Stone Court

The L.A. Times reports that over the last six years Justice Thomas has accepted over $42,000 in gifts. It also reports that second most is O'Connor at less than $6,000, and Breyer and Souter took none, meaning that over the last six years Thomas has taken more than all of the other justices combined.

Why does this relate to my torture post of earlier today? Because of who the Times could find to defend Thomas. None other than Thomas' former clerk, John Yoo, the author of the Bybee memo and, according to Newsweek, of a September 25, 2001, memo that is the "earliest known statement of Bush's doctrine of pre-emptive war".

Do you think we'll hear from Professor Yoo at Gonzales's confirmation hearings? How about Thomas's hearings for Chief?

Via Jesse at Pandagon, the Department of Justice yesterday issued a new memorandum (on line here) "superced[ing] ... in its entirety" the infamous August 1, 2002, memo (the so-called "Bybee Memo"), which among other things concluded that to violate the federal torture statute, "torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or death" and that, even this prohibition was "an unconstutional infringement of the President's authority to make war". Jesse speculates, almost surely correctly, that the timing of this new memo was intended to help the confirmation of Alberto Gonzales as Attorney General -- presumably as evidence that the system works, that the Administration considers seriously competing views, etc.

While I believe the intent is to help Gonzales, I'm not sure how much this memo helps. As we all know, the original memo was prepared for Gonzales by Jay Bybee, who is now a judge on the Ninth Circuit. Remember that Gonzales's job includes vetting Bush's judicial nominees, so the fact remains that Gonzales read the memo and still concluded that Bybee deserved lifetime tenure as an appellate judge. Indeed, Isikoff's excellent "Torture's Path" in this week's Newsweek reports that "memos reviewed by NEWSWEEK and interviews with key principals show that Gonzales's advice to the president reflected the bold views laid out in the Aug. 1 memo and other documents". Finally, it is interesting to note that the new memo is not addressed to Gonzales but to Deputy AG James Comey (i.e., it is internal to DOJ); since Gonzeles is still Counsel to the President, I would think the normal protocol would be to direct the superceding memo to him as the addressee of the original memo. In one sense, that's just formality. But it does carry the implication that there is no expectation that Gonzales will take any action in response to the memo, an implication that should be explored in the Senate hearings.

On the merits, the new memo goes out of its way to sound like it is disapproving of torture, but the extent to which it is an actual change in policy is unclear. The memo begins (at 1), "Torture is abhorrent both to American law and values and to international norms." It expressly rejects (at 2) the famous "organ failure" definition of torture. The memo's ultimate conclusion (at 8-10) is essentially that the "severe" pain necessary for torture is less than "excrutiating or agonizing" but, beyond that, is a case-by-case question of degree -- giving little real guidance where the line would be drawn in a particular case. (The examples it cites (at 10) of what is torture are all so severe -- e.g., "a course severe beatings to the genitals, head, and other parts of the body with metal pipes, brass knuckles, batons, a baseball bat, and various other items; removal of teeth with pliers; kicking in the face and ribs; breaking of bones and ribs and dislocation of fingers; cutting a figure into the victim's forehead; hanging the victim and beating him; extreme limitations of food and water; and subjection to games of 'Russian roulette" -- that their application to the forms of abuse we've seen at Abu Ghraib would be uncertain.) The memo does ackowledge (at 10) that torture can, in some cases, constitute "severe physical suffering" absent "severe physical pain". It discusses, but offers little in the way of meaningful insight into, the statute's "specific intent" requirement (see 16-17) -- although it does observe that "motive ... is not relevant", theoretically rejecting the "ticking bomb" justification for torture.

While the definition of torture is thus somewhat broader but still quite flexible, the memo punts on the $64,000 question -- can the President override federal law prohibiting torture under his Commander-in-Chief powers? The memo reaches the extraordinary conclusion (at 2) that discussing such an issue is "unnecessary" because the President has directed that U.S. personnel not engage in torture (leaving aside (a) that when he did so the DOJ had already withdrawn its interpretation of what torture is; and (b) if he were to direct otherwise, it would presumably not be in a public announcement).

