Legal Fiction

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I have only one thing to say and then I won't mention this speech again. I will donate money to the next congressional candidate who runs on a platform of not standing up and clapping during the SOTU. He could support rounding yuppies up in concentration camps, but I would still support him.

And I'll leave you with this quote without further comment:

Every year of my presidency, we have reduced the growth of non-security discretionary spending.

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I'm almost, but not quite, out of my insane work period. So for today, I'm going try one of them there open threads that are all the rage these days. So here's the question - should the U.S. suspend foreign aid to Palestine now that Hamas in charge? Frankly, I'm having a hard time seeing why we should keep sending the money - at least until they formally back away from some of their positions. On this, Rice and I agree (strangely, Rice's diplomatic efforts have been one of the few bright spots of the new administration).

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I should apologize – I feel like excessive bitterness and Machiavellianism have been creeping into my writing lately. Perhaps it’s just in the air – even mild-mannered Kevin Drum seems a bit more snippy of late. I started thinking about this after reading a comment over at SA by Paul (co-proprietor of Political Spectrum) observing that I had become Machiavellian lately. I think he’s right – and so the least I can do is explain what’s causing it (and I think it’s a widely-shared sentiment across Left Blogistan).

I have never of course been a big fan of the White House or the GOP leadership. But for some reason, things are annoying me a lot more these days. It’s more than just disapproval of this or that policy. It’s a more general exasperation and dejection that’s been eating away at me. I look around and I honestly disagree with almost every aspect of the way our country is being run.

But it’s more than that – I’m also having a harder time these days (probably unfairly) having patience for those who continue to support the White House and the GOP leadership (i.e., a majority of the country – at least measured by the only poll that counts, the ballot box). I've always hated this quality in liberals, but now I'm starting to catch the fever too. And I don't like it, but there it is.

So help me out here. I’d really like my conservative readers to answer this simple question – what is the argument in favor of the GOP these days? What’s the affirmative case? Is there any reason other than that Democrats would be worse? Help me – because I just don’t see it. When I look at the GOP leadership and the White House, I don’t see one thing that I approve of – especially on "big picture" issues. I mean, seriously, what are they doing well?

Small government? Please. Limited government? The unitary executive is really consistent with that part of conservative philosophy. Lower taxes? The GOP isn’t cutting taxes – it’s shifting taxes to future generations. Anytime tax cuts cause the sort of structural deficits we have, they’re not really tax cuts. Good domestic policy? Rx drug bill. Katrina. National security? I just can’t see how anyone makes this argument with a straight face after seeing how the Iraq war and occupation were planned and executed. And that’s not even counting the authorization of torture, which is the most morally disgusting action by our government in the post-WW2 era. And then you add in corruption, the K Street alliance, the payment of journalists, the appointment of cronies to important administrative positions, and the more general disregard for policy – and you get a government that is an utter and absolute failure (miserable even).

To borrow from Mr. Rove, it's a government that seems deeply and profoundly and consistently wrong.

This NASA thing was sort of the last straw for me. I mean, here we have an overwhelming scientific consensus that global warming is serious and that it may soon be irreversible. If we do nothing, well, you’ve heard about the parade of horribles that could happen. This isn’t some hippy vegan thing. This is life-and-death stuff (for our kids anyway) and mankind needs to get serious about it (see, e.g., Collapse). But of course, pitted against the ecology and well-being of the planet earth are the needs of GOP corporate donors. The result – a NASA scientist is muzzled from talking about the need for reductions in greenhouse gas emissions. And this was the kicker that sent me to the kitchen to find the appropriately-sized frying pan for my head:

More recently, NASA officials tried to discourage a reporter from interviewing Hansen for this article and later insisted he could speak on the record only if an agency spokeswoman listened in on the conversation. . . . But Mary L. Cleave, deputy associate administrator for NASA's Office of Earth Science, said the agency insists on monitoring interviews with scientists to ensure they are not misquoted. “People could see it as a constraint,” Cleave said. “As a manager, I might see it as protection.”

I really don’t like being this shrill, but why shouldn’t I be shrill? There's no even remotely plausible justification for this (or the administration's global warming position more generally).

So again, because I need help, I'll ask the question: For those who continue to support this administration and leadership, why do you do it? What is it that earns your continued support? You gotta throw me a bone here, because I don’t see it. I want to, but I can’t. Are the Democrats really so bad that their badness justifies supporting what we’ve seen? I just don’t see it.

And so that brings me back to my Machiavellianism. I don’t particularly like being associated with a party, and I’ve never really wanted to be blindly loyal to a party in the way that, say, Kos is. But at this point – I guess I’m ready to try. I so thoroughly reject practically everything the government is doing right now that I just want them out. Any branch will do, but some other party has to get veto power somewhere. And so, for 2006 anyway, I just want someone else to win. And whatever the Democrats need to do to win one branch, then that’s what they should do. They can't be worse.

I also think that if the GOP lost a branch of government it would be good for everyone – Democrat and Republican alike. Maybe it would make the Republican leadership take policy (or their own philosophy) seriously again.

But until then, I remain

Bitterly Yours,
Publius

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(via TPM)

The new Ricky:

"I had absolutely nothing to do -- never met, never talked, never coordinated, never did anything -- with Grover Norquist and the -- quote -- K Street Project."

The old Ricky:

"The K Street project is purely to make sure we have qualified applicants for positions that are in town," Mr. Santorum said. "From my perspective, it's a good government thing."

Also, I'm going to go out on a limb here and bet that Ricky has in fact "met" and "talked" with Grover Norquist. Call it a hunch.

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I'm swamped today and maybe for the next couple of days - we'll see. When I get back, I'll give the law-dawggin' a rest and get back to politics - in particular, why the liberal blogosphere hates Hillary. I'm going to be riffing off of this MyDD post, which I'd encourage you to read. Basically, I think Bowers gets it half-right and half-wrong. I'll explain later.

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It seems the Florida Nelson is a “No” on Alito. K-Lo and others think that this vote will hurt him with Florida voters. I don’t think so. And I think that's true for other Red/Purple state Senate Democrats too. To be honest, I think most voters – to the extent they even know who Alito is – couldn’t care less.

My take on the Roberts and Alito nominations is that Americans simply aren’t paying attention. And if they are, they certainly haven’t thought about it enough to have developed any sort of coherent opinion. This Gallup poll pretty much proves my point:

A new Gallup poll, completed earlier this week and announced today, finds American adults backing Judge Samuel Alito's appointment to the U.S. Supreme Court by a nearly 2-1 margin, 54% to 30% . . .

[A]sked separately if they now became convinced that Alito would overturn [Roe], opinions would dramatically shift: from 54% to 30% in favor of his confirmation to 56% to 34% against.

If you’ve been paying even the slightest attention to the Alito proceedings, it’s pretty clear that he’s not going to vote for Roe. Despite this, Americans support him by the exact same margin that they would oppose him if they thought he would vote to overturn Roe – which he has all but indicated that he will. This tells me either that Americans haven't paying attention or that they don't really care (i.e., very weak preferences).

Accordingly, I think that both Alito supporters and opponents are drawing the wrong lessons from polls like this one showing public support for Alito. Alito supporters think that Americans really want this guy on the Court and that opposition will lead to political punishment. A lot of Democrats think that too – and so they’re scared to oppose Alito (and GOP judges more generally). But I think the general public doesn’t care about it that strongly – they aren’t informed, so they say “sure, I support him” when they’re asked.

But apathy works both ways. If people don’t really care if he gets on, they probably don’t care if he gets blocked either. The idea that a judicial filibuster would backfire politically just doesn’t strike me as very plausible – I don’t think people are following this story closely (other than Beltway/blog junkies and social conservative/liberal interest groups). Obviously, social conservatives will be upset, but it’s not like they’re going to vote for Senate Democrats anyway.

That’s not to say the Democrats should filibuster. Given the numbers, I think it’s ultimately a losing fight – and I’m not crazy about the filibuster as a general matter. But if the only reason Democrats aren’t filibustering is because of perceived political costs, I think they’re misreading how much the public cares about these issues. They'll lose Broder and Russert of course, but not the general public. In fact, I’d love to see a poll on the percentage of the American public that can even name who the current nominee is. All I want is knowledge of his name – not knowledge of his judicial philosophy or past political preferences (which would necessarily be lower).

I know the great contrary example is Daschle, but I just don’t buy that judges had all that much to do with his loss. The precise question is whether Thune would have won even in the absence of the judges issue. Given the general voting patterns of the rest of the country in 2004 (much less super-Red South Dakota), I think Daschle would have been beaten anyway.

Of course, if my argument is correct, it also means that no one would really care if the GOP employed the nuclear option either. And that brings us back to the most important point – it's good to be the majority. Confirmations are just a matter of numbers. And right now, the GOP has 55.

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At the end of Matrix Revolutions, Neo beats Agent Smith by allowing Smith to assimilate him, which then allows Neo to undermine Smith from the inside. Justice Stevens did something very similar today in his opinion in Katz. (Background here). And while both the opinion and the dissent show the black comic absurdity of modern legal jargon and reasoning, you have to at least grudgingly admire Stevens’ tactical skills – co-opting originalism to reach his desired result.

