NOTES

Yes, the Party of the Right still exists at Yale. I wondered about this below; it's a sign of the cultural divide between grad students and undergrads at Yale that I had never heard of these folks.

I updated my "reader response" post on judicial history in Nevada by adding my kind correspondent's last name: Dennis Myers.

Dan, at Lies Damned Lies and Statistics, coming off a fine installment of Carnival of the Vanities, has a post responding to my comments on Hostettler's non-enforcement amendments to an appropriations bill last week; Dan's [OOPS! should read: "Dan"] notes that his personal experiences with Hostettler do not inspire confidence in the man's judgment. I'm a little more willing than Dan to accept moves toward congressional constitutional interpretation, even if it seems counter to Marbury v. Madison (and, especially, the tradition of citing Marbury in the twentieth century to establish judicial supremacy). Most, but not all, people who criticise judicial supremacy do it from the right, while I am doing it more from the left, I suppose, but I also think that judicial supremacy has been oversold for cultural and contingent historical reasons.

Papascott has a critical post on my thoughts on Germans ditching restrictive rules on sales. He's not the only one who took issue with my defense of such restrictive laws. More on that later.

Finally, thanks to blogorrhea, Chris Lawrence, Net Velo, Southern Appeal, Camassia, The Curmudgeonly Clerk, Intelligent Life, Waldheim, Priorities and Frivolities, Dormouse Dreaming, and Lawrence Solum for paying attention to my rambling thoughts over the past week.

NOT GREAT P.R. FOR OLD ELI

Seen this? It's an account of a meeting of the College Republican National Committee, where a copy of the "College Republican Hymnal" popped up. Apparently some of these songs were (are?) sung by the "Party of the Right," a Yale student group.

So the delegates stood to sing the hoary favorite "Stomping Out the Reds," which is sung to the tune of "Bringing in the Sheaves."

The chorus goes: "Stomping out the Reds, stomping out the Reds/ We'll advance rejoicing, stomping out the Reds!"

The first verse is: "Meet the Left in action, put them all in traction/ Get great satisfaction, bashing in their heads!"

The last verse begins: "Bayonets bright gleaming, panzers forward steaming . . . "

Panzers? Nazi tanks?

Ah, those exuberant Yalies.

Never heard of these folks, the "Party of the Right." Are they still around?

And no, as far as I know, GESO doesn't get together to sing "the Internationale." At least not in public.

THE TEXTS

The Vatican's document, "Considerations Regarding Proposals to Give Legal Recognition to Unions between Homosexual Persons," is here. (link from the press release from Dignity/USA)

You might also be interested in "Doctrinal Note on some questions regarding the participation of Catholics in political life," from November 4, 2002, here.

GOOD CEMENT PARTITIONS MAKE GOOD NEIGHBORS?

Read this case from Massachusetts and judge for yourselves: Commonwealth vs. Joanne M. SANTOS. No. 02-P-206, released on August 1, 2003, and you can reach it through this page (go to slip opinions of Massachusetts Appeals Courts). The question involved was whether a conviction of "trespass by agency" should stand. The case involved a heated property dispute between neighbors over ten feet of driveway, a fruit stand, and a contracted crane operator's swinging cement blocks over disputed driveway space in order to wall off a boundary. Oh, and tucked away at the end of the opinion: a false police report [actually, an acquittal on charges of filing one] and damage to the inside of a police cruiser [actually, allegations thereof; charges dismissed]. Somehow I doubt the problems are over in that neighborhood.

And while you're there, don't forget to bookmark this page, so you have a link to the Massachusetts Supreme Judicial Court's opinion in Goodridge v. Department of Public Health once it is released.

More: I fixed the broken link above; now you should be able to get to the opinion with a few easy clicks.

ZIMBABWE

Take a look at this post at Publius Minor, with links, on a recent scholarly panel that got to discussing the rule of law in Zimbabwe.

'NATIONAL EMERGENCIES'

Anyone like to guess how many "national emergencies" we currently have in the U.S., as a matter of law?