Gonzales has been an advocate of expansive executive power -- opining, for example, that Bush had the authority to decide that the Geneva Convention on the Treatment of Prisoners of War does not apply to al Qaeda or the Taliban. He has at least implicitly, and possibly explicitly, endorsed Bybee's view that the President has power to preempt the torture statute. He should not be allowed to punt on this important issue at his confirmation hearings.

Jessica at Feministing reports that San Antonio has passed an ordinance requiring strippers to wear permits while on stage. As Jessica points out, while the purported reason for the law is to make it easier for police to identify dancers, dancers can be identified by records that are not worn, and "it is pretty fucking dangerous for a woman to wear a piece of paper that displays her name and address" (emphasis in original).

That very dangerousness almost certainly makes the requirement unconstituional. The Supreme Court addressed a similar issue in the recent case of Buckley v. American Constitutional Law Foundation, 525 U.S. 182 (1999). In that case, the Court struck down a Colorado requirement that election initiative petition circulators wear identification badges for the reason that it exposed circulators to harassment. (In contrast, the Court held that requiring circulators to file the same information with a public official was not prohibited because of the state's legitimate interest in regulating elections.) Even assuming that the government's interest in assuring fair and honest elections is no greater than its interest in making sure no one sees naked people, I would think the dancer's interest in not be harassed is analogous to the circulator's and entitled to constitutional protection.

Like in anger. Like in red states all around me. That's how I feel about the news that Harry Reid, Nancy Pelosi, and John Kerry all seem to agree with "Conservative Women for America" that "it would be 'very smart' for Democrats to elect [pro-life Tim] Roemer chairman of the party". According to the report, Planned Parenthood is "disappointed" but trying to put a good face on it. NARAL, however, is doing no such thing:

A senior official of one of the nation's largest abortion rights groups said she would be concerned if the party were to choose Roemer to head the Democratic National Committee.

"We want people who are pro-choice. Of course I would be disappointed," said the official, who asked that her name be withheld because of her close alliance with party officials. L.A. Times, 12/23/04 (unnamed, but pretty clear from context that it's NARAL).
.....................................................................
Nancy Keenan, president of NARAL Pro-Choice America, said, "I don't think it's smart to have the Democrats change their position," adding, "They don't need to abandon a position on choice America agress with. I think they need to do a better job defining choice as the mainstream value that it is" (Milligan, Boston Globe, 12/19) (quoted in Medical News Today, 12/20/04).

So, in the spirit of Christmas, I am going to think of red as Santa Claus, rather than anger, and have contributed to NARAL this morning. And I've also contributed to Roemer's principal opponent, Howard Dean. I urge you to do the same.

You shouldn't have.... But what did you get for the kids? 

I had not watched CNN Daybreak ("a look ahead at the day's top news and events around the world") for five minutes this morning when I saw this example of hard-hitting journalism.

Host Carol Costello interviewed the Economist's Daniel Franklin on "New Year predictions". In the introduction, Costello explained that Franklin had "some good news and bad news for us". There were three items of good news: (1) "it should be a decent year for the economy", (2) "it is actually going to be a safer world broadly than we've seen in many, many years", and (3) this:

COSTELLO: Your next bit of good news concerns Arnold Schwarzenegger. Tell us about that.

FRANKLIN: Well, Arnold Schwarzenegger has an article in the publication that I edit called "The World in 2005," in which he forecasts a California comeback. Now, obviously Governor Schwarzenegger is a very upbeat sort of character.

But he is saying that he's really not -- a lot of the systems in California are into shape. It's now the sort of place that is good to invest in again. And he's saying that it's always been a state where dreams are made. It's a state for optimists. And he's predicting that people will come to see that and realize that again in 2005, and people will be talking about the California comeback.

COSTELLO: Interesting. OK. Let's go to the less cheery notes for 2005....

Got that? A senior editor of the Economist says that one of the three biggest pieces of good news for 2005 is that the Republican governor of California, who has avowed presidential ambitions, predicts that his policies will result in his state's economy doing well -- and CNN's anchor facilitates it without a single skeptical question.

Up next on CNN: More good news! Arnold Schwarzenegger predicts many Americans will be receiving iPods for Christmas!

Prior posts in this series: Is CNN In The Tank? Part III, Part II, Part I.

Mary and Fred, get those grades in! And feed me salmon! 

