Tuesday, August 30, 2005

Scalia plays Lochner for giggles...

This was an interesting article: Scalia blasts 'judge moralists'

Yes, Scalia took his usually big swings against the "living constitutition" and "judge moralists" - YAWN.

What I found intersting is what he was there for:

Earlier in the day, Scalia was much less serious while re-enacting the landmark 1905 Supreme Court case Lochner v. New York with five recent law school graduates, three undergraduates, California Attorney General Bill Lockyer and a Chapman professor.

The original court ruled that a state law limiting bakers' hours violated a bakery owner's liberty and right to due process. On Monday, however, the mock justices overturned that decision in less than 30 minutes of debate.

"There will be no majority opinion. This will be one of those unpublished opinions that will not be citable before the Supreme Court," Scalia, who played the role of Chief Justice Melville Weston Fuller, joked after announcing the students' decision.

The debate was lighthearted, as participants made jests on topics ranging from Scalia's Italian heritage to his reputation as a die-hard constitutionalist.

Professor John Eastman, who played the role of Lochner's counsel, argued that the state law had been sponsored by German union members who wanted to prevent competition from harder working Italian immigrant bakers.

To that, Scalia replied "Mama mia!"

That must have been a great event for law students to have experienced.

Monday, August 29, 2005

Alive and Kicking...

I really enjoy the writing of Jack Balkin. He's got a great one over at Slate - and his blog - Balkinization is absolutely top notch.

Alive & Kicking

Also see these earlier posts:
Where did the 'Living Constitution' go...
Following up on the living constitution...

Writing their own rules...

Interesting article from TomPaine.com, Operating Instructions.

Although I don't agree with it in entirety, the overall point is dead-on:
The idea that corporations should have total discretion in how to treat their workers is a growing and retrograde trend in America. Maryland Gov. Robert L. Erlich opposes legislation that would require organizations with more than 10,000 workers to spend at least 8 percent of their payroll on health benefits or contribute the money to the state’s health program for the poor. It is “bad policy…that a state will dictate to businesses the type and level of health insurance,” Erlich said.
Such views deny the reality of American economic life.

There is such a tendancy for Americans to embrace the "free market" - even the idea that the so-called free market will efficiently cure all the ills within society. But, in the most laissez-faire times in American history - the free market certainly didn't cure racial discrimination, or gender discrimination, or other forms of minority objection and repression. In fact, the free market actually encouraged and promulgated such discrimination. Is such a free market worth of being protected at all costs?

Citizens had a role in determining that corporations could not compete by using child labor, or dumping environmental waste in rivers, or discriminating against certain groups, or paying wages below a certain level. We still have the obligation today to determine corporations’ operating conditions. We can declare through our elected representatives that corporations must provide health insurance or pay into a state plan, provide a certain number of paid sick days or ensure that their workers are safe.

It's our obligation to keep corporations under control - we have close to two hundred years of proof that they will certainly not do it themselves.

Friday, August 26, 2005

Great quote...

From Slate:
Reality TV is not even a guilty pleasure anymore. It's as if our entire culture has reached the halfway point in a gigantic bag of Cheetos and just collectively decided to go ahead and finish it off.
Sad but true...

Following up on the living constitution...

Following up on an item I wrote about yesterday, Dahlia Lithwick provides reader feedback to her suggestion that supporters of the Living Constitution are a dying breed. It's a-Living. The responses were broken down in to a host of somewhat interesting categories, a few exerpts:

Many, many of you observed that the Constitution is alive simply because our laws have changed: "To believe otherwise, is to believe that African-Americans still count as only 3/5ths of a person," says David Berestka.

A thought about the need for sometimes extreme meddling by the court by Ted Niblock: "I don't know how many times I have had to remind people that we didn't make this stuff up to annoy Justice Scalia, people were getting lynched for trying to vote! Minorities and women (who were discriminated against even while hovering at around half the population) were being systematically kept from the key freedoms and liberties that the Constitution was designed to protect, and no other part of the system was going to change that."

Not too many of you had suggestions for how to respond to the assault from the right. Jonathan Stein, citing Larry Kramer, suggests that "The Left should respond by insisting that the court is not creating rights, but simply protecting rights that society as a whole has created."

Some interesting thoughts...

Company with a vision...

I can't completely remember the first time I heard of Google. Obviously it was years ago now. Sometime in the late 90s I know that people were saying that there was a pretty good search engine named Google. At the time I was using Yahoo! primarily, and although I may have looked at it, I never really tried Google. But over time, more and more people would talk about it, and sometime in the early 2000s I started using it pretty regularly...

Today, is it almost fair to say that Google is synonymous with internet? Well, no, but it may just be THE major player in the industry. I'm sure there are various reasons for this - spanning from competitor incompetance to tech savvy. But I think that one of the keys for Google is that their growth was predicated on ideas that could provide revenue. Although I haven't done any research or study on the company, they have always struck me as focused on: (a) the Brand; and (b) becoming the best marketing/advertising company in the world. Each major development in their technology has seemingly involved more directed ways to get Advertiser A's product message directly to Buyer B - who already has an interest in Advertiser A's product.

And here's another step - a BIG step, and only rumor at this point - in their progression of becoming the world's leading marketer and one of the world's strongest brands:
Free Wi-Fi? Get Ready for GoogleNet
What if Google wanted to give Wi-Fi access to everyone in America? And what if it had technology capable of targeting advertising to a user’s precise location? The gatekeeper of the world’s information could become one of the globe’s biggest Internet providers and one of its most powerful ad sellers, basically supplanting telecoms in one fell swoop. . . .