Here's a document that can help with a partial tally. If I counted correctly, the document mentions 17. I'll bet there are more.

JUDICIAL HISTORY IN NEVADA

Reader Dennis responded to this post and my uncertainty about judicial history in Nevada with a detailed discussion of recall and impeachment provisions in that state. Here's the relevant section of the e-mail, which I reproduce with gratitude!

There are four ways to remove judges in Nevada, which is more than most if not all states. One of these is of recent vintage-- removal by a discipline proceeding was added in 1976. A second, recall, was added in 1912 during the Progressive Era when direct citizen action measures like initiative and recall were all the rage. The other two were placed in the original Nevada Constitution in 1864. They are a product of substantial suspicion of the judiciary at the time, which arose from two factors.

One of these factors was dislike of a judge, Orson Hyde, who had administered the western Nevada area in the 1850s when it was a part of the Territory of Utah. Hyde was appointed by Governor Brigham Young and established a government in western Utah that has been described as theocratic. This resulted in not just the ways of removing judges but also a rather ambivalent guarantee of the freedom to worship in the Nevada Constitution's declaration of rights: "The free exercise and enjoyment of religious profession and worship, without discrimination of preference, shall forever be allowed in this state...but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this state."

The second factor was unhappiness by mining interests with the justices on the Supreme Court of the Territory of Nevada, who were portrayed as corrupt (though no evidence of such was ever offered). One delegate to the Nevada constitutional convention generated "merriment" when he said, "Well, there is some resemblance between the state prison and the supreme court." The delegates wrote a constitution that included removal of judges by the impeachment process but also included removal by the legislature for reasons that "may or may not be grounds for impeachment."

To my knowledge, no judge has ever been removed from office by impeachment, recall, or legislative removal. I know of at least one case of a judge being removed in discipline proceedings since the Nevada Judicial Discipline Commission was created in 1976. In 1995, North Las Vegas Municipal Judge Gary Davis was removed from office by the commission. The commission also, for some reason, voted to remove District Judge Paul Goldman from office in 1987, even though the judge had resigned on his own.

Thanks! And keep those e-mails coming.

MORE: I mistakenly omitted Dennis's last name above: it's Dennis Myers, and he's a journalist who has been covering the Nevada legislative session. Thanks, Dennis!

THIS IS INTERESTING, I THINK

"A countywide judicial watchdog group hopes to keep close tabs on the county's elected judges," from the Plano Star Courrier. I wonder what the "Committee for a Qualified Judiciary" (Dallas) is all about.

GOOD QUESTION

Will Baude proposes a good question for Democrats on the Judiciary Committee to ask Pryor:

"Given your position that abortion is murder and the requirements you would have to uphold a decision proclaiming it to be a protected constitutional right, why do you want to be a judge?"

They didn't need to ask this precise question to point out the difficulties involved in confirming an individual who believes abortion is murder, however.

SELF-UNDERSTANDINGS

"[T]hough it might have become academic orthodoxy that judges should be viewed realistically as policy makers in robes, when a judge takes this view of himself or herself in the performance of the judicial function, he or she becomes a cynic, not a realist. Thus, it is not surprising that an older understanding of the integrity of judging persisted, at least among judges whose experience with the varied texture of the law left them skeptical of reformist theory or whose character made them reluctant to replace impartiality with a political program, however well meant." -- James R. Stoner, Jr., Common-law Liberty: Rethinking American Constitutionalism (Lawrence, Kansas: University Press of Kansas, 2003), 123-4.

For social scientists, it is unwise to ignore the perplexities of self-description. This may make the task of quantification more difficult at times -- I've never tried it, but I'll bet it's hard to "code" for self-doubt, caution, the edge of shame, reluctance, evasion.

