Thursday, September 29, 2005

Judith Miller Agrees to Testify

According to this report, Judith Miller was released from jail tonight after agreeing to testify in Special Counsel Patrick Fitzgerald's probe of the leak of Valerie Plame's identity. Other reports, say that it is unclear that she has agreed to testify.

I'm not convinced under the statute that a crime was ever committed, since many people, more connected to the DC scene than I, seem to have known before Novak's column who she was and where she worked. Furthermore, I don't see any reason why Miller should not have to testify. Her source, in this case, was not a whistleblower, but a potential lawbreaker. If I witness a crime or someone gives me classified information, not in an attempt to correct some grave injustice, but for their own purposes, I see no reason that communication or information should be protected.

Others talking: The English Guy and Kevin Drum.

UPDATE: Orin Kerr thinks something smells funny about the deal and asks why Miller's attorney didn't clear up any question of Libby's release before she spent three months in jail.

Hartford Courant Funny Online

This isn't political, but I thought it was funny and represents the perils of content-sensitive advertising. Not sure how McDonald's feels about their ad here.

See the story and ad here.

Wednesday, September 28, 2005

Kurtz Calls Media on Protest Whitewash

Howard Kurtz of The Washington Post takes the media to task for failing to report fully (or truthfully) about the backers of last weekend's anti-war (or anti-American) protests in Washington, DC and elsewhere...

The media have done a poor job of describing who was behind Saturday's big antiwar demo in D.C. This is in no way to cast aspersions on the tens of thousands of ordinary folks who showed up to demonstrate their opposition to U.S. policy in Iraq. But many journalists shortchanged their readers and viewers in not saying more about the radical group ANSWER.

The Washington Post offered this brief description of ANSWER and United for Peace and Justice: "Both groups have sponsored other major demonstrations against the war in Iraq but also protested U.S. foreign policy in places ranging from Haiti to the Gaza Strip."

I wonder if the media would have resorted to such shorthand in covering a group as far to the right as ANSWER is to the left.

I couldn't agree more. The media in their excitement over what they wanted to portray as a massive outpouring of support for an anti-war movement failed to report on what many of the protestors actually seemed to be supporting. That 9/11 was an inside job (see here); socialist revolution and an overthrow of capitalism (see here); republicans stole the elections (see here); and anarchy (see here). More here and here. Seems like this is something all of the mainstream media's readers might want to know about.

Monday, September 26, 2005

I think this puts me in the center...

Olympia Snowe (R-ME) 60%
Gordon Smith (R-OR) 58%
Jim Jeffords (I-VT) 58%
Susan Collins (R-ME) 55%
Pete Dominici (R-NM) 55%
Chuck Grassley (R-IA) 55%
Arlen Specter (R-PA) 55%
See here.

Presidential Candidates
Dick Cheney (R) 55%
Michael Badnarick (L) 43%
Peter Camejo (Ref) 40%
George W. Bush (R) 40%
See here.

Presidential Primaries
Joe Lieberman (D) 50%
Gary Nolan (L) 48%
Bob Graham (D) 43%
Wesley Clark (D) 40%
See here.

Who's further to the right?

Finally, an objective way to settle whether Pat or Mike is this blog's right-wing nut job (assuming that a person's political philosophy can be distilled into 20 or questions). I'm betting on Pat.

Saturday, September 24, 2005

The Post Stands Up to the Left

The Post seems to be working hard to redeem itself (at least in my eyes). In what I'm sure will bring fiery condemnation from the left, today's Post has an editorial praising Senators Leahy, Kohl, and Feingold for their votes in support of John Roberts' nomination. They criticize liberal groups for refusing to recognize Roberts as the highly qualified candidate that he is. Furthermore, they criticize Ralph Neas of People for the American Way for claiming that Leahy is responsible for Roberts' future decision on the court. They recognize that only few Democrats will have any moral authority to demand Republican support for well qualified liberal nominees in the future (a la Breyer and Ginsburg). The Post calls the action of Democrats "a disturbing departure from longtime Senate practice." (Despite what our friend Rob thinks, see here.)

