Tuesday, June 29, 2004

The New Flag of Iraq?

Well, probably not
. But still worth a dizzying look.

What Is This - A Divorce?

A short time ago, with the full backing of the Bush Administration, the United States Supreme Court declined to grant "standing" to Michael Newdow, who had sued to end the recitation of the Pledge of Allegiance as redefined by Congress to include the phrase "... under God". Why? Because the girl's mother had full legal custody, and Newdow had only a limited form of legal custody.

Today, the New York Times announces, "Custody of Hussein Will Be Transferred to Iraq This Week". That is to say, "the new Iraqi government will take over legal custody of Saddam Hussein on Wednesday to start proceedings that will lead up to an open trial in the next few months." The Washington Post is more accurate in its headline, declaring "Iraq Takes Legal Custody of Hussein Wednesday".

This seems like a strange way of reporting that the Iraqis are being given nominal "custody" over Hussein, who will remain where he is - in a U.S. operated prison manned by U.S. guards. The rush to trial is a bit troubling to me, given that this new "sovereign" government was picked by us, and perhaps it would be best if we permitted Iraq's first elected government to decide the fate of its former tyrant. But then, an elected government might actually demand physical custody, and custody disputes are so messy....

Monday, June 28, 2004

A Fascination With Power

A while back, a friend of mine commented that (despite the pereceptions of the state at large) she does not view the community in which we live as being particularly "liberal". She expressed that, despite a significant population which espouses liberal ideals, many within that population are fascinated by, and deferential to, those in possession of wealth or positions of power.

I wonder to what degree that fascination, as a broader phenomenon, is responsible for the loss of ideals within the Democratic Party or, for that matter, Congress as a whole. It has been a almost seventy years since Mr. Smith went to Washington, yet if anything - despite the critical attention of a large percentage of Americans - the situation in Congress has worsened. A "Mr. Smith" in today's Washington would be eaten alive, perhaps even by his own party. Whatever slight refuge a "Mr. Smith" might find in the Senate, there would be no similar protection were he in the House of Representatives - and who would fund his reelection campaign?

We know the type of government we want. And for the most part we know the type of government we have. What type of government do we deserve?

Sunday, June 27, 2004

Sentencing Guidelines

In a recent decision that is getting quite a bit of press, the Supreme Court changed the law in relation to which "facts" can be considered at sentencing. Specifically, it held that facts which had not been proved before a jury should not be used when establishing a defendant's sentence. The Washington Post expresses that:
The decision casts grave and unwarranted constitutional doubt on sentencing regimes around the country, including federal sentencing guidelines, that have been designed to make punishments more predictable and more evenly applied.
The Post laments that, as the dissenting Justices observed, this ruling will require some dramatic transformation in mandatory sentencing guidelines.
For many reform laws rely on factors found by judges and probation officers after conviction to guide prison time up or down. The results of forbidding this are perverse. Legislatures will either have to end the trend toward more predictable sentencing -- thereby injecting back into the justice system the unevenness and inequity that sentencing reform was meant to address -- or prosecutors will have to list every potential sentencing factor in their indictments. This latter option would mean that highly prejudicial material now kept from juries and considered only in sentencing hearings would be put before them.
The Washington Post, of course, misses a few key factors. First, as the vast majority of convictions result not from jury trials but from plea bargaining, the biggest difference in most cases would be that the prosecutor would have to do something more than convince a judge to weigh a factor against a defendant. The prosecutor would also have to convince the defendant to plead to a particular fact or forego the enhancement. Also, as much of the "prejudicial material" the Post now fears will reach juries would not be admissible at trial, preserving the status quo would at most mean a bifurcated process as exists in death penalty cases - a trial to determine guilt, and a penalty phase to determine punishment.

But in my experience, the largest point is that the guidelines tend not to increase "fairness". Instead, they lock the judge into issuing a sentence within a particular range (or jumping through a lot of hoops to avoid the guidelines, with a significant possibility of reversal on appeal), at the expense of judicial discretion. In some jurisdiction, the prosecutor's position on the sentencing factors has a greater impact on the sentence than the judge. Also, whatever "regional" fairness was ostensibly intended to result from sentencing guidelines, the urban defendant who used to get a shorter sentence because the court's docket was crowded and the county jail was full will now typically get a better charge bargain up front. The guy in the rural county, where the judge and prosecutor want to show that they are "tough on crime" and have greater time and manpower to devote to an individual prosecution, will still often get a significantly greater sentence, as no similar plea bargain will be offered.

But were sentencing guidelines ever truly about fairness to defendants? If that were ever a consideration, it seems that political considerations long ago rendered it distant to "being tough on crime". And if guidelines are rewritten such that a judge can only sentence based upon what a defendant admits or has been proved at trial, what's so bad about that?

Saturday, June 26, 2004

When Darfur Rears Its Ugly Head....

... What does Brave Sir Bush do? In the context of Darfur, according to Nicholas Kristof, he won't say a word.

