Perhaps He's On Wal-Mart's Payroll?

Sebastian Mallaby again leaps to the defense of Wal-Mart, castigating Democrats who he claims are aligned with anti-Wal-Mart movements. I have previously noted that Mallaby's thinking on Wal-Mart is muddled. While he is consistent in his message that it's wrong to oppose Wal-Mart, he hasn't otherwise improved his arguments in favor of Wal-Mart. He's changed his source for his argument that WalMart cuts family food bills to one not available online, but which appears to better support his point in relation to poor families. Yet despite this change, he hasn't altered his speculation that Wal-Mart saves shoppers more than $200 billion per year, nor his absurd economic model by which this is the equivalent of a welfare program larger than the food stamp program.

At the tail end of my prior critique of Mallaby, I noted,

All of that said, my objections to Mallaby's idiocy do not mean that I hate WalMart. WalMart wishes to open a store in an armpit of a small town north of Detroit, where despite its wages it will be one of the better paying employers in town, and will provide jobs in an area of high unemployment. If it opens it will cause some local businesses to close, including a small, dismal, run-down K-Mart, the owner of which is putting a lot more energy into fighting WalMart than into measures which might make his business more viable. It will also probably cause the local grocery store to close, but they sold out to a regional chain a number of years ago, and many locals already travel out of town for the better prices and selection available at larger grocery stores in nearby towns. On the whole the net impact on the town and surrounding community will likely be positive.

That small town is about as politically "red" as a town can be - and it is not liberal activists who seek to block Wal-Mart, but several of the leaders of the local business community. The Wal-Mart in my wife's home town wishes to expand its store and be open 24 hours - with its proposal strongly opposed by that politically "red" community, as was its original construction. But perhaps Mallaby doesn't see the same "betrayal of principles" when Republicans oppose and seek to block Wal-Mart stores, as he does with Democrats. But then, what principles does he ascribe to Republican opponents?

Why Did You Get Your Tattoo?

David Brooks, self-professed high school nerd, is snickering at people who have tattoos:

And that’s the most delightful thing about the whole tattoo fad. A cadre of fashion-forward types thought they were doing something to separate themselves from the vanilla middle classes but are now discovering that the signs etched into their skins are absolutely mainstream. They are at the beach looking across the acres of similar markings and learning there is nothing more conformist than displays of individuality, nothing more risk-free than rebellion, nothing more conservative than youth culture.

The thing is, I know a number of people who have tattoos, and while their reasons vary (ranging from "I was drunk on my 21st birthday, and my friends..." to "It symbolizes my struggle with cancer") I can't recall a one who argues, "I wanted to separate myself from the likes of David Brooks and his vanilla (upper) middle class values," or "I am trying to be a nonconformist". I'm not excluding the fact that there are those who would get tattoos with the purpose of shocking the likes of David Brooks, but they're not in my social circle, and that's something different from rejecting middle class values.

To the extent that Brooks is arguing that something once considered outside the mainstream has become pretty much a part of the mainstream, well, sure. But he seems to be a couple of decades behind-the-times in figuring this out.

What A Nefarious Scheme - How Dare They Include, Er, Exclude Me!

I know not all publishers are happy with Google's plan to digitize books, but...

Rather than compiling a list of her company's 1,200 titles ("a waste of my staff's time"), Rienner fired off an angry letter to CEO Schmidt. Google responded with a letter agreeing not to copy any of her books. Rienner is unmollified. She worries that she will be cut out of some future digital moneymaking opportunity. "Books are my unique content," she says. "I'm sure the smart people at Google are busy dreaming up all kinds of ways to make money off them.

[eyeroll]

Krauthammer on Perfidy

Oh, why didn't he see this coming.... Poor Charles Krauthammer and friends, taken in by the evil French:

But we underestimated French perfidy. (Overestimating it is mathematically impossible.) Once the resolution was passed, France announced that instead of the expected 5,000 troops, it would be sending 200.

Well, speaking of math, if it's not possible to overestimate French perfidy, then it follows that French perfidy is infinite. If French perfidy is infinite, you would have to be stupid to underestimate it. So when Krauthammer says "we", he would seem to be admitting to at least situational stupidity, which would be fitting given that he is almost always a fount of frothy irrationality on issues relating to the Middle East.

But step back for a moment here. This force, even at a "full" 15,000, would be tiny compared to our commitment in Iraq. Heck - it would be pretty darn small as compared to our commitment in South Korea - is that number still about 37,000? So what's really going on? Perhaps the U.S. realizes two things: First, anybody who deploys troops in Lebanon risks having troops killed, and second, Lebanon doesn't have oil. Perhaps Mr. Krauthammer needs to consider that despite this nation's overwhelming support for Israel's right to exist and be secure within its borders, we don't see a compelling need to shed U.S. blood to secure that nation's northern border.

Shaking his fist angrily at France and sputtering angrily about that nation's perfidy doesn't change the fact that the U.S. entered into the ceasefire deal without first getting troops committed to the peacekeeping force, nor does it change the fact that we're expecting those troops to come from nations other than our own. Despite the implications of his mathematical formula, surely Mr. Krauthammer would not contend that the U.S. or his beloved President were suckered into supporting the ceasefire deal - the Bush Administration's political leaders and diplomats joined it with their eyes wide open.

