Down and Out

Texas Rep. and Corruption King Tom DeLay is done as House Majority Leader, and will not seek to regain the post. Oh life can be beautiful some times. The Corner has the condemneds press release, including this gem:

"During my time in Congress, I have always acted in an ethical manner within the rules of our body and the laws of our land. I am fully confident time will bear this out."

Oh Tom, Tom, Tom. Need I remind you of this?

Mr. Hurt: Have you ever crossed the line of ethical behavior in terms of dealing with lobbyists, your use of government authority or with fundraising?
Mr. DeLay: Ever is a very strong word. [Washington Times Interview, 4/14/05]

I should say that The Corner reminds me of a Strom Thurmond retirement party right now--they're just falling over themselves to praise DeLay (couched in suitable rhetoric about how, if he really is corrupt, then forget it). You have to think eventually they're going to shoot themselves in the foot. Will it be Podhertz?

Very elegantly done....DeLay has wisely decided to retreat for now to fight again another day.

At least one center-leftist, however, thinks DeLay is done for good--not just in the leadership office, but in Washington.

Or perhaps Lowry:

He did the right thing, and this does leave an opening for a comeback. He was a fantastic majority leader, arguably--as Rich Galen said yesterday I believe--the best ever. He had an uncanny knack for reading the votes and persuading members. This was not a matter of him being "The Hammer," as the media would have it. As a colleague put it the other day, he was more like "The Concierge," doing favors, soothing hurts, taking care of his members so they would be there when they were really needed on a key vote.

I actually some what agree with the "concierge" description, in the most mafia-esque sense of the term. He could do favors, massage "family members", be a great friend. And if you displeased him, he could get you whacked. Ice cold.

Kos, of course, is delighted in a sort of "as if this isn't pure politics" sort of way. One of the more interesting things I've read is about Rep. Mike Rogers (R-MI), whose name has been floating around as a possible majority leader replacement. On the one hand, he's a DeLay ally, but on the other hand, he's an ex-FBI agent who did work on corruption cases. In a superficial media environment, that could give him and the GOP instant credibility on combatting corruption.

In any event, I don't know whether or not this is the tip of the iceberg that will sink the GOP's Titanic, or will work as an effective dodge and retrenchment that will nimbly avoid the ethical hounding they so deserve. But at least for one day, for one event, justice has prevailed.

Questioning the Nominees

Apropos my previous posting on the ethics of questioning judicial nominees, I think folks may be interested in this brief article by Yale Law Professors Reva Siegel and Robert Post. They argue that we should question judges on how they would have ruled on already decided cases as a tool for determining their constitutional philosophy. They then defend their plan against Separation of Powers, Due Process of Law, Appearance of Impropriety, and Politicization of the Judiciary objections. Very interesting piece.

Responses are given by Erwin Chemerinsky (Duke), Laurence Tribe (Harvard), Steven Lubet (Northwestern), and Randy Barnett (Boston University). Of these, Professor Barnett's compelling criticism was my favorite (although Professor Lubet's statement that Antonin Scalia, as a nominee, had refused to answer questions about Marbury v. Madison on the grounds the case may be challenged in the future may have been the single most interesting nugget), though some of his objections were addressed in the responses of the other three. Essentially, he argues that judges should be pressed on their interpretation of particular constitutional clauses, not cases. The reason for this is primarily that a case-based approach a) will be results-oriented, because saying one would vote against X case implies to the public mind that they'd vote against X's real-world result, and b) will privilege the status quo, because the cases that will be selected will almost definitely be part of our constitutional canon/anti-canon and will require judges to proclaim their support accordingly. Fair points, but I think that his critique in some ways falls flat, because the problem it identifies is the problem inherent a process in which judicial nominee are confirmed by a polarized democratic body. Views which are anti-canonical or privilege the status quo are always going to be at a severe disadvantage--this is true regardless of whether we're talking about "lost constitution" libertarians on the right (like Professor Barnett) or Critical Race Theorists on the left. Asking about clauses may ameliorate this to some extent, but only because its more obtuse--it is easier to spin an interpretation of the 14th amendment in such a way that it makes opposition difficult (or more likely, difficult to articulate in a way that will be popularly compelling) than it is to explain why thinking Roe was wrong doesn't mean you oppose women's rights. This is the core dilemma, between transparency (which forces judges into mainstream centrism) and political awareness (which mandates some compromises if alternative legal perspectives are ever going to see light of day). There is no doubt it is a problem, but I feel that Professor Barnett only lays out the opposing side, rather than engaging in some sort of weighing mechanism that would let us adjudicate between the poles.