I don't want to be unfair to Bush, though. Where Kristof suggests that it would be ridiculous to invade Sudan to end the genocide in Darfur ("The U.S. is not going to invade Sudan. That's not a plausible option"), and suggest that we can use shame as our exclusive tool, via a speech by Bush at the United Nations - "Governments tend to be embarrassed about exterminating minorities." - Bush and his advisors probably see things a bit differently.

If Bush acknowledges a genocide, makes a high profile statement calling for its immediate end, and then nonetheless permits it to continue, he will risk demonstrating that the putative "Bush Doctrine" is dead in its tracks - how can you claim an interest in democratization, ending internal oppression, increasing regional stability, ending support for terrorism and eliminating its "breeding grounds", when you won't even respond to genocide in Sudan? And I think it is reasonable to believe in this context that words won't be enough. Everybody in the world who wants to know what is happening is already aware, to some degree, of the atrocities which are occurring in Sudan. That is to say, the world's political leaders and opinion shapers have already looked at the situation and have more or less decided to keep it under the radar screen.

While a Bush speech may wake up the American masses who may not yet have learned of Darfur (due primarily to the typically atrocious international news coverage offered by most U.S. media outlets), it seems unlikely to bring in pressure from the rest of the world. So if Bush successfully brings attention to the genocide, brings about a popular demand for ending the genocide, and nothing happens in response... what's the upside for him? (And with all due respect to those in Kristof's "words are enough" camp, I must have missed the historic genocides that were ended merely because a government, not to ashamed to slaughter its own people under the eyes of the world, was embarrassed by a speech given at the U.N.)

Friday, June 25, 2004

This is a solution?

Many years ago, griping from the music industry resulted in a fee, attached to any blank cassette tape, which is supposed to compensate the music industry for any illegal copies of their music. It doesn't matter if you want to record a business meeting, birds in your back yard, or even to tape yourself singing in the shower - you pay the fee. From time to time I have heard people use this as a rationalization for the bootleg copies they have made - they ask, "Why should it be illegal to do this, when I already paid the fee when I bought the tape?"

Now, in the New York Times, a Harvard law professor tells the music industry to consider getting with the times and, rather than suing people who download music and trying to avoid the new market for downloading, creating some form of blanket license for its recordings.
To its credit, the industry has started to participate in paid music download services like iTunes, but a better solution would be to institute a monthly licensing fee paid by Internet users.
So, beyond the blank tape where you are ostensibly paying a small fee to make up for somebody else's piracy, this professor suggests that it would be a fair compromise to declare that if you want Internet access you should pay a full license fee for all music.

Apparently this professor is not familiar with the copyright and licensing issues involved in music - where there can be many copyright owners for even a single song, based upon authorship, the participation of multiple artists, sampling, and other such considerations - which would cloud the issue of compensation. Or perhaps he only cares that the music conglomerates "get their money", and is less concerned about the artists. But no matter what he intends, if his licensing scheme were implemented and an Internet user were asked, "How much music will you download now that you are required to pay a full licensing fee just to access the Internet?", a fair answer would be, "All of it."

Wednesday, June 23, 2004

Why it seems like only yesterday....

... that the Bushies were attacking Clinton for his North Korea policy, in which he had offered aid in return for their promises to freeze their nuclear weapons program. So, of course, the Bush Administration has now come up with a completely different approach to the situation. [cough]

Oh, sure, this time they are required to ship their plutonium out of the country. And surely, given how truthful they were last time around, they will be very honest about their ability to produce additional plutonium, and how much weapons grade plutonium they have already refined.....

Something We May Never Get Right....

Today's Washington Post calls for reforms in the foster care system, noting, "On average, children entering foster care languish in the system for three years, shuttled through three different placements.". The Post suggests that this results in part from "a federal system that creates perverse financial incentives for states to place and leave children in foster care rather than preventing them from entering the system or enabling them to exit more quickly". The Post suggests permitting states to shift some federal money designated to foster care to other programs, such as family preservation services or adoption promotion and support, to make federal adoption assistance available to all children regardless of the incomes of their birth parents, or to provide financial assistance to legal guardians in addition to adoptive parents.

The ideas aren't bad, but the problem goes beyond money. The Post seems to assume that because the federal government adds money to certain programs, states are limited in their ability to fund other programs. There can be some truth to that with federal matching funds, but states have engaged in creative bookkeeping for years - and are rather adept at shifting money from one program (which receives considerable federal funds) to another (which does not).

The issue of "reforming foster care", or "reforming child protective law", comes up every few years. The difficult issues involved - protecting children, improving parental competence and working toward reunification, providing appropriate placements for children in foster care or with family members, resolving the clouds of uncertainty over the future of a child in foster care, arranging and achieving successful adoptions of children whose parents have had their parental rights terminated - get discussed. But nobody wants to commit the type of manpower and resources which would truly be necessary to effect significant change. So policies are shifted, budgets are adjusted, and most things go on as before.

