Tuesday, January 31, 2006 

Tim Kaine's Eyebrow

Why is the left one so far up all the time? Is his eyebrow partisan?

EDIT: For the record, I can raise my right eyebrow very high.


Post-Alito: Some Thoughts

Today, I've been trying to think about the various angles of judicial appointments, post-Alito. Looking at the totality of the Supreme Court nominations under President Bush, I think that there is one very important result. The era of the stealth nominee is over. Miers went down in flames. Roberts and Alito were both confirmed. Qualifications matter. If President Bush gets another vacancy on the Court, he can nominate a highly qualified jurist and win confirmation. Alito had a judicial record that was a mile long. Both he and Roberts made statements critical of Roe. Both were Reaganites. These weren't Souters. These were established, qualified, credentialed judges with strong conservative histories. They are both Supreme Court Justices now too.

It's going to be interesting to see if the "cry wolf" effect that I've talked about really has legs. Has the rhetoric of Ted Kennedy, PFAW, and the like become nothing but background noise? I think so. The era of Borking is over. There are too many Republican Senators who understand the stakes of the fight and too many conservative groups/websites ready to respond to every attack on a nominee. The "Samuel Alito's America" routine didn't work. I don't think that a "Michael McConnell's America", a "Michael Luttig's America", or a "Karen Williams' America" speech will have any effect either. The nominee's qualifications and performance at the hearing matter a hell of a lot more than the rhetoric of the Left.

Let's assume that there are no more vacancies during the Bush presidency. The older Justices may try to hang on as long as possible (which I think is actuarially unlikely). If that happens, then the 2008 presidential election has become incredibly important for both parties. I know, it's important as is, but the next election will decide the shift of the Court for the next decade at least. Even if the rest of the Justices hang on for three more years, they won't last through 2012. The Democrats need to win the election to maintain the number of liberal votes. The Republicans need to win it to finally shift the Court conservative (not a sometimes 5 vote majority, but a solid voting group). That's the other lesson from this: elections matter.



As seen on Volokh and UTR, here is the upcoming line up of Supreme Court clerks. It's always interesting to see who the Justices pick to clerk for them. Both Scalia and Thomas have taken on a Judge Luttig clerk. Luttig's clerks are known as "Luttigators", in case you were wondering about the weird name. I consider myself fairly up on the federal judiciary lingo, but I've never heard Judge Sentelle's clerks called "Sentelle-tubbies". I think that might be an Amber term. I like it though.

As you can tell from the schools named, Supreme Court clerks usually come from the top schools. The list is: Yale (7), Harvard (7), Chicago (2), UVA (3), Columbia (2), Northwestern (1), Stanford (1), NYU (1), Georgia (1). I'm not jealous. Really. Not at all.

Justice Souter hasn't hired any clerks yet. Amber says that he's interviewing in a little over a month from now. Maybe he'll retire instead. He does hate living in Washington DC. Maybe he's going to bow out now. Maybe he's going to stay on the Court for 15 more years to infuriate me. It could go either way.


E. Harold Hallows Distinguished Lecture

In my e-mail...
You are invited to attend the
10th Annual E. Harold Hallows Distinguished Lecture

Reflections on the Wisconsin Supreme Court
by Judge Diane S. Sykes

March 7, 2006
5:00 p.m.
Helfaer Theatre, Marquette Campus
525 N. 13th Street
I have already reserved my spot. Judge Sykes served on the WI State Supreme Court and is currently on the 7th Circuit Court of Appeals. She's been talked about as a potential Supreme Court Justice in the event of another vacancy. She's giving hope to the rest of us Marquette Law School students/alums.


Hey, Senator Kennedy

Sit and spin.

The previous post is the second in the "Hey (insert name of blowhard Democratic Senator) Sit and spin" series. I hope to make at least one more of these.

EDIT: From the AP...
The former U.S. appeals court judge will quickly be sworn in at the Supreme Court before his expected appearance at Bush's annual State of the Union speech Tuesday evening with the White House's other new Supreme Court judge, Chief Justice John Roberts. Alito will be ceremonially sworn in a second time at a White House East Room appearance on Wednesday.
That's excellent.

Monday, January 30, 2006 

Ted Kennedy Losing His F'ing Mind

Wow. This is... wow.

Apparently Judge Alito doesn't care about women, children, the working class, or the disabled. Okay, Kayne Kennedy.

He also doesn't understand the "progress" that the country has made. I love seeing this man of privilege, who was born into wealth, berate the son of an immigrant who worked his way to the top of the legal field.

Kennedy also thinks that we haven't spent enough time discussing this nominee in front of the American people. Judge Alito was nominated in late October. It is late January. No Supreme Court nominee in modern history (probably not ever) has taken this long to confirm.

Judge Alito is "the wrong judge at the wrong time at the wrong court." So was Mary Jo Kopechne the wrong woman in the wrong car with the wrong driver?



Filibuster fails, cloture vote passes overwhelmingly.

EDIT: Quin from Confirm Them is referring to it as the "Switzibuster". I don't know if this is a Quin original, but I'm going to start using it.

EDIT 2: Prof Althouse has a reaction from the Daily Kos folks...
WTF?! I was expecting a close call. Not a mere 25. What happened?

i'm pissed. ...everyone of those dems who voted for cloture should be brought down
Yes, take those rational people down. Replace them with a fleet of Ted Kennedys. Here's the roll call vote on cloture.


Cloture Watch

I'm going to be in class when the cloture vote happens, so I'm not going to be able to watch it on the C-SPAN feed. We're at 57-35 (53 Republicans and 4 Democrats) in favor of Alito. I still don't think that Alito is going to break 60 votes. Senator Chafee is a "no" (surprise, surprise) but he will vote for cloture. I'm looking forward to seeing this mess come to an end...

EDIT: Senator Lautenberg of New Jersey is voting no. His remarks are heavy on the Alito isn't O'Connor garbage. I would like someone to address the shift from O'Connor to Alito as compared to the shift from White to Ginsburg.

He's also saying that Alito doesn't side with the little guy enough. I am so sick of this stupid statement.

"Roe is settled law. You don't have to go to law school to know that." Then, "I'm not a lawyer." That's obvious.

As a side note, aren't senators supposed to be good orators? Or even good at reading a speech?

EDIT 2: Lautenberg says that this isn't about if Alito is right for the Court. It's if Alito is right for that seat. It's Justice O'Connor's seat. That's a load of crap. It's not hers. It's not Potter Stewart's. It's not Harold Burton's. There is no ideological marker on those chairs. And now Menendez is up to follow Lautenberg to vote no...

EDIT HATCH: Senator Hatch discussing the views of the Alito opponents..."Stare decisis for me, not thee." That's catchy enough to survive for a while.

EDIT LURCH: John Kerry is addicted to the sound of his own voice. "This nominee is an extraordinary circumstance." You lost the election, man. Get over it.

Sunday, January 29, 2006 

I Was Going to Go to Vegas This Weekend...

...I'm sorry that I didn't. It looks like I missed a good time. My sister is there right now (hopefully not in a holding cell), so I hope to hear some more details about this. I have a burning urge to play blackjack now...


An Odd Filibuster

From the AP...
To more effectively oppose Supreme Court nominees in the future, Democrats need to convince the public "their values are at stake" rather than use stalling tactics to try to thwart the president, said a senator who opposes Samuel Alito's confirmation.
This statement is from Senator Obama. The article continues...
Sen. Joseph Biden, D-Del., said he, too, would support the filibuster attempt but agreed that it was not particularly wise.

"I think a filibuster make sense when you have a prospect of actually succeeding," Biden said on CNN's "Late Edition." "I will vote one time to say to continue the debate. but the truth of the matter" is that Alito will be confirmed, he said.
This is so weird. We've got senators trying to take both sides. I'm guessing by that "too" and other hearsay evidence that Obama is reluctantly going to support the filibuster (it doesn't say so in the article). Senators are saying that this filibuster is stupid, a waste of time, and doomed to fail, yet they are going to vote against cloture anyway.

Does this really score points with their base? Are Democratic voters impressed by this? I don't see why they should be impressed. It's a free shot, not a brave stand. There's no real risk in this. The only risk would be if they actually got the votes to extend debate, and Frist invoked the rule change.

The AP also notes the following...
Alito's supporters must produce 60 votes to cut off a filibuster; an Associated Press tally shows at least 62.

The AP tally also shows that at least 53 Republicans and three Democrats intend to vote to confirm Alito; that is well over the required majority.
This whole thing will be wrapped up by Tuesday. I hope Justice Alito makes an appearance at the State of the Union.

Saturday, January 28, 2006 

Test Results

Last May, I took this test. It said that I fell into the "Enterpriser" group. Here is the post that explains it all. I just took the test again, and I got Enterpriser again. I'm going to go through it all and discuss the results in bold...

Based on your answers to the questionnaire, you most closely resemble survey respondents within the Enterpriser typology group. This does not mean that you necessarily fit every group characteristic or agree with the group on all issues.

Enterprisers represent 9 percent of the American public, and 10 percent of registered voters.