Via Jesus' General, I just saw a November 17 editorial by Ed Vitagliano of the American Family Association. The editorial, Something's Swishy About Shark Tale, complains that Lenny, the vegetarian shark who "dresses" like a dolphin in Shark Tale, is "a shark afraid to 'come out' as a vegetarian to his mob boss father," and this plot device is "slyly standing in for the experiences many go through in coming to terms with their sexual orientation" (quoting "movie reviewer Dustin Putman", who is, as far as I can tell, a guy with a website.)

Shark Tale's corrosive message? Lenny's father tells him, "I love you son, no matter what you eat or how you dress."

Beyond the irony of the American Family Association getting upset about fathers loving their sons -- and the lack of awareness of the long tradition of fictional godfathers struggling with disappointing sons -- I was struck by the editorial's conclusion:

Of course, when it comes to kids, this is tricky stuff. The film does not come right out and say that we should all accept homosexuality. And, naturally, children should be taught to be accepting of others.

But as Plugged In's Steven Isaac notes, "Had this movie been released 20 years ago, nobody would have been calling attention to this subject." Two decades ago, accepting differences meant accepting a person who might have a different skin color, or be from a different ethnic background.

Such differences are immutable characteristics, however, and not sexual choices. In this respect, Shark Tale comes far too close to taking a bite out of traditional moral and spiritual beliefs.

And that's probably swimming a bit too close to shore for many parents.

The reason this struck me is that Vitagliano wheels out the "sexual choices" argument, which allows folks like the AFA to hate gay people without facing their own hate -- we don't hate gay people, just their choices, don't you see?

The problem with that is that Lenny -- like Tinky Winky before him -- is a fictional character. He doesn't make any sexual choices, whatever he might choose to eat or wear. He offends Vitagliano not because of who he has sex with, but because of who he is -- or because he won't accept the male role his father and Vitagliano think he should. Of course, I never bought the self-serving we-don't-hate-gays canard, but we should call them on it whenever they show their true selves.

Whatever you do, don't let the children see this! 

By now, we all know about Fox News and Sinclair Broadcasting, which provide the Republicans free advertising as a seamless part of their broadcast operations.

There's another similar category that gets less attention: corporate direct mail. I first noticed this when several of my (very small) stock dividend checks, including from Verizon, came with inserts urging shareholder's to support Bush's (then) proposed dividend tax cut.

Today, I received another one -- a free 2005 calendar from my home and auto insurer, USAA. The calendar is a tribute to the military, with four jets in formation on the cover and a military photo and inspirational quote for each month. So far so good -- USAA is, after all, an insurance company that serves only members of the military and their families. But still, as I began to flip through the pages, I felt this sense of dread: They're building up to a quote from Bush on the last month, aren't they? Can't they do a tribute to the military without a reference to our current, and very divisive, president?

Sure enough, I got to December (it does have a January 2006 page), and there it was:

"We will not falter, we will not tire, we will not fail." -- George W. Bush

I have no objection to those words, per se, but including Bush, and giving him the special place of the last month of the calendar, reinforces the message that supporting our troops is synonymous with supporting Bush.

Am I being paranoid? Bush is the current president, so maybe that's all it means. However, the calendar quotes five Presidents who served since the coalescence of the two modern major parties, and four of them are Republicans. (The five are TR, Coolidge, Ike, LBJ, and W.) Nothing from Clinton, who said a number of things that would have fit with the tone of the calendar. Nothing from Wilson and FDR, who as I recall had a thing or two to do with our most successful modern wars. The only Democrat is Johnson, who more than any President is associated in the popular imagination with military failure.

And Bush and the other three Republican quotes all had an obvious military connection:

"History does not long entrust the care of freedom to the weak or the timid." --General Dwight D. Eisenhower (April)

"The nation which forgets its defenders will be itself forgotten." -- Calvin Coolidge (May)

"Far and away the best prize that life has to offer is the chance to work hard at work worth doing." --Theodore Roosevelt (Jan. 2006)

The Johnson quote? Family values! Really:

"The family is the cornerstone of our society. More than any other force it shapes the attitude, the hopes, the ambitions, and the values of the child." -- Lyndon Baines Johnson (Nov.)

Huh? Which of these things is not like the other?

