Tuesday, December 20, 2005

Better Late than Never...

I have not posted in a couple of weeks now. If I had any sort of a regular readership, I'd probably be worried about that...but the past weeks have been very busy with the combination of finals, gearing up for the holidays, a really tremendous legal opportunity, and the end of my employment and accounting career.

But, in the midst of all that, last week was ONE GREAT WEEK. I've resigned my job, and will no longer be working as an accountant - but will be going to school full-time, along with several school projects on the side, and an exciting opportunity to get some actual experience. I finished up with my finals for Fall 2005. And - probably most exciting:

HOUSTON HAS AN MLS TEAM!!!!!!!!!!!!!!!!!!!!!

Wonderful. Here is the website:
MLS Houston

Exciting developments. The (as yet un-named) team will play at Robertson Stadium on the campus of the University of Houston...and it is not an expansion team. The former San Jose Earthquakes are re-locating - so this is a team stocked with talent, and that finished first in the Western Division standings last year, and won MLS Cup two of the past five.

Quite a Christmas present, huh? Yes, more 'important' things have been going on the past two weeks - but this was mighty exciting to me.

Wednesday, December 07, 2005

Politics of death...

This story is another example of why capital punishment in America is wholly unjust and arbitrary - and is simply unjustified.

The story of Tookie Williams is pretty well know these days. Founder of a notorious gang (the Crips) convicted of four murders, but now while on death row, he has become a leading anti-gang activist and is credited by many former gang members as being the reason for them getting out of the gang lifestyle.

Does that 'conversion' merit the clemency of his sentence of death? I don't know. Obviously I tend to think so - but I'm not convinced that capital punishment works to begin with. Regardless of if he "deserves" clemency, the reason why Williams' case is a textbook example of the arbitrariness and illegitimacy of the death penalty is this:
"Clemency has become part of the politics of criminal punishment and has been slowly evaporating," said Frank Zimring, a clemency expert at the University of California at Berkeley. "When it comes to crime and punishment, there's been a conspicuous toughening of the governor and the public."
Schwarzenegger is still smarting from the defeat of four ballot measures he backed during a November special election, and political analysts have said that granting clemency would not sit well with the conservative base the Republican needs if he hopes to win re-election next year.

An independent poll last year found that 68 percent of Californians support the death penalty -- 54 percent of Democrats and 87 percent of Republicans.

"If he granted clemency, I would say, it would be a very divisive opinion," pollster Mark DiCamillo said. "Large segments of the public would take him to task."

I do not know Tookie Williams. I do not know if he committed the heinous crimes he has been convicted of. I do not know if his anti-gang work while on death row is a result of true repentance and conversion, or simply an effort to save his own life.

But I do know that the life and death of a human being - a human being named Tookie Williams - is likely going to be determined more by polls and politics than justice. I do know that is shameful.

Other capital punishment posts:
The wise words of Harry Blackmun...
An incredibly sad textbook example...
Stevens: 'Serious flaws' in death penalty
Believe it or not...
Go buy this book...
Capital Punishment in Texas...
Will Texas lose the death penalty?
Lethal Injustice...
Software Models Capital Punishment Outcomes

Thursday, December 01, 2005

Harry Potter spoiler alert...


This week I finished reading the latest in the Harry Potter series of books - Harry Potter and the Half-Blood Prince.

I was fortunate to be able to get this in over the Thanksgiving holiday - now that I'm in school I very rarely have much time for reading for pleasure. I borrowed Half-Blood Prince from a friend and was about 100 pages into it, a week or so ago, but I was totally lost. There were characters and story lines being referenced which I had absolutely no recognition of. So, then I decided that I needed to go back and read
Harry Potter and the Order of the Pheonix again, because I literally did not remember a thing about that book. That is kind of a scary proposition - the fact that you have read a book before and could not remember a single event, character or plot twist only a year or two later. I console myself thinking about how the thousands of pages of legal cases I've read since then has simply pushed these stories from my mind...but I'm really just worried I'm getting old.

Well, if you've read Half-Blood Prince, you know there are some - shall we say - twists and turns, or surprises in store. Well, I want to talk about some of those surprises a little bit in this post...


If you have not read Half-Blood Prince, but intend on doing so, please stop reading this now - because I am going to write about somethings that happen that you will not want to know before you read. If you do not want to spoil the plot of Half-Blood Prince stop reading now.


The purpose of this post is I have some ideas kicking around in my head about something that may happen in the seventh and final installment of the Harry Potter books - and if I'm right, it may well not surprise you as much when you read that book. So, if you do not want to face the possibility of a surprise of Book 7 potentially being revealed here, stop reading now.


Okay, as I mentioned, after reading Half-Blood Prince, I got to thinking about the ending, and something came to me that might be an important part of the final book - and I want to record that here so that, in two years when the final book comes out, I can verify if I was correct or not. I do want to add here - I do not read Harry Potter websites - so if this is a very common theory of what is happening in the books, then I apologize for not citing those sources, but this comes simply from my thoughts about the books, not anything external I've read.


As you know if you have read Half-Blood Prince, Professor Dumbeldore (Hogwarts Headmaster, and mentor/protector of Harry Potter) dies toward the end of the book. That was a bit of a surprise - not completely, but to some extent. What was much more surprising to me was the source of his death - he was killed by the killing curse by none other than Hogwarts Professor Severus Snape. Snape is a former Death Eater, who had turned spy for the Order of the Pheonix (those whom fight the antagonist in the books - Lord Voldemort). But many in the Order - if not all other than Dumbledore - still did not trust Snape. They felt he was still too entwined in the Dark Arts, and was really still a follower of Voldemort. But Dumbledore steadfastly trusted Snape, and refused to listen to anyone's doubts of Snape's pure loyalty.

And yet it was Snape who administered the curse which killed Dumbledore.

What to make of this. Well, clearly, the idea from the book is that Harry and the other members of the Order were correct all along about Snape - that he was still evil, still following Voldemort, and that Dumbledore was wrong to trust him.

I do not think this is the case. I think Snape is still loyal to the Order, and that even now - having killed Dumbledore and on the run back to Voldemort - he will be acting as spy.

How can that be?

My conjecture is that Dumbledore had a reason to put his trust in Snape fully. What kind of a reason - an Unbreakable Vow. We learn in Half-Blood Prince about these Unbreakable Vows that bind the two oath takers together to the point that death will result if the Vow is broken. What if - and it is a big what if - Dumbledore had convinced Snape to take an Unbreakable Vow of loyalty to him, to the Order, and against Voldemort, but always as spy, never revealing his true loyalties - even if that meant he had to kill Dumbledore in front of other Death Eaters to remain with his access to Voldemort.

This is how I support such a conjecture:

1. Dumbledore never waivered in his support of Snape. In the books, has Dumbledore ever been proven wrong about such a massive point? No.

2. When Harry was chasing Snape and Malfoy from the Hogwarts grounds, Snape fought back only with defensive spells. If he was truly working for Voldemort, there is no reason not to kill Harry at that point - after all he had just killed Dumbledore.

3. My idea is that Dumbledore knew that in order to defeat Voldemort, Harry would need someone on the inside to do something, which will provide Harry the access to kill him. My gut feeling is that at this point, Dumbledore felt his life was less important than Snape's in defeating Voldemort - Snape has to be there in order to accomplish the Feat, the Something which will enable Harry to end the War. Harry doesn't know this. The Order doesn't know this. But Snape does, and he will accompolish the Feat just before he himself perishes - and is redeemed - in the final book.

Who knows. Maybe Snape is just evil. But I think that Dumbledore had a master plan, and he saw his sacrifice as simply a piece of that plan.

We shall see.

Keep the Promise...

Today is World Aids Day. The idea of the world-wide day of awareness is to encourage the international community to step up to the plate and fight the disease.

The theme of this World Aids Day is accountability. There will be international observances calling for nations of the world, and international organizations to keep their committmens in fighting AIDS.

Clearly, the AIDS pandemic is at its devastating worst in the poorest areas of the world. The expense of getting AIDS treatment drugs, combined with lack of proper medical facilities, labratory testing facilities, and proper basics such as nourishment and hygiene make fighting AIDS in developing portions of the world extremely difficult. But it is clearly not a lost cause.

A study to be published in the New England Journal of Medicine today reveals that a holistic approach - even in the poorest areas - can be successful. The study shows that low-cost treatment programs can dramatically increase survival rates in poor countries.
Typically only 30 percent of AIDS patients survive for one year in Haiti, the poorest country in the Western Hemisphere where the HIV infection rate is about 3 percent among adults.

But integrating drug care -- usually generic drugs -- with nutritional support, tuberculosis treatment, counseling and other public health programs brought the survival rate up to 87 percent for adults and 98 percent for children, said Fitzgerald of the Weill Medical College of Cornell University.