I want to try to "be fair to Republicans" and respond to some reactions to my recent posts on the Pryor nomination (scroll down to read them). As one astute and eloquent reader pointed out to me, it is not in the ambit of the self-understanding of many Republicans who care about the judiciary to say that judges should be chosen because of their "policy preferences." Instead, many folks think that judges should be chosen because of their dispositions and habits, in particular their disposition to "follow the law." I might add that "following the law" is usually set in contrast to the act of "making the law" or "legislating from the bench." (And from a non-partisan direction, if you specify the required habits as "judicial virtues," you have Lawrence Solum's approach to judicial selection.)

I want to put aside the way in which this dichotomy between "following the law" and "legislating from the bench" is bound up with a skepticism regarding rights claims and just say that there are some very interesting problems of priority here, I think. Let me make a somewhat contrarian suggestion that comes out of left field, perhaps, and that doesn't really address the center of the problem: one reason why the Supreme Court can be said to have betrayed the judicial function in Bush v. Gore is that it got involved in deciding the outcome of an election, and when that happens, it's a lot harder for people who pay attention to the judiciary to believe that their assessment of the Court's work is not mostly determined by their preference for a particular outcome. (I make a similar point about the California recall in a post below).

Taking sides in the "culture wars," as Justice Scalia has put it, is one thing; taking sides in an election is another because elections are closer to the core of democratic politics. In the 2000 election controversy, anyone with a sincere willingness to examine their own reactions to the case must come across a doubt about their ability to believe that the Justices were not influenced by party preferences and that their own assessments are not influenced by party preferences. That doubt threatens the ability of individuals to have a non-realist understanding of their own beliefs about law and faith in the possibility of non-realist judicial approaches.

Self-understandings require nurturing -- the cynic would say that they must be nurtured through willfully constructed absences, and the more kind would say that they must be nurtured through habits, customs, and shared practices. By choosing the winner in a Presidential election by a party-line vote, the Justices helped to sow salt in the soil that should have allowed non-realist self-understandings to grow. I would wager that a lot of the vehemence of the "get over it" line with respect to Bush v. Gore has its roots in a basic unease over the ability of non-realist accounts to explain the result in the case. It's no accident that the most prominent defender of the case, Judge Richard Posner, defends it on self-consciously pragmatic grounds, not grounds that Scalia-type conservatives would recognize as "legal."

Subtletly is needed to give self-understanding its due. I had a fun discussion today with a grad school colleague who studies congressional leaders, and we both agreed that one of the problems in many mainstream political science approaches to both Congress and the courts is a tendency to flatten out the phenomenon of the self-understanding of the relevant actors. For my friend, congressional leaders don't just care about exercising power -- they care about good policy. It seems to me shortsighted to ignore the claims of Senate Judiciary Committee members that they care about judges who will serve with integrity, for example, or the claims of judicial candidates that they sincerely aim to "follow the law." But just as in ordinary life you don't always take things at face value, I don't think that it is wise to ignore the associations of the phrase "follow the law" and "not legislating from the bench" with outcomes that conservatives also prefer, across a wide variety of domains. Do they prefer those results because they don't like the fact that judges have created new rights, or do they prefer those results because they don't think people should be engaging in same-sex intimacies, for example? I honestly don't know the answer to that question. In partisan mode, I'll push the explanation that focuses on outcomes, but that's not entirely satisfying.

NOTE: Time flies: my posts on Pryor are actually from last week, here, here, here, and here.

ETYMOLOGY

Waldheim has a good etymological puzzle: how did the words "moot" and "table" take on opposite meanings on opposite sides of the Atlantic? The first correct answer gets a virtual beer from me, or, if you're in the metro DC area and still meet people in person (rather than just virtually), a real beer, provided it's in the next month.

P.S.: Not trying to steal your thunder, Mr. Waldheim -- I just thought it would be fun to add some encouragement. . .and I like beer.

MORE: An answer to this question will also get you a beer in Boston, apparently with no time limit. That's what I call "incentivizing" (if that's how you spell that awful neologism).

