Monday, October 31, 2005

Will Abortion Dissent Undo Alito?

One judicial opinion written by Alito has already emerged as an issue in his confirmation. His dissenting opinion in Planned Parenthood v. Casey concerns abortion, the hot-button issue in judicial politics. For a history of the Planned Parenthood case, read this (hat tip to ConfirmThem).

In Alito's dissent, he agreed with the other 2 Third Circuit judges on the panel on 3 other issues related to the regulation of abortion (24 hour waiting period, informed consent, and parental notification), but he alone supported the right of the state of Pennsylvania to require a married woman to notify her husband before having an abortion. This was not an extreme opinion. The Supreme Court considered it a close question:

At conference on Casey, Justice Anthony Kennedy originally voted with Justices Clarence Thomas, Antonin Scalia, Byron White and Chief Justice William Rehnquist to uphold all of the Pennsylvania abortion regulations. However, Kennedy changed his vote at the last minute and joined with fellow Reagan-Bush justices Sandra Day O'Connor and David Souter to form a plurality that would uphold Roe.

Despite the closeness of the question, expect the Democrats to make it a major, or even the major, issue to oppose Alito. Most of the public is pro-abortion, though only a minority of these consider abortion an all-important issue. But a still significant number of them do.

The issue of abortion ceased to be an issue that legislators could decide after Roe v. Wade created a constitutional right to abortion in 1973. However, abortion remained a political issue, important to large minorities on both sides of the debate. As a consequence of Roe, the political focus shifted from electing pro- or anti-abortion legislators to appointing pro- or anti-abortion judges, especially on the Supreme Court. As the preeminent court decision making legislative judgments, Roe has done more to poison the judicial selection process than anything else.

Still, many voters are more interested in the result of keeping abortion legal than the method of accomplishing that result. To those voters, a court that makes raw legislative decisions is preferred to a court that puts the abortion issue in the legislatures. These voters should take note that such a court can just as easily reach legislative judgments that they oppose.

The fundamental issue in the appointment of Alito, as in all Supreme Court appointments, is the role of the courts in our political system. Do the courts interpret the Constitution, guided by the original intent of the framers, or do the courts create or eliminate rights as society changes, guided by their own political opinions of how society is evolving? The first view in the preceding question is essentially originalism and yields a more uniform interpretation of the Constitution over time. The second view is essentially the living Constitution and yields a changing interpretation of the Constitution that depends greatly on the political opinions of the deciding judges.

I doubt that any one judicial decision will cause the Senate to reject Alito. However, all conservatives should recognize the potential power of the abortion issue to override the need to return the courts to their proper role.

What Is at Stake with Supreme Court Appointments

From Confirm Them:

The issues at stake here go way, way beyond the right to life versus the right to choose abortion. At stake ... is really the rule of law, and whether we continue to assign legislative powers to an unelected and unaccountable body that was never intended to have them.

Chief Justice Marshall wrote: “It is emphatically the province and duty of the judicial department to say what the law is.” But, he also wrote: “It is the peculiar province of the legislature to prescribe general rules for the government of society.”
This is a good, concise summary of what is at stake in nominations and appointments to the Supreme Court.

Bush Names Highly Qualified Nominee for Supreme Court

This morning, Pres. Bush nominated Sam Alito to the Supreme Court. Alito has been a federal appellate judge on the Third Circuit for 15 years. The Senate, then controlled by Democrats, confirmed him unanimously for that position in 1990. Before that, Alito was a federal prosecutor and worked in the office of the U.S. Solicitor General, which argues cases on behalf of the U.S. government. Alito graduated from Princeton and Yale law school.

Alito is considered a strong conservative judge. He will probably be opposed vigorously by liberal Democrats, even those who voted to confirm him in 1990.

Sen. Arlen Specter (R-Pa.), chairman of the Senate Judiciary Committee and a moderate to liberal Republican, said that Alito's nomination should enjoy smooth sailing. Sen. Chuck Schumer (D-N.Y.), leader of the Democrats' opposition to Bush's judicial nominees, and Sen. Harry Reid (D-Nev.), Senate Minority Leader, are not happy with the nomination of Alito.

Republican senators at this early point in the confirmation process are likely to support Alito. Only 3 Republican senators have voted against confirmation of any Bush judicial nominee. If that holds true for Alito, Republicans will have at least 52 votes to confirm Alito, enough to confirm his nomination but not enough to shut off a filibuster.

