YOUR TAX DOLLARS AT WORK

Tom Delay scares the bejeesus out of me. Here's one of his more temperate moments, but one that still indicates his basic scariness:

“There is a proper time and place for vigorous debate, but now is the time for America to speak with one voice,” DeLay said. “In the weeks and months ahead, let us rededicate ourselves to our common mission, the defense of freedom.”

Those who do not speak in the prescribed voice are not interested in the "common mission, the defense of freedom." Hmmm.

Here's another gem:

“Is Tom Daschle the official Democrat hatchet-man or just a taxpayer-funded pundit?” DeLay asked. “Fermez la bouche, Monsieur Daschle.”

Since these are official press releases from Delay's office, this is also your tax dollars at work, folks.

[On the latter quote, I should have mentioned the WaPo editorial, here.]

I MISSED THE PARTY

Check out this article in WaPo. The print edition has got pictures of our living room, I'm told. Anita appears in the story in the process of making creme brulee.

[NOTE: Anita is actually distributing creme brulee, not making it at this point in the article. . .Creme brulee. Mmmmmm.]

I'LL SAY IT AGAIN

When will humanitarian defenders of war start getting serious with criticizing Bush's overall budget priorities, as expressed in the Bush tax plan? You're fooling yourselves, folks, if you think that everything that Bush has promised can be done without breaking the bank.

Maybe a litte discussion of means-ends rationality would be useful. If you want the end, you have to want the means as well.

Bush has decided to advance an incredibly expansive understanding of American power, but he doesn't want to have to pay for it.

WORLD REACTIONS ACCORDING TO LE MONDE

Instead of doing this myself, I'll just refer you to this page at Le Monde, which has a summary of the reactions of world leaders to the invasion of Iraq. French and English share a lot of cognates anyway.

I am not interested in contributing to the formation of the media image of the attack, but those of you who speak Spanish may or may not find this article in El Norte interesting. At the very least, the low-profile nature of this story in the U.S. media so far shows how distracted they are.

A LITTLE BEDTIME READING FROM ME

If you'd like to read any of the conference papers for the panel that I've organized for the Midwest Political Science Association meeting in Chicago in April, you can go to the conference papers website. Our panel title is "The Contested Civic Constitution," and it's scheduled for 10:30 on Sunday morning. If you're in Chicago the first weekend in April, drop on by!!

My paper has got a composite title -- one that I wrote before the paper was finished, and the subtitle I added to more accurately reflect what I actually wrote: "Citizen Constitutional Knowledge, Civic Capacities, and Constitutional Meaning: the Civic Constitution Meets Interest Groups and Social Movements." The paper is available as a PDF file here.

Other papers in our panel are: Bruce Altschuler's "Civil Liberties After 9/11: What Price Security?", Galya B. Ruffer's "Detention by Any Other Name? National Security, Civil Liberty and the Need for Constitutional Understanding," Dennis Goldford's "We the People, or We the People (of the Several States)?" and Lynda Dodd's "Citizen, Plaintiff: The Politics of Constitutional Torts."

SPYING IN BRUSSELS

Someone has bugged the phone lines of EU members offices in Brussels. Read the tagesschau story here. Read the Neue Zuercher Zeitung story here. The French, German, and British delegations were all affected. Suspicions have fallen on the U.S., but no one has provided any evidence or formal accusations.

MORE. . .read the BBC article here. They've also got some cool pictures.

HERE IS AL-JAZEERA'S WEBSITE

In case you haven't seen it yet: http://www.aljazeera.net/. Right now you can click on the main story, and under the icon that looks like a video camera, you can watch a film of ordinary folks in Iraq milling about and talking to reporters. The top link in the video section gives you a Washington summary (I gather), the second link gives you Iraqis. I wish I could understand what people are saying.

While you're there, you'll at least want to check out the images in the section of the special report called "Iraq Blockade."

Al Jazeera boasts 800 million viewers. Probably you'll want to see for yourself what kinds of images they'll be seeing the next few days.

PAY ATTENTION, YOU BIG JERK!

Check out the North Korean News Agency website. Seven out of eight stories today have to do with the U.S. Today's stories show a kind of pathetic desire to gain the attention of the Bush administration. Here are five of the headlines:

U.S. hit for its ignorance of DPRK [HA, you big jerk!]
(. . .hit by an obscure news "analyst," that is. "For the U.S. keen to stifle the DPRK the greatest tragedy is that it knows too little about the DPRK. The U.S. should have a good understanding of its rival, stop spreading wild rumors and give up its policy of isolating and stifling the DPRK.")