Professor Barnett comments further on his blog, as does Marty Lederman. Overall, very cool stuff.

Quick Con Law Question

Probably a foolish one, but whatever--and we're on the topic in my Constitutional Law class, so may as well address it now.

The 14th Amendment to the Constitution reads, in part, that "No state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States." This clause, as far as I understand it, was meant to overrule the Supreme Court's decision in Barron v. City of Baltimore, 32 U.S. 243 (1833), which held that the bill of rights was inapplicable to the states.

However, prior to the passage of the 14th amendment, the constitution already had similar clause in Article IV, Section II, which states that "The citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." In fact, the framers of the 14th amendment specifically and deliberately used language to mirror the pre-existing constitutional text.

I understand that the 14th amendment's language is slightly more clear and specific than that found in Article IV. But I am curious: what was the purporse or practical effect of the Article IV language originally? Why was it including in the constitution?

Jews Without The Mossad

That's how Martin Peretz describes Iraqi Shiites. And given the atrocities inflicted upon them by Sunni terrorists daily, it's hard to disagree.

The gruesome Sunni killings of Shia go on and on. They went on today when some 50 innocents were murdered at prayer in Karbala. The truth is that there is no outrage or even polite disapproval from the Sunni world where this bloodlust nests. It is a fact of life, and we are by now accustomed to thinking it immutable. Like Sunni Palestinians kill Israeli Jews, Sunni Arabs also kill Shia Arabs. But in much greater numbers. After all, the latter are heretics. So why not? And, of course, the Shia do not have a Mossad. And they do not have checkpoints or barriers. To be sure, many people think that every conflict can be pacified by sufficient goodwill and ingenuity. Some American commentators believe, for example, that if only the Sunni receive their "fair" share of Iraq's oil revenues and their "fair" share of representation in the government in Baghdad and their "only fair" veto rights the mass murders will stop--that 30 Shia will no longer be bombed to death in a funeral procession at Miqdadiya. The Sunni Arabs of Iraq are not victims of anything except their delusions that they--in reality, a small minority of the country--were meant to govern because they are Allah's people and a majority besides.

Brutal.

Various Political News

It was the first day of classes today. I'm a bit off--we had virtually no work and I still can't find the energy to blog. Not good. But here are some interesting links to the day's news.

White House Spokesman Scott McClellan breaks with party, supports...mom.

Warning: Republican staffers can be crazy.

Las Vegas Mayor Oscar Goodman may be running for Senate. Umm...I guess I'm excited, but isn't he tied to the mob?

Phoebe Maltz on why the Dreyfus Affair matters to more than just "Francophilic Zionists". And I liked my AP History classes too, Phoebe.

Bull Moose begs to be ignored.

Professor Bainbridge wants an "extended edition" of the Harry Potter flicks, a la Lord of the Rings. I understand the sentiment, but I don't know if I can stand more of that awful acting. So unless the entire extra portion is dedicated solely to Severus Snape (Alan Rickman), count me out.

Compare Powerline versus Crooked Timber on the merits of Plame/NSA leak comparisons (a hint: they disagree).

This one's a bit older, but I loved this post on stock image constructions of Africa by Westerners. I probably made that sound boring--it isn't.

