Could Bush pull this off? Probably not. From the Times of India, with the headline, "World Can't Afford India to be a Pygmy":

NEW DELHI: Bill Clinton says that the world "cannot afford India to be a pygmy". Speaking through a live satellite link on Saturday night to an audience of Delhi's elite at a gala dinner on the occasion of the India Today Conclave he concluded, "You have to be a giant."

The issue, according to him, was what kind of giant India would be. Instead of focusing merely on economic growth, the former US president's analysis based itself on a harder look at the issues confronting the country, ranging from communal conflict to AIDS.

Introducing Clinton, Aroon Purie, head honcho of the India Today group, said the former US president's visit to India in 2000 had been "a breakthrough" in Indo-US relations. He noted that Clinton, who became president at the age of 46 and retired at 54 was "a man who speaks our language."

In his hour-long address and exchange with the audience, Clinton displayed his virtuoso style that returned him to office twice as the president of the United States.

He was both incisive and sympathetic while speaking on a range of issues ranging from the spread of AIDS and growth of communalism in India to Indo-Pak relations. Typical of Clinton, the lecture was well researched and carefully nuanced, balancing the positive with the negative and not sounding patronising, but without pulling any punches.

Diplomacy can be about individual personality. Oh well.

In a different context, Machiavelli stated that "it is better to be feared than loved." We're on the way to learning whether or not he was right.

THIS is funny. Warning: try not to get distracted by Tony Blair's appearance.

I'm not in a serious mood today, obviously.

HUMOR ALERT ***CODE GREEN (LOW RISK OF A LAUGH):

How about THIS ESTRADA for a federal judgeship? For those of you too young or too sheltered to remember him, he's the one on the left in the picture. Read about him here. This Estrada has good qualifications -- not as good as Miguel Estrada's, of course, but worth considering nonetheless:

• he had several years at least thinking about law enforcement issues


• he probably would tell the Judiciary Committee what he thinks about controversies before federal courts [and I don't mean "controversies" in the technical, legal sense]


• if he said he didn't know what his philosophical approach was, or that he hadn't thought about a particular case or issue, you'd believe him


• as the picture linked above shows, he's got a fantastic wardrobe. Move over, Iolanthe-inspired robes, hello sun-and-surf aesthetic!

"STALIN CITY," THE CITY THAT DISAPPEARED: In Die Zeit this week, in an attempt to make sense of the 50th anniversary of Stalin's death, Michael Allmaier has a fantastic story on the East Germann town formerly known as Stalinstadt. The article is called "The Forbidden City." What follows is a series of highlights from Allmaier's excellent article.

Built from the ground up after the war as a vast residential complex for workers in the iron industry, Stalin City received its name on May 7th, 1953, two months after Stalin's death. East Germany's tardiness in honoring their "liberator" was so embarrassing, however, that a newspaper account resurrected him for a ceremony in honor of the new name. "The (usual) solemn seriousness of his countenance gives way to a generous, fatherly appearance. The wind gently plays with the grey streaks of his hair. Green-ringed spring flowers lift their heads toward him, etc." Allmaier claims that everyone knew he was already dead, but this didn't stop the officially ardent atheists from channeling his ghost for the ceremony.

In 1956, when Kruschev secretly criticized the "personality cult" surrounding the late dictator, the name "Stalin" became a burden in communist circles. But Stalin City flourished. Culturally and architecturally, it became the pride of East Germany. Allmaier records a poem written by a cultural attache from the People's Republic of North Vietnam (not much better in German than in my choppy translation):

I sing to you of Stalin City,
I announce a golden age: what is once attained
Shall not be wrested from human hands.

At the 22nd Party Congress in Moscow in 1961, a decision is made to erase Stalin from communist memory, and on the night of November 7, teams of party functionaries fan out to remove all traces of the name of the "liberator" from public buildings and offices. Stalin City was combined with the older neighboring town of Fuerstenberg and given the name it carries today, Eisenhuettenstadt, or "Iron Foundry City." A slight improvement.

Allmaier tells several stories that are particularly poignant: on November 11, while he was making a beer delivery, Hans Lang made a joke related to the sudden erasure of the city's name by saying that if the Party keeps going in the same direction, the city will be renamed once more as "City of the Great Criminal." His discussion partner told the state security police (Stasi) about the remark, and Lang spent almost three years in jail. Attempts to uncover the city's history ruined the career of one Iron Foundry City resident in the 1980s.

Today, Iron Foundry City is as depressed as the rest of East Germany: 20% unemployment, decaying buildings, an exodus of young people. In the end, Allmaier argues, the crumbling city pays a grim tribute to Stalin himself.

