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October 31, 2005

Jurisprudence 101

Watching the Democrats break out in hives over the nomination of Samuel Alito, Jr. to the United States Supreme Court, I am once again stunned by the sheer amount of ignorance about the role of the judiciary in American society.

Take Alito's dissent in Planned Parenthood v. Casey. I've seen a number of fans of Casey argue over the spousal notification requirements at issue, which is the only part of the decision from which Alito dissented. Most of these arguments revolve around two questions: should a pregnant wife notify her spouse that she's seeking an abortion, and should there be a law mandating that a pregnant wife notify her spouse that she's seeking an abortion. But neither of these is properly the purview of a judge. The former is up to philosophers, ethicists, theologians, and, in the final analysis, individuals. The latter is up to legislatures. Neither of these questions should even be an issue for a judge called upon to rule on the law.

Judges are concerned with finding facts, and determining law, and that's it. And "determining law" means determining what the law is, not what the law oughtta be. In this case, precedent demanded that the circuit judges rule on whether the Pennsylvania law mandating spousal notification imposed an "undue burden" on a woman's right to an abortion. This is a judgment call; the words "undue burden" are supremely vague and reasonable people can disagree on whether or not the burden imposed by spousal notification is "undue".

Or take Alito's dissent in Doe v. Groody et al, which the crowd over at Democratic Underground is having a field day with. Let's look at a few choice comments:

Although the case is technical, what it boils down to is this: Alito approves of cops strip-searching little pre-pubescent 10 year old girls.

Read that again: Alito approves of cops strip-searching little prepubescent 10 year old girls.


Scalito's a creep. When a man thinks like that, you have to wonder what he's done to his own children.


The whole case just makes me shiver. I have daughters that age. Who wouldn't I try to kill, cop or not, if they tried to do that to my babies?

What's more, Scarlito has a teenage daughter. And he'd let the cops do that to HER?


For a ten year old prepubescent girl that's tantamount to a lesbian rape. And to have your Mommy powerlessly forced to watch!

Jesus! You couldn't show that in a Quentin Tarrantino movie w/o an NC 17 rating! Larry Flynt would be banned in Cincinnati if he showed that in Hustler.

But Scalito thinks it's OK.

Let's destroy him with this. He's a sick, perverted rape-enabler.


First of all, whether Alito "approves" of strip-searching 10-year-old girls is not the issue. Should ten-year-old girls ever be strip searched? Whether the answer is affirmative or negative, that was not what Alito was called upon to decide, and it is not what he should have considered. Here's what was at issue:

Police officers and other government officials acting in the course of their official employment enjoy general "qualified immunity" to offenses committed in the pursuance of their duties. This makes the hardest kind of sense. Serving a search warrant, after all, is technically breaking and entering. If a police officer executing a faulty warrant were subject to criminal liability, we'd find a lot fewer people willing to serve as police officers.

This immunity is not absolute, and fails when an officer's actions involve unreasonable violation of clearly established rights. That was the issue in this case: a district court had granted summary judgment that the officers were not entitled to immunity, and Judge Alito dissented from the Third Circuit's affirmation of that judgment.

The officers in question were executing a search warrant. To obtain this warrant, an affidavit was submitted, giving the probable cause for the warrant's issuance, and requesting permission to search the residence of one John Doe. The affidavit seeks, no fewer than three times, a warrant to search "all occupants of the residence." Based on the ensuing warrant, officers searched the residence and Mr. Doe, while enlisting the aid of a female officer to search Mrs. Doe and the young Ms. Doe.

Unfortunately, the warrant to which the affidavit was attached neglected to include the "all occupants" stipulation, listing only Mr. Doe. Under "Date of Violation" and "Probable Cause", the warrant simply read "see affidavit", but under "person and/or premises" it listed only Mr. Doe and his residence.

