PHILIPPINES IMPEACHMENT THREATS

Jailed Philippine ex-President Joseph Estrada has been trying to convince Congress to begin impeachment proceedings against the Supreme Court because they unconstitutionally swore in Gloria Arroyo as the new president in January 2001. Read the article in Channel News Asia here. A June 8 editorial in the Philippine Daily Inquirer calls the move a "political gimmick." Columnist Randy David (also at the Inquirer) weighs in with this editorial. I can't resist quoting these lines from David's column, which could also have been written about our own Presidential succession controversy at the same time:

It is clear that on Jan. 20, 2001, the justices were acting against the background of a perceived crisis. They were concerned about the Constitution, but more than that, they felt protective of a political order they thought could rapidly descend into chaos. Rightly or wrongly, they believed that at that moment, only the Supreme Court had the credibility and power to avert lawlessness.

An odd parallel.

NIGERIAN CONSTITUTION

The Vanguard has an essay by journalist Igboeli Arinze on the need for a new Nigerian constitution.

TNR POT-SHOTS

The New Republic goes after Derrida and Habermas on the grounds that their recent attempt to encourage a common European foreign policy is inconsistent with their previous philosophical positions:

And it seems to us a rather decisive rejection of [Habermas's] democratic theory that he now proposes a European security policy that limits "discourse": "In the framework of the future European constitution, there ought not to be and cannot be any separatism." For Habermas, it is easy to see how his anti-Americanism swallowed his doctrine. For Derrida, perhaps this is all some sort of post-structural joke. Or, maybe, it just proves that their theories were of limited practical value in the first place.

Derrida has never been my kettle of fish, but the charge against Habermas is weird. Granted, there is no extended argument here, and, if I'm not mistaken, so far TNR is the first American press outlet to even pick up on the Derrida and Habermas essay, so some congratulations are in order. In addition, there does seem to be a kind of inconsistency here: if you support "discourse," how can you be against "separatism" with respect to foreign policy?

It seems to me that Habermas would have an easy response: an understanding that dialogue is important is not incosistent with the claim that some kinds of unity should be encouraged. Discourse is not synonymous with geographical decentralization of all political functions. Some kinds of basic constitutional freedoms are not subject to discursive rejection, even if they may be changed in some ways through appropriation in various communities. TNR might just have well asked why common rejection of the death penalty -- also mentioned by Derrida and Habermas -- is something that counts as a foundational European commitment. To argue that foreign policy requires unity is a pretty banal statement, actually.

SPIN OF THE WEEK AWARD

The Times of India wins this week's "superlative spin" award, for their article "US blows up Brooklyn plot on Gen's arrival," which links the weird Iyman Faris case to an "embarrassment" that the Pakistani leader General Musharraf is now supposed to feel upon his arrival in the U.S. What is amazing about the article is that the ToI interviews no one about the "embarrassment" that Pakistani officials are supposed to feel -- there's no mention of any criticism of Pakistan on the part of U.S. officials (who as far as I know have not linked this case to criticism of Musharraf), and not a word from anyone who has red cheeks herself. And this is the story that ToI gives the most prominent play today on its website (next to a coquettish picture of Elizabeth Hurley).

MORE: OK, I spoke too soon. Dawn claims that "Pakistani diplomats" are worried about the case because it could lead to pressure from Washington. Sorry, ToI!

NEW JUDICIAL RULES IN CHINA

New judicial anti-corruption guidelines were issued in China yesterday, according to this article in the China Daily. The article doesn't give much detail, but here is one curious line:

Judges are [. . .] warned against passing wrong verdicts that cause great losses.

Other kinds of "wrong verdicts" are prohibited elsewhere in the code, apparently. Hmmm.

GALLOWAY

George Galloway was framed, at least with respect to the charges leveled in the Christian Science Monitor (but not necessarily with respect to the charges leveled in the Daily Telegraph). See this post at Calpundit. See my posts (and my somewhat idiosyncratic worries) here, here, and here.