That is a rather staggering improvement - especially for the children. And - it's economically efficient:
Fitzgerald and his colleagues said the annual cost of giving a three-drug combination to fight the AIDS virus was about $500 for generic medicines and $750 for brand-name drugs. "We estimated the overall cost per patient per
year (including medicine) as about $1,600," they said.

If you are able to spend a paltry $1,600 and re-gain a functioning memeber of the community, who is able to go back to work...or if a child, is able to grow up and contribute to the community - that is a bargain.

But of course, the poorest regions of Africa, central America, and Asia are not the only places where there is suffering from this disease. Even here, in one of the wealthiest nations of the world, people struggle with AIDS - and at all levels, the poor, middle class, and even the wealthy. AIDS is no respecter of income. And even though many here in America are able to take advantage of drugs and treatment which enables them to live strong, vibrant lives - there still is no cure...which I was reminded of all to closely this year. Much has been done, but there is so much left to do.

A few more links:
US Dept. of State
Kaiser Family Foundation

Stop AIDS. Keep the promise.

Wednesday, November 30, 2005

There's just no 'there' there...

From what I've been able to read of Bush's "major policy speech" today, it seemed to be a more detailed speech than Bush has given in the past - but he still completely failed to describe exactly what the strategy was, or exactly what victory means (looks like). From the speech:

The terrorists have made it clear that Iraq is the central front in their war against humanity. And so we must recognize Iraq as the central front in the war on terror.
Iraq was not the central front of the war on terror until our invasion and occupation. This is a straw-man that Bush and his admin constantly leans on - but it is merely a problem of their own creation.

Against this adversary there is only one effective response: We will never back down, we will never give in, and we will never accept anything less than complete victory.
What is complete victory against terrorism? Does anyone have any clue? Bush obviously doesn't. This is a tired line which is nothing more than an excuse for an unending war.

Most Americans want two things in Iraq: They want to see our troops win and they want to see our troops come home as soon as possible. And those are my goals as well. I will settle for nothing less than complete victory.

But he refuses to say what victory is - what is it that signals that we can get out?

Victory will come when the terrorists and Saddamists can no longer threaten Iraq's democracy, when the Iraqi security forces can provide for the safety of their own citizens, and when Iraq is not a safe haven for terrorists to plot new attacks on our nation.

What does that mean? The terrorists weren't there until Bush invited them in by invading Iraq, knocking out a stable (although evil) government. This (as noted above) is a red-herring argument specifically designed to make sure that we don't have to leave - there is no plan for how to leave.

In addition today, the White House put out a booklet called "National Strategy for Victory in Iraq." This was to be the detail - the meat - behind Bush's speech today. It sets out eight "strategic pillars."

1. Defeat the terrorists and neutralize the insurgency.

Absolute straw man and shockingly arrogant that they would put this as a first "pillar" for their strategy in Iraq - there were no terrorists nor insurgency until we invaded.

2. Help Iraq’s security forces become self-reliant.

A valid point. Of course, this clearly was not part of the original strategy, because the Admin though that Iraq would welcome us as occupiers with "parades and roses." But still Bush does not outline a plan - specifically a timeline - of how to actually DO this.

3. Help Iraqis forge a national compact for democratic government.

What does this mean? How long does this take? They have a constitution now, does that mean this prong is complete - or not?

4. Help Iraq build government capacity and provide essential services.

Again, what does this mean? How long does it take? Does this mean that we run their welfare systems - utilities - postal services - military? How much "government capacity" = victory?

5. Help Iraq strengthen its economy.

The last four "pillars" have all started with "Help..." - how does that define a victory? What is the definition of a strong economy? Who decides? How long does this take? Does this mean that they have a roaring stock market and suburban housing bubble - or simply that the lights get to stay on 24 hours?

6. Help Iraq strengthen the rule of law and promote civil rights.

More help. So, we are somehow going to define our "victory" by the promotion of civil rights...anyone think this was an original part of the US strategy for Iraq? I'm betting not. Again - this is a totally undefined, hazy, illigitimate excuse to stay in Iraq as long as you want to, have to, etc.

7. Increase international support for Iraq.

This is a great idea. I've been harping on international involvement for years - going back to pre-invasion. Of course, again, this clearly was never a true part of the strategy for invasion and occupation - it's just a toss in now to sound nice. In addition - how in the world do we use this as a guage of "victory?" How much "international support" = victory? Totally undefined.

8. Strengthen public understanding of U.S.-led coalition efforts and public isolation of the insurgents.

Because I guess the whole parades and roses strategy didn't work out so well.

The Bush Admin is simply demonstrating their lack of a plan - lack of a plan for how to manage after the initial invasion; lack of a plan for the long-term occupation; and a lack of a plan for how to actually get out. Bush refuses to acknowledge that he has made collosal mistakes of judgment - and to cover up those mistakes, he's stubbornly "staying the course" although he and his administration have no idea what that course is.

Another photo op...

This morning, President Bush goes back before another military audience to detail his "strategy" for the occupation of Iraq, detail the progress that is being made, and detail what victory in Iraq is supposed to look like.

It seems as if he's done this 5+ times in the past six months, but there has never actually seemed to be a "strategy"; progress gets mixed reviews at best; and no one - absolutely no one - has ever been able to define what "winning" this occupation means.

And now:
~ we're mired in an occupation that we had no moral authority to initiate - and will lose what little moral authority we have if we leave and let the nation collapse into civil war and turmoil
~ of course, that point is almost moot because the Bush administration clings to the support and use of torture, which (a) undermines any moral authority the United States may once have had; and (b) puts American soldiers and citizens in much greater peril
~ Iraq has been turned into the largest terrorist recruiting grounds in the world
~ oh, and Baghdad doesn't even have electricity 24 hours a day yet...all those no bid contracts have really been a bargain
~ in order to cover up the misinformation campaign that led to the war, the White House leaked the name of an undercover CIA agent
~ and worst of all, another 110 US soldiers died in Iraq in about the past month, bringing the total casualties to 2110

Yet, the more I think about this horrific situation in Iraq, the less I'm convinced that pulling out the US military now is the right way to go. Having said that, I think that this makes some sense:
~ set a timeline to start redeployment
~ get the UN, NATO, and other world organizations involved
~ get American companies with no bid contracts out (and the US "security" contractors) to get rid of the American Empire feel of this occupation
~ set clear deadlines for the training of Iraqi security forces

These aren't crazy suggestions (and obviously its not original to me) - its just an actual plan. I hope that Pres. Bush's speech will address these issues, because if it doesn't, it's just more evidence that he never had a strategy for occupation; his administration does not have a plan for progress; and they have no clue what victory will look like.

Monday, November 28, 2005

Parents gone wild...

Interesting article in yesterday's NY Times - Kids Gone Wild. It is a glipse of the problem of bad behavior among today's kids. As a parent, I am obviously interested in this topic. I often stuggle with how to raise my son to be polite, quiet, well-behaved, and respectful - when those traits seem to have flown out the window for this generation.

I think that this article overall makes an excellent point:
But what seems to have changed recently, according to childrearing experts, is parental behavior - particularly among the most status-conscious and ambitious - along with the kinds of behavior parents expect from their kids. The pressure to do well is up. The demand to do good is down, way down, particularly if it's the kind of do-gooding that doesn't show up on a college application.

It's scary - from my perspective - but undoubtably true that much of the behavior problems of children these days stems from parental behavior. Although it's not as fun to have to blame yourself for a problem instead of blaming the kids.
Most parents ... would like their children to be polite, considerate and well behaved. But they're too tired, worn down by work and personally needy to take up the task of teaching them proper behavior at home.

I like the way that is phrased - "task of teaching." The fact of the matter is it's work to teach proper behavior to a two-year-old. And so often, I find myself after a long day of work, and then night classes not wanting to "work" anymore at home - so it's easier just to be permissive...but what is easy is not always (or even often) what is best.

The article concludes:

If stress and strain, self-centeredness and competition are the pathogens underlying the rash of rudeness perceived to be endemic among children in America today, then the cure, some experts said, has to be systemic and not topical. Stop blaming the children, they said. Stop focusing on the surface level of behavior and start curing instead the social, educational and parental ills that feed it.

This may mean less "quality" time with children and more time getting them to do things they don't want to do, like sitting for meals, making polite conversation and ... picking their clothes up off the floor.

I think this is true. In order to raise disciplined kids, you yourself have to have the discipline as a parent to accept the task - the work - and see it out. :Sigh: Nothing comes easy, does it?


Washington Post columnist Richard Cohen in his Op-Ed Iraq and the 'L' Word:
The restraint of responsible war critics has been remarkable. Despite a recent headline on the Wall Street Journal's editorial page -- "What If People Start Believing That 'Bush Lied'?" -- the "L" word has been prudently withheld by elected Democrats. But you would think that Bush himself would wonder about how he's gotten to this place where he looks like such a fool: wrong on the biggest issue of his presidency. He went out there and told the American people things that were not true. Does that mean he lied? Maybe not. Maybe he was just repeating the lies of others.

