Saturday, June 30, 2007

The Break-In That History Forgot

New York Times:By Egil Krogh
I listened intently. At no time did I or anyone else there question whether the operation was necessary, legal or moral. Convinced that we were responding legitimately to a national security crisis, we focused instead on the operational details: who would do what, when and where.

Mr. Young and I sent a memo to John Ehrlichman, assistant to the president, recommending that “a covert operation be undertaken to examine all of the medical files still held by Ellsberg’s psychiatrist.” Mr. Ehrlichman approved the plan, noting in longhand on the memo, “if done under your assurance that it is not traceable.”

...The premise of our action was the strongly held view within certain precincts of the White House that the president and those functioning on his behalf could carry out illegal acts with impunity if they were convinced that the nation’s security demanded it. As President Nixon himself said to David Frost during an interview six years later, “When the president does it, that means it is not illegal.” To this day the implications of this statement are staggering. ...

I finally realized that what had gone wrong in the Nixon White House was a meltdown in personal integrity. Without it, we failed to understand the constitutional limits on presidential power and comply with statutory law.

In early 2001, after President Bush was inaugurated, I sent the new White House staff a memo explaining the importance of never losing their personal integrity. In a section addressed specifically to the White House lawyers, I said that integrity required them to constantly ask, is it legal? And I recommended that they rely on well-established legal precedent and not some hazy, loose notion of what phrases like “national security” and “commander in chief” could be tortured into meaning. I wonder if they received my message.

G!d forbid they should constantly ask, "Is it right?" (that is, in a nonideological sense).

Universal Health Care Gets A Chance By Christopher Lee

BOSTON -- There is a lot of talk about overhauling health care in the United States, but Massachusetts is actually trying to do it -- again.

Today, the home of some of the nation's most prestigious hospitals and medical schools becomes the first state in the nation to require its 6.5 million residents to have health insurance or face financial penalties. Making insurance mandatory -- and more affordable -- is the centerpiece of a law approved by the legislature last year that civic and business leaders hope will dramatically reduce the ranks of the state's 400,000 uninsured and the number of people who seek costly 'uncompensated' care in hospital emergency rooms. ...

The government, for its part, is defining basic coverage and trying to make insurance more affordable. Under its new Commonwealth Care program, it is subsidizing coverage with no annual deductible on a sliding scale for people with incomes of up to 300 percent of the federal poverty level, or $61,950 for a family of four. About 130,000 low-income people are already enrolled either in Commonwealth Care or MassHealth, the state's Medicaid program, state figures show. The poorest pay no premiums.

Those who do not qualify for subsidies and cannot get coverage through their jobs can buy low-cost but unsubsidized health plans offered by private insurers through the Connector under the Commonwealth Choice program. Premiums go up with age, but people cannot be charged more if they are sick or are denied coverage because of a preexisting condition.

Costs are still too high for some. Already, state officials expect to exempt 60,000 residents from the new mandate because they cannot afford the insurance at the going rates, even though they earn too much to qualify for subsidies. That is a big reason that Massachusetts is destined to fall short of universal coverage under the new law...

"Affordability is the big question here," said Kathy Swartz, a professor at the Harvard School of Public Health, who noted that even those with a basic plan still could face high deductibles. "It's certainly what a lot of other states are wrestling with -- how do you bring the costs down?"

With Hamas Takeover, Tough Calls for Israel
By Scott Wilson

JERUSALEM -- Since the Hamas takeover of the Gaza Strip, Israel has faced an increasingly complex set of military options to stop attacks from the territory, and a debate over its humanitarian responsibilities for the strip's 1.4 million people.

The political split between the West Bank and Gaza has also strengthened calls in Israel to abandon the idea of a Palestinian state, which was at the core of the Oslo peace accords signed in 1993....

"The only way Abbas can be rescued is by getting a political process started with Israel," said Walid Salem of the Panorama center, a Palestinian institute in Jerusalem that promotes democracy. "Otherwise, what happened in Gaza will happen in the West Bank within two years."

But former Israeli prime minister Binyamin Netanyahu, who heads the opposition Likud Party, and other politicians have redoubled their arguments that the idea of a Palestinian state in Gaza and the West Bank is over.

Netanyahu has revived a proposal calling for Jordan, most of whose residents are of Palestinian descent, and the West Bank to enter into a "confederation" that would bind them together economically, politically and on security matters. Such an arrangement would presumably leave much of the West Bank, at least that portion Israel has effectively annexed with its separation barrier, under Israeli control.

Under that proposal, Egypt would assume responsibility for Gaza, which it held before the 1967 Middle East war. But Hamas is an offshoot of Egypt's Muslim Brotherhood, the Islamic political movement that is President Hosni Mubarak's chief opposition. ...

Yaron Ezrahi, a political science professor at Hebrew University, said Israel's "policy moves over the years have been consistently rational in the decision-making stage and utterly irrational in terms of understanding the consequences."

"It has always thought of its policy toward the Palestinians and the region as moves in a chess game," he said. "But the situation has always been far more like trying to keep a small boat steady in a rushing river."

Hamas TV Kills Off Mickey Mouse Double
GAZA CITY, Gaza Strip -- A Mickey Mouse lookalike who preached Islamic domination on a Hamas-affiliated children's television program was beaten to death in the show's final episode Friday.

In the final skit, 'Farfour' was killed by an actor posing as an Israeli official trying to buy Farfour's land. At one point, the mouse called the Israeli a 'terrorist.'

'Farfour was martyred while defending his land,' said Sara, the teen presenter. He was killed 'by the killers of children,' she added.

The weekly show, featuring a giant black-and-white rodent with a high-pitched voice, had attracted worldwide attention because the character urged Palestinian children to fight Israel. It was broadcast on Hamas-affiliated Al Aqsa TV.

An inspiring commitment to working for peace and coexistence.

Judges Behaving Badly?

The Economist
A $54m lawsuit over a pair of pinstriped trousers that went missing from a Washington, DC, cleaners was thrown out by a judge this week. It had attracted worldwide ridicule. The fact that the case was brought, not by a random loony, but by a former judge has added to the sense that something is wrong not just with America's litigation laws, but with the kind of men and women Americans choose to sit in judgment over them....

“To distrust the judiciary,” said Honoré de Balzac, “marks the beginning of the end of society.” In Britain, judges are one of the most respected groups. But in America they tend to be held in low esteem, particularly at state level. For this many people blame low pay and the fact that judges are elected. In 39 states, some or all judges are elected for fixed terms. Federal judges, usually held in much higher esteem, are appointed on merit for life—as in Britain. ...

In the past, judicial candidates were banned from discussing controversial legal or political issues on the campaign trail. But in 2002 the Supreme Court ruled such bans to be unconstitutional, leading candidates to advertise freely their views on abortion and suchlike. Personal attacks have also become more common. Indeed, Sandra Day O'Connor, a former Supreme Court justice, fears that judicial elections have turned into “political prize-fights, where partisans and special interests seek to install judges who will answer to them instead of the law and the constitution.”

I'm not impressed with this or other efforts to take the "pants suit" as much of a generalizable example of anything...indeed, the performance of the trial judge in this very case was exemplary. Right now I'm mostly discouraged with the more highly paid, appointed and prestigious members of our highest court...

Free speech for the rich and powerful-I By Garrett Epps
'Where the First Amendment is implicated,' Chief Justice John Roberts wrote this week in an important free-speech opinion, 'the tie goes to the speaker, not the censor.'

It's a comforting thought, and a nice example of the kind of judicial rhetoric Americans are used to. ...

Unfortunately, the implication that this court defends First Amendment rights is pretty much hogwash. If one carefully reads all three of these First Amendment cases, the court is really saying that the tie goes to speakers who have money and power. That is, if the speaker is rich and influential, then free speech wins. If not, free speech loses. Taken together, the cases give a picture of a new court majority that takes a very narrow view of free speech and a deferential approach to bureaucrats who seek to shape American culture from the top down. ...

Free speech for the rich and powerful-II By Garrett Epps
...An Alaska high school sent its students out to the street to watch the Olympic torch pass by; as it did so, a group of students, clearly hoping to get themselves on television, unfurled a large banner with the enigmatic memo, 'Bong Hits 4 Jesus.' Acting on the repressive instinct of every high school principal everywhere, the Alaska high school's Deborah Morse demanded it be taken down at once. When one irrepressible scamp, Joseph Frederick, refused, the principal confiscated the banner and suspended him.

The principal argued that the banner needed to come down right away because it encouraged drug use. Frederick said 'the words were just nonsense meant to attract television cameras.'...

To put it another way, as Roberts sees it, schools have the power to make sure that students not only listen but that they don't laugh at the message. In Roberts' view of students' view of free speech rights, laughter is not protected. Humorlessness: The anti-drug.

Anyone who remembers high school should have understood that the message was not one to be decoded by Roberts' pedantic brackets and ellipses; it was the same message sent by students everywhere every day in every free society -- "This whole thing is a farce" ...

The idea that that in a free society debate should be, as a former Supreme Court said in New York Times v. Sullivan in 1964, "uninhibited, robust, and wide-open" does not apply to the young. Solemn acquiescence is the major skill of citizenship to be taught in the schools of our democracy, and those who will not learn the lesson can be punished.

Balance of powers: impending crisis?