Warrants are to be construed liberally, under United States v. Vantresca, on the grounds that they are typically drafted in haste by non-lawyers. The question before the Third Circuit in this case was whether the reading given the warrant by the executing officers went beyond the bounds established by Vantresca.

Personally, I don't think it did. The officers clearly acted in good faith and in accordance with what they believed was their authority. The only question is whether their belief was reasonable, and given the contents of the affidavit attached to the warrant and the warrant's clear deference to the affidavit on other matters, I believe it is. But again, this is a matter on which reasonable people can disagree.

But I reemphasize, the question was not whether the search was invalid. The question was whether the officers acted in such an egregious fashion and in such bad faith that they should be subject to criminal prosecution for their searches of the two female Does. One can believe that the officers did not act with such bad faith as to lose their immunity without supporting the searches themselves, and without supporting searches of 10-year-old girls in general. Like Chief Justice Roberts's french fry ruling, this is a case where one's natural feelings of repugnance towards an action should not color one's interpretation of the law.

Judge Alito is no child molestor, despite what the DU crowd would have us believe.

October 31, 2005 in Current Affairs | Permalink | Comments (4) | TrackBack

October 27, 2005


What pleasant news to wake up to.

Get it right next time, Mr. President.

October 27, 2005 in Current Affairs | Permalink | Comments (0) | TrackBack

October 25, 2005

Osama bin Laden was right

How's that for a catchy title?

Nobody is wrong about everything, and Osama bin Laden happens to be correct about a number of things. He is absolutely correct, for example, in his view that Western values pose a threat to his culture. Of course, his culture happens to be one of repression, where all bow before the One True God or face consequences most dire. The Islamists fear that the insidious seepage of Western culture will eventually crack their defenses and cause their regimes of intolerance to crumble, and on this they are one hundred percent right.

It's good that Osama is right about this. It's good that there exists a force on the planet which is a serious danger to the death cult that rages in North Africa and South Asia. But there are other things that Osama is right about, and that's not so good.

For example, it's been widely repeated that Osama formed his impression of American will from the debacle in Somalia. A handful of casualties was all that it took for the mighty United States military to turn tail and flee. This impression was undoubtedly reinforced by the campaign in the Balkans, where the United States (with a meager handful of allies and without United Nations sanction) fought a campaign whose obvious top primary strategic goal was the minimization of civilian casualties. The sole weapons used by the NATO forces were cruise missiles and high-altitude bombers, resulting in higher-than-necessary munitions expenditures, infrastructure damage, and noncombatant causalties, all to avoid placing American soldiers in harm's way. Bin Laden and his allies interpreted this to signify a substantial fear of friendly casualties. Americans, they concluded, had a glass jaw. Strike them hard and they will retreat.

I scoffed. I figured Americans were a lot tougher than he gave us credit for. I was certain that when the chips were down, we'd dig in and hold on tight. But I was wrong, and Osama was right.

Back in August, I was in downtown Seattle, and I was a flyer advertising an International A.N.S.W.E.R. rally to take place in September. The flyer proudly stated that "by then, 2,000 American soldiers will have been killed in Iraq." Oh, how disappointed they must have been when that magic number was not in fact reached in time for their big event. But we've been creeping ever closer to it, and the growing anticipation on the left forms a palpable miasma in the air, a stench of excitement and enthusiasm that feels so vary, very wrong, like people cheering a rape. Now that the fatality rate has reached 1,999, the anticipation has reached a frenzied fever pitch. Only one more body bag, and the party can begin! (Update: since I started writing this article, Staff Sgt. George T. Alexander, Jr, died of wounds sustained from an IED explosion. Rest well, Sgt. Alexander. I imagine that if anybody had told you before you died that your body bag would used as a soapbox for those who oppose your mission you'd have been appalled, but may you rest in peace anyway.)

Thanks to very loud opponents of the war trumpeting the casualties and their allies in the media, a depressingly large proportion of Americans see the war as a disaster. It's not.