On the other side, most Senate Democrats will likely oppose confirmation. After all, 22 Democrats voted against John Roberts, the single best qualified Supreme Court nominee in a very long time. Given the probability of a majority in the Senate for confirmation, Senate Democrats face a preliminary decision whether to filibuster the nomination. If they do filibuster, the success of a filibuster will hinge on the 7 Democrats in the group of 14 who crafted the compromise deal on judicial nominations.

If those 7 Democrats, or at least 3 of them (because that makes 41 votes to keep a filibuster going), support a filibuster, Senate Republicans will face a decision whether to change Senate rules to prohibit filibusters of judicial nominees. This is the same decision that Republicans faced a few months ago on appellate judicial nominees. Then, the 7 Republicans in the group of 14 avoided the decision by reaching the compromise deal. Because those 7 Republicans refused to confront the decision then, they may face it now when more of the public is watching.

It is too early to predict the outcome of the 2 parties' political decisions, which depend greatly on public reaction. However, Alito is highly qualified, and defeating him will be difficult.

Saturday, October 29, 2005

Double Standard?

Just a thought from Lorie Byrd at Polipundit on the indictment of Libby:
If Starr had used the same standard as Fitzgerald, I don’t believe Hillary would be serving in the Senate today, and Bill Clinton would not be traveling the world trying to rewrite his legacy.

ACLU: Sex Offenders Have Halloween Rights

From Ace of Spades HQ, We learn that the ACLU believes it is unconstitutional to protect children from sex offenders on Halloween. We can prevent ex-cons from buying guns, but, if the ACLU has its way, we can not stop sex offenders from using candy to lure children.

Friday, October 28, 2005

Libby Indicted

After a 2-year investigation by a special investigator of the public revelation that Joseph Wilson's wife was a CIA agent, the grand jury has indicted Scooter Libby, an aide to VP Cheney, for false statements and obstruction of justice. The grand jury did not issue any indictments for the underlying events being investigated, most likely because the special prosecutor could not prove, among other required elements of the offense, that Wilson's wife was a covert CIA agent and that anyone revealed her identity with an intent to harm the U.S.

Nonetheless, an investigation that leads to indictments resulting from the investigation itself and not from any underlying crime is troubling. Still, we can not condone intentional deceit and obstruction in a criminal investigation. It is not good policy to encourage witnesses to lie and to obstruct an investigation. To avoid creating crimes when none exist in the first place, it would be better if the prosecutor would first determine whether the events in question constitute a crime.

Despite the apparent absence of an underlying crime, Libby may have made false statements to investigators and the grand jury about facts central to a determination of whether there was an underlying crime. According to the special prosecutor, Libby repeatedly stated to investigators and the grand jury that he learned of Wilson's wife's CIA status from journalists, but the facts showed that he learned this from VP Cheney. If the special prosecutor's allegations are true, Libby has committed serious offenses and should be held accountable.

Despite much rumormongering, Pres. Bush's advisor, Karl Rove, was not indicted. Rove testified before the grand jury 4 times. Based on rumor and speculation, it is possible that Rove's lawyers may have advised him to ask to return to the grand jury so that he could clarify or correct earlier testimony. This scenario may have occurred after Rove first testified when he produced emails that may have jogged his memory. If this or a similar scenario did occur, Rove's lawyers did well by their client because there is no perjury if a witness goes back to the same grand jury to correct prior testimony.

One final note: Contrast the responses of the Bush and Clinton administrations to investigations. Clinton and his team obstructed the investigation, threw up road blocks, and attacked the prosecutor and his motives. Bush ordered his people to cooperate fully in the probe, and no member of the Bush administration ever attacked the prosecutor. Remember that in 2008, remember how Democrats supported Clinton's obstruction tactics, and consider those facts when voting, especially if Hillary Clinton gets the Democratic nomination.

Thursday, October 27, 2005

Miers Withdraws

At Harriet Miers's request, Pres. Bush today withdrew her nomination for the Supreme Court. The nomination was withdrawn after increasing criticism of the nomination from conservatives and, to a lesser extent, liberals.

The final nail in the coffin appears to have been the discovery yesterday of a speech Miers gave in 1993 to Executive Women of Dallas. In the speech, Miers appears to support judicial activism when legislators fail to solve problems, to agree with liberal talking points on different justice for blacks and whites, and to equate abortion protesters with terrorists.

I was disappointed by Bush's nomination of Miers, given the availability of so many other better qualified candidates, but I was willing to support her confirmation if she performed reasonably well in her hearings and showed a conservative judicial philosophy with an element of judicial restraint.

