Bad idea of the week: blogging during your malpractice trial

Apparently, if you are a pediatrician being sued for malpractice over the death of a 12-year-old patient, blogging about the trial is not the way to go:

It was a Perry Mason moment updated for the Internet age...

Was Lindeman Flea?

Flea, jurors in the case didn't know, was the screen name for a blogger who had written often and at length about a trial remarkably similar to the one that was going on in the courtroom that day.

In his blog, Flea had ridiculed the plaintiff's case and the plaintiff's lawyer. He had revealed the defense strategy. He had accused members of the jury of dozing.

With the jury looking on in puzzlement, Lindeman admitted that he was, in fact, Flea.

The next morning, on May 15, he agreed to pay what members of Boston's tight-knit legal community describe as a substantial settlement -- case closed.

The opposing lawyer was the one to discover that the doctor she was suing was none other than the anonymous Flea:

Elizabeth N. Mulvey, the lawyer who represented Vinroy and Deborah Binns and unmasked Lindeman as Flea, said she laughed when she read a posting at the start of the trial in which Lindeman nicknamed her Carissa Lunt, noticed that she bit her fingernails and mused, "Wonder if she's a pillow biter, too?"

Classy. No wonder the guy couldn't wait to settle. Somehow I don't think that sort of thing would play well with the jury.

On Ledbetter v. Goodyear

In Ledbetter v. Goodyear, the Court reached another 5-4 ruling; another one that would have gone the other way had O'Connor still been on the Court.

I always recommend reading Linda Greenhouse's articles, so here's her explanation.

And here is some commentary that I find rather agreeable.

Down to business. At issue here is how to interpret a statute involving sexual discrimination in the workplace. The statute requires that complaints be filed within 180 days of a given incident. So, if a woman thinks that a male candidate for a job was chosen over her simply because of gender, she has 180 days to file a complaint. Fair enough. But, this case involves pay raises, something that affected women may not know about until well after 180 days.

Some specifics to this case. When hired, Ledbetter's salary was the same as her male counterparts', but over time, she consistently received smaller raises, allowing for a rather drastic gap in pay. Indeed, at the time of the complaint, she was making $3,727 a month, while the lowest-paid man was making $4,286, and the highest-paid man was making $5,236. The discrimination seems undeniable.

However, in order to file a complaint, she would have had to have done so within 180 days of any of the "incidents," or in other words, any of her raises. But she had no reason to believe that her raises were discriminatory. After all, when I received my last raise, I was sworn to secrecy; I assume most companies have very similar policies. So, she had little to no way of knowing that there was even an issue within the given 180 days. Look at it this way; she could find out about blatantly discriminatory practices 181 days after they happened, but according to the Court's (majority opinion authored by the fresh-faced Samuel A. Alito) interpretation of the statute, she would not be allowed to pursue legal action.

Of course, the majority claims that they are simply enforcing legislative intent. They provide a "strict" reading of the statute; 180 days means 180 days. No "legislating from the bench!" But, I have a hard time believing that the legislature that crafted this statute would have meant that Ledbetter would not be able to pursue legal action. Indeed, a strict reading of the words of the statute requires that the Court rule the way it did, but a "strict" reading is not always the best way to find legislative intent. It is likely that no legislators envisioned this sort of a scenario, and thus they did not necessarily intend for this to be the outcome.

Of course, given that this is a case of statutory interpretation (i.e. not Constitutional interpretation), Congress can rephrase the statute and, for all intents and purposes, overrule this ruling. The Court has used this logic many times in the past: if you don't like a law and it doesn't raise any Constitutional questions, take it up with Congress, not us! Fair enough; this same logic has been used to do some great things (to allow for the New Deal, for instance - but they were saying "Congress clearly intends this, you insane judges have to stop coming up with non-existant constitutional concepts to back up your laissez-faire ideologies"), but this is different. This is strict for the sake of being strict (or for the sake of giving women the shaft). The statute is clearly designed to do away with gender discrimination, so the Court is using the statute's words to work contrary to the statute's goals.

Maybe it's just me, but isn't ensuring the statute's goals more important than ensuring a strict reading of the words?

Joshua Marshall on talking to Iran

The much-anticipated meeting between the United States and Iran, their "first high profile, face-to-face talks in nearly three decades," seems to have gone off smoothly in Baghdad today (though it certainly didn't produce any breakthroughs):

The meeting between Ambassador Ryan C. Crocker of the United States and Ambassador Hassan Kazemi Qumi of Iran — held in the offices of Prime Minister Nuri Kamal al-Maliki, in the fortified Green Zone in Baghdad — produced no agreements nor a promise of a follow-up meeting between the two nations, officials said.

But Mr. Crocker told a news conference that the talks “proceeded positively.”

As you may recall, I'm of the opinion that this meeting between the United States and Iran was long overdue:

I wholeheartedly approve this belated move. That isn't to say that I have much faith in the Iranian government; odds are that nothing much will come of this. It's just that if there is any possibility that the Iranians could be convinced/bribed to tone down their activities in Iraq, we should find out. Maybe the price would be too high; maybe they really are totally committed to creating chaos in Iraq. But the only way to know for sure is to talk to them.

So I will give grudging some praise to the administration for finally coming to their senses. Joshua Marshall of Talking Points Memo isn't in such a forgiving mood:

I don't disagree with the diplomatic decision, but it's worth noting that after years of saying talks with Iran would be reckless and irresponsible, the Bush gang is grudgingly accepting the reality that Dems have been pushing for quite a while.

Would it be rude to point out how often this has happened of late? Dems said Bush should talk directly to Syria; Bush said Dems were weak to even suggest it; and Bush eventually came around. Dems said Bush should talk to North Korea and use Clinton's Agreed Framework as a model for negotiations; Bush said this was out of the question; and Bush eventually came around. Dems said Bush should increase the size of the U.S. military; Bush said this was unnecessary; and Bush eventually came around.

And Dems said Bush should engage Iran in direct talks, particularly on Iraq. It took a while, but the president came around on this, too.

For years, all we've heard from the right is that Bush is a bold visionary when it comes to foreign policy, and Dems are weak and clueless. And yet, here we are, watching the White House embrace the Dems' approach on most of the nation's major foreign policy challenges.

Now, if Bush could just bring himself to accept the Democratic line on Iraq, too, we'd really see some progress.

Bush may not be adopting the Democratic line on Iraq, but he is making noises about finally accepting the recommendations of the bi-partisan Iraq Study Group. Given the President's track record of failures and reversals, it's simply astonishing how eagerly the Republican candidates for 2008 have embraced his foreign policy.

Some advice for Mr. Keith Olbermann

Everyone’s favorite sportscaster-turned-troop-hater, Mr. Keith Olbermann, has this to say about the Democrats’ recent face-plant in the tug-of-war game that was the Great Iraq War Funding Debate of Aught-7:

“The Democratic leadership has surrendered to a president—if not the worst president, then easily the most selfish, in our history—who happily blackmails his own people, and uses his own military personnel as hostages to his asinine demand, that the Democrats “give the troops their money”; the Democratic leadership has agreed to finance the deaths of Americans in a war that has only reduced the security of Americans; the Democratic leadership has given Mr. Bush all that he wanted, with the only caveat being, not merely meaningless symbolism about benchmarks for the Iraqi government, but optional meaningless symbolism about benchmarks for the Iraqi government; the Democratic leadership has, in sum, claimed a compromise with the Administration, in which the only things truly compromised, are the trust of the voters, the ethics of the Democrats, and the lives of our brave, and doomed, friends, and family, in Iraq. You, the men and women elected with the simplest of directions—Stop The War—have traded your strength, your bargaining position, and the uniform support of those who elected you… for a handful of magic beans.”

Anyone can see the problem with Olbermann’s assessment: he uses big words. Words like “asinine,” “caveat,” “benchmarks.” The average American feels the same way about big words as he does about illegal aliens: tolerable when they’re working for you, but a serious threat to self-complacency in all other aspects (it is assumed for the purposes of this analogy that the average American is a white male from Texas).

Anywho, about big words. Olbermann will never get his message out to the “common folk” until he concedes that most common folk are idiots. Fortunately, I have a solution for him, one that I may be willing to part with for a significant “finder’s fee”: make complex and potentially boring political issues palatable to John Q. Public by riddling your discussions with pop-culture references. Hell, it worked for Rick Santorum!

“But Sarge,” Mr. Olbermann is no doubt saying, “could you provide an example that will really drive home how truly brilliant your idea is?” And my answer is, “anything for you, Mr. Olbermann.” Here is your condemnation of the Democratic handling of the war funding debate, re-mixed and illustrated with allusions to director Zack Snyder’s phenomenally successful blockbuster, 300.

Herein lies example 1.

Herein lies example 2.

Herein lies example 3.

So as you can see, my idea is awesome. Mr. Olbermann, I accept personal checks and money orders. And cash, so long as it is discretely placed inside my freezer.