First, let me say that Katz involves perhaps my least favorite constitutional doctrine – state sovereign immunity. Like Lochner and another line of cases I won’t speak of, there is simply no textual basis for state sovereign immunity (the idea that the federal government can’t force states-as-entities to be subject to lawsuits without their consent). Although the doctrine has been around a while, it can often be ignored or evaded by going through the formalistic motions of naming an individual (rather than the state entity) as a defendant. (On as aside, that’s why you see people like Ashcroft or Gonzales or an equivalent state official as named defendants in high-profile cases – sovereign immunity.).

The Rehnquist Court put new teeth into this doctrine in several different ways that I won’t get into. The bottom line, though, is that state sovereign immunity has no textual basis and that it gives the judiciary license to invalidate or limit federal laws and federal causes of action (it's very non-deferential). The area where the rubber really meets the road here is federal civil rights legislation – especially in the non-racial context (gender, disability, etc.). If the Justices took the sovereign immunity doctrine to its logical conclusion (something they have been unwilling to do, possibly for political reasons – see, e.g., Hibbs), then a lot of the civil rights statutes would be invalid or severely restricted. So that’s the political backdrop of the sovereign immunity debate.

Anyway, getting back to Katz, let me first explain why both opinions (majority and dissent) annoyed me. If I were ever a judge (blogging has long since disqualified me), I would make it my personal mission to write short, clear, accessible opinions free of jargon. Not only would this make reading opinions easier, it would also be more democratically legitimate. People have a right to understand the rationale of opinions that have the force of law.

Modern legal writing, however, has become illegitimate (in the philosophical sense of legitimacy). It is written in an esoteric code not unlike the way Latin was used by Middle Ages priests to keep the people in the dark about what the Bible said. The person on the street – the person actually affected by the Court’s opinion – is unable to make sense of jargon that passes as “legal reasoning.” Thus, that person has no basis to agree or disagree – and the public has no basis to have an informed debate about it. By writing in esoteric code, judges preserve their ability to make political decisions that lack democratic accountability. Bush v. Gore is the most glaring example of this – that is, of cloaking a naked political decision in inaccessible legal jargon.

Katz is a perfect example of what I’m talking about. I’m no expert on bankruptcy, but instead of reading about bankruptcy, we got an extended history lecture from both sides – with 18th century cites a’plenty. From Stevens, we got the Ordinances of the Interregnum (1642-60) and the liquidation adventures of 18th century attorney Jared Ingersoll. And that’s Stevens. From Thomas, we get the usual array of Federalist Papers cites and Farrand’s Debates. I didn’t see Blackstone’s Commentaries, but maybe I wasn’t reading close enough. Now don’t get me wrong, I love history. But I’m not sure the scope of our constitutional rights should turn on the Justices’ amateur-historian conclusions of what the “Framers” understood (especially framers like Hamilton and Madison who, um, disagreed on stuff).

History is hard and it’s not often clear – that’s not to say it should be wholly irrelevant, but the idea that it’s really driving the decision-making here doesn’t strike me as plausible. I mean, do you really think that each Justice said to his/herself “I’m going to go to where my objective historical analysis takes me.” Please. History was justifying a policy preference, which is why the liberal, more deferential justices generally wound up on one side and the conservative, less deferential justices wound up on the other (with Roberts right there with them – only this time not so deferential to the federal government). I would rather the Justices just come out and say what they preferred – then at least we could have a democratic debate about it. But that's not going to happen in the Age of the Ordinances of the Interregnum.

Ok – now that I’ve explained why the opinion annoyed me, let me point out one thing that Stevens did that was rather ingenious, tactically speaking. In justifying his result, he adopted an originalist methodology. Remember that when you’re reading cases you have to keep the methodology distinct from the result. Both sides can share a methodology without necessarily sharing a result. For instance, a methodology might be, “whatever the framers say,” and that might lead to a certain result, or it might not. A lot of Supreme Court battles are often about methodologies, not necessarily results. As a cynic, I would argue that this is because certain methodologies tend to yield certain politically-desirable outcomes. In other words, battles over methodologies are often proxy battles for more fundamental political disputes.

Anyway, the sovereign immunity doctrine has generally been justified under an originalist methodology – that is, the Justices argue that the original understanding was that states didn’t give up this-or-that power at the framing. One possible response is simply to reject that methodology entirely. Stevens doesn’t do that though. He accepts the methodology, but undermines it from within – just like Neo did to Agent Smith. Perhaps seeing the writing on the wall with Alito, I think Stevens is saying, “ok, even if this methodology ‘wins’ out, it can still be combated from within and here’s how to do it.”

Prior to this opinion, the originalist argument was that Article I powers (commerce, bankruptcy, etc.) didn’t “abrogate” state sovereign immunity. Thus, once you accept the originalist methodology, you’ve pretty much accepted the results. Stevens, however, is providing a framework to reject these results within the originalist methodology. His opinion is potentially very significant in this respect because it’s saying that, even if we accept that the framers’ understanding matters, there is a lot of evidence that the framers understood that this Article I power did indeed abrogate state sovereign immunity. (At the least, it was apparently enough to convince O'Connor.)

In short, what Stevens is really doing is attempting to gut the Rehnquist Court’s sovereign immunity doctrine from within. I’m not saying that’s good – indeed, I reject this whole practice of retroactively justifying policy decisions by 18th century string cites. But you do have to admire his tactical shrewdness. And so Thomas is right when he says:

It would be one thing if the majority simply wanted to overrule Seminole Tribe altogether. That would be wrong, but at least the terms of our disagreement would be transparent. The majority’s action today, by contrast, is difficult to comprehend.

That’s all true, but it's subject to a fatal pot-kettle objection. An originalist giving a lecture about transparency is sort of like Rick Santorum lecturing people on lobbying reform, or Darth Vader lecturing people about using the Force for improper purposes.

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There are a couple of controversies relating to l’affaire Abramoff that, at first glance, appear rather petty. The first is the hubbub over Ombudsman Howell’s statement (which she retracted – or clarified – today). The second is the looming controversy over photos showing Bush and Abramoff together. On one level, these are fairly petty stories. Howell wrote a sloppy sentence, and Bush gets his picture made with thousands of people he doesn’t know. But that said, when you look at these stories from a more general perspective, they’re not as petty as they first appear. In fact, their pettiness may serve a larger public good.

Howell

Josh Marshall pretty much stole my thunder on this, further confirming Rule #1 of Blogging – never leave a fellow crasher behind when you think it, write it, or someone else will. Anyway, the pettiness seems clear. Howell wrote a sloppy sentence that was factually wrong (since retracted) – and the liberal cyber-lynch mob has been after her since, lashing her with criticism disproportionate to the sin.

That’s true in a sense, but it also misses an important point – one related to the nature of the liberal critique of the so-called mainstream media (MSM). For the past two decades (and perhaps longer), the conservative critique of the MSM has been rooted in allegations of bias. Bias, though, is not really what liberal media critics (e.g., Atrios) are upset about. The liberal critics don’t think the Post reporters have a secret conservative agenda, which is the heart of the gripe of people like Reynolds, Malkin, etc. The thrust of the post-blogosphere liberal media critique has been focused on the press’s intellectual laziness and, to a lesser extent, its fear of right-wing criticisms.

The laziness comes in many forms. The first is the sometimes-pathological devotion to the balanced “he said/she said” template, even when the facts clearly reveal that the “she said” is factually inaccurate. A second manifestation of laziness is simply relying on intentionally-placed quotes from self-interested sources and treating the quotes as news – rather than what they are, which is “free” propaganda. A final point is the annoying tendency (which I often ridicule David Broder for) to treat both parties as equally bad on any and every controversy. Sometimes, of course, they are. But sometimes they are not. The Abramoff scandal is clearly – by any number of objective criteria – a one-party problem – though it’s easier to just go get a quote from each party representative rather than, say, researching the donation history of the Indian tribes at issue.

The other liberal critique is that the MSM has so thoroughly internalized conservative criticisms of bias that reporters go out of their way (often too far out of their way) to show they are not biased. Personally, I think Judith Miller was permitted to “run amok” largely because of the editors’ fears of appearing biased. See, we’re not baised. We put Miller on the first page. We let her do what she wants. As Josh Marshall explained:

So much of the imbalance and shallowness of press coverage today stems from a simple fact: reporters know they'll catch hell from the right if they say or write anything that can even remotely be construed as representing 'liberal bias'.

These two problems – laziness and fear of bias – converged in the Howell statement. It wasn’t just that she (as an ombudsman) wrote a factually inaccurate statement, it was the nature of the inaccuracy that drew the ire of the cyber-lynch mob. First, it represented the scandal as a bipartisan one. Second, it was a manifestation of the Broder “all-are-equally-bad” problem. [He wrote a good column today, by the way.] Third, and most importantly perhaps, it was literally a cut-and-paste statement from the RNC talking points. Now, I don’t think Howell is biased – I just think she was lazy and was afraid of appearing biased.

