Wild Blue Yonder

Talking Points Memo directs us to a distressing article in The New York Times detailing religious discrimination against non-evangelical Christians at the Air Force Academy.

Less than two years after it was plunged into a rape scandal, the Air Force Academy is scrambling to address complaints that evangelical Christians wield so much influence at the school that anti-Semitism and other forms of religious harassment have become pervasive.

There have been 55 complaints of religious discrimination at the academy in the past four years, including cases in which a Jewish cadet was told the Holocaust was revenge for the death of Jesus and another was called a Christ killer by a fellow cadet.
[...]
More than 90 percent of the cadets identify themselves as Christian. A cadet survey in 2003 found that half had heard religious slurs and jokes, and that many non-Christians believed Christians get special treatment.

"There were people walking up to someone and basically they would get in a conversation and it would end with, 'If you don't believe what I believe you are going to hell,'" Vice Commandant Col. Debra Gray said.

Critics of the academy say the sometimes-public endorsement of Christianity by high-ranking staff has contributed to a climate of fear and violates the constitutional separation of church and state at a taxpayer-supported school whose mission is to produce Air Force leaders.

Marshall warns us, correctly, to take the article with a grain of salt, as it is somewhat vague and does not say who the "critics" are. Furthermore, while the article insinuates that the academy is trying to shove the issue under the bed, apparently the superintendent has admitted there is a problem and in doing so, said something very wise:

The superintendent, Lt. Gen. John Rosa, conceded there was a problem during a recent meeting of the Board of Visitors, the civilian group that oversees the academy.

"The problem is people have been across the line for so many years when you try and come back in bounds, people get offended," he said.

And the response to that statement was very interesting too:

The board chairman, former Virginia Gov. James Gilmore, warned Rosa that changing things could prove complicated. He said evangelical Christians "do not check their religion at the door."

I would hope that Mr. Gilmore is not suggesting that religious tolerance by evangelical Christian requires them to "check their religion at the door." It seems to me that is extraordinarily disrespectful to those religious denominations. I certainly hope that one can respect people of other faiths and avoid gratuitously degrading them without sacrificing Christian faith.

But while Gilmore's words may have just been inartful, the response by radical rightwing Christian groups was simply outrageous:

Two of the nation's most influential evangelical Christian groups, Focus on the Family and New Life Church, are headquartered in nearby Colorado Springs. Tom Minnery, an official at Focus on the Family, disputed claims that evangelical Christians are pushing an agenda at the academy, and complained that "there is an anti-Christian bigotry developing" at the school.

"Anti-Christian bigotry"? At the Air Force Academy?!? They cannot be serious. Only James Dobson's outfit (Focus on the Family) considers an inquiry against religious bigotry to be discrimination against Christians. But I guess that shows you what Dobson's view of Christianity really is.

Haha...Oh, Wait

Nothing is funnier than one of Wonkette's parodies of conservative activists! Take this sample ad about what the extreme right is saying about Senator George Voinovich.

Wife: Honey, were you watching C-SPAN today? Did you hear how disloyal Senator Voinovich was to Republicans and President Bush? Voinovich stood with the Democrats and refused to vote for John Bolton, the man President Bush has chosen to fight for the United States at the UN!

Husband: No, I was streaming it on the Internet at the office, but from what I could tell, Senator Voinovich played hookey from the hearings?

Wife: Yeah that’s right. He’s missed most of the Bolton confirmation hearings, but then shows up at the last minute and stabs the President and Republicans right in the back.

Husband: That’s ridiculous – the United Nations needs reform, we need someone who will stand up for the United States and fight the UN’s corruption and anti-Americanism.

Wife: Shame on Senator Voinovich. After the Democrats smeared Condoleeza Rice for Secretary of State and Alberto Gonzales for Attorney General, how could Voinovich side with the Democrats in smearing John Bolton?

Husband: It seems like Senator Voinovich has become a traitor to the Republican Party.

Wife: Enough’s enough. I’m logging on to Move America Forward dot com to register my protest with Senator Voinovich’s office.

Husband: What was that site? Move America Forward dot com ?

Wife: Yep, Move America Forward dot com

"Disloyal," "stab in the back," "traitor," yep, those are the stereotypical Republican talking points on dissenters. Wonkette sure nailed this one on the head.

Oh wait. The ad is real.

UPDATE: The ad is being forwarded by a group called Move America Forward. Legal Fiction reminds us just what they really are opposed to.

UPDATE AGAIN: The Drez raises some of his own questions.

UPDATE REDUX: Now Wonkette has a real parody up.

New Columns

My latest columns are up. "Saving Grace" is at The Carleton Progressive, and for you debaters out there, "The Critical Congressman" is headlining over at The Victory Briefs Daily.

A New Hope

Well would you look at that. The House Ethics Committee is going to probe Tom DeLay after all.

Retreating under pressure, Republicans on the House ethics committee said Wednesday they were ready to open an investigation into allegations of wrongdoing against Majority Leader Tom DeLay.

Four of the five Republicans on the committee were ready to move ahead, said Rep. Doc Hastings, the panel's Republican chairman. The panel also has five Democratic members.

The Republicans were ''prepared to vote at the earliest opportunity to empanel an investigations subcommittee to review various allegations concerning travel and other actions'' by DeLay, he said.

The ethics committee has authority to start an investigation based on information it receives ''through public and other sources,'' Hastings said."

As Obsidian Wings tells us, this is "a good opportunity to clear his name." Heh. My thoughts exactly.

Actually, I'm somewhat convinced that this is a cynical ploy to take the heat of DeLay so the committee can bury and/or whitewash the allegations later. But then, I'm a pessimist.

And fun factoid: The one Republican not willing to "move ahead" with the panel? It's Representative Lamar Smith, Texas Republican and Tom DeLay's replacement speaker at the infamous conference hosted by the "Judeo-Christian" Council for Constitutional Restoration. You know, the one that called for Stalinist tactics to be used against "activist" judges? Yeah, same guy.

Ah, what tangled webs we weave.

UPDATE: Professor Bainbridge jumps on board, saying "DeLay has become an embarrassment to the Conservative movement. (Far more so than Newt ever was, in my book.) It's time to throw him to the wolves." The trigger for him? DeLay's bizarre screed against Justice Kennedy that included an attack on the internet.

Doonesbury's "DeLay Political Death Watch" is looking more and more prophetic.

And while not perfectly topical, Howard Bashman of How Appealing offers a "DeLay disclaimer" warning that "this post discusses foreign law that I learned about by using the internet." Well, Howard, looks like you're a traitor aren't you?

Update #2: Well, that was over quick. Looks like the Dems thought it was just a ploy too.

This is the New Heresy?

Surely this is an eminently reasonable position to hold:

"The issue is not change itself. The Church has changed dramatically - and will continue to change dramatically. The issue now is whether the Church can even debate its own issues and future. Some caricatures of my position, for example, say that I oppose this Pope because I want the Church to endorse gay marriage. Puhlease. I cannot see any basis within Catholic theology for granting the sacrament of marriage to gay couples. Such a simple inclusion strikes me as completely out of bounds. What many of us are asking for is simply the ability for lay Catholics and indeed priests and theologians to be able to debate respectfully such pressing issues as mandatory celibacy for the priesthood, a less rigid biological understanding of the rights and dignity of women, and a real dialogue with gay Catholics about how we can practically live lives that reflect our human dignity and our profound human need for intimacy and sexual expression. We'd also like to see greater autonomy for national churches, a respect for political secularism, and a more open hierarchy that cannot get away with a criminal conspiracy to hide the widespread sexual abuse of children and teens. None of this is that radical in the context of change in the last fifty years. None of it is subject to infallibility. And what we object to is the arrogant notion that lay people - let alone theologians or priests - do not even have the right to raise these questions within a formal church context. But our opponents want to construct a straw man in which Ratzinger presents orthodoxy and critics represent revolution. The truth is almost the direct opposite. Ratzinger's views on freedom of thought within the church are deeply authoritarian; his views on what conscience is are totalitarian; his conflation of his own views with the Holy Spirit are offensive. But he is Pope now. And fairness suggests we should wait and see. I can only say that I do so with dread and fear."

