IN BOSTON

. . .Heidi's exhibit at the Museum School 5th year show is up until May 3rd. Go see it. It's very good.

SPEAKING OF PICTURES

warms my heart.

And with that, I'll call it a day.

DIARIO YUCATAN

The folks at Diario Yucatan have redesigned their web site. And it looks like you don't have to register any more. That's good, since I don't think that their security was very good; I once got a whole inbox full of spam that I think came from someone who got addresses from these folks.

The ads are a bit dizzying (right now you can see one for an appliance company that features flashing lightning). But if you want to read about proposals for urban reform in Merida, for example, it's a really good place to go. They also have good photos of the day. Check out the picture for April 23.

INDIA TEAMS UP WITH RUSSIA?

The Times of India is reporting that India is leaning toward the Russian position on lifting sanctions on Iraq only after UN certification that the country is free of banned weapons. Read the article here. Perhaps the Russians and now Indians will attempt to capitalize on recent stories that the administration overstated the extent of Iraqi WMD possession in order to pursue broader foreign policy goals.

HELP THE NEEDY PROSECUTIONS UPDATE

Osameh Al Wahaidy has pled guilty to violating US sanctions against Iraq. Read the Syracuse Post Standard article here. Read the following paragraphs:

Al Wahaidy cooperated with FBI agents on the day of his arrest Feb. 26, answering their questions about Help the Needy for eight hours, Williams said.

Some of Help the Needy's donations went to two organizations that the federal government has since cited as financial supporters of terrorists, according to investigators. Assistant U.S. Attorney Michael Olmsted would not comment on whether there's any evidence that the charity's money helped terrorists.

Al Wahaidy gets sick to his stomach when he hears suggestions that the donations were intended to help Saddam Hussein, al-Qaida or any other terrorist groups, Williams said.

"He's hoping people in Central New York understand what his motivations were," Williams said. "Osameh is happier than anybody that Saddam Hussein is out of there. He's doing cartwheels over that fact."

Al Wahaidy did not admit that he conspired to violate the U.S. sanctions. He admitted he continued to raise money for Help the Needy even after he realized the organization was circumventing the sanctions. If the charity had received permission from the U.S. government to provide aid to Iraq, the money would have ended up in Saddam's hands, Williams said.

Hardly seems like the dangerous guy that the federal prosecutors made him out to be after they announced the prosecutions in the run-up to the war in Iraq.

ADD AT RNC:

Just in case you're curious, today's RNC e-mail doesn't even mention Iraq. What's eating the folks over there these days? Two things: Why Bush's poll numbers won't predict the election, and why Republicans really do care about the environment.

War's over, folks. No, really.

HHS GETS REALLY SERIOUS

I've been getting the RNC mass e-mails again. Today on GOPTV, I learned about Tommy Thompson's HHS initiative to help prevent cancer among minority groups (press release here). The two main elements of the initiative: an education campaign telling African-American males to eat 9 fruits and veggies a day (with a website!), and "Take a Loved One to the Doctor Day," September 16th.

I wonder if people will be able to write something on a card, like, "I'm Taking my Loved One to the Doctor Today, as President Bush's Team at HHS wants me to," and then get free medical care.

Bush's HHS: All talk, all the time.

GALLOWAY COULD BE TOAST

Read the CSM article here (thanks, John!). I'm happier with the circumstances surrounding the discovery and use of these documents than I was with the earlier ones.

WAR CASUALTY?

Any ambiguity on gay rights issues at Bush central is evaporating. (Via How Appealing and Atrios, who was already less sanguine than me.) For a nice collection on Santorum go to HRC. I wonder if recent HRC praise of Santorum on being gay-friendly on the Faith-Based Initiatives issue has caused him to run back to his right. Jetzt scheiden sich die Geister.

SPEECHLESS

Um. . .

WORTH A THOUSAND WORDS

The caption for this picture should read:

"little bitty tax relief package!"

Argh. That's a quote: see the text of the speech here. He's talking about the compromise plan, at least. Sure doesn't seem "little bitty" to me.

Found these pictures through Bo Cowgill's site; Bo calls these pictures "thoroughly creepy," especially this one.

MORE: Skimble likes these pictures, too. . .

RECESS APPOINTMENTS.