Back in March, I demonstrated this with a graph comparing the fatality rate in Iraq with that of other American military conflicts. But alas, the sense of perspective still hasn't developed.

Case in point: Western Washington University Professor Emeritus of Sociology Ed Stephan. Stephan prominently displays the following graph:


Never mind the heapin' helpin' of propaganda included in the graph (with helpful imagemap links)... once upon a time I would have expressed shock that a college professor was ignorant of the fact that a line graph of a single accumulating quantity is pretty much useless for any sort of analysis, but given the state of higher education today and the willingness of academics to eschew scholarship in favor of polemic I can't say that I'm in the least surprised. This graph lacks context. Let's give it some. Here's a cumulative graph of Iraq war fatalities compared to some other causes of death:


(Estimated based on 2000 values from the CDC.)

Well, shoot, that's no good. You can't hardly see the line for Iraq, buried at the bottom as it is. Let's try comparing Iraq to some more esoteric causes of death:


At least there you can see the bar for Iraq, although it's still well below some pretty rare means of casualty. (Data courtesy of the National Safety Council.)

I've said it before and I'll say it again: there do exist reasons to oppose this war, and reasonable people can find these reasons convincing. But the fatality rate is not one of these reasons. In terms of bloodshed, this war has been astonishingly pain-free. If the war deserves opposition, one fatality would be too many... but if the war is not otherwise objectionable the fatality rate is no reason to oppose it. And those who attempt to make it one, like Professor Stephen, are cheapening the sacrifice of America's soldiers by standing on their corpses to make a political point.

And, not incidentally, proving Osama bin Laden's point that Americans have no stomach for conflict and are unwilling to pay any price in blood for any cause, no matter how just.

Update: Welcome viewers from the Watcher of Weasels, and many thanks to whoever nominated this post.

October 25, 2005 in Current Affairs | Permalink | Comments (0) | TrackBack

October 17, 2005

They just don't get it

And neither do I.

So now the Administration is attempting to burnish Harriet Miers's credentials with conservatives by assuring us that she would vote to overturn Roe v. Wade. Setting completely aside both the ethical questionability of providing assurances about how a nominee would vote on a future case and the complete lack of enforceability of such assurances, this shows an astonishing tin ear to real conservative concerns. This looks like the sort of thing a liberal thinks would assuage conservatives, not something a conservative would come up with to reassure another conservative. How could this administration, supposedly chock-full of politically astute schemers, misunderstand conservative concerns so badly?

Of course I want Roe v. Wade overturned. But I don't want it overturned just because I think that abortion is bad. I think that drug abuse is bad, too, but I don't want judges to unilaterally declare them illegal. And I think that government restrictions on who may marry are bad, too, but I don't want judges to toss them out. And I think that contraception is good, but I want Griswold overturned. I want Roe v. Wade overturned because it is bad Constitutional law. There is no basis in the Constitution to overturn state laws restricting abortion, and the Burger court made it up out of whole cloth and Griswold.

I don't want a nominee who will overturn Roe because of personal convictions about abortion. The same judge might well make a bad ruling in a case where her personal convictions do not jive with the Constitution. I want a judge who will overturn Roe because she is principled and she recognizes that the Constitution is mute on abortion, thereby leaving the matter to the states.

Sorry, Mr. President. Assuring me and mine that Harriet Miers will overturn Roe does not reassure us in the slightest. You'll have to do better, if you can, which I doubt.

