Category Archives: Rule of Law

Ground Zero as an emblem of America’s dysfunction

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ground zero

The opinion writers at the WSJ are, predictably, fulminating over the upcoming trials of Khalid Sheikh Mohammed et alia in NYC. Whatever you think about that, one of them made an excellent point about our nation’s fecklessness with a photograph and a sharp couple of paragraphs:

The third way to consider the trials is to look at Ground Zero itself. After eight years of deliberation, planning, money and effort, what have we got? The picture nearby is the answer.

Let me be more precise. After eight years in which the views and interests of, inter alia, the Port Authority, NYPD, MTA and EPA, the several governors of New York and New Jersey, lease-holder Larry Silverstein, various star architects, the insurance companies, contractors, unions and lawyers, the families of the bereaved, their self-appointed spokespersons, the residents of lower Manhattan and, yes, even the fish of the Hudson river have all been duly consulted and considered, this is what we’ve got: a site of mourning turned into a symbol of defiance turned into a metaphor of American incompetence — of things not going forward. It is, in short, the story of our decade.

By failing to quickly decide what to do at that site and then DO it, our nation has shown its weakness — the flaws that come inevitably with being a liberal democracy riven with partisan and cultural conflicts, a society that values everyone having their say more than going ahead and getting things done.

Some of these things about our country I would not change; others I would. The thing is, a liberal democracy CAN get its act together. This was a pretty great country back in 1941-45, and yet we managed to pull ourselves together after Pearl Harbor and build and operate a towering war machine that quickly eclipsed the ones that Germany and Japan had been building for two decades. Those militaristic and fascistic countries underestimated us then, thinking we were too soft and divided in our purposes to defeat nations as focused as they were.

Today, fanatics who are willing to die for their cause think we are too soft, comfort-loving, life-loving, indecisive and ineffectual to defeat them. Failing to rebuild and move on at Ground Zero — allowing their act of terror to leave us in a state of paralysis at that site for eight years — speaks volumes about our dysfunction, and makes them look right. I mean, what do you say about a country that goes into paroxysms over something as obvious as the need for health care reform — or the need to rebuild at Ground Zero?

It’s not that we don’t know how to design something and build it. We’re great at that. We just can’t decide what to build, and that is just one among many effects of the fact that, as a nation, we still haven’t been able to get together on HOW we want to respond to 9/11.

Is a nation that divided and confused capable of continuing (is it capable, for instance, of summoning the energy to overcome our economic crisis so that I can get a job, just to bring it down to the personal level)? Or are we all washed up? Or is the answer somewhere in between, and if so, precisely where?

Anybody agree with Barrett about the Navy brig?

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Now to the substance of what Mullins McLeod was getting on Gresham Barrett about.

As I mentioned before in one of my last columns for the paper, Rep. Barrett didn’t seem to have a reason for running for governor. He could clearly state what he wanted to do, or anything special that he brought to the job (which is probably why he dodged talking to me for a couple of weeks, until I got really insufferable with one of his staffers — avoiding free media is just bizarre behavior in a gubernatorial candidate, and it really stood out), which was not good.

Now, he’s apparently decided he wants to grab attention and break out of the pack in the worst way — which is exactly what he’s done.

In the playbook of the kind of politician who has a very low opinion of the electorate, he’s doing everything right: He’s appealing to xenophobia, to the Not In My Backyard mentality, to insecurity, and sticking it to the administration that happens to be of the other party. He accomplishes all that by griping loudly and obnoxiously about the idea of the Obama administration bringing “detainees” from Guantanamo to the Navy Brig in Charleston.

Folks, I’d just as soon they stay in Gitmo, because I’ve always thought that was an excellent place to keep them, practically speaking. First, it’s off our soil, which keeps them in limbo as far as our legal system is concerned. You’ll say, “But that’s just what’s WRONG with Gitmo,” but the fact is that prisoners who are taken in such unconventional warfare, many of whom are sworn to do anything to harm Americans if given the chance, are different either from people arrested in this country under civil laws or captured in a conventional conflict.

And it’s secure as all get-out.

But… and this is a big “but”… as convenient as it might be for us to keep people whom we believe to be terrorists on a sort of Devil’s Island, as practical as it might be — it hasn’t been good for our country. Why? Because we’re not the 19th century French. We aren’t governed by a Napoleonic Code. We’re all about innocence until proven guilty. And while we may sound like damnable fools for extending such niceties to people who thought 9/11 was really cool and would like to see another, we do stand for certain things, and Gitmo has given this country a huge black eye that it can’t afford. We have to be better than that.

For that reason, even if John McCain had been elected instead of Obama, we’d be closing Guantanamo. (As Lindsey Graham says, we might have done it in a more organized manner, but we’d still be doing it.) And finding a secure place to put those people is part of that process. Guess what? Our allies don’t want them. So we’re stuck with them.

And that makes the brig down in Charleston as good a place as any. Hey, I don’t want them there, but sometimes, somebody besides our men and women in uniform has to put up with something they don’t like in our nation’s greater interest in this War on Terror.

And does anyone truly doubt the ability of the United States Navy to keep those people secure there? I don’t. I suspect we could always transfer up a few more Marines from Guantanamo if we think we don’t have enough security there. It certainly fits the brig’s mission, which is officially stated as follows:

The mission of the Naval Consolidated Brig Charleston is to ensure the security, good order, discipline, and safety of prisoners and detained personnel; to retrain and restore the maximum number of personnel to honorable service; to prepare prisoners for return to civilian life as productive citizens; to prepare long term prisoners for transfer to the Federal Bureau of Prisons or the United States Army Disciplinary Barracks; and when directed by superior authority, detain enemy combatants under laws of war.

So basically, Rep. Barrett’s attempt to score points on this issue is ugly, petty, and insulting.

Just for the sake of argument, does anyone agree with him?

Graham and his vote on the Franken amendment

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Randy suggested a couple of days back that we have a string on the Franken amendment vote, which, according to some of my friends here on the blog, can be summarized as, “Graham and DeMint were among 30 Republicans who sided against rape victims.”

Personally, I still don’t know who was right about this. But I had, and still do, a suspicion over a vote that allows one side to paint the other that black. The world isn’t that simple. And I know Lindsey Graham — he’s not a guy to vote for “pure evil” over good, particularly not for the sake of party solidarity. This is a guy who breaks with his side when he thinks it’s wrong.

The idea that he had suddenly become a different sort of guy just didn’t smell right to me. What it smelled like was one of these deals where one side or the other sets up a vote on something just to get the other side to vote against it, so the party of the first part can use it against the party of the second part politically.

