Free to Choose

Milton Friedman's PBS TV series "Free to Choose" is available online here . The 1990 series has a fantastic introduction by the Governator ...

Posner on Trans Fats

Judge Posner commented on the trans fat ban in his blog today. His analysis was much more of a cost-benefit analysis than was my look at the issue a few days ago. His conclusions stated "My cost-benefit analysis is, necessarily, highly tentative. However, it inclines me to a sympathetic view of the trans-fats ban. I anticipate strong opposition from libertarians."

I have one quick comment on his analysis. He states that "no one wants his restaurant experience poisoned by having to read a menu that lists beside each item the number of grams of trans fats it contains." He quickly disregards this option while I feel that it may be the best option available.

I do not think that this statement is necessarily true. The presence of trans fat does not have to be so intrusive. Many restaurants do use an asterisk to indicate that something is spicy. Some similar universal symbol could be used for the presence of trans fats. I do not think the precise number of grams needs to be stated on the menu (although it should be available upon request). This will not "poison" the restaurant experience. It will get people thinking about the issue and will cause some change.

Posner's Comments

Reyes for President?

Apparently the in-coming (Democratic) head of the House Intel committee does n't know that Al Qaeda is primarily Sunni. He also appears not to know a great deal about the inner workings of Hezbollah.

Big frickin deal. Good for him. This kind of knowledge is largely irrelevant to his role in Congress. The Intelligence Committe is primarily concerned with oversight and crafting authorizing legislation. One does n't need an encyclopedic knowledge of the various flavors of Islamic thought and the nuanced and finely wrought doctrinal distinctions between them to be effective at oversight, or crafting intelligence legislation.

Banning Fat

New York City recently decided to ban the use of trans fats by restaurants in the city. While some have equated this move with the smoking bans being passed around the country, I think that the issue deserves individual treatment.

While the lay person may cite saturated facts as the most dangerous type of fat, the fact is that trans fats are actually more dangerous. Trans fats, commonly found in such foods as margarine, Crisco, potato chips, peanut butter, etc., are made by passing hydrogen through the fact. As a result, the fat can stay in a solid state at room temperature. As one doctor described the effect of the process: "It's not good for body to digest; it's like eating plastic." The FDA even concluded that the recommended daily allowance of trans fats is 0 grams (for comparison, the RDA of saturated fats is around 20 grams). As a result of this, I have avoided trans fats since high school and feel that this has helped improve my health.

Now, the same dangerous side effects can be said of smoking (which I am against banning). However, the case for a ban of trans fats is stronger for three reasons: (1) people unknowingly ingest trans fats; (2) people are not privy to the health problems related to the trans fats; and (3) there are already alternative fats available that do not significantly affect the taste of the food (albeit with a slightly higher cost due to their lower availability at this time). With smoking, everyone is aware of the health issues and individuals consciously make the decision to smoke. At restaurants, trans fats are often used without the customers knowledge. Even if one knows that they are used, few people know about the health concerns related to their ingestion.

While I think that the personal and social cost of trans fats are high and that they ought not to be eaten, I think an all-out ban is too much at this point. One of the reasons that trans fats are used is because they are cheaper and, for the time being, more readily available than comparable fats. By banning their use, the government is forcing a cost on the restaurant. In addition, many companies have complained that transitioning to a substitute fat has been difficult. The individual no longer has the option to make a choice of being cheap food now and paying for it down the road with higher health costs. The problem with the current situation is that individuals are not making informed decisions because they are not aware of the presence of trans fats in their foods. This would be ameliorated by a labeling requirement. Restaurants would be given the option to continue to use trans fats so long as they notified the customers.

The FDA imposed a labeling requirement on groceries that went into effect January 1, 2006. Now, products must state the quantity of trans fats contained in them. While the regulation has its flaws (products can state "0g trans fat" or "trans fat free" even though they contain small amounts of trans fat per serving), it has served to entice companies reduce and eliminate trans fats in their products. For instance, a couple of years ago, few potato chips were made without trans fats. Now many brands are trans fat free. Labeling has also helped raise public awareness of the issue. While the case is stronger for a ban, requiring restaurants to merely notify customers of the presence of trans fats would help serve the same ends as a total ban without the extra costs imposed on business and individual freedom. If someone wants a Big Mac soaked in trans fats, let them have it. It should be their choice so long as they know whats in it.

Breyer vs. Scalia: The Movie

Here's the video of the ACS/FedSoc Breyer/Scalia discussion I blogged about yesterday, available in either full video or just the audio.

Choices and War

Exactly.

It's frustrating that we've lost sight of who has what choices in this war. We didn't choose to fight it. We CAN'T choose NOT to fight it, except by surrendering and converting wholesale to Shariah Strength Islam. ("Peace" activists take note - if "peace" is the absence of fighting, and that "peace" is the ultimate "good," then this is the option for you. Enjoy your gay marriages and nose rings under Shariah. But for my part, I would rather be a free man at war than a slave and a prisoner at peace, as would most Americans. Some things are more important than "peace," and far worse than "war.")

The only choices we have are where, when, and how we fight. We currently control those three factors absolutely - we can set our table anywhere we please, but we have to set it. If we refuse to make a choice, we'll merely be surrendering that choice to our enemies.

After 9/11, we absolutely made the correct choice on the when. It was now, or it was later - and it wasn't going to be cheaper later. After every Jihadist attack prior to 9/11, we kept choosing "later" - and the result was a MORE entrenched enemy with MORE recruits who had seen us run away time after time. Iraq may rally new jihadists to the cause, but no more so than did Somalia, the first WTC attack, Khobar Towers, Beirut, USS Cole, or even our unfinished business in Gulf War I. For some odd reason, we're turning to the same geniuses who kept choosing "later" as the Jihadists grew in strength until they could attack us here at home, and once again, those "realists" are saying "later." What are they waiting for? A dirty bomb in LA?

Indeed, if Iraq is in fact a cause celebre that attracts more fighters, it is only because of the perception that we are losing and on the brink of running again - helped in no small part by the defeatist left and their anti-Bush media enablers who have been declaring "Quagmire!" from the beginning. This report itself is already rallying them on with its hung-headed hand wringing and non-solutions to the cancer of Global Jihad.

The where was tougher - Afghanistan was the obvious choice, but with so many local governments eager and willing to keep supplying our enemies, we couldn't simply stay holed up in Central Asia. You can't win "Whack-A-Mole" with a single mallet. And so our choices were Iraq, Iran, Syria, Somalia, the Sudan, etc. - or the United States. It could be that Iraq wasn't the best option in 2002-3, although I still think it was. Today, we seem intent on choosing the United States, for if we pull back behind our borders with our tails between our legs, that is where we will fight it. Anyone who seriously doubts this, and thinks our enemy will adopt a "live-and-let-live" policy, simply hasn't been paying attention.

But it is the how that is the most crucial. From the start, we have fought hobbled. Afraid of what dictators, Europe (who has abrogated their military responsibility in the world to us while surrendering their cultures at home), or corrupt UN officials might say about us, we refused to shoot looters, refused to fire on mosques that are being used as firing towers, and released detained terrorists who must then be re-captured on the battlefield. We ignored Iran and Syria's active involvement against us. We were RE-active. Against a culture which above all respects strength, we chose to be weak and half-hearted. Worse, that's the AGGRESSIVE half of our government - the rest worked as hard as they could to feed the enemy propaganda, assure them we could not win if only they would be a little more patient...

The American People were right last month to repudiate our tepid how of warfighting (which would change very little even if we followed the Baker-Hamilton report to the letter). Do this for real, or don't do it at all, they said, and as usual, the wisdom of the electorate is worthy of our ear. But unfortunately, we cannot chose to simply not do it at all, which leaves only to DO IT RIGHT. We must unequivocally crush the enemy first, and only then rebuild his cities and governments.

There is no exit strategy but through total victory, no "peace" until every last Jihadist is dead or captured and Islamo-Fascism is as universally repudiated as Nazism. To accept less is to ensure an "Iraq" every ten years or so, each time leaving us weaker and our enemies stronger, until our culture and freedoms are lost to attrition after millions are slaughtered in the name of "pure" Islam both here and abroad. The liberal refrain has been how evil we were to support Afghani mujahadeen or Iraq in the 80s (ignoring the more severe threat at the time from the USSR), and how it led to today's problems. Those same liberals who now demand we adopt the Baker plan have apparently changed their minds, demanding we support Iran and Syria if they'll help up "stabilize" the region. What will they say in 10 years when we're battling a nuclear armed Iran? You guessed it - it'll be Bush's fault for not listening.