Krauthammer suggests two contexts when multilateralism is valuable:

This is considered a radical change of course. It is not. Even the most ardent unilateralist always prefers multilateral support under one of two conditions: (1) There is something the allies will actually help accomplish or (2) there is nothing to be done anyway, so multilateralism gives you the cover of appearing to do something.

Perhaps he doesn't recognize the Bush Administration's variant on #2: If you could do something but you don't care enough to invest your nation's resources, multilateralism again provides that nice cover.

Do you have a good ear for music?

However tinny your ear, it could be worse - also available in a higher register. If you recognize the song, help him out.

Is Process More Important Than Outcome?

If you attend law school, you will encounter on exams what is described as a "theory question". I have a hard time describing theory questions in a manner that does not sound cynical, as I happen to have developed a very cynical take on them. Although ostensibly designed to test your understanding and application of legal theory, if you don't know this up front you will quickly learn that maximizing your grade on a theory question usually involves conforming your theories to what the professor wants to hear. If the professor believes that the President is too powerful and must be kept in check by Congress, that's what you write on the exam. Oh, the professor may claim that the test will be graded without respect to whether or not you agree with him, but it's a distinction without a difference - he won't grade you down because you disagree that Congress should be the most powerful branch of government; he'll grade you down because any other theory is wrong.

I am reminded of theory questions by Ann Althouse's editorial in the New York Times, A Law Unto Herself, an editorial that she would presumably grade as an "A" or "A+" if written by one of her students at the University of Wisconsin Law School. It should have been easy for her - after all, her primary areas of expertise are civil procedure, constitutional law and federal jurisdiction. Now, I'm not saying that had I received this editorial as an essay from a 2L or 3L I would necessarily have given the student a low or failing grade. But that doesn't mean it's good.

The first noteworthy aspect of the editorial is that Professor Althouse pretends to be judging the issue based solely on issues of procedure, and not on the basis of the outcome reached. And you need to look no further than her blog to see her insist that she was not approving or disapproving the outcome, and her very scholarly refutation of those who believe otherwise:

I can see that a lot of people are missing the point of the op-ed... But I don't want to get out my sledgehammer, and I'm bored with telling people to calm down and reread it.

Well, gee... I'm convinced. So how might people have come to the conclusion that a law professor and expert in civil procedure was taking sides, despite her insistence that she was not? Perhaps it is their experience with statements like these:

In the review of judicial proceedings the rule is settled that, if the decision below is correct, it must be affirmed, although the lower court relied upon a wrong ground or gave a wrong reason. Frey & Son, Inc. v. Cudahy Packing Co., 256 U.S. 208 , 41 S.Ct. 451; United States v. American Ry. Exp. Co., 265 U.S. 425 , 44 S.Ct. 560; United States v. Holt State Bank, 270 U.S. 49, 56 , 46 S.Ct. 197, 199; Langnes v. Green, 282 U.S. 531 , 51 S.Ct. 243; Stelos Co. v. Hosiery Motor-Mend Corp., 295 U.S. 237, 239 , 55 S.Ct. 746; cf. United States v. Williams, 278 U.S. 255 , 49 S.Ct. 97. [Helvering v. Gowran, 302 U.S. 238 (1937)]

Perhaps I'm being unfair, and Professor Althouse has a long and distinguished history of attacking the many state and federal cases which assert this rule; but if this is the first time she has raised the question of how courts "ignore their obligations" by focusing on outome over proper process, it invites the question - why now?

Then there is her attack on the Judge's sentence, "There are no hereditary kings in America and no powers not created by the Constitution." Professor Althouse describes that sentence as a "juicy quotation that represents "sheer sophistry."

The potential for the president to abuse his power has nothing to do with kings and heredity. (How much power do hereditary kings have these days, anyway?) And, indeed, the president is not claiming he has powers outside of the Constitution. He isn’t arguing that he’s above the law. He’s making an aggressive argument about the scope of his power under the law.

It is a serious argument, and judges need to take it seriously. If they do not, we ought to wonder why a court gets to decide what the law is and not the president. After all, the president has a sworn duty to uphold the Constitution; he has his advisers, and they’ve concluded that the program is legal. Why should the judicial view prevail over the president’s?

But what the Judge actually wrote was this:

We must first note that the Office of the Chief Executive has itself been created, with its powers, by the Constitution. There are no hereditary Kings in America and no powers not created by the Constitution. So all "inherent powers" must derive from that Constitution.

The Judge's statement may be "juicy" when taken out of context, but all the judge is actually stating is that the President's powers derive from the Constitution. It is reasonable to assume that Professor Althouse has read the opinion she criticizes, so it is fair to assume that her misrepresentation of the quote is intentional, and it is fair to further infer that her comments are based upon her taking offense at the judge's ultimate conclusion.