This is going to drive Kathryn and others crazy (they hate it that I sometimes base my initial impressions on things on the degree to which the people doing the advocating have or have not earned my trust over time, but you know what? our entire system of representative democracy is based on that, to a huge degree), but just as I have come to trust Graham over time to have a good reason for his vote (even when he’s wrong, as on health care), I do not have a similar level of trust with Al Franken. Maybe I’ll get to the point where I do, but so far he’s still the guy with the “Al Franken Decade,” the guy who started a radio network because he thought the left needed its own Rush Limbaugh — in other words, just the sort of guy who likes to strike poses, whether for laughs or for partisan advantage.

And folks, this initially started as a discussion about character. I called Roman Polansky a perv, that got us on the subject of rape, and next we were talking about how horrible those Republicans were to vote against this measure.

So, in the process of trying to make up my mind on this so I could post something, I e-mailed Kevin Bishop in Graham’s office yesterday to ask whether they had any releases or written position on the subject. In other words, what did the senator have to say for himself? Kevin responded promptly (probably thinking I was about to post), but I got too tied up to blog yesterday, so I’m just sharing this now:

We did not send out a release….here is some background information on the Franken Amendment.

It’s also important to note the Department of Defense—ie the Obama Administration — opposed the Franken Amendment:

DoD Position

Proposed Franken Amendment (# 2588) re: H.R. 3326 Prohibition against requiring arbitration of any claim under title VII of the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment.

  • The DoD opposes the proposed amendment.

  • The proposed amendment effectively would require debarment of any contractor or subcontractor or would require termination of any contract if the contractor or a subcontractor, at any tier, compels an employee or independent contractor, as a condition of employment, to agree to the use of arbitration to resolve sexual harassment claims of all sorts.  The Department of Defense, the prime contractor, and higher tier subcontractors may not be in a position to know about such things. Enforcement would be problematic, especially in cases where privity of contract does not exist between parties within the supply chain that supports a contract.

  • It may be more effective to seek a statutory prohibition of all such arrangements in any business transaction entered into within the jurisdiction of the United States, if these arrangements are deemed to pose an unacceptable method of recourse

Here is some additional background on the amendment from the Senate Republican Policy Committee:

As you recall, Franken amendment 2588 to the defense appropriations bill banned the Department of Defense from using any funds to pay for an existing defense contract if the contractor decides with its employees to agree to arbitration of certain civil rights claims and torts.  In effect, it bans the Department from doing business with any defense contractor with an arbitration clause with its employees.  This would have an enormous negative impact on any state with any sort of defense contractor presence, or any state with a military base for which contractors perform support services.  It is our understanding that many offices that opposed the Franken amendment are the subject of ridiculous media campaigns attacking the offices for favoring Halliburton over rape victims, amongst other scurrilous charges.  As an after action report, we pass along the following points:

  • First and foremost, the Obama Department of Defense opposed the amendment.

  • The Franken amendment was marketed as providing protections to victims of sexual assault.  Groups have then denigrated those who voted against the Franken Amendment as seeking to deny rape victims their day in court.
  • The Franken Amendment seems particularly to be an overreaction given that Jamie Leigh Jones, the main case to which Senator Franken cites as demonstrating that his amendment is necessary, has not been denied her day in court.

o       A federal appellate court recently found that her employment arbitration agreement does not cover claims of (1) assault and battery; (2) intentional infliction of emotional distress arising out of the alleged assault; (3) negligent hiring, retention, and supervision of employees involved in the alleged assault; and (4) false imprisonment.

o       This means that the arbitration agreement Ms. Jones signed does not foreclose her from bringing these causes of action against her employer in a federal court.

  • Proponents of the amendment have argued that it was necessary so that justice is done in cases of crimes and serious civil rights violations.  They fail to note that arbitration clauses only bind the parties, and thus cannot prohibit prosecution of crimes.  Crimes and civil rights violations can still be prosecuted by the government through criminal and other means.

o       The Franken anti-arbitration amendment is less directed at rape or assault and more designed to prohibit the Department of Defense from paying for a contract with a contractor who chooses with its employees in employment contracts to have a clause pertaining to arbitration as alternative dispute resolution.

  • Since the Franken amendment applies to existing contracts, it would disallow the use of federal funds to pay a federal contractor, for example, to provide protective services for American personnel in Iraq if that contractor has an arbitration agreement in its contract with its employees. 

o       This raises substantial risk of disruption of services to troops in the field, as the existing contracts would have to be stopped and some substitute contract negotiated and agreed to. 

o       Moreover, to the extent this amendment forces the Department to default on existing contracts, even where the contractors are providing exceptional results, this would likely place the Department at great risk for substantial liability grounded in breach of contract.

  • The real motivation behind this amendment is, of course, Democrat hostility to all things arbitration, on behalf of trial lawyers.  This is exemplified by the last sentence of DOD’s opposition to the amendment, which suggests that all arbitration agreements be prohibited, stating “it may be more effective to seek a statutory prohibition of all such arrangements in any business transaction entered into within the jurisdiction of the United States, if these arrangements are deemed to pose an unacceptable method of recourse.”

o       Providing further evidence of this interest is Senator Feingold’s so-called Arbitration Fairness Act (S. 931), which would invalidate all arbitration agreements related to employment, consumer, franchise, and civil rights disputes.

  • This is contrary to long-standing federal law and policy, as the Federal Arbitration Act of 1925 seeks to ensure the enforcement of arbitration agreements, and, as the non-partisan Congressional Research Service describes, the “FAA evidences a national policy favoring arbitration.”  CRS Rpt. RL30934.

o       The FAA specifically contemplates mandatory arbitration clauses, providing that “A written provision in any . . . contract evidencing a transaction involving commerce to settle by arbitration . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.”  9 U.S.C. § 2.

  • The Federal Arbitration Act includes provisions to ensure that proceedings are fair.  Additionally, arbitration clauses will not be enforced if the contract itself or its arbitration provisions are entered into unlawfully.

  • To the extent there are jurisdictional problems making it difficult to prosecute some of the cases animating the Franken amendment, more targeted responses are in order rather than the wholesale jettisoning of arbitration clauses in employment agreements.

o       For example, the Military Extraterritorial Jurisdiction Act (MEJA) was initially intended to provide extraterritorial federal jurisdiction for certain crimes over U.S. defense contractors working overseas. A Republican-led Congress in 2004 expanded MEJA to cover other U.S. government contractors working overseas where their employment relates to supporting the mission of the Department of Defense overseas.

Conservative Heritage Foundation

http://blog.heritage.org/2009/10/16/the-truth-about-the-franken-amendment/

As I said, I still don’t know what to think, but I think it’s more complex than Lindsey Graham voting against rape victims. What do y’all think?

Wimping out in Honduras?

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Remember when I expressed my regret that my only sources of information on what’s happening in Honduras (or anywhere else in Latin America, for that matter) were columnists with axes to grind?

Well, there was a fairly complete update on the situation on the WSJ’s news pages today, which I appreciated. For instance, I learned for the first time that the military had forced ex-President (or is he really “ex-“?; that’s sort of what the argument’s about) Manuel Zelaya was forced to leave the country “in his pajamas.” Not that that’s important; I just enjoyed learning it.

