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

washingtonpost.com: 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

washingtonpost.com:
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

washingtonpost.com:

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

Salon.com: 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

Salon.com: 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?

Salon:

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

washingtonpost.com

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.

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

New York Times: By THE ASSOCIATED PRESS

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

New York Times: By ANTHONY RAMIREZ

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.

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.

NOTE

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

washingtonpost.com: 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.

SCOTUSblog:

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:

SCOTUSblog:

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

HEIN v. FREEDOM FROM RELIGION FOUNDATION, INC.:

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.

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