HAD TO LINK TO THIS

Fishes of the Gulf of Maine. What a fantastic site. Check out Paralichthys dentatus, vs. Pseudopleuronectes americanus , for example. On one of those science trips in Long Island Sound (can't remember where from: Mystic? New London?) the guide told us that these two fish actually are only distantly related: they didn't evolve from a common ancestor -- with one branch "leaning left" and one "leaning right," for example -- but are actually from different ancestors, with the end result being species that are, in one sense, mirror opposites. Here's one; for the other, you'll have to visit the site.

The above image of the Summer Flounder is from this page:

http://octopus.gma.org/fogm/Paralichthys_dentatus.htm

From the online edition of "Fishes of the Gulf of Maine," by Henry Bigelow and William C. Schroeder, FISHERY BULLETIN 74, FISHERY BULLETIN OF THE FISH AND WILDLIFE SERVICE, Volume 53 [Contribution No. 592, Woods Hole Oceanographic Institution], UNITED STATES GOVERNMENT PRINTING OFFICE - Washington: 1953, (Revision 1.1: 2002)

LEARNING FROM PAST MISTAKES

The CA recall could be a legal fiasco. In one sense it's a pity that no one wrote -- and called widespread attention to -- an article like this one, by Rick Hasen, before the 2000 presidential election fiasco in Florida. Link from Lawrence Solum's Legal Theory Blog. Prof. Hasen has been following the recall closely and has the most complete collection of commentary and links on the legal side of the subject that I have seen anywhere.

Just to round this out: the recall continues to be a bad idea and the whole idea of ballot initiatives should be scrapped. If there is anything that American politics needs less of, it is elections. The U.S. already has more frequent elections -- and shorter terms in office among elected officials -- than any place in the world, and, as Anthony King has argued, our politicians "run scared" to a degree that would be unimaginable to politicians in the rest of the democratic world. Furthermore, this recall is already beginning to reinforce the idea that in politics, money rules: if you want to boot a governor from the other side of the isle [or, "aisle," for a more -- ahem! -- common metaphor], plop down a million and tap into voter discontent. Maybe you'll even get lucky and get the governorship for yourself. Finally, as the 2000 election controversy shows, elections bring out everyone's inner partisans, so that the arguments that appear persuasive to people are mostly a function of how those arguments benefit their chosen party. See Jonah Goldberg's flip-flopping here, for example. I'm not inside Mr. Goldberg's head, but I doubt he would be even considering a flop if, say, Reagan were the target of the attacks -- and even though I don't really carry a torch for Davis, I realize that my comments are not immune from my own criticism.

In a more scheming sense, then, I wouldn't be that upset if this election does become a legal fiasco; that, at least, might lead to increased pressure for limiting or ditching the provision altogether. Maybe not, but a smooth recall won't create any such pressure.

On the lighter side, perhaps this ballot would do. Looks like it might be a punch card ballot, though. . .

CARNIVAL

Carnival of the Vanities, up at Lies, Damned Lies, and Statistics. Check out the partisanship scores at Lying in Ponds, for example.

"HOUSE TARGETS JUDICIAL ERRORS"

The Washington Times reports on two House votes to prevent enforcement of controversial judicial rulings. Read Rep. Hostettler's (R, IN-8) press release here. The amendment was part of an appropriations bill.

Here's the roll call vote, and here's the relevant portion of the Congressional record, from here (Thomas). I include it below -- with emphasis added -- because it raises the argument that this amendment (like many other court-curbing bills) is merely symbolic. Note especially the amusing exchange at the end of this section between Hostettler and Congressman David Obey (D, WI-7). Note also how Federalist #78 gets turned into an affirmative defense of congressional power by Hostettler. Even though I think that this amendment serves the wrong goals, I see nothing wrong with members of Congress acting on their own considered views of the meaning of the 1st Amendment. It's a little hard to square this view with professed Republican adherence to "following the law," unless that view entails the proviso that the courts sometimes get "the law" wrong and that Congress has the authority to declare what "the law" is after federal courts have spoken on a constitutional matter. I'm not so sure that that's a bad thing, all things considered, but it's something that needs more thought. It's certainly a logical next step after the ascendancy of a party that has made criticism of the direction of constitutional jurisprudence one of its main platforms.

