UNEXPECTED TWIST

Whatever you think of Bush's plan to divide Iraq into three administrative districts and pull out most of the U.S. troops, consider this particularly interesting aspect that has caught the eye of the Times of India: U.S. requests for troops from both India and Pakistan, who would probably serve together in the section under Polish command. Here's what ToI has to say about it (from an article that you can read here):

Although both India and Pakistan opposed the US war on Iraq, they are being asked to send troops because they are among the most experienced nations when it comes to peacekeeping operations. Throwing the troops together [. . .] also appears to be Washington’s way of defusing tensions between the two sides.

This plan seeks to contribute to the continuing thaw in India-Pakistan relations (see the latest here). Again, I'm not really a fan of Bush's foreign policy, and I'm still not sure about the war, but I like this idea. It shows a lack of vindictiveness (India opposed the war very vocally and even passed a resolution condemning the invasion as U.S. troops entered Baghdad), creativity, and a willingness to be attentive to grave foreign policy crises such as the continuing tensions between the two nuclear powers on the subcontinent.

Why is the administration boxing out the French, Germans, and Russians, then? (See the WaPo article here.) Because they don't have troops amassed at each others' borders? I don't get it.

GAY MEN AND FATHERHOOD IN CANADA

Read the excellent Globe and Mail article here.

German Chancellor Gerhard Schroeder has had a tough week. As this BBC article explains, he did survive the SPD leadership vote on Monday, but some dismal economic statistics were released this week, and as this Frankfurter Rundschau article notes (also the source for the fine graphic below), poll results show that the public doesn't have much faith in Schroeder's coalition or in his reform plans. The big red bars show the percentage of people who don't believe that the reforms will provide for 1) an affordable social welfare system, 2) improvements in the economy, and 3) more jobs. Not a promising start for a major reform program.

Plus, Schroeder was met with outright hostility at a large union event on May 1st, as you can read here. Union officials passed out whistles and attempted to drown out his speech. Schroeder's response to the whistles from the crowd:

Whoever blows on whistles -- instead of discussing things, instead of making arguments -- proves that he has full cheeks but an empty head.

And he's speaking to people who are supposed to be his core supporters! Man.

MORE: UMMM, I took the liberty of altering the Frankfurter Rundschau's graphic to make it more accurate. The original version is available here. As far as I'm aware, 68 is still less than 76 or 87 in Germany.

TAGESSPIEGEL ARTICLE ON HABERMAS

Read the critical essay from Norbert Bolz in yesterday's Tagesspiegel, titled "Der Bundesphilosoph." The article is a bit odd: it's an attempt to discuss the significance of Habermas for the SPD / Green coalition now that it is in power. Along the way you get short descriptions of Bolz's understanding of some of Habermas's main lines of thought, as well as a brief, critical take on Habermas's particular approaches to German fascism and to the promises of modernity. Worth a look, at any rate.

TIME'S ARCHIVES

Following up on this story, I sent an e-mail to Time to see what explanation they had for the disappearing Scowcroft and Bush article. Here's the response I got back, today:

Dear Reader,

Unfortunately, we had to take the story down when we implemented our paid archive last year. Since it was not written by a member of the TIME staff, we did not have the rights to sell it online. You can call our Tampa office at 1-800-843-8463 to get a paper reprint of the article or get it at a library that has the TIME collection.

Sorry we can't be more help,

-TIME.com

I don't know how Time's (or anyone else's) online rights work, but now I have an incentive to find out. Any thoughts?

UPDATE: Lawrence Solum sent me a kind e-mail to refer me to the landmark Supreme Court decision in New York Times v. Tasini (2001), which created Time's problem here. Interesting. No oddness here, then, as I had initially thought might be the case. A much more sensible explanation than any conspiracy theory, I'll admit.

