It's Gotta Be Those Darn Catholics!

So suggests Professor Geoffrey Stone on the University of Chicago Law School's Faculty Blog, blaming our "faith based justices" for the Gonzales v. Carhart partial birth abortion decision correctly upholding the ban. After making his own factual assertions (including, amusingly, that partial birth abortion procedures are taught at many law schools) meant to show that the bi-partisan legislation enjoying overwhelming public support was completely irrational, he said:

"What, then, explains this decision? Here is a painfully awkward observation: All five justices in the majority in Gonzales are Catholic. The four justices who are either Protestant or Jewish all voted in accord with settled precedent. It is mortifying to have to point this out. But it is too obvious, and too telling, to ignore.
***
"By making this judgment, these justices have failed to respect the fundamental difference between religious belief and morality." (emphasis added)

That's right. It couldn't have anything to do with the fact that the five justices very correctly believe that Congress as a whole is better equipped to make factual findings than 9 lawyers, or that the "settled precedent" is hardly as iron clad as he claims, or that the entire line of abortion cases were wrongly decided from the start. It was the people of the United States, through their representatives in Congress across the political spectrum, who overwhelmingly came to the moral and factual conclusions - not just five justices who happen to be Catholic.

How typical. If a judge doesn't follow the reasoning of a most learn'd professor, it can't be that the professor is wrong, or even that there could be two legitimate but different interpretations of the existing law. No! There must be some nefarious motive! Perhaps the Court's opinions are now being routed through the Vatican for approval. Maybe the Freemasons have something to do with it. Wasn't it Justice Scalia holding the camera in the studio where they faked the moon landing?

When called out on this absurdity by many comments on his post, other bloggers, and even Professor Rick Garnett on the same blog, Professor Stone responded by resorting to what may be the most tired and dishonest meme in academia - "I was just trying to make people think."

"I also acknowledge that the fact that all five Catholic Justices voted together in this case to make up the 5-to-4 majority might have nothing to do with their religion. These five Justices often vote together on matters having nothing to do with religion. Perhaps Carhart was just coincidence. Perhaps it was a reflection of their common approach to constitutional law that has nothing to do with their religious convictions. The point of my post was to pose the question and to invite people to think about it." (emphasis added)

How good of him to so "acknowledge." But with respect to the Professor, that was not the point of the post. The point, made clear in the title "Our Faith-Based Justices" and made even clearer in the direct statement that "these justices have failed to respect the fundamental difference between religious belief and morality," was to answer a question, and make an (untrue) accusation - that the majority intentionally ignored settled law to make a decision based on their personal policy preference. How ironic that a defender of Roe v. Wade would be upset by such a thing...

Accusations like this seek not to inform the debate over how to use and interpret our Constitution, but to stifle that debate by making it illegitimate. "Limited government or a well documented history of judicial restraint isn't their motive, their real goal is to institute a papal theocracy! No reasonable person could have come to the majority's conclusion, this is what happens when we let those ignorant religious nuts vote!"

This attitude is intellectually bankrupt and profoundly un-democratic. Sadly, neither intellectual rigor nor respect for democracy are de rigeur in academia these days.

Encouraging the Enemy Kills American Troops

Raise your hand if you think al-Qaida's deadly bombing in Baghdad yesterday had nothing to do with Harry Reid's "the war is lost" pep talk for the enemy? The Arab and Iranian press certainly had a good time with his comments. The soldiers seem to think increased violence and defeatism at home could be related.

Even if a US leader honestly was of the opinion that a war was lost, why would you say it? Somalia didn't have anything to do with 9/11, but our defeat there certainly emboldened our enemy, encouraging them to attack us. If the Democrats aren't going to join the fight for their civilization, is it at least too much to ask that they not actively fight for the enemy?

This is the danger of being so politically invested in defeat. If Iraq succeeds, the Democrats will face resounding defeats at the polls - and they know it. They need not have put themselves in this position, but they have through the language they've used. But they've gone so far over the line in their re-treaded Vietnam "America-causes-all-evil" rhetoric, that anything other than total failure there will eliminate their credibility for decades.

I'd rather the Republicans lose every election for the next 20 years than have us surrender in Iraq. The security of America comes first. It's unfortunate that the Democratic leadership can't say the same for their own strategies for power.

Reid clarifies

In an earlier post I had referred to Harry Reid's inconsistency (a kind word) in voting for the Partial Birth Abortion ban and then criticizing the court's upholding that ban. Turns out he actually supports the decision, his criticism was apparently aimed only at Alito. In his usual clear-headed and well reasoned and well informed way, this is how he clarified what he said:

"Recalling his many votes against partial birth abortion, he indicated he supported the court's decision. "I just don't like what Alito has done on other cases," he said. What other cases? "I can't recall," Reid replied, but he promised aides would let me know."

A smart move to have his aides get back to the journalist, because when Reid recalls, he makes a complete hash of things. His aides eventually produced 5 cases out of the more than 50 that Alito's actually participated in. There is no record of Reid criticizing any of Alito's opinions or dissents till this vote on the Partial Birth Abortion case.

The man just talks rot nonstop. Surely the country deserves a better Senate Majority leader.

And the 2006-2007 award for Cognitive Dissonance goes to ...

