Scalito

Judge Samuel Alito appears to be the second coming of Harriet Miers... except for the fact that he is a man, he has 15 years of experience serving in the federal judiciary, he has a solid record as an originalist, he has no prior relationship with Bush and liberals already know they hate him. So, basically, he's not at all like Miers. At least, that seems to be the buzz around the blogosphere. I don't think I had ever heard Alito's name before this nomination so I can speak with absolutely no authority regarding his history or his qualifications. For more info, take a look at Pejman's overview or at SCOTUSblog's roundup of blogosphere reactions.

My initial reaction: Alito seems more obviously qualified than Miers but may be less confirmable because he actually has a paper-trail for liberals to attack. I only hope that the debate is a broad discussion of the role of the judiciary in our federal system of government instead of a narrow argument about Alito's views on Roe v. Wade. Given that the mainstream media has a fixation on abortion, I'm pessimistic that my wish will be granted.

oh, the tangled webs we weave

There's much more to the Valerie Plame story than who is getting indicted (at this point, it appears that Libby wins the prize). Lost in the noise about the Plame investigation is this news about the source of the forged yellowcake documents.

If you have no clue what I'm talking about, go take a gander at this summary. Here's the short version:

The term yellowcake forgery refers to falsified documents which appeared to depict an attempt by Iraq's Saddam Hussein regime to purchase yellowcake uranium from the country of Niger, in defiance of United Nations sanctions.

The reference in U.S. President George W. Bush's 2003 State of the Union speech (in which he made a case for war with Iraq) Of Saddam seeking uranium from Africa was thought by many to be a reference to these documents. Retired ambassador Joseph C. Wilson wrote a critical op-ed in The New York Times in which he explained the nature of the documents, and the government's prior knowledge of their unreliability for use in a case for war. Days later, in a column by Robert Novak, the covert identity of Wilson's wife, CIA agent Valerie Plame was exposed. The ensuing Plame affair" (aka. "CIA leak scandal") is an ongoing political scandal and criminal investigation into the source of the leak which "outed" Plame.

This whole mess got started when the CIA set out to confirm the reliability of these documents which claimed Iraq was seeking to purchase uranium from Niger. We have long known that they were forgeries, but who forged them?

From Austin Bay, the answer to that question is the big news that nobody in the media is paying attention to--from the Daily Telegraph:

The Italian businessman at the centre of a furious row between France and Italy over whose intelligence service was to blame for bogus documents suggesting Saddam Hussein was seeking to buy material for nuclear bombs has admitted that he was in the pay of France.

Italian diplomats have claimed that, by disseminating bogus documents stating that Iraq was trying to buy low-grade “yellowcake” uranium from Niger, France was trying to “set up” Britain and America in the hope that when the mistake was revealed it would undermine the case for war, which it wanted to prevent.

Why would France want to stop the war? Maybe because Saddam was such a nice guy. Or perhaps their motivation was a bit more crass:

More than 4,500 companies took part in the United Nations oil-for-food program and more than half of them paid illegal surcharges and kickbacks to Saddam Hussein, according to the independent committee investigating the program.

The country with the most companies involved in the program was Russia, followed by France, the committee says in a report to be released Thursday.

The findings are in the committee's fifth and final report, a document of more than 500 pages that will detail how outside companies from more than 60 countries were able to evade United Nations controls and make money for themselves as well as for the Hussein government.

Was France just trying to protect their own business interests in Iraq?

UPDATE:
It appears that my conspiracy theories are bogus:

The FBI has determined that financial gain, not an effort to influence U.S. policy, was behind the forged documents that the Bush administration used to bolster its prewar claim that Iraq sought uranium ore in Niger.

The FBI had refused comment on the matter until Italian news sources reported this week that FBI Director Robert Mueller sent the Italian government a letter in July with the results of the bureau's two-year investigation.

The investigation "confirmed the documents to be fraudulent and concluded they were more likely part of a criminal scheme for financial gain," FBI spokesman John Miller said Friday, describing the contents of the letter.

Miller did not say what led the FBI to its conclusion or identify the perpetrators of the hoax.

So, France wasn't behind the fraudulent documents. My bad.

so long, and thanks for all the fish

Miers has thrown in the towel and withdrawn her name from consideration as a Supreme Court justice. Some random thoughts:

• Good for her--the hearings were going to be ugly for the GOP.
• I wonder if Bush is still determined to nominate a woman? If so, the list may be short.
• Having survived the Miers experiment, it will be funny if Bush nominates Alberto Gonzales.
• Kind of like it would be funny to survive a bout with cancer, then get run over by a truck.
• On second thought, that's not very funny.