The CHAIRMAN. The Clerk will designate the amendment.

The text of the amendment is as follows:

Amendment offered by Mr. Hostettler:

Insert in an appropriate place the following:

SEC. ..... None of the funds appropriated in this Act may be used to enforce the judgment of the United States Court of Appeals for the Eleventh Circuit in Glassroth v. Moore, decided July 1, 2003 or Glassroth v. Moore, 229 F. Supp. 2d 1067 (M. D. Ala. 2002).

Mr. HOSTETTLER. Mr. Chairman, in Glassroth v. Moore, the 11th Circuit Court of Appeals ruled that the Alabama Supreme Court Chief Justice Roy Moore violated the establishment clause of the first amendment to the Constitution by placing a granite monument of the Ten Commandments in the rotunda of the Alabama State judicial building in Montgomery, Alabama. In the court's words, ``The rule of law does require that every person obey judicial orders when all available means of appealing them have been exhausted.''

In this statement, Mr. Chairman, the court plainly shows that it believes itself to be the chief lawmaker whose orders become law. But, in fact, Mr. Chairman, this is inconsistent with both the Constitution and article I, section 8, and, in fact, Federal statute, which says that the United States Marshal Service shall execute ``all lawful writs, process, and orders of the U.S. district courts, U.S. Courts of Appeal and the Court of International Trade, 28 U.S.C. 566(c).

In reality, Mr. Chairman, the founders of this great Nation foresaw this problem and wrote about it. And when they developed our form of government, they said this, according to Alexander Hamilton in Federalist No. 78: ``Whoever attentively considers the different departments of power must perceive that in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in capacity to annoy or injure them.

``The executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither force nor will, but merely judgment, and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.''

Mr. Chairman, given the fact that the judiciary has neither force nor will, it is left to the executive and the legislative branches to exert that force and will.

We have heard tonight that the executive branch wants to argue the Newdow case that was spoken of earlier and may hear that the executive branch wants to argue in favor of the display of the 10 Commandments in that case. We will allow, therefore, the executive branch to leave these decisions in the hands of the judiciary who, a few years ago, concluded that sodomy can be regulated by the States, but most recently said that sodomy was just short of a fundamental right that is enshrined in our United States Constitution.

But the framers of the Constitution never intended for the fickle sentiments of as few as five people in black robes unelected and unaccountable to the people to have the power to make such fundamental decisions for society. That power was crafted and reserved for the legislature, and one of the mechanisms that was entrusted to us was the power of the purse.

[Page: H7302]

Mr. Chairman, time and again I am sure that our colleagues are asked about ridiculous decisions made by the Federal courts, and many of us say that there is nothing we can do. Mr. Chairman, today, we can do something. We do not have to put our faith in the faint possibility that some day five people in black robes will wake up and see that they have usurped the authority to legislate and will constrain themselves from straying from their constitutional boundaries.

Mr. Chairman, it might be suggested that we do not want this legislation to disrupt the judicial process in the interim between the Circuit Court of Appeals process and the Supreme Court. It is not my intention to do that tonight. In fact, I welcome the highest Court's review of this decision; and I say tonight that if they get it wrong, I will exercise the power of the purse again and defund the enforcement of that inane decision.

Mr. Chairman, today is a great opportunity for us to learn the powers of the legislature vis-a-vis the judiciary. After this vote, Mr. Chairman, and the vote to defund the Ninth Circuit's decision to effectively remove the phrase ``under God'' from the Pledge of Allegiance, sour constituents will ask us, Congressman, do we, your constituents, have a voice in these most fundamental decisions, and we do not need to wait on a new Supreme Court Justice who may or may not, today or tomorrow, inject common sense into the decisions of the Supreme Court?

Mr. Chairman, we will be able to tell them, Yes, you do have a fundamental say.