Basic Description
As in previous studies conducted in 1987, 1994 and 1999, this extremely partisan Republican group'’s politics are driven by a belief in the free enterprise system (Yes) and social values that reflect a conservative agenda (Personally, I don't give a damn what you do with your personal life. It's none of my business unless you are infringing on the rights of others). Enterprisers are also the strongest backers of an assertive foreign policy, which includes nearly unanimous support for the war in Iraq and strong support for such anti-terrorism efforts as the Patriot Act. (I used to be a strong Buchanan-like non-interventionist. I was a supporter of George Washington's farewell address, no entangling alliances and such. I think 9/11 changed that for me. The modern world is too small. The U.S. is no longer protected by the oceans. Isolationism is a relic of the past).

Defining Values
Assertive on foreign policy and patriotic (Pretty much); anti-regulation and pro-business (Yup); very little support for government help to the poor (Social engineering doesn't work); strong belief that individuals are responsible for their own well being (Yeah). Conservative on social issues such as gay marriage (Eh, my views on marriage are pretty weird actually...), but not much more religious than the nation as a whole (I'm not very religious). Very satisfied with personal financial situation (I'm not starving).

Who They Are
Predominantly white (91%) (Yes), male (76%) (Last time I checked) and financially well-off (62% have household incomes of at least $50,000, compared with 40% nationwide) (Again, not starving). Nearly half (46%) have a college degree (Yes, I do have a degree), and 77% are married (Haha, not married. Not even close...). Nearly a quarter (23%) are themselves military veterans (Not in the military, but considering it). Only 10% are under age 30 (I'm 24, so I guess I'm in that 10%).

Lifestyle Notes
59% report having a gun in their homes (There are guns in this house. Multiple guns); 53% trade stocks and bonds in the stock market (I own stocks), and 30% are small business owners (I've worked for a small business for many years) - all of which are the highest percentages among typology groups. 48% attend church weekly (Nope); 36% attend bible study or prayer group meetings (Nope).

2004 Election
Bush 92%, Kerry 1%. Bush's most reliable supporters (just 4% of Enterprisers did not vote) (I voted for Bush in 2000 and 2004 and I didn't have to think twice about it).

Party ID
81% Republican, 18% Independent/No Preference, 1% Democrat (98% Rep/LeanRep) (I vote for more Republicans than any other party. I also leave much of my ballot blank. I really don't vote for many candidates, but I vote in every election).

Media Use
Enterprisers follow news about government and politics more closely than any other group (I consider myself reasonably informed on the issues), and exhibit the most knowledge about world affairs. The Fox News Channel is their primary source of news (46% cite it as a main source) (I don't watch TV news often at all. It bores me. I can find out more information in 30 minutes of internet surfing than watching the news) followed by newspapers (42%) (I read the MJS for laughs) radio (31%) (I like Belling) and the internet (26%) (Hello, my mistress).
I guess that's as close as a short internet poll is going to get.


Bush Radio Address

For those of you who don't religiously listen to the President's radio address, he spent the entire time talking about Judge Alito. Here is a transcript of it.

This is my favorite part...
This past week, Judge Alito gained the endorsement of Pennsylvania's Democratic Governor, Ed Rendell. Governor Rendell said he was not pleased with the partisan way some of his fellow Democrats have handled Sam Alito's nomination. Democratic Senator Robert Byrd of West Virginia announced he was voting for Judge Alito. And he said that many people in his state were calling the treatment of Judge Alito by some Democrats "an outrage and a disgrace." Another Democratic Senator expressed concern that the Senate confirmation process in recent years has become "overly politicized, to the detriment of the rule of law."
Governor Rendell is married to Judge Marjorie Rendell of the Third Circuit Court of Appeals. That's the same court that Judge Alito has been on for 15 years. Gov. Rendell knows from Judge Rendell that Judge Alito is a decent guy. If Gov. Rendell, the former Democratic Party Chairman, is willing to go on the record in support of Judge Alito, maybe his fellow party members have gone overboard on their attacks. Maybe, just maybe.


Zywicki on Blogs

Todd Zywicki at Volokh takes a look at a Washington Post article about my third favorite past time. Zywicki looks at Kerry's recent stint as a Daily Kos blogger...
I found particularly interesting the references to Senator (and presumably Presidential-aspirant) Kerry's efforts to reach out to bloggers, such as his post this week on Daily Kos announcing his decision to try to filibuster the Alito nomination (and before that his comments on Iraq). My initial thought is that it is quite a savvy way by him of trying to establish his bona fides with the Democratic grass-roots base so as to try to peel away some of this constituency that otherwise seems naturally inclined Senator Clinton.
Until '08 comes around, this looks like Kerry's strategy. He's got to undercut Clinton's support. How can he do that? Get the base on his side. Get the Kos kids on his side. Throw them a little red meat (like a futile filibuster of Judge Alito). It's a great way to attack Clinton. Look at how fast she signed on to the filibuster. But Kerry already won this round with the base. It's his filibuster, not hers. She's just along for the ride.

Zywicki then looks at a difference between liberal and conservative blogs...
This leads me to wonder whether one explanation for the apparent difference between conservative and liberal blogs is that in some sense conservative blogs and talk radio work in tandem with each other, whereas liberal blogs essentially have to perform simultaneously both of the functions served by two distinct outlets by conservative media (talk radio and blogs). My impression is that liberal blogs tend to be in some sense larger and more centralized (such as Daily Kos), whereas conservative blogs tend to be more plentiful, smaller, and more decentralized in structure.
Here is the problem that Kerry's strategy will run into in time. Sites like Kos get way more hits than the top conservative blogs. Is this good? Not really. This is centralization and concentration. Spend some time reading Daily Kos, especially the comments. There is some pretty messed up stuff on that site. Is that the kind of site that presidential wannabe Kerry wants to associate himself with in the long run? It's a campaign ad waiting to happen. "John Kerry frequently posts at Daily Kos. Here is what people on that site have to say... Do you want to vote for someone who sides with them?"

The Democrats need to look at history. If they want to be in the White House, they need to look at the most successful modern Democrat: Bill Clinton. He won the White House for two reasons... 1. He could compete and win in the South and 2. He took Republican issues away from them. There hasn't been a Democrat as president since Kennedy who wasn't a Southerner. Unless the nominee is going to do a sweep on the swing states (good luck on that), you've got to be able to win in the South to get to the White House. It also helps to not be a flaming liberal. Bill Clinton was from the South and not a flaming liberal. He won twice. Learn a lesson. Win an election.

EDIT: Speaking of Dem Kos bloggers, here's what Ted Kennedy had to say...
I will not be able to stay in front of the computer, as I have quite a bit to take care of today.
It's Saturday night. Guess what Teddy is doing. It probably involves a bottle, a glass, and a toilet.


Liberty Silver Money

Take that Federal Reserve! Libertarians are the most creative people in the world.

Friday, January 27, 2006 

Beer Review: Guinness Draught

You're probably asking why the hell I would be reviewing Guinness. Everybody's had Guinness. Yeah, yeah, I know. But I have one can left in my fridge and I might as well get a review out of it. Guinness is godly. Even canned (which is inferior to tapped), Guinness head has a creamy consistency. After a masterful pour (I've done this a few times), the perfect amount of head forms, and it's not going anywhere. The aroma is sort or grainy, sort of chocolatey. The first taste is best, in my opinion. The smoothness of the beer perfectly compliments the creaminess of the head. There is a slightly hoppy finish that leaves that distinctive stout taste in your mouth. This is a personal favorite and an old standby.

The other great thing about Guinness is its versatility. You haven't lived until you've had an Irish Car Bomb (that's a shot of Jameson Whiskey with a little Bailey's Irish Cream dropped into a half pint of Guinness, then pounded). There's also the Black and Tan which is a layered pint, usually Guinness and Smithwicks. In Ireland, Guinness is given to blood donors and stomach and intestinal post-operative patients because of its high iron content.