I'll say it again, yesterday was not the day to jump on the newly elected Pope. However, Sullivan's position itself is far from the heresy it is being characterized as by the conservative right.

Jeffords Retiring

Vermont Senator Jim Jeffords (I), who became a liberal hero when he defected from the GOP in 2001, is retiring from the Senate after the conclusion of his term in 2006. Many thanks to a dedicated public servant.

More interesting is CNN's claim that the state's sole Representative, Bernie Sanders (I), is going to run with Jeffords out of the race. Sanders is quite popular in Vermont. He also happens to be a member of the Democratic Socialists of America (not affiliated with the Democratic party in any way whatsoever). If Sanders wins (and he very much could), this would make him the first openly socialist senator in, well, in my recollection of American history.

UPDATE: I'm not really sure who believes otherwise, but The Moderate Voice assures us that Jeffords really is retiring for health reasons, not because he's politically vulnerable.

Proving the Naysayers Right

When the quite unhappy Andrew Sullivan said of the new Pope's reign

For American Catholics, I foresee an accelerating exodus. But that, remember, is the plan. The Ratzingerians want to empty the pews in America and start over. They will, in that sense, be successful

I was inclined to dismiss it as hyperbole and slight paranoia. Then I see this post by Feddie at Southern Appeal which literally is cackling at Sullivan while advising him to not "let the door hit your hindquarters on the way out, Sully." Professor Bainbridge is (just) slightly more conciliatory, saying of reformist Catholics

"If I were feeling uncharitable today, I'd tell those folks not to let the door hit them in the ass on their way out of the church. Since I'm feeling sort of charitable at the moment, however, I'll simply advise them to get over themselves."

SA and Bainbridge (whose direct response to Sullivan's protests is worth a read, anyway) should remember that the conclave is not a political election, and the outcome should not be seen as an opportunity to take political cheap shots, much less hopefully looking toward a purge of one's philosophical opponents in the church. If Michelle Malkin can rightfully denounce "the vile Pope-bashing on the Left," then we should be as quick to attack the conclave results being used as a front for liberal-bashing by the right. Forgive this non-Catholic for saying so, but does that not miss the whole point of this day of joy? This whole exercise has been in bad taste, and it is utterly appalling that the election of the Pope has managed to bring out the worst in everyone.

The Moderate Voice's second round-up of coverage is even better than the first go around.

Pope Benedict XVI

The former Joseph Ratzinger of Germany has been elected Pope Benedict XVI. He who enters the conclave as Pope, leaves as...Pope, apparently.

From around the 'sphere:

Andrew Sullivan is very, very unhappy. Just one excerpt:

And so the Catholic church accelerates its turn toward authoritarianism, hostility to modernity, assertion of papal supremacy and quashing of internal debate and dissent. We are back to the nineteenth century. Maybe this is a necessary moment. Maybe pressing this movement to its logical conclusion will clarify things. But those of us who are struggling against what our Church is becoming, and the repressive priorities it is embracing, can only contemplate a form of despair. The Grand Inquisitor, who has essentially run the Church for the last few years, is now the public face. John Paul II will soon be seen as a liberal. The hard right has now cemented its complete control of the Catholic church. And so ... to prayer. What else do we now have?

The Moderate Voice gives us some background and also appears nervous about the status of dissent in Benedict's reign.

The Political Animal excerpts a portion of the Washington Post's profile, emphasizing his opposition to abortion and "liberation theology."

Professor Bainbridge thinks the coverage is biased.

E.J. Dionne called the pick in advance, so his column came out this morning.
Erica Walter gave the extended defense of Ratzinger a few days back.

I must say, I'm at least somewhat surprised by the profoundly negative reaction by American liberals (and in Sullivan's case, non-liberals too). I, for one, am willing to give Ratzinger a chance. I think it is telling that the Vatican has elected two straight bona fide intellectuals now, which to me is always a good thing. One of my friends asked me why I was so excited about Ratzinger, who after all, is "pretty conservative." I said that I was never all that hopeful for Pope Kerry I, and as long as we had a thoughtful, sensitive, and dedicated Pope, I'd be happy. I won't shy from being critical of the new Pope. But I won't rush to judgment either. He has some large shoes to fill, but he may very well be up to it.

50 Cent Does Passover

For Passover, I give you the new, revised, ghettoized Seder.

What is with me and rap adaptations?

Saints and Heroes

Iraq'd brings us word of the tragic death of Marla Ruzicka, a humanitarian worker killed by a suicide bomber while working in Iraq. There are all too few humanitarian workers in Iraq today, and unfortunately they live in a state of constant danger from the very populace they are trying to help. Even in this praiseworthy group, though, it appears Marla went above and beyond the call of duty. And unlike many on the idealistic left, Marla was explicit in affirming the good that our soldiers do in Iraq, a fact made more impressive since one of her pet projects was reimbursing innocent victims of US attacks (mistaken intelligence or collateral damage).

"To Marla, the U.S. had simply incurred a responsibility to take care of Afghans and Iraqis, and she took it upon herself to ensure that we lived up to our burden. She also stood up for the troops who aided the Iraqi people and who helped her carry out her mission. After Marine General James Mattis remarked that "it's fun to shoot some people," Marla wrote to The New York Times, "I have worked with many of our servicemen who have helped me assist innocent civilians injured accidentally by American forces. It is not fair that their acts of kindness and care are misrepresented." Insisting on basic human dignity was the imperative for Marla, whether it was the dignity of the soldier or the civilian."

Marla started off as an opponent of the Iraq war, originally in Baghdad with the virulently anti-war Code Pink group. Yet once the war started, rather than returning home to yell and scream about how awful the United States is, she realized that the greatest good she could do would be to help people. Help victims, help innocents, and help rebuild. What Marla taught us was that we have an obligation to the people of Iraq and Afghanistan. We can yell at each other until we are blue in the face about whether we should have gone, or should have stayed at home. None of it will change the fact that we are there, and that millions of lives now depend on our benevolence. America must rise to the challenge.

The Moderate Voice rounds up coverage. Marla's organization, Civic Worldwide, is certainly worthy of your support, regardless of whether you fall on the liberal or conservative end of things.

Just Add Nicotine

How do you bring Western values to the Arab World? Just make them addictive.

Thanks to The Moderate Voice

I just want to say thanks to The Moderate Voice for its very kind words. As this blog approaches its one year anniversary (this June!), it is wonderful to gain accolades from such a note-worthy site as TMV. I still remember the first time that anybody who wasn't in my immediate circle of friends read The Debate Link--I was so excited I bounced around for hours. Being linked to by one of the heaviest hitters on the net is a step beyond anything I could have ever imagined.

Thanks to everybody who's written, emailed, and otherwise contributed to make this blog the best it can be. I couldn't have done it without you. And for everyone's benefit, I present the self-selected "Best of The Debate Link" link set, as a homage to all y'all.

If you are going to read anything by me, read this set of pieces on the War on Terror. I'd be arrogant if I said they were seminal, or particularly excellent, or anything like that. But I do think they raise points I want to see discussed, and it is a rare opportunity to get that discussion. So, the posts are:
Statecentrism and the War on Terror and Left Cross. They articulate what I feel are fundamental flaws in the way conservatives, and the US in general, conceptualizes and fights the war on terror.

And the best of the rest...
On Conservative Abuses of Power:
Crossing the Line
Uncivil Procedures
On Foreign Policy:
Calm Like a Bomb
War of Liberation
Humanitarian Intervention
On Gay Rights:
Values Based Debate
Another Step Back
Gay Adoption
On Genocide:
Not on my Watch
It's Only Genocide Part II
Deaniacs on the Warpath
On Law:
Original Sins
Diplomatic Justice
Defending Detainees
Revisting Booker Already
On the Liberal Academia:
Where to Professor Zywicki?
Novelty and the Liberal Academia
On Philosophy:
Blinded by Mirrors: Fetishizing Our Own Oppression Parts I and II On Politics:
The Bland Leading the Bland
On Religion:
Playing the Grinch
Which Witch?