Unfortunately, if we adopt the Baker "plan," we choose less - along with the consequences that go with it. And we will have given our remaining choices to our enemy. Be certain they well care far less about UN protocol or NGO admonitions on human rights violations, and that they will not give anything less than their all. It must be admitted that this choice is indeed a path to peace, but not a peace worth having.

Media Alert II (Morning Edition)

Tomorrow morning I'll be on the Sytman & Boze Show on AM 770 KTTH at 7:00 AM to discuss the Watada craziness. Give it a listen!

Scalia and Breyer, Head to Head

This is just good stuff:

Scalia is charming and, —as ever, —riotously funny. For each time Breyer says his own constitutional approach is "complicated" or "hard," Scalia retorts that his is "easy as pie" and a "piece of cake." And if this debate mirrors a marketplace of ideas, Breyer will make the sale through the earnest personal connection of a Wal-Mart greeter, while Scalia opts for the aloof certainty of the Tiffany's salesman: "Sure, you can buy some other, cheaper constitutional theory, but really. Ew."

A fun look at some good - and illuminating - banter and philosophy behind the bench.

Media Alert

I'll be making my radio debut in a couple hours at 4:00 PM today on the Bryan Suits Show on KVI 570 (AM, of course) to discuss my impressions of the Ehren Watada silliness. Should be fun!

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UPDATE: Here's the link for the live feed.

The Watada Report

Well, just came back from the Ehren Watada event. Wow. There are simply no words of invective strong enough to adequately convey an accurate picture of this guy, or of the hippies, socialists, and (I’ll say it) anti-Americans who were there to laud this criminal. Somewhere, members of al Qaeda are laughing. Going in, I strongly suspected he joined planning to desert like this as a political stunt. Having heard him speak, I am now certain of it.

The absurdities of his legal claims have already been discussed on this blog. Indeed – there was really no attempt to refute them at the event (more on that below).

The event was carefully controlled and orchestrated from the beginning. There was no panelist who would be the least bit critical of his actions. There was no opportunity for direct questioning – questions had to be written on a small slip of notecard and passed to the moderator, where they were subsequently censored and/or modified to soften the ball. More on that in a bit. The bottom line is that this was an event supposedly about the courage to state an unpopular point of view, but done in a liberal echo chamber with no opportunity to challenge the speaker.

Said echo chamber was surreal. The aged hippies had come out of the woodwork. Next to me sat a woman with one of those “united socialist” newspapers, printed complete with red ink. She was writing a letter to Watada praising his courage and “real patriotism,” and pledging her support.

[The post continues in the comments section below...]

Newt - Destroying the 1st Amendment, or Restoring it For the Sake of Survival?

Last week, Newt Gingrich made headlines by suggesting we needed to rethink our current thinking about what the 1st Amendment does and does not allow in terms of free speech in order to protect ourselves. The expected wailing an gnashing of teeth followed about sacred protections, dissent being patriotic, etc. As usual, Ben Franklin's quote about essential liberties vs. "a little temporary safety" was misquoted and/or used out of context.

But the problem is that while Gingrich's general thrust is correct, the way he posited it was very wrong. Here's what he said:

"Either before we lose a city, or, if we are truly stupid, after we lose a city, we will adopt rules of engagement that use every technology we can find to break up [terrorists'] capacity to use the Internet, to break up their capacity to use free speech [protections] and to go after people who want to kill us -- to stop them from recruiting people before they get to reach out and convince young people to destroy their lives while destroying us."

Gingrich spoke in his piece in terms of "limiting free speech." That's not the argument, in my mind. Worse, putting it in those terms instantly raises the specter of censorship, 1984, etc., making it far less politically viable. Instead, the debate must be what defines "speech" within the meaning of the First Amendment - and what crosses the line into action. It may sound like semantics, but our very lives rest on the distinction.

When a Minneapolis Imam preaches that all good Muslims should rise up and destroy America by force, that is protected. When an American Communist urges college students to violent revolution, that is protected. When an Army officer urges fellow soldiers to ignore lawful orders from their elected civilian leaders, liberals argue it should be protected. What madness or self loathing requires us to suicidally accept such threats to our freedom and indeed, to our very existence?

Such advocacy is not merely speech - it is action. It is no more speech and no less action than Tony Soprano ordering his goon to kill someone, and deserves no more protection.

The kicker is that allowing these verbal threats against our very survival is far from the immutable American tradition. We have recognized throughout the majority of our history that advocating the violent overthrow of the US government - especially in times of war - is outside the bounds of speech, and can and should be proscribed. Where exactly the line is may be fuzzy, but common sense makes clear that an Imam declaring jihad is on the wrong side of that line. As late as 1951 in United States v. Dennis, 341 U.S. 494 (1951), the Supreme Court correctly recognized that the Communist Party was a real threat to this country, and that organizing a party and using its mechanisms to advocate subversion was not and should not be protected. The thought that we were not a free country prior to 1951 is simply absurd. But then, that was back before we chose to lose wars...

(Andrew McCarthy has a fantastic historical breakdown of free speech protections and their nexuses with our various conflicts - and brilliantly points out the current risk we face for our indulgence of terrorists. It's also a good review for next week's Free Expression final...)

I don't want a Sedition Act. I don't want people jailed for being critical of the President. The effort to conflate a return to Dennis with American Fascism is intellectually and historically bankrupt. What I do want is to simply return to our senses. Let's RE-recognize that the Constitution is and never was a suicide pact, and that it need not tolerate advocates for its violent destruction in the name of its protection.

The Court Tackles Racism Diversity

"It is a sordid business, this divvying us up by race."

- Chief Justice John Roberts, LULAC v. Perry, (concurring)

Yes, it is. And the Court is once again faced with the question of just how sordid it is today as it decides whether a "racial tiebreaker" is Constitutional in determining which high school Seattle students should attend.

It seems to me to be difficult to justify as a "compelling state interest" the idea that a 60-40 racial makeup will provide a significantly different educational experience than 70-30, or even 80-20. And that's really all the school district has. (It's also worth wondering, although less legally germane, why Seattle Schools are spending all this time, money, and effort on minor racial redistribution when the schools themselves are failing so miserably and completely. Do they seriously think this racial window dressing will raise test scores or inprove math skills? Of course, when "diversity" is your unquestioned religious dogma, the real motivations behind the school district's proposed policies become more clear...)

But what's really at stake is the idea of racial preferences, and how hostile the Roberts Court will be towards them. Likely swing voter Justice Kennedy said, "We're not writing just on a very fact-specific issue." (So much for case and controversy limits, eh?) The outcome will determine if we're still willing to be held hostage by fear of being called "racists" as a society by people who ignore the harm racial quotas and preferences have caused, ignore the very real progress we've made as a country on issues of race, and if we're going to finally repudiate the liberal Cult of Victimhood that has been used throughout the past century to justify socialism.

Here's hoping we ignore the likes of Senator Kennedy, accept that segregated lunch counters aren't coming back, and finally recognize that the Prophets of Diversity for its own sake is antithetical to the idea of a color blind Constitution.

How Liberal?

The Volokh Conspiracy is buzzing with debate about whether (little "l") libertarians should jump ship and support the Democratic Party. Prompted by this Cato dispatch, the Volokh bloggers consider whether a liberal-libertarian alliance could do more to advance classical liberal thinking ... and come to an obvious conclusion. To wit, civil liberties would be advanced by punishing the "Party of Lincoln" (yes, at least insofar as the only three presidents to have puportedly suspended habeas have all called themselves "Republicans"). But free markets? Isn't the first thing on the new Congress' agenda a significant hike in the federal minimum wage? We remain as conflicted as ever.

As a matter of practical politics, I'd say the discussion is more important than it might at first seem. While Cato research indicates 13% of voting-age Americans have a libertarian bent, (big "L") Libertarians--all 235,540 of them--commanded but 2% of the vote in the mid-terms.

"Conscience" vs. National Defense - 1st LT Watada's Absurd Excuses

As you may know, Ehren Watada is the commissioned Army officer who has refused to deploy to Iraq as ordered, and now face court martial for missing movement and conduct unbecoming an officer. His defense against the charge of "Conduct Unbecoming an Officer" is based on going out on the anti-war speaking circuit and encouraging other soldiers to refuse to go.

Our esteemed University is putting on a "panel" discussion, starring Lt. Watada himself. From the risible title - "A Matter of Conscience" - you can guess just how diverse this panel will be. The event is this Wednesday at 3:30 - I encourage all to attend.