In response to Hugh Hewitt's suggestion (see my comments here) that Bush should use recess appointments to circumvent the Senate Dems (and to up the stakes in the nominations battle), Howard Bashman points to his 2001 article arguing that recess appointments to the federal judiciary are unconstitutional. The main argument is that judges who are recess appointments do not have the requisite independence, by virtue of their impeding re-nomination and confirmation process, to act as good Article III judges. The article notes that Presidents have made 310 recess appointees to the judiciary (11 to the Supreme Court), and the major recent case on recess appointments (U.S. v. Woodley, 751 F.2d 1008, on a challenge to Walter Heen's appointment) notes that Kennedy and Eisenhower made 53. According to Bashman (and the dissenters in Woodley), however, historical practice does not outweigh the constitutional principle of separation of powers and the need for judicial independence. The recess appointment power from Article II loses to the judicial independence mandated by Article III.

I haven't studied the issue in depth, so take my comments for what they're worth. Since I am not a judicial actor, I would be inclined to at least entertain an alternate line of analysis, one that focuses less on the needs of the judiciary and more on the reasons for executive power. One important aspect of executive power is the ability to respond to crises quickly and decisively. The recess appointment power seems designed to give the President the ability to respond to a staffing crisis when Congress is not in session.

Whether or not a crisis in judicial staffing because of partisan stubbornness is enough of a crisis to justify recess appointments is a tough question. As I've said before, I'm suspicious of the rhetoric of crisis at least insofar as it comes from the mouths of Republicans who have bigger fish to fry than the question of judicial caseloads. The issue of whether or not there really is a crisis in the judicial nominations process is one that has serious implications for the political system as a whole. Eagle Forum-type folks would see a crisis if Dems were able to put lots of their picks on the courts; they think that courts shouldn't be doing a lot of things that they are doing right now. Bush is certainly playing to that audience, as are many of the Senators railing about Democratic obstructionism. But judicial actors also argue that there is a staffing crisis, and they are not (always) pursuing partisan goals in doing so.

So, ultimately I'm undecided on the issue. I doubt that the judiciary would be or should be deferential regarding executive determinations of whether or not there is a crisis in the judiciary itself; presumably they would know more about that than the president, at least with respect to caseload management issues. I would want to know more about actual presidential defenses of the recess appointment power, however. My intuition is that the President can rely upon an explicit textual provision and on historical practice in exercising the power, and that the use of the power requires judgment that should be subject to political checks rather than to judicial policing of the separation of powers. I'm willing to revise that view after further thought, however.

ANITA IS NOW A DIXIE CHICKS FAN. . .

At least with respect to their willingness to engage in criticism of the President and to stick by that criticism. The music. . .well. . .

HUGH HEWITT ON NOMINATIONS

Over at the Weekly Standard (where I usually only enjoy reading David Brooks), Hugh Hewitt recommends that Bush use recess appointments to fill vacancies with judges he likes and also with "rock-ribbed conservatives who might be willing to serve 15 to 18 months for the good of the cause."

Hewitt is a little worried about his recommendation, since, according to his own terms, this would be a "fundamental change in the nomination process, though a constitutional one." The change is necessary to counter what he sees as an irresponsible Democratic obstructionism that is "wrecking a judicial nomination and confirmation process that has worked for more than two centuries." And who was at the beginning of this constitutional waywardism? Yep, you betcha: Bill Clinton.

Bill Clinton broke the taboo against recess appointments to the bench, however, with his end-of-term appointment of Roger Gregory to the Fourth Circuit Court of Appeals. . .

If you're going to defend something that is supposedly two hundred years old, you probably should know something about it.

Here's a (perhaps incomplete) list of recess appointments by Presidents to the federal bench in the second half of the 20th century, compiled from Sheldon Goldman's Picking Federal Judges:

• Truman: Neil Andrews, Carroll Switzer, Burnita Matthews, William Hastie


• Eisenhower: Andrew Caffrey, C. Nils Tavares


• Johnson: John Davis, A. Leon Higginbotham, Spottswood Robinson (all Kennedy appointees)


• Carter: Walter Heen

Not all of these recess appointments were made because of presidential disputes with the Senate, but many were.

I'm sorry, but I don't have much patience with people whose political memory (and research) only goes back as far as the first Reagan administration, but who make claims that are supposed to hold for "two centuries."