HELP THE NEEDY UPDATE

Newsday has this story about the Help the Needy prosecutions in Syracuse. In the run-up to the Iraq war, federal authorities went after a charity in the central NY area that they claim was funneling funds to Iraq in violation of sanctions in place since the first gulf war. One of the men charged is trying to argue that the sanctions violate his Free Exercise rights:

As an observant Muslim, Dr. Rafil Dhafir had an obligation to provide charitable assistance to the needy of Iraq, and the government's attempts to regulate his charitable giving are unconstitutional, attorney Edward Menkin argued in a hearing before U.S. District Judge Norman Mordue.

Charitable giving _ or "zakat" _ is a bedrock principle and constitutes one of the Five Pillars of Islam, Menkin said.

"It is a religious duty. The government seems deficient in its understanding of that duty," Menkin said.

I've argued before that these prosecutions seem intensely politicized, since the publicity surrounding them seems to have been crafted to take advantage of the public's fears of the link between Iraq and terrorism. That does not mean that the men invovled did not violate sanctions, but it does mean that the government appears to have had an additional motive for going after them, a motive unrelated to the charges. Again, this is not a particularly high profile case right now and not all of the facts are in. But I think that the case should move those who care about civil liberties to scrutinize prosecutorial practices even more closely. The light of publicity from civil liberties activists can't help but be a good thing.

PRIOR RESTRAINT

My friend Parley sent me along this story about prior restraint in Paris: a court has blocked the publication of a book because it might prejudice a trial in which the book subjects (Elf oil executives) is also a defendant. Man, now I want a copy of the book. Imagine the marketing possibilities here: "what the French courts don't want you to know about corruption in the motherland!!!"

CONGRATS, CONDOLENCES

Congrats to Josh for finishing his exams, (belatedly) to Rick Hasen for getting out his book manuscript, to Howard Bashman at How Appealing for a nice blog redesign job, and to Eric Muller for surviving a harrowing kayaking trip during an electrical storm. And condolences to the state of Pennsylvania for losing a good Senate candidate -- this election cycle, at least.

PAPASCOTT

Two good posts on the June 17, 1953 uprising in East Germany, here and here. Also check out his "quick links" section.

ONE MORE ROUND

Well, the rumors are true: they ain't done yet with redistricting down in the Lone Star State, as the Gov has called a special legislative session according to Poliblog.

Maybe they're hoping that the slow summer news cycle will be to their advantage here.

RLUIPA

Law.com has a good article on litigation in Hawaii concerning the Religious Land Use and Institutionalized Persons Act (2000), which among other things makes it harder for localities to restrict land use by religious organizations. For online resources on the act, go to the excellent site put up by the Beckett Fund, which you can access here. I had a lot to say about RLUIPA in my introductrion to American Gov't classes this past semester; it's the latest chapter in a long running battle between Congress and the Supreme Court over the meaning of the Free Exercise Clause. I'm also pretty impressed with RLUIPA as a political exercise. It combines criticism of the Supreme Court (if subtle), an attempt to further religious liberty, and property rights. I'm not sure about whether I think the bill is a great idea, but it's pretty potent stuff.

RIGHT BACK AT 'YA, DASCHLE!

The Executive responds. First, as this story reports (via Howard Bashman), among other things, President Bush's spokespeople have rejected claims that the Constitution requires that he consult with "the Senate" or individual Senators. And someone who could not unfairly be called President Bush's spokesperson in the Senate -- or member of the same "faction," if I were speaking in the language of the Federalist -- former Texas Attorney General John Cornyn, has written a long letter in response to recent Senate Democrat letters to President Bush, the full text of which you can read also courtesy of the tireless Howard Bashman, here. Howard thinks that John Cornyn is doing good work in the Senate in "restor[ing] sanity to the judicial confirmations process," but I'm not so sure.

