Friday, February 24, 2012
Silky Pony & co-star negotiate return of sex tapes
I, for one, am relieved by this news: "Sex tape of John Edwards [&] mistress to be destroyed within 30 days after lawsuit settlement."
My relief flows from the general proposition that it's a good thing to reduce, when possible, the total number of things in the universe which, if seen by me by accident, might make me want to stab myself in both eyeballs with knitting needles.
The first version of the story I'd read, from TheHill.com, reported that "all copies of the tape will be destroyed within 30 days." If accomplished, that would be a rare exception to the general rule of thumb about sex videos in the digital/internet age.
But if you read to the end of the AP story, you'll find that "[i]n the settlement, the Youngs pledged to seek the destruction of any copies of the sex tape that may now be in the possession of the federal government." Meaning there are such, and meaning that the feds haven't yet made any such commitment. Nor, likely, could they — not while six felony and misdemeanor campaign finance charges are still pending against Edwards in connection with his co-star.
Just in case, I'm going to avoid acquiring knitting needles.
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UPDATE (Fri Feb 24 @ wee-smalls): Local press coverage indicates that we'll certainly hear and see more about the sex tape:
Hunter sued Young after Young's tell-all book published in February 2010 described the tape. The 21-page consent judgment and permanent injunction does carve out a notable exception to the disclosure injunction: items already sold by the Youngs as part of a movie deal based on the book.
....
"Ms. Hunter was demanding money up until very recently," said Robert Elliot, the Youngs' attorney....
This makes it sound like a financial wash, a walk-away deal where neither side paid any cash to the other. As for what's coming soon to your local motion picture theaters — or, maybe, not?
Information about the sex tape and the list known as "The Slut Club," as described in "The Politician," were specifically exempted from the non-publication order. The Youngs had sold the rights to the tape to Aaron Sorkin of Colvin Road Entertainment as part of movie deal for Young's story and book, according to the agreement, and Elliot said that anything said in the book is fair game.
However, in the agreement filed Thursday, Hunter explicitly retained the right to take the Youngs to court again with regard to the movie if more information stemming from the property returned to her is publicized.
Conspiracy theorists will immediately seize upon Aaron Sorkin's close ties to the Democratic Party and draw enthusiastic inferences and conclusions therefrom. But the Sorkin connection is actually old news. The old saying was that "Politics is show-business for ugly people" — but now it's just all an ugly blur, isn't it, even though some very pretty people are involved?
Posted by Beldar at 12:46 AM in 2008 Election, Film/TV/Stage, Humor, Law (2012), Politics (2012), SCOTUS & federal courts, Web/Tech | Permalink | Comments (3) | TrackBack (0)
Thursday, February 16, 2012
Is it okay for Obama to tell voters that Obamacare's individual mandate is not a tax, while telling the federal courts that it is?
I have been following the ongoing litigation about the constitutionality of Obamacare, and I have very strong opinions about it. But I haven't written much about it here because there are so very many other conservative and libertarian law-bloggers who are doing such a good job — including many of them who are directly involved in the litigation — that I haven't felt I had anything novel or useful to add. However, I was much struck by the concluding paragraphs of Wisconsin conlaw professor Ann Althouse's post today entitled "The Obama Administration clearly states that the individual mandate is not a tax" (all emphasis hers):
Well, I suppose it depends on what the meaning of the word "tax" is. It's one thing for the purpose of political argument: Democrats in Congress didn't want to call it a tax when they were jamming it through, and Obama doesn't want to call it a tax now as he's promoting a budget with no new taxes for those making less than $250,000 a year. But for the purposes of legal argument, you might want to characterize it as a tax. The serious question is whether the Supreme Court will accept that characterization for the purpose of upholding the law, even though for political purposes the word was not — and is not — used.
And the answer to that question depends on whether the Justices think that analysis of the political dynamics matters in the interpretation of the scope of Congress's enumerated powers. Whatever the vigor of the Court's role here — and obviously much is left to Congress's political will — it is crucial for the people — exercising their political pressure on the Congress that works its political will — to see what is happening. Even in the thrall of judicial restraint, the Court should reject an argument based fooling the people about what Congress is doing. The people are especially vigilant about new taxes, so denying that something is a tax is an important maneuver in the political arena. If that move is made to ward off public outrage, it should not be easy to turn around win the favor of judges by calling it what you did not dare tell the people it was.
As I said in a comment to her post (reprinted here without blockquoting, slightly edited and expanded here for clarity):
Every statute passed by Congress and signed by the POTUS (or passed over his veto) must be justifiable by some provision of the United States Constitution. That is essential to the maintenance of our Republic as a government of limited, enumerated powers — a government subordinate to, not the dictator over, its people.
Flacks for the Obama Administration, including many lefty lawyers and law professors, would love to persuade you, the people, that they're entitled to rely on one part of the Constitution, the taxing and spending clause, as a justification for Obamacare while they're arguing in the federal courts over its constitutionality, and yet to deny elsewhere that Obamacare involves any "taxes."
"This is complicated lawyer-stuff that only us high priests of penumbras and the living, breathing Constitution can possibly comprehend," they suggest. "Go back to your circuses — look, look, they're handing out more free bread! FREE BREAD!"
(Or maybe just free condoms and birth control pills.)
Democrats are the masters of cognitive dissonance. That's not in dispute and won't change. What might change — as between November 2008 and November 2012 — is the number of rubes who remain enthralled by their shameless hoaxes.
Posted by Beldar at 05:41 PM in Congress, Law (2012), Obama, Politics (2012), SCOTUS & federal courts | Permalink | Comments (11) | TrackBack (0)
Monday, February 06, 2012
George Romney never had a little tip jar
Of the controversy surrounding Mitt Romney's profession that he isn't "concerned about the very poor," Stephen F. Hayes of the Weekly Standard artfully explains a rather subtle but important reason why "movement conservatives" were dismayed.
They understand, of course, Romney's full intentions and the entire context of the remarks. And like Romney himself, movement conservatives contemplating Romney as the potential GOP nominee wish he could better repress these self-inflicted rhetorical wounds; his considerable communication skills are offset heavily by something of a tin ear.