Cameras in the Court?

SCOTUSblog has a post giving the basics of the "cameras in the Court" issue (or perhaps I should say "non-issue"). Basically, Senator Specter has introduced a bill multiple times to force the Supreme Court to televise its proceedings. The obvious question is "Why?"

I assume the answer is something along the lines of "it would provide political education to a public that knows next to nothing about its Supreme Court." Now, that diagnosis seems correct (how many people do you know who can name even three of the Justices or name a Court case besides Roe v. Wade, Marbury v. Madison, or Brown v. Board?), but I don't necessarily think it's a problem. Now, I'm not condoning apathy, but in the context of the Court, it's fine. I'm troubled when apathetic people vote based on who's better looking or who has a better name, but the Court has no accountability, so the public at large has no real reason to know much about the Court. After all, C-SPAN exists so we can see government in action; so we can hold them accountable. Even if we see the Court in action and are outraged, there's absolutely nothing we can do about it, so this seems like knowledge for the sake of knowledge.

And that doesn't outweigh the cons. As the SCOTUSblog post points out, televising proceedings would allow for more grandstanding on the part of the attorneys and even on the part of the Justices (okay, maybe just one Justice... Can you imagine Scalia in front of a camera? He'd have a field day). And we always complain about the "sound bite" nature of the media; bringing the Court into is not a good idea. I think it would lead to a grave misunderstanding of the legal issues actually before the Court.

Some of the Justices cite safety concerns. The Court occassionally does some extremely unpopular things; increased exposure means increased risks. Indeed, David Souter is so passionate about this issue that he has said that any cameras entering the Court would have to "roll over my dead body."

There are also some issues of Due Process. This is more true, I think, of jury trials. Extensive (and perhaps slanted) media coverage can "decide" a case before it has even been brought to trial. The argument is that members of a jury will not give an unpopular defendant a fair shake if there is a large camera presence. But, I don't think the Justices would be swayed so easily.

One lawyer suggests that the cameras would actually make the justices behave better. Perhaps Scalia would cut back on the sarcasm. But, I don't buy it for one second. What are the Justices scared of? They're Supreme Court Justices for Christ's sake. Assuming they are even "misbehaving" now (which seems like a stretch), they would not suddenly behave just because some C-SPAN nerds like me are watching over them.

Even if the law does pass eventually (which is doubtful), I imagine the Court would rule that it is unconstitutional for Due Process reasons.

Firing gay Arab linguists

Nowhere is the damage wrought by the military's "Don't Ask, Don't Tell" policy more apparent than in the continued firing of gay Arab linguists. It's good to see some pushback from Congress on the matter:

Seizing on the latest discharges, involving three specialists, members of the House of Representatives wrote the House Armed Services Committee chairman that the continued loss of such "capable, highly skilled Arabic linguists continues to compromise our national security during time of war."

One sailor discharged in the latest incident, former Petty Officer 2nd Class Stephen Benjamin, said his supervisor tried to keep him on the job, urging him to sign a statement denying that he was gay. He said his lawyer advised him not to sign it, because it could be used against him later if other evidence ever surfaced.

The US government has a desperate shortage of Arab linguists. This is not the time to aggressively seek out and fire gay employees with these critical skills. Particularly ironic is that the armed forces of many of our European allies, like Britain, are happy to accept gay soldiers:

Since the British military began allowing homosexuals to serve in the armed forces in 2000, none of its fears — about harassment, discord, blackmail, bullying or an erosion of unit cohesion or military effectiveness — have come to pass, according to the Ministry of Defense, current and former members of the services and academics specializing in the military. The biggest news about the policy, they say, is that there is no news. It has for the most part become a nonissue.

In fact, the integration of gay soldiers has gone so well that the British military has to be careful to be quiet about it to avoid embarrassing us:

Nonetheless, the issue is extremely delicate now. The military does not want to be seen bragging about the success of its policy when the issue can still cause so much anguished debate in the United States.

...

For this article, the Defense Ministry refused to give permission for any member of the forces to be interviewed, either on or off the record. Those who spoke did so before the ministry made its position clear.

“We’re not looking to have quotes taken out of context in a way to imply that we’re trying to influence the debate in the United States,” the British official said. “There are some sensitivities over the timing of this. We have had communications from our counterparts in the United States, and they have asked us questions about how we’ve handled it and how it’s gone on the ground. There does seem to be some debate going on over how long the current policy will be sustainable.”

Maybe the British should be a bit more assertive and make it clear to our government that our policy is deeply flawed. On a more general note, I'm completely unsurprised by the benign presence of gays in the British military. As a Massachussetts native, I witnessed the most sensible people convincing themselves that the sky would fall when gay marriage was permitted. Three years later, the most noticeable thing about gay marriage has been its complete nonimpact on anybody who isn't gay.

Is John Edwards a Hypocrite?

The Republicans would sure like us to believe that; early poll numbers suggest that he would be the most successful Democratic candidate against all of the Republican candidates. People talk about his $400 haircuts and, more recently, his paycheck of $55,000 for speaking at UC Davis. Is this guy, who is running a campaign based on poverty, to be trusted? Or is he just a con artist using the poor as a campaign tool?

Well, I'm sure there is some truth to the latter, because I have a general inclination toward distrusting all politicians. But, his critics seem to ignore the reality of politics. It seems as if they are saying "He is wildly wealthy; he cannot truly care about the poor!" It is as if they are saying he should not be accepting big paychecks, because it necessarily distances him from his own campaign. But, the political reality is that if he wants his campaign to be strong, he has to accept big paychecks. If he were "noble" (I put that in quotes because so many people have an unbelievably skewed perception of what it is to be noble) and denied big pay-outs, his campaign would crumble. Politicians and their campaigns rely on money. Without money, there is no campaign and obviously, there is no victory.

Yes, John Edwards may be out of touch with the poor of America, but he has done the most out of all of the candidates to help the poor. And it's going to take the support an out-of-touch rich white guy to help diminish poverty in America (if that's even possible, that is).

Free Speech? Only if We Approve of It!

I worry about the future of free speech. Liberals continue to fight for flag burning, for instance, to stay legal, but at the same time, they fight for so-called "hate crime" legislation. Take this case, for instance. A girl had been distributing anti-homosexual fliers at her high school aimed at one particular boy "with whom she had been feuding." Stupid? Sure. Immoral? I think so. Illegal?

Apparently.

She is facing a felony hate crime charge, and is being held without bail, as if she is a danger to society. Now, I am against making fun of people because they're gay or a certain color or anything else like that. But, at the same time, I don't think it should be illegal. Certainly, I think the school should punish her in whatever way they see fit (schools are more free to limit the rights of students than is the government), but this should not be a crime.

After all, if I say to an enemy "I hate you. You are a *insert insult here*," I will not be punished by the legal system. But, apparently, if I say "I hate you because you are gay. You are a *insert insulting term for homosexual here*," I can be punished. Doesn't something seem wrong here?

People are free (or should be free) to hate whomever they want for whatever reasons they want, and to express that hatred. I am by no means condoning bigotry in the moral sense. Bigotry is wrong. Homophobia is wrong. But, expressing wrong opinions should never be illegal.

Jeff Jacoby: "Look in the mirror, Jimmy Carter"

Below, Fz has a rather sympathetic take on Jimmy Carter's recent comments about Bush. (Carter said, "I think as far as the adverse impact on the nation around the world, this administration has been the worst in history.") I'm inclined to be more critical. Bush may be the worst president on foreign policy in history, but Carter is right behind him. All his admirable charity work since then (leading the fight against numerous diseases in Africa, for example) doesn't change the fact that he was a failure in office. Check out Jeff Jacoby's harsh indictment of the Carter years in the Boston Globe (free registration required):

If "Pot Calling a Kettle Black" were a category in the Guinness Book of World Records, Carter would be a shoo-in for the upcoming edition. History's ultimate judgment on Bush may not be known for some time, but its verdict on Carter, who vacated the White House 26 years ago, seems clear enough. And that verdict is: Well, let's just say he would be well advised not to toss around phrases such as "worst in history" when the conversation turns to presidential performance.

...

It took Americans only four years to realize what a disaster Carter had been; they booted him out in 1980 by a 44-state landslide. "The worst in history," he says of Bush. Look who's talking.

Carter's poor judgement on foreign policy blunders wasn't limited to his time in office. He was right in opposing the current war in Iraq; but don't forget that, as Christopher Hitchens points out, he was against the first Gulf War as well:

Many people in retrospect think [George H.W. Bush] did a good job in assembling a large multinational coalition, under U.N. auspices, for the emancipation of Kuwait from Iraqi occupation. But Jimmy Carter used his prestige, at that uneasy moment, to make an open appeal to all governments not to join that coalition. He went public to oppose the settled policy of Congress and the declared resolutions of the United Nations and to denounce his own country as the warmonger. And, after all, why not? It was he who had created the conditions for the Gulf crisis in the first place—initially by fawning on the shah of Iran and then, when that option collapsed, by encouraging Saddam Hussein to invade Iran and by "tilting" American policy to his side. If I had done such a thing, I would take very good care to be modest when discussions of Middle Eastern crises came up. But here's the thing about self-righteous, born-again demagogues: Nothing they ever do, or did, can be attributed to anything but the very highest motives.

