"It gets late early around here." - Yogi Berra
December 31, 2005
BLOG: By A Thousand Bites
Being attacked by a "pack of angry Chihuahuas" has to be as embarrassing as it is painful.
POLITICS: Renaming Albany "Trump City"?
If you missed it yesterday, the Daily News is floating the rumor - backed, apparently, by a tantalizing quote from State Senate Republican leader Joseph Bruno - that Donald Trump is thinking of running for governor as a Republican. The News is pushing this story again today. Random thoughts:
*Is the NY GOP this desperate? Why, yes, in fact, they are. I haven't followed the travails of Bill Weld lately, but I'm not feeling very optimistic about him at this stage.
*Would I rather have Trump as my governor than Eliot Spitzer? Yes, but that's hardly saying much.
*Trump does have some obvious selling points. He'd be self-financing. He understands business, which makes an effective contrast to the business-hating Spitzer. He knows how to get things done, and likely would work better and less confrontationally with the Legislature than celebrity governors like Schwarzenegger and Ventura have. He'd finally get the Trade Center site working.
*I have neither the time nor the energy here to recount the downsides of Trump as a public official (or as a campaigner), but let's just say there's no shortage of those, either. And he'd be only the most nominal of Republicans, even compared to Weld.
*The NY tabloids could not invent a better candidate for the purpose of selling newspapers.
December 28, 2005
POLITICS: Donkeys in a Nutshell
Dave Barry's political humor, like the rest of his humor, is always hilarious and often true as well, which is just one of many reasons why news that his weekly columns won't be returning is too bad. Barry's a libertarian, which explains why he's able to consistently target both sides of the partisan aisle. Anyway, there's one line in the first segment of his 2005 in review column (which has plenty of laughs at Bush's expense as well) that captures the Democrats in a nutshell:
In a strongly worded rebuttal, angry congressional Democrats state that, because of a scheduling mixup, they missed the President's speech, but whatever he said, they totally disagree with it, and if they once voted in favor of it, they did so only because the President lied to them.
December 27, 2005
WAR: Hey, That's Not Diplomatic! Part II
Reform at the UN proceeds. Who'd a thunk it?
BASEBALL: From Closer to Crook
December 23, 2005
POP CULTURE: A Christmas Playlist
WAR/LAW: Spying on Al Qaeda in the United States
Am I bothered by the revelation that President Bush has authorized, without a warrant, surveillance on telephone calls and emails involving people within the United States? Let's walk through the issues to explain why I think the criticisms of the Bush Administration are, as usual, vastly overblown; the only substantial legal or policy issue here is whether the surveillance at issue violated FISA, and there is (1) at least an argument that it did not, and (2) a substantial argument that FISA has been effectively repealed in the case of Al Qaeda by the Congressional authorization to use force against the perpetrators of the September 11 attacks. The bottom line is that as far as I can tell, the Administration is, in fact, taking an aggressive but plausible reading of the available legal authority - and doing so to advance our ability to interdict Al Qaeda. Which is precisely what the Administration should be doing.
(For now, I'll leave aside the loose lips that put this story in the New York Times; hopefully, Patrick Fitzgerald will have his day with them. I'll also leave aside some of the side issues here, such as how different the Bush Administration's program is from what was done under Clinton and the precise factual circumstances of some of the examples cited by the Administration of the kinds of past communications this program would have captured).
I. The Policy
As far as I can tell from the press accounts I've seen thus far, the National Security Agency spying program at issue involves continuous electronic surveillance of foreign communications - including communications originating in foreign sources but entering the U.S. - and extends to human review of a subset of those communications that are flagged for various reasons as involving Al Qaeda. Richard Posner explains well why the approach these programs take to data collection are no great threat to privacy.
Leaving aside the law for the moment - more on that below - as a policy matter, I see nothing even remotely objectionable about this. The universe of surveilled communications is limited in two ways: every communication involves at least one participant outside the United States (apparently it must be the participant who initiates the communication), and every communication involves at least one participant suspected of being part of, or closely associated with, Al Qaeda, our undisputed #1 enemy in this war. It's awfully hard to argue that we shouldn't be spying on Al Qaeda and associated groups with every means available to us; the only issue is whether we should pull some of our punches when Al Qaeda operates within the U.S. - despite the obvious fact that, because Al Qaeda is a terrorist group and not a conventional military power, Al Qaeda's core operations require it to operate within the U.S. And this Byron York piece on FISA is a good start in explaining why the pre-September 11 legal structures just don't allow enough flexibility to do all the things we need to do to keep up with Al Qaeda.
Sure, opponents of the Administration will say, the program may be limited now, but without judicial oversight, how can we stop the program from expanding? The answer, of course, is that all executive powers are subject to some abuses, including FISA; but the time to complain is when there is something to complain about. To play this story as if Bush has been doing surveillance of domestic political opponents is just disingenuous.
II. The Law
Our government is one of enumerated powers, circumscribed by enumerated limitations and rights of the people. A number of commenters, unfortunately, confuse this issue. The fact that the president has certain very broad powers, for example, does not make him a king; however broad those powers are, they remain subject to certain express limitations. Thus, the legal issue has to be approached in two main parts: does the president have the power, and are there rights and limitations that impose constraints on that power?
A. The President's Powers
1. Constitutional Authority
The President of the United States has two main sources of power in the area of national defense. First, Article II of the Constitution directly provides that "[t]he President shall be Commander in Chief of the Army and Navy of the United States," a power that therefore requires no further Congressional authorization and that, when properly exercised, at least arguably may not be restricted by Congress without amending Article II.
Second, Congress has several powers under Article I that bear upon the power of the Commander in Chief:
To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;
Article I also grants Congress authority "[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof," a grant of authority that is arguably broader in scope than the powers granted to the President and the courts. Nonetheless, it has long been recognized that both the President and the federal courts have certain "inherent" unenumerated powers to take actions necessary to make effective their enumerated powers.
The idea that this somehow makes the president like a king is ludicrous. The inherent powers of the executive can not be arbitrarily expanded to whatever area the president believes would be useful, any more than the Necessary and Proper clause grants legislative authority over unenumerated areas to Congress or the inherent powers of the federal courts extend beyond the kinds of powers (e.g., contempt sanctions, injunctions against conflicting proceedings) that are required to carry out the judicial function.
The Supreme Court made this quite clear in 1952 in rejecting President Truman's effort to use the exigencies of the Korean War as an excuse to seize steel mills. Justice Jackson, in his concurring opinion in that case (which I would recommend re-reading in its entirety), made this point succintly:
There are indications that the Constitution did not contemplate that the title Commander in Chief of the Army and Navy will constitute him also Commander in Chief of the country, its industries and its inhabitants. He has no monopoly of "war powers," whatever they are. While Congress cannot deprive the President of the command of the army and navy, only Congress can provide him an army or navy to command. It is also empowered to make rules for the "Government and Regulation of land and naval Forces," by which it may, to some unknown extent, impinge upon even command functions.
Justice Jackson also aptly described how the President's powers act in combination with those of Congress:
1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government, as an undivided whole, lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.
The Administration and its defenders have argued - and I would agree - that the use of espionage and surveillance against foreign enemies, including electronic surveillance, is a necessary incident of the power to act as Commander in Chief by virtue of being an ancient and well-recognized weapon of war, albeit one that is enhanced by modern technologies unforseen in the time of the Framers. The extension of this authority to surveillance of enemy actions, agents and associates within the territory of the United States is not in any way unsual: would the President need a warrant to spy on an invading army once it has crossed the border? Had you suggested this to James Madison after the British Army torched the White House, he would have been horrified. Anyway, the DOJ letter detailing the Administration's position notes that this position has been upheld in the courts (although I confess I haven't read the cases).
So, yes: the power to conduct the limited surveillance at issue - on declared foreign enemies of the United States and their agents and associates within our borders - is unquestionably within the inherent authority of the Commander-in-Chief. Thus, the only questions are whether that authority has been expanded or restricted by Congress and whether it is elsewhere restricted by the Constitution.
2. Statutory Authority
In light of Justice Jackson's framework, two Congressional enactments are at issue. The first is the authorization to use military force against Al Qaeda. The DOJ letter makes clear that this "AUMF" augments the president's constitutional authority:
The AUMF authorizes the President "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks of September 11, 2001, . . . in order to prevent any future acts of international terrorism against the United States." Sec. 2(a), The AUMF clearly contemplates action within the United States, See also id. pmbl. (the attacks of September 11 "render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad").
