Legal Fiction

__________

Number of days gay marriage legalized in Spain, Canada - 1

Number of days Earth not destroyed - 1

James Dobson - "It will destroy marriage. It will destroy the Earth."

__________

When I was watching Bush last night, I had one of those rare moments of detached curiosity. I wasn’t upset, I was more curious in a sociological sense. I found myself asking why exactly I couldn’t believe in what he was saying – what is it about me or my demographic that makes me so utterly incapable of believing in his speech. I’m not talking about his honesty (or lack thereof). I’m talking about the grand abstractions of freedom, duty, country, patriotism that he invoked. Why are these ideas so uncompelling to me? They’re all good things. I probably should find them compelling. But I don’t. It’s not that I’m hostile to these abstract ideas – I just don’t find them intellectually compelling.

I suspect that a good deal of my demographic (young knowledge workers/students) feel the same way. Our generation, you see, is cursed by the tyranny of irony. Or perhaps blessed. I’m not sure. But that’s what I want to talk about today. And oddly enough, I want to offer my theory about how Bush blew his chance after 9/11 to free us from irony, which Michael Stipe (REM singer) once called “the shackles of youth.”

I have a love/hate relationship with irony. As for the hate, I hate that every conversation with anyone under 30 has to be dripping with sarcasm. Look around the blogs – almost every blogger that I really like expresses their thoughts through a filter of sarcasm. It’s not cool to have deeply felt sincere beliefs. Jedediah Purdy – once called the next Walter Lippman; currently MIA – took up this theme in 2000 at the height of the Internet Boom. Here’s a good 2000 NYT article on the book that he wrote at age 25:

Irony, [Purdy] wrote, is a corrosive, world-weary habit of mind, "a quiet refusal to believe in the depth of relationships, the sincerity of motivation, or the truth of speech -- especially earnest speech." He singled out Jerry Seinfeld, "irony incarnate," as a symbol of all that is wrong with our culture, but he could have just as easily chosen Bart [Simpson] or, for that matter, Dave Eggers.

I agree with that. But the thing is, I love Seinfeld and the Simpsons (and probably Dave Eggers if I ever read him – the title chafed me). And the other thing is, I find irony more compelling than earnestness. Earnestness strikes me as insincere – it always seems like a projection of some abstraction that is contrived to make me feel a certain way. And I just can't believe in it.

For instance, let’s compare Friends and Seinfeld. One thing that annoys me to no end about Friends is the sappiness. It kills me – absolutely kills me (this is true of the Simpsons sometimes too). And the thing that I find most refreshing about Seinfeld is the complete and utter lack of even the slightest bit of earnestness. Larry David said that the two ironclad rules for Seinfeld were “no hugging” and “no learning.” That’s why you never saw the episode where George gets cancer, or Elaine just needs a friend, or any of that stuff. It’s refreshingly amoral and unearnest, bordering on black comedy (e.g., George being happy at Susan’s death).

The same is true in the political realm. I often find myself repelled by earnestness and drawn to sarcasm. That’s why I prefer, say, Matthew Yglesias to Daily Kos. Earnestness is “out” these days. That’s why you hear so much anti-hippy sentiment or 60s hostility among young, liberal, well-educated students and knowledge workers (see, e.g., South Park). It’s not that we find their ideas so repellent, it’s that we’re repelled by their earnest devotion to abstractions and collective illusions that we simply can’t believe in anymore.

For instance, I’m not anti-patriotic. But I don’t get all weepy eyed about patriotism either. When I think of 9/11, I’m moved not by the abstract notion of “country,” but by the concrete reality of the individuals who experienced it. I’m always far more moved by the individual fireman whose existence ended in the act of saving another than about the attack of “evil” upon our “country.” I’m always more moved reading about the individual family who lost a father than hearing Bush or Glenn Reynolds invoke abstract patriotism.

The appeals to “country” and “patriotism” don’t fire me up because they are not compelling concepts to me. They are arbitrary abstractions devoid of concrete meaning – just like Hemingway said in A Farewell to Arms (“Abstract words such as glory, honor, courage or hallow were obscene beside the concrete names of villages . . .”). Just like the Seinfeld characters' sense of irony prevented them from getting sappy about love, so too am I and much of my generation unmoved by concepts we find sappy, insincere, and without meaning. Call it the twilight of the idols, if you will.

There are two ways to think about this. First, you could think we’re a bunch of America-hating liberals who don’t believe in “good things” like honor and duty and patriotism and country and God. I think a better way to think about it is that no one yet has offered an intellectually compelling, non-sappy version of these ideas for us to believe in. It’s not that we’re hostile to things that so many conservatives hold dear. It’s that we’ve yet to hear anyone who can make them compelling. They all seem too easy, and too insincere. In this sense, ironic detachment is a blessing. If the concepts we’re being asked to believe are not worth believing in (e.g., the sappiness of Friends), then irony and sarcasm are appropriate defense mechanisms. To quote Michael Stipe again (same song), "withdrawal in disgust is not the same as apathy."

The danger, of course, is that irony becomes so routine that it literally becomes a religion or “myth” of its own – in the sense of a being a mental construct through which we interpret the entire world and express ourselves within it. And that’s where I think Purdy was right. For many of us – myself included – our sense of irony is so ingrained that we refuse to believe in earnestness at all. This is paralyzing. And it makes talking to young people absolutely exhausting – myself included. You have to be “on” with your witty sarcasm 24/7. The way to fix all of this is not to force yourself to believe that which you cannot believe, but to find or construct new versions of these concepts that are intellectually compelling. Universities should spend more time constructing and less time deconstructing.

Ironically enough, I think Bush had the opportunity to completely change the Seinfeld worldview in the aftermath of 9/11. To me, 9/11 had precisely the opposite effect on liberals and intellectuals than World War I. World War I destroyed a world of abstractions and replaced it with a deep skepticism and cynicism from which the West has never recovered. 9/11, by contrast, almost did the opposite. It almost replaced a deeply skeptical and cynical worldview with one in which abstractions were rehabilitated.

For instance, I found the idea of “patriotism” more compelling in the months after 9/11 than at any other time of my post-Republican life. Same deal with the ideas of duty and sacrifice. For a brief window of time, these concepts became vital again. Before Iraq, I think liberal intellectuals were in the process of forming and believing in new, intellectually-compelling versions of patriotism – a New Patriotism, based not on mindless nationalism but a shared sense of collectiveness and interdependence inspired by an external threat. It was a remarkable time – I’m glad I got to experience it.

But now it’s gone. And I suspect it won’t come back again in my lifetime. And that’s because Bush pissed it away and exploited it to go fight his war. That was his original sin and that’s the root of why people hate him. He betrayed our unity, and exploited our national tragedy for political purposes (he did it again last night, but no one really cares anymore).

But he could have been great. More critically, he could have attracted a lot of young liberals for whom 9/11 was a formative event. He – a Republican – had a chance to create a New American Patriotism, one that was compelling to cynical Seinfeld liberals who were in deep introspection and were willing to give earnestness a second chance in the aftermath of the tragedy. In short, he had an opportunity to free us from the Tyranny of Irony. He could have given us something to truly believe in and get behind.

But he blew it, just like he blows everything else. What he has done is reaffirmed why we must remain ironic, even though we’re exhausted by irony. Bush has used these abstract concepts to support a political agenda and a war of choice that many of us see as wrong and potentially catastrophic. In a world where abstract notions of “freedom” and “patriotism” are used to support things like the Iraq War or torture, what choice do you have but irony and detachment from the concepts that make these things possible? Rejecting these simplified abstractions is not an exercise in immorality or amorality anymore, but one of conscious rejection, and even morality. That's why you can't expect us to get behind Bush's call for patriotism and freedom - he has shown again and again that his purpose for using these concepts is to further a polarizing political agenda. You may agree with that agenda, but don't insult my intelligence by challenging my lack of enthusiasm for Bush's abstractions as being insufficiently patriotic or supportive of freedom. Consider me twice shy.

So maybe 9/11 did end the Age of Seinfeld after all. It didn’t end irony, but maybe it transformed amoral irony into an act of principled morality.

But then again, maybe things are changing. The 2004 election certainly seemed more earnest - and more importantly, earnest opposition and political activism seemed more compelling. So maybe we are in the early stages of a constructive revival. I hope so. But until then, I'm sticking with Seinfeld.