KCNA refutes Powell's remarks on religious freedom [Am not! Am not!]

"As an expression of the U.S. hostile policy toward the DPRK his assertion is nothing but sophism intended to invent a pretext for impairing the image of its system and stifle and isolate it at any cost.
As stipulated in the DPRK's socialist constitution a citizen's religious freedom is fully guaranteed by law and even American religious leaders recognized it while witnessing the reality of the DPRK.
It is only the United States that made religion a plaything of politics and is suppressing true freedom of religious belief.
There are too many to cite as examples.
Before the liberation of Korea American missionaries made their way to Korea to engage themselves in espionage and plot-breeding and seek their own interests, while deceiving its people. During the Korean War the U.S. bombers indiscriminately destroyed even religious buildings."

U.S. urged to stop groundlessly accusing DPRK [Stop saying that!]

U.S. urged to respond to direct talks with DPRK [Call me?!]

Self-reliance, Korea's mode of struggle [I don't need you anyway, you big jerk!]

This hot and cold attention-getting strategy would be a hell of a lot funnier if North Korea didn't have nukes.

LEGISLATIVE PRIORITIES

To the humanitarian supporters of war: when will you start pressuring the President to give up the idea of huge tax cuts and huge budget deficits? The President's tax proposal is going to squeeze the budget and make long-term financial commitments to democracy-building in Iraq and Afghanistan even more unlikely. If the Democrats have a tendency to break the budget by spending too much, the Republicans have an equally dangerous tendency to break the budget by promising generous tax cuts that will benefit wealthy constituents.

President Bush is probably trying to make Democrats use political capital by forcing them to advocate unpopular tax measures. There is no way around the conclusion that this is rank irresponsibility on the part of the administration.

Listen to Senator McCain:

One senator who says he wants to delay votes on taxes, John McCain, Republican of Arizona, said he was open to the idea of reducing taxes, "but not now." In a speech on the Senate floor, Mr. McCain added, "Not until Congress and the administration have a better understanding of the costs of war and peace."

RIDGE: ASYLUM SEEKERS FACE LONG DETENTIONS. . .

but now it's because of the threat of terrorism. The White House announced DHS's "Operation Freedom Shield" yesterday as the domestic component of the war on Iraq. Read the press release here. One of the elements of "Operation Freedom Shield" that people should find troubling is announced in the following paragraph:

Asylum Modifications

Asylum Detainees - Asylum applicants from nations where al-Qaeda, al-Qaeda sympathizers, and other terrorist groups are known to have operated will be detained for the duration of their processing period. This reasonable and prudent temporary action allows authorities to maintain contact with asylum seekers while we determine the validity of their claim. DHS and the Department of State will coordinate exceptions to this policy.

Three things are strange about this announcement. First of all, many asylum seekers are already subject to long detention periods in the U.S. while their cases are being processed, as Amnesty International has been noting for a while (see also here). A backlog of asylum cases already exists, and people are already being detained while their cases are being processes, so what's new here? The only thing that seems to be new is the terrorism justification, and perhaps the announcement of a flat rule. Thus, it seems like this policy is announced as a way for the (ex-)INS to cover their butts and provide a post hoc justification for something they've already received some heat for. And one more question presents itself: how can an existing policy be defended as a new program that is "temporary"? Does Ridge mean that we will "temporarily" continue this policy that we've already been criticized for having? I must not be understanding something big here.

Secondly, there is no mention of numbers, which is not surprising in and of itself, but one is still left wondering how many people this policy will affect. I found a few indications, but would love to see newer numbers if anyone has them: According to the U.S. Committee on Refugees, Preliminary data for 2000 showed a backlog of 329,115 asylum cases, with 48,054 new cases filed that year. Several thousand people are likely to be affected by this policy -- whatever the policy actually is, and depending on which countries are on the list. For an overview of data on asylum seekers broken down by country of origin, see the USCR data here, and the official refugee and asylum report from the U.S. government for 2001, here (PDF file). The index page for gov't stats on asylum seekers is here.

Thirdly, what's the reasoning here? We're told by DHS that it's a "reasonable and prudent" policy as well as being temporary. I've already cast doubt on the adjective "temporary." Eric Muller wonders about the other adjectives. If the countries affected are those that fall under the "special registration procedures," which I'm going to assume here, what justifies their detention? Why is it reasonable to assume, as this announcement seems to indicate, that all asylum seekers from Iran, Iraq, Libya, Sudan, Syria, Afghanistan, Algeria, Bahrain, Eritrea, Lebanon, Morocco, North Korea, Oman, Qatar, Somalia, Tunisia, United Arab Emirates, Yemen, Pakistan Saudi Arabia, Bangladesh, Egypt, Indonesia, Jordan, or Kuwait need to be kept under lock and key while their asylum applications are processed?