Where I disagree with Hitchens is on Carter's motives. I think Carter and Bush have much the same problem: their good intentions are attached to certain cluelessness about the way world actually works.

Jimmy Backs Down

As I'm sure you've all heard, Jimmy Carter had some choice words regarding the Bush administration, calling it (at least in relation to foreign policy) the "worst in history," and saying that the administration has overseen a reversal of American values. But, today, he is backing down.

Now, he is claiming that he was simply comparing Bush's foreign policy to that of Richard Nixon and stating that Bush's has been worse, saying he was “certainly was not talking personally about any president.” But, when one compares one thing to another, he says "thing A is worse than thing B," not "thing A is the worst thing in history." Carter knows what he said, and we know what he said.

And, hell, most of us nowadays seem to agree with what he said. So what's the big hub bub?

I understand that ex-presidents should show a certain amount of respect for sitting presidents, but there is a point where freedom of speech should trump token niceties. After all, Jimmy Carter is not the type of person who would simply take jabs at someone for the hell of it. His presidency saw its fair share of difficulties, so I think he would initially be inclined to be sympathetic to a president in trouble. So, in order for him to decide that speaking what was on his mind was more important than playing nice, he must have thought that it was very important to say. And maybe it was. After all, ex-presidents are among the few who truly understand presidential politics.

I refuse to believe that this was simply a spiteful attack or an attempt to regain the limelight that Bush I and Clinton have stolen away in their jaunts around the world. Carter just doesn't seem like that kind of a guy. I think this was a sincere expression of a perfectly reasonable opinion, and I think he should stand by it.

How We Choose Our President

Newt Gingrich has some choice words about the way we Americans choose our president (hat tip to NRO's John Hood):

"We have shrunk our political process to this pathetic dance in which people spend an entire year raising money in order to offer nonanswers, so they can memorize what their consultants and focus groups said would work."
...
"This idea of demeaning the presidency by reducing it to being a game show contest ... is wrong for America, and I would never participate in it."

As much as I love covering the presidential election, I find it is easy at times to get frustrated with the horse-race nature of the process. It's not just the "game-show"-like nature of the debates. It seems that the nominations and the election are decided by more by factors like good looks, likability, and the ability to convincingly spit out thirty-second sound-bites than by qualities like knowledge, competence, and the ability to actually grasp a complicated idea. Are the factors that we use to choose a president distinctly unrelated to the factors that would actually make someone a good president? Or are they the same? I am reminded of a post by Ross Douthat on presidential hopeful Tommy Thompson:

When the Fred Thompson boomlet started up, I batted around an idea for a piece called "The Wrong Thompson," or something like that, all about how Tommy and not Fred ought to be the dark horse candidate for the GOP nomination. After watching the former Wisconsin Governor in two debates, though, it's clear that making the case for Tommy Thompson is rather like making the case that the town meeting and direct democracy ought to take over all the federal government's functions because you get better governance that way; it's an idea that has merit in the abstract, but not in the world we actually inhabit. In an era without television, Tommy Thompson might have been a fine Presidential candidate and as effective a Chief Executive as he was a governor in Wisconsin. But in a world in which a national politician's effectiveness - his ability to rally support for his agenda, in particular - depends on his ability to communicate through mass media, a Thompson Presidency would be an epic disaster.

Have you noticed that almost all female music stars these days are extremely attractive? If you want to be a star, it certainly helps to be a good singer, but that's not a requirement. Being hot is. Looks are more important than talent. In presidential elections, it certainly helps to be qualified, but that's not a requirement. Being likable is. Charisma is more important than talent.

I'd write more, but I've got to go. It's time to put on some Christina Aguilera and read another article about John Edwards' hair cut.

Recent Visitors

Up is down, black is white...

... and Fox News just gave a glowing review to Michael Moore's new film:

Filmmaker Michael Moore's brilliant and uplifting new documentary, "Sicko," deals with the failings of the U.S. healthcare system, both real and perceived. But this time around, the controversial documentarian seems to be letting the subject matter do the talking, and in the process shows a new maturity.

Unlike many of his previous films ("Roger and Me," "Bowling for Columbine," "Fahrenheit 9-11"), "Sicko" works because in this one there are no confrontations. Moore smartly lets very articulate average Americans tell their personal horror stories at the hands of insurance companies. The film never talks down or baits the audience.

This bizarre event (didn't Roger Friedman get the official Fox News memo that Michael Moore hates America?) is even stranger than that story about the Feds trying to seize the film's negative because he took some sick people to Cuba. Speaking of which:

Moore said he made a second master copy of "Sicko" and had it shipped it to France immediately just in case of potential government issues.

Foiled, government agents! You don't stand a chance against such a cunning mind.

Is Bush Really to Blame?

Paul Krugman of The New York Times has an op-ed piece entitled "Don't Blame Bush."(you'll only be able to view the article if you have a Times Select account, which anyone with a .edu e-mail address can obtain for free). He opens with a very un-Krugman-esque line:

I’ve been looking at the race for the Republican presidential nomination, and I’ve come to a disturbing conclusion: maybe we’ve all been too hard on President Bush.

But, he goes on to explain himself. We harp on Bush for doing any number of un-American things: promoting torture, allowing domestic spying, lying about the situation in the Middle East, etc. And this is true: Bush does these things. But it isn't simply Bush. It is the New Republican Party, or the "movement conservatives," if you will. Bush is not simply a freak of nature. This is the kind of leadership we can expect from any modern Republican president.

The leading contenders for the Republican nomination have given us little reason to believe they would behave differently. Why should they? The principles Mr. Bush has betrayed are principles today’s G.O.P., dominated by movement conservatives, no longer honors.

Krugman goes on to point out that the only Republican candidate to speak out against torture was John McCain (our old pal Mitt apparently said "My view is, we ought to double Guantánamo."), but even he was far enough disconnected from reality to claim that there are areas of Baghdad where one can "walk freely."

What we need to realize is that the infamous “Bush bubble,” the administration’s no-reality zone, extends a long way beyond the White House. Millions of Americans believe that patriotic torturers are keeping us safe, that there’s a vast Islamic axis of evil, that victory in Iraq is just around the corner, that Bush appointees are doing a heckuva job — and that news reports contradicting these beliefs reflect liberal media bias.

Except for Ron Paul, I have yet to see any of the 2008 Republicans distinguish themselves in any important way from President Bush and the "movement conservatives." And that means one thing:

The Republican nomination will go either to someone who shares these beliefs, and would therefore run the country the same way Mr. Bush has, or to a very, very good liar.

The Post-2008 Court

Tom Goldstein has an interesting post over at SCOTUSblog about the importance of the 2008 election in determining the future of the Supreme Court. The three most likely to retire justices (according to Goldstein) are Stevens, Souter, and Ginsburg. Stevens is just too old to keep going past the 2012 election, Souter is a fiercely private person and seems to hate the Washington DC lifestyle, and Ginsburg is rumored to have health problems (but there is no hard evidence to back that up).

So, the next president will in all likelihood replace at least two of the liberal justices. If a Republican gets this opportunity, the Court will move a staggering amount to the right. There would be a conservative bloc of Scalia, Thomas, Roberts, Alito, and these two (and, of course, Kennedy somewhere in the "middle"). All sorts of Warren Court era decisions could be in jeopardy.

Unfortunately for us liberals, it doesn't seem that a Democratic victory in 2008 would allow for any significant shift to the left. A Democratic president would "play defense," so to speak, replacing liberals with liberals. Of course, most modern presidents win reelection, so if s/he does get reelected in 2012, s/he might get the chance to replace a conservative. But, none of them are really that old. Scalia and Kennedy will only be 76 in 2012, which isn't that old for Supreme Court Justices. Thomas will be 64, Alito will be 62, and Roberts will be 57.

Of course, the Democrats are likely to maintain control of the Senate after 2008, so a Republican president would not be able to get an ultra-conservative through, but even a moderate conservative could do considerable damage to "liberal" precedents.

Just one more reason to vote Democrat in 2008.

Feds try to seize new Michael Moore film

A bizarre story in the Guardian about Michael Moore's upcoming film, "Sicko":

The film has already caused Moore - who won the Palme d'Or at Cannes in 2004 with Fahrenheit 911 - to clash with the American authorities. Now, according to movie mogul Harvey Weinstein, whose Weinstein Company is behind the film, the US government is attempting to impound the negative.

According to Weinstein, the US Treasury's moves meant "we had to fly the movie to another country"- he would not say to where. "Let the secret service find that out - though this is the same country that thought there were weapons of mass destruction, so they'll never find it." He added that he feared that if the film were impounded, there might be attempts to cut some footage, in particular the last 20 minutes, which related to a trip to Cuba. This, said Weinstein, "would not be good."