Thank you all, blog long, and prosper!

The Real Problem

Every year since 1985, the State Department has published Patterns of Global Terrorism, which, among other things, measures the growth and contraction of terrorist activities around the world. Pretty important, right? Well, according to the Bush administration, only if it gives you the answers you want to hear. If, for example, the report says that terrorism is at its highest point since the report began, then the only logical solution is to stop publishing the report.

This fits two observable patterns about the Bush administration. First, it has either no clue or no interest in how to measure what "winning" the war on terrorism means. Second, it confirms that for the Bush administration, truth is far more threatening than terror. And for those of us who take seriously the dangers posed by al-Qaeda, Bush's lack of seriousness in facing it is the real problem facing the nation today.

The Moderate Voice gets the hat tip on this one. Media Lies and Dean's World have more.

Obama-philia

Ah, Barack Obama. Is there anything he can't do?

I've said it before, and I'll say it again. I don't like politicians. I find them to be insensitive, power-hungry, often corrupt, and the few that aren't actively working against the public interest are usually too stupid to even know what the public interest is. Barack Obama is one of a very few politicians who can inspire me; who restores my faith in this lovely system we call democracy. If America has any sense whatsoever, this man will be President one day.

Taking the "Jew" out of "Judeo-Christian"

The Daily Kos reports that many Jews aren't happy with being lumped together into some amorphous "Judeo-Christian" concept to engage in demagogic attacks on the judiciary.

These are the people who make me proud to be Jewish. Way to go, and maybe next time radical Christian fundamentalists will remember who they speak for, and who they don't.

Muller KOs Vieira

So most folks are now familiar with conservative activist Edwin Vieira's call for Stalin-like tactics against federal judges. UNC Law Professor Eric Muller responded by calling for a federal investigation, on the grounds that it is at least a potential threat against the judiciary (which is a crime). Vieira then posted a comment on Eric's site saying that wasn't what he meant at all, and it was "character assassination" to suggest otherwise. And Muller obliging takes the bait to smack Vieira down again.

This is the voice of the modern Republicans. Their lust for power knows no bounds.

Activist Governors

Time to add to the list: Activist Judges, activist journalists, activist legislators, and now activist governors.

The immortal Family Research Council, in an ironic twist I'm sure eludes them, is praising the Oregon Supreme Court and blasting the Oregon state governor. As I blogged, the State Supreme Court ruled that same-sex marriages were barred under a constitutional amendment passed by voters in 2004. However, the Court specifically expressed no opinion as to whether civil unions, which were not barred by the amendment, would be permissible (required?) under the Oregon constitution. So the governor of the state has indicated he'd be willing to recognize civil unions as an alternative to marriage, so as to guarantee gay citizens their full rights under law. The FRC's response?

Yesterday, the Oregon Supreme Court unanimously nullified 3,000 "same-sex marriages" conducted a year ago in Multnomah County, saying, "The County did not have authority to issue the licenses for the marriages in question." The court noted that Oregon voters approved a constitutional amendment last November that defines marriage as between one man and one woman. When the people are given a voice on this important issue, judges cannot help but acknowledge the will of the people and the rule of law. The people of Oregon have clearly supported marriage as a sacred institution. Oregon Governor Ted Kulongoski (D), in an end-run move around the people, seeks to impose civil unions on the citizens of Oregon. Such a move only leads to a devaluation of traditional marriage and goes against the intentions of Oregon voters who passed the marriage amendment...The Oregon Supreme Court..."get[s] it" the people define our culture, and the people overwhelmingly support traditional marriage. [emphasis added]

Damn those activist governors, getting in the way of the unelected judiciary! It's time we teach those democratically elected tyrants who's really in charge of this country!

How Appealing has done an incredible job rounding up coverage of the Oregon case. Check it out if you want more.

Heh

To borrow from the immortal words of the Instapundit.

The Onion makes my day. What do people think about Tom DeLay? A snippet:

"I heard Tom DeLay's blood was in the water and the sharks were circling him, but unfortunately, it turned out to be a metaphor."

Ask and Ye Shall Receive

The stellar new blog Prawfs Blawg notes the passage in Connecticut of Civil Unions legislation which grants gay couples virtually all the same rights as heterosexual married couples (Balkinization points out the one niggling exception). So, they ask, since this bill was passed via a democratic branch of government, how will the far right flame this bill? As they put it:

"Query: The theocrats have attacked VT and MA court opinions as judicial meddling in political questions. I wonder how they will attack this one? Perhaps they will finally admit to the real issue: the culture wars have nothing to do with principles like states' rights or judicial activism. Rather, it is all about politics, and as soon as those principles are no longer useful, they will cast them aside and find some new reason to criticize legislation supported by the majority."

Admit they have no principles? Haha, don't be silly! The Family Research Council instead argues that a bill passed through the democratic legislature isn't really democratic at all:

"The Family Institute of Connecticut and the Connecticut Catholic Conference recently announced the results of a jointly commissioned poll which shows that seventy-six percent of Connecticut residents want the chance to vote on a constitutional amendment defining marriage in Connecticut as the union of one man and one woman. The Connecticut house should reject the senate bill and Governor Jodi Rell (R) should veto any civil union legislation that reaches her desk. If legislators are fearful of defending the cornerstone of society, then they should let the citizens have an opportunity to do so by voting on an amendment to the state's constitution defining marriage and its benefits as between one man and one woman.

You got that? The new standard is, if it isn't in a referendum, it isn't really democratic. And now along with our activist judges and activist journalists, we can add activist legislators as well. How's that for a principle?

Which Witch?

The 4th Circuit Court of Appeals released its ruling in Simpson v. Chesterfield County Board of Supervisors today. Sometimes, there are cases where one disagrees with the outcome as a matter of policy but finds it reasonable as a matter of law. This case was not one of them.

Simpson deals with prayers given at meetings of, you guessed it, the Chesterield County Board of Supervisors. Essentially, the board has a big list of religious groups, mostly churches (given the location of the county) but also synagogues and mosques. The County then sends out invitations to the lot of them, and allows any respondees to give invocations on a first come first serve basis. The suit came when Simpson, a Wiccan, asked to give an invocation. The county refused her, with their attorney saying "Chesterfield's non-sectarian invocations are traditionally made to a divinity that is consistent with the Judeo-Christian tradition." How the county can simultaneously argue its being non-sectarian and mandate its prayers stay within the "Judeo-Christian tradition" eludes me. In any event, Simpson sued, asking that the court either declare the system of prayers an unconstitutional establishment of religion, or, alternatively, declare that denying her request specifically discriminates against her on the basis of religion and is therefore unconstitutional.

In addressing the first claim, Judge J. Harvie Wilkinson, correctly in my view, established Marsh v. Chambers as the binding precedent and affirmed that legislative prayer, in the abstract, was not unconstitutional. Wilkinson, incidentally, is reportedly on Bush's shortlist for a Supreme Court spot, making this opinion particularly disheartening. In any event, I personally do not think Marsh is particularly good law, but the 4th Circuit is bound to it and its analysis makes sense. I have no real quarrel with the first part of the ruling.

Where the opinion really begins to go wrong is when it dismisses Simpson's second claim--that the admission of only clergy compatible with Judeo-Christian norms--still contains no Establishment Clause violation. The Court's analysis here ranges from the offensive to the merely incoherent. In Marsh, Nebraska hired a Presbyterian minister for 14 years to preside over prayers in the legislature. The Court here reasoned that if hiring one minister from one denomination did not violate 1st amendment restrictions, then certainly selecting many pastors from many faiths wouldn't. But this is patently absurd. For example, imagine that the county wanted to commemorate racial equality. It might select one person, say a noted civil rights leader, and have her give a speech every year, or month. In this situation, the race of the speaker (specifically, the fact that the county was only representing the views of one race) would be irrelevant. However, if the county instead selected many speakers, then systematically excluded those of a particular race (say, Native Americans), the racial discrimination would be clear. In that situation, the fact that having many speakers seems more inclusive than having only one masks--but does not eliminate--the reality that the county was blatantly engaging in racial exclusion. Similarly, in this case, the county expressly informed Simpson that her petition to give an invocation would be denied because her religion was not part of the dominant tradition. Simpson is not trying to make the county an "object of constitutional condemnation" for its inclusiveness, she is pointing out that the county's inclusiveness is a facade, it "includes" only those religions which the county considers to be sufficiently mainstream to have something worthwhile to say. That is a determination that neither Marsh, nor any other case, permits.