SLOUCHING TOWARD THE COURTROOM

One proposal that has been floated in Republican ranks to counter Democratic filibusters of Bush's judicial nominees is challenging the constitutionality of the filibuster in court, according to this article on the WaPo web site (via Election Law). Rick Hasen thinks that the constitutionality of a filibuster of judicial nominees is a political question that courts should stay away from (his analysis goes deeper than that, though; go read his post; also read Lawrence Solum's take here).

The merits of the case aside, the hypocrisy involved in such a suit would be staggering: Republicans have gotten involved in the nominations fight with Democrats because of a professed belief that courts have been too powerful and activist in the first place. One should put this question to the Senate Republican caucus: Is the political question doctrine now itself a heritage of judicial activism (namely, activism with respect to powers of judicial self-limitation)? A lawsuit would show that the Republicans want to have their cake and eat it, too, by attacking judicial power when it suits them, but also calling upon that power when it suits them. Some have said that Bush v. Gore shows how uncommitted Republicans really are to judicial self-limitation. It would be much harder to counter such a claim if Republicans now sued over something that is arguably a matter of the Senate's constitutional power over its own proceedings.

Republicans may not go forward with such a suit, but even if they don't, I think the issue points to a broader question with respect to Republican attacks on the judiciary. People go to court for a variety of reasons in a variety of politically charged circumstances. As the saying goes, "garbage in, garbage out." To expect the courts to depoliticize all issues is naive. There are certain constitutional reasons that some judges might find persuasive with respect to a challenge of nominations filibusters. Perhaps it would be very hard for judges to completely exclude their political preferences here. Perhaps it would also be hard for judges to exclude their institutional identity as well, given the fact that the nominations question is intimately bound up with questions of the nature of the judiciary. I get the impression that legal actors in particular are uncomfortable with the possible damaging effects of an increasingly politicized nominations process, for, as Lawrence Solum argues so passionately and intently, all of the following seem to be at stake: the independence of judges, the legitimacy of judicial review, and public attachment to the rule of law.

So, as Solum says, "who knows what Courts might do these days?" Is this uncertainty a matter of judicial corruption? I'm not so sure. In fact, it seems to me to be partly the result of what political actors expect the courts to be doing. On a more mundane level, those political actors are the same actors, for example, who write environmental statutes that allow the Army Corps of Engineers discretion to issue wetlands constructions permits and give judges jurisdiction to review the applications (mostly because Congress doesn't want to have to make these kinds of decisions on their own; they want to delegate the uncomfortable responsibility to other bodies, including courts).

I don't think that Solum would disagree with my statements; in fact, it is probably his concern that judges retain enough legitimacy so that they can make unpopular decisions when necessary. But I think that it's important to note that much of what the contemporary Republican party is calling "activism" is a result of Congress's own attempts to get courts to perform functions that members of Congress, themselves, don't want to take the political heat for. Land use provides some excellent examples, as I noted above.

An analogy with the threatened nominations filibuster case is imperfect but nonetheless apt. Such a suit would be a politicization in a slightly different direction, namely, the attempt to use the courts to put political pressure on an opposition that is using tactics which are frustrating but arguably allowed by Senate custom, practice, rules, and constitutional text. Republicans might want to roll the dice at the judicial crap shoot table even though their legal advisors will tell them that a suit is unlikely to succeed. They may also wish to initiate a suit for the headline effect: "Senators Challenge Constitutionality of the Filibuster" or "Senators Seek to Counter Obstructionist Democrats" or something like that. My experience teaching separation of powers cases tells me that the political questions doctrine in such cases is not palatable to most of my students. Imagine the headlines in the conservative press when the Republicans lose: "Judges Throw out Suit (subtext: on Some Silly Narrow Ground that Shows How Corrupt They Really Are)."

So, my recommendation: Republicans, heal yourselves.

MORE: See also the analysis at the Daily Kos here.

FUN WITH FLASH

Every time I look at the flash intro at this page I start cracking up, so I thought I'd share. You need the sound to get the full effect.