The Post probably views its position as "realistic" - suggesting that our political leaders play around with the money presently in the program, rather than calling upon them to commit new funds and resources - but that "realism" perhaps also reflects why things aren't likely to change.

Tuesday, June 22, 2004

Shattering All Our American Illusions

A couple of days ago, the London Guardian challenged us as to whether we really want honest politicians. Now it asks us whether democracy is overrated, concluding,
Perhaps these developments point to a deeper problem incipient in western democracies. Far from the free market and democracy enjoying the kind of harmonious relationship beloved of western propaganda, democracy grew in fact as a constraint on the market, holding it at bay and enabling a pluralism of values and imperatives. What happens when this healthy tension becomes a dangerous imbalance, in which the market is dominant and consumerism is established as the overriding ethos of society, permeating politics just as it has invaded every other nook and cranny of society? Democracy comes under siege. In Italy it is already gasping for breath. In the US it is deeply and increasingly flawed. Democracy is neither a platitude nor an eternal verity - either for the world or for the west.

Monday, June 21, 2004

Calling Chicken Little

Big news from the Heritage Foundation - "The liberals seek to tear our nation apart." Yup. You heard that right. According to President Ed Feulner:
While our troops wage war against terrorists, we conservatives are in a battle of our own – a fight against liberal extremists right here at home.

These extremists are working to undermine the war on terrorism and destroy America’s reputation and credibility around the world.

They seek to destroy the bedrock values of marriage, family and freedom that are the very foundation of our country.

The liberals’ weapons? Activist judges who rewrite laws from the bench. Domination of the main stream news media and entertainment industry. Unprecedented power over America’s classrooms and universities.

The liberal extremists will stop at nothing to attack America’s founding principles and weaken America’s sovereignty.
[Insert eyeroll here.]

Better to be Liked than Trusted?

In a rather odd editorial in the Guardian, it is suggested that in politics, trust is an exaggerated commodity. The author suggests,
But this trust is anyway a worthless commodity. Its manifest lack didn't wreck Lloyd George or SuperMac or the wizard called Wilson. Nobody gave it to Bill Clinton (though he was more poll popular when he left office than Ronald Reagan). Nobody in full sentience would dream of trusting Charlie Kennedy to tell the same story in Aberdeen and Penzance - or Michael Howard to explain why he sacked the head of the prison service. Too much ado about synthetic sincerity.
I recall in GW's election campaign, how campaign analysts were gushing over his nonsense line to the voters, "I trust you". Voters, they declared, were too cynical to trust a politician who said "trust me", but GW's pretense that he trusted the voters supposedly inspired us to trust him despite our cynicism. Since that time, of course, he's run one of the least trusting, most closed and most secretive administrations in U.S. history.

So is the lesson here that it is better to be liked than trusted in politics? We'll support politicians whom we don't trust, as long as we like them? "Al Gore, I'd trust to manage my retirement account, but I would rather guzzle beer with Clinton or GW." Or is it that we compartmentalize our trust - we didn't trust Clinton to tell us the time of day, but we trusted that he was nonetheless working for the betterment of the nation. That's a different sort of trust, after all, than a consistent expectation of the unvarnished truth, or the expectation of candor regarding extramarital exploits.

Saturday, June 19, 2004

We want our political leaders to tell the truth...

But will we let them? The Guardian suggests that, as a whole, we won't:
And so, in the eighth year of [Prime Minister Blair's] premiership, this legendary truth-teller was asked whether he agreed with the warning against mortgages given by Britain's leading banker. The reply was utterly standard Westminster dead-bat: not sure he actually said that, need to look at what the words actually were, important not to take out of context, and so on.

For anyone who remembers Blair as a young politician, trying, at least within the limits of Westminster and journalistic conviction, to be candid, this was a distressing sight. The idea that all politicians are liars is a cheap jibe promoted by those who dislike politics, but there is actually a deeper truth in it. A culture has evolved in which our leaders must evade and paraphrase to their voters, keeping the truth for the ghost-writers.

Friday, June 18, 2004

Taking Responsibility

Steve Bell, whose dislike for the Bush Administration is quite patent in much of his work, addresses the issue of responsibility:

While Bell's stridency can be a bit off-putting, it nonetheless remains that the Bush Administration has a horrendous record of taking responsibility for anything. The closest we have is Rumsfeld's meaningless "It's my responsibility - just don't ask me to accept any consequence" over abuse at Abu Ghraib.

Bush Administration: We don't really care about malpractice, victims, but....

... we do want to avoid bad press when we limit their access to the courts.