Wrong on the biggest issue of his Presidency. The problem, of course, is that the American people should have known this from before March 2003 and not allowed it to happen...and once it did, we should have rejected this administration in total...but we re-elected them.

The Houston Chronicle carried this tragic story from the war today about an officer who was demonized by the dishonor he saw in the invasion and occupation of Iraq. The article includes these quotes:
In e-mail to his family, Westhusing seemed especially upset by one conclusion he had reached: that traditional military values such as duty, honor and country had been replaced by profit motives in Iraq, where the U.S. has come to rely heavily on contractors for jobs once done by the military.

A psychologist reviewed Westhusing's e-mail and interviewed colleagues. She said that Westhusing had placed too much pressure on himself to succeed and that he was unusually rigid in his thinking. Westhusing struggled with the idea that monetary values could outweigh moral ones in war.
So, these days, struggling with the idea that monetary values outweigh moral ones in an invasion and occupation is unusually rigid thinking? A sad commentary.

First Digital Camera Pics...

We finally got a digital camera over the weekend, so here are a few of our first photos...

Tuesday, November 22, 2005

What an interesting thought...

What an interesting thoughts from Scott Horton at Balkinization: Nuremberg at Sixty: Is Jackson's Poisoned Chalice Now at Bush's Lips?

The post is short, but I'm not going to post it all...but here is a taste:

For the last twenty years, it’s been common practice among law professors to view modern human rights law, and in a sense the entire international law system, as something that started with the gavel that convened the first of the Nuremberg criminal tribunals. That gavel fell sixty years ago today. These tribunals gave force to the concept that international law was not just about relations between nations. International law also created obligations for individuals, who could be subject to trial and severe sanction. America was the most aggressive proponent of this course, and the American prosecutor, Justice Robert Jackson, was extremely conscious of what this meant for his country. “We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our lips as well.”

Read the rest.

What remains of federalism?

This post by Professor Randy Barnett over at Volokh Conspiracy led me to his interesting (and short) paper entitled Limiting Raich a foreword to the coming Lewis and Clark Law Review symposium issue on Federalism After Gonzales v. Raich.

Prof. Barnett, of course, has an interesting perspective on Raich, since he is the lead attorney and argued the case before the Supreme Court last term. In the paper, he argues for a way that a future - more pro-federalism - Court could limit the holding. Here is the abstract to the paper:
In Gonzales v. Raich, the Supreme Court rejected a constitutional challenge to the Controlled Substance Act, as applied to the cultivation, possession and use of cannabis for medical purposes as recommended by a physician and authorized by state law. The challenge relied on the precedents of United States v. Lopez and United States v. Morrison in which the Court had found that the statutes involved had exceeded the powers of Congress under the Commerce Clause. As explained by the articles in the symposium in which this Foreword will appear, the Court in Raich has now cast the applicability of these previous decisions into doubt. In this brief essay, I offer a route by which a future majority of the Supreme Court can limit the scope of its decision in Gonzales v. Raich should it desire to put its commitment to federalism above a commitment to national power. Viewed in this light, the decision in Raich is not quite as sweeping as it first appears.
It is a relatively interesting and quick read.

I rather disagree with Prof. Barnett's contentions - both in Raich, and in his support of Lopez and Morrison. In fact, I am in the midst of writing a paper to submit to Legal Affairs writing competitions which is based on some of my commerce clause ramblings on this blog. I think that Lopez and Morrision were abberations in the Court's history of Commerce Clause jurisprudence, and a form of strict federalism has no place in this day and time. Having said that, it is ALWAYS illuminating to be able to get nuggets liket this straight from the horse's mouth - in this case the attorney arguing the case before the Supreme Court.

You can read more of my posts related to Raich here:
Medical Marijuana or State's Rights?
Raich handed down...
More on Raich...

And more general comments on the Commerce Clause and federalism here:
What is commerce?

Thursday, November 17, 2005


It is never easy to admit you were wrong. It is especially difficult when you are a public figure, and your decision led to major policy directions.

But that is exactly what two courageous politicians (when is the last time you read those words together???) have done in the past week.

First, former Senator and vice-Presidential candidate John Edwards had the courage to say the stunning words, "I was wrong." After admitting his mistake in voting to authorize the President to use force in Iraq, Edwards went on to suggest a three part plan for salvaging the situation:

1. "[W]e need to remove the image of the imperialist America from the landscape of Iraq." - how do we do this? Edwards suggests that first, we get "American contractors who have taken unfair advantage of the turmoil in Iraq" to leave. "Return of the work to Iraqi businesses, would be a real statement about our hopes for the new nation." Secondly, we need to demonstrate to the world that we do not intend to be there forever. "We've reached the point where the large number of our troops in Iraq hurts, not helps, our goals." After the next round of elections early next year, we should begin a redeployment of a major portion of the troops.

2. Committment to more effective training of Iraqi security forces. This would include a "clear plan for training and hard deadlines for certain benchmarks to be met." And as these hard deadlines are met, more US troops will withdraw.

3. Actual, serious, committed diplomacy. There needs to be a unified international front for Iraq to succeed.

Courage to admit error, and a plan to go forward and correct the mistakes. Bravo to John Edwards for making a stand.

Secondly, Rep. John Murtha, top Democrat on the House Appropriations defense subcommittee and former war hawk, today held a press conference where he declared, "It is time for a change in direction. Our military is suffering, the future of our country is at risk. We cannot continue on the present course. It is evident that continued military action in Iraq is not in the best interests of the United States of America, the Iraqi people or the Persian Gulf region." And understand, Rep. Murtha is no lightweight when it comes to matters of the military. "Murtha has earned bipartisan respect for his grasp of military issues over three decades in Congress. . . . First elected to Congress in 1974, Murtha is known as an ally of uniformed officers in the Pentagon and on the battlefield. The perception on Capitol Hill is that when the congressman makes a statement on military issues, he's talking for those in uniform. Known to shun publicity, Murtha said he was standing up because he had a constitutional and moral obligation to speak for the troops."

Bravo to Rep. Murtha who had the courage and strength to endure the barrage of attacks he surely knew would come when he decided to make this statement. Radical Republicans - much more concerned about politics and elections than about American lives or America's image abroad - have already unleashed a barrage of attacks upon him and his patriotism...I wonder how many of these new chicken-hawk critics have ever served and earned two purple hearts as Murtha has?

But Murtha did have a response to vice-President Dick Cheney who in a disgusting display of partisan politics above national good, pulled out the tired old attack slogans, "The saddest part is that our people in uniform have been subjected to these cynical and pernicious falsehoods day in and day out," and "[W]e're not going to sit by and let them rewrite history." Mr. Cheney significantly failed to point out that it was the Bush Administration's "cynical and pernicious falsehoods" that led us into this occupation, and it is their attempt to "rewrite history" had has the Administration up to their ears in investigations and criticism. But Murtha spoke to the true nature of Cheney, and this administration. "Murtha, a Marine intelligence officer in Vietnam, angrily shot back at Cheney: 'I like guys who've never been there that criticize us who've been there. I like that. I like guys who got five deferments and never been there and send people to war, and then don't like to hear suggestions about what needs to be done.'" Well said. And courageous.

And finally, even a Republican got in on the courageous act today. Although Cheney's comments included calling criticism of the mishandling of the run-up to war, "one of the most dishonest and reprehensible charges ever aired in this city", Republican Sen. Chuck Hagel, and decorated Vietnam veteran, stated, "The Bush administration must understand that each American has a right to question our policies in Iraq and should not be demonized for disagreeing with them. To question your government is not unpatriotic -- to not question your government is unpatriotic."

It is too bad this administration and right-wing leadership is too busy covering up their mistakes, or blaming others for those mistakes, to have the courage to take a stand for America.

Bravo to John Edwards, Rep. Murtha, and Sen. Hagel for having the courage of conviction - and letting their voices be heard. Let's just hope more follow.

Wednesday, November 16, 2005

Liars never win...

It appears that the leaders of Big Oil misled Senators during their testimony before the Energy committee last week. Although they testified that oil executives had not met with Dick Cheney's energy task force in 2001, there is now evidence that they did: Document Says Oil Chiefs Met With Cheney Task Force
A White House document shows that executives from big oil companies met with Vice President Cheney's energy task force in 2001 -- something long suspected by environmentalists but denied as recently as last week by industry officials testifying before Congress.

The document, obtained this week by The Washington Post, shows that officials from Exxon Mobil Corp., Conoco (before its merger with Phillips), Shell Oil Co. and BP America Inc. met in the White House complex with the Cheney aides who were developing a national energy policy, parts of which became law and parts of which are still being debated.