So out of a black hole that looks like a booming subwoofer, God's law emerges, as well as two partially obscured phrases that start with the word "American"; then, "the Constitution" drifts over this black hole and eventually gets sucked in. Brilliant. [Actually, The Constitution drifts over the hole and starts to get sucked into the booming subwoofer void, at the bottom of which is the Blackstone Insitute itself, but escapes at the last minute. That's a pretty good metaphor for a rejection of conservative approaches to jurisprudence. . .]

You should know that William Blackstone is in my dissertation, but that I put him to somewhat different uses than these folks.

OK, I'M A ROMANTIC

What does it take to be a good academic in the context of university and college life in the U.S.? And is it worth the cost to your own soul? I take these to be the critical questions raised by the essay by Timothy Burke, here, with comments from Invisible Adjunct, Kieran Healy, and Junius. For what it's worth, I agree with what I take to be Burke's main point: one of the reasons why specialization takes on such a dreary characteristic is that there are few incentives (and, perhaps, fewer opportunities) to engage in the process of integrating one's specialized work into a broader perspective, one that is related enough to the perspectives of existing communities both to make one's individual research intelligible to others and to infuse it with a sense of purpose beyond mere career advancement. Career advancement alone is empty (and I was surprised that Kieran Healy forgot to quote Weber's line about "voluptuaries without a heart" or however it goes; perhaps that's part of what Healy calls his "odd" romanticism).

The university as a whole could stand as a symbol for the promised integration either into a community of learners or into an account of the world that expresses in some fashion concerns that are also present outside the academy. University, universe, and all that. But integration takes time and effort, as well as the willingness to ask questions that are not informed by specialized, disciplinary knowledge and thus appear naive to the "disciplined" observer.

In an interview on the subject of their TV show that I blogged on a while back, Sloterdijk argues that it was Adorno in particular who bequeathed to German intellectuals a "hyperreflexivity" that requires a rejection of all forms of naivite; Adorno's attacks on jazz are a good example of a cultural-critical expression of that rejection. But Adorno is ultimately wrong, in my view: naivite is unavoidable and good. It may, of course, be necessary for careerist reasons to hide this fact, if a career is what you want.

WHAT ABOUT POLITICAL SCIENTISTS?

Senator Cornyn wants to reform the judicial nominations process (as reported at How Appealing). So why does he only invite Senators and law professors to testify at his first hearing? How about political scientists who have actually studied the nominations process in detail (that's not me, by the way)? Sheldon Goldman, for example? What makes law professors like Doug Kmiec experts on the nominations process in particular? What's needed, it seems to me, is testimony that looks at the nominations process from the widest possible perspective. That perspective is not identical to the perspective of professionals in the legal culture itself.

Oh well.

MORE: Let me second Rick Hasen's call for testimony from Lawrence Solum of the indomitable Legal Theory blog. . .and not just because I share Hasen's fears about the political leanings of the folks Cornyn has collected. Doug Kmiec, for example, is a very smart and articulate man, but my impression is that calling him to testify at a hearing on judicial nominations will stretch even his expertise to the breaking point.

MORE: Read John Ferejohn's short essay on the judicialization of politics here (link via Legal Theory). This is the kind of approach that one might get from political scientists but not necessarily from legal scholars. Ferejohn canvasses briefly the worldwide, post-WWII phenomenon of the rise of judicial power and provides a few broad explanations for the phenomenon. One of the reasons Cornyn might not want to invite political scientists to the party, however, is reflected in Ferejohn's advice in the article: look to European practices of supermajority requirements and term limits. These are the kinds of reforms advocated by Bruce Ackerman as well, as I noted a while back (a law professor, to be sure, but one who likes to hang out at selected political science events). These kinds of reforms really strike me as quite sensible, but the immediate partisan gain for such reforms would accrue primarily to the Democrats, who have already enacted, unilaterally, a supermajority requirement of sorts.

AMERICAN EXCEPTIONALISM

In the rest of the world, today is May Day. Read the Guardian story here and look at its photo coverage of world May Day events here.