In March, Moore travelled to the Caribbean island with a group of emergency workers from New York's Ground Zero to see whether they would receive better care under the Castro regime than they had under George Bush. He had applied for permission to travel in October 2006 and received no reply.

Can this really happen these days? There's just a single negative that the US authorities would be able to edit? I understand the desire to preserve the original, but couldn't they just have made a bunch of copies? Clearly, I don't know anything about filmmaking.

On the Falwell Legacy

Most people would probably suggest that Jerry Falwell's legacy would involve making America more aware of the fundamentalist sect of Christianity and bringing aspects of that belief system into American politics.

While that is probably true, I think there is more to consider. Falwell's legacy, in terms of longevity, involves directing American politics toward the middle - where it belongs. In the short term (1980's - now), American politics has seen more "Christian values" (I put it in quotes because to suggest that Falwell and Co. represent Christian values is laughable). There's no denying that. But, I think his power over the Republican party has caused "average" Americans to feel abandoned by the Republican party. Or, as Larry Sabato put it:

Falwell and his fellow fundamentalist preachers have given the national Republican Party too conservative a cast on many social issues. Some Red states are turning "Purple" because of it.

Virginia, for example, is now a "purple" state. The conventional wisdom tells us that the Washington, DC suburbs in Northern Virginia are growing, bringing in more liberal voters. I don't doubt the truth of that, but I think this explanation ignores that the Republican party is turning even farther to the right. So, perhaps the states aren't changing; perhaps the Republican party is changing.

Or both.

But, anyway, I predict a Democratic victory in the 2008 presidential election and small Democratic growths in the Senate and the House. Certainly, the war in Iraq can explain these probable victories, but I don't think we should ignore the influence of Falwell.

Indeed, Falwell and Co., by turning the Republican party too far to the right, will allow Democratic victories in 2008 and years to come. Until the Republican Party reorients itself toward the middle (or the Democratic party steers too far to the left, which it is bound to do), I predict a Democrat-controlled government. Despite what conservatives like to say, Americans are a moderate bunch. So, when either party veers too far off the moderate course, they get punished.

So, thanks Jerry!

On the Immigration Compromise

Congress has reached a compromise on a bipartisan immigration bill. From the NY Times:

Senate negotiators from both parties announced Thursday that they had reached agreement on a comprehensive immigration bill that would offer legal status to most of the nation’s 12 million illegal immigrants while also toughening border security.

If the bill becomes law, it would result in the biggest changes in immigration law and policy in more than 20 years. That would provide President Bush with a political lift and a tangible accomplishment for his second term. It would also be a legislative achievement for the new Democratic leaders in Congress, though they said they would seek changes in the measure.

At the heart of the bill is a significant political trade-off. Democrats got a legalization program, which they have sought for many years. Republicans got a new “merit-based system of immigration,” intended to make the United States more competitive in a global economy.

First, let me say that there are many good aspects to this bill, like the legalization program, the increased border enforcement, and the "merit-based" system (favoring English-speakers with needed job skills.) It also, however, contains a provision that is guaranteed to fail spectacularly:

The bill includes a temporary-worker program, under which 400,000 to 600,000 foreign workers could be admitted to the country each year.

Guest-worker programs have been a failure in Europe over the past thirty years. Germany is the most prominent example. The idea behind such programs, the "buffer theory" of immigration, is that workers can be imported in times of labor shortage and exported in times of labor surplus. The problem: it simply doesn't work. Guest workers put down roots in the country and work illegally, while their "guest" status discourages them from integrating socially. Representative Xavier is precisely correct when he predicts that the guest worker program will create “a permanent underclass of imported workers to fill American jobs.”

Bush has been pushing this for a long time:

As the governor of Texas, Mr. Bush had seen firsthand the challenges of border security and the lengths to which impoverished Mexicans were willing to go to enter this country illegally. What he depicted as “a rational immigration system” — one that would offer a temporary-worker program and a way for those who have set up working lives here illegally to become citizens — was a major part of his “compassionate conservative” agenda.

A guest-worker system requires immigrants to work in America and then return home, while a legalization program provides a gigantic incentive for workers to remain in the country illegally. Isn't it obvious that the two main parts of such a "rational" system are at odds?

Liberals: unduly pessimistic about racism and Obama?

I was just reading Fz's excellent post on Obama when something jumped out at me. He says:

But, there is something else to think about. As the article points out, 90% of Americans say they would be "completely comfortable voting for a qualified presidential candidate who was black;" however, only 55% of Americans say that "Americans are ready to elect an African American or black as president." 35% say no. So, that means that at least 25% of people are comfortable with voting for a black candidate, but do not think that Americans are ready. Odd.

But, even with this mystery, I don't think Obama's race will effect him. The 35% of people who say America isn't ready are almost certainly Republicans anyway, so I don't think there's much to worry about.

I'm not so sure that the people who believe this are Republicans. One thing I have noticed is that many of my Democratic friends really like Obama, but are quick to point out that they don't believe a black man can be elected president. (They are all unable to back it up with polls or any form of evidence; they simply have a gut feeling that America is too racist for it to happen.) I've yet to hear a Republican say anything of the sort.

Obviously, a few anecdotes don't prove anything, but I think this attitude might help us understand the seeming inconsistency of the poll above. How can 90% of American be ready to vote for an African-American but only 55% think that he could win? Well, perhaps many of them, liberals in particular, are unduly pessimistic about the racism of the average American at the polling booth. I, for one, am convinced that if Obama loses, it will be his inexperience, not his ethnicity, that is his downfall.

Has Joe Gone Too Far?

ABC News' Jake Trapper has a post over at Political Punch that makes me question my fondness for Senator Joe Lieberman. Apparently...

Last month Sen. Joe Lieberman -- the Independent Democrat from Connecticut who just seven years ago was the Democratic Party's nominee for vice president -- endorsed for re-election Sen. Susan Collins, R-Maine. His leadership PAC even gave her campaign committee $5,000. Next month, as first reported by the Washington Post, Lieberman will co-host with Sen. Arlen Specter, R-Penn., a Capitol Hill fundraiser for Collins.

When Joe got elected, he made it clear that he would still consider himself a Democrat even though he was elected as an Independent. We've seen him side with Republicans on a few issues (most notably the War in Iraq), and I was fine with that. I think a "rank and file" Senate is a terrible thing for American politics. But, this has gone too far. This is not the action of a "moderate Democrat," which I sincerely thought Joe was. This is the action of a Republican. Even if you switch sides on certain issues, you still support your team during election season. Perhaps this is because many Democrats supported Ned Lamont in Joe's Senate race, while some Republicans (most notably in the context of this post: Susan Collins) supported Joe. Perhaps he feels like he has been wronged by the Democrats. And perhaps he has. But, Susan Collins didn't do anything that deserves to be paid back. The only real options in that Senate race were Joe and Liberal Lamont. Of course she supported him. The options in this upcoming Senate race are a Republican and a Democrat. Collins is one of the more vulnerable incumbents. The Democrats could strengthen their majority, but Joe is supporting her anyway. I suppose this could also come back to the war issue. Collins, like Lieberman is pro-war. Presumably, her opponent will campaign on an anti-Iraq war platform. So, it makes sense that Joe would support other war supporters. But, as long as he claims to be a Democrat, I think he should support his party, even if they didn't support him.

Oddly enough, I would be praising him if he just embraced the term "independent." I'm always going on about how we need a legitimate Independent party, and I think Joe would be the ideal person for such a party. But, he still claims to be a Democrat. And, as this point, I just don't see why.

Anthony Kennedy: The Not-So-Swing Vote

After Sandra Day O'Connor retired from the Court, we heard a lot of talk about how Associate Justice Anthony Kennedy would take her place as the Court's "swing vote." Certainly, there is some truth to that. He is the closest thing the Court has to a swing vote by far, but he is no O'Connor.

Jan Crawford Greenburg has a good post over at Legalities explaining Kennedy's role on the Court. She points out that Kennedy has been in the majority of every 5-4 decision this term, which would seem to give him great power, and which has led some people to call this "The Kennedy Court." But, JCG views it differently (and I agree). She says, "It's the Roberts Court v. the Stevens Court." And ultimately, it comes down to being just "the Roberts Court."

This is a Supreme Court engaged in a fierce battle of ideas, a big-picture struggle over the role of the Court and the direction it’s going to take. When you talk about long-range influence over the law, it’s the ideas that define the Court. It’s a Court in struggle—not for the vote of one justice, but for an intellectual mooring.

Now, one might say, "don't you need the vote of that one justice in order for your ideology to win out?" Well, yes, but the point is this:

Kennedy is not O’Connor. Kennedy doesn’t instinctively seek the middle or try to provide balance. He is perfectly willing to vote with conservatives nine times in a row—then vote with them a tenth—if that’s how he sees the case. He wants to be consistent. And when he decides on his position, he’s pretty comfortable there. Unlike O’Connor, he isn’t cautious. He doesn’t try to hold back the majority with a split-the-difference approach.