The Roberts-Alito Court

Opinion Journal has this look at the pending confirmation of Judge Alito and what that means for the Court. I've heard that Kerry (who flew back from Switzerland) has the support of a few more senators for his filibuster. Senator Reid says that he supports it, but the votes aren't there to sustain it. Basically, this is a political posturing maneuver by some of the Senate Democrats to out-Kos the others. I don't think the rest of the Democrats are dumb enough to block a cloture vote. They'll let Kerry have his moment then move on. On to the Opinion Journal piece...
In this sense, the Alito-Roberts ascendancy also marks a victory for the generation of legal conservatives who earned their stripes in the Reagan Administration. The two new Justices are both stars of that generation--many others are scattered throughout the lower courts--and they are now poised to influence the law and culture for 20 years or more. All those Federalist Society seminars may have finally paid off. Call it Ed Meese's revenge.
One of the goals of legal conservatives (whatever name you want to call them) was to have a deep bench of potential nominees ready. The old guard of the leadership knew that a time would come (now) when vacancies would open on the Court. There had to be a long list of experienced, intelligent, and credentialed candidates. I've looked at a chunk of the list recently. A few decades ago, the Republican party decided to take the federal courts seriously and work to get strong jurists onto those courts. Chief Justice Roberts and Judge Alito are the fruits of that work.
The liberal interest groups that devised the filibuster strategy and wrote the anti-Alito talking points for Senators Ted Kennedy and Patrick Leahy thus contributed as much as anyone to Judge Alito's confirmation. Congratulations, Ralph Neas. It's your finest hour.
People like Ralph Neas have done more damage to their cause than good. It's the "cry wolf" syndrome. Neas and friends attacked then-Judge Roberts harshly. One of their ads (which they were forced to pull) claimed that Roberts sympathized with abortion clinic bombers. This is an over the top statement, but it's not isolated. The statements come one after another, on every issue, on every nominee. People start to tune them out. These interest groups get ignored by everyone but the people who already support them.
This does not mean this will be a "conservative" Court, however. Four reliable liberals remain, as well as the protean Justice Anthony Kennedy, who has been making his own migration to the cultural left and the make-it-up-as-you-go jurisprudence exemplified by Lawrence v. Texas (on state laws on homosexuality) and Roper v. Simmons (on the juvenile death penalty). You can bet the press corps and liberal politicians will now apply their carrot-and-stick strategy of praise and castigation to push Justice Kennedy further to the left and retain a five-vote liberal majority.
Justice Kennedy has been drifting further to the center in recent years. He's going to relish his position as the new O'Connor. Maybe he'll even wear that frilly collar-thing that O'Connor wore. Until there is a retirement by one of the liberals, it's Kennedy's Court for many issues. It will be interesting to see if either Roberts or Alito will be able to persuade him to the conservative side more often than has occurred in the past. Justice Scalia's biggest problem in the past has been pushing away the moderates. I love reading his opinions, especially the fiery ones, but they don't do much to build a 5 vote majority. We're looking at very interesting times in Con Law in the near future.


Easterbrook on the 9th Circuit

I was just reading this interview of Judge Frank Easterbrook of the 7th Circuit Court of Appeals. One of the most interesting parts concerned the size of the 9th Circuit. People have been kicking around the idea of breaking up the 9th Circuit for a while because of its size (28 active judges). Here is what Judge Easterbrook has to say...
Twenty-eight, by contrast, is morbidly obese. It is larger than the original Senate. Add senior judges, plus visiting circuit and district judges, and the effective size of the Ninth Circuit is closer to 50 than to 28. Town-meeting size makes coordination difficult and can conduce to town-meeting conduct. It is smaller than the mob that condemned Socrates, but that's not saying much. On average, more than two years pass between the time any given judge of the Ninth Circuit sits with any other, which frustrates the ability to operate as a single institution. And its record in the Supreme Court speaks eloquently. See Richard A. Posner, Is the Ninth Circuit Too Large?, 29 J. Legal Studies 711 (2000) (studying unanimous or summary reversals, which cannot be attributed to philosophical differences between the Justices and the appellate courts).

When I was in the SG's Office, we contemplated filing a cert. petition that began: "This is a petition to review a judgment of the United States Court of Appeals for the Seventh Circuit, and there are other reasons to issue the writ." Now that dubious mantle has passed to the Ninth Circuit. A few years ago, a lawyer who propounded some farfetched proposition was asked: "Do you have any authority for that point?" Counsel cited a decision of the Ninth Circuit, and the questioner (not me!) continued: "All very well, but do you have any legal authority?"
The 9th Circuit gets overturned very often by the Supreme Court. It's become something of a joke within legal circles. If you're reading a Supreme Court opinion reviewing a case from the 9th Circuit, assume that the Court is going to go the other way. I think that Judge Easterbrook is correct. They are just too large to function as a single institution.

Thursday, January 26, 2006 

Beer Review: Sprecher Hefe Weiss

I really haven't had many Sprecher beers. That's odd, considering that they are one of the few local breweries left. I've had more of their sodas, which are great, than their beers. I'm doing my best to try them when I can though. I had some Sprecher Hefe Weiss recently. Its color was consistent with other weiss beers and had a nice golden hue. It smelled sort of citrusy. Some weiss beers have that very crisp aroma that is so identifiable. I would rank the Sprecher's aroma as fairly average. The flavor left me wanting. I frequently drink weiss beers, so I know what to expect. The flavors are fairly subtle and light when compared to what I usually drink. The Sprecher Hefe Weiss was a little too subtle. It was just too light. I tried to heighten or augment what flavor it did have with a lemon slice (shut up, Mike), but even that didn't help. I ended up with more lemon flavor than beer flavor.

I was pretty underwhelmed by the Sprecher Hefe Weiss. I won't totally give up on it though. I did have this on tap, so there's always the possibility that I was dealing with an old keg or a bar that doesn't clean its lines often. I'm sure I'll cross paths with it again. Until then, I'll stick with the Franziskaner if I want a hefe weiss.


The Downfall of the Left

The Downfall of the Left


Why I Love Marquette

This had me laughing. Marquette University is willing to go that extra mile for its important guests. We'll even get you a Coke!

EDIT: You know, I do miss Coke. UWM had a monopoly deal like Marquette, only theirs was with Coke. Maybe I can arrange to have some smuggled into the campus and start a soft drink black market.


Activate the Drudge Siren!

Matt Drudge is running the headline (siren included) that John Kerry is calling for the filibuster of Judge Alito. I can't find a link supporting it yet. If this is true and they go through with it... wow.

EDIT: Link's up. Is John Kerry this foolish to provoke Frist's use of the rule change?
He announced his decision Wednesday to a group of Democratic senators, urging they join him, Henry said. Kerry also has the support of his fellow Massachusetts senator, Democrat Edward Kennedy.
Yeah, that's shocking.

EDIT AGAIN: Here's Byron York's take...
From a Senate source: Kerry's call for a filibuster comes after his leadership, that is, Senate Minority Leader Harry Reid, decided there won't be one. In other words, Kerry was making a brave, Kos-friendly pronouncement in the total confidence that a filibuster will never happen.
Kerry is also currently in Switzerland. That might make any sort of Mr. Smith antics difficult.

EDIT 3: Looks like Frist filed the cloture motion. That means that the cloture vote will be at 4:30 PM Monday and the final vote will be at 11:30 AM Tuesday (I'll be watching via C-SPAN's video feed). Senator Reid has thrown in the towel. Kerry's "filibuster" was just a bone thrown to the more rabid portions of his base. Quite a throw too, considering it was from across an ocean.

My only question is about what happens after the vote. Is Bush going to commission Justice Alito right away, then have him sworn in, and maybe show up at the State of the Union? At least one Justice shows up every year. I think Breyer was there last year. It will be interesting to see what happens.


Alito Vote Coming Soon

Here's what Byron York at The Corner has to say...
From a Senate source: It is "likely" that the Republican leadership will file a cloture motion tomorrow on the Alito nomination, which would mean a cloture vote could be held on Monday, followed -- assuming there is no Democratic filibuster -- by an up-or-down vote on the nomination.
Vote on Monday, swearing in on Monday night, celebration at the State of the Union address Tuesday. Sounds like a plan.

EDIT: It's a little after 12:30 and the C-SPAN tally has the Alito vote at 53-27. If my poor eyesight can read these names properly, Chafee, Collins, Snowe, and Stevens are the only Republican senators who haven't committed yet.


Oh No You Didn't...

I saw this linked on Confirm Them. Here is what Democratic Senator Ken Salazar said about Justice Thomas...
Justice Clarence Thomas "is an abomination when you contrast him to the leadership and principles of someone like Thurgood Marshall," Salazar said.
Do not besmirch the name of my favorite Supreme Court Justice.

You know, that "abomination" is only 57 years old. He's going to spend the next few decades pissing you off too. Get used to it.


NYT Calls for Filibuster on Alito

In an editorial entitled "Senators in Need of a Spine", the editors of the NYT declare their support for a filibuster of Judge Alito. I think that this is horrible advice.

Alexandre Dumas once said "Nothing succeeds like success". I'm a firm believer in that idea. Why would you choose to fight a battle that you know you will lose? The editors offer up this explanation...
Even a losing battle would draw the public's attention to the import of this nomination.
I don't think the public cares. I care, but I'm a law nerd. I once held hope that the public knew the names of at least a few of the Justices. Now I'm pretty sure that isn't the case. It's a fairly esoteric part of the national government.

This section is just bizarre...
Judge Alito's refusal to even pretend to sound like a moderate was telling because it would have cost him so little. Chief Justice John Roberts Jr., who was far more skillful at appearing mainstream at the hearings, has already given indications that whatever he said about the limits of executive power when he was questioned by the Senate has little practical impact on how he will rule now that he has a lifetime appointment.
So is the NYT suggesting that Judge Alito, under oath, should've lied? Or "pretended"? The shot at Chief Justice Roberts is cute too. Are they suggesting that Chief Justice Roberts lied in his testimony? The idea of the NYT editorial board judging what is "mainstream" is pretty laughable.