First it would build a national broadband network -- let's call it the GoogleNet -- massive enough to rival even the country's biggest Internet service providers. Business 2.0 has learned from telecom insiders that Google is already building such a network, though ostensibly for many reasons. . . .

So once the GoogleNet is built, how would consumers connect for free access? One of the cheapest ways would be for Google to blanket major cities with Wi-Fi, and evidence gathered by Business 2.0 suggests that the company may be trying to do just that. In April it launched a Google-sponsored Wi-Fi hotspot in San Francisco’s Union Square shopping district, built by a local startup called Feeva. . . . Google's interest in Feeva likely stems from the startup's proprietary technology, which can determine the location of every Wi-Fi user and would allow Google to serve up advertising and maps based on real-time data.
It seems like this company really has a vision of where they want to go. Now, admittedly - I am not a fan of the culture of pervasive advertising and marketing that we find ourselves in these days. But in an era of short-term thinking, it's interesting to find a company which seems to have a very clear long-term strategy or vision, and chases that vision every day. I think there is a great argument about the long-term effects of all this direct marketing on our society - one I'll have to write about on another day. But regardless of that tension, I've got to be honest that I Google every day, as do millions of us out there. Hmmm...GoogleAmerica one day?

Thursday, August 25, 2005

Where did the 'Living Constitution' go...

I'm coming to believe that anything Dahlia Lithwick writes is a must read...she's got another good one over at Slate this week. This is a short column wondering about the demise of the living Constitution...where did all the Brennan's go? That's a question I ask myself all the time.

Reasons to Go On Living

As the most recent "Justice Saunday" extravaganza illustrates, the majority of the nation seems now to be of the firm belief that there is only one way to view the U.S. Constitution: in the way the framers first intended. Maybe that's because they are hearing so few principled arguments making any other case.
To hear
Tom DeLay and his cronies tell it, the only alternative to the interpretive theory of "Originalism" or "strict construction" is to have judges swinging like monkeys from the constitutional chandeliers, making up whatever they want, whenever they want.

As I have argued often recently, the phenomenon of originalism is like a crashing wave, or rising tide of the legal world. It is growing and pervasive. It's gotten to the point that to 'not' be an adherent of the originalist philosophy is seen as . . . quaint. And those of us who actually have the temerity to advocate a living constitution anymore, well . . . we're just out of the mainstream:

Many prominent liberal thinkers have retreated from William Brennan's soaring language about the need for a "living Constitution," because, I think, it embarrasses them. The idea that, as Brennan wrote, "It is arrogant to pretend that from our vantage we can gauge accurately the intent of the Framers on the application of principle to specific, contemporary questions," has been rebutted roundly with the notion that it's even more arrogant for nine unelected officials to gauge anything at all. Calls for minimalism or pragmatism or incrementalism are now in vogue for progressives. That has all the taste of penumbras and emanations, but only half the calories.


Well, I for one stand with Brennan. "It is arrogant to pretend that from our vantage we can gauge accurately the intent of the Framers on . . . contemporary questions." My opinion has always been that to force our Democracy into the "originalist" box means either (a) to wrench our society back centuries, or (b) scrapping our Constitution and starting over every few years as many countries in Europe and elsewhere tend to do. Neither is acceptable. The beauty . . . one of the many beauties of our Constitution is that it was written broadly - to encompass the passing of time and maturing of society.

I am quite excited about a new book coming out by Justice Stephen Breyer. Entitled "Active Liberty: Interpreting Our Democratic Constitution," it is the rare glimpse of a Supreme Court Justice's judicial philosophy - from the Justice himself - while he is still sitting. Justice Breyer is arguably the Court's most prominent mind - the "thinker" of the Court . . . and his thinking provides a wonderful counter-point to Justice Antonin Scalia's intelligence and intellectualism on the other side. Personally, I think it entirely possible that years from now legal historians may look back on this time on the Court as a "struggle" between the Breyer-philosophy and Scalia-philosophy.

The Wall St. Journal has a preview of the book in this article, "Justice Breyer Takes'Originalists' to TaskIn a New Book."

Justice Breyer . . . gives a detailed insight into his hilosophy of deciding cases, namely that the Constitution should be viewed in light of its overarching goal, which he sees as creating a participatory, democratic society.

And one of the keys - which Lithwick hints at above, and Breyer notes in his book - is that a Living Constitution is not synonymous with judicial activism:

"Why should courts try to answer difficult federalism questions on the basis of logical deduction from text or precedent alone? Why not ask about the consequences of decision-making on the active liberty that federalism seeks to further," he writes.
. . .

Justice Breyer argues for "judicial modesty" when reviewing acts of Congress, and has been among the least likely of the court's members to vote to strike down federal laws.

Democracy, due process, and equal protection may be increasingly dismissed in contemporary legal thought, but the Constitution, a living, vibrant Constitution, will win out over time - as it always has.

Read more about Breyer's book (and a comparison to John Hart Ely) here.

Tuesday, August 23, 2005

The "christian" right-wing...


Robertson: U.S. should 'take out' Venezuela's Chavez

"If he thinks we're trying to assassinate him, I think that we really ought to go ahead and do it," Robertson told viewers on his "The 700 Club" show Monday. "It's a whole lot cheaper than starting a war."