Harry "I routinely vote for legislation that I feel is unconstitutional and downright evil" Reid. His statement on the decision handed down yesterday:

"Senate Majority Leader Harry Reid (D-NV) was among those who denounced yesterday's Supreme Court ruling upholding the Federal Partial Birth Abortion Act. Commenting on the decision, Reid said "A lot of us wish that Alito weren't there and O'Connor were there," indicating his desire that there has been a fifth vote to invalidate the statute, as Justice O'Connor had provided the fifth vote to invalidate Nebraska's partial-birth abortion ban in Stenberg v. Carhart."

Reid's vote on this bit of legislation that he clearly seems to think violates the constitution? He voted for it ...

The Seattle Times Shills for the Enemy

Today the Seattle Times published one of the most ridiculous excuses for surrender in Iraq that I've ever seen. Using this single photgraph ((c) 2007, Seattle Times), seemingly without context, they opined:

The image in Tuesday's newspapers was of a sea of Iraqi flags, as tens of thousands of Iraqis paraded in Najaf against the occupation of their country by the United States. If anyone were looking for an Iraqi answer to the "surge," it is in that photo.

There are those in America who still believe that a measured increase in manpower could bring about order and safety in Iraq. To them, we say: Look at the photos from Najaf. There is what they think of your idea. Ponder that crowd. See how many flags are in it. Think of the last time you saw American flags flying everywhere — what event had just happened. That was 9/11. Recall how people felt then. That is Najaf now. "Death to America," the crowd said. Thousands said it.

There is no arguing with a force like that.

The piece went on to argue that leaving with our tails between our legs was perfectly honorable, and not a surrender at all because we weren't giving our troops up as prisonoers.

Daring to, in fact, "argue[] with a force like that," I wrote the following letter to the editor. I've included links in this version.

Editor, The Times:

Your absurd editorial, “The Flags of Najaf,” represents perfectly the complete disconnect between the reality of Iraq and the head-in-the-sand leftist media vision of it.

You paint a picture of a popular uprising, a spontaneous demonstration from everyday people who just want America to leave so they can get back to their lives and businesses. Nothing could be further from the truth. First, you claim there were “tens of thousands” of demonstrators, when in reality, the numbers were closer to 5 – 7,000. Even the protesters themselves only were able to claim 10,000 – at most half of your claim. Either this is a sloppy oversight or flat dishonesty.

Second, you fail to mention that the demonstration was orchestrated by murderer Muqtada al Sadr from his hiding place in Iran, likely with logistical support and funding from Iran itself. This demonstration is actually a profound sign of this villain’s weakness, not strength. When the best he can do is get a few thousand people to waive flags as opposed to besting joint American/Iraqi forces in the field, things are definitely looking up. This was a failed attempt at enemy propaganda, and it takes a willful blindness to see it as anything other than that.

Finally, you laughably argue that leaving on a timeline demanded by those who have sworn to destroy our nation is not a surrender, as if Iraq is locked away in its own little hermetically sealed bubble. No serious person believes that leaving Iraq won’t have deadly consequences for the brave Iraqis still risking their lives to form their democracy, or for the safety of the United States itself. Iran’s fingerprints are all over the Najaf “protest” – does anyone seriously believe they aren’t a threat to us?

I urge the Times to stop going out of their way to shill for the enemies of America. Your readers deserve facts, not false jihadist propaganda.

I'm looking forward to their correction, of course.

Update: Shockingly, the Seattle Times didn't print my letter, or even include it in the "online only" letters. Oh, well. I suppose I understand, though - they had to make room for the guy informing us all about "Halliburton and the other fattening merchants of war" and "The unborn generations of Americans whose future has already been mortgaged by the Bush administration".

Journalism at its finest.

Iran to Monitor Iran's Nuclear Program

That's right. The UN - that "gravely concerned" international body charged with keeping world peace and dedicated to nuclear disarmament - has elected Iran as one of the vice-chairs of the UN Disarmament Commission.

In celebration, Iran once again threatened to wipe Israel off the map.

The most ardent foe of the United Nations couldn't make this kind of thing up. How is it that anyone thinks we should entrust our sovereignty or security to this organization? Does ANYONE seriously think the UN is in any way effective in keeping peace, preserving freedom, or saving lives?

Iran probes, the West retreats. They commit an act of war/piracy in another nation's territorial seas. As a result, they lost nothing and gained a humiliated Great Britain, some of the combatants they'd sent into Iraq to kill coalition soldiers back, and a cessation of any Royal Navy interdiction operations in the entire Persian Gulf. They openly pursue nuclear weapons, and are met with tepid concern from an international organization they (or oil customers who count on them) control - an organization known for doing nothing, at that. They attack Israel via Hezbollah, and even the United States accuses Israel of overreacting. They attack the United States in Iraq, and for fear of "starting" a war that they've waged against us for 28 years, our press and our government say nothing. In fact, with the full knowledge that Iran is the sole reason the insurgency is still able to exist (funding, training, etc.), our Congress is now attempting to surrender to Iran and their Iraqi fighters - fighting hard to accede to the demands of our enemy.

Perhaps they should save us all a lot of time and start drafting Constitutional Amendments that will conform with Sharia law.

And now, because both of them are heavily invested in an American failure in Iraq, Nancy Pelosi wants to once again violate the Constitution and the Logan Act, and visit Ahmahdinejad in Iran, further signalling that he can act at will with no reaction from the west save surrender.