Now for tactics...
Senate Democrats, who presented a united front against the nomination of Judge Alito in the Judiciary Committee, seem unwilling to risk the public criticism that might come with a filibuster - particularly since there is very little chance it would work. Judge Alito's supporters would almost certainly be able to muster the 60 senators necessary to put the nomination to a final vote.
I'm not convinced that he will get 60 votes. I think it will be somewhere in the high 50's. The editors are forgetting something. Senator Frist is just itching for a chance to do away with the judicial filibuster. He only needs 50 votes for that. With many members of the Gang of 14 already solidly behind Judge Alito, I think Frist has the votes. Then the Democrats lose their ace in the hole. Even if there is a public backlash over the rule change (and I doubt it would be a huge one), it's very likely that the Republicans will stay in control of the Senate after the midterm elections. Then what? Then the Republicans can get through ALL of their judges on a simple majority vote. They get to fill the appeals courts with their chosen nominees. In the event of another Supreme Court vacancy, they have a much easier time getting through a more controversial nominee.

But this is not as cut and dry as that. If Alito doesn't get over 60 votes and it appears that a filibuster was a viable option (forgetting the rule change option), the Democrats may take heat from their more fervent supporters. "Why didn't you filibuster? You had 40-some votes against him!" The Democrats can try to explain that the rule change would've been invoked and they would've been screwed. But will that explanation work? Will their supporters buy it? The Democrats really are in a tricky situation here.

I still think that a filibuster now is just bad tactics. If the Democrats want to have a spine, as the editors demand, they should pick their battles wisely.


White House Sends New Nominations to the Senate

Here is a list of the latest batch of nominations that the prez has sent to my favorite 100 politicians. The most interesting name on the list is Brett Kavanaugh for a seat on the DC Circuit. He's been nominated for that seat before and blocked in the past by Senate Democrats. One can speculate on the reason. It might have something to do with the fact that Kavanaugh worked in the Office of Independent Counsel under Ken Starr. I guess some old wounds have yet to heal.

Kavanaugh seems qualified to me. He's a Yalie, he's got an impressive list of clerkships (Stapleton on the 3rd, Kozinski on the 9th, and Kennedy on the Court), a partner at Kirkland & Ellis, and counselor to the president. The fact that Bush renominated him is a sign that he's going to fight for him. This should be interesting to watch.

Wednesday, January 25, 2006 

Alito Update

It's 1:40 PM and Alito is up to 44 votes in the Senate. It's all over but Ralph Neas' crying.

EDIT: Watching Barbara Mikulski make a speech is physically painful for me. I can't wait to find a transcript of this rambling mess.

EDIT 2: Hillary Clinton just called Mikulski's remarks "eloquent" and "quick witted". If you want proof that Hillary is a liar, there you go. And Hillary is a "no" vote too.

EDIT 3: Hillary's also lying about why the Right was upset about the Miers nomination. She's on a roll.

EDIT 4: Kerry's up. If this guy had gotten elected, he could've been the one to replace Rehnquist and O'Connor. That's a thought that'll keep me up at night. Just imagine Justices Stephen Reinhardt and Kathleen Sullivan as the newest members of the Breyer Court. I'd probably have to quit law school and become a fisherman in Southeast Asia.

EDIT 5: Kerry says Bush could've nominated someone who would've got 100 votes. I want a name.

EDIT 6: Kerry's talking about Ann Coulter! Coulter's going to love this. Hey, wait a minute... graduate of University of Michigan Law School... member of the Order of the Coif... law review editor... Senate staffer to a Judiciary Committee member... Federalist Society member... Ann Coulter for the next Supreme Court vacancy!


Walk for Life and Counter-Demonstration Photos

I spotted this link on Michelle Malkin's blog. It's a photo essay of the "Walk for Life West Coast" march and counter-protest that happened in San Francisco last Saturday. I'm a big fan of pictures and an even bigger fan of author Zombie's commentary. He took pictures at the vigil for Stanley "Tookie" Williams late last year. Zombie's a pretty witty guy. On the last page...
When all the dust has settled, there is really only one way to determine which of two competing political ideologies has emerged victorious, and that is:

Which side has the best-looking women?
You be the judge.


Tribune to McAdams: Shut the Hell Up

This is hilarious. Marquette Tribune Editorial Page Editor John Heiderscheidt gave Prof. McAdams the "Shut the hell up" award. Heiderscheidt has taken issue with McAdams' criticisms in the past, but the flap over the Trib's new ethics policy pushed the editor over the edge. How do I get considered for this illustrious award?

Heiderscheidt lets fly...
I'm all for criticism. It makes us better professionals. But I won't sit around and take any more abuse from a person who knows nothing about journalism. Do I come into your office and spout off about the standards of political science? No. Know why? Because I don't know the first thing about it. Keep that in mind the next time you want to talk jive about journalism.
He's all for criticism, as long as it comes from a narrow group of individuals. This is a freaking student newspaper. It's not like the folks at the Trib are running a nuclear reactor and McAdams is telling them what buttons to push. He and many others have taken issue with the strange ethics policy.

Oh, and what's with the "talk jive" thing? Did I wander into a Starsky and Hutch rerun? Maybe Heiderscheidt should stop hanging out with Huggy Bear and spend his time crafting a sensible ethics policy for his newspaper. Solid!


More Voucher Responses

My post about Doyle's plan has gotten a little attention. Jay Bullock over at Folkbum has taken issue with a few points, and I would like to address them. Bullock states...
This is something I'm toying with calling the "Accountability Paradox": Conservatives who cannot mandate standards and testing fast enough for the public schools absolutely abhor the idea of applying those same standards and tests to private schools that take state money.
He then quotes part of my post and responds...
A lot of this testing talk is just a means to control the private schools. Let's say that Doyle gets his way and his chosen test is used to measure the quality of the private schools. The private schools don't want to look bad based on these test results. They will abandon their chosen curriculum in order to "teach for the test" as it has been called. That kills the whole idea behind school choice: parents should chose the kind of school that they want for their kids. The private schools that once offered a diverse range of educational programs will now be forced to teach for Doyle's test or look like they are "failing". And believe me, if they look like they are "failing" based on the test, school choice opponents will be happy to claim that as proof that school choice doesn't work.
This is different from the way people use the test to label public schools as "failing" . . . how? Steve himself complains that he doesn't want his "tax money being wasted in the public school system as it currently is." How does he know it's a waste? Could it perhaps be because the test data (or other data collected by MPS but not voucher schools) show that the schools are "failing"?
My views on MPS come primarily from personal experience. I spent nine years in three different MPS schools. Two of those schools were considered to be excellent MPS schools. The workload was light, the classes were easy, and good grades came without much effort. Then I entered a private high school and everything changed. First, I had to catch up to my peers because I was way behind in areas like math and English. Second, I actually had to study and apply myself to get good grades. Every night, I spent hours studying and doing homework. I was constantly challenged (I hadn't been at any of the MPS schools). My friends who stayed in MPS were shocked at the amount of time that I spent studying. They didn't have nearly the workload that I had. While I hated my private school while I was there, I was better off in the end.

Then I got to college and saw even greater differences. I spent a lot of time freshman year helping classmates proofread and edit their papers for English 100. I couldn't believe what they were giving me. There were people who were high school graduates that weren't writing in complete sentences. They had no idea how to form paragraphs, let alone a coherent essay. I was shocked. In my last job, I was in charge of a lot of high school aged kids. These products of public schools couldn't do simple math in their heads. They needed a calculator to do basic addition and subtraction. One of them couldn't read a non-digital clock (No, I'm not kidding). No employer is going to want to hire someone who lacks these basic skills. I'm not claiming that every kid in public school is this bad or that every kid is below average. However, there are enough of them out there that I keep running into them. Call it anecdotal evidence if you want, but my lifetime exposure to MPS has affected my view of it.

At the very least, I hope I can expect to see Steve and Professor McAdams at the next anti-NCLB protest.
As a general rule, I don't go to protests. It's just not my kind of thing. But I am no fan of NCLB or any other unfunded federal mandate. Schools should be run at the local level, and the feds should stop interfering. The Department of Education hasn't done a whole hell of a lot for the quality of education in this country. I agree with you about standardized testing across the board. I think it is a poor system of accountability. An improperly written and administered test could provide us with poor data. I don't want that. That wastes money and class time.

I'll give Bullock credit. That post is the best argument that I've heard to support the Doyle plan. His post is long but well thought out and worth your time to read.


"Inexorable Command"

Prof. Althouse takes a look at that tricky little phrase that snuck its way into Senator Feingold's remarks at the Judiciary Committee vote yesterday. She reproduces part of Feingold's comments...
One important question that I had about Judge Alito was his view on the role of precedent and stare decisis in our legal system. At his hearing, while restating the doctrine of stare decisis, Judge Alito repeatedly qualified his answers with the comment that stare decisis is not an "“inexorable command."” While this is most certainly true, his insistence on qualifying his answers with this formulation was troubling. Combined with a judicial record in which fellow judges have criticized his application of precedent in several cases, Judge Alito'’s record and testimony do not give me the same comfort I had with Chief Justice Roberts that he has the respect for and deference to precedent that I would like to see in a Supreme Court Justice.
Then the professor shows that now-Chief Justice Roberts said the same thing when discussing stare decisis...
At the same time, as the court pointed out in the Casey case, stare decisis is not an inexorable command. If particular precedents have proven to be unworkable -- they don't lead to predictable results; they're difficult to apply -- that's one factor supporting reconsideration.
Alito said it "repeatedly" though. That's probably because he got the same questions and the same kinds of questions over and over again.