Only a small subset of the blogosphere will care that Constitutional Law and Church/State expert Douglas Laycock is moving from the University of Texas to the University of Michigan. Interesting factoid revealed--he attended Michigan State University as an undergrad. Know who else did? Constitutional law and Church/State expert Michael W. McConnell, currently on the 10th Circuit Court of Appeals and, in my opinion, one of the more brilliant writers I've ever read. What is in the water in East Lansing?

I've been negligent in blogging on the Mining Tragedy, but West Virginia resident John Cole has a must-read post on the subject. This Kevin Drum post also raises questions.

And that's it. Everything else on the internet today is crap. I do feel badly though--I feel like I've promised a true return to blogging for some time now while constantly short-shrifting y'all. So wish me luck to get back into my rhythm as the term gets started.

Full Moon Rising

A Maryland judge has just ruled that mooning, while "disgusting", is not illegal in our lovely state. The attorney for the defendant stated (and I'm not making this up):

yesterday's ruling should "bring comfort to all beachgoers and plumbers" in the state.

It's so good to live in a progressive state. Plumbers' Rights!

True Activism

Tom Parker is a Justice on the Alabama Supreme Court. He is, I presume, a very intelligent man, with an undergraduate degree from Dartmouth and a law degree from Vanderbilt. But I am at a loss to explain this op-ed, where he blasts his follow Alabama Justices for not ignoring the Supreme Court's clear precedent in Roper v. Simmons. Specifically, he argued the following:

You see, my fellow Alabama justices freed [Renaldo] Adams from death row not because of any error of our courts but because they chose to passively accommodate -- rather than actively resist -- the unconstitutional opinion of five liberal justices on the U.S. Supreme Court.
[...]
The proper response to such blatant judicial tyranny would have been for the Alabama Supreme Court to decline to follow Roper in the Adams case. By keeping Adams on death row, our Supreme Court would have defended both the U.S. Constitution and Alabama law (thereby upholding their judicial oaths of office) and, at the same time, provided an occasion for the U.S. Supreme Court, with at least two new members, to reconsider the Roper decision.
[...]
State supreme courts may decline to follow bad U.S. Supreme Court precedents because those decisions bind only the parties to the particular case. Judges around the country normally follow precedents in similar cases because they know that if those cases go before the Court again they are likely to receive the same verdict. But state supreme court judges should not follow obviously wrong decisions simply because they are "precedents."

Justice Parker has to know better than this. Inferior court judges are not at liberty to simply ignore precedent because they see fit. And there is no warrant to suggest that the only reason they do follow said precedent is because if they choose not to, the Court will overturn their verdict. Precedents serve to provide stability and predictability in our judicial proceedings, both attributes conservatives should love. Judges who ignore superior court mandates are engaging in clear activism--ignoring the strictures of law in favor of their own personal whims and desires. There simply is no way around it.

Steve Vladeck comments further:

This strikes me as not only very wrong, but also very dangerous. As pertains to interpretations of the U.S. Constitution, the U.S. Supreme Court is the ultimate arbiter, and its decisions are binding on every court in the United States, no matter how "wrong" it may be. State supreme court judges who think they're not bound to follow the federal Supreme Court's reading of the federal Constitution might want to re-read Article VI thereof (not to mention Marbury and, at the very least, Cooper v. Aaron).

It's ironic that the already barely plausible justification Justice Parker gives for his activism, that the new judges on the Supreme Court may assist in overturning Roper, is virtually inconceivable. As is noted by Douglas Berman, none of the judges being replaced were part of the Roper majority, so even if all of the new appointees vote to overturn (and given all the pains Alito and Roberts have taken to assure us they "respect precedent", that may not be a sure bet), the result wouldn't change unless the newbies could persuade a member of the majority to defect.

But for me, the kicker is this quote from Parker's own court biography (first link at the top of the post):

Justice Tom Parker was elected to the Alabama Supreme Court in November 2004. Immediately prior to that, he was the Special Projects Manager for The Foundation for Moral Law, where he coordinated a federal legislative effort, under Article III, Section 2 of the U.S. Constitution, to combat judicial activism.[emphasis added]

My how the proud have fallen. Or perhaps "combat[ing] judicial activism" was always code for implementing conservative policies?