The Democrats, in my opinion, seem not to realize that they have put themselves in a losing position. Voting against a candidate as highly qualified as Roberts raises serious questions about their willingness to allow a Republican president to nominate judges that he chooses. The Constitution mandates and the Federalist papers support (see here and here) that this choice rests exclusively with the president. If the president is stymied from nominating anyone who he believes will decide cases in a manner consistent with his or her Constitutional interpretation, has not the minority party (or even majority party) stripped the president of the duty given directly to him by the Constitution?

ConfirmThem points out there was no hand-wringing when Ginsburg was appointed about her moving the court to the left.

Katko v. Briney Comes to Texas

A couple of weeks back in our torts class, we discussed Katko v. Briney. 183 N.W.2d 657, 1971. An Iowa case where a homeowner was charged for setting a springloaded gun to fire upon an intruder in his vacant boarded up farmhouse. This led to a vigorous debate among your three co-bloggers about the right to use deadly force in defense of property. I, being from Texas, pointed out the rather generous Texas statute that allows for deadly force to recover property being taken from you. My dear liberal friend, Rob, of course, was appalled, Mr. Rush agreed with me. In Texas, the result of Katko likely would have been the same, as Texas does not permit the use of "devices" to defend property that may reasonably cause death. Mr. Rush and I argued that it was a powerful deterrent to property crime. Rob argued that the value of life over property was sacrosanct.

Now, a debate rages over at The Volokh Conspiracy in the comments to a post from Prof. Volokh in which he says looters in Houston would be well-served to remember Texas' liberal attitudes (or conservative, depending on your prospective I guess) toward protection of property. I recommend you read the comments for a view of how polarizing this issue is. I, for one, come down firmly on the side of deterrence.

Friday, September 23, 2005

Dishonesty and Conspiracy

The evidence takes us to negligence. I question the fairness of anything beyond that. Consider, if dishonesty requires only proof of a mistake and and a theory about nefarious intentions, if Mike is factually wrong (e.g., if an anonymous caller tipped off the writer to the woman and he, in his blind enthusiasim, wrote the story), and I theorize that Mike's intention is to discredit the Post (of course, I know that's not really true), Mike, by his criteria, would be "dishonest." Far too far.

A practical question: why would a journalist risk his or her career over a lie that could easily be discovered by googling? That, to me, makes negligence more probable.

Perhaps The Post called EVERY woman in Kansas?

Rob questioned whether I had any evidence that The Post knew she was not a "novice." No, I don't... fair enough. But, I would wager that someone put The Post in contact with a woman in Kansas who was organizing a bus (quite industrious, for a novice, I'd say) to Washington to protest. I'd imagine that the someone was likely someone from a large group sponsoring the protest. I don't imagine The Post called random women from Kansas to see if they were coming to Washington to protest. And, I think The Post should be capable of performing even a basic Google search to find out they are spreading untruths--especially if they were connected to her through a protest group. That being said, I don't think it's unreasonable to question whether or not they knew and disregarded the facts inconvenient to their story.

Last word (from me) on this.

Last word on this: Fed. 76 does not prevent the Senate from blocking nominees they find politically unsavory, and there is historical precedent for it. "...or from a view to popularity." Not exactly a technical bar. Again, regardless of how Hamilton, et al. thought the Senate would behave as a result, they advocated the words "advice and consent" and gave the Senate broad power, which they have, from time to time, seen fit to use to deny Supreme Court nominees.

Let's not get carried away.

Mike, a/k/a Conspiracy Elephant wrote: "Or, maybe they did and just don't care."

Evidence? It would be equally credible to say that maybe they did, but radio waves from nearby public radio broadcast antennas made them forget it. Better put your tin foil hat on, buddy.

The Post article does touch on an interesting point, viz., the professional protester. I've been to one protest in D.C. A friend of mine from college came to protest the invasion of Iraq, and I went with him. We took a ball and gloves and played catch, and I tried to ignore the insane rants given by the various speakers. Then it came time to march.