In a letter sent today to White House counsel Fred Fielding, Senate Judiciary Committee chairman Patrick Leahy and House Judiciary Committee chairman John Conyers say their committees will consider next month whether 'the White House is in contempt of Congress.' ...

In their letter, Leahy and Conyers complain that the White House has refused to comply with congressional subpoenas based on a "blanket" invocation of "executive privilege" that isn't even signed by the president himself.

"A serious assertion of privilege would include an effort to demonstrate to the committees which documents, and which parts of those documents, are covered by any privilege that may apply," the chairmen say. They want Fielding to provide them with a privilege log that lists each document that's being withheld and provides a description of the nature of the document, the source, the subject matter, the date of the document, the identity of anyone who received a copy of the document, and the specific legal basis for claiming that the document is protected by executive privilege.

Such logs are commonly required in civil litigation, and Leahy and Conyers note that the Bush administration -- like other administrations -- has provided them to Congress when information has been withheld in other investigations. ...

Egypt outlaws all female circumcision

Yahoo! News: "
CAIRO (AFP) - Egypt on Thursday finally banned all female circumcision, the widely-practised removal of the clitoris which just days ago cost the life of a 12-year-old girl.

Officially the practice, which affects both Muslim and Christian women in Egypt and goes back to the time of the pharoahs, was banned in 1997 but doctors were allowed to operate 'in exceptional cases'.

On Thursday, Health Minister Hatem al-Gabali decided to ban every doctor and member of the medical profession, in public or private establishments, from carrying out a clitoridectomy, a ministry press official told AFP.

Any circumcision 'will be viewed as a violation of the law and all contraventions will be punished,' said the official, adding that it was a 'permanent ban'.

A survey in 2000 said the practice was carried out on 97 percent of the country's women.

97% sounds pretty exceptional.

Civil Union Laws Don't Ensure Benefits
Since the movement to win legal recognition for gay and lesbian couples began in earnest more than a decade ago, states have sought to use new designations -- including "civil union" and "domestic partnership" -- to define the legal status of same-sex couples. But some activists now fear that the problems in New Jersey may signal that the movement to win equal marital rights for same-sex couples nationwide will be harder fought than many had thought.

A recent study by Garden State Equality, New Jersey's leading gay advocacy group, indicated that as many as one in eight of the 1,092 same-sex couples who have registered for civil unions there have been denied all or part of the benefits they hoped to gain from the law. That is particularly significant because New Jersey, as the first state outside New England to approve civil unions, was seen as a bellwether in gauging how they would take root outside the bluest of the blue states.

Friday, June 29, 2007

Asking the liberals who supported Roberts' nomination if they're sorry now

Slate Magazine: By Emily Bazelon
...All of which is to say that John Roberts is proving to be an extremely conservative chief justice. Which is what President Bush promised his supporters and what Roberts' lower-court record signaled—see in particular the Guantanamo case Hamdan v. Rumsfeld. Roberts may not go in for rhetorical swashbuckling, but he gets the job for the right done. As Adam Cohen put it in the Times last year, Roberts' votes are the product of his 'predictable arch-conservatism.'

And yet some liberal and moderate lawyers and academics didn't predict this at all. These members of the legal literati urged Roberts' nomination, promising that he would be a model of restraint and principle and modesty. Why did they think that then? And how do their arguments on his behalf look now?...

George Washington law professor Jeffrey Rosen knew Roberts too, from an interview he'd conducted in 2002. Before the confirmation hearings, he called "the claim that Roberts would move the Court to the right as chief justice … transparently unconvincing." Rosen even ventured that because Roberts "may turn out to be more concerned about judicial stability and humility" than Rehnquist or then-Justice Sandra Day O'Connor, "he might even move the Court to the left." ...

[Y]ou can see another reason for Roberts' appeal with moderate academics: Supporting him was a way to signal that you thought the debate about who should be on the court ought to be about judicial temperament rather than ideology and vote counting. Roberts wouldn't twist precedent, professors like Cass Sunstein of the University of Chicago wagered. He'd carry the torch of judicial modesty: Judges shouldn't reach beyond the facts of a case to settle big questions, they should hesitate to strike down laws passed by Congress, they should know their place as the least-dangerous branch. Praising Roberts for his lack of "bravado and ambition," Sunstein wrote in the Wall Street Journal pre-confirmation, "Opposition to the apparently cautious Judge Roberts seems especially odd at this stage."...

In the end, Roberts' approach isn't leading him to vote differently than Thomas and Scalia, the justices with the "ideologically driven" reputations. Yes, he disagrees with them about whether to heave over precedent rather than dance around it—and he has felt the Wrath of Scalia as a result. But ... there's nothing principled or restrained about overruling cases "while pretending you are not." The reassurances to the left about Roberts' virtues look pretty empty this week.

So, a question I continue to ponder: should Louis Brandeis's nomination have been defeated (as it almost was) because of open opposition to his political views, and, let's say, a minority filibuster? Is that a necessary cost of Bazelon's implicit position here?

One can plausibly argue that Bill Clinton simply gave up on potential Court nominees who would excite partisan opposition. It's all too easy to forget today, given the current composition of the Court, that Breyer and Ginsburg were (rightly) perceived as exceedingly moderate candidates from a Democratic/progressive standpoint (as were a high proportion of intermediate appellate court nominees under Clinton, although they advanced gender and racial diversity on the federal courts). Stevens and Souter (or whom I am exceedingly grateful) were Republican appointments. There are no members of today's Court comparable to the FDR/JFK/LBJ liberal picks (not all were, of course--e.g.,FF, Bryan White), or even those of Eisenhower. Today's "liberals" are centrist moderates, today's centrists are strong ideological conservatives, and Scalia and Thomas would have embarrassed James McReynolds. (That may be slightly strong--I don't think McReynolds would have drunk from the same water cooler as Thomas--or Breyer or Ginsburg, for that matter.)

Walter Dellinger: After (trying to) sleep on it

Slate Magazine: By Walter Dellinger
...What some parents will sometimes have to say to their children under these plans is something like this: 'You will be going to PS 111 instead of PS 109 this year, and here's why: Our community is trying to make sure that we get over the racial separation that has been such a troubled part of our history. So we want to make sure we have a pretty good number of white and black children in all of our schools. It's important, even though it sometimes means you don't get your first choice of a school assignment this year.' As I read the record, that is unlikely ever to happen more than once to any child white or black. What is the big deal? ...

The court's decision is everything conservatives should abhor. It is a form of social engineering dictated from Washington. It ignores the principle of local control of schools. It sets aside the judgment of elected officials, even though nothing in the text of the Constitution requires that result, and the original understanding at the time of drafting of the 14th Amendment is solidly against it. It equates the well-intentioned and inclusive programs supported by both white and black people in Louisville and Seattle with the whole grotesquerie of racially oppressive practices which came down, as Charles Black once said, in apostolic succession from slavery and the Black Codes.

If there is a just G!d, G!d save us from our trespasses.

How should the president's lawyers advise a reluctant White House?

Slate Magazine: By Dawn Johnsen
The proper role for presidential lawyers is actually quite clear, although more nuanced than either zealous advocate or neutral arbiter. The Constitution explicitly commands the president to 'take Care that the Laws be faithfully executed,' and it is up to the attorney general and, under his direction, DoJ's Office of Legal Counsel to provide the analytical expertise the president needs to ensure the legality of his administration's actions. Presidential lawyers should operate first and foremost as stewards of the rule of law and our constitutional democracy. Their legal advice must reflect an accurate and principled view of the law, not just plausible, ends-driven rationalizations. And in order to do that with any effectiveness, they must be allowed to tell the president 'no.'

The president unquestionably possesses very broad discretion to hire and replace those who serve at his pleasure, and that leeway is fundamental to his authority to control the executive branch. He has the authority to disagree with his lawyers when he honestly determines that they are wrong, based on a principled, alternative best reading of the law. But the president clearly oversteps permissible bounds—and in the process endangers our constitutional democracy—if he or his vice president retaliates against his lawyers for standing up for the rule of law or proceeds against their advice without a valid legal basis. ...

A group of former DoJ lawyers has provided a good starting point in developing consensus guidelines based on longstanding bipartisan tradition. (Disclosure: I am a co-author.) These guidelines balance the responsibilities of the president's lawyers to him and his policy agenda with their responsibility to the institution of the presidency and the law itself. Among the best practices: Provide the president with "an accurate and honest appraisal of applicable law, even if that advice will constrain the Administration's pursuit of desired policies"; advice should "reflect all legal constraints, including the constitutional authorities of the coordinate branches of the federal government"; and "on the very rare occasion that the executive branch—usually on the advice of OLC—declines fully to follow a federal statutory requirement, it typically should publicly disclose its justification."...

The objective, going forward, is to deter future lapses from presidents of both parties. And that deterrence rests on the quality of the advice obtained from presidential lawyers. If these lawyers are urged to tell the president only half the story, if they are punished for saying that a proposed program would be illegal, and if they are forced to resort to threats of en masse resignations in order to stop unlawful governmental actions, our very constitutional democracy is in peril. If the president creates such a culture of disdain for the rule of law, Congress must step in.