Robertson . . . called Chavez "a dangerous enemy to our south, controlling a huge pool of oil, that could hurt us badly."

"We have the ability to take him out, and I think the time has come that we exercise that ability," Robertson said. "We don't need another $200 billion war to get rid of one strong-arm dictator. . . . .

Robertson accused Chavez, a left-wing populist with close ties to Cuban President Fidel Castro, of trying to make Venezuela "a launching pad for Communist infiltration and Muslim extremism all over the continent."

It amazes me that Pat Robertson and his ilk are considered "mainstream" by so much of America and the MSM. He's constantly a talking head on the Sunday talk shows, and for various news organizations. Yet folks like Howard Zinn, Noam Chomsky, and Naomi Klein are considered pariah's, far to extreme to be put on the air. Understand something here - I'm not arguing that Zinn, Chomsky, and Klein are mainstream. I am suggesting that the MSM is dramatically tilted to the right - and Pat Robertson being a welcome guest to comment on the national news of the day is direct evidence of that.

It is frustrating that this is what passes for "intelligent" (and I use that word VERY loosely) commentary today while people that pose serious questions - controversial though they may be - are shut out.

Monday, August 22, 2005

The Swift Boating of Cindy Sheehan

I probably should add before I post this that I don't want to endorse everything that Ms. Sheehan says or does. I do believe that the President has every right not to go talk to her. It is also my opinion that such a decision was and is a political disaster. --To say nothing of traipsing off on a month-long vacation while the American military is at war. -- It is a decision that is now haunting every move this administration makes.

This is from a NYTimes editorial by Frank Rich: The Swift Boating of Cindy Sheehan

Once again Bush was in his bubble, ensuring that he wouldn't see Sheehan coming. So it goes with a president who hasn't foreseen any of the setbacks in the war he fabricated against an enemy who did not attack inside the United States in 2001.

When these setbacks happen in Iraq itself, the administration punts. But when they happen at home, there's a game plan. Once Sheehan could no longer be ignored, the Swift Boating began. Character assassination is the Karl Rove tactic of choice, eagerly mimicked by his media surrogates, whenever the White House is confronted by a critic who challenges it on matters of war.

When the Bush mob attacks critics like Sheehan, its highest priority is to change the subject. If we talk about Richard Clarke's character, then we stop talking about the administration's pre-9/11 inattentiveness to terrorism. If Thomas Wilson is trashed as an insubordinate plant of the "liberal media," we forget the Pentagon's abysmal failure to give our troops adequate armor. If we focus on Valerie Plame, Joseph Wilson's wife, we lose the big picture of how the administration twisted intelligence to gin up the threat of Saddam's nonexistent weapons of mass destruction.

Cindy Sheehan's bashers, you'll notice, almost never tell her son's story.

They are afraid to go there because this young man's life and death encapsulate not just the noble intentions of those who went to fight this war but also the hubris, incompetence and recklessness of those who gave the marching orders.

Specialist Sheehan was both literally and figuratively an Eagle Scout: a church group leader and honor student whose desire to serve his country drove him to enlist before 9/11, in 2000. He died with six other soldiers on a rescue mission in Sadr City on April 4, 2004, at the age of 24, the week after four American security workers had been mutilated in Fallujah and two weeks after he arrived in Iraq. This was almost a year after the president had declared the end of "major combat operations" from the aircraft carrier Abraham Lincoln.

But this White House no longer has any more control over the insurgency at home than it does over the one in Iraq.
The sad thing about this to me is that these right-wing attacks on Ms. Sheehan are just as much attacks on you and me. These people - the Bush Administration, right-wing pundits, and the mainstream media that supports them - think that we are so stupid, that we will become distracted by these ridiculous partisan assaults. Unfortunately, so often we have been...hopefully not this time.

Regardless of whether or not every person agrees with Ms. Sheehan and the way she is going about expressing her opposition - she has an absolute right to that opposition.

Draft Consitition in Iraq

Draft Constitution Would Fundamentally Change Iraq
Shiites and Kurds were sending a draft constitution to parliament on Monday that would fundamentally change Iraq, transforming the country into a loose federation, with a weak central administration governed by Islamic law, negotiators said.
The draft, slated for action by a Monday deadline, would be a sweeping rejection of the demands of Iraq's disaffected Sunni minority, which has called the proposed federal system the start of the breakup of Iraq. Shiites and Kurds indicated they were in no mood to compromise.

Who knows where this will lead...

Key provisions of the draft would formalize an already autonomous Kurdish state in the north, under a federal system. The rest of the country also would be allowed to form federal systems -- opening the way for the demand by the dominant Shiite Supreme Council for Islamic Revolution in Iraq to create a southern Shiite sub-state out of up to half of Iraq's 18 regions.
Sunnis and others say such a state would be under heavy influence from neighboring, Shiite-ruled Iran.
The draft also stipulates that Iraq is an Islamic state and that no law can contradict the principles of Islam, Shiite and Kurdish negotiators said. Opponents have charged that last provision would subject Iraqis to religious edicts by individual clerics.

Friday, August 19, 2005

Come on MLS!!!

UH in talks with MLS franchise about Robertson

There have been rumors for years now about MLS franchises relocating to Houston, or the Mexican club America buying a franchise and putting it in Houston. So much so that I've kind of decided to stop getting my hopes up about this sort of thing.