__________

global war on terror
war reached our shores on September 11, 2001.
The terrorists who attacked us
September the 11th
this nation will not wait to be attacked again
murderous ideology that took the lives of our citizens in New York and Washington and Pennsylvania
before they attack us at home
when it comes to us
a central front in the war on terror
the words of Osama bin Laden
terrorists
terrorists
terrorists who behead civilian hostages
savage acts of violence
if we forget the lessons of September the 11th
bin Laden
defeat the terrorists
they respect no laws of warfare
they tried to shake our will on September 11, 2001
terrorists want to attack our country and kill our citizens
September 11, 2001

9/11 iraq 9/11 iraq 9/11 iraq 9/11 iraq 9/11 iraq
9/11 iraq 9/11 iraq 9/11 iraq 9/11 iraq 9/11 iraq
9/11 iraq 9/11 iraq 9/11 iraq 9/11 iraq 9/11 iraq
9/11 iraq 9/11 iraq 9/11 iraq 9/11 iraq 9/11 iraq
9/11 iraq 9/11 iraq 9/11 iraq 9/11 iraq 9/11 iraq
9/11 iraq 9/11 iraq 9/11 iraq 9/11 iraq 9/11 iraq
9/11 iraq 9/11 iraq 9/11 iraq 9/11 iraq 9/11 iraq

September the 11th.
Iraq

__________

Via Volokh, I saw that Phil Carter of Intel Dump is going to be deployed to Iraq. I just wanted to say good luck and godspeed. And if you, like me, are a fan of Intel Dump, I hope you'll send him some words of encouragement.

__________

Wow – big day for the Platonic Guardians. Lots of good stuff from the inner sanctum of the holy temple.

Grokster

As I’ve explained before, the broader implications of Supreme Court opinions are almost always more important than the individual case itself. This general rule of thumb applies in spades to Grokster. To me, the case had very little to do with the record companies versus little Grokster, and everything to do with the record companies versus Microsoft – and it’s not entirely clear who won.

It’s easy to conceptualize Grokster as a David vs. Goliath, or as the little guy vs. the man. But it’s much more than that. The record companies have no love for Grokster, but what they really wanted was a test that would have allowed them to drag Microsoft (and other “software” entities) or Dell (and other “hardware” entities) into court. Stopping Grokster certainly doesn’t hurt, but the record industry could never obtain real damages from Grokster for lost royalties. But man oh man, Microsoft is a completely different story.

The issue in Grokster was defining the proper test for secondary liability for copyright infringement. No one was claiming that Grokster was the primary infringer (that honor belongs to Grokster’s customers – maybe you). But given the technology of P2P file-sharing, it’s almost impossible to devise a test of secondary liability that reaches Grokster, but doesn’t simultaneously reach software and hardware producers. For instance, let’s say that the Court established secondary liability for the sale of any product known to be used for copyright infringement. Under this test, liability would extend not only to Grokster, but to Microsoft for its Windows software, to Apple for its iPod, and to Dell and the PC industry. (Microsoft is getting into P2P, by the way – yet another sign that file-sharing is here to stay). These are big, deep pockets.

Another possible secondary-liability standard was the cost-benefit test offered by Judge Posner in Aimster. If Posner had his way, technology that could potentially be used to infringe could result in liability if its producer could have taken cost-effective steps to reduce the infringement. In practice, this would probably mean that filters would have to be installed in all software and hardware products.

It’s all very messy, and there’s a good argument that the Court should have left Grokster alone not because Grokster isn’t doing bad things (it is), but because any remedy would be far worse – and would chill technology. In a sense, Grokster had been hiding behind Microsoft.

Given the stakes, the Court did about as well as it could have done in navigating these icebergs. The Court went out of its way to set a very high bar for secondary infringement, which results only if there is intent to distribute for the purpose of copyright infringement, and that intent must be demonstrated by “clear expression or other affirmative steps taken to foster infringement.” Even if you know your technology will be used to infringe, that’s not enough. There has to be “clear expression” of an intent to promote for infringement – which is a high bar to meet. Of course, what the Court was trying to do was to extend liability to Grokster, but restrict it from extending to the hardware and software industries – which would chill innovation and encourage lawsuits.

Only time will tell if the Court was successful. On the one hand, I think this opinion was really bad for the Groksters of the world – and I don’t think that changing a marketing strategy will help. I don’t think, though, that this new test was enough to make Microsoft liable for, say, P2P software within some future version of Windows.

But . . . sometimes liability is irrelevant. Sometimes plaintiffs only want a test that will get them to discovery (i.e., compelling another party to turn over documents). That’s the way a lot of these cases between big corporations work. The real fight is over the motion to dismiss, or the summary judgment motion (these are preliminary stages in litigation that cause the dispute to end before trial actually begins). If you lose there, then corporations have to go through the thankless task of reviewing and turning over millions and millions of documents that they would prefer to keep private. That’s why parties often settle after an unsuccessful motion to dismiss or a summary judgment motion even if they think they’ll win. They know discovery is coming and they want to avoid it. [The settlement of the initial Michael Jackson suit was probably based on the same sort of logic.]

My fear with Grokster is that it gives the record companies just enough to drag Microsoft into court and get discovery, even if it’s not enough to establish its liability. Souter’s test is a fact-intensive one. Accordingly, even if Microsoft would never be found liable, I suspect that well-paid record industry attorneys could get the case to the discovery stage – in large part because the standard turns so heavily on the facts and subjective intent – which of course, as any record industry attorney would tell you, requires reading tons and tons of internal Microsoft emails.

The beauty of the old Sony test (or at least the interpretation of Sony) was that it was clean. If the technology had a non-infringing use, that was that. It would be tough to get to the discovery stage under this test. But under the new test, my fear is that plaintiffs will be able to harass software and hardware producers with the threat of discovery given that the new standard is so fact-intensive. But as I said, only time will tell.

Ten Commandments

I don’t have a lot to say here. It seems like the Court decided to make this a fact-intensive analysis without clear bright lines. That seems right to me, but I really could care less. The Ten Commandments is one of those stupid symbolic issues that couldn’t matter less and has absolutely no relevance and no effect on anyone’s – or any society’s – life or morals. I draw a strong line between school prayer and the Ten Commandments. When the fight over school prayer comes, I’ll join in. Until then, I’ll just watch idiots let themselves be fooled into supporting leaders who take strong stands on matters of irrelevant symbolism while doing nothing to improve their lives.

And speaking of idiots, if yesterday’s Scalia dissent doesn’t show that originalism is a fundamentally dishonest facade for political preferences, nothing does. Jack Balkin nails him – so I’ll just direct you there (via Volokh). Apparently, according to Scalia, the original understanding was that the Establishment Clause drew a line between monotheistic religions and everything else. That seems right – after all, I think 1789 was the year that Madison coined the term “Judeo-Christian-Islamic” given the strong tolerance of Jews and Muslims in 18th century American society. I’ll let Professor Balkin have the last word:

Once again, I must insist, as I have before in other posts, that although Justice Scalia repeatedly claims that his theory of adherence to text, original understanding and tradition is superior because it constrains judges from imposing their personal views into the Constitution, it does nothing of the sort. This case is a perfect example. Justice Scalia has particular views about religion and about what sorts of government invocations of religion should or should not be regarded as offensive or as marginalizing people with different religious beliefs than his own. These political beliefs produce the outcome he takes in this case.

__________

I'm going to be traveling for the next couple of days for work so posting will be erratic - assuming I get a chance to post at all. While I'm away, those who are interested in the long-overdue conviction of Edgar Ray Killen might enjoy this post I wrote back in January tying in Killen with Faulkner's Absolom, Absolom!

__________

It's certainly a bit rich to hear Andrew Sullivan lamenting the polarization and partisanship surrounding the war and 9/11. But he's been writing good stuff lately, so I'll leave him alone.

If you want a dose of even greater hypocrisy, today's David Brooks column takes the cake. To hear a neocon subtly poke fun at "French Enlightenment" philosophy is about as ironic (or "ironical" for you Waiting for Guffman fans) as it gets. Here's our resident skeptic poking fun at action in the name of abstractions:

But Sachs is a child of the French Enlightenment. At the end of his new book, "The End of Poverty," he delivers an unreconstructed tribute to the 18th-century Enlightenment, when leading thinkers had an amazing confidence in their ability to refashion reality so that it would conform to reason.

. . .

The Bush folks, at least when it comes to Africa policy, have learned from centuries of conservative teaching - from Burke to Oakeshott to Hayek - to be skeptical of Sachsian grand plans. Conservatives emphasize that it is a fatal conceit to think we can understand complex societies, or rescue them from above with technocratic planning.

Hmmm. Refashioning reality to conform to abstract reason. Rescuing complex societies with technocratic planning. A lack of skepticism of grand plans. Where have I seen that going on lately? Oh well, I'm sure it will eventually come to me.

__________

"You caint do nuthin' with 'em" - that's a good Southern phrase that people should use more often. It's partially idiomatic in that people sometimes use it as a reluctant compliment - or an expression of resigned admiration. You have to say it while you're shaking your head and half-smiling. For example, the Pistons might be saying today, "You caint do nuthin' with that Tim Duncan." It sort of means, "damn, that guy is good." That doesn't exactly capture it, but it's close enough.