Pictures of Eisenhuettenstadt can be found at the city's official website, here. This map shows you where the city is (ESE of Berlin, on the Polish border, just south of Frankfurt-an-der-Oder). This page shows you the leaders of the CDU in the city, and this page gives you some nice pictures of buildings on the river.

JEFF COOPER on the failed promises of GWB. (direct link is busted, so look for "the responsibility era"). Bush has so clearly revealed himself to be a ruthless "divider" that I look forward, with relish, to the opportunity to remind anyone I know, in 2004, about the campaign promises that Jeff Cooper recalls with such skill.

After the debates in 2000 I figured that Bush really would try to govern from the center. I was horribly wrong. For the record, I should say that my girlfriend never bought Bush's arguments. She was more shrewd than I. And yes, you can quote me on that, sweetie.

ESTRADA MONDATTA:

Don't Stand so Close to Me (Daily Kos on Bob Smith [R]'s filibuster of judicial nominees, with quotes from the Congressional record)*

Driven to Tears (Doxagora hangs Will with his own rope)** (Volokh also)

Voices inside my Head (Ari Fleischer calls Patrick Leahy a hypocrite)

Bombs Away (NRO on latest White House moves)***

De Do Do Do, De Da Da Da (Eugene Volokh would vote for Senator Estrada)

*Link from Smythe's World
**Link from Rittenhouse
***Link from How Appealing

Today's pre-commitment: no blogging except between 7:00 and 9:00 p.m., EST. Should have both free time then and a clear mind. The second is particularly important, as my recent on-line experiences show.

KEVIN JOHNSON in favor of Dems' filibuster of Estrada.

For a somewhat different perspective, go to the article at the Focus on the Family-maintained website. Variety is the spice of life.

Read Dahlia Lithwick's essay on Miguel Estrada here. Thanks to How Appealing for the link.

After reading Lithwick's essay (which is smart) I went back to my whipping boy for the day, George Will, and found more reasons why he's "on his high horse but on the low road." Comparing Estrada's record to Hugo Black's or Earl Warren's, as Will does, for example, in an attempt to claim that Schumer doesn't know his judicial nominations history, is [wrong. *** I altered this post because what I wrote was not professional in the least. I'm happy to e-mail you the original comment if you'd like. Rule #1: don't write when you're tired and angry.]

Hell, I know more about Black's pre-Supreme Court positions on the New Deal than I do about Estrada's positions on anything. That's not too surprising, either. Just go to the early editions of Vital Speeches, where, for example, you can find at least one stinging speech by Hugo Black defending Social Security from the Liberty-League types who thought that the program would mean the death of capitalism. I'm not making this up. And Earl Warren was a prominent public figure long before he took a position on the Court. Granted, we may not like the pre-nomination Earl Warren in all respects (as in, he clamored for internment), but Senators knew very important things about him. And, hey, what a coincidence: he also gave at least one "vital speech" that you can read here. Black and Warren were political beings and made no bones about it. Estrada, on the other hand, tries to give the impression of having sprung, Athena-like, from the collective head of the Framers, pure and armed for faithful and decent judicial battle. Suffice it to say, Estrada has given no "vital speeches."

And Will's selective memory concerning the Federalist Papers needs to be underlined: I fail to see how Will could whip out Hamilton's Federalist 76 standard for Senate refusal of nominees (Senators should reject "unfit characters" only) and claim that it jives with his earlier counseling of Republican Senators to reject Clinton nominee Bill Lan Lee for reasons of political "payback."

I quote from Will's hypocritical advice to reject Lee below. You can find the editorial itself on Lexis-Nexis. It sure would be nice to be able to learn about Miguel Estrada by logging on to Lexis-Nexis. Or by flipping through the pages of Vital Speeches.

But you can't. That's a problem.

Over at Oxblog, that other best blog on the right (loosely defined: Josh and David are both pro-war, but for humanitarian reasons, and Josh is also more libertarian than "right," so I'm really just trying to get a good punchy intro here and it's failing). . .ahem. Over at Oxblog, Josh advocates Condi Rice for President. Presumably in 2008, unless he's expecting a Bush defeat in 2004. Hmm. [Not sure what I was getting at there. Note to self: think before you type. -- BEM]

I'm still hoping that Mike Easley will run. Haven't seen any indication that he will, though, this time around. I guess Howard Dean will have to do.

Read Eric Muller's essay in memory of Fred Rogers.

GEORGE WILL -- HYPOCRITE, TOO: Well, beneath all the fustigating, at least George Will's editorial today is clear about one thing:

". . .if the Republican Senate leadership cannot bring [Estrada's] nomination to a vote, Republican 'control' of the Senate will be risible.'