There were a number of professional protesters in the crowd. Maybe I should use the word "experienced" instead of "professional," since they lacked the typical characteristics one associates with a working professional, or a working person at all for that matter. Many of the marchers looked like they had been protesting since the 70s, and those who didn't looked like (1) they wish they had been, and (2) they didn't really plan on doing anything else. It was like marching with caricatures of dirty hippes. Except that they were real. And silly. And kind of repugnant. I'm pretty sure they didn't convince a single person who wasn't convinced already.

There is a place for protests. When debate fails, and it's the only way to be heard, I can understand it. Often, though, we seem to skip the debating step.

Federalist 76 Goes Further

Rob, Federalist 76 goes further. It talks about the purpose of allowing the Senate to have advice and consent power. It is true that they were written to convince others of the appropriateness of the Constitution. That doesn't mean they don't serve as a valuable primary source of information on what the framer's intent was. I think this sentence makes it clear:

It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.

I think that makes it clear, that they did not intend for the Senate to have the ability to "Bork" nominees because they disagree with their politics or not. It supports my contention that it is designed to prevent unqualified candidates and presidential cronies from getting appointments. Not to allow the Senate to reject the nominee of the popularly elected president. Yes, the Senators were also elected. But not one of them was elected nationally through the procedure outlined for the president. Furthermore, as to the margin of the last election. I have not heard one democrat who argued that Bill Clinton should have moderated his policies because he won with a smaller percentage of the popular vote than even Bush did (1992 and 1996). Yes, his margin was bigger overall, but in both cases more votes were cast against him (and for candidates to his right) than for him.

You mean they aren't always honest?

Matt Rustler, a 2003 Graduate of GMU School of Law, has googled the name of a "novice protester" from a small town in Kansas that appeared in The Post yesterday. Turns out she's not quite who she claims to be... looks like she's been a "novice" for some time and has at least a few years of protesting under her belt. Not saying she's violating any laws or rights by being out there and standing up for what she believes in, just saying maybe The Washington Post ought to do a little more research. Or, maybe they did and just don't care.

If only they'd stop making such fabulous outfits...

Should this really be a priority?

Holy Cow. Where does he find the time?

Sheesh. I'm happy if I can make one post a day, Mike. Some thoughts (briefly) on some of your posts...

Regarding your response to my post on "advice and consent": Remember that the authors of the Federalist papers were trying to persuade people of their position, including those who favored having the President appoint Justices directly. Fed. 66, in the first part, merely points out that the Senate cannot nominate a judge. Good enough. The second part of Fed. 66, and Fed. 77 prognosticate about the likelihood of the Senate not confirming a judge. They make predictions about what is probably, not statements about what is permissible. There is a difference between saying that the Senate is unlikely to block a judge because they don't like his politics and saying that they can't do it altogether. And there is historical evidence that the prediction was a bad one. Justice Kennedy was confirmed 97-0 after Bork's nomination failed.

Moving on to your later post...

Who is that straw doll dressed as Hillary, and why does everyone like to beat on it? The notion that any Democrat who doesn't vote for Roberts can't coherently support any Republican nominee seems to be going around. It's silly. What Democrats -- both Senators and the people who elect them -- wanted to hear from Roberts was that he believes women should legally be able to decide whether or not to have an abortion. That's the gorilla in the room. Democrats might have voted for a conservative nominee who opposed abortion previously, but, not surprisingly, they don't want to tip the balance. The majority of Americans are pro-choice. and the last election was close. A well qualified pro-choice Republican judicial nominee wouldn't face much opposition.

I love the idea that the thing that's preventing intelligent dialogue is the Democratic leadership. I also love the implicit corollary that the all of the positions held by Republicans are so inherently reasonable that they demand a response. I love it for its entertainment value. There are plenty of bloviating, egomaniacal, popularity craving dunderheads to go around. Let's not make them all Democrats.