But...then we keep getting teased with things like this:

University of Houston athletic director Dave Maggard on Thursday said his office has had discussions with officials from San Jose Earthquakes owner Anschutz Entertainment Group regarding a possible move by the MLS franchise to Houston, with the university's stadium serving as a temporary home. "We've talked to them a little bit," Maggard said. "We've made no deal. We have a lot of things to look at and consider. I'll say this: I'd be very open to doing something if the arrangement would be mutually beneficial."
Meanwhile, Club América had expressed interest in moving its potential U.S. franchise to the Astrodome on a temporary basis. But the latest news by Astrodome Redevelopment could hamper América's plans, as the proposal's final approval by the Harris County Commissioners Court is not expected until late in the year or early next year. América reportedly was aiming to have a team for the 2006 MLS season, so it was counting on the county to make a quicker and likely unfavorable decision regarding Astrodome Redevelopment's proposal.
Scheduling conflicts, parking and the increased use of the Robertson Stadium field are among the issues that have been discussed by Maggard and AEG officials. Maggard said the most viable solution to the latter concern would be to install artificial turf, but that would require sharing the cost of the installation and maintenance.

Maggard also said financial aspects of a potential one- to two-year deal for use of the stadium have come up, but no conclusions have been made. But he added that because AEG has indicated it would like to have a team in place at Robertson for the spring of 2006, "discussions likely will speed up."

I'll try not to get my hopes up...but I'll keep my fingers crossed.

Wednesday, August 17, 2005

A distorted view...

Coverage of Big Awards for Plaintiffs Helps Distort View of Legal System

Fascinating story from the LATimes (via Yahoo! News) about how the mainstream media distorts the public perception of the legal system by their headline coverage of plaintiff verdicts and turning a blind-eye to damages reversals, or defense wins:

Feeding the perception of a crisis in the legal system, they say, is the way the news media cover the courts.

After the big headlines, critics say, the media often drop the ball, losing interest in what happens later. Published studies of news content and a Times examination of major recent cases show that when the immense verdicts were overturned or dramatically reduced, the news frequently was banished to the inside pages or simply not reported.

Legal experts and media observers say such coverage gives a distorted picture of the civil justice system while lending credence to fears of irrational jury awards. News coverage has reinforced the message "that the system's out of control, and that juries are using the tort system to redistribute wealth in some unjust and unprincipled way," said Robert MacCoun, a professor of law and public policy at UC Berkeley.

The popular view that there are more lawsuits and bigger damage awards than ever before is not supported by available evidence.

A 35-state survey by the National Center for State Courts found that the number of tort filings declined 4% from 1993 through 2002 despite population growth. And in the nation's 75 largest counties, the median award to victorious plaintiffs was $37,000 in 2001 — much less than the inflation-adjusted median of $63,000 in 1992, according to the Bureau of Justice Statistics, a branch of the U.S. Department of Justice.

This type of skewed coverage often leads to hysterical tyraids against "plaintiff's lawyers," and calls for "tort reform" to stop the glut of "baseless lawsuits" by folks looking for an easy buck.


Certainly, plaintiffs prevail less often in the real world than they appear to in the news media. Consider:
• A 1999 survey by Rand Corp.'s Institute for Civil Justice found auto liability cases were 12 times more likely to draw news coverage when plaintiffs won than when defendants did, a difference the study called "very stark." In its review of 351 trials conducted during the 1980s and '90s, the institute found that 38 of 92 plaintiff verdicts, or 41%, were featured in news reports, versus 9 of 259 verdicts for the defense — or about 3%. . . .

[• ]Reflecting the pattern was news coverage of a June 2004 verdict in which a San Diego jury ordered Ford to pay $367 million to Benetta Buell-Wilson, who was paralyzed when her Explorer SUV rolled over and its roof collapsed. Ford previously had won a dozen similar Explorer cases but the media hardly batted an eye. Ford's victories received a smattering of coverage, mainly in business and legal publications, whereas the Buell-Wilson verdict was widely reported by the mainstream news media.

• A 1995 article in the Hofstra Law Review showed that personal injury verdicts reported in the New York Times and Newsday were dramatically higher than typical awards in the New York courts. According to the survey, awards covered by the New York-based papers over a five-year period were 13 times and 9 times higher than average, respectively.

• A 1996 survey of leading magazines such as Time, Newsweek and Fortune showed that plaintiff verdicts were "considerably overrepresented" in reports on civil litigation. The examination of 249 articles by Daniel S. Bailis and UC Berkeley's MacCoun found that plaintiffs were victorious in 85% of cases cited in the articles, compared with a real-world average of no more than 50%. Damage awards cited in the articles were also several times above the norm, leaving "little doubt that the selective reporting practices … provide a tremendously distorted picture of the jury award distribution," the study said.

And there was also this:
A review of some recent high-profile cases by The Times showed newspapers that extensively covered huge damage verdicts seemed to lose interest when the awards were slashed or overturned. The review involved a computer database survey of articles about the cases and follow-up queries to newspaper librarians.

[• ]One such story was the $5-billion punitive damage award in the Exxon Valdez oil spill case. At the time of the verdict in September 1994, front-page reports appeared in such major dailies as The Times, New York Times, Chicago Tribune, Philadelphia Inquirer, San Francisco Chronicle, Houston Chronicle, Detroit Free Press, Dallas Morning News, Seattle Times and St. Petersburg Times.

When a federal appeals court overturned the award in November 2001, three of the 10 papers reported it on the front page.