Yet even leaving these issues to one side altogether, movement conservatives reacted to Romney's in-context argument with disappointment, according to Hayes, because Romney
seemed utterly unaware of a long strain of conservative thought on the morality of capitalism. He seemed oblivious to the argument — central to the conservative movement — that free markets allow the poor to transcend their position, that poverty is not destiny....
This was, in other words, an opportunity that Romney missed, one in which he could have made a compelling pitch for why even the poor ought prefer Obama's defeat. Hayes continues:
But [Romney] received some help from Marco Rubio, who had shared his own story in the Republican response to the president’s radio address a week earlier.
“My father was a bartender,” Rubio said. “And I thank God every night that there was someone willing to risk their money to build a hotel on Miami Beach and later in Las Vegas where he could work. I thank God that there was enough prosperity in America so people could go on vacation to Miami or Las Vegas. Where people felt prosperous enough to have weddings or Bar Mitzvahs and, by the way, could leave tips in my Dad’s little tip jar. Because with that money he raised us. And he gave me the opportunity to do things he never had a chance to do.”
I think Hayes gets it about right when he concludes:
If Romney wants to return to Tampa to accept the GOP nomination, he would do well to spend more time before then with Rubio. And maybe, in a more formal way, afterwards.
That much seems a realistic hope, I think. It's sad, but probably true, that a key reason why Romney is so obviously uncomfortable about his own wealth and success in particular — and perhaps so uncomfortable in his own skin more generally — is that he hasn't internalized and committed to this morality of capitalism. I'm sure Romney understands the theory; on other occasions I've heard him articulate it well (if perhaps too dispassionately for my tastes). But to curtail these sorts of awkward gaffes and turn them into something which could help him win November if he's the GOP nominee, Romney would need to claim, own, and release his own embarrassment over, his own successful striving to achieve the American Dream.
That is probably not a realistic hope, however; and thus the potential importance to Romney, as it was to McCain, of a Veep nominee who can help him mend fences, rally the faithful — and yes, preach the morality of capitalism.
Posted by Beldar at 01:56 AM in 2012 Election, Budget/economics, McCain, Politics (2012), Romney | Permalink | Comments (3) | TrackBack (0)
Saturday, February 04, 2012
Duty, breach, and bottle rockets
Librarians, taxonomists, cartographers, philosophers, priests, lawyers — many professions categorize things, trying thereby to define and explain them. One of the first times I got a sense of the sweep of the law, and its elegance, was when I learned the definition of "tort."
A tort is a noncontractual civil wrong.
A client, Paul, comes to a lawyer and says, "Doug hurt me and I need justice!" Paul's lawyer must not only decide what he can do for Paul, but what sort of law will be involved in getting Paul the relief he seeks from Doug. How did Doug come to hurt Paul? Was a contract involved? No? Was a crime committed? No. Then it must have been — a tort!
As legal reasoning goes, this is roughly the equivalent of the great chef boiling a pot of water: basic, basic.
Of course, Paul's and Doug's respective obligations toward, and rights against, one another depend on their respective positions and relationship. If Doug was Paul's next-door neighbor in a condo complex, Paul may have different expectations of Doug than if Doug had been, say, a business competitor from another continent. But one of the law's lowest common denominators — and therefore one of law's most commonly applied classifications — is simply that of the "reasonable person" who coexists with other reasonable people in the society subject to our laws. The civil law — tort law in particular, and negligence law even more particularly — implies a duty upon each of us, as a reasonable person, to use due care not to harm the people or property with which we interact. If one breaches that duty, one has committed the tort of negligence.
When tort lawyers plead their clients' cases in written petitions to the relevant court, then, those lawyers have, for centuries, been careful to touch all these bases: duty, breach, resulting injury.
And such is the magnificence of the law that almost anything you can imagine a person doing that might hurt some other person — so long as we're not talking crimes or contracts — can be dealt with through civil tort law. It's all about how you frame the legal issues to fit your particular factual setting, and, in particular, how you identify the relevant duty, breach, and injury.
That, I think, fully explains this case, in which the plaintiff alleged that the defendant owed, and breached, a duty to use reasonable care "not to fire bottle rockets out of his anus."
That would be the defendant's anus; sorry for the imprecision, but of course you can imagine a slightly different set of facts where a parallel duty and breach might arise with respect to the plaintiff's own anus. Law professors delight in setting up factual hypotheticals like this, and then selectively varying one fact at a time to see when and why the outcome might change. At some point during the variations on this particular hypothetical, there's a near certainty that flying monkeys will become involved.
Majestic and subtle is the law. Isn't it? (Hat-tip: InstaPundit.)
Posted by Beldar at 03:15 PM in Humor, Law (2012) | Permalink | Comments (2) | TrackBack (0)
Beldar congratulates the PhilBob & bride
I didn't have the famous Philip Bobbitt as a professor at UT-Law. But when I was the book review editor for the law review, he was one of my favorite faculty resources — good-naturedly sharing on request (and my requests were frequent) his opinions about which just-released books were worth reviewing and who, among the law faculty members of the country's best law schools, might be an appropriate target for us to solicit to write a particular book's review. He never steered me wrong. Indeed, I'm confident that "You should talk to Bobbitt, a lot" has been advice handed down to generations of incoming Texas Law Review book review editors by their immediate predecessors.
A gregarious intermingler with the law student body, it was common to find Professor Bobbitt sharing (and occasionally even buying) pitchers of beer at the Posse-East near the law school. And when I was touring Europe after graduation and clerkship with a fellow UT-Law grad, my late and dear friend Craig Youngblood, we dropped in — unannounced, or maybe announced with a phone call that resulted in an immediate invitation, but in any event on little or no notice — on Prof. Bobbitt at his summer flat in London, where he served us a quite passable afternoon tea. (My recollection is that we talked about the then-just-concluded SALT-II missile treaty, which is to say, by the end of the session Craig and I had learned a great deal about an important topic on which we previously had known essentially nothing.)
Professor Bobbitt is a vivid individual, the sort of person who's clearly remembered decades later by even those who, like me, had only a somewhat passing acquaintance with him.
I was pleased, then, to read this charming tale of his recent courtship and new marriage. (Hat-tip Prof. Kenneth Anderson at the Volohk Conspiracy.)