And it is for that reason, Mr. Chairman, that I have offered this amendment to the Commerce, Justice, State, and the Judiciary Appropriations Act. This legislation is where we find any funding in any executive agency that would enforce the 11th Circuit's judgment in this case. My amendment would prevent any funds within that act from being used to enforce that erroneous decision in Glassroth v. Moore. I ask my colleagues to support the amendment.

Mr. OBEY. [. . .] Mr. Chairman, this amendment is a classic. In the long history of this institution, there have been many amendments offered on the floor of this Chamber. Never has an amendment been offered that did less than this amendment does tonight. It does not matter how people vote. No matter what side one is on on the question of separation of church and State or the Ten Commandments or anything else, it does not matter how one votes, because this amendment does not do nothing to nobody.

All this amendment does is to say that the Justice Department cannot enforce the decision that the gentleman does not like. The only problem is the Justice Department does not enforce this decision anyway. The Justice Department has already made quite clear that this is a ``let us pretend'' amendment. It pretends that we are doing something to protect the Ten Commandments.

I would suggest that rather than offering amendments that pretend to do that, if we want to protect the Ten Commandments, we will simply start by following them in our own lives and in our own careers. That will do a whole lot more than pretending that we are preventing the Justice Department from enforcing a decision which they would not be enforcing anyway.

So I could not care less how one votes on the amendment because it does not have any effect whatsoever. If the gentleman wants to take the time of this body to offer do-nothing amendments, be my guest; but I hope Members are not under an illusion.

Mr. HOSTETTLER. Mr. Chairman, will the gentleman yield?

Mr. OBEY. No, I will not. This is my time. The gentleman has had his time.

Mr. HOSTETTLER. I just asked the gentleman to yield.

Mr. OBEY. And I said no, and I do not intend to yield for the remainder of my time, okay?

Mr. HOSTETTLER. Is this in compliance with the Ten Commandments?

Mr. OBEY. Mr. Chairman, who has the floor?

The CHAIRMAN. The gentleman from Wisconsin has the time.

Mr. OBEY. Mr. Chairman, I suggest the gentleman from Indiana start following the Ten Commandments in terms of the way he treats people on this floor. This is my time. It is not funny.

Mr. Chairman, I would simply close by saying, vote however you want. This is a free vote. It is one of those votes that Members often offer in hopes that the public can be convinced we are actually doing something at 8:15 at night; but with all due respect on this amendment, we are not. So vote any way you want, just do not be under the illusion that when you do so, you are protecting the Ten Commandments. It does not. I could care less what the vote is.

The CHAIRMAN. The question is on the amendment offered by the gentleman from Indiana (Mr. Hostettler).

The question was taken; and the Chairman announced that the ayes appeared to have it.

One more thing is interesting about this amendment. In the Congressional record you can read a note sent from the Justice Department that tries to convince legislators not to vote for this bill [the one Obey is referring to in his comments posted above]. Here's the relevant text from the Justice Department, from this page at Thomas:

Consideration of this legislation at this point would probably be premature. Congress should consider whether the Supreme Court should be given the opportunity to review the 9th Circuit's decision without intervening legislation complicating its analysis and the procedural posture of the case. For example, part of the government's case before the Court involves demonstrating that there is a real harm to the 9th Circuit's ruling. So, if the 9th Circuit's ruling is gutted legislatively, the Justice Department might find it harder to make that claim and could strengthen the hands of our opponents' efforts to diminish or eliminate the Federal government's role in defending the Pledge of Allegiance.

Also, if the Justice Department prevails in the Supreme Court, there is a chance that opponents might try to construe this statutory language as limiting the Federal government's ability to spend funds in a manner consistent with the Supreme Court ruling.

The strategic thinking here is really interesting. The Justice Department argues that this amendment could allow courts to shy away from ruling on the substantive claims. Perhaps as retaliation? Probably not, but given Congress's lousy track record in front of the Rehnquist Court when it tries to assert constitutional interpretive authority, perhaps the folks at Justice are worried.