MORE ON JUDICIAL SELECTION

Larry Solum and Rick Hasen gave very kind responses to my post on their debate on judicial selection. My basic point is that any formalization of the judicial selection process that doesn’t take into account electoral pressures is probably misleading. My response here is a bit long-winded and I'm especially subject to correction on my admittedly sketchy understanding of different interpretive approaches. I'll admit that cross-disciplinary dialogues are especially exciting for me as well.

My assumption is that Senators and Presidents define their interest and preferences narrowly. There are probably some differences in nuance, but both Senators and Presidents want to be reelected. The expected utility of any decision that they take will be the extent to which it increases their electoral chances. Any myopia in this process is due to the short time frames of the electoral cycle. I’m not really sure how long-term time horizons even have a place here, especially given the fact that the nominations process is a continuous drama. A strategy of politicization needn't assume long-term control because the immediate electoral benefits of politicization are quite high.

Senators have politicized the nominations process because they expect the politicization to further their electoral chances. This is certainly true of the President as well. Bush, at least, ran on an explicitly partisan agenda with respect to the nominations process. Democrats have been obstructing Bush’s choices not because they are still sore over the treatment of Clinton's nominees; they’re doing so because of interest group pressure that they fear will make itself felt at the polls.

The use of formalist rhetoric, at least, is itself a political act. Listen to Senator Jeff Session's speeches. They sound formalist: Estrada will "uphold the law" and he has great qualifications, so he should be accepted. But Sessions's obvious understanding of what “upholding the law” means is realist. His constituents, or at least his attentive ones, know that as well. Sessions has been explicit about what he wants from courts: rulings in favor of free exercise protections for Christians; rulings in favor of an Establishment Clause understanding that benefits Christians; rulings in favor of property owners who are battling “unelected bureaucrats” in the EPA. Formalist rhetoric (“upholding the law”) has become codeword for a Republican realist jurisprudence.

It could be that I'm not quite clear on what neoformalism actually means. But it seems to me that attempting to "follow the law" in a minimalist fashion, in and of itself, even if that means tethering oneself to dominant norms in the judicial culture, will not produce non-political decisions or decisions that evade persuasive charges of realism. There are enough layers of precedent and principle on contentious political issues that judges have substantial freedom to employ the tacks they like for other reasons. Perhaps the legal culture has produced neutral descriptions of the core meaning of certain rights, allegiance to which would mean neoformalism. My own scholarly limitations shine through here. . .but I haven’t seen much consensus in the legal culture on the issues that interest groups pressure Senators and Presidents about. (As a side note, I mistook Rick Hasen’s “broad equality right” to be a larger category -- sorry about that! -- and I defer to his claim about redistricting.)

My central claim is this: Even if we could say what an unambiguously formalist decision would mean on abortion, sexual privacy, disestablishment, free exercise, guns, or takings (to name a few), Senators from both sides of the aisle will not be better off if they pick judges who really are formalist. Powerful interest groups such as the NRA and NOW can make a credible threat that they will punish Senators who approve of judges who can be expected to rule against their interests and constituencies. Unless neoformalism means a perfectly random distribution of burdens among interest groups, Senators will still feel the heat.

Larry Solum is right to claim that Republicans claim that neorealism is attractive to Democrats because they seem to care more about responding to their constituencies than upholding the rule of law. I can't see any reason to refrain from the same charge against Republicans, however: think about guns, or affirmative action, or several areas of criminal justice. My guess is that Chuck Schumer advances an explicitly realist account of appellate judging because he wants to expose the (Sessions-esque) Republican realism that masquerades as formalism. Maybe his hope is that he can shame Republicans into reinvigorating the informal agreement that has governed selection for the DC Circuit, for example: explicit ideological balancing. Republicans are on a roll, however, and they’re going to push their own political judicial choices as far as they can, because they believe that it will be electorally useful for them to do so.