Congratulations and best wishes to Philip Bobbitt and his new bride, Maya Ondalikoglu Bobbitt!
Posted by Beldar at 01:56 AM in Current Affairs, Law (2012) | Permalink | Comments (2) | TrackBack (0)
Monday, January 30, 2012
Beldar on "code words" arguments
From time to time, I've had occasion to say something nice about leftie pundit Juan Williams, even though I rarely agree with him about matters of politics or national policy. I was, accordingly, disappointed to read an op-ed from Mr. Williams entitled "Racial code words obscure real issues" (hat-tip Patterico). Mr. Williams is off into paranoid fantasy land by the essay's third paragraph:
The language of GOP racial politics is heavy on euphemisms that allow the speaker to deny any responsibility for the racial content of his message. The code words in this game are "entitlement society" — as used by Mitt Romney — and "poor work ethic" and "food stamp president" — as used by Newt Gingrich. References to a lack of respect for the “Founding Fathers” and the “Constitution” also make certain ears perk up by demonizing anyone supposedly threatening core “old-fashioned American values."
My take (consistent with a comment I left at Patterico's):
Any argument by John which relies on the premise that Mary is using “code words” is intrinsically insulting to Mary, and instantly reveals John to be arguing in the worst of egotistical bad faith. If anything Mary says can be reinterpreted at will by John, then John might just as well be engaged in a monologue, and Mary is completely superfluous to John's self-stimulation.
Posted by Beldar at 11:51 PM in Politics (2012) | Permalink | Comments (5) | TrackBack (0)
Thursday, January 26, 2012
The Somalia rescue
I put aside for today the many faults I find with President Obama's handling of military and foreign policy, in order to state clearly and without further dilution the following:
God bless and keep the United States Navy and those Navy SEALs — again! — and everyone else in the military, intelligence, and diplomatic communities who in any way contributed to the successful rescue of American Jessica Buchanan and a Danish man, Poul Hagen Thisted, from kidnappers in Somalia. Due credit goes to President Obama at the top of that chain of command. His decision to authorize this, like the authorization of the bin Laden raid, was correct and fully justified.
That is all. Carry on.
Posted by Beldar at 07:15 AM in Current Affairs, Global War on Terror, Obama | Permalink | Comments (4) | TrackBack (0)
Did Gingrich, in 1986, attack Reagan for "weak policies" that were "clearly failing" in the Cold War?
Remind me never to get on the wrong side of Elliott Abrams, who clearly has a long memory and holds a grudge. Nevertheless, if these purported quotations of then-mere-member Newt Gingrich criticizing Ronald Reagan in the mid 1980s are accurate and in context — I'm not vouching for them and haven't checked, so that's a sincere and substantial "if" — then those quotations may affect some opinions among the conservative faithful of 2012.
I'm surprised that Mr. Gingrich can still surprise me, but this did. (Hat-tip Betsy's Page via Maetenloch at Ace's.)
Posted by Beldar at 07:00 AM in 2012 Election, Congress, Politics (2012) | Permalink | Comments (25) | TrackBack (0)
Tuesday, January 24, 2012
Beldar endorses Ted Cruz for the U.S. Senate from Texas
I meant to post something along these lines many weeks ago, but — better late than never — this will confirm my enthusiastic endorsement of Ted Cruz in the upcoming Texas GOP primary race for United States Senator, to fill the seat being vacated by Sen. Kay Bailey Hutchison.
Ted is someone who first came to my attention during the Texas redistricting litigation in 2003-2004, and he did a genuinely remarkable job as Solicitor General for the State of Texas from 2003-2008. In that capacity, he was the chief appellate lawyer for the State of Texas before the U.S. Supreme Court and all the state and federal appellate courts. And he has been simply superb in every aspect of that job, including briefing and oral argument on several blockbuster SCOTUS cases. He's already been a genuine hero as a public servant; his conservative instincts and principles are thorough-going and deeply rooted in a compelling personal history; and I have no doubt that he can bring that same level of excellence, that same earnest public servant's heart, on behalf of the people of Texas when he's in the U.S. Senate.
I have no ax to grind with two of Ted's three primary opponents. Lt. Gov. David Dewhurst has been an effective leader in an important job, and former Dallas mayor Tom Leppert has earned his fans. (I have a hard time taking the fourth candidate, former SMU running back, ESPN sportscaster, and political rookie Craig James, very seriously as a candidate for this important an office.) I expect there will end up being a run-off between Cruz and Dewhurst, and that's fine.
But I commend to you Brian Bolduc's cover-story on Ted in a recent issue of National Review to help you understand why Ted Cruz is among the up-and-comers of the GOP on the national stage. This is a strategic vote, one that Texas conservatives should make not just for now but for the future.
Ted Cruz simply scares the hell out of the far-sighted strategists of the national Democratic Party, for the very best of reasons. The Angry Left website Think Progress, for example, labels Cruz a "radical" candidate with "fringe constitutional theories" — hysteria they reserve for conservatives who genuinely threaten them the most, whether in the halls of the SCOTUS or on the campaign trail.
I've contributed to Ted's campaign and encourage others to consider doing so. Indeed, I'll be running an unpaid side-bar link to his campaign website throughout the primary season and, I hope, through the general election. Good luck, Ted! I know you'll do us proud.
Posted by Beldar at 12:51 AM in 2012 Election, Congress, Politics (2012), Politics (Texas), Texas | Permalink | Comments (10) | TrackBack (0)
Friday, January 20, 2012
In 9/0 ruling, SCOTUS smacks down 3-judge federal court that redrew Texas' Congressional districts; stresses state government's superior role over federal courts in determining the interests of Texas citizens
I've just read today's unanimous, per curiam (unsigned) opinion by the United States Supreme Court in Perry v. Perez. The media reports I've read so far are, unsurprisingly, either clueless or filled with Democratic Party spin (but I repeat myself), and they're working hard to paint this as some kind of "split" or "mixed" result in which the SCOTUS produced something for both sides to like and both sides to hate.