When are liberals going to understand that the enemies we face, despite their shared hatred of George Bush, are not fellow liberals who just want to sit around, smoke weed, and like, get aLONG, man? That they aren't acting in good faith? That they are using our international institutions and press against us? That they already "understand us" just fine, and don't want to live in peace with us?

The genteel Europeans have already given up. British teachers have stopped teaching about the Holocaust because muslim students are offended. Scandinavian women wear headscarves and dye their hair black in many public areas to prevent the sometimes violent rape and harassment of the Islamic "youths" (who we are assured aren't radicalized, because some of them listen to rap - as if angry teens should follow some kind of consistent philosophy). Meanwhile, their governments cover up these crimes for fear of not being multi-cultural or tolerant enough. The intifada in France goes on, and typically, France is losing.

Are we to join them?

Iran has already determined that the west is doomed. The only question for them is whether the global caliphate with be Sunni or Shi'ite. And no western nation is doing anything to disabuse them of their assumptions.

80 years from now, when our great grandchildren are studying the history of this war, they will read about these events with the same incredulity as modern students have for the world's appeasement of Adolf Hitler in the 1930's. The only question is going to be how much damage we'll take before we decide to fight for our civilization. Or if it will survive at all.

SCOTUS Makes Up New Administrtive Law Standards out of Thin Hot Air

Joining such renowned scientists as Leonardo DiCaprio and Al Gore, five justices of the Supreme Court have stepped into the realm of politics and policy, left aside any concept of Constitutional limits on judicial power or the rule of law, and declared themselves experts on the global climate. This absurd decision, Massachusetts v. EPA, which can only be explained by the 5 justices' policy preferences in this area (as opposed to their ability to dispassionately evaluate a factual record and the legal standards), contorts the state of the law radically to achieve a policy end. Shameful.

The Chief Justice's dissent is powerful, and hopefully, is an indicator of the future direction of the court when the 5 legislators-in-robes step aside from their usurpation:

If petitioners' particularized injury is loss of coastal land, it is also that injury that must be "actual or imminent, not conjectural or hypothetical," Defenders of Wildlife, supra, at 560, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (internal quotation marks omitted), "real and immediate," Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S. Ct. 1660, 75 L. Ed. 2d 675 (1983) (internal quotation marks omitted), and "certainly impending," Whitmore v. Arkansas, 495 U.S. 149, 158, 110 S. Ct. 1717, 109 L. Ed. 2d 135 (1990) (internal quotation marks omitted).

As to "actual" injury, the Court observes that "global sea levels rose somewhere between 10 and 20 centimeters over the 20th century as a result of global warming" and that "these rising seas have already begun to swallow Massachusetts' coastal land." Ante, at 19. But none of petitioners' declarations supports that connection. One declaration states that "a rise in sea level due to climate change is occurring on the coast of Massachusetts, in the metropolitan Boston area," but there is no elaboration. Petitioners' Standing Appendix in No. 03-1361, etc. (CADC), p. 196 (Stdg. App.). And the declarant goes on to identify a "significant" non-global-warming cause of Boston's rising sea level: land subsidence. Id., at 197; see also id., at 216. Thus, aside from a single conclusory statement, there is nothing in petitioners' 43 standing declarations and accompanying exhibits to support an inference of actual loss of Massachusetts coastal land from 20th century global sea level increases. It is pure conjecture.

The Court's attempts to identify "imminent" or "certainly impending" loss of Massachusetts coastal land fares no better. See ante, at 19-20. One of petitioners' declarants predicts global warming will cause sea level to rise by 20 to 70 centimeters by the year 2100. Stdg. App. 216. Another uses a computer modeling program to map the Commonwealth's coastal land and its current elevation, and calculates that the high-end estimate of sea level rise would result in the loss of significant state-owned coastal land. Id., at 179. But the computer modeling program has a conceded average error of about 30 centimeters and a maximum observed error of 70 centimeters. Id., at 177-178. As an initial matter, if it is possible that the model underrepresents the elevation of coastal land to an extent equal to or in excess of the projected sea level rise, it is difficult to put much stock in the predicted loss of land. But even placing that problem to the side, accepting a century-long time horizon and a series of compounded estimates renders requirements of imminence and immediacy utterly toothless. See Defenders of Wildlife, supra, at 565, n. 2, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (while the concept of "'imminence'" in standing doctrine is "somewhat elastic," it can be "stretched beyond the breaking point"). "Allegations of possible future injury do not satisfy the requirements of Art. III. A threatened injury must be certainly impending to constitute injury in fact." Whitmore, supra, at 158, 110 S. Ct. 1717, 109 L. Ed. 2d 135. (internal quotation marks omitted; emphasis added).

At least the court only remanded to give the EPA another chance to explain their decision - Justice Stevens stopped short at crafting world-saving emissions standards for the EPA to implement. But as Justice Scalia notes:

Even on the Court's own terms, however, the same conclusion follows. As mentioned above, the Court gives EPA the option of determining that the science is too uncertain to allow it to form a "judgment" as to whether greenhouse gases endanger public welfare. Attached to this option (on what basis is unclear) is an essay requirement: "If," the Court says, "the scientific uncertainty is so profound that it precludes EPA from making a reasoned judgment as to whether greenhouse gases contribute to global warming, EPA must say so." Ante, at 31. But EPA has said precisely that -- and at great length, based on information contained in a 2001 report by the National Research Council (NRC) entitled Climate Change Science: An Analysis of Some Key Questions[.] *** I simply cannot conceive of what else the Court would like EPA to say.