In the design of bureaucratic institutions, members of Congress often opt for one of two strategies: they seek an explicitly ideological balancing in membership, or they seek to hobble the institution so that it can’t make decisions they don’t like. I think I recall hearing David Mayhew refer to the last strategy as “building a camel.” We’ve seen both of these strategies in the Senate in the past few terms. They are both sensible strategies, but they also both require an explicit recognition that the fear of ideologically undesirable outcomes trumps the supposedly neutral qualities of procedure or expertise. Attempts to influence judges through changes in the legal culture, as in: pushing them toward a new interpretive approach, would be like recommending that bureaucrats just “do their job well” or “be good, neutral bureaucrats” and hoping that this satisfies members of Congress. It’s too late in the life of the appellate courts to see that as a realistic suggestion, in my opinion, although I am, as always, willing to be persuaded otherwise. Proposals like Bruce Ackerman’s -- copy Germany by ditching lifetime tenure and crafting a supermajority rule to weed out the extremes -- have essentially the same quality as the strategies that govern the design of bureaucratic institutions. His approach would require an explicit recognition of the existing realism in both parties’ approach to judicial selection as well, but I think that’s the most profitable long-term route.

I realize that there is a tension between the narrow "electoral connection" claims I make at the beginning and the more complicated "politics of bureaucratic structure" claims I make at the end, but I can't figure out how to bring them into harmony tonight. . .plus, I've still got Bush's speech ringing in my ears, begging for my attention. "48 hours."

THE REST OF THE WORLD

I don't have anything particularly smart to say about Iraq, so I'll just note a few highlights from editorial pages around the world. Especially during a war, it is imperative to go to foreign sources for good commentary and information. You won't hear very much of value emanating from the echo chamber of CNN, for example. I'll put money on that.

Spain's El Pais continues its opposition to a war that it calls "illegal and immoral," lashes out at Aznar for refusing to provide a convincing case for Spanish participation in the effort, and laments the "paradox" of the situation: weapons inspection seemed to be working, but this is a war justified at least in part by the desire to disarm Iraq. The paper also hopes that the U.S. will use an appropriate level of force "against a relatively small country plagued by 12 years of sanctions and a dictatorial regime."

The Singapore Straits-Times lays the blame for war squarely at the feet of France.

French President Jacque Chirac's [sic] decision that France will say 'no, whatever the circumstances' was a marvellous piece of Gallic hauteur, but a disastrous act of diplomacy. Resolution 1441 - drafted and passed unanimously in November last year with France's active participation - had clearly threatened 'serious consequences' if Iraq failed to disarm immediately. If Mr Chirac did not mean this, why did his country vote for 1441? It is possible that if France, Russia and others had made it clear from the beginning that they were prepared to back the use of force, Iraq may well have disarmed by now. Peaceful disarmament could have been a possibility only if it had been backed up by a credible threat of force. Mr Chirac will have to live with the thought that the constant downplaying of the possibility of war may well have made war inevitable.

Several German papers also argue that French intransigence has helped to cause the current crisis. Berlin's Der Tagesspiegel blames both France and the U.S. but not equally: the French seem to have been more concerned with hemming in the U.S. than with hemming in Iraq; the price that France must pay is harm to the U.N., a body that exaggerates French power, and probably harm to the relationship with Germany, since both now realize that the French are interested in power politics more than international alliances. But the Tagesspiegel argues that the Bush administration has not played straight, either: it is really interested in a drastic remaking of the world order in the face of the increased threat of terrorism with WMD's. During his diplomatic wandering of the past few months, Bush has never attempted to defend that view outright. Now, according to the Tagesspiegel, he should. Without a larger dialogue, all we'll get is power politics.

The Sueddeutsche Zeitung's Wolfgang Koydl argues that Bush's inability to convince allies of the justness of his cause in Iraq is "a defeat for America." Koydl argues that it actually should have been possible for the U.S. to convince allies (European and otherwise) that Saddam Hussein is the greatest hindrance to peace and stability in the Middle East. The reason for Bush's failures here, according to Koydl? Reciprocal mistrust. The Europeans don't believe any more that "the U.S. also acts in the interest of the world community when it acts in its self-interest." But Koydl issues a call for the renewal of trust, "otherwise, only Saddam has won."

Le Figaro's Charles Lambroschini raises doubts about the U.S.'s post-war plans in Iraq and the administration's "reverse domino theory" of the spread of democracy. Lambroschini recalls the British exercise in imperialism in the region in the early twentieth century and argues that Bush will probably learn the "lesson of empire," namely, "There is never a easy response to complex problems." Le Monde's Pierre Georges gives us an extended poetic metaphor linking the weather in France, the seasonal storm patterns from the Azores, and the upcoming war, but I really have no idea what to say about it.

