Stone Court

As someone who has disagreed with David Bernstein about Israel again and again and again and again, I was surprised to find myself in agreement with the overall themes of his take on Hamas's electoral victory. It's too long to quote in full, and it's certainly worth reading, but essentially Bernstein concludes (a) the election does not reflect an endorsement by the Palestinian people of terrorism, but rather the rejection of an corrupt and ineffectual status quo, as well as endorsement of Hamas's six-month cease fire with Israel; (b) the responsibilities of governing, and the Palestinian people's lack of interest in escalating conflict, may impel Hamas to govern responsibly and to negotiate seriously with Israel, and, if a resolution is reached with Hamas, it will have greater legitimacy with the Palestinian people than any agreement with Fatah would have had (essentially a Nixon-could-go-to-China argument); and (c) if Hamas insists on running a terrorist regime, Israel will have to retaliate massively.

I disagree with Bernstein that (c) would encourage the absorption of Palestinian territories into Egypt and Jordan, or that that would be a good thing. Rather, (c) would be a disaster for Israel, Palestine, and the United States, and (c) is certainly possible -- as Hamas could turn Palestine into an extremist regime like Iran or Taliban Afghanistan. However, regimes like that tend to flourish in isolation, an isolation that Palestine does not enjoy due to its interlocking existence with Israel. I am no fan of Hamas, but I will remain guardedly optimistic that Hamas has not gone down the road it has to drag the Palestinian people into a war they do not want, but rather that this election may present an oppportunity for Palestinians to negotiate peace with honor.

Liberal Oasis captures the depressing state of the Democratic "opposition" to Alito:

The Dem approach has the appearance of going through the motions -- to give the allusion that a fight was waged, that principle was stood upon – in hopes that the base won’t be livid....

But filibustering a Supreme Court nominee is no small affair; it would require a level of intensity and message discipline that Dems have failed to execute since the Social Security battle.

So Senate Dems are in a tricky spot -- to a large degree, of their own making.

Which is why their game plan appears to be, bury the vote on a heavy news day, instead of figuring out how best to go to the mat.

Bottom line: Senate Dems should not expect the base to be impressed with 41 “No” votes.

Therefore, either try to win for real, or don’t waste everyone’s time with an empty song and dance.

Exactly right. If this fillibuster is not for a judge who has taken radical conservative positions on abortion and executive power -- probably the two most salient issues of the day -- then who is it for? Essentially, the Dems. are confirming that Bush can put anyone he likes on the Supreme Court, so long as he went to a good law school, speaks in measured tones, and pretends he'll keep an open mind. So long as the nominee doesn't drool, we'll confirm, and maybe even then.

There will be time later to discuss how, if at all, the Democratic "leadership" can be fixed. But for the moment, let's remember that it does not take 41 Senators to start a fillibuster. It takes one Senator to start a fillibuster. Under Senate Rule 22, opponents of the fillibuster can then seek cloture, and it takes 41 votes to defeat cloture. In other words, even one Democratic Senator can force every Senator to vote on the fillibuster. If Durbin or Schumer or Boxer or Feingold or Clinton were to start a fillibuster, at least five Dems. would have to vote to terminate debate. That's significant, because it changes the analysis from the issue Dems. have been debating -- is a fillibuster sustainable? -- to the one they should be debating -- is it right? Maybe five Dems. will say yes, I stand with Bill Frist to terminate debate on this nominee -- and maybe they won't. But unless that happens, it's fair to say that every single Democratic Senator is complicit in this miserable failure.

I'm sorry to see Lauren leave Feministe, but pleased that Zuzu will now be blogging there. I often read Zuzu's comments and think, Yeah. That's exactly right. That woman should have a blog! (Or maybe this is evidence that we lawyers are brainwashed to think alike....)

We saw an important warning this week in Gonzales v. Oregon of where the radical right wants the Supreme Court to go on abortion -- and it should give little comfort to those who think abortion will still be legal in New York and California if Roe v. Wade is overturned.

For all of the right's rhetoric about states' rights and federalism, Justice Scalia's dissent (joined by Roberts and Thomas) lays out a chilling vision of federal power over private "morality". The twin supports of this view, as set forth in Scalia's concluding paragraph, are (a) an endorsement of federal power over morality as a matter of law and tradition; and (b) the appropriation of authority to declare what is moral and immoral -- or at least "legitimate" and illegitimate:

From an early time in our national history, the Federal Government has used its enumerated powers, such as its power to regulate interstate commerce, for the purpose of protecting public morality--for example, by banning the interstate shipment of lottery tickets, or the interstate transport of women for immoral purposes. [Citations omitted.] Unless we are to repudiate a long and well-established principle of our jurisprudence, using the federal commerce power to prevent assisted suicide is unquestionably permissible. The question before us is not whether Congress can do this, or even whether Congress should do this; but simply whether Congress has done this in the CSA. I think there is no doubt that it has. If the term "legitimate medical purpose" has any meaning, it surely excludes the prescription of drugs to produce death. (Bold added.)

If Scalia views the administration of drugs to end the suffering of a terminally ill patient who desperately wants the drugs as illegitimate, it is hard to imagine that he would view the administration of drugs in furtherance of an abortion as anything but illegitimate. As such, under Scalia's view, medical abortions (e.g., RU-486) should be illegal under federal law already, or at least could easily be made so if the Attorney General issues a regulation that inducing abortion is not a legitimate medical purpose. Surgical abortion could also be substantially restricted, since in my lay understanding (and please correct me if I don't have this right) the vast majority of surgical abortions involve at least local anaesthesia, which could also run afoul of the same regulation.