I like scalia

Antonin Scalia is so smart and so fun to read. I followed Volokh's link to this book review by Scalia and was not disappointed. One of my favorite lines:

Smith confuses, it seems to me, the question whether words convey a concept from one intelligent mind to another (communication) with the question whether words produce a concept in the person who reads or hears them (meaning). The bridegroom who says “I do,” intending by that expression to mean “I do not,” has not succeeded in communicating his intent; but what he has said unquestionably means that he consents to marriage.

This is one reason that I dislike the phrase "original intent". I don't so much care what the drafters of a law thought they were saying, but I do care what the understood meaning of the law was at the time of its drafting.

the real world

The real world has imposed some limitations on my blogging. No, not that real world, but this real world. Regularly scheduled blogging will resume at some point.

Q.E.D. (part 1)

Onion rings in the abstract are more delectable than onion rings in the mouth.

debating originalism in constitutional interpretation

Here's the kind of debate that I really wanted to see coming as a result of Bush's Supreme Court nominations: Cass Sunstein and Randy Barnett discuss constitutional interpretation. Unfortunately, we get debates about cronyism, religious views, gender and the need for judicial experience. Read the whole thing. Then read Restoring The Lost Constitution, by Barnett.

train wreck

The Miers nomination has certainly turned into a political train wreck for the GOP. Erick Erickson has posted the latest rumors about the causes of the fiasco:

I was going to write a juicy piece with lots of good quotes from White House sources, but in the past twenty-four hours I've gotten calls, emails, and instant messages requesting that I please not quote anyone. What's going on?

Here's the story I was going to write: I was going to write about the flurry of White House conservative staffers contacting me to vent. Slowly, but surely, momentum among the conservative staffers shifted from tight lipped Bushies to angry activists and then abruptly stopped. A couple worked under Miers and said they loved her, but could not fathom that she would be considered for the post, given that no one really knows where she stands except potentially on affirmative action and that would be bad for the conservative position.

What all the callers wanted to say, but then decided they should not say, or at least not be quoted saying, was that Andy Card really and truly was the person pushing Miers. The general theme was that Tim Flanigan had moved on in 2002, Gonzales had moved to Justice taking well trained staff with him, and Miers was left to fill a definite void with some lesser experienced staff.

Those who mentioned Roberts praised Miers handling of Roberts and commented that Miers went to bat for Roberts right out of the gate with a game plan in place, but no one was there to do the same for Miers. An independent source tells me that Miers begged for more time, but the White House demanded that Monday be the day. Interestingly, there is a credible rumor out there that the White House insisted on Monday because the intended nominee to be announced backed out over the weekend. Yes, it is a very credible rumor.

Part of the Miers pick seems to be a confused process and a rush job, which adds credibility to the rumor of a last minute back out. But, the White House conservatives and outside parties all indicate that they were ignored. They were heard but not listened to. Several who talked to RedState insist that warning flags were given to Andrew Card and others, but that those warning were ignored and Card pushed the issue all the way to the President's desk.

One outside source who has a good ear to the ground tells me that the White House most likely has nothing else to offer in Miers' favor, but will just recycle previous sound bites. This same source bolsters what a White House staffer tells me, in that the vetting process was so poorly done that much of what is now coming out about Miers was unknown before her nomination.

The remaining questions are whether Republican Senators will force the White House to withdraw the Miers nomination and, if so, will the replacement be less favorable to conservatives.

How much of this is accurate? Beats me. I would very much like to know two things: 1) what process did the White House follow to evaluate Miers as a potential nominee and 2) was Miers a last-minute replacement pick after another candidate declined the nomination?

If Miers wasn't evaluated in the same manner as the other nominees or if the evaluation process was cut short to meet an artificial deadline, Bush either needs to get some better advisers or he needs to start listening to them--this kind of sloppiness isn't acceptable. Another possibility is that Miers was well vetted and Bush knew how intense the opposition to Miers would be, but didn't care. He may be stubborn, but this would a kind of transcendent stubborness that passes into the realms of foolishness. Either way, Bush looks really bad as a result of this.

On the other hand, maybe this is just much ado about nothing, and Miers will turn out to be excellent.

we have found a witch. may we burn her?