Worth more attention, probably, are the editorials in Pakistan's Dawn and the Iran Daily. Dawn focuses on Bush's plans for the Israeli-Palestinian dispute and worries that Bush will lose interest once the war with Iraq is over:

The fate of the new proposals following an attack on Iraq is also unclear. With Israel likely to call the shots following a war, there is no guarantee that an emboldened Tel Aviv will stick to its part of the deal. However, the most serious problem the new initiative faces is one of credibility. The Arab world will see the move not as a sincere attempt to resolve the thorny issue but as a cynical attempt to appease Arab feelings in the prelude to an attack on Iraq.

Washington must be reminded that Palestine is far too fundamental and emotive an issue for the Muslim world to be treated as a mere footnote to the invasion of Iraq.

The Iran Daily sends a curious message with its editorial today, "Focus on Development" (no direct link). After accusing the U.S. pundits and news media of preparing public opinion for future U.S. pressure on Iran (on WMD's and human rights), the paper notes that continued political openness and economic development will be the only way that U.S. "machinations" can be countered. The Daily worries that U.S. attacks on Iran's human rights record divide Europe and allow the U.S. to present a more unified front. Invasion seems less of a threat [or possibility] to these [Iranian] folks than economic pressure.

Let's hope that such moderate voices continue to have a hearing in Iran after a U.S. invasion and occupation of their neighbor. Iran may be the first critical test of the administration's "reverse domino theory."

INDEED

If you're interested in a thoughtful discussion of Yale's (not-so-secret) division between graduate and undergraduate students, read Eric Tam's post here -- the permalink's busted, so read through Eric's discussion of the grade strike and his thoughts on GESO, and then find the post called "Grads and Undergrads." David's reply is here.

I echo Eric's thoughts wholeheartedly. Teaching Yale undergraduates was a wonderful experience for me. I found Yale undergrads to be very decent and very thoughtful people. (That includes Josh, of course. . .) Eric is right when he claims that many graduate students join GESO because they love teaching Yale undergrads and because they are attracted by GESO's attempts to reduce section sizes and provide more training and recognition for teachers.

Eric describes himself as a "(somewhat skeptical) member." Almost all of the people I identified with in GESO described themselves in that way. There is a more radicalized core of GESO members who do most of the organizing and mobilizing, but many or most of them also do it because they love teaching. Corey definitely loves teaching. I haven't talked with him recently, but I doubt that he meant to imply that Yale undergrads are uniformly imperious or even close to it.

You have to admit, though, David, that you all definitely had a better deal in many respects. Better dining halls. The exercise equipment in the colleges must have been nice. And those cool college libraries. . .and college courtyards. . .and having a college Dean go to bat for you when you have a tussle with a t.a. or a faculty member. . .

I was never jealous, though. Not at all. No, sir.

JUDICIAL SELECTION RARIFIED?

The discussions of the pitfalls of a politicized judicial nominations process at Lawrence Solum's Legal Theory Blog are interesting, but have an aura of unreality about them. See the last post here and scroll down for earlier posts. Note in particular Solum's recommendations, which seem to me to be an academic version of the advice given by the Washington Post editorial pages: "be nice." This is not to slight Solum's intricate analysis, though. I do think that his attempt to model the judicial selection process as a prisoner's dilemma overestimates the gains that the political parties would get by nominating what he calls formalist judges. A formalist rhetoric, as it would be likely to play out in practice, probably is more persuasive to Republican constituencies anyway, and senators need to be able to defend their judicial choices to existing constituencies. Plus, Republican "formalism" isn't really formalist anyway. In addition, the political gains to be had by court-bashing, particularly in the south, should not be understated. So I'm skeptical of the prisoner's dilemma formulation, as I said before.

By academic training as well as sentiment I find Rick Hasen's argument more persuasive, at least to the extent that he argues that the political nature of Supreme Court judging cannot be denied, and any change to the nominations process should take that into account. This is basically Chuck Schumer's position as well. Is it surprising that a Senate Democrat is pushing the "Court is political" argument? Not really.

Hasen bases his case on his recent work on election law. Hasen also makes a recommendation to the judiciary that they should refrain from creating new, controversial equality rights and should instead leave that area of policy to the legislature. If your goal is to reduce the partisanship in the nominating process, this strategy probably would only produce minimal gains, though. And still the dilemma exists: do we really want to rely on legislatures to refrain from punishing gays and lesbians through sodomy laws? You can redefine the issue as one of privacy and avoid the "new equality right" problem, but that's a sleight of hand, really.

[Note: I'm not saying that you can't attempt to describe the nominations question in terms of game theory. I'm just saying that our assumption shouldn't be that cooperation in picking formalist judges is preferable to a mutual picking of political judges.]