New Rule #3

New Rule: The New York Times has to stop spinning stuff! Check out this grossly distorted headline: Miers Failed to Win Support of Key Senators and Conservatives. Why can't the Times just accept the White House talking points like everyone else, and leave it at that?

"Harriet Miers's decision demonstrates her deep respect for this essential aspect of the Constitutional separation of powers..." Mr. Bush said he would announce a new nominee "in a timely manner."

End of story. The Senate hasn't voted yet, so how could you ever claim she lacked support?

• 'Let's move on," said Republican Sen. Trent Lott (news, bio, voting record) of Mississippi. "In a month, who will remember the name Harriet Miers?"'
• 'Sen. Sam Brownback (news, bio, voting record), R-Kan., a potential 2008 presidential nominee who is courting conservative activists, said he had been "feeling less comfortable all along"'
• 'Another Republican moderate, Senator Norm Coleman of Minnesota, said this week that he needed "to get a better feel for her intellectual capacity and judicial philosophy, core competence issues." He added, "I certainly go into this with concerns."'
• 'Senator David Vitter, a Louisiana Republican who opposes abortion rights...said he continued to question whether Ms. Miers had developed "a consistent, well-grounded, conservative judicial philosophy" and wanted "writings that predate the nomination" to clarify her views.'
• 'Senator John Thune, Republican of South Dakota, called Republican sentiment toward Ms. Miers's nomination "a question mark."'
• 'Senator Lindsey Graham, Republican of South Carolina and a Judiciary Committee member, acknowledged that senators who had met with Ms. Miers were telling colleagues that they had been unimpressed. "She needs to step it up a notch," Mr. Graham said.'
• 'Senator Chuck Hagel, Republican of Nebraska... called Ms. Miers "an accomplished professional" but said of the Supreme Court: "We want an elite group of individuals. I'm not so sure I want my next-door neighbor, as much as I like him or her, to be on the Supreme Court because they're nice people."'
• 'Several groups like Concerned Women of America are calling for her withdrawal.
  ''We believe that far better qualified candidates were overlooked and that Miss Miers' record fails to answer our questions about her qualifications and constitutional philosophy,'' said Jan LaRue, the conservative group's chief counsel.'
• '"I would like to see the nomination withdrawn. If I were in the Senate today I would vote against it," Buchanan said. "My guess is, she will not be confirmed, and she will be withdrawn."'
• 'The Weekly Standard, a bible for dyed-in-the-wool conservatives, on Sunday called the choice of Miers "at best an error, at worst a disaster" which should be reconsidered.'
• '"I think it was appropriate. She was not -- I didn't think, a lot of people didn't think -- really qualified. I think we all have to have some sympathy for her because she was thrust into a position as a nominee she shouldn't have been put in, and as a result, got rather beaten up in the press and elsewhere," said Judge Robert Bork, failed 1987 Supreme Court nominee.'

Instead, The Times insists on peddling cheap rumors like "Coincidentally or not, Ms. Miers's withdrawal, ostensibly over the principle of separation of powers as it relates to White House papers, is the very scenario that some conservative commentators have suggested as a face-saving ploy for the nominee and the White House." If one were cynically deranged like Times reporters, one could even infer that Bush was so assured he would announce a new nominee "in a timely manner" because he had known Harriet Miers was going to resign, and perhaps fail from the beginning. And that makes me sick. Like the White House would ever use a Supreme Court nomination for political purposes... Just, look at how they gleefully report the remarks of that fake-Republican senator, Arlen Specter "...Arlen Specter, a Pennsylvania Republican and the chairman of the Senate Judiciary Committee, remarking that Ms. Miers could benefit from a "crash course in constitutional law."

Look how they quote their own senator Charles Schumer "The selection process, said Mr. Schumer, should include discussions about potential nominees with the Senate. "One of the real reasons for this mistake was there was no real consultation," he said." Quit cherry-picking, Times. You might as well interview someone from the Times itself. Of course that's what he's going to say, but what about ultra-liberal Leahy and Majority Leader Reid, who said Miers was promising. You make me sick New York Times.

New Rule #2

New Rule: What the Middle-East conflict needs is a good comedian-statesman-diplomat-therapist, like a Henry Kissinger but with better empathy skills. And more comedic talent. All right, maybe he's a poor start.

Obviously the first thing on the agenda is to get the Israel issue solved. Or that what everyone always says, anyway. For one, although the U.N. is a hideously hypocritical, bordering on powerless entity, the conditions in the occupied territories have been declared a human rights violation about 537 times (check that - it's called U.N. Resolution # 537) at least some of those sanctions are appropriate. I think the wall is a necessary measure, but it has cut off and dismembered numerous Palestinian (and Israeli) communities, through no reason other than the farther east the wall extends, the more security Israel has, and the happier Israel's expansionist extremists will be. The IDF has done bad things, and this happens with any army. However, the objection is legitimate that army occupation of the territories period is the real issue here, not the behavior of the army in general. This is a complicated issue, because military occupation of the adjoining territories is proper in war. It's arguably a necessary security policy when those territories have no centralized power capable of controlling and eliminating rogue and extremist terrorist organizations that would otherwise take over the area. Nonetheless, the effects of fifty years of occupation are undeniable. Like all other arab peoples, Palestinians have their own national identity and aspirations, which actually reached maturity in the 1960s with the newly minted Arafat and the PLO of all things, before it assumed its current non-negotiation stance. The inability of these aspirations to reach fruition to even the slightest extent is no doubt a terrible humiliation for Palestinians. Poverty, which has as much to do with Israel as ongoing non-existent infrastructure, also has negative effects. And of course, no one likes living under military occupation.

Don't get me wrong, I believe the way the Israeli army conducts itself is still incomparably better than the way an Arab army would if the situation were reversed. But the situation in the territories is becoming a worse and worse human rights problem, and a legitimate grievance. I most of Israel's hardliners are even realizing this. A solution to the problem is complex, but I think most mainstream people are currently putting their bets on a push for democracy and control in the Palestinian Authority, and a simultaneous disengagement from the West Bank. Of course, I am not counting on any of the West Bank settlements being relocated before or after then. And the wall will probably stay up for a while. But it's different when the Palestinians have their own sovereign nation. Then, instead of dividing its constituents, Israel is exerting its sovereign right to build a wall on its territory wherever it wants to, just like I have the right (well, if I own a piece of land) to erect a wall between me and my neighbor's house, as long as the nice part of the wall faces outward. (actually the law, check it out if you don't believe me...)

The Palestinian issue is a huge bugaboo and, I would argue, prohibitive barrier to any steps toward reconciliation between the West and the Arab world. We all know it's exploited disproportionately by leaders in Arab countries. For instance, just yesterday, Iran's hardliner president stated that Israel's existence was an affront to Islam, put in place by the West to oppress Islamic states. This is a common meme in Muslim countries. Of course, the speech concluded saying that Israel must be wiped off the map, and any Islamic state that negotiates with it is committing treason. The name of the conference was "A world without Zionism." You have to give credit to extremist Islamists: they don't beat around the bush.

Two summers ago, the Egyptian "media" made real press by asserting that all terrorist attacks around the world were perpetrated by Zionists. I'm not kidding about this. Of course this is really just manipulating definition. But it's also an even more ludicrous extension of the idea, also popular in Egypt for a time (and in the U.S. as well), that Israel perpetrated the 9/11 attacks - or less extremely, knew about it days before the fact and failed to notify the U.S. Of course, every one of these allegations is untrue. The establishment of Israel, which was in effect granted by the British, was hardly more divisive than the arbitrary division of nation-state boundaries in an area of the world that has always been a territory of the prevailing world empire. This should go without saying but, Israel is not an affront to Islam, any more than Arab nations are an affront to Judaism. Both arguments can be made from each respective religion's holy book, and this is just silly. The allegation that Israel (and only Israel) carried out the 9/11 attacks is an insult to the intelligence of Arabs everywhere.

After this is accomplished, the Middle East and a few western countries ought to enter some serious therapy to work out these issues with the mysterious entity known as "The West." What is "The West" and what did it do? Is the West the victors of WWI and particpants in the Sykes-Picot agreement? Or is the British, who were assigned the Mandate of the area under that agreement and it is fair to say are fully responsible for granting the state of Israel existence? Is the West the United States, which tacitly supported all of these historical steps, and is currently by far Israel's biggest financial and political supporter? Maybe if we could figure out what "The West" is, and what it did, we could take steps to act constructively about it. Of course, the West is a real entity and it did do real things, but the point is people need to think in a little more complex way about these issues.

There's more to say, but I'll have to say it later.

New Rule #1

New Rule: No more books on Bill Clinton, unless they're by Bill Clinton. Seriously, I'm not even a Bill Clinton fan. I support this simply because of the stupidity of the people who continue to write "first-hand account," insider, or "expert" exposes, 5 and 6 years after the fact. One autobiography and a couple biographies are really enough, aren't they?