Thursday, June 17, 2004

Going Nuclear Over Iran, Revisited

A few months ago, I wrote what I thought was pretty obvious (so no pats on the back for my prescience):
While Iran, which is high on the Bush Administration's list for "preventive" intervention, probably does fear military consequence, it is no doubt aware that the U.S. military is in no position to simultaneously occupy both Iraq and Iran. I fully expect it to exploit that fact, and to attempt to complete its nuclear weapons program under the noses of the IAEA inspectors, such that it can be relatively certain of deterring any future U.S. invasion.
If you have been following the news lately, it has become apparent that pretty much every promise Iran made about its nuclear program, and how it was peaceful and intended only for electricity, was false. Now, according to Jim Hoagland, diplomats are hoping for a resolution that might prevent Iran from assembling the pieces of its atomic arsenal, such that it only lacks nuclear weapons in the most technical of senses:
Agreeing to live with an Iran that is a screwdriver's turn away from the bomb would be a bitter pill to swallow. It would accommodate a charter member of President Bush's "axis of evil" and a sworn mortal enemy of Israel. And it would undermine the goals and terms of global nonproliferation agreements that aim at halting the spread of nuclear weapons technologies to nations that do not now possess them.
Hoagland compares this situation to Pakistan, which delayed assembling and testing its nuclear arsenal for almost ten years, at which time "exploded its first device nine years later to respond to India's nuclear testing".

Personally, I don't think that Iran will forestall assembly for a decade. I think that at best Iran will delay assembly to ensure that no military strike against its nuclear facilities is imminent, and possibly until it is relatively sure that its nuclear devices can be adequately delivered by its missiles, and then to assemble, test, and declare itself a nuclear power. I won't be patting myself on the back for that prediction, either, should it become true - I think that the hope that Iran can be convinced to abandon, scale back, or delay its nuclear weapons development in any real sense is mere wishful thinking.

Wednesday, June 16, 2004

White House Press Briefings... By Maxwell Smart

Would you believe,
Vice President Dick Cheney's chief of staff was told in 2002 that Cheney's former company would receive no-bid work to secretly plan restoration of Iraq's oil facilities, but the information wasn't given to the vice president, a White House official said Tuesday.
Well then, would you believe
Q Can I ask about Vice President Cheney, because yesterday he repeated what is a very controversial claim. He said that Saddam Hussein had long-established ties with al Qaeda. Does the President believe that Saddam Hussein had long-established ties with al Qaeda?

MR. McCLELLAN: We certainly talked about the ties with terrorism between the -- between the regime that was removed from power, and we talked about those ties prior to the decision to remove that regime from power. So that was well-documented. Secretary Powell went before the United Nations and talked about some of those ties to terrorism, as well. And Zarqawi is certainly a senior al Qaeda associate who was in Iraq prior to the decision to go in and remove the regime from power.

Q There's also al Qaeda in the United States. That does not mean the United States is cooperating with those members of al Qaeda. Just by the presence of someone does not mean there's a cooperation.

MR. McCLELLAN: But, remember, we're talking about an oppressive regime that was in power in Iraq that exercised control over that country. And go back and look at what we documented, Norah. We documented all this, and I think that's what the Vice President was referring to.
No? Just because the President and Prime Minister Blair disclaim any such connection, and because the 9/11 commission finds no such connection?

What sort of CONTROL Agent are you?

Tuesday, June 15, 2004

Recording Interrogations

I once heard a police polygraph examiner speak, and he waxed poetically about the wonders of his machine and his tremendous skill in discerning the truth from a lie. (Nobody believes in the validity of a polygraph machine more than a polygraph examiner.) He went on to explain how he reviews the entire police case file, to form an opinion as to a suspect's guilt or innocence, before he administers the test - a peculiar way to prejudice the results if he in fact truly believes in the machine.

The examiner's most infamous case involved a confession elicited after an extended interrogation which culminated in a polygraph test. The Court of Appeals reviewed a videotape of the suspect's confession, and found him to be sleep and food deprived, and at the point of exhaustion. His confession was suppressed, and the prosecution had to proceed without it. He was ultimately convicted. (The videotape might have backfired on the prosecution had the Court of Appeals allowed the confession to be used, as a jury might have had questions about the tactics of a police agency which would interrogate a suspect in that condition.)

The polygrapher's police agency created a new policy to ensure that this wouldn't happen again. Allowing suspects to rest during marathon interrogations? Ensuring that adequate food was supplied to suspects at appropriate intervals? Hardly. They ordered that no further polygraph examinations would be videotaped. End of problem.

There have been some troubling "false confession" cases, such as the New Baltimore, Michigan teens who falsely confessed to a murder plainly committed by others. The prosecutor in that case insisted that the teens, who were separately interrogated and who separately confessed, knew things about the crime scene that only the offenders would know. Yet it has since become plain that the source of that information was the police during the interrogation.

There are also many cases involving police incompetence or misconduct, where police officers either misreport what a suspect has said (often when "condensing" an interview that took place over several hours into a paragraph or two for a police report, before destroying their notes from the actual interview), or deliberate misconduct. It is difficult to tell whether the two boys, aged 7 and 8, who allegedly confessed to murdering an 11-year-old girl in New York City were the victims of police incompetence or deliberate misconduct, but it is apparent that the police frequently fail to follow appropriate protocols when interviewing minors.