The second statute at issue is the Foreign Intelligence Surveillance Act ("FISA"). I will discuss FISA below, as it is impossible to separate the question of what powers FISA grants the President from what restrictions it imposes on him; in my view, the question of whether the NSA program can be squared with FISA is the only substantial question of law or policy in this whole brouhaha. But bear in mind that, even under Justice Jackson's third prong - which expresses deep skepticism about the scope of presidential authority when exercised in the teeth of a contrary federal statute - if the President violates an Act of Congress that does not render his actions automatically unlawful any more than the Supreme Court acts unlawfully in holding an Act of Congress to be unconstitutional; in either case, the question is whether a coordinate branch of government has properly or improperly concluded that Congress has overstepped the legitimate bounds of its authority.
B. Limitations on the President's Powers
1. Constitutional Limitations
The main Constitutional limit - really the only one of significance here - is the Fourth Amendment. The Fourth Amendment provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
As a number of courts and scholars, most notably Yale Law Professor Akhil Amar have argued, the touchstone of any Fourth Amendment analysis is reasonableness, not the presence of a warrant. Warrants are often required in domestic law enforcement as a prophylactic measure to ensure that searches and seizures are reasonable, but the caselaw is rife with exceptions to the warrant requirement, from "hot pursuit" and other exigent circumstance cases to certain good-faith errors in the warrant process to stops-and-frisks on the street; there's nothing in the Fourth Amendment that protects anyone against electronic eavesdropping without a warrant if, under the circumstances, such eavesdropping is reasonable. And again, I dare anyone to argue that such eavesdropping in the situations the NSA program actually aims at - communications initiated by members and associates of Al Qaeda and associated groups operating outside the US - is unreasonable. The fact that there are other communications as to which such eavesdropping would be unreasonable is entirely beside the point.
2. Statutory Limitations
This brings us to FISA. I am, I confess, no expert on FISA. Put briefly, FISA - enacted in the 1970s as part of the reaction to Watergate-era disclosures of excessive use of domestic spying - purports to be the exclusive avenue for executive authority to use such surveillance. The statute provides:
Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that--
The statute's definition of "foreign power" breaks down as follows:
(1) a foreign government or any component thereof, whether or not recognized by the United States;
Notably, the DOJ letter does not argue that the surveillance at issue complied with any of these exeptions (I wonder whether the Attorney General ever provided the required certifications to fit within them). Instead, the DOJ argues that, because the AUMF gave the president war-fighting powers against Al Qaeda, those war-fighting powers - which necessarily include the power of electronic surveillance as an incident of war - follow Al Qaeda wherever it may be, including within the United States. Thus, the argument goes, the AUMF has implicitly repealed FISA within the limited scope of surveillance against Al Qaeda and other parties determined by the President to be behind the September 11 attacks.
Orin Kerr, whose opinion I greatly respect, isn't a FISA expert either but it's a lot closer to his areas of expertise than mine, and his detailed analysis concludes that the NSA program violated FISA, and that the AUMF probably doesn't repeal FISA in this circumstance. Cass Sunstein, one of the nation's two or three most prominent liberal law professors and generally - though I usually disagree with him - a serious guy, believes that the AUMF probably should be read as repealing FISA for this limited purpose, a point he makes in this blog post and expands upon in this interview with Hugh Hewitt:
[I]f the president is just restricted to al Qaeda, and al Qaeda's friends, then he's on very firm ground under the authorization. If, on the other hand, the president has been engaging in wiretapping of people whose connection to al Qaeda is very uncertain and indirect, then the authorization is less helpful for him.
I guess I'd say there are a couple of possibilities. One is that we should interpret FISA conformably with the president's Constitutional authority. So if FISA is ambiguous, or its applicability is in question, the prudent thing to do, as the first President Bush liked to say, is to interpret it so that FISA doesn't compromise the president's Constitutional power. And that's very reasonable, given the fact that there's an authorization to wage war, and you cannot wage war without engaging in surveillance. If FISA is interpreted as preventing the president from doing what he did here, then the president does have an argument that the FISA so interpreted is unconstitutional. So I don't think any president would relinquish the argument that the Congress lacks the authority to prevent him from acting in a way that protects national security, by engaging in foreign surveillance under the specific circumstances of post-9/11.
I should note here, in support of Sunstein's point about the ambiguity of FISA's coverage and of its implied repeal by the AUMF, that the conclusion that FISA was violated is hardly bulletproof; Leon H of RedState makes a plausible argument as to why the exceptions apply, with citations to some caselaw. Again, I'm not a FISA expert and I haven't read the cases.
Is the DOJ's argument a slam dunk? Hardly. This is a close call in a number of ways. But I agree with Sunstein that, when you consider that the president acted in ways consistent with both his express constitutional authority and his authorization to use force, and not inconsistent with the Fourth Amendment, and in an area in which FISA itself may be ambiguous and may well have been implicitly repealed by the AUMF, the prudent conclusion is that the president does have the constitutional authority to do what is, to my mind, unquestionably the right thing: pursue Al Qaeda at top speed wherever it may operate, in or out of the United States.
December 22, 2005
BLOG: Quick Links 12/22/05
*Andrew McCarthy on the McCain torture bill. As I've said before (see here and here), I'm in favor of legislative action to make clearer what can and can't be done in the interrogation process going forward, at least as far as setting some outer limits and clear permissions. But I'm really concerned that this bill is a disaster. If there's one thing we don't need, it's getting the courts involved in this business or giving unlawful combatants anything like the rights of lawful combatants or common criminals.
*On a similar note, somehow, I doubt the people who loved Michael Scheuer's book are going to laud this op-ed.
*Jack Abramoff could plead guilty and testify against people on Capitol Hill. That's the main development that's needed for the whole Abramoff business to get interesting.
*Jack Dunphy on "Tookie" Williams complete with the predictable involvement of Jesse Jackson and Jackson's equally predictable failure to even know the names of Williams' victims. And Patterico on executing the innocent.
*One of Nathan Newman's co-bloggers defends the TWU, but really ends up just demonstrating the pettiness of some of the issues involved. I still fail to see what makes bus drivers and token clerks' jobs so extraordinarily valuable to society that they can demand a right to retire at 55, something the rest of us can only dream about. Soldiers? Cops? Firemen? Yes. But token clerks?
POLITICS: One Penny At A Time
*Jon Henke calls for Line-Item Budgeting - not just a line-item veto by the president, but forcing Congress to vote on each expenditure. More here. There would obviously be some practical hurdles: how do you decide what is a separate item? For example, can the Army budget include tanks and guns in the same item? One could see how even the hardiest advocate of creating obstacles to government spending might blanch at this if it's not carefully crafted, even leaving aside the practical poilitical obstacles to either (1) amending the constitution to require this or (2) getting our legislators to agree to it, to the detriment of their own influence.
A similar problem besets two similar ideas I keep coming back to. One is the idea of some sort of prohibition on items of spending and taxation that are, in effect, special-interest legislation. I do think you could, if you were writing this all from scratch, devise a fairly clear test for expenditures and tax breaks that do not benefit the general public, and perhaps even use the courts to enforce that line. But there would still be problems in policing the marginal cases.
Similarly, my other idea, which would require a narrow exception for certain critical national security functions: prohibit the federal government from sending money to state and local governments, or from imposing most mandates on them. Each governmental entity should raise through taxation whatever it needs, and no more than it can justify to the voters in its own jurisdiction.
BASEBALL: How To Get To 300
I was talking to some people about Roger Clemens, and thought I'd take a look at precisely how remarkable it is for a guy who has pitched in a 5-man rotation to win 300 games . . . anyway, what I decided to do was chart out the number of starts and relief appearances made by the 22 men who won 300 games. It's actually surprising, when you look at the numbers, how relatively few seasons of 40 or more starts the post-1900 300-game winners have compiled.
I left off complete games and innings, which is another issue; I wanted to focus just on how frequently these guys started and relieved. The chart lists career wins, starts, relief appearances, total seasons, seasons of 40 or more starts, seasons of 50 or more starts, and career high in starts (which is how I ranked the chart, from low to high):
A few notes. Lefty Grove won 300 games while starting only 457. Even with his high number of relief appearances, just think about that. In fact, Grove started more than 33 games only once. I was surprised to see quite how few starts Walter Johnson got per year for a guy who won over 400 games despite pitching for mediocre to lousy teams until his mid-30s; granted, he completed a ton of starts (all 29 in 1918) and like Grove, he doubled as his team's relief ace. In fact, until you get down to Cy Young, there's really nobody who was a 40-a-year guy for more than a couple of seasons. You can also see here how similar Nolan Ryan's and Don Sutton's career totals are.