If Bush wants to go for recess appointments, let him go ahead. And eventually the voters will either punish him for this or they won't.

MORE: By the way, Hugh Hewitt tries to make out as if Democrats have been ungentlemanly while Bush has been sweet as a basket of honey flowers:

Bill Clinton broke the taboo against recess appointments to the bench, however, with his end-of-term appointment of Roger Gregory to the Fourth Circuit Court of Appeals--an appointment President Bush made permanent through his nomination and the Senate's consent as a gesture of conciliation. That gesture and many others have been rejected as inadequate by the Leahy-Daschle-Schumer-Kennedy caucus. Kindness didn't--and won't--work. Stronger measures are called for, not only to meet real needs for judges, but also to bring the controversy to the public's attention. The Democrats have crashed the process and shredded the traditions because of the pressure of abortion absolutists. Their record is a sorry one, and attention generated via the recess-appointment power will help shine light on their excess.

OK, so Roger Gregory's appointment was made permanent. What Hewitt forgets to mention ist that the only reason Gregory wasn't approved in the first place was because of the bitter (and racially charged) obstructionism of Jesse Helms, and that Gregory is the only African-American on the 4th Circuit, and that Bush had to be persuaded to renominate him (he didn't just do it out of the kindness of his heart). Bush could have refused to reappoint him but it would have been politically stupid.

Reagan faced no such repercussions concerning the renomination of Walter Heen, whom Carter had appointed to the federal district court of Hawaii. Reagan refused to renominate him.

RASHID ON SECURITY IN AFGHANISTAN

Read this article from Eurasia Insight. A taste:

Despite the progress on creating a national army, Afghanistan’s security situation looks shakier than it did shortly after the Taliban fell in late 2001. As reinvigorated Taliban and al Qaeda fighters have targeted both American military bases and reconstruction projects, aid agencies have fled many areas and violence has become more commonplace.

Link from Counterspin Central.

DAVID BROOKS IS A SMART GUY

This article in the Weekly Standard is important. As pointed out here at Innocents Abroad, one of the important contributions of this article is to introduce another character into Brooks's social typology: Joey Tabula-Rasa, the average American college kid who awakens to political life as American troops are rushing across the desert in Iraq. Brooks's speculative recasting of pro-war folks as "progressives" and anti-war folks as "conservatives" for the purposes of exploring Joey's political experiences is interesting but may be more useful as a tactical move in support of Republican ideas. I'll have to think about this some more. The virtue of Brooks's piece is that it attempts to show that events create lessons that can challenge received ideas. For Brooks, the ideas that need challenging are all on the left, of course. . .

WINDOWS 2000 QUERY

Anyone have any idea what the files contained in: C:\WINNT\system32\rmtcfg\files\ are supposed to do and if there is any reason why I shouldn't have deleted them? Looked like some hackers had been fiddling around in there.

AND YOU THINK WE'VE GOT IT BAD

The New York budget talks have caused some fear among university employees -- perhaps fear is too strong, and "vague sense of unease" would be more precise. But we've got it good compared to the universities in Berlin, which, according to this Berliner Zeitung article, have already made some drastic cuts and are considering more. The Humboldt University in central Berlin is considering not taking any first semester students (presumably transfers would be o.k.); the Free University in Dahlem is considering giving up the administration of the Botanical Garden, and both the FU and the Technical University are considering severely tightening entrance requirements. The idea behind these (and other) proposed reforms is to cut the number of students in Berlin from 85,000 among three main universities, to around 65,000. Raising tuition is another possibility (probably that's what will get NY out of its immediate university funding problems), but Germans are notoriously resistant to the idea.

I'M NOT REALLY UPSET BY THIS.

From Ramesh Ponnuru's attack on Colin Powel in NRO:

But Powell has been out of step with Bush at least as often as he has agreed with him. He insisted that America had no intention of toppling the Taliban even after the administration had plainly adopted that goal. He’s been a missile-defense skeptic. His deputy, Richard Armitage, has been more indiscreet. Last year, Armitage slammed supporters of war in Iraq, presumably including the president, as chicken hawks. In February of this year, he told the Senate that bilateral talks with North Korea were a good idea. (President Bush was “off-the-wall angry” about Armitage’s testimony, according to the New York Times.) Armitage has also described Iran as a democracy — this, more than a year after Bush called it part of an “axis of evil.”