Davis-Bacon: Pork for the Cutting

David Bernstein makes a compelling case that Davis-Bacon shouldn't just be suspended in the Katrina zone, but that it should be repealed altogether. I, for one, had no idea that the law was designed to prevent minority participation in government construction contracts. It seems to me, that Bernstein's evidence makes it clear that if Democrats really are the champions of minority and immigrant rights than they ought not support a law that disproportionately prevents them from securing jobs with government construction contractors. I've supported repealing Davis-Bacon for economic reasons (it drives up the cost of government contracts and increases barrier to entry for new competitors) since I worked for a pro-growth employment think tank. Bernstein makes the argument quite well in a piece that, shockingly, the New York Times declined to publish after requesting it.

Hillary Clinton Holding Down Rob

Orin Kerr questions whether any nominee by a Republican candidate would be supported under Sen. Clinton's standard. What I enjoyed most was this comment.

As a recovering Democrat, I have to say one of the more annoying side-effects of the current utter domination of the national political scene by the Republican Party is that actions by leading Democrats have become essentially entirely symbolic, devoid of any real consequences. Consequently those same leaders have largely degenerated into children, little better than blowdried news-anchors, fond of the empty gesture and high-dudgeon-mode tirade, losing completely any ability to make realistic and principled decisions. Harry Truman's shade must be weeping for what has been lost.

What a terrible shame. Somewhere out there are smart, capable, disciplined young Democrats who could provide a valuable counterpoint to the Republican party line, who could keep the national debate vigorous. But I expect they are prevented from rising to positions of leadership because of the clutter of insufferably boring and uninspired deadwood at the top -- e.g. the regrettable Senator Clinton -- which deadwood remains sadly unpruned by the fact that hysterical decisions are never punished by what would be their logical sequelae if they were other than merely symbolic.

Rob, he's looking for you!

You mean it wasn't all FEMA's fault?

After weeks of slamming FEMA, The Post has come to the realization that maybe it was the city and state that left all those school busses neatly parked (and flooded) in the now infamous photo from post-Katrina New Orleans (See here, here.):

The ability of the federal government and private charity to help is, after all, constrained by the actions of local politicians. The best national emergency plans will almost always turn out to be those that have concentrated hardest on local politicians: cooperating with them, coordinating with them, even training them if necessary. No matter what the Texas coast looks like in a few days' time, Rita's other lesson may be that all emergency preparedness, like all politics, is ultimately local.

Of course, this likely comes as no surprise to those in the blogosphere who have been saying as much for weeks. FEMA's guidelines warn local officials not to expect federal aid for 48-72 hours. Now, Texas is in the process of evacuating (what I think) is several times the population displaced by Katrina in advance of Rita. In the end, it's exactly what The Post said:

But there may be another reason the evacuation is going well: Texas is simply better prepared than was Louisiana. Its state government is richer and better-run. Its police are not so famously corrupt.

Thursday, September 22, 2005

The Historical Basis for Limiting No Votes on Nominations

Ah, Rob, but there is a historical basis for the argument. First, more recently, there are the overwhelming votes for Breyer and Ginsburg, which indicates Republicans (at least), thought it inappropriate to vote against candidates based on politics. The New York Times (link not available due to TimesSelect) got it in 1993:

While the politicians repeatedly pressed for bottom lines on particular issues like the death penalty and gay rights, Ms. Ginsburg asked to be judged as a judge, not as an advocate. Senators who could not be educated yielded anyway -- to the reality that Judge Ginsburg enjoys overwhelming Senate support.

But we can go back even further, to the Founding Fathers...

From Federalist 66:

There will, of course, be no exertion of CHOICE on the part of the Senate. They may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves CHOOSE, they can only ratify or reject the choice of the President. They might even entertain a preference to some other person, at the very moment they were assenting to the one proposed, because there might be no positive ground of opposition to him; and they could not be sure, if they withheld their assent, that the subsequent nomination would fall upon their own favorite, or upon any other person in their estimation more meritorious than the one rejected. Thus it could hardly happen, that the majority of the Senate would feel any other complacency towards the object of an appointment than such as the appearances of merit might inspire, and the proofs of the want of it destroy.