The nomination of Miers split Bush's conservative base. In that respect, the nomination was a political disaster for Bush and Republicans. Forcing the nomination to a vote would have put several Republican senators in the uncomfortable position of alienating either Miers's supporters or her detractors. Withdrawal of the nomination was probably the least bad way to put an end to the political agony on the Right.

Liberal Democrats who criticized Miers, many of whom were not going to vote to confirm her, have conveniently forgotten their own criticisms as they seek to blame conservative extremists for the withdrawal of the nomination. Not a single Democrat senator ever committed to vote for Miers. Although no Republican senator publicly announced opposition to Miers, their support was lukewarm or worse. There was doubt whether Miers would have been confirmed by the Senate.

Because so little was known about Miers, critics and supporters made mountains out of insignificant events. The lack of a paper trail, which seemed an advantage when Miers was nominated, became a reason for attacks from all sides.

Miers did not deserve to be treated so harshly. While her resume did not match John Roberts's, whose does? We at Quite Right wish Miers well and hope that she continues to serve Pres. Bush in her current capacity.

Thursday, October 13, 2005

Another Anti-American Nobel Prize

From Expat Yank:

Playwright Harold Pinter, ... who has been an outspoken critic of the U.S.-led war in Iraq, was the surprise winner of the Nobel literature prize on Thursday.

... An active human rights campaigner, Pinter has likened U.S. President George W. Bush's administration to the Nazis and called Prime Minister Tony Blair a "mass murderer" for invading Iraq.

... "Iraq is just a symbol of the attitude of the Western democracies to the rest of the world and how they choose to exert their own power," he said.
Both the Peace Prize and the Literature Prize are being awarded to anti-American individuals. Do you want to guess the political leanings of the Nobel committees?

Read Expat Yank for more.

Wednesday, October 12, 2005

Prison Conditions in France Worse than Guantanamo?

From David's Medienkritik, we learn the following:
The European Council's commissioner for human rights has described conditions in the prison in France's most august court building as the worst he has seen. ...

... [H]uman rights organisations have uncovered evidence of prisoners, mainly illegal immigrants, going without food, drink and lavatory paper as they huddle together for warmth. There have been numerous violent attacks and cases of detainees mutilating themselves and smearing their blood on the walls.

I am sure that France will be roundly criticized by the same organizations that criticized the U.S. about conditions at Guantanamo. Yeah, sure.

Katrina/Rita Lesson 3: Temporary Shelter

The local government in New Orleans advised residents to take shelter in the Superdome if they could not evacuate and needed shelter from hurricane Katrina. Those seeking shelter in the Superdome were told in advance to bring enough food and water for 2-3 days. Some did not. Because the hurricane caused severe flooding in New Orleans, people were stranded at the Superdome for 4-5 days, causing hunger and dehydration.

Temporary shelters during a hurricane are not intended to be long-term housing and feeding facilities. Therefore, should a longer term disaster situation develop, such as the flooding of New Orleans, the local authorities and relief organizations should be prepared either to bring in food and water or to evacuate the people in the temporary shelter to a place with shelter, food, and water.

Al Qaeda's Goals in Iraq

A captured letter from Zawahiri, Al Qaeda's second in command, to Zarqawi, the leader of Al Qaeda in Iraq, reveals Al Qaeda's goals in Iraq.
[T]he Jihad in Iraq requires several incremental goals:
The first stage: Expel the Americans from Iraq.
The second stage: Establish an Islamic authority or amirate, then develop it and support it until it achieves the level of a caliphate- over as much territory as you can to spread its power in Iraq, i.e., in Sunni areas, in order to fill the void stemming from the departure of the Americans, immediately upon their exit ... .
...
The third stage: Extend the jihad wave to the secular countries neighboring Iraq.
The fourth stage: ... It may coincide with what came before: the clash with Israel, because Israel was established only to challenge any new Islamic entity.


No matter what you think about the wisdom of invading Iraq, Iraq today is clearly the most important battlefield in the War on Terror. An American pullout from Iraq will give Al Qaeda a victory, and Iraq will likely become what Afghanistan was.

What is happening today in Iraq is what Ql Qaeda intended to happen in Afghanistan. The brevity of the battle in Afghanistan did not give Al Qaeda an opportunity to test America's resolve. Iraq presents a test of America's resolve to do what it takes to win the battles and ultimately to prevail in the War on Terror.

Read more at Austin Bay Blog.