I've written on this before, when the DC Circuit made the correct legal decision. As I said then, "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 question is not whether or not global warming is a "crisis," or whether not the EPA should regulate car emissions. The question is whether five unelected judges should be able to dictate massive, unimaginably complex, economy-threatening policy over the objections of both the Executive branch and the Legislative branch, by taking a vague statute and assigning it meanings it couldn't possible have had when it was written.

There is no more inappropriate place for judicial law-making than in the realm global environmental policy. That five lawyers think they can or should go there, when actual experts struggle to predict what the climate will give us 10 days from now, is contrary to what the Constitution ever intended.

CORRECTION: Justice SteVens' name was misspelled above, and has been corrected.

The Pelosi Seven's Unconstitutional Globetrotting

"Upon the principles of a free government, inconveniences from [multiple personalities in government] must necessarily be submitted to in the formation of the legislature; but it is unnecessary, and therefore unwise, to introduce them into the constitution of the Executive. It is here too that they may be most pernicious... In the conduct of war, in which the energy of the Executive is the bulwark of the national security, every thing would be to be apprehended from its plurality."

-- Federalist No. 70 (emphasis added)

"We have an alternative Democratic foreign policy. I view my job as beginning with restoring overseas credibility and respect for the United States."

-- Representative Tom Lantos (D-CA)

The danger inherent in Rep. Pelosi and her gang of seven's shameful trip to Syria was clearly foreseen by the framers of the Constitution. What Lantos doesn't understand is that how he views his job - and apparently how Pelosi sees hers - is directly at odds with the Constitution. In fact, how he "views his job" is irrelevant - his job description (at least as it relates to foreign policy) is pretty clearly laid out in the Constitution he swore to support and defend. In case he needs it spelled out, it doesn't include negotiations with foreign leaders in contravention of official US foreign policy.

The United States doesn't have separate Democrat or Republican foreign policies, it has A foreign policy. One. Period. And the execution of that foreign policy is the sole province of the President - the one the American people elected knowing full well he would be entrusted with that responsibility for the next four years, not the wanna-be one accountable to no one except a few hundred thousand hippies in the second smallest congressional district in the country.

It's bad enough when members of our government with more bombast than brains or influence do these kinds of things, like when Rep. McDermott went to Baghdad on the eve of war to show his support for terrorist-funding fascists over the President of the United States. This is the category in which I place the six shamefully seditious fools who followed Pelosi on her illegal errand, including the three Republicans. But when it's the Speaker of the House of Representatives, she's holding herself out as an alternative President - someone who will assure terror-sponsoring foreign leaders that they need not worry about the man in the White House who points out their evil or may impose sanctions. She's going as someone who announces - with credibility - that she has the power to thwart US interests and our Constitutional scheme, to the delight of our enemies. (And doing it while wearing a headscarf in submission to Islam, no less.) Whether that is her intent or not is irrelevant. She's aiding the enemies of freedom to the direct detriment of the people and the Constitution of the United States. What Jihadist can see one of the most powerful people in America treating a fascist terror leader as a statesman while wearing their religion's required attire and not believe victory over the blasphemy of liberal democracy is at hand?

This isn't a partisan issue, either. This is a precedent that, once set, can never go away. Imagine the howls that would have gone out from those now praising Pelosi had Newt Gingrich gone to negotiate with Slobodan Milosevic in between Clinton's ordered Tomahawk barrages. They would have been universal, loud, and correct. But not any more. There's no sanction for this beyond condemnation and outrage, short of a sedition charge (a card that sadly will never be played). If Pelosi gets away with this, we will forever have an "opposition foreign policy," with the party out of power seeking to undermine our own president in the halls of foreign governments.

Talk about the Constitution under assault.

Can any foreign power take a country seriously when independent factional heads each pursue their own foreign policies, each seeking to undermine the other? Lose tribal confederations do that, not Great Nations. Our Constitution gives us the method - we debate, then we decide, then one person acts with one voice beyond our shores. For two centuries, we've followed that model. Now the Speaker of the House (the only one of the seven with any real power, which is why her actions are the most worthy of scorn) has chosen to disregard that for her own short term ends. It's illegal and anti-American, and dangerous in the extreme at a time in history our lives and way of life depend on those who value freedom opposing theocratic fascism with one voice.

I can only hope the voters of this great nation choose to keep it so, and rebuke this behavior next year at the polls.

Why US Attorney Lam was Actually Fired...

...Why She Deserved It, and Why AG Gonzales Should Be Let Go Anyway

In National Review last week, Byron York put together a detailed history of the poor conduct of US Attorney Carol Lam. Bottom line - when even Senator Feinstein complains about poor enforcement of immigration laws, maybe it's time to take out a want ad for a new attorney.

Lam, of course, is the poster child for those who desperately wish this "scandal" actually was one. The accusations are that she was fired to prevent her from widening the investigation that took down Republican Congressman Duke Cunningham, which may have implicated more California Republicans. As Senator Chuck Shumer (no stranger to dodging US Attorney investigations himself) put it, "It came out in the newspapers that she was continuing to pursue that investigation, and it might lead to others — legislative and others — and in the middle of this investigation, she was fired."