From Federalist 76:

It is also not very probable that his nomination would often be overruled. The Senate could not be tempted, by the preference they might feel to another, to reject the one proposed; because they could not assure themselves, that the person they might wish would be brought forward by a second or by any subsequent nomination. They could not even be certain, that a future nomination would present a candidate in any degree more acceptable to them; and as their dissent might cast a kind of stigma upon the individual rejected, and might have the appearance of a reflection upon the judgment of the chief magistrate, it is not likely that their sanction would often be refused, where there were not special and strong reasons for the refusal.

To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.

If they can get them to read it...

I, for one, have always found the Bible to be a difficult read. If they can teach kids to read it, I'd be impressed. We studied it twice in English classes in high school; both times as part of a unit on various creation stories. If someone picks up a moral compass along the way, it's an added benefit. Curious to see how they took the religion out of it though.

Margins matter, too.

From Mike's earlier post: The role of the Senate is to ensure that judicial nominees are not cronies who are unqualified, it is not to ensure that the nominees match their idea of correct jurisprudence.

This seems to be a widely held view, but it is one without historical or textual basis. The phrase "advice and consent" does not, in and of itself, require or restrict the Senate from considering anything in particular when voting on a judicial nominee. Disagreement about the exact role of the Senate in providing advice and giving consent began with Washington, so it would be difficult to argue that the framers -- that group of very individual men whose intent is often spoken of as if they shared a collective brain -- had a clear and definite conception of what exactly the phrase entailed. The first nominee to the Supreme Court to be rejected was not because he lacked experience as a judge or because he was a cronie of the President, but because of a political speech he gave.

That elections matter is a truism, and that the President picks and nominates judges is ensured by the constitution. Neither of those things confers on the President the right to have his nominees automatically confirmed to the bench. Some of the founders favored vesting the power to appoint in the presidency. They lost out to those (Federalists, incidentally) who favored having the Senate provide a check on presidential power.

Just as the Senate has the power to opt not to give its consent to a nominee who will not testify before it, it has the power to opt not to consent to a nominee who evades its questions. The extraordinary circumstances that would cause the necessary concensus required for that option seem unlikely to occur, but the possibility is illustrative of the latitude the Senate posesses. A Senator could vote against a nominee because he didn't like his socks, and he wouldn't violate the constitution. Those Senators are elected, too. The fact that a man won the presidency and thus gets to choose nominees to the Supreme Court doesn't negate the fact that Senators who won elections get to decide whether or not to confirm those nominees -- whether the decision is based on technical qualifications, policy, or wardrobe. The last election was close. Is it any wonder the confirmation process is intense?

Thou Shalt not Leaveth Any Child Behind

Now that we've figured out how to make sure our children are mastering the basics of math, science, and language arts, it's time to turn our attention to a really important problem.

Yale Grads Seeking Stay-At-Home Mom Status

A recent New York Times article is causing a bit of an uproar, at least with Kieran Healy. (Hat tip: Orin Kerr.) The article looks at women at Yale who are planning on dropping out of the workforce after 10 years or so to raise their kids, or at least drop out for a few years until their children are in school. Now, discounting some sampling problems and suspect questions, the survey results are nothing new. I remember reading stories over the past few years with anecdotal evidence that this was happening among those who have already completed education at elite schools. Kiernan seems to think that some sort of social bias against women is the reason women are making these choices and takes great offense that some women at lower economic scales don't get to make these same choices.