Futher, there is the question, what exactly is wrong with there being a "juicy" quote in a judicial opinion? Here's a "juicy quote" that is often used and abused by pundits: "There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact." Again, I have to assume that a constitutional scholar like Professor Althouse is familiar with the rhetorical flourishes judges often choose to include in their opinions. Again, in fairness, I have not followed Professor Althouse's writings and choosing this time to speak out would only suggest partisanship if Professor Althouse has no history of criticizing such "juiciness" in judicial opinions - although her own use of quotations suggests otherwise.

In terms of substantive complaints, Professor Althouse gets off to a weak start:

Judge Anna Diggs Taylor quoted Earl Warren (referring to him as “Justice Warren,” not “Chief Justice Warren,” as if she wanted to spotlight her carelessness)

Perhaps Prof. Althouse mentors the footnote editors for her school's law reviews, such that this "carelessness" shocks her, but to me she's nitpicking, and engaging in the logical fallacy of poisoning the well. I can't help but also note that she does not condemn Chief Justice Warren for producing such a "juicy" quote in the first place.

In relation to her call for careful judicial decisions which demonstrate a concern for accuracy, completeness and impartiality, I agree with Professor Althouse.

... let’s consider the irony of emphasizing the importance of holding one branch of the federal government, the executive, to the strict limits of the rule of law while sitting in another branch of the federal government, the judiciary, and blithely ignoring your own obligations.

I agree that both branches should seek to observe and respect their own obligations under the law and Constitution - and both the Judge and the President swore oaths to uphold the Constitution. But irony? Perhaps it's that we have different expectations, but from where I sit Professor Althouse is describing hypocrisy.

I disagree with Professor Althouse that a trial court decision, if poorly reasoned, sends the message that there are no good arguments in support of the outcome. I think it is fair to infer bias from her castigation, "It suggests that there are no good legal arguments against the program, just petulance and outrage and antipathy toward President Bush." From her claimed perch on the fence between the two sides, it is interesting that Professor Althouse finds nothing to criticize on the President's side - she seems satisfied that his oath of office and covey of advisers would steer him away from any disingenous or self-serving stance - and has a history of pecking at faults by the judge which may exist only in her imagination.

Professor Althouse also suggests that the decision represents (or, at best, can't be distinguished from) judicial activism,

So often, we’ve heard complaints about “activist” judges. They’re suspected of deciding what outcome they want, based on their own personal or ideological preferences, and then writing a legalistic, neutral-sounding opinion to cover up what they’ve done. That carefully composed legal opinion makes it somewhat hard for a judge’s critics to convince people — especially anyone who likes the outcome — that the judge did not decide the case according to an unbiased legal method of analysis.

So perhaps the oddest thing about Judge Taylor’s opinion in the eavesdropping case is that she didn’t bother to come up with the verbiage that normally cushions us from these suspicions. Although the first half of the opinion, dealing with the state secrets doctrine and the first part of the standing doctrine, has the usual detail and structure one expects in a judicial opinion, the remainder of her text dispenses with the formalities.

Why do I suspect that Professor Althouse spends little time reading federal trial court opinions, and little to no time reading state trial court decisions? I don't want to be the one to cause the scales to fall from her eyes, but despite its many obvious faults this is actually a pretty thorough, substantive opinion for a trial court. I don't want to paint with too broad a brush - there are many excellent trial judges who regularly write opinions which meet or exceed the quality of typical appellate court decisions. (For that matter, there are plenty of appellate decisions, often unpublished, which would make Judge Taylor's opinion look good.)

In fact, the appellate courts in some ways reward trial courts for writing cursory opinions, or no opinion at all. In Michigan, a trial court is not required to write an opinion when resolving a motion for summary disposition. A trial court which writes an opinion may well be affirmed, even if incorrect it in its analysis, under the "no harm, no foul" principle described above - it won't be reversed if it reaches the right result for the wrong reason. But if the judge doesn't pen so much as a word, simply granting or denying the motion, the chances of reversal do not appear to increase, while the chances of being corrected in the course of an affirmation drop to zero.

It's also interesting that Professor Althouse implicates judicial activism, without actually accusing the judge who penned the opinion as being activist. Again I'm with the Professor in believing that judges should take care to avoid not only bias, but the appearance of bias. But if it can truly be said that a careless trial court decision "helps those who have been arguing for years about result-oriented, activist judges," unless she's arguing that this is the straw which breaks the camel's back, this one opinion changes nothing.

Perhaps the most unfortunate part of the editorial is that Professor Althouse spends so much time focusing on style, she leaves herself with no space to address the substance of the opinion.

This means that the judge has a constitutional duty, under the doctrine of standing, to respond only to concretely injured plaintiffs who are suing the entity that caused their injury and for the purpose of remedying that injury. We trust the judge to say what the law is because the judge “must of necessity expound and interpret” in order to decide cases, as Chief Justice John Marshall wrote in Marbury. But Judge Taylor breezed through two of the three elements of standing doctrine — this constitutional limit on her power — in what looks like a headlong rush through a whole series of difficult legal questions to get to an outcome in her heart she knew was right.