Tuesday, October 11, 2005

Katrina/Rita Lesson 2: Evacuation

Evacuation as hurricanes Katrina and Rita approached the Gulf Coast did not go smoothly. Evacuation from the Texas Gulf Coast in advance of Rita went especially poorly. Evacuation from the New Orleans area had problems, though not as severe.

I have talked with several people who evacuated from New Orleans and Houston. In each case, the travel times were dramatically greater than normal. In one case, a couple from New Orleans took 16 hours to go from New Orleans to Houston, a trip of 7 hours usually.

The travel times in the evacuation from Houston were worse. One couple went 10.5 miles in 9 hours! They turned around and returned home. Others had similar stories. Having made little progress to their destinations and seeing their gas gauges approach empty, they went back home rather than risk being caught on the road in a hurricane.

Several factors contributed to the evacuation difficulties. In Texas, the state was slow to authorize use of the inbound lanes for outbound evacuation traffic. Once the decision was made, valuable time and manpower was required to block entrances to the contraflow lanes and to get existing inbound traffic off the highway. In the future, the decision to contraflow traffic must be made more quickly (perhaps automatically) in order to move evacuation traffic more efficiently.

Families with 2 cars evacuated with both, thus increasing the already huge volume of evacuation traffic and further straining scarce gasoline supplies. Next time, public pronouncements must discourage the use of multiple cars to evacuate one household. Many people will still take 2 or more cars, but any reduction in traffic volume will help to speed the traffic away from dangerous coastal areas.

People who were not in mandatory evacuation areas evacuated anyway. People on the Texas Gulf Coast had seen the devastation wrought by Katrina and were less willing to stay in areas that did not require evacuation. Next time, public pronouncements must make clear what areas are under mandatory evacuation, what areas should consider evacuation, and what areas do not need to evacuate. Many people will ignore a request to stay in place out of fear, but clear guidelines will help people make the best decisions and will reduce evacuation traffic.

Public transit can not evacuate the number of people trying to evacuate. Busses are better than trains for evacuating people, if only because trains have fixed and limited routes. Busses can alter their routes and can take people out of the evacuation area. However, there is not enough capacity to evacuate everyone on planes, trains, and busses. The automobile is the vehicle of choice to evacuate the greatest number of people in a limited time. Though environmentalists and public transit supporters oppose highway construction, the highway capacity must increase to handle growing normal traffic and to avoid bottlenecks in an emergency. Evacuation needs must be a factor in the consideration of highway projects.

All available resources must be put to use to evacuate people who do not have cars. Houston and surrounding cities did this well on the whole, but New Orleans failed miserably. Make workable plans to notify everyone of mandatory evacuation and to evacuate them. When a hurricane approaches, follow the plan. A failure to implement the evacuation plan completely wastes the efforts to make the plan.

Once the mass evacuation is underway, resources of gasoline, water, and food become severely strained. The state must plan to provide emergency supplies along the evacuation routes. Some rationing of gasoline may be required so that all evacuees will be able to reach safety.

In an emergency evacuation, traffic along the evacuation routes becomes severely congested. It may be necessary to have police at strategic points to make traffic flow more smoothly and quickly.

The evacuations of New Orleans and the Texas Gulf Coast worked on the whole, but there were glitches. In too many case, evacuees had to depend on the kindness of strangers to take them in. At least one small town outside Houston unexpectedly housed 3,000 evacuees who otherwise would have been stranded on the highway. People did respond to help others, and they improvised and volunteered on the spur of the moment to avert a crisis. We are all thankful for the many who reached out to help strangers in need of food and shelter. Next time, however, the state should follow the recommendations above to avoid the problems.

Monday, October 10, 2005

Harriet Miers: Lowest Common Denominator

One thought, which seems to be neglected in the current debate over the nomination of Harriet Miers to the Supreme Court, is that Miers may represent the lowest common denominator for confirmable judges. That is, she is acceptable, although barely, to most U.S. senators and special interest groups because they know so little about her that they can find nothing to object to.

As more and more special interest groups become involved in the confirmation process, it becomes more difficult to confirm a judge who has a paper trail showing strong positions on judicial issues. On the Right, business conservatives and social conservatives have different views. On the Left, environmental groups and pro-abortion groups do not focus on the same issues. As the courts have pushed more and more to be the final arbiters to resolve political debates, more political groups are trying to influence the selection of judges.

On the more high-profile Supreme Court nominations, the concerns of the special interest groups become even greater. In such an environment, confirmation of a judge with known views may be difficult or impossible. The result is the nomination of individuals with little or no paper trail, which yields less qualified nominees such as Miers.