Kennedy also happens to be more comfortable with the conservative position than O’Connor ever was. In the battle for Kennedy, liberals are going to lose a lot more than they win.

Look at Gonzales v. Carhart. That decision makes clear Kennedy’s vote is not going to be up in the air nearly as often as O’Connor’s.

The Rehnquist Court (which many, rightfully so, dubbed "The O'Connor Court") was (at least in its later days) a battle for one vote. O'Connor shaped the Rehnquist Court perhaps more than any other Justice. But, that is not true of Kennedy. He is a pretty reliable conservative, so attorneys are not arguing their cases trying simply to persuade Kennedy as they did with O'Connor. He is not nearly as open-minded as O'Connor, which is not necessarily a bad thing, when we think in terms of consistency of the law.

But Roberts has not necessarily won the battle simply by getting Kennedy on his side most of the time. In another post, JCG describes Kennedy's judicial style:

He can seem infuriatingly unmoored. He agonizes over his decisions. He’s been known to change his mind in a case or two. And his writing style is about as grand as his ornately decorated chambers in the Court.

However, Roberts is well known for wanting to decide cases as narrowly as possible and creating a sense of "predictability" in the law. Thus, a complete "victory" for Roberts would require changing Kennedy's style.

If [Roberts] could persuade the Court to write more narrowly, it would minimize Kennedy’s role. That would make the Court’s jurisprudence more coherent and clear, with better direction and guidance for lower courts and litigants.

That would be the Roberts Court.

So, perhaps it isn't the "Roberts Court" quite yet, but it certainly isn't the "Kennedy Court."

On Obama's Race

People have been wondering for quite a few months now whether Barack Obama's race would play a role in the 2008 election. Janet Elder over at The New York Times has an article discussing this topic (or at least one aspect of it). In relatively recent history, there has been a phenomenon which allows black candidates to poll better than they actually perform in the election. It has been hypothesized that white voters like to think that they are comfortable voting for black candidates, but come election day, they cannot overcome their reservations. So, will this happen to Obama?

I don't think so. In a very recent example, Harold Ford, Jr. (a black Senate candidate from Tennessee) actually performed slightly better in the election than he did in the polls. There might be two explanations for why the phenomenon didn't happen. First, perhaps Americans are getting less racist. Compared to the 1950s, I would say this is generally true. However, I think another reason explains it better, which may, in a way, be linked to the first. I don't think Ford was viewed as (and I don't think Obama will be viewed as) a "black candidate," but rather "a candidate who happens to be black." Now, perhaps that subtle distinction is only made because Americans are less racist, but it's important. After all, Jesse Jackson or Al Sharpton would be viewed as "black candidates" and they would lose for that reason.

So, when a black candidate can be viewed as "a candidate who happens to be black," I don't think there will be much of an effect. After all, the only people who would completely rule out voting for the latter would be complete racists, and they would not be compelled to seem more open-minded when questioned by pollsters. So, nowadays, I don't think this phenomenon applies to so-called "candidates who happen to be black."

But, there is something else to think about. As the article points out, 90% of Americans say they would be "completely comfortable voting for a qualified presidential candidate who was black;" however, only 55% of Americans say that "Americans are ready to elect an African American or black as president." 35% say no. So, that means that at least 25% of people are comfortable with voting for a black candidate, but do not think that Americans are ready. Odd.

But, even with this mystery, I don't think Obama's race will effect him. The 35% of people who say America isn't ready are almost certainly Republicans anyway, so I don't think there's much to worry about.

Oddly enough, black people are tending to support Clinton more than Obama. He is not "a black man's black man," at least not in the way someone like Al Sharpton is. He is a black man who can draw a very broad base of support, because he does not campaign based on his race or based on racial policies.

Bombing Iran: A Truly Bad Idea

In this article in Commentary, Norman Podhoretz does his best to make the truly bad idea of bombing Iran sound like America's only option. Diplomacy, he says, is useless:

... for three-and-a-half years, even pre-dating the accession of Ahmadinejad to the presidency, the diplomatic gavotte has been danced with Iran, in negotiations whose carrot-and-stick details no one can remember—not even, I suspect, the parties involved. But since, to say it again, Ahmadinejad is a revolutionary with unlimited aims and not a statesman with whom we can “do business,” all this negotiating has had the same result as Munich had with Hitler. That is, it has bought the Iranians more time in which they have moved closer and closer to developing nuclear weapons.

Ahmadinejad is the new Hitler, says Podhoretz:

Like Hitler, he is a revolutionary whose objective is to overturn the going international system and to replace it in the fullness of time with a new order dominated by Iran and ruled by the religio-political culture of Islamofascism. Like Hitler, too, he is entirely open about his intentions, although—again like Hitler—he sometimes pretends that he wants nothing more than his country’s just due. In the case of Hitler in 1938, this pretense took the form of claiming that no further demands would be made if sovereignty over the Sudetenland were transferred from Czechoslovakia to Germany. In the case of Ahmadinejad, the pretense takes the form of claiming that Iran is building nuclear facilities only for peaceful purposes and not for the production of bombs.

If no action is taken, he predicts, the result will be a West cowed by Iran, helpless in the face of the Islamization of Europe, and, possibly, the obliteration of Israel. The runaway train of Islamofascism is bearing down on Israel, Europe, and America, and only some very large bombs can stop it. Don't look for help from the Europeans; they are unwilling to lift a finger to stop the Iranian president. Unlike, perhaps, a certain heroic president:

George W. Bush, a man who knows evil when he sees it and who has demonstrated an unfailingly courageous willingness to endure vilification and contumely in setting his face against it. It now remains to be seen whether this President, battered more mercilessly and with less justification than any other in living memory, and weakened politically by the enemies of his policy in the Middle East in general and Iraq in particular, will find it possible to take the only action that can stop Iran from following through on its evil intentions both toward us and toward Israel.

Read the whole article. I disagree completely with it, of course. Podhoretz's comparison of Ahmadinejad to Hitler is absurd. Yes, Ahmadinejad is a nasty piece of work too, but Hitler was an absolute dictator who led a rising, powerful Germany. Ahmadinejad, on the other hand, is the president but not the supreme leader of Iran, and he is constrained by many other political actors. The Iranian economy is slowly collapsing as a result of his failed economic policies, he's increasingly unpopular, and his party suffered big losses in the last round of elections. About the only he has going for him right now is the nuclear issue, which the Iranians see as a matter of national pride. From his viewpoint, what could be better than an American attack on Iranian nuclear facilities? Not only would it rally people to the flag, but it probably couldn't do more than set back production a few years anyway.

Compared to the constant threat of complete nuclear annihilation the US faced during the Cold War, the possibility of Ahmadinejad developing a few nukes down the road is quite a bit less frightening. Obviously we must do whatever we can to prevent it, but there's simply no excuse for a great power like America to panic and make the wrong move in this situation. A preventive strike against Iran would cause Iraq to explode into chaos, destroy our image in the word, shoot the price of oil through the roof, and lose us the greatest allies we have against the mullahs, the people of Iran, some of the most pro-American on earth. Let time, sanctions, and Ahmadinejad's poor economic policies do their work.

Flynt On Falwell

Larry Flynt on Jerry Falwell:

The Reverend Jerry Falwell and I were arch enemies for fifteen years. We became involved in a lawsuit concerning First Amendment rights and Hustler magazine. Without question, this was my most important battle – the l988 Hustler Magazine, Inc., v. Jerry Falwell case, where after millions of dollars and much deliberation, the Supreme Court unanimously ruled in my favor.

My mother always told me that no matter how much you dislike a person, when you meet them face to face you will find characteristics about them that you like. Jerry Falwell was a perfect example of that. I hated everything he stood for, but after meeting him in person, years after the trial, Jerry Falwell and I became good friends. He would visit me in California and we would debate together on college campuses. I always appreciated his sincerity even though I knew what he was selling and he knew what I was selling.

Falwell Falls Ill (and Dies)

No doubt you have all heard of the death of the Reverend Jerry Falwell. Indeed, regardless of whether or not we agree with his political philosophy, we must now put aside our differences and bow our heads in memory of this uniquely American figure and pray – yes, pray – for his soul. Please recite along with me:

Oh Vishnu, Lord of All, Creator and Destroyer –

We humbly ask that you guide the departed soul of our friend Reverend Falwell into the afterlife. We know that, in his lifetime, Rev. Falwell did not believe in you, regarding you at best as a superstition of the unenlightened and at worst a tool of Satan. We know also that Rev. Falwell’s relentless pursuit of religious social policies has done more to militarize the divide between liberal and conservative in this country than almost any other individual since the Vietnam War.