Maybe Professor Althouse should have left out the "juicy" quote from Chief Justice Marshall, to give herself a bit more space to describe the law of standing, why the judge's opinion should be regarded a superficial and incomplete in relation to standing, and maybe even an opinion as to how the issue of standing should have been resolved (assuming she's comfortable climbing off of the fence). Would the Professor describe it as "ironic" if an editorial that pretends to condemn superficial legal analyses that give the impression (even if false) of partiality were itself superficial and seemingly partisan?

I guess in the end, if I were a law professor, I would be inclined to downgrade Professor Althouse's essay even though if you simmer off all of the fat and vitriol, I agree with her primary arguments for respect of the judicial process, judicial professionalism, and greater care in the drafting of judicial decisions at all levels.

Those Darn Subsidies

Having been wrong, yet again, on the Middle East and his prediction that Hezbollah would be blamed for the damage to Lebanon once a ceasefire took hold, in War on Daddy's Dime, Thomas Friedman takes on subsidies:

I’m not sure yet who’s the winner in the war between Hezbollah and Israel, but I know who’s the big loser: Iran’s taxpayers. What a bunch of suckers.

Isn’t it obvious? As soon as the reckless war he started was over, Hezbollah’s leader, Hassan Nasrallah, declared that Hezbollah would begin paying out cash to the thousands of Lebanese families whose homes were destroyed. “We will pay compensation, a certain amount of money for every family to rent for one year, plus buy furniture for those whose homes were totally destroyed,” said Nasrallah. “These number 15,000.”

I guess we'll leave aside for the moment the contradiction between Friedman's opening sentence, asserting that Iran's taxpayers are footing the bill, and his overall thesis, which is that Iran's rulers use state oil revenues to provide massive subsidies to keep their people reasonably content.

I understand why Mr. Friedman is upset. He predicted that Hezbollah would take a post-war P.R. hit and be blamed for the bombing damage, but here they are using Iran's oil wealth in a manner that may well further expand their popularity. It is also beyond obvious that high oil prices provide huge revenue streams to many undesirable regimes. But isn't this really an expression of his upset at having been blindsided by the obvious?

I have to admit that I am amused by statements like this:

To buy public support, Iran’s regime subsidizes housing, gasoline, interest rates, flour and rice.

What sort of nation, after all, would subsidize its oil industry? Offer subsidized housing or interest rates? Or subsidize agricultural products? Why, I even understand that there's a country which instituted subsidies on bee farming during WWII so that they would have sufficient beeswax to waterproof munitions for overseas shipment - and those subsidies remain in place, for no good reason, even today.... Where do you suppose that could be? (More here.) Perhaps Mr. Friedman should join forces with the Club for Growth.

Oh, I'm not arguing that U.S. subsidies are equal in scope, or have the same direct purpose as those in nations like Iran and Syria, but then what about Kuwait - are its subsidies okay, even though it remains a misogynistic dictatorial monarchy, because it isn't belligerent? Last I checked, its subsidies of its population made Iran's look small.

If we could cut the price of crude in half, it would mean that all of Iran’s oil income would go to subsidies — which would be unsustainable and therefore a huge threat to the regime.

Well, in theory.... But in practice, they made it through 2004 and early 2005, so even assuming an unlikely plunge in oil prices to a "mere" $35/bbl I think they would somehow keep up the bad fight.

The Unhappy Client.... Ouch?

Over at lawinfo.com:

Lavender12 - In August of 2003 I hired an attorney along with his partner as co-counsel for my son who was facing a three strikes count. For the next two years the case was continually postponed, and the lead counsel refused calls from myself and my son. The co-counsel disappeared after payment and have not heard from him to this day. Of course my son was found quilty, the lead counsel was not prepared, and said so. If any one has had this same problem, please advise, I have been to the State Bar, and they say this is a case of payment dispute? What dispute, they took my money and did nothing! Remember this name, [Law Firm]. Learn from my mistake.

[Law Firm] - Your son was convicted after a jury trial. You cannot possibly believe that we took your money and never showed up to court. That is a flat out lie. Furthermore the State Bar has already ruled in my favor and you should move on with your life. Stop this nonsense or I will sue you for making these defamatory remarks. Your son has already caused you and society enough grief. Move on.

I think this is a reminder that email and even moreso forum posts are not the same as conversation - there's a written record which may be public. I suspect that had this law firm been writing a letter to the client, they would have been more circumspect in their comments.

I know I've been intemperate at times in an online context, and for that matter still am, so I'm not judging. But when things like this appear in Google for your law firm name, even where people accept that the allegations are entirely untrue, it can affect whether a potential client will contact your firm.

Giving the Benefit of the Doubt to George Allen

Most people already know the story. Even those who seem inclined to believe that Allen intentionally used a racial slur question why he would do so. I think it's a reasonable inference that parts of his story are true - he did pick up the term from his staff, and he didn't realize that it was a racial slur. The sticking point is, he does not want to admit that his staff includes racists who know "white supremacist" code word ethnic slurs, and he has no good response to the question of why he engaged in what amounts to racial taunting even if he did not know he was using an ethnic slur.