From the outset, it should be clear that we are dealing in myths when we refer to the President's "individual judgment" respecting judicial nominees. The President himself doesn't do most of the work in nominating judicial candidates in the manner of George Washington, apparently; sure, his name is on the bottom of the letter, but there is a complicated process of vetting that involves a whole division of the Department of Justice, the Office of Legal Policy. (Nowadays, this Office also has the responsibility of carrying out the nominations battle on the web, as you can see from their site.) I'm not trying to make a weasel argument here -- of course, to the President falls the ultimate responsibility of choosing and putting the vast political powers of the Presidency behind his judicial nominees. But as in other areas of political life, what was originally intended quite literally to rest "in one man" (or "one body") is now part of a bureaucratic process that is both invisible to the Constitution and relatively free from public scrutiny or at least public attention. "Invisible" does not mean "not permitted," of course. Remember that it took a long time for there to be standing committees in Congress (not mentioned in the Constitution) and it took a long time for the multiple bureaucratic agencies to develop to help both Congress and the President with their legislative goals (not explicitly mentioned in the Constitution, either).

In addition, and more importantly, John Cornyn is not being entirely candid about the reasons why this President -- or most, if not all, other Presidents -- have chosen Supreme Court nominees, at least according to the judgment of many political scientists who have studied the nominations process. Here is what Cornyn says about how the President has chosen nominees for the federal bench:

You have done your part in the judicial selection process by establishing an exceptionally successful system for selecting the finest legal minds in the country to serve on the federal bench. You have insisted upon individuals who understand that the role of a judge is to interpret, and not to make, law. [. . .]The preferences of any individual Senator should not distract any President from his constitutional responsibility to select individuals who are committed to faithfully interpreting the law on behalf of the American people.

According to Cornyn, professional competence and a particular view of interpretation (one with partisan overtones not mentioned in this letter) have guided the selection of lower court judicial nominees, and would presumably guide the choice of any future Supreme Court nominee. Throughout the history of the appointments process, Presidents have looked at a lot of other things as well, and I refer you to "Justices and Presidents" by Henry Abraham (Oxford University Press, 1974; new edition here) for a discussion of those factors, which have included geographic representation, religious and racial representation, and what Teddy Roosevelt called the nominees' "real politics." In a letter that Teddy Roosevelt -- who was about to become the new historical darling of the Republicans a few months ago, if I'm not mistaken -- wrote to Henry Cabot Lodge with respect to the potential nomination of Horace Lurton, TR says the following:

The nominal politics of the man has nothing to do with his actions on the bench. His real politics are all important. . .He is right on the Negro question; he is right on the power of the federal government; he is right on the Insular business; he is right about corporations, and he is right about labor. On every question that would come before the bench, he has so far shown himself to be in much closer touch with the policies in which you and I believe.(qtd. in Abraham, p.61)

You might say: well, that was Teddy Roosevelt and Bush will do this differently. But does anyone really believe that as future Supreme Court nominees are being vetted, there are no conversations like this that go on between the President and his advisors? The comparative glare of the now televised Senate Judiciary Committee hearings means that we have a public record as to what kinds of questions and concerns individual Senators have about nominees; no such record exists with respect to the President's choices, except for the anodyne assurances that the President is doing his constitutional responsibility, not applying "litmus tests" and selecting individuals who will "follow the law." As I've said before, these phrases are politically smart but otherwise fairly useless -- except, perhaps, in indicating that the President has estimated the "real politics" of the nominee and is satisfied with them.

I am not surprised that the Executive branch has apparently insisted on retaining control over the nominations process; it's a very Federalist-type response: defend the prerogatives of your branch, as you see them. Probably the Framers would have found it odd that Senators like Cornyn would rush to the President's aid, unless, of course, they're part of the same faction, which is, according the Federalist, dangerous. At this point, though, I have to say that it's a pretty exciting spectacle, at least from where I sit.

MISPLACED CONSTITUTIONAL THUMOS

Ire is spreading in some quarters about Daschle's request to speak with Bush about confirmations. See here (via Hesiod). And in other quarters, doubts have spread regarding the sincerity of any Democratic offer (because, according to Poliblog, Dems can be presumed not to ever be willing to compromise on abortion).