In the U.S., since the late 1950s, it's not May Day: it's Law Day, a day on which we are supposed to reflect on the virtues of our legal system. Instead of celebrating the transformative power of our own work in concert with others, we're supposed to celebrate the conserving and sustaining power of judicial work, as Bush notes in today's proclamation (via How Appealing).

In other words, once a year, every year, there is a day on which radical critics of the de-mobilizing power of the legal culture are simply right.

MORE: Oh, and it's Loyalty Day, too. How's that for double-barrelled action! So if you celebrate May Day, you're not only lawless: you're also disloyal. Seems like overkill to me.

AND STILL MORE: Today is also the National Day of Prayer. Read the WaPo story here.

THE SHAKESPEAREAN INSULTER

My friend William, classicist extraordinaire, sends along this link. An example:

Hence, horrible villain, or I'll spurn thine eyes like balls before me; I'll unhair thy head, Thou shalt be whipp'd with wire, and stew'd'in brine, smarting in lingering pickle.

Taken from: Antony and Cleopatra

I may just have to make this part of my daily regimen while I nurture my own reservoirs of partisan bile. . .

WORLD PAPERS ON FALLUJA

There's not a lot of editorial reaction in today's world online press to the shootings in Falluja (link via Eric, who has some strong words for the US occupying force). The Tagesspiegel's story is "U.S. Soldiers Shoot into Crowd," and relies heavily on al-Jazeera's reporting. Le Monde's coverage is more first-hand and even less favorable toward the American version of events; it is probably the most in-depth account that I have seen so far, with quotes from some members of the military convoy involved in the shootings who tried to point out damage caused by gunfire from the crowd; Le Monde's reporters were unconvinced. El Moudjahid notes that a witness claimed that half of the dead were children; this is a detail I seem to have missed in other stories. Dawn leads its roundup of Iraq-related news with a spare account of the story. The Independent Online's story is more friendly toward the U.S. accounts of the incident. The Iran Daily (no permalinks) has a huge headline: "American Troops Kill 13 at Protest Rally" and also repeats the detail about the witness accounts of dead children.

MORE: In WaPo, Jefferson Morley has a good overview of world reactions.

JOHN FUND'S WEIRDNESS:

In his Opinion Journal piece today ("Demolition Derby," link via How Appealing), John Fund says a few weird things. Take this key paragraph:

It reflects the nature of the modern Senate itself. The days when Majority Leader Lyndon Johnson could run the body like a ringmaster cracking his whip and cut binding deals with a single leader of the opposite party are over. Now the Senate is filled with 100 independent operators--all of them with egos and many who have grown cranky after years in the world's most exclusive legislative club.

Two things are wrong with the implied Senate history here. First, and most important, is the claim that Democrats are able to oppose many of Bush's proposals simply because of a lack of good Senate Republican leadership. I understand that the current script now is to criticize Bill Frist for his apparent lack of ability in keeping the Republican Senate focused on drilling through Senate custom and procedure in the attempt to push Bush's agenda. I understand that Republicans are now savoring their first real taste of unified government in a while, and that they also probably expect that the moment will be fleeting and that at some point before the decade is out, divided government is likely to return with a vengeange. Now it's time to tie the hands of future Congresses by running up huge bills that future Congresses (and the public) will need to pay. But it's just weird to claim that leadership in the Senate -- especially with a razor thin majority and an opposition relatively free of major fault lines -- can accomplish all that much.

Secondly: why is it wrong to claim that leadership is the issue? Because the Senate is not like the House, and this fact is not some newfangled corruption introduced by a combination of legacy of the age of Aquarius and the crappy leadership skills of weak-kneed southerners at the party's helm, as Fund implies. Remember the days when Senators viewed themselves as ambassadors from sovereign states? No, of course not, because that was a long time ago, and everyone who remembers those days is now dead. But the customs and procedures that reign in the Senate were formed in that period.