If that were the case, one might expect a single shred of evidence of it in the 3,000+ documents released by the Bush Administration. And of course, one might imagine that her firing would have taken place a little earlier. After all, Rep. Cunningham had been under investigation since at least June of 2005 and plead guilty later that year. If she was fired to halt an investigation, why let that investigation go on for over a year before doing anything about it? In a broader sense, if the White House is shielding corrupt Republicans and hunting innocent Democrats, why is Duke Cunningham in jail and William Jefferson, Sandy Berger, Alcee Hastings, John Murtha, and Harry Reid running around free of those irksome investigators? And now with the new revelations about Diane Feinstein's conflicts of interest with regard to defense contracts, who really had the most to gain by stymieing Lam's investigation in southern California?

So then what was the reason? As York Reports:

[T]he Associated Press [...] reported that “the vast majority of people caught smuggling immigrants across the border near San Diego are never prosecuted for the offense.” The story was then picked up by CNN’s Lou Dobbs. And that, finally, got the Justice Department’s attention.

The revelations came amid increasing concern about the problem of illegal immigration. Suddenly lots of people wanted to know why Carol Lam wasn’t doing more. Even California Democratic Sen. Dianne Feinstein inquired. And as they did with [Representative] Issa [R-CA], Justice Department officials told Feinstein that everything was O.K. “Please rest assured that the immigration laws in the Southern District of California are being vigorously enforced,” Moschella wrote to Feinstein — at a time when Department officials themselves were not at all assured that the immigration laws in the Southern District of California were being vigorously enforced.
***
[Justice Department] officials began a statistical study of Lam’s operation. The numbers showed that immigration prosecutions in the San Diego district had gone down since 2004, even as they continued to rise in other border U.S. attorney districts. “When you compare San Diego’s performance using 111 Assistant U.S. Attorneys…and New Mexico, with 59 Assistant U.S. Attorneys but still generating more cases than San Diego, it seems that San Diego should be doing much more,” said an internal email from the office of Deputy Attorney General Paul McNulty.

So why does it fall to National Review (among others) to lay this all out for Lam, and for others? Lam isn't the only one who had good reason to be fired - our own US Attorney McKay ignored King County voting problems and then publicly threw down with his boss over a database policy. Similar stories surround the others. So why is it so easy for a private journalist to make this case, and so impossible for the Attorney General to? Again, York puts it best:

The picture that emerges from the evidence in the Lam case is of a Justice Department at profound policy odds with the U.S. attorney, preparing to take action against her, but at the same time ignoring or brushing off outsiders who criticized Lam on the very grounds that troubled Department officials. Added to that was a bureaucratic morass that made it impossible for the Department to do anything quickly. Together, those factors created a situation in which Department officials pursued a reasonable goal — finding a new U.S. attorney for Southern California — while denying to outsiders that they were doing it, taking far too long to get it done, and mismanaging its execution. In other words, it was an operation in which Justice Department officials did virtually everything wrong — except what they’re accused by Democrats of doing. (emphasis added)

It is not enough that public officials do the right thing, follow the law, and pursue correct policy. They must also be prepared, when possible, to clearly communicate reasons behind potentially controversial actions and policies - especially when faced with a virulently hostile press and an investigation-trigger-happy opposition-led Congress. This may be the Bush Administration's single greatest failing, and Gonzales makes Bush look like a great communicator. For that, and for his failure to prevent this non-scandal from becoming one, the Attorney General needs to go.

Cross-town Conservative Camaraderie

Bong Hits 4 Free Speech

The Seattle Times has an uncharacteristically good editorial on the high school free speech case heard last week before the Supreme Court, Morse v. Frederick. The case, if you've not heard of it, involved an 18 year old Alaskan high school senior unfurling the home-made banner (shown in the picture on the left) as the Olympic Torch was carried by. The kid and the principal apparently had a relationship not unlike Bart Simpson and Principal Skinner. From the SCOTUSblog:

The core facts that the two sides can agree upon are these: when the Olympic torch was being carried along Glacier Avenue in Juneau, Alaska, on January 24, 2002, 18-year-old Joseph Frederick held up a 14-foot banner with the message, “BONG HITS 4 JESUS.” (“Bong hits” is slang for smoking marijuana.) Glacier Avenue runs in front of Juneau-Douglas High School, where Frederick was enrolled as a senior. School Principal Morse crossed the Avenue, and demanded that the sign be taken down; Frederick refused, and the principal grabbed the sign and crumpled it. Later, Morse suspended Frederick for ten days, citing a variety of infractions of school rules. The Ninth Circuit found a violation of Frederick’s First Amendment rights, and found that the law was so clear on this issue in January 2002 that the principal was not entitled to legal immunity to money damages.

The school claims that this was essentially a "field trip," but it wasn't. It was not supervised. It was off school grounds. The event wasn't sponsored by the school. The kid was skipping school anyway, and showed up to the rally on his own, and made the banner in his garage. As the Times put it:

With children under its charge, and particularly on its property, a school needs to have a degree of authority, including over speech. That is why, for example, The Seattle Times opposes the bill sponsored by Rep. Dave Upthegrove, D-Des Moines, to give editorial control of high-school newspapers to the students.