It's the end of a long day, so I'll just point out one thing that seems obvious to me. Regardless of what the judiciary does, many of the difficulties that are currently part of the nominations process have to do with an invention that was deemed destructive and undesirable by the framers -- and no, I'm not speaking about "judical activism," but political parties. Sure, according to the Federalist, it's good to have the nominations process in one person so we know whom to punish if the judges are not virtuous (with or without impeachment). Aside from the fact that the Federalist may or may not be authoritative on every point (whatever "authoritative"means), I think that our political system presents problems that are not late eighteenth century problems by any stretch of the imagination. In the current context, you have competing "factions" in the Senate and the House, one of which is allied to the President, who proudly runs as the leader of the faction and who raises bucketloads of cash for them. You have a very narrow factional divide in both the country and the legislature. And you have judicial candidates who either ally themselves with positions that are attractive to one faction or another, or who are claimed by one faction or the other. The federal judiciary is a wonderful prize because it promises partisan entrenchment by one of the factions if it can only gain enough votes to prevail in the Senate and win the Presidency as well. And you have popularly elected Senators who probably do not "refine and enlarge the public views" as Federalist #10 thought they would; instead, they reflect the views of their constituency, partly because of changing norms about democratic responsiveness, partly because of the structure of the modern political campaign.

The framers did not face such a political universe, so it is hard to know precisely what norms they would have wanted to guide such a political universe. If in these circumstances Daschle wants to pressure Bush to nominate a consensus candidate (as Hatch did to President Clinton), for the life of me I can't see how that could be a bad thing. Pejman is right on one thing, though, if you change the phrase a bit. He writes:

Only pure partisanship makes this kind of subversion of the constitutional process necessary.

Let me suggest as a substitute:

Only the existence of political parties (+the 17 Amendment) makes this kind of invocation of the political process necessary.

OK, not a perfect line, but you get my point. We now have political parties (again, the framers probably would have called them "factions") that attempt to capture the organs of government. We have Senators who are elected in the same way as members of the House, just in bigger races. If there's any perversion here, it has spread a lot father than to the leadership of the faction you happen not to like.

MORE: See my latest post, above.

MORE: Jim boils down my post pretty nicely. And I should have noted: "thumos" is Greek for "anger." I like that word.

RITTENHOUSE ON AT&T

Read this post on the defeat of an anti-gay resolution at the hands of AT&T shareholders, by an overwhelming margin.

17 June 1953

Today is the 50th anniversary of the June 17th uprising in East Germany. Read an article on the uprising in the English version of FAZ. Here's a list of some web resources in english. Also in english are these two pages from Deutsche Welle, and this page from the Goethe Institute. In german, today's Tagesspiegel has a collection of essays and pictures on the event and its commemoration today.

WHERE ARE THE WEAPONS LABS?

The Observer is reporting that those mobile "weapons labs" that we've seen so many pictures of recently produced. . .hydrogen, according to an official British report (link via Ideal Rhombus). The Straits Times has picked up on this as well, (see also this article from the Taipei Times) but U.S. media isn't particularly interested yet, although it has quoted "intelligence sources" as doubting that the labs were weapons labs (see, for example, this story in the SF Chronicle). Australian PM John Howard is claiming that mobile weapons labs have been found, however, according to The Age as well as the Sydney Morning Herald.

RESPONSE ON RMTCFG

A reader sent me this kind response to my question about the files in [ C:\WINNT\system32\rmtcfg\files\ -- forgot this -- BEM]

re your request for info;

rmtcfg is a folder created by a backdoor trojan, which infects your system and conducts nefarious activities from it

rmtcfg is a port for remote config: rmtcfg,1236, tcp, Gracilis Packeten remote config server

The reader suggests anti-virus software as a remedy. Given the staggering number of hits I get on this topic (many more so than on anything that this blog is supposed to be about), it seems like this is an issue of concern for many people.