Right. Prez says "jump, you bureaucrats," and you're supposed to say, "how high?" Not, "but there may be a cliff there, George." Link from the TAPPED piece on the recent "attack the State Department" line, which is worth reading.

BAD MEMORIES FOR THE NEXT TIME AROUND.

This is a story about why you should read foreign news sources. And it's a story about why you should still be upset about Florida in 2000. From Bureaucrat by Day.

POSTHUMOUS CITIZENSHIP

Over at Talk Left, the idea of posthumous citizenship for soldiers is "insulting." Could be; if some people view it as a sign of unfulfilled promises, that's entirely reasonable. As I noted earlier, the broader question is what other sorts of concessions the government is likely to make during wartime. In and of itself posthumous citizenship is symbolic: the dead don't care what country they hale from. But when people die, we do things that are meaningful for us, not for them, even if we do it "to them". Posthumous citizenship is a good idea not because the dead care, but because it can help to create pressures for other kinds of government action around citizenship that will be meaningful for the living.

GALLOWAY TODAY

The Guardian's article is here, and the Times (UK) indicates that Galloway may be toast in light of other, unrelated allegations of shady dealing that have surfaced recently.

A quote from this article in the Guardian (which discusses the procedures that journalists must now go through to look at documents) can be used to underline the concerns I expressed when initially reading about this story:

A small team of Iraqi men from the US-funded Free Iraqi Forces have set up their camp-beds beside the main foyer where a broken chandelier still hangs. They allowed reporters into the building yesterday, but, taking a leaf out of Saddam's book, they insisted that every group had a minder with it. Documents could be read and notes made, but nothing was allowed out of the ministry.

This was in contrast to scenes over the past few days when an American television network took carloads of documents from the foreign ministry and other civil service buildings. Several key treaties from Iraq's diplomatic archives have been removed by the American television reporters.

It is not too much to call this kind of behavior journalistic looting (sorry, John! You should start blogging yourself and tell me why I'm wrong. . .). An official building is smashed up, some things are destroyed and carted off, and some individuals move in to rummage around for things that they want. Again, journalists have a public function that criminal bands of looters do not (pace Derbyshire's weird looting for humanity argument), so the comparison is not exact; we want journalists to try to find things that government officials want to hide, and this process puts journalists at odds with government file systems. Think of the Pentagon Papers, for example. But if you're concerned about the usefulness of files for political reckoning among Iraqis themselves, then you'll probably find the wholesale carting off of documents by American TV crews to be brazen and unacceptable behavior, and you'd also worry about members of the British press rooting around and carting off documents and, apparently, copyrighting them (as the Telegraph seems to have done with the documents it found).

An analogy with archaeology can be helpful. When I was in the Yucatan on an archaeological dig, I learned a lot about the importance of provenience. When you find a shard of pottery, you want to be able to record where it was found on your map of the area so that you can take the isolated shard and put it in the context of other shards and other artifacts. Otherwise all you've got is an isolated object, a kind of broken historical grunt, if you will. The same goes for files: you need to know where they come from, what sort of organizational scheme they're a part of, probably when and how they were found, and so on, precisely so that you can assess the importance of the information by putting it in a context. The Stasi files in Germany were only useful for political and social reckoning with the past, to the extent that they were useful, because they were made useful by a carefully controlled process. The same care should be taken with the Iraqi files. I think that this is extremely important.

I have no idea whether the charges against Galloway are true. If the Washington Times correspondent in Baghdad found some files on Nancy Pelosi, you'd be suspicious, but that wouldn't make the charges untrue. As I said earlier, the charges against Galloway should be investigated thoroughly. In the grander scheme of things, however, even though journalism does fulfill an important public function and we hence shouldn't box journalists out entirely, I'd be concerned with preserving these documents for Iraqi use.

MORE: In favor of the credibility of the journalist in question, see Junius.

BULLETPROOF MONK.

110 minutes of your life that you will never get back.

It's worse than you could have imagined. Paul Hunter's direction is incoherent. You could sail the QEII through some of the plot holes. And beware action movies with Nazis and their progeny.

Yikes.