***

But somewhere comes a limit to the school's authority. Outside school grounds, where politics meet the streets, school regulations fade and the rules are the same as applies to citizens generally, including free speech. Within the schools, access to free speech — from gang clothing to graffiti to pronouncements at school ceremonies — is necessarily within the realm of controlled speech.

Well said.

My only beef with the article (and the rest of the media reports surrounding the case) is the worry about "overruling Tinker v. Des Moines", which I don't think this case necessarily could do. Even if the Court sides against the former student, the compromises that would have to be reached in order to get those votes, along with the Chief Justice's desire for narrow rulings, would probably merely follow existing caselaw which permits schools to control obscene speech. Whatever "Bong Hits 4 Jesus" actually means, it seems difficult to call it "political" like the black armbands clearly were in Tinker, which means it's distinguishable.

But I hope the right outcome is achieved - that this twerp's obnoxious action done for no other reason than to antagonize his principal (and make no mistake, this is ALL it was) is found to be protected.

The limits of "Advice and Consent"

The current imbroglio over AG AG's handling of the U.S. Atty firings has me wondering: If the Senate wanted Mr. Gonzalez or any other cabinet-level officeholder gone, what are its options?

Its actions in the last few weeks demonstrate it can hold hearings and try to raise a big stink politically to force a resignation/firing.

But what if neither is forthcoming?

Actually, I'm not really concerned about the answer within the current context -- I doubt any of this will matter in 12 months.

But what if there was a truly, inarguably incompetent attorney general serving a second-term President whose VP has no desire to run for office ever again and who doesn't particularly like his own party's leading candidate to replace him. Under such a scenario, the President would be relatively well insulated from political pressure to remove any offending officials no matter how many p.1 headlines there were.

Again, constitutionally, what could the Senate do?

We all know that Art. II, Sec. 2 of the Constitution says the president "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint" officials like the AG. But the constitution is silent on whether, once given, the Senate has the power to withdraw that consent.

I have never really thought about this before, but it seems like an interesting question.

If the Senate were to vote tomorrow to withdraw their consent to Gonzalez's service (NY Post Headline: SENATE NOT GA-GA FOR AG AG) and President Bush were to insist he remain in office who would the Supreme Court side with and why?

Busy with finals but...

I was curious what people's thoughts were on the U.S. Attorney controversy. Seems like a pretty interesting convergence of law, professional and political issues and the blog's never been short on those.

DC Circuit Strikes Down Gun Ban

The beer is flowing like wine at NRA HQ. From the AP:

The U.S. Court of Appeals for the District of Columbia Circuit ruled that the city cannot prevent people from keeping handguns in their homes. The ruling also struck down a requirement that owners of registered firearms must keep them unloaded and disassembled. The court did not address provisions that prohibit people from carrying unregistered guns outside the home.

The court correctly declared that the Second Amendment's use of the words "the people" conferred an individual right to bear arms, and that the - an enormous triumph for freedom, and for the safety of the beleaguered citizens of our crime-ridden capital.

From the 2-1 opinion in Parker v. District of Columbia:

To summarize, we conclude that the Second Amendment protects an individual right to keep and bear arms. That right existed prior to the formation of the new government under the Constitution and was premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government (or a threat from abroad). In addition, the right to keep and bear arms had the important and salutary civic purpose of helping to preserve the citizen militia. The civic purpose was also a political expedient for the Federalists in the First Congress as it served, in part, to placate their Antifederalist opponents. The individual right facilitated militia service by ensuring that citizens would not be barred from keeping the arms they would need when called forth for militia duty. Despite the importance of the Second Amendment's civic purpose, however, the activities it protects are not limited to militia service, nor is an individual's enjoyment of the right contingent upon his or her continued or intermittent enrollment in the militia.

More reaction from Volokh and the Cato Institute. (Cato assisted the plaintiffs in the case.)

My favorite, though, is the D.C. Mayor Adrian Fenty's take:

"I am personally, deeply disappointed and quite frankly outraged... [This decision] flies in the face of laws that have helped decrease gun violence [in Washington, D.C.]"

Ah, yes. I can see why he might be outraged. That city has been sooooo safe since the ban went into effect in 1976. I mean, it's just a coincidence that the city with the strictest gun laws was also crowned the "Murder Capital" of the nation in the 1990s, right? Maybe we just should have just given the mayor a little more time to declare a few more "crime emergencies" - yeah, those seem to be doing the trick.

Not only is this a profound victory for individual liberty and the Constitution, but it's about time the criminals plaguing our nations capital no longer can safely assume their victims can't fight back. Good law and good policy - God bless conservative Constitutional law.

Teaching Socialism in Seattle

A reader tipped me off to this little piece of amusement/horror. The Hilltop Children's Center, essentially a hippy playhouse thinly disguised as a place of "learning," banned Lego blocks as a way to teach kids the evils of the Bill of Rights, Declaration of Independence, or anything else that espouses the dangerous and inhuman notion of "private property rights."

[T]he students had been building an elaborate "Legotown," but it was accidentally demolished. The teachers decided its destruction was an opportunity to explore "the inequities of private ownership." According to the teachers, "Our intention was to promote a contrasting set of values: collectivity, collaboration, resource-sharing, and full democratic participation."