The Senate has always been more decentralized than the House. That's why the Rules Committee in the Senate is not nearly as powerful as the Rules Committee in the House (and that's why the Rules Committee was a good place for the Republicans to send Trent Lott: he can't do a lot of damage there). The old Senate rules are under attack by the Republicans, who are impatient with a unified minority party. Presumably, Fund would wish to continue the attack. Since I'm not so crazy about the undemocratic nature of Senate representation anyway, I have to say that in theory I am not so opposed to making the Senate more majoritarian. For the meantime, though, I'm pretty happy to have minoritarian moderation, even if it is called obstruction by Republicans.

JEFF SESSIONS

A while back, in a post on the judicial nominations question, I noted that Senator Jeff Sessions is more interested in criticizing the federal courts for their "activist" rulings than in designing a consensual nominations process. I mentioned a speech in which he goes on a rampage through 50 years of establishment clause cases, takes the 9th Circuit to task for a variety of "liberal" rulings, and defends Estrada as someone who will "follow the law." If you'd like to read that speech, you can access it here. According to Sessions, at least, there is no "downward spiral" in the nominations process. Instead, there is a (bad) "activist" judiciary that needs to be whipped into shape by a President who nominates -- and Senators who confirm -- what the rest of the world would call judges with conservative political and legal views. I don't know how many Senators share his views, but I'd like to find out.

MORE: Sam Heldman reminds us that Sessions was nominated for a District Court seat in 1986 and defeated and tells us to read the transcript: "It will knock your socks off." Now I know what I'll be doing next time I'm in DC (I don't think that Oswego's library has a complete collection of Judiciary Committee transcripts). . .

FILIBUSTER POLL ONLINE

Charlie Norwood (R - GA 9th) has an online poll on whether or not "hardline Democrats" should continue to filibuster Miguel Estrada's nomination. Tell him what you think!

A PROPHET:

The title of Georgia Republican Nathan Deal's speech says it all: "God Will Bless America in Both War and Peace":

Perhaps it is a sign of my Calvinist Primitive Baptist ancestors, but I too believe, as did our founding fathers, that God has had a direct hand in the establishment of our nation and in sustaining it for more than 200 years. I also believe that if we continue to promote human dignity and freedom, God will bless America in both War and Peace.

Any thoughts, JC?

GERMAN CONSTITUTIONAL COURT AND BIOLOGICAL FATHERS

The Budesverfassungsgericht released a decision on April 29th that gives more rights to biological fathers in disputed cases. The constitutional difficulty for the court lay in two provisions of the Basic Law, Article 6 section 1, which reads, Ehe und Familie stehen unter dem besonderen Schutze der staatlichen Ordnung ("marriage and the family are especially protected by the state"), and Article 6, Section 2, the first sentence of which reads, Pflege und Erziehung der Kinder sind das natürliche Recht der Eltern und die zuvörderst ihnen obliegende Pflicht ("Care and education of children are the natural right of the parents and a duty that is theirs first and foremost.") A recent reform in the law regulating children and familial obligations had excluded biological fathers when the mother was married to another man and that person was the child's legal father (which I take to be almost all of the time). Section one seems to indicate that marriage and familial relationships are paramount; the law preventing biological fathers from contesting paternity when there was already a legal father (i.e., husband) had been adopted in order to secure the "social peace" of the family, as this Tagesspiegel article puts it. In the case under review in the constitutional court, the mother and the biological father had an ongoing relationship and the biological father had been present at the birth of the child, had participated in choosing the name and had taken responsibility for some childrearing. After the mother ended the relationship, however, the biological father sought to establish legal paternity but ran up against the law excluding him from doing so. The constitutional court decided that Article 6, Section 2 gave some rights to biological fathers as well, at least when contact with the father would serve the interests of the child. In this case, apparently, the mother was no longer living with her husband, either, so there was no "social peace of the family" to protect between the mother and her legal husband.

NOTE: I would say more about this case if I knew more about family law and about the ways in which the court's ruling will be implemented by judges in contested paternity cases. Seems to me that if judges are empowered in child visitation cases to determine what is in the "interest of the child," then it makes sense to give them one more tool, namely, the option of allowing biological fathers to seek legal paternity. Biological fathers were barred from contesting paternity in certain cases by the previous law, and it seems to me that even without a textual foundation in the basic law, it makes sense to change that rule, in the abstract, at least.