Sen. Frank Lautenberg (D-N.J.), who posed the question about the task force, said he will ask the Justice Department today to investigate. "The White House went to great lengths to keep these meetings secret, and now oil executives may be lying to Congress about their role in the Cheney task force," Lautenberg said.
The executives were not under oath when they testified, so they are not vulnerable to charges of perjury; committee Democrats had protested the decision by Commerce Chairman Ted Stevens (R-Alaska) not to swear in the executives. But a person can be fined or imprisoned for up to five years for making "any materially false, fictitious or fraudulent statement or representation" to Congress.

Toward the end of the hearing, Lautenberg asked the five executives: "Did your company or any representatives of your companies participate in Vice President Cheney's energy task force in 2001?" When there was no response, Lautenberg added: "The meeting . . . "

"No," said Raymond.

"No," said Chevron Chairman David J. O'Reilly.

"We did not, no," Mulva said.

"To be honest, I don't know," said BP America chief executive Ross Pillari, who came to the job in August 2001. "I wasn't here then."

"But your company was here," Lautenberg replied.

"Yes," Pillari said.

Shell Oil president John Hofmeister, who has held his job since earlier this year, answered last. "Not to my knowledge," he said.

Ouch. But of course, these poor oil companies still need the help of our generous executive administration, and the Senate - in order to secure additional tax breaks . . . because billions upon billions in record profits during the 3d Quarter (in the midst of national emergency) wasn't enough.

Well, at least a few Senators think it may have been enough:
Backlash forms over oil profits

Bush admin opposes oil donations to heating fund

Companies urged to help low-income, elderly who are hurt by high prices

Another Republican asks Big Oil to share profits

Windfall profits tax needed

'Windfall' profits tax won't cut fuel prices

Oil's gain is consumers' pain

Big Rise in Profit Puts Oil Giants on Defensive

Hands Off The Windfall

We're getting closer...

It looks like we may be getting closer to getting an MLS club in Houston.

MLS targets city for move of franchise

Major League Soccer announced Tuesday that it has cleared the way for the San Jose Earthquakes to relocate to one of a number of potential cities, with Houston the likely destination.

League commissioner Don Garber said in a prepared statement that the MLS Board of Governors granted approval to the Anschutz Entertainment Group, owner of the Earthquakes, to relocate the franchise. The decision came at a meeting Saturday in Frisco, site of the MLS Cup. Houston is the only city specifically mentioned by Garber as a possible new home.

"In order to ensure the team will have the appropriate time to prepare for the 2006 season, a final decision on the location of the team will be reached within the next 30 days," Garber said.

AEG president Tim Leiweke said Tuesday that the company is in the process of finalizing a move to Houston following months of evaluation and negotiations.

"We're really overwhelmed by the support and excitement we've gotten from our various options on facilities and of potential partners on an ownership group. In particular, (Houston)'s a great soccer market," said Leiweke.

He cited the success of events such as InterLiga, the Gold Cup and Mexican national team appearances at Reliant Stadium among reasons for AEG's favoring of Houston.

The news is encouraging to Harris County-Houston Sports Authority head Oliver Luck, who has been involved in efforts to land a soccer franchise for more than a year.

"It's clearly an important step," Luck said. "From our perspective, it's validation for what a great sports town Houston has become."

The Earthquakes have considered playing in at least five venues short term. Leiweke described them only as "high school or collegiate facilities."

Aside from UH's Robertson Stadium and the Cy-Fair ISD complex in northwest Houston, Rice Stadium and the Galena Park ISD complex could be in the mix, said Luck.

He wouldn't rule out the Astrodome or Reliant Stadium.

Leiweke said a decision must be made quickly.

He acknowledged that there have been negotiations with a San Jose-based group, and he suggested that if the Earthquakes don't move to Houston, the city would be first in line for an expansion team in 2007.

"We wouldn't have made this announcement at this point if we didn't think it was more than likely that Houston was the right place to go," Leiweke said.

League sets deadline for San Jose

Houston has long been rumored to be a possible new home of the Earthquakes, with the University of Houston's Robertson Stadium mentioned as a temporary home for the club until a soccer-specific stadium is built. Many of the Houston rumors in the past have included Mexico's Club America as a potential buyer, but Garber said Saturday that the league has not had any recent discussions with Club America.

In addition, five cities with investors interested in playing host to an MLS club had representatives in attendance at MLS Cup this weekend: Philadelphia, Milwaukee, Cleveland, Atlanta and Tulsa, Okla.

Let's keep our fingers crossed and hope this comes through. This would be great for Houston, and great for MLS. Oh, and it might be good for me too.

Monday, November 14, 2005

A3G Revealed...

Who would have ever expected this...In real life, A3G is a thirty-year-old Newark-based assistant U.S. attorney named David Lat.

What?!?!??!?!?!?!? Not me.

Here's "her" statement. [Edit: Apparently UTR has been taken down. Too bad, that was a great site.]

Tom Newhouse Mediation Competition...

Last Friday evening, my partner and I won the Tom Newhouse Mediation Competition at the University of Houston Law Center. In the finals, my partner was counsel, and I was the client - but that had switched around during the competition. The mediation competition was a really interesting experience, and it was nice to get a championship while in law school.

Over 90% of all filed cases settle (in both state and federal courts), and a large portion of those settle through mediation - so I think this was a really practical experience.

Friday, November 11, 2005

Veteran's Day...

Today is Veteran's day.

My late grandfather served in WWII. My wife's late grandfather was a navy pilot during WWII and Korea flying planes off aircraft carriers in the Pacific. My wife's father is an Air Force veteran.

I attended a Memorial Day event earlier this year at the Veteran's cemetary here in town. Since then I've thought a lot about how quickly we are losing the "WWII Generation." If you went into the military at 18 years old in 1945 (the last year of WWII) you would be 78 this year. And if you went in in 1945, it's reasonably less likely you would have seen combat. It's not unreasonable to think that within the next 10 years the vast majority of that geneneration will have passed - along with so much of the history and connection to those times. That seems quite surreal to me.

I thought about this a lot during August and the anniversary of the bombing of Hiroshima. It's interesting to look at public perception/opinion of that event over time. In the period just after the bomb was dropped, public opinion was overwhelmingly positive and relieved. 85% supported the attack, and there was a general sense of relief that it ended the Pacific War. Polls during the 1960s showed that African- and Asian-Americans tended to oppose the strikes more than whites; and women were more uneasy with it than men. Older folks, who had more instant memories of the War, and living through the War, were still strongly supportive, but those under 30 were much more critical and uneasy with the results of the bombing. As this younger generation - the baby boom - became the leaders ... critically including the historians ... the trend increasingly became more critical and unsupportive.

I think that a lot of that shift in public perception is due to the passing of the World War II generation. Our society is losing a lot of history as this generation fades...just as the Civil War generation passed away before that, and the Founding generation before that. (And off the top of my head, I think it's safe to divide America's history into those big categories - the Founding Generation; the Civil War Generation; and the WWII Generation...which leaves me wondering what this time is we are experiencing now - the PostModern Generation???...) In this same vein, CNN is carrying an article today related to WWI vets: Time Overtaking World War I Vets It included this graphic:

Estimated number of war-era veterans, including those outside of war zones, in civilian life as of September 30, 2005:
World War I: fewer than 50.
World War II: 3.526 million.
Korean War: 3.257 million.
Vietnam War: 8.055 million.
Desert Shield/Storm (theater only): 615,000.
Iraq/Afghanistan (theater only): 433,000.

Source: AP/Veterans Affairs Department

I'm not sure that since the WWII generation, veteran's are looked at in the same way any more. I think there are a lot of reasons for that - we haven't had a nation galvanizing (in a positive way... or maybe more descriptive- in a threatening way) war since; the advent of modern warfare techniques have served to desanitize war to much of the public; and modern information portals mean that there is much less "mystery" about the wars as they play out. Maybe there are other factors, and better factors as well. Regardless, it doesn't seem as if the nation as a whole is as cognizant of veteran's these days.

Anyway, the point is to remember our veteran's today - the one's who sacrificed themselves to make our nation great, the one's who served to protect us and made it home, and the one's who are still "over there" fighting for us even today.

As as a part of remembering that, I want to remember the men and women whom have lost their lives during the invasion and occupation of Iraq. There have been 2,063 American casualties in the war in Iraq as of November 11, 2005. Hopefully those still there will be safely home soon.

Tuesday, November 08, 2005

Election Day 2005 in Houston...

Today there is an off-year round of elections in Houston. There is a mayoral election, but essentially incumbent Bill White has no opposition - which he shouldn't, he is doing a fabulous job.

Here are a few resources related to the election, which includes nine propositions for amendments to the Texas state constitution. (Including the controversial same-sex marriage ban amendment.)

Houston Chronicle Election Central
Precinct 34 Sample Ballot

Popular [Mayor] White could make history

Houston Chronicle Recommends:
For Prop. 1
Against Prop. 2
Against Props. 3, 6, 8
For Prop. 9

Other resources:
Bill White for Mayor

Peter Brown for City Council, At large Position 1
Jay Aiyer for City Council, At large Position 2
Ron Green for City Council, At large Position 4

Ada Edwards for City Council, District D

Annise Parker for City Controller

Monday, November 07, 2005

Nail hit on head...