December 21, 2005
BASEBALL: Between-Starts Trivia Quiz
I'm working on a longer post on a related topic, but thought I'd tease it with a trivia quiz (answer to follow tomorrow): Name the three 300-game winners to make more than 100 career relief appearances.
BASEBALL: How You Like Them Big Apples?
So Johnny Damon signs with the Hated Yankees, reportedly for 4 years, $52 million; he'll be with the Yanks through age 35. I guess he's not the greatest leadoff man ever after all. And I can't wait for the day when he and Bernie are in the outfield at once. Opposing teams won't even need third base coaches anymore.
The $52 million price tag isn't that bad, given the current market (e.g., $102 million for AJ Burnett & BJ Ryan) and while Damon seems to me to be a bad bet to be worth it by age 35, he will at least provide some solid value. (On the other hand, this is a guy whose OBP from age 27 through 29 was .339, and he's leaving Fenway for a tougher park - Damon's batted .310/.442/.383 at Fenway the past four years, .281/.440/.342 on the road). Still, were I the Yanks I would have sacrificed some offense, pursued a better, cheaper glove man like Mike Cameron, and tried to come up with a younger solution long-term.
On the other hand, the loss of Damon hurts the Red Sox more than it helps the Yankees - Damon is, at present, still a very good player - and that's worth something to the Yankees by itself. With the loss of Damon, the dumping of Renteria, the continuing efforts to deal Manny and the arrival of Josh Beckett and Andy Marte, the Sox are clearly leaning towards a semi-rebuilding mode, as was made necessary by the collapse of Schilling and Foulke.
UPDATE: Lyford thinks the Yankees are way overpaying Damon, given the various reasons to believe he will be less productive the next four years than the last and the fact that he's no better a leadoff man than Jeter, and rounds up some thoughts from Sox fans. I don't entirely disagree, but the Yankees' decision looks wiser when you consider how it hurts the Sox and the fact that, as I've noted before, it ought to be a seller's market for quality center fielders this offseason.
Also, following up on a point in the comments: in his career, Damon has batted an anemic .252/.346/.301 in 63 games at Yankee Stadium, compared to .298/.438/.373 in 66 home games against that same Yankee pitching.
BLOG: Transit Strike
Sorry if blogging's a bit slow at the moment, on top of everything else - work has been crazy the past month - I'm slowed by the transit strike (the LIRR, in its infinite wisdom, has closed my train station at rush hour as part of a "contingency plan"). I'm taking tomorrow off from work, so maybe I'll get more done then.
December 20, 2005
KATRINA: So You Say You Need A Job Over Christmas
December 19, 2005
BASEBALL: Just to Be On The Safe Side
I'm glad to see Teepee Talk noting that the Indians have signed Danny Graves. Just in case Minaya & Randolph got any ideas about bringing him back.
BUSINESS: Dell Loses Another One
Megan McArdle has had enough. If I haven't already, I'll just say that my experience was much worse.
WAR: Just Askin'
You know, re-reading this characteristically incisive Mark Steyn column, it occurred to me that if we do wind up in a military confrontation of some sort with Iran's new saber-rattling fanatic of a president, all the usual suspects on the Left are going to burst into a chorus of how you must believe Mahmoud Ahmadinejad, and not George W. Bush, if Bush says that the Iranians are dangerously close to having a fully armed and operational nuclear arsenal.
Which brings to mind an important point about rounding up political support for the American position in such a confrontation. Many politicians in the Democratic party went on record, on the basis of their review of the applicable intelligence, as saying that Iraq had and/or was working on weapons of mass destruction. Now, of course, many of them want to disclaim those statements and say they don't believe Bush, Clinton, Blair and the other heads of state who said Saddam had or was working on WMD.
Well, if the Democrats claim to be wiser now, they need to be asked point-blank: are the Iranians dangerously close to getting nuclear weapons in the next 2-3 years, or sooner? And they need to be willing to stand by their answers, knowing that if they say "no" and are proven wrong, they will have shown to the American people their willingness to err on the side of underestimating threats to national security, if that's the posture they want to take.
December 18, 2005
WAR: Cheney Goes East
The Vice President visits Iraq. It's getting to be about time for President Bush to return to Iraq as well. While it's obviously a security nightmare to handle these visits, given what a huge target the President or Vice President is, we've got more than enough people risking life and limb over there to justify another trip.
BASEBALL: Nomar Goes West
No-maaaaahhhhh signs another one-year deal, this one with the Dodgers. The Dodgers' infield situation is now something of a jumble, featuring Jeff Kent (2B/3B), Nomar (SS/UT), Rafael Furcal (SS/2b?), Bill Mueller (3B/1B?), Oscar Robles (3B), Cesar Izturis (SS), with Hee Seop Choi and Olmedo Saenz apparently platooning at first. Presumably, the addition of both Furcal and Nomar signals the Dodgers' lack of faith that Izturis will return at all in 2006 from Tommy John surgery. Which is wise; Izturis is at best adequate and at worst horrific with the bat, so it's prudent to make sure he doesn't rush back from surgery and damage his ability to make a full recovery as a defensive player, which is his primary asset.
You could argue, I suppose, that given the age and injury history of Kent, Nomar and Mueller, it just makes sense (budget be damned) to have all three of them around and just play whoever is available (especially as insurance if Furcal gets hurt). But if I were Derek Lowe, I'd be heading for the hills; this is not going to be a pretty defensive lineup.
As for Nomar, I fear he's skipped the "Fred Lynn in Anaheim" stage of his career and fast forwarded directly to the "Fred Lynn in Baltimore" stage. Ask Juan Gonzalez what happens to guys who keep needing to sign one-year deals because their health never holds up, to say nothing of the difficulty of putting up Nomar-style numbers at Dodger Stadium. Still, it should be fun to see if he can pull out a second act.
KATRINA: On The Beach
Instapundit carries a debate on the wisdom of building vulnerable buildings on beachfronts in the aftermath of the hurricane, centering on this blog post from a series at Popular Mechanics on the aftermath of Katrina:
Biloxi ought to be Exhibit A in any discussion of whether current coastal development regulations make sense. The beachfront properties were devastated, but only a few hundred yards inland, damage was moderate. Maybe there's a lesson there for developers? Apparently not. Compared to New Orleans, where whole neighborhoods remain deserted, Biloxi is crawling with construction teams. Most of them are busy rebuilding hotels right at the waterâ€™s edge.
I disagree. It's in the nature of beachfront properties to be second homes, hotels, resorts . . . buildings that are owned by for-profit companies, investors, and wealthy individuals, not someone's only home. These are the property owners most able to bear financial risk in return for the many pleasures and financial benefits of owning beachfront properties, and most able either to self-insure or to purchase specialized insurance from large and sophisticated insurers and reinsurers. In short, they're the very opposite of the hand-to-mouth denizens of the poorer wards of New Orleans, whose losses were personally devastating and whose care had to be taken up by the state in the aftermath of a disaster.
By all means, let's have a debate about putting urban slums back in harm's way. But if investors in beachfront hotels want to gamble on how many seasons it will be before the next Category 4-5 hurricane in the Gulf, let them. It's their money.
December 17, 2005
WAR: The Last Milestone
I've been terribly delinquent in not writing more about the Iraqi elections this week, but I didn't have anything new to add. Smash and Steven den Beste discuss the implications for terrorism in Iraq: Smash says Al Qaeda has to know it is finished, while den Beste cautions that Iraqi Sunnis will continue to use terrorism as a political tool.
Only the former, of course, is our problem; the difficulty of managing the ethnic and sectarian tensions within Iraq was inevitably going to be a problem once Saddam was gone whether we invaded or not, as was the case in the former Yugoslavia. By establishing democratic institutions and training Iraqi forces, we have given the Iraqis the tools they will need to deal with the problem in the future.
This week's elections represent, in a real sense, the last milestone to political victory in Iraq. We already had military victory in the broad sense when we conquered Iraqi territory and overthrew the old regime. Military victory against the insurgency, particularly the foreign terrorist element, has been slower in coming, and it's not done yet, not until we can complete the job of training Iraqi forces that can do the job themselves (a job that's a good deal further along than it was a year ago) and take down the bulk of the remaining foreign fighters. But on the political side, there's really nothing left to do except what Iraqis have to do themselves.
December 16, 2005
BASEBALL: The Saddest of Possible Words
Berroa to Grudzielanek to Mientkiewicz.
BASEBALL: Blooper Time
I don't know who will win the NL Central next year, but it won't be the Cardinals.