INTERESTING

The LongBow papers.

HENDERSON ON NEVADA SC

At NRO, Rick Henderson gives his take on the Nevada Supreme Court's July 10 decision to allow the legislature to set aside supermajority requirements for tax increases in the interest of securing adequate education funding, which the Court understood to be required by the state constitution.

Henderson is a Nevadan who pays attention to Nevada politics, so his anaylsis is worth a look. And he is clear on the basic politics of the issue in Nevada: "populist free-market reforms" on the one hand, and what he calls "welfare-state activists" on the other -- although in this instance, the Nevada Supreme Court portrayed itself as defending constitutional rights to free, public education, also written into the state constitution; critics of the ruling tend to ignore that part and also the increased attention that state courts are giving to state constitutional requirements to fund education, partly because such rulings pose a problem for those who wish to gut public education for one reason or another. Whatever you think of the Nevada Supreme Court's decision, critics of public education have to come up with an account of the meaning of state constitutional provisions -- and it's hard for me to imagine that they will be able to employ standard approaches of "original intent" to support their position.

GELPI'S TAKINGS CONFERENCE

The Georgetown Environmental Law and Policy Institute released the program for their 6th Annual Litigating Takings Conference yesterday. You can view the program here (pdf file). It will be held at Fordham on October 30-31. Check it out. My take on this year's theme: "Everything that you wanted to know about Penn Central but didn't have time to ask."

SOUTH CAROLINA SCHOOL FUNDING

The Post and Courier (Charleston) has an article on ongoing legal battles over school funding in South Carolina. Arguments were heard in state court yetserday in the case of Abbeville County School District v. State of South Carolina. In 1999, in an earlier stage of the same litigation, the South Carolina Supreme Court ruled that the state constitution required the legislature to provide a "minimally adequate education." See here.

ANOTHER ENEMY COMBATANT

Al-Marri, from Qatar, now in a brig in South Carolina. Federal district judge Michael Mihm told his lawyers that they should bring their suit there, not in Illinois where al-Marri was arrested in February, 2002. Read the Reuters article here, and the article in the Columbia State, here. A background piece from mid-July in the Baltimore Sun -- and originally in the LA Times -- is here.

MORE: "Another," not in the sense that this is a new story, but in the sense that al-Marri's case hasn't been as high-profile as Hamdi or Padilla.

BUSH IS VULNERABLE

Incumbents present themselves as invulnerable, but it "ain't necessarily so." For an early electoral map and some analysis, see the Daily Kos's post, here. Kos looks at Larry Sabato's predictions that most Democrats who are likely to get the nomination have a very good chance at winning over Bush.

Bush will be vulnerable on a national scale if his opponents keep the nastiness of current Republican leaders in the spotlight. One way that Clinton won was to appeal to socially liberal but relatively economically conservative voters. Bush's opponents should be able to do the same.

I would love to see Tom Delay's face a lot over the next year or so. Here are some choice words from a speech that he gave last week, which I linked to here:

Just look at [the Democratic] presidential candidates: it's like they're lost in a time warp. [. . .]

While everyone else got the memo that big-government, blame-America-first liberalism died with disco, the Howard Dean Democrats still want to party like it's 1979!

Maybe we should thank the Democrats for shedding their moderate clothing to reveal their true Swinging-Seventies selves.

But frankly, America doesn't need a president in a hot-pink leisure suit.

You think that's funny, Mr. Delay? Keep it up, then. And as some folks in your base smirk over such not-so-subtle invocations of anti-gay animus, the rest of the country will turn away from you in shame.

This is not to say that there are no arguments to be made with respect to serious policy issues having to do with the family and sexuality. It is to say that Mr. Delay is the poster boy for the nasty side of the party in power right now, the side that prefers to shout and ridicule rather than talk policy. I can respect people who differ from me and who want to have a discussion about gay marriage and civil unions. I cannot respect people who think that they are both God's gift to the country and God's gift to the world of political humor when they are manifestly neither.