Conservative Heretic: Impeach Vice President Cheney

Slate Magazine: By Bruce Fein

Under Dick Cheney, the office of the vice president has been transformed from a tiny acorn into an unprecedented giant oak. In grasping and exercising presidential powers, Cheney has dulled political accountability and concocted theories for evading the law and Constitution that would have embarrassed King George III. The most recent invention we know of is the vice president's insistence that an executive order governing the handling of classified information in the executive branch does not reach his office because he also serves as president of the Senate. In other words, the vice president is a unique legislative-executive creature standing above and beyond the Constitution. The House judiciary committee should commence an impeachment inquiry. As Alexander Hamilton advised in the Federalist Papers, an impeachable offense is a political crime against the nation. Cheney's multiple crimes against the Constitution clearly qualify....

In the end, President Bush regularly is unable to explain or defend the policies of his own administration, and that is because the heavy intellectual labor has been performed in the office of the vice president. Cheney is impeachable for his overweening power and his sneering contempt of the Constitution and the rule of law.

Bruce Fein is an awfully conservative fellow, to the extent that I become suspicious when I find myself agreeing with him. But this story seems straight--that internal ellipsis conceals a considerable, and highly persuasive, bill of particulars. My own view of the impeachment clause, and its applicability to Cheney's behavior, is in accord with Fein's.

That does not necessarily entail the conclusion that pursuing impeachment is necessarily a good idea.

From a purely partisan Democratic perspective, a successful impeachment effort (successful here might entail a resignation for "medical reasons") would mean what, exactly? You won't have Dick to kick around any more? At this point in the Administration, the Dems likely prefer to keep making political points by kicking Dick (and Alberto) as much, and as publicly, as possible.
What is the down side? The country's interest in being free of these twin (fraternal, not identical--Cheney, whatever else, is not an incompetent empty suit) evil spirits? When has that recently influenced political behavior on the national scene?

Further, Cheney's resignation or removal would enable Bush to nominate someone new (Condi? Fred Thompson?)) who might use the new office as a springboard to the Republican Presidential nomination. While it doesn't look now like W's coattails will be that helpful in 2008, things might change.

(I should note that I, almost uniquely among my compadres, thought Bill Clinton should resign over his abuse of the public trust and misuse of his governmental subordinates during Monicagate, allowing Al Gore to become President in his stead. Would we be bemoaning this week's Supreme Court decisions had that occurred, and history unrolled differently in 2000??)

Still, dumping Cheney would, I think, be constitutionally justified and, at least in principle if not political fact, in the interest of the country and its future.

The Murdoch Factor

New York Times: By Paul Krugman

There doesn’t seem to be any legal obstacle to the News Corporation’s bid for The Journal: F.C.C. rules on media ownership are mainly designed to prevent monopoly in local markets, not to safeguard precious national informational assets. Still, public pressure could help avert a Murdoch takeover. Maybe Congress should hold hearings.

I detest Rupert Murdoch and all he stands for.
Paul Krugman is one of my favorite columnists (probably second to my classmate Frank Rich), and I rarely disagree with him in a major way.

This (Congressional hearings on a Murdoch takeover of the WSJ) may be his worst idea ever.

China Revises Law on Workers’ Rights


BEIJING, June 29 (AP) — China enacted a labor law Friday meant to improve workers’ rights amid complaints about unpaid wages and other abuses, and an official tried to assure wary foreign investors they will not be hurt by the new standards.

The law is the most significant change in Chinese labor law in more than a decade. Its approval followed 18 months of deliberation, public debate and complaints by activists that foreign business groups were trying to erode workers’ rights. ...

The legislation sets standards for labor contracts, use of temporary workers, layoffs and other employment conditions in a rapidly changing economy, according to a report issued by the legislature. ...

Most complaints are directed at Chinese employers or smaller companies run by foreign entrepreneurs. Major Western companies are regarded as offering the best pay and working conditions. But state media are quick to publicize accusations of misconduct against well-known American and other Western employers.

Passage of the labor law comes as the communist government is trying to update its legal and political structures to keep pace with a rapidly changing society and market-oriented economic reforms.

The Veil of French Politics

New York Times Blog: By Judith Warner

[Ségolène Royal] justified this unusual incursion into her private life on the grounds that it advanced “the cause of women.” She also posed at home with Hollande and their children to showcase the kind of “organization” that was necessary to balance high-level government work with the needs of a large family...

...[A]ll this exposure isn’t necessarily shocking from an American perspective. Royal’s penchant for making the personal political can even be seen as an admirable form of public expression for a woman who has consistently spoken out on behalf of working women and their families since escaping from the home of her domineering, authoritarian father in the 1970s. But it’s been a major style shift for France, where the separation between public and private life has traditionally been so absolute – and protected so assiduously by the judicial system, politicians and the inner court of Parisian journalists who cover (and sometimes sleep with) them – that Francois Mitterrand was for decades able to maintain, at taxpayer expense, an illegitimate daughter and a mistress without the knowledge of the broader electorate.

This secrecy, we might say, is self-serving and elitist. But it has also led to a somewhat higher level of political discourse than Monkey Business and Monicagate.

At base, the French would say (they said it to me, in fact, incessantly, when I was there covering politics at the time of the Clinton impeachment scandal), it’s emblematic of a profound philosophical difference that sets them apart from Americans: the fact that the French don’t subscribe to the idea of “transparency.” “Transparency,” in this context, is the notion that a person’s innermost soul is revealed in each and every one of his or her acts. To believe in that kind of transparency is naïve, the French believe; it’s more realistic to recognize that human behavior is murky and messy and, in the case of politicians in particular, often highly compartmentalized. So it’s pointless to make sweeping judgments about a person’s political valor by his or her private life – and it’s none of the public’s business, anyway.

That attitude, apparently, is now changing...

More: the skinny on eating contests


But Mr. Chestnut said the two were actually quite similar.

Mr. Kobayashi is a champion, he said, “because he’s healthy and controls his calorie intake.”

Mr. Chestnut — whose weight has fallen to 215 pounds from 240 during his two years of competing in eating contests — controls his intake with minimum-calorie meal-replacement shakes when he is not competing. The shakes are as important psychologically as they are physically, he said.

“I tell myself that there’s nothing solid inside of me,” he said, “so I can put 14 pounds of food inside. It’s a mental thing, to be able to convince your body that it can do this.” He added, “My body says, ‘Hey, I’m hungry.’ There’s a reason to eat this much food.”

In his short career, Mr. Chestnut has won more than $112,000 in prize money eating a dizzying variety of food, including deep-fried asparagus, waffles, chicken wings and Krystal Burgers (similar to White Castle burgers). Only crab cakes have made him throw up, he said, even though he loves crab.

Sports injury of the year; Nathan's fans discommoded

Hot Dog Champ and Upstart Set for July Fourth Face-Off - New York Times: By ANTHONY RAMIREZ
A mysterious ailment, Mr. Kobayashi reported on his Web site this week, has narrowed his jaw so he can open it no wider than a fingertip, and even that with pain.

The Associated Press reported on Tuesday from Tokyo that “The champ may not be able to chomp.”

Scientists Transplant Genome of Bacteria

New York Times: By NICHOLAS WADE
Scientists at the institute directed by J. Craig Venter, a pioneer in sequencing the human genome, are reporting that they have successfully transplanted the genome of one species of bacteria into another, an achievement they see as a major step toward creating synthetic forms of life."...

His goal is to make cells that might take carbon dioxide out of the atmosphere and produce methane, used as a feedstock for other fuels. Such an achievement might reduce dependency on fossil fuels and strike a blow at global warming.

“We look forward to having the first fuels from synthetic biology certainly within the decade and possibly in half that time,” he said. ...

Leroy Hood, a pioneer of the closely related field of systems biology, said Dr. Venter’s report was “a really marvelous kind of technical feat” but just one of a long series of steps required before synthetic chromosomes could be put to use in living cells.

“It’s a really worthy accomplishment, but I hope it doesn’t get hyped to be more than it is,” Dr. Hood said.

One reason for Dr. Venter’s optimism is that he says his institute is close to synthesizing from simple chemicals an entire genome, 580,000 DNA units in length, of a small bacterium, Mycoplasma genitalium. If that genome can be made to take over a bacterium using the method announced today, Dr. Venter should be able to claim that he has made the first synthetic life form. The bacterium would be identical to nature’s version, but would demonstrate how precise control could be achieved over every aspect of the machinery of living cells.

Thursday, June 28, 2007

Dahlia Lithwick is not a happy camper

Slate Magazine
: By Dahlia Lithwick

I'm not surprised the dissenters are pissed. What Roberts holds out as a dispassionate, mechanistic, and apolitical legal project is in fact an ideological and immoderate attack on a principle they believed to be inviolate. And I imagine it's insulting after a while for the dissenting justices to be cast in the role of irrational hysterics. Someone pointed me today to the most amazing portion of Breyer's dissent, in which he says the problem with the plurality's logic 'lies in its overly theoretical approach to case law, an approach that emphasizes rigid distinctions between holdings and dicta in a way that serves to mask the radical nature of today's decision. Law is not an exercise in mathematical logic.'

There is only one way in which the chief justice's famous comparison of justices to umpires still holds after today's plurality opinion: It turns out justices and umpires both wear masks.

Dellinger on Kennedy: a theoretical concern that has no application in the real world...