No one who is serious about Constitutional law can claim that stare decisis is an inexorable command. Cases can never be overturned?! Since when? Are these Democratic senators going to come out against the Lawrence decision? It overturned Bowers. Of course not. Why? They agree with the results of Lawrence. This is all about political results, not legal principles.

Senator Feinstein gets the honesty award for saying that her vote "no" was based on Roe. If that's the reason that you are voting "no", then say it and stand by it. Hiding behind a convoluted explanation is just weak.


Marquette Makes the Top Ten...

...whitest law schools in the nation. We were high on the list last year too, so this didn't shock me when I found it on Volokh. According to the study, MULS is 92.1% white. Marquette's details are on this page. If my addition is correct, we have 48 minority students in the entire law school.

Tuesday, January 24, 2006 

Alito Judiciary Committee Vote

I'm watching the C-SPAN feed right now. It's going to be a 10-8 party line vote.

In other Alito news and analysis, Prof. Althouse takes a look at the poll numbers on Judge (soon to be Justice) Alito. She points out that the pro-Alito side won 5 additional percentage points after the hearings took place.

Why? Here's what Prof. Althouse thinks...
Clearly, the Democrats' strategy was poor. But exactly why was it so poor? I've said before that I think it's a mistake to portray judicial decisionmaking as a political enterprise, which is what they did, leaving Alito to prevail by doggedly explaining legal doctrine in response to every attempt at an attack. I think people want the Court to decide cases based on the law and want to believe a judge can do that. If so, the Democrats' attack on Alito would look ugly and offensive.
I agree.

EDIT: Here's part of Senator Kyl's statement...
I fear a very bad precedent is being set today, a precedent that a unanimous minority will oppose a nominee on political grounds, not because the nominee is in any way unqualified. Republicans did not apply that test to Justices Breyer or Ginsburg.

And I say precedent because it is simply unrealistic to think that one party will put itself at a disadvantage by eschewing political considerations while the other party almost unanimously applies such considerations.

So I say to my Democratic friends, think carefully about what is being done today. Its impact will be felt well beyond this particular nominee.
Expect the next nominee by a Democratic president to have a much more difficult time than Ginsburg and Breyer did.


Touched a Nerve?

It looks like the Doyle camp is in crisis mode over the school choice issue. Xoff came running to the aid of our besieged governor recently, and now the Marquette campus Xoff Jr.'s have as well. Ryan Alexander of Campus Tavern has taken issue with my critique of Doyle's plan (as well as Prof. McAdams' critique) in a post titled "McAdams and Eminent Domain Fail This Test". You mean that I failed to convince Alexander that a Jim Doyle policy is a bad idea?! Hang on, I need to recover from this shock.

There, I'm better now.

Let's take a look at what Alexander has to say...
McAdams, Eminent Domain, and the proposed Republican law to "solve" the voucher problem in Milwaukee all demand that instead of lifting the cap from 15% to 18%, that the enrollment cap be eliminated all together which is just another way of saying that the Milwaukee will have a full blown voucher system with vouchers going to everyone-—the poor, the rich, and everyone in between.
Yeah, it sure would be horrible for all people of all income levels to have the same choices and opportunities when it comes to their children's education. Or we could just keep paying $11,334 per student per year into a school system that isn't getting the job done.

I'm willing to bet that even if Green or Walker were to become Governor and even if the Republicans retained control of the state legislature, that even they would not institute a full blown voucher system in Milwaukee (despite whatever their campaign promises are).
Too bad. They should.

Alexander takes issue with my criticism of Doyle's testing requirement for the voucher schools...
So how do McAdams, Eminent Domain, and other Republicans attack Governor Doyle's practical and logical plan for the voucher program to keep the issue deadlocked? By arguing that requiring voucher schools to administer the Wisconsin Knowledge and Concepts Examination, while good intentioned, would somehow reduce the number of voucher schools, cause schools to change their curriculum, or worse the test would impose political correctness on students or ask them questions about homosexuality and birth control.
He then produces this information about voucher schools and standardized tests...
According to the survey results, 64 of the schools say they administer the Iowa Test of Basic Skills; 40 the Wisconsin Knowledge and Concepts Examination (which is used by public schools in the state); 33 the Terra Nova; and 22 another exam. Nine schools reported that they do not administer any standardized test.
Alexander claims that this shows that standardized tests place no additional burden on voucher schools, so they shouldn't have a problem with Doyle's plan. "...[W]hat is the deal?" he asks.

Hey, Alexander. You see that thing that just went by? It was "the point" and you missed it.

The voucher schools got to pick their test. They got to decide which standardized test best measured the curriculum at their individual school. Doyle's plan implements mandatory WKCE standardized testing. That means one test; no options. That's the problem that I have with Doyle's testing requirement. You are forcing schools to adopt a test picked by Jim "WEAC owns me" Doyle. If only 40 of choice schools chose that test, then that means that 128 of choice schools felt that the WKCE wasn't the proper test for their school. Maybe you ought to let them run their own schools.

I found this comment interesting...
Now, I'’ll admit that I am not the product of Wisconsin public schools and the last time I took a standardized test in school was in public middle school (and yes that means I went to private school for High School)
Hmm... private prep school decides that it is unnecessary to administer standardized tests in order to accurately measure the progress of their students. That's just fine with me. Milwaukee choice school decides that it is unnecessary to administer standardized tests in order to accurately measure the progress of their students. That's just fine with me too. Again, let the schools run themselves.

This is cute too...
I do not know for sure what the difference between the ITBS, the Terra Nova, and the WKCE are, but I'm betting that there isn't all that much of a difference aside from which grade levels the tests are assigned to.
Followed by...
So if almost all of the voucher schools administer a form of standardized test and the subject matter in all the tests is not only similar but made with the same basic goals in mind...
"I have no idea what's on the tests but they're all the same." If they are all the same, why do different schools choose different tests? If they are all the same, why is Doyle demanding that the schools only use one test, a test of his choosing?

Then there is this response to some of Prof. McAdams' comments...
This logic is clearly flawed because as I have shown already none of these tests "subvert the benign organizational culture of private schools"...
You didn't show that anywhere in your post. You just made a claim and failed to back it up with any evidence other than what you "think". Your post was heavy on rhetoric (yeah, that's shocking...) and light on proof.

If I were a Doyle supporter, I'd be frantic too. There is a lot of pressure to end the cap. The radio campaign, in part led by that arch-conservative Mikel Holt, has been gaining support. Milwaukee County DA E. Michael McCann has even cut a radio ad calling Doyle out on the issue. He's no Republican. Business leaders like restaurant king Johnny Vassallo have also urged Doyle to expand school choice. If Doyle was smart, he would just raise the cap without all of his little conditions. That would defuse the issue. But he won't. He can't. WEAC won't allow it.

Monday, January 23, 2006 

Where Will You Threaten to Run Now?

Stephen Harper and the Conservatives win in Canada.


Goals and Dreams

Everyone has a dream. We all have goals that we strive to achieve. Sometimes they are lofty and bold. Sometimes they are small but special to us. Whatever they are, they matter. I have a dream. That dream is to have a pet duck. Okay, I'm not aiming very high here, but I'd like a duck. I think they have great personalities and always look happy. I would love to have a duck running around the house. I would feed him bread and christen him with a name, possibly Rupert.

Anyway, I've got a problem. I live in the city of Milwaukee. This is a major metropolitan area and as such does not look kindly on the possession of water fowl. Thanks to my fine Marquette legal training, I've learned to never say die when it comes to matters of the law. I knew that my first step was to examine the relevant city ordinances. I took a look at the Milwaukee Code of Ordinances. Chapter 78 governs animals, and I'm focusing on 78-5 Keeping of Animals Within City. Here's what it says...
a. Except as otherwise provided in this chapter, no person shall keep within the city, either temporarily or permanently, any live bees, fowl, cows, cattle, horses, sheep, swine, goats, chickens, ducks, turkeys, geese or any other domesticated livestock provided, however that such animals or fowl may be kept at places approved by the commissioner for slaughtering, educational purposes, research purposes and for circuses or similar recreational events.
Now the question becomes how do I turn my house into a research lab...


I'm Trying to Not Take This Personally

From the front page of today's Milwaukee Journal-Sentinel...
Yes, it's Monday, but that's just the start
Jan. 23 is said to be worst day of the year
...Arnall said January is a time when people are simply working and don't have a lot of events, parties or holidays to look forward to.

People are struggling to cope not only with the bleak weather, but also with the debts they amassed by spending too much over the holidays.

It's also a time when people are starting to feel like failures because they've broken their resolutions so shortly after making them.

"All these elements converge to make for a very unhappy day on the 23rd of January," Arnall said.
Guess whose birthday it is today.