Will accuses Democrats of seeking to "nullify[] the president's power to shape the judiciary." Here's a description of Will's editorial: an expansionist view of executive power combines with a kind of constitutional argument, coincidentally, at the precise moment in history in which a Republican president is trying to nominate judges who are objected to by Democrats. Oh, and, coincidentally, Republicans have been arguing all along that they have the correct constitutional understanding, and that it's likely that 70 years of constitutional law is actually unconstitutional.

But two things are really strange about today's editorial. One is that in an October 12, 1997 editorial published in the Times-Picayune urging the Republicans to reject Bill Lan Lee, then a Clinton nominee for assistant attorney general for civil rights, Will argued as follows:

A sufficient reason for the Senate Judiciary Committee to reject President Clinton's nomination of Bill Lann Lee to be assistant attorney general for civil rights is that Lee, in his career of litigating on behalf of peculiar notions of "civil rights," has exemplified the aggressive cynicism characteristic of today's liberal idealists.

A deeply satisfying and entirely valid second reason for rejecting the nomination is payback. In 1989 the committee, then controlled by Democrats, rejected President Bush's nomination of William Lucas to the position for which Lee has been nominated.

Note, then, that Will urges payback when it suits him. Interesting.

A second is that in an editorial on April 18, 1994, also in the Times-Picayune, Will sneeringly wrote the following lines about Clinton's admittedly weird floating of George Mitchell for a Supreme Court seat:

Again the president is allowing the selection process to become so protracted that all the ideological, racial, ethnic and sexual lobbies can work up a robust sense of entitlement to the court seat. Given the importance of California - and Florida and Texas - to the president's re-election plans, he may be looking for someone with a Hispanic surname.

That would please people who subscribe to the theory of categorical representation - that people can only be properly represented by people of the same racial, sexual or ethnic category. That theory is pernicious when applied to representative institutions, and is doubly so when applied to judicial institutions. But perhaps the Supreme Court no longer is one.

Since it is so clear that Bush has been using race as a wedge issue here -- and this is not lost on Orrin Hatch, as I noted yesterday, here -- it is surprising that Will does not now comment on it. I suppose Will is still a subscriber to a Clinton-centered view of political evil: when Clinton does something, it's bad, but when Republicans use the same tactics, it's high-minded defense of constitutional principles.

Michael Kinsley is proven to be right again: Judicial nomination battles bring out the hypocrite in all of us. Even the hypocrite in George Will. I understand that as a prolific writer and publicist, Will has made a very good living arguing some very smart positions. I often agree with him, albeit more typically on baseball than on politics. But if Will wants to retain whatever credibility he has left in my eyes, he will need to provide a convincing explanation of today's editorial in light of his past endorsement of "payback" and his past criticism of nominations based on race or ethnicity.

Thanks to How Appealing for the link to Will's editorial.

Yesterday, federal agents arrested four men in the central New York area for violations of the International Emergency Economic Powers Act. One of the individuals charged is an adjunct professor of math at SUNY-Oswego. Another is a successful area oncologist. Read the Syracuse Post Standard article here. Read the Post Standard's (skeptical) commentary here. The New York Times has an article here.

As of this morning, the charity's web site was still on line, apparently.

OHIO (TRIES) TO OVERCOME ITS (DISPUTED) RESCISSION OF ITS RATIFICATION OF 14TH A. After you've said that phrase, you can take a deep breath. Read this story, from Atrios via Pandagon. Another reminder (after the 27th Amendment) of the essential wackiness of Article V procedures and controversies. Ohio ratified the 14thA in January 1867, but rescinded its ratification the next year. The rescission was eventually ignored by Seward, however, because Ohio's rescission (along with New Jersey's) would have jeopardized the Amendment itself.

Here, by the way, are the search results for the term "fourteenth amendment" at the Ohio state legislature (current session). Fiscal analysis shows that the bill to begin Ohio's unambiguous ratification of the 14th A will not have any impact on the state budget. That's a relief.

If anyone can find any substantive and political reasons why Ohio would take up this controversy now, I'd love to see them! In the bill at issue right now, the legislature seeks to resolve doubt about Ohio's commitment to equal protection, etc. The text of the bill is below, from this site. Some neo-confederates have argued that the 14th A is illegitimate (read this discussion at the Southern Poverty Law Center), but is concern over those folksdriving this action?

Provides for the ratification of the Fourteenth Amendment to the United States Constitution to guarantee equal protection and due process to all persons born or naturalized in the United states.