So while the cyber-mob’s reaction was extreme and crossed the line, I (like Josh Marshall) think that its reaction will ultimately lead to better reporting. The point isn’t Howell, the point is that the MSM (Peter Daou’s “neutrals”) will understand that there are costs for inaccurate or lazy reporting on the Abramoff scandal – especially for simply parroting talking points and thus elevating them into objective fact in the minds of the public. And the bigger point is this controversy will lead to an increasing awareness among reporters that they may well catch hell from the other side too for bad reporting on other issues.

The Photos

The other seemingly petty story is the hunt for pictures between Bush and Abramoff. Here’s Time:

"The President does not know him, nor does the President recall ever meeting him," McClellan said. The President's memory may soon be unhappily refreshed. TIME has seen five photographs of Abramoff and the President that suggest a level of contact between them that Bush's aides have downplayed.

I think that the pictures in and of themselves don’t mean that much. The President takes a lot of pictures and it's unfair to link him with the acts of the people he is photographed with.

But again, here’s why the photo story may actually be important after all. The point of the Abramoff scandal isn’t Abramoff the individual. The point is that Abramoff is a high-profile symbol of the K Street project and, more generally, the GOP’s leadership unholy alliance with powerful corporate industries and their money. [Like others, I strongly recommend Nick Confessore’s “Welcome to the Machine” for those who don’t know much about it.] The K Street project illustrates the extent to which the ‘94 Revolution betrayed its ideals and its philosophy by outsourcing the nation’s policymaking to corporate interests – all the while using K Street's corporate money as a slush fund to enforce GOP discipline on policies the rank-and-file disagreed with, but voted for anyway (e.g., Medicare Rx bill).

While Bush and the White House will run away from Abramoff the man, they can’t run away from their complicity in the K Street project itself. Maybe Bush knew Abramoff, maybe he didn’t. It doesn’t matter. The White House was a central cog in the project that whored our federal government out to K Street – and Abramoff is a appropriate symbol of the ethics of that project. And so if the press and bloggers take a few cheap shots at Bush with some pictures, I won’t cry many tears.

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Post:

Taking no questions from the audience or the news media, Rove used his platform to excoriate Democrats for . . . what he called an attempted smear against Judge Samuel A. Alito Jr. at his Supreme Court confirmation hearings last week. "Some members of the committee came across as mean-spirited and small-minded, and it left a searing impression," Rove said, referring to the Senate Judiciary Committee.

Josh Green, Atlantic Monthly, "Karl Rove In A Corner":

Some of Rove's darker tactics cut even closer to the bone. One constant throughout his career is the prevalence of whisper campaigns against opponents. The 2000 primary campaign, for example, featured a widely disseminated rumor that John McCain, tortured as a prisoner of war in Vietnam, had betrayed his country under interrogation and been rendered mentally unfit for office. More often a Rove campaign questions an opponent's sexual orientation. Bush's 1994 race against Ann Richards featured a rumor that she was a lesbian, along with a rare instance of such a tactic's making it into the public record—when a regional chairman of the Bush campaign allowed himself, perhaps inadvertently, to be quoted criticizing Richards for "appointing avowed homosexual activists" to state jobs.

. . .

But no other example of Rove's extreme tactics that I encountered quite compares to what occurred during another 1994 judicial campaign in Alabama. In that year Harold See first ran for the supreme court, becoming the rare Rove client to lose a close race. His opponent, Mark Kennedy, an incumbent Democratic justice and, as George Wallace's son-in-law, a member in good standing of Alabama's first family of politics, was no stranger to hardball politics. "The Wallace family history and what they all went through, that's pretty rough politics," says Joe Perkins, who managed Kennedy's campaign. "But it was a whole new dimension with Rove."

. . .

When his term on the court ended, he chose not to run for re-election. I later learned another reason why. Kennedy had spent years on the bench as a juvenile and family-court judge, during which time he had developed a strong interest in aiding abused children. In the early 1980s he had helped to start the Children's Trust Fund of Alabama, and he later established the Corporate Foundation for Children, a private, nonprofit organization. At the time of the race he had just served a term as president of the National Committee to Prevent Child Abuse and Neglect. One of Rove's signature tactics is to attack an opponent on the very front that seems unassailable. Kennedy was no exception.

Some of Kennedy's campaign commercials touted his volunteer work, including one that showed him holding hands with children. "We were trying to counter the positives from that ad," a former Rove staffer told me, explaining that some within the See camp initiated a whisper campaign that Kennedy was a pedophile. "It was our standard practice to use the University of Alabama Law School to disseminate whisper-campaign information," the staffer went on. "That was a major device we used for the transmission of this stuff. The students at the law school are from all over the state, and that's one of the ways that Karl got the information out—he knew the law students would take it back to their home towns and it would get out." This would create the impression that the lie was in fact common knowledge across the state. "What Rove does," says Joe Perkins, "is try to make something so bad for a family that the candidate will not subject the family to the hardship. Mark is not your typical Alabama macho, beer-drinkin', tobacco-chewin', pickup-drivin' kind of guy. He is a small, well-groomed, well-educated family man, and what they tried to do was make him look like a homosexual pedophile. That was really, really hard to take."

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So I finally got around to reading (for real) Gonzales v. Oregon and the case raises A LOT of interesting issues. And I’d love to talk about them all right now, but I have to get some sleep (work called early today). But I will air this case out properly later this week because there’s a lot of good stuff packed in there.

I did want to make one quick point though. You could make a decent case that every “bloc” of Justices (except Roberts) was being inconsistent with past positions. For instance, although Raich (weed case) and Oregon were officially about different issues, you could argue (like Thomas) that the majority’s view of the Controlled Substance Act varied significantly in each case. As for Thomas, he appears to have dissented simply out of spite – he can’t possibly disagree with the result. And then there’s Nino – who’s not so much being inconsistent with Raich as the Raich/Oregon cases are inconsistent with his professed worldview.

That said, let me take a stab at why I think the majority maybe wasn’t acting as inconsistently as it first appears. In fact, I think there is a common theme running through the holdings in Raich and Oregon – and it’s one that I like. That theme is deference to legislative will, which is a theme that I would like to see become the centerpiece of any new progressive jurisprudence (interestingly, Breyer seems to be heading this way already).

In Raich, the issue was whether the federal drug law was (as applied) a proper exercise of Congress’s commerce power. The legislative branches thought so, and the Court deferred. Similarly, in Oregon, the question was whether to defer to the people of Oregon’s view of what a “legitimate medical practice” was, or to the Attorney General’s. The majority again deferred to the legislative will. [For the record I treat “General” as a noun because Attorney’s General sounds stupid and is archaic.]

Now, you obviously can’t always defer – that’s why we have a Bill of Rights. But the point is that you should do it when you can. For reasons that relate to democratic legitimacy and all the things that the more compelling Federalist Society members talk about sometimes, deference to the legislative will should be the judicial presumption.

And though I’ll get into this more, it was – at best – far from clear in Oregon that Ashcroft had the authority to do what he did. If you take Scalia’s dissent to its logical conclusion, it essentially lets the Attorney General legislate under the guise of interpreting regulations. That's why I think the Court was right that the legislative will of the people of Oregon should get more deference than a memo written by someone in OLC and signed by Ashcroft (does anything good come out of OLC?). Similarly, to the extent it’s unclear whether the regulation of marijuana possession falls under the commerce clause, we should defer to the legislative will. Even if such a result is “wrong” according to our abstract philosophy, it’s at least more legitimate, which is arguably more important than being right.

One final note, it’s hard to get too mad at Scalia when he can write like sweet snark like this:

[T]he Court asserts, “the existence of a parroting regulation does not change the fact that the question here is not the meaning of the regulation but the meaning of the statute.” . . . Even if there were an antiparroting canon, however, it would have no application here.

That’s good stuff.

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You probably missed this, but the Court released one more opinion yesterday:

SUPREME COURT OF THE UNITED STATES

No. 06-03

United States (Respondent) v. Smith (Petitioner)

Justice SCALIA delivered the opinion of the Court:

This case presents a question of the scope of Congress’s power under the commerce clause. To simplify and clarify our commerce clause analysis, we have consolidated two cases in which petitioners challenge the constitutionality of two federal laws that allegedly exceed Congress’s power to regulate commerce – (1) a law banning local possession of marijuana; and (2) a law criminalizing violence against women. Applying our new standard, we find the marijuana law constitutional and the other one, well, not so much.

I

[unnecessarily long and tortuous narrative of facts]

II

Article I, Section 8 grants Congress the power to regulate interstate commerce. In recent years, the Court’s commerce clause analysis has been accused of being “unclear” and “results-driven.” See Bork, R., What the Fuck Is Up With Scalia in Raich?, 118 Harv. L. Rev 211, 213-14 (2005). Specifically, critics have pointed to the seeming inconsistency between the Court’s decision in Morrison and its decision in Raich (cases coincidentally involving similar facts at the case at issue here). Id. at 215. See also Aging Hippy Liberal Douche, A Post-Modernist Perspective on the Habermasian Dialectic Inherent in Scalia’s Commerce Clause Analysis, 98 Yale L.J. 1201, 1210-11 (2004).

The lower courts have also failed to find a meaningful distinction between the laws struck down by the Court and those upheld. See, e.g., Vedder v. Cobain, 321 F.3d 12, 15 (2004) (Posner, J., dissenting) (“What the fuck is up with Scalia in Raich?”).