That's wrong. This is an amazing decision that, fairly interpreted, was a brutal smack-down of a special three-judge federal district court. And the smack-down was delivered because that court had thoroughly ignored the wishes of the voters of Texas — as expressed by their duly elected representatives in the Texas House, the Texas Senate, and the Governor's Mansion — about how to redraw Texas' electoral maps to accommodate the 2010 Census results, in which four additional seats in Congress were apportioned to Texas.
This whole area of the law is highly technical, with a complicated and sometimes internally inconsistent set of judicial, legislative, and historic precedents involved. So even though this opinion is comparatively short and clearly written, it's rough sledding for most non-lawyers to follow, especially when one starts getting into the tall grass of mandatory direct SCOTUS jurisdiction, Section 5 preclearance requirements of the Voting Rights Act of 1965, and relative standards of proof in preliminary injunction hearings. But here's how the opinion tees up the stakes and the big-picture issues:
[H]ere the scale of Texas’ population growth appears to require sweeping changes to the State’s current districts. In areas where population shifts are so large that no semblance of the existing plan’s district lines can be used, that plan offers little guidance to a court drawing an interim map. The problem is perhaps most obvious in adding new congressional districts: The old plan gives no suggestion as to where those new districts should be placed. In addition, experience has shown the difficulty of defining neutral legal principles in this area, for redistricting ordinarily involves criteria and standards that have been weighed and evaluated by the elected branches in the exercise of their political judgment....
(Even casual students of voting rights cases like me can appreciate the ironic understatement of that last sentence. Indeed, it's been so hard to find "neutral legal principles" that even the Supreme Court has frequently fragmented into multiple small voting blocs in these cases, quite commonly failing to produce any single written opinion that speaks for a majority of the Court. This is the kind of droll observation that John Roberts, as Chief Justice, can put in without it bugging any of the left-leaning Justices enough that they ask him to take it out, and one or two of them aren't completely humorless anyway.)
The Supreme Court continues:
... Thus, if the old state districts were the only source to which a district court could look, it would be forced to make the sort of policy judgments for which courts are, at best, ill suited.
To avoid being compelled to make such otherwise standardless decisions, a district court should take guidance from the State’s recently enacted plan in drafting an interim plan. That plan reflects the State’s policy judgments on where to place new districts and how to shift existing ones in response to massive population growth. This Court has observed before that “faced with the necessity of drawing district lines by judicial order, a court, as a general rule, should be guided by the legislative policies underlying” a state plan — even one that was itself unenforceable — “to the extent those policies do not lead to violations of the Constitution or the Voting Rights Act.”
So you don't throw out democracy and mount a judicial coup d'état just because some small part of a redistricting map is, or might be, problematic. Instead, to paraphrase today's opinion, what the Legislature passes and the Governor signs — what Texas' own duly elected government does for itself in the exercise of its solemn duties under both the state and federal constitutions — should, as much as possible, trump federal judges who think it's their job to just dive in and fix whatever they think they can improve upon.
After more analysis along these same lines, we get to the meat of the decision, which also conveys the smack-down (citations omitted, boldface, highlighting & first bracketed portion mine):
In this case, the District Court [that comprehensively redrew the Texas Legislature's map] stated that it had “giv[en] effect to as much of the policy judgments in the Legislature’s enacted map as possible.” At the same time, however, the court said that it was required to draw an “independent map” following “neutral principles that advance the interest of the collective public good.” In the court’s view, it “was not required to give any deference to the Legislature’s enacted plan,” and it instead applied principles that it determined “place the interests of the citizens of Texas first.” To the extent the District Court exceeded its mission to draw interim maps that do not violate the Constitution or the Voting Rights Act, and substituted its own concept of “the collective public good” for the Texas Legislature’s determination of which policies serve “the interests of the citizens of Texas,” the court erred.
Wait, wait ... You don't think that's a smack-down? You expected maybe something snarky, maybe something like Justice Beldar would have written?
Actually, the dry and unemotional language used here again makes me think that Chief Justice Roberts is the likely unacknowledged author. Regardless, here's my translation, in plain English and without the restraint with which judges talk about each others' screw-ups in print:
Whoa! Just WHOA now! Just who do you three judges on the special district court think you are? Who made you the boss of the Texas state government and Texas voters? You're not!
And you may think that you have some judicial Magic 8-Ball which tells you what's best for the citizens of Texas, but we have these Constitutions — one federal, one state — which actually limit your whole role in this fight to way, way, way less than you guys think you're supposed to be doing. So cut it out, right now!"
The rest of the opinion mostly comprises specific examples of things the three-judge special district court got absolutely wrong because they thought, at least in this particular case, that they were philosopher-princes who rule the cosmos instead of federal judges. (Umm, again, that's Justice Beldar's characterization, not from the per curiam opinion itself.)
So this case is already going back, in a big hurry ("judgment shall issue forthwith," sez the SCOTUS, so no motions for rehearing or such), to the special three-judge district court. Their job — now that their attitudes (and legal standards) have been appropriately readjusted — will be to take the map passed by the Legislature and signed into law by the Governor, and to then make the absolute minimum number of changes that are absolutely necessary to fix, temporarily (for 2012 only), only those specific things that the plaintiffs in the case actually demonstrate to be pretty darned likely to be found illegal or unconstitutional.
That's likely to end up looking an awful lot, then, like what the Legislature passed. And that means the Democrats have lost this round in Texas for all practical purposes.
But do you want to know what actually got my motor racing the most when I read through this per curiam opinion? It was this (bracketed portions mine):
This Court recently noted [in the Northwest Austin MUD No. 1 v. Holder case, a 2009 Roberts opinion,] the “serious constitutional questions” raised by [Voting Rights Act] §5’s intrusion on state sovereignty. Those concerns would only be exacerbated if §5 required a district court to wholly ignore the State’s policies in drawing maps that will govern a State’s elections, without any reason to believe those state policies are unlawful.
Friends and neighbors, that's what my tenth grade English teacher at Lamesa High School, Mrs. Koger, trained me to recognize as "dramatic foreshadowing." And since I would very much like to see the SCOTUS agree that it's now time to quit presuming, as a matter of federal law, that today's Texans are racists just because 1965's Texans were racist, I'm very eager to see this play out.