Why is America so litigious these days? Jane Galt says it's because we're rich. It's an answer I wouldn't have considered, but perhaps she's right:

So why are lawsuits increasing? I'd plump for several factors: an increasing number of lawyers; the rise of class action lawsuits in the 1970's, which provided large trial firms war chests to elect legislators friendly to their cause; people using an increasing number of products whose innards are mysterious to them; better communications, which make it easier for people to realize they have an actionable case, and easier for lawyers to collect clients; a cultural shift which has convinced parents that if their baby drowns in a bucket, the bucket manufacturer is somehow at fault for failing to warn them that this could happen.

But the single biggest factor, I'd claim, is that we're getting richer. That means that we drive more miles and consume more goods, which of course increases the chances of one of our toys somehow going wrong. It also gives us more income out of which to pay for lawyers, and makes more companies a more attractive target for lawsuits. If lawsuits are the price we pay for getting richer, that's a bargain I'll take.

I still say we should burn the lawyers. Er... the witches.

real character

I wonder how many people really remember what happened in Tiananmen Square, Beijing back in 1989? The brutal manner in which the Chinese government dealt with its critics makes a mockery of the idea that China is a "People's Republic". The bilious lefties in this country who love to scream about the crimes of Chimpy McBushitler don't have any idea what it really means to "speak truth to power".

Oxblog reminded me of this example of true courage. After seeing soldiers, policemen, armored personnel carriers (APCs) and tanks massacre his fellow protesters, one man stepped in front of a column of tanks, stared them down and brought them to a halt. We don't know the identity of the man that stopped the tanks, nor do we know his fate. One thing I do know--I want to display the same kind of courage the next time I have to choose between confronting evil or stepping aside to protect my own interests.

term limits for the supreme court

Peggy Noonan is suggesting that we impose term limits on our Supreme Court justices:

Supreme Court justices are more powerful than ever while who and what they are is more mysterious than ever. We have a two part problem. The first is that no one knows what they think until they're there. The other is that they're there forever.

I find myself lately not passionately supporting or opposing any particular nominee. But I'd give a great deal to see Supreme Court justices term-limited. They should be picked not for life but for a specific term of specific length, and then be released back into the community. This would involve amending the Constitution. Why not? We'd amend it to ban flag-burning, even though a fool burning a flag can't possibly harm our country. But a Kelo decision and a court unrebuked for it can really tear the fabric of a nation.

I understand the desire to reign in a Court that sometimes makes unpopular decisions. I think it's a misguided desire, but it's nonetheless understandable. What I don't understand is the assertion that limiting justices to a single term of fixed length would somehow motivate the justices to clean up their act. What new incentives would term limits provide to justices? Under the current system, a justice will lose her position when she's dead, regardless of her performance on the bench. Under Noonan's proposed system, a justice will lose her proposed position when her term expires, regardless of her performance on the bench. This changes the justice's incentives not one whit. Am I missing something?

a house divided

Ed Morrissey on the possibility of a Republican revolt against Miers:

Bush might wind up having to rely on Democrats to save Miers on the basis of being the friendliest candidate that they're likely to see. Even John Thune, who just got to keep his air force base, expressed his dismay with Miers' selection, although he issued a caveat against an intraparty war he sees coming.

Thune, of course, hits the nail on the head. It's a war we can't afford at this time, which is one of the reasons why I have decided not to oppose Miers' confirmation.

I disagree. Better to stand on principle and suffer through the fight than prove to the world that the GOP is only interested in temporary political advantage.

Iraq and the war on terror

CNN has already begun spinning the theme of Bush's speech tomorrow:

Bush has tried repeatedly to link Iraq to the anti-terror campaign launched after al Qaeda's September 11, 2001, attacks on New York and Washington.

Though the 9/11 commission found no operational relationship between al Qaeda and Iraq before the 2003 invasion that toppled Iraqi leader Saddam Hussein, critics say the insurgency against U.S. troops that followed Saddam's overthrow has drawn terrorists into Iraq to fight Americans.

Once again we find the popular press suggesting that the presence of terrorists in Iraq now is really just a response to Bush's aggression and that our invasion of Iraq served no real purpose in battling terror.