Anyway, I think it applies to the Clintons. They're good - and they win. And even though I don't support Hillary right now for the nomination because I think she'd lose, part of me is thinking - "of course she'd win. She's a Clinton. They sold their souls and everything works out for them in the end." And I've been watching in half-awe and half-amusement while Hillary does all the right things, and more importantly, how all the right things are happening for her.

Exhibit A - the conservative repudiation of Ed Klein. I think I mentioned that I saw Adrian Wooldridge (Economist writer and author of The Right Nation) speak recently. He thought Clinton would be an excellent candidate in large part because of her ability to drive her opponents so crazy that they overreach and ultimately make her look more moderate. The reaction to the Klein book makes me think he may be right.

Think about it - Ed Klein writes a book of absolute vicious lies about Hillary (Media Matters has the transcript from a great interview with Klein on Al Franken's show - via Atrios). This seems like pure Drudge, Rush, Fox News material - just like the Swift Boats. But Klein goes so overboard with his accusations that even raving dobermans like John Podhoretz and Michelle "Concentration Camps Are Good" Malkin are distancing themselves. Well, they're not just distancing themselves. They're denouncing it. Here's "J-Pod," my new best friend:

This is one of the most sordid volumes I've ever waded through. Thirty pages into it, I wanted to take a shower. Sixty pages into it, I wanted to be decontaminated. And 200 pages into it, I wanted someone to drive stakes through my eyes so I wouldn't have to suffer through another word.

The result of all this is that Hillary comes away stronger. She's got pro-concentration camp bloggers coming to her side. And when the real attacks come in 2007, every attack can be deflated by lumping them together with Klein's.

But Hillary is doing all the right things too, from a political standpoint. She voted pro-war across the board. She got on the Armed Services Committee. As The Hill explained, she's has successfully cooperated with very conservative Senators on a number of issues. And many of them are now seeking her out to add some glory to their favored legislation.

And even though you can almost taste the thick syrupy political calculation in all of this, you can't help but reluctantly admire it. You shake your head at it, but you know it's the sort of thing that winners do.

I'm not on board yet. But I can't help but admire her political savvy and this growing sense that perhaps I'm underestimating her chances for success. After all she's a Clinton. And Clintons win. You caint do nuthin' with 'em.

__________

I’m going to have to side with the conservative Justices and agree that Kelo was a bad decision. There’s literally a ton of commentary on the Internets, so it’s possible that everything I’m about to say has been said somewhere else. But anyway, I want to make two points: (1) Kelo can be understood as an allocation-of-institutional-power case; and (2) Kelo was wrong as a matter of text.

In case you don’t know, this is an eminent domain case. The city of New London, Connecticut (last visited by me coming home drunk from Foxwoods casino in college) essentially condemned a lot of waterfront property so it could lease it to private developers. The city argued that the developments would help the depressed urban economy.

The constitutional question was whether this was an unlawful “taking.” The Fifth Amendment reads: “[N]or shall private property be taken for public use, without just compensation.” It was an anti-rabble provision in that the framers didn’t want the democratic rabble seizing their property without at least paying them for it. Bottom line, the government can take your land only if (1) it’s for public use; and (2) you get just compensation. The question in Kelo is whether the New London condemnation was for “public use.” The most common examples of “public uses” are for things like national parks or transportation projects. In this case, it was essentially taking land and giving it to a private commercial developer. As bad as the facts sound, you need to try to keep in mind that these cases are about much more than the individual facts (e.g., medical marijuana case).

Anyway, I think Kelo was wrong, but there’s a good argument about why it was right. To me, the best way to understand Kelo is as an allocation-of-institutional-power case. In other words, the question is less about the definition of “public use,” and more about which branch of government gets to be the final arbiter of that question – courts or legislatures/city councils/etc. The best argument in favor of Kelo is simply that this is an issue for elected officials. They know the city or locality in question. They are accountable to voters. They are in the best position – institutionally speaking – to gather evidence about what will or won’t help the public. The other side of this is that courts aren’t that well-equipped to become city zoning boards. Not to mention that it’s almost impossible to come up with a coherent way to distinguish public from non-public uses.

As some of you may have noticed, this is all very similar to the Lopez/commerce clause cases that included the medical marijuana case (Raich). If you’ll remember, I agreed with that case on allocation-of-power grounds. I thought that the legislature should have (in practice) the final say over what is or isn’t commerce, not courts. If you don’t like the law, vote different. There’s no reason that courts have to be the final guardians of all constitutional questions. I’m an old-school turn-of-the-century progressive in that respect - I’m skeptical of judicial power.

Ok – so how I can agree with the medical marijuana case, but disagree with this one. After all, it seems to be precisely the same thing. The Kelo majority is, like the Raich majority, simply ruling that this constitutional provision must be enforced by other branches of government. But this argument won’t work in Kelo, and the reason is because different types of constitutional text are at issue.

This is the most important point I’m going to make – and it gets to the heart of my constitutional jurisprudence. The key difference between Kelo and Raich is that the constitutional text in question in Raich affirmatively granted power, while the text in Kelo explicitly restricted power. This is key. The power to regulate commerce is an affirmative grant of power. And like other Section 8 powers, I think Congress should be the final arbiters of its own Section 8 powers. The takings clause, by contrast, explicitly restricts what the government can do. Here, the Constitution has given unelected courts a license so to speak to police and limit the legislature.

This doesn’t mean that courts still shouldn’t be deferential to legislatures about what is or isn’t “public use.” But unlike in the commerce clause cases, it offends the text to wholly abandon judicial review over takings. I put a lot of weight on the distinction between affirmative grants of power versus restrictions. The text and its ratifiers were sufficiently concerned about unlawful takings that they went to the effort of explicitly prohibiting them. If Congress wanted Section 8 to be policed as tightly as takings or the Bill of Rights, it would have phrased it as a limitation of power – e.g., Congress shall not have the power to regulate matters outside of interstate commerce.

And that’s my jurisprudence in a nutshell – I’m extremely (if not completely) deferential to the legislative branches in all areas except those areas specifically carved out in the text as limitations on legislative authority (bill of rights, Section 9, etc.). In these areas, I’d like the courts to be even more strict than they are. It’s a schizophrenic jurisprudence and one heavily influenced by Justice Hugo Black and Akhil Amar.

One last point – always remember that Supreme Court cases, unlike other court cases, are never really about the facts of the individual case (except Bush v. Gore – the eternal shame of the “strict constructionists”, errr..., equal protection-expanding state overrulers). You must always look to the broader implications of the decision.

In Kelo, they cut both ways, politically speaking. If Kelo had come out the other way, it’s conceivable that it could be used to block the formation of national parks or other public works projects. On the other hand, these condemnation proceedings always fall on the poorest and those with no political power. I give Thomas a lot of shit, so I’ll give him some props for saying this:

[E]xtending the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities. Those communities are not only systematically less likely to put their lands to the highest and best social use, but are also the least politically powerful.

Well said. Frankly, I don’t like the idea of Wal-Mart uprooting people from the homes because it can donate more money to the city council. Destroying their local economy and keeping them in poverty is quite enough, thank you.

__________

I've been giving much thought lately to Iraq - both the war and the way that Democrats need to talk about it. Because of work demands, I can't say as much as I'd like tonight, but hopefully I'll have more to say later in the week. Iraq is still, to me, the nation's fundamental challenge - and we're going to have to live its consequences (good or bad) for a very long time.

As I hope to explain in more detail eventually, I agree with others who think it would be very destructive for the American progressive movement to become "scapegoats" or associated with "defeatism" in the minds of the public. So, whatever stance that Democrats ultimately adopt on Iraq, it needs to be "rooted in the constructive." What I mean is that the stance needs to be presented as a means to the universally-agreed-upon end of success.

The critical point is that as long as your Iraq stance is rooted in the constructive, it doesn't matter what that stance happens to be. You can even argue for withdrawal and not be seen as a stabber-in-the-back and inspire a generation of resentment from the militantly and often mindlessly nationalistic American public.

For instance, for those who opt for withdrawal, that's fine. But the pro-withdrawal people need to go the Yglesias/Carter/Drum route and argue that withdrawal is a means to achieving our mutually agreed-upon end of success. You argue for withdrawal not because America lost, but because withdrawing is the way to accomplish our goal. (Kevin Drum spells out the argument here.)

For those who are not ready to withdraw, Biden may be your man. Via Bull Moose, I read the full-text of his speech and it's the right way to go, assuming you haven't given up and want to get out. If you'll notice, his criticisms are not rooted in "defeatism," but are more constructive. His criticims are less "we lost because of Bush," and more "Bush is preventing us from winning - and here's where we should go from here." Notice the difference? The latter criticism makes it clear that you are voicing your criticism in the context of trying to win. Frankly, I'm not sure that Biden's proposals will work, but he is at least trying.