CONTENT AND OPERATION

Background on Ohio's ratification of the Fourteenth Amendment

The 39th Congress of the United States, at its first session, by a constitutional majority of two-thirds of the members of each house, submitted what is now the Fourteenth Amendment (see comment) to the states for ratification. The joint resolution states that (1) the General Assembly ratified the Fourteenth Amendment by a joint resolution adopted January 11, 1867, but by a further joint resolution voted to rescind its ratification on January 15, 1868, before the Amendment became effective in July 1868, (2) the state of Ohio is considered by many authorities to have ratified the Amendment, but other authorities assert that Ohio's rescission may have been valid, and (3) the validity of the Amendment is indisputable regardless of the validity of Ohio's rescission, because Congress approved it by a two-thirds majority on June 13, 1866, and every state in the union at that time subsequently supported it, thereby exceeding the three-quarters majority of the states necessary for the ratification of a proposed amendment to the United States Constitution.

The joint resolution further states that (1) the Fourteenth Amendment is the primary guaranty for individual rights and liberties through its protection of the privileges and immunities of citizens of the United States, its prohibition on the deprivation of life, liberty, or property without due process of law, and its guaranty of equal protection of the laws and (2) the Amendment's ratification demonstrates the support of the people of the state of Ohio for the principles embodied in it.

ALL RIGHT ALREADY!!!

The reason why I've just posted 1000+ words on Estrada (on a blog that I usually use for international affairs) is that I have a professional interest in the use of constitutional arguments outside of the courts. The judicial nominations process is, as Robert Nagel and Mark Tushnet -- among others -- have argued, a place where a certain kind of public constitutional dialogue takes place. Especially in the age of C-Span, Senators are intensely focused on the task of talking to the public, meaning their base plus potential voters in their district. I'm really interested in the ways Senators employ constitutional arguments for public consumption because I think it says something important about how Senators view their responsibilities, their party, and the political and constitutional sophistication of (and the role of) the public. Plus, judicial nominations have become one of the areas in which interest groups articulate constitutional purposes to Senators they are trying to influence and to the public(s) that they are trying to get to influence Senators.

I am particularly interested in the relationship between party claims, party mobilization techniques, publicity, interest groups and constitutional dialogue. One thing I am fascinated by is the almost pathological drive toward what I'll call constitutional synecdoche. That would make a nice, pretentious title for an article, no? What I mean here is the way in which partial constitutional views come to occupy the rhetorical space of the Constitution as a whole. What's fascinating is the attempt to enlist a certain kind of presumed legitimacy -- that of appealing to the Constitution -- in particular partisan and political debates. One thing I find fascinating about the attempt is that it has a very strange structure of audience: given intense constitutional dispute, you're never going to convince someone to agree with you just because you can advance what you call a decisive constitutional argument. It is absolutely pointless to tell an anti-abortion advocate, after you have had a long discussion about your views: "well, after all, abortion is constitutional, after all."

In that dialogue, the final move sounds more emotive than anything else. And yet, such arguments are often employed as if they were meant to convince the unsure, the fence-sitter, the swing voter. The real effect of constitutional synecdoches is, I suspect, more to rally the faithful by blurring the boundaries between self-interest and the common interest. A synecdochic constitutional appeal is an appeal to a norm, but lots of people know that these norms are malleable and contested. Such an appeal is also an attempt to state a simple fact about the world, but it's also not clear what kind of fact it is other than a fact of the form: it is the case about the world that some people have made constitutional arguments for my position. Finally, the appeal has a kind of expressive component, as in, "I am the kind of person who thinks that XX is constitutional." This last form of constitutional appeal is always there and often has the tendency to overwhelm the other kinds of appeals. The tag line is, "aren't you, too?"

At any rate, maybe you can see why I've been mulling over the Estrada nomination and the kind of thing I'm trying to think about with regards to it. The attempt at a rhetorical or speech-theoretical anaylsis might not amount to much at the end of the day. But attention to constitutional discourse outside of the courts is absolutely essential and quite fascinating. It's important to understand the distinct structure of that discourse as well. That's what I'm trying to do, for my own quasi-professional purposes.

CONSPIRACY THEORIES:

In response to a sensible proposal by Walter Dellinger for a more consensual nominations process (read it here), the folks at Claremont claim that a Democratic plot is afoot to subvert President Bush's power to nominate judges. Dellinger should just "deal" with the fact that Democrats are the minority party in the Senate; apparently, nobody who is a Democrat should try to make proposals aimed at creating a more consensual and less brutally partisan nominations process.

The theory of collusion here is a little far-fetched, but you never know, I guess, what those east coast elites will do when you're not watching. At any rate, Dellinger hasn't exactly helped the Dems' case during the nominations process as a whole: he opposed their request for DoJ memos.