The opinion only goes downhill from there. Where the court moves from being illogical to plain offensive is when it implies that the Judeo-Christian tradition, and only the Judeo-Christian, has transcendental appeal that, in contrast to the cultlike Wiccans, everyone can relate to.

In seeking to invalidate the Chesterfield system, Simpson effectively denies the ecumenical potential of legislative invocations, and ignores Marsh's insight that ministers of any given faith can appeal beyond their own adherents. Indeed, Marsh requires that a divine
appeal be wide-ranging, tying its legitimacy to common religious ground. Invocations across our country have been capable of transcending denominational boundaries and appealing broadly to the aspirations of all citizens. As Marsh and other cases recognize, appropriately ecumenical invocations can be "solemnizing occasions" that highlight "beliefs widely held."

We cannot adopt a view of the tradition of legislative prayer that chops up American citizens on public occasions into representatives of one sect and one sect only, whether Christian, Jewish, or Wiccan. In private observances, the faithful surely choose to express the unique aspects of their creeds. But in their civic faith, Americans have reached more broadly. Our civic faith seeks guidance that is not the property of any sect. To ban all manifestations of this faith would needlessly transform and devitalize the very nature of our culture. When we gather as Americans, we do not abandon all expressions of religious faith. Instead, our expressions evoke common and inclusive themes and forswear, as Chesterfield has done, the forbidding character of sectarian invocations [internal citations omitted].

Nowhere in the opinion does it justify, or even attempt to explain, why Simpson's faith cannot be "wide-ranging, tying its legitimacy to common religious ground." The Court here is caught in a bind: Either Simpson's Wiccan faith shares this common ground with Judeo-Christian faiths, in which case she should be allowed to stake her claim to it same as any other religious person, or her faith doesn't share common ground, in which case it isn't common ground by sectarian ground "common" only to the religious majority. The Supreme Court has itself said legislative prayer that "have the effect of affiliating the government with any one specific faith or belief" are impermissible (Allegheny County v. ACLU, 492 U.S. 573, 603 (1989)). I'd say that it is precisely this paradox which undermines Marsh, but regardless of whether it does that or not, it certainly destroys the Court's opinion here. Skipping over that inconvenient problem, the 4th Circuit asserts that "when we gather as Americans, we do not abandon all expressions of religious faith," happily ignoring the fact that it has just forced one American to do just that.

Oregon Rules Against Same-Sex Couples

The Supreme Court of Oregon has issued its opinion in Li v. Oregon. It ruled that same-sex marriage was banned in the state as a result of the ballot initiative approved by Oregon voters last election, and that the same-sex marriage licenses granted by Multnomah County prior to the election were beyond the scope of county's power and were also invalid.

This case is relatively narrow in effect, since Oregon passed an anti-gay marriage constitutional amendment and since, like in California, the entity which granted the marriage licenses wasn't really granted that authority under state law. One thing the Court expressly did not do was opine on whether the exclusive benefits of marriage--being available only to heterosexual couples--represented a violation of the Oregon constitution. That was the original ruling of the trial court, which the Supreme Court said was untimely. Hence, it still could be argued in future cases.

DeLay Sits Down With The Washington Times

This Interview of Tom DeLay by the Washington Times is just chock-full of quotable material (damn liberal media!). My favorites:

On media reports of his ethical improprieties:

Somebody ought to ask the New York Times why they're shopping an op-ed piece. I mean, that's activist journalism. Somebody ought to look at the organizations and ask the New York Times, the Washington Post, the L.A. Times, Time, Newsweek, AP why they're spending all these resources they are, who they talked to ... are they collaborating with all these organizations that are funded by George Soros and his heavy hitters, and do these organizations ever talk to each other? Of course they do, they have people that are on the same boards. I mean, different boards but same people.

Activist journalism? Sounds like somebody's found a new buzzword.

Then there is this gem:

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.

So is "frequently," but you don't hear me hesitate to use it.

How about the role of the Courts? What is it that causes DeLay's vociferous opposition? Over to you:

"I blame Congress over the last 50 to 100 years for not standing up and taking its responsibility given to it by the Constitution. The reason the judiciary has been able to impose a separation of church and state that's nowhere in the Constitution is that Congress didn't stop them. The reason we had judicial review is because Congress didn't stop them. The reason we had a right to privacy is because Congress didn't stop them."

Right to Privacy? Judicial Review?!? This is what DeLay is crusading against? I suppose that it's good he's put it out in the open.

Thanks to Wonkette and Kos for tips. The Moderate Voice also has a nice post on Mr. DeLay up.

We Created You...

And thus, Tom DeLay seems to think, we can destroy you (the "you" in this case being the American Court system). The New York Times reports Tom DeLay is ordering the Judiciary Committee to investigate the rulings on the Terri Schiavo case, and recommend possible legislation in response.

Mr. DeLay was not specific about what legislative changes, if any, he would like to see emerge from the Judiciary Committee's review. But in announcing that he had asked Representative F. James Sensenbrenner Jr., a Wisconsin Republican and the committee chairman, to examine the actions of federal judges in the Schiavo case, Mr. DeLay said the House had previously passed legislation limiting the jurisdiction of the courts and breaking up the United States Court of Appeals for the Ninth Circuit, a bill that died in the Senate.

"We set the jurisdiction of the courts," Mr. DeLay said. "We set up the courts. We can unset the courts."

Lovely sentiments. I'd remind everybody that Representative Sensenbrenner was the guy who said "There does seem to be this misunderstanding out there that our system was created with a completely independent judiciary", but at this point we're just par for the course.

I'm guessing this bill probably factors into DeLay's plans somewhere.

UPDATE: I suppose when you think that the judiciary is more dangerous than al-Qaeda this sort of thing makes sense.

Filibusters are Bad! No, Good!

The Family Research Council might want to make up its mind.

What's my position, you say? Well, I'm moderately swayed by the Mickey Kaus/Rick Hertzberg school of thought: filibusters are only okay for judicial nominations, not just any old bill. After all, as Hertzberg notes, bills can be repealed, but judges are forever (or at least for life). The stakes are higher. Filibusters force judicial nominations to the center, whereas without them the President has little or no incentive to not pick an ideologue (a problem especially acute when one party controls the whole of government, and outright catastrophic when that party controls the entire government even though it has only a very narrow mandate). Perversely, the branch of government which should be most zealously guarded against radicalization is, in many ways, the most vulnerable to it. Kaus explains that

"you need the filibuster to force...compromise. When the the Senate votes on ordinary legislation, a President usually has to moderate his proposals to please the various factions within his own party even if (or, rather, especially if) that party is the majority party. President Bush's immigration plan has run into opposition from his party's right wing, for example, while his Social Security plan makes many Republican moderates queasy. Neither plan would make it through the Republican Senate intact even if filibusters were outlawed. But when it comes to Supreme Court nominations, the lingering tradition--however misguided--of deference to the president's selection makes radical choices likely to command majority party support when, as now, the president's party controls the Senate. The only way to force a consensus candidate, in that case, is to give the minority party an effective veto by way of the filibuster."

None of these things apply to run of the mill bills and resolutions. From a purely pragmatic perspective, I find Nathan Newman and Matthew Yglesias to be very compelling on how the filibuster is harmful to liberal interests in general. The exception, it seems, is on liberal social issues. Newman and Yglesias make great points about how liberal entitlement programs such as Social Security and Medicare can survive a legislative nuclear war untouched--the sticker being getting them passed. However, on social issues (such as stopping egregious "Defense of Marriage Acts" from passing), I don't think the liberal position is on all that steady ground, without some tools in the toolbox of the minority to back them up. So I'll label myself undecided on the merit of the filibuster for non-judicial bills. In any event, judicial nominations occupy a unique and special place in our constitutional scheme. They require more careful and deliberative debate than do other bills, and should be treated accordingly.