Yes, it's absolutely absurd to the infinite-th degree that liberals would be blamed for a war they opposed and that was planned and administered entirely by non-liberals. If the war is lost, then Bush - and no one else - lost it. But politics is the world of the is, not the ought.

I don't know where I come down yet. The "withdrawal-for-victory" stance strikes me as a Straussian noble lie. I think that road leads to chaos, but chaos may be unavoidable at this point. My heart is still with Biden. And I hate that Bush has put me in the position of reluctantly wanting to continue a war that I passionately opposed starting. But the truth is we would be abandoning the Iraqi people to civil war and maybe even genocide. But if it's inevitable, it's inevitable. As Phil Carter explains, these questions may get answered for us when our manpower woes really start taking their toll in 2006.

The tiger by the ears - that phrase sums it up better than any other I've heard.

[UPDATE: I hadn't read this when I wrote the post, but this Harold Meyerson column (via Tapped) elaborates on this argument. The idea is that Bush is hanging himself right now - massive anti-war protests would be Karl Rove's wet dream. Here's Meyerson:

These figures already match the polling in the middle and late years of the war in Vietnam -- even though that war was fought with vastly higher casualties and a conscript army. In a series of polls taken in November and December of 1969, the Gallup Organization found that 49 percent of Americans favored a withdrawal of U.S. forces and 78 percent believed that the Nixon administration's rate of withdrawal was "too slow." But there was one other crucial finding: 77 percent disapproved of the antiwar demonstrations, which were then at their height.

That disapproval was key to Nixon's political strategy. He didn't so much defend the war as attack its critics, making common cause with what he termed the "silent majority" against a mainstream movement with a large, raucous and sometimes senseless fringe. When Nixon won reelection in a landslide, it was clear that the strategy had worked -- and it has been fundamental Republican strategy ever since. Though the public sides with the Democrats on more key issues than it does with Republicans, it's Republicans who have won more elections, in good measure because the GOP has raised its ad hominem attacks on Democrats' character and patriotism to a science.

Which is why, however perverse this may sound, the absence of an antiwar movement is proving to be a huge political problem for the Bush administration, and why the Republicans are reduced to trying to turn Dick Durbin, who criticized our policies at Guantanamo Bay, into some enemy of the people.]

__________

So let's see. The House just passed an amendment that would criminalize political speech and dissent. Jeb Bush is using the prosecutorial powers of the state to punish a man for a religious disagreement. The White House is attempting to exert control over the content and operations of national public broadcasting and radio.

The Republican party has lost its everloving mind.

I really don't have anything to add. I mean, hell, what is there to say? None of these actions have even the slightest justification. I don't understand this country sometimes. I really don't.

[UPDATE: The intellectual decline of National Review continues apace (and these are two of the better ones):

Jonah Goldberg:

I don't think there's anything terribly wrong with a flag-burning amendment, but I really don't see the point at this time. . . . Regardless, my favorite solution, if memory serves, was when Louisiana declared it would fine people who beat-up flag burners $25. So a bunch of folks pre-paid the fine and carried the receipts as flag-burning permits.

Ramesh Ponnuru:

I think I'm in Jonah's camp--I don't have strong feelings about the amendment. I lean against it: I'd prefer a federal statute stripping the federal courts of jurisdiction over state governments' bans on flag burning.

I, by contrast, do have strong feelings about criminalizing political dissent on both the state and federal level. But on the other hand, we're not as bad as Pol Pot. So there's really nothing to complain about.

__________

When Chief Justice Fred Vinson (a fellow Kentuckian) died in 1953, Justice Felix Frankfurter famously said that Vinson's heart attack was "the first indication that I have had that there is a God." I thought about that quote when I saw that Bolton had been rejected. While the Senate's rejection of Bolton may not be evidence of God, it provides at least some evidence of a just and benevolent order governing our universe.

Seriously though (though I was serious, sort of), after I heard that Bolton may yet squirm through on a recess appointment, I dug around on these here Internets for information about the constitutionality of recess appointments (here's a good explanatory essay that I'm drawing from today). More precisely, I was wondering whether appointing Bolton would be a constitutionally valid recess appointment under Article II. Even if it is, the bigger point I want to make today is that recess appointments no longer make any sense in 2005.

But first, to the constitutionality of appointing Bolton during "recess" (which is an appropriate word for our third-grade maturity level Congress these days).

There is at least one strong textual argument that a recess appointment of Bolton would be unconstitutional. The Constitution reads, "The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate." Thus, one could argue that recess appointments are only valid if the vacancy arose during the actual recess. If so, Bolton's appointment this summer wouldn't be valid because the post opened before the recess.

As the essay linked to above (the "linkee" for your corporate lawyers out there) explained, this interpretation has been uniformly rejected since at least 1823. But even if this more narrow textual interpretation is actually correct, I'd prefer to leave this particular battle to the Senate and the President. To me, it's a political question that unaccountable courts should avoid.

The more interesting question is whether recess appointments make any sense today as a matter of policy. And that answer is a resounding no. [To prevent the wrath of Brett, I acknowledge that it would require a constitutional amendment to end recess appointments.] As the linkee explained, the rationale of the recess appointment only makes sense under 18th century conditions. In 2005, they are anachronistic, like the quartering troops amendment.

For one, because recess appointments bypass the Senate, they are undemocratic - or at least less democratic than the normal confirmation procedure that requires the "advise and consent" of an additional branch of government. The argument for recess appointments, though, is that you want to ensure that the government can function properly even if the Senate is in recess. This is the cost-benefit analysis - democratic legitimacy versus functioning government.

But even if sacrificing legitimacy was both wise and necessary in the 18th century, it's neither in 2005. In the 18th century, as the linkee explained, legislative sessions were extremely short. The Framers anticipated that Congress would be out of session for the overwhelming majority of the year. You also have to remember the contemporary state of transportation and communication.

In this context, recess appointments make perfect sense. Because Congress was out of session so often, and because it was such a pain to get to DC in 1789, it was better to let the President keep the government running by filling these vacancies. If Congress had a problem with the appointments, it could deal with them at the beginning of its next session. But again, it's worth noting that the Framers preferred to include the Senate. The recess appointment was a necessary evil.

Today, the recess appointment no longer makes sense. Congress is in and out of session all year long now. And obviously, transportation and communications have improved. In light of all this, why do we still need recess appointments? Frankly, I don't see any compelling reason.

One last point - some of you may be familiar with Senator Kennedy's attack on the Pryor recess appointment as being unconstitutional. That raised a different question. The question there was whether Pryor was appointed during a "Recess" under Article II. He clearly wasn't - it was a long weekend. Bush was just being a dick as usual. But even so, I think the 11th Circuit was right to uphold the appointment. This is not an issue that courts should wade into.

And one more "last" point - the constitutionality of judicial recess appointments raises another distinct issue that doesn't come up with Bolton. Because Article III gives judge life tenure, the question is whether a judge without life tenure (a recess appointment) should actually be allowed to exercise "judicial power" under Article III. Larry Solum has a great discussion of the ins and outs of this particular issue for those interested.

__________

And here’s why:

American and Iraqi military forces in Iraq are capturing larger numbers of Saudis, Syrians and other foreign fighters, in a new indication that combatants from outside Iraq are playing a more prominent role in the increasingly violent insurgency . . .

[S]enior American military and intelligence officials told [Biden] privately "about their belief that there had been a considerable increase in the number of jihadists coming across the border, more sophisticated and more capable than a month ago, five months ago, a year ago."

"The mix is changing," Mr. Biden said. " The mix has many more Islamicists, coming across the border, particularly the Syrian border." He said officials told him that "a disproportionate number" of jihadists came from Saudi Arabia.

And USA Today too:

The rise in suicide attacks has prompted concerns that the greatest threat from insurgents may be shifting from former loyalists of Saddam Hussein who have lost political power to religious zealots.

Call me cynical, but I no longer believe that anti-torture arguments that appeal to the innate badness or immorality of torturing (foreign) human beings will ever be enough to stir a majority of the American people to outrage. They simply don’t care. Some even revel in it (that post was sickening even by Powerline’s lofty standards).

But they do care about Americans dying. And more Americans need to understand that Gitmo kills Americans. It – along with torture – should therefore be attacked from the “right” (to the extent that’s a coherent statement – i.e., that there is a “right” and “left”).