Here's a great list just suggested to me on amazon.com, by JamesNYC248, "an impartial Canadian." First of all, at least get your username and description consistent... That's one line and I'm already confused. But enough ranting.

Our impartial "bi-citizen" has compiled a fittingly impartial list; all 25 books are full-blown critiques of Clinton released within the last 3 years! Ok The most obnoxious one I have seen is the most recent, solemnly inspired by Clinton's recent 60 Minutes interview entitled, cleverly, "Because He Could." I think we all remember something about this:

"Because I could" is the explanation Bill Clinton finally gave for Monica Lewinsky. Because HE can, Dick Morris ridicules the man he advised for twenty years. I don't know if Clinton enjoyed himself, but Morris is certainly having fun. The writer's own voice enriches the experience, not because he's a master narrator, but because he sounds just like the smarty-pants you'd expect. We hear that Bill has a temper, and was only briefly poor. Morris tells how the president copied a typed speech by hand in order to get credit for it. (Everybody knew he didn't type.) The thought that Clinton might have copied out his entire 957-page memoir by hand in order to get credit for writing that gets Morris laughing so hard that he loses his place.

Let me try to translate that sentence by sentence. Ok: Clinton's super-important adviser got the brilliant idea to write yet another book besmirching the former president after seeing an interview on national television. Because he can makes lots of money doing it, DICK MORRIS ridicules the man he advised for probably NOT twenty full years. This book was a tedious and cold-blooded exercise in character assassination, but it sure was fun! Our writer is a self-promoting jackass who wants you to know he is really smart. He reveals things already admitted to directly by Clinton himself, in his own official autobiography, even (it's unbelievable to me that someone promoting this book hasn't at least read the first 200 pages of the autobiography they are ostensibly rebutting). One time, the president cheated on a test! And, Dick Morris, who is smart in all other areas of life, has never heard of dictation for books, so Clinton must have not written his own biography either. That's fraud! Or cheating! Or something!

Perhaps I should sharpen this rule to: you shouldn't write biographies if you're not a biographer. I'll say one more thing on the topic. On the back cover, there is a series of false dichotomies. The first one is:

"the poor little boy from Hope...or the privileged fortunate son of Little rock, Yale, and Oxford, England?"

Are we to believe that it's impossible to be both poor and through hard work and ability win scholarships to Georgetown and then Yale and Oxford? Regardless, I'm not going to waste the resources to read more than the front and back cover, so this book could reaaly be a fine piece of work. (not)

Here's another interesting book written by a "non-partisan" military commander. On the cover, someone thought it would be really clever to PHOTOSHOP what looks like a JOINT into Clinton's mouth. See he really is a tree-hugger, and that's why he endangered our military. And it explains the cigar thing too.

"This is certainly not the first anti-Clinton book, but it is different in that Patterson does not seem to have a political ax to grind. In fact, at times, he appears apologetic about having to write about his ex-commander in chief. Yet, in the end, this retired soldier felt his last act of service should be to share his experience with his country."

Hmm. Does the fact that Amazon explicitly pairs this book with "How Liberal Democrats Undercut Our Military," written by the same author, count as evidence to the contrary? Publishers Weekly summarizes:

In Patterson's account, Clinton emerges as a careless, disingenuous frat boy, mercilessly hen-pecked by the domineering Hillary, whose tirades leave him looking like a "beaten puppy." He presides over a chaotic administration focused on spin and fund-raising; he fondles an Air Force One stewardess and ogles Patterson's wife in the Oval Office; he loses the nuclear launch codes; and he cheats at golf-which Patterson views as "not just a peccadillo but symptomatic of the way he approached life." Patterson also asserts that Clinton "directly and severely harmed this nation's security." Clinton debilitated the military, Patterson claims, by downsizing it, trying to remove the ban on homosexuals and put women in combat roles, "gutting morale" with pay freezes and "rudderless" peace-keeping missions, and turning it into an "armed social services agency." Worst of all, Clinton was soft on terrorism and missed a chance to get bin Laden with cruise missiles. Patterson raises important issues, but he seems most often affronted by what he sees as Clinton's belief that he "was privileged to conduct himself at a much lower code of conduct than the men or women he would repeatedly order into harm's way."

No, no political ax to grind there.

One could similarly satirize this account by inserting the word "Bush" wherever Clinton appears, with 2 exceptions. Honestly, if someone gave me a copy of this account and told me it was about Bush, I wouldn't think twice. To be honest, objectively, I think it describes him better. Maybe, then, the new rule should be: don't criticize people for things you couldn't do yourself. Of course, this still leaves plenty of people to bring light to the sacred critical role of our democracy. In addition, facts are still facts, to be gathered and disseminated by all. It just means that random editors from Vanity fair, and the guy who got too creative with Photoshop, are not, automatically, included.

Another three months, another update. I haven't had time to follow the latest supreme court nomination process all that closely, but I have some thoughts to get down nonetheless.

I posted the last commentary on Harriet Miers about an hour after the news came out. Since then, I have been able to appreciate a few different perspectives on the nomination. I have to admit, what made me most curious to consider some of the pro arguments was the fact that Democratic Senate majority leader Harry Reid along with Senator Leahy and some other Democrats openly and admittedly espouse optimism about this nominee, and admit they were intimately involved in the deliberative process with the President that ended up selecting her. Here is their stated rationale: We thought it would be good to have someone who was not another appeals court judge on the bench, who could bring a more pragmatic and real-life perspective to the overly groomed and often cloistered group elites that currently inhabits it. I found this curious.

For one, and I say this completely non-judgementally, I had never thought of this concept before. Obviously, from the beginning, because of the very nature of our democracy, regular-man roots often embodied in a populist philosophy was considered an asset in elected officials, particularly those in prominent positions such as the elected posts of the executive branch. This is because a sense of familiarity and sympathy can be a huge factor in gaining votes. However, it never occured to me that this could be an asset in the judicial branch. One, judges aren't elected, so the previous analysis doesn't apply. Two, judges don't don't represent or lead the people. They are specialists in a sense, and their expertise is to interpret the law. Considering factors such as background only seems to increase the legislative function of the judiciary, a trend the Republicans in particular professes they wish to reverse. That's like saying "we want someone with everyday experience on the Board of Governers at the Fed." She might know nothing about macroeconomics, but at least she knows what it's like to pay prime rate for a mortgage.

The second thing I found interesting is that Miers doesn't particularly possess the characteristics they are referring to. The narrative is all messed up. She's been touted as a private sector nominee. Yet she was Bush's personal attorney (that's real everyday experience), was appointed to the lottery commission by Bush, and subsequently to the city council. And of course, she comes fresh out of five years working at the most typical of private sector jobs - the White House personal attorney! First, she was chief secretary, and now she is White House Counsel. The extent of her legitimate private sector experience is working with a metropolitan law firm, which probably puts her well below the experience level of any other nominee in history.

The obvious conclusion is: 2 counts bullshit equals hidden agenda. It's possible that Democrats have finally been able to engage a level of political subterfuge superior to anything the Republicans were able to recognize. A resignation is obviously bad for Bush; a withdrawal is even worse. It would take some fairly astute political anticipation to predict that Miers would simultaneously worry harcore social conservatives because of her lack of a clear record supporting the causes they want, and intellectual conservatives that tend to inhabit the thinktanks because of her obviously nonexistent qualification.There is another possibility. It is possible that some Democrats honestly thought Miers was the best possible pick, to which I would respond, what is their problem?

The mix of opinions on Miers is very strange. On the one hand, she's an easy objection to people who have either the legitimate concern or pretext to care about level of qualifications. Personally, I couldn't care less that she went to school in Texas, in contrast to the objections made by some. What concerns me is that throughout her considerably active career, she has never done anything even remotely remarkable or groundbreaking. All of the memos and documents being released from her public and private work show a diligent but completely pedestrian worker. More disturbing, her writen legal opinions and advice, dating back for more than 10 years, oftentimes do little more than summarize the original legal question, using a few legalistic words like "prudent" and "just" in the process. Intellectual conservatives in particular had hoped for an earth-shattering thinker and communictor, in the mold of Scalia, to further entrench the legitimacy and convincingness of the conservative legal and social agenda for generations to come. There's also the small issue that she doesn't have any expertise in constitutional law. Bush staffers argue that she has learned while in the White House. Well that's great. I'm sure she has gotten a really complete and balanced education on constitutional law exclusively while working in the Bush White House! That's like learning how to Not Torture People at Guantanamo.

This is what makes the Supreme Court the Supreme Court, and not some state court; their final domain is the Constitution, not just statute. Not to mention, everyone agrees it takes several years for even the most seasoned legal minds to adjust to the job once seated. Even Stephen Breyer has admitted it took him many years to fully grasp the workings of the job, and he's known on the court as "the professor."