Dahlia Lithwick hits another home run. The Dangling Conversation

The same devoted right-wingers who torpedoed the Miers nomination are frothing at the mouth to explain painstakingly to the nation—yet again—their theory of judging. Liberals believe that the object of these hearings is to find out what a nominee stands for. But conservatives have long understood that the real point is a mass public-relations effort to drive home their lasting, unitary view of all liberal or even moderate judges as reckless and overreaching.

It will, unless Democrats get it together, become yet another Jerry Lewis telethon, raising national awareness about the dangers of "judicial activism" and the plague of "the reckless overreaching of out-of-touch liberal elitist judges." Democrats in the Senate either will not or cannot put the lie to these trite formulations. They need to shout it from the rooftops: that blithely striking down acts of Congress is activism; that the right's hero Clarence Thomas may be the most activist judge on the current court; that reversing or eroding long-settled precedent is also activism; and that "legislating from the bench" happens as frequently from the right as the left.

.... There's no cheap sound bite for Justice Stephen Breyer's notion of "active liberty" or for Cass Sunstein's program of judicial "minimalism" or Jack Balkin's principled "centrism." Or perhaps there is a cheap sound bite embedded in those ideas—it simply hasn't been excavated yet.

The main attraction of the right wing's relentless attack on the judiciary is that its oversimplified theory of judicial restraint solves its oversimplified problem of unconstrained judges. You have to drill down a lot deeper to see that unconstrained judges are making mischief at either end of the political spectrum, and more urgently, that hogtying judges is not an end in itself. It's a means to an end—with the end, I suppose, being the packing of the courts with judges who say they believe in restraint even as they gleefully dismantle decades' worth of legislative and judicial progress.

If the Scalias, Thomases, Alitos, and Borks of the world had their way, he says, there would be no meaningful gun control. States could have official churches. Hard-fought federal worker, environmental, and civil rights protections would disintegrate. What you currently think of as the right to privacy would disappear. These are the questions Senate Democrats need to ask of Sam Alito: Should property rights trump individual rights? Should the right to privacy be interpreted as narrowly as the framers might have intended? Do you believe that a return to the morals and mores of two centuries ago is in the best interest of this nation?

It doesn't matter what he answers, indeed the answers are irrelevant. By posing these questions to the American people, the senators will give them some understanding of the America that stands to be dismantled.

Well said.

Classic Calvin...

and Hobbes from a Slate retrospective:

Wednesday, November 02, 2005

On the road to Germany...

I have not been able to keep up with soccer as much as I'd like lately - what with work, law school, and trying to give at least the appearance of been a good husband and father. That's why I haven't posted about the 2005 MLS playoffs as I did last year - I haven't stayed current enough with the league this year to be able to post intelligently about it.

And it's not just MLS either - I've been unable to watch as much European soccer as usual - and other than a wonderful trip to Chicago to see the US v. England, I haven't been as up on the US Nats as I should be.

But seeing the highlights of the PSV v. AC Milan match from this week - and yes - that's American Damarcus Beasley absolutely blowing by veteran international Jaap Staam, forcing Staam to grab Beasley's jersey. That drew Staam's 2d yellow card, and he was sent off. Seeing an American with a shining display on a team which defeated Milan in the Champions League - whodathunkit?

That got me thinking about the US Nat's again, and their prospects for the World Cup next summer. So, who is it that Bruce Arena will take to Germany 2006? I want to spend a moment looking at who is likely to make the trip, who is on the bubble, and who would be interesting. The team will consist of 23 - 3 GK, 8 D, 8 M, 4 F. I will give my thoughts on who I think are most likely to make the roster for Germany, and also a couple of potential sleepers to be watching over the next few months to see if they get a shot at any US Nat friendly's, and see what their club form looks like throughout the end of 2005, and into the spring of 2006. (Click here for the 2005 player pool.)

GK Starter:
Kasey Keller (Borussia Monchengladbach - Bundesliga)
Keller is in great form currently, and has been performing as one of the best GKs in Germany, and may be one of the most in-form keepers in the world. He has a long history in the net for the US, is experienced on the World Cup stage, and leads the US with 44 all-time shutouts. If he stays healthy, Keller is a lock as starter in Germany, and will be an experienced leader for team. Excellent positioning and shot stopper, potentially weak distribution is his biggest negative.

Marcus Hahnemann (Reading - Championship)
Hahnemann has really come on strong the past year or two with very solid performances at Reading, and consistent camp call ups. He's solid, but not elite.

Tim Howard (Manchester United - Premiership)
Two years ago (when he was sold to Man U) he was expected to be the presumptive starter in Germany. Now that he is not starting or playing regularly, he may be on the bubble to make the squad. Probably the best athlete in this position, and has excellent reflexes - but his lack of consistent club play is a huge negative right now.

Matt Reis (NE Revolution - MLS)
Solid, one of the better keepers in MLS (and his defense is not full of all-stars). Would be an adequate 3d keeper in Germany if he keeps up his current form.

Joe Cannon (Colorado Rapids - MLS)
Cannon has probably been the best keeper in MLS over the past two years, and may challenge Keller as the best shot stopper on this list. That said, his stock has dropped over the past 12 months or so...not 100% sure why, although his distribution is sometimes criticized.

Brad Friedel (Blackburn Rovers - Premiership)
Officially retired from Int'l play, but if Keller was injured... Friedel was one of the top keepers of the 2002 World Cup; he was named to the Premiership team of the year in '02-'03, and the GK of the Year that year.

Aden Brown (Aeslund - Norway)
Brown was a young up and comer with a bright future with the Nats, but a series of injuries and a move to Norway where his performance is more obscure has moved him down the charts. But if he can stay healthy and get into a camp, he could force his way back into the squad.

Keller provides the US with a world-class presence in the nets. If he is hurt (or out of form) this position is certainly more questionable...but still reasonably solid and not a major concern.

Defense Starters:
RB - Steve Cherundolo (Hannover 96 - Germany)
Starting right back and sometimes captain of the big German club Hannover. 'Dolo is a bit smallish for a defender, but he is great up and down the line and has demonstrated his strong defensive skills. Sure-thing starter if healthy.

CB - Cory Gibbs (Feyenoord - Holland)
Gibbs was injured not long ago, and will be fighting to get back healthy and in match form during the spring. He had been great at Feyenoord before going out, and his combination of athleticism, size, and skills will have him starting in Germany if he makes it back.

CB - Onguchi Onyewu (Standard Liege - Belgium)
Amazing size and skills. Has developed from a fringe Yank Abroad into an automatic starter over the past year. Imposing, great in the air, and with good speed for his size. One of the keys to success in the World Cup.

LB - Eddie Lewis (Leeds United - Championship)
The experiment. Lewis has played his entire career at LM, and his playing there for his club Leeds United in England. Brilliant left foot. Tremendous crosser - the move to the back was to enable him to be on the field at the same time as Beasley and/or Convey. He still has yet to be tested against a truly international calibre right-midfielder to see if he can actually play in defense - but has looked good in the experiement thus far.

CB/LB - Carlos Bocanegra (Fulham - Premiership)
Has finally been starting at centre back for Fulham after playing somewhat out of position at left back most of last season. Strong, good in the air, good positioning - not the quickest, but plenty good with his feet to play centrally. He may well be the starter instead of Gibbs - it will likely depend on form in the month leading up to the World Cup.

CB - Greg Berhalter (Energie Cottbus - Germany)
Lots of experience and starts (and captains) for his club in Germany. Not fleet of foot, but good positioning to make up for that. He will likely be the "old man" defensively making the trip (unless Pope can hook himself up to the jeuvination machine) to provide a settleing influence.

LB/RB/CB - Johnathan Spector (Charlton Athletic - Premiership)
I'm going out on a bit of a limb making this prediction. It is contingent upon Spector regularly starting for Charlton (he's been in and out thus far this season); and playing well in several of the friendly's the rest of this year and in the spring. He's still very young (19), but his versatility (can play all over the back) and his pedigree (playing with Man U and Charlton in the Prem) will be enough to prove to Arena that Spector should make the trip. This might be the one guy you bring to "bleed" him for the 2010 World Cup.

RB - Frankie Hejduk (Columbus Crew - MLS)
Another scrappy veteran. Arena knows exactly what he gets in Hejduk - tireless runner, hard worker, pace, intelligence. He is versatile (can play RM, LB, LM) and has played his best in the biggest games. Having said all that, he is a very limited player and cold very easily not make the cut.

RB - Chris Albright (LA Galaxy - MLS)
If Hejduk doesn't make the trip, I think it will be Albright taking his spot. A converted forward, Albright has found new life playing fullback and providing an offensive spark to the backline.