And Vishnu, Endless, Eternal, Infinite –

We know that Rev. Falwell was guilty of hypocrisy of morbid proportions (one need only look at his dealings with Sun Myung Moon’s Unification Church to realize that) and that the absurdity of his political posturing lead many to question if was employing tongue-in-cheek humor (see the Tinky Winky the Teletubby debacle), but please know, O Lord Vishnu, that during the entirety of his life he was as oblivious as a newborn. He truly believed that gays, feminists, and other “Christ-haters” were responsible for bringing God’s wrath down upon America on September 11th, just as he truly believed that his lawsuit against Hustler stood more than just the proverbial snowball’s chance in hell.

Speaking of hell, O Shelter of the World, we entreat you, on bended knee, to ask Lord Yama for lenience when casting Falwell’s soul into Naraka. We ask that he be subject only to those tortures which fit the nature of his transgressions, such as can be found in Dante’s Inferno, where hypocrites are forced to aimlessly wander about under gilded lead cloaks, feeling with horrific clarity every drop of sweat the falls from their brow, every tired bone growing weak and snapping. And when, in your wisdom, you have deemed that Falwell’s soul has been punished enough, we ask that he be reincarnated as a homosexual female, living in Greenwich Village, who is HIV positive.

Narayana! Jaya! OM!

The other side of Landrigan

In order to be fair, I want to present the opposing argument to my opinion of the Landrigan case. Over at "Crime and Consequences" (a blog sponsored by the conservative Criminal Justice Legal Foundation, which describes itself as "an organization advocating reduced rights for accused and convicted criminals"), they have a post arguing in favor of the Court's decision. The argument is basically that the District Court was correct to defer to the state trial court's factual finding that defendant waived all mitigating evidence. Or, to put it differently:

It follows that if the record refutes the applicant’s factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing.

So, "the record" (i.e. defendant's remarks such as "bring it on" regarding the death penalty and his refusal to allow mitigating evidence) disproves defendant's claim that his attorney was incompetent. However, the mitigating evidence that defendant waived was only the testimony of his mother and ex-wife. To suggest that he waived all mitigating evidence is flawed logic. He was not aware of his mental condition; he could not have waived evidence that he had no knowledge of. But, of course, opponents will argue against the mental illness defense anyway:

It is disappointing that the dissent got four votes in this case. Apparently, four Justices were actually impressed with Landrigan's far-fetched psychological argument. There are enough psychologists and psychiatrists in America who are viscerally opposed to the death penalty that it is likely every inmate on death row can find one who will swear he has some kind of serious mental problem. If that were enough to brush aside all the limits Congress has placed on relitigation, then it would never be possible to have an effective death penalty. That is, of course, exactly what the opponents want.

The dissent in this case does not suggest that the dissenting justices are "impressed" by Landrigan's argument. It simply suggests that they think the argument deserves to be considered in court. Yes, I think the dissent does ultimately represent an opposition to the death penalty more broadly, but it also represents a desire to see all relevant evidence presented before a court of law. It is possible that such mitigating evidence could have affected the sentencing, and I think that shows that it deserves to be considered.

More on Landrigan

Please read Linda Greenhouse's article about the Shriro v. Landrigan decision over at the Times. She is excellent. I want her job.

Anyway, after reading that, I was reminded of something I left out of my last post: the Alito factor. This case probably would not have gone the way it did if O'Connor was still on the Court. Indeed, a case a few years ago entitled Rompilla v. Beard had O'Connor siding with the liberals in a very similar case involving the constitutional right of death-row inmates to be represented by competent attorneys. Interestingly enough, Alito, in his capacity as an appeals court judge at the time, actually wrote the opinion that O'Connor helped to reverse in Rompilla. So, it seems that the Court is shifting noticably to the right thanks to Alito.

On Schriro v. Landrigan

Ah, another 5-4 decision.

Schriro v. Landrigan explores an interesting question. It has been established by Supreme Court precedent that defendants sentenced to death are entitled to an appeal if they can sufficiently prove that their attorney did not defend them properly. However, in this case, the defendant refused to allow his attorney to present mitigating information (in this case, testimony from his mother and his ex-wife) and even challenged the court to "bring on" the death penalty. However, after learning about a long-standing mental illness that his attorney did not discover, the defendant sought an evidentiary hearing claiming that he was improperly represented by his attorney. The District Court Judge refused to grant a hearing, based on the defendant's actions at trial. However, the Court of Appeals reversed, arguing that the attorney did not investigate at a constitutionally sufficient level (the attorney did not uncover or present evidence of the aforementioned psychological illness that could help explain defendant's actions). The Supreme Court reverses, arguing that even if the attorney had uncovered evidence of this illness, defendant would have refused to allow such evidence to be presented. As one might expect, the Court divided along ideological lines, with Thomas writing the majority opinion and joined by Roberts, Scalia, Kennedy, and Alito and with Stevens writing the minority opinion and joined by Souter, Ginsburg, and Breyer.

At first reading, I sided with the majority, but upon deeper reflection, I return to my liberal roots and side with the minority. I think this ruling harms the administration of justice. The fact of the matter is that this defendant wants to present new evidence that his attorney was too incompetent to uncover. Even the majority admits that the attorney was incompetent to not find evidence of mental illness. But, the majority bases its opinion on hypotheticals: the defendant "would have" refused to allow such evidence to be presented. We can't know that for sure, and after all, it seems like the defendant explicitly wants such information to be presented. If the defendant had been confronted with the fact that he had suffered from a mental illness, he may very well have been willing to allow such information to be presented at trial. Or maybe not. But the point is that we can't know for sure. And the Supreme Court shouldn't be basing opinions on "maybes."

If the only mitigating evidence had been the testimony of defendant's mother and ex-wife (the evidence that he explicitly refused to have presented), I would agree with the ruling entirely. However, there was other (perhaps more persuasive) mitigating evidence that the attorney did not uncover. Such a failure of investigation would not stand up to the scrutiny of Supreme Court precedent. The attorney clearly did a constitutionally insufficient job here. But, the Supreme Court is basically saying "That's okay, because the defendant let him get away with it, even though he didn't know the extent of his attorney's incompetence."

The fact of the matter is this: the defendant never said that the attorney should not present evidence of mental illness (indeed, neither the attorney nor the defendant knew about it at the time), and the Supreme Court is acting out of line to play the role of psychic, predicting what defendant would have done. It seems blatantly obvious that the defendant does want such information presented, and I think he is entitled to an evidentiary hearing to investigate the incompetence of his attorney. Really, I think this decision just represents a fundamental split over the death penalty more broadly. The majority wants it to be easier to administer, and the minority wants it to be harder to administer. Me? I'm all for the death penalty, but not when there is evidence left unexplored. This evidence deserves to see the light of day, and this attorney's incompetence should be exposed.

Hagel "Not Happy" with the Republican Party

The Times has a brief but interesting article about Senator Chuck Hagel's feelings about his own party. He said that the party has “been hijacked by a group of single-minded, almost isolationist insulationists, power-projectors.” He went on to say, "“I am not happy with the Republican Party today. It has drifted from the party of Eisenhower, of Goldwater, of Reagan, the party that I joined. It isn’t the same party.” Interestingly, he said that a "credible third-party candidate" running for president would benefit the United States. He has been considering a run for president for a while now, so this adds an interesting wrinkle. If he does decide to run, will it be as a Republican or an Independent? I couldn't imagine he would run as a Republican. Insulting your own party is no way to win a primary election. An independent run by Hagel (a Hagel-Bloomberg ticket, perhaps?) would make for an interesting election. Like Hagel said, “The system needs to be shaken up.”

A Thought Experiment, Part III (the Parties of the Right)

(In this thought experiment, I am imagining what the American political landscape would look like if America had some form of proportional representation, allowing third parties to flourish. Click here for a full explanation; click here for the parties of the left.)

Here are the parties of the right. The old fault line between libertarians and social conservatives will finally crack. The libertarians will flourish in their own party, while the social conservatives will divide themselves into economic liberals (concerned with the environment and poverty as well as abortion) and Christianists obsessed with "family values" issues. A strong anti-immigration party could surprise the political establishment. Meanwhile, country-club Republicans will be relieved to be rid of the more embarrassing elements of the old Republican coalition.

THE RIGHT:

Libertarian

Archetypical members: Ron Paul, Milton Friedman.

Base of support: Middle-to-upper-middle-class, college-educated voters. Strongest in the Mountain West and New Hampshire.

Policies: Libertarian (laissez-faire economics combined with social liberalism.)
Comments: The libertarian party, while popular among the educated classes, would probably have a vote ceiling of 10-15%, due to controversial policies like the flat tax and the legalization of marijuana. Would hope to prove wrong the old adage that “there are no poor libertarians.”

Grand Old Party

Archetypical members: Rudy Giuliani, John McCain.

Base of Support: Country-club Republicans, pro-war voters.

Policies: Hawkish, pro-business, socially moderate.

Comments: Intriguing possibility of coalition with New Democrats, if differences in foreign policy could be resolved.