DISCOURSE, POLITICS, AND WAR

See the fine post at Body and Soul on what on-line writing means now for one particularly eloquent (and inspiring) practitioner. The results are unsettling. Turning to Chris Hedges, in print, is a good thing to do:

Yesterday, I started reading a quirky but fascinating book -- War Is A Force That Gives Us Meaning, by Chris Hedges who draws on his experience as a New York Times reporter in Latin America, the Balkans, and the Middle East, as well as the history of writing about war, to explore the myths of war, the myths it takes to create a war-intoxicated society, and what has to be destroyed in order to feed those myths. And the main thing that falls by the wayside is the ambiguity and complexity that are the essence of truth. And the hardest thing to do in a country wrapping itself in war myths is to avoid creating counter-myths and continue behaving like a thinking and feeling human being.

TAKING POLITICAL STOCK IN FRANCE

In an editorial today reflecting on last year's elections in France in which the rightist Le Pen made it into the second round of presidential voting, ("One year after"), Le Monde argues that neither the left nor the right has been able to respond to the widespread political dissatisfaction that led to last year's results. Le Monde argues that the right has made a good effort but that the economy remains a serious problem and that the resulting social tensions remain a threat. The left, however, hasn't been able to develop a coherent legislative plan to address the needs and concerns of the disaffected. (Le Figaro points to a possible cause: the left is still in a phase of "introspection," or, as one might say in these parts, navel-gazing.)

Le Figaro has a series of short recollections from journalists, polsters and pols, all of whom note that the results of last April were shocking for them. Pollster Pierre Giacometti reminds us that the data before the elections indicated that 41% of voters were undecided; the results were, in his words, "unforseeable." Journalist David Pujadas said that the Le Pen win was so unbelievable that he had to "pinch himself," to make sure he wasn't having simply a bad dream. Cecille Helle from Jospin's PS (big losers) notes dryly on her choice to vote for Chirac in the second round in order to vote against Le Pen: "It's not as simple as all that to vote for your political adversary. I needed a few days to think about it."

Liberation notes that recent protests against Le Pen's party, meeting in Nice, have been a bit of a flop, if festive: police say 600 people showed up.

ELECTIONS IN NIGERIA

Read This Day's round up of the results here and a discussion of the concerns raised about fraud and intimidation here. Read the Vanguard's coverage of allegations of fraud here, and coverage of a potentially nasty leadership dispute in Delta state here. Le Monde also has a story that highlights the EU's reaction to the election irregularities.

MORE: See also the editorial in the Hindustan Times here.

INS DOESN'T NEED TO TRY VERY HARD

If the INS doesn't manage to send you a letter about a deportation hearing, even though the INS has your address because you have told them about it, tough luck for you. That seems to be the lesson of Manjiyani v. INS, a recent case from the 9th Circuit. Read the opinion here (PDF file). I don't know much about immigration law, so I don't really understand whether or not Manjiyani, now a mother of two and married to a legal permanent resident, will be deported to India because of this ruling.

ONE REASON I LIKE HOWARD DEAN

Read his statements on Rick Santorum's attack on gays here. Via atrios. The Bush administration does have to make a choice here. It's at least plausible -- not necessary, but plausible -- to describe the Bush administration's relationship to gays and lesbians as one of "semi-benign semi-neglect." As the election heats up, I suppose we'll get a chance to see whether or not this, too, will become a casualty of Bush's perceived domestic political near-invincibility. We already know that Bush really just wants to cut taxes, come hell or high deficits. We already know that he wants to stack the courts with his extreme nominees -- and that the next-best outcome for him is to whip up his conservative, court-hating base with tales of predictable Democratic "obstructionism." We already know a lot. Maybe we'll know a lot more as the primaries approach.

GALLOWAY AND OIL MONEY

John Gould sent me links to these stories today on the alleged connection between George Galloway and Iraqi oil money, and Galloway's threatened libel suit against the Daily Telegraph. The Telegraph has a story based on a Baghdad correspondent's claimed discovery of secret files pertaining to a meeting in 1999 in which Galloway, a high-profile critic of the sanctions regime, asked for a bigger cut of the oil sales.