[• ]When a Los Angeles jury in July 1999 ordered General Motors to pay a then-record $4.9 billion in compensatory and punitive damages to six people burned when the gas tank of their Chevrolet Malibu exploded after a rear-end collision, the story made the front page of leading U.S. papers — including the Washington Post, Chicago Tribune, Chicago Sun Times, Boston Globe, Philadelphia Inquirer, Detroit Free Press, San Francisco Chronicle, Ft. Worth Star Telegram, San Jose Mercury News and The Times.

Coverage was sparser a few weeks later when the trial judge trimmed the punitive damages to a still-huge $1.2 billion. Two of the 10 papers ran the story on the front page.

Then in July 2003, while the case was on appeal, it was settled for an undisclosed sum. Brief items appeared in four of the papers, while no mention could be found in the other six.

[• ]When a Florida jury socked top cigarette makers with a $144.8-billion punitive damage award, it was the lead story for many print and broadcast outlets. Front-page reports on the July 2000, verdict appeared in The Times, New York Times, Washington Post, Chicago Tribune, Boston Globe, Miami Herald, Dallas Morning News, San Francisco Chronicle, Houston Chronicle and Indianapolis Star, among others.

When a Florida appeals court overturned the award in May 2003, two of the 10 papers ran front-page reports.

I don't mean to suggest that there are no fraudulent lawsuits out there. But there is far from any crisis. Any such crisis is simply the result of politicians who stir up a voting block based on the reporting of a lazy MSM. America is blessed with an effective, and yes, I'm willing to say it efficient legal system.

(Hat tip to South Texas Law Professor blog.)

Mr. Nice Guy...

So, who is John Roberts anyway...is he a Goody Two Shoes, as Dahlia Lithwick suggests; or is he the Manchurian Candidate, as posited by Emily Bazelon?


From Lithwick:
And that's why John Roberts doesn't alarm me much. The same conservatism that leads him to decry judicial overreaching in the privacy and civil rights contexts is part and parcel of a larger conservatism that distrusts reckless grandiosity. The same quality, in short, that kept Roberts rom sneaking off into the woods to smoke may be the same quality that keeps him from torching Roe v. Wade. The Clarence Thomases of this world—men unafraid of tearing down centuries of constitutional scaffolding in order to impose their own theories of constitutional construction—are far scarier to me. Those are the guys who probably did barf off the clock towers in college; guys with the hubris and drive to change the world without going through the confirmation process first. Scalia doesn't care what anyone thinks of him, and Thomas is happiest when he's provoking outrage. Roberts cares a lot about looking temperate, and that isn't a bad thing in a judge.

From Bazelon:
There's ammunition for principled opposition to be mined here. But the key attribute Roberts lacks from the point of view of the legal liberals, at least on the record, is an overarching, burn-the-house-down judicial philosophy. As a result, proponents of judicial restraint—an approach to the law that's become as fashionable among liberals as conservatives—are eager to embrace him as one of their own. Leftish advocates of restraint celebrate justices who don't reach out beyond the facts of a case to decide more than they need to and who respect existing Supreme Court precedent. They wrinkle their noses at justices who overtly seek to impose a rightward agenda (Antonin Scalia) and are willing to jettison past decisions to do it (Clarence Thomas). Roberts has never declared himself one of the bad guys, Sunstein pointed out hopefully in a recent piece in the New Republic. Instead he has styled himself as deliberate, lawyerly, process-oriented. His opinions on the D.C. Circuit court of appeals "avoid broad pronouncements," Sunstein wrote. "They do not try to reorient the law."

There's also in interesting piece on Judge Roberts and his relationship/comparisons with esteemed Judge Friendly - Friendly Fire.

More on Roberts and the nomination:
Associate Justice John Roberts
You heard it here first...
For the record...

A purpose driven nation?...

Warren of Rwanda
Part I
Part II

Paul Kagame, president of Rwanda, is not known for hugging pastors. Catholic and Protestant clergy have been convicted in connection with the genocide in his country in 1994, and Kagame has repeatedly stated his disdain for religious organizations. Thus a buzz went up in Kigali's Amahoro Stadium last month when Kagame allowed Rick Warren, pastor of the Saddleback megachurch in Lake Forest, Calif., and author of the best-selling The Purpose-Driven Life, to throw an arm over his shoulders and "pray for the President."

In fact, their bond now extends well beyond prayerful embrace. Kagame has committed his government to cooperation in a five-to-seven-year self-sufficiency project staffed by Rwandan volunteers but initiated, advised and at least partly funded by Warren's network of "purpose-driven churches." Warren talks of turning Rwanda into "the first purpose-driven nation."

For months the clergyman has alluded in general terms to an immense volunteer effort called the PEACE plan, aimed at transforming 400,000 churches in 47 nations into centers to nurse, feed and educate the poor and even turn them into entrepreneurs. Its details remain unknown, but its Rwandan element seems to have outrun the rest. Warren says he was "looking for a small country where we could actually work on a national model," and Kagame, impressed by The Purpose-Driven Life, volunteered Rwanda in March. In July Warren and 48 other American Evangelicals, who have backgrounds in areas like health, education, micro-enterprises and justice, held intensive planning meetings with Rwandan Cabinet ministers, governors, clergy and entrepreneurs. One dinner was attended by a third of the Rwandan Parliament. Says Scott Moreau, a professor of missiology at Wheaton College in Illinois: "I've never heard of this level of cooperation in the last 100 years between any megachurch, mission agency or even a denomination and a national government."