High Court Activity

A few decisions came down today from the highest court in the land. A decision came down today in Wisconsin Right to Life v FEC, which was argued only last week. It was a unanimous per curiam decision (meaning that it's the Court's totally, not of one justice (Breyer probably wrote it)) that sent the case back to the lower court. The Court said that they would allow "as-applied" challenges to the McCain-Feingold law, and that the lower court had to examine the case in that respect. Basically, the Court is going to allow fact/situation-based attacks on the law (Ex: the law is constitutional, but not when the law is applied in my situation).

What's it all mean? Well, the Court got to kick this can a little further down the road. The Court seems to be willing to examine the facts very closely in these instances. That's likely to be a good sign for people like me who would love to see this law chipped (or hacked) away at by the Court. That means that the Court will be knee deep in looking at these ads and figuring out what applies and what doesn't apply.

The Court also handed down an opinion in Central Virginia Community College v Katz. It's a bankruptcy case. That's an area that I have no expertise in at all, so I've got nothing for you on the substance. Stuart Benjamin at Volokh has an interesting observation about the vote though. It was a 5-4 decision with O'Connor joining the liberals in a majority. Benjamin notes...
I highlight this because some might have been inclined to assume that justices on the losing side of a 5-4 with O'Connor in the majority would strategically delay the completion of their dissent so that they could, with any luck, get a different result with Alito. After all, that's what we would expect legislators to do.
Our justices acting honorably. Maybe the Senate Judiciary Committee could learn a thing or two from them.

Oh and Chief Justice Roberts and Justice Scalia have still voted the same way so far this term. Just in case you were interested...

Sunday, January 22, 2006 

Beer Review: Lakefront Eastside Dark

I took the Lakefront Brewery tour with two of my fellow beer enthusiast friends yesterday. It was a blast, and I highly recommend it. You pay $5, get a tour, a pint glass, and beer samples. Sounds like a great way to kill an afternoon. I also have a ton of material for beer reviews now too.

I tried Lakefront's Eastside Dark during the tour (yes, you get to drink during the tour). Based on the name, you can tell that it's a dark beer. It has a nice coffee aroma to it, but it's not very strong. The beer has a very creamy flavor. The blend of malty chocolate and coffee flavors coat your entire mouth. The flavor lingers in your mouth long after you swallow the beer. Strangely enough, there isn't much of a bite with the finish. This makes the Eastside Dark a very drinkable dark beer, but it might not be as satisfying to dark beer drinkers who are used to something with more of a kick. Personally, I like the easy finish of the Eastside Dark. If you want a darker beer with a little more punch to it, Lakefront has a Fuel Cafe Coffee Flavored Stout. This is about as dark as beer is going to get. I think a cup of hot tar is more appetizing but that's just me. The Eastside Dark is creamy, flavorful, and smooth. It's a great dark beer, and I highly recommend it.


Something to Think About Today

Controversial decisions--even decisions that rend the body politic--are sometimes necessary. The Constitution stands for certain fundamental principles of free government, and there are times when the courts must intervene to make sure they are not neglected. But when judges act on the basis of their own political predilections, without regard to constitutional text or the decisions of representative institutions, the results are illegitimate.
Judge Michael McConnell, 10th Circuit Court of Appeals

Saturday, January 21, 2006 

Top 10 Supreme Court Decisions to Reverse

Dad29 reproduces the list of ten Supreme Court cases that Human Events wants overruled. They are as follows...
10. U.S. Term Limits v. Thornton 1995 decision that denied the peoples of the states the right to set term limits on their congressional representatives even though the Constitution is silent on term limits and the 10th Amendment leaves to the states and the people powers that the Constitution does not explicitly give to the federal government or expressly deny to the states.

9. Baker v. Carr 1962 decision that laid the groundwork for the "one man, one vote" standard ending county representation in state legislatures and forcing states, unlike the U.S. Senate, to redistrict based solely on population.

8. Plyer v. Doe 1982 decision that said that the 14th Amendment's Equal Protection Clause requires state governments to provide public education to illegal aliens.

7. Grutter v. Bollinger 2003 decision that said the University of Michigan Law School could use race as a factor in admissions so it could achieve a "critical mass"” of a particular racial group.

6. Wickard v. Filburn 1942 decision that said Congress could regulate a farmer'’s growing of wheat for his own use on his own property under the constitutional language that authorizes Congress to regulate commerce "among the several states."

5. McConnell v. Federal Election Commission 2003 decision that upheld the McCain-Feingold law'’s prohibitions on political speech.

4. Berman v. Parker 1954 case that said the District of Columbia could seize a department store and hand it over to a private developer to redevelop a "blighted"” neighborhood, even though the department store itself wasn't "blighted." Decision set the stage for the 2005 Kelo v. New London decision allowing government to take property other than for direct "public use."”

3. Everson v. Board of Education 1947 decision that said 1st Amendment Establishment Clause erected a "wall of separation"” between church and state. Precursor to the 1971 Lemon v. Kurtzman decision that created a three-pronged test for when "“wall of separation" was breached and led to cases such as McCreary County v. ACLU of Kentucky, which prohibited the posting of the 10 Commandments in a courthouse.

2. Lawrence v. Texas 2003 decision that declared same-sex sodomy a constitutional right, creating the rationale for the Massachusetts Supreme Judicial Court to declare a right to same-sex marriage.

1. Roe v. Wade 1973 decision that declared abortion-on-demand a constitutional right, overturning the abortion laws of the states, and led to further abominations such as Stenberg v. Carhart, which declared partial birth abortion a constitutional right.
Quite a list, and they went all the way back to Wickard. Wickard v Filburn is pretty much the reason that we have such a huge federal government these days (that and the 16th Amendment). That case concerned a quota that the federal government placed on grown wheat. Farmer Filburn grew more than the quota allowed, because he wanted to keep the excess for his own personal use. He wasn't going to sell it. He claimed that since it didn't enter commerce at all (and definitely not interstate commerce), then the federal government could not regulate it under the Commerce Clause of the Constitution. That clause states that Congress has the power...
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.
The Court rejected his argument, claiming that there was a grand, nebulous structure of commerce. Filburn's wholly intrastate activity would preclude him from buying other wheat on the open market. See the problem here? Under this view, everything a person does can be tied to interstate commerce in one way or another. Anything that you do can be connected to your ability to buy or sell something. That means that Congress can regulate any activity.

That's what Congress tried to claim with the Gun-Free School Zones Act in 1990. They made mere possession of gun near a school a federal crime and enacted the law under the Commerce Clause. In the Lopez case, the Court struck the law down as going too far. Personally, I don't buy the argument that a gun near a school is substantially affecting interstate commerce. That's a state issue to regulate, and states do regulate it. The post-New Deal, pre-Lopez Commerce Clause powers of Congress allowed them to stick the federal nose where it doesn't belong.

Friday, January 20, 2006 

Alito... Not That Conservative?

That's what Orin Kerr at Volokh thinks. Prof. Kerr thinks that Justice Alito will be somewhere between Justice Kennedy and Chief Justice Roberts on the left-right continuum. Kerr looks at two sources...
First, it was the impression I had of Alito when I was a Third Circuit law clerk. I clerked in 1997-98, and assisted on some panels in which Alito participated. Alito struck me as right-of-center, but very institutionalist. As Judge Garth (who ought to know) said in his Senate testimony, "Make no mistake, he is no revolutionary."

Second, I think the testimony of Alito's colleagues and former law clerks (of all ideological stripes) is particularly telling. If Alito were in fact a revolutionary, or had a big agenda, surely it would have come out at one point or another: It seems unlikely to me that an agenda-driven judge can keep that agenda secret from his colleagues and clerks for 15 years on the bench
Interesting points, but I have my doubts. I have my doubts because Alito did not become a federal judge until after the defeat of Robert Bork's nomination. Bork's defeat sent a message to judicial conservatives: if you want to make it to the Supreme Court, be careful about what you say.

There are a lot of legal positions that can be easily taken and accepted by the legal community that are horrible politically. Take Roe v Wade for example. Even some of the most politically liberal law professors and scholars will just rip apart the legal reasoning in Roe. The majority opinion is really just a mess. Discuss this in legal circles, and it's no big deal. Say this in public or write this in public (like in a judicial opinion on the appeals court), and it's going to be horrible. You'll have people like that blubbering mess Ted Kennedy attacking you relentlessly. I think that Alito, like many other conservatives in the legal world, has learned to watch what he says. I guess we'll have to wait and see who is right.


Doyle's Weak School Choice Plan

Doyle supporters like Xoff have been trumpeting the greatness of Governor Doyle's proposal about the current voucher situation. It's been summarized as...
Doyle Proposal

Increase school voucher cap from 15% to 18%

Eliminate all prior-year eligibility rules, thereby allowing children to participate in the voucher program regardless of where they attended school the previous year
Increase the income eligibility cap for families who want to participate in the voucher program from 175% to 220% of the federal poverty level.

Allow MPS to count each voucher student at a rate of 45%, phased in over five years, when calculating state aid; all of the funds that come from this must be used by MPS for instruction.