The Ground Shifts Beneath GW's Feet

George Will published a column today, The Triumph of Unrealism, which criticizes the Bush Administration, not only without savaging the Democratic Party, but while actually endorsing the ideas of John Kerry.

In a candidates' debate in South Carolina (Jan. 29, 2004), Kerry said that although the war on terror will be "occasionally military," it is "primarily an intelligence and law enforcement operation that requires cooperation around the world."

Immediately after the London plot was disrupted, a "senior administration official," insisting on anonymity for his or her splenetic words, denied the obvious, that Kerry had a point. The official told The Weekly Standard:

"The idea that the jihadists would all be peaceful, warm, lovable, God-fearing people if it weren't for U.S. policies strikes me as not a valid idea. [Democrats] do not have the understanding or the commitment to take on these forces. It's like John Kerry. The law enforcement approach doesn't work."

This farrago of caricature and non sequitur makes the administration seem eager to repel all but the delusional. But perhaps such rhetoric reflects the intellectual contortions required to sustain the illusion that the war in Iraq is central to the war on terrorism, and that the war, unlike "the law enforcement approach," does "work."

An accidental omission, or is the ground crumbling under GW's feet?

It's Not About The Oil....

The world according to Ken Mehlman....

Republican National Committee Chairman Ken Mehlman said the Democrats have embraced a side of their party that wants to block President Bush's tougher anti-terror measures and would abandon Iraq to terrorists.

"Imagine a failed state on the second-largest oil reserves in the world," he said on NBC. "That's what would happen if we cut and run in Iraq, which unfortunately - which is what the Democratic Party has now made their orthodoxy."

I know that people have been making fun of him for conveniently forgetting the Bush Administration's insistence that we "Stay the Course," proposing that reference the Bush Administration's succession of failed plans for Iraq as a strategy to "Win by adapting". But this one deserves ridicule as well.

First, as you surely recall, "It's not about the oil". So how is it that the biggest concern Mehlman can describe as resulting from a premature departure from Iraq is who may end up controlling "the second-largest oil reserves in the world"?

Second, if it is about the oil, or if the oil was actually the last of our concerns but we choose to throw our hands up in despair about everything else, if we choose we can retain control of the oil fields. Or we can utilize our military might to prevent a "failed state" from pumping oil. Or we can utilize the UN to implement another "oil for food" program, although perhaps this time with better safeguards against corruption.

Third, how well are we actually doing at managing the oil fields and oil production? Giving all due respect to the pipe dreams of people like White House economic adviser Lawrence Lindsey, that the war would increase oil production and lower oil prices, Iraq is still producing oil in quantities below pre-war levels and the price of oil is... well, high. Oh, I love this stuff....

It is hard to say what impact this might have on oil prices, but markets clearly expect lower prices. On the eve of hostilities, oil was selling for about $37 per barrel. At this price, Americans would be paying $270 billion per year for oil. But once it became clear that Iraq’s liberation was at hand, the price quickly dropped to about $28 per barrel, cutting our annual oil bill by $70 billion. With full Iraqi production, the price might drop to $20 per barrel or less, giving us the equivalent of an annual tax cut of about $120 billion per year. And this is a tax cut the entire world benefits from.

I guess this means that, with oil trading at over $72 per barrel, Bruce Bartlett is now arguing that the Bush Administration brought us the equivalent of a $270 billion tax increase? No, I'm sure he would argue that any increase in the price of oil is due to factors completely independent of anything within the Bush Administration's sphere of control.... But if the goal truly is to keep oil wealth out of the hands of nasty people, the question of who controls Iraq's oil fields seems peripheral to the fact that the unpleasant regimes which control a significant number of oil producing nations are rolling in cash these days.

Don't Assume The Worst Of The Deponent

In my work for the past few years, my exposure to depositions has been pretty much limited to reading transcripts. I miss actually conducting depositions. From a transcript, I can't see the witness sweat, I generally can't see awkward pauses (although sometimes a lawyer will note them for the record or the court reporter will use ellipses), and I can't hear tone of voice. The textual presentation cleans up the testimony in a way that removes a lot of the personality. But that's not always the case.

In one case, where I happen to know background information, a lawyer did a very diligent job of walking the witness through a chronology of events. But the lawyer came into the deposition with the apparent perspective that the witness would be hostile, and he questioned the witness in a manner that was at times patronizing, condescending, and at times combative and insulting. There were various points where if he had listened more carefully to what the witness was saying, rather than assuming that the testimony fit his preconception, he would have been able ask questions which would have led to some very valuable information. He also would have avoided antagonizing a witness who was in fact neutral, and might have realized that some of the answers that seemed evasive were designed to protect his position and not the adverse party's.

Independent Joe....

What's wrong with this picture:

I wonder if he'll further expand his search for "independent voters" by getting voter lists for registered Republicans....

Brooks Says: Vote Perot! (Or is it Vote Libertarian!")

Behind the firewall, in "Party No. 3", David "Babbling" Brooks endorses a "McCain-Lieberman" ticket, as somehow the cure for all that ails America. (What would we call this new party... perhaps the Huggy-Kissy Party? Ah yes, independent centerists to the end.