More to the point, I thought I got a better appreciation of the Obama administration’s position on the situation, in this paragraph:

Resolving the crisis would be welcome not only in Central America but in Washington, too. The U.S. has put pressure on the interim government to allow the democratically elected Mr. Zelaya to return, even though the leftist is a fierce critic of Washington and a close ally of Venezuela’s populist Hugo Chávez.

That fact, of course, is what Jim DeMint and other conservative critics can’t get over — the fact that the administration is siding with this rather obnoxious ally of someone who is so inimical and destructive toward our national interests. But in that paragraph, I could sort of appreciate that we were trying to be fair and impartial, backing the guy even though he hangs with folks who aren’t our friends.

You know, sort of the way I’ve bent over backward to accommodate and be “fair” and nonjudgmental toward some of the bullies who have run off nice people on my blog. And I wrung my hands and fretted over the implications of cracking down. I hesitated to just ban someone because of past behavior — after all, in this country, doesn’t a person always have the opportunity, nay, the right, to redeem himself?

Oddly, it was one of our more “liberal” Democrats on the blog who, in sidebars, would whisper to me of how I needed to toughen up, stopping being squishy and tolerant, be the king, and cry “off with their heads.” I’m not going to name this person, in the interests of protecting the guilty, but the advice took the form of such admonitions as: “Stop trying to look like a good guy. You are a good guy.”

Which, it occurs to me, may be where Obama’s got it wrong, and DeMint’s got it right, on Honduras. Aside from the fact that the best assessment we have in hand does not support (clearly, anyway) that Zelaya was ousted in an extralegal manner, what principles are we standing up for here? At the very best, it’s a tossup whether Zelaya has a legitimate claim. So in such a situation, why would we not stand up for our nation’s legitimate interests, and more importantly, ideals (which the Chavezistas in the hemisphere scorn), without hesitation or apology?

In short, are we wimping out in the interests of being fair to all concerned, and in the process so blinding ourselves to reality that we don’t even see that it’s NOT fair to all concerned, that this guy actually doesn’t even (necessarily) have any of the rules on his side?

Does Sanford still think he has anything to lose politically?

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This really got my attention in an otherwise boring turn-of-the-screw story over the Sanford ethics case:

Sanford asked the court to intervene Wednesday, arguing that if the State Ethics Commission releases the report, it could be used against him politically or undermine the governor’s ability to defend himself. Sanford’s attorneys will have until noon Tuesday to respond to the Ethics Commission arguments.

The boldface emphasis is mine. I would love to see the original press release or court filing or whatever that led to that paraphrase, “used against him politically.”

Surely the governor doesn’t actually believe that he has anything to lose politically. Correct me if I’m wrong, but didn’t he say, in writing, not long ago, that his political career was over? I didn’t pay much attention to it at the time because it seemed like a painful case of stating the obvious.

This guy was toast before he dug the hole deeper with his unsuccessful attempt to block the stimulus funds. Already, the leadership of his own party had stopped listening to him, and the stimulus battle just made it less likely that they’d ever start again. All the Argentina madness happened on top of that. Those of us who were all too familiar with this guy and his irrelevance knew far before that explosion that there was no way he would ever have had a chance at national office, once the national media paid any attention to his record whatsoever. And of course there wasn’t anything left for him in South Carolina.

So how on Earth could he be hurt politically by disclosure of the preliminary ethics report, or, for that matter, by anything else? How could you possibly hurt a political career that is SO over, and then some?

But maybe he didn’t say that. Maybe The State got it wrong. I’d love to see what he DID say, so if any of y’all know, please direct me to it. A brief search on my part yielded nothing…

Henry’s got some ‘splainin’ to do

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I tend to yawn at debates over technical violations of ethics rules. Perhaps that will shock you, since journalists tend to be the ones who get the MOST worked up about such.

Consider it yet another one of the little ways that I have always tended to be a contrarian. Here’s my thinking on the matter: Ethics rules usually have little or nothing to do with right or wrong. They’re almost always about the appearance of right or wrong — and usually pretty narrow-gauge rights and wrongs at that. For instance, ethics laws really fret over the appearance of a conflict of interest. I worry about it when it actually leads to (or rather points to; the cause and effect relationship can be fuzzy) a public figure doing something wrong.

For instance — I remember a lot of folks getting really concerned about David Beasley accepting plane rides from folks associated with the Barnwell nuclear waste dump, from whom he had also received campaign contributions. People went on and on about these plane rides, like they mattered. (Folks who get worked up about ethics laws have a particular obsession with plane rides, as we’ve seen recently.)

Me, I was more concerned about the fact that Gov. Beasley had thrown careful interstate negotiations out the window in a reckless bid to overturn years and years of bipartisan effort to get some state other than South Carolina to be the region’s nuclear toilet for awhile. Mind you, he had already done this before all the hoo-hah about the plane rides. I kept trying to explain to anyone who would listen that the plane rides were only significant in that they might point to a cozy relationship with the dump people, which could portend that the governor might do something in the interest of the dump people rather than the interest of the people of South Carolina. But folks, he had already done the worst thing he could have done along those lines. This worrisome indicator (the disclosure of the plane rides) was superfluous and after the fact, and it interested me not in the slightest. It was a matter of straining at gnats.

It struck me as particularly dumb that Democrats were making a huge deal over the plane rides, and to my mind never made enough of the trashing of our nuclear waste policy (if Jim Hodges had run on that instead of the state lottery, he still would have won).

Actually, I could have just given you this short explanation: I care more about the substance than I do the appearance.

Anyway, having the attitude I do about these things, I didn’t make much initially of the story about Henry McMaster’s contributions from lawyers working for the state. But as it happens, The Wall Street Journal did pay attention, and made quite a deal of it:

More interesting than the suit’s dubious merits are Lilly’s recent court filings about the AG’s ties to trial lawyers. Mr. McMaster in 2006 chose three private lawyers—John S. Simmons, John Belton White, Jr., and F. Kenneth Bailey, Jr.—to prosecute Lilly on behalf of the state. The no-bid contingency contract—which Mr. McMaster refused to produce to Lilly for nearly a year—gives the private lawyers a sliding-scale cut of any judgment or settlement, a jackpot potentially worth tens of millions of dollars.

About a month after filing the case in 2007, according to the Lilly documents, Mr. Simmons’s law firm had turned around to contribute the maximum amount allowable ($3,500) under state law to Mr. McMaster’s re-election. Mr. White’s law firm contributed the same amount on the same day, and Mr. White later added a personal maximum donation. All told, the law firms, their lawyers and spouses have contributed more than $60,000 to Mr. McMaster since 2006. The AG can transfer this money to his gubernatorial account.