Slate Magazine: By Walter Dellinger
Although I understand Justice Kennedy's aversion to race-based programs that require individual racial classifications, I still believe him to be wrong in voting to invalidate these programs on the basis of what is essentially a theoretical objection. The distinction just doesn't matter in practice in public school assignment programs. The issue was resolved at oral argument, when Justice Scalia raised the issue with counsel for the school board in the Seattle case.

Scalia asked, 'What criteria of race does the school, just out of curiosity, does the school district use? I mean, what if a particular child's grandfather was white? Would he qualify as white or non-white?'

The Seattle school board's counsel responded that this was just not an issue. The plan, he said, 'allows the parents to self identify, and the record in this case through the testimony of petitioner's precedent is that they were aware of no abuse of that.' When it comes to public school pupil assignments, this response seems very plausible. There is no government committee making racial classifications, and unlikely ever to be one in this context. At the end of the day, these two programs fall by virtue of Justice Kennedy's vote on the basis of a concern that has no application in the real world of public school assignments.

American Constitution Society resources

ACS Blog Link to Lots of stuff on the Supreme Court term.

Looming showdown on executive privilege? (UPDATED)

New York Times
Given the way in which both the U.S. attorney matter and the N.S.A. matter are now percolating through committees, I would be very surprised if there were not a major showdown over executive privilege,” said Peter Shane, a law professor at Ohio State University who is an authority on executive privilege. “It might not get to court, but there will have to be some very high pressure negotiations at a very late stage to avoid that.”

The clash pits the Congressional right to conduct oversight — in this case, an investigation into whether the Justice Department allowed partisan politics to interfere with hiring and firing of federal prosecutors — against the president’s right to unfettered and candid advice from his top aides. Because such cases are often resolved in negotiations before going to court, there is little legal precedent, and experts disagree about how a court might rule.

Mr. Shane says Congress has a strong argument, because it is making a specific claim that it needs information to conduct an oversight investigation, and “specific claims of necessity usually outweigh general claims” like the one the administration asserts, arguing the president’s need for unfettered advice.

But David B. Rivkin, who worked as a lawyer in the Reagan and first Bush administrations, argues the president has the stronger case, because Congress has only weak oversight authority in the area of hiring and firing federal prosecutors. “In this area, executive power is nearly absolute,” Mr. Rivkin said.

The next step is for Democrats to decide whether to try to negotiate with the White House or to vote on a contempt resolution, a process that could take months and would lay the groundwork for sending the matter to court. Democrats did not say today how they intended to proceed, although by the sound of their comments, negotiations did not seem likely any time soon.

“This is a further shift by the Bush administration into Nixonian stonewalling and more evidence of their disdain for our system of checks and balances,” Mr. Leahy said.


I am temporarily putting up some snippets from the recent slew of SCOTUS opinions that strike me as significant, and that I may want to return to for comment as I am able to reflect more fully on the transformation of our legal system wrought by the new 5-man majority.

Judging a blog by its comments

What conclusions, if any, ought one draw from the quality of comments and discussion elicited by a prominent blogger?
If a large percentage of the commentators appear to be mean-spirited idiots, should one conclude anything about the blogger who attracts (and apparently feeds) them?
Does it matter it the blog comments are substantially moderated, or if it is more of a free for all (with very occasional deletions of self-posted comments)?
As a relatively new blogger who receives relatively few comments (and posts even fewer), I'm just wondering.

Journalism Today

Stuart Taylor Jr. on Seattle schools case

Slate Magazine: By Stuart Taylor Jr.

I generally agree that Justice Kennedy's controlling opinion leaves more room for school integration and affirmative action programs than one might think from the apocalyptic tone of Justice Breyer's dissent. How much more room? Kennedy is not at all clear on this. Indeed, much as I sympathize with his unwillingness to come down hard on either side, his controlling opinion will be of very little value to school officials trying to figure out what they are allowed to do or to lower courts trying to figure out what the law is. A friend observes, with some hyperbole: 'Every sentence in his opinion contradicts the sentence before it.'...

In this respect, the Kennedy-in-the-middle Court has some resemblance to the old Sandra Day O'Connor-in-the-middle Court and the older Lewis Powell-in-the-middle-Court—the one that ended 20 years ago when Kennedy replaced Powell. The issues are different, the actual holdings are different, but the music is similar...

This brings us back to my not-so-secret plan, which I sketched in a National Journal column (subscription required) after the oral argument last December:

...There is another—perhaps better—way to pursue these goals, one that also happens to be legally unassailable. This is to take account of students' socioeconomic status in making school assignments and to give underprivileged students—who are disproportionately black or Hispanic—the opportunity to attend middle-class schools. ...

Such socioeconomic integration is actually more effective than pure racial balancing at improving the academic performance of poor children of all races, studies show. …

And in many areas, 'socioeconomic integration also will produce a sizable amount of racial integration,' according to "A New Way on School Integration," [PDF] a recent paper by Richard D. Kahlenberg of the Century Foundation.

Anyone familiar with that literature? My impression is that parallel claims in the college admissions world don't hold up very well, although greater socio-economic diversity is a desirable end in itself in both settings. It just doesn't make the promise of Brown, now 50+ years overdue, come true in our lifetimes.

Minimalists vs. Visionaries By Cass Sunstein
Notwithstanding these differences, it is both important and true that in every important case this term, the minimalists and the visionaries have agreed about the proper result. Many people anticipated that Roberts and Alito would occasionally disappoint their conservative admirers and even the White House. Because they are skeptical of large movements and general theories, and attentive to details, minimalists do tend to surprise both their admirers and their critics.

To date, however, Alito and Roberts have surprised no one. Careful and lawyerly, and focused on the particular problem at hand, they reject huge changes in favor of small steps. But almost all of their small steps are going in the same direction....

In short, we will soon see whether the minimalists and the visionaries differ on their preferred destination, or only on the speed with which they try to get there.

Sunstein has a proprietary interest in this "minimalist" stuff. I can't quite tell if he is taken in by Roberts' and Alito's shared tendency to avoid the "O" word (that's "overrule", Ann, not vagina) while gutting established precedents, or (he thinks) shrewdly stroking their, uh, vanity (maybe Prof. Althouse has me there), and winning their continuing affection, by spewing such unwarranted praise.

Methinks any apparent "moderation" of the "minimalists" is largely an illusion caused by the juxtaposition of their formalist "careful and lawyerly" (Cass, have you NO shame?) noises with the over-the-top bombthrowing rhetoric increasingly employed by Scalia and Thomas. Kind of like Apple hiring a model with large hands to make the iPhone look smaller.

Putting Kennedy on the Couch

SCOTUSblog: By Lyle Denniston:
What Kennedy's opinion does not openly admit, but what Kennedy's view of his role has long made clear, is that he is deeply sensitive to the way his work as a judge is and will be perceived in history. This is not true only in the work of the Court on race questions, but on other social or cultural issues as well.

While his own quite conservative instincts must make it enormously tempting, now that there are four rigorously conservative colleagues, to join them routinely, the pull of reputation and public image appears to have told him to hesitate. He is even less tempted, of course, to join routinely in the more robust liberalism of his other four colleagues. Both help explain why he is so determinedly the middle Justice -- a position that is especially vivid at the conclusion of the just-completed Term.

What was fully on display on Thursday, amid a great deal of courtroom drama and soaring rhetoric, was the contest that is going on within the Court to influence Kennedy and his vote. And, in that contest, it can be argued that the Court's liberal bloc -- although it seems increasingly isolated on some of the bigger decisions -- is having a substantial effect on reinforcing Kennedy's instinct to keep staking out the middle. The sharp critique of the dissents plays into another facet of Kennedy's self-perception. ...

[Justice Kennedy] regularly seeks to put on display a large -- perhaps even a grand -- perception of the law that leads some unsympathetic observers to regard him as a puffed-up thespian using the Court and other public forums as a personal stage. And one of his grandest perceptions is that, if possible, the law should be made inclusive and should remain sensitive in human terms. (There is no doubt that Kennedy would regard even his much-criticized romanticizing of the relationship of mother and unborn child in the abortion ruling this Term as exhibiting just that kind of sensitivity, just as he probably also saw his often-maligned opinions in the past on gay sexual relations and on prayers at school graduations.)

He knows the man; I don't. Judging from Kennedy's opinions, this seems like a plausible speculation. I just don't think Kennedy pulls it off on a regular basis. makes me wonder (without any specific factual basis) about his clerks on the varying opinions. Or aren't we supposed to talk about that?

Flash: The Court has met an "empty formality" that it DOESN"T like

Who would have thought it possible?
Oh, it's that Kennedy guy again.
Must be sensiive to what it's like to be executed while incompetent.

Instead, the Court concluded, “Congress did not intend the provisions of AEDPA addressing ‘second or successive’ petitions to govern a filing in the unusual posture presented here: a [Section] 2254 application raising a Ford-based incompetency claim filed as soon as that claim is ripe.” Moreover, it emphasized, “[a]n empty formality requiring prisoners to file unripe Ford claims neither respects the limited resources available to the States nor encourages the exhaustion of state remedies.”"