Fortunately for the country, and UNfortunately for Watada and his ACLU enablers, the law is not on his side. This isn't the first time an activist and/or coward has offered this type of excuse. Adam Ake, a 3L here and a Major in the Army National Guard, has put together a very powerful outline explaining the state of the law in this case for the Military Law Association. With his permission, I've reproduced it in the comments section below. Well worth a read.

To this I can only add these thoughts. If a military member (and a junior one at that) is allowed to make his own judgments on the veracity or even legality of policy made by elected civilians, then those elected civilians no longer have control over the military. That conclusion portends only two outcomes - either the military establishment begins acting on its own and we have a coup, or the military is emasculated and could no longer be counted upon to defend American interests. Make no mistake - Watada's backers are too short sighted to fear the first outcome, while working hard to ensure the second.

Comments on "Quiet Revolution"

I was going to write tonight about the absurd Alliance for Justice film "Quiet Revolution," and judging from the jump in hits today, it looks like some people were curious as to our rebuttals. But since it took me 4 1/2 hours to get my wife and myself home tonight thanks to the weather, and I'm now enjoying a stiff drink to recover from yelling at non-South Dakota trained snow drivers, I think it best that I leave it for tomorrow.

For now, I'll merely sum it up this way:

HAHAHAHAHA!!!!!! HAHAHAHAHAHA!!!!

One of the most over the top, tabloid-esque, dishonest, and unintentionally funny things I've seen in a really long time. Watch it here and see for yourself. Details to follow.

Supreme Court Hears Important Antitrust Case Today

SCOTUSblog lays out (in plain English) Bell Atlantic Corp. v. Twombly (U.S. No. 05-1126) here.

The plaintiff-respondents allege a conspiracy on the part of the Baby Bells and other competitive local exchange carriers (CLECs) (read the big guys) to prevent incumbent local exchange carriers (ILECs) (read, the little guys) from entering formerly monopolized markets. In support of this averment, plaintiffs offer ... well nothing ... at least not until they get a shot at discovery. The district court dismissed the claim on the pleadings.

The 2d. Cir. reversed, holding no evidence was necessary--indeed, that the burden on antitrust claimants is "relatively modest." Among other curious rulings, the 2d Cir. would shift antitrust pleading's "plus factors"--necessary where there are hazy allegations such as the conspiracy here alleged--to after discovery is completed. What pleading?

The plaintiff-respondents principally argue notice pleading. They say Fed. R. Civ. Pro. 8(e)(1) & 9(b) are broad enough to encompass bare assertions of conspiracy--even under the Sherman Act, where the S. Ct. has been tightening the screws on plaintiffs for decades. Treble damages and attorney fees are more than enough to incentivize fishing in every single nook of every business. The 2d Cir.'s standard would create a real moral hazard--an industry of antitrust investigation to the extent one does not already exist.

I think the S. Ct. will see the plaintiff-respondent's claim for the fishing invitation it would seem to be, and dismiss the case.

As those in antitrust can attest, Prof. Drake thinks this one's huge. Oral arguments should be here later today or tomorrow.

Activists, States Demand SCOTUS Fix Global Warming Whether It Has Authority Or Not

That's not, of course, what the briefs state. But that's exactly what's going on.

The Supreme Court is set to hear arguments this week on the case of Massachusetts v. EPA. The EPA determined that neither the 1970 Clean Air Act nor its 1977 amendments authorized it to regulate automobile CO2 emissions to combat global warming, and that even if it did, it certainly did not require that it craft such regulations. (Since the environmental fear du jure in the '70s was global cooling, this seems to me to be a reasonable conclusion.)

The case turns on issues of standing, and to what extent Congress gave policy discretion to the EPA. The DC Circuit barely found standing by the plaintiffs to hear the case, and when it did, determined that the EPA was within their statutory bounds in declining, for a variety of reasons, to regulate CO2 as a greenhouse gas. Massachusetts v. EPA, 415 F.3d 50 (D.C. Cir. 2005). (This opinion is fairly short and well worth a read, short of the policy-oriented rantings of the dissent.)

Liberal groups like the ACS are already wringing their hands over this "momentous environmental issue." But it's not an "environmental issue" at all. It's a political one, and the DC Circuit made the right call. The Plaintiffs essentially want the Court to read the language of a 30-year-old statute to require an agency to pass a regulation that only they will approve of, in order to create an uncertain remedy for an uncertain harm that in any event was completely unforeseen when the statute was written.

This is precisely why Congress meets every single year - so we're not stuck in the Carter years forever. In addition to the activists and cities, no fewer than 12 States are plaintiffs here. That's 24 Senators and 151 Representatives - nearly a quarter of the US Congress! Surely they are not without political power. If those states wish to ensure the EPA is fixing global warming, the remedy is in the chambers of the Capitol, not in the courts.

The liberal argument is that if the Supreme Court denies Massachusetts et al. the relief they seek, then the environment is doomed. Hogwash. It is simply returned to the political processes where it belongs. If the Court makes the right call on this and affirms the D.C. Circuit, nothing whatsoever forestalls Senator Kennedy from introducing legislation that would amend the Clean Air Act in such a way that would make plaintiffs happy, nor are the other 534 legislators proscribed from voting for it. (He doesn't even have to wait for the court!) The only obstacle seems to be a policy disagreement by a majority of Americans via their elected officials, which, last time I checked, is not grounds for relief under Article III. This is nothing more than an attempted policy coup by a political minority who can't be bothered to actually muster votes - and that is nothing less than tyranny.

The Courts have neither the functional ability nor the Constitutional authorization to hand down from on high "correct" environmental policies. Environmental policy is complex and technical, with thousands of disparate interests at stake, and thousands of ways to address thousands of problems. This is exactly the kind of issue for which we have a large, representative, deliberative body with fact finding powers, who upon reaching a conclusion can best be said to have arrived at the aggregate will of ALL the people - not just those few who take Al Gore seriously.

Right wing war on the Constitution?

The ACS is sponsoring an event next Monday which promises to be both wildly amusing and mildly instructive -- a screening of a film called the "Quiet Revolution" followed by a panel discussion featuring Nan Aron (Alliance for Justice) and William Talbott (Philosophy Prof, at the UW).

The blurb for the event is beyond risible, accusing the "far right" of waging a sustained war on "the Constitution as we know it." Apparently ultra-conservative politicians, professors (all three of them) and judges are on the prowl, attempting to "shred the fabric of popular laws" protecting workers and expanding exective power while trampling on civil liberties. And Nan Aaron is going to instruct the UW student body on how to identify and slay the beast: "Learn more about this movement - its goals, its supporters, its tactics - and what you can do to take action."

I would n't miss this event for the world. I yearn to learn more about the "Constitution as we know it," and how it differs from the regular old Constitution; I'm especially keen on hearing more about the identifying characteristics and habits of this sinister sodality of "far right" vivisectionists, and the tactics for its extermination ...

Hope to see you'll there : Mon, Nov 27, Room 138 at 12:30.

It is emphatically the province of the judiciary to say what the law is, not what it should be?

Posner disagrees. The Chicago chapter of the Fed Soc and ACS sponsored a discussion on what Posner calls "pragmatic adjudication" -- here's an interesting summary (which also has a link to a podcast of the event).

Las Vegas "No Feeding" Ordinance Unconstitutionally Vague?

Earlier this year in my future home state of Nevada, the Las Vegas City Council was forced to address the ever increasing problems threatening their city parks. Homeless and indigent people began choking the city parks, which attracted well meaning "mobile soup kitchens" (vans full of hot meals doled out for free), which in turn attracted more homeless and indigent people to the parks. Crime correspondingly rose, and the tax paying residents of Las Vegas felt excluded from the parks they paid for. The City Council had to take action.

What they did was ban the feeding of the indigent in parks. Charities were still free to operate, but no organization was allowed to feed indigents unless they also provided services to address drug and alcohol use, mental illness, etc.

Apparently believing that attracting drug addicted transients to city parks where children should be playing was another fundamental right hidden away in the Constitution for some intrepid future explorer to discover, the ACLU filed suit against the city. Yesterday, a federal judge struck down the law, apparently because it was too vague.

The law reads in part:

The following are prohibited within any City park:...The providing of food or meals to the indigent for free or for a nominal fee. For purposes of this Paragraph, an indigent person is a person whom a reasonable ordinary person would believe to be entitled to apply for or receive assistance under NRS Chapter 428. L.V.M.C. 13.36.055(A)(6).

I think this law was poorly written, and have sympathy for the proposition that the reasonable person probably doesn't know what NRS Chapter 428 is, much less who is eligible to receive assistance under it.

But I think Las Vegas is doing the right thing. Not only is it better for the vagrants who need counseling more than they need a sandwich, but it's unimaginable that the Founding Fathers intended the federal Constitution to force a community to sit idly by while their parks degenerate into lawless tent cities.

