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.