Kennedy's concurrence in Seattle Schools case

Tom Goldstein tries to make the best case that Justice Kennedy's concurrence in the Seattle Schools case is controlling, and may not be that bad. His step-by-step analysis is plausible in theory, although with very limited application to districts that are dead-set in maintaining integrated schools despite (almost universally) segregated housing patterns. But I am not persuaded that Goldstein adequately accounts for Kennedy's own application of his "reasoning" to the facts of Seattle and Louisville. Roger Friedman makes the point well:

As Breyer's dissent makes perfectly clear, if the use made of race in these cases cannot be justified, there is no use of race which can be found justified. We are left in the same state as in political gerrymandering, Kennedy in theory remains open to the use of race but not on any basis known in law or fact.

Just Standing around, trampling precedent

We held in Flast, and repeated just last Term, that the “ ‘injury’ alleged in Establishment Clause challenges to federal spending” is “the very ‘extract[ion] and spen[ding]’ of ‘tax money’ in aid of religion.” As the Court said in Flast, the importance of that type of injury has deep historical roots going back to the ideal of religious liberty in James Madison’s Memorial and Remonstrance Against Religious Assessments, that the government in a free society may not “force a citizen to contribute three pence only of his property for the support of any one establishment” of religion.


The "rule of law"--an outmoded myth?

Slate Magazine:By Dahlia Lithwick

Kennedy writes separately to chastise the plurality opinion for its 'all too unyielding insistence that race cannot be a factor in instances when, in my view, it may be taken into account.' Refusing to enshrine 'color-blindness' as a constitutional principle, he pins his opposition to the program on a difference between de jure and de facto segregation. Kennedy finds specific problems with both the Kentucky and Seattle systems but seems to be leaving the door open to the use of race or something like race as a factor in future remedial programs, but with some kind of inscrutable Kennedy burden that is not easily discerned and may not be possible to meet....

The only other thing I'd flag following my first hasty reading here is Justice John Paul Stevens' brief dissenting opinion. He's been pulling out all the stops of late in relying on his own life history to illustrate how out-of-touch he believes this conservative majority to be. And to see the language and logic of Brown upended in service of this holding is nothing short of a "cruel irony." ...

Maybe that kind of commentary isn't all that doctrinally relevant, but it goes to one of the central themes of the dissenters this term: Can "the law" really be so different today than it was two years ago just because the composition of the court has changed?

Ms Lithwick seems to focus on some of the same passages and issues that jumped out at me, from a similar perspective. In law, originality isn't everything.

Of course, it does beg certain questions to note that rapid changes in the law are highly associated with changes in Court personnel. To be sure, there are politics in the air (and everywhere else--we swim in it), but that observation can, of course, run in either direction. It doesn't establish which politics, or which majority, is to be preferred (dare one suggest, "right").

What the discussion does suggest, however, is that our pretenses of living by "the rule of law" rest on very uncertain foundations. I suppose I'm more of an old time legal realist than a crit, but that has been changing since Bush v. Gore. (Like Digby, I can't "get over it"--this week we are experiencing the full significance of the prior 5-judge majority's usurpation of our very imperfect democracy.) I had tended to believe that the myth of a rule of law was probably a good thing for the society (for example, that "Constitutional rights" were something "real"). It's now pretty obvious that the myth didn't fool the current Administration and its minions (there were more than ten of them), which went about their business with little regard for anything that might be termed "law".

So, for the moment, it's all politics, and what passes for law is a cruel formalism in the service of the interests of the powerful.

How does one continue to teach law in such a time?
(A reprise of a question from December of 2000.)

Whistling Past the (Church) Graveyard?


It must be remembered that, even where parties have no standing to sue, members of the Legislative and Executive Branches are not excused from making constitutional determinations in the regular course of their duties. Government officials must make a conscious decision to obey the Constitution whether or not their acts can be challenged in a court of law and then must conform their actions to these principled determinations.

I agree that members of the Executive and Legislative Branches--and VP Cheney as well--have their own Constitutional oaths and obligations, and are obliged to act responsibly upon them. Further, I oppose an imperial judiciary (especially when subject to an alien, unAmerican occupying force, as now appears to be the case). I am frankly not eager, pace Walter Dellinger, to see this Court make more Establishment Clause law than absolutely necessary.

Nonetheless, I do favor ongoing dialogue, and occasionally some tension, among the Branches on crucial Constitutional issues, and this massive undermining, and tacit overruling, of Flast will leave politically popular executive overreach on Establishment Clause issues with no effective challengers (i.e., persons with judicial standing to bring suit) in the supposedly non-political judicial branch. That can't be a healthy thing in the long term. (I guess very long term--the other branches will turn over long before this Court, absent a Coulter-like dispensation.)

On racial classifications by government

SEATTLE SCHOOL DIST. : Justice Kennedy, concurring:

Though this may oversimplify the matter a bit, one of the main concerns underlying those opinions was this: If it is legitimate for school authorities to work to avoid racial isolation in their schools, must they do so only by indirection and general policies? Does the Constitution mandate this inefficient result? Why may the authorities not recognize the problem in candid fashion and solve it altogether through resort to direct assignments based on student racial classifications? So, the argument proceeds, if race is the problem, then perhaps race is the solution.

The argument ignores the dangers presented by individual classifications, dangers that are not as pressing when the same ends are achieved by more indirect means. When the government classifies an individual by race, it must first define what it means to be of a race. Who exactly is white and who is nonwhite? To be forced to live under a state-mandated racial label is inconsistent with the dignity of individuals in our society. And it is a label that an individual is powerless to change. Governmental classifications that command people to march in different directions based on racial typologies can cause a new divisiveness. The practice can lead to corrosive discourse, where race serves not as an element of our diverse heritage but instead as a bargaining chip in the political process. On the other hand race-conscious measures that do not rely on differential treatment based on individual classifications present these problems to a lesser degree. ...

Under our Constitution the individual, child or adult, can find his own identity, can define her own persona, without state intervention that classifies on the basis of his race or the color of her skin.

I am not generally a fan of Justice Kennedy, although once in a while--as in Lawrence--he surprises me. I don't agree on his disposition of this case--that is putting it mildly--and his discussion of the facts in the relevant school districts (and his approach to de jure/de facto discrimination in this factual setting) seems to me wildly off the mark. But these remarks on racial classification (which stand somewhat free from those issues, and not inherently linked to that disposition) are worthy of more serious consideration and debate. Parallel questions have arisen over census classifications, and the extraordinary (and rapidly growing) variety of multi-ethnic, multi-racial identities in this society calls for greater nuance and more imaginative approaches to racial questions. The movie Bulworth offered one alternative, which may hold some promise in the long term. Meanwhile, there must be some other possibilities worth considering.

Kennedy playing Powell/O'Connor in Seattle School District

SEATTLE SCHOOL DIST. NO. 1: Justice Kennedy, concurring:
The plurality opinion is too dismissive of the legitimate interest government has in ensuring all people have equal opportunity regardless of their race. The plurality’s postulate that “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” is not sufficient to decide these cases. Fifty years of experience since Brown v. Board of Education (1954) , should teach us that the problem before us defies so easy a solution. School districts can seek to reach Brown’s objective of equal educational opportunity. The plurality opinion is at least open to the interpretation that the Constitution requires school districts to ignore the problem of de facto resegregation in schooling. I cannot endorse that conclusion. To the extent the plurality opinion suggests the Constitution mandates that state and local school authorities must accept the status quo of racial isolation in schools, it is, in my view, profoundly mistaken....

School boards may pursue the goal of bringing together students of diverse backgrounds and races through other means, including strategic site selection of new schools; drawing attendance zones with general recognition of the demographics of neighborhoods; allocating resources for special programs; recruiting students and faculty in a targeted fashion; and tracking enrollments, performance, and other statistics by race. These mechanisms are race conscious but do not lead to different treatment based on a classification that tells each student he or she is to be defined by race, so it is unlikely any of them would demand strict scrutiny to be found permissible....

Executive and legislative branches, which for generations now have considered these types of policies and procedures, should be permitted to employ them with candor and with confidence that a constitutional violation does not occur whenever a decisionmaker considers the impact a given approach might have on students of different races. Assigning to each student a personal designation according to a crude system of individual racial classifications is quite a different matter; and the legal analysis changes accordingly....

The cases here were argued upon the assumption, and come to us on the premise, that the discrimination in question did not result from de jure actions. And when de facto discrimination is at issue our tradition has been that the remedial rules are different. The State must seek alternatives to the classification and differential treatment of individuals by race, at least absent some extraordinary showing not present here. ...

You'll let me know if you can discern a principle here, besides making Justice Kennedy the arbiter of all such matters until a decisive change in the composition and balance of the Supreme Court. I wish the arbiter showed more of his Lawrence side in evidencing sensitivity to the realities of racial separation as they exist in today's America. To overturn Louisville's long term effective plan, given its history and acceptability, at long last, to its community, is a particular disgrace.

Stevens seems near his valedictory


While I join Justice Breyer’s eloquent and unanswerable dissent in its entirety, it is appropriate to add these words.

There is a cruel irony in The Chief Justice’s reliance on our decision in Brown v. Board of Education, 349 U. S. 294 (1955) . The first sentence in the concluding paragraph of his opinion states: “Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin.” Ante, at 40. This sentence reminds me of Anatole France’s observation: “[T]he majestic equality of the la[w], forbid[s] rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.” The Chief Justice fails to note that it was only black schoolchildren who were so ordered; indeed, the history books do not tell stories of white children struggling to attend black schools. In this and other ways, The Chief Justice rewrites the history of one of this Court’s most important decisions. ...