Now, of course, low-income families do not have the same options about working or not working. Often, two incomes are needed to support a family, whether one parent wants to stay home or not. What, I think, Kiernan misses is that this isn't always about the wife staying home. I for one like the idea of being able to spend lots of time at home with my kids (if and when I have them). I think there are likely a ton of men out there who would like to stay at home. At my previous job, one of our economists had been a stay at home dad for some time before starting there. He said he was amazed at the number of dads in the park during the middle of the day. Clearly, society presses men into work roles they may not truly desire in the same way it presses women into home roles. The big difference is, it has become a lot more socially acceptable for women to stay in the workforce than it has for men to drop out. I think, by far, men have far fewer options for staying at home than women do for working. I think this is an important point that Kiernan seems to dismiss altogether.

Beyond that, there is some debate about the role of child care when both parents work outside of the home. I think my girlfriend and I provide a perfect case study for that. My mom stayed at home until I was in high school. Her mom went back to work only a couple of months (or so) after she was born. She spent her childhood going to day care centers and after school programs. I spent mine with fellow school kids in my early years that my mom cared for after school. By the time I hit second grade, I just spent them with my mom (she wasn't watching other kids anymore). My mom volunteered frequently at my elementary school and even served as PTA president and on the district PTA council when I was older. Both are equally valid and responsible choices for our moms to make.

No, this wasn't because my family was wealthy--far from it. We always had food on the table, but neither of my parents finished college. My dad received his GED after he married my mom, having dropped out of school to work to support his brothers in sisters in 8th grade. He worked as a supervisor at an auto repair shop until he was disabled by a heart condition when I was in 6th grade.

We both ended up at a top-15 national university (where we met) and she went to graduate school at an Ivy League institution and is working on a second masters degree. I am currently at Mason in law school. I've run my own business in the past and now work as the top communications person at a think tank (having had the same job at a previous one). She now works for an executive agency in the federal government. We've both been highly successful so far. Clearly, the different choices our mother's made did not put us on greatly divergent life paths. What was far more important is what our mothers (and, indeed, our fathers) shared. We were both provided with ample love. We were both expected to do our best (and sometimes more). We were encouraged to work hard to get ahead. A value was placed on our academic success. Our parents were involved; they made sure we did our homework, etc.

In the end, kids can flourish from either a stay-at-home parent or one who works. It's the time and effort put into setting standards that help determine success.

Wednesday, September 21, 2005

The Post Warns Harry Reid

Surprise! The Washington Post got it right again.

Is it now okay for [Democrats] to vote against a person who--as Mr. Reid put it of Judge Roberts--is "an excellent lawyer" and a "thoughtful mainstream judge" who may make "a fine Supreme Court justice" simply because the nominee doesn't represent their ideal?

In this morning's lead editorial, The Post chastises Harry Reid for claiming that the President is entitled to little deference on judicial nominees. The Post argues that judicial nominees are entitled to a "heavy presumption of confirmation." They point out that Republicans would have been justified in blocking all 245 judges that they confirmed under Clinton had Reid's rule been applied.

This is exactly right. Elections mean something and the President picks and nominates judges in our system. The role of the Senate is to ensure that judicial nominees are not cronies who are unqualified, it is not to ensure that the nominees match their idea of correct jurisprudence.

Captain's Quarters Take: "Not to worry. Reid, Schumer, Kennedy, and Biden have done all they can to ensure a permanent minority status for Democrats that will take a generation of work to undo."

Linking Voter Registration to IDs Makes Sense

The idea is not so much to link them (although that would work too) as it is to provide a method for providing verification. Rather than simply placing a check mark next to a voter on the roll or pulling a card from a box, poll workers could scan the existing bar code or magnetic strip on the back of most state IDs and have it interface with the DMV/DPS/other agency that issues the cards. This could provide an image of the Driver's License (I know TX uses digital photos, I assume other states do as well) or at least pertinent information that would allow the poll worker to verify the person in front of them is who they say they are and that the ID is not fake. The technology for doing this is, for the most part, in place. It would add very little in additional cost and would greatly reduce the potential for fraud without unduly burdening any specific groups.

Expand? What's that?

Apologies to Mike -- I didn't expand his post on voting cards. He did indeed propose a method for avoiding charging the poor for voting. Mea culpa. Having said that...

