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Rudy 2008?I've not said much on this subject here, but those fretting about Giulliani being too liberal on key issues to support should click here. My argument is that in an election for President of the United States, it's more important that a candidate accepts and understands that a lot of the controversial social issues are reserved by the Constitution to the States, and as long as Giulliani understands that -- the indications are that he does -- and will appoint judges and justices who will so rule, his substantive views on what individual states should do with that freedom are less important. Voting representation for DCI sometimes do serious writing too, you know. It isn't all blog all the time. Cameras on the campaign trailI actually heartily support this tactic. It's quite a neat way to catch candidates who speak out of both sides of their mouth, and a good way to intimidate candidates against putting their mouths in gear before their brain makes it out of neutral. Although in this case it's being levied as a weapon against a Republican candidate, I think it's a tactic the GOP should adopt (heck, why didn't anyone think of doing this with Kerry, the candidate to which the tactic would seem to be most directly applicable?). Tools that make it harder to be anything other than honest and consistent in politics should be welcomed as a matter of course. Term limits bandwagon rolls downhillJohn Fund takes doleful note of what appears to be the fact that those of us who support term limits are actually losing ground as the more brazen politicians seek to remove term limits. In the oft-quoted phrase of Wendell Phillips, "Eternal vigilance is the price of liberty ... Only by continual oversight can the democrat in office be prevented from hardening into a despot: only by unintermitted Agitation can a people be kept sufficiently awake to principle not to let liberty be smothered in material prosperity." A broken nomination processBen Wittes (an essay by whom I commented on here, back in April) has an interesting article about the confirmation process in the WaPo today. Hat tip: ConfirmThem. Orin Kerr and Jonathan Adler weigh in here and here. objected to the segregationist interrogation of Harlan, writing in an editorial that "if this line of questioning were to be followed further any candidate for the federal judiciary would have to satisfy the majority of the Senate Judiciary Committee that he was in line with that majority's view."It's all a long way from "save Miranda, save Miranda, save it from the Nixon four" and increasingly absurd questions about Vanguard, but that's natural enough - apart from Warren, Eisenhower's nominee, every member of the Supreme Court at the time of Harlan's nomination had been nominated by a Democratic President, and the Democrats had controlled the White House (and thus, the nominations process) for all but two years of the preceding quarter-century. In any event, Wittes' point is this: Live nominee testimony has become a meaningless Kabuki dance. A Democratic senator asks a conservative nominee about controversial topics. The nominee makes reassuring noises and commits to nothing. The senator appears exasperated. The nominee insists he will follow the law. The senator retorts that different judges have different views of the law. The nominee says something about bringing no agenda to the job ... It is time to end this failed experiment.A process with already inauspicious beginnings has descended into farce. It wasn't a long descent. I agree with Wittes, but before we get to that, let me just add something I intended to blog about during the week and didn't have to to do: the problem is not simply confined to the judicial hearing process. Earlier in the week, I was watching the Foreign Relations Committee hearing for John Bolton's U.N. Ambassador confirmation (I know what you're thinking: what a time for this to fall due, right?), and what particularly caught my attention was an exchange between Bolton and Paul Sarbanes. I call it an "exchange", but what was particularly striking was that it wasn't an exchange: Sarbanes had just asked Bolton about regional rotation of the UN's General Secretary, and had attempted to show that Bolton's position was at odds with the President's, by arguing that Bolton's position was inconsistent with a Financial Times interpretation of remarks made by Bush. Bolton deftly deflected the point, and Sarbanes asked about the Millennium Goals (it doesn't matter, for our purposes here, to know what they are; it's a MacGuffin). Sarbanes wanted to know - or rather, asked - why Bolton had sought to delete certain sections, and Bolton began to answer by saying that as he saw it, they had merely made clarifications. Rather than just carrying on, Bolton paused, and says something like "I can go into full detail about that now if you'd like?" It's a sort of courtesy question; you expect your interlocutor to reply "yes, that's what I was asking about." It's a rhetorical pause for breath. But Sarbanes simply gazed at his papers, said "uh huh," and carried on to the next question (which, as it turned out, was another attempt to show clear blue water between Bolton and Bush - no prizes for guessing Sarbanes' assigned role in this script). It simply couldn't be clearer watching this exchange that Sarbanes was no more interested in hearing Bolton's answers - let alone engaging in an actual dialogue with him - than Senator Biden was while "questioning" Justice Alito. Here, as in the juducial nomination process described by Wittes, the goal is not to ask questions and get answers - the advice Wittes quotes as having been given to the Chief Justice by his handlers before his hearings holds good: "you're going to be sitting there for 12 hours. If you make a 10-second mistake, that's all anyone's going to know about." Sadly, the nomination hearings have turned into a process where the party which doesn't control the White House tries to force one of those 10-second mistakes, and the other party tries desparately to avoid or ameliorate such mistakes, with often inane softball questions. (Don't think that this is entirely the minority's fault. Jeff Sessions actually asked