The Chief Justice rejects the conclusion that the racial classifications at issue here should be viewed differently than others, because they do not impose burdens on one race alone and do not stigmatize or exclude....

See School Comm. of Boston v. Board of Education. Rejecting arguments comparable to those that the plurality accepts today, that court noted: “It would be the height of irony if the racial imbalance act, enacted as it was with the laudable purpose of achieving equal educational opportunities, should, by prescribing school pupil allocations based on race, founder on unsuspected shoals in the Fourteenth Amendment .”...

The Court has changed significantly since it decided School Comm. of Boston in 1968. It was then more faithful to Brown and more respectful of our precedent than it is today. It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today’s decision.

Does this ever remind me of Justice Brennan in his final years on the Court, and perhaps Justice Blackmun.

Perhaps one does wll to remember that the Court has been an anti-progressive institution for most of its history. Some of us just came of age, and were shaped, during an exceptional moment, under the FDR and Warren eras. They are over now. Finis.

Idealists, forget about law school. Find out about social entrepreneurship. And learn to organize.

What will become of us?

Slate Magazine: By Walter Dellinger
It is difficult to convey to someone who wasn't living in the South the magnitude of the Brown decision. On the 40th anniversary of the decision, I revisited that day for the Washington Post:

I REMEMBER nothing of my 13th birthday, which was celebrated in some now unrecallable fashion on a May Saturday in 1954. But I will never forget what happened the following Monday. ...

I was stumbling, unfocused, through the seventh grade at Myers Park Junior High in Charlotte, N.C. It was just past midday when a knock on the classroom door aroused me from my post-lunch slumber. The assistant principal, standing just outside the partially open door, carried on a whispered conversation with our fourth-period teacher. At conversation's end, our teacher closed the door and turned (in my mind's eye, in slow motion) to face the class. Our distracted chatter dropped to a hush as we noted his ashen face. I believe I remember, 40 years later, his exact words:

'Children,' he said slowly and deliberately, 'the Supreme Court has ruled. Next year you will go to school with colored children.'

['A Southern White Recalls a Moral Revolution.' The Washington Post May 15, 1994, Sunday, Final Edition]

In fact, nothing happened the next year. Or the next. Five years later, I graduated from a still all-white public school without ever having attended school with a black child. In fact, I finished college and law school, clerked for a Supreme Court justice, and was a law professor teaching Brown when the Supreme Court finally brought a meaningful end to the de jure segregation of the public schools of the rural and small-town South in 1972....

Looking at today's cases from the vantage point of the Brown decision, the idea that the Supreme Court would condemn the valiant efforts of the Louisville community is extraordinary. The people of Louisville want a community that is not separated by race, beginning with a school system in which white and black children learn to know one another.

Brown condemned a system of Southern racial apartheid, a system of racial domination and subordination. It is the worst form of literalism to believe that the cases now before the court can be decided by the fact that the phrase "classifying by race" can be used to cover two radically different notions. Only by blinding oneself to history and common sense can one assume that the use of race to maintain the monstrosity of the Jim Crow regime of the South and the use of race to achieve an integrated society in Louisville are one and the same.

It appears that precisely that is where we have come in our law and in our government.
The prophets would have called for sack-cloth and ashes.
The Pope, apparently, for restoring the Tridentine mass.
What would Jesus do?

Pope Approves Wider Use of Latin Mass

New York Times:

VATICAN CITY (AP) -- Pope Benedict XVI has approved a document that relaxes restrictions on celebrating the Latin Mass used by the Roman Catholic Church for centuries until the modernizing reforms of the 1960s, the Vatican said Thursday....

Benedict's move is widely seen as an attempt to reach out to an ultra-traditionalist and schismatic group, the Society of St. Pius X, and bring it back into the Vatican's fold. ...

Some cardinals and bishops, particularly in France -- where Lefebvre's group is strong -- have objected publicly to any liberalizing of the old rite, saying its broader use could lead to divisions within the church, and could imply a rejection of other Vatican II teachings.

Other concerns have come from groups involved in Christian-Jewish dialogue, because the Tridentine rite contains prayers that some non-Christians find offensive. The Tridentine liturgy predates the landmark documents from Vatican II on improving relations with Jews and people of other faiths....

Benedict has made clear for years that he greatly admires the Tridentine rite and has already incorporated Latin into Masses at St. Peter's Basilica....

''I am of the opinion, to be sure, that the old rite should be granted much more generously to all those who desire it,'' then-Cardinal Joseph Ratzinger said. ''It's impossible to see what could be dangerous or unacceptable about that.''

Where is Tom Lehrer when we really need him?

What is happening to our country?

White House Invokes Executive Privilege on Files

New York Times:
WASHINGTON (AP) -- President Bush, moving toward a constitutional showdown with Congress, asserted executive privilege Thursday and rejected lawmakers' demands for documents that could shed light on the firings of federal prosecutors. ...

''With respect, it is with much regret that we are forced down this unfortunate path which we sought to avoid by finding grounds for mutual accommodation,'' White House counsel Fred Fielding said in a letter to the chairmen of the Senate and House Judiciary Committees. ''We had hoped this matter could conclude with your committees receiving information in lieu of having to invoke executive privilege. Instead, we are at this conclusion.''

'Increasingly, the president and vice president feel they are above the law,'' said Senate Judiciary Chairman Patrick Leahy, D-Vt. He portrayed the president's actions as ''Nixonian stonewalling.''

His House counterpart, Judiciary Chairman John Conyers, D-Mich., said Bush's assertion of executive privilege was ''unprecedented in its breadth and scope'' and displayed ''an appalling disregard for the right of the people to know what is going on in their government.''...

The White House also had offered a compromise in which Miers, Taylor, White House political strategist Karl Rove and their deputies would be interviewed by Judiciary Committee aides in closed-door sessions, without transcripts.

Leahy and Conyers rejected that offer.

Fred Fielding was, of course, a White House lawyer during the Nixon impeachment hearings. Maybe he's looking for a return engagement?
What say you, John Dean?

Supreme Court Ends 96-Year-Old Ban on Price Floors

New York Times:
WASHINGTON (AP) -- The Supreme Court on Thursday abandoned a 96-year-old ban on manufacturers and retailers setting price floors for products.

In a 5-4 decision, the court said that agreements on minimum prices are legal if they promote competition.
The Supreme Court declared in 1911 that minimum pricing agreements violate federal antitrust law....

The principle that past decisions should be left alone ''does not compel our continued adherence'' in this instance, Justice Anthony Kennedy wrote.

Respected authorities in the economics literature suggest that the long-standing decision ''is inappropriate, and there is now widespread agreement'' that price floors can help promote competition, Kennedy added.

''The only safe predictions to make about today's decision are that it will likely raise the price of goods at retail,'' Justice Stephen Breyer wrote in dissent.

It is the fourth antitrust ruling by the court in the last four months. In each instance, the court sided with defendants that were sued for anticompetitive conduct, including Wall Street investment banks and an international forest products company.

Is anyone starting to sense a pattern here?

Justices Limit Use of Race in Placement of Students

New York Times:
WASHINGTON (AP) -- The Supreme Court on Thursday rejected school diversity plans that take account of students' race in two major public school districts but left the door open for using race in limited circumstances.

The decision in cases affecting schools in Louisville, Ky., and Seattle could imperil similar plans in hundreds of districts nationwide, and it further restricts how public school systems may attain racial diversity.

The court split, 5-4, with Chief Justice John Roberts announcing the court's judgment. The court's four liberal justices dissented.

The districts ''failed to show that they considered methods other than explicit racial classifications to achieve their stated goals,'' Roberts said.

Yet Justice Anthony Kennedy would not go as far as the other four conservative justices, saying in a concurring opinion that race may be a component of school plans designed to achieve diversity.

To the extent that Roberts' opinion could be interpreted to foreclose the use of race in any circumstance, Kennedy said, ''I disagree with that reasoning.''...Justice Stephen Breyer, in a dissent joined by the other liberals on the court, said Roberts' opinion undermined the promise of integrated schools that the court laid out 53 years ago in its landmark decision in Brown v. Board of Education.

''To invalidate the plans under review is to threaten the promise of Brown,'' Breyer said.

Psychiatrists Top List in Drug Maker Gifts


WASHINGTON, June 26 — As states begin to require that drug companies disclose their payments to doctors for lectures and other services, a pattern has emerged: psychiatrists earn more money from drug makers than doctors in any other specialty.

How this money may be influencing psychiatrists and other doctors has become one of the most contentious issues in health care....

These and other stories have helped to fuel a growing interest among state and federal officials to document and restrict payments to doctors from drug makers. At a gathering last month at Columbia Law School in New York, state attorneys general from across the country discussed ways to get similar data for their states.

And today, the Senate Special Committee on Aging, which is led by Senator Herb Kohl, Democrat of Wisconsin, will hold the first of a series of hearings on the issue, which could lead to legislative proposals to restrict and require disclosure of payments and gifts to doctors from drug companies nationwide.