The four liberal Justices likely read that same paragraph, though, and thought (to themselves; they wouldn't quibble about this with the Chief, or decline to concur over it): "Yeah, we'll just see about that when the time comes." But the Beldar SCOTUS Tea-Leaf-o-Matic™ says Chief Justice Roberts is signaling that he has the votes for what will be a monumental decision in American constitutional law and, indeed, American history.
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UPDATE (Fri Jan 20 @ 10:30pm): The PBS NewsHour actually does a pretty good job reporting this story, in large part because they interviewed and relied upon election law expert Rick Hasen. Prof. Hasen has been very gracious in some previous blog discussions with me about Texas redistricting. He's a reliable leftie, but he's wicked smart, and he tries to be (and mostly succeeds in being) intellectually honest (even when he's wrong). Prof. Hasen also picked up on the broader Voting Rights Act implications. The NewsHour headline (which Prof. Hasen links and republishes without demurrer on his own blog): "Supreme Court Ruling on Texas Electoral Maps 'Huge Setback' for Democrats." And yes, that's exactly right.
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UPDATE (Sat Jan 21 @ 3:10pm): The Wall Street Journal's editorial page also mostly gets this story right, including the implications for future litigation on the continuing constitutionality of Section 5, in "Holder's Texas Defeat: The Supremes deliver a unanimous drubbing on redistricting." (But you won't learn anything there I didn't already say here; and the Journal's admirably concise telling leaves out some details I tend to savor.)
A lot of the other commentary I'm reading about this decision completely misses the parts of the opinion in which the SCOTUS stressed that there can't be any map re-drawing without the required evidentiary showing of a legal violation to justify it. Even some conservative bloggers I've read seem to be assuming that the three-judge court can still produce, if it's so inclined, another map that suits the Democrats better than what the Legislature passed and the Governor signed.
That is emphatically wrong. For that to happen, at least two of the judges of the three-judge special court would have to publicly defy the SCOTUS. The last time something like that happened on a really important case was in 2000, when the Florida Supreme Court pointedly ignored the SCOTUS after the SCOTUS had already said, "Hey, you can't do that, so cut that out, and don't make us come down there and smack you!" The Florida court's institutional reputation has still not recovered, and the reputations of the individual judges who'd led the defiance simply vaporized because they were exposed as lawless partisan hacks.
No, sir or ma'am, these three judges will indeed now understand that every single alteration they make from the Texas Legislature's map is going to be scrutinized under a SCOTUS microscope. Indeed, they've been given a list of specific (and otherwise likely) screw-ups that they have been publicly warned not to repeat. And the whole point of this unanimous, per curiam opinion was to send an unambiguous set of directives: There are no concurrences or dissents to muddy the water, and these three judges now know that what they did the first time couldn't find a single supporter on the SCOTUS. Repeat: these judges couldn't get so much as a kind word even from Justice Ginsburg, the long-time general counsel of the ACLU, on this one. That's such a harsh reality that it can't escape notice.
So these three judges would have to be utter fools to defy the Supreme Court. As I wrote in a comment below, there's no shame in being reversed, nor even in being reversed by a unanimous SCOTUS. There is, though, shame in being reversed twice in the same case on the same issues; and these three judges are going to take lots of care to see that doesn't happen.
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UPDATE (Sat Jan 21 @ ~5:00pm): This post is a fine example of why I complimented Prof. Rick Hasen for trying to maintain his intellectual honesty despite his partisanship. He admits to having "gotten a fair bit of pushback that the outcome after remand is far less certain" after his description of yesterday's decision as a "big win for Republicans." But he gives three reasons for why he "think[s] it is unlikely that whatever maps come out of the Texas court (and face a possible second emergency appeal to SCOTUS) are not likely to be nearly as good as the maps which came out now." (By "good," Prof. Hasen means, "pro-Democrat.")
His first and third points, I've already made here. He's correct that it's the Texas Legislature's maps, "(rather than starting from scratch maps) which will govern what the final maps look like." He's also correct that "The three-judge court is likely to be chastened by the unanimous Supreme Court decision."
His second point amplifies on something I've noted in a way that I think is also probably correct (emphasis mine):
In drawing those maps, the Supreme Court went out of its way not only to say that the three-judge court should not deviate from Texas’s plan any more than necessary to solve any constitutional/voting rights violation. The Court specifically pointed out that the court should not draw any minority coalition districts to achieve voting rights results. This makes it more likely that the majority-minority districts will have more minority voters in them and will not lead to the creation of extra Democratic seats.
I'm sure Prof. Hasen would protest and disagree, but I respectfully submit that that paragraph contains an inescapable but implicit acknowledgement that what this is all about is partisan politics, not remedying of racial discrimination. And its premise is that only Democrats can reflect the views of minority voters — an offensive and, indeed, a racist premise. (Again, he would protest and disagree.) But as always, the Dems want to win in federal court what they can't win at the electoral polls. They haven't won a state-wide race in Texas since 1994, and they've lost their majorities in both chambers of the Legislature, because Texas voters have rejected them — repeatedly, comprehensively, at every level and despite all their class- and race-warfare. The likely composition of the Texas Congressional delegation in January 2013 will now, correctly and fairly and legally, reflect that rejection.
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UPDATE (Sun Jan 22 @ ~5:40pm): I thank Prof. Hasen for this gracious cross-link to this post. (I'd sent him an email "ping" as a courtesy since I don't think his blog uses trackbacks and his comments are disabled.) In it, he writes (briefly, and not tendentiously but, I hope, with good humor):
For the record, I hardly think it racist to note that minorities, especially African Americans (but aside from Cuban-Americans in Florida) tend to vote for Democrats by very lopsided margins.
To which I'd respond, not quite as concisely:
Of course it's not racist to merely note it, especially as history. But it's a racist judgment (i.e., an act; I'm not indicting people but rather conduct and decisions) to assume or presume that so it must always remain. And partisan race-based politics is an illegitimate basis to strip state legislatures (and, ultimately, their constituents) of their constitutional rights and obligations to redistrict. In Chief Justice Roberts' inarguable formulation: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."