Finally, in case you're curious, the other quotes are (in order): General Russell Dougherty (endorsed Bush), Patrick Henry, Andrew Jackson, General George Patton, Thomas Jefferson, George Washington, Amelia Earhart, Samuel Johnson.

Yesterday's post led me to the Catholic League's website. Maybe this is like shooting fish in a barrel, but there's just too much there for me to entirely withhold comment.

Let's just start with my favorite sentence on the "About Us" page:

However, it is not difficult to imagine how in pursuing particular problems that are directly related to our purposes we may be drawn into the cultural, ecclesial, and theological struggles that are prevalent in America and in the Catholic Church in America today. As a consequence critics will often try to paint us into a corner, interpret our position as liberal or conservative, or list us as progressive or reactionary. Some issues lend themselves easily to partisan interpretation, while others, such as parents’ rights in education, can be easily identified and defended as a question of pure civil concern. (Emphasis added.)

Yes, that must be very, very upsetting when your critics accuse you of being liberal and progressive. You've done so much to provoke those accusations. Like with this gem -- from the same page: "Yale professor Peter Viereck commented that 'Catholic baiting is the anti-Semitism of the liberals.'"

Not enough to get those accusations of liberalism going? How about all the liberals you have on your Board of Advisors:

Brent Bozell III -- William Buckley's nephew and the instigator of virtually all recent FCC indecency complaints.

Gerard Bradley and Robert George -- No good Catholic could vote for Kerry.

Linda Chavez -- Too conservative to be confirmed.

Robert Destro -- Jeb Bush's lawyer in the case trying to prevent doctors from withdrawing life support from a woman who'd been in a vegetative state for 15 years.

Dinesh D'Souza -- Conservative commentator and Bush supporter.

Laura Garcia -- Can't find much of a paper trail, but I'm just betting you'd have fun with her thoughts on feminism if your media player is working.

Mary Ann Glendon -- "President Bush's endorsement of a constitutional amendment to protect the institution of marriage should be welcomed by all Americans who are concerned about equality and preserving democratic decision-making."

Dolores Grier -- Abortion is "racist".

Alan Keyes -- 'Nuff said.

That's only the first half -- since it's late -- but that's quite a lineup. Now I have no problem with conservatives having organizations, but please spare me the "critics ... paint us ... as liberal or ... progressive".

Does it mean that Stone Court has made it that my fake name has been faked on a comments board? At least he or she didn't say anything I wouldn't stand by....

Back in August, I wrote about how quickly Michelle Malkin -- who makes a living accusing the left of "manufacturing acts of self-victimization, squandering precious time, and feeling sorry for our poor young selves" -- herself cried sexism when she was unhappy with her interview with Chris Matthews.

Today, the cries of victimization from the right came fast and furious:

1. Juan Non-Volokh and Stephen Bainbridge, both conservative law professors, lament the alleged bias against conservatives in academic hiring. Non-Volokh cites such compelling evidence as, "When I was an undergrad at Yale, I learned from a very liberal professor that one of his colleagues was systematicly black-balling right-leaning grad student applicants in their department" and "I have also heard law professors express opposition to job candidates because they clerked for the "wrong" Supreme Court Justice". They dismiss as a "shopworn lie" the idea that conservatives might be less interested in academia because academics make less money than smart people make in the private sector. Their evidence? There are a lot of poorly-paid conservatives in think tanks who'd love to work for universities. Leaving aside snarkiness about the quality of work put out by conservative think tanks, I guess I just don't see what's so improbable about the idea that conservatives are less interested in academia. A central theme of modern conservatism is the idea that business and the accumulation of wealth are good things -- so why is it so unlikely that more conservatives who are smart enough to get faculty jobs want to put those same talents toward making money?

2. Instapundit (no Permalinks) and the Democracy Project whine that Zell Miller will not be teaching at his alma mater, Young Harris College, because he felt unwelcome there. Eugene Volokh mostly corrects the record. The real story is that one professor wrote a harshly anti-Miller letter and, in a fit of pique, Miller has chosen to take his marbles and go home. It's hard to tell from a distance, but it is at least conceivable to me that Miller would add something to the faculty of this small, Christian junior college, but if he thinks he should be immune from criticism, even harsh criticism, after his own harsh and divisive words, then I'd say he's being a little, let's say, unrealistic.