CB - Chad Marshall (Columbus Crew - MLS)
Even only two years into his MLS career, he is already one of the better defenders in the league. He probably doesn't have the experience to make it for Germany, but could become a regular in the US backline over the next several years.

CB - Eddie Pope (Real Salt Lake - MLS)
The anti-Chad Marshall. Pope is possibly the all-time best US center back...but time (and the Salt Lake turf) has caught up with him. He could still make the trip because Arena knows and trusts him...but we all remember the Agoos experiment in Japorea too.

CB - Jimmy Conrad (Kansas City - MLS)
Solid contributor to a good MLS defense. Probably not a lot of standout skills, but he can be counted on for solid effort...but frankly, there would have to be a lot of injrues to get Conrad to Germany.

LB - Greg Vanney (FC Dallas - MLS)
Has likely played his way off the roster due simply to a lack of pace. But the weakness of the US at LB, along with Vanney's ability to play both LB and CB, and a tremendous left foot keep him on the radar.

CB - Jay DeMerit (Watford - Championship)
Starting CB in the English Coca Cola Championship is nothing to sneeze at - and DeMerit has essentially come from no where to anchor Watford's backline. He may not have the pure skill and pace to make it on an international level, but starting at the level he is at could always get him a look.

LB - Wade Barrett (SJ Earthquakes - MLS)
Back in MLS after a brief stint in Denmark, probably is not as high on the depth chart as he was before he left. He is still probably one of the better LBs in MLS, and LB is a problem area for the US Nats.

Cental defense is a real strength for this squad - in fact it may well be world class. The outside backs (especially depth) are not as strong, but should be serviceable and provide some offensive punch. In addition, several of the midfielders (Mastroeni, Reyna, Convey, O'Brien) can provide defense in a pinch.

Midfield Starters:
RM - Landon Donovon (LA Galaxy - MLS)
Widely considered the best field player for the US. Has won Player of the Year multiple times, and has led the Galaxy to the MLS championship his year, after winning two in San Jose. He combines pace, vision, and creativity as well or better than any US player ever has. And although he'll only be 24 during the World Cup, he already has 71 US caps, and 25 Int'l goals - and he started all 5 World Cup matches in 2002. It will be interesting to see where he plays - I think he's best playing in the center of midfield, but he has also played often up top as a forward...but given the US' absolute hole at RM, it would not surprise me at all to see Donovan play a roaming RM role in Germany.

CM - Pablo Mastroeni (Colorado Rapids - MLS)
Best US defensive midfielder or "destroyer." Strong physical presence in the midfield and has good skill on the ball as well. He has also played CB for the Nats (where he starts for his club side). His dominant performance in the '02 World Cup has pretty much kept him a lock for Germany, although his performances of late have not lived up to that standard.

CM - Claudio Reyna (Manchester City - Premiership)
Captain, multiple World Cup experiences, consistent starter in some of the world's best leagues...and possibly the best field player in the history of US soccer. That's not saying too much, huh? Composed and intelligent in directing the center of the field, but can also play some on the RM, and RB.

LM - DaMarcus Beasley (PSV - Holland)
Blistering pace. Tremendous defensive effort. Great vision. Good ball skills. Plays on both the left and right for his club. Beasley may be the single most dangerous player in the US pool. Moving to Holland has done loads for both his finishing and crossing, and he is quickly becoming a complete and world class player.

LM/CM/LB - Bobby Convey (Reading - Championship)
He's still only 22 years old, although it seems like he's been around forever since making his MLS debut with DC United at 16. A year ago he had completely dropped off the national team radar, but excellent form with his club side has played him right back up to challenging the starters. Youth and National team experience with Donovon and Beasley make the combination of the three fun to watch. Great pace, and good passing and crossing. He is also versitle being able to play all across the midfield and some as and attacking LB.

CM/LM/DM/LB - John O'Brien (ADO Den Haag - Eredivisie)
If it were not for years and years of injury problems, John O'Brien might have been a US soccer legend. Was probably the best player for the US in the run to the Quarters in 2002, but since then has rarely seen the pitch do to injury after injury. Still, when healthy there is little question he is one of the best at holding and distributin the ball, and he brings great versatility. With his skill and vision it's impossible to leave him off the list, but the likelihood of him being healthy enough to make the trip is very low.

RM - Steve Ralston (NE Revolution - MLS)
Ralston is evidence of the lack of quality at RM for the US. That is not intended as a knock on him really - he is an exceptional crosser, and has an "all-time great" MLS career. But Ralston simply lacks the pace and vision for Int'l soccer - yet he is the most consistent starter at RM for the US. That is a problem.

CM - Clint Dempsey (NE Revolution - MLS)
Has burst on to the US soccer scene with tremendous energy and bite. He can play all across the midfield - but this may also be his weakness, as he hasn't really found a role that is his. He doesn't seem to quite have the discipline to play defensive midfield, isn't quite the passer to play the true attacking number 10...but he flat scores goals and keeps his motor running.

DM/CM - Ricardo Clark (SJ Earthquakes - MLS)
Really came into his own the past year with San Jose after a time of not quite finding his groove rotating between DM and RB with Metrostars. He is most known as a defensive midfielder, but has proven himself to be much more well rounded. Since there is a gaping hole at the backup defensive midfield position, if he can prove his defensive prowess to Bruce Arena, he could make the squad.

DM/CM - Richard Mulrooney (FC Dallas - MLS)
Was probably more of a bubble player before he spent all of last season out with a torn ACL. But he has an excellent sense of positioning and a good passer for the defensive midfield role - and if he can fully recover and get into form next spring, he could be back knocking on the door.

DM - Brian Carroll (DC United - MLS)
Another defensive midfielder. Carroll has really come from almost nowhere, but his steady performances at United have gotten him several recent call ups. Arena loves to play with a dedicated "destroyer" and that is the role Carroll is trying to make his with the Nats. That said, his skills do not appear to be up to an Int'l level, so he is a long shot.

RM - Santino Quaranta (DC United - MLS)
With the lack of options at right id for the US, Quaranta has a real shot of making the team. He is a true right winger, has a lot of talent, and is still young - but has been very inconsistent - both in his time with the Nats and with his club. I look at him as more of a product of the hole, than as a truly Int'l RM.

LM/RM/F - Pat Noonan (NE Revolution - MLS)
This is the story of a smart kid who kept working and made a career for himself. Largely ignored after a spectacular college career because of an apparent lack of any plus qualities, he has become a consistent performer in MLS, and has not had any big hiccups in his time with the Nats. His versatility is a bonus as well, and you will never get a lack of effort from Noonan.

DM - Kerry Zavagnin (Kansas City - MLS)
Back on the radar due to some injuries at defensive midfield. He is pretty much the pure Arena "destroyer," but lacks the more rounded skills of some of the others ahead of him on the depth chart - and his form has seemed to fall off the past two or three years instead of arching up.

RM/F - Brian West (Fredrikstaad - Norway)
Very intriguing, but has never really been given a shot to stick with the Nats. A pure winger, with great pace and a tendency to score goals - but after a great season with his club in Norway last year, he has suffered through injuries this year.

RM/LM - Justin Mapp (Chicago Fire - MLS)

LM/RM - Eddie Gaven (Metrostars - MLS)

Midfield is a strength for this team...other than the right side. The pool is very weak on the right, and will likely force Donovon out of his more dominant central midfield position, or even taking advantage of his speed up top. But there is quality in the middle and on the left - especially if O'Brien is healthy and in form next summer.

Forward Starters:
Brian McBride (Fulham - Premiership)

Eddie Johnson (FC Dallas - MLS)

Brian Ching (SJ Earthquakes - MLS)

Josh Wolff (Kansas City - MLS)

Taylor Twellman (NE Revolution - MLS)

Jeff Cunningham (Colorado Rapids - MLS)

Conor Casey (Mainz - Bundesliga)

Herculez Gomez (LA Galaxy - MLS)

Nate Jacqua (Chicago Fire - MLS)

A very thin position for the US if Johnson is not healthy and Donovon is playing in the midfield. It is reasonably likely that Donovon will play up top a lot in Germany, especially if Johnson has not had time to heal that foot and get in top form. Behind McBride/Johnson, the talent is thin, and frankly, not of international quality. The US could have real trouble scoring goals in Germany, unless the midfield is chipping in on the scoring.

Well, that's my guess as of now - many things (injury/form) could change - and remember, at this time four years ago, Beasley and Mastroeni were barely even on the radar screen, and they played vital roles in 2002.

Black October for US Auto...

From the NY Times: Big Drop in October for Detroit

October, which is the start of the new model year, used to be a month for the auto industry to celebrate. This year, it was a month for Detroit to forget.

In the midst of a terrible 2005, the new model year has not served to help US Auto get back on its feet. The losses just keep on coming.