We had some further discussion about this yesterday. I questioned why, if one already has to present ID to register to vote, and is then entered into the voting rolls and issued a voter registration card, should that person have to bring ID to the voting station? Should we do away with voter registration cards? Mike and Pat favored linking ID cards to voter rolls electronically via a bar code or magnetic strip on the back of the card. Any thoughts?

Tuesday, September 20, 2005

But, The Post went further

From my earlier post: If, as the commission on federal election reform suggested, those cards were available to voters in need of identification for free, how would that harm those who don't currently have a license?

You can't cite the fee as a problem when I have stipulated that there should be an option for a free ID. If states object to a completely free system, then maybe they could set up a two-tier system with those below a certain income qualifying for a fee waiver--similar to the LSAT, SAT, or even admissions. (California and Indiana already have similar systems in place--Indiana specifically for voting.) My point is that being required to show some documentation that established your right to vote is not too much to ask.

Why yes, yes it is.

Unless the ID card is free, it is too much to ask. After a quick search, I found non-driver ID card fees ranging from $3 (FL, but $10 to renew) to $20 (a number of jurisdictions, including DC). In some states, citizens can purchase an ID card that's good for 10 years for $35. Now really. Is $35 too much to pay to exercise your constitutional right to vote?

From Black's: poll tax. A fixed tax levied on each person within a jurisdiction. • The 24th Amendment prohibits the federal and state governments from imposing poll taxes as a condition for voting.

The term "Poll Tax" has some ugly connotations. I doubt anyone proposing that voters be required to show ID intends to prevent minorities from voting. Yet, is there any doubt that minorities would be disproportionately
effected by the proposed change?

The goal -- preventing voter fraud -- is a good one. I doubt the wisdom, however, of doing something that may be unconstitutional and, even if it isn't, can only harm race relations in this country to achieve it.

I agree with the ACLU!?!?!?

In a shocking turn, after bashing The Post, I'm going to say they got one right. The People's Republic of Montgomery County (as I love to call my home county) in Maryland apparently requires a permit for signs placed on your personal property for more than 30 days. Now, I can see their point... they don't want people putting signs and posters all over their yard and house and messing up the look of the neighborhood. At the same time though, what ever happened to free speech? Signs protesting against government action, inaction, or even personal action must be permitted in the public discourse. To require a permit with a far more arduous process than seems necessary (scale drawings of the sign, drawings showing the signs location, etc) seems to unduly restrict a resident's right to free speech. True, they do allow signs to be posted for less than 30 days without such a permit, but long tough battles can be expected when fighting for what you believe in. In this case, a $30 fee and permit application are too much of a limit on free speech in the People's Republic. I'm glad to see the ACLU on the case... I hope they win this one.

Is an ID too much to ask?

Just when I think it's come to its collective senses, The Washington Post goes and disappoints me again. I told you I don't agree with them often. The Post today comes out against proposed voting reforms that would require voters to show a government-issued photo id before voting. Apparently, the post thinks this is grossly unfair, because people would have to--gasp--prove they were eligible to vote. Now, The Post cites an impressive statistic that 12 percent of individuals do not have a driver's license. The Post says those are mostly the poor, minorities, and the elderly. I don't know how true that is--I suspect some of those people are wealthy folks living in Manhattan who get around without cars by using taxis and the subway; I'd suspect there are people like that in other cities as well. Regardles, the lack of a driver's license does not mean you do not have a government-issued id.

I know Texas and Maryland both have state-issued identification cards. They are designed specifically for people who don't drive or who can't qualify for a license because of age, disability, or some other factor. They are available now for a small fee. If, as the commission on federal election reform suggested, those cards were available to voters in need of identification for free, how would that harm those who don't currently have a license? The Post seems to think that being required to gather up some documents to prove citizenship is too arduous. I disagree. I think that voting is an important right and one that must be protected. I don't think being asked to come up with a birth certificate, social security card, or some other documents to prove your right to vote is too much to ask.