LEAHY'S LETTER

Senator Leahy has urged President Bush to avoid a contentious nominations battle over potential Supreme Court vacancies by consulting with Senate Democrats on possible nominees. Today's NYT article on this subject is here. The online commentary has started, with The Junkyard Blog attacking NYT for pro-Leahy bias, Talk Left despairing of a Bush response to this offer (and urging public pressure on this issue, rightly in my view -- read her post!), and Steven at Poliblog claiming that the letter is a sign that Dems are itching for a fight here.

For what it's worth, I think that Leahy has got it right in one sense -- President Bush has made the appointment of conservative judges a campaign issue, and he should be called on that more often than he is, and if he really wants to avoid a SC confirmation battle, he should try to nominate a consensus candidate. The administration's response to Dem objections on Owen and Estrada (now Pryor, probably, as well) hasn't been that encouraging, though; as far as I can see, Bush has seen judicial nominations as an issue that he can use to play to his conservative religious base, and I can't see any reason why he would change that strategy now, all campaign references to being a "uniter, not a divider" aside. Predictably, perhaps, the administration has pushed the argument that majority will should hold sway in the nominations process (ignoring, of course, the lack of majority support for President Bush in 2000), and all along this administration's mantra has been "not to bargain themselves down" or something along those lines, so I think that we can safely predict that President Bush will not attempt to avoid a confrontation with Senate Democrats here. The recent suspicions that Antonin Scalia could be nominated as Chief Justice only confirm that prediction, even though it would be politically tricky to oppose his nomination since he's already sitting on the Court.

One thing in Leahy's letter is clearly wrong, though. Here is the NYT quote:

"The courts are the one part of government people yearn to believe is free of politics," Mr. Leahy said. "That's why the Florida case shook people so much," a reference to the Supreme Court ruling in Bush v. Gore that resulted in Mr. Bush's presidency.

Unfortunately, according to the public opinion data I've seen, Bush v. Gore did not shake "people." People who like Bush generally defend the decision, whereas people who like Gore generally think it is a travesty. Professional legal and political science opinion is mostly against the decision qua decision, although there are those like George Mason's Nelson Lund who argue that the decision was really "no big deal." But out in the public, the only people really shaken by the decision (at least to the extent that you can tell by survey research) were those who believed that Gore was robbed.

Interestingly, people not shaken by the decision were those who had decried "judicial activism" and defended "strict construction" in principle, even though, to my mind, the decision is impossible to justify if you have a general antipathy to judicial activism or a general attraction to "strict construction," whatever that is supposed to mean. Because they liked the result, people who supported Bush bought the arguments that the Court advanced here and were generally more criticial of the Florida Supreme Court's decisions in the case -- even though there were existing laws in place that would have guided such a controversy and provided for Congressional resolution of the dispute over electors (even if these laws were generally untested). It is very hard, if not impossible, to get beneath the partisanship here. But for me, the lesson of Bush v. Gore is that winning makes a retroactive difference with respect to the evaluation of SC reasoning, even for those who piously proclaim their aversion to judicial activism or their attachment to interpretive techniques that tend in the direction of judicial self-limitation.

So, Leahy is right but for the wrong reasons; if President Bush doesn't want a nominations battle, he should work toward finding a consensus candidate. But I'm not sure Bush is interested in a consensus candidate. I think that it is probably unwise to insist on a view that courts should be non-political, at least when they are called upon to adjudicate matters of intense debate and discussion. The distinction between "high politics" and "low politics" as advanced by Jack Balkin is relevant here, though: it's appropriate for courts to be engaged in battles over the politics of principle, but not appropriate for them to engage in the politics of (mere) partisan advancement. And even though I have dismissively described Bush as playing to his conservative base on the issue of judicial nominations, it's clear that for this administration it's not simply about winning seats, it's about advancing conservative principles. It might make sense to change the constitution to prevent partisan entrenchment -- to formalize, as in Germany, a supermajority rule, or as has been suggested in Hungary (on p. 14 of a report by the Open Society Institute available in PDF format, here) to

further define criteria for selection and promotion of judges and make those processes, as well as performance evaluation, more transparent; allow for increased input or scrutiny from external experts of the deliberative process.(quote is on p. 14 of "Judicial Capacity in Hungary," a report by the Open Society Institute, available in PDF format, here)

But with the system we have now, the federal judiciary is a great prize for "high politicians" on all sides.