Monday, August 15, 2005

Losing to Sen. Clinton is a great PR move...

Channel Surfing

On Tuesday, the New York Times explained why Westchester County district attorney Jeanine Pirro agreed to run for the Senate against Hillary Clinton: "Even in defeat, Ms. Pirro has told friends, her resulting fame could pave the way for another statewide office, or, perhaps, give her a greater role on television, where she has been a legal analyst for Fox News."

What a great candidate to have chosen...

That Sinking Feeling...

Bush not as popular as Reagan or Clinton

Bush's job approval in recent polls ranges from the low- to mid-40s. It was 42 percent in the latest AP-Ipsos poll. His ratings on issues from Iraq to the economy to Social Security are at their lowest levels so far.

Reagan was at 57 percent at this stage of his presidency, and Clinton was at 61 percent, according to Gallup polling then.

The partisan divide for Bush is stark — 80 percent of Democrats disapprove of his overall performance while nearly 90 percent of Republicans approve.

The Republicans better reverse these numbers, or the mid-term elections next year could end up reducing their majority...

Monday, August 08, 2005

'Defect', 'Evolve', or None-of-the-above...

Really good article last week by Dahlia Lithwick over at Slate. (If you are not familiar with Ms. Lithwick, she is one of the real must-read legal commentators out there, writing the Supreme Court Dispatch for Slate. She infuses her writing with a lot of humor and irreverance, which isn't the most common thing when you're writing about the hallowed Supreme Court.)

The article is entitled The Souter Factor: What makes tough conservative justices go soft?

Lithwick explores the "much-whispered hope of liberals, and much-shouted anxiety of conservatives" - will a Justice float to the left while on the bench. She proffers 5 theories as to why some justices tend to move leftward in their time on the bench:

1. The Greenhouse Effect "The Greenhouse Effect" is the name of a phenomenon popularized by D.C. Appeals Court Judge Laurence Silberman referring to federal judges whose rulings are guided solely by their need for adulation from legal reporters such as Linda Greenhouse of the New York Times. The idea is that once confirmed, justices become desperate to be invited to the right cocktail parties and conform their views to those of the liberal intelligentsia. ...

The problem with this theory is that it accepts a great conservative fiction: that there is vast, hegemonic liberal control over the media and academia. This may have been somewhat true once, but it's patently untrue today. Jurists desperate for sweet media love can hop into bed with the Limbaugh/Coulter/FOX News crowd. Clarence Thomas has made a career of it. There is a significant and powerful conservative presence in the media, inside the Beltway, and in academia. And my own guess is that Federalist cocktail parties in D.C. are vastly more fun than their no-smoking/vegan/no-topless-dancing counterparts on the left.

2. Mean ol' Nino This theory holds generally that justices tweak their philosophies and ideologies in response to each other; and specifically, that Antonin Scalia and (to a lesser degree) Clarence Thomas have managed to drive once stalwart conservatives into the arms of the court's lefties.

3. "Seeing the Light" This theory, a favorite of liberals, hinges on the claim that jurists eventually drift leftward because they become increasingly compassionate/sensitive/wise with age, and that each of these values is a fundamentally liberal one. ...

The problem with this notion—that judges begin to appreciate the intrinsic rightness of tolerance, pluralism, and acceptance—is that it flies in the face of a basic human truth: We almost all become more conservative with age. This theory also fails to explain why some jurists—notably Scalia and Thomas and, to a great extent, Rehnquist—fail to budge from their ideological positions over the years. While it may feel good for liberals to assert that the drift to the left is simply a sign of wisdom, it strikes me as too simple and self-serving to be accurate.

4. The Boys in the Bubble The argument is that [a Justice has] so little "real-life" experience prior to [their] confirmation that [they] only developed [their] jurisprudential views after donning the black robe. [Justice] Souter himself has said that when he was confirmed he knew next to nothing about important federal constitutional issues—having had experience as a state attorney general and then as a state supreme court justice. ... Because judges often hail from Ivy League institutions or from the lower courts, they may be less likely to have fully formed political ideologies.

5. The Law Is a Moderate Mistress This theory holds that there is something inherently moderating about the law itself; that the traditions and pace of the legal system tend to foster centrism and moderation. The "drifters" of the Supreme Court world—the Kennedys and O'Connors—are not so much evolving toward the left, therefore, as they are evolving toward the center.

I think this article in total is quite good...but I would tend to disagree with the assumed theme - that the Court has moved to the left, and that Justices such as O'Connor, Kennedy, and Souter have become liberals - which, in my opinion, is simply not correct. Lithwick herself points out that for all the right-wing hand-wringing about Souter, there hasn't been the same outcry or call for impeachment from the left related to Justice Breyer, whom was expected to be a solidly left voice on the Court, but has turned out to be a genuine moderate:
... Stephen Breyer has similarly moved rightward, proving to be the swing vote in this term's blockbuster case allowing displays of the Ten Commandments on state grounds, and joining the court's conservatives in matters as vital as the presidential power to detain enemies in wartime. We don't hear much from the media about Breyer's occasional defections to the conservative team, and certainly liberal pundits don't call for his impeachment the way Phyllis Schlafly does each time Justice Kennedy strays from the reservation.