Friday, October 07, 2005

Nobel Peace Prize Awarded to Ineffective U.N. Agency

The Nobel Peace Prize has been awarded to the International Atomic Energy Agency (IAEA) and its director, Mohamed ElBeredei, for efforts to prevent the spread of nuclear weapons and to ensure safe civilian use of nuclear energy. I guess the Nobel committee considers anti-Bush bias to be more important than effective progress toward peace.

Last fall, about one week before the presidential election, the IAEA leaked information about the disappearance of high explosives in Iraq. As the Washington Post observed,

[T]he sensation over the missing explosives emanates from the International Atomic Energy Agency, whose director, the Egyptian Mohamed ElBaradei, has been an adversary of the Bush administration on Iraq since well before the war. ... The fact that he was providing easy fodder for Mr. Kerry's campaign just eight days before the presidential election evidently did not deter this U.N. civil servant.


The ineffectiveness of the IAEA's efforts in North Korea and Iran are obvious to all. Why, other than a bias against the President of the U.S., would the Nobel Peace Prize Committee award the Peace Prize to a U.N. agency with a record of no accomplishments?

Tuesday, October 04, 2005

Harriet Miers Nominated for Supreme Court

Pres. Bush nominated Harriet Miers to replace Justice O'Connor on the Supreme Court. Miers has the advantage and disadvantage of having virtually no paper trail. She has never been a judge. Her resume is not bad, but it is not nearly as distinguished as Justice Roberts's.

It appears to me that Pres. Bush nominated Miers in part to avoid a fight in the Senate. Any strong conservative nominee who is on record as opposing Roe v. Wade, which made abortion a constitutional right, would face an all-out confirmation battle. Because the majority of Americans like the result of Roe, confirmation of such a nominee would be difficult and could imperil the re-election of several Republican senators. On the other hand, the majority of Republican voters oppose Roe, and a large number of them want a Supreme Court nominee who will vote to overturn Roe. Thus, a Republican president faces a dilemma in selecting a Supreme Court nominee. The perfect nominee for political purposes is one who opposes the result of Roe but whose view is not on record. However, the absence of a record makes Republicans nervous about the nominee's judicial philosophy, especially when they remember Justices Stevens and Souter, who were appointed by Republican presidents but became reliable votes for the liberal bloc.

To my mind, Miers is a less than stellar nominee because there are dozens of better qualified candidates. If Pres. Bush wanted a woman, he could have selected Edith Jones, Priscilla Owen, Janice Rogers Brown (a black woman), or Joy Clement, among others. If he wanted a Hispanic, he could have selected Garza or Alito. If he did not rule out white males, he could have selected Michael Luttig or Michael McConnell. Each candidate mentioned in this paragraph has judicial experience.

Miers is also not an ideal candidate because she is 60, rather than the preferred 50 or 51. If she were a higher quality candidate, her age would be less of a concern.

Miers did not graduate from a top-tier law school. She received her law degree at Southern Methodist University, which is a fine law school. What matters more than her law school is what she has accomplished since.

Miers is an evangelical Christian. I personally do not care what a nominee's religion is, but an evangelical Christian will be deemed unfit for the Supreme Court by many liberals.

Miers made contributions to Democrats in the 1980s. Since 1994, all her political contributions have been to Republicans. The Democrat leaning so late in her life (until age 43) causes unease.

Miers's lack of an adequate paper trail concerns many conservatives. It puts liberal activist groups at a disadvantage for now because they do not have a file on her. They will investigate her background very quickly and very thoroughly to try to discover dirt. Should the confirmation process become very difficult for Miers, do not expect the conservative Republicans to leap to her defense unless they become convinced of her judicial philosophy.

In the end, Pres. Bush is asking his supporters to trust him and his judgment. He has thus far nominated solid conservatives, and his judgment on personnel matters has generally been very good. For example, his cabinet appointments have been exceptional on the whole. Still, he could have nominated someone with judicial experience and more familiarity with constitutional issues.

Do not expect strong opposition from Democrats. Sen. Harry Reid (D-Nev.), the Senate Minority Leader, recommended the nomination of Miers to Pres. Bush. Other Senate Democrats, such as Chuck Schumer (D-N.Y.), have said they expected much more conservative nominees from Pres. Bush. Unless the liberal activists uncover some serious dirt, Miers will be confirmed without a filibuster.

What kind of justice will Miers be? Cross your fingers.