This sweetheart deal is rife with conflict of interest, and Lilly’s filing also lays out the legal and constitutional problems. Consider due process. Both the U.S. and South Carolina constitutions make clear that the state and its lawyers must be guided by justice and the public interest, not monetary gain. South Carolinians would be outraged if Mr. McMaster won a personal financial cut of any case he won as Attorney General. How is it better that his lawyers get it instead?

And as uninterested as I tend to be in such things, they managed to get my interest in the way they described why it was a bad thing. (It used to be Cindi Scoppe’s job, as the one journalist who knew the most and cared the most about state ethics law, to persuade me when an ethics case was actually worth caring about, and she was good at it. Now I don’t have her around to persuade me, so the WSJ did the persuading this time.)

I’m still not clear that Henry violated any ethics rules in taking this money. But as I say, that’s the kind of thing that bores me. (By the way, the reason most journalists get so worked up over whether an ethics rule — which is usually about appearances, not substance — was technically broken is that news people don’t get to make a judgment call and say, This guy did a bad thing. They can only report whether it technically violated a rule. So they go ape over whether a technical line was crossed, and their eyes are closed to policy actions that are monumentally bad, because with those they have to present just as many views saying it wasn’t bad as saying it was. Are you following me? It’s one of the reasons I put news behind me and moved to editorial in 1994.) What interests me is that the Journal piece makes a pretty good case that there is a degree of coziness here that is a bad thing.

Set aside that the Journal‘s motive is likely the fact that they want to stick up for Big Pharma. Bottom line, this is another embarrassing black eye for South Carolina. Not as bad as Sanford’s Argentina travesty or Joe Wilson’s ongoing foolishness, but the GOPs most promising gubernatorial candidate didn’t need this headache. Henry’s got some ‘splainin’ to do.

‘Detainees?’ Why not just call them ‘prisoners?’

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Today, reading about the latest on Gitmo and torture and prosecutions and so forth, I reached my saturation point on the word “detainees.”

Personally, I’m not too squeamish to go ahead and call them “prisoners.” Why don’t we just go ahead and do that? We’ve been holding some of these people since 2001, and many of them we don’t ever intend to let go (and if we do, we’re crazy). So why not “prisoners?”

Yes, I get it that their legal status is unsettled, and in U.S. crime-and-punishment parlance we generally save “prisoner” for someone duly convicted to spend time in a “prison,” which is an institution we distinguish from jails where people await trial or holding cells where they await bail or whatever.

But if we can’t be honest enough to say that Gitmo is a prison and they are prisoners, whatever the technicalities, could we please come up with something that sounds a little less prissy, somewhat less a-tiptoe, than “detainees?”

Whenever I hear the term, I picture a Victorian gentleman saying “Pardon me, sir, but I must detain you for a moment…”

Whose sensibilities are we overprotecting by the use of this word? Those who feel like the “detainees'” “rights” are being trampled? Those like me who are glad we have a secure place to put some of these people? (Hey, go ahead and close Gitmo if you’d like. That’s what Obama says he’ll do and it’s what McCain would have done, too. Fine. But find someplace just as secure to put the ones we need to hang onto.)

Maybe we could sort out all the rest of the mess — the legal status, the security issues, who should interrogate and how, whom to keep and whom to send home and whom to send to a third location, whether any of our own should be prosecuted, etc. — if we started by coming up with something less mealy-mouthed to call these people.

This year’s worst idea: Lowering the drinking age

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Something I almost posted just before leaving for PA Sunday, but didn’t have time… Reacting to this story in The State Sunday morning:

South Carolina’s legal drinking age could return to 18 for the first time in more than 25 years if two recent court rulings in Richland and Aiken counties are upheld on appeal.

Longtime Richland County Magistrate Mel Maurer on July 15 ruled that the state law prohibiting youths ages 18 through 20 from possessing or consuming liquor was unconstitutional. The current legal drinking age is 21.

On July 23, Aiken County Chief Magistrate Rodger Edmonds ruled that law and a similar law involving the possession and consumption of beer and wine in the 18-20 age group were unconstitutional.

Actually, I did post something about it on Twitter, and it caused a discussion on Facebook — not about what the law IS, but about what it should be.

There were the mature-minded folk (of course) who agreed with me that letting kids drink was a particularly horrible idea, and jeers and protests from the Party Hearty crowd. I heard the usual non-sequitur arguments, such as, if they’re old enough to fight for their country, etc. Folks, the two things have nothing to do with each other. The qualifications to be a soldier and those required to handle drinking responsibly are not the same — entirely different skill set. Ditto with voting. You might be qualified to do all three, but you might not. There’s no cause-and-effect relationship there.

Having been an 18-year-old who could drink legally I know whereof I speak — this is a HORRIBLE idea. And I marvel that anyone could advocate for it. It just can’t be rationalized in any way that is persuasive.

Oh, and while I’m at it, 16-year-olds shouldn’t be driving.

Anyway, Joe McCulloch says we need to amend the constitution if we want drinking by 18-year-olds to remain illegal. Let’s get started. Anybody have a petition? I’ll sign it.

Graham takes road less traveled, again

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As you know, I appreciate politicians who run against type, who defy the boxes that the idiots who guide the incessant partisan wars demand that they stay within.

For instance, I like Sen. Bob Casey of Pennsylvania for the simple fact that he’s a pro-life Democrat. He refuses to fit in the narrow little box.

And that means I like Lindsey Graham a lot, because he’s all about thinking an issue through and trying to do the right thing rather than what partisanship demands.

He did it again today:

Date: 07/28/2009

The right vote for me and, I believe, the country

by Senator Lindsey Graham

Today, I voted in the Senate Judiciary Committee for Judge Sonia Sotomayor’s nomination to the Supreme Court.  I understand the path of least resistance for me would be to vote no.  But I feel compelled to vote yes.  This is the right vote for me and, I believe, the country.  Here’s why:

Elections Have Consequences
I told Judge Sotomayor in the Judiciary Committee hearing that if Senator McCain had won the election, she probably would not have been nominated.  Senator McCain would have chosen a qualified jurist with a more conservative background – someone similar to Chief Justice John Roberts or Miguel Estrada.  Judge Sotomayor is definitely a more liberal judge than a Republican president would have nominated, but elections have consequences.

Judge Sotomayor is Very Qualified
Judge Sotomayor is one of the most qualified nominees to be selected for the Supreme Court in decades. She has seventeen years of judicial experience, twelve of those on the Second Circuit Court of Appeals.  I have reviewed her record closely.  She follows precedent and has not been an activist judge that would disqualify her from office.  She has demonstrated left-of-center reasoning but within the mainstream – a fact other Republicans on the Judiciary Committee have openly acknowledged.

She has an outstanding background as a lawyer. She was a prosecutor for four years in New York. Her record of academic achievement is extraordinary – growing up under very difficult circumstances, being raised by a single mother, going to Princeton, being picked as the top student there, and doing an extraordinary job in law school at Yale.  She has received the highest rating of ‘well qualified’ by the American Bar Association for her nomination to the Supreme Court, which was an important reason why I supported Justices John Roberts and Samuel Alito.