Starting in the 2007-2008 school year, increase SAGE funding from $2000 per participating student to $2500 per participating student

Increase the enrollment cap on the Racine Charter School from 400 to 480

Implement mandatory WKCE standardized testing in grades 3-8 and 10 of all schools participating in the voucher program

Starting in the 2007-2008 school year, make it mandatory for all voucher program schools to be accredited by one of a number of specified independent accrediting authorities
Not good enough. Not even close. Raising the cap by 3% doesn't go far enough. The program should be open to anyone who wants to participate. If a child in a MPS school is not getting a good education for the $11,334 per year that the taxpayers are spending on it, then that child should be able to get a voucher and go elsewhere.

The testing issue is a problem too. Here is what David Salisbury of the Cato Institute has to say...
Requiring private schools to give state-selected achievement tests would have harmful effects on the participating private schools. Some private schools would have to give up the curriculum they have designed for their own students and teach the state-sanctioned curriculum instead.

That would kill the diversity and vitality of the private schools. Many state tests emphasize fuzzy math over traditional math, and stress the use of "culturally diverse texts" over traditional classical literature, a staple of many effective private schools.
A lot of this testing talk is just a means to control the private schools. Let's say that Doyle gets his way and his chosen test is used to measure the quality of the private schools. The private schools don't want to look bad based on these test results. They will abandon their chosen curriculum in order to "teach for the test" as it has been called. That kills the whole idea behind school choice: parents should chose the kind of school that they want for their kids. The private schools that once offered a diverse range of educational programs will now be forced to teach for Doyle's test or look like they are "failing". And believe me, if they look like they are "failing" based on the test, school choice opponents will be happy to claim that as proof that school choice doesn't work.

My private high school had a different curriculum than most public high schools. We had more of a Classical education than what is currently taught in public schools. There was a lot of philosophy, a lot of civics, a lot of books by dead white guys. That's the education that my parents wanted me to have, and I think that I'm doing just fine with it. Of course, that meant that I was more likely to read Paradise Lost than Heather has Two Mommies (Okay, weird comparison since they are at different reading levels, but you get the point.), but I think that's a call that parents should make for their kids.

This policy analysis from Cato also shows that private schools are much less likely to participate in school choice programs if government regulation will interfere with their core qualities. "Core qualities" includes the ability to design and teach a curriculum of their own choosing. Is that one of the purposes of all of this testing, to drive the established, principled schools away from the entire choice program? If so, very crafty, Doyle.

More from Salisbury...
Private schools have legitimate reasons for selecting one type of test over another. Some prefer the Iowa Test of Basic Skills because they think it tests for a more traditional coverage of the curriculum. Others prefer the Stanford-9 or the CAT.

Some private schools shun standardized tests altogether, choosing to rely instead on more holistic measures of student progress.

The fact that most private schools don't want to administer state tests doesn't mean that they are not serious academic institutions with rigorous standards of excellence. It simply means that their curriculum and standards are different than those of government schools.

Most state standards have no empirical basis. Rather, state standards and tests are typically an awkward compromise between disparate factions of the professional education community, many of which are influenced by fads and politically correct thinking.
Doyle's supporters will claim that they want accountability. If they think that meeting a clumsily set state standard assures a quality education, then they are sorely mistaken. Hasn't it been the political Left that has done nothing be berate standardized testing for years? Now it's the lynchpin of school choice regulation?

I know that there will be cries and moans from people about this. "Well I don't want my tax money going to fund a Catholic education or an Islamic education or a military education." Well, tough. I don't want my tax money being wasted in the public school system as it currently is. I want parents empowered and involved in their kids' education. Continuing to dump money into a broken system is not going to do that. An innovative, flexible, and diverse market-based system will.


Truce? Yes, says Star Jones

I don't like to spend a lot of time bashing celebrities on ED. I'm sure I've done it a few times in the past, but I don't make a habit out of it. It's just too easy. This comment is too stupid to ignore. From Drudge: Star Jones says that the war on terror is a battle of egos between President Bush and Osama Bin Laden.
"I won't trust him, but anything that gives me the opportunity to seek peace, I would at least check it out.

"People make deals with the devil all the time. We make deals with people we don't like," she said.

"You don't negotiate with terrorists," said Elisabeth Hasselbeck, the show's youngest (ME: and most sensible) host.

"You don't negotiate," Jones interrupted, "but I do think you figure out when there is a solution that's diplomatic that doesn't result in [loss of] human life.

"What do we have to lose to check it out?" Star said.
Jones says not to negotiate, then she says we should find a diplomatic solution. I think that is negotiation. "Peace in our time"... right.

"You know what?" she then added, "At some point, one of these men has to put it back in his pants and zip up the zipper at some point."

"This isn't somebody whipping it out," shot co-host Meredith Vieira.

"You know what, I'm a little tired of posturing back and forth," Jones replied.
Oh man. Calling four hijacked planes, two destroyed World Trade Center towers, one damaged Pentagon, one bombed USS Cole, two bombed African embassies, one blown up Bali, blown up Spanish trains, and blown up British subways "posturing" is just a wee bit of a stretch, don't you think? This is a war. This isn't two guys thumping their chests over some grudge. She should apologize for her stupidity and her moronically simple male-bashing stance that she seems so quick to embrace.


UAW Ideas for Fixing the US Auto Industry

Here's what they came up with...
Not surprisingly, cutting wages isn't high on UAW President Ron Gettelfinger's auto industry to-do list. Speaking at the Automotive News World Congress Tuesday, Gettelfinger suggested that the U.S. government needs to be a big part of the solution. The three areas where the government should help, according to Gettelfinger, are outlined after the jump.

1. Revamp U.S. trade policy. The UAW is opposed to the government's free trade policies in particular, and the trend to globalization of manufacturing in general. (I'm afraid that horse has already left the barn.)

2. A national health insurance program. His position is that the problem is universal, and not restricted to the auto industry. (The current President is adamantly opposed to a national program. Maybe after the next election.)

3. An alternative fuel incentive program for automakers. Gettelfinger says the need to reduce the country's dependence on foreign oil points to an opportunity to move to alternative fuels - if the government provides incentives for automakers. (This is really the trade issue revisited - the market is already doing a good job of stimulating alternative fuel vehicles, and the government already subsidizes E85 and hybrid cars. The UAW really wants to ensure that new auto technology jobs stay in the U.S.)
Absent from the list is making a better, more desireable product. Nope, we need to have the government step in and make it harder for Americans to buy better foreign cars. UAW needs to realize something. Protectionism is not going to save your company or your union.

I'm sure it sticks in the craw of UAW that Americans make better and cheaper cars without the UAW. Toyota North America seems to have things figured out. Make a car as good as the Camry or the Accord; Americans will buy it. Don't make anymore of those Azteks though. They look like garbage trucks.


In Defense of Wal-Mart

In this week's State of the State address, Jim "I hate concealed carry" Doyle took a shot at Wal-Mart for "dumping" their employees onto state health care programs like BadgerCare. He made reference to creating a law that would force Wal-Mart to pay for health care for its employees. A similar law has been enacted in Maryland. Wal-Mart has become the latest target of many on the political Left. I'm going to examine what Wal-Mart is doing and explain why they are acting rationally.

Wal-Mart is a huge employer. They have many low skilled workers. The labor of these workers is not worth much. They have no special skills and can be easily replaced. There is no reason for Wal-Mart to provide these employees with high wages and expensive benefits. Until they have a shortage of workers, Wal-Mart has no reason to offer a more lucrative wage/benefits package.

The state offers a program that will provide health care. The state has made the choice to provide health care to people below a certain economic level. Wal-Mart is not shifting the costs to us. We are choosing to pick up the costs. We have chosen to enact the BadgerCare program. Wal-Mart, acting as a rational entity, sees a free service being provided by the state to provide health care and chooses to take advantage of it. Wal-Mart is just taking advantage of the system. Not taking advantage of a voluntarily enacted state program would be stupid. You might not like it, you might not think it's fair, but it's Wal-Mart and its employees acting rationally in the situation.

Here's what Sebastian Mallaby of the Washington Post has to say...
Wal-Mart's critics also paint the company as a parasite on taxpayers, because 5 percent of its workers are on Medicaid. Actually that's a typical level for large retail firms, and the national average for all firms is 4 percent. Moreover, it's ironic that Wal-Mart's enemies, who are mainly progressives, should even raise this issue. In the 1990s progressives argued loudly for the reform that allowed poor Americans to keep Medicaid benefits even if they had a job. Now that this policy is helping workers at Wal-Mart, progressives shouldn't blame the company. Besides, many progressives favor a national health system. In other words, they attack Wal-Mart for having 5 percent of its workers receive health care courtesy of taxpayers when the policy that they support would increase that share to 100 percent.
The point is that Wal-Mart isn't exploiting the system any more than anyone else. The only difference is that there is a organized, dedicated hit squad going after Wal-Mart right now.

Is health care a positive right? I don't think it is. It is a service. I personally believe that it is wrong for me to force you to pay my medical bills. I also think that it is wrong for me to force you to pay my grocery bills and my rent, even though many would argue that food and shelter are rights too. Since I believe that it is not a positive right, I'm not going to fault Wal-Mart or any other employer for not providing health care to every employee. By the way, Wal-Mart does provide health coverage, just not to everyone.