MORE: Both Jim Joyner and Chris Lawrence think I'm overinterpreting Delay's statements. Chris: I'd be happy to loan you my own "decoder for the Vast Right Wing Conspiracy’s 'code words'," but I'd need it back by next week. It's in pretty high demand, and folks aren't producing them anymore. . .

Hey, you don't see it, you don't see it. To me it seemed like a pretty clear reference to Dean's stand on civil unions, and a few other people who heard the comments thought so as well. But they were mostly unreliable, humorless liberal types anyway. I suppose we'll just have to ask the man himself. And BTW, Jim, the Montana ad that is the subject of the story that you linked to never explicitly said that Mike Taylor was gay, but it was pretty clear to his campaign what was going on. You can't really have it both ways, I'd say: either Tom Delay was making a similar kind of reference or he wasn't. I'd opt for the latter, but I'm not a big fan of the guy anyway so I'll admit to low levels of willingness to give him the benefit of the doubt.

ELECTRONIC VOTING

Compare this, this, and this. I'm not sure what to make of the last story yet, but it's not particularly encouraging.

GERMAN GOV'T DITCHES RULES ON "END OF SEASON SALES"

For 53 years, German law has regulated when "end of season sales" could take place. If you want to slog through the statutory language in German, read this Financial Times Deutschland article. Read also this article in Die Welt, which notes that prices have have been reduced up to 80% in this year's summer sale. If you ever lived in Germany, you'll probably remember the frenzy, twice a year, starting on the last Monday in January and the last Monday in July, as shops slashed prices and tried to move their inventory. Sales outside of these times were forbidden by law (except for anniversary sales in 25 year intervals). Germans defended these laws as helping consumers know when they were actually getting a bargain; they also prevented price wars in consumer goods.

In an effort to liberalize commercial regulations, the German government has announced that the sales laws will be ditched. The government argues that scrapping the laws will allow "creativity" in pricing and sale decisions and will ultimately help to make the German economy more "competitive."

There's a saying in Germany -- "those are American conditions, after all" (das sind ja amerikanische Verhaeltnisse) -- and it's generally meant to call attention to what's seen in Germany as a deification of the market and an unwise anti-government bias among folks in the U.S. I haven't followed this particular story so I haven't noticed any criticism of the German government's decision along these lines yet, but I'm sure it will follow.

The (now defunct) sale regulations are emblematic of what used to be a German approach to business: namely, a focus on policies that intend both to protect the consumer by regularizing commercial practices and to facilitate cooperation among sellers at the same time. You might think these regulations are not "efficient," but that strikes me as a tough call. Commercial regulations in Germany aim at constraining the reach of commerce (strict closing laws are the classic example). On the whole, such regulations express a German commitment to principles beyond commerce. I like that. Economists will point to German economic woes as a signal that such policies don't work. Maybe, but it's still worth thinking about how to provide goods that go beyond those provided by the marketplace.

MORE: Jim at Outside the Beltway has a good post on differences between German and U.S. approaches to the market. One particularly important point, I think, is that Germans don't have any problem admitting that there is a tension between the market and attempting to support family life (unlike American conservatives, see here and my post here). American workers have the least amount of time off among industrialized countries: as this Washington Post article notes, 13% of U.S. companies do not provide any paid vacation. That's really sad, actually. U.S. workers also work longer hours than their counterparts in other industrialized nations. Less vacation, more time spent at work, means less time spent with one's family. It's hard not to draw the conclusion that the Republican rhetoric on supporting the family is a nostalgic itch or the political equivalent of billboard models with big pecs -- subtle message: if you were only more virtuous, you could attain this as well, so why should government help you out in your effort since you're not virtuous in the first place?

HUBRIS, AGAIN

STOMP. Yes, that's right. STOMP. "Strategic Task force for the Organization and Mobilization of People." Read Tom Delay's Friday speech before a group of College Republicans here.

Reminds me of another famous acronym. The 1970s, indeed.