In light of this criticism, the Court today announces a new clear standard to guide lower courts in their application of the commerce clause. This new standard will govern when a law exceeds Congress’s power under the commerce clause and when it does not. The new standard is this – a law passed pursuant to the commerce clause is constitutional if Justice Scalia likes the law and unconstitutional if he does not. Similarly, if the law is regulating things that Justice Scalia wants regulated, it is constitutional. If it does not, it is not.

A

In justifying any new constitutional doctrine, we must first of course look to the original understanding of the Holy Framers who ascended Mount Sinai and brought back down the Constitution on stone tablets in 1787. A close look at the ratification debates reveals that the scope of the commerce clause was intended to be equal to, and co-extensive with, Justice Scalia’s political preferences. Here is James Madison in Federalist No. 10:

AMONG the numerous advantages promised by a well constructed Union, none deserves to be more accurately developed than its tendency to break and control the violence of faction. The friend of popular governments never finds himself so much alarmed for their character and fate, as when he contemplates their propensity to this dangerous vice. He will not fail, therefore, to set a due value on any plan which, without violating the principles to which he is attached, provides a proper cure for it.

While at first glance this appears to have nothing to do with the commerce clause, if you switch around some of the letters, it spells: Do What Scalia Wants. See, e.g., Hamburgler v. Burger King, 521 U.S. 321, 341-42 (2003) (Thomas, J., concurring) (“As Harry Potter has taught us, mixing around letters can reveal important insights into the Framers’ original understanding and Lord Voldemort’s evil plans.”).

B

While this new standard is a marked improvement over our prior doctrine, we recognize that lower courts will need additional guidance in determining just what Justice Scalia likes and dislikes. Although multi-factored balancing tests are generally for commie pinkos and Justice Kennedy, there is not always a clear answer to these questions. Instead, lower courts must look at the many things Justice Scalia likes and dislikes and then determine how the law relates to them.

For instance, Justice Scalia dislikes many things – hippies, long-haired hippies, hippies with beards, long-haired hippies wearing sandals, the homosexual agenda, assisted-physician suicide, Will & Grace, long-haired bearded hippies wearing sandals, long-haired hippies wearing sandals and burning flags, the Florida Supreme Court, Justice Kennedy, Satan, the New Deal, and the equal protection clause.

On the other hand, Justice Scalia likes many things – police, police arresting hippies, laws criminalizing drug possession, laws criminalizing drug possession by hippies, duck hunting, barbeque, John Ashcroft, Jesus, and the equal protection clause in the context of presidential elections.

III

With this new standard in place, we can now evaluate the constitutionality of the two laws in questions.

A

The first law at issue is a federal law criminalizing local drug possession that is not intended for sale or distribution. At oral argument, the United States argued strenuously that the law should be upheld because it regulates hippies and conduct traditionally associated with hippies. The petitioners, however, argue that the connection to hippies is overblown and that the association is simply a product of our decadent Hollywood culture.

We agree with the United States. While Justice Scalia detests Hollywood, he hates hippies even worse. And drugs have long been associated with hippies. Blackstone, Commentaries on the Laws of England 134–135 (1765) (“Hippies shall face the lash of the sheriff’s whip.”) The Court cannot tolerate hippies or their hippy Vietnam-protesting ways – and we long for the return of the stocks when those America-hating hippies will get, um, . . . The original understanding was that drug laws would be included within Congress’s Article I power. The Court concludes that the drug law is constitutional.

B

The second law at issue is a federal law that criminalizes violence against women. The United States argues that the law affects criminals and that Justice Scalia really hates criminals. The Solicitor General added, “And I mean, he reallllllly really hates ‘em. Am I right or am I right or am I right. Rrright? Rrright?” To this persuasive argument, the law’s challengers responded that the law is an attempt to help a historically disenfranchised group through the use of federal power. While Justice Scalia has no particular gripe against historically disenfranchised groups, he cannot abide federal efforts to help them. Indeed, it is obvious that the Framers did not intend the commerce clause power to include such authority:

By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.

Federalist No. 10 (Madison).

The Court concludes that this law is unconstitutional.

IV

The Courts of Appeals are hereby REVERSED.
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THOMAS, J. (Concurring)

I concur separately to add further historical support for the majority’s conclusion in III.A that the Framers originally understood that hippies and conduct traditionally associated with hippies could be regulated under the commerce clause. As you know, hippies are disproportionately vegetarians. Historical records from the Founding indicate that the Framers would be hostile to vegetarians. Here is a note that James Madison kept and maintained from the 1787 debates:

Gouverneur - what do you want for lunch? Jimmy.

Jimmy – I want the lamb. GM – Love, peace, and hair grease.

Letter from James Madison to Gouverneur Morris, Oct. 4, 1787, 13 Documentary History of the Ratification of the Constitution 315 (J. Kaminski & G. Saladino eds. 1981).

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From Scalia:

From an early time in our national history, the Federal Government has used its enumerated powers, such as its power to regulate interstate commerce, for the purpose of protecting public morality--for example, by banning the interstate shipment of lottery tickets, or the interstate transport of women for immoral purposes. Unless we are to repudiate a long and well-established principle of our jurisprudence, using the federal commerce power to prevent assisted suicide is unquestionably permissible.

Unless of course the law in question relates to a law he disagrees with politically -- like, oh say, the "Violence Against Women Act."

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The so-called “Atrios prediction” on Iran goes something like this – Military action against Iran is impossible in light of Iraq (lack of manpower; Shiite retaliation; etc.). However, talking about military action against Iran will rally the public to Bush and the GOP, and will wedge the Democrats. So, the GOP will make it an high-profile issue and then promptly forget about it after the ‘06 elections.

Perhaps foolishly, I’m not quite that cynical. After all, a nuclear Iran raises serious issues and is potentially a much bigger threat than Saddam ever was – and so we actually do need to have a political and policy debate about what should be done. But I also tend to agree that the rise of Iran was an inevitable (and entirely predictable) consequence of our Iraq invasion and that there’s not a whole hell of a lot we can do to stop Iran from becoming the regional power (and eventually going nuclear).

Anyway, getting back to the Atrios prediction, let me be clear on one thing – I’m not endorsing that view, nor am I saying that the GOP will spend 2006 insincerely talking about a war it has no intention of starting. But what I am going to say today is that there are tremendous incentives for the executives of both the U.S. and Iran to do exactly what Atrios predicts – to talk about war without actually engaging in it. And what’s interesting about these incentives is how they relate back to our ongoing constitutional debate about the dangers of the unitary executive theory (i.e., the king-in-wartime theory).

First, to the incentives. In a weird way, I think Bush and Ahmadinejad both have a lot to gain from turning up the war rhetoric. The emergence of an external threat would help Ahmadinejad in several ways. First, it would allow him to increase his popularity at home by playing the nationalist card. As I touched on here, Ahmadinejad has failed to deliver on a lot of his populist campaign promises. War would help distract the masses from his failed policies. Second, a perceived attack from the West would allow him to undermine his political opponents (reformists) by linking them with the attackers (let's call this the Cleland strategy). Finally, Ahmadinejad rejects the West and modernity more generally. He (and whoever pulls his strings) would love to drive a wedge between Iran’s modernist youth and the West – the youth being, like Luke Skywalker, a potential threat to the “empire.”

A lot of this rings true for Bush too. As the 2002 and 2004 elections showed, there are clearly electoral incentives for the GOP to play up national security threats. Also, war tends to crowd out everything else. Thus, if war with Iran dominates the 2006 headlines, then other issues won’t – issues like Schiavo, or Social Security, or corruption, or Katrina.

The point here is that the executives of both countries stand to gain from talking about war with each other. I have no idea whether the Atrios prediction will play out, or whether such a discussion of war would be insincere domestic posturing. But it is clear that there are incentives for the Atrios prediction to come flaming a'ground. (But now I've said . . . too much.)

One interesting part of all this is that it relates back to our executive wartime powers debate. If you (like me) subscribe the pessimistic Madison/Tolkien/Burke view of man, then you believe that men above all else seek to increase their power. That dark worldview is the philosophical underpinning of the separation of powers and the Constitution’s scattering of sovereignty across three branches of government (including a split legislature) and the states.

I think it’s also obvious (as the Civil War and WW2 illustrate) that wars increase the power of the executive. As my 18th-century namesake explained in Federalist No. 8:

It is of the nature of war to increase the executive at the expense of the legislative authority.

This is all a way of saying that there are strong incentives for executives to go to war. For one, it increases their institutional power vis-a-vis other branches of government. Second, it increases their domestic political support because people rally around the flag in wartime (which also usually undermines political rivals).

Applying all this to the Iran debate, the executive institutions of both countries arguably have a greater self-interest in war than the nations they represent (and certainly a greater self-interest in talking about war).

And so, given the institutional incentives surrounding war, I think it makes sense to read the Constitution in a way that does not vest all war powers in the executive. For instance, regardless of what the framers did or didn’t think, I think the “declare war” clause should have real teeth. Contrary to John Yoo, I don’t think it should be read as simply a diplomatic notification clause. Similarly, given what we know about the historical tendencies of executives to seek greater power once a nation is already at war, I think that Congress should have the authority to set limits on that power. As I explained here, I don’t mean Congress could constitutionally override a President’s judgment about how, say, a battle should be conducted. But it should be allowed to create boundaries on things like torture and eavesdropping.