October 17, 2005 in Current Affairs | Permalink | Comments (0) | TrackBack

October 11, 2005

Responding to Mike

Major Mike, of MOOSEMUSS fame, continues to bang the drum for Harriet Miers. I've been responding to his arguments in his comments section, but then I thought, hey, I want traffic too. So I'll respond to his latest, Quixote Rides Again, right here. Mike makes four main points, which I'll answer in turn:

His first argument is that nominating a moderate might persuade some of the liberals on the bench to retire, convinced that their seats will not be taken over by conservatives. (Mike uses Kennedy and Ginsburg as examples, but I'm pretty sure he meant 85-year-old John Paul Stevens. To the best of my knowledge, Anthony Kennedy is in good health, and more-or-less a moderate to boot.) In the first place, it's interesting that this argument concedes that Miers is a "moderate", contrary to the assurances of many of her supporters that she'll be a conservative loyalist. In the second place, if preserving the seat for an ideological comrade is a priority to these Justices, it's unclear that the prospect of being replaced by a moderate would be more attractive than the prospect of being replaced by a conservative. Or, more precisely, would it be enough more attractive to convince them to retire now rather than wait three years in hopes of a Democratic President? Speaking of which, to the extent that the Miers nomination weakens the GOP, it makes a Democratic President in 2008 more likely, giving the liberals less incentive to retire rather than wait. And finally, retiring Justices do not retire en masse. Suppose Ginsburg, lulled into security by the Miers nomination, retires. The President appoints a conservative attack dog to replace her. What then of Stevens's incentive to retire? The only way to encourage him to retire as well would be to nominate yet another moderate to succeed the first retiree. Before long, we've got a court filled with "moderates", rather than the conservatives we want, need, and deserve.

Mike's second point asks who we trust more: President Bush, or "a million-and-one so-called judicial experts." The problem with that is that those of us who oppose the Miers nomination are not asking you to trust us. We're laying out specific and compelling reasons why Miers should never have been nominated. We do not demand to be taken on faith -- as the President does. I'd take the word of Howard Dean over an ordained Jesuit priest, if Dean gives me reasons to believe him while the Jesuit just says, "trust me."

The third point is a claim that moderate appointees are actually superior to conservative appointees, because the former are less likely to shift leftwards than the latter... an interesting allegation that's unsupported by any evidence. Souter and O'Connor shifted leftwards almost immediately. Earl Warren and William Brennan both revealed their true colors quickly enough for Eisenhower to describe their appointments as the worst mistakes he made. Byron White had been on the Court for ten years when he wrote the dissent in Roe, joined by William Rehnquist, who was still a solid conservative 33 years later when he died. Even if a conservative shifted leftwards more than a moderate, the conservative would have to shift much further to be worse than the moderate. And even if that happened, it would probably be preferable to trade several decades of good solid conservatism for a few end-of-life years of moderation than to endure an entire lifetime of moderation.

Mike's fourth point isn't really a "point" as much as an observation, which I will quote in full:

The attacks that GWB has suffered over the past week are the equivalent of a boxer, returning to his corner between the 5th and 6th round, and getting knocked out by his cut man because the cut man didn’t like the way the fight was going.

Exactly. The cut man works for the boxer. He's the boxer's employee, he has a duty to support the boxer, to do what the boxer needs. I am not George W. Bush's cut man. I don't work for him, he doesn't pay me. Or at least, to the extent that I do work for him (by voting for him, by supporting him, by convincing others to support him, by sending money to GOP candidates), I expect to be paid. My price is the furtherance of my interests. My wages have not been paid, and I may resign because of it.

The attacks that GWB has suffered over the past week are the equivalent of a boxer going out for five rounds and being stupid -- punching the air, failing to block, letting his mind wander, staring at the large-breasted woman in the stands while his opponent delivers a solid uppercut to his jaw. When he returns to his corner, his cut man tells him, "You stop being such an idiot out there, you get your mind in the fight, you block his attacks and attack him in return, or I'm leaving here and finding a worthy boxer to train."

October 11, 2005 in Current Affairs | Permalink | Comments (2) | TrackBack

October 09, 2005

I'm not wild about Harriet

I'm probably one of the only political bloggers who hasn't yet weighed in on Bush's nomination of Harriet Miers to the Supreme Court. Well, better late than never.

No sir, I don't like it.