The “Obama Standard” – Wrong for the Nation and Judiciary
One of the things I chose not to do was to use the “Obama Standard” when it came to casting my vote.

As Senator, Barack Obama voted against both Justices Roberts and Alito.  He used the rationale that they were well qualified, extraordinarily intellectually gifted, but the last mile in the confirmation process was the heart.  He argued that in the final five percent of controversial cases that may change society, a Senator needs to look and see what is in a judge’s heart.

I totally reject this line of reasoning.  It runs contrary to more than 200 years of the Senate’s constitutionally-mandated role of providing “advice and consent” for judicial nominees.

If the Senate moves to a Barack Obama-style confirmation process where we explore another person’s heart, we are going to drive people away from wanting to become members of the judiciary.  Who would want to come before the Senate and have us try to figure out what is in his or her heart?  Can you imagine the questions that would be asked?  It will have a tremendously negative effect on the future recruitment of qualified candidates to be judges.

Also, one thing to note about Judge Sotomayor was that during the Judiciary Committee hearings on her nomination – she publicly disagreed with this “Obama Standard.”  She made it clear that trying to decipher what was in a nominee’s heart is not a good standard for selecting judges.

Return to the “Qualification Standard” for Supreme Court Nominees
I believe the Senate and nation should once again go back to the judicial standard for Supreme Court nominees which served our country well for over 200 years – the “Qualification Standard.”  Are the nominees qualified?  Do they have good character?  Do they present an extraordinary circumstance – having something about their life that would make them extraordinary – to the point they would be unqualified, e.g. they are related to the president or they tried to bribe someone for the position?

There was a time in this country, not long ago, where a conservative judge, such as Justice Antonin Scalia, received a 98-0 vote from the Senate.  Every Democrat who voted for Justice Scalia could not have been fooled as to what they were getting.  They were supporting an extremely qualified, talented, intellectual man who was qualified for the job but had a conservative philosophy different from most Democrats.

There was a time in this country where a Justice, such as Justice Ruth Bader Ginsburg, who is clearly left-of-center, received a nearly-unanimous vote in the Senate.  Republicans who voted for Justice Ginsburg had to know what they were getting.  They were supporting someone who was very talented, extremely well-qualified, and incredibly smart – but who was also general counsel for the American Civil Liberties Union.  They knew her liberal philosophy but understood that President Clinton had won the election and earned the right to make the nomination.

What happened to those days?

The Balance of the Court Does Not Change
On balance, I do not believe the Supreme Court will dramatically change in terms of ideology due to her selection.  Justice Souter, whom I respect as an individual, has been far more liberal than I would prefer. Quite frankly, on some issues, Judge Sotomayor may be more balanced in her approach than Justice Souter, particularly when it comes to the War on Terror, the use of international law, and potentially the Second Amendment.

Judge Sotomayor received the backing of Ken Starr, the conservative special prosecutor during the Clinton Administration.  Even critics such as conservative commentator and radio talk show host Bill Bennett have made positive statements about her nomination.

Bennett told CNN, “Let me make a prediction. I’m actually probably a little more conservative than Mitch McConnell. I think this will be a very different record than David Souter’s. I think she (will) surprise people. I think she is larger than this caricature of her… I think this is going to be an interesting judge, and not one who will always displease conservatives.”

I am not voting for her believing I know how she will decide a case.  I expect she will align with the liberal side of the court based on philosophy not because she is a judicial activist.

I am voting for her because I find her to be well-qualified, because elections matter, because I believe the “Obama Standard” is harmful to the judiciary, and because the people who have served along her side for many years find an extraordinary woman in Judge Sotomayor.  I found the same.

As a member of the minority party in the Senate, I have a responsibility to look hard at the nominees sent to the Senate by President Obama.  Where I can, I will support his nominees.  But I will not abandon the right to say no.  I will not abandon the right to stop, in an extraordinary circumstance, a nominee who is bad for the country and unworthy of being confirmed.  But Judge Sotomayor does not rise to that standard and for that reason I chose to support her nomination.

I would not have chosen her if I had been able to make the nomination.  But I understand why President Obama chose her, and I believe it is the right choice to vote for her confirmation to the Supreme Court.

Sen. Graham is one of those people — like Joe Lieberman — who causes me to think harder about a position if I find myself disagreeing with him, because I know he’s thought really hard about it. And he’s a really smart guy.

So after today, I would have to have really powerful reasons to oppose Sonia Sotomayor’s nomination. On the one hand we have partisan Democrats, who we know will vote for her without thinking. On the other hand we have partisan Republicans, who will oppose her without thinking. Then we have Lindsey Graham, who I know has studied the matter carefully — a lot more so than I have (I’m busy looking for a job), which of course is what representative democracy is all about — and decided to vote for her. To me, that means a lot more than just one senator’s vote.

Jake on the missing governor

From my files -- Jake Knotts at his endorsement interview in '08.

From my files -- Jake Knotts at his endorsement interview in '08.

Tonight I dropped by a Lexington County GOP confab at Hudson’s BBQ (last time I was there, it was to see Mike Huckabee when he still had a shot at the presidential nomination), and pretty much every member of the county delegation was there except for the two Nikkis (Haley and Setzler).

It was very hot — SO hot that even a seersucker suit was too much, so I went out and left my coat and tie in the car. Then, when it was all over, and the lawmakers had answered constituents’ questions about legislation and such, I went up and asked Jake Knotts about our missing governor.

I asked Jake because, near as I could tell from the reporting at thestate.com, he was the one who raised the hue and cry about the governor running off to who knows where in a SLED car last Thursday — leaving his security detail behind.

The senator said “when he didn’t show up the next day or the day after that, I called Chief Lloyd” at SLED. He said he raised to Reggie Lloyd the idea that it seemed improper for Jake — a former cop — to be driving around in a cop car equipped with blue lights when “he’s not a sworn officer.”

The senator also kept returning to the point that the governor was gone “on a Father’s Day weekend, and his wife says she didn’t know where he was.”

Further, Jake believes the governor was remiss in his constitutional responsibility by not notifying the lieutenant governor of his absence. And unlike the folks in the lt. gov’s office, the senator is completely unsatisfied by the governor’s chief of staff, who is not an elected official, saying he knows where the governor is.

Jake says he and the governor have had their differences — which may count as his understatement of the evening — but the gov had never done anything to concern him to this extent. “I’m really serious about his mental state,” he said, adding that he knew that the governor had had a rough time — with the stimulus battle, with seven years in office “with little to show,” with having gone 0 for 10 on his recent vetoes — and if he “wants to go on a sabbatical, I have no problem with that,” if “he turns the helm over to the lieutenant governor.”