I guess when it comes down to it, the thing that troubles me the most about the unitary executive theory is that seems to fundamentally contradict not only our entire constitutional structure, but the pessimistic philosophy underlying it. The unitary executive theory asks us above all else to trust. But that’s precisely the opposite of what Mr. Madison wanted us to do. In fact, he specifically designed our government to ensure we'd never have to.

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I'm going to be writing more about Iran tonight or tomorrow, but I wanted to throw out an old post of mine from 2004 in which I was arguing that maybe the best answer to the "Iran Question" is simply to recognize Iran and incorporate them into the global market, using the Nixon-China model as a template. One of the central questions in my post was why Iran today should be considered any more dangerous than China of the early '70s. Anyway, here's an excerpt and I'd urge you to read the whole thing. I'm obviously not an expert and haven't thought out all the implications, but it seems worth discussing.

Let me see if I have my history right. America was in the middle of the Cold War. One of its major anatagonists in that conflict was Maoist China - a country that was growing more powerful in the region (for reasons anyone who could add could have understood). It had opposed our efforts in the recent and current wars in the region. It was our sworn enemy. And yet, in 1972, a president who had spent his entire political career denouncing Communism re-established diplomatic and economic relations with China because he had the domestic political capital to do so. So I'll ask the question - why not recognize Iran?

This is more of a thought experiment than full-blown advocacy, so I would welcome comments. But it's not that crazy, is it? More specifically, what could be said about Iran that could not also be said about China in 1972? Corrupt rulers . . . check. Sworn enemy . . . check. Illiberal political system . . . double check. But despite all of these negatives, think about all the positives we gained from Nixon's boldness. First, it gave us diplomatic leverage over the Soviet Union and the broader geopolitical theater. Second, it vastly expanded our trade and our access to markets - benefits we reap today (outsourcing bogeymen notwithstanding). Third, the world has leverage over nuclear-powered Communist China because the tentacles of the global market have ensnared it. In short, China is "connected" (see Ignatius) - it's a part of the "connected" world and has an interest in not blowing it up, or supporting those who do

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The good folks in the Washington Post editorial room, in begrudgingly urging the Senate to confirm Alito, play the deference card:

A Supreme Court nomination isn't a forum to refight a presidential election. The president's choice is due deference -- the same deference that Democratic senators would expect a Republican Senate to accord the well-qualified nominee of a Democratic president.

. . .

While we harbor some anxiety about the direction he may push the court, we would be more alarmed at the long-term implications of denying him a seat. No president should be denied the prerogative of putting a person as qualified as Judge Alito on the Supreme Court.

But that argument only makes sense if you agree with the Post's (undefended) assumption that Presidents do in fact deserve deference. I'm not sure they do. In fact, you could make a pretty good argument that the "President-deserves-deference" argument is inconsistent with the structure of our Constitution.

To begin, it’s important to distinguish between the appointment of cabinet/administrative officials and the appointment of Article III judges. Although the text of Article II doesn’t suggest that the Senate should treat these appointments differently, I think there are good structural and policy arguments for why the Senate should do just that.

With respect to cabinet/administrative appointments, the argument for deference makes sense. At least in theory, the public understands that the executive branch runs the administrative state and the cabinet. Thus, a vote for a particular President is – again, in theory – a vote for handing the keys of the administrative state to a particular candidate or a particular party. There’s also a good separation-of-powers argument for deference in that the President should be given some latitude to pick the subordinates who will carry out his executive duties and functions.

But these arguments don't carry over to the Article III context. Here, the President is not picking people to administer the branch of government that he himself controls. He’s nominating officials to serve in an entirely different (and co-equal) branch of government – officials with tremendous authority and political unaccountability. Given the stakes, it seems like the Senate should have an equal say here. Indeed, the high stakes surrounding judicial nominations are why I tend to agree with Kaus’s argument that the filibuster (which I generally don’t like) may actually be most justified with respect to judicial nominations. (It's actually a very interesting post for those interested in this stuff.)

On an aside, regardless of what you think about Alito, the Post editorial makes no sense. The Post's position seems to be that, even though they disagree politically with Alito's jurisprudence, the Senate should confirm him anyway because the President's nominees are (for some unstated reason) due deference and it would create a "dangerous precedent" to reject him. Huh? I think I've reached a point in my life where I prefer the Washington Times editorial board over the Post's. I may disagree with them, but at least I'll be spared from the waterboarding-esque torture of kneejerk conspicuous centrism.

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This is a public service announcement to remind Justice Stevens to eat his broccoli today. That is all.

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The Senate Democrats may not be my favorite bunch of people (especially the fall 2002 Senate Democrats), but I think it’s unfair to blame them for not sinking Alito. So I'll have to disagree with people like Robert Novak and Garance Franke-Ruta who blame Alito’s imminent confirmation (at least in part) on the Senate Democrats’ failure to perform. The problem is the less the Senate Dems and more the wildly unrealistic expectations that many progressives have about what is possible. In fact, Biden’s mouth aside, I think (for once) the Senate Dems did pretty much exactly what they needed to do.

Like Yglesias, I think the Alito confirmation was won in November 2004. Elections determine confirmations, not tactics. And so, as a matter of math, it was simply unrealistic to expect that 44 and ½ Democrats could block the nomination of a Republican President with a Senate majority that rolls 55 strong.

Just like romantic comedies ruin relationships by creating unrealistic expectations of love, the borking of Bork has warped liberal interest groups’ sense of reality. Bork (n.) got borked (v.) not because of Kennedy’s tough questioning or a savvy media campaign, but because Democrats held 55 seats. Today, they hold 44. Thus, holding up Bork’s borking as the baseline for success or failure is, as I said, wildly unrealistic.

Even if by some miracle the Senate Democrats managed to block the nomination, they still wouldn’t “win.” Bush would simply appoint a different judicial conservative and eventually one would get through. Cut off the head and another will simply grow back. That’s because a conservative President is sending nominees to a conservative Senate for approval. Again, the Bork (adj.) bork (n.) was different. After Bork, Reagan had to give a little because the Democrats held the majority and could block everyone he sent. Democrats can’t do that today. Ultimately, they’re going to “lose” because they lost the elections.

That’s why I think that progressives need to adopt more realistic goals when it comes to judicial nominations. They need to rid themselves entirely of this notion that to block a nominee is to “win,” while failure to do so is a “loss.” That’s not how it should work.

Instead, the goal should be not to obstruct, but to oppose. Writing in the immediate aftermath of the election about the Gonzales nomination, Yglesias said:

The thing for Democrats to do is to raise all the objections to him . . . , note how unfortunate it is that the president has so little respect for the rule of law or for the safety of our troops, vote "no," and let him get confirmed. . . .

Like a parliamentary minority, [Democrats’] main role is simply to raise objections and frame an alternative vision. They're not partners in the running of the government, not legislators in the traditional American sense. They're an opposition that needs to be clear about what it stands for, clear about what it thinks needs to be done, and basically willing to let the party of government govern until they get a chance to contest the government's visions with their own on an election day.

I don’t know if I’d apply that to everything, but I’d definitely apply it to Alito. There’s no point in trying to block Alito – for one, it can’t be done. And even if it could, a new Alito would pop up in his place. Instead, Democrats need to oppose Alito and make him a political liability. Success shouldn’t be defined as blocking or not blocking, but as whether Democrats framed the Alito nomination in a way that can ultimately be used for political benefit. It’s the litigation equivalent of creating a record that can ultimately be used at trial.

If this is the standard for success (as opposed to borking), I think the Senate Dems have been quite successful indeed. Alito is going to get confirmed, but he certainly took his lumps. Thanks in part to a more concentrated Democratic effort, I suspect that the two things that pop into most Americans’ heads when they think of Sam Alito are his opposition to Roe and his membership in CAP.

Democrats can therefore use Alito to wedge Republicans in Blue and Purple states. When election time rolls around in places like Rhode Island and Maine and Pennsylvania and Minnesota and Washington, Democratic Senate candidates can hang Alito on their opponents’ neck. I won’t vote to confirm people who bragged (at age 35) about membership in racist and sexist organizations. I won’t nominate someone who is openly hostile to Roe. [This is also a good tactic for presidential candidates.] Again, it’s about offering a contrasting vision. The image people have of Alito is an image that Rove/Mehlman types want to shed – and for good reason.

All in all, Senate Democrats have done a good job of showing the public the type of person that Republicans nominate to the Court. So ease up on the Senate Dems – they did about all they could have done. The best that Dems could possibly have hoped for was to make it possible for Alito to become a political liability in 2006 and beyond. And on this, I think the Senators succeeded.

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Because I’d rather have my fingernails pulled out in a torture freedom camp than write about the hearings, I promised I’d write about a question I find more interesting – can Presidents shape the direction of the Court, even if they're trying? In general, I think the answer is no. But – and this is a big but – they can profoundly shape the direction of the Court if they laser in one particular issue.