The problem, I think, is the simplistic thought that decisions at the Supreme Court level have a left and right side; or a liberal or conservative side. They simply do not. In reality, these decisions are questions of law, and such questions will have different people wind up at different places - generally due to their judicial philosophy, but those decisions have very little in common with political left and right landscape.

For example, in this past term's Raich decision - what was conservative, and what was liberal? Was it conservative maintain a strong national anti-drug policy; or was it conservative to argue for a state's right to legalize drugs? Was it liberal to argue that the federal government trumped a state decision; or was it liberal to argue for the legalization of a prohibited drug? The Court can't be put into those boxes. On such a level, it is far more complex than those labels.

Stevens: 'Serious flaws' in death penalty

Stevens changes subject in debate over O'Connor's replacement

Justice J.P. Stevens spoke to a meeting of the ABA over the weekend and used that time to make some unprepared comments about the retirement of Justice O'Connor, and about the capital punishment system.

His comments about O'Connor indicated that the Court was caught somewhat off-guard by her retirement, "Stevens, speaking in his hometown of Chicago, started his Saturday night speech to lawyers with what he called the 'sad news; that O'Connor was leaving the court.

'It's really a very, very wrenching experience,' he said." That is the first non-press release comments I've read from any of the other Brethren about O'Connor's retirement.

In addition, it appears that Justice Stevens feels that the death penalty system is flawed enough to need to become a part of the debate about the nomination of John Roberts to Associate Justice.

The comments [about O'Connor's retirement] were not part of his prepared remarks for the evening, ... nor were the remarks about capital punishment.

Stevens said DNA evidence has shown "that a substantial number of death sentences have been imposed erroneously."

"It indicates that there must be serious flaws in our administration of criminal justice," he said.

Death penalty cases dominate the work of the high court. Week after week justices deal with final emergency appeals, sometimes filed in the late night hours.

In their last term which ended in June, justices overturned the death sentences of four inmates, ruled that states cannot put to death killers who were not at least 18 years old at the time of the crime and held that it was unconstitutional to force defendants to appear before juries in chains during a trial's penalty phase.

Justices already have four capital cases on their docket when they return to work in October, including a potentially significant issue of letting inmates have a new chance to prove their innocence with DNA evidence.

Other Supreme Court justices, including O'Connor and Ruth Bader Ginsburg, have also spoken out about concerns that defendants in murder cases are not adequately represented at trial.

But Stevens told the ABA that the problems were more dramatic.

He said the jury selection process and the fact that many trial judges are elected work against accused murderers. He also said that jurors might be improperly swayed by victim-impact statements.

The 'elected trial judges' comments are particularly perceptive. It has never made sense to me that judges who will be running for reelection later in the year, and are facing opposition who will be promising a vengeful electorate that they are willing to be "tougher on criminals", are making life-and-death decisions in court rooms.

It is reasonably clear that the addition of Roberts to this Court means less opportunities that the "serious flaws in our administration of criminal justice" will be thoroughly examined and reasoned through.

Of course, thinking of Justice Stevens and the death penalty, I cannot help but post one of my favorite concurring opinions of all time - J. Stevens from Roper v. Simmons, 543 U.S. ___ (2005):
Perhaps even more important than our specific holding today is our reaffirmation of the basic principle that informs the Court’s interpretation of the Eighth Amendment. If the meaning of that Amendment had been frozen when it was originally drafted, it would impose no impediment to the execution of 7-year-old children today. [citation omitted] The evolving standards of decency that have driven our construction of this critically important part of the Bill of Rights foreclose any such reading of the Amendment. In the best tradition of the common law, the pace of that evolution is a matter for continuing debate; but that our understanding of the Constitution does change from time to time has been settled since John Marshall breathed life into its text. If great lawyers of his day–Alexander Hamilton, for example–were sitting with us today, I would expect them to join Justice Kennedy’s opinion for the Court. In all events, I do so without hesitation.
Read more about Judge John Roberts, capital punishment, Justice O'Connor, and Justice Stevens at some of my previous posts:
Associate Justice John Roberts...
Interesting O'Connor perspectives...
Justice O'Connor retires...
Believe it or not...
Go buy this book...
Capital Punishment in Texas...
Will Texas lose the death penalty?
Lethal Injustice...
To good to archive...
Stevens speaks on the role of Int'l law...
Software models Capital Punishment outcomes...
O'Connor extols role of international law...

Friday, August 05, 2005

Hiroshima Remembered?

Saturday, August 6th, marks the 60th anniversary of the United States dropping the atomic bomb on Hiroshima, Japan.

There is no question about the devastation that the bombing caused...but there are lingering questions about the devastation that the bomb may have prevented. Due to the anniversary, there is already (and will continue to be) a lot of media coverage of the bombing and the conttroversy surrounding it.

This morning, NPR carried an especially interesting Hiroshima story on Morning Edition. The piece - you can listen to here: How Is Hiroshima Remembered in America? - is not about the bombing itself, or the question related to was it right/was it wrong?

Instead, it is about the public response and opinion to the bombing of Hiroshima - and how that opinion has evolved over time. A fascinating study of what caused that evolution of people's thinking - from the day after the drop up to recent times. Some information gleaned:

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.

But it didn't take long for the first notes of doubt. By the '50s there grew a feeling that we had created a Frankenstein in our midst, the public became somewhat more doubting and questioning what we had done. This discomfort arguably resulted from a growing recognition that the entire species was faced with anihilation due to the proliferation of atomic and eventually nuclear weaponry. For the first time during the 1950s, the bombing was renounced on both political sides as well as by some military leaders.