Just FYI, folks, Lt. Gov. Andre Bauer, unlike the governor, is a political ally of Sen. Knotts. He kept praising Andre for not bucking his security (security which the governor believes the lt. gov. shouldn’t have, but that’s another battle he keeps losing). I said something about how I certainly feel better knowing someone other than Andre is driving. That wasn’t exactly the point Jake was trying to make, but he didn’t argue with me about it.

Jake made the point a couple of times that, if only for sake of emergency preparedness and Homeland Security issues, someone official should know where the governor is, which is one reason for him to have SLED agents with him. “The people of South Carolina’s security shouldn’t be jeopardized because the governor doesn’t want security.”

When I asked Jake to give me his updated contact numbers in case I needed to reach him later, he gave me four of them, adding, “And I guarantee you my wife knows where I’m at.”

Summing up the situation, Sen. Knotts said of the missing governor, “He’s suffering from the same thing he suffered from with the Senate — lack of communication.”

The senator added some remarks about how he’d like to see the governor turn things around and be more successful with lawmakers in his last years in office, but expressed doubt that will happen: “He’s done built that fence too high now.”

Anyway, for what it’s worth, that’s what the guy who was apparently the first official to ask, “Where’s the governor?” had to say about it tonight…

Leave your comments on the ruling HERE

Sorry I’ve been out of pocket today — very busy, lots of meetings.

Ironically, late this afternoon I was in one with Chris Myers, and remarked to her that I was eager to see what her sister (Jean Toal) and company came up with. Neither of us knew that the ruling had been out for more than an hour at that point.

Anyway, all I had time for when I heard was a little bit of “I told ya” boasting on Twitter:

Unanimous, of course: 5-0, as I predicted. Since the outcome was so inevitable, the only thing to prognosticate about was the point spread.

And I don’t have time for much more now, even. But don’t let that stop YOU. Leave your comments about the stimulus drama right here…

Further live blogging on hearing

I feel bad that I keep posting real-time stuff on the Supreme Court hearing on Twitter (and therefore automatically on Facebook), and I’m therefore neglecting the blog. So here are some of my recent observations, for your perusal:

Who’s addressing the court now? I was distracted, my video image is dim, and I don’t recognize the voice…18 minutes ago from web

I’m sure the gentleman is quite distinguished, but it would seem the celeb mouthpieces are all on the other side…14 minutes ago from web

Clever young fellow speaking now refers to gov’s “supreme executive authority,” to which I say, “Well, how’d you become king, then?”…9 minutes ago from web

“Really, doesn’t it boil down to a … policy disagreement?” asks Jean. Indeed. So question is, can Legislature make laws?5 minutes ago from web

Jean: “He lost a legitimately engaged-in debate under the constitution, and the rest is purely ministerial.” Amen. Cue the curtain.3 minutes ago from web

Maybe it’s not deep, but I thought I’d give y’all this chance to participate…

Why not a Mentat for the court?

Folks, I’ve got nothing against Sonia Sotomayor so far. Still gathering info, in an offhand, passive sort of way. She seems to have really nice teeth. The NYT reports that her rulings “Are Exhaustive but Often Narrow.” Narrow sounds good. They say she saved Major-League Baseball. That’s good, right?

But I’ve got to tell you, I’m not liking all this human-interest, fuzzy-wuzzy stuff I keep hearing. Nor do I like the rather blatant Identity Politics language, of which even the judge herself has been guilty:

Judge Sotomayor has said that “our experiences as women and people of color affect our decisions.” In a lecture in 2001 on the role her background played in her jurisprudence, she said, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”

You see, I’ve got this thing about the Rule of Law. The law should be no respecter of persons. We should be a nation of laws, not of men. Or women. In other words, who you are and what the law is are two entirely different things, and no one should be more cognizant of that than a Supreme Court Justice. Respect for that notion ought to be right up there at the top of the job description.

So yeah, I’ve got a problem with this. And it’s reinforced by the fact that President Obama himself indicated that HE would be looking for something other than someone who objectively ruled on the law. I wrote about how that was really starting to disturb me right before the election. (A lot of you thought that column was just about abortion — a problem which I attribute to the tragic way that abortion has distorted our political discourse. But it was about much broader concepts.) An excerpt from what I wrote at the time:

Sen. Obama seems to judge court rulings based more on their policy effects than on legal reasoning. In his autobiography, Dreams from My Father, he wrote, “The answers I find in law books don’t always satisfy me — for every Brown v. Board of Education I find a score of cases where conscience is sacrificed to expedience or greed.” That hinted to me that he cares more about good outcomes than law. But I forgot about it until I heard him say in the debate that “I will look for those judges who have an outstanding judicial record, who have the intellect, and who hopefully have a sense of what real-world folks are going through.” That third qualification disturbed me because it seemed to demand a political sensibility on the part of judges, but I wasn’t sure.

And now here we are — with a nominee who is not embarrassed to say such things as what I quoted above. And I have a problem with this.

Which, I know, puts me on the “right” side of the left-right wars on this one. And you know how I hate being on either side, but it happens.

That said, I’ve seen nothing yet that would keep me from voting to confirm her were I a senator. Why, you ask? Because, unlike the president, I don’t consider this touchy-feely biography-as-qualification stuff to be important enough to make up my mind either way. It’s peripheral. The point is, is she a good judge, which is something that is entirely independent of how she feels about herself as a Latina, or how the president resonates to that.

And yes, I know that to many liberals, this makes me sound like, at best, a cold fish. But folks, the law is a cold-fish thing, if it’s going to be fair. It’s about the intellect, not the emotions. My liberal friends, do you want Roberts or Scalia or Thomas ruling on the basis of how they feel about things, or on the basis of the law? That’s what I thought.

Maybe the ideal judge would be a Mentat, as imagined by Frank Herbert (or, to a lesser extent, a Bene Gesserit, who are also trained to override their emotions). Or Robert Heinlein’s Fair Witnesses. Of course, maybe the fact that my examples come from science fiction is an indication that such intellectual rigor and cool objectivity is impossible in the real world. Maybe.

But at least it ought to be an ideal that we strive for, rather than celebrating the possibility that a judge would rule on the basis of how he or she feels, or what groups they might identify — which frankly, as a believer in the Rule of Law, I find disturbing.

Nothing to say, but it’s OK

Folks on Twitter and elsewhere are going on about various filings in the stimulus lawsuits, and posting serious info, such as this on Facebook from Jim Rex:

Rex agrees that governor should adhere to state budget that employs federal funds
Today at 2:12pm

FOR IMMEDIATE RELEASE
Tuesday, May 26, 2009

COLUMBIA – State Superintendent of Education Jim Rex today agreed with the key points in a lawsuit that seeks to compel Governor Mark Sanford to accept federal stimulus funds aimed at helping schools and law enforcement agencies hit with massive budget cuts.

