THE POOR MAN ON CARNEY ON PICKERING AND HATCH

Read it here. When you're finished laughing, consider these points:

Carney is described as a "reporter" at NRO's site, which is odd since Carney can call Democrats "the enemy" without a hint of ironic distance. Strangely, though, this blurring of the lines between journalism and punditry is. . .well. . .how shall I put it?. . .so European. European papers are generally less apologetic about the relationship between journalism and political advocacy -- you wouldn't expect the same story from the conservative FAZ and the leftist taz. I thought that American "reporters" were at least supposed to attempt to have a kind of neutrality related to a pride in their craft, which I understood to be something like "getting the truth on paper." Neutrality might be an elusive goal, of course. A skeptical view on neutrality is also pretty "European," though, or at least one might expect Carney and his ilk to believe that it is, that a rejection of neutrality is tantamount to an embrace of "relativism" or some other such word in scare quotes. Oh well. We become that which we have rejected but not transcended, I suppose.

As to substance, and from a purely partisan standpoint, I hope conservatives keep up the attack on Hatch, Specter, and other folks who are not Rick Santorum or Tom Delay. Republicans are already in danger of putting themselves out of the electoral reach of a closely divided electorate. Like the folks at Claremont, I hope that the Republicans do try the "nuclear option," for example -- see R.J. Pestritto's post here -- but I want them to make the attempt because the attempt will probably hurt them more than help them. The more the Reps pursue these kind of hardball tactics, the more Dems will experience the wonderful resentment that accompanies being part of an unjustly treated minority party, and the more they will be able to claim that the Reps are pushing a radical, right-wing agenda that is untethered from a popular will that remains evenly divided between the parties. The current response from the Republicans ("don't worry, be happy" updated for 2004) probably won't cut it if Republican Senators continue on their current course. A majority of Americans do not want the (temporary) current ruling party to remake American politics and political institutions for the next generation, especially not for the sake of an anti-abortion, anti-gay, imperial-presidency politics. Reps should try to remember that hubris is a serious sin in American politics. Fortunately for the Dems, hubris is a vice that tends to get in the way of its own cure.

ELIZABETH EDWARDS

Listening to Elizabeth Edwards on C-Span radio right now. I like John Edwards, but Elizabeth could get my vote, too.

ARKANSAS SUPREME COURT WILL APPOINT SPECIAL MASTER

See here and the opinion itself here. For more on the Arkansas education issue, see here and follow the links.

VOTING MACHINES IN INDIANA

Startling post at Indiana Law Blog on the use of illegal voting machines in Indiana's last election, here. I don't know how much of this kind of thing has always been going on and is now just drifting into my radar screen.

MZOUDI

Thomas Nephew has a good post on this already (and he's been following this case for a while), but WaPo has a story on Abdelghani Mzoudi today, here. It appears that there is some late-breaking evidence released by German authorities that looks bad for Mzoudi (accused of aiding in the 9/11 WTC and Pentagon plot) -- if the facts alleged are true. An Iranian intelligence agent is reported to have connected Mzoudi to the plot and to have contended that he (Mzoudi) was the target of leak-preempting al-Qaeda assassination designs after he was picked up by German police. The intelligence is not sourced very well, though.

One part of the story is potentially quite important, however. Here is the key quote:

By the [unidentified] man's account, a department of the Iranian intelligence service had worked with al Qaeda, but he gives little or no explanation of what such cooperation entailed. Mzoudi at one point spent time in Iran, the man reportedly said. The source close to the defense denied he had been there.

I am surprised that the hawks in and around the administration are not all over this one.

KNESSET, COURT AND SUNSET PROVISIONS

Jacob Remes pointed out this post by Steven Weiss on oral argument in an Israeli case concerning a recent law banning Palestinians from obtaining Israeli citizenship through marriage. The Head Heeb writes:

During the argument, Chief Justice Aharon Barak hinted at a compromise resolution under which the court would refrain from striking down the law but prohibit the Knesset from re-enacting it after its expiration date.

and Steven Weiss wants to know:

Without getting into the politics here, doesn't this kind of legal horse-trading sound very contradictory to an appropriate idea of separation of powers? Is there precedent for a move like this, in Israel or elsewhere?