Critics of the war in Iraq ought to reconsider the strategic options we faced after 9/11 and try to understand how the invasion of Iraq fits into that menu of strategic choices. To illustrate the basic strategies we had available to us, let's consider the current operations that are ongoing inside of Iraq. The fight against the insurgency can be broken up into three distinct prongs:

1. Defensive Operations - The goal of defensive operations is simple--to protect our troops and the innocent populace from attack. Whether it's a roadblock checkpoint on a highway leading into Baghdad or a guard stationed on an oil terminal, our defensive operations seek to identify and defeat whatever attacks our enemies choose to launch. The problem with these defensive operations is twofold. First, we simply can not be strong everywhere. Secondly, defensive operations allow the enemy to choose the time and place of battle. Every defensive posture has a weakness that the enemy can exploit and our enemies are smart enough to attack our most vulnerable positions.


2. Offensive Operations - The goal of offensive operations is equally simple--to seek out and destroy the enemy on our terms. At the small end we are using intelligence from interrogations to identify and capture key terrorist leaders in targeted police raids. At the big end we are sending thousands of U.S. and Iraqi troops to systematically drive terrorists out of their strongholds such as Falluja. In either case, we seek to take the terrorists out of action before they can strike.


3. Social/Political Operations - We can effectively win both defensive and offensive battles for years to come, but these successes will be for naught if the country of Iraq never matures socially and politically. Consequently, the most important task we face is the building up of a government and a society that is committed to peace and cooperation, both internally and externally. The drafting of a new constitution, the completion of successful elections, the growth of a thriving economy and the prevention of racial or religious civil war are all key components of our social/political operations. If these are successful, the terrorists can never win. If these fail, we're in for a long and painful ride.

Similarly, in the global war on terror we had several strategic options available to us after 9/11:

1. Defensive Operations - Clearly, we had to take steps to shore up transportation security and immigration policy. But defensive action will always have the same flaws, allowing the enemy time to pick away at our weak points and avoid our strongest defenses. We took these steps, but they were not enough.


2. Offensive Operations - Again, we had to aggressively pursue Bin Laden and his organization and we did so by striking at his home base in Afghanistan. His organization suffered massive casualties as a result, but the terrain and the presence of a supportive Islamist populations in Afghanistan and Pakistan made it highly unlikely that we would ever be able to get them all (not to mention the probablility that Iran has offered shelter to much of al Qaeda's leadership).
   
3. Social/Political Operations - In the same way that we can't win the war in Iraq if we don't prompt significant changes in that country's societal institutions, I believe we will never win the war on terror if we can't force large-scale cultural changes throughout the Middle East. Prior to the invasion of Iraq, even our closest allies in the region were unelected monarchs who had to balance their pro-Western inclinations against the fear of populations that were culturally and religiously hostile to the West. With politicians, state run media and preachers all proclaiming the evils of the West (how else to explain the fact that little Israel could thrive economically in comparison to her Arab and Muslim neighbors?), terrorism seems to be a natural by-product of these broken societies. Only by altering that social landscape could we hope to eliminate the threat of terrorism in the long run.

So how does Iraq fit into the war on terror? By smashing Saddam's corrupt government and building a stable liberal democracy in the heart of the Middle East, we began a process that can change the entire social landscape of the region. Libya has given up WMD programs, Syria has backed out of Lebanon, Kuwaiti women are voting and nations like Egypt and Saudi Arabia are at least giving lip service to the idea of allowing real elections in the future. The Middle East is changing in ways that we couldn't have dared to hope for immediately after 9/11. The invasion of Iraq isn't just part of the war on terror--it may well be the most critical part of that war.

the military in times of crisis

Tyler Cowen writes here about a trial balloon floated recently by President Bush: perhaps the military should have a stronger role in dealing with large-scale disasters. From the New York Times:

President Bush said today that he was working to prepare the United States for a possibly deadly outbreak of avian flu. He said he had weighed whether to quarantine parts of the country and also whether to employ the military for the difficult task of enforcing such a quarantine.

"It's one thing to shut down your airplanes, it's another thing to prevent people from coming in to get exposed to the avian flu," he said. Doing so, Mr. Bush said, might even involve using "a military that's able to plan and move."

The president had already raised, in the wake of Hurricanes Katrina and Rita, the delicate question of giving the military a larger role in responding to domestic disasters. His comment today appeared to presage a concerted push to change laws that limit military activities in domestic affairs.