December 15, 2005
BLOG: Quick Links 12/15/05
*Ann Althouse wants cameras in the Supreme Court, in part as a way of subtly pressuring aging Justices to retire when they can't do the job anymore. I'm not sure how many cases that would work in, but I strongly agree with Althouse and Dahlia Lithwick on this one: unlike at the trial court level, where TV cameras can affect the behavior of non-lawyer participants (witnesses, jurors) whose impartiality the system makes great effort to preserve, the dangers of cameras in the appellate courts are pretty minor, and at their lowest ebb at the Supreme Court, whose members have life tenure and nearly never have any further career ambitions.
*The Phillies dump Vincente Padilla, apparently on the theory that they have too much quality starting pitching.
*I like the White Sox' acquisition of Javier Vazquez - unlike the Phillies, the ChiSox apparently aren't complacent about their pitching staff - who seems like he should still have some good years left, but I do wonder if homer-friendly US Cellular Field is the best place for him.
*Dean Barnett has a great post noting Kos' criteria for front-page contributors:
Markos made it clear what criteria he was and wasnâ€™t using in selecting the new guard:"I made my decisions, like I have in the past, based on two factors -- the first is merit. I don't concern myself with sex, race, ethnicity, or any of that stuff. This is a site about politics, and I wanted the best commenters on politicsâ€¦That's how I like it, no matter how controversial that might be."
*So, Joe Lieberman is loved by the GOP and hated by Democrats. Meanwhile, conservatives hate Lincoln Chaffee and Arlen Specter. But if Republicans traded Chaffee or Specter for Lieberman - even leaving aside questions about re-electability (Lieberman and Chaffee are up in 2006, Specter was elected to his final term in 2004), would we Republicans get a good deal? I'm not so sure. All three, like George Pataki and Christie Whitman, represent to a greater or lesser degree a New Republic-style brand of socially liberal, tax-cut-supporting, strong-on-defense, tough-on-crime, moderate-to-liberal on spending and regulatory issues Northeasterner who is poorly represented by both parties. But at least on domestic policy, Lieberman's been a more loyal soldier for his party: the American Conservative Union gives lifetime ratings of 41 for Chaffee and 44 for Specter, compared to 17 for Lieberman.
December 14, 2005
Don't forget to check the full coverage of the Iraqi election by U.S. and Iraqi bloggers at No End But Victory.
December 13, 2005
BASEBALL: How Old Is He?
Well, with the Mets signing Julio Franco to a contract that runs through age 48, it's time to play "how old is Julio Franco"?
*He was drafted by the Phillies in 1978. Players acquired or traded by the Phillies that year included Davey Johnson, Pete Rose, Jay Johnstone, Gene Garber, Ted Sizemore, Butch Metzger and Joe Charboneau.
*Franco was acquired by the Indians in the Von Hayes deal, along with, among others, Manny Trillo.
*Franco's double play partner in Cleveland, Tony Bernazard, is an assistant to Omar Minaya. Bernazard had a 10-year career in the major leagues and retired 14 years ago.
*Franco is a friend of George W. Bush, who attended Franco's wedding. Franco is closer in age to Bush than he is to Mets veterans Pedro Martinez and Carlos Delgado. He's also older than Bill Clinton was when Clinton was elected president, and the same age as Theodore Roosevelt when he was re-elected as president.
*Franco was born in 1958. Other players born that year include Alan Trammell, Mike Scioscia, Dave Righetti, Wade Boggs, Dickie Thon, Alan Wiggins, Orel Hershiser, Neil Allen, Scott Holman, Tim Leary, Teddy Higuera, Atlee Hammaker, Bruce Hurst, Joe Cowley, Marty Bystrom, Nelson Norman, Dan Petry, Tim Teufel, Walt Terrell, and Rafael Santana.
*Franco is older than Harold Baines and Tim Raines. He's two years older than Cal Ripken, Kent Hrbek, Andy Van Slyke, Frank Viola and Fernando Valenzuela. He's three years older than Kirby Puckett and John Kruk. He's four years older than Bo Jackson. He's five years older than Ozzie Guillen. He's six years older than Dwight Gooden. He's nine years older than Robin Ventura.
*Franco is older than Lawrence Taylor, Marcus Allen, Magic Johnson, Ronnie Lott, Freeman McNeil. He's two years older than Eric Dickerson, Ralph Sampson and Joe Morris, three years older than Isiah Thomas, Terry Cummings, Dan Marino and Boomer Esiason, four years older than Patrick Ewing and five years older than Charles Barkley and Al Toon.
*Hall of Famers Christy Mathewson, Lou Gehrig, Roberto Clemente, Tony Lazzeri, Addie Joss, Ross Youngs, Arky Vaughan, Ed Delahanty, Buck Ewing, Pud Galvin, John Clarkson, King Kelly, Rube Waddell, Frank Chance and Old Hoss Radbourn were all dead by the age Franco will be when his contract is up.
*Franco in 2006 will be the same age Sandy Koufax was . . . in 1983.
LAW: Snuffing The Gangs
I remain ambivalent about the death penalty on a number of levels, not least the question of under what circumstances a Catholic can support it. (On the other hand, as I've said before, the more I listen to opponents of the death penalty, the more I tend to lean towards supporting it). In particular, I'm not sure the death penalty is worth the economic cost, nor that it can be applied consistently enough in the case of ordinary homicides - armed robberies, individual feuds, domestic violence - to make the necessary deterrent effect worth the varied costs of the penalty. Anyway, more on that another day.
Because the execution of Stanley "Tookie" Williams seems to me to fall on the pro-execution side of an important line. What is significant about Williams' case is that he was responsible for being one of the founders of the vicious street gang the Crips; Williams set in motion an organization that specializes in preying on the weak and the vulnerable and corrupting the young and the impressionable. The case for the death penalty is at its strongest in dealing with organized crime - whether terrorists, street gangs, the KKK, the Mafia or the drug cartels - both because civilized society must use the means at its disposal to defend itself, and because the goal of deterrence is much more directly served when directed not at the general criminal population but at an organization whose members may know the defendant and who have reason to expect that they could be next.
December 12, 2005
POLITICS/LAW: Same Sex Marriage and Children
Last Thursday, the New York Appellate Division, First Department - the intermediate appellate court in Manhattan - upheld, against constitutional challenge, the New York Domestic Relations Law's extension of marriage only to opposite-sex couples. (H/T: Althouse). In so doing, it touched on some arguments on the issue that I've been thinking about for some time now.
In particular, our democratic polity has a rational basis for preferentially allocating scarce resources to benefit opposite-sex rather than same-sex married couples to promote two vital interests: promoting the population growth needed to sustain a healthy society and discouraging illegitimacy and abortion.
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With a subject as divisive as same-sex marriage, it's necessary to spend a little time first rehashing where I stand on the issue and why. The same-sex marriage debate, at least as it plays out in the realm of law and public policy, really encompasses four distinct questions about of rights and privileges:
1. Is there a social interest served by having government license and regulate marriage?
2. Is there a social interest served by having government provide financial benefits and incentives to encourage marriage?
3. Should same-sex couples be entitled to enter into a relationship licensed and regulated by the state?
4. Should same-sex couples be entitled to financial benefits and incentives that are provided to encourage marriage?
Not everyone comes out the same way on all four questions. Some libertarians, for example, argue that the state shouldn't be involved at all in licensing and regulating marriage. I don't buy that argument, not least because - much as I hate divorce - I recognize that in the absence of recourse to the courts to handle the dissolution of marriages and child custody disputes, you'd end up with more couples resorting to violence to resolve such disputes.
Libertarians and some small-government conservatives also argue that even if the state licenses marriage, it shouldn't be in the business of favoring any one relationship over others in handing out benefits and tax breaks. A 1999 GAO study estimated that the government alone preferential treatment of some kind to married couples in over 1,000 places in federal law, from pensions to the tax code. The libertarian/small-government conservative argument - that a smaller, less intrusive government would intersect with families at fewer points and that government shouldn't make any effort to encourage or discourage any particular behavior beyond what is legitimately criminalized - has its merits, but for now, I'll just leave that debate for another day. Like it or not, government is in the social-policy business, and until the day comes when we can create a radically smaller and less intrusive government, we're going to have to decide how that government allocates scarce resources among competing claimants.
As I explained at greater length here and here, I support legislatively extending to same-sex couples the right to have their relationship recognized and sanctioned under law, and I support as well allowing such couples those benefits that are provided to married couples principally for the purpose of enabling them to dispose of their own property and to participate in each other's major life events - benefits like joint title to property, inheritance rights, hospital visitation rights, etc. None of these rights imposes any substantial costs on society at large - except, perhaps, for the right to seek court assistance in dissolving the civil union - and they are consistent with the view that the decision to spend your life with a same-sex partner is between you, your partner and the Lord, and isn't fundamentally the state's business.