The New Yorker presented a detailed analysis of that case, and found one of the boys to have a learning disability which made it difficult for him to articulate even a single sentence - yet he supposedly had provided an extremely articulate, detailed narrative of the murder. Unlikely? To say the least. The worst aspect of that case is that the false accusations against the boys destroyed the opportunity to convict the probable offender - a man whose semen was found on the dead girl's underwear.

Today's New York Times editorializes in favor of recording all police interrogations, noting "Now a new study has found that in the small number of jurisdictions that record their interrogations, law enforcement has come to favor it." That's not difficult to believe - like the Miranda ruling, rules which effectively compel the police to engage in better, more professional practices make it more likely that a confession will be admitted into evidence, and more likely that it will be believed by a jury. Recording would also make it more difficult for a suspect to change or finesse his story. There's nothing wrong with that.

Monday, June 14, 2004

Sidestepping? That's an understatement....

The Supreme Court "sidesteps" the Pledge question? Year after year after year, thousands of people petition the United States Supreme Court for redress of grievances. The Supreme Court entertains a very small number of cases, ostensibly those which raise the most significant issues of constitutional law:
Every year, the Supreme Court hears about 100 cases (in recent years, that number has dwindled down to about 90 cases per year). This is only a small fraction of the many cases (about 7,000 a year) filed before it.
The issue of "standing", whether or not an individual has the right to commence a particular lawsuit, is a pedestrian issue.

So when the United States Supreme Court takes a matter that many of the people in this nation perceive as of great import - whether they detest or support the lower court decision - and then vacates it on a technicality without addressing the constitutional questions, there is good cause to ask, "What's really going on?" Were they really convinced by the "lack of standing" argument - or did they regret taking a contentious case, and scramble for any way out which would let them avoid upholding an unpopular lower court ruling?

Perish the Thought!

Commenting on a failed British effort to get greater voter turnout with mail-in ballots, the Guardian notes that problems with voter fraud arose without any significant upturn in voting. (There was an increase in votes cast within test areas, but a similar increase occurred in other areas.) They suggest a different reason for low voter turnout than persistent claims of voter apathy:
Yet, according to a four-year study of the reasons behind falling turnout made by the Constitution Unit, people are not turned off politics, as politicians like to believe. Young people in particular remain full of idealism. It isn't politics that is at fault, it is the politicians. Voters trust them less than ever. And, says the Constitution Unit, trust is the most important element in political engagement - trust that politicians will keep their promises, and trust that they will behave with propriety.

Saturday, June 12, 2004

Wouldn't It Be Nice

Today, the Times has printed an editorial favoring the withdrawal of Syrian forces from Lebanon. The author appreciates the new U.S. sanctions against Syria, but only as a first step:
The sanctions may be helpful, and the United States has long called for an end to the Syrian military presence of Lebanon — just last week President Bush said that "the people of Lebanon should be free to determine their own future, without foreign interference or domination." But the Bush administration, working with the European Union, should be doing more to encourage Syria's withdrawal.
The author notes, most likely in recognition of the protracted civil war which plagued Lebanon from 1975-1990, that Lebanon has the potential to explode:
American sanctions have heightened pressures on Mr. Assad. Yet by themselves they will not improve Syrian-Lebanese relations. In fact, trying to force a Syrian pullout may be dangerous. It could lead to domestic tension in Lebanon that Syria would highlight, and even encourage, to reaffirm its indispensability to civil peace.
But beyond that intimation, the author doesn't hone in on the reasons why the U.S. is probably not pressing for withdrawal, with or without European participation.

First, Syria is unlikely to agree to any withdrawal from Lebanon unless it achieves Israel's withdrawal from the Golan Heights. Despite coming close to an agreement under Barak, the Sharon Administration does not want to return the Golan Heights to Syria, giving Syria an excuse to walk away from any discussions on Lebanon.

Second, Europe would likely press for a resumption of Israeli-Palestinian peace talks. The Sharon Administration does not want to engage in peace talks, as it wishes to perpetuate the myth that "there is no one to talk to" and wants nothing that will interfere with its unstated plan to annex much of the occupied West Bank.

Third, to avoid the collapse of Lebanon into a renewed civil war, the West would likely have to deploy tens of thousands of peacekeeping troops to the region for several years. The United States is already overcommitted in Iraq. European nations are likely to comment that they have already committed significant numbers of troops to present, more pressing peacekeeping efforts (e.g., the Congo Region), and are likely to observe that there are areas of the world, such as Darfur, far more in need of immediate intervention than Lebanon. They are likely to also consider the past experience of peacekeeping troops in Lebanon - experience which helped inspire even Reagan to "cut and run".

It would be nice to achieve peace and democracy for Lebanon - and a more wise or pragmatic administration might have made Lebanon a model for economic development and democratization in the Middle East rather than invading Iraq - but at present there does not appear to be the political will to achieve that end.