Then you have the social conservatives who are disappointed that Bush didn't have the balls to make a flagrantly political appointment of an avowed conservative political activist judge. Arguably, this is what Bush could have done if his political coalition was stronger and not undermined by the war in Iraq, the willingness of the mainstream to recognize his inability to manage the war - not to mention the pending criminal investigations of his two second in commands. Since the two ELECTORAL pillars of the current Republican party are reform social conservatives and intellectual neoconservatives, we can see why mainstream Republicans (or anyone not from Mars, for that matter) are opposed to the nomination.

I personally am hoping that she is not withdrawn, so that the process can proceed to the confirmation hearing. From my perspective, no matter what happens this event might be entertaining. Though it's a reasonable assumption that Senators will accept a fair degree of line-drawing when it comes to personal views and/or views on specific issues, however not as permissively as during the Roberts hearing, they will surely be much more demanding when it comes to demonstrating her judicial philosophy and understanding. Contrasting with Roberts, who has a long record of service both publicly and privately, Miers is not even responding adequately to questions seeking to get a preliminary assessment of her legal perspectives. Charles Schumer noted after his meeting that she was unaware of some important legal precedents. Meanwhile, Patrick Leahy (her "special" advocate - not even sure what that means) and chairman Arlen Specter, who is probably the most judicious and moderate person in the senate), unequivocally stated that Miers' responses to the PRELIMINARY questionnaire were "from inadequate to insulting." So if she is able to articulate her legal philosophy during the senate confirmation hearing, that will be interesting because I don't have the faintest idea what it is. And if she doesn't articulate any legal philosophy during the hearing...well, that will be a spectacle at the very least, although very pathetic.

Honestly, I doubt it will get that far. Of course, this brings up the interesting question of what was the reason, be it rationale or more manipulative purpose, for the nomination to begin with. I'll put down my thoughts on that when I have some more time.

I was all for the Roberts nomination and confirmation. I think he could end up being the best chief Justice to serve in a long while. This last nomination is nothing short of absolutely hilarious though. I thought Dave Chappelle's Killing Them Softly was the funniest thing I've seen all week, but this tops that. All kidding aside, this is sad. I can't even talk about Miers' legal philosophy because she doesn't have one; she has never served as a judge! Everyone was always quick to point out in the Roberts nomination process that nothing he produced in his years as an advocate, be it lawyer, consultant, or aide, should be interpretted as evidence of his views. The exceptionality of client-advocate relations is a basic premise of the legal tradition, and its truth is undebatable. Yet not only do we have nothgin BUT a client-advocate record for this nominee, the record manages to raise lots of disturbing questions even with the client-advocate provision.

Ms. Miers was George W. Bush's personal attorney in Texas. Miers is currently president Bush's top legal aide as White House Counsel. She has served as a legal aide to his campaigns in the past. The extent of her public service has been serving one term on the Dallas City council. The best part is that as the White House counsel, Miers led the search for the nominee to replace O' Connor, consulting with senators from both sides to try to gather a list of names of possible candidates. Needless to say, I doubt that one of the senators floated the response "well how about you Ms. Miers?" So not only is this a complete stealth nominee, its kind of another example of Bush appointing someone who is an unabashed loyalist in the context of all the ongoing allegations of cronyism. Bill Maher's comedic gag "does Bush know more than 3 people?" has become a serious question.

It has been suggested that Miers is a trailblazer for women in the legal profession, and that this reflects on her level of qualification to serve on the Court. What you don't get from the catchy soundbite is this just means she was one in a first wave of female lawyers, and a part of the larger first wave of female professionals of the time, for that matter. That's commendable, but not relevant. Afterall, Clarence Thomas was a trailblazer of sorts as an African American in the judicial profession, and he still voted against upholding affirmative action.

This candidate is so obviously going to be blocked by the senate it's not worth wasting more time on it. The more pertinent question, and the one that would take a far more astute level of analysis, is what purpose does the nomination serve? I'm not qualified to comment, above giving my initial thoughts. It's possible that the quick blocking of this choice will serve as political leverage for the next, real Supreme Court nominee. We shall see.

I was just browsing through the Times book review's archive, which unfortunately tends to have self-indulgent and uninformative soliloquies posing as book reviews. But it's still hard to believe some of the stuff they print there sometimes. I'm beginning to feel more and more like this is a slanderous, petty, and borderline idiotic section. For instance, the review of the latest Hillary Clinton biography. Let's just start it off strong:

Monica Lewinsky is fat. Bill Clinton has long been a member of the clean-plate society. Evelyn Lieberman, the former White House deputy chief of staff, is reputed to be ''a little overweight.'' Mrs. Clinton herself has long battled a tendency to beef up, but in perhaps the most astonishing revelation in the book, ''several of her Wellesley College classmates, who played sports with Hillary, described how she looked in a T-shirt and shorts,'' and according to them, ''she had a tiny waist, slim legs and ankles, and small buttocks.'' When coupled with the fact that the young Hillary Clinton was referred to by classmates as ''Sister Frigidaire,'' and by White House staff as ''the Big Girl,'' and that Hillary's tubby husband Bill gave a high-level position to Janet Reno, the implication is clear. Hillary Clinton does not merely view the world through the asexual, unmaternal, left-leaning eyes of a poorly groomed woman who was surrounded in her youth by manipulative pinkos who were playing for the other team. At some level, Hillary Clinton feels most comfortable in the company of fat people.

The obvious conclusion is that Hillary Clinton, in a ploy of Machiavellian subtlety, deliberately overcame her small buttocks and thin ankles and put on a few pounds in a cunning attempt to curry favor with fat voters. And in a nation that is looking increasingly chunky, this alone could insure her victory in the 2008 presidential elections.

Are there any other revelations in the book that are worthy of note? Yes...

You did not misread that. If 'worthy of note' means "off-base, trite and worthy of the interest of the tabloid community" then, well, I would have to agree. As much as I would love to have a great paper based out of New York to read every day, this paper has too many idling narcissists who have little important or useful to say. Unfortunately, the book review is really like a navel-gazing club consisting of people who have written books themselves editorializing on the most recent books of others.

Note: This doesn't apply to the actual reporting, which still is probably some the best out there, when it wants to be. When it does not choose to report on something, the Times is remarkable for its omission. Like half of the news will just be left out. Most selections chosen are somehow in the interest of the "New York crowd," whatever that means. Not that there's anything wrong with that. It's just not at all a complete news source.

Not to single out the Times. News media in general are on a steady decline. I personally find reading political editorials more painful than listening to the politicians themselves, which is pretty bad. Investigative journalism (you know, that thing where they like visit places and find out things other networks haven't already covered) is fast becoming a wistful thing of the past. With the exception of maybe CNN, our modern day "partisanship," with all the all the intellectual dishonesty and acrimony that entails, has become the rule. I'm aware of the argument that "Bush and his partisan cronies have caused this." I seriously doubt that. But even if it is true, it turns out that things are even more regretable than they seem. This is simply because even with all of its left-leaning tendencies intact, the news media have done a truly risible job of covering and printing the stories that could have fatally exposed Bush's failings. The press loved the Clinton fiasco, whoever goes down in the process be damned. But because the Bush White House is much better a covering up and containing sensitive information, we heard about the CIA outing scandal for about a week.

Update / rebuttal: But the Times does investigative work on the most important things, like when it tried to unseal private documents regarding nominee Judge Roberts' adoption records. I mean sorry, this one's really dumb. And kind of offensive. What could the paper think it could gain from this? 1) Not that I'm experienced in this matter... but I would guess that accessing a private individual's private records on a matter such as adoption is... what's the word for that - oh yeah, illegal! At least one of Roberts' personal attorneys said, "Sources familiar with the matter tell FOXNEWS that at least one lawyer turned the TIMES down flat, saying that any effort to pry into adoption case records, which are always sealed, would be reprehensible." 2) If the Times succeeded and obtained the documents somehow, without attracting public attention and censure, I think the story would have been at best laughed at as a frivolous piece of wasted resources. 3) Normally, when a newspaper starts investigating a topic for a story, it has a certain rationale in mind... I'm finding it very difficult imagine in this case what that would be.

Killer Opinion Piece

The New York Times shows how charming it can be with two shady gems in the Sunday Times. The first, without any repentence or apparent irony, deals with a prominent female novelist's (unrequitted!) love for every serial killer to come along in the last 25 years. The concluding paragraph does a wonderful job of speaking for itself so I'll just reprint that:

It has been more than 25 years since Gary Gilmore was executed after issuing his succinct last words, ''Let's do it.'' I had a crush on him from the moment he appeared on the scene for any number of reasons: his good looks; his soulful letters to his pretty girlfriend, Nicole; the wounded aura of defiance he carried with him. Even after reading everything ever written about him, from Norman Mailer's ''Executioner's Song,'' which glamorized him, to his brother Mikal's ''Shot in the Heart,'' which cut him down to pitiful and thuggish size, I think I'd still pick his photo out of a lineup of eligible men. What's a lady to do? Such is the unreasonable pull of pheromones, such are the crooked ways of love.

Charming!