Other great posts on this topic have been made by Legal Fiction and The Decembrist

When Cats Attack

I haven't really been all that interested in Wisconsin's move to allow cat hunting (if you're really interested in the story, check out The Moderate Voice for some links and a good summary). But it does give me an excuse to link to Obsidian Wings, whose mascot is perhaps the best irony in response to the story. Just go for a second. Oh, and if they hadn't already put up the slogan they're using, I'd steal for my site. As it is, I settled for making it an away message. But it is hilarious.

First Target

Now that the right has figured out what to do with the "imperial judiciary," the question becomes who will be the first target.

Orin Kerr makes the case for...Justice Scalia!

In other news, my latest Carleton Progressive column is online, featuring a defense of Scalia. The article is entitled "Everything in Moderation," and it defends the use of the filibuster and other "obstructionist" tactics by political minorities.

Now it's Chafee's Turn

Kos reports that Rhode Island Senator Lincoln Chafee (R) has joined Rick Santorum and Christopher Shays in questioning DeLay's ethical strength.

Meanwhile, The Moderate Voice links to a Christian Science monitor report on The Hammer. It notes that under both historical and contemporary trends, DeLay is in big trouble. TMV picks out the best quote, from a Democrat's perspective:

"But in private, some senior leaders are saying it's only a matter of time before the most powerful Republican in Congress is forced from office. "Democrats should save their money. Why murder someone who is committing suicide?" said a senior GOP lawmaker, on condition of anonymity.

It's only a matter of time...

Terms of Debate

Legal Fiction makes an excellent point on how liberals need to steal conservative terms to use for their own ends. I kind of started doing this, when I attacked those who said Democrats supported a "culture of death" by challenging the attackers to speak out against gun violence, inadequate healthcare, and lack of opportunity in the inner cities. But LF fleshes out the argument in far more detail.

Check it out.

Less on Courts

Former ACLU Chief and current NYU Law Professor Burt Neuborne has more on the theme I hit upon in my first Progressive Column, namely, that liberals need to depend less on Courts and more on politics if they truly want to achieve their objectives. Money quote:

"In recent years, many progressives appear to have lost the habit of following up judicial victories with grassroots movements. Simply put, too often the appeal to courts is treated as the end of the political process, not its beginning...

The battle over abortion rights has never developed an effective movement designed to explain why abortion is fundamentally fair. The high moral ground was ceded to opponents who stressed its moral complexity. The progressive response was an abstract defense of individual autonomy that winds up sounding hedonistic, together with hairsplitting distinctions about when human life begins. That may be fine for courts, but it does not persuade ordinary people. In the early 1990s Ginsburg, by then a judge on the Court of Appeals for the DC Circuit, recognized the problem and urged that Roe be defended politically, not on its own terms but as a matter of necessity in order to permit women to function equally in the society. She was shouted down by lawyers afraid of weakening the precedent. It's not too late to take her advice."

Thanks to Eugene Volokh for the link.

Teaching Israel

Crooked Timber points me to (and partially dismantles) this screed by Michigan History Professor Juan Cole. Cole dovetails in and out of two contradictory positions, seemingly without realizing it. First he says:

Historians are unkind to nationalism of any sort. Nineteenth century romantic nationalism of the Zionist sort posits eternal "peoples" through history, who have a blood relationship (i.e. are a "race") and who have a mystical relationship with some particular territory. The Germans, who were very good at this game, called it "blood and soil." Nationalism casts about for some ancient exemplar of the "nation" to glorify as a predecessor to the modern nation.

Quite right. You won't find any disagreement from me on this. But Cole needs to remember his subject. Jews aren't a race in the classic, blood-bond sense of the term, but rather because they are culturally and in many ways ethnically different. The community is one of self-identification, for which membership is open and voluntary. There are black Jews, white Jews, Arab Jews, all kinds of Jews. No mythification is necessary. But just as most claims of biological connection are fictive, the cultural connection is very, very, real, and deeply ingrained in what it means to be Jewish. Cole's standard storyline of racial construction doesn't work here, but he tries to force the master anti-colonialist narrative onto a group it really doesn't apply to. The implication of this narrative is that Israel (being the result of fictive and oppressive nationalist forces) doesn't deserve to exist (why any nation-state--Palestinian, Saudi Arabian, French, Chinese--deserves to exist is left unsaid).

Then Cole says:

"[A]nti-Israeli"...generally...means any criticism of Israel. (You can criticize Argentina all day every day till the cows come home and nobody cares in the US, but make a mild objection to Ariel Sharon putting another 3500 settlers onto Palestinian territory in contravention of all international law and of the road map to which the Bush administration says it is committed, and boom!, you are branded a racist bigot. And if you dare point out that Sharon's brutality and expansionism end up harming America and Americans by unnecessarily making enemies for us (because we are Sharon's sycophants), then you are really in trouble."

The distinction, Professor Cole, is that criticism of Argentina never carries the subtext that the state has no right to exist, a point you ratify mere paragraphs earlier. I'm sorry, but you can't apply a standard to Israel and nobody else, and then whine when we treat your criticisms differently than those of anybody else.

Either Cole agrees Israel has the right to exist on the same terms as any other nation (in which case Cole's first point is simply biased), or he doesn't, in which case he can't complain when Israel supporters believe that his criticisms might not come from a objective stance.

Crack in the Wall

Pennsylvania Republican Senator Rick Santorum has come out and said that DeLay should "come forward and lay out what he did and why he did it and let the people then judge for themselves." Though certainly not the harshest of terms possible, it represents perhaps the first outward crack in the wall of support for the Hammer by a high profile Republican. Moderate Connecticut Representative Chris Shays went much farther than that though, saying "he is an absolute embarrassment to me and to the Republican Party," and promising to never vote for him as Speaker of the House.

The Daily DeLay has more.

Crossing the Line

This is getting out of hand. First we had Tom DeLay giving a quasi-threat to the judiciary (which, to be fair, was quickly repudiated by Dick Cheney) saying they would have to "answer for their behavior." Then John Cornyn offered to "explain" the causes behind violent attacks on the judiciary, blaming it on "activist judges." Again, to his "credit," he later backpeddled from what might have been seen as tacit encouragement of violence. Then a group of extremist GOP Senators introduced a bill that would essentially destroy the independent judiciary. A spokesperson for James Sensenbrenner (R-WI) claimed that "There does seem to be this misunderstanding out there that our system was created with a completely independent judiciary" (link: Kos). But nobody has explicitly called for violent assaults against the court system. Until now.

First a little background. The quote I will be showing you in a moment was spoken at a conference entitled Confronting the Judicial War on Faith, organized by The Judeo-Christian Council for Constitutional restoration. I was curious about the "Judeo" aspect of it, so I called the organization (this was before the conference started) and asked how many of the speakers were Jewish. At first, the women I spoke to denied that was relevant, but when I pressed the issue (pointing out that at a Judeo-Christian Conference it should be somewhat pertinent to know who was speaking from a Jewish perspective and who was speaking from a Christian perspective), she admitted she did not know and said she'd try and get someone to call me back. Needless to say, they never did. A glance at their speakers list showed only three people who could be affirmatively identified as Jewish: Rabbis Aryeh Spero and Yehuda Levin, plus Rabbi Daniel Lapin who did not speak but was on the executive committee (the full list of speakers can be found here).

For the most part, the conference appeared to just engage in the gratuitous judge bashing that has defined the extremist right. However, the Washington Post reports lawyer-author Edwin Vieiria saying the following:

"Not to be outdone, lawyer-author Edwin Vieira told the gathering that Kennedy should be impeached because his philosophy, evidenced in his opinion striking down an anti-sodomy statute, "upholds Marxist, Leninist, satanic principles drawn from foreign law."