Friday, June 11, 2004

Death By Inches

A couple of months ago in Vieth v Jubelirer, the Supreme Court chose not to revisit precedents which permit the extraordinary gerrymandering which has led to the overwhelming majority of Congressional seats being "safe", or for one political party to carry a majority of a state's Congressional seats even when the majority of the state's voters supported the other party. Four Justices (Scalia, Thomas, Rehnquist and O'Connor) wanted to upset precedent and declare gerrymandering to be a nonjusticiable "political question":
Eighteen years of judicial effort with virtually nothing to show for it justify us in revisiting the question whether the standard [for review of gerrymandering claims] promised by Bandemer exists. As the following discussion reveals, no judicially discernible and manageable standards for adjudicating political gerrymandering claims have emerged. Lacking them, we must conclude that political gerrymandering claims are nonjusticiable and that Bandemer was wrongly decided.
The precedent was saved by the reticence of Justice Kennedy, who refused to accept the majority's opinion of nonjusticiability:
Relying on the distinction between a claim having or not having a workable standard of that sort involves a difficult proof: proof of a categorical negative. That is, the different treatment of claims otherwise so alike hinges entirely on proof that no standard could exist. This is a difficult proposition to establish, for proving a negative is a challenge in any context.
It could also be noted that there are other contexts where the Supreme Court has had great difficulty articulating a workable standard for review of difficult questions (e.g., with the First Amendment's Establishment Clause) - but has nonetheless attempted to live up to its constitutional obligations by asserting and refining various standards and tests.

This week, three of the Justices who wrote the majority opinion for the Vieth decision, Rehnquist, Scalia and Thomas, dissented to the Supreme Court's refusal to take a Colorado redistricting case, and were seemingly frustrated that they could not overturn a Colorado Supreme Court decision which interpreted Colorado's state constitution.
The court ordered Davidson to employ the judicially created plan through the 2010 elections. While purporting to decide the issues presented exclusively on state-law grounds, the court made an express and necessary interpretation of the term “Legislature” in the Federal Elections Clause in concluding that “[n]othing in state or federal law contradicts this limitation.”
The majority presumably did not find compelling the argument that a passing mention that there was no state or federal precedent on an interpretation of a particular term ("legislature") transformed the interpretation of the state's constitution to a proper subject for federal review.

While there is more technical validity to the hairsplitting than the New York Times suggests, today's editorial does get to the true politics at play in both decisions.
What is troubling, however, is a dissent by Chief Justice William Rehnquist and two of his colleagues that argues for diving into the conflict. Given these justices' eagerness to defer to the states in other matters, the dissent smacks of partisan politics and raises new concerns about the court's neutrality. ... By departing from his deeply held belief in state autonomy to side with the Republican Party in a redistricting case, Chief Justice Rehnquist has once again invited the public to question this court's motives.
When the same Justices prevent a state recount on the principle of "Equal Protection" - a clause the same justices had pretty much written out of the Constitution in any other context - and at the same time express that the opinion cannot be used as precedent, attempt to remove federal oversight of gerrymandering, and advocate the reinterpretation of decisions made under a state constitution - a position again seemingly in conflict with their long-standing positions on federalism - it becomes more than fair to question if this pattern truly reflects an evolution of their legal thinking (albeit an evolution limited to the subject of federal elections), or if it in fact reflects a desire to interfere with and impede the exercise of democracy as intended by the Founding Fathers.

Thursday, June 10, 2004

Who Do You Trust?

According to a Pew Research Center poll, about 45% of Democrats see CNN as credible, while 26% of Republicans see CNN as credible. Fox is considered credible by 29% of Republicans and 24% of Democrats. So, as you would expect, the two networks are....

... quite happy with the figures?

"We're obviously pleased -- once again we've been voted the most trusted news organization in America," says spokesman Matthew Furman.

"The study confirms that while our audience continues to increase and our credibility expands, our competitors are hemorrhaging viewers and losing America's trust," says spokeswoman Irena Briganti. She adds: "It's fair to ask why so many Democrats are watching CNN if everyone has to ask why so many conservatives are watching us."

[Insert eyeroll here]

Wednesday, June 09, 2004

"Don't You Want Me"

With the press coverage of the Kurdish reaction to the new UN Resolution on Iraq being evocative of a jilted lover ("Why do we take our proven allies for granted?"; "Is it too late to mend the rift?"), I suddenly have this horrible song running through my head....

Tuesday, June 08, 2004

The Logic of War

I caught a few moments of a show where somebody was questioning children about war. A well-socialized child, about ten years old, expressed that he didn't think that there was ever a reason to have a war - that it should always be possible to reach a compromise to avoid war. In essence, he was arguing that war results from a failure of reason.

This, of course, is not the case. As anybody who has played chess can attest, sometimes to win you must sacrifice a pawn to win the game. In their quest for wealth, power, and empire, the world's leaders have historically been quite satisfied to view soldiers and civilians as expendable. Certainly, there's a cost-benefit analysis - they had to weigh the potential losses among their populations of soldiers and civilians against not only the fruits of victory, but the possibility that their weakened post-war state might be targeted by another. Today, the goals may be different, the calculus may be different, but the same type of cost-benefit analysis applies. And when the leaders decide that the cost of war is sufficiently low or the cost of diplomacy or compromise is sufficiently high, war "makes sense".