I have never heard of a court telling the legislature that it must let a law expire. Politically, it makes a great deal of sense for the Court to attempt to do something like this, of course; as one of the commenters at Mr. Weiss's site notes, this action would allow the Court to attack the law without expending as much political capital as would be necessary for a clear ruling striking it down. Still, I can't think of any examples of U.S. courts telling legislatures that they must allow a law to expire. I can imagine situations in which a court sends a signal that the legislature is getting close to the point where the court would find a law unacceptable; the recent Japanese election case (see here) comes to mind. In some senses all judicial review is about telling the legislature that certain forms of future behavior would be unacceptable. But for a court to tell the legislature straight out that it should let a law expire or face having it struck down is a bit odd. Perhaps if sunset provisions were more common (or if I knew about more cases in which sunset provisions were employed), I could point to examples to analogous behavior. A few things mitigate against courts acting in such a way in the U.S., however. The appeals process takes a long time, so sunset provisions might run out before the law had expired. In addition, my guess would be that appellate courts, or perhaps especially the Supreme Court, would be happy to stay out of high-profile disputes analogous to the Israeli marriage law if the disputes have a chance of solving themselves. A strong ruling limiting or disparaging the law could have the function of contributing to the conversation about the law, and I suppose that the U.S. Supreme Court could conceive of its role in such a fashion, but lower court judges are probably more likely to try that kind of thing.

Very interesting! I'll have to think some more about this!

"STOP ALL ABORTION"

One sign that I saw several times today is this one:

I can't see how anyone could think it's a good idea to "stop all abortion." But some people take this view, apparently.

MORE PHOTOS

Protesters filed into congressional office buildings all day.

Some folks thanked President Bush explicitly for his anti-abortion stance.

The protesters marched east down Constitution Avenue before turning right to the Supreme Court building.

The protests got some play in the local media, although WaPo had nothing today on the anniversary of Roe v. Wade (as far as I could tell). There seemed to be some local fatigue on the issue. On WAMU, DC's main NPR station, Kojo Nnamdi introduced his segment on Roe v. Wade today by asking whether or not the protests had become ritualized to the point that they were now uninteresting (and, presumably, ineffective; "uninteresting" is my word, not his). Here is an audio link to the show, which I didn't have a chance to listen to. A friend of mine who is a Senate staffer made a similar argument. And a clogged Union Station at rush hour probably made the protesters few allies.

As I note below, one of the things that I didn't expect was the number of school-aged kids out there today. Someone who is 14 protesting against abortion is a bit like someone who has never had financial responsibilities protesting in favor of personal bankruptcy reform: it's not clear that they would really know what is at stake. Many kids were out there with their parents, teachers and church groups. Some have claimed that public opinion data show a conservative trend among kids with respect to the abortion issue; I would bet that events such as these (protests are fun if you believe in -- or are at least willing to entertain -- the cause) have helped to lay the groundwork for that opinion.

My general view is that the protesters are wrong, that Roe v. Wade was on the right side even if one might wonder about the relationship between court action and social change. Given that courts themselves have made references to these types of marches (see Casey, for example), however, it seems to me that it's worth getting a first hand view. Plus, protests are one way for ordinary individuals to attempt to shape opinion on constitutional matters; even if I disagree with the particular positions advanced here, in my view it's important for such attempts to be part of the political culture more broadly.

MORE: Just in case you haven't seen it, President Bush returned the thanks with some words of support today, here.

ROE v. WADE ANNIVERSARY PROTESTS

My general impression: a large crowd, but startling how young the folks were. My guess would be that for every adult there were two or three kids under the age of 16. Haven't seen crowd estimates yet, though.

PHOTOGRAPHS

I'm off to dowtown DC to take some pictures of protesters. Thinking about using them for my Supreme Court class this semester. We're reading Neal Devins's book, "Shaping Constitutional Values." So I'm on the lookout for some (street-level?) shaping today.