America First

Archetypical members: Pat Buchanan, Tom Tancredo.

Base of support: Talk-radio listeners, subscribers to The American Conservative.

Policies: Anti-immigrant.

Comments: Shunned by other parties on the right, could shock the political establishment with a National Front-style electoral surge.

Compassionate Conservatives

Archetypical member: David Kuo.

Base of Support: Christian suburban and exurban voters.

Policies: Socially conservative, environmentalist, redistributionist, anti-abortion.

Comments: Economically liberal, socially conservative voters find their home. Strong supporters of faith-based initiatives. Could work with Greens and Social Democrats on a variety of issues.

New Moral Majority

Archetypical member: Pat Robertson.

Base of support: Southern, exurban Christian voters.

Policies: Socially conservative, paternalistic. Anti-gay rights, anti-abortion, anti-evolution, anti-birth control.

Comments: The party of "family values."

US, Iran to talk about Iraq

From the Boston Globe:

The White House announced yesterday that the US ambassador in Baghdad would meet with Iranian officials about stabilizing Iraq, probably in the next several weeks, as the administration embraced a tactic outsiders have long recommended as essential to reducing sectarian violence in Iraq.

This is a huge shift in policy for the administration. It looks like desperation is forcing Bush to do what he despises: negotiate with an unpleasant regime. Note the inevitable neoconservative complaint:

A prominent supporter of the Iraq war, however, blasted the Bush administration's decision to hold talks with Iran, saying it will be seen in the Mideast as a sign of US weakness. "I think it's foolish to believe that Iran sees its interests as compatible with American interests in Iraq," said Richard Perle, a fellow at the American Enterprise Institute, a conservative-oriented think tank. "I don't think they are interested in stability. Iran has been contributing to instability. That is a deliberate policy and I don't expect it to change. So it's not clear what we hope to achieve."

You know what else is seen as a sign of American weakness? Losing the war in Iraq. I wholeheartedly approve this belated move. That isn't to say that I have much faith in the Iranian government; odds are that nothing much will come of this. It's just that if there is any possibility that the Iranians could be convinced/bribed to tone down their activities in Iraq, we should find out. Maybe the price would be too high; maybe they really are totally committed to creating chaos in Iraq. But the only way to know for sure is to talk to them.

The Forgotten '08 Elections

Above, you will see a map of the 2008 Senate races. We're all so juiced about the Presidential race, it seems we've abandoned our favorite legislative body. There are some interesting things to be found in this map. It might suggest that the Democrats have a great chance of picking up a lot of seats; after all, there are 21 Republican seats up for election and only 12 Democratic seats. But, quite a few of the Republican seats are in firmly "red" states (plus, we ought not forget that incumbents are almost always favored to win). Based on this map and a brief look at the situation (i.e. the incumbent Senators and possible challengers), I think there will be a few races to watch. First, I think the only Democrats who could be said to be in any real danger are Tim Johnson of South Dakota and Mary Landrieu of Louisiana. Johnson won his seat in 2002 by only 524 votes. If he runs (which is perhaps unlikely, given his recent health problems), he will face a tough challenge. If he doesn't, whoever runs in his place will face an even tougher challenge. And I simply do not trust southern voters enough to say that Landrieu is safe. Now, the Republicans.

I think John Sununu of New Hampshire could be in danger. New Hampshire, which went for Bush in 2000, swung to Kerry in 2004. New Hampshire is typically seen as the most conservative of the New England states (which isn't really saying much, I suppose), but I don't think Sununu should take that as insurance these days.

Tennessee will be an interesting race. I think there is a decent chance that Harold Ford, Jr. will take another stab at it. He ran a very impressive race against Bob Corker in 2006; I think he might have a decent chance against Lamar Alexander. Although, I think he would probably end up losing by a small margin.

Minnesota! If Al Franken does not win the Democratic nomination, I say this is a pretty sure bet for the Democrats. Minnesota has been trending Democratic these days, but Franken is too polarizing, in my opinion. I was going to suggest that Franken might have a hard time being taken seriously, but then I remembered that Minnesota is the state that elected Jesse "The Body" Ventura. So, hey, maybe Franken does have a shot.

Virginia will be interesting only if John Warner retires. If he seeks reelection, this race will not be worth watching. But, if he retires, it could be very interesting. Virginia is "turning purple" as they say. I would still consider it a relatively conservative state, but as we saw with the Senate election last November, Republicans can't be too cocky.

Along the same lines, Nebraska could be interesting if Chuck Hagel decides to retire or if he loses the primary. Since the entire Republican party seems to hate him, there is likely to be a vicious primary fight not unlike the one we saw in Pennsylvania in 2004 (where Arlen Specter squeeked out a victory against conservative Pat Toomey). If he secures the nomination, though, it's a sure victory for him in the general election.

Colorado might be worth watching, too. Wayne Allard (who?) is retiring, which always makes for interesting races. The likely Democratic candidate is from the mighty-influential and powerful Udall family. Political families seem to do well in the U.S.

Alaska. Oh, Alaska. You are the black sheep of the United States. Ted Stevens, or Mr. "The Internet isn't a big truck. It's a series of tubes!" if you'd forgotten, is seeking reelection at the ripe old age of 85. Perhaps he and Robert Byrd can challenge eachother to see who is more insane. Sadly, he is likely to win handily.

Delaware. It'll be interesting to see what Joe Biden does. He could retire to focus on his "presidential bid" (I put it in quotes because I don't think it deserves to be taken seriously), or he could pull a Joe Lieberman and run for both the Senate and President (well, Joe Lieberman ran for Vice President in 2000, if we want to get technical). If he does retire, his son, Beau, may run. No matter what Biden does, I think this is a safe hold for Democrats.

For the House, I predict only a few Democratic gains. Many of the races won by Democrats in 2006 were extremely close, and may very well swing back to Republicans. For instance, Patrick Murphy and Joe Sestak (representing, roughly, Bucks and Chester counties, respectively) will face tough races. However, Jim Gerlach (Ursinus' Republican representative) will also face a tough challenge, assuming Democrats can field someone more credible than Lois Murphy. It's too early to say with any certainty what will happen. The political mood of the nation in early November 2008 will decide these close races. While I think that bodes well for the Democrats, I'm not getting too confident.

So, early predictions: a 2-4 seat Democratic gain in the Senate, and a 5-10 seat Democratic gain in the House.

Rudy will stick to his guns on abortion

After a Republican debate performance most notable for his waffling on the issue of abortion, Rudy Giuliani has apparently decided that the best course is to stick to his guns and stand by his pro-choice convictions. It's a bold move. (Let's call it the anti-Romney.) This ABC News article reviews the polls and suggests that Rudy might just be able to pull it off. The editors of the National Review are not pleased.

A Thought Experiment, Part II (the Parties of the Left)

(See here for a full explanation of this thought experiment. Basically, I'm imagining what the political landscape would look like if America had some form of proportional representation, allowing third parties to flourish.)

Here are the parties of the left. I am assuming that the tension between free-traders and protectionist Democrats (and, more generally, between New Democrats and traditional Democrats) will break the party in two. These two successor parties will garner the majority of votes on the left but will be joined by a strengthened Green Party and a small but vocal Black Congressional Caucus.

New Democrats

Archetypical members: Bill & Hillary Clinton.

Base of support: Middle-class suburban voters, voters with college degrees.

Policies: Neoliberal economic policies such as a balanced budget and free trade, combined with social liberalism.

Comments: The New Democrats, masters of triangulation, could conceivably enter into coalitions with parties on the right if the need arose.

Social Democrats

Archetypical member: John Edwards.

Base of support: Labor unions, working class, minorities, the religious left. Strongest in industrial states that suffer from the negative effects of globalization.

Policies: Redistributionist economic policies, economic protectionism

Comments: Very similar to European social democratic parties.

Green

Archetypical member: Ralph Nader.

Base of support: Affluent suburban voters.

Policies: Environmental, dovish.

Comments: The Green Party could draw a surprisingly large percentage of votes. The current Green Party manages to win 4-5% of the votes even in the current system, which makes voting Green counterproductive. It is not hard to imagine the Greens gaining 10-15% of the votes in a proportional system. Its appeal might weaken as other parties adopt environmentalist positions in the face of global warming.

Congressional Black Caucus

Archetypical members: Al Sharpton, Jesse Jackson.

Base of support: African-American voters. Strongest support in inner cities.

Policies: Redistributionist economic policies, economic protectionism, support for affirmative action and education reform. Moderate/conservative on social issues like gay marriage.

Comments: The Congressional Black Caucus would probably focus on a few key issues and enter into coalitions with the Social Democrats. It would struggle to take middle-class African-Americans away from New Democrats and Social Democrats.

The Least Bad Option in Iraq

Below, Fz asks:

If we want to succeed (and despite what the Bush Administration says, Democrats would like to see a success), we need to first define what that is. I'm torn about how we should define success. Should we create a strict definition and say it isn't possible? Or should we make it easier to achieve? Do we shoot for the best possible outcome or the most practical outcome?