I am reminded of a conservative friend's comments on the character "Spock" in Star Trek. He was amused by the notion that Vulcans were supposed to be creatures of pure logic, as the Vulcans were also depicted as being extremely moral and protective of the lives of others. Logically, he argued, if the Enterprise were faced with a crisis that could easily be resolved by obliterating all life on a planet that was otherwise of no interest, Spock should have been advocating that resolution rather than risking the ship or the lives of crewmembers to reach a peaceful resolution. When applying pure logic, morality doesn't necessarily compute. Despite the claims of the Vulcans, it was the "immoral" Romulans who were the creatures of cold logic.

The British tradition of having the sons of the wealthy fill the officer ranks, while the working classes served as infantry, was arguably transformative of that society after World War I, where the men of the "upstairs, downstairs" society fought shoulder-to-shoulder and couldn't easily transition back into the former master-servant relationship. But for most wars, those making the decision to go to war, and those deciding who will do the dying on the battlefield, are well-insulated from the bloodshed. Their assessment of whether the costs outweigh the gains may be based on goals ranging from pure greed and self-interest to pure egalitarianism, but they are making decisions that primarily affect the lives (or result in the deaths) of others.

If you could save the lives of 10,000 people by killing one person, would you do so? If you could save the lives of 10,000 people by dying, would you volunteer to die? Many people would give very different answers to those two questions - they would sacrifice the other, but not themselves. (And many who would state in the abstract that they would sacrifice themselves, in my humble opinion, are not being entirely honest.) Yet this is the calculus of the egalitarian war - the "war of liberation". How many people (other than me) should perish in the name of their own freedom? (And, when arguing that thousands of soldier and civilian deaths are "worth it", are they making that assessment as "Romulans" or as "Vulcans"?)

Life is easier, I suppose, or at least a lot less complicated in the faux-Christian, "might makes right" world of somebody like Ann "What's Wrong With A War For Oil" Coulter.

Monday, June 07, 2004

Missing the Point....

Although more than a bit hyperbolic and partisan in tone, in today's Guardian, Niall Ferguson does a decent job of outlining how "limited sovereignty" on the heels of an occupation may well be the best approach to transforming a conquered nation. But in presenting his case, he states,
You are either pregnant or not; there is no such thing as partly pregnant. Does the same apply to sovereignty? The answer is no. It is perfectly possible - and, under certain circumstances, highly desirable - for sovereignty to be limited. Yet the debate over the future of Iraq has been dominated for weeks by the distinctly misleading concept of "full sovereignty"
The reason is pretty obvious, isn't it? Deception from the "coalition" political leaders.

If the leaders were honest about their plans, they wouldn't be speaking of a "transfer of sovereignty" to an "interim government", and suggesting that everything will be rosy - and we might even be able to pack our bags and go home - after the first national election. As a result of that deception, it is fair game for people to question the motives of Bush and Blair, to question what they really intend in terms of a transfer of sovereignty, and to question whether they actually have a plan for ultimately creating a sovereign Iraq - and even to question the assumption that Bush and Blair want to create a sovereign Iraq.

It wouldn't take much for Bush and Blair to set the record straight. They've done a joint press conference before. They can go on camera, explain the facts of their plan and give a sense of their strategy. Then they can end their deceit. Wouldn't that be interesting - a policy of truth?


As usual, all words, no action.

Saturday, June 05, 2004

Ronald Reagan

I think my most vivid recollection of a "Reagan Moment" was when he was shot by John Hinkley back in 1981. I was never one to lionize or vilify the man. May he rest in peace.

Political Polarization

In his neverending quest to divide the world into "red" and "blue", David Brooks today tells us that our party affiliation may affect our political views - that is, people who identify with a particular political party are likely, over time, to shape their views to be consistent with the party's platform. Brooks notes from one book what seems to be, on the whole, true - that many people choose the party affiliation of their parents, and many others select a party during early adulthood, with few people switching party affiliation past middle age. He then cites an Arizona State University professor whose research shows that party affiliation often shapes values - "In fact, you're more likely to find that people become Democrats first, then place increasing value on equal opportunity, or they become Republicans first, then place increasing value on limited government." And he notes what has long been established - that people tend to overvalue information with reinforces their worldviews, while undervaluing or ignoring information which challenges their biases. Brooks concludes,
The overall impression one gets from these political scientists is that politics is a tribal business. Americans congregate into rival political communities, then embrace one-sided attitudes and perceptions. That suggests that political polarization is the result of deep and self-reinforcing psychological and social forces.