The children were allegedly incorporating into Legotown "their assumptions about ownership and the social power it conveys." These assumptions "mirrored those of a class-based, capitalist society -- a society that we teachers believe to be unjust and oppressive."

The article then goes on to describe how the school successfully Marx-ized these budding little robber barons. At least according to the school. What they did is take all the legos away, force the children to play with them in a certain way, and ensuring that (while children are supposedly encouraged to follow their own passions) they could never control their own destinies because The Grownups were in charge, and that was how to run a society. Essentially, they're teaching the children all the benefits of fascist tyranny the Soviet Union once enjoyed, and now serves the people of North Korea and Cuba so well. But at least they have "social justice" in the new, improved People's Republic of Legotown. Ah, the equality of universal poverty! How noble.

What's sad is that these "teachers" are just plain too wilfully dumb to realize that a) humans (including children) are naturally possessive, b) it's both important and natural for kids (especially boys) to stake out their own turf, c) "ownership" and "power" are inherent human traits, irrespective of culture, and d) no matter how many times it's tried, socialism just plain doesn't work alongside freedom, democracy, or prosperity.

Here's the full article the school submitted to "Rethinking Schools," the magazine for all those folks who think kids, like, just need to like, BE, man. MAN! It is priceless. Be careful, though - it is a concentrated and unvarnished look at the socialist mind. It can be painful to those with a pre-existing condition of common sense.

I wonder what John Edwards thinks about all of this...

Normally a free burrito and a lunch speaker is a good thing...

For those of you who don't know who Lynne Stewart is, you can read about her here (Orrin and others' take) or here (her own website, and the propaganda video we sat through when she came to visit today).

The skinny is she represented a convicted Islamic terrorist, intentionally broke some rules regarding her contact with him, got prosecuted and convicted for it (and, if justice prevails, will be going to jail soon) and is now being lionized by some on the left as a symbol of courage in a time of tyranny.

Here's how I would try to explain to my more liberal friends why I find Stewart (and her story) so unappealing:

Let's say I represented an anti-abortion activist who happened to primarily speak a foreign language.

And let's say he was convicted of plotting to blow up an abortion clinic and running a group that had successfully pulled off several of these mass murders.

And let's say that as a precaution against more bombings occurring at his direction the government was keeping my client in maximum-security lock up and not allowing him any contact with the outside world.

And let's say they made an exception for me as his lawyer, and told me I could bring support staff (translator, assistant) but our conversations with my client had to be limited to issues surrounding his legal defense and under no circumstances could I (or my staff) communicate on his behalf with his followers either personally or via the media.

And let's say I agreed to all of this in writing.

Now let's say I decide to patently disregard this agreement.

Let's say the "staff" I choose to bring for my client meetings are people who have ties to my client's demonstrably violent organization.

And let's say I allow my client to talk to these associates in their shared language (which I don't speak or understand) about issues wholly unrelated to his legal defense -- and I know they're talking, not translating, because the entire time they're doing it I'm making loud remarks about nothing, presumably to make it harder for the government to listen in to their conversations which it has informed me it might be doing.

And let's say a few months later another abortion clinic is bombed, killing or maiming dozens of doctors, nurses, staff, patients and bystanders...and my client's organization takes responsibility and demands his release.

And let's say even after this tragedy I continue to allow my client to meet with these conduits to his organization and speak with them as he chooses.

And let's say I issue a press release on my client's behalf wherein he urges followers to reject any peace with the "baby killers".

Again, let's say I did all this.

Would you praise me as a "zealous advocate"? Would you laud me as a "civil rights champion"?

Let's just say I wouldn't.
----

Bottom line, Lynne Stewart deserves to go to jail.

If she thought the restrictions the government was placing on her contact with her convicted-terrorist client were unconstitutional she could have challenged them. I might even have supported her in some of her objections...

Instead she made an agreement with the U.S. Government in obvious bad faith, broke it intentionally, and (at the very least) endangered innocent lives by doing so. (During the period when she was facilitating her client's communication with his organization it murdered 60 people and issued a demand for his release.)

I'll say it again, she deserves to go to jail.

Also, all the burritos were vegan.

Anarchist Blogger Rightly Spends 200 Days In Jail

This story about a man self described as "an artist, an activist, an anarchist and an archivist" is no doubt going to be used by some to bolster the idea that our free press is under siege, and that we need more "journalist privilege" rules for the very sake of democracy. (Most of those people - coincidentally - will make their living at newspapers, know bloggers and other online media are obliterating their circulation numbers and profits, and merely want to make their club more exclusive.) But it actually says just the opposite - that such rules are absurd, arguably unconstitutional, and certainly unworkable.

Here's what happened:

Josh Wolf, a 24-year-old blogger, has spent more than six months behind bars in California -- the longest contempt-of-court term ever served by someone in the media -- for refusing to turn over a videotape he shot of a violent San Francisco demonstration against a Group of Eight summit meeting. Unless a mediation session today can break the impasse, he will likely remain imprisoned at least until the current grand jury's term expires in July.
***
Wolf taped the anarchists' San Francisco protest, against a G-8 summit meeting in Scotland, in July 2005. One police officer, Peter Shields, had his skull fractured by a hooded assailant with a pipe or baseball bat. Three people were charged in the attack. Police say protesters also put a mattress under Shields's police car and tried to set it on fire.