The second article deals with America's two most beloved topics... Iraq and Reality TV, of course! The headline/plug reads "Reality Shows Thrive in Chaos: Reality TV has taken root with considerably greater ease in Iraq than American-style democracy." A few paragraphs later says "Reality TV could turn out to be the most durable Western import in Iraq." Take that neo-cons. Just in case you haven't taken the hint yet, a few lines down the author spells out the message: "'This is the only good thing we've acquired from the American occupation,' Majid al-Samarraie, the writer of "Materials and Labor," said as he watched the reconstruction of Ms. Ismail's home."

"I get chills thinking about this," said Ms. Ismail, whose father had died from injuries he suffered in the explosion, as she raced across the street in a blue robe toward a cameraman filming the laborers. "Words can't express how grateful I am."...True to the genre, "Materials and Labor" has a simple conceit at its heart - Al Sharqiya, an Iraqi satellite network, offers Baghdad residents the chance to have homes that were destroyed by the war rebuilt at no cost to them.

And to think someone once said reality TV doesn't have redeeming qualities.

Other spin-offs include a reality show that endeavors to travel around the country making good on completely unredeemable winning lottery tickets - because the state is bankrupt! There is a show that helps young couples marry without fear of getting stoned to death, or whatever. There's one that repairs bombing damage to homes, even if next week they have to return to the same location. There's even a Real-World-like living show where diverse people have to learn to deal with the tensions of living together in close quarters, except in Baghdad it's because no one is able to afford their own house. The possibilities for offensive reality-TV really are several times greater in a chaotic war-torn region. If Iraq becomes a theocracy, I can imagine the U.S. networks themselves will be salivating at the Syrian border, at which they too will probably cross seemlessly and with no supervision.

Disturbingly often when reading the Times, I have to double check the date just to make sure it isn't the April Fools issue.

The people are Harvard are weighing in on yet another socially contentious issue with its pledge to provide $1 million dollars annually to a research project on the origins of life. Now, if only someone could get them to weigh in on that other thing about women and science. Oh wait, they started that! That reminds me, we haven't heard much from Lawrence Summers lately. For a guy who even as far as Harvard presidents go has a big ego, this is probably important. My guess is we won't be hearing any more "intellectually provocative questions" for a while.

The national issue being tapped into here is the debate between Evolution and Intelligent Design. As it stands, the debate is between two, basically idiotic, extremes. Intelligent design is the most flagrant and anti-rational version of a series of religiously-motivated "creationist theories." Nevertheless, some of the more in-between positions can be scientifically respectable in varying degrees. For instance, instead of challenging a far superior theory, why doesn't religiously-motivated science hone in on the actual points of weakness within the theory of evolution? Like the complete absence of an acceptable scientific explanation for the fundamental jump from inanimate to animate, inorganic to organic, the must occur in the origin of life. Actually, attempts at these questions have been made, and pretty compellingly in my opinion, fascinatingly enough, using the concept of entropy (statistical law that all things tend toward disorder). However, doing this concept justice is way beyond the bounds of these few paragraphs.

There are other in-between positions that are still religious. You have the more philosophical contention that, granted that the process of evolution is mechanistic and self-perpetuating, the philosophical CONTEXT a priori (logically) has no default reason to support this paradigm over another. To take one example, why should biological objects possess the property of reproduction in the first place? Is there anything about the original step from biologically inactive to biologically active that dictates biological entities should also reproduce? This might sound like a facile question, but I think on deeper thought it's actually somewhat profound. Another point is more physical, but equally valid; why is the world "set up" to be mechanistic in the first place? This position of course doesn't get at the origins of life per se, but it is equally applicable to it on physical grounds. For the practical observer, these questions seem petty, but from a philosophical perspective, and certainly a religious perspective, these questions truly are open books. Moreover, God may be infered into any of these unknowns to the same effect, and much less objectionably, as into the sweeping role of "creator of everything."

We know evolution takes place empirically. Manmade experiments on isolated islands prove it. However, it does not necessarily logically follow that evolution therefore must have caused all life. Smart questioning would focus on the weak spots of the theory, rather than presenting a complete alternative to evolution. Hopefully, this is what the Harvard project will seek to accomplish, rather than lining up two mutually exclusive theories in a contest of apples and oranges. Certainly, this would "do justice" to the public debate, but scientifically it is a disservice.

The fact that proponents of creationist theories choose to insert God into the first frame, as it were, instead of into the things that are legitimately unknown, tells me that this is not a war on evolution. This is a war on science: Any scientific progress constitutes an effacement of God's glory, or something to that effect. This thinking shows up ALL THE TIME. Let there be no doubt about it: the inverse exists as well. Lots of scientific people think that, "well, since we have a few basic laws, and know that they could hypothetically apply to and explain everything, therefore God has no role, no reason to exist, and therefore must not exist." This is materialist atheism, and it is equally ludicrous as creationism. Unfortunately, we live in a country where whenever debates ensue, they take place between extreme poles. And hopefully our educational institutions won't repeat this mistake.

As usual, The New York Times has printed another strangely incomplete and misleading article on the Israel-Palestinian issue. The topic of this one is "Why Greater Israel Never Came to Be," coming on the cusp of the controversial initiative to dismantle all Jewish settlements in the Gaza Strip.

For an article that promises to answer the question of why Greater Israel never came to be, it's curious, although not surprising, that this one leaves out the two most important factors behind the idea. The author asks two good rhetorical questions: "What possible future could the settlers have had? How could their presence have done the state of Israel any good?" And then he fails to answer them with any intellectual honesty. In doing so, the article reduces the rationale for Greater Israel to one factor of doubtful significance: population management. I think what is being said here is this: Greater Israel was conceived as a way to absorb overpopulation in Israel proper. If only more Jews had made the expected journey to Israel, these settlements would have been able to serve their purpose; since they haven't, they aren't necessary. Not only is this absurd, it's historically inaccurate and revisionist.

Let me address the absurd part first. Look at the claim numerically. Here's a useful source for the demographic facts. The area of Israel proper is just over 20,000 square kilometers. It has 6 million residents. The West Bank is just over 5,000 square kilometers. It has 2.5 million residents. That's 300 people per square km versus 500 people per square km. If the total number of residents of Israel were to double to include all of the world's Jews, the number would go up to 600 per square km. The point is, the addition of the entire West Bank and Gaza Strip to Israel proper, which collectively amount to about a 25% increase in land area, and contain almost all unarable, desert land, is not going to do much to solve any potential population problem. It doesn't make much sense to use a more populated territory to try to absorb population overflow. You could do this analysis with the Gaza strip, but then the numbers would be so ridiculously disproportionate that the argument wouldn't be effective.

Now let's address the historical inaccuracies. Yes, it might be true that at some point in Israel's early history, political leaders were seriously throwing around the idea of expanding Israel into ancient territories "Judea" and "Sumeria" as a way to ward off potential population problems down the road. Regardless, Judea and Sumeria (as distinct from its modern, more limited ancestor "Greater Israel") include modern Jordan, and also all of the Sinai Penninsula. Now, the Sinai Penninsula ALONE is larger than Israel proper, and the Jordanian territories are probably comparable. Second, once the leaders saw that the Jews of the world were not going to migrate to Israel, the rationale behind this factor becomes null. As the Times article puts it, "... the misery that (early) Zionists expected Jews elsewhere to suffer has not materialized." (Technically, Zionism was not founded on the concern of Jews being miserable, but rather that they would assimilate too much into their native cultures. Granted, the Holocaust changed thinking on this topic quite a bit, but nevertheless.) It's a fact that by 1970, Israel's leaders (and probably everyone) knew that the mass exodus was not going to occur.

Now look at the alternative factors we know played a role in the settlement movement because they still operate today. Actual Israelis know that the religious right has had a hugely disproportionate influence on Israeli politics from day one. There is a list of historical events attesting to that influence: reparations for the displaced Palestinians; a steady supply of willing volunteers to man the front lines of the original security-oriented kibutz network; the lions share of lobbying for settlements; a handful of civilian attacks in the territories; the assassination of Rabin. No one can deny that Greater Israel was, and arguably still is, a religious idea. For direct justification one only need look in the Old Testament.

From a practical perspective, a big incentive for promoting settlements in the territories is and always has been security. This may seem like a lame excuse, given that even all the settlements together won't take up very much territory. But Israel is only 12 miles wide at its narrowest of northern points, so in fact every little settlement in the West Bank does make a difference. Yet the goal has not only been expansion, but more important, buffering. From the earliest days, pioneers risked their lives on Israel's border-lying Kibutzim. Though the kibbutz concept is always painted as a peacful experiment in socialism, in fact the early border-lying kibbutz was actually a military entity, serving as a first line of defense and early-warning far before the concept of 'settlement' was put into practice. The same principle operates today in the occupation and settlement of the captured territories. Of course, the analysis applies equally to Gaza. Given that Gaza is a reality, it poses a security threat since Hamas practially runs the place. And this doesn't even count the tunnels and smuggling networks that we know exist between Gaza and Egypt, which supply the territory with a steady stream of armaments.