Ominously, Vieira continued by saying his "bottom line" for dealing with the Supreme Court comes from Joseph Stalin. "He had a slogan, and it worked very well for him, whenever he ran into difficulty: 'no man, no problem,' " Vieira said.

The full Stalin quote, for those who don't recognize it, is "Death solves all problems: no man, no problem."" [emphasis added]

The Post reporter says that "Presumably, Vieira had in mind something less extreme than Stalin did and was not actually advocating violence." I disagree, and I see no other way to interpret his comments. This man is approvingly quoting Joseph Stalin's theories on personnel management, and suggesting that he holds the same views. That view is that we execute any judge who disagrees with our policies.

Oh, and one more thing:

This was no collection of fringe characters. The two-day program listed two House members; aides to two senators; representatives from the Family Research Council and Concerned Women for America; conservative activists Alan Keyes and Morton C. Blackwell; the lawyer for Terri Schiavo's parents; Alabama's "Ten Commandments" judge, Roy Moore; and [Tom] DeLay, who canceled to attend the pope's funeral.

Tom DeLay. Of course. Who here is surprised to see him affiliating with this group. Just so everybody knows, the Representatives at the Conference were Lamar Smith (R-TX) and Todd Akin (R-MO), and the Senators who had aides present were Tom Coburn (R-OK) and Orrin Hatch (R-UT).

Every Church, every Synagogue, every man of faith, and certainly every elected official (especially those present at the conference) has a moral duty to condemn these comments in the strongest of terms. The radical right's war on America is going too far, and there must be some conservatives of principle willing to speak out against it.

UPDATE: Welcome, Political Animals! While I have you here, I figure we might as well make some noise. Here is the contact info for Rep. Akin, Rep. Smith, Sen. Coburn, and Sen. Hatch.

Other groups present at the conference include
Vision America
Rabbi Yehuda Levin
The Home School Legal Defense Association
AmeriSearch
Joyce Meyer Ministries
Texas Justice Foundation (talk about a misnomer!)
Culture of Life Foundation
Coalition for a Fair Judiciary
The Judicial Confirmation Network
Christian Legal Society
Conservative Caucus
Alliance Defense Fund
Concerned Women for America
Christian Law association
Institute on the Constitution" (specifically represented by Constitution Party Presidential Candidate Michael Peroutka)
Cardinal Newman Society
Rabbi Aryeh Spero of Caucus for America
King for America
Eagle Forum (Phyllis Schlafly's outfit)
Family Research Council
American Conservative Union
Heritage Foundation
Leadership Institute
and most ominously, The US Catholic Bishop's Conference's pro-life secretariat was in attendance.

Let's send a message to these groups that they need to reject violence as a legitimate political tactic.

UPDATE 2x: Is That Legal's Eric Muller joins the chorus.

Roberts on the Hamdan Panel

I've blogged twice before on the Hamdan case. In the most recent post, I linked to an Opinio Juris opinion that claimed the Appeals Court panel seemed--unfortunately--to be leaning against Hamdan's claims. Now, Powerline informs us that one of the judges on said panel is none other than John Roberts, my number two choice amongst the judges on Bush's "short list" for the Supreme Court. His opinion in the Hamdan case will go far in determining whether I keep that view.

Out of the Closet

Andrew Sullivan points to the courageous story of a young man who received a purple heart in Iraq and now wants to stay in the military. The catch? He's gay, and his admission comes as a direct violation to don't ask don't tell.

Conservative groups go insane over these sorts of things, but it is beyond dispute that "don't ask don't tell" is hurting the military badly in the war on terror. Conservative opposition to ending "don't ask don't tell" is frankly unpatriotic, and they should be ashamed to say "you cannot serve your country because we fear you."

As Conservative Godfather Barry Goldwater once put it: "It shouldn't matter whether you're gay or straight. All that matters is whether or not you can shoot straight."

Briefs in Hamdam

Opino Juris gives us links to the briefs in Hamdam v. Rumsfeld. Georgetown Law Professor Neal Katyal wrote the brief for Hamdam, and collected these Amici. Briefs for the government can be found here and here.

Unfortunately, Opinio Juris seems skeptical that Hamdam will prevail. That's too bad, but this case is probably headed for the Supreme Court anyway.

Hamdan to the D.C. Circuit

Powerline points us to the news that Hamdan v. Rumsfeld (briefly summarized by me here) is being heard by a D.C. Circuit Court of Appeals Panel today (April 7th). Mr. Mirengoff describes the opinion as "a hyper-technical analysis driven by the judge's personal belief that the government's position 'can only weaken the United States' own ability to demand application of the Geneva Conventions to Americans captured in armed conflicts abroad.'" Unsurprisingly, I disagree. He doesn't elaborate on what is "hyper-technical", but I assume Mr. Mirengoff is referring to the the judges constant distinction between prior cases where there was explicit congressional authorization for the President's actions, and this case where there wasn't. Obviously, that is a critical difference. As to the Court's "personal belief" that the government's position will weaken our position to demand reciprocal Geneva Convention guarantees, that isn't just some disembodied statement of preference by the judge. Rather, the Court expressly notes that the position the US now rejects--that non-state actors are bound by Geneva guarantees--we earlier affirmed, indeed demanded, when Somali Warlords captured a US officer in 1993. The judge isn't substituting his own policy preferences, he's merely preventing the US from changing the rules in the middle of the game.

The Hamdam case doesn't deal with when "an al Qaeda member is on trial," as Powerline suggests. It deals with whether "an al Qaeda member is on trial," for without proper judicial procedures, we cannot affirmatively establish that he is the terrorist George W. Bush proclaims he is (If I recall the facts of this case correctly, Hamdan acted as a driver for some al Qaeda leaders, but professed he was but a menial laborer who had no actual ties to the organization either ideologically or structurally). Powerline places far too much stock in President Bush's "finding" that Hamdam is an enemy combatant, for if there is one thing we've learned from the Guantanamo Bay saga, it's that we shouldn't trust those determinations without some judicial oversight to ratify it.

New Column

Guess what everybody? I've landed a column for the brand new Carleton Progressive. I'll mostly be focusing on legal issues, but it can span anything and everything. My first one is up already; it's called "Is Roe a Friend or a Foe to the Pro-Choice Movement?" Check it out y'all, and check out the site.

In theory, the column is slated for every Tuesday, but I'll post a notice on the site when a new one goes up. In the mean time, check out the other contributors as well. It looks like this is going to be really cool.

Gut Shot

Six and a half months ago, I wrote the following on why I was voting for John Kerry:

"The more I think about it, the more I'm voting for Kerry because of all the reasons Bush strategists say I should vote for Bush. I want a President who stand solidly against terror, will aggressively move to target them, knows the importance and utter paramounce of homeland security, and above all, does not subordinate the safety of American people to score quick political points. On all of these fronts, President Bush has objectively been a disaster, and Sen. Kerry appears to have a remedy. That's enough for me."

A week after that post, I gave the following pre-debate advice to Senator Kerry, telling him to ask the following questions directly to President Bush at the first opportunity:

"The War on Terror is too important to be subordinated to Politics, Mr President. The American people deserve to know: Why have we held back in Fallujah? Why'd you allow House Republicans to kill a bill to increase Chemical Plant Security? Why are you cutting funding towards securing loose nuclear material, so terrorists can't build a dirty bomb? Why'd you threaten to veto desperately needed Homeland Security spending, right after 9/11? Why'd you oppose the creation of 9/11 commission? Why'd you oppose the creation of the Department of Homeland Security? The security of the American people is worth more than a soundbite, Mr. President. It means having a real plan, that exists in the real world, and the American people deserve real answers to these questions."

The underlying theme behind all this is that Democrats need to show the American people that Bush's anti-terror policies are often all bark and no bite. Republicans simply aren't philosophically suited for the type of battles and actions the war on terror forces us to undertake, ones that undercut the old statecentric models that the Bush administration still desperately clings to. A Democratic attack that emphasizes how Bush's policies fail even on their own terms is much more effective than weak-sounding polemics about the value of multilateralism and the UN.