The initial media coverage of Katrina painted a uniformly negative picture of FEMA, provoking responses that showed serious breakdowns in leadership at the state and local level. The only institution that came out of Katrina with its reputation enhanced was the American military. Bush may be able to score some political points by pushing some responsibility for disaster recovery management onto the military, but I believe this is a bad idea for three reasons:

1. Practically speaking, our military's primary role is to defend our interests from external military threats. Our military is engaged in a global war against terror, deeply committed to nation building efforts in Iraq and Afghanistan, poised to deal with rogue states in the Middle East such as Syria and Iran and committed to the defense of allies who are threatened by the potential belligerence of nations like China and North Korea--we are already stretching our military resources thin. We still maintain the capacity to stretch further and fight another war, but we are increasingly running up against smaller margins for error. Why push our military into a role that is only marginally connected to its primary purpose and is likely to further deplete its capacity to respond to external threats?


2. Not only would such a decision have an effect on our military, it would also have an impact on those state and local officials who are best situated to understand the unique risks and requirements facing their communities. If the military is tasked with taking control during times of crisis, local governments will have reduced incentives to plan for disasters and will allocate resources towards projects with more immediate political payback. Overall quality of disaster preparation could easily be lower if local officials begin to assume that the military alone is capable of handling crisis situations.


3. Philosphically speaking, this proposal takes us one more step down the road away from a truly federalist system. Our founding fathers were deeply concerned about the potential for abuse by a domineering central government and implemented a system which strictly limited the powers of the national government. Ever since, these limits have been eroding, with the Civil War being only the bloodiest instance in which our Federal government has wrested power from the states. In light of this steady accrual of power, it may seem a small thing to remove the restrictions that exist on our military as it operates within our own borders. However, the fact that we enjoy a military that does not get involved in domestic affairs is probably one of the key differences between our history of political stability and the political instability seen in so many other countries. Assuming 100 years of prominent domestic involvement by our military, could we have gotten through the 2000 election stalemate without the military getting involved? Perhaps, even probably, we would have resolved the situation in much the same manner that we did. But why risk it? Why build up a culture in our military that supports the idea that military leaders should step in to resolve problems that our political leaders have lost control of?

Could the response to Katrina have been more prompt and effective at all levels of government? Perhaps, but I don't think that we should jump at the military as a quick fix for what went wrong.

Anyway, so what went wrong with FEMA's response? Not nearly as much as you might think. Much of the media slammed FEMA for not having troops into New Orleans immediately to begin rescue operations, but those criticisms over look the fact that the logistics that are involved in this scale of operation are staggering.

a poke in the eye

GWB has nominated Harriet Miers to fill O'Conner's seat on the Supreme Court. Her bio seems to reveal that she's very bright and very hard working. Unfortunately, all of that work has been as a private sector or government lawyer, with absolutely no judicial history. Consequently, it's impossible to tell what kind of philophical approach she will apply to Constitutional interpretation. In addition to her non-existant paper trail, she has donated money to Al Gore and the DNC during past election cycles. Perhaps she was simply acting in the best interest of her law firm, covering all the bases with her contributions. Perhaps her personal political inclinations aren't consistently conservative. As of right now, we're left with little more than GWB's personal recommendation to go on. I'd like something a little bit more substancial before I support her nomination to the Court.

I wasn't terribly pleased by the selection of Roberts, because I doubt that he is a committed originalist in interpretting the Constitution. He seemed to be more in the mold of a Rehnquist than a Thomas or a Scalia. On the other hand, he did at least seem to be consistently conservative in his political outlook. Miers doesn't yet get this benefit of the doubt since we know neither her approach to constitutional interpretation nor her general political inclinations. I think she's more likely to turn into another O'Conner. If that turns out ot be the case, GWB has thrown away two chances to improve the Supreme Court, and two chances to give the country an opportunity to seriously debate the principles of Constitutional interpretation.

Miers may be better than a poke in the eye with a sharp stick, but not by much.

UPDATE: After implying that Bush is making a mistake here, it's only fair to provide a link to someone who has evidence to the contrary:

• Part 1
  
• Part 2
  
• Part 3
  
• Part 4
  
• Part 5
  

There are two senarios in which this nomination may be a very good move for Bush:

1. Miers has agreed to be a sacrificial lamb--she bears the brunt of attacks by liberal Democrats, her nomination is withdrawn, and a more conservative/better credentialed nominee faces less of a fight because of favorable comparisons to Miers.
   
2. Miers is every bit the conservative originalist that I want to see on the Court, but Democrats think they're going to get another Souter so they let her through without much of a fight.
   

Option 1 seems rather nonsensical. Option 2 seems too good to be true. We'll see, I guess.