The South Carolina Association of School Administrators filed the suit Friday after Sanford said he would refuse to obey the General Assembly’s state budget, which requires him to accept $350 million in federal stabilization funds. Although SCASA listed both Sanford and Rex as defendants, the association said Rex’s inclusion was a legal technicality because the state budget’s language tells him to work with the governor in applying for the federal funds.

In his response filed today, Rex agreed with SCASA that the General Assembly’s budget for next year is a valid law that the governor is required to follow. Rex also said that his agency had completed the official application for the federal funds and that he had signed and delivered it to the governor for his signature.

In an optional filing, Rex also petitioned the South Carolina Supreme Court to accept the SCASA lawsuit under its “original jurisdiction,”
meaning that it should bypass lower courts and go directly to the state’s highest court for a decision.

“It’s important that we have a quick ruling because July 1 is the deadline for South Carolina to apply for the stabilization dollars,” Rex said. “South Carolina taxpayers are going to have to pay back this $350 million regardless, so it should be spent here in South Carolina.”

Two additional lawsuits were filed late last week over the federal stabilization dollars. In the first, filed last Wednesday, Sanford asked a federal court to invalidate the General Assembly’s budget because, in requiring that he accept the funds, legislators had usurped his authority. A second lawsuit, filed in state court Friday by a Chapin High School senior and a University of South Carolina law student, seeks to require Sanford to accept the funds. Rex was not listed as a defendant in either of those actions.

Today is the deadline set by the General Assembly for Sanford to apply for the federal stabilization funds, but the governor has indicated that he will refuse because he believes the budget law is unconstitutional.

That release is probably courtesy of my friend Jim Foster, last heard saying “Woo-hoo” in response to the stimulus veto override. (That was it, just “Woo-hoo,” unless the paper got it wrong. Interestingly, the link to that quote no longer exists.)

But I just don’t have anything to say about all the legal back-and-forth. I’ve said so much about the whole stimulus issue, that there’s nothing new to say. Good thing I’m not a lawyer being paid to file briefs in the case, because I’d just say, “The governor has no clothes,” and there go my billable hours.

So while everyone else is eagerly perusing the legal documents, I’m like…

A Mrs. Sotomayor was my teacher in the 5th grade in Ecuador. I had a crush on her. Probably not the same one.

… over on Twitter. Perhaps I lack seriousness. But really, I’ve just reached my saturation point on all these ridiculous gyrations our governor is forcing us all to go through. I’ve got nothing to say, but it’s OK. Tweet me when it’s over.

How do they get away with this?

nondairy

As you know, I’m extremely allergic to milk and all products derived from it. Fortunately, I learned long ago not to believe products that claim to be non-dairy. But not everyone is hip to that.

And in this era in which — and I’m very grateful for this — allergens have to be clearly pointed out on food labels, I have to wonder how a product gets away with that claim, when the evidence to the contrary is so clearly laid out.

Check this container I picked up at a local restaurant today. It blithely claims, in all-cap letters, to be “NON-DAIRY CREAMER.” smallnodairyThen, in letters that an awful lot of people my age can’t read, it acknowledges that it contains “Sodium Caseinate (a milk derivative).” The image at right, by the way, is approximately the actual size.

Then, at the end, still in tiny letters (although now slightly boldfaced), it says “Contains: Milk.”

Duh.

So how does it get to say “NON-DAIRY CREAMER” in much bigger letters? How does either the government or the marketplace let it get away with that? There is no way, in any rational way of looking at things, that something that “Contains: Milk” is “NON-DAIRY.” No way at all. Total contradiction.

Can anyone explain this to me?

Running out the clock

One more thing to share about the stimulus issue today…

This morning, I ran into Hugh Leatherman, and he pointed out something I had not thought of: I had assumed, like many others, that the reason Mark Sanford went to federal court instead of state court is that he was pretty sure a state court would rule against him.

Sen. Leatherman proposed another motive: He said that filing in federal court automatically gives the governor 30 days before anything can happen, thereby running out the clock on the Legislature’s requirement that he draw down the stimulus money within 5 days. I said, “Doesn’t he have to get an injunction or something from the court to get that delay?” The Senate Finance Chairman said no, that it was automatic.

Huh. Is that right? Maybe some of our lawyer friends can weigh in here…

More change we can believe in

I see that Barack Obama is going to try to stop the ACLU from publicizing more photos from Abu Ghraib.

Good for him. No useful purpose would be served by the propagation of new images of a terrible problem that has been fully explored and addressed and is a problem no longer. But such images, which would add nothing to our useful knowledge, could easily lead to more American deaths in Iraq and Afghanistan. We know how inflammatory images, from cartoons to such photos as these, can be in those parts of the world where our country is trying so hard to foster peace and stability, with American lives on the line.

Abu Ghraib was awful, and a tremendous setback to U.S. interests. We know that; and we’ve addressed it. No one in this country could possibly doubt that such treatment of prisoners is inconsistent with our values.  Why do the whole thing over again, with the fresh repercussions that would invevitably engender?

This is one of those cases where the public’s “right to know” — which folks in my longtime profession can get really, really self-righteous about (usually, but not always, justifiably) — ring awful hollow against the near-certainty that it would lead to more bloodshed.

It’s things like this that tend to lower my opinion of the ACLU (even as my respect for the president grows). I know they can do some good — and I was really pleased by the very smart, sensible op-ed piece we had from the ACLU’s local honcho Victoria Middleton several months ago; she nailed it on our pound-foolish approach to crime in South Carolina.

But the kind of legalistic pedantry-over-real-life (and death) that I see in this matter of the prisoner photos is really disturbing.

I don’t like ever to speak against openness and disclosure — I prefer to PUSH for those values, and almost always do so. But asserting those laudable values over American lives, in a case where nothing new would be gained, is one of those cases that illustrate the fact that extremism even in the service of a virtue CAN be a vice.

Replacing Souter

Sorry not to have posted; I haven’t been well the last couple of days. Had a horrible cold over the weekend, but it’s better now. I haven’t had to take anything for it since I got up this morning (knock on wood). Kind of wrung out, though.

In keeping with my usual policy of keeping some plates spinning on the blog at all times, though, I should at least have thrown out a “talk amongst yourselves” topic on the pending departure of Justice David Souter.

So here goes, belatedly.

As I may have pointed out before, last year was for me a real departure — a presidential election in which I liked BOTH candidates. I had always liked McCain, and then the more I saw of Barack Obama, the more I liked him, too. While neither of them would fully qualify as Energy Party material, each of them was the closest thing to an Unparty champion that his respective party was ever likely to produce.

So it was that I said a number of times last year that for once, we had a win-win proposition.

It was only at the very end that I started to get alarmed about Obama. The third debate between him and McCain was a watershed moment for me, and caused my mind to be undivided in advocating that we endorse McCain. There were two issues that were deciding factors, two positions taken by Obama that actually alarmed me. Those were his positions on free trade and judicial selection.