It's disappointing but completely predictable that, now that Israel is disengaging from Gaza, the Times has followed step and begun to cleanse the settlement movement of its unsavory historical and political aspects. It's also another blow for the intellectual integrity of the paper, but we already knew it didn't have much. Who wants to think that settlements were motivated in part by - Judaism's own biblical literalists? "You mean Judaism has fundamentalists too??" Score one for Arabs in the moral piety contest.

Perhaps more disturbing than the revisionism is the heavy emphasis the article puts on the fact that terrorism has worked. Unfortunately, this no joke. In fact, the whole second half of the article is devoted to making this very point.

"Of course terror has a role in the disengagement," said Michael Oren, a
senior fellow at the Shalem Institute, a conservative Jerusalem research group.
"It convinced us that Gaza was not worth holding onto and awakened us to the
demographic danger. It took two intifadas for a majority of Israelis to decide
that Gaza is not worth it."

A senior Israeli official who spent years closely associated with Likud
leaders, speaking on condition of anonymity because of the sensitivity of the
topic, said that Israelis long had little respect for Palestinians as fighters,
but that had changed.

"The fact that hundreds of them are willing to blow themselves up is
significant," he said. "We didn't give them any credit before. In spite of our
being the strongest military power in the Middle East, we lost 1,200 people over
the last four years. It finally sank in to Sharon and the rest of the leadership
that these people were not giving up."

Some came to a similar conclusion much earlier. The Israeli left has been
calling for a withdrawal from Gaza for years, and even many on the right
believed settlement there to be futile and counterproductive. Mr. Kimche, the
former foreign ministry official, recalled that when Prime Minister Yitzhak
Shamir of the conservative Likud party was running against Yitzhak Rabin of
Labor in the early 1990's, several Shamir advisers told him: "Unless you
withdraw from Gaza, you're going to lose these elections." He did not withdraw;
he lost.

Mr. Rabin himself said that he decided to negotiate a withdrawal with the
Palestinians when he realized how unpopular military service in Gaza had become.

"He said privately - I heard him say it - that military reservists don't
want to serve in the occupied territories and while they are not formally
refusing they are finding excuses to stay away," Yoel Esteron, managing editor
of Yediot Aharonot, recalled. "That put a real burden on the army and it meant
we couldn't stay there forever."

This is the most destructive choice of all, and the Times is idiotic for printing it, especially since the paper ostensibly has a pro-Israel position. This could very well be new intellectual territory being forged here. They're pro-Israel, but they're pro-terrorism too. It's a happy medium! (P.S. They must really be into the Mossad) On the one hand they support an active democracy with a flourishing economy. On the other hand, they also support terrorists blowing up civilians as a means for political gain. Nothing incongruent about that.

If there's one thing you can't help but notice these days its the preponderance of people commenting on gay issues. This makes sense, given the particulars of the enhancement of gay rights. Consider how civil rights struggles have been waged traditionally, -by marches, protests, publicity, etc. I think everyone can accept it's just a fact that the gay movement has a comparative liability on the first two counts. Gay rights marches aren't particularly effective. I don't know, something about the rainbow flags and the fake construction workers doesn't exactly scream "defiance!" Ok, so maybe it does. But I guess it's natural that you see a lot of the case for rights being made via the pen.

The problem is, and I say this in the most respectful way to the large majority of the gay population out there, most of the "gay columnists" out there are completely crazy. Like, can't even construct a coherent argument without interjecting a showtunes reference crazy. This is decidely unfortunate. It would be a little like the African American rights movements consisting entirely in the Black Power faction. It doesn't take a political genius to figure out that flaunting your otherness is not an effective way to gain an advantage in a wage for civil rights, which, let's face it, is what this is.

When gay people name sexual acts and the like for politicians, it has the effect of confirming all the politicians and religious zealouts' worst fears. Let's list them and see how are confirmed.

1) Gays are trying to turn everything gay.
2) Gays are trying to turn everyone gay.
3) Gays are flamboyantly, stereotypically, annoyingly ostentatiously homosexual.
4) Gays are sinful, lewd, and repugnant.
5) Gays don't keep their sexuality or personal lives to themselves.

This would be a little like taking all of the most slanderous turn-of-the-century stereotypes of African Americans, finding people who exemplify only these traits, and then having them lead the black civil rights marches in the mid 20th century. Like, I don't know, rounding up a bunch of large and physically intimidating black males, dressing them up as dumb looking slaves, and then having them rape a few white girls for good measure as an effective argument for civil rights. It's like the gay movement hasn't caught onto the idea of unobtrusive resistance yet. I don't know exactly why. How much time did it take the black community to come up with Martin Luther King (actually not a rhetorical question)?

If demonstrations and confrontation aren't they way gay Americans are going to make their case to mainstream America(na), and I would argue that it's not, then where ARE all the smart gay rights spokespersons (Sorry, Brian Ellner isn't one of them). One possibility is that they're working within the political system. I wouldn't know. I'm not involved in the gay rights movement, and I'm not especially political. The issue of marriage aside, the case for the further deprivation of gay rights is intellectually tenuous in my opinion, and the absence of eloquent voices coming from the other side is tantamount to surrender.

Should sexual orientation be included in every discrimination clause? Absolutely. Should privacy rights apply to relationships? Absolutely. Should sexual orientation itself be a privacy issue? You bet. Should equal civil benefits be awarded to gay couples as to straight couples? Aboulutely. Do gay people deserve marriage? This is a complicated question, confounded by the fact that marriage has traditionally been the domain of religious institutions. In a culture that demands the government stay out of citizen's private lives, it is hypocritical that "marriage rights" are being demanded with equal parity. So you've got multiple questions, like what grants the right to marry, and if this right is being denied to gays, what gives federal government the jurisdiction to intervene.

Bottomline assessment: Demanding marriage rights now seems to be jumping the gun. I like to think of myself as solidly gay rights, but provoking the marriage conflict now, especially on ambiguous constitutional grounds seems like a mistake. More on this topic in the future, and how this issue might be viewed according to the various judicial approaches...

Doesn't She Have Better Things To Do

I couldn't help but notice the name at the end of this email to AndrewSullivan.com, reprinted in its entirety:

Dan: Too bad you missed “Once Upon a Mattress” in San Francisco last year. They took your casting suggestion and then some. Lea de Laria played the princess. As you know, she is huge, loud, funny, gay, and in my book a far better musical comedy performer than Rosie O’Donnell. With this formidable comic presence at its center, the show—which is pretty slight—turned into something really memorable. If you print this, please give credit to 42nd Street Moon, a mostly-amateur local company that does a great job reviving obscure musicals.

I always enjoy reading your column locally in the SF Weekly, even though I’m almost completely uninterested in the subject matter. You’re a great writer and a principled person, and I’m enjoying your blog very much. Barbara B.

I guess taste in entertainment is another area where I and "the senator from California" don't see eye to eye...

I'm not tired enough to sleep, and not awake enough to be genuinely productive, so I figured I'd explain my perspective a bit more on the Supreme Court nomination issue. The last post on the Supreme Court may seem overly abstract in light of the real consequences of the issue at stake here, so I want to address some of the practical issues I think are in the balance here.

There's no question Roberts is not a bad guy, though the same can not be said for all justices. He's not going to inhabit the fringes of some outrageous and fanatical ideology, or act as a covert operative for any person or party. That is, he's clearly not an ideologue, and seems fairly independent intellectually.

On a practical level, the question at issue here is what direction will his appointment lead the country? All this is amplified by the fact that

1) Roberts himself is expected to be a swing vote on many key issues.

2) The administration that appointed him is the most ideological one in recent history.

This is in terms of both foreign and domestic policy. The whole concept of a faith-based initiative speaks for itself, I think. In other important respects, we see policies coming out of the White House that are simply not grounded in fact. The former party line "Global warming needs more study" is a perfect example. The fiscal policy of running huge deficits during a war while pushing through tax breaks is not endorsed by any economic camp known to man. The energy policy is completely hypocritical and irrational. The allegations officially made about factors relating to gay marriage and parenting are not based on reputable scientific evidence.

3) At any rate, the country is clearly at an ideological crossroads, questioning the entire New Deal style of government. This is applicable in terms of the "size of government," responsibilty of the government to provide social protections, and the continued progress of the civil rights movement and its various tributaries. In all of these repects, this nomination is a very key one, in that it may be a significant step in a process that reshapes the judiciary in a way that reflects the reforms going on in the other two branches.