Ultimately those opposed to Bush's nominations will have to make the case that the Bush administration is quite self-consciously choosing judges who have particular approaches to civil rights, abortion, gay rights, and property, and that these approaches are bad, not that judges should be miraculously free of such approaches.

"THE ROCKET" NEEDS (SOMETHING UNMENTIONABLE IN POLITE COMPANY)

Showing up at Fenway already commemorating your 300th win against the team that you're playing that night is a sign that you're a pompous jerk, to put it mildly. So I agree with Michele about his latest antics (via Jim at OTB), and the quote below echoes my sentiments exactly:

It's a serious slap in the face to the people of Boston to do anything but accept his entrance into the Hall in the cap with a B on it.

More particularly, it's a slap in the face of Sox fans, who are, it should be said, used to slaps in the face on occasion. Oh well.
MORE: Jay Caruso begs to differ and has a few nasty things to say about the Sox and their fans. Fair enough. I think that the question is not, in the abstract, whether or not Clemens should go in as a Red Sox or a Yankee, but whether or not he should complain if the Hall decides that he should go in with the Sox, and how his recent complaints reflect on his character.

MORE LINKS ON HABERMAS AND DERRIDA

In lieu of my own thoughts: just a quick post for future use on Habermas and Derrida's essay on a future common European foreign policy (and political identity). The Financial Times Deutschland has an article by Thomas Klau that argues that the essay deserves "praise," but is nonetheless an expression of a "nostalgic lack of orientation." The Mainpost (from lovely Wuerzburg) has an announcement that on 27 June, Habermas will join with Wolfgang Schaueble (CDU) as well as Adolf Muschg, Jutta Limbach and Gianni Vattimo for a discussion in the Berlin Akademie der Kuenste entitled "Whither Europe? -- European Identity." The blog riting on the wall has an analysis of the essay (from the side of someone interested in Derrida), and Gary Sauer-Thompson has some additional thoughts here.

BRAUCHEN WIR DOCH "A BOSTON TEA PARTY"

Over at Oxblog, Josh "the animal" Chafetz takes Joschka Fischer's humorous reference to the Boston tea party (as reported second hand by Timothy Garten Ash) as an incoherent attack on American cultural hegemony, where it seems that Fischer was probably talking about political hegemony, to the extent that there was a deeper meaning in whatever it was that he reallly said. As the NYT reports, there is widespread speculation that Fischer would like to have the post of Foreign Minister for ____________ (insert eventual name of unified Europe); the article mentions this point in the context of an overview of the new European constitution.

The irony is probably unintentional, but it was precisely the unwillingness of the states under the Articles of Confederation to cede power to a centralized government that prevented an effective unified foreign policy, until the Constitution -- not without controversy!! -- granted such powers to the new national government. Europe is facing the same problem, as the strong veto power of single states under the proposed new constitution shows. And the ability of foreign powers to play states off against each other in commercial relations under the Articles should also stand as a warning to the Europeans (need I mention "old" and "new" Europe?). Indeed, the recent commentary by Habermas and Derrida (et al.) can be read as an attempt to lay the groundwork for common approaches to foreign policy, something that the convention failed to do. But it is a failure that the U.S.'s first exercise in national constitution-making also had -- something that is strikingly absent in, for example, the NYT article linked above.

But if the new european constitution is analogous to the Articles of Confederation, then Europe should have already had its "Boston Tea Party." Hmmm. I suppose jokes are rarely all that funny when you think about them too much.