The Post says that for absentee ballots, all the commission recommends is a signature verification. Well, that's all fine and dandy for absentee ballots that must be submitted prior to election day, so that there is time to review and cross check against signatures on file. The Post seems to think this prevents fraud. Of course, it doesn't keep people from registering multiple times under different names. Nor are most election judges handwriting experts capable of detecting anything more than the most rudimentary forgery. I think The Post blew it on this one. An id is not to much as to protect this precious right.

Saturday, September 17, 2005

Dionne Lacks Understanding

In today's Washington Post, E.J. Dionne Jr. (who I almost never agree with) misses the mark again. He compains bitterly that Roberts is likely to be confirmed. He claims that Democrats and Republicans alike should vote 'no'. Of course, this is not because Roberts is unqualified or because he's going to decide cases on something other than the facts before him, the precedent behind him, and the rule of law. No, Dionne thinks that senators should vote no, because these are the things Roberts has said he will do and because Roberts has refused to sit in judgment of cases that he has not heard.

It's difficult for me to see why this might be a disqualify factor. Theoretically, aren't judges supposed to be impartial? decide cases on their merits? not reach a decision before all the evidence is in? Isn't that what we instruct juries to do everyday in courts across the country? Roberts did no more or no less than at least the last several Court nominees. He refused to answer questions that required him to commit to a decision before having heard the facts of a specific case.

As Erik Jaffe noted, the role of the judiciary is not to provide any policy solutions that people might want. It is to provide the policy positions that the Constitution and statutes provide. If they are not the ones you want, you work to change the statutes and or the Constitution. Short of that, the court provides no other remedies. Many of the senators seem to think that the Court should subscribe to the policy views that they do. That is just a misunderstanding of the role of the courts.

Friday, September 16, 2005

Washington Post editorial

Ok, I'll be the first to make a somewhat substantial post. The Washington Post had an editorial that I agreed with almost 100 percent this morning. I assure you this does not happen often.

The editorial addressed the challenges facing Merck on Vioxx jury verdicts and the jury's inability to comprehend the medical testimony. I've argued for sometime that testimony was out-pacing juries and I think it's interesting that a mainstream publication would recognize the potential problems the jury system presents in a complicated case. The Post cites a juror who said they wanted to "send a message to Merck" this is eerily similar to a juror in the Martha Stewart trial who wanted to "send a message." This is, what I find to be, a scary trend toward jurors who are deciding cases not on the basis of the facts, but on some extrajudicial sense of purpose. In this case, it appears the jury rendered a verdict in conflict with the facts (as I understand them). This is a development that undermines a prime purpose of the jury system--protecting defendants from government imposed punishments without sufficient evidence of guilt.

The editorial also suggest a payment compensation fund set up by the gov't to provide payouts to those hurt by drugs, similar to the system used for vaccines. I'm not sure that I agree that is the right way to go. I think perhaps, allow drug companies to be liable for compensatory damages makes sense. On punitive damages, I do agree with The Post. I don't see why a drug company who produces medicines under the rules established by the gov't should be punished for their actions. The Merck case may not be applicable here, because of evidence that Merck may have concealed damaging medical studies. Whatever the system decided upon, it should not delay potentially life-saving treatments anymore than absolutely necessary. It seems this is a case of damned if you do, damned if you don't. Drug companies are decried for being too slow to market with potential treatments, then hit with multi-million dollar verdicts when they bring products to market that have side-effects (including those with warning labels) that show up after several years of use.

UPDATE: David Bernstein seems to agree.

I must be the moderate...

After all, I'm in the middle (as you so graciously admit, Rob). Also, I'm guessing I may be the only one to have volunteered for candidates from both parties and at one time had a bumper sticker for candidates from two different parties on my car.

Thursday, September 15, 2005

Welcome to Mere Patriots!

Mere Patriots is blog run by three George Mason University law students with three very different political points of view. So different, in fact, that we can't even agree who the moderate is, but it's probably fair to place us in relative terms, from left to right, thus: Rob M., Mike C., Pat H.