Brooks starts with some racial overtones, sneering at Lamont for letting Al Sharpton share space on the stage at his victory speech. Lieberman, after all, would never appear with Al Sharpton, let alone be photogaphed with him, or sit next to him at a pro-choice rally. Without even starting a new paragraph, Brooks makes plain that he doesn't understand the American political system, or how primaries work:

And the McCain-Lieberman Party was represented by Joe Lieberman himself, giving a concession speech that explained why polarized primary voters shouldn’t be allowed to define the choices in American politics.

Is he really taking the position that we should no longer have primaries? That each party should designate its preferred candidates, and that the voters should be stuck with that choice for fear that the most active, informed, motivated, and yes extreme local members of the party might pick somebody else? Sure, the primary system can work against centrist candidates, but let's be honest for a moment - there are moderate Republicans who would be replaced in a heartbeat by their party, but for the fact that there is a primary system in place. That's not a recipe for centrist politics.

The McCain-Lieberman Party begins with a rejection of the Sunni-Shiite style of politics itself. It rejects those whose emotional attachment to their party is so all-consuming it becomes a form of tribalism, and who believe the only way to get American voters to respond is through aggression and stridency.

Note how neatly Brooks skips over the central issue - what this party would stand for. Like Perot's Reform Party, or the Libertarian Party, that may work as long as they are serving primarily as an outlet for a protest vote. But if they seriously want to win an election, they need to take a stand on the issues that matter to voters. The Simpsons parodied this many years ago, with space aliens disguising themselves as the Presidential candidates:

Announcer: Ladies and Gentlemen, 73-year-old candidate, Bob Dole.

Kang: Abortions for all.

[crowd boos]

Very well, no abortions for anyone.

[crowd boos]

Hmm... Abortions for some, miniature American flags for others.

[crowd cheers and waves miniature flags]

So what would McCain Lieberman give us... Abortions rights from Lieberman, miniature American flags from McCain... without even agreement on whether it should be constitutional for McCain to forbid the voters to burn their little flags. No agreement on reproductive choice. No agreement on First Amendment principles of symbolic speech, perhaps unless it involves banning video games. Lieberman supporting federal intervention in Shiavo. McCain endorsing the teaching of intelligent design in the classroom. McCain supporting gay rights, and Lieberman opposing them.... A party that simultaneously stands for everything and nothing. They don't even seem to agree on what centrism is - McCain's is an iconoclastic centrism under which he can stand against his party when he chooses, and which does not require his seeking compromise or middle ground. McCain gets to define the center, and then lets others join him there. Lieberman's is a deferential centrism, in which he is willing to yield ground to those who hold power in order to resolve an issue, even if the other side itself cedes no ground in order to reach the resulting "compromise". In my opinion, both often engage in their form of centrism for personal reasons and political gain. They both love the spotlight, they both love being seen as above party politics, and they both seem to believe that by being darlings of the media and of pundits like Brooks they are somehow deserving of the adulation of the voting public.

The McCain-Lieberman Party counters with constant reminders that country comes before party, that in politics a little passion energizes but unmarshaled passion corrupts, and that more people want to vote for civility than for venom.

How? By virtue of being impressed with the value set and behavior codes of wealthy white men? They get the benefit of not having to articulate a political platform because they know how to dress nicely, shake hands, and smile at the right moments? Brooks tries to articulate the Lieberman-McCain common ground, which would supposedly make it distinct from the major parties:

• They agree with Tony Blair on the "War on Terror". (It isn't explained how this differs from agreeing with Bush.)
• They will raise taxes while slashing social programs. (Possible, but hardly a winning election platform, nor an indication that they could agree on how to raise taxes or how to cut social welfare programs.)
• They believe in free trade, investment in "human capital" and "immigration reform". (What does any of that actually mean to Brooks, let alone to a possible political platform?)
• They don't like teacher's unions, or allowing corporations to write environmental rules. (There's some loyalty for you... the teacher's union endorses Lamont, and it's like they never shared their love with Lieberman. Presumably Lieberman still loves the AFL-CIO... unless they support Lamont in the general election.)
• "It sees two traditions immobilized to trench warfare." (While perhaps voters see McCain drawing lines in the sand, and Lieberman trying to breach the other side's trench by offering a handful of pansies.)

So when it comes to the major issues, Brooks defines "centrism" as total deference to present military policy. He sees it as "centrist" to raise taxes. He sees it as "centrist" to cut social welfare programs - while at the same time proposing new social welfare programs to revamp our nation's "human capital". Health care isn't an issue that matters to the "center". Abortion rights aren't relevant to the "center". Rights for gays aren't relevant. First Amendment issues aren't relevant.

He also seems to believe that to be a centrist you must pursue your party's goals in a moderate, consensus-building manner, as otherwise you're engaging in "trench warfare". That's just plain silly. If the centrist party wants to achieve universal health care coverage, for example, it will have to steamroll over opposition to that plan.

Basically, as is typical, Brooks hasn't thought this one out.