TOM DELAY UP FRONT ABOUT IT:

Today's speech on the House floor shows Delay's reasoning behind the tax cuts. From his speech, which you can access here.

Others say they worry about the deficit. But their argument contradicts itself. The budget was balanced in the 1990s through spending restraint and economic growth.

Letting people keep more of their own money stimulates the economy and limits our ability to spend.

Those opposing significant tax relief would intentionally hamstring the economy and leave hundreds of billions in Washington to be spent like a stray $20 bill in Las Vegas

MORE: Just in case it's not clear, let me spell out what I think this speech by Delay indicates:

• The House Republicans are not concerned about deficits. In fact, for Delay, deficits are good because they constrain future spending. In other words, Delay and the House Republicans would rather spend money on the interest on the national debt than on federal programs.


• The House Republicans are trying to do what they couldn't do with Clinton in the White House (remember the budget battles with Clinton?). Now is their chance to ensure that significant cuts in federal programs that they can't enact frontally and honestly will be favored in future Congresses as well because of budgetary constraints.


• The House Republicans, at least, know that they can get away with this long-term strategy of retrenchment by wrapping themselves in the mantle of patriotism and following a President who is fresh from military victory and who can play on the fears of a public concerned about terrorism and safety. The Bush administration's military strategy seems to require huge investments in the military in order to be able to back up, credibly, threats against nations that might wish to harbor and support terrorists. You can bet that spending on the military is not what Delay is thinking of when he speaks of federal money being spent "like a stray $20 bill in Las Vegas," even if critics of Bush's foreign policy might describe the current administrations approach to military force abroad as a risky, high-stakes game.

I hope that Delay keeps talking. The idea of consciously running up the deficit as a means of binding future Congresses is a radical expression of the resurgent Republican Party's desire to leave their mark on the federal government by any means necessary. If they can't defend cuts in environmental, educational, health care, and other social welfare programs on the merits of those programs, they'll go after them with the hammer of patriotism and the anvil of astronomical budget deficits.

And let me just add one more line from Delay's speech:

We need real tax relief to create jobs, grow an economy that can afford all our priorities, balance the budget, and hold the line on spending.

Delay also has the audacity to defend the President's huge tax relief proposal as a means of balancing the budget. The mind staggers at this statement, especially since the long-term strategy clearly is to run up deficits in order to engage in retrenchment. But even if you're not willing to be as cynical as I am in assuming that Delay is defending, frontally, a neo-Reaganesque program of deficits to kill federal government programs, you're still left with the massive contradiction in Delay's speech: deficits balance the budget. Try telling that to your kids when you're teaching them about credit card debt, for example. Delay's audacity here is mind-numbing. That's probably partly the intention of his statements here. If you tell a lie often enough, people will start to believe it. Amazing.

PATRIOT PUG. . .

This is very strange.

GAY MARRIAGE CASE IN MASS.

Read this article by Kristin Lombardi in the Boston Pheonix on the gay marriage case now before the MA Supreme Judicial Court. (Link: my sister's coffee table)

RECESS APPOINTMENTS CONTINUED

See the thoughtful post at Lawrence Solum's Legal Theory Blog, and also the post at the newly designed and now very spiffy Election Law blog by Rick Hasen. Solum has also prepared a guide to posts on his recent discussions (primarily with Rick Hasen) on the state of the judicial nominations process.

CONTEMPT POWER AND PRESS FREEDOM

Read the editorial in the Indian Express applauding the government for moving to make truth a defense in contempt proceedings against journalists. As I noted earlier, Indian judges have not refrained from using the contempt power to punish journalists who cast doubt on the integrity of the judicial system; indeed, the contempt power has apparently been a powerful tool for the Indian judiciary in improving its public image in comparison to other political institutions. More on this later.