One final note I'd like to add. Many commentators are saying that a judge merely writing an op-ed attacking an opinion by one's colleagues is in itself reprehensible. I'm open to being persuaded on the matter, but I have to admit that aspect doesn't bother me. This editorial does not strike me as substantially different than something Parker would have written as an "angry dissent" if he hadn't recused himself from the case at hand. I do think that his recusal was appropriate in this case, to be sure. And I know that judges traditionally have not participated in the rough-and-tumble of mainstream journalism. But I fail to see why what would have likely been his same words in a dissenting opinion become inappropriate when written in an editorial.

Hockey Heartthrobs

Greetings, boys and girls. I'm still settling in here at Carleton, so no major blogging yet. The trip in to Minnesota was slightly delayed and generally annoying, but otherwise uneventful. After I got to college, I hung out with some friends and generally frolicked. Nothing too crazy.

I did, however, want to share something from the copy of "The Hockey News" I read on the plane. I am, as you may know, a bit of a fan of the sport. However, this issue, I discovered 33,000 feet in the air, was their attempt at a "humor" addition. Not a particularly successful attempt either. The worst consistent mistake was that many of their anecdotes and jokes were repeated throughout the issue as if new. But the most amusing discrepancy came in their description of semi-star Mike Ricci. See if you can spot the difference.

A heartthrob to women in Denver for his Italian bad boy looks, Ricci was getting hit on one night at a Denver bar... [pg. 80]

and

Gap-tooth with scraggly long hair and a busted-up schnoz, ex-Sharks forward Mike Ricci isn't exactly a supermodel...[pg. 117]

Arghh! Fact-check, fact-check!!!!

No Good Answers

It is unfortunate that the Israeli/Palestinian conflict often leaves one in a position where there are no good answers. I labor under no illusions that Israel's security barrier ("barrier" striking me as the most value-neutral term for the entity separating Israel and Palestine--since it changes forms quite often along the route, calling it either a "wall" or a "fence" would both be inaccurate and prejudicial) is something we should cheer about; it incurs real costs on both Israelis and Palestinians that should not be minimized or shunted aside. At the same time, the wall/checkpoint system has real and crucial security benefits for Israel that are critical and unreplicable. I am truly sorry for the tremendous inconvenience the barrier places on the Palestinians who need to navigate it. I am not willing to let suicide bombers blow up children's parties because of that sorrow.

I wrote earlier of my anticipation of Professor Adrien Wing's "part II" blog post on her trip to Israel and the West Bank. I expressed hope that Professor Wing could present the relevant issues in a balanced way, with both a sensitivity to the Palestinian's plight while recognizing Israel's legitimate security interests as well. Though it could have been worse, I feel she fell far short of that goal.

She begins:

The Israelis have militarily occupied the West Bank where Bethlehem is located since 1967 along with the Gaza Strip, East Jerusalem, and other areas. In the past few years, they have been building a giant wall of nearly 400 miles in the West Bank, three times as long as the Berlin Wall and twice as high. When completed, this barrier will wall in the more than 1 million Palestinians into little noncontiguous pockets of poverty and misery that many people globally say remind them of American Indian reservations or South African apartheid. Needless to say, many resent any comparisons of any aspect of the Occupation to apartheid. The wall is not located along the 1967 border lines, but instead weaves deep into Palestinian areas, separating people from their land, schools, jobs and family members. In 2004, the International Court of Justice issued an advisory opinion that the Wall violated international law.

Oy. This is wildly distortive and Professor Wing knows or should know better. Let's just go part by part. Starting with the Berlin Wall comparison--it obviously is going to be longer than the Berlin Wall, because that was a barrier within a city and this is one between two countries. As to the height, Professor Wing should know that the barrier only rises to its total height in a select few places where it is needed to stop Palestinian sniper attacks on Israeli roadways (specifically, there are 8.5 kilometers of "wall"). That strikes me as quite legitimate. In its "normal" manifestation, the barrier is not even a solid "wall" at all but a fence, designed to stop Palestinian suicide bombers and terrorists (something it has, to even Professor Wing's acknowledgement, been extraordinarily good at).