The thing that his position on these two points had in common was that they were so doctrinaire. On these issues he was not the paradigm-busting Unpartisan, but a cliche-spouting defender of liberal orthodoxy. I could digress about the Colombian free trade agreement here, but that’s not our topic today.

Roe v. Wade has so successfully (and tragically) polarized our politics that people who disagree with me about it can’t hear me when I say this, but I’ll say it again anyway: My problem with Obama on this point was not that he disagreed with me on abortion. Lots of people I’ve supported over the years, some quite enthusiastically, have disagreed with me on abortion. Joe Lieberman, for instance (you know, the guy who should have been on McCain’s ticket).

My problem was that on this subject, Obama seems to make no allowance for people who disagree with him — unlike McCain. Sen. Obama was, quite pointedly, NOT one of the Gang of 14. Nor had he demonstrated any willingness to support judicial nominees who failed his litmus test. To recap, here’s the difference I saw between him and McCain on this point:

Much harder to overlook is the hard fact that despite his opposition to Roe, John McCain voted to confirm two Clinton nominees, Justices  Stephen Breyer and Ruth Bader Ginsburg. Why? “Not because I agreed with their ideology, but because I thought they were qualified and that elections have consequences.” Senators should respect the president’s prerogative to the point that they should refuse to confirm only those nominees who are obviously unqualified. “This is a very important issue we’re talking about,” he added. Sen. Obama has had two opportunities in his brief Senate career to confirm highly qualified nominees — Samuel Alito and John Roberts — and voted against both. Yes, confirmation is different from nomination, but I would rather have someone who has demonstrated McCain’s relative freedom from ideology doing the nominating.

Then there was his odd way of talking past the very good federalist argument that McCain offered against Roe:

Perhaps worst of all, Sen. Obama was dismissive and misleading regarding the proper roles of the states with regard to the federal government, and the political branches with regard to the judiciary. Regarding Roe, Sen. McCain said, “I thought it was a bad decision…. I think that… should rest in the hands of the states. I’m a federalist.” He was saying abortion law should be returned to state legislatures, where we make most of our laws, rather than having it in a special, hands-off category.
In answering, Mr. Obama shocked me in two ways, saying “I think that the Constitution has a right to privacy in it that shouldn’t be subject to state referendum, any more than our First Amendment rights are subject to state referendum, any more than many of the other rights that we have should be subject to popular vote.”
If a right to privacy exists, it is at best inferred from the Constitution. The author of the “right,” Justice William O. Douglas, found it in “penumbras” and “emanations.” And yet Sen. Obama equated it to the very first rights that the Framers chose to set out in black and white, and subject to ratification. That a Harvard-trained attorney would do that may not boggle your mind, but it surely does mine.
Then there’s that bit about not subjecting such a hallowed “right” to “state referendum,” or “popular vote.” Sen. McCain had suggested nothing of the kind. In a representative democracy, such questions are properly decided neither by plebiscite nor by judicial fiat, but by the representatives elected by the people to make the laws under which we will live.

This was the first time I had noticed Obama doing anything that smacked of intellectual dishonesty.  But I don’t think he was being dishonest; I think he has actually talked himself into believing what he said, which in a way is worse.

After the election, my good feelings about Obama returned. He confirmed many of the best impressions I had formed of him during the campaign. I began to hope, audaciously. And I was very pleased by his pragmatism on national security matters — something that I had hoped for, even though many who voted for him had hoped for something else. In particular, I have appreciated his cool self-assurance as the nation goes through the economic wringer — it helps.

But now David Souter is retiring, and my qualms from the last weeks of the campaign have returned somewhat.

I take heart from this: Souter himself is the George H.W. Bush appointee whom the right grew to hate, crying “No more Souters!” Wouldn’t it be great if Obama appointed someone who is just as serious and studious a jurist, but one whom the left will later castigate as a disappointment?

I think it would be great, anyway. Although I disagree with Souter about Roe, I love the fact that he defied the expectations of the partisans on both sides. I’d love to see another nominee do that. Maybe if that happened often enough, the warring interest groups would go away and leave presidents free to appoint the best justices, regardless of litmus tests. That would be great.

The professor and the pirates

Herb was kind enough to pass on this interesting online exchange with a Davidson College professor about the Somali pirates. The Washington Post ran it on April 10. Two things — two things that have nothing to do with each other, and may even be contradictory — occurred to me while reading it:

  1. First, this is a remarkably intelligent and well-informed exchange. I’m struck by how relatively knowledgeable the questioners are, much less the professor doing the answering. I was impressed. Everyone involved seemed to have heard more about Somalia and pirates than I had.
  2. Second, that aside, the exchange illustrates the limitations of expertise. This was published during the Maersk Alabama drama, while the captain was held hostage in the lifeboat, and before the Seals took out the pirates and saved the captain. The expert, the professor, keeps making the point over and over that military action to save the captain would be futile, that the thing to do is just to play along and pay the ransom. This is a really stark example of the advice we get so often from experts who are just chock full of facts about a situation or a part of the world, who therefore have great credibility when they tell us that trying to DO anything would be useless. And they are so often wrong.

Nullification: Are we going to do it again?

54 Replies

Michael Rodgers over at "Take Down The Flag" is worried that we are, with S.C. House bill 3509, which seeks a concurrent resolution. And you know, you can easily see why he would think that, given such language as this:

Whereas, the South Carolina General Assembly declares that the people
of this State have the sole and exclusive right of governing themselves
as a free, sovereign, and independent State, and shall exercise and
enjoy every power, jurisdiction, and right pertaining thereto, which is
not expressly delegated by them to the United States of America in the
congress assembled; and
…

I found that "sole and exclusive right" bit interesting, with the way it seemed to brush aside the federalist notion of shared sovereignty. That language seems to go beyond the purpose stated in the summary, which is:

TO AFFIRM THE RIGHTS OF ALL STATES INCLUDING SOUTH CAROLINA BASED ON
THE PROVISIONS OF THE NINTH AND TENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION.

The point being, of course, that since we do HAVE the Ninth and 10th amendments, every word of this resolution is superfluous unless it means to negate federal authority in some way not currently set out in law.

And a certain neo-Confederate sensibility is suggested with the very first example of the sort of action on the part of the federal government that would constitute an abridgement of the Constitution under this resolution:

(1)    establishing martial law or a state of emergency within one of
the states comprising the United States of America without the consent
of the legislature of that state;…

As Dave Barry would say, I am not making this up: The bill's sponsors are indeed suggesting that this resolution is needed to declare that we won't let Reconstruction be reinstituted.

Because, you know, that Obama is such a clear and present danger. Or something. I guess.

Of course, not everyone is shocked, appalled or amused at the notion of a new nullification movement. Check out this op-ed piece we recently ran online, about Mark Sanford and nullification.