Partisan processes bring out the worst in people: I have rarely heard so many hypocritical and un-self-aware remarks in the Senate as I have over this issue, and, to be honest, this spills over into the academic commentary as well. Then again, Chuck Schumer is my new hero, so perhaps I would think that it's necessary to get over our fear of partisanship in the nominations process for federal appeals courts. We should acknowledge partisanship and structure the nominations process in a way to account for it.

Schumer's view may ultimately be a pipe dream. There's always going to be a certain currency available to those who argue that they're simply looking for people with "excellent qualifications" who will just "follow the law," even when the claims are transparently ridiculous.

Senator Sessions provided a particularly good example of the weirdness of the non-partisan partisan approach, however, in his questioning of Estrada. First he claimed that it was necessary to hold to the belief, attacked by "liberal law professors" and other nefarious types, that we can come to an objective determination of the law. Then he argued that there is less partisan difference on the DC Court (I believe) when environmental statutes are being interpreted than when the (mere) rules of "unelected bureaucrats" at the EPA are being interpreted, thus revealing his partisan bias against the EPA. This is somehow a non-partisan description of the duties of appellate judges during environmental litigation? Whatever. I thought I saw Estrada wince a bit at this point in the hearing (as in, "with friends like these. . ."). But maybe I was mistaken. Maybe Estrada agrees with him. We don't know. We should.

The Republicans are so obviously trying to use Estrada in appeals to Hispanics to break their ties with Democrats that it is, frankly, disingenuous to claim that partisanship has not played a decisive role in the nominations process thus far. Orrin Hatch's introduction of Estrada makes this clear: he's a success story, proves the relevance of the American dream, Hispanics need to know that Democrats who oppose Estrada don't stand up for Hispanic values (revealed by. . .wait for it. . .POLL RESULTS) such as family and hard work, and Democrats are beholden to liberal civil rights interest groups who do not represent poll-result-tested Hispanic values. Let me repeat this: in his introduction of Estrada, Orrin Hatch used poll results to show why nominating Estrada was an important goal. I haven't heard a single person criticize this part of the nominations process.

Whatever. I'm going to get some dinner. I'm sure this issue will be around for a while.

MEMOS? I've been listening to the original hearings on Estrada back in September, which you can access from C-Span's court page here. Over at the Volokh Conspiracy, the most prominent (and best) cooperative blog on right, loosely defined, the argument has been floated that the Democratic search for memoranda has been a stalking horse for other, unstated and ultimately unpersuasive reasons for opposing Estrada. See, for example, here, here, here, here, here, here and here. The Conspirators' in-house dialogue was sparked by an attack on Senate Democrats published in the editorial page of the Washington Post, which you can read here. My original response to the WaPo article is here.

I hold to my original response to WaPo. I also am not persuaded that the judiciary committee wanted to tube the nomination by asking for material that it knew the Solicitor General would never supply (as the Conspirators claim). In the abstract, it's hard to imagine that the Solicitor General's interest in protecting "work product" should outweigh the Senate's claim to know something about the candidate it is supposed to be examining. The Democratic line here is that similar memos have been asked for and produced by DoJ before (in Bork, Easterbrook, Rehnquist hearings, etc.). Although it is hard to evaluate this claim given the partisan nature of the debate, I see no independent ground on which to stand in claiming that the memos should not be produced. Plus, the Democratic fuss over this matter has at least nudged the Republicans in the direction of holding another hearing for Estrada in exchange for a scheduled floor vote; we'll see how the Dems react, but it seems to me that they do, in fact, want the memos in question because they want to know more about Estrada, and they should, in fact, have access to them, the views of the Solicitors General notwithstanding. Why should the asserted institutional interests of one branch of DoJ trump the asserted desire of Senators to examine judicial candidates' views on legal matters?

The ready acceptance among many members of the public of the claim that Dems "did not expect" to get the memos in the first place can be attributed to a few factors: professional allegiances to lawyers as such (I guess this is at play over at the Conspiracy), partisanship (Reps have raised a fuss about the requests and tried, unconvincingly in my view, to distinguish earlier kinds of memo-giving from these kinds), a fear of the further messiness of the judicial nominations process (at the editorial meetings at WaPo, definintely) and the power of Presidential agenda setting.

THE REAPPROPRIATION OF THE VIETNAM WAR:

Also in the privacy of my own room last night I wrote a bit on why I thought Debray's editorial in the NYT over the weekend was on target in important respects. I'll spare you the gory details and just make this side note: in her recent post, Jane Galt argues that, among other things, many educated Americans don't know that South Vietnam was a separate country from North Vietnam and that the Vietnam war was simply the fulfillment of our treaty obligations with the South (and, of course, a battle against communism).