But the reason I don't like it is not any of the straw men that have been set up by supporters of the nomination. I don't care that she didn't go to an Ivy League school. Those who know me know that I have little respect for America's institutions of higher education (and lower education, for that matter), and I'd support a good nominee even if his degree came from Big Bob's Mail Order School for Law-Talkers.

I don't care that she's never been a judge. The nomination of a non-judge to the bench is certainly not unprecedented. I don't care that she's sixty years old. Better twenty years of a good nominee than forty years of a bad one. I don't care that she's a crony of the President. And I certainly don't care that she's a woman.

Nope. My objection to Miers is that her nomination represents a terrible missed opportunity. The great struggle which will decide the future of the United States is over the extent of government power. It's about freedom versus coercion; the individual versus the collective. It's about whether the Constitution, which plainly protects individual liberty and just as plainly severely restricts federal power, will be read according to its plain meaning or will be given "penumbras" and "emanations" that somehow make it mean its exact opposite. President Bush had an opportunity to decisively swing the Court in the right direction, and as far as I can tell, he muffed it.

Maybe he didn't muff it. But the burden of proof is on him, and on Miers's supporters, and of course on Miers herself, and that burden has not even remotely been met. Many on the right argue that the President deserves the benefit of the doubt; that we should give Miers a chance before we express our disgust. Sorry, but the President forfeited the benefit of the doubt on matters Constitutional when he signed the BCRA into law, and the fact that the Supreme Court upheld this blatant infringement on free speech only highlights the importance of this nomination and why it's insufficient to blindly trust President Bush on the matter.

What makes this especially disenheartening is that, in the field of conservative jurisprudence, we've got some real rockstars. We've got a very deep bench, pun intended. We've got Luttig of the Fourth Circuit, Garza and Jones of the Fifth, and Brown of the D.C. Circuit. We've got plenty more where that came from, but my personal favorite is Judge Alex Kozinski, a rare flower in the dungheap of the Ninth. You have to love a judge who opines while dismissing both a claim and a counterclaim that "the parties are advised to chill", who hides over 200 movie titles in an opinion dealing with an antitrust case against a theater owner, and who writes a dissent so blistering that the winning party moves to dismiss.

Just thinking about the words "Justice Kozinski" makes me weep tears of joy. And that's why I'm disgusted by the President's choice. He could've given us an exclamation point. Instead, he gave us a question mark.

Major Mike of My Sandmen supports Miers's nomination with the military acronym MOOSEMUSS. I've got to be honest, I'd never heard of MOOSEMUSS before Hewitt linked to Mike's post, as I'm sure is true of 99% of those who followed the link. I agree that military strategy often has analogues to political strategy, but I disagree with the application of MOOSEMUSS as Mike lays it out. Let's go through the list:

