WaxWorks
|
Thursday, January 19, 2006
The Hypocrisy of Antonin
William Saletan at Slate does a nice job of exposing how Justice Scalia's insistence that he's simply following a consistent jurisprudential philosophy wherever it may lead is crock. Scalia only follows his philosophy when it leads to the result he likes, as the abortion and assisted suicide cases show.
When you make the law on the Supreme Court, claiming you will "follow the law" is meaningless.
As for the assertions by people like Alito that they will "follow the law," Judge Posner recently wrote:
In a provocative essay in the November 2005 Harvard Law Review, Richard
Posner, a federal appeals court judge appointed by Ronald Reagan, makes an even
more unvarnished version of that argument. Much of the high court’s
constitutional decision making, Posner asserts, is inherently political.
As much as a court “is supposed to be tethered to authoritative texts,”
Posner writes, the Supreme Court often finds itself facing issues to which “the
constitutional text and history, and the pronouncements in past opinions, do not
speak clearly.”
It is in that “broad open area where the conventional legal materials of
decision run out, and the Justices, deprived of those crutches, have to make a
discretionary call.”
Such cases, as Posner notes, inevitably bring into play competing
conceptions of social good, without solutions that can be derived with
certainty: the desire to ensure public safety vs. the need to protect those
accused of crimes; the rights of the fetus vs. a woman’s autonomy; the
importance of colorblindness vs. a recognition of the legacy of discrimination;
religion as a positive force in public life vs. the risk of marginalizing the
minority. On a more elevated but even more important plane, different judges
bring to the bench different attitudes about presidential power, federalism and
constitutional interpretation.
When you make the law on the Supreme Court, claiming you will "follow the law" is meaningless. And Alito knows this.
Wednesday, January 18, 2006
What Might Have Been
If you haven't read it or seen it yet, I recommend reading Gore's speech on MLK Day about the Bush Administration's illegal wiretapping. It's quite good and right on point.
I've always wondered how different things might have been if Gore hadn't had the Presidency taken from him in 2000. It is my firm belief that, although obviously no one knows what might have happened, if Gore had been president in 2001, there's a chance 9/11 would not have happened. This is because Gore never would have demoted Richard Clarke to a non-cabinent level position and would have been more attuned to terrorism issues during his first months in office than Bush was. (The Republican spin, a la Rudy Giuliani, that they said "thank god Bush is President on 9/11" completely ignores this fact.) If someone (yeah, I'm looking right at you Condi) had listened to Clarke when he made his repeated, urgent pleas about an impending al Qaeda attack, then perhaps some dots could have been connected in time to avoid a terrorist attack, just as they had on Clinton's watch in 1999.
Gore has clearly found his voice on this issues, unrestrained from the constraints of worrying about running for office, something that caused him to become over-cautious during his time as a candidate. I've always thought that Gore would have been a very good president and, once in office, would have shaken loose the doubts and indecision that plagued his campaign. In nearly every book written about "the inside" of the Clinton Administration, Gore is presented as a strong leader, making bold decisions and taking decisive actions, often prodding Clinton to make stronger decisions. Yet no one ever knew about this. Gore understood what makes a good, strong leader and President, and would have been well-suited for the job.
What happened in 2000 was outrageous enough, but when you consider the consequences, which we are living with each day in Iraq, etc., it really takes an even greater significance.
Tuesday, January 17, 2006
The Politics of Personal Destruction
While Republicans are criticizing the manner in which Democrats questioned Samuel Alito, it bears noting what has been going on by the right concerning Congressman Murtha. I'll let E.J. Dionne tell the story:
I underestimated the viciousness of the right wing.
Last November, Rep. John Murtha, a Democrat and a decorated Marine
combat veteran, came out for a rapid American withdrawal from Iraq. At the time,
I wrote: "It will be difficult for Bush's acolytes to cast Murtha, who has
regularly stood up for the military policies of Republican presidents during his
31 years in Congress, as some kind of extreme partisan or hippie
protester."