The First Amendment makes us ALL journalists by birthright, and the Internet gives reality to this great promise. Some journalists are professionals, but enough of us are part-timers (especially now) that any definition that would include this guy would necessarily include more US citizens that it would exclude. The Constitution and subsequent amendments made no provision for an insulated journalist class, nor should it have. Creating standards to define "real" journalists only limits the proliferation of a robust, diverse, and free information distribution system that is accessible to all.

In other words, journalist shield laws passed in the name of a free press would actually abridge that free press, in direct contravention of the clear language of the First Amendment.

We are all citizens with the same rights to see, report, publish, and disseminate information. We are also all citizens with the same responsibilities to our justice system - to report for jury duty when asked, to answer subpoenas when served, and to testify truthfully at a tribunal when properly summoned. No penumbra emanating from anywhere grants an exception just because you happen to own a New York Times press pass - or a blog URL.

I'm just glad the judge in this case has the fortitude to keep him in jail, refusing to let justice take a back seat to big-media pressure groups.

Libby Guilty

I haven't been following this case closely enough to have any intelligent direct comments. I DO know enough about the Plame "leak" case to know it's full of [garbage], but often non-cases get people into trouble when they try to overdefend, feeling it's justified because the accusors are so full of it.

If Libby had a suspiciously selective memory, jerked investigators around, and fibbed under oath, I'm glad he was found guilty, no matter how stupid the original cause of the investigation was. I don't know enough to say he wasn't, and so I'll leave the outrage to others better informed. I'm not one of those people (say, for example, Clinton apologists) who thinks perjury is less serious just because the thing lied about isn't serious (say, for example, sex) - perjury is a direct assault on the entire system of due process, and should be mercilessly weeded out, no matter what the lie was about. I don't care which President or party or elections it hurts. I don't have any sympathy for perjurers no matter how sympathetic the witness or how obnoxious, overbearing, or abusive the prosecutor.

But I am bothered by some of the juror comments. I'm bothered by some of the legal rulings, and bothered that the jury seemed to be confused about some material facts and the narrowness of the issues they seemed to have considered. I'm bothered by the political nature of the original investigation. But that's why we have an appeals process.

Whether Libby is guilty or not, I don't know. What I DO know is that the fact Joe Wilson is running around doing Vanity Fair pictorials while Libby faces jail time is absurd. David Frum puts it best:

Scooter Libby is convicted in the Plame leak case. The man who actually did the leaking continues to earn millions of dollars, go out to dinner, and be respectfully quoted by attentive journalists.

Scooter Libby is publicly branded an oath-breaker on the basis of diverging recollections. Yet it was the man who set this case in motion, former ambassador Joe Wilson, who was caught in lie after lie by the Senate Intelligence committee.

Frum also noted the penalties Clinton suffered for his perjury, including all the jail time HE had to serve.

More cogent (if partisan) running reax on NRO's the Corner.

Michelle Malkin has updating reporting and more links.

A more diverse smattering of opinion compiled at RealClearPolitics.

Quote of the Day

"I think that Jesus would be disappointed in our ignoring the plight of those around us who are suffering and our focus on our own selfish short-term needs. I think he would be appalled, actually."

...said John Edwards, the man who just spent $4.3+ million on a 28,000 square foot mansion for his family of four. (Yup - that's his actual palace-in-progress.)

I don't presume to know the mind of Jesus, but I don't know that he would define "selflessness" as "attempting to simultaneously pander to religious folk your campaign just offended while attempting to shame them into spending other people's money, all while spending millions of your own money on yourself." I could be wrong - I'm no priest - but I've read the Gospels and that's just my take.

Not that I begrudge John Edwards on his success. Just don't tell me I should be ashamed if I want to achieve some of that myself.

Terrorist Abettor Lynne Stewart to Speak in Seattle

According to the announcement in The Crier (the Law School's official newsletter),

Celebrate International Women's Day with special guest Lynne Stewart speaking on “My fight for justice in Patriot Act America”

Acclaimed for defending poor people, radicals of color, and controversial figures, Stewart, a civil rights attorney, was sentenced to 28 months in prison on charges of abetting terrorism in a trial described as “a triumph of fear over reason” by Mumia Abu-Jamal. Stewart will discuss her appeal and the inspiration she draws from the legacy of female resistance to repression.

Co-sponsors: Radical Women, Seattle University Departments and Programs: Anthropology, Sociology & Social Work, Criminal Justice, Political Science, Pre-Law, Women’s Studies; the Black Panther Party Reunion Committee, National Lawyers Guild - Seattle and SU Law School Chapter.

This free event is at Seattle University, Pigott Auditorium. Enter campus on East Marion at 12th Ave. Continue straight past the visitor parking lot. The auditorium is in the Pigott Building, the first building on the right. For more information call 206-722-6057 or email RWseattle@mindspring.com.

The sponsors of the event are radical socialist groups and an otherwise respectable University down town. She's endorsed by a cop killer. But she's simply a "civil rights attorney," "acclaimed for defending the poor." There's no mention of the crime her legal defense fund is attempting to defend her against, nor of the 60 dead people she helped to kill in the name of world-wide imposition of Sharia law and the oppression of all women. That the "Radical Women" are one of the prime sponsors of this is a sick joke.

Here's some background on Stewart I put together last year, from a side comment thread on this blog on another topic.