General Motors and Ford were hurt the most, with G.M. sales dropping 25.6 percent compared with October 2004 and Ford sales down 26.1 percent.
Car sales, though down at G.M. and Ford, increased at Chrysler, which has enjoyed success with models like the big 300C and which had strong sales to fleet customers like rental car companies. Amid that strength, Chrysler's overall decline in October sales was only 3.1 percent.

The only thing that has saved the domestic auto companies has been the steep employee discounts offered over the summer. It doesn't look as if those will be coming back for the holiday season...and it doesn't look like they have many other ideas to compete again either.

It's going to be a long haul to get US Auto back to where it formerly was in the domestic market - if it can ever get there again. Absolute lack of vision and long-term planning for inevitably higher gas prices has been much more damaging than would have been believed not too many years ago.

See some previous posts on US Auto:
More shakeups in US Auto...
The China Syndrome...
GM pushing Union on healthcare cuts...
Toyota chief fears GM, Ford demise...

Tuesday, November 01, 2005

What the Alito Nomination Means for Constitutional Law...

Tremendous post by Prof. Jack Balkin at his blog Balkinization. This is his (preliminary) analysis of how Con Law is impacted by the Alito nomination. I'm going to throw it up here:

What effects will an Alito appointment have on Supreme Court doctrine? Fairly significant changes, particularly in the areas that social conservatives most care about.

Assume for the moment that Alito is confirmed by Christmas. The Supreme Court will probably hold over the New Hampshire abortion case, Ayotte, for reargument, if, as expected, the Justices vote 4-4 (excluding Justice O'Connor's vote, which will not count if she retires in December). On the other hand, if Justice Kennedy joins the liberals in Ayotte, Justice O'Connor's vote will not matter and the case will be decided 5-3.

What happens in Ayotte may be a harbinger of things to come. If successful, Alito's nomination will make Anthony Kennedy the median or swing Justice on the U.S. Supreme Court. In the past, Sandra Day O'Connor had held that powerful position, only occasionally displaced by Kennedy. Now it is largely Kennedy's, with occasional displacements by Breyer.

Put another way, to understand what Alito's appointment means for constitutional doctrine, instead of focusing on Alito's views (which one assumes are reliably conservative), one needs to focus on Kennedy's. We know that the new median Justice supports abortion rights claims a little less than O'Connor (Kennedy voted to uphold restrictions on partial birth abortion), supports gay rights claims a bit more than O'Connor (Kennedy wrote the opinion in Lawrence), thinks affirmative action is largely unconstitutional (Kennedy dissented in Grutter), thinks most campaign finance regulation is unconstitutional (Kennedy dissented (in part) in McConnell) and has been more likely to permit government endorsements of religion and state financial support for religion than O'Connor (Kennedy dissented in Mccreary County v. ACLU and joined Mitchell v. Helms). On federalism, it's a mixed bag: Kennedy joined Raich v. Ashcroft but dissented in the two most recent section five cases, Tennesee v. Lane and Hibbs. On Presidential power, the position of the new median justice, interestingly enough, appears to be unchanged. Although Rehnquist and O'Connor ... are gone, the Administration would still have lost Hamdi, because its position was opposed by Kennedy, Scalia, Stevens, Breyer, Souter, and Ginsburg.

Thus, Alito (together with Chief Justice Roberts) will cause some pretty significant shifts in Supreme Court doctrine, most notably in areas of religion, abortion, affirmative action, and campaign finance, but not yet in the area of gay rights. Changes in doctrines of federalism and presidential power are a bit less clear. These shifts will come in most of the places that movement conservatives are looking for changes in constitutional doctrine, which is why they will be delighted by an Alito appointment. The greatest irony, perhaps, is that although many movement conservatives now loathe Anthony Kennedy, all the changes in doctrine I've outlined will occur because Kennedy now holds the swing vote.

Finally, if Justice Stevens were to retire in the next few years, and be replaced by a staunch conservative, we would have a full scale constitutional revolution on our hands. For then the median Justices would be none other than John Roberts and Samuel Alito.

Great analysis...

Judicial restraint this nomination is not...

It has always seemed strange to me that although it is usually conservatives and the Republican party that use trite phrases like "legislate from the bench" and "judicial restraint" and "judicial activism" - yet if you do an analysis of what Justices strike down congressional laws the most, it is as follows:

Thomas 65.63 %
Kennedy 64.06 %
Scalia 56.25 %
Rehnquist 46.88 %
O’Connor 46.77 %
Souter 42.19 %
Stevens 39.34 %
Ginsburg 39.06 %
Breyer 28.13 %

Amazing - it is the very conservatives who are so loved for their judicial restraint that are the first to invalidate congressional law. Shocking, huh?

Actually, no - it's just like any other political manipulation, the Right-wing likes to use these buzz-words such as "legislate from the bench," to scare their base...when in all reality (when you examine the facts - I know, I know what an annoyance) they are the very side that wants to see judges "legislating" from said bench.

Judge Sam Alito seems like he will fit right in at the top of that list. Dahlia Lithwick has a great column up at Slate.
Best of all for Bush's base, Alito is the kind of "restrained" jurist who isn't above striking down acts of Congress whenever they offend him. Bush noted this morning: "He has a deep understanding of the proper role of judges in our society. He understands that judges are to interpret the laws, not to impose their preferences or priorities on the people."
Except, of course, that Alito doesn't think Congress has the power to regulate machine-gun possession, or to broadly enforce the Family and Medical Leave Act, or to enact race or gender discrimination laws that might be effective in remedying race and gender discrimination, or to tackle monopolists. Alito thus neatly joins the ranks of right-wing activists in the battle to limit the power of Congress and diminish the efficacy of the judiciary. In that sense Bush has pulled off the perfect Halloween maneuver: He's managed the trick of getting his sticky scandals off the front pages, and the treat of a right-wing activist dressed up as a constitutional minimalist.

See, the Right doesn't seem to cry so much about judicial activism when they agree with it. Essentially that vacuous phrase - "judicial activism" - seems to mean simply that you disagree...rigorous legal analysis need not appear.

Another interesting piece from Slate is entitled: Why President Bush stopped pretending to be against judicial activism. Oh so true.
Today, in nominating Alito, the President offered a much more limited view of the limits of judicial activism: "He understands that judges are to interpret the laws, not to impose their preferences or priorities on the people." No mention of the Constitution or strict constructionism. No false judicial modesty that the new guy will sit quietly and behave himself on that bench.
What happened to Bush's old mantra? First, while we may not know Alito's shoe size, we know that shoe doesn't fit. Nobody who tried to overturn the Family and Medical Leave Act can claim that his philosophy is judge-modestly-and-carry-a-blank-slate.
The other reason Bush threw his judicial activism talking points out the window is that he doesn't need them anymore. On the contrary, he wants the right wing—and the left—to know that this nominee is the conservative judicial activist they've been waiting for all along. Bush's new message: Bring it on.

Clearly, Judge Alito is not a proponent of judicial restraint. Clearly, Bush and the Right do not want a judge on the Court who models judicial restraint.

I tend to be a little old fashioned, but I believe in true judicial restraint, true judicial modesty. I believe that for the most part, Judges should get out of the way of the people. I make no secret of the fact that my "favorite" current Supreme Court Justice is Stephen Breyer - whom I also consider the true intellect of the current Court. Breyer is the epitome of the modest or restrained jurist. Justice Breyer seems to sit with the understanding that as long as (a) the congressional body has the authority to act as they are acting; and (b) that action is not violating a fundamentally protected right, that congressional action - the action of those directly accountable to the people - should be respected by those whom are not directly accountable to the people (federal judges).

Justice Breyer is the model of the non-activist, restrained, modest, non-legislating jurist...

but something tells me he's not what the Right is looking for. No, they want an activist, they want a legislator - just one who legislates what they want.

Looks like they got their wish.

Monday, October 31, 2005

And Alito it is...

This morning, President Bush nominated Samuel A. Alito to replace Sandra Day O'Connor as Associate Justice of the Supreme Court.

Below I discussed a bit about Judge Alito. My initial reaction this morning was that I think that Alito is a vey good pick for Bush. He is a fiercely conservative judge (along with Roberts, Thomas, and Scalia they will make up a fiercely conservative wing of the court...maybe the most conservative ever??!??!??!?? The Four Horsemen ride again...), yet very qualified, and quite respected. I don't think this is a selection that can (or should) be filibustered. (The puzzeling thing is simply why this wasn't Bush's initial pick, instead of his Best Buddy Ever!!!)

I will be interested to read more about Judge Alito over the coming weeks, and listen intently to his confirmation hearings.

My initial reaction is similar to my reaction to the nomination of Chief Justice Roberts - that he was a good pick, will be confirmed, but if I were a Senator I would vote know. As you may recall, reading about C.J. Roberts, and then listening to a large amount of the confirmation hearings changed my mind, and had I been a Senator I would have voted for Roberts...not because I think that he will decide cases the same as I would, but because of his clear qualification, clear intelligence and understanding of Constitutional law, and because he appeared clearly to be in the mainstream of legal thought - even if on the right side of that mainstream.