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UPDATE (Sun Jan 22 @ 8:10pm): Concision is definitely something I lack, but I haven't vented about this for a few years. So, expressed slightly differently:
1. Democrats believe as a matter of political faith that, by definition, their party includes no racists and can commit no racist acts; rather, Democrats are merely people who insist that government, and especially the federal courts, trample democracy to reorder society (including Texas' Congressional districts) in order to dictate winners and losers on the basis of skin color. Nuance: I learnt it from that "Animal Farm" book ("four legs good!").
2. (a) Partisan gerrymandering is one of democracy's most unappealing, raw aspects. Democracy itself is a terrible system of government with many historically demonstrable failings, redeemed only by the fact that it's nevertheless the least worst form of government ever yet invented and implemented.
(b) The Democrats are complaining bitterly that in the Texas redistricting, Republicans discriminated against Democrats and in favor of Republicans. Well, duh. That's not disputed; that is the essence of gerrymandering, which is about sorting voters into districts based on how those voters are likely to vote. Every alternative to gerrymandering comes at a cost to small-d democracy; I haven't yet seen one which was worth that, and I don't believe any such alternative exists. The Founders' decision to put the responsibility for redistricting at the most organic, grass-roots level of government, the state legislatures, was indeed a choice of the least-worst alternative.
(c) However, proof that Republicans simply discriminated against Democrats also wins them no relief in federal court. So Democrats have to engage in this fiction that by discriminating against Democrats, the Republican majorities in both chambers of the Texas Legislature and the Texas Governor were all actually discriminating against racial minorities.
(d) That's counter-factual; the Democrats claimed that in 2003-2004 too, and were ultimately laughed out of court because all they had to support those claims was wild speculation and innuendo.
(e) In fact, neither Republicans nor Democrats have any need to discriminate anymore on the basis of so crude and statistically inaccurate metric as race. They can draw more useful, better-gerrymandered maps using other, much more precise data on who's likely to vote Democratic and who's likely to vote GOP.
(f) Nevertheless, absent actual evidence of discrimination on the basis of race (which doesn't exist, because that's not what's been happening), the Democrats' proof of an alleged voting rights violation depends entirely on their ability to win a purely legal argument (unmoored from evidence) that conflates "Democrat" with "racial minority." Without that presumption and assumption, their legal position falls to pieces, and is exposed as an accusation that Republicans are (gasp!) political.
Posted by Beldar at 09:43 PM in 2012 Election, Law (2012), Politics (2012), Politics (Texas), SCOTUS & federal courts, Texas, Texas Redistricting | Permalink | Comments (16) | TrackBack (0)
Monday, January 16, 2012
Obama is signaling Iran that America will remain in a purely defensive mode, and will impose that on Israel, as Iran gets its Bomb
Teddy Roosevelt's prescription for effective diplomacy was "Walk softly and carry a big stick." It worked. By all accounts he was among the most successful foreign policy presidents ever. While simultaneously boosting American prestige and military credibility around the world, he kept us out of war, and he personally mediated the settlement of the hottest war then on-going (between Russia and Japan), actually earning a Nobel Peace Prize.
Then there's our Mr. Obama, who believes in setting the biggest stick in the history of the world off to one side, and then speaking loudly, inconsistently, and interminably.
I commend to your attention, from its first lines to its last, this tightly reasoned, cautiously stated, immaculately resourced essay from J.E. Dyer. The introductory paragraphs (boldface mine):
Is the Obama administration building up for a major war against Iran? No.
The administration appears to be doing what it thinks will avert one. Military force is playing a quiet and relatively minor role. There has been more “messaging” about force in the last few weeks than actual force activity. The administration is also trying to discourage Israel from mounting an independent strike on Iran, by frequently advertising US concerns about that possibility. Presumably the White House knows that this particular messaging campaign serves to keep Iran alerted. Ultimately, there is more talk than anything else. Military preparations, such as they are, are defensive in nature. That includes the acceleration of missile-defense sales to the Persian Gulf nations.
If you are like me, then your blood pressure will rise steadily as you read the evidence she marshals to support these conclusions. It's chilling.
So far as I know, Ms. Dyer is no close relation of mine, but I'm definitely among her fans. (She has, of course, her own blog, and in addition to being a regular contributor to HotAir's Green Room, she's also written for the Weekly Standard and Commentary.) As for whether she knows whereof she speaks, consider her perspective:
J.E. Dyer is a retired US Naval intelligence officer who served around the world, afloat and ashore, from 1983 to 2004. Her last operations in the Navy were Iraqi Freedom and Enduring Freedom in 2003, and she retired at the rank of Commander. She lives now in the "Inland Empire" of southern California, where she writes for various blogs and is preparing a book on the Cold War.
If you're unconcerned by the prospect of Iran getting the Bomb, none of this will bother you. If you're concerned by that prospect but you're unconcerned by the Obama Administration's handling of this situation, you may be eligible for immediate promotion to Commanding General of the Unicorn Brigade.
Posted by Beldar at 05:57 PM in 2012 Election, Global War on Terror, Obama, Politics (2012) | Permalink | Comments (11) | TrackBack (0)
Friday, January 13, 2012
Blogger Aaron Worthing's new novel, "Archangel," now available
My blogospheric friend Aaron Worthing, known to me (and perhaps you) as a regular guest-poster at Patterico's Pontifications and author of his own blog, Allergic to Bull, has self-published his own novel — "Archangel: A Novel of Alternate, Recent History" — on Amazon.com, where it's now available for painless and quick download to your Kindle or other e-book reader.
I have today ordered a copy with an eye toward a potential review or note here, but I haven't yet read it, so all I can say for sure yet is that the premise is intriguing. However, Aaron's a good writer and keen observer of our times, well-read and clear-thinking.
I'm a fan of the new self-publishing paradigm; Knowing that my purchase price is going mostly to Aaron as the content-creator (rather than mostly to a big publishing company that thinks it and its fellows should be entitled to decide what we all get to read) pleases me.
And last but not least, Aaron's another lawyer-turned-novelist — a fairly common species that I (like just about every other lawyer I know) have often wistfully contemplated joining, but haven't yet gathered the diligence and creativity to manage.
Accordingly, I'm publishing a link to Aaron's book here. (If I've managed the link properly, it should also rebate a further small portion of the purchase price, at no additional cost to you, to Aaron's blog through the Amazon Associates program.)