But where I disagree with proponents of same-sex marriage is on two counts: first, the effort to forbid the state from offering any benefits to traditional, opposite-sex married couples unless it offers them to same-sex couples on the same terms, and second, the effort to impose changes in the legal status of marriage through the courts rather than the democratic process. As I've explained before, what I find particularly offensive about the latter is the fact that its core argument - that there is no "rational basis" for the state to favor traditional, opposite-sex marriage - is precisely the denigration of such marriage that same-sex marriage proponents are constantly trying to disclaim:
[W]hat does stick in my craw rather severely is the Goodridge approach of having a bunch of judges pronounce not only a change in the thousands-of-years-old definition of marriage, but also that there is no rational basis whatsoever for that institution as it has always existed. . . [W]e're being asked to swallow a legal declaration that our longstanding and sacred institutions have no meaning, and we're supposed to smile when they tell us that. Why shouldn't that bother me?
Anyway, all of this is background. The New York court's decision properly recognized that this issue should be dealt with by the state Legislature (as is being done in Great Britain), not the courts, and distinguished the Supreme Court's 1967 decision in Loving v. Virginia, involving interracial marriage, finding that "that Court held that the intent of the anti-miscegenation statute directly conflicted with the fundamental right to be free from racial discrimination based on the Equal Protection Clause, as well as with the fundamental right to traditional marriage based on substantive due process." Hernandez v. Robles, 2005 NY Slip Op 09436, at *9 (N.Y.A.D. 1st Dep't Dec. 8, 2005).
The portion of the opinion I'm interested in dealt with the rational basis the state does have in offering additional benefits and protections to traditional, opposite-sex marriage:
Marriage, defined as the union between one man and one woman, is based upon important public policy considerations and has been recognized as a fundamental constitutional right. These considerations are based on innate, complementary, procreative roles, a function of biology, not mere legal rights. The reasons justifying the civil marriage laws are inextricably linked to the fact that human sexual intercourse between a man and a woman frequently results in pregnancy and childbirth.
Plaintiffs fail to carry their burden of demonstrating that the legislative facts on which the statutory classification is apparently based could not reasonably be conceived to be true by the governmental decisionmaker. They do not dispute the Legislature's assumptions concerning the advantages of encouraging the rearing of children by both biological parents. Their argument that the statute does not have a rational basis because it allows heterosexual couples unable or unwilling to have children to marry ignores precedent holding that the classification created by a statute need not be perfect. Nor does it lack rational basis because it addresses one legitimate policy interest or problem (regulating heterosexual marriage) over others even if they are related to the same subject. The legislative process involves setting priorities, making difficult decisions, making imperfect decisions and approaching problems incrementally, and rational basis analysis does not require that a legislature take the ideal or best approach.
Slip op. at *6-8 (Emphasis added; citations omitted).
There's a couple of critical points here. Proponents of same-sex marriage often treat the connection between marriage and children as an argument that can be disposed of by syllogism: that since heterosexual couples are able to marry even if they have no intention or ability to have children, it must be the case that bearing and begetting children has no rational relationship to marriage and can't be a proper basis for distinguishing between opposite-sex and same-sex mariage. There are, however, four major reasons for finding this argument unpersuasive.
The first, not discussed above, is one I'll touch on just briefly here: privacy. The state can determine just by looking at a same-sex couple that they're not likely to bear children, and can't do so through traditional means. With the exception of the aged and a few other classifications, that's not true of opposite-sex couples: the government would need to conduct an intrusive investigation to ascertain that an opposite-sex couple was infertile, not having sex, using birth control or otherwise unable or unwilling to bear children.
The next two reasons are related. As the court notes, the rational basis test doesn't require a perfect "fit" between the preferred solution adopted by democratic policymakers and the ends they seek to promote. There are scores of examples of government programs, tax credits and the like that provide benefits to a group of people or institutions not because they will all advance the interests the government is trying to promote, but because it can be rationally determined that they are more likely than another group to provide the desired social benefits. If we required a perfect fit, precious few government programs could survive rational basis scrutiny.
The third, related reason is that society as a whole has an interest in promoting childbearing, an interest the Hernandez court dryly notes is "critical, but presently undervalued." A look at the demographic crisis in Europe, Russia and Japan is all that needs to be said for the importance of this interest: without a decent level of childbearing, society becomes top-heavy with old people and enters a spiral of declining population, which is problematic on many levels.
Now, it's certainly true that same-sex couples can now use modern technology to have children without being in a heterosexual relationship. And it is argued - and argument I won't even try to wade into - that same-sex parents can be just as good at raising children as opposite-sex couples. That's still not enough to show that there's no rational basis for preferring opposite-sex couples if your goal is to promote having children.
Let's give a hypothetical example to illustrate why. Let's say that you're an investor in a new planned community, to be started from scratch in a part of the country that presently has little population. And let's further suppose that, based on the mix of businesses you are hoping to attract to your planned community, your consultants and investment bankers inform you that the economic assumptions of the project require that a fairly large proportion of the new residents be families with children. And, finally, let's suppose that you had a finite budget for advertising and sales, and that budget included a deal with an airline to bring in, say, 500 prospective residents at little or no cost to inspect the place.
It doesn't matter what your agenda or your biases are - acting out of pure rational economic self-interest, wouldn't you very strongly prefer that the 500 seats went to opposite-sex married couples? Aren't they very obviously the people most likely to produce children in general, and multiple-child families in particular? Granted, I don't have an empirical study in hand on the point, and I suspect that if you did one it would be objected to on the grounds that many obstacles stand in the way of same-sex couples having children . . . but even so, is it really so irrational to believe that a set of 250 opposite-sex married couples would, in almost any conceivable circumstance, produce more children than 250 same-sex married couples of the same age and socioeconomic background? If that isn't a rational conclusion for government to draw, there are precious few of the conclusions supporting any legislation that will withstand scrutiny.
The fourth point is the flip side of promoting the begetting and bearing of children: promoting the raising of children in two-parent homes rather than single-parent homes by "set[ting] up heterosexual marriage as the cultural, social and legal ideal in an effort to discourage unmarried childbearing". If underpopulation is a bit of an abstract, big-picture public policy problem, illegitimacy is not. An endless march of empirical studies has found that illegitimacy correlates strongly with poverty, criminality, and virtually every other social problem you can think of.
And, by definition, illegitimacy is an exclusively heterosexual problem. Unmarried gay sex does not lead to unplanned or unprepared-for pregnancies, period. Unmarried gay couples will not produce single-parent homes, nor will they have abortions, whereas the number of children aborted by or born to unmarried heterosexuals every year is very large. By targeting tax breaks and other preferential benefits towards opposite-sex married couples, government can help encourage unmarried opposite-sex couples to marry and can reinforce existing social norms in favor of such marriages.
Like I said, neither of the two arguments depends in any way on a legislative determination of whether same-sex couples are or are not as qualified to raise children as opposite-sex couples. Rather, they simply recognize that opposite-sex couples are more likely to have more children once married, and are also far more likely to have children even outside of marriage. It's an entirely rational policy choice, therefore, to focus scarce societal resources on promoting opposite-sex marriage as a way of sustaining population growth while discouraging illegitimacy.
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POLITICS: The Cost of Abortion
A new study from the University of Oslo compared women who miscarry and women who have abortions:
The Oslo team found that, after 10 days, 47.5% of women who had miscarried suffered from some degree of mental distress compared with 30% of the abortion group.
Naturally, the article reporting the study, from the BBC, includes quotes from representatives of the British abortion industry denying any ill effects from their product. As you would expect the industry to say. But avoidance of the truth requires a sustained commitment to avoiding empirical study of the facts.
December 11, 2005
BASEBALL: Random Trend Line
Noticed while looking up something else: Placido Polanco's Total Bases the past 5 seasons: 216, 221, 220, 222, 224. And in fairly consistent - the past three years, very consistent - numbers of plate appearances: 610, 595, 554, 555, 551. Polanco's one of baseball's more underrated players, a lifetime .300 hitter with a good glove at two infield positions - how many people even noticed him batting .331 this year?
December 10, 2005
LAW: Time for Some ADA Litigation
Mental health practitioners say they regularly confront extreme forms of racism, homophobia and other prejudice in the course of therapy, and that some patients are disabled by these beliefs. As doctors increasingly weigh the effects of race and culture on mental illness, some are asking whether pathological bias ought to be an official psychiatric diagnosis.