Although today, I doubt I would vote for Judge Alito - I'm interested in how that will/might change as I learn more about him.

Congratulations to Judge Alito on this nomination.
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Friday, October 28, 2005

Rumors of the next nomination...

The guess I made yesterday as to who would be the next Supreme Court Justice nominee was 10th Circuit Court of Appeals Judge, and highly respected law professor, Michael McConnell. My guess of McConnell was based on three factors:

-1- McConnell is unquestionably qualified, and unquestionably conservative...but he is so well-respected (and so well qualified) that when he was nominated for the 10th Circuit, a large number of liberal law professors signed a letter urging Democrats in the Senate to approve of his nomination. That was simply do to their respect for him;
-2- McConnell is on the record (in various law review artilcles, interviews, and other public statements) as absolutely anti-Roe. There is no question about his (very public) stance on Roe, which will mollify enough of the right-wing to have him pass their gauntlet;
-3- McConnell is (at least somewhat) on the record for stare decises - and therefore it is not 100% certain that he would vote to directly overturn Casey/Roe. When you combine this uncertainty with the respect he commands from academia, and his clear (on their face - no "trust me" needed) qualifications, this will appease Senate Democrats and moderate Republicans to support him.

He would be the perfect candidate to follow Miers, because he is essentially opposite everything she was (where she was unqualified, had no overt stance on Roe, but was expected to vote the way the President told her to; he is imminently qualified, has a clear and public stance on Roe, but there is some uncertainty to how he would vote on the matter).

This morning, however, the rumors seem to be going in a different direction...it seems that much word of mouth is focusing upon 3d Circuit Court of Appeals Judge Samuel Alito. Judge Alito is called in some circles "ScAlito" due to his fierce brand of conservatism which is very similar to Justice Antonin Scalia. He is well qualified, well respected, and has clear conservative bona fides - which would appeal to the radical right-wing base.

Here is a Supreme Court shortlist that Slate published last summer, which includes both McConnell and Alito. Following is each judge's Slate profile:

Michael McConnell
Age: 50
Graduated from: University of Chicago Law School.
He clerked for: Judge Skelly Wright, Justice William Brennan.
He used to be: a law professor at the University of Chicago and the University of Utah, an appellate attorney for Mayer Brown.
He's now: a judge on the U.S. Court of Appeals for the 10th Circuit (appointed 2002).
His confirmation battle: When McConnell was nominated to the 10th Circuit three years ago, he had the support of liberal law professors who called him Bush's "most distinguished" nominee and signed a letter of support for him. Other liberal groups, on the other hand, fought hard against his confirmation, highlighting his support for expanding the role of religion in the public sphere. How to account for the split? As a respected and well-liked law professor, McConnell was well-placed to win support in the academy, and one of the arguments made on his behalf was that, as an advocate of judicial restraint, he'd be sure to follow the Supreme Court's directives. McConnell wouldn't be similarly bound by precedent, however, if he joined the high court himself. Instead, the combination of his hard-line conservative views and his sunny disposition could make him extremely effective at bringing about change.

Civil Rights and Liberties
In a law review article, argued that the support for school desegregation in Brown v. Board of Education is consistent with the intentions of the framers of the 14th Amendment to guarantee equal protection under the law. McConnell's remains the minority view.
In a Slate dialogue, opposed a constitutional right to assisted suicide.
Before the Supreme Court, represented the Boy Scouts in their successful suit to keep out gay scoutmasters. (Boys Scouts of America v. Dale, 2000)
On the bench, dissented from a ruling in favor of Jessica Gonzales, who sued the city of Castle Rock, Colo., when her three children were killed by her ex-husband after the police failed to enforce a restraining order against him, despite her repeated calls. McConnell said that the majority's ruling would "expand greatly the liability of state and local governments." A Supreme Court ruling is pending in this case. (Gonzales v. City of Castle Rock, 2004) [Blake's Update: the Supreme Court reversed the 10 Circuit, siding with McConnell.]

Separation of Church and State
In a law review article, argued that the framers intended to provide for broader protections for religiously motivated conduct than modern jurisprudence allows for.
In a law review article, questioned the outcome of Bob Jones University v. United States, the 1983 Supreme Court decision that revoked the school's tax-exempt status because it forbade interracial dating. McConnell argued that even if Bob Jones' policy is "morally repugnant to most of us" the rule affected "only those who choose to become part of the religious community defined by Bob Jones" and so should come under the constitution's protections of freedom of speech and freedom of religion.
In a Slate dialogue, backed government-funded school vouchers that can be used at parochial schools. Argued that religious activity in a public setting or paid for by public funds is OK, as long as the government remains neutral rather than supporting a particular faith.
Agreed to grant a preliminary injunction to a New Mexico sect to stop the government from prosecuting its members for using a hallucinogenic tea during worship. In a concurrence, McConnell argued that the sect's interest in religious observance trumped the health risk to the sect's members and the interests of the federal government in enforcing its drug laws. (O Centro Espirita Beneficiente Uniao do Vegetal v. Ashcroft, 2003)

Environmental Protection and Property Rights
For a unanimous panel, upheld a law that Congress passed specifically to permit logging in the Black Hills National Forest in South Dakota. The law upended a court settlement designed to prevent the logging from going forward. (Biodiversity Associates v. Cables, 2004)

Criminal Law
For a unanimous panel, held that the federal prosecution of a child pornographer—who paid a boy to photograph him and transported him across states lines—was consistent with Congress' power to regulate interstate commerce. (U.S. v. Riccardi, 2005)

In 1996, signed a statement supporting a constitutional amendment to ban abortion. "We believe that the abortion license is a critical factor in America's virtue-deficit," the statement reads.
Before Congress, testified in opposition to a bill designed to limit the access of protesters to abortion clinics.

Judicial Philosophy
Supports the originalist approach to constitutional analysis, which urges judges to interpret the Constitution in accordance with the understandings of its framers.

Samuel Alito
Age: 55
Graduated from: Yale Law School.
He clerked for: Judge Leonard Garth.
He used to be: deputy assistant attorney general under Reagan, U.S. Attorney for the District of New Jersey.
He's now: a judge on the U.S. Court of Appeals for the 3rd Circuit (appointed 1990).
His confirmation battle: Alito has the Scalia-esque nickname "Little Nino" and the Italian background to match it. As the author of a widely noted dissent urging his court to uphold restrictions on abortion that the Supreme Court then struck down, in a decision that reaffirmed Roe v. Wade, Alito could be especially filibuster-prone. Like Scalia, he frequently makes his mark in dissent.

Separation of Church and State
For a unanimous panel, upheld a lower-court order requiring a school district to allow a Bible-study group to set up an information table at an elementary-school back-to-school night. Reasoned that by preventing the group from displaying its literature, the district was discriminating on the basis of viewpoint. (Child Evangelism Fellowship of N.J., Inc. v. Stafford Township School District, 2004)
For a unanimous panel, denied standing to a group seeking to take down a municipal holiday display that included a menorah and a crèche. Alito said that the group couldn't challenge the display as taxpayers because the items were donated rather than bought by the town. (ACLU-NJ v. Township of Wall, 2001)
Dissented from a ruling by the 3rd Circuit as a whole that an elementary school did not violate the First Amendment rights of a kindergartener by taking down (and then putting back up) a Thanksgiving poster he'd made that said the thing he was most thankful for was Jesus. The majority decided to throw out the case on a technicality; Alito protested that the child's claim should go forward. (C.H. v. Oliva, 2000)

Criminal Law
Allowed a federal probation office in Delaware to condition the release of a man who had pleaded guilty to receiving child pornography on his willingness to submit to random polygraph tests about whether he'd had impermissible contact with children. (United States v. Warren, 2003)
Dissented from a refusal to grant police officers immunity from a civil suit brought by a mother and her 10-year-old daughter who'd each been strip-searched because they lived in the home of a suspected drug dealer. Alito felt the police had behaved reasonably because the warrant led them to conclude that there was probable cause to search everyone in the house for drugs. (Doe v. Groody, 2004)

Habeas Corpus
Granted the habeas claim of an African-American defendant who sought to introduce evidence that a juror made a racist remark after the jury reached its verdict. (Williams v. Price, 2003)

Dissented from a decision holding that Pennsylvania could not require women to inform their husbands before getting abortions. Alito argued that because the law only required the husbands to have notice and did not give them a veto over their wives' decisions, it did not pose an "undue burden" for women. This approach was rejected by the Supreme Court. (Planned Parenthood v. Casey, 1991)
Agreed that an immigration judge was within his discretion to find not credible an application for asylum based on China's forced-abortion policy. (Xue-Jie Chen v. Ashcroft, 2004)