If you join me in buying Aaron's book as an impulse purchase, please feel free to leave your considered reactions in the comments to this post, or at Aaron's blog.
Good luck, Aaron!
Posted by Beldar at 06:02 PM in Books, Global War on Terror, History, Weblogs | Permalink | Comments (3) | TrackBack (0)
Saturday, January 07, 2012
Can Romney's commitment to expediency be a substitute for reliable conservative instincts?
I was intrigued by Fred Barnes' essay in the online Weekly Standard entitled "More Conservative Than You Think: The New Mitt Romney." Barnes marshals solid evidence to support the premise that — based upon Gov. Romney's current positions —
[Romney is] at least as conservative as his GOP rivals on jettisoning Obamacare and more conservative than some on entitlements, national security, and immigration. He’s no match for Gingrich on taxes, but that’s about it. Overall, he’s to the right of Gingrich.
Nevertheless, Barnes immediately notes, "Romney wasn’t always there" — and then Barnes proceeds to acknowledge some of the landmarks from Gov. Romney's political record which may indeed have reflected the preferences of Gov. Romney's constituency in Massachusetts, but which are considerably to the left of the national GOP mainstream.
Barnes' concluding lines are especially apt, but they don't necessarily support the essay's title thesis and, indeed, they may undercut it:
[Romney]’s neither a movement conservative nor an ideological conservative. He’s a pragmatist for whom conservatism makes the most sense. That it helps him politically no doubt makes sense, too.
And therein lies the best comfort for American conservatives who are wondering whether they can generate enthusiastic support for Gov. Romney if he becomes the nominee: If you think he values expediency over principle, then take comfort that the choices a President Romney will find expedient will indeed be conservative ones — if he wants to be re-nominated by the GOP in 2016! Besides, the Tea Party-influenced conservative "Young Guns" who've been driving the national policy debate from the House GOP since January 2011 — and yes, I'm referring specifically to the guy who my sidebar still urges we draft in lieu of anyone now running, but not only to him — would drag any GOP president in mostly the correct direction if the GOP can also recapture a working majority in the Senate.
The reason Romney has continued to hover in the mid-20% range in the GOP national polls, of course, is not because GOP voters disagree with the substance of the policies he's endorsing now. Their concern is that, like George H.W. Bush when he went back on his "Read My Lips" pledge, Romney will get talked out of his current positions — that he'll get suckered by the Dems the way Bush-41 did.
My own concern, however, is actually a variation of that.
Gov. Romney's main credential is as an "executive," in multiple senses of that word: as a business executive and turn-around specialist at Bain Capital; as the executive who took charge over the Salt Lake City Winter Olympics (another turn-around job); and as chief executive of the Commonwealth of Massachusetts. He demonstrated genuinely impressive management skills in each of those jobs. Certainly we need a well-managed turn-around from the disastrous path the current White House has put the country on.
What I fear, though, is that in addition to bringing well-honed management skills, Gov. Romney may also bring the East Coast/Ivy League confidence in technocracy. I specifically fear that Mitt Romney shares with Barack Obama an over-confidence in his own — and indeed, in anyone's — ability to use the federal government to solve problems.
I don't want a clever president who just does different things than Obama's been doing. I want a president who's wise enough to know that what's most important now is for the federal government to do less: to spend less; to tax no more; to meddle and nag and intrude less; to quote-unquote "protect" me from myself less (e.g., "protecting" me from making disfavored decisions on what kind of light bulb to buy); to stop trying to transfer wealth; to quit trying to pick losers and winners, and enforce those picks despite (and sometimes contrary to) the Rule of Law; and to quit trying to "manage" the economy, but to simply be predictable and get the hell out of its way.
Put another way: I fear that Mitt Romney and Barack Obama have more in common with each other than either has in common with Calvin Coolidge. And we need the discipline of Calvin Coolidge. We need fewer 49-point programs and more zero-point (as in, "we're getting the federal government out of this") programs.
Simply undoing all the bad that Obama has done is a huge management challenge. That's a lot of what needs doing. But it's not the hardest part of what, unfortunately, must be done: Without fundamental entitlements reform, our government will absolutely, positively be bankrupt before this decade is out. The reforms must be in the direction of replacing government top-down controls and Washington management with free-market competition and individual liberty; no other reforms can lead to anything but shared scarcity and progressive impoverishment of the entire nation. Managing those reforms will require as much competency and energy as Romney or anyone else could muster.
There are at least a half dozen conservative leaders whom I'd rather see as the nominee than Mitt Romney precisely because I'm confident they "get" all this. I am confident, based on their performance in office, that they understand the limited role of government in general and the federal government in particular. But none of them are presently running for president.
Of those who are running, Perry gets this (in its broadest outlines) but can't win. Nor Laup gets it but is crazy, mean, and isolationist, and can't win. Santorum claims to get it, but we have to take his word for that (just like Romney's) because when Santorum was in office, he was a big-government Republican too. And Gingrich gets it, but only three days a week. (Then Newt's on the Beltway couch with Nancy Pelosi and John Kerry for three more days, and then on one of the moons of Jupiter for each seventh day.)
I'm not hoping for a stand-off through the primaries and for a floor-fight leading to a brokered convention. But on the other hand:
Most delegates awarded through the primaries are only pledged for a limited number of ballots and/or days, and many of them aren't pledged beyond the very first ballot. We just saw Rick Santorum come from months of single-digit polling to tied-for-first in a matter of days — and do we count him as the fourth "not-Romney" to become the flavor-of-the-week, or is he the fifth? I've lost count. If Romney can't nail down a first-ballot nomination before the convention, could the final flavor-of-the-week end up being someone not currently running? Someone who wasn't in the primaries at all?
Probably not. But I'm not quite ready yet to take down my sidebar.
Posted by Beldar at 05:35 AM in 2012 Election, Obama, Politics (2012), Romney, Ryan | Permalink | Comments (19) | TrackBack (0)
Monday, January 02, 2012
To Newt Gingrich, on the occasion of his claiming to have been "Romney-boated"
Mr. Gingrich, some of us spent a whole lot of time and effort investigating and, then, publicizing John F. Kerry's true military record — including its blatant lies and exaggerations — in the 2004 election. We are extremely grateful to the men who served with Kerry on the U.S. Navy's "Swift Boats" in the riverways and canals of Vietnam, and who came forward in 2004 to tell what they knew.