This may end up being the case. Intellectually and practically, however, there are serious compelling reasons to reshape the structure of government away from federal authority on social issues. Philosophically, on the most contested social issues of the day, we are not dealing with issues posessing clear-cut answers or even clear-cut premises. Whatever your views on abortion rights, everyone has to admit it's ambiguous on which side of civil rights abortion falls. I certainly don't think that a couple day old embryo is human life. But the current public debate hasn't advanced beyond essentially a line-drawing argument, and I can't think of any better philosophical criteria with which to frame the issue. Nor has anyone else been able to, to my knowledge. Therefore the question of "the rights of the unborn fetus" is going to remain a live one for many people in the public discourse, regardless of how resolutely the other camp feels to the contrary. Yet abortion is clearly a women's rights issue as well. So whose rights are more important? Answering this question seems virtually impossible.

Or consider the gay marriage issue. It's not clear that marriage itself is a CIVIL right, although government does in effect legally sanction it in conjunction with religious institutions. To me the clause "equal protection of people under the law" doesn't apply, because the law doesn't sanctify marriages, it only determines benefits once they already exist. Someone else might read that phrase differently. Yet federally banning same-sex marriage doesn't protect rights either; it doesn't add, it only subtracts. Again we're left with the open ambiguous questions of "what counts as a right" and then "to whom do these rights apply." At either end, federal rights are unclear, and judicial minimalism is prudent.

In the formulation of Hillary Clinton, abortion should be "safe, legal, and rare." It's been argued that allowing some states to ban abortion will effectively eliminate the option of abortion for the poorest citizens in those states. I tend to think that such a policy would contribute more towards making abortion rare than making it prohibitive. A simple cost-benefit argument leads to this conclusion. Given the availability and cheapness of contraceptives, I don't think it's a stretch that people will respond to cost incentives in this case just as they would for any economic matter. More expensive abortions leads to people adjusting their behavior which leads to fewer abortions. Obviously, there will still be many people who incur the need for abortions despite their economic interest. Let there be no doubt about the fact that this is by no means a completely rational matter. Yet I see no reason why the above scenario would prohibit these people from having abortions.

Awarding federal rights on either of these issues is philosophically dubious, not to mention bound to be extremely controversial given the nationwide level of variance in views. On the practical end, relegating the issues to the states seems like a good solution, albeit most state legislatures are either corrupt, inept, or both.

It's clear the most powerful wing of the Republican party wants to do the same thing to the federal judiciary that it did 20 years earlier with the legislative branch: reduce its size. Ironically, the current president has reversed this trend in the legislative branch, but that's another topic.

There are a lot of reasons to support judicial minimalism. When the courts make a decision we can live with, we chalk up any discord vis-a-vis public opinion to the glorious independent function of the judiciary. When the courts make a decision we can't live with, we call it the action of "activist judges." To be honest, the term activist judge means next to nothing to me. Nonetheless, the term is not indicative of a healthy attitude and relationship to the judicial branch.

As critical as the judicial branch is to the American form of government, there's one thing I think everyone can agree on here: it is also the least democratic branch, although the other two branches are certainly still in the running in this peculiar race to the bottom. Think about it. An elected official has complete power to choose whoever the hell he or she wants, with in many cases no accountability to the electorate, to serve without term limits on a court making decisions according to no standard methodology, the only requirement being the vague "interpret the constitution." The Congress has veto power and the incentive of reelection to ensure accountabilty, but if they keep vetoing judges they inevitably become seen as "obstructionist," regardless of how good the reason or how consistent the rationale.

The judicial branch is an indispensible but also highly imperfect component of government. Any input of the judicial branch has two major drawbacks. Any decision is final, though theoretically overturnable. And the decision is so far removed from the participatory democratic process that it can be fairly characterized as undemocratic. Obviously, these are drawbacks to be avoided if given the option to resolve the issues in a more direct, democratic legislative manner. Hence, Judge Roberts' stated agenda to reduce the load on the federal judiciary is a welcome development to me.

There's a great piece on the common phenomenon of so called conservative court appointees defecting once on the bench to support more liberal decisions. This is, needless to say, a pervasive phenomenon, if only based on the fact that a whole 3 out of the total 9 sitting supreme court justices have followed this pattern. Lots of people are trying to apply historical precedents to try to figure out if Roberts will follow in these justices' footsteps or not. While this is an interesting debate, I'm not inclined to participate - for two reasons. One, despite how often the pattern may repeat itself, I'm not sure historical precedent gives any insight into how any individual might turn out. Two, I don't think that even a worst-case scenario Roberts will be a terrible pick, so the general issue is more interesting to me.

The question posed by Slate gets at several interesting issues, I think. The one that comes to mind first is the issue of the politicization of judges, particularly on the Supreme Court. I can't imagine that the founders intended for judges to be political entities whatsoever. Granted, the system takes into account the fact that the executive privillege to appoint justices poses the possibility of the institution devolving into a political instrument. And I think this is a large part of the rationale for the senate confirmation process (though, I'm no constitutional scholar). It's not a bad bet that Judges are SUPPOSED to be apolitical; I doubt this theoretical point is disputed much. However, given the reality of the situation, I think the public debate on the political nature of judges concerns the following issues. One is how much unsupervised and autonomous power the president has in the appointment process. Questions about the extent of the confirmation criteria and procedure that should be employed by the senate address this issue. On one side you have people saying that the ability to appoint judges is merely another privilege that comes along with winning the election. In this view, the system is not acutely self-moderating at all. In fact, in the short term, it's pretty much totally unchecked and unilateral. But over several terms, the process is assumed to level out. These people tend to argue for a minimalist interpretation of the senate confirmation process, entailing something along the lines of vetting a candidate's suitability for the job in terms of dimensions such as temperment, civility, level of qualification, and background. Essentially it's intended to screen out candidates who are really not cut out for the job (although in reality, how many people who make it to the super-select pool of those who would be considered for the Supreme Court don't have the qualifications to be a competent and suited Justice - with the notable exception of Clarence Thomas, perhaps). So this argument doesn't really seem to hold water. The less strong version of the view would be perhaps that the confirmation is intended to screen out obvious ideologues, who may have the qualifications and experience required for the job, but are unfit in the sense that they will not judge each case individually on the merits, but rather according to a pre-conceived grand scheme of judicial imperatives.

I think this argument is more convincing and relevant to the issue of John Roberts. Leaders have managed to insert the phrase "judicial activist" into the mainstream discourse with astounding success. Without getting into whom the introduction of the concept serves, I think it's pretty clear that people are concerned about judges "legislating from the bench," and that such a practice really does occur. Without question, Roberts passes the ideologue test with flying colors. He writes all the time about the need for a more restrained and humble judiciary. He has never taken a known controversial stand on an important social issue in his life. He speaks regularly about the importance reintroducing careful interpretation of the law and due process in the courts. His revered expertise in all aspects of law supports the claim that he has a profound respect for the institution. This is not to say that he hasn't aided consistent political interests in the past, or consistently had political affiliations with Republican adminstrations. It's to say that ideology refers more to the process than the decision itself. On this count, in my opinion, George Bush's decision to appoint Roberts is one of the saner and most sober things he has done. Of course, this says nothing about what Roberts would decide in a hypothetical future case. What it says is that he will definitely not legislate from the bench, which at least is a good thing. You have to hand one thing to George Bush - he is consistent.

On the other side, people argue that the senate confirmation procedure is a political check on the executive appointing privilege. This makes some sense in theory, but it assumes of course that judges are political entities, both in the sense that presumably they are appointed as political instruments, and that they are selected on the basis of how likely they appear to be to uphold decisions of political importance to the supermajority of the senate. I'm not sure which of the two camps is correct, and, somewhat ironically, it requires the ruling of a jurist to determine which view is in fact constitutional. There is a less strong version of this view. In the words of more than one senator, "what someone thinks does matter." Setting aside whether or not this represents proper originalist protocol, which is almost entirely just an academic debate anyway, my question is if you do try to find out what the nominee thinks, where does that get you? First of all, to begin with the premise is very unlikely, since beyond anything provided by a paper trail, a nominee may easily conceal his or her views. Secondly, if the nominee hasn't been involved in deciding and setting legal precedents before, any information you get will be personal views, not judicial philosophy, and as such is distinctly less useful given that the nominee is a person who can separate personal beliefs from judicial approach. Lastly, even if you can get credible information on both personal and judicial views, judges change once on the bench. That's the whole point. And everyone knows this happens a lot.

Another issue brought up by all this is the notion of strict constructionism, which is necesarilly counteropposed to the idea of "legislating from the bench." Constructionists are certainly in vogue with Republicans right now, and the idea of constructionism is deceptively formidable intellectually. These constructionist judges are going to read the constitution as issued. Therefore, it's impossible that they could ever be inserting the interests of contemporary activist causes into their decisions. The idea is appealing on the surface.

However, there is a vexing issue lurking here, and that is why does strict constructionism always seem to lead to predictable "conservative" positions? In general, due to its strict adherence to originalist (and hence antique and often very provincial) concepts and ideals, constructionism deflates legislative authority. Inherently, legislation in its pure form is, one could say, neutral to the constitution, in the sense of written without especial regard for constitutional (not judicial) precedents. Therefore, since social changes, including civil rights, are inherently progressive in origin, they are also easiest to strike down vis a vis the originalist constitutional litmus test.