I’ve been reading some policy papers (via Yglesias) on anti-terrorism and they all generally agree on three broad principles. To stop terrorism, you have to: (1) kill or capture existing terrorists; (2) prevent the rise of new terrorists; and (3) protect the homeland. It’s remarkably similar to the way you defeat an insurgency, which is to: (1) neutralize existing insurgents; and (2) prevent the rise of new insurgents. Preventing the rise of new terrorists or insurgents includes robbing them of popular support and winning the war of ideas so to speak. [It’s how the Cold War was won – the East Berliners didn’t suicide bomb us, they risked their lives to cross the wall to join us because we won the battle of ideas.]

My gripe with Bush’s approach to both the insurgency and the war on terrorism is that his administration only seems to grasp Point #1. Kill all the insurgents and you win. Kill all the terrorists and you win. But that’s only one piece of the larger puzzle. What people must understand is that we are not facing a finite set of enemies. As an economist might say, the supply of terrorists and insurgents is elastic. It fluctuates as a result of actions that we take.

Anyway, what I’m getting at is this – why do you think it is that foreign religious zealots are suddenly flocking into Iraq? What exactly is it that is motivating them? Evil? Here’s a hint from an NPR interview with the Post’s Glenn Kessler about Secretary Rice’s trip to Egypt:

INSKEEP: One other question. The last few days on this program, we've heard a lot about the image of the United States in the Arab world, the way it's being portrayed in the media. How, overall, is Secretary Rice being received and commented upon as she moves from country to country?

Mr. KESSLER: Well, it was interesting at the speech today she received no applause during the speech, and when she took the questions from the audience, one of the questions that received a tremendous amount of applause was when someone asked, `Isn't it about time that someone apologized for the desecration of the Koran?'

That my friends tells you everything you need to know. And it’s not just the Koran abuse – it’s the perception in the Muslim world that our policies are anti-Islam. Our words may be pretty, but a wise man once said, “you shall know them by their fruits.” And our fruits are rotten – at least from the eyes of Muslims. And Gitmo is a big reason why. If you were a pissed-off young man in the streets of Riyadh, it wouldn’t exactly take Clarence Darrow to convince you that Americans were deliberately assaulting Islam. From our coldly calculated anti-Islam torture, to the recent Koran story, to Gitmo, to our silence in Uzbekistan and Chechnya, to Abu Ghraib, to our failure to investigate or apologize for anything - on and on it goes.

I’m not listing this stuff in the hope that people will come around to a brotherhood of man. These actions cause Americans to die. Gitmo, Abu Ghraib, torture – all of it should be attacked from the “right” because it ultimately kills Americas and is causing us to lose the war in Iraq. Every day that Gitmo is open is another day that we generate outrage against us. And the more the outrage grows, the more likely it is that the outrage will manifest in the form of, say, a new wave of jihadists crossing the Iraqi border to kill American troops. These actions create new insurgents and they create the conditions necessary for insurgents and terrorists to flourish (e.g., public sympathy, resources, safe harbors, etc.). To keep with my iceberg analogies, the insurgencies can be seen as the “superstructure” of broader hostility and discontent.

It’s just like the Frenchman explained to Neo in the second Matrix – You see there is only one constant. One universal. It is the only real truth. Causality. Action, reaction. Cause and effect.

Gitmo is the cause. The new jihadists are the effect. The Koran scandal is the cause. American deaths are the effect. Abu Ghraib was the cause. Losing the sympathies of the Iraqis was the effect. Causality. Action, reaction.

And so when people advertise “I Love Gitmo” shirts, and when people get more outraged about denunciations of torture than torture itself, you should understand that these actions are literally jeopardizing the lives of our troops. Action, reaction.

People in the Cold War knew better. One of the lesser-known forces behind the civil rights movement was the support of Cold War hawks who understood that they were fighting for the public sympathy of the non-white world. They attacked racial injustice “from the right” so to speak.

Anyway, I’m no longer hopeful that you can make Americans care about torture because it’s bad. (I'm a lot less hopeful about a lot of things post-November '04 but that's a post for another day.) But maybe if we can convince them it kills Americans, then maybe we can get somewhere.

__________

Andrew Sullivan:

The good news - no, make that great news - is that the Bush tax cuts have clearly boosted growth and so helped government revenues in the short term. (emphasis mine)

Justin from Southern Appeal:

Supply-side vindication? US deficit shrinks: a vindication for tax cuts? "[A] surge in tax receipts has offered some encouragement."

9:00 PM. Joe is standing outside on a sidewalk holding a banana in his ear when Billy walks by.

JOE: Hey there Billy.

BILLY: Hey there Joe.
Can you tell me
Why ya got a
‘Naner in there fo’?

JOE: To make the sun come up.

BILLY: Oh.

Billy removes a banana from his pocket, puts it in his ear, and takes his place beside Joe.

12:00 AM. Sally walks by Joe and Billy who are both holding bananas in their ears.

JOE: Hey there Sally.

SALLY: Hey there Joe.
Can you tell me
Why ya got a
‘Naner in there fo’?

BOTH: To make the sun come up.

SALLY: Oh.

Sally removes a banana from her pocket, puts it in her ear, and takes her place beside Joe and Billy.

4:00 AM. Sammy walks by Joe, Billy, and Sally who are all holding bananas in their ears.

JOE: Hey there Sammy.

SAMMY: Hey there Joe.
Can you tell me
Why ya got a
‘Naner in there fo’?

ALL: To make the sun come up.

SAMMY: Oh.

Sammy removes a banana from his pocket, puts it in his ear, and takes his place beside Joe, Billy, and Sally.

7:00 AM. Dawn Breaks.

JOE: Everybody! Everybody!
Look and see!
The sun came up
All because of me!

And myyyyyyyy banana.

__________

Work has me pretty tied up today, so I'll doubt I can post anything until later tonight.

On an aside, even though his general argument is probably correct, I suspect Felix Gillette feels a little bit like a jackass this morning after writing this article. (This post will only make sense to people who saw the end of Game 5 last night or keep up with the NBA playoffs).

__________

There's been a lot of back and forth about what the Downing Street Memos really mean or why they're important. What they really show, to me, is simply that there are many unanswered questions that need to be investigated - preferably by a Senate committee with a Republican chair with a conscience (Specter?). And assuming that the administration was determined to march to war from the beginning, I think Yglesias has nailed the most important question that this raises - why the hell did we go there?

But what was the White House after? Why did they do it? We have plenty of evidence that not only were the specific claims the administration made about WMD false (often knowingly so), but also that all of this was basically irrelevant to their actual thinking about why we should go to war. But what were they thinking? . . . Clearly, what we do in Iraq from here is more important than rehashing how we got there in the first place. But we can't even begin to formulate an Iraq policy without confidence that the policymakers are telling us something resembling the truth about what they're trying to do and why.

Nor can we conduct any kind of reasonable diplomacy related to the situation as long as the nature of the situation remains shrouded in mystery and transparent deceptions.

That's the key, isn't it? Why the hell did we go? And it's not an academic exercise - we can't really make policy decisions if we don't what we're trying to do. As Yglesias noted here, one issue is whether we intend to be there permanently or not. And there's a lot to indicate (big military base construction, etc.) that they have intended to do just that from the very beginning. But again, we don't know because they've chosen not to tell us the truth about their thought process - and that's why we need a real investigation.

Personally, to discover the true motives, I think you pretty much have to ignore every public statement made post-9/11 and look at what the main players were saying before 9/11. For instance, I thought the letter to Clinton in 1998 was extremely revealing. It was signed by people like Rumsfeld, Perle, Kristol, Bolton, and Wolfowitz - who really were the driving intellectual forces behind the invasion.

This letter seems to suggest that what they were really worried about was not a threat to America or terrorism - but stability in the Middle East. WMDs were mentioned, but in the context of protecting oil, and our allies (Arab nations and Israel) from Iraqi aggression. Here is the key excerpt:

[I]n the not-too-distant future we will be unable to determine with any reasonable level of confidence whether Iraq does or does not possess such weapons.

Such uncertainty will, by itself, have a seriously destabilizing effect on the entire Middle East. It hardly needs to be added that if Saddam does acquire the capability to deliver weapons of mass destruction, as he is almost certain to do if we continue along the present course, the safety of American troops in the region, of our friends and allies like Israel and the moderate Arab states, and a significant portion of the world’s supply of oil will all be put at hazard. As you have rightly declared, Mr. President, the security of the world in the first part of the 21st century will be determined largely by how we handle this threat.

Everything is Middle East-centric - and terrorist-free. From this letter, one might conclude that these people wanted to invade Iraq to stabilize the Middle East and its oil supply, and to protect our allies in the region.