I think there are two different issues here. As a matter of policy, it's clear that the US must think in terms of the "least bad" option in Iraq. No form of "success" as it was originally understood (establishing a peaceful, democratic, pro-American state to contribute to the democratic transformation of the Middle East) is possible in the foreseeable future. Continuing to chase this pony is counterproductive. Instead, the US should concentrate on the least bad option it can realistically hope for at this point, which is a fairly stable state that does not play host to al-Qaeda, isn't too beholden to Iran, and keeps ethnic conflict below the level of a civil war. I'm not breaking any new ground here; serious strategic thinkers have been saying this for years.

On the other hand, from the perspective of public relations the US should indeed try to define the "least bad" option as a success. The Bush administration appears to recognize this, as it has slowly shifted rhetoric to emphasize the goal of achieving stability in Iraq over the creation of a region-transforming, model democratic state.

On the Power of Capitalization

democrat - an advocate of a democratic form of government

Democrat - a member of the Democratic Party

republican - an advocate of a republican form of government

Republican - a member of the Republican Party

It is interesting to see these terms defined. After all, Democrats are not always democrats, and Republicans are not always republicans. For instance, Democrats are democrats in that they believe in the inherent equality of all people, but they are not democrats in that they think, for instance, that the Supreme Court should have the power to act contrary to the will of the public. At the same time, however, Republicans often complain that government is too distant (which republicanism seems to endorse), wishing that the will of the majority should become law (which is not inherently un-republican, but it certainly seems more pro-democratic). So, we often see Republicans arguing for democracy and Democrats arguing for republicanism (or perhaps elitism would be more accurate).

I wonder how many Republicans even know what it means to be a republican and how many Democrats know what it means to be a democrat.

Me? I think I'm an elitist Democrat. Or something along those lines. I tend not to trust the will of "the many."

On success

We often hear "talking heads" go on and on about how we must "succeed" in Iraq, and we see poll numbers suggesting that Americans think we will not do so. But here we see another flaw in polling. It assumes that people understand and agree on the meaning of the words used in the phrasing of the question. But, I think if we polled people regarding what "success" even means in the context of Iraq, we would see a wide spread of answers.

For instance, it could simply mean stability. Perhaps restoring Iraq to pre-invasion days is a success. Or, on the other end of the spectrum, it could mean complete Iraqi unity and American-style democracy. Or, a partitioning of Iraq into three sovereign entities, free to govern as they wish could be seen as a success.

If we want to succeed (and despite what the Bush Administration says, Democrats would like to see a success), we need to first define what that is. I'm torn about how we should define success. Should we create a strict definition and say it isn't possible? Or should we make it easier to achieve? Do we shoot for the best possible outcome or the most practical outcome?

Perhaps DC can shed some wisdom on this; he knows more about such international matters than I do.

One thought experiment, coming up

How much does the American political system discourage the rise of third parties? When a third party gains votes, it actively helps politicians on the opposite end of the spectrum. Bill Clinton beat George Bush with the help of Ross Perot, and George W. Bush squeaked out a victory over Al Gore by a margin in Florida that was much smaller than the number of votes gained by Green Party candidate Ralph Nader. The same effect occurs in Senate and House races. The institutional third-party disadvantage forces politicians with disparate views to gather together in the two big-tent parties, Republican and Democratic. Christianists like James Dobson are grouped together with die-hard libertarians like Ron Paul, and doves like Dennis Kucinich are seated next to uber-hawks like Joe Lieberman. Freed from the constraints of our current system, these people would doubtlessly reorder themselves into a more logical system.

I'd like to conduct a little thought-experiment and imagine what the nation's political landscape would look like if the United States used a system of proportional representation. On Sunday I'll post a prediction of what I think the left wing of the political spectrum would look like, and on Monday I'll post the right side. (Saturday will be reserved for packing and driving home from college- the semester is over!)

On President Bush's "Regular Guy" Appeal

Judith Warner from The New York Times has a good blog post entitled "A White Tie Kind of Guy" about how Bush is no "regular guy," despite what he'd have us believe. I cannot link to the post, because you can only access it if you are a Times Select member. But, I will quote some key passages.

Our president may have grown up in West Texas riding bikes and blowing up frogs, but he’s no rube. He’s the son of a diplomat and statesman. He’s said to be a 13th cousin to the Queen. He’s got at least as much Kennebunkport as Midland in his veins. And he is one of a tiny handful of people in this country who actually came up in the world with things like White House state dinners and even royal visits as a feature of family life.

I've pointed this out before in other places, but it bears repeating because people do not seem to understand it. Bush is no "down-home cowboy." He was born in Connecticut, he went to Yale, his father was the President. This is no "ordinary guy." The fact that he had to be pushed into dressing in a white tie and tails, his bad manners, and his terribly unintelligible way of speaking do not show that he is "normal" in any way.

Bush talks with his mouth full because he can. He drinks mineral water straight from the bottle at a formal function because he doesn’t have to prove his good breeding to anyone. He has the arrogance of the long-established.

Indeed. This shows his arrogance. He didn't rub Angela Merkel's shoulders because he's "normal;" he did it because he is arrogant. It's not that he doesn't know about manners; he grew up in the highest class of society. Rather, he doesn't care. He can't claim ignorance; he can only claim arrogance.

So how about we retire the notion that the president’s comportmental shortcomings – his dubious straight talk and selectively bad table manners – make him “normal” or in any way one of “us”? And why don’t we acknowledge instead that he’s much less some kind of phantasmagorical Average Joe than cut from the same cloth as Prince Philip, another naughty and haughty verbal prankster, known throughout the world for his faux pas and bons mots?

The idea that being boorish, ill-mannered and uncouth somehow brands you as a “regular guy” holds water only if you ascribe to the view that the people, globally, are idiots. It works, I suppose, if your whole political reason for being is to dress up elitism in know-nothing populist garb.

But it doesn’t work for me.

Well said, Ms. Warner.

How to Make Third Parties Viable

Fz has a good post up about third parties. I'd like to add that a really good way to increase the power of third parties would be to have all or part of the Congress elected by proportional representation. (See here for a good explanation of PR). This would virtually eliminate the concern about wasted votes that derails third parties today. My favorite version of such a plan, proposed to me by a professor, would retain the current system for the Senate but elect the House of Representatives in a national PR election. The change in the House would allow the rise of third parties, while Senators could continue to represent the interests of the individual states.

On My Hatred of Al Sharpton

Here's hoping that title will get the Reverend to call me a racist and invite me on his radio show to apologize.

I'd really like to meet him.

But, nonetheless, I do hate him. He is what I would call "a terrible person." He makes his living attacking people's honest slip-ups, but refuses to apologize for his own. Recently, Sharpton said this regarding Mitt's Mormonism:

As for the one Mormon running for office, those that really believe in God will defeat him anyway, so don’t worry about that.

He claims that that does not mean that he thinks Mormons don't believe in God, but what else could it mean? This, to me at least, seems more offensive than the infamous Imus remark that Sharpton jumped all over. Imus made an off-color joke. Sharpton attacked a whole religion. I see a slight difference here.

Naturally, he refuses to apologize.

After all, he's Al Sharpton for Christ's sake! People apologize to him!

On Mitt's Advertising

It seems we like picking on Mitt here at One More Political Blog. Indeed, I refer to him by his first name in all its glory. Here's a bit more.

Mitt will be running this ad soon in New Hampshire. Perhaps I've just never taken the War on Terror seriously enough (for me, it's the nasty step-brother of the War on Drugs), but does this ad seem a bit odd to anyone else? Maybe I need to take the flowers out of my hair and trade in my VW Bus, but doesn't this seem a bit too much like Mitt is suggesting he wants to launch more wars?

Don't get me wrong; I'm no Dennis Kucinich, but at the same time, I don't think more war is a grand ol' idea. But, then again, I'm not a New Hampshire Republican primary voter.

This is a great example of why our primary system needs reworking. Nominees cater to the ideologues of their parties. Most Americans aren't hawks, but the Republicans all turn into hawks during the primary to try to win votes. Same goes for the Democrats, but on the opposite side. And, as I hopefully made clear in my last post, the moderates get left in the dust.

Indeed, many states don't allow independents to vote in the primary (Pennsylvania is one of them).

If Mitt were to somehow magically win the primary, there is no way we would see this ad in a general election campaign. And that's just not right. People are so willing to nonchalantly say "Oh, well this is a primary, so he's catering to the extreme wing of his party." As a matter of fact that's true, but as a matter of principle, it just isn't right.

Briefly, though, here's why Mitt doesn't stand a chance. He was converted by French Mormons and his favorite novel is Battlefield Earth. People will probably forget about that last part, but that Mormon thing will haunt him forever. Sorry, Mitt, Americans aren't as understanding as those hippie dippies up in Massachusetts.