On the first point, despite my “no” answer, it’s obvious that Presidents can and do shape the direction of the Court – if for no other reason than that they pick the Justices who actually serve. But hopefully everyone understands what I’m trying to ask which is this – can a President with multiple appointments determine (in the philosophical sense of “determine” – i.e., cause, direct) the ideological direction that the Court will take? Again, the answer can’t be an absolute “no.” Presidents can clearly move the dial a little. But history has shown that they can’t move it much. And they usually end up moving much less they intend to. That’s why, on balance, I think the answer is no.

For those worried about the Roberts/Alito nominations, just look at history. If it’s shown us anything, it’s that it’s very difficult to predict how a Justice will act once on the Court – especially the longer that Justice remains on the Court.

This story begins with the Jefferson/Madison/Monroe presidencies. Nomination after nomination, the Virginia Dynasty appointed people who they thought saw the world as they did – rather than the way evil John Marshall did. But again and again, Marshall won them over.

Modern history provides even more examples. The Republican Eisenhower appointed three heads of the Babylonian Whore-rren-Court Dragon – Brennan, Warren, and Stewart. Reagan’s nominees, on balance, supported abortion. Souter, Blackmun, Stevens, Kennedy, O’Connor – all of these Justices drifted much further left than predicted. But it works both ways – I’d say that if the Democratic Senate knew how far Scalia and Thomas would eventually drift to the right, they would have been denied. That’s what so scary about appointing a Justice – once on the Court, they become wild cards.

But if Presidents have been unsuccessful in their attempts to steer the general ideological direction of the Court, they have been more successful in influencing its decisions with respect to one particular issue. To put it another way, if the President is willing to focus on only one issue, then the President can successfully steer the Court in a specific direction.

Take FDR. He cared about one thing and one thing only – deference for the New Deal. Because he focused on this one particular issue in selecting Justices, he successfully steered the Court in the direction he wanted.

Interestingly, after the New Deal battles had passed, the Roosevelt Court split badly and there was a great deal of bad blood between New Deal Justices like Frankfurter and Black/Douglas. To be honest, they hated each other. And the issues they started splitting on were civil liberties (incorporation; race-related criminal issues; etc.) – foreshadowing the split that would ultimately be settled by the Warren Court decisions.

The Roosevelt Court’s descent into internal chaos provides the answer for why it’s difficult for Presidents to steer the general ideological direction of the Court. The basic reason is unforeseen circumstances. A president appoints a Justice at a given point in time when a given set of issues is being debated. But as new issues emerge, especially for Justices who stay on the Court for a long time, it becomes increasingly difficult for a Justice’s position on the new issues to be predicted by his stance on the old ones.

To see what I mean, let’s return to Roosevelt. When Roosevelt selected his Justices, the big issue was the New Deal. But as these Justices continued on into the late 40s and 50s, all the old New Deal battles had been fought and won – so they stopped coming to the Court. In their place, a whole new slate of civil liberties issues began emerging that simply weren’t being thought about in the 1930s. [Also, support for the New Deal wasn’t necessarily correlated with respect for civil rights (see, e.g., the South).]. On these new issues, the Justices were all over the place because they had not been picked with an eye to civil liberties.

So let’s apply all this to Bush’s nominations. First, I personally think it’s clear that Bush is nominating Justices with an eye to one issue – deference to the executive branch in war. If he keeps getting to nominate Justices, he will be able to successfully steer and control the direction of the Court on this one particular issue.

On the larger issue of whether Bush is going to move the general ideology of the Court sharply to the right, I’m not so sure. While I predict that Alito will be dreadful and will drift toward Thomas, I think Roberts will eventually land close to Kennedy/O’Connor-land. He’s spent too much time around big socially-liberal DC law firms to, say, hate gays and be a true believer in the sense that Scalia and Thomas are.

But the more fundamental reason that things will be ok is simply that new issues will come up in the years to come that will defy ideological classification. After all, what we call “liberal” or “conservative” are merely labels we apply to positions on contemporary issues. But new issues will come up that wreck the constructs. For instance, all the New Deal Justices were “liberal” in a sense, but they sharply disagreed on the new civil liberties issues that came up. It wasn’t just that the liberals went conservative, or vice-versa, but that new issues arose that challenged the very meaning of those terms. Contemporary civil liberties advocates were probably shocked to see former KKK member Hugo Black emerge as their champion (and the best Justice ever, if you ask me) and Felix Frankfurter (the great liberal intellectual) as their enemy (the biggest disappointment of all time).

We tend to see the ideological divisions of our day as permanent. But in truth, they’re contingent upon the issues we happen to be talking about. As new issues arise, the current labels will stretch and break and new labels will be necessary. And when new issues come up, today’s liberals will have unlikely friends and foes on the Court – same deal for today’s conservatives. None of this can be predicted.

So maybe the answer to the question isn’t just that Presidents can’t direct the ideological course of the Court – it’s that the course itself changes shape every generation or two.

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Milbank captures the high comic absurdity of the hearings in his column today. Some teasers:

A contagious wave of yawns spread across the dais, from Specter to Sen. Charles E. Schumer (D-N.Y.) to Sen. Russell Feingold (D-Wis.), and crested in a brief catnap for Sen. Sam Brownback (R-Kan.).

. . .

Sen. Joseph R. Biden Jr. (D-Del.), in his first 12 minutes of questioning the nominee, managed to get off only one question. Instead, during his 30-minute round of questioning, Biden spoke about his own Irish American roots, his "Grandfather Finnegan," his son's application to Princeton (he attended the University of Pennsylvania instead, Biden said), a speech the senator gave on the Princeton campus, the fact that Biden is "not a Princeton fan," and his views on the eyeglasses of Sen. Dianne Feinstein (D-Calif.).

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I've had depositions this week, so I haven't caught up on today's meaningless Kabuki dance dignified Senate confirmation hearings. In case you haven't guessed, I really hate these things - and I don't want to write about them. To be perfectly honest, I think the Roberts and Alito (and Miers if the GOP hadn't revolted) confirmations were won last November and there's not much to do about it other than start winning elections. The American people chose Bush and a Republican Senate - Alito is the unsurprising result.

But I'm going to try to talk more generally tomorrow about a different and hopefully more interesting topic - which is whether Presidents can actually shape the direction of the Court, even if they're trying to.

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Hard to believe, but Legal Fiction turns 2 today. Two years ago today, I stormed into the blogosphere with the following insightful post:

New things - very soon.

Seriously, though, I didn't do a big retrospective post last year on my "birthday." I don't have time tonight, but I probably will write one later this week about why I started and how it's evolved and some other looks back.

Anyway, in the meantime, I just want to say thanks to all of you. I really appreciate that so many of you come here day after day. It sounds cliched, but it's true. It's very flattering. And I am constantly impressed by the comments - you've taught me a lot and kept me honest.

So thanks - I'll have more to say later.

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Here’s a rundown of my thoughts/predictions/comments on the Alito hearings:

The Irrelevancy of Hearings

Ok – here’s my prediction. Alito will be asked a lot of tough questions by the Dems. He won’t respond to any of them. He’ll instead use vague language about respecting precedent and the importance of not pre-judging anything. Slimy Schumer will go on a lot of talk shows and complain. The American public will yawn. And Alito will get confirmed by a mid-60s/mid-30s count.

I like Alito much less than Roberts, but I’m pretty much resigned to the fact that he’s going to be on the Court. After all, he made it to the hearings, and once you get to the hearings, you’re in. That’s because hearings are no longer relevant in the post-Bork age. In fact, let’s call this (dramatic chord) Publius’s First Law of Supreme Court Nominations – hearings are irrelevant to confirmations.

The main reason why (dramatic chord) Publius’s First is true is that there is no incentive to say anything controversial. If you don’t say anything of substance, nothing happens to you. If you try to articulate your views, you get punished. These nominees are smart people – it’s not hard to predict how they’ll act in light of the incentives the Senate has created.

Of course, it doesn’t have to be this way. The Senate could establish a norm that the nominee has the burden and that non-responses don’t satisfy that burden. But that’s not how it works. These days, the burden is on the Senate to justify blocking the nominee.

Getting back to Publius’s First, one corollary is that if you’re going to scuttle a nominee, you need to do it before the hearings (see Miers) or at least on the basis of information gathered outside of the hearings. You can’t count on the hearings for squat. That’s why it kills me when I hear Senators saying that it’s too early to comment on a nominee and that we need to wait until the hearings to decide. Now perhaps that’s just the statesman thing to say, but it also guarantees a 100% confirmation rate. The hearings aren’t going to reveal anything because the nominee isn’t going to say anything – again, because there is no incentive to do so and every incentive not to.

Divide and Get Conquered

Another prediction I have is directly related to the concern I raised about the Dems’ 2006 strategy – their criticisms won’t be focused. Just look at how they approached Roberts. Leahy talked about the executive power concerns. Feinstein talked about Roe. Kennedy talked about voting rights, and so on. Each one had their own little line of attack (this of course was on the second day – it took a whole day to get through the Senators’ speeches and opening statements).