Of course, these people are also smart enough to know that the public wouldn't be on board if Bush had said, "We need to invade Iraq to protect oil, Israel, and Saudi Arabia from Saddam." That's why 9/11 was literally a godsend for those who had been clamoring to invade Iraq for nearly a decade. Remember that five days after 9/11, according to Woodward, Rumsfeld said, "This is an opportunity to take out Saddam Hussein, perhaps. We should consider it." And in Bush at War, Woodward reported that Wolfowitz argued forcefully for invading Iraq at Camp David in the days immediately following 9/11.

Again, this doesn't necessarily show us anything other than that we need some real subpoena-powered investigations. But it sure looks like an influential group who had favored a policy for a very long time saw 9/11 as a way to finally get the public behind their war - even if 9/11 had nothing to do with the real motives for going there.

It's hard to admit you got suckered - cognitive dissonance can quite stubborn. But it sure looks like America did. And 1,700 American families are now missing a loved one because of it.

__________

Putting aside the inappropriateness of Durbin's Nazi invocation, I think the latest outcry from the chorus supports the theory I offered a few weeks ago about the type of incidents that cause the chorus to sing. [I'll spare you all from repeating it all over again here.]

Anyway, although I understand why the chorus keeps singing about these Gitmo remarks, I wonder if it's being too clever by half. To me, the goal should be to get Gitmo and the treatment of detainees out of the news. Out of sight, out of mind. Let the public go back to Jacko and missing white girls.

If you'll remember, the strategic outcry against Newsweek and Amnesty International had the unintended consequence of keeping the issue in the news and focusing attention upon our indefensible detention policies.

I wonder if the same thing will happen with the Durbin comments. If no one had protested, no one would even know about these comments. But now, Gitmo will remain in the news. I honestly don't know how well these outcries work when you keep bringing them up again and again on a subject that harms you. I would think you get diminishing returns that verge into a net negative by relentlessly focusing media attention on our terrorist-creating legal netherworld.

__________

I must confess - I was surprised at how much heat Cheney has attracted with his "last throes" line. Maybe I had become so hardened to Cheney's pants-on-fire problem that I stopped paying attention to him. I suppose I had reconciled myself to Ecclesiastes. One generation goes, and another generation comes; and Cheney lies. The sun also rises, and the sun goes down, and Cheney lies. It's a rhythm of nature. Nothing new here.

So I was shocked to read this today and discover that Terry Moran repeatedly challenged Move-It-Forward McClellan to respond to "last throes." Then I saw it quoted again in the Washington Post. I was amazed - hope slowly returned as I watched "last throes" spread across the Internets like the flames on the mountaintops in the last Lord of the Rings.

I think Terry Moran's tough questioning is an example of the "iceberg" theory of the news. News events are often significant because of what they reveal about the much larger forces in motion below the surface (e.g., Rodney King and race). In a sense, the news event is often the "superstructure" that rests upon something far more fundamental.

And the more fundamental event here is that America appears to be turning on Bush and the leadership in Congress. Before Democrats wet their pants, I should warn them that many claimed that the "wheels had come off" the administration during the first term and that they were losing it and so forth. And we all remember how that worked out.

But still, you kinda get the sense that something is different. There are several ugly storms looming off the horizon in all directions. And they're all moving toward Bush.

First, the Downing Street Memo has, at long last, hit the news. Right now, this represents the biggest danger for the White House. It's a perfect storm within a looming perfect storm. All wrapped in one memo you have stories about the WMD hyping, the early determination to go to war, the politicization of the war (mid-term elections), and the failures to plan for the postwar. There's a little bit for everyone in there.

But the fear that is probably beginning to gnaw at White House officials is not the memo itself, but the possibility that it could lead to far more damaging revelations if the press and, god forbid, our legislative branch (which has subpoena power - they do, honest) start poking around in the period between September '01 and September '02. That's when war was decided upon, and there are undoubtedly memos and emails that memorialize debates and meetings and critiques. The DSM is merely the beginning, and it could lead to more. It's like when you pick at a tiny rotten spot on an apple only to discover that the rottenness extends to the core.

And if the public begins to believe that the allegations were right, the implications are serious. It means that Bush and his administration misled every American soldier and their families about its effort to do all it could to avoid sending them into combat. Yglesias says the memo shows that:

The Bush administration was determined to invade Iraq almost immediately after September 11, and the whole business with WMD, UN inspections, and so forth was just so much kabuki theater designed to lay the groundwork for a policy whose true motives lay elsewhere.

This isn't small stuff. These are major allegations. If the public ever really believes them (a big "if"), welcome to Nixon-land. The Republicans seem to think that their rise of power has freed them from the whims of historical contingency. They should think again. Throughout history, parties and regimes have been swept aside by sudden events. Republican power is not woven into fabric of the universe. There is a tipping point - pile up enough bad news, and support for the administration will collapse. And other events are making that possibility more likely (as we're about to see).

Second, support for Iraq is dropping fast. Personally, I don't favor setting timetables for withdrawing or even withdrawing at this point. Civil war would be too horrific. But dear Lord, we really have the tiger by the ears here. We can't win without more troops, as this NYT article shows in painful detail. Yet, we are unwilling to send in more troops. The military is hemorrhaging recruits. The insurgency is gaining. We have 130,000 troops trying to patrol 24 million - and the coalition is pulling out. At this rate, we will lose the war. And at this point, we have absolutely no strategy other than hoping that the insurgency will stop. And the American people are beginning to sense it - at the very same time the DSM hit the news.

Third, Gitmo and torture are also drawing more public attention. And the Pentagon is (according to Drudge) preparing to release a new round of Abu Ghraib pictures pursuant to a court order around the end of the month. That won't be a pleasant week.

Fourth, Social Security is only going to become a bigger liability as time goes on. Many Republicans are seeking an exit strategy, but to be honest, it's probably too late. This is going to be a major issue in '06 no matter what happens (I'm assuming that private accounts are dead and will become an enormous liability to those who came out for them).

Fifth, the abuse of power theme is gaining steam from the steady flow of stories of corruption and overreach. Terri Schiavo. Tom DeLay. Duke Cunningham's real estate deal. The black hole of Abramoff is sucking in several legislators. Coingate is spreading in Ohio. Climate reports are being edited. Tobacco companies are being let off the hook. Chairmen are walking out on committee meetings. And that’s just from 2005.

All in all, there’s a lot to worry about. The White House could probably weather any one of these storms individually, but the combination of DSM, Iraq, Social Security, new Abu Ghraib photos, Gitmo, and the ongoing stories of corruption could eventually prove too much for Americans to swallow.

__________

Wash. Post:

The autopsy essentially supported Michael Schiavo's contention that his wife's brain damage was irreversible and that she had no cognitive ability.

Autopsy report:

The vision centers of her brain were dead.

Bill Frist (via Kevin Drum):

I question [the PVS diagnosis] based on a review of the video footage which I spent an hour or so looking at last night in my office . . . She certainly seems to respond to visual stimuli."

Tom DeLay:

One thing that God has brought to us is Terri Schiavo, to elevate the visibility of what's going on in America, that Americans would be so barbaric as to pull a feeding tube out of a person that is lucid and starve them to death for two weeks.

Tom DeLay:

Terri Schiavo is not brain-dead; she talks and she laughs, and she expresses happiness and discomfort.

Bill Frist:

I talked to her family and had the opportunity to meet her son, and her son told me that she is responsive. She has a severe disability, a lot of people with cerebral palsy and disabilities have severe disabilities. Her brother said that she responds to her parents and to him. And that is not somebody in persistent vegetative state.

Rick Santorum (in Roll Call):

Santorum said that Schiavo, based on brain activity, was close to equivalent of someone with the disease cerebral palsy and that he wouldn’t let the courts allow her to die, adding, “That’s not going to happen on my watch.”

John Hinderaker, "Who You Gonna Believe, Me or Your Lying Eyes":

I think that the biggest reason why so many people have been passionately engaged in the Terri Schiavo case is the video footage that millions have seen. I think pretty much anyone who sees it thinks--she's not dead. Severely disabled, yes. Dead, no. . . . Have you ever noticed how much faith liberals have in "studies"? And I believe it is undisputed that Terri Schiavo has never been given the tests normally used to diagnose a persistent vegetative state, apparently because her husband refuses to allow them.

There may have been a time in my life when I had more faith in experts and studies than in my own eyes. But that was a long time ago.

Peggy Noonan:

How do the pro-death forces "know" there is no possibility of progress, healing, miracles? They seem to think they know. They seem to love the phrases they bandy about: "vegetative state," "brain dead," "liquefied cortex."

Charles Krauthammer:

I have tried to find out what her neurological condition actually is. But the evidence is sketchy, old and conflicting. The Florida court found that most of her cerebral cortex is gone. But ``most'' does not mean all. There might be some cortex functioning. The very severely retarded or brain-damaged can have some consciousness.