Can lawsuits claiming that racists are a protected class entitled to sue under the Americans with Disabilities Act be far behind?
UPDATE: This is as good a time as any to recount my all-time favorite "ADA run amok" story: after the $5 billion Exxon Valdez verdict, which was supposed to send the message to Exxon not to hire drunks as ship captains . . . the EEOC sued Exxon for, essentially, having a policy of not hiring drunks as ship captains. The Fifth Circuit ruled in Exxon's favor after something like seven years of litigation, but its ruling merely set the case for further proceedings, and I'm not sure how it eventually came out. But the point was made: Exxon was damned if it did, and damned if it didn't.
December 9, 2005
WAR: What's Farsi for "Mein Kampf"?
Iranian President Mahmoud Ahmadinejad engages in some Holocaust denial and suggests that Israelis should be relocated to Europe. (More here, as even Reuters can't spin this story to create an equivalence between Israel and Iran).
Ahmadinejad's remarks raise again the question: when a world leader threatens the unspeakable, to we take him at his word? Nobody took Hitler at his word until it was too late. We didn't really take bin Laden at his word until after September 11. On the other hand, even today there are those who argue that we should ignore the words of Saddam Hussein, relentlessly calling for jihad against America and trumpeting the September 11 attacks, in determining whether he was a threat.
We have Ahmadinejad's thinking, in his own words. Will we do anything before it's too late?
BASEBALL: Winter Meeting Roundup
*Well, the Blue Jays are back in the game with the acquisitions of BJ Ryan, AJ Burnett and Lyle Overbay, and they're not done yet. All are good baseball moves, although spending $102 million on Burnett and Ryan seems like a financial decision they may come to regret, especially given that they're still basically working towards building a third place team unless the Red Sox go into rebuilding mode, which seems unlikely with the acquisition of Josh Beckett and Mark Loretta.
*Tough times, by contrast, in Baltimore, even with the arrival of Leo Mazzone and Ramon Hernandez; Hernandez creates a bit of a logjam with Javy Lopez, and the revival of the Jays only makes the division more competitive.
*The trade of Edgar Renteria for Andy Marte - which I know will make at least one of our regular readers happy - is a fascinating challenge. If you apply the basic principles of modern sabermetrics, this looks like a heist for the sabermetrically-oriented Red Sox, who unload a player who is expensive, 30, coming off two straight off years at the plate and a terrible year in the field, and has lost a significant amount of speed (his signature skill) in exchange for a 22-year-old who the Baseball Prospectus named as the best prospect in baseball entering the 2005 season. (Marte batted .275/.506/.372 in AAA Richmond this year, unspectacular but impressive for a 21-year-old in what, if I recall correctly, is a pitcher's park, plus Marte cut his strikeouts as he moved up, a good sign). Even with the Braves needing a shortstop and even given that the Red Sox are eating part of the contract, I have to say that unless the Braves know more about Renteria and/or Marte than we do, this is a steal.
But you know what? They're the Braves. So there's a good chance that they do know more than you or I or the Red Sox know about these two players.
*I could live, I suppose, with the Mets possibly getting Mark Grudzielanek (thank heavens they wouldn't be playing him with Mientkiewicz), if he's cheap and, ideally, a bench player. But I don't like the idea. Grudzielanek is 36 and only useful if he bats .300, and players of his type tend to hit the wall very abruptly around 35-36 (Tommy Herr was 34 when the Mets got him). On the other hand, Jose Valentin is my kind of player, a guy who has had great range and made up for low batting averages with power, some patience, and an ability to avoid the DP. But he's also 36 and batted .170 last season (he also had a huge spike upward in walks, which Bill James thinks can sometimes be a trouble sign for an old player); I don't want to get the tail end of Valentin's career just because he was useful a few years ago. Mercifully, it appears that they've only signed him to a 1-year deal.
But I'm glad the Mets passed on Bernie Williams. You never know anything for sure in this game, but it's hard to be surer about anything than that Bernie is done. With little range and no arm, he's a liability in the field; he's got minimal power now, and has batted .263, .262 and .249 the last three years. Bernie should retire, but he's apparently returning to the Yankees, to do what I can't imagine.
Julio Franco, I like, but a two-year deal for a 47-year-old?
And the Rangers can keep Laynce Nix and his career .285 OBP in Coors Field South.
*Gee, what were the odds that things would end badly for Roger Clemens in Houston, and over money? I still say, as I've said for the past six years, that this ends with Clemens trying to go into Cooperstown in a Devil Rays hat . . . much as I hate to say so, Clemens owes it to baseball to keep pitching. You can't retire while you're that good, you just can't.
*Alfonso Soriano remains a talented slugger who can play in the middle infield, but his decline at the plate the past two years really has been masked by the park, plus the Nationals are getting him while they still have Jose Vidro, so if they can ever get Vidro healthy they will have to move one of them. I think the Rangers got the better of this deal, adding a guy, Brad Wilkerson, who has power and a lot of plate discipline, although he did have a poor 2005. Wilkerson's a year younger, and as recently as 2004 hit more homers and scored more runs. I wonder how many fewer pitches opposing starters will have to throw this year by exchanging Wilkerson for Soriano.
More on some of the other moves another day, if time permits. It's been a busy winter.
LAW: Not Unusual
Supreme Court correspondent Tony Mauro pens an odd dispatch (reg. req.) on John Roberts' first opinion as Chief Justice, a unanimous opinion for the Court in Martin v. Franklin Capital Corp., No. 04-1140 (U.S. Dec. 7, 2005):
The case, which interpreted the statute that governs the removal and remand of civil cases between state and federal courts, did not lend itself to soaring constitutional rhetoric, and it got none from the chief justice.
Mauro is right that the opinions issued this early in the term are usually unanimous dispositions of cases raising no major constitutional issues. But actually, I found this opinion to be both important and eloquent. Important, because successful remand motions are a fairly common event - maybe not to the average citizen, but to practicing lawyers - and thus the standard for awards of attorneys fees in that situation is a matter of practical significance. The need for the Supreme Court to revisit this issue being unlikely, this opinion will probably still be routinely cited a hundred years from now.
And eloquent, in Roberts' treatment of how courts deal with matters that are within the discretion of the district judge, in a passage that is likely to be widely cited outside of its narrow context:
The fact that an award of fees under Sec. 1447(c) is left to the district court's discretion, with no heavy congressional thumb on either side of the scales, does not mean that no legal standard governs that discretion. We have it on good authority that "a motion to [a court's] discretion is a motion, not to its inclination, but to its judgment; and its judgment is to be guided by sound legal principles." United States v. Burr, 25 F. Cas. 30, 35 (No. 14,692d) (CC Va. 1807) (Marshall, C. J.). Discretion is not whim, and limiting discretion according to legal standards helps promote the basic principle of justice that like cases should be decided alike. See Friendly, Indiscretion About Discretion, 31 Emory L. J. 747, 758 (1982). For these reasons, we have often limited courts' discretion to award fees despite the absence of express legislative restrictions. . .
(As some other commentators noted, Roberts managed to slip in citations to both judges he clerked for, then-Justice Rehnquist and legendary Second Circuit Judge Henry Friendly).
December 8, 2005
Anyone who has ever had trouble with a bar exam can take some comfort in seeing that prominent constitutional lawyer and former Stanford Law School Dean Kathleen Sullivan has failed the California bar. Click the link for the Angry Clam's explanation of why he thinks this would happen.
KATRINA: The Wrong Museum in the Wrong Place at the Wrong Time
The Club for Growth notes:
[T]he Army Corps of Engineers is, in large part, to blame for the levees breaking down in New Orleans during Hurricane Katrina. Now, thanks to Republican Senator Thad Cochran, part of the funds being used to help pay for Katrina relief - approx. $13 million - will be used to build a museum celebrating the Army Corps of Engineers!
Now, the Army Corps of Engineers has, in fact, had some accomplishments, but it's obscene to choose this time and place to siphon off money from rebuilding a mess that its own engineers were largely responsible for so as to build a museum in its honor. We should be discussing radical restructuring of the Corps right now, not a freaking museum.
BASEBALL: Overtaken by Events
First of all, I continue to be tied up with work stuff, so apologies if blogging has been a bit light around here . . . I was going to blog on the Kris Benson for Mike MacDougal and Jeremy Affeldt rumor, but that seems to have fallen by the wayside now.