So, while it is a few months too late, I was pleased to see Kenneth Baer argue that Democrats should oppose the nomination of John Bolton to the UN ambassadorship on precisely those grounds.

"In his current position at State, Bolton's job is to lead the effort to stop WMD proliferation. Yet less weapons-grade nuclear material was secured in the two years after September 11 than in the two years before it. North Korea has gone from having two nuclear bombs to having as many as eight. (As former 9/11 Commission staffer Warren Bass put it, "two bombs is a deterrent; eight is a commodity.") Iran's mullahs have stepped up their efforts to go nuclear, and the United States appears impotent to stop them. And Bolton has been credited with killing the Biological Weapons Convention.

Not only have Bush and Bolton cut funding for the Nunn-Lugar program to halt the spread of nuclear materials and expertise from the former Soviet Union, Bolton also has failed to finalize a Plutonium Disposition Agreement with Russia that could lead to the elimination of 70 tons of weapons-grade plutonium. And Bolton's biggest accomplishment in this area, the Proliferation Security Initiative--an effort to intercept shipments of WMD technology and delivery systems--looks better on paper than in practice because Russia and China are not participating.

To be sure, part of this line of argument is that Bolton and the Bush administration have acted rashly and unilaterally in a way that has made gaining trust and cooperation when it comes to nuclear proliferation and fighting terrorism more difficult. But this point should not be made on its own; it should be made in the context of how Bolton and Bush have faltered in the fight on terror. Rather than saying that Bolton has contempt for the United Nations and doesn't play well with others, Democrats should say that during the last four years, Bolton has failed to do his job of stopping the spread of WMD, making America more vulnerable to a devastating terrorist attack."

The Bush administration has gotten to talk the talk for long enough on terrorism. It's time for Democrats to make them walk the walk as well.

By way of Kevin Drum, we learn that moderate Republican Lincoln Chafee (R-RI), who's looking awfully vulnerable in 2006, is making murmurs about not supporting Bolton. The new liberal-hawk blog Democracy Arsenal gives us a top 10 list on why to oppose Bolton. This is a battle we can win, folks.

UPDATE: Kevin Drum and Steven Clemons add more to it. Looks like another major official, a Republican intelligence appointee, is coming out against Bolton, and hard.

Who You Calling "Seedy"?

House Majority Leader Tom DeLay (R-TX) blasted as "seedy" media reports that detailed him paying over $500,000 over the past four years to his wife and daughter. Presumably he also believe the Washington Post's report on his lobbyist-funded junket to Russia also is "seedy," though the article doesn't specifically say. I'm inclined to agree with Rep. DeLay: after all, who knows more about acting "seedy" than he does?

The pressure is building. Check out The Daily DeLay for the latest.

UPDATE: Legal Fiction is back after a short retirement, and he's apparently not rusty at all. Two hard-hitting posts on the good Representative coming at you!

Self-Defense and "The Reasonable Racist"

Florida just passed a law which would codify "the right [of a citizen] to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so, to prevent death or great bodily harm to himself or herself or another."

I'm very conflicted about this. On the one hand, it does seem to be somewhat reasonable. Someone firing a gun in self-defense from a criminal assault should not have to fear criminal prosecution. That's just common sense, and it should be codified in law.

On the other hand, I just can't read the bill and get Jody D. Armour's "reasonable racist" hypothesis out of my head ("Race Ipsa Loquitur: Of Reasonable Racists, Intelligent Bayesians, and Involuntary Negrophobes," 46 Stan. L. Rev. 781 (1994)). She tells the following hypothetical:

It is a stormy night in a combined residential and commercial neighborhood in a predominantly white upper-middle-class section of a major city. The time is 10:30 p.m. Although most of the fashionable shops and boutiques in the neighborhood have closed, the neighborhood bank contains an automatic teller. The machine is located in a lobby between two sets of glass doors; the first set opens directly into the bank and is locked at closing each day, while the second leads to the public sidewalk and remains open twenty-four hours.

A middle-aged resident of the neighborhood enters the bank's lobby, inserts her bank card into the machine, and requests $200. As she waits for her transaction to be processed, the woman suddenly notices a figure moving directly toward the lobby from across the street. Focusing her full attention on the approaching figure, she notes that the person is a young man (at most twenty-something); that he is wearing a trench coat with an upturned collar and a tarpaulin hat pulled down even with his eyes (perhaps in deference to the pouring rain); and that he is black.

The trench coat-clad young man glances down the deserted street as he reaches the lobby and then enters, pushing his right shoulder against one of the swinging glass doors. As he pushes the door open, he unbuttons the collar of his trench coat with his right hand and reaches into the coat in the direction of his left armpit. With his eyes focused on the space beneath his coat into which he is reaching, he takes hold of something and begins to withdraw it.

Panic-stricken at the image before her and conscious of the rhythmic clicking of the automatic teller counting out ten fresh clean twenty-dollar bills, the woman pulls a pistol from her purse and levels it at the entering figure. As the young man looks up from his coat, he sees the pistol trained on him and reflexively thrusts his right hand - which now contains a billfold retrieved from his inside breast pocket - out in front of him while shouting at the woman not to shoot. Perceiving what she takes for a handgun thrust in her direction, together with the man's unintelligible loud shouts, the woman shoots and kills the black man.

In claiming self-defense, the woman may argue that the black victim's race is relevant to the reasonableness of her belief that she was about to be attacked. Her claim might be based on any of three distinct arguments. First, she could claim that it was reasonable to consider the victim's race in assessing the danger he posed because most people would do so. She might introduce studies or anecdotes demonstrating the frequency with which Americans make assumptions about an individual's character on the basis of race, and argue that she should not be punished for basing her response on the widely held belief that blacks are more prone than whites to be criminals. Second, she could claim that, independent of typical American beliefs, her consideration of the victim's race was reasonable because blacks commit a disproportionate number of violent crimes and therefore pose a greater statistical threat. In framing this argument, she would show that quantifiable statistical discrepancies exist between the crime rates of blacks and nonblacks, and she would assert that she knew of, and reasonably relied on, these statistical probabilities when deciding to shoot.

Finally, if the woman had previously been violently assaulted by a black individual, she might claim that her overreaction to the victim's race was reasonable in light of her earlier traumatic experience. One recent case accorded legal weight to such "negrophobia" by holding that an ordinary person assaulted by an anonymous black individual might develop a pathological fear of all blacks sufficient to justify an award of disability benefits. Invoking the same psychological proposition, our defendant might claim that her negrophobia is relevant to the reasonableness of her reactions to the supposed assailant.

Incidents such as the "New York Subway Vigilante" case (People v. Goetz, 58 N.Y.2d 96) and the Rodney King verdict suggest that courts--and especially juries--would take such "reasonable racist" arguments very seriously. Even if only on the subconscious level, many people still identify with a deep-seated fear of blacks, especially young black men. Allowing for violent assaults based on the "reasonab[e] belie[f] it is necessary...to prevent death or great bodily harm" would give "reasonable racist" claims far more weight. One could certainly argue that the women in the hypothetical, if not acting reasonably, was not necessarily acting totally unreasonably either. It was a dark, stormy night, she was frightened, his billfold looked like a gun in the heat of the moment. However, I am very skeptical that a black defendant in a similar case would be granted the same courtesy. In criminal proceedings, black men, whether the victims (such as in the Rodney King or Goetz case) or the accused, are uniformly portrayed as "savages," "vultures," "larger than life," possessing "superhuman strength," or other such descriptions designed to emphasize their danger and threat. One of the officers in the Rodney King case, for example, testified that King was a "monster-like figure akin to a Tasmanian devil." These views are in congruence with deeply ingrained social stereotypes, and thus are extremely difficult to counteract at trial. The net effect is to ratify latent racism in society, and make it more likely that white-on-black crimes will go unpunished. Essentially, I believe that the women in this story would stand a very good chance of acquittal, but if the races were reversed, then the defendant would not. That type of racial disparity disturbs me greatly.