And while I sympathize with the outcome reached by the ACLU, their agenda is profoundly disturbing. They were threatening to bring suit before the law was written. Clearly, the ACLU sued not to correct some vague wording, but because they want to force the community to pay for the vagrant hordes. Worse, their rhetoric implies that in the mind of the ACLU, being homeless is just as immutable of a trait as is race, as if there were no choices involved on the part of the vagrant. If the People choose to exercise their God-given liberty the ACLU purports to protect and extend the hand of charity via their tax dollars, that's fine. But to claim such a policy is Constitutionally mandated is absurd.

The real shame is that the city might have to ban all picnics altogether, or even shut down its parks if they continue to become unusable. Tyranny by the minority is no less insideous than that of the majority. It is in fact worse. In the time I've lived in this area, I've seen Seattle turned over to the ever-increasingly demanding panhandlers. Police create extra "jaywalking patrols" and strip club sting operations while ignoring the rampant crack dealing and vagrancy littering the King County Courthouse courtyard, because it's not PC to put a stop to it. Is this really the world the ACLU wants? If so, as a future Nevadan I exhort them to go live in their Seattle socialist paradise and leave the citizenry of the Silver State alone.

Here's hoping Vegas cleans up their ordinance, and remains serious about enforcing it. The Constitution should not force any city to be held hostage by aggressive indigents and their activist enablers.

Scalia and Alito at the Federalist Society Convention

C-Span has video (real player) of Scalia and Alito at the recent Federalist Society Convention. Interesting stuff ...

Fed Soc annual convention -- a somber meeting?

The New York Times portrays this years Federalist Society Convention as a grim affair, with conservative lawyers apparently coming to terms with the the fact that its now become much harder for them to be elevated to the bench.

The New York Times has been known in the past to let its editorial preferences color its reporting, so I don't know how accurate this depiction is, but it makes for an interesting read.

My favourite quote: "The days when the Federalist Society would get just about anything it wanted are over." -- Chuck Schumer. Further evidence of the fact that he not only has a tenuous grasp on constitutional issues, but apparently on reality as well. The Federalist Society would get just about anything it wanted?? Souter? Harriet Miers? Roberts desperately trying to disassociate himself from the Federalist Society?

Bellevue’s Second Amendment Foundation, by way of ACLU, seeks injunction against Washington libraries

The ACLU has filed a complaint against the North Central Regional Library District (Chelan, Douglas, Ferry, Grant, and Okanogan Counties) on behalf of, among others, the Second Amendment Foundation. The complaint alleges the library district violates the First Amendment and Wash. Const. art. I, § 5 by refusing to remove filters for adults engaged in gun-related research. Specifically, the SAF is peeved that the website womenandguns.com is blocked.

Plaintiff Charles Heinlen is a fan of both women and guns. He complains the library district's policy has prevented him from accessing "various dating sites, publications such as Soldier of Fortune Magazine, [and] the Web log (or “blog”) that he maintains at www.myspace.com."

They want an injunction and, by my unrefined understanding, ought to get it--i.e., at least as to art. I, § 5 and presuming they've got their facts straight.

I’m reading the Volokh Conspiracy, it's true.

We're Not Socialists, But We'll SocialIZE!

Advice and Consent of the... SenatOR?

I don't know if it's just bad writing from a non-legally trained New York Observer journalist, but "Exultant Chuck [Schumer] Says He'll Veto the Next Alito" is either a grossly inaccurate headline, or reflects a poor grasp of the Constitution by the senior Senator from New York.

The bad writing/unconstitutional usurpation continues:

"Judges are the most important,"” said Mr. Schumer, who orchestrated the implausible Democratic takeover of the Senate last week. "One more justice would have made it a 5-4 conservative, hard-right majority for a long time. That won'’t happen."

From now on, all the President'’s judicial appointments will need to meet the requirements of Mr. Schumer, the Park Slope power broker who has happily accepted the mantle of chief architect for the Democrats'’ effort to build a majority for the 2008 elections and beyond. (emphasis added).

The Constitution vests no veto power in an individual Senator. (It doesn't even vest it in the Senate as a whole.) It is the Senate as a body, not a single Senator (no matter how powerful) who gives only their "advice and consent." And it is the President, not the Senate, who was elected in part because the people preferred his judgment on judicial nominations. Judicial nominations weren't even really an issue (to the detriment of the GOP, in my opinion) in this election. Just as Republicans voted unanimously for Ruth Bader Ginsberg, a qualified jurist properly nominated by the President who was known to have a judicial philosophy conservatives didn't agree with, the Senate should be mindful of their secondary role in this important process. To do more is to usurp Executive authority the Congress is denied by the Constitution.

Interestingly, Schumer also announced that he will make sure "New York will soon be 'disproportionately' enjoying the spoils of last week's victory," and used the opportunity to peddle his book about building a permanent Democratic majority.

It's ironic that this was the reaction of a man who directed the Democratic takeover by running very socially conservative Democrats, attacking (rightly) Republican "earmark" abuse, and pointing out (also correctly) that one party rule for too long leads to arrogance and corruption of principles.

When Congress (or either if its chambers) begins adopting executive power, the balance of our system is lost. The founders vested complete executive authority with the President (as opposed to limited and enumerated powers with the Congress) for a reason. If Chuck Schumer wants that kind of power, he should at the very least stand for election as a Presidential candidate so he could exercise it legitimately. I'll remember this next time I hear liberals complain about "shredding the Constitution."

And now for something completely different

Now that this trivial matter of the election is behind us, we can now focus on the political body that wields the most power in our system -- the Supreme Court. The Scotus Blog is a great resource on oral arguments, cert petitions, briefs and the like. I've added it to the blog roll as well ...

If I Not Be Winning Suit at Law, I Be Execute

Elections, confirmations, war - all heady and crucial topics we must discuss, solve, and fight for.

But it's time to get back to our roots of our organization, use the knowledge and skills we've acquired in law school to address one of the most important legal questions of our time:

Are frat boys lame for suing Borat?

"Two anonymous plaintiffs are suing 20th Century Fox and One America Productions, claiming members of their college fraternity were interviewed to become part of the smash "Borat: Cultural Learnings of America for Make Benefit Glorious Nation of Kazakhstan" film.

The plaintiffs -- listed as John Doe 1 and John Doe 2 -- were allegedly assured the film would not be shown in the U.S. and their identities would not be revealed.

***

The suit claims both men were then taken to a motor home where they were filmed, all the while "encouraged to continue drinking."

The movie features a scene in a motor home where Cohen gets drunk with three frat boys and the group watches the Pamela Anderson/Tommy Lee sex tape while inebriated.

The plaintiffs claim they suffered "humiliation, mental anguish, and emotional and physical distress, loss of reputation, goodwill and standing in the community..." because the movie was indeed released in the U.S.

While I can't imagine suffering "mental anguish" over being the coolest kid in school because I got to drink with Borat and be in a smash hit movie, I can imagine being irritated if I made a boob of myself relying on it only being seen overseas. Now I'm can't wait to see what they did that they would suffer "loss of reputation, goodwill and standing in the community..."

The complaint itself is really funny - the kind any lawyer would love to write.

This isn't his first run in with the law, either - a German group is suing him for human rights violations because the character refers to being a "Gypsy Catcher." Give those guys a peace prize for going after the real human rights abusers....

One thing's for sure. All of this legal trouble and the publicity that goes with it? We haven't seen the last of that sweet 'stache...

Can Conservative Judges Still Be Confirmed?

After the war, this is my biggest concern about the new political order. But Edward Whelan argues that strong conservative Judges and Justices can still be confirmed:

Skeptical? Consider the last Republican appointee to the Court to be confirmed by a Democrat-controlled Senate — Clarence Thomas in 1991. That Senate had 57 Democrats and only 43 Republicans, and the swirl of allegations gave Democrats plenty of cover to vote against the nomination. Still, 11 Democrats voted for Thomas, and he was confirmed by a 52-48 margin.

A lot has changed since 1991, but the changes cut in both directions. The Democrats have gotten more unified — and nastier — on judicial confirmations since then, but the high-profile politics of a Supreme Court nomination enhances the case for confirmation of a strong pick. Opponents can’t rely on obscure procedures to block the nomination. They need to make their case openly, and in the Internet age, unlike with the 1987 nomination of Judge Bork, their distortions won’t go unanswered.

More importantly, the conservative case against liberal judicial activism has powerful public appeal across a broad swath of the political spectrum. Opponents of a strong nominee will have to be ready to pay a high price for their opposition. Plus, President Bush, having appointed two white males to the Court, still has the diversity card to play, so a nominee who is a committed proponent of judicial restraint and also a female or a minority would have added political punch.