Prima facie, I see a huge practical problem with the constructionist doctrine. That is it essentially amounts to guesswork and speculation about what the founder fathers thought. Sure, constructionists put a lot of time and research into their decision-making. But in the end, it leads to an essentially unfalsifiable declaration, because no one KNOWS what the founders thought. And this is potentially very dangerous because it gives judges complete creative freedom, so to speak, which is patently at odds with the judicial function.

But the debate about the politicization of the courts goes beyond the selection process. Apparently, judges now are members of political parties, hold political views, and serve specific political interests. So-and-so is classified a "conservative judge," and then everyone acts surprised when they turn out to make decisions that please liberals. I'm not sure how true this is. To me, it's more indicative of a fallacy in the way people analyze judicial officials than that judges routinely abandon their political views on the bench. I mean, let's face it. Judges have to curry political favor to even get appointed, but that doesn't necesarily mean they are hardcore, committed, partisan ideologues in reality. Moreover, people seem to think that judges are incapable of holding personal views and judicial views separately. This is a strange contention. In fact, I would say that a judge who does NOT completely separate his personal from his judicial views is unprofessional and borderline not qualified. Therefore, this whole business of what does a nominee such as Roberts personally believe seems fundamentally misguided and a waste of time. There's a reason that so many slated "conservative" judges turn liberal: the ones who have a proper judicial profile value the responsibility of interpreting and enforcing the law as they see it above politics.

Slate provides a further possible factor for why judges change on the bench. Essentially, it states that once judges reach the Supreme Court, they begin to think more collectively, with regard to the other judges' opinions, and ultimately in terms of the final outcome of the case. The theory has it that the presence of at least 3 hardcore, unwavering conservative judges on the Supreme Court forces any new entrants to modify their decisions in order to counterbalance the consensus.

People are paying lots of attention to this confirmation process, and for good reason. A lot hangs in the balance in terms of civil rights, abortion, government protection programs, and the distribution of power among the different branches of government. Ultimately, the question to me is not whether Roberts is or will be conservative. There seems little doubt that he is, both politically and judicially. It is whether he will be a practical versus a "constructionist" conservative. Will he interpret according to a controversial though completely legitimate doctrine of judicial minimalism? Or will he adopt an activist stance cloaked behind the front of strict constructionism? I was greatly heartened by the statement he made during the district court confirmation hearing to the effect that he prefers to let the case dictate the judicial approach, rather than applying an all-encompassing judicial approach. Flexibility and willingness to change one's mind to me are antithetical to ideology.

Some people might wonder, "well what's the difference which way he arrives at decisions, as long as they're ultimately going to strip rights away from causes we care about?" Aside from the philosophical appeal of a judge adhering to due process, I think there are a few more concrete differences. Many people seem to have the idea that judges are, for lack of a better word, tools. In reality, every judge, even Scalia, takes their responsibility with solemn gravitas. Judges read thousands of pages a day, and that doesn't even count any deliberation. All of them are trying to do what they perceive to be legally right. Thus their legal philosophy or approach can be critically influential at unexpected moments. Also, if you think about the fact that the need to counterbalance a small group of judges who consistently end up deciding on one side of the issues necesarilly distorts the actual views of the other members, it's apparent why practical vs. constructionist conservativism represents a significant difference structurally speaking.

Stay tuned

A few large posts of hopefully modest value coming soon...

Unlike most Americans, I haven't taken a side on the gay marriage / gay rights fiasco yet. I'm not ashamed to admit this. It seems to me that the answers to these issues rest on fundamental unanswered questions.

Briefly, my assessment of the progression of the gay rights movement goes something like this. Within the last few years, homosexual activist groups have become more assertive in pushing for reforms that, as they see it, will help remedy long-standing prejudices and inequalities towards gays. As is usually the case in such matters, the calls to reform crystallize around a rather narrow set of hot-button issues, such as gay marriage. Religious leaders and political leaders, for slightly different reasons, respond to the new burst of activism with dogged resistance. Religious leaders do so because religious dogma is inherently a rigid enterprise, and consequently is completely irrelevant to contemporary issues. Contemporary political leaders do so because the group currently in power is not above using any tactics to win and maintain power, including demagoguery designed to appeal to a small but powerful minority of religious suppoters. Meanwhile, the vast majority of Americans don't have nearly as strong opinions on the matter as the zealots, and so they either follow suit with the standard political narrative (gays will ruin the integrity of families and society, marriage is a sacred institution, homosexuality is a sinful choice...etc.) or remain quiet and drop out of the political equation altogether.

The actual injustices that are driving the discontent, however, are much more diffuse and multifold. Unconcealed intolerance in the South, hate crimes and the like, archaic sodomy laws, persistent workplace discrimination, the recent gay adoption laws, laughable media crusades, and a rising religious movement that preaches the uncompromising moral and religious wickedness of homosexuality are all perceived as evidence of general hostility towards gay people. The gay marriage issue is pretty much a red herring in my opinion. Unfortunately for the greater cause, the rashness of the most extreme gay reformers and the opportunism of politicians has put this at the forefront of the public consciousness of the gay rights issue.

The substitution of a kind of proxy debate in place of the real issues ultimately disadvantages the reform movement. Conservatives reflexively object to anything that entails a break with tradition, such as the redefinition of marriage. Consequently, gay rights reformers end up arguing defensively about the definitions of words and technicalities of institutional practices. Meanwhile, no progress is being made on the more important objective of addressing intolerance. The gay reform crowd should be 100 times more concerned with ending discrimination of all forms (the "right" to marry is awfully insignificant discrimination and mostly symbolic comparatively), ensuring that gays not be used as political scapegoats or vehicles for demagoguery, and protecting their political rights and equality under the law from the infringement of religious zealots. All that pleading for marriage will do is push conservatives' buttons.

It's mind-numbing how so many gay reformers refuse the seemingly self-evident path of least resistantce - working with the Democratic party to further their goals. Ideologically, Democrats are much more sympathetic to the cause. But this is because Democrats are completely inept. And even the gay movement knows it! Personally, I despise the current Democratic party for the very reason that it's ineffectual and unwilling to directly challenge (just complaining doesn't count) the republicans on any issues of importance. As an example, the "values debate" is what mobilized evangelical voters to show up in record numbers last election. Instead of declaring the values issue a lost cause, Democrats must assert the separation between church values and government values (insofar as government values even exist...) as a fundamental constitutional tenet, and then counter with a new commensense, civil definition of values. It wouldn't be that hard. All it would take is a prominent Democratic Senator going on television and saying "The Republicans have claimed a monopoly on values. In the process, they've defined values in a narrow and incomplete way. We respect their cultural values, and their right to assert them. But we believe true American values go beyond cultural matters to issues of foreign policy, executive accountability, fiscal responsibility, electoral reform, etc... and must respect the separation between religion and government." In contrast, presently we have chairman Howard Dean publicly announcing that the values debate is not one the Democratic party particularly wishes to engage in, nor one that it can win. And you have Barbara Boxer engaging in her weekly tirades of futile resistance on the senate floor. The current democratic modus operendi is so unconscionable to me it's almost unreal. Then again, I don't understand much about the way politics actually works. My dad's theory is that Democrats are abstaining on all of these issues so as to give them more punch when they address them come campaign time for the next house election cycle. I hope he's right. My own theory on why you see so many gay Republicans is that the relationship between gays and the Republican party is a little like the Stockholm Syndrome for political disenfranchisement. Your abuser is kind of an asshole, but at least he's the only one who has any power to do anything, so simple expedience dictates you side with him.

This debate is going to be dominated by demagogues screaming aburdities about the apocolyptic ramifications of things like gay marriage until reformers start soliciting solid factual information to change the currency of the debate from mysticism and scare tactics to fact and reality. Demagoguery always trumps reasonableness and moderation in an environment of ignorance.

I don't think it is inaccurate to assert that around the country, gays are currently treated with the same level of ignorance and intolerance that blacks were 60 years ago, or jews were intermittently throughout history. Discrimination is defined as the unequal treatment of people based on attributes that are functionally or otherwise not relevant to the situation at hand. The color of your skin...this is generally not relevant, no matter what the context. On the other hand, the differential treatment of people who possess criminal records IS permissible if the fact is relevant to the context. Yet, still, in some contexts, a criminal record is not relevant, such as in getting a job as a floor sweeper. In terms of the gay issue, we are sadly ignorant of the underlying facts that determine how this issue fits into the accepted paradigm for discrimination. Why can we still not agree on how much of being gay is a choice and how much of it is something that can't be helped? And the answer won't come from evangelicals (who have already set up conversion programs all throughout the country, with mixed results at best). It will come from hard factual science. On any given gay issue, people should demand to rationally specify how being gay is relevant to the issue, be it gay marriage, gays on the job, gays in the military, gays as teachers, etc. Does gay marriage solely constitute a breach of tradition, or does it have legitimate potential for adverse social effects? Of course, to an extent, the second question of relevance relates back to the first of choice in that in many cases the question of relevance hinges on the theory of propagation by example, which in turn depends on how homosexuality originates.