It's clear that the Telegraph has it out for Galloway; it's also clear that these allegations are serious and require detailed investigation. I'm sure this will not be the last time we hear about this kind of scandal based on Iraqi secret documents. I'm a little disturbed at the image of Telegraph reporters rummaging around buildings in Baghdad in search of files for attack articles, though. There's a parallel between this kind of journalistic looting and the more physically and culturally devastating acts of looting over the past few weeks. It's not a parallel that I'd want to [push] too strongly, of course; the burning of the National Library and the sacking of the National Museum are cultural tragedies of the highest order. Moreover, one of the reasons we have journalists is so that they can dig up dirt on politicians who are engaged in shady dealing. Trusting U.S. or British officials to take property over all of the files would be naive as well; they have their own interests to protect, especially given the outstanding proof of Iraqi WMD's and the still relevant questions of who supported Iraq and who supplied them with their weaponry in the first place.

What will ultimately need to happen for the health of Iraqi politics is a public and orderly coming-to-terms with the old regime. The files will be an essential resource for that effort, should it be undertaken (and we should hope that it will). I hope that Telegraph journalist David Blair, and all similarly situated reporters, give their "finds" back to Iraqi government officials at some point.

UPDATE: At least Kevin Drum agrees with me, in a sense. He asks:

What are these guys doing rummaging around Iraqi ministries? Shouldn't the coalition forces be carefully scouring those buildings themselves?

BETTER COPY-EDITING, PLEASE.

I suppose I shouldn't talk about web errors. Look at this headline, though: "Struggle against U.S. and war called for." My heart lept a bit when I read this line at the North Korean Press Agency site for the first time. But it's just more of the same. My favorite article from today is "Imperialists' ideological and cultural poisoning under fire."

BLACKWILL QUITS

U.S. ambassador to India Robert Blackwill has announced that he is resigning his post and returning to his academic career (see his Harvard page here). Read the Times of India story here ("U.S. dismisses policy rift with Blackwill"), the Indian Express story here ("US envoy Blackwill pays for his pro-India line"), The Hindu's coverage here ("Blackwill quits, returns to Harvard") and Dawn's coverage here. The Indian Express also carries Blackwill's statement here. The heart of the issue is contained in the following paragraph from Blackwill's statement, especially when read with Dawn's line (below):

With respect to the global war on terrorism, President Bush emphasises that this scourge threatens both our values and our interests. As I have said many times during my stay in India, the fight against international terrorism will not be won until terrorism against India ends permanently. There can be no other legitimate stance by the United States, no American compromise whatever on this elemental geopolitical and moral truth. The United States, India and all civilised nations must have zero tolerance for terrorism. Otherwise, we sink into a swamp of moral relativism and strategic myopia. As was so often the case, the late Daniel Patrick Moynihan put it best, ‘‘reason and careful moral reflection...teach us that there are times when the first and the most important reply to evil is to stop it.’’

And from Dawn, as usual, not without Schadenfreude:

Analysts said Mr Blackwill's tenure would be remembered for his handling of the post-9/11 fallout in South Asia, including his hands-on approach to defusing last year's menacing nuclear standoff between India and Pakistan.

However, he was perceived by some as being too close to the rightwing Hindu nationalist establishment in India to be able play an honest broker between New Delhi and Islamabad.

On the other hand, he had apparently failed to persuade India to support Washington's most important agenda in the Middle East, analysts said.

The Indian Express (here's the link again) plays up the claim that Blackwill is too pro-India for the tastes of many in the Bush administration.

YOU'VE PROBABLY SEEN THIS

Political Aims targets Bush's web folks. If you haven't seen it, you're in for a bit of a pick-me-up. . .at least if you are web design and / or Bush administration critics.

CHOCOLATE EASTER BUNNY FIASCO

This reminds me of my own personal battles with chocolate easter bunnies over the years. I was a vegan at one point in college, until I sat in the back of Brandon something-or-other's old Volvo on the way back to Davidson from Greenville, SC, where I had spent Easter. I biked there from Davidson but that's another story. The mom of the person I was visiting (Ashley something-or-other) kindly packed me an Easter basket, including a chocolate bunny that stared at me from the other side of the back seat. The bunny, of course, was made out of milk chocolate. Vegans aren't supposed to do milk. But that bunny just kept staring at me, taunting me, daring me to eat it. Needless to say, both the bunny and my veganism were casualties of that car ride home.

Ever since I told Anita that story, she's picked the most threatening chocolate easter bunnies she could find for me.