Here's hoping.

"Culture of Corruption" and Intelligence Oversight

How much power should an impeached Federal Judge have over national security or intelligence oversight and budgeting? What if even Nancy Pelosi, in a Democratic controlled Congress, voted to impeach? We're about to find out, it looks like:

Barely two years into office, "Judge" Hastings accepted a $150,000 bribe in exchange for giving a lenient sentence to two swindlers, then lied in subsequent sworn testimony about the incident. The case involved two brothers, Frank and Thomas Romano, who had been convicted in 1980 on 21 counts of racketeering. Together with attorney William Borders Jr., Hastings, who presided over the Romanos' case, hatched a plot to solicit a bribe from the brothers. In exchange for a $150,000 cash payment to him, Hastings would return some $845,000 of their $1.2 million in seized assets after they served their three-year jail terms.

In the US military, a DUI can be enough to lose you your security clearance. Cheating on your wife or having too much debt - you'll be swabbing the deck outside of the radio shack instead of reading message traffic inside of it. Taking a bribe gets you a free trip to Leavenworth, KS.

The Democrats won in part because they promised more responsible and honest oversight. With all the new Democrats in the House to choose from, Ms. Pelosi owes it to the Nation that elected her party and to the troops she supports to at least appoint an Intelligence Committee Chair who could meet the minimum standards for a security clearance in any military branch.

This scares the holy hell out of me.

The People of Michigan Overturn Grutter

A victory against racism in Michigan yesterday. The people repudiated Grutter v. Bollinger, eliminating racial preferences in state hiring practices. Even better, this decision came as a political, not judicial, mandate. Californian minorities have benefited from their similar decision.

Interesting, Jennifer Gratz, plaintiff in Grutter's sister case Gratz v. Bollinger, was the driving force behind the initiative.

Yesterday was a lot of things, but it was NOT a mandate for liberalism.

My Fear

When Professor Turner spoke Monday, he talked about the Khmer Rogue bashing babies' heads against trees when they ran out of bullets. Last night, I read one of Ronald Reagan's drafts of a radio commentary about the brutality of the Cambodian communists. Millions died who didn't need to die, because the United States abandoned the good guys. Americans ignored it, and now even otherwise well-educated law students ignorantly snicker that Communism could be a threat to anyone. But bin Laden took notice, and is counting on a repeat of our cruel and self-defeating indifference.

The Democrats were elected on the promise that while they would change course in Iraq, they would not abandon the effort. This is what America voted for - if the Dems betray that directive of the people, they will doom millions of human beings to the most brutal of deaths, send a clear message that America can't be counted on, and invite destructive Jihadist aggression on our own shores and against our interests.

I trust the American people, but I'm worried the Democrats will misinterpret their mandate and repeat this awful mistake:

It was a Democrat-controlled Congress that decided to sink free South Vietnam, by cutting off its supplies even of rifle ammunition after the peace treaty signed by Henry Kissinger and Le Duc Tho in 1973. It was Congress that ordered all U.S. bombing halted -- air strikes that could have made mincemeat of the regular North Vietnamese army, marching openly along the South's main highways in 1974. The U.S. never lost the war militarily, and could easily have won it without self-imposed restraints. But the enemy was more ruthless, and the allied will to fight evaporated.

Why did it evaporate? For the same reason then as now. The "alternative America", ruling from its ivory towers in academia, the media, and the entertainment industry, could not understand why anyone should die for any cause at all; could not distinguish between freedom and tyranny; and instinctively sided with any enemy of what they fancifully imagined to be "American imperialism".

My 21st birthday happened to coincide with the final evacuation of Saigon. From my modest experience on the ground in that country, I knew what was coming next. The boat people were no surprise to me. I think that was the day I fully realized, in adult terms, that evil often prevails in this world. So this is nothing new.

The fate that will befall all those millions of courageous Iraqis, showing the dye on their fingers after they had voted -- in defiance of all the terror threats -- will not come as a surprise to me, either. They are being sold out, as the Vietnamese were before them. But the consequences of abandoning Iraq will come home to the United States and the West, in a way Vietnam never touched us.

Will we act to preserve the people of the region we promised not to abandon? For the sake of humanity, freedom, and our own self preservation, I pray we do.

Democracy Wins

Well, I'm going to bed, but Publius demanded a concession. Here it is. I was wrong. You were right. I'll pay up directly. You need it more than me anyway.

The Senate still hangs in the balance. I think Talent will still pull it out, which is good for judges. (Maybe not - it just tightened again, and now it looks bad for Talent. Looks like we won't know who controls the Senate for a few months - ugh!) Why judicial nominations weren't a bigger issue in this campaign I'll never know.

I'm disappointed, but only a little. I worry about national security, and don't trust the 109th Dems on the subject. But I have faith that the new Democrats that were elected, especially from the Midwest, will take their responsibility seriously. I think the center of balance has actually moved a little to the right. And I think the American people get the big things right. (And even if we don't, we correct ourselves quickly - we survived the Carter Years, after all.) The Republicans didn't deserve to win, and it may be that a banishment to the wilderness for awhile is exactly what they need to return to the values I'm certain they share with the American people - spending, immigration control, etc.

And I've learned that I have work to do as a prognosticator. I'll take solace only in that I had the guts to put it in writing under my own name for all to criticize... I'm generally comfortable in my arrogance, but a little humble pie is usually good for us all.

Here's what I will say. You'll never see me wear black on the day after an American election, or sit around and mope. To do so is un-American, and I use that word as strongly as I know how. Every election we have in accordance with our two-centuries-old founding document represents a transfer of power without violence, with extraordinarily minimal cheating, and with grace befitting a great nation. Candidates will call their lawyers, not their militias, and the decisions of judges will be obeyed willingly. I won't ever accuse people of "voting against their economic interests" - people know what they're voting for. No matter how much we dislike candidates or outcomes, it is shameful to react with anything but joy over that fact. Shameful.

So there it is. I'm glad it's over, and now we move forward. On this night I'm proud to be an American. God bless America, and may our children tell us we did the right things at this most dangerous time in our history.

Scrolling Election Coverage

Check the comments for my prognostiction goofs, triumphs, and other reaction.

Predictions - Like Hindquarters

So. I have a few ducats on the line with Publius over this election, having given him 5:1 odds last May that the GOP will retain the House of Representatives. Fortunately, I haven't run out of student loans this quarter. But while I'm no longer in the Land of Certainty, I'm still optimistic here less than six hours before the polls open on the East Coast, where this election will be decided. So here, just for fun, are my predictions for just who the winners and the losers tomorrow will be.

Senate

• RI: (R) Chafee, +2. It shouldn't. But I think he's just that entrenched. I'm not going to say that if he wins, some fraud will necessarily have been involved. But Rhode Island had to be bribed into ratifying the Constitution because the corrupt leaders didn't want their applecart looked at, and I don't think it's changed a whole lot since. It's like Chicago or New Jersey for Democrats, only quieter. I don't like Lincoln Chafee, and I don't trust him, and if he loses without losing the GOP their majority, I'll be just fine with it.
  
• TN: (R) Corker, +7. I've got nothing against the Playboy Mansion, but if you're going to campaign from the pulpit, maybe you ought to give Hef a raincheck. I think the nail in Ford's coffin was when he was seen as being oversensitive to the non-racist blonde chick ad.
  
• NJ: (D) Menendez, +3. I really thought this could go the other way, with the NJ Supremes typical judicial activism on display with gay marriage, and Menendez' many ethical issues. I think it's going to be much closer than the polls indicate. But NJ is just too blue, and with party machinery that makes RI look like Rebecca of Sunnybrook Farm.
  
• MO: (R) Talent, +2. This is anyone's game, but the GOP get out the vote (GOTV) effort is stronger here. That, coupled with the power of incumbency, gives him the edge. Conservative leaning voters, smart enough to know the difference between embryonic stem cells and other, more effective and less morally questionable kinds which Talent does support, will be irritated enough by Marty McFly's disingenuous (about Talent's position, not his disease) meddling to bump the edge up another notch.
  
• VA: (R) Allen, +5. There's a LOT of military in VA. Kerry's comments will help Republicans here like nowhere else. The only reason I don't have Webb down more is that Allen's lame book character attack backfired, in my opinion.
  
• MT: (R) Burns, +1. This is anyone's call, but again, this is a place where Kerry's comments really did some damage. Burns probably doesn't deserve to win, either, but I don't know that people dislike him more than they dislike John Kerry's ilk in charge of the Senate. This race will depend greatly on the East, though - if Dems do well early, Burns could lose his edge in the turnout.
  