  • M is for Mass - Concentrate your power where it is most effective. Mike argues that the President should not "expend all of his political capital" on a nomination fight. He overlooks the fact that political capital doesn't accumulate in a bank, and that it must be used or be lost. A successful confirmation fight would increase the President's stock of political capital, not decrease it. On the other hand, caving to the opposing party by deliberately seeking a nominee to whom they won't object -- implicitly conceding that he lacks the power to act against the minority's wishes -- tends to decrease the President's capital by making him look weak.
  • O is for Objective - Direct your efforts towards a clearly defined goal. I couldn't agree more that Objective is a critical element of strategy, and I couldn't disagree more with Mike's definition of the objective. Mike states that the objective is "the ultimate emasculation of the Democrat[ic] Party to the point it is ineffective as an organization." Wrong, wrong, one hundred percent wrong. That is taking one's eyes off the prize. That is losing sight of the objective. Never forget that the Republic will be neither strengthened nor weakened by having people in high office with R's next to their names. Political gain is not the goal, it's merely a means to an end. The Objective is to get quality conservative judges seated on the bench, not to strengthen the Republican Party for the purpose of strengthening the Republicna Party.
  • O is for Offensive - Seize the initiative; be proactive rather than reactive. I don't understand how the Miers pick could be characterized as "offensive"... at least, not in the sense of the word that is meant here. Miers is a defensive pick, pure and simple. One of her primary qualifications is her supposed ability to slip through without a fight. That's not going on the offensive against the enemy, that's conceding to him.
  • S is for Surprise - Strike the enemy where he is unprepared. Well, the Miers pick is certainly a surprise, I'll give it that, but here is an area where the military analogy falls short. The Democrats would certainly be surprised if the President nominated Bill Clinton, too... that does not mean that it would be to his advantage to do so.
  • E is for Economy of Force - Use the minimum power necessary to achieve the goals. The sticking point here is that Economy of Force means expending as little energy as possible -- and not a single erg less. It is no advantage for the President to shy from bringing the big guns to bear if the smaller guns do not achieve the objective.
  • M is for Maneuver - Strike the enemy's weak point. Choosing a nominee who's enthusiastically supported (and, according to some accounts, even recommended) by the enemy's leader is not maneuvering to his weak point. It's granting him victory without even a fight.
  • U is for Unity of Command  - Ensure that everybody works together under the commander. One of the ways to achieve this is to make sure your troops have confidence in their leadership, that they trust their leaders to achieve their goals and direct their efforts to a useful cause. In the context of politics, this means not pissing off your base by thumbing your nose at their concerns. The Miers pick has not achieved Unity of Command, it has sparked the ugliest fragmentation among conservatives that I can recall in my lifetime.
  • S is for Security - Do not give the enemy an unexpected advantage. Bush has done just that by allowing the enemy to choose his nominee for him.
  • S is for Simplicity. Well, if nothing else, I must admit that the Miers nomination shows a great deal of simplicity on the President's part.

Why, Mr. President, why? Did you really not anticipate this ugly reaction by your supporters? The Democrats would have us believe that Karl Rove possesses the most Machiavellian mind since, well, Machievelli... did he fail to anticipate the consequences of this nomination? You had nothing to lose by provoking a confirmation fight by nominating a conservative. If the Democrats folded, you'd get a good judge on the High Court, and you'd look politically unstoppable. If the Democrats fought, you'd get another chance to paint them as obstructionsts blocking the will of the majority, and you'd vastly increase the chance of picking off vulnerable Democrats in North Dakota and Nebraska, and possibly West Virginia as well. I'm sure you're well aware that these Democrats are likely to skate to reelection thanks to stunning recruiting failures, here was your chance to mitigate the damage and you blew it. And best of all, if the Democrats insisted on filibustering your nominee unto death, then you could withdraw him and nominate Miers. Nothing lost.

On the other hand, nominating Miers is a boneheaded move strategically, because it forestalls any prospect of getting one of our conservative superstars for the next nomination. How? Well, when the Democrats filibustered Bush's nominees, they were effectively called obstructionists, and paid a price for it at the polls. Nominating Miers, a nominee that Democrats can support, destroys that tactic. They can obstruct the next nominee without fear, and if anybody calls them obstructionists, here's their counter:

"We're not obstructionists! After all, we let through Roberts and Miers, didn't we? We recognize that nominating Justices is the President's prerogative, and we're happy to consent to their confirmation... even if they've never been judges, they're cronies of the President, and their qualifications are highly questionable. But this new guy is just so far out of the mainstream, that we cannot in good conscience give him a lifetime appointment to the highest court in the land, where he will inflict his extreme views on Americans for generations..."

And so on, and so on. George W. Bush has just pulled the fangs of the "obstructionist" charge and given the Democrats a license to filibuster with impunity. Great strategery there, Mr. President.

The President needs to prove that Miers is among the best of the best possible nominees. He hasn't yet come close. And I for one am wondering what's the point of busting my butt to get a Republican President and 55 Republican Senators if we're not going to get what we most desperately need. And I know I'm not alone.

October 9, 2005 in Current Affairs | Permalink | Comments (2) | TrackBack