This year she's been content with truffles from Vosges in Chicago, however. . .(not that I'm complaining!)

THE DEFENSE OF THE STATUS QUO: JUDICIAL NOMINATIONS

What's really wrong with the present judicial nominations process? In the course of every public debate on a controversial matter, someone always argues that the controversy is fundamentally misplaced because the status quo is really not all that bad. This argument can come in several forms, from questions about the motives of those who want to change the current system, to a claim that the current system is really the predictable result of current forces that aren't going to change or shouldn't be changed, to a claim that the current system is at least better than any of the alternatives that we are likely to get given the current proposals on the table or the current prospects for reform.

What would a sensible defense of the status quo in judicial nominations look like? Probably it would entail the following points:

• The current system is not fundamentally different from past nominations processes, in degree or in kind. Examples: the blue slip rule already allows for political objections to nominees; deeply divisive partisan battles are fairly common in judicial nominations; interest groups have always been involved; controversy over the nature of the judicial function has always been part of the process.


• The reasons for dissatisfaction with the current system are suspicious. Examples: concerns over the "legitimacy" of the judiciary are misplaced either because the judiciary is always a political institution, at least at the appellate level, or because public opinion does not really require or expect a politically neutral appellate court system. One might also argue that concerns that emanate from the legal culture are part of an attempt to uphold a neutral or non-political image of the judiciary that is fundamentally at odds with the results of good, critical, social science research.


• The current system of open political conflict over judicial nominations represents a healthy debate over the political functions of the judiciary, one that is pursued by both parties with varying degrees of honesty and with varying levels of contact with public opinion.


• Concerns about staffing problems in the federal judiciary are the result of predictable complaints from members of the legal culture or from members of the courts themselves, who have a vested interest in portraying the situation in ways that will create pressure to increase their share of state resources.

I'm more sure about the first three points than the last one. Look, for example, at Jason Mazzone's eloquent discussion of the problem of judicial nominations at Jurist (link via How Appealling). Mazzone laments the "ugly partisan battles" over nominations; he argues that they diminsh the "merited respect" due to the federal judiciary as a powerful institution that should be insulated from the "current political winds." Then there is the following paragraph that is worth quoting in full:

To take politics out of the confirmation process, Senators need to adopt for themselves a set of specific rules, binding on Democrats and Republicans alike, that will govern how they will handle all future judicial nominees. The problems of the current political free-for-all are abundantly clear: Nominees languish in committee for months or years. Votes on one nominee are conditioned on promises to confirm another nominee or to favor extraneous legislation. Debates erupt over which records are relevant and which questions proper. Speculation abounds about secret plans to promote present candidates to higher and more powerful judgeships. Meanwhile, judicial vacancies imperil the performance of the courts.

My intuitions are that almost everything that Mazzone criticizes in the above paragraph is a normal -- or at least not catastrophic -- part of the nominations process. I've been reading Henry Abraham's Justices and Presidents over the weekend, and this certainly colors my views. Abraham's book is a strange combination of heroic chronicle of the members of the Supreme Court (he often sums up a discussion of a given Justice by describing how he "served with distinction") and a discussion of the political factors that feed into presidential nominations and Senate rejections or approvals. But there are also deeper disciplinary issues at play here. It's a bit of a cliche, but political scientists are still more willing than legal scholars to look at the work of courts -- and not just the Supreme Court -- as political work, so they are perhaps less shocked at the idea that politics should play an important, perhaps even decisive, part in the judicial nominations process.

I realize that the last sentence is a non-sequitur and would require some work to defend. A less political nominations process could still serve the judiciary no matter how one characterizes its political function, if one believed that the notion of an a-political judiciary were functionally important, a causal factor in judicial legitimacy, pragmatically or morally necessary, or perhaps even some kind of a "noble lie." Generally the social science work that I like, however, takes it as given that courts are political, that they should be looked at in a political fashion, and that neutral-sounding rhetoric about the role of courts serves to mask power in undesirable ways.

I realize that I haven't written a defense of the status quo here -- I've merely sketched out a possible argument. Probably the question of the functioning of the courts is the critical question. If nominations are never going to be filled, and courts cannot really do their job without the missing justices, then there is a problem. I'm not sure that members of Congress really care about this issue all that much; the history of court staffing -- and its intersection with party power -- is something that would be important here, and it is not something that I know a heck of a lot about. Some members of Congress who care about court staffing probably are happy to have overloaded courts, however, because they don't like a lot of what courts are doing.