• PA: (D) Casey, +6. I think Santorum's GOTV is better here than people give him credit for, but he's just too far to the right for this state. Casey is socially conservative to take that advantage away from Santorum, and to appeal to the Truman Democrats. But we haven't seen the last of Rick Santorum.
  
• WA: (D) Cantwell, +6. Here, too, I think the GOP GOTV is better than people give it credit for, but hell, I almost voted for Cantwell because I wanted to support Democrats who are grownups on national security, and I think she is. She's weak, but will prevail. Her victory will be diminished by the Libertarian and Green candidates, who will get a lot of anti-war votes by people who feel Cantwell is safe.
  
• OH: (D) Brown, +7. I think the polls are overstated here against DeWine. But state party politics are rife with corruption, and the Republican party there is incompetent, out of touch, and should be condemned like an old building. +7 is a generous nod to the GOTV.
  
• MD: (R) Steele, +3. Big upset here. Massive black, traditionally Democratic support usually taken for granted by Democrats will be key. Race can unfortunately play havoc with pollsters - people often give "PC" answers and then vote differently in the booth. In this case, that means blacks who will give the "right" answer as to which party they support. A lot hinges on this - if MD looks to go earlier, it will energize late voting Republicans and demoralize Democrats.
  
• AZ: (R) Kyle, +7. Being in a safe position, Republicans will feel more free to punish the wayward party with non-votes. This will trend left of the polls, while most states the GOTV effort will put the GOP ahead of predictions.
  
• CT: (I) Lieberman, +12. Republicans have adopted him, traditional Democrats have always loved him. Schlesinger is a joke. Lamont has thrown in his hat with the children of the nutty left. This was to be the victory of the Kossacks. But Americans of all political stripes (except, apparently, in Massachusetts) want grownups in charge. Lamont and his band of 60's retread neo-hippies are about to be told to go get their shineboxes, and I'm going to enjoy every second of it.

Unless I miss my math, that's only a net loss of one seat to the GOP. Maybe my partisan optimism is too much, but we'll see. If Steele pulls it off, the GOP keep Montana. If Steele loses, it could wind up being a net loss of 4 for the GOP. But I think Steele will win.

The House

I predict the GOP will lose 12 seats, and barely eek out control. This could easily go as many as 8 more seats the other way, but I am confident that the Democrats, if they gain control, will not do it by more than 5 seats.

Locally, McDermott will win with about 75% (sigh). Burner will lose by 8, and will re-join us here in law school unaware that her close run had everything to do with Bush discontent and nothing to do with her.

I base this on a couple of things:

1. The GOTV effort is just better for the Republicans. A friend who lives in Ballard yesterday told me that a McDermott worker knocked on his door. Anecdotal to be sure, but if this is any indication at all on how the Democrats are spending their resources, they're being wasteful. I think it's worth a 2-3 point bump in almost every district.
2. The Kerry comments. In one dumb move, he reminded them of why Democrats aren't better than the disappointing GOP, just because they're not Bush. Worth another point on average.
3. Polling Data. Polls usually err towards Democrats, although that effect is less so closer to the election. But I think that Democrat error is increasing. Younger voters tend to be more conservative (more on that in another post), and are less likely to have land lines. Pollsters don't call cell phones. This is worth another 2-3 point edge in even the more accurate polls.

Frankly, I even question if the numbers are going to be all that different from 2004. I think that at the end of the day, even though it's easy to tell a pollster you're irked at the President, it's another thing to be in the booth on election day and wonder if anti-Patriot Act Nancy Pelosi can keep your kids safe.

There are other reasons - resentment over MSM cheerleading, over-reliance on urban voters, etc.

One thing is for certain. Whatever happens, our nation will continue to grow, to thrive, and to be the Shining City on the Hill. I believe in the profound wisdom of the American People when they come together to make the big decisions, and will accept their verdict, even if I don't agree with it. And that's why I'm optimistic no matter what tomorrow's impact on our government - or my bet with Publius - may be.

The War - History, The Enemy, and The Stakes

This is one of the best explanations I've seen of why we're in Iraq, why it's so important to stay, and why who we vote for tomorrow matters.

Executive War Powers - What Did You Think?

Was Professor Turner correct about the intended scope of the Executive near-monopoly on war powers? Even if he was, should a "living constitution" limit those powers now? Can we trust Congress to act decisively or with necessary secrecy in the arena of foreign affairs? Tell us what you thought.

For my part, I want to note that anyone who had Professor Allen for 1L Constitutional Law did, in fact, discuss the power of the Constitution's command that "The executive power shall be vested in a President of the United States of America," and that this command came with extraordinary and nearly exclusive power over international affairs. I think it's fortunate at this difficult time in our history that President Bush has fought to maintain and reclaim this Executive duty.

War Powers and the Constitution Event - TODAY

Think this administration has gone too far in asserting the power of the executive? Not far enough? Join us today at 12:30 in room 117 for a talk on "The Separation of Constitutional Powers over War, Diplomacy and Intelligence: What would the Founding Fathers have thought" by Professor Bob Turner, founder of the Center for National Security Law at the University of Virginia Law School.

Lunch will be served.

Justice Scalia at 20

"Indeed, Scalia's tenure on the Court may be understood as an exercise in standing athwart history yelling stop--athwart the decades-long succession of cases by which the judicial power was transformed and the justices became lawgivers. During his confirmation hearing in 1986, Scalia told the Senate Judiciary Committee, "My only agenda is to be a good judge." It is clear in retrospect--if it was not at the time--that "a good judge," to his mind, was not the sort that had often preceded him to the High Court."

Well said. Read the Weekly Standard's whole piece.

I think Chief Justice Roberts and Justice Alito will be better - more consistent, more humble, and less caustic. And I think Chief Justice Rehnquist truly deserves the most restorative trailblazing credit. But Justice Scalia's efforts have made the ascendancy of a more restrained and conservative judiciary possible. Without him, I don't know that we have a Roberts or an Alito, and I think Justices O'Connor and Kennedy would have "evolved" much more than they did.

Justice O'Connor's Disappointing Speech

Saturday night I was lucky enough to have been selected in the lottery to hear retired Associate Justice Sandra Day O'Connor speak to honor the Gates Public Service Law Scholarship. Sadly, while her speech was quite good in a technical sense (entertaining, geared towards her audience, not interminable), the content was surprising and disappointing.

Because the entire point of the event was to push a public service scholarship program, she tailored her remarks to that subject. That in and of itself is commendable - all too often a famous speaker will simply give their stock speeches and not take the time to consider the people who have come to hear them.

But Justice O'Connor spoke of encouraging public service as a civic virtue, and that we should be doing everything we could to get more people to work for the government. She lamented that so many law students are "forced" to go work for firms because of their overwhelming student loans. She cited numbers that showed the average law student graduates with a loan burden of around $15,000, and then said she thought that was low because her law clerks were looking at closer to $50,000. She even suggested that it was too bad the non-profits were stealing the talent away from the public sector.

I was frankly shocked. I kept thinking, "How is this a Ronald Reagan appointee?"

With due respect to the Justice, it's just wrong that government jobs are the only - or even the best - way to serve the public. Frankly, more people in government is the LAST thing we need! Private attorneys do mountains of charitable work, mostly in the form of providing pro bono legal services. As Bill Gates, Sr. himself proves, one of the ways to have the biggest impacts is to make a boatload of money in the private sector first, and then get all charitable with your time and money. And even the stingy and selfish in the private sector do more to help the public than they were given credit for, just for the fact that they create jobs, help our vibrant economy grow, and aren't relying on the taxpayers for their salaries and health benefits.

With the possible exception of public defender's offices, I find it hard to believe that any government legal positions are really that hard up for applicants. The pay may not be as good, but the benefits and job security are unmatched, and most public sector attorneys work much saner hours than those who slave away at firms.

And as tough as they are, law school loans - especially at our low cost school - are just not an unreasonable burden considering the return-on-investment a J.D. provides. You just don't see a lot of attorneys living in vans down by the river. Even a career public defender can (with some smart investing), live and retire quite comfortably.

The one government/public service sector that was notably absent from her comments was military service. It's also notably absent from the Gates Public Service Scholarship winners, and I have a feeling it will be overlooked in the future, too. Why is a commitment to public service shown more in liberal activist groups like "California Peace Action," abortion advocacy organizations, or the ACLU than after a tour in Afghanistan? Which person has actually had a more significant impact on world peace and justice, humanitarian efforts, and introducing democracy - and at greater personal risk than suffering an extra few years of loan repayments? I have a feeling it simply never crossed the committee's mind. And that's sad.