ECHR ON DISPOSSESSION IN FORMER EAST GERMANY

Potentially huge ruling from the European Court of Human Rights today: in 1990, Germany violated Title 1 of the European Convention of Human Rights by forcing non-farmers to give up land that had been given to them in 1945 by the East German government for agricultural purposes. Here's the ECHR press release, and here's the story on Deutsche Welle. And the Bundesministerium der Justiz issued this press release today. BMJ notes that the land in dispute is around 100,000 hectares. See also the Sueddeutsche Zeitung here.

SOTU

I'm a little late on SOTU, and I didn't think it was a great speech (and the court-bashing on marriage and tort reform was expected), but did anyone else find it odd that Republicans cheered at this second line:

Key provisions of the Patriot Act are set to expire next year. (Applause.) The terrorist threat will not expire on that schedule. (Applause.)

Is the fact that the terrorist threat will not expire next year something to cheer about? It's clear that they were responding to Dem applause at the expiration line, but, still, one might question the wisdom of applauding a line the propositional content of which is that there will continue to be a terrorist threat. Seems more like a reason for solemn reflection rather than frat-house stomping and shouting. Oh well.

U.S. v. LARA

Saw oral arguments at the Supreme Court for the first time today; the case was U.S. v. Lara, a case coming out of the 8th Circuit concerning the jurisdiction of native tribes over members of other tribes. (See here.) This is not an issue that I know very much about, but here are a few --disconnected and not necessarily very interesting -- things about the arguments that struck me:

• Lara's lawyer was attempting to argue the proposition that Congress cannot take away a power that the tribes exercise by virtue of inherent sovereignty and then give it back again qua power exercised by virtue of inherent sovereignty. Congress can only delegate powers that it has taken away from the tribe; it can't reestablish a sovereign power. I'm not sure on this, but as far as I understand it, the argument for this position would have to be that a sovereign power cannot be taken away without the sovereign's consent. The argument seems strange to me, since the normative and the factual are blended -- something could be normatively a sovereign power even though Congress takes it away from the tribes; if Congress then realizes the error of its ways, I see no reason to say that it can't "restore" the sovereign power. Justice Stevens seemed to be making an argument along this line. It's not clear to me that the concept of "dependent sovereign" couldn't be stretched to cover congressional restoration of an inherent sovereign power, though. Whether or not that concept makes sense is another question.


• The concept of sovereignty, however, is a strange concept because it seems to require a blend of the normative and the factual, something that I'm generally fine with but that I find particularly troubling here, for reasons that I'll have to think about. A sovereign power would seem on the one hand to be a power that is self-sufficient and self-sustaining in some way, at least in relations with other sovereign powers. But power, in and of itself, can also be unjustly exercised, or at least exercised in a way that can reasonably criticized as unjust. What to do when sovereign power is established in such a way? Can there be an unjust sovereign power?


• I doubt that there will be any explicit connection made between this case and the detention cases having to do with the war on terrorism, but I was struck by Scalia's doubts concerning the power of Congress to subject non-member U.S. citizens (or, as he put it, a "white man") to tribal jurisdiction by a simple act of statute. I'm not sure why this would be any worse than Congress's power to subject citizens to military tribunals, or, more precisely, the assertion of an implied delegation of such power to the executive branch. I am sure that there are all sorts of reason not to make the analogy, but it struck me as interesting nonetheless.

P.S.: Thanks to Michel for suggesting that we go. We were both pleasantly surprised that some of the questions were at least partially visibile (at least) for non-experts.

THE GADFLYER

This should be cool.

TOMORROW

I'm off to the [U.S.] Supreme Court tomorrow to hear oral arguments (for the first time). We're going to try to get in to the morning session but we're not sure we can get there early enough. The morning case is U.S. v. Lara (see here and here), which considers whether or not Native American tribes have criminal jurisdiction over members of other tribes as a matter of inherent tribal sovereignty.