MORE: Look at Unlearned Hand's quotation from the Eagle Forum on the significance of judicial nominations for Republicans. I might also note the Eagle Forum's discussion of the "bloated judiciary" (see the quote here). It's important to realize, I think, that there are mutually conflicting reasons why political actors see a crisis in judicial nominations. For the Eagle Forum (and, I suspect, for Bush) it's a crisis because the Dems aren't allowing Bush to do what he wants here, namely, put people on the Court who will do what he wants them to do. But understaffing is not a real crisis for the Republicans, at least for the conservative base who are happy to hamstring courts.

HOW ABOUT A DETENTION STOPWATCH?

After reading this NYT article about Maher Hawash's 29-day detention (and counting), I was wondering if anyone had thought of putting up something like a "detention stopwatch." If MSNBC can put up a "countdown" graphic to remind its viewers of the approach of "zero-hour" in the war, and Republican deficit hawks -- now war casualties -- could put up signs ticking off the dollars in the national debt (now up again?), why can't civil liberties activists put up a stopwatch on "minutes in illegal detention"? You could do it for one person, or you could also just add up all the cases up to this point and then have a series of running clocks for current cases and then aggregate the numbers. This goes far beyond my web capabilities, however.

TAKE OUR TOYS AND GO HOME

From a pathologically touchy article in the North Korean Press Agency site on a proposed EU human rights motion:

If the "resolution" is forcibly adopted, it will be impossible to preclude the situation where not only cooperation with the EU in the field of human rights but the DPRK's regular activity in the commission may face a stumbling block, he said, adding:

The EU's "draft resolution" is fraught with forgery as it is a political bargaining chip aimed to attain its selfish goal, taking advantage of the U.S. recent "nuclear racket" and its hostile policy to stifle the DPRK.

The EU, not content with distorting the human rights performance in the DPRK, worked hard to create impression that the DPRK has broken with the international community, he noted.

Bringing to light the EU's talk about the universality of human rights, he continued:

The EU indiscreetly used indecent words and made arrogant admonition towards developing countries at international human rights meetings every year, styling itself a born "judge".

It keeps mum about wanton violation of human rights including racial discrimination, national chauvinism and unemployment widespread among its member nations although it interferes in the internal affairs of other countries and likes to instruct them to do this or that.

It always pretends to be uncompromising in dealing with human rights issue but connives at poor human rights performances in its member nations and allies.

The EU is not a party to be trusted in the matter of human rights.

The EU brought up the "draft resolution" for discussion at the meeting without any consultation with the DPRK, its dialogue partner, backtracking from dialogue and cooperation with the DPRK though they are getting brisk.

This only arouses disillusion with the EU.

Cooperation can never go with confrontation.

Now that the EU is set to have no dialogue and cooperation with the DPRK and declared confrontation with it, the latter is left with no option but to exercise its deserved right to take a corresponding counter-measure.

The right of choice is not a monopoly of the EU.

I'm not sure that the Bush administration has done a great job on North Korea, but the North Korean folks at the press agency (and at the UN, apparently) are a bunch of freaks. "Cooperation can never go with confrontation"? That's been a watchword of North Korean policy, yep, you betcha. Overall the childish nature of the announcement here is depressing; the whole thing has the tone of a playground argument: "you've got no right to talk," and "I'll just take my toys and go home," and "you'd better watch out 'cause I'm gonna get you back!" Mother of God! this makes me tired.

CUSTOMER SERVICE

Sumbitted here, today:

I've been trying to find an article at Time.com by George Bush Sr. and Brent Skowcroft entitled "Why we didn't remove Saddam," from the March 2, 1998 issue. I cannot find the article on your databse (after search for keywords, title, authors and date). Have you all removed the article from your site? If so, why? If not, why is your archives search so hard to use?

Best,

Brett Marston
Dept. of Political Science
SUNY-Oswego
Oswego, NY 13126

The site claims that someone will respond within 2 business days.

MORE: As I note below, Eric from Antidotal was kind enough to note that I spelled Scowcroft's name wrong. My embarrassment (and a corrected search) was still not enough to produce the article at Time's website, however.