Still, I wouldn't be heartbroken to see Benson go:
1. Pedro-Glavine-Heilman-Trachsel-Seo, possibly with Zambrano as a long man/emergency starter, sounds fine to me. They can afford to part with Benson for help elsewhere, say in the bullpen (presumably, they can't find anyone dumb enough to take Benson with one of the Mets' other starters for a better starter).
2. Benson's K/9 rates by month, 2004-05 (Sept. 04 includes one October start, and he missed April 05):
Call me paranoid, but especially with Benson's poor durability record, that severe dropoff the last two months of 2005 scares me. I'm concerned that Benson is a ticking time bomb, and an expensive one.
December 7, 2005
LAW: It Never Ends
The Supreme Court just held (in an opinion by the as-yet-unretired Justice O'Connor) that if you are delinquent on your student loans, the government can take it out of your Social Security.
BASEBALL: Johnny O Hangs It Up
For Mets fans, at least, a sad day: John Olerud has retired. Olerud can still play - he batted .289/.451/.344 this season, and he drove in 37 runs, which projects out to 128 RBI per 600 at bats - but he's really a bench player at this stage of his career, and I suppose he didn't want to keep playing in that role. Olerud could possibly have been a Hall of Famer if he'd (1) not had a couple of lost years at age 26-27 with the Blue Jays and (2) kept chugging rather than falling off after age 33; his career .295/.465/.398 line is a very solid one, but like Keith Hernandez he was the kind of player who really needed a long career and some milestones to be immortalized.
You'll never see another player cooler under pressure as Olerud - the guy is absolutely unflappable. Throughout his career, he always had a knack for hitting when the rest of his team was cold. I'll always remember his crucial grand slam off Greg Maddux on September 29, 1999, giving the Mets the juice to snap a 7-game losing skid in the heart of the pennant race and set up their miraculous run to the wild card, as well as his reaching base 14 straight times over a key weekend in mid-September 1998. The Mets might well have won the World Series in 2000 if they'd kept Olerud, and even with his later struggles at the end of his Seattle contract, they would have avoided the Mo Vaughn fiasco. Olerud's three-year tenure at Shea left him as the Mets' career leader in batting, OBP and OPS. At his absolute peak, Olerud was a monster offensive force, a fine glove man, and a calm, steadying presence.
LAW: The Limits of Press Freedom
This decision of the US District Court in DC, Friday, reaffirming a prior decision, is a good illsutration of the same principle that underlay the courts' refusal to allow press freedom to trump the needs of Patrick Fitzgerald's investigation in the Plame case. The court here allowed a subpoena to a financial publisher (McGraw-Hill) who published market prices, so as to permit an investigation of an energy company accused of false reporting of those prices. The take-home lesson is that when the media is used as a necessary conduit in an alleged criminal act, it can't hide behind the First Amendment to avoid giving evidence.
LAW: Solomon Sitting Pretty
SCOTUSBlog thinks yesterday's argument in FAIR v. Rumsfeld, the Solomon Amendment case, went very well for the US. Justice Scalia is pushing the idea that Congress is due particular deference on the subject of military recruiting due to its enumerated power to "to raise and support armies" under Article I.
David Bernstein had a fine point last week on why law schools should rethink military boycotts, during wartime, as a way of protesting policies adopted by Congress and the President:
A hypothetical: would it have been morally appropriate for law schools to ban military recruiters during World War II because of military segregation and discrimination, or would it have been morally superior to cooperate with the military and provide needed talent for WWII, while still urging the political branches to change the military's policies (as Truman eventually did in 1948)? . . . when people criticized Joe Louis for recruiting blacks to join the then-segregated military during WWII, he responded . . . "[t]here may be a whole lot wrong with America, but there's nothing that Hitler can fix."
UPDATE: Dahlia Lithwick has a lengthier and more colorful account of the argument, but is equally convinced that the law schools are going to lose.
December 6, 2005
WAR/FOOTBALL: Crusading Again
Great KC Star story about Rob McGovern, Holy Cross class of '89 and a 4-year veteran of the Kansas City Chiefs, who has spent the past four years as a JAG lawyer in Afghanistan and Iraq. There was a whole family of McGoverns that played football at HC - they all went to Bergen Catholic, my high school's hated arch rivals (the BC football team was also the Crusaders).
Charges that Tom DeLay conspired to violate the Texas campaign finance statute are dismissed on the grounds that what he allegedly did wasn't a crime at the time, and Kos, displaying his usual grasp of factual and legal nuances, calls this "a technicality," pronouncing - in a phrase that would make George Orwell cringe - that this mere technicality is "that what is illegal now wasn't illegal under state law when DeLay committed his crimes."
Um, if they weren't illegal then, they weren't crimes. Now, some rules of criminal procedure, even ones with obvious constitutional roots, are technicalities, in the sense that they have nothing to do with guilt or innocence. The notion that you can't be prosecuted for something that wasn't against the law when you did it is not one of them, least of all in an area as heavily regulated as campaign finance law.
UPDATE: The decision dismissing the conspiracy indictment and upholding DeLay's indictment on money laundering charges is here. The court's decision seems persuasive on both grounds, that conspiracy to violate the Election Code was not a crime in 2002, and that the term "funds" in the money laundering statute can include funds paid by check.
The nutshell of what charge remains against DeLay is described thus:
If the state can prove that funds were obtained from corporate contributors by these defendants with the express intent of converting those funds to the use of individual candidates, or if the state can prove that these defendants entered into an agreement to convert monies already on hand, though originally received for lawful purposes, to that use by sending the money to the Republican National State Elections Committee with an agreement that funds of the same amount would then be made available by that committee to individual candidates for Texas political office, and can prove that funds in the same amount were in fact contributed to individual candidates by the Republican National State Elections Committee, then they will have established that money was laundered. The money would have become "dirty money" at the point it began to be held with the prohibited intent.
Correct me if I'm wrong, but on my understanding of the evidence, this framing of the issues is very, very bad news for DeLay, particularly the latter standard - while it may well be that DeLay wasn't particularly involved in the specifics of receipt and routing of particular funds, it seems pretty clear that he's the kind of guy who would be intensely involved in controlling where and to which candidates funds would end up being disbursed.
WAR: Taking the "New" Out of "News"
The Washington Times on how coverage of Guantanamo Bay is outdated, including the fact that most of the photos used in news stories about Gitmo are from Camp X-Ray, which closed in April 2002.
December 5, 2005
BLOG: . . . Just to be Nominated
I am nominated once again for Best Sports Blog in the Weblog Awards. Really, go and check out the other blogs that have been nominated.
BASEBALL: LoDuca To Queens
So, the Mets plug another hole by going back to the same well that produced Mike Piazza, Al Leiter, Dennis Cook and Carlos Delgado, trading in two relatively unknown (to me, at least) pitching prospects at the Marlins' garage sale for Paul LoDuca. LoDuca's a solid, unspectacular player, 34 years old now, a lifetime .283 hitter but with only modest power and patience who is owed $6.25 million per year in 2006 and 2007. Not a great pickup in the abstract, but probably cheaper and more durable than Ramon Hernandez and a better bat than Bengie Molina. LoDuca's no great shakes defensively. One good sign is that LoDuca, like Piazza, comes to the Mets from two NL pitcher's parks, so what you see on paper is likely to be what you get.
The big decision, of course, is whether to try to ride LoDuca hard in the first half or rest him with a lot of Ramon Castro; LoDuca is just about the most notorious first half hitter in the game, with a lifetime split of .308/.453/.362 before the All-Star Break and .257/.375/.312 after. The question is whether that's a persistent fatigue issue or just a seasonal pattern. The pattern was nearly absent in 2005 (.286/.375/.338 vs. .279/.388/.328), as he got more time off, which could suggest fatigue, or it could just be a sign of decline that he had a typical second half without the great first half.
I assume that the LoDuca deal, coming on the heels of acquiring Delgado and Billy Wagner, is the end of the Mets' shopping spree - after this, they may still deal, but not from need and not to acquire new salary obligations to mop up all the payroll room they cleared with the departures of Piazza (who is now definitively not returning at any price), Cameron and Looper.
BLOG: Warblogger Awards
December 3, 2005
RELIGION: Good Advice From Jonah Goldberg
December 2, 2005
SCIENCE: There's One! Set for Stun!
This is just cool (picture and more here), but I have trouble seeing the practical application, except maybe for crowd/riot control. It doesn't seem powerful enough for the battlefield or mobile enough for regular police work.
POLITICS: The Bush Tax Cuts, Illustrated
This handy chart from the Treasury Department illustrates the recovery in employment since the 2003 tax cuts - which, unlike the original 2001 cuts, were phased in imemdiately and thus could immediately affect incentives - quite nicely.