I think that health care is a negative right. That means that one should not be arbitrarily deprived of access to health care by the government creating unnecessary barriers to health care. Let's say that you do think health care is a positive right. Why is it Wal-Mart's responsibility to provide it to everyone? Isn't it your responsibility? If you believe that health care is a positive right, you shouldn't be supporting this law. You should be calling for a socialized health care system.

If you support forcing Wal-Mart to pay for health care, then you also have to support Wal-Mart instituting very strict hiring practices. If I am an employer and I have no choice but to pay for health care, I should have the right to refuse to hire high risk groups. Fat people, the elderly, and smokers need not apply.

Wal-Mart is good for a lot of poor people. They provide goods at a low cost, which stretches the dollar of lower income folks. The ones with full grocery departments offer wholesale priced fruits and vegetables (an important part of a healthy diet that many poor people wouldn't normally be able to afford). What bastards. Wal-Mart's discounting on food alone boosts the welfare of American shoppers by at least $50 billion a year. The savings are possibly five times that much if you count all of Wal-Mart's products.

If you don't like Wal-Mart's business practices (and after watching the Frontline episode about Wal-Mart, I can understand why they could turn someone off), then don't shop there. Persuade your friends, family, and colleagues that Wal-Mart is evil. Shop elsewhere. Don't use the law to target them because you've got a grudge. I really don't care about Wal-Mart. I don't work there, I don't own stock, and I don't shop there. I'm just sick of these cheap attacks by people like Jim "a giraffe could do my job better" Doyle.

Thursday, January 19, 2006 


I couldn't help but smirk when I saw this on Drudge. Bin Laden offers Americans truce. Bin Laden claims that there is an attack in the works and promises that it is coming very soon. He also makes a few other statements that I think deserve examination. Let's take this apart...
This message is about the wars in Iraq and Afghanistan and how to end those wars.

It was not my intention to talk to you about this, because those wars are definitely going our way.

But what triggered my desire to talk to you is the continuous deliberate misinformation given by your President [George] Bush, when it comes to polls made in your home country which reveal that the majority of your people are willing to withdraw US forces from Iraq.
And then...
We do not mind establishing a long-term truce between us and you.
Okay, logical disconnect here. If you are winning a war ("definitely" too), why would you offer a truce? You wouldn't. You'd press your advantage and kill some infidels. Bin Laden promised a holy war in the Middle East. He promised that governments would topple under his forces, and his kind of fundamentalist regimes would take over. So far, that hasn't happened. You call for a truce when you're losing. You say "we're winning" to save face.

We know that the majority of your people want this war to end and opinion polls show the Americans don't want to fight the Muslims on Muslim land, nor do they want Muslims to fight them on their (US) land.
Translation: Let's stop fighting because I'm not winning.

In response to the substance of the polls in the US, which indicate that Americans do not want to fight Muslims on Muslim land, nor do they want Muslims to fight them on their land, we do not mind offering a long-term truce based on just conditions that we will stick to.
Translation: There will be "peace in our time", and we won't break our word...

We are a nation that Allah banned from lying and stabbing others in the back, hence both parties of the truce will enjoy stability and security to rebuild Iraq and Afghanistan, which were destroyed by war.

I would like to tell you that everything is going to our advantage and the number of your dead is increasing, according to Pentagon figures.
Translation: Really, I am still winning. But can you please take your troops home now?

Here's what I think we should do. Accept the truce offer. Bin Laden and his top lieutenants as well as Zarqawi and his top lieutenants can meet with Secretary of State Rice and representatives from other nations. We can hammer out a peace deal that will stop the war and allow rebuilding to begin. As the Bin Laden delegation leaves, kill all of them. It will be just like what Muhammed Ali of Egypt did to the Mamluks in 1811.
In one of the most infamous episodes of his reign, Muhammad Ali definitively broke the power of the Mamluks by massacring their leaders. Having worn down the Mamluks for years with raids and skirmishes, in 1811 he invited their amirs to a feast to celebrate his son Tusun Pasha's appointment to lead the army being sent against the Wahhabi rebellion in Arabia. As the procession of Mamluk princes made its way through a narrow gated alley in the Citadel, Muhammad Ali's men shut the gates, trapping all the Mamluks inside, and soldiers positioned in the buildings facing the alley opened fire from above. When the shooting ended, soldiers on the ground finished off any Mamluks still living with swords and axes.
Believe me, Bin Laden will appreciate the historical reference.

Seriously though. This is just another tape and another threat with a rotten olive branch slapped onto it. If an attack is going to come, it's going to come. There is no foolproof defense against terrorism. A handful of dedicated people can accomplish a hell of a lot without tipping off the authorities. That's just the way it is. However, there's no reason to shut your life down because of it.


A Case of Photo Bias

From John Miller of The Corner...

This article
in the Washington Post is about Senator Obama defending Senator Clinton's plantation remarks. Look at that freaking picture. You have got to be kidding me. So has WaPo officially joined Obama's campaign staff? "Let's get one of him deep in thought in front of a big HONEST." But remember, the media isn't biased. Nope, not at all.


Who Would Be a Better Governor than Jim Doyle

Here is a non-exhaustive list of candidates that I would vote for in the Wisconsin governor's race:

Mark Green

Scott Walker

Tommy Thompson

Ed Thompson

The Double Double from In-N-Out Burger

This giraffe

The state would be better off with any of the above in charge.

EDIT: Is it just me or does Mark Green look like a less-wrinkled Lance Henriksen?


Epstein on School Choice and Some Thoughts on the MPS Problem

Legal scholar and Chicago law prof. Richard Epstein takes a look at the recent Florida Supreme Court decision striking down their school voucher program. He sums up the issue nicely...
...state protected monopolies tend to be sluggish and unresponsive, especially when they are beholden as a matter of state law to recognize and negotiate over the terms and conditions of employment with strong teachers' unions. The results in question are not surprising. System-wide failure that translates itself into expensive and unresponsive education that works far better for the well-to-do families that live in the suburbs than for the urban poor who have neither the wealth nor clout to escape the system.
That's the problem. If you are too poor to move to a better area or too poor to pay for private school out of pocket, you're stuck.

Epstein points out another basic problem...
The ability of parents to opt out of public education and finance their children's education privately is an important check on the state monopoly-an option that is frequently exercised in the form of home schooling programs. But that option still has the unfortunate consequence that, by removing one'’s own children from the school system, parents do nothing to reduce their tax burdens to support the education supplied to other students who choose to remain in the public school system-—or who are trapped by it. Put simply, the escape from the public school system comes at the cost of double taxation.
The people who can afford to pay for private schools still have to pay money into the public education system, a system so broken and unacceptable that they've chosen to abandon it. That's sort of like shipping a box via FedEx but still having to pay the US Postal Service too. Yes, USPS is a government service, but that doesn't mean you should be forced to support it. Also notice that USPS was once a monopoly too. When they had no competition, they couldn't get a package to its destination overnight. Opening the marketplace to a little friendly competition put the spurs to USPS. Now, overnight delivery is available.

Epstein turns to the Florida case specifically. The court said that the provision in their state constitution that forced the state to provide "by law for a uniform, efficient, safe, secure, and high quality system of free public schools that allows students to obtain a high quality education" didn't have room for a voucher program. Epstein pokes a little fun at the wording of the constitution itself...
The first of these illustrates the danger of adopting hortatory constitutional provisions that promise particular level of state services as opposed to the allocation of powers and responsibilities that are the traditional fare of most constitutions. These Soviet-style provisions of positive rights are always honored more in the breach than in the observance, for there is no way that any constitutional document can guarantee the supply of the need level of resources or expertise, let alone the desired level of services.
Why on earth do we want the courts deciding what an "efficient" school is, or a "secure" school? Florida just drafted a weird constitution.

This issue is really heating up locally. Charlie Sykes and Mikel Holt have joined forces to produce a commercial urging Governor Doyle to lift the cap on the voucher program. Our choice program caps enrollment. The amount of students using the program to attend private schools can't exceed 15% the amount of students in MPS. Doyle has offered to raise the cap but with many strings attached. That may have something to do with the many strings attached to Doyle (WEAC).

I'm very much in favor of school choice. As someone who attended both public and private schools in Milwaukee, I can personally attest to the fact that they are worlds apart. Just look at the issue of value. Per pupil spending in Milwaukee Public Schools is $11,334 per year. Are the taxpayers getting their money's worth? I'd say no. Think about this... the amount of money that it costs to put one kid through 4 years of Milwaukee public high school is the same amount that it cost for my 4 years in private high school AND my 4 years of undergraduate college education. I got a high school diploma and a college degree for the same amount of money that the government spends just providing kid with a high school diploma. This doesn't even begin to examine the quality issues that come up when comparing the actual education behind the two different high school diplomas.

I plan on making a series of posts on this issue. There are a lot of angles to cover and I want to give them their due examination. It's painfully obvious that this state needs a new governor.

About me

  • I'm Steve
  • From Milwaukee, Wisconsin, United States
  • "There is only one basic human right, the right to do as you damn well please. And with it comes the only basic human duty, the duty to take the consequences." P.J. O'Rourke
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