Cornyn Backpeddles

Senator Cornyn "clarifies" his earlier remarks connecting "judicial activism" to judicial violence. Andrew Sullivan hits it home:

"Good for him. Just ignore the blather about being taken out of context. He wasn't. He contributed to anti-judicial emotionalism; and he has retracted his inflammatory remarks."

Actually, reading Cornyn's latest remarks, I'm struck by how little he's budged. I don't think anybody actually believes Cornyn endorses attacks against the judiciary. The problem, as I saw it, is that his rhetoric is precisely that which stirs up the violence he's talking about. So when he says

"We should all be concerned that the judiciary is losing the respect that it needs to serve the American people well. We should all want judges to interpret the law fairly – not impose their own personal views on the nation. We should all want to fix our broken judicial confirmation process,"

I have to wonder if he really recognizes the problem at all.

When he says "our judiciary must not be politicized," of course, then I just die of an irony overdose.

The Pen is Mightier

At this point, the GOP can't decide whether it wants to "explain" or repudiate violent actions against judges. While it makes up its mind, however, a group of GOP senators have decided to do with the pen what might be somewhat unseemly (read: treasonous) if done with the sword.

Richard Shelby (R-AL, and someone who should know better), has introduced the Constitutional Restoration Act of 2005, which, among other things, prohibits courts from enforcing the constitution (tip: The Moderate Voice). Nothing like Orwellian bill titles. The summary of the bill is as follows:

Amends the Federal judicial code to prohibit the U.S. Supreme Court and the Federal district courts from exercising jurisdiction over any matter in which relief is sought against an entity of Federal, State, or local government or an officer or agent of such government concerning that entity's, officer's, or agent's acknowledgment of God as the sovereign source of law, liberty, or government.

Prohibits a court of the United States from relying upon any law, policy, or other action of a foreign state or international organization in interpreting and applying the Constitution, other than English constitutional and common law up to the time of adoption of the U.S. Constitution.

Provides that any Federal court decision relating to an issue removed from Federal jurisdiction by this Act is not binding precedent on State courts.

Provides that any Supreme Court justice or Federal court judge who exceeds the jurisdictional limitations of this Act shall be deemed to have committed an offense for which the justice or judge may be removed, and to have violated the standard of good behavior required of Article III judges by the Constitution.

So basically, the second paragraph forces judges only to look to US law, and the first section requires them to ignore the First Amendment of said US law. How I wish they'd make up their mind.

Co-sponsors of the bill are Sens. Brownback (R-KS), Burr (R-NC), Lott (R-MS), Burns (R-MT), and Craig (R-ID). Rep. Robert Aderholt (R-AL) has introduced identical legislation in the House, with 24 co-sponsors. Meanwhile, Kos reports that Senate Majority Leader Bill Frist (R-TN) is distancing himself from the loony claims of DeLay, Cornyn, et al, saying that "I believe we have a fair and independent judiciary today." It remains to be seen whether that was spoken in praise or as a lament, but Frist's reaction to the Shelby's obscene bill will speak volumes.

Krugman on the Liberal Academia

Now that I am a blogosphere resident expert on liberal biases in academia, I feel compelled to keep abreast of the latest developments.

Paul Krugman puts his thoughts down in today's New York Times. Orin Kerr responds, Mark Kleiman rejoins. Honestly, though, I think the best takedown of Krugman's arguments was done by Stephen Bainbridge (also here in blog post form) to a similar column by Jonathan Chait. But what do I know?

Cornyn on Judicial Violence

First, an apology. I meant to add a caveat about my last post, regarding Tom DeLay's alleged threat to the judiciary. From my reading of the quote, it sounded more as if DeLay was threatening retribution in the more biblical sense of the term, as in the judges will go to hell, rather than a physical threat. Still pretty deplorable, but not rising to the level of rhetoric we've been hearing about it. Upon rereading it, the quote is pretty ambiguous, I can see it being interpreted either way. Anyway, here is the context, in case y'all were wondering. "This loss happened because our legal system did not protect the people who need protection most, and that will change. The time will come for the men responsible for this to answer for their behavior."

Texas Senator John Cornyn (R), however, requires no such caveat. In a speech on the Senate floor, he said the following:

"It causes a lot of people, including me, great distress to see judges use the authority that they have been given to make raw political or ideological decisions. The Supreme Court has taken on this role as a policymaker rather than an enforcer of political decisions made by elected representatives of the people.

I don't know if there is a cause-and-effect connection, but we have seen some recent episodes of courthouse violence in this country...And I wonder whether there may be some connection between the perception in some quarters, on some occasions, where judges are making political decisions yet are unaccountable to the public, that it builds up and builds up and builds up to the point where some people engage in, engage in violence. Certainly without any justification, but a concern that I have."

Now let's be clear. It is men and women like Cornyn who have been stirring up this sort of anti-republican (small "r"), quasi-revolutionary rhetoric. Cornyn tells more in this quote than he'd like to admit. It is precisely is disdain for checks and balances that ratifies the violent behavior he purports to condemn (or in this case, "explain"). Dozens of Texas militiamen hear his hyperbolic rhetoric about how the republic is collapsing and stand ready to take arms in assault of the judiciary. Of course he doesn't explicitly endorse it. I'm sure he doesn't even privately agree. But his rhetoric acts as a powerful form of encouragement, and his continuance of it even after death threats and bounties on the judge in the Schiavo case, is simply deplorable.

The Nashua Advocate (which appears to be online-only, I can't tell how legitimate it is), calls for Cornyn's resignation. Personally, I think Cornyn's political career should have permanently ended after his role in the Tulia, Texas travesty. For those of you who don't know about that, a rogue cop in Tulia arrested almost half the town's black population on trumped up drug charges. Despite virtually no evidence (the cop had no audio or video evidence, took notes on his arms and legs, and repeatedly misidentified defendants), they were nearly all convicted, with sentences of up to 99 years in jail. Cornyn, then the Attorney General of Texas, gave the office Texas' "lawman of the year" award. After a year in prison, virtually all of the defendants were eventually exonerated. But in Texas, incarcerating innocent black people is grounds for a promotion, not punishment.

Daily Kos has a roundup of links, including The Left Coaster, America Blog, Atrios, and US Representative John Conyers (D-MI).

Other folks weighing in include Talking Points Memo, The Moderate Voice, Kevin Drum, and Brad Plumer.

Voice of Reason

Of all the people...Dick Cheney has been a sober voice in the Schiavo fallout, repudiating Tom DeLay's alleged threat to judges that they will "answer for their behavior" by allowing her to die. The specific quote by Cheney:

"I don't think that's appropriate. I may disagree with decisions made by judges in any one particular case. But I don't think there would be much support for the proposition that because a judge hands down a decision we don't like, that somehow we ought to go out — there's a reason why judges get lifetime appointments."

Maybe support for DeLay in Republican circles is shallower than once thought?

Oh, and Cheney once again denied he had any aspirations to run for president, saying "I'm not a candidate, don't plan to be a candidate. If nominated, I will not run. If elected, I will not serve. Is that the Shermanesque statement? I said on television someplace the other day, not only no, but hell no."

Too bad. It's looking more and more like Cheney is a voice of reason in the modern Republican party (even Europeans concede: he's evil but smart!.

Thanks to The Moderate Voice for the heads-up.

The "D" stands for "Dictator"

The Houston Chronicle rips into Tom DeLay (who is based in the Houston area), exposing him as the corrupt, power-hungry madman he really is. Here's how it starts:

"Although Tom DeLay portrays a believable Third World dictator, it is time that he stopped trying to transform the United States into his own ideological fiefdom.

And it is time for him to stop sputtering ill-tempered threats, not only at the judiciary but also at the U.S. Constitution, which he repeatedly has sworn an oath to uphold."

Looks like the voters of the 22nd district are inclined to agree too.

Conservatives are circling the wagons around DeLay, which, longterm, I think will hurt them more than it helps them. Bull Moose will be thrilled, The New Republic depressed. For me, anything is a victory as long as we escape from the Grand Rove Party.