We believe these "SwiftVets" were, are, and will always be brave patriots.
Then there are those others who, for whatever reasons, think that these veterans' campaign to put Kerry's military career under a more accurate spotlight was inappropriate, notwithstanding Kerry's own aggressive but dishonest efforts to portray himself as an Audie Murphy or a Sgt. York. Those Kerry allies feel sorry for poor John, and they (including their allies in the reflexively-liberal mainsream media) coined the term "Swift-Boated" to mean something awful, something nasty and dishonest. This cynical linguistic formulation is as neat a 180-degree reversal of the truth as any propaganda machine has ever attempted.
The truth is that the SwiftVets sunk Kerry's campaign by making it widely known that instead of being a hero in the Vietnam War, Kerry bugged out of active combat early, with a chestful of medals he deserved only barely or in some cases not at all; he returned home to provide Congress with his sworn testimony that falsely condemned his own comrades of being war criminals; and that while still a commissioned officer in the Navy Reserve, with his uniform hanging neatly in a Washington closet, John Kerry secretly connived with the Viet Cong and North Vietnamese delegations in Paris to undercut America's position. If there's anything equally perfidious in Gingrich's past, then I certainly hope some other GOP candidate would run advertisements to reveal that! And for those of us who supported the SwiftVets' efforts in 2004, their resulting success is seared — seared! — in our collective memories.
Thus, I'm inclined to spin on my heel and walk rapidly away, disgustedly, from anyone who uses the term "Swift-Boated" the way Kerry and his allies do. I do not want a president who identifies and sympathizes with John Kerry over men who are real heroes.
So when you're complaining about how hot it is in the kitchen you're trying to stay in, Mr. Gingrich, you might think twice, and then three times, about whining that you're being "Romney-boated" by attack ads.
If you want to pretend you haven't attacked other candidates for the GOP nomination, or if you think you can prove that there's something egregiously wrong with other GOP candidates attacking you — and if you think that's a plus for you, something that will give us confidence in your prospective ability to stand up under Obama's attack ads for the rest of 2012 if you're our nominee — then make your best pitch.
But if you make it in this language, you can expect an extremely frosty reception from people like me. Those people are going to tell you, "If that's what you think about the SwiftVets, then you can go straight to hell, Mr. Gingrich!" And then they're going to walk away from you as fast as they can, fists clenched at their sides (lucky for you).
You'd best apologize, Mr. Gingrich. Alas, for those of us who fear you've long since been captured by the Beltway Mentality, for those of us who fear you really do naturally sympathize and empathize with John F'ing Kerry over the men who stayed and fought, apologies don't go very far against evidence like this.
Posted by Beldar at 02:04 PM in History, Politics (2011), SwiftVets | Permalink | Comments (11) | TrackBack (0)
Sunday, January 01, 2012
Obama's magic death ray
Covert operations involving drones, including targeted counter-terrorism assassinations, are something on which I'm inclined to give the POTUS, as Commander in Chief — whoever is in that office, even Obama — a lot of deference and discretion. But as suggested by this Wall Street Journal story entitled "Tensions Rising Over Drone Secrecy," this is turning into a situation from Marvel Comics: The only difference is that in the funny papers, it was always an orbiting death ray instead of an unmanned drone made out of composites, cameras, computer chips, and Hellfire missiles. As we use this power, it's increasingly going to motivate other countries and, yes, non-state actors like al-Qaeda, to want their own equivalent toys. But even before they can match our capabilities to use (and defend against?) such drones, there is going to be international attention and concern.
I hope and (must, for now) trust that the White House and the Pentagon and Langley have a cohesive, comprehensive, and wise plan for what America's going to do to moderate, channel, and otherwise affect the resulting change in international security affairs. This is already a bigger deal than most folks realize, and it's going to become a very, very big deal indeed.
But that hope and trust require me to assume, however, a degree of wisdom and simple competency that the Obama Administration has never displayed in anything else. Certainly its handling of the just-lost drone in Iran suggests that they're making up American diplomatic and military/operational policy as they go along, and that they're making it up not just on a day-by-day basis, but an hour-by-hour basis. And as the WSJ story points out:
John Bellinger, a top legal adviser for the State Department during the Bush administration, said the White House needs to start thinking about a legal framework that would define acceptable practices. He pointed to the risk that other countries will start using drones in ways that the U.S. may find objectionable.
"If Russia starts using drones to go after terrorists, will the U.S. look like we have a double standard if we criticize them?" Mr. Bellinger asked.
In short, the whole world, including his own legislators and constituents, is going to be listening more carefully to what Obama says (and doesn't say) about drones during the coming year, and comparing those words to what's actually being done (and not done) with the drones in actual practice, much of which will be covert.
The growing Congressional challenges to Obama's authority here — implemented so far only by demanding broader reporting to Congress, but likely to be subjected to more intrusive involvement, with associated security risks — suggest that I'm not the only one to have noticed this, or to have become concerned by it. Certainly the mainstream media is doing very little to put it on the voting public's respective radar screens. But even carefully targeted Hellfire missile strikes eventually demand attention; and any one of these strikes might trigger something quite unexpected, and potentially much bigger, as a counter-response by someone.
I'm perplexed at the silence of my liberal friends who, in theory, at least the last time we discussed such things in other contexts, don't share my views on the breadth of the Executive's authority to prosecute the war on terror and to defend the country from both foreign and domestic threats. How many layers of duct tape have they had to wrap around their heads to prevent them from exploding at the notion that, by executive order, the POTUS can now selectively vaporize almost any given roomful or carload of people, including U.S. citizens (at least while abroad)? The enormity of their double-standard has never been more obvious: If any Republican, and certainly if George W. Bush, had taken the same positions and engaged in the same volume of drone activities that Obama has, we'd be in the midst of full-blown impeachment proceedings by now.
Posted by Beldar at 03:18 PM in Congress, Foreign Policy, Global War on Terror, Mainstream Media, Obama, Technology/products | Permalink | Comments (3) | TrackBack (0)