Several lawmakers on Capitol Hill have expressed interest in such legislation, including Senator Charles E. Grassley, Republican of Iowa. “A federal law requiring public disclosure of payments to doctors could be very effective if it was carefully monitored and consistently applied,” Mr. Grassley said.

Paint the army green. Especially the bombs.

Informed Comment: By Juan Cole

Dennis Kucinich wants a massive government program to retrofit homes for solar and wind energy. I don't know if homes are the place to start, but I agree that solar and wind would become more viable if the government threw a lot of money at them. Personally, I'd start by making the Defense Department and the military as green as possible. This would have the advantage of being attractive to the Republicans, of getting the corporations on board, of potentially giving our military advantages in the field, and of being hard for the conservatives to argue against.

An unanticipated nugget. (Green) black humor from Prof. Cole?

I come not to rethink AIPAC, but to bury it?

Prospects for Peace: By Daniel Levy

I have on several occasions expressed my concern at the closeness of the relationship between AIPAC, the Christian right, and the neo-cons. I think it is unhealthy for American Middle East policy, unhelpful for Israel, and unpalatable for the Jewish community. Either AIPAC should undergo a radical rethink or the majority of the Jewish community that supports Israel, but that also supports progressive policies, peace, and the Democratic party, should find a new vehicle for expressing its opinions.

Of course people will say “But Israel should not be politicized or made a partisan issue.” Sure, the very basic issue of supporting Israel, or its relationship to the US, need not be questioned. But beyond that, the debate on Middle East policy, on what’s best for America (and by the way, for Israel), who to talk to, how much to promote peace, etc. should be discussed politically as these are political questions.

Another blog I've just found. Read about Daniel Levy's background, and give his blog a try.

The imperial vice presidency By Sidney Blumenthal

Having served as President Ford's chief of staff, [Cheney] understood intimately how control of the paper flow meant control of the decision making. In 1999, the Post reported, Cheney explained to a conference of presidential historians: 'The process of moving paper in and out of the Oval Office, who gets involved in the meetings, who does the president listen to, who gets a chance to talk to him before he makes a decision, is absolutely critical.'

Cheney has crushed the normal interagency process that permitted communication, cross-fertilization and cooperation at the sub-Cabinet level through all previous modern administrations. At the same time, he has isolated Cabinet secretaries, causing them to be fired when they contradicted him, as he did with Christine Todd Whitman, former head of the Environmental Protection Agency, and former Secretary of the Treasury Paul O'Neill.

Cheney thrives in darkness, operating by stealth within the government, and makes a cult of secrecy. None of these insights are new, except for additional telling details...

The line between Blumenthalian polemic and simple reportage appears to have narrowed. Maybe we've reached the point that you just can't make this stuff up.

Elizabeth Edwards Viciously Attacks Ann Coulter

Jon Swift:
It's really sad the way Elizabeth Edwards has debased our political dialogue by confronting pundits with their own words and threatening their livelihoods. If John Edwards is elected President, this will just give his wife a bigger platform to use the language of hate against political commentators like Coulter who are only trying to make a living. If Coulter is silenced then all we will have left is Jules Crittenden, who is neither pleasing to look at nor particularly funny. America would only have itself to blame.

This is nicely done. My first visit to Jon Swift; undoubtedly not my last. Check out his collected Amazon book reviews, and the Uncyclopedia (all new to me, clever, and funny).

CIA Documents Shed More Light on Agency's Interest in Student Dissenters

The Chronicle:
Information about Operation CHAOS is part of the much-discussed cache. In particular, a number of documents concern a 1968 study of student dissent, entitled 'Restless Youth,' that was prepared by the agency for President Lyndon B. Johnson.

In two memoranda dated May 7, 1973, the agency's director of current intelligence informed Mr. Schlesinger of a series of episodes in which the agency had assessed and produced reports on the level of foreign involvement in the antiwar movement. One memo (Document No. 193 in Tuesday's release) states that a late 1967 review of the evidence of such links by the agency -- disseminated via memoranda -- had concluded that 'there was some evidence of ad-hoc contacts between antiwar activists at home and abroad but no evidence of direction or formal coordination.'

The other May 7 memo (Document No. 190 in Tuesday's release) gives details of the genesis of the 'Restless Youth' report, which was given to President Johnson in September 1968. The memo states that a national-security adviser, Walt W. Rostow -- who later was a professor of economics and history at the University of Texas at Austin -- asked the agency to put together a report on worldwide student unrest. ...

The chapter of "Restless Youth" on domestic student dissenters, "Student Dissent and Its Techniques in the U.S.," was sent to President Johnson in January 1968. Much of that document focused on Students for a Democratic Society, known as SDS, and drew heavily on FBI intelligence about the group. ...

The material on "Restless Youth" contained in the "family jewels" material is particularly illuminating about the agency's desire to conceal its interests and reporting on a U.S.-based organization, which was strictly forbidden by the agency's charter. ...

"The paper 'Restless Youth' is sensitive because of its subject matter," states the 1968 memo, "because of the likelihood that public exposure of the agency's interest in the problem of student dissidence would result in considerable notoriety, particularly in the university world, and because pursuant to Mr. Rostow's instructions, the author included in his text a study of student radicals in the United States, thereby exceeding the agency's charter."

Post hoc rationalization of paranoia. Not.
The agents apparently complained about having to wear long hair and beards. I hope they got lice, and not much sex.

The Academic Ethicist

The Chronicle: : Dear Academic Ethicist,

I am what you might call a 'rising star' in the field of architectural history. Last year my book, Abstract Concrete, received the Rauschenberg Prize for best book on postcontemporary architecture. I was delighted — until I learned that the award was sponsored by the Hebrew University's School of Architecture, in Jerusalem. Needless to say, I immediately turned down the prize and the invitation to an award banquet at the university. Not only was I concerned that by accepting I would be imperiling relations with my colleagues and friends in the European architectural scene, but I was also worried that I might be sacrificing my chances of being published in Critical Inquiry and the London Review of Books. Compounding my ethical dilemma, I feared that by attending the dinner, I would be expressing moral support for, and deriving personal nutritional gain from, expansionist Zionist politics. To my shock, a couple of colleagues claimed I was behaving in an anti-Semitic fashion. Have I done anything wrong? ...

Follow the link.

Wednesday, June 27, 2007

The Politicization of the Supreme Court

They provide some more details as I continue to emote, and smoke.

Very sobering thoughts on Africa

New York Times Book Review: By NIALL FERGUSON
[Paul] Collier’s [The Bottom Billion] is a better book than either Sachs’s or Easterly’s for two reasons. First, its analysis of the causes of poverty is more convincing. Second, its remedies are more plausible.

[A former World Bank economist like Easterly, Collier shares his onetime colleague’s aversion to what he calls the “headless heart” syndrome — meaning the tendency of people in rich countries to approach Africa’s problems with more emotion than empirical evidence. It was Collier who pointed out that nearly two-fifths of Africa’s private wealth is held abroad, much of it in Swiss bank accounts.]

There are, he suggests, four traps into which really poor countries tend to fall. The first is civil war. Nearly three-quarters of the people in the bottom billion, Collier points out, have recently been through, or are still in the midst of, a civil war. Such wars usually drag on for years and have economically disastrous consequences....Civil war, it turns out, has nothing much to do with the legacy of colonialism, or income inequality, or the political repression of minorities. Three things turn out to increase the risk of conflict: a relatively high proportion of young, uneducated men; an imbalance between ethnic groups, with one tending to outnumber the rest; and a supply of natural resources like diamonds or oil, which simultaneously encourages and helps to finance rebellion. ...

Yet this is a minor handicap compared with Trap No. 4: bad governance. Collier has no time for those who still seek to blame Africa’s problems on European imperialists. As he puts it bluntly: “President Robert Mugabe must take responsibility for the economic collapse in Zimbabwe since 1998, culminating in inflation of over 1,000 percent a year.” ...

If these four things are the main causes of extreme poverty in Africa and elsewhere, what can the rich countries do? ... Nor, Collier argues, can we rely on our standard remedies of aid or trade, without significant modifications. As a general rule, aid tends to retard the growth of the labor-intensive export industries that are a poor country’s most effective engine of growth. And much aid gets diverted into military spending. As for emergency relief, all too often it arrives in the wrong quantity at the wrong time, flooding into postconflict zones when no adequate channels exist to allocate it.

Trade, too, is not a sufficient answer. The problem is that Asia has eaten Africa’s lunch when it comes to exploiting low wage costs. Once manufacturing activity started to relocate to Asia, African economies simply got left behind. ...

This, however, is not the most heretical of Collier’s prescriptions. Reflecting on the tendency of postconflict countries to lapse back into civil war, he argues trenchantly for occasional foreign interventions in failed states. What postconflict countries need, he says, is 10 years of peace enforced by an external military force. If that means infringing national sovereignty, so be it. ...

In the end, he pins more hope on the growth of international law than on global policing. Perhaps the best help we can offer the bottom billion, he suggests, comes in the form of laws and charters: laws requiring Western banks to report deposits by kleptocrats, for example, or charters to regulate the exploitation of natural resources, to uphold media freedom and to prevent fiscal fraud. We may not be able to force corrupt governments to sign such conventions. But simply by creating them we give reformers in Africa some extra leverage.