Many Americans also don't know that the French showed us by example that a war in Vietnam would be a failure, that colonial ambition there would only bring about pain and suffering, and that we should not start down the domino theory train by propping up a corrupt and silly South Vietnamese protectorate. On Sunday, Debray counseled the U.S. to take France's colonial lessons to heart. We still should.

As a side note to the side note, I'll bet twenty bucks that as our new domino theory begins to take hold of U.S. foreign policy and we begin to engage in democracy-building on the heels of war, we'll see an ever more loud defense of U.S. intervention in Vietnam and an ever more loud insistence that long-haired demonstrators doomed what was a noble and winnable effort. I've already heard some of my Weekly Standard reading friends make this argument. My emotional response: AAAAH!! STOP THE ELECTORAL CYCLE, I WANT TO GET OFF!!!! At least popular culture still seems to think that the Vietnam war was a bad idea.

Before today's round of Estrada nomination discussions begin, let me just say that there are only two possible positions with respect to ideology and nominations: either no one should take it into account (i.e., neither President nor Senators), or everyone gets to. Seldon Goldman's account of nominations under Reagan show, for example, that the ideological vetting of federal judicial nominees was widespread in the Reagan White House. But it surely didn't start there. The difficulty in the Senate right now is that very few people are arguing that they have a right to engage in questioning the President's real motives for nominating Estrada (here's a hint: it's not his well-touted, neutral sounding professional qualifications alone). In fact, if Bush had his way, the internal memoranda that reveal the presidential process here may not ever be available. So we have an agenda-setting problem here: Bush has set the agenda and the Senators are now in the position of responding with the institutional means at their disposal. And Bush has been very skillful at wielding the partisanship accusation hammer.

Last night, in the privacy of my own room, I wrote a long essay about Estrada, the Claremont Institute article I linked yesterday, Cass Sunstein's TAP article, and the 1798 Sedition Act controversy. I can sum up the point in a few sentences: There is an asymmetry in the approach of Claremont to the Estrada nomination that is similar to the one Sunstein describes in Republican judicial court-stacking plans as a whole. Eastman and Sandefur take the supposed unconstitutionality of the New Deal to the next logical conclusion: the Democratic party itself is based on unconstitutional claims, so when Democrats attempt to block judicial nominees they are engaging in a doubly unconstitutional act, namely, they are obstructing and delaying the President's nominees and doing so on the basis of unconstitutional positions. When Republicans block Democratic court nominees, however, they are just engaging in fidelity to the correct constitutional understanding; Republicans who didn't block "liberal" nominees could be accused of violating their oath to "uphold the Constitution."

We've seen this before, most notably with the Sedition Act controversy in 1798, when Federalists advanced a constitutional position that was based partly on controversial, high-level political and theoretical differences with Jeffersonians. The upshot of the Federalist position was that they claimed the highest level of constitutional justification for what revealed itself to be blatant partisanship, namely, the attempt to jail and otherwise put out of business Jeffersonian publicists and political figures.

Eastman and Sandefur are more traditionally American than they probably realize. They're also a bit loony, in my view. Well, more than a bit.

Dawn, just before sunrise. I look out toward the northwest: deciduous trees in the foreground, mountains of snow piled high by winter waves covering what I know to be a rocky beach that juts out briefly into the water. Above the lake and obscuring it is a shifting mass of light blue fog. Above the fog, on the horizon, a band of purple that bleeds suddenly into a pink that fills the sky. The wind is calm but harsh; it drives a jagged, icy nail through my sinuses.

An early morning class has conspired with scenes like these to wake me up in the early morning darkness. I'm not complaining.

Where were these folks the last year Clinton was in office?

Senator Kay Bailey Hutchison argues that a Senate filibuster of a judicial candidate amounts to an informal (and illegitimate) constitutional amendment. Larry Craig makes the same argument.

Senators are allowed to create their own procedures: Article I, Section 5: "Each house may determine the rules of its own proceedings. . ." Hutchison's argument is that the constitutionally required default decision rule should be simple majority, because supermajority requirements are spelled out in the constitutional text.

On her side is Article II, Section 2, however, where the phrase "advice and consent" appears. The President's treaty-making power is explicitly limited by a supermajority (2/3) requirement, but the President's nominating power is not so explicitly limited.

Of course arguments have been made for Hutchison's position before: most notably, perhaps, by former Carter administration lawyer Lloyd Cutler.

But it seems to me that the strongest arguments for this approach to the interpretation of constitutional requirements with respect to Senate procedure here are, at the very least, not reducible to a commitment to "strict construction."

Let's be clear about who opposes Estrada.