Mickey Kaus (quoting an email) (and yes, he counts):

Isn't this a great opportunity for the Dems to make a symbolic gesture to pro-lifers that wouldn't hurt anybody except Terri Schiavo's creepy husband? But instead, Dems are once again telling the right -- in a swing state, no less -- to shut up and obey the courts.

Scarborough Country, 3/21:

DR. WILLIAM HAMMESFAHR, NEUROLOGIST: No, she`s not in a permanent vegetative state at all.

SCARBOROUGH: Is he lying about that?

HAMMESFAHR: He`s absolutely misrepresenting what`s happening.

There`s a hoax been perpetrated on the American public and on the media for the last five years about this case. She is -- if you go to the mall and you see those children who have got cerebral palsy or brain injury who are in wheelchairs, they`re going around -- more severe cases might have some kind of electronic straw to puff on to move around. She`s not as bad as those kids.

Less severe cases, you know, stand up or sit up and can sort of moan and make sounds that get their wishes known, you know, what they want to eat. And she`s like that right now.

Hannity & Colmes, 3/25:

HANNITY: And you're saying that you were there and that she tried to communicate you to you and Mrs. Weller.

VITADAMO [Terri's sister]: Right.

HANNITY: What did she say?

VITADAMO: Actually, she put her hands on Terri's shoulders and she's kind of, like, shaking her, like pleading with her. Because Terri was communicating during, you know -- during our visit. And she was mouthing to Terri, you know, "Terri, say, 'I want to live'." And she was saying that.

And Terri yelled out, "I." I mean, and it was plain as day. And then we were all like, you know -- but that's not a shock to me. I've heard Terri vocalize before. But she was very shocked.

And then she was trying. She was getting very frustrated. But then you could hear her yell again. It sounded like "wa." Like, you know what I mean?

HANNITY: She was trying to communicate those words to her. This actually gets to the point where we find points of contention here. We have doctors and nurses. You guys, your parents have all been on this program this week and have all said she is conscious, she is aware. She does try to communicate. Yet another side says something else.

Hannity & Colmes, 3/28:

BARBARA WELLER, ATTORNEY: . . . I took her arms and both my hands and I said Terri, if you could just say I want to live this whole thing could be over this afternoon.

I said, just please try, you know, really hard and I just really begged her to try and say it. And I was most shocked person in the room when all of a sudden she just fixed her eyes on my face and opened the really wide and she just kind of got this look of determination on her face, and she said, "I" and then she kind of coughed and kind of got her strength again and really loud, she almost screamed "want."

HANNITY: You felt she was saying directly what you're.

WELLER: I repeated the phrase, and she was trying to repeat it back.

Kathryn J. Lopez (NRO):

One last thing from that Cheshire affadavit: "The nurses at Woodside Hospice told us that she often has pain with menstrual cramps. Menstrual flow is associated with agitation, repeated or sustained moaning, facial grimmacing, limb posturing, and facial flushing, all of which subside once she is given ibuprofen...."

Kathyrn J. Lopez:

[Cheshire] writes that Terri Schiavo “demonstrates a number of behaviors that I believe cast a reasonable doubt on the prior diagnosis of PVS.” Among these observations, he pinpoints: “Her behavior is frequently context-specific. For example, her facial expression brightens and she smiles in response to the voice of familiar persons such as her parents or her nurses…Several times I witness Terri briefly, albeit inconsistently, laugh in response to a humoroius comment someone in the room had made. I did not see her laugh in the absence of someone else’s laughter.”...

Jerry Falwell:

[T]erri, who is not on life support, has never been on life support, she had a feeding tube in. A month ago, I had a feeding tube and I was on a ventilator, but I was not in a persistent vegetative state -- many people go through that. And Terri, Terri was not -- is not unconscious. She is aware, she's limited, she's unable to say and do as once she did, but she has a mother and father who love her.

Fox & Friends (interviewing psychic - not VP candidate - John Edward):

DOOCY: So she may not be able to talk with her brain, but she can with her soul --

EDWARDS: But she's clear on what's going -- and I can tell you that she's definitely clear on what's happening now around her.

Pres. Bush, 3/17/2003:

Intelligence gathered by this and other governments leaves no doubt that the Iraq regime continues to possess and conceal some of the most lethal weapons ever devised.

__________

Tom DeLay, 3/20/2005:

Mrs. Schiavo’s condition, I believe, has been at times misrepresented by the media, but far more often has simply gone unreported all together. Terri Schiavo is not on a respirator; she can breathe on her own. Terri Schiavo is not brain-dead; she talks and she laughs, and she expresses happiness and discomfort.

WP:

The autopsy essentially supported Michael Schiavo's contention that his wife's brain damage was irreversible and that she had no cognitive ability.

And there's more:

A meticulous study of the organs, fluids, bones, cells and medical records of the Florida woman who became a cause celebre over the "right to die" also found that her brain was severely shriveled and weighed about half that of a normal adult's. The damage to it "was irrecoverable, and no amount of treatment or rehabilitation would have reversed" it, said pathologist Jon R. Thogmartin, who is the chief medical examiner for Florida's sixth judicial district.

The damage was especially severe in the region responsible for vision, making her functionally blind, he said at a news conference in Florida.

If I had Photoshop, an altered Weekend at Bernie's image would be appropriate given the way DeLay treated this woman and her family.

__________

Justice Thomas catches a lot of unnecessary shit because of his race. Too many people apply an ideological litmus test to prominent African-Americans – and Justice Thomas is no exception. For instance, there are good reasons why African-Americans can oppose affirmative action without betraying the black community or any other such nonsense.

But that said, I don’t think it’s too much to ask for Justice Thomas to at least stand up against clear and blatant racial discrimination when the opportunity throws itself into his lap. But Thomas declined to do so this week in a case called Miller-El v. Dretke in which the Court overturned a capital conviction from 1986 where the evidence showed that prosecutors in Texas had removed black jurors because of their race. His decision doesn’t so much anger me, it just baffles me. I don’t understand it - or him.

First, some background. Before a trial begins, a jury must be selected. This process (called voir dire) involves gathering up a bunch of people, asking them questions, and ultimately whittling them down to twelve. During the “whittling,” each side is allowed to remove or “strike” a certain number of potential jurors for any reason or no reason. These are called peremptory strikes (for instance, a sex offender wouldn’t want parents of young children on the jury). The only catch is that you can’t strike jurors on the basis of race (or gender). This violates the Equal Protection Clause. [When I say “juror” from here on out, I mean potential juror.]

One of the tried-and-true tactics of the old Southern criminal justice system was banning blacks from juries. Of course, after the Warren Court stepped in and forced Southern law enforcement officials to enforce the Constitution, prosecutors stopped saying, “I struck him from the jury because he was black.” Instead, they simply struck black jurors and pretended to be doing it for some other race-neutral reason. The challenge in all of these cases, then, is to determine whether the evidence supports an inference of racial motivation. For instance, if a prosecutor used all of her peremptory strikes against black jurors, that would be enough even without a clear confession or a smoking-gun email.

This was the issue in Miller-El, and the evidence was as overwhelming as you can get in the post-George Wallace era. Being a capital case, the prosecutors wanted to keep blacks off the jury.

I don’t want to bog down the discussion in statistics – you can read the case here if you want more detail. To be grossly general, the Court based its decision on the following: (1) peremptory strikes were used to exclude 91% of eligible black jurors; (2) during the “whittling,” black and white jurors were asked different kinds of questions about the death penalty; (3) prosecutors claimed to strike black jurors for reasons that applied to white jurors they kept; (4) the prosecutors “reshuffled” the order of jurors to be considered when black people were at the front of the list (it’s a rather obscure procedure, but quite damning); (5) a recorded history in that prosecutor’s office extending into the 1970s of an official policy of excluding minorities from jury service (it was written in a manual, though the policy had ostensibly ended in the late 1970s).

It is true that one black juror got through, though that doesn’t matter if the Court found that others were removed for race. As Justice Souter explained, this one juror (who expressed support for the death penalty) was accepted near the end of the process when the prosecution’s peremptory strikes were running out. Apparently, the prosecutor needed to save a few to strike jurors openly hostile to the death penalty.

The big point, though, is that the evidence in Miller-El is about as obvious as these cases get. If this isn’t enough, then nothing is (short of an open confession).

And that’s why Justice Thomas’s decision is so strange. The racial bias seems crystal clear. Yet, Thomas dissented. In doing so, he essentially raised two arguments – (1) the evidence really wasn’t all that clear; and (2) the Court was reviewing evidence not properly before it (even though the state of Texas had cited that evidence to support its case too). The latter seems especially a stretch. As Souter noted, the evidence Thomas objected to probably helped Texas more than it hurt it (fn. 15).