I saw Bill Maher's show "Real Time" on HBO the other day. Generally it's a good show, and fairly engaging if not marginally informative on current political matters. His panel discussions are the meat of the show, consisting of three guests from different walks of life who discuss politics and current events with Maher himself as the moderator. The level of dissension among his guests can be considerable, and I'm always impressed with Maher's ability to keep the exchanges civil and hence the show watchable. Bill Maher is a liberal, and his audience is almost always uniformly liberal. So it's difficult for him to bring in the truly hardcore conservative guests. The usual situation is something like 2 liberals and one pseudo-conservative (someone at least willing to argue the opposite position). The episodes that include people of actual political clout and significance (politicians, policy wonks, chairspeople of various organizations, and even some pundits) as opposed to those with mere political opinions (entertainers, actors, most columnists etc.) are by far the more interesting ones. Of course, whenever the show does manage to bring on a bona fide conservative, things becomes really interesting.

This week's panel consisted of David Frum, the colleague of Richard Perle, one of the Dixie Chicks, and Wesley Clark. Stated briefly, I have never seen a poorer showing from anyone in any kind of conference or television forum than that of David Frum last week. His performance did much to solidify the notion that those in the neocon cabal are unrealistic, delusional, completely ideological and not grounded in fact, and even malign. Among his blunders were the assertion that ownership of assault weapons is a necessary right in modern-day america, and still in line with the original reasoning of the founding fathers; that gun permits shouldn't be screened by homeland security because guns would never be used by terrorists seeking to create destruction; that gays in the military hurt troop morale (a highly unpopular, though not totally rejected view), although they can and should still be used as translators and such; the inactivity of the U.S. in stopping the genocide in Sudan is due to domestic political resistance and not any input on the part of the administration; the Democrats' image problem with respect to military credibility is due entirely to intrinsic factors and not at all to the Republican's ongoing campaign to undermine it. The image created by these assertions is that of a sadly delusional, inaccurate, and disturbingly self-serving and partisan worldview. It's hard to believe that someone could be apparently that stupid, intellectually or politically, and be a contributing editor of the Weekly Standard and a fellow at the American Enterprise Institute. As a point of reference for all this, just consider that in comparison Richard Perle seems extremely likeable. Here's a concrete example, just to give you some perspectiv. To be fair, the excerpt is only part of the answer:

Q: I want to ask you a question about Russia...In the time that this administration has been developing a closer and better relationship with Russia, we've seen president Putin roll back democratic freedoms, free market policies now seem to be contested, and especially waging a very murderous and destructive war against a portion of his own citizenry, pushing some of them into Islamic extremism. I haven't seen this country addressing that problem with Russia. You were talking about a moral foreign policy...we should be addressing these questions of Russia.

A: ...I only wish that all of those brave european journalists who got so exercised when America transported captured Taliban prisoners by putting earmuffs on their ears would have some of the same vigilance about abuses of human rights, for the massive death and destruction that is going on in Chechnya. I mean, the earmuff problem is no doubt serious...

The thing is, on paper he's much more competent than he appeared to be on Real Time. He actually doesn't look bad. Granted, his book "The Right Man," which if you don't know it is the one that features the picture of George Bush in a flightsuit on the cover, is by virtue of that fact irredeemably lame in my view. (Apparently, good judgement has led someone to change the picture on the most recent printing.)

The thing is, if you can get beyond the neoconservative's arrogance and complete uni-partisan politics (which is not to say that such things should be overlooked), the truth is that the neoconservatives are paying attention to important things that democrats are just not talking about. Americans seem to like to live wistfully in their isolationist bubble, but I think all the evidence unmistakably points to the fact that there is a serious, widespread, and disturbingly accepted movement brewing in the middle east that is a direct threat to the United States. In several middle eastern countries, it is commonplace for Muslim clerics to append their call to prayer with speeches daily extolling the virtues of Jihad against the west. Given the fact that citizens of Arab nations are kept notoriously uneducated, this kind of uncomplicated message can be made enormously persuasive. The regimes who are supposedly our allies backhandedly fund these activities or are complicit in allowing them to take place.

The literalist interpretation of Islam seems to hold far more sway than in other religions. It's a fact that every religion has its fundamentalists. Every dogma is going to have its idiotic literalists. In the typical religion this is a fringe phenomenon. In Islam, particularly arab islam, the ideology of pre-historic islamofascist triumphalism is actually a threat in the sense of having the potential to become mainstream. Why this is, I'm not quite sure. Maybe it's deep Arab humiliation over failing to acheive its utopian Islamic empire in the 7th century. Maybe it's the widespread poverty and illiteracy of the modern arab people. Maybe the oil economy leads to the wrong people getting wealthy and powerful. Whatever the cause, it would be foolish to ignore this problem. Yet only one of our two august political parties has a strategy, a practical plan, to begin to address the problem in the middle east on any level.

On the other end of the political fence, the head of the democratic party, Howard Dean (a self-flagellatory appointment in my opinion, but anyway) said recently that as democratic president he would seek to involve the U.N. as a primary means to fight terrorism. I don't see how he actually believes that, other than because he thinks it will be popular somehow. Let's look at the facts. The U.N. is an institution founded 50 years ago for the purpose of enforcing international law and national boundaries among nation-states. I'm not going to use the word "antiquated" or "obsolete," because these are just buzzwords that don't convey any information. Nonetheless, I think it's clear that given that the contemporary U.N. manifestly does not have the political clout and power to even enforce within its own domain, i.e. the perpetration of aggressive acts by one nation against another or against itself, there is no reason to expect that it will be able to enforce and protect in a domain for which it is not at all structured. This is not to say that the U.N. should no longer exist, as some suggest (i.e. our intrepid U.N. ambassador appointee). It is to say that it simply does not have the logistical and intelligence capabilities to deal with shady, decentralized, amorphous and anational terrorist networks. Neither does the U.N. have the will to do so, I think all reasonable people can agree. After all, considering its global constituency, most of its member nations either do not face the same threat that has in the most clear terms been extended to the west, or they are directly involved in funding and supporting terrorism and/or the dissemination of anti-western ideologies themselves!

Does this make me bi-partisan? No! On the contrary, it makes me anti-bipartisan. Let me explain... I'm not a political science major, so I might not be able to cite the teachings of distinguished thinkers. But isn't it obvious to everyone that more parties equals less bickering? Staunch bipartisans gush of the merits of the two party system: "It brings everybody together under the same roof!" implying that it encourages moderation. In fact, the opposite is true. When the two parties disagree about something, it appears they need to emphasize their differences, so that one of them doesn't appear to be the party that is "giving in." The result of course is politically self-protective polarization at the expense of prudent policymaking. Whereas, with multiple parties, diagreement is inevitable, thus parties don't have to worry about defining themselves in opposition to some alternative strain. They are able to focus on effective polices without the constant specter of political death vis a vis smear campaigning.

In terms of game theory terminology, isn't it true that the dominant strategy in cynical politics is to define yourself as oppositely the other party as possible? Consider that there are three ways to win votes and support in politics. You can steal your opponent's supporters. You can rally a dormant portion of your own base. And you can convince independent, variable, or non-participating voters to come out and vote for you. Consider how the strategy of defining oneself oppositely the other party affects your goods. 1) Your opponent's supporters are rabidly partisan. Even if there are some moderate or equivocal ones, they have no reason to "switch horses" for a party who is professing to do essentially the same thing as what their party is already doing. 2) Your own base is rabidly partisan. The more it sees its party "challenging" the party in power, the more it will come out and support it. 3) Undecided voters are undecided for a reason, i.e. they don't find the available options compelling enough to come out in support of one side or another. It is foolish to think that if you come out with a similar message, replicating policies that are already being offered, you are going to change any of these people's minds.

If this is all true that the dominant strategy is to adopt the political alternative, then the more parties there are, the more moderate this dominant strategy will be. Why do we resist applying the same analysis to politics that we have already applied with such success and accuracy to economics?

Of course you cannot expect harmony of views in politics. If anything, a healthy democracy requires ample discord. Yet, harmony and moderation are worthy goals to strive for. It is a paradox, but the greater the number of parties, the greater the opportunity there is for discord, the more moderate the outcomes are.

Aside from the obvious incompetence it breeds, another one of the problems of the widespread, extreme polarization in American politics is that one whole half of the country inevitably thinks the other half is completely delusional and vice versa. This is simply a reflection of how different their worldviews are. Now, it's perfectly fine for a group of people to think that one half of the country is wrong, or even 99% of the country for that matter. But when people start thinking the other side is delusional...that's a recipe for disobedience and lack of cooperation.

In terms of protection of intellectual property, the current two party system is great! No one will ever dare steal any idea or stance from another party. But in terms of effective governance, it is seriously, seriously problematic.