The second argument she makes, that it will wall in "1 million Palestinians" into "noncontiguous pockets of poverty and misery." As I'm sure Professor Wing is aware, the wall at most will "wall in" 7% of the West Bank--and extends "deep into Palestinian areas" only where those areas are not predominantly Palestinian (such as the Ariel settlement bloc, and some Jerusalem suburbs). All told, around 10,000 Palestinians will be on the Israeli side of the line--though that number is fluid (partially because many Palestinians in East Jerusalem have petitioned to be moved onto the Israeli side of the line). As such, even if Israel does decided to annex the territory on its side of the wall at the end of negotiations (and it disavows such designs), this would leave the new Palestinian state with 100% of Gaza, and 93% of the West Bank including 99% of its population base there, in exchange for a huge rise in Israeli security and safety. That this is seen to be a massive imposition on Palestine just shows that Palestinian advocates have completely forgotten the meaning of a "compromise" (hint: generally, neither side gets everything it wants).

Though it isn't an argument per se, I love how she makes non-specific analogies to greater instances of global oppression, like South African apartheid that are just generic enough so that she disavow the claim herself:

many people globally say [that the barrier/checkpoint system] remind[s] them of American Indian reservations or South African apartheid. Needless to say, many resent any comparisons of any aspect of the Occupation to apartheid.

I'm thrilled that "many people" say that. Do you say that? I mean, that's quite a charge to make. Some people might say that conflation of the two situations betrays a shocking absence of moral proportionality. Some might also say that the rhetorical tactic being used, of soft insinuations of a link mixed with plausible deniability in case the charge doesn't pan out, is very reminiscent of how President Bush tried to tie Iraq to 9/11. Not me, only "some people," of course. But I do love how these particular sins seem to be so non-partisan. Sometimes, it seems like they're the only thing that are.

Finally, as an International Law expert Professor Wing should know better than cite that ICJ ruling. I stand by my original criticism of it, and upon re-read my contempt only grows. For example, even though the primary legal question was whether Israel's security concerns justified the hardships put upon the Palestinians by the barrier, the Court opinion felt it could get enough factual grounding on the former issue from "Israel's Written Statement...limited to issues of jurisdiction and judicial propriety" because it "contained observations on...Israel's concerns in terms of security" as well as information in the "public domain" [emphasis added]. Well then! I guess that's more than enough information to make a judicial ruling with massive geopolitical implications. This is especially ironic because, on one of the rare occasions the opinion even touches on security issues, it says that "on the material before it" [emphasis added], the court is unconvinced that the barrier's destruction of property is "absolutely necessary" for Israel's security. All told, not even one full paragraph is devoted to analyzing Israel's security claims (out of 162 paragraphs total).

But perhaps more upsetting than the false and misleading premises the argument is based upon, are the little phrasings and storytelling decisions designed to minimize Jewish and Israeli legitimacy in the region (call them "discursive micro-aggressions" if you will). The reference to Nablus as the "center of resistance to the Occupation", rather than a hotbed of terrorism, for example. Professor Wing refers to Tel Aviv as "considered the Israeli capitol by most countries of the world." Well pardon me if I don't give "most countries of the world" authority to strip Israel of its own actual capitol (in West Jerusalem). It should be noted that this is not a trifling slight--the existence of a Jewish state with a capitol in Jerusalem is the culmination of the 2000 year old dream that sustained our people in exile as they spent countless generations of slaughter by their Christian and Muslim peers. The effort to deny Jews this even in the face of its realization can only be interpreted as a last gasp effort to maintain the Jewish state of exile--as any good Crit knows, its far easier to keep a group down when you can deny their reality and replace it with ones own. The ability of Jews to construct their own identity has only occurred sporadically in the modern era, and for whatever reason, everytime we try the world rallies against it to crush it (whether it be by Christians calling us Satanists, Muslims calling us Crusaders, or Televangelists incorporating us as "Judeo-Christians"). She refers to the reduced rates of suicide bombing caused by the wall, but almost as a negative factor in that it may be responsible for the fact that "most of these people on the beachfront [in Tel Aviv] did not have to think on a daily basis if at all or may not be truly aware about the harsh existence of Palestinians in the Occupied Territories." In fact, this is a bit of a trend in the literature I've noticed--in the ICJ opinion, for example, the extension of the wall toward Israeli settlement blocs, far from being counted as a part of Israel's security concerns toward those Jews not being blown up, was counted as a negative factor because it legitimized the settlement campaign. The implication--unintentional, perhaps, but unavoidable--of both the former and the latter is the same--the "right" end result would be less security and more death of Jews.