I'm watching and listening to C-SPAN's coverage of Senate debate on Miguel Estrada. Someone needs to give Pete Domenici a rhetoric lesson. Thanks to Howard Bashman at the law blog nonpareil, How Appealing, for updates on coverage of this issue!

This weekend is the anniversary of the Godhra massacre in Gujarat. Without succumbing to fear-mongering, ToI warns that the signs are ominous:

Government officials at Sabarkantha and Mehsana claim to have no inkling of what has been planned for their districts as a part of the anniversary-package. There are whispers of saffron-brigade’s plans to put up epitaphs at the crematorium at Gota village outside Ahmedabad, where the victims’ mortal remains were consigned to flames.

Plus, there's an India-Pakistan cricket match planned for the weekend. Don't laugh: remember the soccer war?

If you haven't read the official account

of Malaysian Prime Minister Mahathir Mohamad's speech at the Non-Aligned Movement meeting in Kuala Lampur, you should. The speech is available, here. The NAM web site is here. NAM is another alliance that is seeking to reinvent itself after its original cold-war justifications have disappeared.

Two things stand out about this speech in particular. One is the very real danger that the U.S. will refuse to listen to the justified complaints that are mentioned in the speech, such as the claim that the brutal realities of technological warfare look quite different when seen from the ground than when seen from the command center, and that the depersonalization that results from modern warfare can lead to a maddening cruelty that refuses to examine itself. This weekend's NYT is right to point out that the U.S. tries to avoid civilian casualties; nonetheless, there will always be a difference of perspective between those who are bombed and those who do the bombing. Military power inflicts pain on -- and creates enemies among -- civilians. You cannot avoid that fact. It is right to raise these kinds of concerns about the use of military power.

Another thing that is striking about Mohamad's speech is the kind of criticism that is aimed at the U.S. Suffice it to say that however much Bush's rhetoric seems simplistic and weird at times, he would never say something akin to the following:

Throwing a poser to NAM leaders, he said: "Why is there terrorism? Is it true that the Muslims are born terrorists because of the teachings of a prophet who was a terrorist? How do we explain the pogroms, the inquisitions and the holocaust which characterised Christian Europe for almost 2,000 years? "Why did the Jews choose to seek haven in Muslim countries whenever Christian Europeans persecuted them? Do people seek safety in the land of terrorists? (This) does not sound very likely."

Dr Mahathir said that the Christians were terrorised not by Muslims but by fellow Christians, who condemned them as heretics, and were persecuted, tortured and forced to migrate for their beliefs.

This, he said, appeared to show that the Muslims did not have a monopoly on terrorism, "certainly not on the scale of the holocaust, the pogroms and the inquisition".

"So, it cannot be that Muslims are the sole cause of all these problems," he said, adding that he did not believe either the theory that terrorism was a result of a clash between the Muslim civilisation and the Judeo-Christian civilisation.

"Frankly, I think it is because of a revival of the old European trait of wanting to dominate the world. And the expression of this trait invariably involves injustice and oppression of people of other ethnic origins and colours."

There are a lot of things going on here: Mahathir's attempts to deflect domestic criticism outward, his attempts to forge alliances with other countries in NAM, and his attempt to employ the moral vocabulary of post-colonialism. I'd like to make a point of style, however: I think it's also fair to say that Bush's inept attempts to hide his profound mistrust of muslims pale in comparison to the vigor and harshness of Mahathir's rhetoric. (Read this speech carefully, for example. Note how churches are good for social services, synagogues are good for the soul, and "Mosques provide great hope for people who wonder whether America is meant for them." Why are mosques the only places where loyalty to the U.S. is in doubt?) At least our administration doesn't make these arguments: our pundits do. I'm actually pretty happy about that, and I hope that this division of labor continues.

Times of India likes NORAH: In a section usually devoted to more traditionally spiritual reflections, the Times of India prints Norah Jones's most famous hit. ToI devotes four articles to Jones, including a strange little piece entitled: I can't take credit for Norah's success: Ravi Shenkar. Since he was sort of a deadbeat dad, that's not really surprising.

HUMOR ALERT ***CODE YELLOW*** TODAY (moderate danger of a laugh):

Enter the Washington Post's Pick the Potentate contest today! You can win a coffee mug.

Yes, this calls for the In the Loop Pick the Potentate Contest. Loop Fans can help find the perfect regent to preside over the planned "consultative council," to restore democracy for the first time ever in beleaguered Iraq. A former governor? A former ambassador? Maybe a business leader or someone who excels in law, science, education, the arts or even sports?

My proposal: Joe Torre. Someone who can mediate between an imperial leader in the owner's box, a cast of superstars in the clubhouse, and a hard-to-please home crowd should find governing post-war Iraq to be a piece of cake. Torre's famously calm and respectful demeanor would also put a human, non-offensive face on the administration's foreign policy. Plus, Torre's exit will level the playing field for the Red Sox for the next few years, thus furthering my domestic agenda.