3. Via Josh Marshall, we get the latest bizarre statements from the Catholic League's President Bill Donohue that Hollywood "is controlled by secular Jews who hate Christianity" and "likes anal sex". The Catholic League is a study in manufactured victimization, as evidenced by their current list of press releases, which seem obsessed with the idea that Christmas is being legislated out of existence. My favorite line: After accusing the Village Voice of an explosion of anti-Catholic bigotry: "It would behoove the 85 percent of Americans who are Christian not to treat this outburst of anti-Christian bigotry lightly."

Let me be clear: I don't approve of bias against Catholics, Christians, or conservatives (except for slightly-unbalanced vicious almost ex-Senators). But seriously, are the folks who control every branch of government really so oppressed?

Turn up the heat in Hell, because I'm going to agree with Ken Starr over Atrios. Atrios argues that the case before the Supreme Court today on whether states can restrict the importation of wine notwithstanding the Commerce Clause (Art. I, Sec. 8) is a "duhhh, of course" because the Commerce Clause is superceded with respect to alcohol by the Twenty-First Amendment, which provides:

The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.

While at first blush that language seems pretty open-and-shut, the problem with the reading of it proposed by Atrios is that it proves too much. Imagine that New York decided that out-of-state wineries could import wine, provided that they were owned by white people. Constitutional? Atrios' argument would say yes, but the answer is obviously no -- it would violate the Fourteenth Amendment. Likewise, the First Amendment would prevent a state from imposing an ideological standard on who is permitted to import liquor. The reason is that the state laws referred to in the Twenty-First Amendment necessarily mean constitutional state laws, including laws that comply with the Commerce Clause.

So how can the Court reconcile these provisions? In the ordinary Commerce Clause case, a statute that prohibits or restricts direct-to-consumer shipments from out-of-state sellers but not in-state sellers (and at least some of the states fit into this category) would be clearly unconstitutional. That result, too, would be unsatisfactory here, because it gives no effect to the Twenty-First Amendment's decision to constitutionalize the states' interest in regulating the importation of alcohol. What we are left with then is a question of balance -- does the state's legitimate regulatory interest outweigh the burden on other constitutional rights? Such a balancing test leads to the right result in the First and Fourteenth Amendment cases above (the proposed regulations would be unconstitutional), but leaves us with a close case under the Commerce Clause. For example, the constutionality of the state laws may depend on how closely they are related to the states' interest in restricting underage drinking (or on how much deference the Court chooses to give states in deciding that). My inclination would be to view the state regulatory interest with great skepticism, but my guess is that the Court will give the states a great deal of deference.

So Atrios is probably right about the likely result (though I am inclined to disagree that it would be the right result), but it is hardly a stupid case for the Court to have accepted.

UPDATE: Todd Zywicki, who knows a lot more about this than I do, makes essentially the same argument I do against an unduly broad reading of the Twenty-First Amendment, and is far more optimistic about the likely outcome.

In Friday's lead editorial, the USA Today urges us to "Pay closer attention: Boys are struggling academically". The editorial reports that a new DOE study documents women's increasing success in higher education, but that the "real news" (emphasis added) is that "[b]oys are doing miserably". The author identifies what I suspect are some real problems -- such as the overdiagnosis of boys as suffering from learning or personality disorders.

However, the editorial is disturbing in a number of regards:

1. The author assumes that male wages are more important than female wages:

The impact could hardly be overstated. College-educated people earn twice as much as high school graduates. If boys can't get to the good-jobs starting line, which these days is a bachelor's degree, they won't get a chance to use their natural competitive skills in the marketplace.

And when fewer men earn college degrees there are fewer partners whom educated women find desirable to marry. That's a debilitating social phenomenon African-American women have struggled with for years.

Since women currently make 76 cents for every dollar made by men, the USA Today has to contruct a bizarre argument for why it is bad for male wages to decline relative to female wages -- it's bad for women, don't you see, because they won't have anyone to marry. And we all know that it's better for women to marry men with a good wage than to have a good wage of their own.

2. The editorial reports that boys are now favored in the college admissions process:

The problem has already grown so severe that three out of every four private colleges (an informal estimate from admissions directors) quietly practice affirmative action for boys, favoring them over girls in admissions to get near balance.