On the former, one can go back and forth on what the evidence shows. None of this stuff is crystal clear. But in these sorts of cases, this is about as clear as it gets. Given that Thomas could easily come down on the other side (which appears to be objectively correct too), why would he go to so much trouble to defend the other side? I mean, he knows the bias is there – the question is whether the evidence supports it. And that evidence is, at the very least, close enough. In Miller-El, Thomas seemed to be applying a heavy presumption against allowing federal courts to find inferences of racism.

It all just seems odd to me. Rehnquist, I can understand. His racial record is well-known and included support for Plessy when he was an young clerk and only an aspiring Nixon hack (something to keep in mind when he retires and everyone slobbers about his legacy). Clinton got Rehnquist exactly right.

But Thomas is black. That doesn’t mean he must adopt a party line, or that he has to think a certain way about affirmative action or other policies that implicate race. But it does mean that he should try to act out against discrimination, doesn’t it? What gives? Does he really believe that strongly that the government is always right in criminal cases? Would reversing the 5th Circuit threaten some larger jurisprudential principle of his? I honestly don’t know – and I don’t understand. If I'm missing something here - I'd welcome comments.

One more thing – this decision was 6-3 (with Rehnquist, Scalia, and Thomas dissenting – Thomas wrote the dissent). But Miller-El had come up before back in 2003. This is a bit technical, but the Supreme Court basically had to decide back in 2003 whether Miller-El had enough evidence even to get a review of his case in the 5th Circuit. It ruled it did. In that case, the Court ruled 8-1 that Miller-El had shown enough to at least present his case before the death-happy 5th Circuit that had rejected his case (the 5th is now probably the worst circuit with the addition of Owen). The lone dissenter was – drum-roll please – Justice Thomas. Even Plessy Rehnquist and Nino thought Miller-El should get his day in court based on the evidence of racial bias. Not Thomas. He dissented by himself.

Even more bizarrely, as I noted here, Justice Thomas chose to swear in open neo-Confederate Tom Parker to the Alabama Supreme Court. Parker was also Roy “Rule of Law” Moore’s protege. I gave the rundown on Parker in that post – and the Southern Poverty Law Center has more here (and Feddie here). It’s all just baffling.

Now, I suspect Thomas didn’t know about Parker’s Confederatism, but surely he knows now. And last I checked, he hasn’t offered a peep about it, much less explained his actions. But he surely knew about Parker’s relationship to Moore. And that’s why people like myself feel that Justice Thomas is oh-too-willing to put his religious beliefs above the law.

Again, I don’t think race should be tied to a party line. But is it too much to ask to act against racial discrimination and not, oh say, swear in neo-Confederates (especially those who were elected on a platform of opposing the mandate of federal courts)?

Someone help me understand all this.

__________

I suppose it was too much to ask our Senators from Mississippi to sign on to the lynching apology (though they weren't alone - 20 others didn't bother to join either, 19 of them Republican).

But anyway, even if you think these symbolic gestures don't mean much, it is worthwhile to take a moment and remember the victims as well as the looming shadow that the barbaric practice cast upon the entire Southern community for generations.


(picture via Life - 1930).

Southern trees bear strange fruit,
Blood on the leaves and blood at the root,
Black bodies swinging in the southern breeze,
Strange fruit hanging from the poplar trees.

Pastoral scene of the gallant south,
The bulging eyes and the twisted mouth,
Scent of magnolias, sweet and fresh,
Then the sudden smell of burning flesh.

Here is fruit for the crows to pluck,
For the rain to gather, for the wind to suck,
For the sun to rot, for the trees to drop,
Here is a strange and bitter cry.

Billie Holiday, Strange Fruit

__________

For more on the Blog of the Year, go check out the Poor Man (a blog I didn't know about until today). Very funny stuff.

__________

Kevin Drum tackled the interesting question of why people hated Clinton so much, especially in light of his centrism. His explanation was interesting in that he thought Clinton hatred was heavily influenced by communications technology. With talk radio and the Internets, the “wingnuts” suddenly had a larger audience and could affect the national agenda. Though interesting, I think this explanation answers the “how” but not the “why.” Yes, technology allowed Matt Drudge and Rush to gain a bigger audience, but it doesn’t explain why their message resonated with so many people on the Right.

So why did people hate Clinton? My answer is that Clinton became a proxy for the larger culture war. He was hated not so much for his personal characteristics or his policies, but because of what he was perceived to represent.

I’ve long believed that Clinton hatred reveals more about the minds of the haters than the hated. The key to understanding it, I think, is to understand that it was not about Clinton, but about something else. And that “something else” relates to the way many conservatives view the world.

For reasons I can’t explain, the modern conservative mind sees the world as being in decline. This is not especially new. It’s as old as the Garden of Eden. Throughout history, humans have perceived that their society is in decline and has “fallen” from the greatness of some lost golden age. This perception is especially common in fundamentalist religions that seek to return to the “fundamentals.” For instance, the yearning for the lost golden age partially inspired both the Reformation and Islamic extremism. But the perception of decline is not limited to religion. As I’ve noted before, originalism exhibits many of these characteristics as well – people want to “go back” to the golden age original understanding of our mythical heroes founders. I don’t know what the psychological origins of this perception are – i.e., why some people view the world in terms of lost heroes and modern decadents – but it’s a fascinating question.

The infamous persecution complex (which I discussed just a few days ago) stems directly from this more general perception of decline. The lost golden age and its “values” are being threatened on all sides by hostile forces - and its defenders are persecuted and outnumbered. The perception of decline is not necessarily linked to any one event or actor. It can manifest itself in different ways at different times. One day it will be gay marriage. The next day, a college professor. The next day, the federal judiciary. Regardless of its various manifestations, the general perception of decline remains constant.

I think this gets lost in the debates about whether Democrats should bash popular culture. The point of bashing popular culture has nothing to do with popular culture itself. Speaking out against Hollywood is merely one way to convince people that you’re on “their side” in that you recognize the cultural assault and are standing up against this decline. The trick for Democrats is to find a way to speak out against this perceived decline by combining rhetoric with a policy that (unlike Hollywood-bashing) is actually substantively valuable (like, say, stricter school discipline and easier expulsion). I’ve quoted this before, but Brad Carson – who lost to Coburn (R-Loonjob) – expressed my views perfectly:

I do know this: The culture war is real, and it is a conflict not merely about some particular policy or legislative item, but about modernity itself. Banning gay marriage or abortion would not be sufficient to heal the cultural gulf that exists in this nation. The culture war is about matters more fundamental. . . . But the truth is quite simple: Most voters in a state like Oklahoma--and I venture to say most other Southern and Midwestern states--reject the general direction of American culture and celebrate the political party that promises to reform or revise it.

It’s pretty simple. A lot of people see their world as under assault and have taken a very us-versus-them approach. It’s nothing new, but it is more intense in periods of rapid change such as our own Globalized Internets Age.

Fine, you say – but how does all this relate to Clinton hatred? Clinton hatred, I think, traces back to perceptions of the Sixties. [By “the Sixties,” I’m referring to the popular understanding of the term and not to the specific years 1960 to 1969.]

The Sixties (as popularly understood) ties these themes of decline and persecution together in one neat little package that can be easily understood and reviled. You’ve got lefty professors and college students being hostile to America and the military. You’ve got hostility to religion (e.g., school prayer). You’ve got big Lefty spending programs. You’ve got the beginning of welfare and perceived sympathy for crime and Communism. And on and on.

Basically, the fictional myth of the Sixties (cue up Hendrix or Doors musical interlude) has come to represent the great “Other” of the American culture wars. It’s become the most accessible proxy and the most easily accessible scapegoat for all of society’s perceived problems. That’s why when you hear rambling wingnuts like Limbaugh and Coulter inveighing against liberals, you’ll often hear stray references to the Sixties or hippies or whatever. Again, it’s not the Sixties per se that matters, but merely the perception that the Sixties was both an assault on the golden age and the source of the persecution that conservatives are experiencing today (despite the objective reality of controlling everything).

For right or wrong, I think Clinton was seen by many as the living embodiment of “the Sixties.” Clinton was, to borrow from the book of John, the Sixties made flesh.

More precisely, Clinton was seen (unfairly) as being on the “other” side of the cultural chasm. It’s true that he took a number of steps both before the ‘92 election and after it to convince voters he was on “their” side, culturally speaking. And that’s what allowed him to win. But there was a substantial number of conservative Republicans who simply saw the cultural “Other” in Clinton and refused to see anything else. The merits or the positions of the man or the administration simply didn’t matter. It was what he represented in their minds that mattered. He was the gay marriage of the 1990s – the visible symbol of broader grievances. That’s what fueled and justified the intense hatred for the man.

Ironically enough, Clinton hatred had almost nothing to do with Clinton himself.