The man giving the intro spoke strongly about the Justice's commitment to "justice," citing her protection of affirmative action, expansion of substantive due process, and making "principled" decisions as opposed to the ones she was "supposed to make." But whatever the virtues of those policy goals may have been, I wished she'd pursued them in a legislature where they belong. Our ideas of what make a principled jurist are clearly different.

I've always felt in reading Justice O'Connor's opinions that, while I agree with her votes more often than not, she's always been a policy maker on the bench. Saturday's speech drove that point home perfectly. I'm glad she was able to make the time to come speak, and that the event planners made so much room for law students - it's always fascinating to hear what such a powerful person has to say (not to mention the phenomenal food!). But I'm equally glad Justice Alito has replaced her on the High Court.

How Not To Apologize, Part II

I've written about lame political non-apologies before. But let's review what not to do:

1. Say something insulting (on purpose, misunderstood, or Freudian slipped - it doesn't matter) about the intelligence of active duty military personnel a week before a tight election.
2. Go on TV in liberal Seattle, waggle a rhetorical finger, and announce that you "apologize to no one."
3. Take a brow beating from your betters within the party who can recognize your stupidity better than you. Wait until any offered apology looks like what it is - insincere political pander.
4. Post on your website (as opposed to making any kind of speech or public appearance) that you're sincerely sorry if people were too stupid to understand the obvious meaning of your comments, which goes double for all the troops, vets, and their families that you support, and who you would never criticize, even if they ARE too stupid to understand said comments. (It helps if you've had a long history of lying about the alleged atrocities of our servicemen and women.)
   
5. Post an editorial on your website saying that while you simply botched a joke about Bush, as anyone who's not stupid clearly understands, even if you had said that people too stupid to get an education would suffer the pitfall of military service, you would have been right - all those service people you would never malign really are stuck in Iraq because they couldn't navigate the education system and didn't do their homework. (Make sure you spend some extra effort making fancy graphics so people know it wasn't just a randomly linked article, but something you stand behind for support.)
6. Rinse, lather, repeat. See the other party surge in the polls because you single handedly reminded their base why they voted for the other guys last time.
   
7. Blame it on Karl Rove when Republicans easily retain the Senate in a year they should lose it badly, and even if they lose the House, lose it by a much slimmer margin than history says they should lose it by.

How has this guy survived in politics this long? Even in Massachusetts?

Most people already know this, but here's the demographic breakdown of entering military recruits, showing just how much better/smarter-than-average the average recruit really is. What a shocker - John Kerry and the Seattle P-I have their facts wrong...

That Kerry is criminally stupid is no surprise. That anyone in his party come to his defense is. Such excuse making does not speak well of his defenders, or their true feelings about who it is standing on the front lines of the fight against fascism.

John Kerry Should Be Thanked For His Honesty

I was so happy to see John Kerry's remarks yesterday about how if you're stupid, you get "stuck in Iraq."

Not that I wasn't massively offended. Here, I play both my veteran card and my from-the-South-Dakota-trailer-park card. The Navy was a great opportunity for me, but it certainly wasn't my only one. And ultimately, I chose to serve even after a really negative ROTC experience because I decided I owed my country my service. And so my very first reaction to John Kerry's latest bits of wisdom includes words and phrases better suited to the ship than to public writings. He is truly beneath contempt.

But then I realized that this was preferable to the pander about how everyone "supports the troops" (a phrase almost without meaning). Because the bottom line is that Kerry doesn't, and neither do the liberals he was appealing to at the California rally or at his hole-digging press conference here in Seattle the next day. The far left Phil Angeledes supporters and Kerry himself hold military people in deep, deep contempt. It's not universal from liberals, but it's pretty darn close. I saw it all the time from people in college, and even back home - "Why would you join the military? You can do other things!"

This morning I was flipping around the radio on my way to school, and turned to Hippy Radio to see what they had to say about it. Predictably, Stephanie Miller said Bush was the one who should apologize to the troops. Yawn. But then she took a call from a listener that insisted Kerry was right, and that if they'd just poll the troops they'd see that they all were forced to join the military because they didn't have any other options. The host agreed, but then quickly pointed out that wasn't what Kerry REALLY meant. Right.

Even worse, the military are actually much better educated than their civilian peers. Not only was he a jerk, he's just factually wrong.

Last night on Hannity and Colmes, John McCain was visibly angry in denouncing Kerry's comments. And remember, this is from the guy who was mad about the Swift Boat Vets.

The bottom line is that they believe that the military is the last refuge for the dumb who couldn't get into Community College, because the vast majority of liberals wouldn't even think about joining the military. I believe they're sincere when they say they "support the troops," but they say that like they say they support infants. There's no respect there, and there's an insulting ignorance about the men and women currently serving, why they're serving, and their education levels. And worse, they think "supporting the troops" means to keep them home at all costs. You can't tell me Eisenhower didn't support the troops, but they were less well equipped, trained, treated, educated, and led than our soldiers are now.

Kerry claims he meant to insult the President, not the soldiers. I believe that, too. But the Vietnam "Baby killer!" shouting anti-war protester he came of age as reflexively came out instead. It's hard to contain your true beliefs constantly. This was the ultimate Freudian slip.

Kerry said that you're "crazy" if you think that "a veteran would criticize the more than 140,000 heroes serving in Iraq and not the president who got us stuck there[.]" Well, call me crazy, but Kerry did just that, and has done it his entire adult life. (He actually did both in this case, so his statement isn't technically wrong.) But remember, this isn't the first time Kerry slagged active troops in combat zones as a veteran. Anyone remember his completely false allegations of war crimes and "in the manner of Jen-jis Kahn" Senate testimony? The MSM doesn't. How about his more recent comments that American troops were "terrorizing" Iraqi women and children? Kerry criticizes troops all the time. He's arrogant and elitist, and anyone that didn't go to Yale or marry a bajillionaire ketchup baron is naturally less smart than he is, which includes pretty much everyone in uniform.

But again, I'm happy. This election is about the base, and now the base is mad. POed, in fact. Michael Savage, who has spent the last few months explaining how no one should vote for Republicans, either, was on the war path yesterday, saying the Kerry comments were a "personal turning point" for him on for whom - or if - he should vote. Millions of others, unhappy with Republicans and with no particular reason to vote against Democrats, surely feel the same.

Dick Morris has more numbers:

Among independents, the percent that plan to vote Republican has risen from 15 percent on Sept. 22 to 23 percent on Oct. 11 to 26 percent on Oct. 24. While independents are still voting for more Democrats, it'’s only by 38-26 compared with 38-15 last month.

But as the Republican Party has gained among Independents, it is losing its base. Republicans who plan to vote Republican in 2006 have dropped from 75 percent on Sept. 22 to 72 percent on Oct. 11 to 68 percent on Oct. 24! Obviously the impact of the Foley scandal has yet to diminish among the morality-minded Republican base.

Foley who? Morris wrote this before Kerry's political suicide vest went off.

This may well have solidified the GOP get-out-the-vote advantage, and will serve to retain the Congress for the Republicans. I hope it does, and I hope further that this puts the exclamation point on the end of John Kerry's contemptible political career.

UPDATE: Here's the forced "apology." Too little. Too late.

Happy First Bloggoversary!

This blog has been active for a year now, and it's been a huge success! In that year, there's been 182 original posts and 594 comments. Since I started keeping track on May 31, 2006, we've had 4,584 unique visitors. It's been a ton of fun, and great writing practice.

Remember, if you're a member of our chapter, you're free to post. Send me an E-mail if you need to get registered, or if you've not posted in awhile and need to reset your account.

We'd especially like to thank all the readers who have made it a success, and would like to take the opportunity to ask you what you'd like to see on this site in the future. We're always looking for more readers and more debate. What are your suggestions? Thanks in advance for your input - feel free to either leave a comment below or contact me directly.

Thanks again for a great year!

I-933 Debate - What Did You Think?

I'd like to say thank you to Steve Hammond and Tim Trohimovich for taking the time to help us wrestle with I-933 today, to Greenlaw for laying so much of the groundwork, and to all the people that came to the event. It was fantastic!

Once again, the complete text of the initiative is here.

Please let us know what you thought, and what you'd like to see to make our events better in the future. Thanks again!

BUMP: I-933 Debate this Tuesday

Don't forget...We're co-hosting an event with Greenlaw this Tuesday (10/24) on the upcoming I-933 initiative. Find out - is this initiative absolutely essential for the protection of property rights or an utterly intolerable restraint on planning and land use?