The USA Today doesn't take a position on this practice, but it is a disturbing one. The wage gap persists, and women are just starting to pull even at the elite colleges, so I would say it is a little early to conclude that discriminating against women in college admissions is justifiable.

3. The editorial is troubled because the market now requires skills that (it says) are more common among women:

The small group of experts who research the problem only now is beginning to trace its outlines.

It isn't so much that schools have changed in ways that hurt boys. It's that society has changed in ways that help girls.

Increasingly, success requires verbal skills, which everyone agrees come more naturally to girls. Industrial-age jobs that required minimal verbal skills are disappearing, replaced by information-age jobs that range from filing insurance claims to law. Even in technical fields, verbal skills are at a premium. An auto mechanic or TV repairman now needs to master complex technical manuals.

The problem is that society has changed in ways that help girls? Did I just read that? Really? OK, maybe that was just poor drafting -- but, on the merits, until we get rid of the wage gap, I just don't understand getting all upset about it.

Now, to be clear, I'm all for teaching boys (and girls) the skills required for the modern economy. And I think it's reasonable to study whether different educational approaches work better for boys or for girls (though I think we need to be skeptical of such research for a variety of reasons that I'll save for another day). But isn't it a bit early to start worrying that boys are falling behind?

Once again, David Bernstein provides unintentional humor. This time, he demands an apology and correction from Brad DeLong for objecting to Bernstein's assertion that "Likudnik" is anti-Semitic. From DeLong's original post:

"I use the word "Likudnik" routinely to refer to those in American who support Likud, and who believe that the national security of the United States is advanced by feeding Likud's annexationist fantasies. I'm not an anti-semite. And I don't like being called one" -- DeLong.

How could DeLong not apologize, Bernstein whines, after "I forwarded him via email the correction I posted on this blog"? Bernstein's "correction" adopts the following argument of one of DeLong's commenters:

Bernstein ... doesn't say that anyone who uses the term "likudnik" is an anti-semite. He says 'the phrase "Likudnik" is gradually becoming a general anti-Semitic term for Jews whose opinions one doesn't like.' Which is my general impression as well. It's becoming like calling someone a "cosmopolitan Jew," or an "oriental" or a "negro." These were once neutral terms, or even terms with positive connotations. But these terms' meaning has shifted and they are now pejorative.

Now where would DeLong have gotten the crazy idea that he was being accused of anti-Semitism? Maybe from the first sentence of Bernstein's original post:

Folks on the Left have been throwing around the term "Likudnik" to refer to any non-left-wing Jew who differs with them on foreign policy [UPDATE: Case in point], even when the relevant issue has nothing directly to do with Israel, Iraq being exhibit A....

In other words, "Likudnik" is not just passively "becoming" anti-Semitic, but is doing so because "folks on the Left" are using the term in an anti-Semitic way. Bernstein may not accuse DeLong personally of anti-Semitism, but he certainly implies that the left is infused with anti-Semitism and that all of us on the left (including, presumably, DeLong) share collective responsibility:

... left-wing culture values Jews and Judaism only to the extent they are put in the service of internationalism and humanist causes ....

Well, the Left (along with the Washington Post, which used the term in a major article attacking Bush Admnistration neonconservatives) has let this particular anti-Semitic genie out of the bottle, and it's their responsibility to put it back in. (Emphasis added.)

(Incidentally, the use of "Likudnik" in the Washington Post article was a direct quotation of "a senior government official" -- and we know how many left-wing senior government officials there are nowadays.)

So, what correction and apology is Bernstein waiting for? Should DeLong have said, "I don't like your accusing the political ideology with which I am publically associated of systematically promoting anti-Semitism"? Maybe that would have been technically more accurate, but DeLong's response is certainly a fair response to the spirit of Bernstein's remarks. (One might also wonder whether DeLong was particularly sensitive given the fact that a day before his post another prominent liberal academic, Juan Cole, was threatened with a defamation lawsuit for claiming that the Middle East Media Research Organization was acting "on behalf of the far right-wing Likud Party in Israel".)

UPDATE: Minor editing.

In an op-ed piece in today's Wall Street Journal ($), Senator Norm Coleman (R-MN) called for the resignation of U.N. Secretary General Kofi Annan over charges of corruption in the Iraq Oil-for-Food Program. One has to wonder: Did Coleman clear this with the Vice President?