Addendum: I think that Lieberman's position on the war contributed significantly to his loss, but I think it was his approach to politics - the faux centrism that makes him the darling of political conservatives like Brooks - which cost him the election. The manner in which he supported the war and condescended to his critics, the straw which broke his back in the primary campagn, is a manifestation of that faux centrism.

Joe Lieberman's Website Woes

Joe Lieberman's campaign is apparently still accusing Lamont of somehow being responsible for hijacking his website.

"We call on Ned Lamont to make an unqualified statement denouncing this kind of dirty campaign trick and to demand whoever is responsible to cease and desist immediately," Smith said in a statement. "Any attempt to suppress voter participation and undermine the voting process on Election Day is deplorable and has no place in our democracy."

The latest version of their accusation seems to be of a denial of service attack:

"This statement is to confirm that the suspension of displaying the Web site www.joe2006.com was not due to to an overdue account. Friends of Joe Lieberman is completely paid in full. The screen that showed yesterday is a default image from the server," the Lieberman campaign said Tuesday in a statement.

"In order to isolate where the denial of service attack was coming into the site, we disabled it as rapidly as possible. Once we were able to isolate all the site files for study, we were able to add an appropriate one-page maintenance message."

Except throughout this "attack" people were able to access the website and see an error message. It gives me no confidence in the Lieberman campaign staff, or their accusations of sabotage, that they seem to think that their website is served from a magic box which can only fail in the event of the malicious acts of others. They also seem to believe that only a political opponent would target a high-profile website in a manner likely to grab headlines.... A savvy opponent would not do this on the eve of a primary.

Here's another lesson for political campaigns - particularly major or national campaigns - set up your servers to automatically refresh site content on a regular basis (e..g, every half-hour) such that no vandalism of the site itself will last long, even when responsible staff members are busy with other matters or are asleep. Consider setting up a separate SMTP server to handle mail. Implement frequent automated backups of any areas of the site which are regularly updated, to prevent or at least minimize data loss. This is basic stuff, which is why even I know it....

Lebanon's Army To Control The Southern Border Region?

I may be a proverbial monkey hammering away at the keys, trying to produce Shakespeare, but apparently I actually anticipated what is now being proposed as a (partial) solution to the Israel-Lebanon war:

The Lebanese army called up 5,000 reservists last night to prepare for deployment along the border to try to speed up the departure of Israeli forces, the main hurdle to the United Nations security council adopting a ceasefire resolution.

The Lebanese army will only be deployed when Israel and Hizbullah agree to end hostilities.

The army, regarded as neutral by Israel, has not been involved in the present conflict. Its deployment would mark a significant change in the balance of power within the country: for more than 20 years southern Lebanon has been a virtual no-go area for the Lebanese army.

And so the poor Lebanese Army appears destined to go where any international military force would fear to tread....

The Air War vs. The Ground War

Jonathan Chait writes,

Let's face it, Israel's counter offensive in Lebanon doesn't seem to be going very well. Liberals are saying it. Conservatives are saying it. Plenty of Israelis are saying it. But here is the odd thing: nobody is paying very careful attention to the alternative. The criticism of Israel's ground campaign - however sound much of it may be - takes place against an assumption that peace could be at hand if only Israel stopped fighting.

A valid point, which sidesteps the real issue - the primary criticism has been of Israel's air campaign. It was (and is) so poorly designed and executed that you can only wonder if Israel intends to make Hezbollah the most popular and powerful force in Lebanon for the indefinite future.

Take a Krauthammer, Simmer off the Vitriol, Add a Dash of Chomsky....

And you have a recipe for a very unusual Krauthammer column, in that it's worth reading. As it turns out, when he stops telling us how much he hates everybody he perceives as an enemy of Israel and why we should share his sentiments, space appears in which sapience can emerge.

That dash of Chomsky.... One of Norm Chomsky's consistent points about U.S. Middle Eastern policy is that it is about what is in the perceived best interest of the United States, and to the extent that it is U.S. policy to support a strong Israel it is because fundamentally the U.S. views that as being in its best interest. Krauthammer seems to share that opinion:

Israel's war with Hezbollah is a war to secure its northern border, to defeat a terrorist militia bent on Israel's destruction, to restore Israeli deterrence in the age of the missile. But even more is at stake. Israel's leaders do not seem to understand how ruinous a military failure in Lebanon would be to its relationship with America, Israel's most vital lifeline. ... [In U.S. foreign policy] The question, as always, is: What have you done for me lately? There is fierce debate in the United States about whether, in the post-Sept. 11 world, Israel is a net asset or liability. Hezbollah's unprovoked attack on July 12 provided Israel the extraordinary opportunity to demonstrate its utility by making a major contribution to America's war on terrorism.

Like Chomsky, Krauthammer perceives that self-interest drives U.S. policy toward Israel. Like Chomsky, he overstates his case - I don't think you can look at the recent sense of Congress resolution, passing with a 410:8 vote, and not recognize that Israel's position is far from precarious. But I think they both sense what can happen, and what likely will happen, if in fact the consensus becomes that U.S. support for Israel is contrary to U.S. interests. Even if manifested only through the substitution of absentions for vetoes in U.N. Security Council votes pertaining to Israel.