No, the conservative hit squad didn't accuse Murtha of being a hippie. But
a crowd that regularly defends President Bush for serving in the Texas Air
National Guard instead of going to Vietnam has continued its war on actual
Vietnam veterans. An outfit called the Cybercast News Service last week
questioned the circumstances surrounding the awarding of two Purple Hearts to
Murtha because of wounds he suffered in the Vietnam War.
John Kerry, as well as John McCain -- who faced scurrilous attacks on his
war record when he was running against Bush in the 2000 South Carolina primary
-- could have warned Murtha: If you're a Vietnam veteran, don't you dare get in
the way of George W. Bush.
David Thibault, editor in chief of Cybercast, made it very clear to The
Post's Howard Kurtz and Shailagh Murray that Murtha was facing accusations about
his 1967 service now because "the congressman has really put himself in the
forefront of the antiwar movement." In other words, if Murtha had just shut up
and gone along with Bush, nothing would have been said about his
service.
As it is, the charges are remarkably flimsy. Former representative Don
Bailey (D-Pa.), whom Murtha defeated in a 1982 congressional primary after a
redistricting, said that Murtha had told him he did not deserve his Purple
Hearts, Kurtz and Murray reported. Bailey, who won a Silver Star and three
Bronze Stars in Vietnam, recalled Murtha saying: "Hey, I didn't do anything like
you did. I got a little scratch on the cheek."
Authentic war heroes (including McCain) often play down their own heroism.
In any event, what we know about Murtha, McCain, Kerry and, yes, Bailey, is that
they served in combat in Vietnam. What we know about Bush and Vice President
Cheney ("I had other priorities in the '60s than military service'') is that
they didn't.
What's maddening here is the unblushing hypocrisy of the right wing and the
way it circulates -- usually through Web sites or talk radio -- personal
vilification to abort honest political debate. Murtha's views on withdrawing
troops from Iraq are certainly the object of legitimate contention. Many in
Murtha's party disagree with him. But Murtha's right-wing critics can't content
themselves with going after his ideas. They have to try to discredit his
service.
Moreover, the right has demonstrated that its attitude toward military
service is entirely opportunistic. In the 1992 presidential campaign, when the
first President Bush confronted Bill Clinton -- who, like Cheney, avoided
military service entirely -- conservatives could hardly speak or write a
paragraph about Clinton that didn't accuse him of being a draft dodger. In
October 1992, Bush himself assailed Clinton. "A lot of being president is about
respect for that office and about telling the truth and serving your country,"
Bush told a crowd in New Jersey. "And you are all familiar with Governor
Clinton's various stories on what he did to evade the draft."
But from 2000 forward, the Republicans had a problem: They confronted
Democrats, first Al Gore and then John Kerry, who actually did go to Vietnam,
while it was their own standard-bearers who had skipped the war. Suddenly,
service in Vietnam wasn't the thing at all. When a Democrat went to war, there
must have been something wrong with the way he did it. Gore's service was
dismissed because he worked "only" as a military journalist. You can even find
Bush's defenders back in 2000 daring to argue that flying planes over Texas was
actually more dangerous than joining the Army and serving in Vietnam the way
Gore did.
The Republicans had an even bigger problem with Kerry, who did
unquestionably dangerous duty patrolling rivers. Not to worry. The Swift Boat
Veterans simply smeared him.
"War's a nasty business," Murtha said on CBS's "60 Minutes" on Sunday. "It
sears the soul. The shadow of friends killed, the shadow of killing people lives
with you the rest of your life. So there's no experience like being in
combat."
Unfortunately, politics is a nasty business, too. And there is no honor
given to those who serve if they choose later to take on the powers that
be.
Let's be clear: what was done to Kerry was one of the worst cases of untruthful political assasination in our history. The Swift Boaters were angry over what Kerry had done 30 years earlier to protest the war, and they decided that they would lie to get back at him and destroy him. And the media went along.
Now, a year later, we see it again. Anyone on the right who argues that they are the party of ideas, not attacks, should look at Jack Murtha.