This theory doesn't explain how the country moves through cycles of greater and lesser polarization. Still, I have to say, depressingly, this picture of tribal and subrational partisanship does accord with the reality we see around us every day.
Brooks overlooks something I think is rather obvious - that even if his various assertions are correct, the philosophies of the political parties change over time. The Republican Party today is not the Republican Party of the 1950's, and is in no way, shape or form "the Party of Lincoln". The Democratic Party today is not the Democratic Party of the 1970's - and (with all due respect to Brooks' observation that even major historic events "and the Watergate scandal" did not do much to shift party affiliation, the Democratic Party's decision to endorse the end of the Jim Crow area and to stand for racial equality did cause many former Democrats to become Republican.

Through his columns, Brooks seems to suggest that there is a diminishment in the number of nonaligned voters or "swing voters" in this nation. In this column, he expresses confusion about "how the country moves through cycles of greater and lesser polarization". The answer doesn't seem to me to be particularly obscure. As the parties attempt to attract "swing voters" - the so-called "middle" - they risk alienating their core supporters. The Clinton/Gore Democratic Party alienated the hard-core left and environmentalists, who voted for Nader. The perceived secularism of George H.W. Bush alienated the religious right, which voted for Buchanan. When the parties cater to extremists, they risk alienating the middle. When they move to the middle, they will alienate the extremists, but free themselves up to reshape the party's platform.

If you were to apply Lincoln's assessment of the public, we might simplistically break the voting public into four groups... The first group is the faction which exists in every party which is as Brooks describes - they don't really exercise independent thought about the issues, don't think about their party affiliation, and allow their positions to be dictated by what their party's leaders tell them they should think. Brooks apparently thinks that a very large percentage of Americans fall into "group one".

The second group consists of "single issue voters" - people whose party affiliation is based upon one issue. While they may not change their party affiliation if the other party came to accept their position on the issue, they would change their party affiliation in a heartbeat if the two parties switched their positions. Pro-life voters are a classic "single issue" group. The racists who switched party affiliation when the Dems endorsed integration are another.

The third group consists of people who try to follow the issues, but are consumed by their daily lives - jobs, kids, and other pressing demands on their times - and thus may be predisposed to take their political leaders at their word, or to defer too much to the shallow, sound-bite oriented media coverage of modern America. I think a lot more Americans fall into this group than the first - and to the degree that their party affliations seem unaffected by what's "really going on", beyond surveying a newspaper and perhaps watching the evening news they don't have the time and energy to keep up with events the rest of the world. And with the sorry state of the modern media, even with that level of good faith effort it is very hard to stay informed.

The final group actively follows the issues, and goes out of its way to remain informed. This group includes people of most political persuasions, and includes a lot of people who can't bring themselves to pick a party. (After all, if you take the time to come to an informed political perspective on a range of important issues, the simplistic, disingenuous, and even dishonest treatment that the major parties give to crucial issues of the day isn't attractive.) Statistically, this is about five percent of the population.

Lincoln's assessment, if you recall, was "You can fool some of the people all of the time, and all of the people some of the time, but you can not fool all of the people all of the time." On this scale, we have group one as the easiest to fool, group four as the hardest, and groups two and three along for the ride, somewhere in the middle.

If you wake up enough people in group 3, the political calculus for the nation can change. You may suddenly have a group of voters that the parties' counted on both for their party loyalty and for a particular number of votes, who are suddenly disenchanted with their party's candidates (and thus at risk of not showing up to vote) or who are actually considering voting for a different party. The parties then adapt their platforms to try to attract these voters, and at some point may have to consider whether the shifting tides require them to cast off a single issue group - as the Democrats did with the racist vote. The parties then need to consider how to keep these new voters in the fold - and going back to their prior platforms is unlikely to do that. So we get shift.

A good friend of mine, a military veteran, unabashedly describes himself as a "conservative". He has always voted for Republican presidential candidates. He has told me that he eschews any party affliation - while recognizing that it is the party which better shares his political perspective, he has never called himself "a Rebpubican" - and is sufficiently offended by GW's departure from "classic conservative" values that he may well stay home in the next election. Several other friends who unabashedly describe themselves as "liberal" indicate that they would have voted for McCain over Gore in the last election. Some people, it seems, are downright hard to fool.

Thursday, June 03, 2004

Analogies to Vietnam

Perhaps those who love or hate comparisons between the present conflict in Iraq and the Vietnam war should read this analysis by the Army War College, Vietnam and Iraq: Differences, Similarities and Insights.
U.S. political and military difficulties in Iraq have prompted comparisons to the American war in Vietnam. The authors conclude that the military dimensions of the two conflicts bear little comparison. Among other things, the sheer scale of the Vietnam War in terms of forces committed and losses incurred dwarfs that of the Iraq War. They also conclude, however, that failed U.S. state-building in Vietnam and the impact of declining domestic political support for U.S. war aims in Vietnam are issues pertinent to current U.S. policy in Iraq.

Wednesday, June 02, 2004

"Gaza First"

Jonathan Freedland shares a pessimistic view of the prospect for peace in Israel-Palestine. (An unexpected departure from the usual optimism. [Insert smiley here for the sarcasm-impaired])