide. The liberty interest implicated in this case is almost indistinguishable from the one claimed when a patient wishes to decline life-sustaining medical treatment. The two are but two means to reach the same end. The patient, knowing there is no hope in staying alive much longer, wishes to end it with the minimal amount of pain. What a twisted view of justice one must have if he or she would force a terminally ill patient to use the most painful means to exercise their right die and avoid needless suffering.

No one expects the Supreme Court majority to grant terminally ill patients a right to assisted suicide. But the court can issue a ruling that does not conflict with that right. Iif, as the religious conservatives say, the people and state legislatures can decide to what extent (if at all) they should protect an innocent and voiceless fetal being's life, they certainly can let the state legislatures and people decide to what extent they will "protect" the terminally ill man or woman from him or herself.


Wednesday, October 05, 2005

A Gay Perspective on Conservatives' Nomination Closet

Readers of this blog by now know that there is little I can say in Mrs. Miers defense and that I would be delighted if Justice O'Connor were to reverse court and say she will stay on for another year. It won't happen but Mrs. Miers is no Justice O'Connor and for that matter, no Justice Scalia (he scares me but Mr. Scalia does have a sound legal mind).

I don't believe Harriet Miers is a David Souter yet I do take some delight in the ongoing debate from conservatives who are once again furious and disappointed in Bush. If this blogger understands their argument correctly, they are peeved because Mr. Bush decided it wisest to push for their coup d'etat in a silent, apologetic, and non-confrontational way and declined to push through a solid conservative whose legal views on abortion, homosexual intimacy, religion and civil rights were known.

In essence, conservatives are complaining because Mr. Bush wants to keep them "in the closet." They want a confrontation. They want to "out" themselves and confront their liberal ideological, gay-sympathetic opponents, get themselves a vote on filibuster changes and rally their base for new elections and Mr. Bush said "no." We'll do it secretly and when they complained and he and his supporters vouched for her conservative credentials he put himself into the position of the sympathetic good guy who didn't want a fight.

Wow. If you were gay like me you might appreciate this turn of events, and wish it never would end. Am I dreaming? May I never wake up!


Dobson's Special Rights

"Some of the efforts evidently bore fruit. By day's end, Mr. Dobson, one of the most influential evangelical conservatives, welcomed the nomination. "Some of what I know I am not at liberty to talk about," he said in an interview, explaining his decision to speak out in support of Ms. Miers. He declined to discuss his conversations with the White House." The New York Times

Why must James Dobson know more about Miers than we the public? Miers vote on constitutional rights will affect us just as much as it will affect him. What gives him the right and privilege to know how she will rule?

Talk about arrogance. That kind of attitude goes hand in hand with that of the politicians who think they can take away our property because, in their view, it is "underutilized." He's not privileged to tell us how she will make decisions? Fine. Don't attend these meetings with Bush and if you go aobut and have this special access don't flaunt it.

By the way, what can he tell us?

Hat tip to Andrew Sullivan.