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 ... they discovered more evidence related to the strikes and increasingly became more critical.

Another factor, which is not directly addressed by the NPR piece, is that over the past 40 years, those minorities of the 60s (African- and Asian-Americans and women) who tended to poll in less support of the bombings, were able to take on a much larger role in the leadership of America. I found it interesting to think about Hiroshima in this different perspective - how the changes in our culture, and frankly the passing of the World War II generation, have contributed to the changing opinions of the bombing of Hiroshima.

Here is more NPR coverage of Remembering Hiroshima.

Tuesday, August 02, 2005


NRA Leadership is out of touch...

I have always thought the membership of the NRA are respectible, honest, rational people. They make up a sizeable sample of the sporting outdoors-persons of our nation. At the same time, I think in general, the leadership of the NRA are radicals who are completely out of touch with not only mainstream America, but their own membership.

And here is evidence of that:
NRA urges members to boycott oil giant
ConocoPhillips opposes Okla. law allowing guns on company property

NRA Launches Boycott of ConocoPhillips

NRA, Oil Company Clash Over Guns

NRA calls for boycott against ConocoPhillips

Companies have the right to essentially ban free speech...there is no free speech in the workplace. That is reasoanble at times in order to promote efficiency, etc. in the workspace. In a similar manner, companies have always been allowed to prohibit carrying guns onto their property. This is in order to promote a safer work environment.

In Oklahoma, Wyerhaeuser, Inc. recently laid off a group of workers because they were carrying guns to work against Company policy. Unfortunately, for the company which was seeking to provide a safer workplace for its employees, the NRA got on the march - and went straight to the Oklahoma Legislature and actually passed a bill to prevent terminations for employees who bring guns to work. Unbelieveable.

ConocoPhillips has sinced filed a federal lawsuit to block such a measure - because they want to protect their employees in their workplaces. Heaven forbid a company try to protect its employees - they will suffer the wrath of the NRA:
The National Rifle Association, one of the most powerful conservative U.S. political organizations, on Monday asked its 4 million members to boycott leading U.S. refiner ConocoPhillips in retaliation for a ban on firearms on company property.

Conoco is among several companies challenging an Oklahoma law in federal court that allows workers to keep guns in their locked cars on company property.

The law was passed after Weyerhaeuser Corp. fired 12 employees in 2002 at a plant near Idabell for violating a policy forbidding firearms on company property.

"If you are a corporation that is anti-gun, anti-gun owner or anti-Second Amendment, we will spare no effort or expense to work against you to protect the rights of your law-abiding employees," said Wayne LaPierre, the NRA's executive vice president, in a news release.

"ConocoPhillips supports the Second Amendment and respects the rights of law abiding citizens to own guns," the company said in the statement. "We are simply trying to provide a safe and secure working environment for our employees by keeping guns out of our facilities, including our company parking lots."

A judge has blocked enforcement of the Oklahoma law pending resolution of the federal lawsuit.

According to a study ... there were 164 workplace shootings in the United States between 1994 and 2003, in which 290 people were killed and 161 were wounded.

The leadership of the NRA essentially provokes a more aggressive opposition because of their outlandish and radical positions. I think that if the NRA would concentrate on its essential - and by far most important - functions of grassroots support of hunting and hunting education, there would be little to no opposition to it. But, unfortunately, the leadership of the NRA chooses to take the "give-them-an-inch-they-will-take-a-mile" rhetoric, which generates an opposition - because it's simply unworkable. Boycotting American companies which are making an effort to protect their employees and workplaces is simply an example of that.

Monday, August 01, 2005

Why Hillary can't win in 2008...

A Slate perspective:

But Why Can't Hillary Win?
Sen. Clinton's electability problem.
Political insiders mostly agree: Despite being an early front-runner for the 2008 Democratic nomination, Hillary Clinton faces long odds of ever being elected president. But if she can't win, why can't she?
In fact, Sen. Clinton's political positioning couldn't be better for 2008. Despite being a shrewdly triangulating centrist on the model of her husband, she remains wildly popular with the party's liberal core: It seems to share the right's erroneous view of her as a closet lefty and draws closer to her with every inane conservative attack. There's no other possible candidate in either party so well poised to claim the center without losing the base.

Well, if she is so well positioned, then why the consensus that she just cannot win?
Yet Hillary does face a genuine electability issue, one that has little to do with ideology, woman-hating, or her choice of life partner. Plainly put, it's her personality. ... But she still lacks a key quality that a politician can't achieve through hard work: likability. As hard as she tries, Hillary has little facility for connecting with ordinary folk, for making them feel that she understands, identifies, and is at some level one of them. You may admire and respect her. But it's hard not to find Hillary a bit inhuman. Whatever she may be like in private, her public persona is calculating, clenched, relentless—and a little robotic.

...And a case can be made that the first woman who gets elected president will need to, as Hillary does, radiate more toughness than warmth. But in American elections, affection matters. Democrats lost in 2000 and 2004 with candidates Main Street regarded as elitist and aloof, to a candidate voters related to personally. Hillary isn't as obnoxious as Gore or as off-putting as Kerry. But she's got the same ... problem, and it can't be fixed.

Interesting, and difficult to disagree with. Although I am personally not sure that Sen. Clinton is electible, given the current political climate, I would agree with the notion that the first woman who gets elected President will garner more respect than adoration. In other words, she'll have to be tougher than most.