Alito to describe how the appellate process works - "how cases come to you and what you should do before you make a decision or express an opinion on the ultimate outcome of a case; why you should be careful; and what this great legal system that we have arranges for before a judge makes that final decision?" Chuck Grassley, who's doing a perfectly decent job over at finance, already looked and sounded out of his depth even before opining that he wasn't a lawyer, but felt that was important. Funnily enough, I don't agree with Grassley that it's important to have someone on the Federal Reserve Board who's neither a banker nor an economist, the flipside of Grassley's point.) For these reasons and several others, I agree with Wittes, that televising nominations is a failed experiment, but unlike Wittes, I don't agree that the solution is simply to end the era of hearings. I would go further; this problem of pandering to the cameras is not unique to the Supreme Court nomination process, or even to the Judiciary Committee; it is endemic in the presence of the permanent television camera. In my view, televising the legislature is a failed experiment, period, and have said so before. The cameras should be removed entirely, certainly from committee rooms and in my view, from the chambers themselves. As much as I enjoy watching CSPAN, and as interesting as I think it is to watch the legislative process at work (to the extent that it does still work; it's fascinating to go back and read the Annals of Congress or the Congressional Globe, and see how they compare - poorly, in fact - to recent entries in the Congressional Record), I think that the confluence of cameras and the corruption of the legislative record (”I ask unanimous consent to revise and extend my remarks”) have encouraged the breakdown of the normal legislative process. Legislators are no longer talking to one another, they are talking to the constituents they imagine to be behind the cameras (witness Dick Durbin, who seemingly has given up even the pretense of talking to his colleagues on the floor, and now frequently lapses into looking directly into the camera during floor statements), and salivating at what the camera time might do for them. Worse yet, any Senator who breaks the party line to find a compromise is placed under the sort of intense scrutiny and fratricidal criticism with which Joe Lieberman, Ben Nelson, Lincoln Chafee and Olympia Snowe are intimately familiar with (respectively, from The Kossacks and the freepers). The corruption of the nominations process (something that, as those who watched the Bolton hearings will realize, is not confined to judicial nominations) is simply the most visible aspect of the rot. All in all, CSPAN was a nice idea, and it’s sure enjoyable to watch, but the price is too high. We shouldn’t be talking about extending this failed experiment to the Supreme Court, we should be talking about bringing it to an end. A provocative questionJust to make trouble, I have a post at SF asking if perhaps there is a case to be made that the VRA should be allowed to expire. The missing words in the conversation about sinking Bush approval ratingsCaptain Ed offers a lucid response to this WaPo story about the flight of conservatives from Bush. The only thing that seems missing from both stories are those two litte words: Harriet Miers. Perhaps it's only me, but as I see it, that was where it all started to go badly wrong; not just on the nomination's own merits, but because it came at the pinnacle of (and seemed to represent) a string of administration failures. Whatever else people had stuck with the administration for, one of the key unifiers was the long term project of remaking the judiciary; to be sure, different sections of the GOP had different ideas of what that project was about, but the Miers nomination displeased all sides. And of course, what did the administration do? It savaged its critics, which are the very people who are now telling opinion pollsters how unhappy they are. Am I alone in seeing this connection? McCain in California; Topinka in IllinoisOne of my favorite columnists, George F. Will, has a couple of related columnists, one of which relays the suggestion that nominating McCain in 2008 might put California back in play (that is, even if it can't be won, merely forcing the Democrats to spend time, money or effort to win it detracts from their effort on other fronts, which helps in close states); the other discusses the possibility of winning back the Illinois governorship, something that I think would be great for my next-door-neighbour state. It does make you wonder - as I expect the column is intended to - if perhaps Illinois could be put back in play at the Presidential level. Woman punches cop,A woman ran into the Longworth House Office Building Yesterday, avoiding a metal detector and ignoring a member of the capitol police who shouted after her. When the cop grabbed her, she turned around and punched him. The cop will be filling charges - but not just yet: he has to wait until Congress adjourns first, because the woman who punched him was a member of the House, Rep. Cynthia McKinney (D-Ga.). A return to a pre-civil war Parliament?Via Centerfield comes this story. The first instinct is to think that the columnist is exaggerating; a glance at the actual bill - coyly titled the "Legislative and Regulatory Reform Bill" - proves understatement, if anything. Under the proposed law, Parliament would (in practical effect) be relegated to a post facto veto over positive legislation promulgated by the executive branch across a broad swathe of legislation. I am mapping out a more substantial critique even as we speak; along with an essay on the confrontation clause and construction (relating to an Althouse comment thread), this means that there are now two "PDFcasts" (see discussion in cover posts for Finding compromise on abortion, 2/8/2006 and The supremacy clause, nullification and bad precedent, 1/10/2006) outstanding, which I hope to post this weekend. Electoral tectonics for statisticians: a reply to Todd EstesI was intrigued to read a new paper in Berkeley Elctronic Press' journal The Forum called Where the Votes are: The Electoral Geography of the Coming