If hearings were not Kabuki dances, this divide-and-conquer approach might be a good one – both politically and for the nation more generally. It would help Senators gather information about a maximum number of topics upon which they could then make a careful, informed decision. But in light our Kabuki reality, it’s a terrible strategy. If Dems were serious about stopping the nomination, they simply can’t hit him on every conceivable topic. They have to pick one or two and focus their efforts there. These hearings aren't about gathering information anyway - they're about political theater. Thus, if the hearings are to have any consequence, they must be incorporated into an external media strategy, whatever that happens to be.

Broder Wins the 110% Award

I think today’s Broder column wins the award for the all-time laziest column. Because he’s David Broder, he was weighing what both sides think about something. After adding a (negative) Sunstein quote about Alito, he added:

But the evidence on Alito's motivations is not one-sided.

Well, of course not. Otherwise the scales wouldn’t balance. But I’m not to the good part yet:

At the suggestion of White House allies, I spoke with two of his former colleagues who presented compelling [!!] personal testimony that he is not a man driven by a personal or ideological agenda.

One was his clerk. And another was a Carter-era U.S. Attorney. Broder was directed to both by the White House. That’s some damn fine gumshoe work, Davie! Hey Scotty, Broder here. I need some compelling personal testimony for tomorrow’s column. Any ideas? For his next round of “compelling personal testimony,” maybe he’ll check with Alito’s children.

And Finally - A Question

I hope everyone saw the story about the people who sneaked (I prefer “snuk”) into the Senate conference room and anointed Alito’s chair with “holy oil.”

Here’s my question – What exactly is holy oil? And how does oil become “holy oil”? Are there procedures? Chants? Slayings of virgins while wearing goat leggings and horns?

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Ed Kilgore seems to agree with the 2006 political strategy I outlined in the previous post:

Contra those Democratic commentators who say we should just forget about corruption and focus on the GOP's ideology and policy positions, I strongly believe the GOP three-pronged defense can and must be countered in ways that constantly connect corruption to the ideology and money-driven political strategy of the entire Republican Party from top to bottom. It may be the only way to batten on the powerful anti-Washington sentiment out there, while assuaging cynics that Democrats actually offer an alternative approach to governing.

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Now that we’re officially in an election year, I guess it’s time to start thinking about political strategery. Ironically, I believe that one of the Democrats’ biggest problems will be the excess of things to complain about. After all, there are so many potential issues to both justly criticize and to demagogue – Schiavo, Social Security, DeLay, Katrina, Plame, Iraq, corruption – that it will be difficult for the Dems to combine them all into a coherent line of attack. So they shouldn’t even try. They need to keep it simple and stick with one – just one – theme. And that theme is the “culture of corruption/above the law” critique. That’s it. Nothing else. Pound it home again and again. Let the other issues (especially Social Security) be demagogued on a local level as necessary, but nationally, the corruption theme is the way to go. It should be one-year media blitz about one thing. There shouldn’t be a single Democrat on TV at any point in 2006 speaking on behalf of the party who doesn’t bring it up. Corruption. Corruption. Cronyism. Cronyism. Above the law. Above the law. Every single day – all year.

That’s my advice. The rest of this post will offer a number of reasons why I think this would be the best strategy – in terms of both (1) why it’s good to focus on merely one theme; and (2) why it’s good to focus on this particular theme. Let’s begin with the latter.

When it comes to political attacks, I think Democrats need to learn something that the GOP learned long ago – sometimes the point of an attack isn’t to win an argument, but to create an ongoing debate about a topic of your choosing. The political genius of Reagan, to me, was his ability not so much to win debates, but to define the terms of political debates such that he couldn’t possibly lose. For instance, by framing the debate in terms of “small government” versus “big government,” Reagan couldn’t lose. So long as Democrats are fighting within that linguistic arena, they’re necessarily losing. Same deal with gay marriage. The point wasn’t really to convince people – it was to put the debate on the front pages. Even if pro-marriage forces “win” the argument, winning isn’t the point. The point is to have the debate. In 2004, the mere fact that it was being discussed hurt the Dems.

By forcing a debate over corruption and cronyism, Democrats necessarily win. Just look at how the GOP has responded so far – “well, Dems are corrupt too” or “Dems got dirty money too.” Those are horrible arguments. For one, they implicitly concede that the GOP has been misbehaving. For another, they (at best) generate disgust toward the status quo, which can only hurt the party in power. The only way for the GOP to win this debate is by not having it. If they’re having it, they’re losing it.

Another strength of the “corruption/above the law” criticism is that it’s the simplest theme that ties together the most politically damaging stories. First, it ties together a lot of individual bad actors such as Libby, Rove, Abramoff, DeLay, Ney, Frist, Safavian, Cunningham, Norquist, and Reed even though these individuals’ misconduct isn’t necessarily related. Second, it’s a good critique of the pathetic joke that the money-grubbing Congressional Republican leadership has become – especially in the House. The corruption theme ties together things like holding votes open, voting in the middle of the night, abusing the conference committee process, not swearing in oil executives, and so on. Corruption’s first cousin – cronyism – ties together Miers, Brownie, Katrina, and the administrative state’s incompetence more generally. Finally, the corruption theme resonates nicely with the “above the law” critique that can be applied to Bush’s king-in-wartime theories and actions.

Fine, you say, but why should the Dems focus on only one particular theme and ignore others? I’m glad you asked. Obviously, there are costs and benefits to a strategy that focuses on only one theme. The costs are that you don’t get to make all the critiques that are available. But I think the benefits outweigh the costs – and so does Karl Rove.

Throughout Bush’s career, Rove has instructed Bush to keep it simple. His campaign for Texas governor focused on only three or four points, and Bush’s attack on Kerry was essentially two-fold – flip-flopper and weak on national security. (Quick – can anyone tell me what Kerry’s attack on Bush was? Anyone? Anyone?). The reason why simplicity works is essentially an efficiency/economics-type argument. Information costs – the costs of informing people about your message and your attacks – are high. People work hard and do fun things on the weekend. There is a finite amount of time that the American people devote to the news and thinking about these things. The strength of the Rove keep-it-simple-strategy is its efficiency – when you limit your efforts to one or two themes, it’s more likely that the information will get through. By keeping it short and sweet, not only will your desired message reach more people, it will be constantly reinforced in people’s heads.

The other benefit of a simple message is that allows your candidate/party to take better advantage of the modern media/communications infrastructure. Because everyone knew the Rove theme, all the nodes of the GOP noise machine were on the same page – talk radio, Fox News, the White House press team, blogs, conservative press, etc. – everyone was saying the same thing in the absence of central command and control. This creates the same dual benefit of not only reaching more people (numerically), but reinforcing the desired message.

If the Democrats laser in on corruption/above the law, then all the nodes of its machine will probably fall in line too. I tend to think the liberal blogosphere/punditry tends to be more resistant to hierarchy, but it could only help to have a consistent message beaming from the powers-that-be in the party. More people will get the message, and the message will be reinforced. When that happens, people start reading about it the papers and start talking about it coffee shops and diners, etc., and that’s how you get your message spread.

Also, by focusing on one thing, Democrats could define the election right now and keep it from being a referendum on immigration or Iraq (which there’s simply no good way to approach – better to avoid it).

So that’s my advice to the Dems – keep it simple. But keep it up. Pound away every day for the whole year. Tie everything back to the main theme. Force David Broder to write columns about how the parties are equally corrupt and if you weighed each’s corruption on a scale, it would balance perfectly. Fine, I say – that’s a win for the party not in power.

After nine of months of pounding away, begin September with a “reform agenda” that has three or four points that are easy. Or just say the word “reform” and provide no details. This whole positive agenda crap is for the birds, I say. Elections are about making you dislike the other side. Attack, attack, attack – that’s how you win.

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For what it's worth, I think Hitchens strikes exactly the right balance in reflecting on the lifetime legacy of Sharon. Like Hitchens it seems, I don't like the man and I think he's committed horrible atrocities that should not be ignored. But his Gaza plan and later efforts (while not perfect) have definitely helped move history in a direction where it needs to move. And that can't be ignored either. Anyway, I'd encourage you to read it.

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I'm entering another one of those insanely busy periods at work. I hope to post tomorrow or at least over the weekend some.

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First, I want to extend my condolences to the families and friends of the dead West Virginia miners. There wasn’t mining where I grew up in Kentucky, but I did live in a small town and so I couldn’t agree more with Maha when she says:

As a small town girl, though, it’s not hard to imagine the impact of those 12 deaths on the small town of Sago. In small towns everybody knows everybody, so everyone in town will have known somebody who died. The impact of the disaster on Sago will be as heavy as the impact of 9/11 on New York City.

I agree – it will be the defining event of the decade, if not the generation, in Sago.

We don’t know all the details yet – but we’re already learning that this coal company racked up safety violation after safety violation, but nothing seemed to change. We’re also learning that the federal agency in charge of mine safety has been stacked with cronies and coal executives with little regard for enforcing mine safety regulations (remind you of anything?). Now, this doesn’t necessarily mean that the federal agency’s negligence played a role in the Sego tragedy – we need to know more facts first. My prediction, though, is that we’ll eventually discover that the mine continued to rack up violations because there were no consequence for regulatory violations in the age of the Bush administrative state. We’ll have to wait and see if that’s accurate.

Anyway, while I feel like doing some angry populist denouncing, I’m not going to. I don’t know the facts yet, and frankly it’s probably not appropriate right now. Instead, I want to use Sago to make a calmer and more general point about the role of government in the 21st century world.