Whether this precise scenario ever plays out, I cannot say. However, we have seen over the past decades that the anti-choice forces will use any ploy, no matter how intellectually dishonest, to burden abortion -- whether it be waiting periods, parental or spousal consent or notification, fake abortion clinincs, harassment, terrorism, etc. I surely expect that if Roe falls, we will see multiple efforts to outlaw or further burden abortion nationwide -- and Gonzales stands as warning that those on the Court who view their own morality as self-evident cannot be counted on even to insist that Congress pass a new statute first.

It goes without saying that this 33rd anniversary of Roe is particularly somber, as in just days we may have a fourth radical conservative Justice who may join Scalia, Roberts, and Thomas in arrogantly imposing his own theological views of morality on our most private decisions. That prospect plainly justifies a fillibuster of Samuel Alito's nomination.

Volokh cites David Boaz, who sees media bias in the use of phrases like "shift the court" to describe the Alito nomination, but not the earlier Ginsburg nomination:

In the past three months, the major media have repeatedly hammered away at the theme that Judge Samuel Alito Jr. would "shift the Supreme Court to the right" if he replaced retiring Justice Sandra Day O'Connor.

According to Lexis/Nexis, major newspapers have used the phrase "shift the court" 36 times in their Alito coverage. They have referred to the "balance of the court" 32 times and "the court's balance" another 15. "Shift to the right" accounted for another 18 mentions.

(Longer quote at Volokh; full article here.)

The problem is, Boaz's information does not hold up.

First, the statistics: Boaz claims: "According to Lexis/Nexis, major newspapers have used the phrase "shift the court" 36 times in their Alito coverage."

I just did a Lexis/Nexis search for "'shift the court' and alito" in the "Major Newspapers" database, which seems to be what Boaz is referring to. To start with, regardless of the database identifier, Boaz's calling these "major newspapers" is a bit of a stretch -- as my search results included the Weekend Australian, the Irish Times, the Independent (London). Leaving that aside, I got only 29 hits, not 36. Of the 26 U.S. papers in the search, 6 were before Alito was nominated, leaving 20 discussing his nomination. Of those, only 7 stated the writer's view that Alito would "shift the court" to the right, and even one of those was qualified ("likely shift the court a bit more to the right"). The rest were: quoting others (including a couple of law professors) or citing the concerns of liberals or Democrats (11) talking about something else (1); and paraphrasing Alito (1) ("Alito swore that he doesn't intend to shift the court in any particular direction"). I haven't gone through his other phrases, but this hardly counts as "hammer[ing] away" that Alito would "shift the Supreme Court to the right".

Second, the context: Boaz compares Washington Post headlines from the day of Ginsburg's nomination to the day of Alito's. His quotes are accurate and accurately reflect the differing tone of the coverage. The Washington Post treated the Ginsburg nomination as praiseworthy, while it treated the Alito nomination as controversial. The problem with Boaz's argument is that this is not bias, it's accurate reporting. From the first Ginsburg article Boaz complains of:

Senate Minority Leader Robert J. Dole (R-Kan.) called Ginsburg "a good choice" who would likely be "well-received" in the Senate.

Was Bob Dole also guilty of liberal bias too?

From the first Alito article he cites:

Senate Minority Leader Harry M. Reid (D-Nev.), Sen. Charles E. Schumer (D-N.Y.) and the liberal group People for the American Way rushed out statements blasting the nomination even before Bush announced it at 8 a.m.

In other words, in 1993, the Republican minority leader signaled they were happy with Ginsburg and were unlikely to oppose the nomination, while in 2005 the Democratic minority leader signaled they were unhappy with Alito and likely to oppose the nomination. How is it bias that the Post reported accurately on those very different situations?

Turns out Arnold Schwarzenegger didn't get ticketed for driving without a license. But don't worry, it wasn't special favoritism to the governor. The police had a legitimate reason:

Although Schwarzenegger lacked a motorcycle license, Los Angeles police didn't cite him because they didn't see him driving.

Remember that defense the next time police show up for you -- if they didn't see it, they can't arrest you.

The Times has a piece today titled, Some Abortion Foes Forgo Politics for Quiet Talk.

If the Times were more honest, a better title might have been Abortion Foes Pursue Politics with Quiet Talk and, If That Won't Work, Lies and Deception:

Like many crisis pregnancy centers, A Woman's Choice is designed to look and feel like a medical center, not a religion-based organization with an agenda....

If callers ask how much the center charges to perform an abortion, Lisa Arnold, a counselor and leader of the postabortion group, said: "I say, 'It changes, but why don't you come in for an ultrasound and we'll talk about it.' You don't want to deceive them, but you want a chance to talk to them." Once women come to the center, staff members - who oppose abortion even in cases involving rape and incest - encourage them to make further appointments, and refer them to doctors who share the center's views on abortion.

Your move.

The unfortunately named Oakland outfielder Milton Bradley has filed for divorce after a marriage that lasted 11 months and saw 3 police visits for domestic violence. He's seeking joint custody of his 3-week old son and claims a prenuptial agreement gets him out of all financial obligations. I'm not a divorce lawyer or anything, but let's just say that contracts are not enforceable if signed under duress....