UPDATE: This story has got legs. See here. Translation note: "tell" is a little strange in this context, but I think you can figure out the kind of thing they're trying to do.

Thanks to The Talking Dog for a kind mention on their site, here!! Talking Dog is an excellent source of info about blogs (and not just "insider baseball," either) as well as a fine source of good commentary on news.

. . .Plus, they didn't totally trash me, so I, at least, think TD's judgment is good. . .nay, superb. . .

I don't think my girlfriend was trying to tell me something by sending me this link to an article about arranged marriages in the Washington Post. . .

Today's highlights: A cautionary take on "warblogs" from Brendan O'Neill.

MORE PRESSURE ON ESTRADA: As Eugene Volokh notes today, the Washington State legislature has gotten into the business of pressuring Senate Democrats to stop opposing the nomination of Miguel Estrada. Absolutely essential reading in this regard is also the RNC's email a few weeks ago on the Estrada issue, in which the RNC linked Estrada with the war on terrorism.

Let me just underline my claim that it is hypocritical for Republicans to be using partisan pressure tactics -- given that GWB has continually noted that the harm here is that Democrats are, and I quote, "playing politics" with judicial nominations. THE MORE CONSISTENT and much more sensible view of the matter (surprise!) is mine: this is a partisan battle, in which, among other things, accusations of partisanship are employed, but eventually many accusations of partisanship look pretty stupid if not added to more substantive reasons for the positions in question. Partisanship is hardly a debate-stopper with respect to judicial nominations.

I believe that the Democrats have a strong position here: they should oppose as much as they want, in particular because Bush has used judicial nominations as a bone for the religious right in particular. If I liked the religious right, of course, I'd probably say that Democrats should stop "playing politics" with court nominations.

As for race: appeals to racial constituencies are an old tactic in U.S. politics, and it does no good to lament that fact. The Republicans are doing with the Hispanic vote the exact same thing that Democrats did with the African-American vote starting at midcentury: they're trying to steal the constituency and trying to use race as a wedge to gain political power. There may be something unsavory about that strategy (in particular if you like to speak the language of constitutional doctrine), but it's a basic political tactic that is never going to go away.

One difference between the Dems at mid-century and the Reps now, of course, is that the Dems pushed for fundamental political reform for their constituency (eventually), in the form of the Civil Rights Act of 1964 and the Voting Rights Act of 1965. They also managed to alienate a strong wing in their own party in the process; indeed, they were willing to take that into consideration because of the prospects of electoral victory. But what are the Reps giving up here? What is the corresponding partisan drama? What else are they doing that Hispanic Americans should thank them for? I'm waiting. . .

Blaming the Democrats for opposing Estrada based on race without blaming the Republicans for attempting to encourage Hispanic doubt about Democratic commitments to their values (by nominating a very young, politically conservative judge whom Democrats could be presumed to oppose for fears of allowing a Clarence Thomas redux), is just partisanship. Fine with me. But, as one of our leaders said on the campaign trail within recent memory:

"He's on his high horse, but he's on the low road."

I also seem to remember something about not playing the "politics of class warfare" and being a "uniter, not a divider." Apparently, it's o.k. to play the politics of "racial partisan identification warfare." Again, fine with me. Go for it.

And, I've finally figured out what that uniter, divider phrase meant: "I'm a uniter -- under my party -- and a divider -- of the other party." Fair enough. Now at least we know which Bush to expect during the next presidential race.

IRAQI OPPOSITION GROWS? Read Ferry Biederman's article here. I don't know who Biederman is, and the article is not dated, but it's listed on the IPS website as a current story.

ITALIAN PROTESTERS VS. THE U.S. ARMY: OK, so Italy is not the hub of the Roman Empire anymore. But I still think that this story deserves at least some play in the mainstream U.S. media. NYT, WaPo and CNN all ignored the story entirely. In addition to the eTaiwan news story linked above, read the Tagesspiegel coverage here.

Also Italian labor unions have threatened to refuse to unload American military cargo. And in Italy, labor unions have influence.

WANTED TO GET THIS IN BEFORE LUNCH:

Marston's no-vinegar orange vinaigrette (or something)


Juice of 1/2 orange
1/4 cup olive oil
reasonable squirt of good mustard (I used "stone ground")
couple of turns of a pepper mill
a dash or two of salt
two generous pinches of rosemary, rubbed between your fingers as you throw it in the bowl


Whisk together. Serve over tossed salad.

WARNING: the base recipe is from a French person I once knew. Use with caution.