The initiative, if passed, promises to have some pretty dramatic consequences for property rights and the ability of municipalities to plan their growth effectively. You can read the text of the initiative here.

We hope to see you there!

"It so happens that everything that is stupid is not unconstitutional."

Justice Scalia said that beautiful little truism earlier today during an appearance with fellow Justice Samuel Alito.

I think much of the press - if it notices the event at all - will probably focus on his statements about the "independence of the judiciary" not being an unqualified good thing, leaving the context out, of course. Here's more greatness:

"Take the abortion issue," he said. "Whichever side wins, in the courts, the other side feels cheated. I mean, you know, there's something to be said for both sides."

"The court could have said, 'No, thank you.' The court have said, you know, 'There is nothing in the Constitution on the abortion issue for either side,'" Scalia said. "It could have said the same thing about suicide, it could have said the same thing about ... you know, all the social issues the courts are now taking."

Scalia said courts didn't use to decide social issues like that.

"It is part of the new philosophy of the Constitution," he said. "And when you push the courts into that, and when they leap into it, they make themselves politically controversial. And that's what places their independence at risk."

I hope Justice Owens was listening...

What's Really Happening In Iraq? And Does America Still Have the Will to Win?

Unquestionably, the violence and seeming endless chaos in Iraq is disheartening to those of us who understand its central importance in the global war on Islamo-Fascism. Failure now - whether due to poor execution or simply surrendering - would have catastophic consequences to our nation and to the world. But is there really no end in sight? Or is there reason for hope?

It is important to remember that most of us (including most politicians) see Iraq through the Western Media, an overwhelmingly liberal conglomeration that is stridently anti-Bush and anti-Republican. This media has now stooped to unfettered airing of Fascist propaganda, consequences to the nation be damned, because they think it will hurt the GOP. And even without their political bent, when was the last time we heard a report on Iraq politics? Successes of any kind? Ba'athist death stats alongside the American death numbers? Most reporters never leave the green zone, and face abduction and beheadings if they do. No thinking person can or should take most news reports from Iraq simply at face value, or think they represent the whole of the situation in that country.

Articles like this one from Amir Taheri give me hope:

Iraq today is the central battlefield in the global war between two mutually exclusive visions of the future. Yet the jihadists now know they can't win on that battlefield. After three years of near-daily killings, often in the most horrible manner imaginable, they've failed to alter Iraq's political agenda. Nor have they won control of any territory or even broadened their constituency.

The jihadists have suffered thousands of casualties, with many more captured by Coalition forces and the new Iraqi army and police. Despite more than 120 suicide operations, and countless attacks on civilian targets, the jihadists have been on the defensive since they lost their chief base at Fallujah last year. Their strategic weakness: They can't translate their killings into political gains inside Iraq.

They kill teachers and children, but schools stay open. They kill doctors and patients, but hospitals still function. They kill civil servants, but the ministries are crawling back into operation. They kidnap and murder foreign businessmen, but more keep coming. They massacre volunteers for the new army and police, but the lines of those wishing to join grow longer.

They blow up pipelines and kill oil workers, but oil still flows. They kill judges and lawyers, but Iraq's new courts keep on working. They machine-gun buses carrying foreign pilgrims, but the pilgrims come back in growing numbers. They kill newspaper boys, but newspapers still get delivered every day.

All Americans must understand that the enemy intends to use our media and our perceived soft impatience against us. Declarations of defeat or calls to retreat behind our porous borders must be seen in the context of this Jihadist goal. Those Americans and other Westerners who make such proclamations do not understand the central strategy of attrition our enemy has employed since Osama was first emboldened by our flight from Somalia. Remember, this strategy worked against us in Vietnam, in Cuba, in Yemen, in Beirut, in Iran (until Reagan), in Somalia, and even in pre-9/11 Iraq. Either we left completely, or gave only token responses.

Not since 1945 have we shown the collective will as a nation to truly defeat a world-wide enemy. Even when Reagan inspired us to victory in the Cold War, he did it with a reluctant Congress and a hostile press drug along behind. Some Democrats and that same press, bitter over the public's choosing of Reagan over them, are now seeking their revenge in what I charitably assume they must not know would be a devastating pyrrhic victory. They cannot see past Bush, and so they are blind to the greater needs of American security. And in part because Bush lacks so many of Reagan's gifts, millions of Americans are happy to follow down this unthinking and unthinkable path.

Is our enemy right? Have we given up?

America is the only nation with the power, strength, and influence to stop the millions and millions (and growing) adherents to the Jihadist Culture of Death, dedicated to world wide imposition of Sharia law. Europe is under assault, has already all but capitulated. Israel has lost their first war. The UN is in the pocket of the enemy, and Russia and China care nothing for American safety. We stand alone.

But just as we are the only nation who can win this clash of civilization against barbarism, this conflict is also ours - and ours alone - to lose. Far too many of us are bent on doing just that, even while blind to the peril they are putting us all in.

I am still optimistic that our great Republic and our Constitution have many more centuries of life, and that this grave threat shall be overcome by the forces of good. But I have for many years now given up the notion that victory is a foregone conclusion.

It's up to us. All of us. Up to CNN not to demoralize us with needless and newsless snuff films; up to Republicans to stop being stubborn and be more flexible and more ruthless; up to Democrats to shake of their hippy past and stop letting the enemy use them for their rhetoric, or to think more cargo inspections will keep us safe; up to our security agencies not to leak classified information to the press for any reason. We don't need to grow victory gardens or ration rubber, but we do need to stand up and say to the Islamo-Fascists with one voice that we will stay in Iraq because they are there, and will not leave until they are gone. And we will stay in Afghanistan because they are there. And we will stay on Iran's case because their belligerence is incompatible with Democracy's survival.

It's up to us. Can we do it?

More 1974 Than 1994

Ordinarily, divided governments don't bother me - a measure of infighting and inefficiency can be very good for individual freedom. But these are not ordinary times. John O'Neill does a fantastic job recounting the devastating consequences the last time Americans insisted on a wholesale replacement of inadequate Republicans with self-loathing liberal Democrats - millions of lives lost abroad, real abrogation of our world wide reputation, and a strong economy reduced to shambles. And Jimmy Carter wasn't able to appoint a Supreme Court Justice...

The Stranger Praises the Federalist Society

Whoduthunk? The hippy tabloid sent a rep to cover last week's Lawyer's Chapter DOMA event, which was indeed phenomenal. I think they came to some different conclusions than I did, but it was nice to see praise of grown-up, nuanced debate - no matter what side of the issue one happens to fall.

Naked Judicial Elitism on the Washington Supreme Court

In the Seattle Times, State Supreme Court Justice Susan Owens elucidates her respect for the wisdom of the people to choose their government, and by extension, democracy itself.

Johnson and other critics say Owens' position in both cases is proof that she is a liberal "activist" judge who is too willing to decide policy matters that should be left to the Legislature.

But Owens suggests there are times the court has to play such a role.

"The Legislature is really behind the times socially," she said during a recent interview with editorial writers at the Yakima Herald-Republic.

Wow.

The Legislature defines where we are socially, because they represent the "social" body that is our entire electorate. Who is she to say who's "ahead"” or "“behind"” that? And even if we are "behind,"” that'’s explicitly not the role of the judiciary to make those changes. This is tyranny of the elite stripped bare for all to see.

It's ironic that liberals are wailing and gnashing their teeth over conservatives "buying" seats on the Supreme Court, just because they dare to fund and run a competitive campaign. Do you think Owens' financial support from gay-activist groups had anything to do with her extra-legal votes in In re L.B. or Andersen v. King County? Nah... Not that I'm blind to the probable influence the BIAW would have on Johnson (among many reasons I think judges should be appointed), but at least he's not openly advocating judicial policy making. And frankly, I contend that the BIAW and Johnson's other bi-partisan supporters (as opposed to Owens' exlcusively liberal ones) support him because they know that the statutes as writen and the popularly elected legislatures that enact them are already on their side. All they need is a Justice who will follow the law instead of her predetermined policy predilictions.

The Post-Intelligencer calls the "legislating from the bench" attack a "slur" that threatens a "fair, impartial and independent judicial system." But Justice Owens is legislating from the bench - by her own admission. And you can't be "fair" or "impartial" if that's what you're doing. What's more, it's disturbing to see the P-I so ignorant of the larger danger of upsetting the careful balance of our government's seperated powers. A Judicial Superlegislature does nothing to protect our rights.

Justice Owens openly declares that she thinks it's perfectly appropriate for a Justice to make policy from the bench, when she and she alone decides where we should be "socially." For that reason alone, she's unsuited to be there.