Very grim. Alternatives? Is Jeffrey Sachs convincing (or fairly portrayed in this full review)?

The Nonconformist

New York Times Magazine:

...Which brings me back to my daughter, who, underneath her shy and somewhat diffident exterior, has always harbored the soul of an iconoclast. I might take some credit for having planted this renegade seed — when she was still very young, I invented a nonconformist club to which we were to elect worthy candidates (we found very few) — were it not for the fact that where I am volubly contrarian she has always quietly done her own thing. The truth is, I am of mixed minds about having handed on the mantle of dissent — of keeping a leery distance from the commonly held view — to my daughter. I worry that her instinct to think for herself is as much a curse as a blessing — that she will, despite her capacity to establish close connections, end up standing warily on the sidelines. Although as a culture we bemoan the perils of groupthink, it can be very cold once you move beyond the circle of warmth that is the reward for adding your voice to the collective chorus. We celebrate loners and visionaries, but we tend to do so only after the fact, when the class nerd who sat by himself in the lunchroom ends up writing a best-selling software program. Defiant individualism is fine if it succeeds, but for every misfit who becomes a Charles Bukowski or R. Crumb there is one who becomes Jeffrey Dahmer or the Unabomber. Striking up a different tune has always come with certain costs, beginning with ridicule and ending with social ostracism. A famous loner of a British poet once noted that “our virtues are all social” and that there is always the lurking possibility that what you stand for on your lonesome is nothing more than “a compensating make-believe.”

So although I admire my freethinking daughter, I also feel anxious on her account. My hope is that her idiosyncratic take on the world will lead her to unexpected places rather than to an embittered outlook, and I’m happy to say that the portents are looking good. The other night she watched a two-hour History Channel program on the counterculture of the ’60s, a period she is boundlessly fascinated by, as if it harked back to the Pleistocene era. With her imagination fired up by the spectacle of flower children and Woodstock, she announced to me that she wanted to try LSD; the fact that it is no longer the drug of choice would only be further inducement for her to seek it out. But then, as we sat in the kitchen equably discussing the possibility of her gaining hallucinogenic experiences, I was suddenly struck by the humor of it. Here was a girl who eschewed getting smashed and hooking up and insisted we subdivide our garbage into ecologically faithful bins. The chances were highly unlikely that she’d pursue a wild life on the margins. Far safer to bet that she’d get with the program in her own laggardly time and unlemminglike way.

Daphne Merkin is a contributing writer for the magazine.

Digital Tampering in the Media, Politics and Law

Hany Farid:

Photography lost its innocence many years ago. In as early as the 1930s, shortly after the first commercially available camera was introduced, Stalin had his enemies 'air-brushed' out of photographs. With the advent of high-resolution digital cameras, powerful personal computers and sophisticated photo-editing software, the manipulation of digital images is becoming more common. Here, I have collected some examples of digital tampering in the media, politics, and the law.

The examples are stunning, well worth a look.

Ruth Conniff | Hillary Clinton and the Woman Thing

Truthout, from The Progressive:

'When we imagined a woman President, we imagined a new day,' [Anna Quindlen] writes. Instead, in Hillary we have a professional pol. Ultimately, Quindlen puts a good spin on it: Maybe 'likeability' is overrated, she writes, and suggests we look where electing the candidate we'd rather have a beer with has gotten us.

But for progressives, ... the problem goes beyond matters of style. Hillary is a centrist, who rubs progressives the wrong way - most of all on the war. Back in 1992, when she was running with Bill as a new kind of first lady - an accomplished professional, a humane liberal, a board member of the Children's Defense Fund - enthusiasm was a lot higher on the left. But dropping progressive ties (along with old friends like Marian Wright Edelman and Lani Guinier) has been part of the Clintons' career trajectory.

Actually, I would say, the problem with Hillary is the same as the problem with other recent Democratic frontrunners. She is the establishment candidate, with neither the fire nor the freshness of the 'fringe' candidates who are not afraid to stand for something. Watching the line-up of primary contenders speak to the base in Wisconsin in 2004 was a lesson in the diminishing returns of Democratic Party politics. Russ Feingold, David Obey, Tammy Baldwin - the whole progressive delegation from Bob La Follette's home state - spoke passionately against the war, the Patriot Act, and the excesses of the Bush Administration. So did the least-likely Presidential candidates ... At the very end came John Kerry, whose best stab at an applause line was a pitch to "fully fund No Child Left Behind." ...

Now, four years later, the rest of the country has come around to the "fringe" view that the war in Iraq was a sham and a disaster, the attack on American civil liberties a serious concern. And we have Hillary, where Kerry once stood, splitting the difference on these urgent matters. It's the same thing she did as Senator: co-sponsoring legislation criminalizing flag-burning while opposing the flag-burning amendment, dodging discussion of the Iraq War when it mattered most, while bravely taking a stand against violence in video games.

The triangulation strategy that made her husband famous - and maddening - is evident in Clinton's many conservative legislative efforts - working with Sam Brownback and Joe Lieberman to boost her stock with social conservatives, talking tough about military spending and the need to confront Iran. ...

In Massachusetts, test for a pioneering health plan |
One of the most ambitious healthcare initiatives by a US state is entering a make-or-break implementation phase – just in time to become a model of success or failure for presidential candidates.

Starting next week, on July 1, most residents of Massachusetts will be required to carry health insurance, even if their employer doesn't provide it and even if they aren't eligible for a government-subsidized plan.

Already the Massachusetts experiment offers at least two lessons: First, a major healthcare overhaul is possible, despite all the competing interest groups. Second, a big change doesn't mean a quick fix. The state has already scaled back its early hopes that all residents would be covered. ...

Dellinger on over-ruling sotto voce

Slate Magazine:
The end-of-term conflict among the majority this year is not over what the right rule should be, or even about whether to abandon the prior, less conservative, decision—it is over precisely how to go about overruling prior cases. That is a pretty refined division.

Chief Justice Roberts and Justice Alito—perhaps recalling their recent confirmation encomiums to stare decisis—have apparently decided to overrule cases without saying they are overruling them. Justices Scalia and Thomas often won't go along with that move and thus write separately to say that the earlier cases should be explicitly repudiated. Justice Kennedy has gone both ways this week. The result is that the five justices in the majority break into two opinions, one of which would explicitly overrule a prior case and the other of which would leave it half-dead and unable to procreate. Scalia and Thomas would come clean and invoke the magic phrase 'X is hereby overruled' while Roberts and Alito avoid the O word and say things like, 'We leave Flast where we found it.'"...

But it's neither minimalist nor restrained to overrule cases while pretending you are not. There can also be a significant cost to the coherence of the system to have a precedent that is really indistinguishable in principle from new cases that go "the other way." What are lower-court judges to do when the earlier case is cited? How are they supposed to reconcile the conflicting results?

Dellinger concludes by stating his preference for the Scalia position.
Is that where we have got ourselves to? G!d help us.

Dellinger: On what is about to come

Slate Magazine:
I want to jump to the Louisville and Seattle cases that we are reasonably certain will be announced this Thursday morning. It's hard to think about much else because I fear the court is about to make a mistake of historic proportions by invalidating school assignment plans that take account of race to lessen the amount of racial segregation in the schools.

A majority of the justices seem to believe that striking down these plans would relocate school assignments to some race-neutral Garden of Eden, a wondrous, mythical place in which race plays no role in which public schools pupils attend. That assumption reflects an enormous blind spot. These plans at issue use race to mitigate the effects of racial separation in residential housing. They thus ultimately reduce the role of race in pupil assignments. For the justices to assume that race comes into play for the first time when these school boards attempt to lessen racial separation is to make an assumption tragically blind to the role of race in America....

One fundamental failing of those who would invalidate Louisville's efforts is the failure to see that voiding Louisville's benign use of race will leave in place a pupil assignment system heavily determined by racial decisions. The schools that will tend to become all-black won't be that way as a matter of accident, chance, or purely private choice. They will be that way because federal, state, and local government have all played roles in facilitating the segregation of housing in this country. And school systems that choose residential assignment systems are aware of how that choice produces racially separate schools. Even if a school system is not required to take steps to ameliorate that separation (as Lewis Powell suggested), surely it is permitted to do so.

AJC: Hein Supreme Court Decision Undermines Religious Liberty

American Jewish Committee:
The American Jewish Committee is disappointed with the Supreme Court's decision to deny taxpayers the ability to contest the President's use of federal funds to aid religion when those funds were not designated by Congress for that purpose.

'Today's Supreme Court decision undermines the Constitution's protection of religious liberty,' said Jeffrey Sinensky, AJC's general counsel. 'Allowing taxpayers to challenge only those government expenditures earmarked by Congress inappropriately insulates the executive branch from the constitutional scrutiny that safeguards the separation of church and state.'

In a 5-4 decision in Hein v. Freedom From Religion Foundation, the Court rejected a lawsuit challenging the actions of the White House Office of Faith Based and Community Initiatives, ruling that the case falls outside the narrow exception established for taxpayer standing.

AJC has filed amicus briefs in all the major Supreme Court cases on First Amendment taxpayer standing, and in light of today's decision, reasserts its belief that in order to give effect to both the Constitution and the principles upon which our liberal democracy was founded, taxpayers must have the opportunity to challenge all government expenditures that violate the Establishment Clause.