BASEBALL: Sox Sue Minky
This isn't a lawsuit you see every day.
BASEBALL: Bert Belongs
Via Repoz, I see that there's a campaign afoot to promote Bert Blyleven for the Hall of Fame, including the website Bert Belongs. I strongly support this effort. You can see my case for Blyleven (written in December 2000) here, and more on Bert's place among the great pitchers here and here.
December 1, 2005
LAW: Tort Reform: The Market Responds
A Texas plaintiffs' firm specializing in silica and asbestos litigation lays off 8 attorneys and closes an office in response to a tort reform bill signed by Texas Governor Rick Perry that separates claims of injured from non-injured plaintiffs. The firm's managing partner says, "[w]e are not going to handle as many cases as we used to handle because of the reforms." (Reg. Req.)
WAR: A Seymour Hersh Reader
Since the subject came up in the comments, I thought I'd offer a little reading list on the issue of Seymour Hersh's credibility. Some of these are rather long, a few raise duplicative subjects, and some are obviously written by people with axes to grind, but the sheer mass of problems with Hersh's writings and speeches, combined with the near-impossibility of confirming the truth of most of Hersh's anonymously-sourced claims, makes it foolish in the extreme to take Hersh's reporting at face value:
*Long 2003 profile of Hersh by Scott Sherman in the Columbia Journalism Review, focusing among others on the credibility problems that led to Hersh's departure from the New York Times.
*Barbara Comstock at National Review (May 2004) on Hersh's rap sheet, focusing on his book on the Kennedys and other books.
*Greyhawk at Mudville Gazette (May 2004) on Hersh misrepresenting the Abu Ghraib investigation.
*John Miller at National Review (December 2001) on Hersh an anonymous sources, focusing on the Kennedy book and his reporting on Afghanistan in 2001.
*Max Boot in the LA Times (January 2005) on various Hersh misstatements.
*Lowell Ponte in FrontPageMag (May 2004) on Hersh's history, with skeptical quotes from several liberal journalists, reference to a 1991 book sourced to a scam artist and criticism of Hersh's reporting on Chile in the 1970s.
*Dafydd ab Hugh email posted at Powerline (May 2004) noting an obvious misrepresentation of the Taguba Report.
*Michael Totten (November 2005) on Hersh's distortion of the assassination of Rafik Hariri.
*Scott Shuger in Slate (November 2001) on Hersh's Afghanistan reportage.
*Jason Maoz of The Jewish Press (January 1999) summarizing multiple attacks on Hersh's credibility.
WAR: Expanding the Battlefield
Reading through the National Strategy for Victory in Iraq put out by the White House yesterday, my mind kept coming back to the idea of expanding the battlefield. It is, however, a concept much easier said than done.
One of the themes in the National Strategy is essentially a version of the "flypaper" theory:
Prevailing in Iraq will help us win the war on terror. +The terrorists regard Iraq as the central front in their war against humanity. And we must recognize Iraq as the central front in our war on terror. +Osama Bin Laden has declared that the "third world war...is raging" in Iraq, and it will end there, in "either victory and glory, or misery and humiliation." +Bin Laden's deputy Ayman al-Zawahiri has declared Iraq to be "the place for the greatest battle," where he hopes to "expel the Americans" and then spread "the jihad wave to the secular countries neighboring Iraq." +Al Qaida in Iraq, led by Abu Musab al-Zarqawi, has openly declared that "we fight today in Iraq, and tomorrow in the Land of the Two Holy Places, and after there the west." +As the terrorists themselves recognize, the outcome in Iraq -- success or failure -- is critical to the outcome in the broader war on terrorism.
Essentially, the idea is that, by removing Saddam Hussein's terror-sponsoring tyranny and clearing the path for the first-ever free representative democracy in the Arab world, we have forced Al Qaeda and others sharing its basic ideology to fight us at a time and in a place of our choosing; both sides now recognize that the victor in Iraq will be in an immeasurably stronger position, both strategically and on the propaganda front, to pursue its goals throughout the region. Of course, Iraq was, aside from the other reasons for war, well-suited to this role for many reasons: the population was bone-tired of tyranny, the Kurdish north had developed institutions of self-government, the Shi-ite majority would not be receptive to foreign Sunni fanatics, and the terrain is more favorable to U.S. military technological advantages than, say, mountainous Afghanistan.
None of this is to say that the insurgency has been a good thing, but rather that the situation was one in which we could deal a blow to the enemy whether they fought or not. It is the recognition of that challenge that has compelled them to fight.
Anyway, part of the battle in Iraq has been essentially a war of attrition: we've been killing the enemy in large numbers and draining their financial and operational resources, while they have sought to find the magic number of U.S. casualties that will cause us to buckle and turn tail. Obviously, one of the major questions about this kind of war is to what extent the manpower and resources of the global enemy are finite, as opposed to being expanded by conflict. The National Strategy identifies three groups fighting our troops in Iraq:
Rejectionists are the largest group. They are largely Sunni Arabs who have not embraced the shift from Saddam Hussein's Iraq to a democratically governed state. Not all Sunni Arabs fall into this category. But those that do are against a new Iraq in which they are no longer the privileged elite. Most of these rejectionists opposed the new constitution, but many in their ranks are recognizing that opting out of the democratic process has hurt their interests.We judge that over time many in this group will increasingly support a democratic Iraq provided that the federal government protects minority rights and the legitimate interests of all communities.
The first two groups are unique to Iraq, although similar factions would exist elsewhere. But it's the third group we are interested in fighting worldwide. I suspect that there is, in fact, some element of truth to the idea that the Iraq War "created" more terrorists in the third group, in the sense that conflict always enables extremists to rally more people to their banners. It's impossible to quantify that effect, though, and the bottom line is that this brand of extremist comes from the pool of those who are already strongly sympathetic to the jihadists. I have to believe that there remain real limits to how much manpower and financial and operational resources the jihadis can call upon.
That's where the concept of expanding the battlefield comes into play. At present, U.S. forces are operating in two theaters where the enemy needs to put resources into fighting us - Iraq and Afghanistan. One of the lessons both of the Cold War and the two World Wars, however, is that America's deep vein of untapped financial, technological and manpower resources gives us a major strategic advantage in war once we can open enough different fronts to force the enemy to become overextended. This is particularly true when we can call upon the assistance of allies, at least to the extent of assisting us within their homelands and home regions. Even after years of controvesry over Iraq, we still have a few allies willing and able to commit major resources to the war on terror generally (the UK, Israel, and Australia) a few others willing and able to commit major resources locally (notably India and Russia), and a wider variety of allies willing to make partial commitments (the French and Germans have reportedly been quite helpful on the law enforcement side) or to offer case-by-case assistance.
But how do we bring those advantages to bear? The obvious answer would be to fight another war, displacing another terror-sponsoring tyranny in the Arab and/or Muslim worlds with a fledgling democracy. While it may yet be necessary to go to war with Syria and/or Iran, however, I don't really need to list here all the reasons why we shouldn't be eager for another war if it's not strictly necessary to the overall victory in the war on terror.
The Cold War would seem to offer a partial operational model. During the Reagan years, after all, we found many ways to put pressure on the Communist world without committing U.S. troops to another full-scale war like Vietnam and Korea. Some of those methods, like a budget-busting state vs. state nuclear arms race, can't be replicated here. But the strategy of promoting proxy battles against the Soviets, forcing up the cost of penetrating places like Afghanistan and Central America, while promoting democracy movements in the Soviet heartland in Eastern Europe, can be a partial model. After all, if we can encourage peaceful (or violent) movements towards democracy in multiple other states at once, we can compel the enemy to divert scarce resources away from Iraq to try to prevent democratic norms - which are anathema to the jihadists - from taking root across the region. The National Strategy identifies the opportunities:
[C]hange is coming to the region, with Syrian occupation ended and democracy emerging in Lebanon, and free elections and new leadership in the Palestinian Territories. From Kuwait to Morocco, Jordan, and Egypt, there are stirrings of political pluralism, often for the first time in generations.
While none of this is new, the commentary on these stirrings of democracy have tended to focus on two aspects: (1) the idea that our ideals are being vindicated and (2) the idea that we are progressing towards long-term regional goals. But that overlooks the strategic advantage of pressing for more democracy, more liberty, and, yes, more destabilization of existing regimes now and all at once: the more places on the map we can turn into vital interests that the enemy needs to address by dispatching terrorists, money and other operational resources to battle against the forces of democratization and liberty, the more it helps us win everywhere. Regardless of how we go about it, that's the effect we need to be thinking about in the context of expanding the battlefield.