I do not think that everything in Professor Wing's post is wrong. Particularly, I very much believe her description of naked racism against black Jews in Israel. I also believe that Israel has made greater strides in this field that nearly any other nation, but that only makes them the very sad king of a very small hill. More clearly needs to be done--and Jews everywhere have an obligation to stand in solidarity with their cohorts of all ethnic persuasions in their pursuit of full and equal rights. I applaud Professor Wing in bringing this issue to light for the greater blogging community. And in all honesty, I applaud her for writing this entire post as well. Nothing can change in the world without dialogue between people who have disagreements--many as ours may be. If she hadn't written this post, I'd never have written this response, and both of us would be that much farther from synthesis. The comments above should thus not be understood as a call for censorship but a request for further discussion--limited, contingent, and partial as it may be.

But it is singularly depressing just how little concern there is in her post for Jewish experience and Jewish lives. This is obviously a difficult topic to write upon, partially because of the need to separate the gravely intertwined issues of criticizing Israel and anti-Semitism. It is equally clear that the former must be possible without being accused of the latter, and that the latter can and often does inform the former. In seeking to navigate those treacherous waters, I have been greatly influenced by the incredible strides made by the CRT movement in elucidating how racism can operate subconsciously or structurally even when the individual system participants have the best of intentions. I believe that anti-Semitism can work much the same way, and that the long, broad, and deep tradition of global anti-Semitism still pervades our collective consciousness even amongst those who strive to overcome it (or believe they already have). One day, I wish to write a broader work exploring these issues. But today, only sketches exist thus far.

To someone operating within this tradition, saying "I have Jewish friends" is no different than the White conservative who answers all charges of racism with "but some of my best friends are Black." Similarly, the existence of Jews who may echo certain complaints just makes them the Semitic equivalent of a Black conservative--the closest analogue to Noam Chomsky is Clarence Thomas. This is not meant perjoratively, but simply descriptively--both are members of a minority identity group who take positions far outside the norm within said group--positions that I believe are hostile to the collective interest and play into the hands of the greater oppressive matrix. To cite just one more example, the discussion on Jerusalem as Israel's capital does not unintentionally draw from Charles Lawrence's "cultural meaning" work--the work I think can very easily be transplanted to issues of anti-Semitism, and it is a shame it hasn't happened on a greater scale. At the same time, I will admit hesitancy at some of my stronger rhetoric. Being charged of anti-Semitism (or perhaps, more accurately, being complicit in a global anti-Semitic framework) hurts, just as a similar charge about racism does. I have expressed my concerns about the expansion of these terms' discursive terrain, and they remain valid here. Even still, I believe Professor Wing knows that just as "racism" can be understood not necessarily in its classic sense of "you are an awful human being who wants all Blacks to be your inferior" but as a more subtle and nuanced (but still dangerous form), anti-Semitism is not just Holocaust-advocacy but also exist in those little blocks that construct our world such that it is hostile to Judaism and Jewish identity. And it is something we all must struggle to overcome. The world's longest running "ism" continues unabated--but somehow it stings harder when the left is leading the charge.