Democratic Majority by Todd Estes, which posits where the votes are going to be found for the Democratic Party's emerging electoral majority (I know what you're thinking: did the emerging democratic majority see its shadow in 2000, giving us six more elections of Republican Presidents?). Todd's paper immediatley made me think of a paper from last year by William Frey, The Electoral College Moves to the Sun Belt, because it undercuts its own premise: even if it applied to 2008, it doesn't take account of the reapportionment that will follow the 2010 census, with small - but potentially important - consequences for his model. I discuss precisely that in: (Technically it's less of a reply to Todd and more of a comment on his paper, but what's the functional difference really).Flag burning: tokenism and opportunism(Cross-posted at Centerfield) Sen. Hillary Rodham Clinton is supporting new legislation to criminalize desecration of the United States flag _ though she still opposes a constitutional ban on flag attacks.Everyone got that? She opposes a Constitutional ban on desecrating the flag, but is willing to cosponsor a law that is self-evidently violative of the First Amendment. Hat tip: Pandagon. For the curious, the bill is S.1911, which was introduced 10/24/05 by Sen. Bennett (R-UT), "the Flag Protection Act of 2005". This is not to be confused, mind you, with Sen. Bennett's nearly identical bill, "the Flag Protection Act of 2005", S.1370, introduced 7/1/2005 and co-sponsored by Sens. Byrd (D-WV), Conrad (D-ND) and Dorgan (D-ND). The active ingredient of S.1911 is that: Any person who destroys or damages a flag of the United States with the primary purpose and intent to incite or produce imminent violence or a breach of the peace, and under circumstances in which the person knows that it is reasonably likely to produce imminent violence or a breach of the peace, shall be fined not more than $100,000, imprisoned not more than 1 year, or bothNewsweek reports that the bill, "has been written in hopes of surviving any constitutional challenge;" since the only real difference between S.1370 and S.1911 is the presence of an explicit severability clause in the latter, one sincerely hopes that Sens. Bennet and Clinton are not deluding themselves that the addition of this provision constitutes "[hope] of surviving any constitutional challenge." Although "the government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word" (Texas v. Johnson, 491 U.S. 397, 406), the Supreme Court has held that "if there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable . . . [and] [w]e have not recognized an exception to this principle even where our flag has been involved." (id., at 414). In Johnson, the Court thus struck down state laws prohibiting desecration of the flag. The following year, in United States v. Eichman, 496 U.S. 310 (1990), the Court held that what is good for the gosling is good for the goose, striking down The Flag Protection Act of 1989, which Congress passed in a fit of pique at Johnson (still codified, incidentally, at 18 U.S.C. §700). The Supreme Court, not amused, rebuffed. The Government concedes in these cases, as it must, that appellees' flag burning constituted expressive conduct, but invites us to reconsider our rejection in Johnson of the claim that flag burning as a mode of expression, like obscenity or "fighting words," does not enjoy the full protection of the First Amendment . . . This we decline to do . . . Although the Flag Protection Act contains no explicit content-based limitation on the scope of prohibited conduct, it is nevertheless clear that the Government's asserted interest is related to the suppression of free expression, and concerned with the content of such expression. The Government's interest in protecting the physical integrity of a privately owned flag rests upon a perceived need to preserve the flag's status as a symbol of our Nation and certain national ideals. But the mere destruction or disfigurement of a particular physical manifestation of the symbol, without more, does not diminish or otherwise affect the symbol itself in any way . . . Punishing desecration of the flag dilutes the very freedom that makes this emblem so revered.(Eichman, supra, at 315-6, 319) (Citations and internal quotation marks omitted). Just to be clear: 18 U.S.C. §700, struck down by the Court in Eichmann, specified that: Whoever knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag of the United States shall be fined under this title or imprisoned for not more than one year, or both.And S.1900 specifies that: Any person who destroys or damages a flag of the United States with the primary purpose and intent to incite or produce imminent violence or a breach of the peace, and under circumstances in which the person knows that it is reasonably likely to produce imminent violence or a breach of the peace, shall be fined not more than $100,000, imprisoned not more than 1 year, or both.Seems pretty clear that this isn't going to last very long. I'm not sure this bill could be better written to be DOA if they'd tried; it thus smacks of tokenism. All of which must be within the brainpower of the Jr. Senator from New York, which brings us back to Hillary, and her strange endorsement of a doomed statute contrasted against her refusal to back a constitutional amendment to achieve the same thing. I'm sure that Sen. Clinton would express something to the effect of a desire to balance a desire to protect that broud symbol of our nation against a desire to avoid needlessly or excessively binding future generations, but the reality is that the Supreme Court has made is pretty clear that the only way in which the burning of the flag can be prohibited is a Constitutional Amendment. I am far from convinced that this is a bad idea (indeed, back in July, I was one of the only dissenters at Centerfield, when the issue last raised its head), but Sen. Clinton's hedging seems entirely cynical. Does she really think this is the way to appeal to red staters? Or is this merely a declaration of independence from the Kossacks? Bait and switchHow marvellous - Rep Pelosi now supports immediate withdrawal from Iraq |
    
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