I should note also that I agree with Krauthammer that Hezbollah is a threat to Israel and to the region, and that it would be a good thing if Hezbollah's military capacities were eliminated. I do differ from Krauthammer in that he apparently believes that Hezbollah could be defeated through a short-term ground war, but very much agree that Israel's air war represents an atrocious choice of tactics.

The United States has gone far out on a limb to allow Israel to win and for all this to happen. It has counted on Israel's ability to do the job. It has been disappointed. Prime Minister Ehud Olmert has provided unsteady and uncertain leadership. Foolishly relying on air power alone, he denied his generals the ground offensive they wanted, only to reverse himself later. ...

His search for victory on the cheap has jeopardized not just the Lebanon operation but America's confidence in Israel as well.

I think Krauthammer recognizes but intentionally sidesteps the implications of his position. It certainly isn't the case that Israel cannot roll in the tanks and troops and have its ground war, even after its exceptionally destructive but tactically ineffectual air campaign. To the extent that a military victory can be won on the ground, nothing in the air campaign has limited Israel's opportunity for success, and arguably the destruction of Lebanese infrastructure would help Israel in a ground war. So the defeat Krauthammer perceives as being plucked from the jaws of victory would apparently be one of public perceptions and sentiment. It's not just a loss in the war by proxy against Iran ("The defeat of Hezbollah would be a huge loss for Iran, both psychologically and strategically.") It's that the tactics used have caused a lot of people in the West to question whether Israel holds the moral high ground, and have caused a significant backlash within Lebanon which could lead to a quick resurgence (temporary or long-term) of Hezbollah once the war ends.

A loss to Hezbollah may not mean much militarily for Israel or the West, but it means a lot psychologically. Hezbollah is already being perceived (yet again) on the Arab street as a heroic entity defeating a much more powerful adversary. It would exemplify the attitude we are (supposedly) working hard to change - that fundamentalist, militant Islam can bring pride and victory, even in the face of (decadent) Western imperialism. It of course doesn't help a bit that the Bush Administration eschews diplomacy, and thus rules out any resolution to this type of conflict which might illustrate a better way.

I may be more cynical than Krauthammer, who puts the blame for the poor choice of an air campaign on Israel's political leaders. I don't believe for a second that the U.S., in giving what Krauthammer desribes as "the green light -- indeed, the encouragement" to Israel to embark on this war, was not aware of Israel's intended tactics. Nobody said, "Hey - wait a second, that's not a good plan." Nobody stepped in when it became obvious that Israel intended to defeat Hezbollah primarily through air power and said, "We need to get them to bring in ground troops", or even "We should force a quick ceasefire to give Israel its 'victory' before it becomes obvious that this isn't working." Why? In my estimation, because the U.S. knew what Israel planned, and deemed it an appropriate manner in which to wage war against Hezbollah - perhaps even the preferred manner. After all, wouldn't a victory primarily through air power stand as vindication for Rumsfeld's vision of how wars should be fought?

[Updated to fix broken link.]

Protecting Insured Property

An insurance company determined that its client's display of collectibles was "so valuable that the insurers had insisted on a guard dog to protect the premises at night." The collectibles under guard? Valuable teddy bears. Apparently the person who made that call has never heard of a chew toy.

The Madness of the Bernstein

If you've been reading the Volokh Conspiracy, and increasingly one has to wonder why you would do that now that Prof. Kerr has his own blog, you've no doubt been amazed by some of Prof. Bernstein's recent posts, in which he suggests that the presence of the same rescue worker at more than one bombing scene in Lebanon proves that he is an agent of Hezbollah, and that the bodies dragged out of the rubble are being somehow transported to the bombing scenes from... well, he doesn't really explain... perhaps a giant, secret Hezbollah deep freeze... for staged photo ops. And despite a gentle counter-post from Eugene Volokh illustrating the absurdity of his claims, he goes on, and on, and on.... (Seriously - he makes the "fake moon landing" crowd look credible....)

Today he goes after one of his favorite targets, Juan Cole. Even though he agrees with Juan Cole. Fascinating stuff, really:

By the way, what does it say about Cole's readers that he feels the need to go into some detail to refute Gibson's absurd meanderings?

Well, let's see... If we go back all the way to, well, Monday another blogger wrote this:

Beyond not shedding tears, do I support a boycott of Gibson? That's a difficult question. Supposedly, he has been very nice and fair to many Jews he has worked with, and I tend think that actions speak louder than words, especially words not uttered for public consumption (H.L. Mencken, who was prejudiced against Jews, but not only was extremely fair to them as an editor, but was one of a very few public figures who advocated allowing Jews from Germany to immigrate to the U.S. in the 1930s, comes to mind).

Well, how nice. Gibson might be an okay guy if he can claim the "Some of my best friends are Jewish" response to accusations of anti-Semitism. Who was it who offered Gibson such an "easy out" of the charges of anti-Semitism levelled against him? Um... yeah. I leave it to Prof. Bernstein to explain what that tells us about his own readers.