The Sago story, like Katrina, is one of those rare stories that forces you to step back and reflect on the fundamentals – or “first principles” – of your political and moral values. We tend to lose sight of these first principles in the everyday give-and-take about this-or-that issue. But beneath all the gotcha and the plotting and the partisan bickering, there are values and assumptions that form the very foundation of our political thought. Even if we don’t think about them much, these fundamental assumptions are what make us “liberal” or “conservative” in the first place.

And one of my first principles is that government is a force for good. Government makes our lives better and more secure. I don’t believe in abstract Marxist reorderings of society, but I do believe that the American people are better off because of the actions of the federal government. That’s why I vote the way I vote, and that’s why I write the way I write. Clinton’s anti-government rhetoric was politically effective and all that, but if you really want a create a progressive majority over the long-term, you need to rehabilitate government in the minds of Americans. We need to stop running from this simple truth, and instead embrace it.

What’s immensely frustrating is that, despite what they say, I think the American people overwhelmingly agree with me – that is, they share this first principle of mine. The problem is that they don't always realize it. In fact, the straw-man debate over “big” versus “limited” government often takes place against an invisible backdrop of government-created benefits and security. It’s sort of like a benevolent Matrix – the benefits of government intervention are everywhere, but people don’t see it.

This is a critical point, so let me make sure people understand what I mean. The benefits of federal government intervention in our lives are so widespread that it becomes easy to stop noticing them. They just blend into the background and are assumed to be part of the natural order of the universe. But they're not.

Indeed, it's easy to forget that the things we now take for granted weren’t always around. I'm talking about things like: Clean air. Clean meat. The eight-hour work day. Safe working conditions. Insured bank accounts. The weekend. Interstates. Pell Grants. Affordable college loans. Free education. Integration. Women’s suffrage. Civil rights. Voting rights. Abolition. No starvation. Universal health care for the elderly and the (extremely) poor. Social Security. National parks. Family leave. Mine safety.

None of these things appeared organically as the inexorable manifestation of a benevolent unfettered free market. They were all the products of federal government intervention, which was itself the product of determined and often courageous individuals. Not one of these measures – not a single one of them – came easy. People fought – and in some instances died – to create them. In this sense, these programs are expressions of our highest morals and values.

And Americans don’t want to give up any of this stuff – and they don’t even debate it. That's why these measures collectively form the invisible stage upon which the “limited government” debate takes place. The stage itself, however, is never up for debate.

But the stage isn’t always invisible. In certain circumstances (often tragic ones), the invisible stage becomes briefly visible – and we see all too clearly the contingency of the safety net that generations of Americans have collectively and meticulously constructed. For instance, when Katrina struck, we saw a glimpse of the urban world that existed before the New Deal – as well as a glimpse of the world the New Deal has yet to reach.

Same deal for Sago. As bad as the Bush mining safety agency may be, I think it’s safe to say that miners (and thus their families) are one million times safer today than they were one-hundred years ago. And there's a reason for that - federal law. Sago, however, provided a brief but frightening look at the world before federal mine safety regulations - and the everyday risks that miners back then endured.

None of this means that government is always the answer or that government handouts constitute good government policy. Sometimes government intervention is necessary to create a market (telecom industry). Sometimes it’s necessary to reduce the insecurity created by a market economy (Social Security). Whatever the circumstances, the point is that government done right is a good thing. It makes, and has made, life better. And almost everyone agrees.

In short, government is good. It’s time to start saying so.

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[DISCLAIMER - Just to be clear, I’m making no claim that Verizon or SBC played any role in domestic spying. I’m using them only as examples of what I mean by “telecoms.”]

According to this Slate column, the executive branch wasn’t the only party conducting massive, warrantless, illegal surveillance on Americans’ communications. It seems that the private telecom companies helped them out because they’re, um, patriotic:

The New York Times reported in December that since 9/11, leading telecommunications companies "have been storing information on calling patterns and giving it to the federal government to aid in tracking possible terrorists." Citing current and former government and corporate officials, the Times reported that the companies have granted the NSA access to their all-important switches, the hubs through which colossal volumes of voice calls and data transmissions move every second. A former telecom executive told us that efforts to obtain call details go back to early 2001, predating the 9/11 attacks [?????] . . . our source [former telecom executive] says the government was insistent, arguing that his competitors had already shown their patriotism by signing on.

That leads to a very interesting question for you law nerds out there – could Verizon (or other private telecoms) be sued under 42 U.S.C. 1983? Or maybe 1985? If so, could this potentially be the biggest federal civil rights class action suit in the history of man? If you want the telecoms out of the spying business for good, I think a few million class action complaints might do the trick. It would certainly be more effective than appeals to privacy and liberty.

First, let me do a quick primer on Section 1983 and 1985. These statutes (especially 1983) are the granddaddies of civil rights protection statutes – they teach entire classes in law school on these two statutes alone (I took one). And if you’re going to be a federal law clerk, you have to learn them well.

The most important thing to remember is that these statutes don’t create rights – they vindicate existing federal rights (both constitutional and statutory). Thus, if a local mayor violates your First Amendment rights, Section 1983 allows you to sue him and get money damages. Again, Section 1983 doesn’t create the right – it establishes the remedy (money damages) for the violation of the right.

For your reference, Section 1983 creates a remedy for violations of federal rights while Section 1985(3) creates a remedy for conspiracies to violate federal rights. Both statutes were enacted during Reconstruction as an effort to battle the Klan (thus the need to provide a remedy for not just the violation, but the conspiracy as well). The problem was that, even though federal protections were now on the books, southern state authorities weren’t enforcing them. By giving blacks a federal remedy, Section 1983 (and 1985) allowed them to vindicate their federal rights in federal court.

It’s all a bit more complicated than that, but hopefully you get the idea. Anyway, one fundamental principle to remember is that both Section 1983 and 1985 require state action – that is, action or violations by the government or some government official (mayor, public school prinicipal, etc.). Most of our constitutional rights protect us from the government – that’s why, for instance, a private company can never violate an employee’s First Amendment rights. Only the government can violate the First Amendment.

Ok – so here’s where we are. Section 1983/1985 provide remedies for violations of federal rights, but generally they require “state action.” Thus, if the NSA (a government agency) violated certain Americans’ Fourth Amendment rights, those Americans could sue under Section 1983 and 1985 and get money.

At first glance, it seems that NSA’s little helpers – big private telecoms (e.g., Verizon, SBC) – could not be subjected to 1983 actions. But not so fast. While it is true that Section 1983 requires “state action,” “state action” doesn’t necessarily have to be action by a government official. In fact, courts have found private actors can engage in “state action” in certain circumstances.

I won’t get into the bowels of the doctrine (it’s messy down there), but courts have found so-called “private state action” in certain circumstances including (1) when there is a sufficient “nexus” between the government and the private entity or (2) when the private entity performs one of the “traditional functions” of government. For instance, if the Dallas police department transferred its responsibilities to some private security firm, the actions of the private firm would probably constitute “state action.” The idea is that government actors can't evade constitutional requirements by delegating their authority to private parties.

So here’s the point – if the telecoms’ actions can be construed as “state action,” they have opened themselves up to some massive potential liability for playing spy games with Shrub. That is, if the telecoms actively searched on behalf of the government, they might be deemed agents of the government and thus subject to 1983 liability. Alternatively, if the telecoms merely allowed the government to search the switches (i.e., opened the door and then stood aside), they could theoretically be conspiring to violate Americans’ Fourth Amendment rights. That would open them up to Section 1985 liability.

The key question is whether whatever they did happens to fit any of the Supreme Court’s tests for so-called private state action. I’m no expert here, but I don’t think it’s ridiculous to argue either that (1) the telecoms may have assumed a traditional public function here (e.g., conducting national security surveillance); or (2) that their actions were sufficiently intertwined with the government to constitute state action (especially under an agency theory).

Maybe I’m missing something here (again, I’m no 1983 scholar . . . yet), but I think things could get pretty messy for the telecoms depending on what else we find out. And don’t forget that 1983 is merely one potential lawsuit – I assume there are state privacy statutes and even derivative suits from angry shareholders potentially in play as well.

As for whether massive class actions are a good thing, I generally think they aren’t. I don’t think the private tort system works well for mass litigation – I think the government is generally better suited to provide appropriate compensation and penalties in circumstances like these. But the threat of a class action is a good thing. And maybe the optimal solution here is to bang the litigation drum loud enough to scare the shit out of the telecoms without actually causing the industry to collapse in bankruptcy.

[UPDATE: To clarify, the precise procedure for suing the federal government is a so-called "Bivens action." It essentially the same thing as a Section 1983 action. If I'm recalling my federal courts class, Bivens is essentially a Section 1983 action against federal government officials. Section 1983 applies to state/local officials. But they're the same thing in practice.]

[UPDATE 2: Also, for annoyingly complex reasons, any suit would have the name the individual, not the agency. For instance, if you're suing the NSA, you have to name the head of it and not the actual agency. I presume the same thing would apply here - you wouldn't name the telecom, you'd name the CEO or some other individual with authority. Again, though, it doesn't change the substance of the post.]